Curtis Adair D/B/A CK Trucking v. Troy Chapla and Kelly Maningas, Individually and as Wrongful Death Beneficiaries, and on Behalf of the Estate of Marley Chapla

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00372-CV
__________________

CURTIS ADAIR D/B/A CK TRUCKING, Appellant

V.

TROY CHAPLA AND KELLY MANINGAS, INDIVIDUALLY AND
AS WRONGFUL DEATH BENEFICIARIES, AND ON BEHALF
OF THE ESTATE OF MARLEY CHAPLA, DECEASED, Appellees
__________________________________________________________________

On Appeal from the 258th District Court
San Jacinto County, Texas
Trial Cause No. CV14,958
__________________________________________________________________

MEMORANDUM OPINION

This appeal arises from the trial of a wrongful-death suit filed

following the collision of a small SUV traveling southbound on U.S.

Highway 59 at over 90 miles per hour whose driver collided with a

flatbed trailer when the trailer, which was being towed by a semi-

tractor driven by Curtis Adair, was crossing the southbound lanes of

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U.S. 59. Marley Chapla, the driver of the SUV and its only occupant,

was traveling in the fast lane of the two southbound lanes on U.S. 59

when she struck the flatbed trailer. Her car hit the trailer in front of the

trailer’s back tires and based on the speed of the impact, the top of

Marley’s car and the area where Marley was sitting wedged beneath the

trailer’s frame. Marley suffered severe head injuries from the collision,

was unconscious when seen inside the car after the collision occurred,

and she died at the scene.

Following the collision, Marley’s mother—Kelly Maningas—and

her father—Troy Chapla—filed wrongful death claims for themselves

together with a survival claim for Marley’s estate against Curtis Adair

d/b/a CK Trucking. 1 In the Plaintiffs’ suit, the Plaintiffs alleged that

Adair was negligent for failing to keep a proper lookout, failing to yield

the right of way, driving while distracted by talking on his cell phone,

blocking both lanes of travel on U.S. 59, turning across U.S. 59 when it

wasn’t safe to do so without stopping to make sure it was safe to

proceed, operating a commercial vehicle without proper training, failing

1Adair operated his truck under an assumed name, CK Trucking.

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to have a policy against talking on a cell phone while operating a

commercial vehicle, failing to maintain proper control of his vehicle, and

failing to familiarize himself with the information and training needed

to safely maintain and operate his 18-wheeler on a Texas highway. The

Plaintiffs also alleged that Adair’s acts or omissions proximately caused

the collision, Marley’s injuries, and Marley’s death.

Fourteen witnesses were called to testify in the trial, six by the

Plaintiffs and eight by the Defendant. In a 10-2 verdict, the jury found

that Adair and Marley were negligent and that the negligence of both

proximately caused Marley’s death. The jury then assigned 75% of the

responsibility for Marley’s death to Adair and assigned the rest, 25%, to

Marley.

Turning to the Plaintiffs’ statutory wrongful death actions, the

jury awarded damages of nine million dollars. 2 On the Estate’s survival

2See Tex. Civ. Prac. & Rem. Code Ann. §§ 71.002, 71.004, 71.010.

The jury awarded $500,000 to each parent for loss of companionship
and society sustained in the past, $1,000,000 to each parent for loss of
companionship and society sustained in the future, $2,000,000 to each
parent for mental anguish sustained in the past, and $1,000,000 to each
parent for mental anguish sustained in the future.

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statute claim, the jury awarded one million dollars for the mental

anguish that Marley suffered before she died. 3

After the trial court reduced the statutory awards to account for

Marley’s comparative fault, the trial court signed a judgment ordering

Adair to pay damages of $6,750,000 on the parents’ wrongful death

claims. As to the Estate’s survival action, the judgment awards Marley’s

Estate damages of $750,000.

After the trial court signed the judgment, Adair timely filed an

appeal. Adair raises six issues in his appellate brief. In his first issue,

Adair contends the trial court erred in excluding the evidence that he

wanted to introduce to show the collision was caused because Marley

was driving while impaired by the alcohol she had consumed before

driving to work. According to Adair, by depriving him of the testimony

he wanted to present from his toxicologist, Dr. Michael Holland, he

wasn’t allowed to explain that the blood-alcohol content in Marley’s

body when the collision occurred was sufficient to impair “her ability to

safely operate her vehicle.” Adair contends that excluding Dr. Holland’s

3See id. § 71.021.

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testimony was harmful because the evidence was crucial to a key

issue—the comparative fault of the parties in causing the collision.

Adair claims that the jury’s assignment of the percentages of fault for

causing the collision would have been different had the trial court

allowed the jury to consider Dr. Holland’s testimony.

In Adair’s last five issues—issues two through six—Adair argues

the trial court erred in 1) excluding the toxicology report and Dr.

Holland’s testimony that Marley’s consumption of marijuana impaired

her driving; 2) limiting the testimony of Kelley Adamson—his expert on

accident reconstruction—to the opinions Adamson disclosed in his

report; 3) allowing the Plaintiffs’ safety/compliance expert (Roger Allen)

to testify that Adair violated various trucking regulations when the

parties and their experts “agreed that the alleged violations did not

cause the accident;” 4) rendering judgment for the Estate on factually

insufficient evidence to support an award of one million dollars in non-

economic damages; and 5) issuing a judgment on Marley’s parents’

wrongful-death claims on “evidence factually insufficient to support the

jury’s award of $9 million in non-economic damages[.]”

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Because we conclude that Adair’s first issue is dispositive and that

addressing his remaining issues would afford Adair no more relief, we

do not reach Adair’s last five issues. 4 We conclude the trial court abused

its discretion in finding that Dr. Holland’s testimony wasn’t relevant

and in finding that Dr. Holland’s testimony was more prejudicial than

probative to the issues in dispute. We also conclude the trial court’s

error in excluding the toxicology report and Dr. Holland’s testimony

about the extent to which Marley’s driving was impaired by her

consumption of alcohol before the wreck occurred was harmful. For

these reasons, we sustain Adair’s first issue, reverse the trial court’s

judgment, and remand the case to the trial court for further proceedings

consistent with the opinion.

Background

Our discussion is limited to the evidence necessary to resolve

Adair’s first issue.

The wreck that resulted in the filing of the suit occurred on April

11, 2017, around 8:30 a.m. Adair was driving a semi-tractor and towing

4Tex. R. App. P. 47.1.

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a flatbed-trailer, a rig that was around 67 feet long. Adair was

northbound on U.S. Highway 59 when he used a turning lane on the

northbound side of the highway and entered a median crossover that

separates the northbound and southbound lanes. After he turned into

the median crossover, he continued across the southbound lanes of U.S.

59 and intended to enter State Highway Loop 116, to proceed on his

route to a business that was storing the materials he was planning to

load on the flatbed trailer. As Adair was crossing the southbound lanes

of U.S. 59, Marley’s small SUV struck his flatbed trailer in front of the

trailer’s rear tires. The wreck occurred about seven miles north of

Livingston, Texas.

