While working on one of our cases, we came across the issue of a Plaintiff being highly intoxicated in a roadside collision. Under Texas law, a Plaintiff who is found to be 51% or more responsible has no recovery against the Defendant. As one could understand the Plaintiff should have a large percentage of contributory negligence if his alcohol level was over three times the legal limit at the time of the accident. Plaintiff’s counsel filed a pre-trial motion to exclude the evidence at trial. Plaintiff's counsel argued that blood testing at the hospital was not adequate to prove up the appropriate blood alcohol level. Plaintiff's counsel made several arguments to exclude the alcohol, which are set forth below:
Their first attempt was to set up the evidentiary standard under Texas law. Texas courts have held that evidentiary rulings are committed to the trial court’s sound discretion. Interstate Northborough P’ship v. State, _66 S.W.3d 213, 220 (Tex. 2001); City of Brownsville v. Alvarado, 887 S.W.2d 750, 753 (Tex. 1995). The decision to exclude evidence of Plaintiff’s alleged alcohol consumption, alleged blood alcohol content (BAC), alleged intoxication, and alleged impairment is subject to an abuse of discretion review. Natural Gas Pipeline Co. of America v. Pool, 30 SW 3d 618, 632 (Tex. App. – Amarillo 2000) rev’d on other grounds, 124 S.W.3d 188 (Tex. 2003). A trial court does not abuse its discretion as long as its decision is within the zone of reasonable disagreement. Id. A trial court abuses its discretion when its decision is unreasonable, arbitrary, or without regard for any guiding rules or principles. Lively v. Blackwell, 515 S.W.3d 637, 641 (Tex. App. – Tyler 2001).
Plaintiff’s counsel argued that Texas Courts have decided the following factors are necessary to determine intoxication of an individual:
As alcohol is consumed, it passes from the stomach and intestines into the blood, a process referred to as absorption. When the alcohol reaches the brain and nervous system, the characteristic signs of intoxication begin to show. The length of time necessary for the alcohol to be absorbed depends on a variety of factors, including the presence and type of food in the stomach, the person’s gender, the person’s weight, the person’s age, the person’s mental state, the drinking pattern, the type of beverage consumed, the amount consumed, and the time period of alcohol consumption. At some point after drinking has ceased, the person’s BAC will reach a peak. After the peak, the BAC will begin to fall as alcohol is eliminated from the person’s body. The body eliminates alcohol through the liver at a slow but consistent rate.
Plaintiff’s counsel also argued that “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence and the fact is of consequence in determining the action. See TEX. R. EVID. 401. If there is some logical connection, either directly or by inference, between the evidence and a fact to be proved, the evidence is relevant. Pool, 30 SW 3d 618, at 639. Evidence that is not relevant is inadmissible. TEX.R. EVID. 402.
Plaintiff’s counsel further argued that, to establish negligence, a party must produce evidence that (1) another party owed a legal duty, (2) the other party breached that duty, and (3) damages were proximately caused by such breach. See Lee Lewis Constr., Inc. v. Harrison, 70 S.W. 3d 778, 782 (Tex. 2001). Proximate cause requires proof of both cause in fact and foreseeability. See Excel Corp. v. Apodaca, 81 S.W. 3d 817, 820 (Tex. 2002).
Cause in fact further requires proof that the act or omission was a substantial factor in causing the injury “without which the harm would not have occurred.” See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). To be a substantial factor, the at or omission must have such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, instead of simply the so called philosophic sense, which includes every one of the great number of events without which any happening would not have occurred. See Union Pump Co. v. Allbritton, 898 S.W. 2d 773, 776 (Tex. 1995).
Foreseeability requires that the negligent actor anticipated, or should have anticipated, the danger his or her negligence creates. El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex. 1987). The exact injury need not be foreseen, but instead foreseeability is satisfied when the injury is of a general character that could reasonably be anticipated. Lee Lewis Constr., 70 S.W.3d at 785. Intoxication alone does not mean that the driver was negligent. See Dagley v. Thompson, 156 S.W. 3d 589, 592 (Tex. App. – Tyler 2003, pet. denied).
Although evidence may be relevant, a trial court may properly exclude it if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. See TEX. R. EVID. 403. “[T]estimony is not inadmissible on the sole ground that it is ‘prejudicial’ because in our adversarial system, much of a proponent’s evidence is legitimately intended to wound the opponent.” Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007).
Plaintiff’s counsel summed up their argument that the use of Plaintiff’s blood alcohol content, intoxication, impairment, and/or alcohol consumption, which had nothing to do with this accident, would confuse the issues, mislead the jury and be more prejudicial than probative. Therefore, the court should exclude such evidence.
