                                                                             ACCEPTED
                                                                         12-15-00119-CV
                                                            TWELFTH COURT OF APPEALS
                                                                          TYLER, TEXAS
                                                                    12/2/2015 8:48:50 PM
                                                                               Pam Estes
                                                                                  CLERK

                       NO. 12-15-00119-CV
                             IN THE
                 TWELFTH COURT OF APPEALS               FILED IN
                                                 12th COURT OF APPEALS
                         TYLER, TEXAS                 TYLER, TEXAS
              _________________________________________
                                                 12/2/2015 8:48:50 PM
                                                        PAM ESTES
DEBRA DENT LEAL A/K/A                                     Clerk
DEBBIE D. LEAL,    AND TANGO
TRANSPORT, INC., AND TANGO
TRANSPORT, LLC.                                          Appellants

vs.

JAMES JORDAN
    Appellee
             _________________________________________
              Appealed from the 115th District Court
                      Upshur County, Texas
                        Cause No. 588-12
             Honorable Lauren Parish, Presiding Judge
             _________________________________________
                 OPENING BRIEF OF APPELLANTS,
                DEBRA DENT LEAL A/K/A DEBBIE D.
               LEAL, AND TANGO TRANSPORT, INC.,
                  AND TANGO TRANSPORT, LLC.
             _________________________________________

Matthew L. Thigpen
Texas State Bar No. 24056425
Norman R. Ladd, III.
Texas State Bar No. 24041285
223 S. Bonner Ave.
Tyler, Texas 75702
(903) 705-7211
(903) 705-7221 (FAX)
ATTORNEYS FOR APPELLANTS

                 ORAL ARGUMENT REQUESTED
             IDENTITY OF PARTIES AND COUNSEL

     THE FOLLOWING IS A LIST OF ALL PARTIES TO THE TRIAL
COURT’S ORDER APPEALED FROM, AND THE NAME AND ADDRESSES
OF ALL TRIAL AND APPELLATE COUNSEL:

    1. APPELLANTS-DEFENDANTS ARE DEBRA DENT LEAL A/K/A
       DEBBIE D. LEAL, AND TANGO TRANSPORT, INC., AND TANGO
       TRANSPORT, LLC.

    2. TRIAL AND APPELLATE COUNSEL FOR APPELLANTS-
       DEFENDANTS DEBRA DENT LEAL A/K/A DEBBIE D. LEAL, AND
       TANGO TRANSPORT, INC., AND TANGO TRANSPORT, LLC. IS
       LADD & THIGPEN, PC, NORMAN R. LADD, III, AND MATTHEW L.
       THIGPEN, 223 S. BONNER AVE., TYLER, TEXAS 75702.

    3. APPELLEE-PLAINTIFF IS JAMES JORDAN.

    4. TRIAL AND APPELLATE COUNSEL FOR APPELLEE-PLAINTIFF,
       JAMES JORDAN IS PHENIX, PHENIX AND CRUMP, RUSTY
       PHENIX, 118 S. MAIN STREET, HENDERSON, TEXAS 75653.




                              ii
                                        TABLE OF CONTENTS

                                                                                    PAGE
IDENTITY OF PARTIES AND COUNSEL .......................................................... iii

TABLE OF CONTENTS ......................................................................................... iii

INDEX OF AUTHORITIES......................................................................................v

TEXAS RULES OF EVIDENCE………………………………..………………..vii

STATEMENT OF THE CASE ..................................................................................1

ISSUES PRESENTED...............................................................................................4

STATEMENT OF FACTS ........................................................................................5

SUMMARY OF THE ARGUMENT ........................................................................7

ARGUMENT .............................................................................................................9

Standard of Review ................................................................................................... 9

Issue No. 1:               Did the trial court err and abuse its discretion by excluding
                           relevant evidence of pre-existing injury to JORDAN?.............11

Sub-issue No. 1:           Was the evidence that the Trial Court excluded relevant?........11

Sub-issue No. 2:           Did the trial court err and abuse its discretion by in excluding the
                           deposition testimony of Dr. Ritesh Prasad and Dr. Charles
                           Gordon?....................................................................................11




                                                          iii
Issue No. 2:                Did JORDAN Open the Door related to Pre-existing Injuries
                            during                 his                        Direct
                            Testimony…………………………………………………….21


CONCLUSSION………………………………………………………………….24

PRAYER ..................................................................................................................25

CERTIFICATE OF SERVICE ................................................................................26

CERTIFICATE OF COMPLIANCE .......................................................................27




                                                            iv
                                       INDEX OF AUTHORITIES

                                                                                                                       PAGE

Cases

Williams Distrib. Co., v. Franklin, 898 S.W.2d 816, 817 (Tex.1995)………………7

McGraw v. Maris, 8282 S.W.2d 756, 757 (Tex.1992)……………………………..7

Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex.2007).9, 22

Certain Underwriters at Lloyd's, London v. Chicago Bridge & Iron Co., 406 S.W.3d

  326, 338 (Tex.App.–Beaumont 2013, pet. denied) ................................................9