At trial, Adair testified he saw only one vehicle, a Chevy Blazer,

when he checked the southbound lanes of U.S. 59 before he began to

cross the southbound lanes of U.S. 59. At trial the driver of the Blazer,

Kimberly Schleppi, testified that she was in the right-hand southbound

land of the highway and driving slowly at a speed of less than 15 miles

per hour when she saw a semi-truck “going across U.S. 59.”

At trial, it was undisputed that a Ford Expedition, driven by

Jason Cooley, was also southbound on U.S. 59 and behind Schleppi’s

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Blazer when Adair began to cross the highway. Cooley also testified in

the trial. According to Cooley, he was traveling 75 miles per hour when

he saw Adair’s truck. Cooley testified that when he saw Adair cross the

southbound lanes of U.S. 59, he “let off the gas to - - because I felt like

- - I didn’t think he had enough time.” Cooley explained that after he

slowed down, a car traveling in the inside lane on U.S. 59 passed his

Expedition and hit the flatbed trailer. According to Cooley, when the

SUV went by him, he remembered thinking: “‘Please stop,’ or

something. I don’t know if [the driver in the SUV] didn’t see the – the

truck – or the 18-wheeler or what. And she hit the back wheels of the - -

the trailer part of the 18-wheeler.” That said, Cooley agreed that when

he saw the semi-truck, he slowed down by letting off the gas, didn’t hit

his brakes, pulled onto the shoulder of the highway, and he stopped.

After the SUV crashed into the 18-wheeler, Cooley ran up to the vehicle

that had wrecked. According to Cooley, when he got to the SUV nothing

could be done.

Marley Chapla, the driver of the SUV, didn’t survive the impact

from the wreck. In the wrongful death and survival suit filed by

Marley’s parents, Troy Chapla and Kelly Maningas alleged that Adair’s

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negligence in failing to operate his semi-truck under the applicable

standards of ordinary care proximately caused Marley’s death. Among

other things, the Plaintiffs alleged that Adair failed to keep a proper

lookout and to yield the right-of-way to oncoming traffic when he

crossed U.S. 59, a 75-mile-an-hour highway.

In response to the Plaintiffs’ petition, Adair answered and denied

he was negligent. Adair also alleged that Marley’s failure to exercise

ordinary care caused the collision. When Adair responded to the

Plaintiffs’ requests for disclosure, he claimed that Marley failed to keep

a proper lookout, had been traveling at a speed above the posted speed

limit, failed to timely apply her brakes, had been driving when she was

impaired, did not act in an appropriate manner to avoid the collision,

failed to control her vehicle, and was driving while distracted because

she was on her phone.

In presenting their case, Plaintiffs obtained testimony from Adair

who agreed that before he began crossing U.S. Highway 59, he didn’t

look for southbound traffic that would have been traveling fifteen

seconds from where he was crossing the highway. He also agreed that

he saw only one vehicle before he crossed the highway, the Blazer, and

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that he didn’t see the Ford Expedition or Marley’s SUV. Adair testified

that he was willing to accept his fair share of the responsibility for the

wreck, and Adair agreed he didn’t have a “good excuse” for failing to see

the Ford Expedition or Marley’s SUV.

Plaintiffs also presented testimony from Roger Allen, who testified

as the Plaintiffs’ expert on motor-carrier safety and accident causation.

Allen testified that Adair breached the standard of care that applies to

commercial truck drivers by failing to yield the right-of-way to

oncoming traffic. According to Allen, commercial truck drivers are

governed by federal motor carrier safety standards, and in his opinion,

Adair was operating his truck in violation of those standards when the

collision occurred. Allen also testified that in his opinion, Adair failed to

conduct a proper visual search before deciding to cross the highway,

which required that Adair determine whether a safe gap in the

southbound traffic existed before he began to cross. Allen added that

when Adair began to cross U.S. 59, other drivers in the southbound lane

were required “to take evasive action to stop[,]” which Allen said

included Cooley’s action in letting off the gas.

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In presenting his case-in-chief, Adair presented the accounts of

the eyewitnesses to the wreck (other than his own) through the video

depositions that his attorney obtained from the four witnesses that

Marley passed before the collision occurred, Kimberly Schleppi,

Jennifer Gaddis (the passenger in Schleppi’s Blazer), Jason Cooley, and

Jennifer Cooley (the passenger in Jason’s Expedition). Kimberly

Schleppi, who was driving the Blazer, testified that Marley’s SUV

“came out of nowhere,” “flew by,” and crashed into the tractor-trailer.

Jennifer Gaddis, a passenger in the Blazer, testified that when Marley’s

SUV passed them, she watched the SUV’s driver in the next five

seconds “bend down to change a radio station, pick up her phone[,] or

something. But just from here to there, she – that’s all she needed, just

to look up.” According to Gaddis, when the wreck occurred the driver of

the SUV “was looking down, and that was it. That’s how - - how - - how

she - - she died.”

Jason Cooley, the driver of the Ford Expedition, testified that he

saw Adair’s truck enter the median, hesitate for a second, and then

continue across the median and into the southbound lanes. Jason

testified that he was traveling 75 miles per hour when he saw Adair’s

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truck, which was “right there at the median, going to cross over[.]”

Jason explained that when he saw that Adair would cross the

southbound lanes of the highway, he didn’t believe Adair had sufficient

time for his truck and trailer to clear the southbound lanes. So, Cooley

said that when he saw the truck planned to cross the highway, he “let

off the gas to - - because I felt like - - I didn’t think he had enough time.”

Cooley explained that after letting off the gas, an SUV in the inside lane

passed his Expedition and hit the flatbed trailer. At trial, Jason

testified that when the SUV went by him, he remembered thinking:

‘Please stop,’ or something. I don’t know if [the driver in the
SUV that passed him] didn’t see the – the truck – of the 18-
wheeler or what. And she hit the back wheels of the - - the
trailer part of the 18-wheeler.

That said, Jason agreed that although he slowed down by letting

off the gas, he agreed that he didn’t hit his brakes. Jason also testified

that he saw the wreck, pulled on the shoulder of the highway, and

stopped. Jason testified that he then ran to the vehicle that hit the

trailer, but when he got there, he decided there wasn’t anything he

could do for the driver in the SUV.

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Jennifer Cooley testified that she saw Marley’s SUV pass them

using the left lane on U.S. 59. According to Jennifer, Marley’s SUV was

going “pretty fast” when it passed the Expedition, and she estimated

that the SUV was traveling at a speed higher than the posted limit.

Jennifer also testified that after Marley passed them, she is certain no

brake lights on the SUV came on because “it was like she never even

seen it. You know, maybe she was looking at her phone or - - something

like that. And she just never let off the gas or anything.” Jennifer also

testified that she never saw Marley’s SUV move to the left or the right

before the collision occurred. Unlike Jason, Jennifer testified she

recalled that Jason “was able to get off the gas, you know, tap the

brakes; and I think he slammed on them once.”

