                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00026-CV

ELIZABETH CADY, INDIVIDUALLY AND
ON BEHALF OF THE ESTATE OF DONALD
JASON WILDE, DECEASED,
                                                            Appellant
v.

JIMMIE LEE CARGILE AND TEXAS
PREMIER RESOURCES, LLC,
                                                            Appellees


                           From the 249th District Court
                              Johnson County, Texas
                            Trial Court No. C201100149


                           MEMORANDUM OPINION


      Donald Wilde had been visiting at a friend’s house. When he left that house after

dark, he borrowed a pickup. Two miles down the road, Wilde crashed into the side of a

tractor-trailer which was stuck and blocking both lanes of traffic. Wilde died as a result

of that crash. Wilde’s mother, Elizabeth Cady, filed a wrongful death action against

Jimmie Lee Cargile, the driver of the tractor-trailer, and Texas Premier Resources, LLC,
the trucking company (collectively referred to as Cargile). After a jury trial, the jury

found that Wilde’s death resulted from his own negligence and did not award damages

to Cady. The trial court signed a final judgment ordering that Cady take nothing on her

claims. The trial court’s judgment is affirmed.

ADMISSION OF EXPERT TESTIMONY

       We first discuss Cady’s second issue on appeal. In that issue, Cady contends the

trial court erred in admitting Cargile’s expert’s testimony. Specifically, Cady complains

the expert’s testimony was irrelevant and unreliable.

       When the offered evidence is the testimony of an expert witness, the court must

apply the principles set forth in the rules governing expert testimony. See TEX. R. EVID.

702-705; North Dallas Diagnostic Ctr. v. Dewberry, 900 S.W.2d 90, 94 (Tex. App.—Dallas

1995, writ denied). A two-part test governs whether expert testimony is admissible: (1)

the expert must be qualified and (2) the testimony must be relevant and based on a

reliable foundation. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001); see

Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006); E.I. du Pont de

Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). Cady does not complain

that Cargile’s expert was not qualified.

       Cady contends that the expert’s testimony was unreliable because his

methodology was unreliable and the analytical gap between the data and the opinion

proffered was too great.


Cady v. Cargile                                                                    Page 2
       The trial court serves as an evidentiary gatekeeper by screening out irrelevant

and unreliable expert evidence, and it has broad discretion to determine the

admissibility of such evidence. See Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 590

(Tex. 1999); Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718-19 (Tex. 1998); see

also E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). In

assessing the reliability of expert testimony, a trial court is not to determine whether an

expert's conclusions are correct, but only whether the analysis used to reach those

conclusions is reliable. Gammill, 972 S.W.2d at 726.        An expert's testimony can be

unreliable if the expert draws conclusions based on flawed reasoning or

“methodology.” Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997).

There also may be simply too great an "analytical gap" between the data and the

opinion proffered for the opinion to be reliable. Gammill, 972 S.W.2d at 726. A trial

court is not required to admit opinion evidence that is connected to existing data only

by the unproved assertion of the expert. Id.

       In Robinson, the Texas Supreme Court set out six factors that courts may consider

in deciding whether expert testimony is reliable. Robinson, 923 S.W.2d at 557. These

factors are non-exclusive and "are not always useful in evaluating expert testimony."

See Mendez, 204 S.W.3d at 801 and 802. When the Robinson factors do not readily lend

themselves to a review of the expert testimony, "there must be some basis for the

opinion offered to show its reliability." Gammill, 972 S.W.2d at 726; see Ford Motor Co. v.


Cady v. Cargile                                                                         Page 3
Ledesma, 242 S.W.3d 32, 39 (Tex. 2007). Experience alone may provide a sufficient basis

for an expert's testimony in some cases. Gammill, 972 S.W.2d at 726. In automobile-

accident cases, the Texas Supreme Court has found it appropriate to analyze whether

the expert's opinion actually fits the facts of the case, presumably adopting the

"analytical gap" test for automobile-accident cases.     TXI Transp. Co. v. Hughes, 306

S.W.3d 230, 235, 239 (Tex. 2010).