Caffe Ribs, Inc. v. State, 328 S.W.3d 919, 927 (Tex.App.–Houston [14th Dist.] 2010,

  no pet.) (citing Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002))9, 10

Hooper v. Chittaluru, 222 S.W.3d 103, 107 (Tex.App.–Houston [14th Dist.] 2006,

  pet. denied) (op. on reh'g) .......................................................................................9

Strauss v. Continental Airlines, Inc., 67 S.W.3d 428, 449 (Tex.App.–Houston [14th

  Dist.] 2002, no pet.) ....................................................................................... 10, 21

City of San Antonio v. Pollock, 284 S.W.3d 809, 816–17 (Tex.2009) ...................10

Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex.2001) .............10

Blackburn v. State, 820 s.W.2d 824, 826 (Tex.App.—Fort Worth, 1991, pet. ref’d)

  ..............................................................................................................................11

Perez v. State, 830 S.W.22d, 684, 687-88 (Tex.App.—Corpus Christi, 1992, no pet)

  ..............................................................................................................................11

                                                               v
Johnson v. State, 698 S.W.2d 154, 160 (Tex.Crim.App. 1985)……………..……..12

Castro v. Sebesta, 808 S.W.2d 189, 191 (Tex.App.—Houston [1st Dist.] 1991, no

writ)………………………………………………………………..……………...12

Henderson v. State, 906 S.W.2d 589, 597 (Tex.App.—El Paso, 1995, pet. ref’d)...12

Montgomery v. State, 810 S.W.2d 372, 376 (Tex.Crim.App., 1990)…………12, 14

Layton v. State, 280 S.W.3d 235, 240 (Tex.Crim.App., 2009)…………………….13

Stewart v. State, 129 S.W.3d 93, 96 (Tex.Crim.App., 2004)………………………14

Menchaca v. State, 901 S.W.2d 640, 648 (Tex.App.—El Paso, 1995, pet. ref’d)…14

Russell Stover Candies, Inc. v. Elmore, 58 S.W.3d 154, 158 (Tex.App.–Amarillo

2001, pet. denied)…………………………………………………………….……14

Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 218 (Tex.2010)……………14

Baker v. Dalkon Shield Claimants Trust, 156 F.3d 248, 252 (1st Cir.1998)……….15

Brownsville Pediatric Ass'n v. Reyes, 68 S.W.3d 184, 195 (Tex.App.–Corpus

Christi 2002, no pet.)……………............................................................................15

Cruz ex rel. Cruz v. Paso Del Norte Health Found., 44 S.W.3d 622, 632–33

(Tex.App.–El Paso 2001, pet. denied)……………………………………………..15

Harris v. Belue, 974 S.W.2d 386, 393–94 (Tex.App.–Tyler 1998, pet. denied).….15

Moore v. Bank Midwest, N.A., 39 S.W.3d 395, 402 (Tex.App.—Houston [1st Dist.]

2001, pet. denied)……………………………………………………….………....22

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex.2000)………..22


                                                   vi
             TEXAS RULES OF EVIDENCE

Texas Rules of Evidence § 401………………………………….…11, 12, 13

Texas Rules of Evidence § 402………………………….………………….10

Texas Rules of Evidence § 403………………………………….…10, 15, 21




                        vii
                                 STATEMENT OF THE CASE1

        This is an appeal of a Final Judgment following a Jury Trial in an automobile

accident case. Appellee James Jordan, (“JORDAN”) filed suit against Appellants

Debra Dent Leal a/k/a Debbie D. Leal, and Tango Transport, Inc., and Tango

Transport, LLC., (“LEAL” and/or “TANGO”) CR, P. 7-69. Factually, JORDAN

and LEAL were involved in an automotive collision on October 1, 2010, involving

two (2) tractor trailer rigs. CR, P. 7-69.

        JORDAN asserted negligence against LEAL while acting within the course

and scope of her employment for TANGO. CR, P. 7-69. Additionally, JORDAN

asserts that LEAL operated her vehicle in a negligent manner by failing to keep a

proper lookout, failing to maintain control of her vehicle, failing to control her speed,

failing to keep an assured clear distance in violation of Sections 545.062(a) of the

Texas Transportation Code, failing to comply with the Federal Motor Carrier Safety

Regulations, and in committing other acts of negligence, all of which were a

proximate cause of the occurrence in question. CR, P. 7-69.

        Furthermore JORDAN alleged Respondeat Superior complaining of TANGO

as LEAL was acting within the course and scope of her employment with TANGO.




1
 “CR” refers to the volume and page of the Clerk’s Record. “RR” refers to the volume and page of the transcribed
hearing in the Reporter’s Record. “SR” refers to the volume and page of the transcribed hearing in the Reporter’s
Record entitled Hearing on Defendant’s Objections, which was supplemented during this appeal.
                                                       1
Therefore TANGO is liable for such acts, omissions and conduct under the doctrine

of Respondeat Superior. CR, P. 7-69.