Adair also presented the testimony of Corporal Ramey Bass, the

highway patrolman employed by the Texas Department of Public Safety

who oversaw the investigation conducted by the Department of Public

Safety into the wreck. Corporal Bass’s testimony was presented to the

jury through his videotaped deposition. When Corporal Bass testified,

he explained that he and other officers who assisted him gathered and

photographed the physical evidence at the scene the day the collision

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occurred. Based on what Corporal Bass said that he saw on the scene,

he determined “that the SUV was traveling southbound on U.S. 59 and

struck the trailer as it was crossing U.S. 59[,] . . . [r]ight between the

last two [rear] axles.” Corporal Bass also testified “there were no skid

marks prior to impact” made by the SUV from what he saw on the

highway at the scene, except for “drag marks or yaw marks” that

according to Corporal Bass were left on the highway after the SUV

became lodged under the trailer and it was subsequently “dragged off

the highway” after the impact occurred.

Corporal Bass testified that while at the scene, he interviewed

Adair and took statements from two witnesses who saw the collision

when it occurred. He explained that he was also present when the

electronic control module (the ECM or black box) was removed from

Marley’s SUV. According to Corporal Bass, the data from the black box

from Marley’s SUV shows that five seconds before the crash, her car

was traveling at 92.58 miles per hour. Bass testified that in his opinion,

had Marley not been speeding above the posted speed limit of 75 miles

per hour, “she could have avoided the crash.” Bass also testified that in

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his opinion, Adair’s failure to yield the right-of-way to the southbound

traffic on U.S. 59 was a contributing cause to the collision.

Along with Corporal Bass’s testimony about his investigation, the

trial court admitted a redacted copy of the Texas Peace Officer’s Crash

Report, which Corporal Bass prepared after he investigated the

collision. Before admitting the Officer’s Crash Report, the trial court

required Adair’s attorney to redact information in it showing that Bass

determined that Marley had alcohol and marijuana in her system and

that Corporal Bass determined that Marley’s ingestion of these

substances may have contributed to the crash.

Adair also called Kelley Adamson, a licensed professional civil

engineer, to reconstruct the crash and to express opinions about its

cause. Adamson testified that he has worked in the field of accident

reconstruction since 1983 and is certified in the field by the

Accreditation Commission for Traffic Accident Reconstructionist

(ACTAR). Adamson testified that based on his investigation of the

collision, Marley could have avoided the collision had she been driving

at 75 miles per hour. Based on the data from the black box, which

shows the speeds at which Marley’s SUV was traveling at various times

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during the five-second period before she hit the trailer, Adamson

explained that Marley was coasting when she began an “initial phase of

the braking” at 2.1 seconds from impact. Adamson testified the data

from the black box also shows that when Marley was “1.5 seconds” from

the impact, she “go[es] to full brakes.” Relying on the data from the

black box, Adamson explained that in his opinion Marley had a delay in

her perception and reaction to Adair’s truck crossing the southbound

lanes of U.S. 59. Adamson agreed with the statement of Adair’s

attorney that “there are a lot of things that can cause a delay in

perception and reaction[.]” That said, Adair was not allowed to present

Dr. Holland’s testimony explaining that the delays in reaction and

perception were attributable to Marley’s consumption of alcohol.

Adamson also described why delays in perception and reaction

would have affected the outcome of the collision and severity of the

impact. According to Adamson, at a speed of 92.6 miles per hour,

Marley’s stopping distance would have been 397 feet. In contrast, at a

speed of 75 miles per hour, her stopping distance would have been 260

feet. According to Adamson, had Marley been traveling at 75 miles per

hour, she needed “to barely slow down to allow the tractor-trailer to get

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out of the way.” Even then, Adamson explained the higher that Marley’s

speed was on impact, the lower the probability would have been “of

surviving an accident.”

Adamson also explained that a driver needs to have the normal

use of their faculties to have a normal ability to perceive and to react to

the hazards of driving. According to Adamson, fatigue may cause a

person to have a delayed reaction to a hazard.

The jury heard testimony that Marley was headed to work the

morning the collision occurred. The jury also heard testimony that

Marley had attended a birthday party the night before the wreck, but

the jury didn’t hear any testimony that Marely had consumed any

alcoholic beverages that evening because evidence about alcohol was

excluded from the trial. Testimony from Marley’s boyfriend, Nana

Yeboah, established that the morning the wreck occurred, Marley left

her apartment to drive to work, which was approximately a two- and

one-half-hour drive from his apartment. The jury heard conflicting

testimony from Nana and Nana’s friend, Kelechi “K.C.” Joel, about

what time Marley had gone to bed the night before the wreck occurred.

Nana testified that Marley went to bed at 10:00 or 11:00 p.m. the night

17
before the wreck occurred. K.C., however, testified that Marley came to

his and Nana’s apartment around 9:00 or 10:00, and she “[w]ent to bed”

around midnight. Marley’s friend, Chelsie Miller, testified that she was

with Marley, Nana, and KC the night before the wreck celebrating

K.C.’s birthday. Chelsie explained that since they had stayed up late

and Marley had to drive to work the next day, she was concerned about

how much rest Marley had gotten that night before she left Nana’s

apartment to drive to work.

Plaintiffs presented testimony from another witness, Benton

Randle, who investigated the collision after it occurred and testified

that, in his opinion Adair’s failure to wait to cross the highway until he

had sufficient time to cross caused the wreck. 5 Randle explained that

his investigation of the collision included gathering the facts about the

wreck, which included the data downloaded from the black box that was

in Marley’s SUV. Randle testified that based on his investigation and

5In an affidavit that Randle signed in response to a motion seeking

to limit his testimony, Randle states that he has a Bachelor of Science
in Civil Engineering and that he has “been engaged in the practice of
accident reconstruction for the last 10 years.” At trial, Randle testified
that he is not a licensed professional engineer.

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considering “the time she was - - that she had out here, that 4 seconds

to impact . . . there’s just not enough time outside of the 2 and a half

seconds she was braking to be critical of her.” As to Marley’s reaction to

Adair’s truck crossing the highway, Randle stated that Marley’s

reaction was “right in line with where you would expect it to be and it’s

- - it’s a normal reaction time, that 1.5 seconds[.]” Simply put, it was

Randle’s opinion that Marley had four seconds to perceive and react to

Adair’s tractor-trailer crossing the highway before she hit his trailer,

that Marley engaged her brake 2.5 seconds before impact, and that

Marley had a perception-reaction time before she hit her brakes of 1.5

seconds. According to Randle, Marley reacted promptly to the tractor-

trailer’s crossing the highway, and “there’s no way to be critical of

[Marley’s] attention level” in assessing her negligence. Randle testified

“there’s no way to conclude that she wasn’t paying attention because

the download shows she was braking.” But as to Adair, Randle stated

that because Adair impeded the flow of traffic on U.S. 59, “Marley was

killed as a result of that turn.”

We turn next to the evidence that the trial court excluded that is

the subject of Adair’s first issue, specifically the evidence about the

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alcohol in Marley’s system and the testimony about whether it, in the

opinion of Adair’s toxicologist, would have affected Marley’s perception

and reaction to a hazard such as Adair’s truck crossing the highway.