       Cargile’s expert, Dr. John M. Talmadge, is a practicing physician and the Clinical

Professor of Psychiatry at the University of Texas Southwestern Medical Center. He is

also a specialist in the treatment of addictions and general psychiatric disorders. Over

the years, he has taught at several medical schools in Texas. In this case, Talmadge was

asked to review available records and depositions that had been given up to that point

in time. He was also asked to look at relevant police reports and autopsy reports as

well as some of the national standards used for evaluation of safety and substance

abuse issues. He testified that he had a basic understanding of the facts of the accident.

       Talmadge agreed that he was not asked to provide any type of opinion as to

what caused the accident and was not faulting one party over the other. He also agreed

that he was not an accident-reconstructionist and was not going to offer an opinion on

what Wilde saw or should have seen at the time of the accident.

       Talmadge reviewed materials which described Wilde’s historical use of

marijuana and methamphetamine.         He reviewed information from the deposition


Cady v. Cargile                                                                      Page 4
testimony of several people who had known Wilde and knew that Wilde used drugs.

Cindy Cook’s deposition testimony showed that between 1997 and 2003, she and Wilde

used drugs together. Cook had also spoken to Wilde on the phone within the last year

before the accident and Wilde admitted that he had lost weight due to

methamphetamine use.      Cook’s son’s deposition testimony indicated that Wilde

approached him about being a part of a drug-running/drug-dealing operation. The

deposition testimony of April Hethcote indicated that when she and Wilde lived

together between 2006 and 2008, Wilde was dealing methamphetamine. Friends of

Wilde’s, Mr. and Mrs. Hayes, had a history of drug use but had developed a no

tolerance policy of drug use in their home. Sometime in 2009, Wilde went missing and

when he surfaced again, the Hayeses took him into their home. Wilde admitted to them

that during the time he was gone, he had been using methamphetamines. Talmadge

further reviewed a termination report from an employer that Wilde had tested positive

for marijuana in 2005.

       Talmadge also reviewed the lab results from the medical examiner. He agreed

that an amount of methamphetamine was found in Wilde’s urine after the accident but

that no type of drugs were found in Wilde’s blood.

       After reviewing all the materials provided, Talmadge formed an opinion that,

like thousands of methamphetamine users and addicts treated in rehabilitation centers,

with the pattern of long-term use and trace amounts of methamphetamine found by the


Cady v. Cargile                                                                 Page 5
autopsy, Wilde was a long-time methamphetamine user; and even though Wilde may

have stopped using for a time, he was probably using methamphetamines again.

Talmadge had treated hundreds of people with a similar background and history of

drug use.     He also thought there was a high probability that Wilde never had

intervention or treatment for his addiction and continued with the addiction until

shortly before his death.

       Talmadge agreed that he was not offering an opinion that Wilde was high or

intoxicated on drugs or alcohol at the time of the accident. He also agreed that nothing

in Wilde’s blood would make Wilde high or impaired because of drugs. The opinion he

offered was that it was highly probable that Wilde was in amphetamine withdrawal at

the time of the accident. The period after stopping the use of methamphetamine is

called a crash. A crash is characterized by fatigue, profound sleepiness, and exhaustion.

Additionally individuals who crash suffer problems of concentration and attention and

have slowed reaction times. This phenomenon has been measured on individuals in

clinical studies. Individuals who crash also have difficulty adjusting to novel situations;

if something is unexpected, they have difficulty adjusting to it, assessing it, sizing it up,

processing it, and dealing with it. All of these phenomena would be consistent with not

being able to operate a vehicle appropriately, particularly if an unusual situation was

presented with a very brief time to react.