      On August 27, 2014, the Trial Court granted JORDAN’S Motion in Limine,

Number 15, related to the 2002 accident. See Plaintiff’s Motion in Limine, CR, P.

295; see also Order on Plaintiff’s Motion in Limine, CR., P. 306.

      On November 6, 2014, JORDAN filed the Notice of Deposition Excerpts and

Objections Regarding Depositions of Dr. Charles Gordon, M.D., and Dr. Ritesh

Prasad. CR., P. 741.

      On November, 10, 2015, the Trial Court convened Vior Dire in the 115 th

Judicial District Court for Upshur County under Cause Number 588-12. Before Jury

Selection, the Court heard contested issues that were before the Court including the

issue of JORDAN’s pre-existing conditions, and sought a ruling on the objections to

the proposed deposition excerpts proffered by LEAL and TANGO. See CR. P. 741.

JORDAN’s counsel objected to the admission of the expert’s testimony regarding

JORDAN’s pre-existing injuries. The Court overruled his objection, allowing

testimony to be included at the time of Trial.

      On the date of Trial, November 16, 2015, Counsel for JORDAN requested to

re-open the issue of allowing JORDAN’s pre-existing conditions coming in at Trial.

The Judge allowed his argument and then ruled in his favor, overturning her own

ruling from six (6) days prior. RR Volume 3, P. 11, LL. 17-24.

                                          2
      During testimony, JORDAN opened the door to the evidence related to his

pre-existing injuries, and LEAL and TANGO requested that the Trial Court allow

such evidence. This request was denied.

      Following a conclusion of this trial, the Jury rendered its verdict, wherein

certain damages were awarded to JORDAN, including $75,000.00 for past pain and

suffering, and $35,000.00 for future pain and suffering. CR., P. 746.

      On January 29, 2014, the Court signed the Final Judgment. CR., P. 763.

      On February 25, 2015, LEAL and TANGO filed their Motion for New Trial,

which the Trial Court never ruled upon, allowing such motion to be denied by

operation of law. CR., P. 765.

      On May 7, 2015, TANGO filed its Notice of Appeal. CR., P. 773.

      TANGO asserts that had the Trial Court allowed introduction of the pre-

existing injury, which would have been relevant to the damages and the proximate

cause portions of this case, the Jury verdict would have been lower.




                                          3
                            ISSUES PRESENTED

ISSUE No. 1:      Did the trial court err and abuse its discretion by excluding
                  relevant evidence of pre-existing injury to JORDAN?

Sub-issue No. 1: Was the evidence that the Trial Court excluded relevant?

Sub-issue No. 2: Did the trial court err and abuse its discretion by in excluding
                 the deposition testimony of Dr. Ritesh Prasad and Dr.
                 Charles Gordon?

ISSUE No. 2:      Did JORDAN Open the Door related to Pre-existing Injuries
                  during his Direct Testimony.




                                       4
                           STATEMENT OF FACTS

      On May 13, 2013, JORDAN was deposed by LEAL and TANGO, at which

time he testified that he had been involved in an automobile accident in 2002,

wherein he sustained injuries to his neck and back. See RR., Volume 8, entitled

“Defendants’ Trial Exhibit D-21”. Such testimony also related to the treatment

provided to these injuries, and the lengthy of time that JORDAN was not able to

work while he healed from said injuries.


      On March 17, 2014, JORDAN’S treating physician Dr. Charles Gordon was

deposed by LEAL and TANGO, during which time the impact, if any, of the 2002

accident and injuries to JORDAN’S neck and back would be relevant to his opinions.

Such testimony was later submitted as LEAL and TANGO’S deposition excerpts for

the trial. JORDAN objected to such testimony as being irrelevant.


      On August 14, 2014, JORDAN’S treating physician Dr. Ritesh Prasad was

deposed by LEAL and TANGO, during which time similar questions related to the

impact, if any, of the 2002 accident and injuries would be relevant to his opinions.

Again, this testimony was submitted as LEAL and TANGO’S deposition excerpts

for the trial, to which JORDAN objected as being irrelevant.


      As outlined in detail in the following paragraphs, the Trial initially allowed

such evidence to be admitted, but later excluded any evidence or testimony related

                                           5
to the 2002 accident, the injuries sustained, and any testimony from the treating

physician related to the impact on their opinions.




                                          6
                      SUMMARY OF THE ARGUMENT

   The court abused its discretion in excluding evidence of JORDAN’S previous

accident and injury history, which was offered to show pre-existing injuries, because

the evidence was admissible, was controlling on a material issue, and was not

cumulative of other evidence. See Williams Distrib. Co. v. Franklin, 898 S.W.2d

816, 817 (Tex. 1995); McGraw v. Maris, 828 S.W.2d 756, 757 (Tex. 1992).

Specifically, during a pre-trial discussion regarding the expert testimony of Dr.