According to Adair, the evidence about whether Marley had the normal

use of her faculties when the collision occurred was relevant to an issue

of material fact, specifically whether Marley perceived and reacted

within a normal period to seeing Adair crossing the highway before the

collision occurred. Adair argues he was harmed by the trial court’s

ruling excluding Dr. Holland’s testimony and the toxicology report,

which shows that a specimen of Marley’s blood, tested the day after the

collision, was positive for the presence of alcohol. According to Dr.

Holland, the blood-alcohol level in the specimen tested was sufficient to

have caused a driver’s normal perception and reaction to a hazard to

have been impaired. The toxicology report shows that Marley’s blood

specimen tested positive for ethanol, and that her blood-alcohol content

based on the testing of the specimen was .055%, or 55mg/dL.

Before Adair rested, the trial court allowed Adair’s attorney to

make an offer of proof relating to the substances found in the toxicology

report that could have impaired Marley’s ability to drive a car. In the

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proffer, Adair’s attorney told the trial court that Adair wanted to

introduce evidence based on the toxicology report showing that Marley

had alcohol in her system when the wreck occurred. Adair’s attorney

explained that he intended to call Dr. Michael Holland, a toxicologist, to

show “there’s a reasonable degree of medical and scientific certainty

that Marley Chapla was impaired at the time of the accident. This is

one possible explanation for her delayed and/or improper reaction to the

hazard.” Adair’s attorney added that he also wanted to call Kelley

Adamson, who testified in the trial as an expert on accident

reconstruction, to testify that in his opinion the alcohol in Marley’s

system would explain Marley’s delayed reaction to the hazard of Adair’s

truck crossing the highway based on the level of impairment testified to

by Dr. Holland and Dr. Holland’s report. The trial court denied Adair’s

request. 6

6Adair’s attorney marked and offered Adamson’s report as an
exhibit to support his bill of proof. Adamson’s report, which was marked
as Exhibit 194, is in the appellate record. It states: “The toxicology
report indicates levels of Ethanol and THC in Ms. Chapla’s system at
the time of the accident. According to Dr. Michael Holland there is a
reasonable degree of medical and scientific certainty that Ms. Chapla
was impaired at the time of the accident. This is one possible

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Besides making an oral proffer, Adair’s attorney presented the

trial court with an affidavit signed by Michael G. Holland supporting

his proffer. Dr. Holland’s report reflects that he is board certified in five

fields, (1) Toxicology, (2) Emergency Medicine, (3) Occupational

Medicine, (4) Undersea and Hyperbaric Medicine, and (5) Addiction

Medicine. He is a faculty member of the Medical Toxicology Fellowship

Training Program, a program in which he teaches medical students,

residents, and pharmacy students subjects in the field of toxicology

covering drug and alcohol intoxication, abuse, overdose, and

impairment. In his report, Dr. Holland explained that based on medical

science, it has been conclusively established that at a blood-alcohol

concentration of .055 mg/dL an “impairment from alcohol begins at

BAC’s lower than Marley Chapla’s.” Dr. Holland’s affidavit shows that

he reviewed Marley’s autopsy report, the toxicology report that was

based on specimens collected during her autopsy, and Kelley Adamson’s

explanation for her delayed and/or improper reaction to the hazard.” At
page nine of Adamson’s report, he states that he considered “Ms.
Chapla’s excessive speed [] the primary contributing factor to the
accident and her delayed heavy braking application [] a contributing
factor.”

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report. His affidavit lists the various effects documented by the Center

for Disease Control for individuals with BAC levels like Marley’s, effects

that include:

• Exaggerated behavior,
• May have loss of small-muscle control (e.g., focusing eyes),
• Impaired judgment,
• Lowered alertness,
• Release of inhibition,
• Reduced coordination,
• Reduced ability to track moving objects,
• Difficulty steering,
• Reduced response to emergency driving situations, and
• Slowing of perception and reaction.

Dr. Holland states in his affidavit that in his opinion, “Marley

Chapla experienced a level of impairment at the time of the accident

from consumption of alcohol.” According to Dr. Holland’s affidavit, the

ethanol concentration in Marley’s vitreous fluid based on her autopsy

allowed him to state with “a high degree of confidence and reasonable

certainty that Marley Chapla’s antemortem blood alcohol concentration

(“BAC”) was 0.055 g% (g/dL) at the time of the accident.” As Dr. Holland

put it, “[Marley] was impaired by the alcohol in her system at the time

of the accident[,]” and she didn’t have “the normal use of her mental

and physical faculties.”

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The appellate record shows that even before the trial, the trial

court was familiar with the evidence tied to the dispute that existed

between the parties over the admissibility of Dr. Holland’s testimony.

In pretrial proceedings on “Plaintiffs’ Motion to Exclude Evidence

Regarding [Marley’s] Post-Accident Drug and Alcohol Tests and Motion

to Exclude Defendant’s Toxicology Expert,” a motion the trial court

granted, Adair argued that Dr. Holland’s testimony and the toxicology

report were relevant to the jury’s determining whether Marley’s

negligence had contributed to the wreck. In Adair’s response to the

Plaintiffs’ motion to exclude Dr. Holland’s testimony, Adair included Dr.

Holland’s affidavit, which has already been discussed, along with Dr.

Holland’s seventeen-page report, which is dated August 22, 2017. In the

report, Dr. Holland provides even more detail about the role that the

alcohol in Marley’s system played in causing her ability to drive

normally to be impaired. For example, Dr. Holland’s report states: “Ms.

Marley Chapla’s postmortem toxicology report indicated the

concomitant presence of ethanol at 0.055 g%, an[] amount known to be

impairing for skills necessary for safe driving.” His report states that in

his opinion, and within “a reasonable degree of medical [and] scientific

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certainty, . . . Marley Chapla was impaired by alcohol and marijuana

when she was speeding at 92 mph, 17 mph over the speed limit, and

crashed her car into the truck without taking any timely evasive action

to avoid the collision[.]”

In its order excluding the evidence, the trial court found: “There is

no suggestion in the record that Ms. Chapla’s reaction time was

negligent, related to causation, or deviated from a relevant standard of

care.” The trial court excluded the evidence under Rule of Evidence 403,

stating that in its view, the evidence had “very little probative value”

when compared to the danger the evidence could “invite emotional

responses by evoking the harm caused by intoxicated drivers—which

Ms. Chapla was not.” 7 In its order, the trial court stated that in the

court’s view, admitting the evidence would “likely confuse the issues

and mislead the jury by suggesting Ms. Chapla’s alleged impairment

could serve as substitute for, or be considered together with,

Defendant’s viable contributory negligence theories.” From the trial

court’s standpoint, the jury could understand how Marley’s decision to

7Emphasis in the trial court’s order.

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speed factored into the collision, but the court ruled that it would be too

confusing, misleading, or prejudicial to allow the jury to consider if

something else—an impairment to Marley’s driving caused by the

alcohol in her system—explained why Marley drove her car in the

manner the witnesses and the data from the black box describe.