       Talmadge asserted that his opinion was based on a reasonable degree of medical


Cady v. Cargile                                                                        Page 6
probability. It was not an absolute, but a high degree of medical probability. He could

not, however, say which particular withdrawal symptom Wilde may or may not have

been suffering or the degree to which he was suffering.         Talmadge was aware of

reputable medical publications that document crash or withdrawal symptoms for

methamphetamine users and had reviewed publications from the National Highway

Traffic     Safety   Administration   that   addressed    the   withdrawal     effect   of

methamphetamine on users. There were also two very large conventions or meetings

held by the NTSA in the last 10 years which brought together people like Talmadge,

academicians, clinicians, and people that have a lot of experience in the field to look at

all the drugs that caused a high number of traffic accidents every year. The experts

were brought together to define some of the terms that were often a little vague when

used clinically.

          An element that was discussed extensively and documented in the NTSA reports

and findings was methamphetamine withdrawal. Talmadge opined that was common

knowledge in law enforcement and medicine that amphetamine users and addicts

experiencing a crash were very likely at least to be as dangerous on the road as people

who were high on the drugs due to the factors Talmadge mentioned earlier in his

testimony. These symptoms were quite specific to the long-term meth user; so much so,

that many senior experts in the field were beginning to believe a separate kind of

treatment program was needed for these people.           According to these experts, a


Cady v. Cargile                                                                     Page 7
methamphetamine user is in a category all its own.

       Talmadge testified that the symptoms he described were consistent with the

symptoms published in the National Highway Traffic Safety Administration Drug and

Human Performance Fact Sheet. He also opined that the symptoms also compromised

a person’s ability to safely operate a motor vehicle.

       After reviewing the testimony, we concur with the trial court’s decision to allow

Talmadge to testify. Although he did not testify as to any of the Robinson factors, we

find that the Robinson factors do not readily lend themselves to a review of Talmadge’s

testimony and that Talmadge’s experience provides an adequate basis for the reliability

of his opinion. Further, although witnesses who were with Wilde several hours before

the accident testified that Wilde did not use any drugs, because there was testimony of

prior extensive drug use by Wilde and there was an amount of methamphetamine

found in Wilde’s urine, there was no analytical gap between the facts of the case and

Talmadge’s opinion. Cady’s second issue is overruled.

PRIOR DRUG USE

       In her first issue, Cady contends the trial court abused its discretion in admitting

evidence of Wilde’s prior drug use.        The complained of evidence was presented

through the testimony of Cargile’s expert, Dr. John M. Talmadge. Cady argues that

Wilde’s prior drug use was too remote and irrelevant; and if relevant, was “unduly

prejudicial” pursuant to rule 403 of the Texas Rules of Evidence.


Cady v. Cargile                                                                      Page 8
       Determining whether to admit or exclude evidence lies within the trial court's

sound discretion. Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex.

2007). A trial court exceeds its discretion if it acts in an arbitrary or unreasonable

manner or without reference to guiding rules or principles. See Bowie Mem'l Hosp. v.

Wright, 79 S.W.3d 48, 52 (Tex. 2002). When reviewing matters committed to the trial

court's discretion, we may not substitute our own judgment for the trial court's

judgment. Id. We must uphold the trial court's evidentiary ruling if there is any

legitimate basis for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35,

43 (Tex. 1998); see Enbridge Pipelines (E. Tex.) L.P. v. Avinger Timber, LLC, 386 S.W.3d 256,

264 (Tex. 2012).

       "All relevant evidence is admissible . . . ." TEX. R. EVID. 402. Relevant evidence is

any "evidence having any tendency to make the existence of any fact more or less

probable than it would be without the evidence." TEX. R. EVID. 401. Relevant evidence

cannot be excluded simply because it would create prejudice. See TEX. R. EVID. 403;

Castro v. Cammerino, 186 S.W.3d 671, 681 (Tex. App.—Dallas 2006, pet. denied). Instead,

there must be a demonstration that the introduction of the evidence would be unfairly

prejudicial to the objecting party. Castro, 186 S.W.3d at 681.

         Generally, evidence of drug or alcohol use standing alone, does not establish

negligence or proximate cause. See Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 798

(1951); PPC Transp. v. Metcalf, 254 S.W.3d 636, 642 (Tex. App.—Tyler 2008, no pet.);


Cady v. Cargile                                                                        Page 9
Trans-State Pavers, Inc. v. Haynes, 808 S.W.2d 727, 733 (Tex. App.—Beaumont 1991, writ

denied); Gunter v. Morgan, 473 S.W.2d 952, 954 (Tex. Civ. App.—Texarkana 1971, no

writ). There must be evidence of negligence or other misconduct by the user which

then can be considered by the jury in determining whether the driver committed an act

of comparative negligence. See id.