Prasad and Dr. Gordon, the Court ordered that their testimony as to JORDAN’S

previous back and neck injuries and potential alteration of their opinions was

admitted.


   At the commencement of the trial, the Court changed its ruling on this very issue,

and excluded any testimony from all witnesses. This despite the fact that the

Plaintiff, had testified, without objection, during depositions to such previous

injuries. Furthermore, Dr. Prasad, a treating physician, testified that had he known

of the previous injury, his opinions might have been different.


   The exclusion of this evidence caused the rendition of an improper judgment.

Tex. R. App. P. 44.1(a)(1). Simply put, the evidence before the Jury was that

JORDAN had no previous injury history, which is counter to his sworn testimony.



                                         7
   This was also the issue during trial, wherein LEAL and TANGO sought to have

the Court rule that the door had been opened when JORDAN testified that related to

his work and injury history. The Trial Court denied such request that the door had

been opened.




                                        8
                                   ARGUMENT


I.    Standard of Review

      The decision to admit or exclude evidence lies within the sound discretion of

the trial court. Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234

(Tex.2007); Certain Underwriters at Lloyd's, London v. Chicago Bridge & Iron Co.,

406 S.W.3d 326, 338 (Tex.App.–Beaumont 2013, pet. denied).

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

manner or without reference to guiding rules or principles. Caffe Ribs, Inc. v. State,

328 S.W.3d 919, 927 (Tex.App.–Houston [14th Dist.] 2010, no pet.) (citing Bowie

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

      When reviewing matters committed to the trial court's discretion, a reviewing

court may not substitute its own judgment for the trial court's judgment. Id. Thus,

the question is not whether this Court would have admitted the evidence. Rather, an

appellate court will uphold the trial court's evidentiary ruling if there is any

legitimate basis for the ruling, even if that ground was not raised in the trial court.

Hooper v. Chittaluru, 222 S.W.3d 103, 107 (Tex.App.–Houston [14th Dist.] 2006,

pet. denied) (op. on reh'g)

      Therefore, this Court is to examine all bases for upholding the trial court's

decision that are suggested by the record or urged by the parties. Id.


                                          9
      Relevant evidence is generally admissible. Tex. R. Evid. 402. A trial court

may exclude relevant evidence, however, “if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, or needless presentation of cumulative

evidence.” Tex. R. Evid. 403; see Strauss v. Continental Airlines, Inc., 67 S.W.3d

428, 449 (Tex.App.–Houston [14th Dist.] 2002, no pet.).

      In addition, a court may exclude an expert opinion when it is conclusory or

the basis offered for it is unreliable. Tex. R. Evid. 702; City of San Antonio v.

Pollock, 284 S.W.3d 809, 816–17 (Tex.2009).

      To obtain reversal of a judgment based on a claimed error in excluding

evidence, a party must show that the trial court did in fact err and that the error

probably resulted in rendition of an improper judgment. Hooper, 222 S.W.3d at 107.

To determine whether excluded evidence probably resulted in the rendition of an

improper judgment, an appellate court reviews the entire record. Caffe Ribs, Inc.,

328 S.W.3d at 927 (citing Interstate Northborough P'ship v. State, 66 S.W.3d 213,

220 (Tex.2001)). To challenge a trial court's evidentiary ruling successfully, the

complaining party must demonstrate that the judgment turns on the particular

evidence that was excluded or admitted. Hooper, 222 S.W.3d at 107 (citing Inter

state Northborough P'Ship, 66 S.W.3d at 220). A reviewing court ordinarily will not

reverse a judgment because a trial court erroneously excluded evidence when the

                                         10
excluded evidence is cumulative or not controlling on a material issue dispositive to

the case. Id.

ISSUE No. 1:        Did the trial court err and abuse its discretion by excluding
                    relevant evidence of pre-existing injury to JORDAN?

Sub-issue No. 1: Was the evidence that the Trial Court excluded relevant?

Sub-issue No. 2: Did the trial court err and abuse its discretion by in excluding
                 the deposition testimony of Dr. Ritesh Prasad and Dr.
                 Charles Gordon?


      Texas Rule of Evidence 401 defines “Relevant evidence” as evidence having

any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without

the evidence.”

      In order for evidence to be relevant, it must meet a two-prong test under Rule

401. First, the proposition to be proved must be material, meaning it must support a

proposition that is a matter in issue or is probative of a matter in the case. Blackburn

v. State, 820 s.W.2d 824, 826 (Tex.App.—Fort Worth, 1991, pet. ref’d). The second

prong of the test is that the offered evidence must be relevant, meaning it evidence

must make the existence of the material fact “more probable or less probable than it

would be without the evidence”.         Perez v. State, 830 S.W.22d, 684, 687-88

(Tex.App.—Corpus Christi, 1992, no pet).



                                          11
      Furthermore, Texas Rule of Evidence 401 does not require that the fact to be

proved be in dispute, Johnson v. State, 698 S.W.2d 154, 160 (Tex.Crim.App. 1985).