The trial court excluded the evidence tied to the toxicology report

and excluded Dr. Holland’s testimony relying on the report, which

would have exposed the jury to Dr. Holland’s opinion that the alcohol

level in Marley’s blood deprived her of the normal use of her mental and

physical faculties. So, the jury was not allowed to consider evidence

directly related to causation and the jury’s apportionment of Marley’s

fault. For instance, during final argument the Plaintiffs’ attorney

acknowledged that Marley’s speeding was a cause of the wreck. Yet, the

Plaintiffs’ attorney was allowed to argue that there was no evidence

proving that Marley had been inattentive in the five seconds before the

wreck occurred. According to the Plaintiffs’ attorney, Adair’s contention

that Marley had been inattentive was “another frivolous defense

because we know from the download that at that point in time[,] Marley

26
is hard on her brakes when she passed and before she passed [Kimberly

Schleppi’s Blazer].”

For his part, Adair’s attorney—limited by the rulings made by the

trial court excluding the evidence from the record—argued to the jury

that Marley’s speed, inattentiveness, and fatigue on her part were what

had caused the collision:

Remember, of course, she’s not paying attention. She’s
potentially fatigued, and it’s compromised her mental or
physical faculties. It could of course be the speed itself; but
the speed is certainly a huge element that causes the
accident. The three things went together: Speed, inattention,
and fatigue.

To support his argument that Marley was inattentive, Adair’s

attorney pointed to Corporal Bass’s testimony that he found Marley’s

cell phone in her lap in the investigation he conducted the day of the

collision. Adair’s attorney also noted that Jennifer Gaddis’s testimony

(the passenger in the Blazer) suggested that when Marley was

approaching Adair’s truck, she might not have seen him because Gaddis

saw Marley bent down, suggesting that Marley perhaps might have

been changing the radio or picking up something she dropped. Still,

Adair’s attorney agreed that Adair was at fault for crossing the

27
southbound lanes of the highway when he didn’t have sufficient time to

go across, and the attorney argued that the jury could assign 25 to 33%

of the fault for the collision to Adair while assigning what was left to

Marley. When the jury returned with a verdict, it found both parties

negligent, assigned 75% of the fault to Adair, and found the fault that

remained, 25%, belonged to Marley.

Following the trial, Adair timely filed a motion for new trial and

an amended motion for new trial. These motions were never ruled on, so

they are deemed to have been overruled by operation of law. 8 In

November 2021, Adair timely filed a notice of appeal.

Standard of Review

We review a trial court’s ruling excluding evidence for abuse of

discretion. 9 “If a trial court abuses its discretion and erroneously

excludes evidence, the question is whether the error ‘probably caused

the rendition of an improper judgment.’” 10 “That standard does not

require the complaining party to prove that but for the exclusion of

8Tex. R. Civ. P. 329(c), (e).
9JBS Carriers, Inc. v. Washington, 564 S.W.3d 830, 836 (Tex.
2018); Caffe Ribs, Inc. v. State, 487 S.W.3d 137, 142 (Tex. 2016).
10JBS Carriers, 564 S.W.3d at 836 (citing Tex. R. App. P. 61.1(a)).

28
evidence, a different judgment would necessarily have resulted.” 11

“Rather, if erroneously excluded evidence was crucial to a key issue,

then the error was likely harmful—that is, it probably caused the

rendition of an improper judgment—unless the evidence was

cumulative or the rest of the evidence was so one-sided that the error

likely made no difference in the judgment.” 12 In an intermediate

appellate court, the appellant must establish that an error by a trial

court in excluding evidence “probably caused the rendition of an

improper judgment” to obtain a reversal of the judgment on appeal. 13

Analysis

In issue one, Adair argues the trial court erred in excluding

evidence that he would have introduced to show that Marley’s fault in

the collision included that she was driving while impaired by the

alcohol she had consumed before the collision occurred. On appeal,

Adair argues the evidence that Marley was driving while impaired by

the alcohol in her system was relevant to key issues that were

11Id. (cleaned up).
12Id. (cleaned up).
13Tex. R. App. P. 44.1(a)(1).

29
disputed—Marley’s negligence and her percentage of the apportioned

fault. Adair also argues the evidence that Marley was impaired by the

alcohol she had in her system was more probative than prejudicial, and

if introduced the evidence would not have been unduly prejudicial,

confusing, misleading, or cumulative since it offered an alternative to

the account the Plaintiffs offered in the trial—that Marley’s speeding

was all that she did wrong—to account for Marley’s fault. Adair further

argues that the trial court’s error in refusing to allow Dr. Holland to

testify merits a ruling by this Court reversing the judgment because the

evidence the trial court excluded was crucial to the key issues in the

case—issues of fact that involved Marley’s negligence, what caused the

collision, what caused Marley’s death, and the jury’s assessment of the

parties’ proportionate fault.

1. Was the evidence relevant?

Relevant evidence is presumed to be admissible at trial. 14 Rule 401

defines relevant evidence as evidence that has any tendency to make

the existence of any consequential fact more or less probable than it

14Tex. R. Evid. 402.

30
would be without the evidence. 15 Still, “[e]vidence that a party to an

accident was intoxicated or impaired is not, in and of itself, evidence

that the party acted negligently in relation to the accident.” 16 But “such

evidence is probative if it is relevant to a party’s actions in conforming

or failing to conform to an appropriate standard of care.” 17

Under Texas law, it is settled “that evidence of a party’s use of

impairing substances is admissible if the evidence raises a question

about why the party acted as he or she did in connection with the

occurrence.” 18 The Texas Supreme Court has explained that when the

evidence raises a question about why the party acted as they did in

connection with a collision and the driver’s control of their vehicle is a

key issue in the case, the evidence tying the driver’s control of their

vehicle to an impairing substance like alcohol is admissible. 19 Even

15Id. 401.
16JBS Carriers, 564 S.W.3d at 836-37 (citations omitted).
17Id. at 837 (citing Nichols v. Howard Trucking Co., Inc., 839
S.W.2d 155, 157-58 (Tex. App.—Beaumont 1992, no writ)) (trial court
did not err by admitting evidence of a drug screen offered on
intoxication issue to explain why the driver of a vehicle crossed the
center line and caused the collision).
18Id.
19Id. at 838.

31
when the evidence doesn’t rise to a level sufficient to show that a driver

was legally intoxicated, evidence that a driver was impaired by a

substance is still admissible if it answers a question about why the

party acted as they did since under Texas law, “a specific showing of

intoxication is not required in order for evidence regarding the use of

substances to be admissible.” 20

Turning to the evidence (which the trial court excluded) of

Marley’s impairment, the Plaintiffs argue that no evidence links the

results of Marley’s alcohol consumption to her actions. According to the

Plaintiffs, Marley’s BAC “was below the legal limit and there was no

evidence that the alcohol consumption [] either a) delayed Marley’s

reaction time; or b) that any delayed reaction time caused or

contributed to the crash.” But the Plaintiffs argument that the

defendant failed to link Marley’s consumption of alcohol to her actions

is premised on the Plaintiffs’ theory that the collision was unavoidable

given Marley’s high rate of speed when Adair’s truck started to cross

U.S. 59. In the alternative, they argue that “even were there some

20Id.