In order to counter these arguments, we raised several key points. These points are set forth below:
We started out with the evidentiary standard but worked it in a different format. We argued that Rule 401 of the Texas Rules of Evidence states that “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Rule 402 states that relevant evidence is admissible unless an exception is otherwise provided in a superseding statutory authority or in the Texas or US Constitution.
We then addressed the evidence to establish relevancy. The lab results which show Plaintiff having a BAC of .25, or three-times the legal limit, less than an hour after the accident, as well as other evidence of alcohol consumption prior to the accident, is probative in determining Plaintiff’s role in causing the accident. Evidence of alcohol consumption is relevant and admissible evidence bearing on the issues of causation and contributory negligence.
We argued that, Plaintiff’s vigilance, judgment, and reactions are at issue. The circumstances surrounding the accident are that: 1) Plaintiff had almost 1000 feet of clear visibility prior to impact, 2) Plaintiff does not appear to have taken any evasive maneuvers including braking or changing lanes, 3) Defendant driver was engaging in a legal and reasonable maneuver and was not stopped or otherwise unreasonably placing his trailer into the right eastbound lane of SH 359, 4) the investigating officer smelled alcohol in Plaintiff’s vehicle and found a container of alcohol inside the vehicle, 5) the investigating officer testified that Plaintiff was breaking the law by drinking and driving at the time of the accident, and 6) Plaintiff was breaking the law by driving without a valid driver’s license at the time of the accident. Therefore, Plaintiff’s contributory negligence is in question in this lawsuit.
We used the case of Dagley vl Thompson, 156 S.W. 3d 589, 590 (Tex. App. 2003) to support our position. In Dagley a man driving a pickup truck collided with the right rear side of a tractor-trailer. The driver of the rig, Donald Dagley was crossing the highway where it intersected with a Farm to Market road at the time of the accident. The driver of the pickup truck died as a result of his injuries. The estate of the deceased sued the diver of the tractor-trailer for negligence causing the death by his failure to yield the right-of-way before entering the intersection as was required by a yield sign on FM 757. Dagley answered that the deceased was the cause of the accident by being intoxicated on alcohol at the time of the collision. An autopsy report on the deceased showed he had a .14 BAC at the time of the accident. The trial court granted the Plaintiff’s motion to strike the testimony of the defendant’s toxicologist regarding the deceased’s BAC at the time of the accident. The trial court also granted the Plaintiff’s motions to strike the testimony of the responding officer and accident reconstructionist. The trial court then granted Plaintiff’s no-evidence motion for summary judgment excluding the blood alcohol level.
On appeal, Dagley asserted that the court improperly granted the no-evidence motion for summary judgment because the .14 BAC level raised a fact issue as to Plaintiff’s comparative negligence. The Tyler Court of Appeals reversed the trial court’s ruling, holding that a BAC of .14 was evidence of comparative negligence and therefore the trial court erred in granting the no-evidence motion for summary judgment.
In our case, there is a lab report showing Plaintiff’s BAC was .25 following the accident. This evidence is consistent with a driver under the influence of alcohol. Therefore, all evidence of Plaintiff’s alcohol consumption is relevant to the claims and defenses in the case. As such, the laboratory results and any other evidence of alcohol consumption is relevant and admissible.
We also argued that there was no evidence to suggest there were any issues regarding the chain of custody of Plaintiff’s blood sample. The only “evidence” Plaintiff cites to in support of this allegation is twelve (12) lines of deposition from the Officer, one of the Officers who responded to the scene. Despite the short excerpt Plaintiff offers on this point, the Officer testified in his deposition that it is standard protocol in Plaintiff’s situation in this case (being involved in a major automobile accident) that his blood is drawn at the hospital. It is not customary or necessary for a police officer to accompany the patient to the hospital and watch over the doctors as they take his blood sample.
We also argued that the fact that the “protocol” Plaintiff has alleged was not followed here was not the protocol that applies in this situation. The protocol that Plaintiff discusses and alleges was applicable here is the one whereby a driver voluntarily gives up his blood sample to the police, like Defendant and driver did. In Plaintiff’s case, since he was involved in a major accident and was being taken to the hospital, it is standard procedure for him to have his blood drawn there. That is the Laredo Police Departments protocol and it was followed in this case with respect to Plaintiff.
We further argued that, there are records from the hospital that clearly show that the blood sample was taken 47 minutes after the accident and were properly analyzed in a lab which came back with a BAC of .25. There is no disputing this evidence based on the fact that the Officer did not go with Plaintiff to the hospital and wait for the doctors to take his blood and then follow the blood sample all the way to the lab. That is not the standard, customary, or necessary procedure and therefore Plaintiff’s argument here fails.