While a court might reject evidence on a particular fact already resolved for the

purposes of the lawsuit by judicial notice, stipulation or failure of the opponent to

deny the fact by sworn pleading, the Court should more properly reject such

evidence as “unfairly prejudicial” or a “waste of time” under Rule 403, rather than

rejecting it as immaterial under Rule 401. Castro v. Sebesta, 808 S.W.2d 189, 191

(Tex.App.—Houston [1st Dist.] 1991, no writ).

      Rule 401 maintains that the theories of the parties in either prosecution or

defending the claim determine the material issues in each individual case.

Henderson v. State, 906 S.W.2d 589, 597 (Tex.App.—El Paso, 1995, pet. ref’d). In

this case, JORDAN sought recovery for physical injuries that he sustained in the

accident in question, which included a L5-S1 fusion with an anterior lumbar

interbody fusion of L5-L1. In response, TANGO and LEAL argued that a prior

accident caused identical injuries to JORDAN.

      The second prong of Rule 401 relates to the relevance of the evidence being

offered in trial. As stated by the Texas Court of Criminal Appeals, the “appropriate

test for relevancy is whether ‘a reasonable person, with some experience in the

everyday work,’ would believe that a particular piece of evidence might be helpful

in determining the truth or falsity of any material fact.” Montgomery v. State, 810

                                         12
S.W.2d 372, 376 (Tex.Crim.App., 1990). Thus, the Court is to look to the purpose

for offering the evidence, the material fact to be proved, and whether there is a direct

or logical connection between the offered evidence and the proposition to be proved.

Layton v. State, 280 S.W.3d 235, 240 (Tex.Crim.App., 2009).

      In the instant matter, LEAL and TANGO sought in include sworn testimony

from the Plaintiff, JORDAN, related to previous physical injuries that were from the

(1) same form of employment, (2) similar physical injuries including the same

location on the body, and (3) the course of treatment and recovery. As an affirmative

defense, LEAL and TANGO argued a pre-existing condition related to the damages

in this matter, thus any evidence of a prior accident with the same physical injury

would be a direct logical connection to such proposition. See TANGO’S First

Amended Answer, CR., P. 79.

      Furthermore, a reasonable person would be able to believe that sworn

testimony from JORDAN related to his previous back injuries might be helpful in

determining if the extreme course of medical treatment in the instant case were all

related to the accident in question, or an exasperation of a pre-existing Defendants’

Trial Exhibit “D-21”, RR., Volume 8, D-21. Thus, under the prong test for Rule 401

of the Texas Rules of Evidence, JORDAN’S testimony related to pre-existing

injuries was relevant as a matter of law, and the Court erred in ruling that such

evidence would be not admissible at trial.

                                          13
      It should be noted that relevancy is not a sliding scale, but is a “yes” or “no”

proposition, as evidence must provide only a “small nudge toward proving or

disproving some fact of consequence.           Stewart v. State, 129 s.W.3d 93, 96

(Tex.Crim.App.,    2004);    Montgomery        v.   State,   810   S.W.2d   372,   376

(Tex.Crim.App.1990). In fact, the proposition at issue does not event need to be the

most likely inference from the evidence. Menchaca v. State, 901 S.W.2d 640, 648

(Tex.App.—El Paso, 1995, pet. ref’d).

      With regard to evidence of pre-existing injury, there is a general principle that

a defendant may cross-examine a plaintiff regarding previous injuries, claims, and

actions when they are relevant to show that the plaintiff's present physical condition

is not the result of the injury presently sued for, but was caused in whole or in part

by an earlier or subsequent injury or a pre-existing condition. Russell Stover

Candies, Inc. v. Elmore, 58 S.W.3d 154, 158 (Tex.App.–Amarillo 2001, pet.

denied).

      In addition, a defendant may introduce evidence—typically an expert

opinion—regarding another “plausible cause” of the plaintiff's injury, and the

plaintiff must then exclude that cause with reasonable certainty. Transcontinental

Ins. Co. v. Crump, 330 S.W.3d 211, 218 (Tex.2010).

      The be fair, the general principles “of alternative causation [are] not a free

ticket to admission of evidence,” which must still meet admissibility requirements

                                          14
including relevance, reliability of expert testimony under Rule 702, and the Rule 403

balancing test. Baker v. Dalkon Shield Claimants Trust, 156 F.3d 248, 252 (1st

Cir.1998).

       Under these requirements, a defendant must provide a competent factual basis

showing that an alternative cause is a plausible one before evidence of that cause

will be presented to the jury. See Brownsville Pediatric Ass'n v. Reyes, 68 S.W.3d

184, 195 (Tex.App.–Corpus Christi 2002, no pet.) (holding reliability requirement

applies equally to defense expert witness testifying about alternative causes of

plaintiff's injury); Cruz ex rel. Cruz v. Paso Del Norte Health Found., 44 S.W.3d

622, 632–33 (Tex.App.–El Paso 2001, pet. denied) (concluding that although

defensive theories regarding alternative causes need not be established “within

reasonable medical probability,” there must be “factual support in the record

justifying [their] application”); Harris v. Belue, 974 S.W.2d 386, 393–94

(Tex.App.–Tyler 1998, pet. denied) (“Without factual support in the record

justifying the application of these [alternate] theories [of causation], they rise to little

more than conjecture....).