32
evidence to support the delayed-reaction-time theory, Adair’s accident

reconstructionist established that quicker braking would not have saved

Marley’s life.” 21

We disagree. Dr. Holland’s report along with the toxicology report

links Marley’s alcohol consumption to a theory or explanation that the

jury in deciding whether to accept Dr. Holland’s opinions was entitled to

consider if his opinions explained why Marley was driving her car at a

high rate of speed, why she failed to apply her brakes or slow down

sooner than she did, and whether the outcome of the collision would

21Kelley Adamson is the witness who testified as Adair’s expert

witness in reconstructing the collision. We disagree that Adamson
testified or suggested that even at an initial speed of 92.6 miles per
hour, Marley would have been killed if she had seen, perceived, and
reacted within a normal period to the truck’s crossing the southbound
lanes of U.S. 59. Rather, his testimony suggests that had she seen,
perceived, and reacted within a normal time at an initial speed of 92.6
miles per hour, her car would have hit the trailer further toward the
rear of the trailer than it did and at a lower speed. Thus, even though at
an initial speed of 92.6 miles per hour, it was Adamson’s opinion that at
five seconds from the trailer the collision would have occurred if she
was traveling at 92.6 miles per hour when she was five seconds from
the trailer, he never testified that had Marley been traveling at a lower
speed when her car was five seconds from the trailer or if she had
applied her brakes sooner at a speed of 92.6 miles per hour than she
did, which according to Adamson would have resulted in an impact
further back on the trailer, that Marley would have been killed.

33
have been changed had she had the normal use of her faculties the day

the collision occurred. 22

The evidence Adair presented in his proffer shows that the

judgment and ability to drive of individuals with BACs lower than the

level in Marley’s specimen may impair a driver’s ability to perceive,

react, and stay fully alert. Dr. Holland’s report ties the level of alcohol

found in Marley’s specimen to his opinion that Marley was driving

while impaired. His report states, Marley “was impaired by the alcohol

in her system at the time of the accident[,]” and she “did not have [] the

normal use of her mental and physical faculties because of the

introduction of alcohol into her body.” In the affidavit, Dr. Holland

asserted there “is a direct relationship between the impairment at BAC

levels equivalent to Marley Chapla’s value and motor vehicle accidents.”

According to the Plaintiffs, no link exists between the BAC level in

Marley’s specimen and the speed at which Marley was traveling on U.S.

59, 92.6 miles per hour, just five seconds before the wreck. We disagree.

In our opinion, the jury had the right to agree or disagree with Dr.

22Tex. R. Evid. 401.

34
Holland that the BAC level in Marley’s blood specimen explained her

loss of judgment based on his opinion that Marley was an impaired

driver, the information in his affidavit, and his testimony in the pretrial

hearing that drivers who are impaired by alcohol may “drive too fast

and recklessly.”

The order the trial court signed granting the Plaintiffs’ motion to

exclude Adair’s evidence of Marley’s BAC level and its effects reflects

that the trial court found there was “no evidence suggest[ing] that Ms.

Chapla’s reaction time caused the wreck.” But the trial court’s finding

ignores Dr. Holland’s affidavit, his proffered testimony in the pretrial

hearing, and the ruling excluding the evidence about the alcohol

allowed the Plaintiffs to present an incomplete picture to the jury about

the role that Marley’s fault played in contributing to cause the collision

and her death. In deciding whether Adair tied Marley’s consumption of

alcohol to Marley’s actions, the trial court should have considered

whether Marley’s ingestion of alcohol before the wreck helped explain

disputed issues of fact as the effects of the alcohol as described by Dr.

Holland relates to the way Marley was driving her car when the wreck

35
occurred. 23 In this case, Adair’s proffer shows the effects of alcohol at a

level consistent with Marley’s would have helped explain whether

Marley’s judgments to drive her car at a high rate of speed, in timely

perceiving the hazard involving Adair’s truck, and reacting to the

hazard in time to slow her car are all matters affected by the alcohol

Marley had ingested, according to Dr. Holland. In other words, evidence

of Marley’s ingestion of alcohol and BAC, had that evidence been

admitted would have offered the jury an alternative explanation for

Marley’s speeding, an explanation that differed from the explanation

that Marley was rushing to get to work. The evidence about an

impairment from alcohol at a level consistent with Marley’s also fits

Adair’s claim that she was inattentive to the hazards of other traffic on

the highway like his truck, his claim that she should have slowed when

he began crossing the highway sooner than she did, and his claim that

she should have seen, perceived, and reacted to his crossing the

highway by braking more quickly. 24

23See JBS Carriers, 564 S.W.3d at 836.
24Id. at 836-37.

36
Dr. Holland supported his opinion that Marley’s judgment was

affected by the alcohol with a chart from the Center for Disease Control

and Prevention. The CDCP chart shows the impairing effects of alcohol

on a person’s judgment are typical at .02% BAC, a level less than half

that found on the test performed during an autopsy on a specimen of

Marley’s blood obtained postmortem. The chart from the CDCP also

provides support for Dr. Holland’s opinion that the effects of alcohol at

levels lower than the level in Marley’s system align with delays in a

driver’s reaction, perception, and a driver’s inattentiveness.

Accordingly, Dr. Holland’s testimony had it been admitted would have

supported Adair’s defense.

As to relevance, the question is whether the evidence of the effects

of the alcohol would have had any tendency to make a fact of

consequence more or less probable than it would have been without the

evidence. 25 In a collision where the drivers of both vehicles involved

were at fault, the jury must answer an issue that resolves the factual

dispute about the extent to which each party caused or contributed “to

25Tex. R. Evid. 401.

37
cause in any way the harm for which recovery of damages is sought,

whether by negligent act or omission, by any defective or unreasonably

dangerous product, or by other conduct or activity that violates an

applicable legal standard, or by any combination of these[.]” 26

In the charge the trial court submitted, the trial court asked the

jury to decide the percentage of responsibility attributable [f]or each

person you found caused or contributed to cause the death.” 27 Thus,

when the jury apportioned fault between Marley and Adair, the jury

could have considered Dr. Holland’s testimony about the role the alcohol

played in deciding whether its effects contributed to the collision or to

Marley’s Death if the jury decided to agree with Dr. Holland that the

alcohol in Marley’s system affected her faculties and her ability to

exercise proper control over the judgments needed to exercise

reasonable control over a car. 28 Even if the jury decided Marley couldn’t

26Tex. Civ. Prac. & Rem. Code Ann. § 33.003.
27Emphasis added.
28See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (we measure

the evidence against the court’s charge, which submitted the
proportionate fault question by asking the jury to determine each
party’s fault by asking the jury to find each person’s percentage of
responsibility for causing or contributing to the death, rather than by

38
have completely avoided the collision, the jury still had a right to

consider Dr. Holland’s testimony when deciding whether, if the jury

agreed with Dr. Holland, Marley was more than 25% at fault for driving

while she was impaired. Stated another way, the jury had a right to

consider Dr. Holland’s testimony in deciding what role the impairing

substance played in causing or contributing to cause both the collision

and Marley’s death. We conclude the trial court abused its discretion by

finding the evidence about Marley’s use of alcohol wasn’t relevant to the

facts of consequence at issue in the trial.