       Cargile pled the comparative and proportionate responsibility of Wilde as a

producing or proximate cause of the accident. Cargile also presented expert testimony

regarding whether Wilde could be suffering from symptoms of withdrawal of

methamphetamines. To present that testimony, Talmadge testified that he relied on

deposition testimony of several people close to Wilde during the last 13 years who

stated that Wilde used methamphetamines and was a drug dealer. Moreover, there was

earlier testimony that methamphetamine, while not found in Wilde’s blood, was found

in Wilde’s urine after the accident. Further, there was testimony that Wilde failed to

steer away from the accident until right before impact, a matter which concerned his

vigilance, judgment, and reactions as a driver. Thus, we conclude Wilde’s prior drug

use was relevant.

       Cady also complains that, even if relevant, the testimony was unduly prejudicial.

According to Rule 403, although relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403.

Other than citing three cases which in parentheticals note that the evidence excluded


Cady v. Cargile                                                                  Page 10
could result in unfair prejudice or that the evidence was excluded pursuant to Rule 403,

Cady fails to explain why the prior drug use testimony was “unduly” prejudicial in this

case and should, therefore, have been excluded pursuant to Rule 403. She simply

concludes that the testimony was “unduly” prejudicial. (“Such evidence is…unduly

prejudicial under R. 403;” “Evidence Mr. Wilde allegedly abused and sold drugs or

allegations years ago is…unduly prejudicial….”). As presented, this part of Cady’s

issue is improperly briefed and presents nothing for review. See TEX. R. APP. P. 38.1(i);

Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994); Dorton v.

Chase, 262 S.W.3d 396, 400 (Tex. App.—Waco 2008, pet. denied).

       Nevertheless, on the merits of the issue as we understand Cady’s limited

arguments, the testimony was tied to the testimony and opinions of Cargile’s expert as

explained above. As such, it was part of the basis of the expert’s opinion.

       Accordingly, the trial court did not err in allowing Cargile’s expert to testify

about Wilde’s prior drug use. Cady’s first issue is overruled.

HEARSAY

       In her third issue, Cady complains that the trial court erred in admitting hearsay

testimony regarding Wilde’s relationship with his mother, Cady.          Specifically, she

contends that the testimony of April Hethcote regarding what Wilde said about his

relationship with Cady is hearsay.

       Cargile pursued this line of questioning with several witnesses. At the beginning


Cady v. Cargile                                                                    Page 11
of the trial, the trial court initially sustained Cady’s hearsay objection to what Wilde

said about his relationship with Cady. After Cargile presented a trial brief arguing that

the statements were admissions by a party-opponent and showed Wilde’s state of mind,

the trial court overruled Cady’s objection. Several witnesses, including April, were

allowed to testify as to what Wilde said about his relationship with Cady.

       On appeal, Cady merely states in support of her issue, “There was no exception

to the hearsay rule…It was hearsay under TRE 801-804 and should not have been

admitted.” She presents no case authority or argument as to why the statements would

not be admissible as admissions of a party opponent or as statements regarding Wilde’s

state of mind as argued to the trial court by Cargile.         Accordingly, this issue is

improperly briefed and presents nothing for review. See TEX. R. APP. P. 38.1(i); Fredonia

State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994); Dorton v. Chase, 262

S.W.3d 396, 400 (Tex. App.—Waco 2008, pet. denied).

       Cady’s third issue is overruled.

PLAINTIFF’S EXPERT

       In her fourth issue, Cady contends the trial court abused its discretion in

preventing Cady’s expert from relying on a statement in a police report. Specifically,

Cady wanted her expert to testify about a specific statement in the accident report upon

which the expert relied to formulate his opinion.