We also support our position with expert testimony. One of our experts has over 40 years of experience in Internal Medicine and Clinical Pharmacology. Clinical pharmacology involves the science of drugs and their composition, uses, and effects in humans. The doctor has been professionally involved in understanding alcohol’s effects on human for decades. It is unquestionable that the doctor is qualified to render an opinion on Plaintiff’s alcohol impairment level at the time of the accident. The doctor used his 40 years of expertise and training in arriving at his opinions. In addition his opinions are based accepted practice in the relevant scientific community.
Plaintiff’s counsel tried to counter our expert with specific variables. These variables are: 1) what Plaintiff ate before the accident, 2) his mental state on the day of the accident, 3) the pattern of drinking Plaintiff engaged the day in question, and 4) the type of alcohol consumed. This is the entirety of Plaintiff’s argument that the doctor cannot say with scientific certainty that Plaintiff was impaired by alcohol at the time of the accident.
The doctor testified that with a BAC of .25 approximately 47 minutes after the accident that it is impossible that he was not impaired. The doctor testified that, Plaintiff’s BAC content at the time of the accident could have been higher or lower depending on the time he last consumed alcohol, however, 47 minutes prior to his sample being drawn, his BAC level would not be much higher or lower than .25 and certainly not lower than .08, the legal limit. Therefore, Plaintiff’s argument that the doctor did not take into consideration the above mentioned variables does nothing to cast doubt on the validity of the doctor’s opinions. Such an argument ignores the fact that the hard data supports the doctor’s conclusion that Plaintiff was impaired.
We countered Plaintiff’s position that, the above mentioned variables may go towards the level of intoxication of the Plaintiff at the time of the accident, not whether or not he was impaired at all. For example, Plaintiff’s attorney attempted to express during the deposition of the doctor that a possible explanation of Plaintiff having a .25 BAC 47 minutes after the accident is that he took 12 shots of vodka immediately preceding the collision while he was driving his vehicle. There is the chance, Plaintiff’s attorney claimed, that if the scenario above were true, Plaintiff’s BAC could maybe have been below .08 at the time of the accident.
We also argued that explanation of Plaintiff’s potential actions on the day in qu estion do not show Plaintiff was acting in a reasonable and prudent fashion at the time of the accident. Plaintiff’s arguments here about why having a .25 BAC 47 minutes do not support the allegation that Plaintiff was not under the effects of alcohol at the time of the incident. In fact, they only work against the theory that the accident was not caused by Plaintiff. Therefore, evidence of alcohol consumption and the opinions of the doctor, a qualified expert, must be admitted as they are relevant to proving contributory negligence.
Plaintiff’s counsel countered with the argument that because there are no witnesses so far who have testified that they saw Plaintiff drinking on the day in question, that there is no proof he consumed alcohol on the day of the incident. We argued that there is ample evidence to support that finding.
First, there is the evidence cited previously regarding Plaintiff’s lack of reaction and judgment in colliding with Defendants’ truck. Also, the officer gave sworn testimony that he heard another officer who was on the scene say that the inside of Plaintiff’s vehicle smelled like alcohol. The officer could not remember the name of the individual which is why he did not list it in his report. He went on his own, however, to verify what the officer said at the scene and testified that upon approaching the Plaintiff’s vehicle following the accident he detected an odor of alcohol and physical saw a can or bottle of alcohol in the car. Therefore, Plaintiff’s contention that there is no witness testimony about Plaintiff’s consumption of alcohol on the day in question is false. The officer consistently testified that he witnessed a bottle or can of alcohol and smelled an alcohol odor upon inside Plaintiff’s vehicle immediately following the accident.
Finally, Plaintiff’s counsel argued that Plaintiff’s use of alcohol and impairment at the time of the accident will confuse the issues, mislead the jury, and be more prejudicial than probative. We argued that this position was not true. If the situation were reversed and Defendant driver had come back with a BAC of .25 after the accident, it goes without saying that Plaintiff would find it extremely prejudicial to exclude such information. Defendants are entitled to defend themselves in this lawsuit that has been brought against them and to take away evidence because Plaintiff does not like it is wrong.
In conclusion, evidence of alcohol consumption by Plaintiff in the collision is admissible and relevant.
At the end of the hearing, the Court determined that the medical records rendered by the hospital were adequate to prove up the alcohol level. It will be challenging to determine what happens at the conclusion of the case. And, obviously, this will be a significant appellate issue that will be raised after the trial.
 Mata v. State, 46 S.W.3d 902, 909 (Tex. Crim. App. 2001)
 Tex. R. Evid. 401.
 Tex. R. Evid. 402.
 Ticknor v. Doolan, No. 14-05-00520-CV, 2006 WL 2074721, at *2 (Tex. App. July 27, 2006); Trans-State Pavers, Inc. v. Haynes 808 S.W. 2d 727, 733 (Tex. App. –Beaumont 1991, writ denied).
 Dagley v. Thompson, 156S.W.3d 589, 590 (Tex. App. 2003)