2. Was the evidence more probative than prejudicial?

In a pretrial motion addressing Dr. Holland’s report, the Plaintiffs

argued that evidence that Marley had alcohol in her system and that

she had been drinking the night before the wreck would be prejudicial

because allowing the jury to consider the evidence would “conjure up

prejudice about . . . alcohol, along with unsupported insinuations about

asking the jury to determine each person’s percentage of responsibility
for causing or contributing to cause the harm for which recovery of
damages is sought); Tex. Civ. Prac. & Rem. Code Ann. § 33.003
(Determination of Percentage of Responsibility).

39
drunk driving (of which Marley is not guilty), and bias the jury against

her.” According to the Plaintiffs’ pretrial motion, the probative value of

the evidence was weak because the reduction in speed that would have

resulted from a timelier application of Marley’s brakes given the speed

at which she impacted the trailer “hardly seems important.”

In their response to the Plaintiffs’ motion to exclude, Adair’s

attorney argued that at a blood-alcohol level of .05% (below that in

Marley’s system) the typical effects of alcohol include “a reduced

coordination, reduced ability to track moving objects, difficulty steering,

reduced response to [the] emergency driving situation, lowered

alertness, [and] impaired judgment[.]” According to Adair, Dr. Holland’s

testimony was relevant to the issue of fault regardless of whether

Marley couldn’t have completely avoided the collision, and in addition,

her speed at impact with the trailer would have been reduced had she

reacted normally to the truck crossing the highway.

Before the trial, the trial court signed a pretrial order that

prevented Adair from introducing Dr. Holland’s testimony and the

toxicology report into evidence. Under Texas Rule of Evidence 403, a

trial court may “exclude relevant evidence if its probative value is

40
substantially outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay,

or needlessly presenting cumulative evidence.” 29 Yet the evidence of

another party’s negligence is always “prejudicial” since in negligence

cases, evidence of negligence is directly relevant to the plaintiff’s claim

or the opposing party’s defense.

Thus, under our adversarial system, the proper inquiry is not

whether the evidence is prejudicial, rather the question under Texas

Rule of Evidence 403 is whether the evidence is unfairly prejudicial. 30

Within the context of Rule 403, unfair prejudice “means an undue

tendency to suggest decision on an improper basis, commonly, though

not necessarily, an emotional one.” 31

At trial, the Plaintiffs claimed that the danger of unfair prejudice

was high because the jury would view Marley as someone driving while

intoxicated when that wasn’t true. Yet as a matter of blackletter law, “a

specific showing of intoxication is not required in order for evidence

29Tex. R. Evid. 403 (emphasis added).
30Diamond Offshore Servs. v. Williams, 542 S.W.3d 539, 549 (Tex.

2018) (emphasis added).
31Id.

41
regarding the use of substances to be admissible.” 32 Although Marley’s

blood-alcohol level was not above the .08 level that for purposes of the

Texas Penal Code creates a presumption the driver was driving under

the influence of alcohol, Dr. Holland’s affidavit (and his report dated

August 22, 2017) tie Marley’s BAC level of .055% to the collision and to

her loss of use of her normal use of faculties when the collision

occurred. 33 Moreover, even if the person’s impairment from a substance

or combination of substances doesn’t rise to a level of illegal

intoxication, evidence that shows a driver was impaired when offered to

explain why a driver was operating a vehicle in a manner relevant to a

wreck is admissible under Rule 403. 34

32JBS Carriers, 564 S.W.3d at 838.
33See Tex. Penal Code Ann. § 49.01(2) (Defining “Intoxicated” as

either “(A) not having the normal use of mental or physical faculties by
reason of the introduction of alcohol . . . or (B) having an alcohol
concentration of 0.08 or more”); id. § 49.04 (Driving While Intoxicated).
34See e.g., Ticknor v. Doolan, No. 14-05-00520-CV, 2006 Tex. App.

LEXIS 6717, 2006 WL 2074721, at *2, 6 (Tex. App.—Houston [14th
Dist.] July 27, 2006, pet. denied) (mem. op.); Nichols, 839 S.W.2d at
157-58; Ford Motor Co. v. Whitt, 81 S.W.2d 1032, 1037 (Tex. App.—
Amarillo 1935, writ ref’d); cf. Bedford v. Moore, 166 S.W.3d 454, 465
(Tex. App.—Fort Worth 2005, no pet.).

42
Dr. Holland’s affidavit and report tied the effect of a person

having a blood alcohol level of more than .05% to a driver’s “impaired

response to emergency driving situations[.]” In his affidavit, Dr.

Holland concluded that “to a reasonable degree of scientific certainty[,]”

Marley “was impaired” while she was driving that morning and

experienced “a reduced ability to take sudden and evasive action, such

as slamming on the brakes in time to avoid the crash.” Dr. Holland’s

statement about avoiding the crash is based on the report of Kelley

Adamson, which explains that had Marley been traveling at the posted

speed limit of 75 miles per hour when five seconds from the point of

impact, she could have come to a complete stop had she engaged her

brakes within a normal time.

The circumstances involved in the collision between Marley’s car

and the trailer Adair was towing required the jury to decide whether

Marley acted with ordinary care. Dr. Holland’s testimony is relevant to

Marley’s decision-making processes, and in our opinion, the excluded

evidence would have allowed the jury to have additional evidence and

an expert opinion to consider when assessing whether Marley’s actions

met the standard of ordinary care—that is, whether she was driving at

43
an excessive speed because her mental processes were impaired,

whether her inattentiveness to her driving tasks related to the effects of

the alcohol in her system, and whether she failed to slow her car down

by letting off the gas or by hitting her brakes more quickly because her

normal faculties were impaired by the effect of alcohol. 35 Deprived of

evidence that allowed the jury to see the full picture, the Plaintiffs’

attorney suggested the only thing that Marley did wrong was speed, an

argument the jury apparently accepted by assigning Marley 25% of the

fault.

According to the Plaintiffs, admitting evidence that Marley was

impaired by alcohol would have been unduly prejudicial and misleading

because the collision would have occurred regardless of whether Marley

had made a timelier application of her brakes. We disagree with that

argument for several reasons. First, we disagree because the jury had a

right to consider how the alcohol affected Marley’s judgment on how

fast to drive. At trial, Kelley Adamson testified that Marley could have

avoided the collision had she been driving “prudently” at the rate of 75

35See JBS Carriers, 564 S.W.3d at 839.

44
miles per hour. Thus, Dr. Holland’s testimony that alcohol affects a

person’s judgment was highly probative on the issue that alcohol played

a role in causing Marley’s death by affecting the judgments that she

made when she was driving her car.

Second, we disagree because Kelley Adamson (defendant’s

accident reconstruction expert) testified that in his opinion, Marley’s

“perception response [to the truck’s entering the highway] was delayed

by 1.1 second.” While the Plaintiffs’ expert on accident reconstruction

(Benton Randle) testified in the Plaintiffs’ case-in-chief that “[w]hatever

her physical and mental capacities were, they were sufficient such that

she was reacting timely.” Adamson suggested the delay might be due to

fatigue, but the trial court’s ruling prevented Adair from arguing or

emphasizing that the alcohol in Marley’s system contributed to her

delayed reactions or that she was impaired and her impairment,

according to Dr. Holland, caused or contributed to Marley’s death.