       Cargile argued at the beginning of the trial that the accident report was hearsay.


Cady v. Cargile                                                                     Page 12
Further, in response to Cady’s specific request for her expert to testify about a particular

statement from the report, Cargile argued that the particular statement was speculative.

On appeal, Cady only addresses Cargile’s hearsay objection, stating that “[a]n expert

may testify about hearsay which supports his opinions … (citations omitted).” She does

not address Cargile’s objection that the statement was speculative.

       When an appellee urges several objections to a particular piece of evidence and,

on appeal, the appellant complains of exclusion of the evidence on only one of those

bases, the appellant has waived that issue for appeal because he has not challenged all

possible grounds for the trial court's ruling that sustained the objection. Collin Cnty. v.

Hixon Family P'ship, 365 S.W.3d 860, 877 (Tex. App.—Dallas 2012, pet. denied). Because

Cady does not address Cargile’s objection that the statement was speculative, she has

waived any error that the statement was improperly excluded. Cady’s fourth issue is

overruled.1

PRIOR ACCIDENT

       In her fifth issue, Cady argues that the trial court abused its discretion in

excluding evidence of an earlier accident with a different Texas Premier Resources

tractor-trailer where two motorists were killed. Cady claims that the accident was

relevant to her negligence and gross negligence claims and her negligent entrustment


1Moreover, the trial court could have excluded the expert’s underlying data because the danger that it
would be used for an improper purpose outweighed its value as support for the expert’s opinion or is
unfairly prejudicial. See TEX. R. EVID. 705(d). See e.g. Lerer v. Lerer, 2002 Tex. App. LEXIS 8371 (Tex.
App.—Dallas Nov. 26, 2002, pet. denied) (memo. op.).

Cady v. Cargile                                                                                 Page 13
and negligent training claims.

       As we noted previously in this opinion, determining whether to admit or exclude

evidence lies within the trial court's sound discretion. Bay Area Healthcare Group, Ltd. v.

McShane, 239 S.W.3d 231, 234 (Tex. 2007). A trial court exceeds its discretion if it acts in

an arbitrary or unreasonable manner or without reference to guiding rules or principles.

See Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).

       Initially, we note that Cady’s assertion that the prior accident was relevant to her

negligent entrustment and negligent training claims was not presented to the trial court.

Thus, her complaint as to these claims is not preserved for our review. See TEX. R. APP.

P. 33.1. Further, Cady’s gross negligence claim was non-suited. Thus, her complaint as

to this claim is moot.

       As to her remaining argument, similar events are admissible if the "earlier

accidents    occurred    under   reasonably   similar   but   not   necessarily    identical

circumstances."    Missouri Pac. R.R. Co. v. Cooper, 563 S.W.2d 233, 236 (Tex. 1978);

McEwen v. Wal-Mart Stores, 975 S.W.2d 25, 29 (Tex. App.—San Antonio 1998, pet.

denied). In this case, the only circumstances made known to the trial court about the

earlier accident was the following:

       Q: Y’all had another accident a month before this one in November of
       2010 where a TPR truck was repositioning itself on a local road here in
       Johnson County and a couple of young men in a pickup drove into the
       side of it and were killed, right?

       A: Correct.
Cady v. Cargile                                                                      Page 14
       Circumstances, such as time of day, visibility, and road conditions, of the prior

accident were not shown. Thus, we conclude that the trial court did not abuse its

discretion by refusing to admit testimony about a prior accident that was not supported

by a proper predicate that the earlier accident occurred under similar circumstances.

See Mo. P. R. Co. v. Cooper, 563 S.W.2d 233, 237 (Tex. 1978). See also U-Haul Int'l, Inc. v.

Waldrip, 380 S.W.3d 118, 134 (Tex. 2012) (testimony is not sufficiently similar and

distracted the jury from the relevant legal issues).

       Accordingly, Cady’s fifth issue is overruled.

CONCLUSION

       Having overruled each issue on appeal, we affirm the trial court’s judgment.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed April 30, 2015
[CV06]




Cady v. Cargile                                                                      Page 15