       In this case, the trial court initially granted LEAL and TANGO the ability to

cross examine JORDAN related to the pre-existing injury that he sustained in 2002.

However, a week later when opening statements were commenced, JORDAN re-

urged its relevance argument as to any evidence of a pre-existing injury, including

                                            15
testimony from JORDAN’S expert witnesses, Dr. Prasad and Dr. Gordon, related to

a lack of knowledge of such pre-existing injury and the impact on their medical

expert opinion as to causation.

      On November 10, 2014, the Court heard oral argument as to the deposition

excerpts of Dr. Prasad and Dr. Gordon. During that hearing, JORDAN’ argued that

any testimony related to the 2002 accident of JORDAN was not relevant, including

the deposition excerpts offered by TANGO related to Dr. Gordon. SR, P. 5, L. 6-

22.

      After a brief argument, the Trial Court inquired as to whether JORDAN had

testified that “he was in an accident and had neck and shoulder problems or whatever

you said?” to which all parties answered in the affirmative. SR, P. 7, L. 15-20. The

Trial Court then ruled that “For clarity I’m overruling Plaintiff’s objection.

Defendant can offer that.” SR., P. 8, L. 12-13

      As to the deposition excerpts of Dr. Prasad related to any pre-existing injury

or impact on Dr. Prasad’s testimony, the Court indicated it had already heard the

same relevancy objection from JORDAN. SR, P. 11, L. 5-24. In response thereto,

the Court “That I overruled your objection to.” SR, P. 11-12, L. 25-1.

      As such, the Court ruled that LEAL and TANGO were allowed to introduce

deposition testimony of Dr. Prasad and Dr. Gordon related to the impact, if any, of

a pre-existing injury to JORDAN, but as to the chronic nature of such injury or

                                        16
anything related to comparative negligence, the Court sustained the relevance

objection.

      On November 19, 2014, immediately prior to the start of opening statements,

the Trial Court heard arguments related to the depositions excerpts that she had

previously allowed into evidence. While the entire discussion on these issues are

not in the reporter’s record, the ruling was recorded. The Trial Court ruled that “Just

for the record I had clarified some things on the limine issues and the plaintiff will

be allowed to bring in evidence if there is evidence of lost wages and the prior

accident is not coming in or any reference to any possible – well, the references to

the chronic and other, I don’t know how to phrase it, the other—well, the condition

that there’s no evidence of I’ll put it that way so, okay.” CR. Volume 3, P. 11, LL.

17-24. Such ruling effectively excluded all testimony or evidence of the pre-existing

injury to JORDAN, or at least the previous similar injury from 2002.

      The record is clear that JORDAN provided sworn testimony that in 2002 he

had been involved in a accident which resulted in physical injuries to the same

physical portions made the basis of the current case against TANGO. Such sworn

testimony from JORDAN meets the first prong of the factual basis showing that an

alternative cause is a plausible theory for the severity of the injuries in this matter,

especially since there was a time in which he did not work, and the injuries were to

the same location as those made the basis of the trial in question.

                                          17
      LEAL and TANGO further sought in to include sworn deposition testimony

from JORDAN’S medical experts related to the impact of the pre-existing injury

from 2002 would have on their opinions related to proximate causation. However,

the sweeping ruling of the Trial Court rendered such deposition excerpts excluded

on the basis of relevance.

      As to Dr. Prasad’s excluded testimony, he testified that had he known of

JORDAN’S pre-existing injury, this could have altered his opinion as to causation.

      11.       Q. Okay. So Mr. Jordan comes in in October of
      12.    2010 and he tells you that you've had a -- that he --
      13.    that he's been involved in a wreck, correct?
      14.       A. Correct.
      15.       Q. At that time -- you referred to that as his
      16.    history?
      17.      A. That's correct.
      18.       Q. Did Mr. Jordan ever refer to a previous
      19.    accident he had been in?
      20.       A. No, he didn't.
      21.       Q. Okay. Did -- are you aware that he was in
      22.    an accident in 2002?
      23.       A. No, I wasn't.
      24.       Q. Are you aware of any injuries that resulted
      25.    from that accident?
      1.      A. None that he described to me.
      2.      Q. Okay. So those -- that MRI that was taken