Because the evidence that Marley’s impairment from the alcohol in her

system offers another explanation for her behavior during the seconds

before the crash, it is evidence that would have provided the jury with

“at least some view of” Marley’s thought processes. Thus, the evidence

45
would have allowed the jury to evaluate the judgments Marley made

when deciding whether she exercised ordinary care. We conclude the

jury had a right to consider the evidence relevant to Marley’s

impairment from the alcohol in her system in assessing “whether her

actions met the standard of ordinary care.” 36

Third, we disagree because the evidence the trial court excluded

was not unnecessarily cumulative. To be sure, Kelley Adamson testified

that fatigue could have adversely affected Marley’s alertness and her

ability to drive safely, but none of the three friends with whom Marley

had spent the night testified that she was fatigued the morning she left

for work. 37 Because the Plaintiffs obtained rulings from the trial court

preventing Adair from presenting evidence that Marely had been

36Id. at 838.
37Of the three friends, Chelsie Miller testified that she went to
sleep that night between 9:00 and 12 o’clock, and when she woke up at
6:00 a.m. on the morning of the wreck, she could hear talking or
laughing from the room she was in, but that she “couldn’t make out any
of the words” since Marley was in another room. She said since she
knew Marley had to go to work, she told Marley the night before she left
for work that she should “get plenty of sleep[.]” Marley’s boyfriend,
Nana Yeboah, testified that on the night before the wreck, Marley went
to bed at 10:00 o’clock. K.C. Joel testified that Marley went to sleep on
the couch in the apartment he shared with Yeboah at midnight, and she
woke up and went into a bedroom at the apartment at 2:00 a.m.

46
drinking with friends the night before the collision occurred, the jury

wasn’t allowed to consider that testimony in considering whether

Marley was fatigued the morning she left her boyfriend’s apartment to

drive to work.

Fourth, in final argument, the attorney for the Plaintiffs

capitalized on an evidentiary record that contained no evidence

explaining Marley’s conduct but that included evidence critical of Adair,

including evidence that Adair argues was inadmissible on appeal. 38 For

instance, in final argument, the attorney for the Plaintiffs

acknowledged that Marley was speeding, but he also argued that

“Marley’s reaction time was perfectly normal.” In closing argument, the

Plaintiffs’ attorney also argued that Adair’s defense that Marley could

have avoided the collision was frivolous. And he asserted that Adair’s

claim that Marley was seen with her head down by a passenger in one

of the cars she passed was frivolous because when the passenger saw

38In issue four of the Appellant’s brief, he argues the trial court

erred in allowing the Plaintiffs’ “safety/compliance expert to testify
regarding various alleged violations of trucking regulations when the
Chapla Parties’ counsel and the expert each agree that the alleged
violations did not cause the accident and that the alleged violations
were not relevant to the legal and factual issues.”

47
Marley, Marley was ducking her head in reaction to crashing into the

trailer of Adair’s truck.

We conclude the probative value of the evidence the trial court

excluded is not substantially outweighed by the danger of unfair

prejudice. The evidence about the alcohol isn’t unfairly prejudicial

because it doesn’t have an undue tendency to suggest that the jury

decide the case on an improper basis. 39 Here, because of the trial court’s

rulings excluding Dr. Holland’s testimony and the toxicology report, the

jury “heard only a limited, filtered version of the evidence” as the

evidence relates to Marley’s thought processes and judgments in driving

a car. 40 Because the evidence was probative and relevant to the jury’s

decision regarding what percentage of fault to allocate to Marley in

apportioning the fault between Adair and Marley for the wreck, we hold

the trial court abused its discretion in excluding Dr. Holland’s

testimony and the toxicology report. 41

39Id. at 839.
40Id. at 838.
41Tex. R. Evid. 403.

48
3. Did excluding the evidence probably cause the rendition of an
improper judgment?

Having concluded the trial court abused its discretion in excluding

the evidence about Marley’s alcohol impairment, we must determine

whether the error warrants reversal—that is, whether the error

“probably caused the rendition of an improper judgment.” 42 Under that

standard,

the complaining party [need not] prove that ‘but for’ the
exclusion of evidence, a different judgment would necessarily
have resulted. Rather, if erroneously excluded evidence was
crucial to a key issue, then the error was likely harmful—
that is, it probably caused the rendition of an improper
judgment—unless the evidence was cumulative or the rest of
the evidence was so one-sided that the error likely made no
difference in the judgment. 43

On this record, the following four reasons lead us to conclude that

excluding Dr. Holland’s testimony and the toxicology report probably

caused the trial court to render an improper judgment. First, Dr.

Holland’s testimony and the toxicology report were not cumulative of

other evidence admitted in the trial. No other evidence in the record

42Tex. R. App. P. 44.1(a)(1).
43JBS Carriers, 564 S.W.3d at 836 (cleaned up).

49
explains the role the alcohol in Marley’s system may have played in

causing her death.

Second, the evidence the trial court excluded was critical to key

issues, specifically the role the alcohol in Marley’s system may have

played on her judgment in driving at 92.6 miles per hour and her

perception and reaction to the hazard of the truck crossing the

southbound lanes of U.S. 59. Insight into why Marley was driving her

vehicle in the manner it was being driven when the collision occurred

was critical to the jury’s ability to evaluate her exercise of ordinary care.

Third, the evidence in the trial in large part focused on the

percentage of fault that the jury should assign to Adair and Marley.

Both attorneys conceded the evidence established that their clients

were at fault—Marley for speeding and Adair for crossing the highway

when he didn’t have sufficient time to cross without impeding oncoming

traffic.

Fourth, comparing Marley’s negligence to Adair’s required the

jury to consider the relevant conduct of each of the parties in assessing

the parties’ comparative fault and assigning the responsibility of fault

to each party for causing Marley’s death. Without the benefit of Dr.

50
Holland’s testimony and the toxicology report, the defendant couldn’t

argue that the alcohol was a vital piece of the puzzle and explained

what caused or contributed to Marley’s collision and her death. Whether

Marley is 50% or more at fault for causing her death turns largely on

whether she was an impaired driver and whether her decisions that

morning as they relate to driving her car were impaired by the level of

alcohol in her system the morning the wreck occurred. Yet even without

that evidence, the jury found Marley 25% at fault. We conclude that the

excluded evidence about Marley’s use of a substance that impaired her

ability to drive was important evidence that should have been presented

to allow the jury to assess the parties’ proportionate fault.

Conclusion

We hold the trial court’s erroneous exclusion of Dr. Holland’s

testimony and the toxicology report and evidence of impairment tied to

the alcohol in Marley’s blood probably caused the trial court to render

an improper judgment. 44 We sustain Adair’s first issue, reverse the trial

44Tex. R. App. P. 44.1(a).

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court’s judgment, and remand the case to the trial court for further

proceedings consistent with the Court’s opinion.

REVERSED AND REMANDED.

HOLLIS HORTON
Justice

Submitted on April 20, 2023
Opinion Delivered February 22, 2024

Before Horton, Johnson and Wright, JJ.

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