                                          18
        3.    in 2010, that's really the first photo evidence we
        4.    have of what Mr. Jordan's condition is?
        5.       A. That's correct. When I saw him, I -- he --
        6.    specifically I wrote down that he denies any neck
        7.    pain or back pain prior to the motor vehicle
        8.    accident. That would mean in the last couple of
        9.    years prior to the motor vehicle accident and that's
        10.     what the patient says and that's all I can go by, is
        11.     their history, right.
        12.        Q. And when -- you said earlier that you can --
        13.     can only go by what a patient says. So if the
        14.     patient doesn't tell you everything --
        15.         A. Sure.
        16.         Q. -- you don't know everything?
        17.         A. Absolutely.
        18.         Q. Would that affect your opinion?
        19.         A. Sure.
        CR, P. 741.2
        With regards to Dr. Gordon, the deposition testimony that was originally

allowed to be offered was the following:

        24.      Q. Would it be, then, fair to assume that on your
        25. first visit with Mr. Jordan, you were unaware that he'd
        1. been in an accident in 2002?



2
 The deposition excerpts identified by TANGO and LEAL being from the Deposition Transcript of Dr. Prasad, P.
76-77,ll. 11-19
                                                    19
        2.      A. The accident that I was aware of was the one
        3. we've been discussing from 2010.
        4.      Q. Right. But you weren't aware that he'd been
        5. in a vehicle -- a motor vehicle accident in 2002?
        6.      A. That's correct.
        7.      Q. So you would have no idea whether or not he
        8. had any reoccurring back pain or leg pain from that
        9. accident?
        10.       A. That's correct.
        CR, P. 741.3
        Had the Court not changed its ruling on the date of trial, LEAL and TANGO

would have been more than able to argue that this accident was not the sole

proximate cause of the injuries, which was specifically included in its pleadings.

        Simply put, the evidence sought to be offered by LEAL and TANGO was

relevant, and would have been a sufficient factual basis showing that an alternative

cause is a plausible one before evidence of that cause will be presented to the jury.

        By denying LEAL and TANGO the ability to offer such evidence, the Trial

Court abused its discretion because the probative value was not substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, or needless presentation of cumulative




3
 The deposition excerpts identified by TANGO and LEAL being from the Deposition Transcript of Dr. Gordon, P.
50-51,ll. 24-10.
                                                    20
evidence.” Tex. R. Evid. 403; see Strauss v. Continental Airlines, Inc., 67 S.W.3d

428, 449 (Tex.App.–Houston [14th Dist.] 2002, no pet.).

II. ISSUE NO. 2 Did JORDAN Open the Door related to Pre-existing Injuries
                during his Direct Testimony.


      As stated in the foregoing, the Trial Court’s had rendered a ruling sustaining

JORDAN’S objection related to relevant of the evidence, thus preventing any

testimony before the jury. It is LEAL and TANGO’S position that failure to allow

relevant evidence as to the medical condition resulted in the rendition of an improper

verdict. During JORDAN’S direct testimony portion of the trial, he was asked the

following question;

      Question:     Okay. Now up until October the 1st during this time that you last
                    worked for New Waverly up until October the 1st when this
                    wreck happened did you have any problem with your back?.
      Answer:       No, sir.
      Question:     From 2006 when you began working with New Waverly again
                    up until the time this wreck happened did you have any physical
                    problem that prohibited you from working?
      Answer:       No, sir.
      Question:     Do you ever remember even missing any time from work?
      Answer:       No, Sir.

      RR, Volume 4, P. 25-26, ll. 13-2

      Later in the direct testimony, JORDAN was asked another series of questions

related to his ability to provide for his family. To be clear, the question from Counsel

related to the time period of the case, being the 2010-2012 time frame. However, as


                                          21
shown below, the response from JORDAN incorporated his entire working history,

including the 2002 time period related to the pre-exsting injury barred by the Court.

      Question:     Up until this point how was it not being able to work?

      Answer:       Not—not being able to work after so many years it was to the

                    point where I’ve always provided for my family and I could not

                    provide for them.      It was, wow, I don’t know the right

                    termination to use for it, but just uncertain if I was going to be

                    able to go back and work and I….

      RR, Volume 4, P. 41-42, LL. 22-4.

      A party opens the door to the admission of otherwise objectionable evidence

offered by the other side when it “introduces the same evidence or evidence of a

similar character. Moore v. Bank Midwest, N.A., 39 S.W.3d 395, 402 (Tex.App.—

Houston [1st Dist.] 2001, pet. denied). Furthermore, when a party opens the door

when the testimony conveys a false impression. Horizon/CMS Healthcare Corp. v.

Auld, 34 S.W.3d 887, 906 (Tex.2000). Finally, the “door is opened” to admission

of evidence of collateral matters when it injects those collateral issues into lawsuit.

Bay Area Healthcare Grp., Ltd. V. McShane, 239 S.W.3d 231, 234 (Tex.2007).

      In this matter, the evidence sought to be included by TANGO was related to

the preexisting injuries from 2002, and the treatment of such injuries. JORDAN



                                          22
made four statements that created a false impression to the jury, those being when

he stated the following:

        1.       That there had never been a time period in which JORDAN was unable
                 to work, and
        2.       That he did not remember even missing any time from work.4

        When these statements are considered to be the whole testimony of the

JORDAN, it is clear that the impression the Jury would have been provided is that

JORDAN had never been without the ability to work and provide for his family.

Such impression would have been clarified and/or avoided had the Trial Court

allowed testimony of the 2002 accident, sustained injuries, and lost work time for

a period of several months.

        Following the conclusion of JORDAN’S direct testimony, LEAL and

TANGO requested the Court to re-address the exclusion of the evidence related to

JORDAN’S pre-existing injury. RR, Volume 4, P. 87-89.                                     During the oral

discussion, the Trial Court stated that she would have the Court Reporter look into

the questionable testimony, which “is going to take forever.”

        After a lengthy amount of time, the Trial Court informed the parties that from

her review of the testimony complained of in this brief, the door had not been opened




4
  Again, the series of questions included different time frames, being during his time off from New Waverly, then
from 2006 to the date of the accident. The question related to missing work did not have any time period.
                                                       23
to the inclusions of the evidence related to the 2002 accident. RR, Volume 4, P. 90-

91. At this point, LEAL and TANGO requested the opportunity to read into the

record the deposition testimony of JORDAN that would have been offered as

impeachment evidence. The Trial Court refused to allow the testimony to be read

into the record, requesting instead that LEAL and TANGO include the proposed

language in what later became Defendants’ Trial Exhibit “21”. RR, Volume 4, P.

91; see also Defendants’ Trial Exhibit “D-21”, RR, Volume 8, D-21.

      LEAL and TANGO asserts that the door was opened by the false impression

of JORDAN’S testimony, and continuously excluding such evidence resulted in an

improper judgment by the Jury related to the damages in this case.

                                 CONCLUSION

      The Trial Court admitted found the evidence in question relevant on

November 10, 2014, and later rendered a ruling that such evidence was not relevant

on November 19, 2014. By refusing to allow the evidence, and subsequently ruling

that JORDAN had not opened the door on this issue, a false impression was made to

the jury resulting in damages that would have been different had evidence been

offered for the jury’s deliberations. In these events, the Trial Court abused its

discretion by excluding relevant evidence.




                                        24
                                     PRAYER

      For these reasons, Appellants, DEBRA DENT LEAL A/K/A DEBBIE D.

LEAL, AND TANGO TRANSPORT, INC., AND TANGO TRANSPORT, LLC.,

respectfully request that this Court reverse the Trial Court’s excluding relevant

evidence related to the 2002 accident and injuries sustained thereto, and upon such

ruling, return this case to the Trial Court for a new trial. Appellants, DEBRA DENT

LEAL A/K/A DEBBIE D. LEAL, AND TANGO TRANSPORT, INC., AND

TANGO TRANSPORT, LLC., further respectfully request that this Court grant

Appellants any and all other relief to which they may be entitled.

                                              Respectfully submitted,

                                              LADD & THIGPEN, P.C.


                                              /s/ Matthew Thigpen
                                              Matthew Thigpen
                                              Texas State Bar No. 24056425
                                              Norman R. Ladd, III.
                                              Texas State Bar No. 24041285
                                              223 S. Bonner Ave.
                                              Tyler, Texas 75702
                                              (903) 705-7211
                                              (903) 705-7221 (FAX)

                                              ATTORNEYS FOR
                                              APPELLANTS




                                         25
                         CERTIFICATE OF SERVICE

      I hereby certify that on this the 2nd day of December, 2015, a true and correct

copy of the foregoing, Brief of Appellants, was duly served via the following:


 Rusty Phenix                                  Messenger
 Phenix, Phenix and Crump
 118 South Main St.                            Facsimile
 Henderson, Texas 75653
 (903) 657-3595                                Certified Mail – RRR
 (903) 657-3598 (FAX)
                                               First Class Mail
 Counsel for James Jordan
                                               Via Overnight

                                               Via E-Service




                                                    _/s/ Matthew Thigpen
                                                    Matthew L. Thigpen




                                         26
                      CERTIFICATE OF COMPLIANCE

      Appellants, DEBRA DENT LEAL A/K/A DEBBIE D. LEAL, AND TANGO

TRANSPORT, INC., AND TANGO TRANSPORT, LLC., state that there are 5,969

words contained in Appellant’s Brief. In determining the word count, counsel for

Appellants relies on the word count stated on the bottom ruler in his Microsoft Word

document.




                                             Respectfully submitted,

                                             LADD & THIGPEN, P.C.


                                             /S/ Matthew Thigpen
                                             Matthew Thigpen
                                             Texas State Bar No. 24056425
                                             Norman R. Ladd, III.
                                             Texas State Bar No. 24041285
                                             223 S. Bonner Ave.
                                             Tyler, Texas 75702
                                             (903) 705-7211
                                             (903) 705-7221 (FAX)

                                             ATTORNEYS FOR
                                             APPELLANTS




                                        27
