1 In The Court of Appeals Ninth District of Texas at Beaumont

__________________ NO. 09 -21- 00 3 72 -CV

__________________ CURTIS ADAIR D/B/A CK TRUCKING , Appellant V. TROY CHAPLA AND KELLY MANINGAS , INDIVIDUALLY AND

AS WRONGFUL DEATH BENEFICIARIES , AND ON BE HAL F OF THE ESTATE OF MARLEY CHAPLA, DECEASED , Appellees

__________________________________________________________________ On Appeal from the 258 th District Court San Jacinto County, Texas

Trial Ca us e 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 colli ded with a flatbed trailer when the trailer , which was being towed by a semi

tractor driven by Curtis Adair, was crossing the southbound lanes of2 U.S. 59. Marley Chapla, t he driver of the SUV and its only occ upant , 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 o f 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 un conscio us when seen inside the car after the collision occurred , and she died at the sc ene . 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

1 Adair operated his truck under an assumed name, CK Trucking.3 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 ca used the collision, Marley’s in juries, 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 proximate ly ca us e d Marley’s death

. The jury then assigned 75 % of the responsibility for Marley’s death to Adair and assigned the rest , 25 %, t o Marley. Turning to the Plaintiffs’ statutory wrongful death action s , the jury awarded damages of nine million dollars

. 2 On the Estate’s survival

2 See 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 s us tained in the past, $1,000,000 to each parent for loss of companio nship and society s us tained in the future, $2,000,000 to each parent for mental anguish s us tained in the past, and $1,000,000 to each parent for mental anguish s us tained in the future

.4 statute claim, the jury awarded one million dollars for the mental anguish that Marley suffered before she died

. 3 After the trial court reduc ed 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, t he 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 evidenc e that he wanted to introduce to show the collision wa s ca us ed beca us e 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 toxicol o gist, Dr. Michael Holland , he wasn’t allowed to explain t hat 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. Hol l and’s

3 See id . § 71.021.5 testimony was harmful beca us e the evidence was crucial to a key issue

— the comparative fault of the parties in ca us ing the collision. Adair claims that the jury’s assignment of the percentages of fault for

ca us ing the collision would have been different had the trial court allowed the jury to consider Dr. Holland’s test imony. 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 Kell e y 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 vario us trucking regulations when the parties and the ir expert s “agreed that the alleged violations did not

ca us e 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 Marl e y’s parents’ wrongful

- death claims on “evidence factually insufficient to suppor t the jury’s award of $9 million in non

- economic damages[.]”6 Beca us e 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 th e trial court ab us ed 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, w e s us tain Adair’s first iss ue , reverse the trial court’s judgment , and remand the case to the trial court for further proceedings consistent with the opinion. Background Our disc uss ion 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

4 Tex. R. App. P. 47.1.7 a flatbed

- trailer , a rig that was around 67 feet long. Adair was northbound on U.S. Highway 59 when he us ed a turning lane on the northbound side of the highway and enter ed a median crossover that separat es 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 1 16 , to proceed on his
route to a b us iness that was storing the materials he was planning to load on the flatbed trail er. 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 lane s 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 mile s 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’s8 Blazer when Adair began to cross the highway. Cooley also testified in the trial. According to Cooley , he was traveling 75 mile s per hour when he saw Adair’s truck . Cooley testified that when he saw Adair cr oss the southbound lanes of U.S. 59, he “let off the gas to

- - beca us e 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 flatbe d 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

– o r the 18

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

- - the trail er part of the 18

- wheeler.” That said, Cooley agreed that when he saw the semi

- truck, he slow ed 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’s9 negligence in failing to operate his semi

- truck under the applicable standards of ordinary care proximately ca us ed 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 ca us ed 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 beca us e she was on her phone. In presenting their case, Plaintiffs obtained testimony from Adair who agreed that before he began c rossing 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, and10 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 exc us e” 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 ca us ation. Allen testified that Adair breached the sta ndard 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 conduc t 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

.11 In presenting his case

- in

- chief, Adair presented the accounts of the eye witness es 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, a nd 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 , ” a nd crashed into the tractor

- trailer. Jennifer Gaddis, a passenger in the Blazer, testified that w hen Marley’s SUV passed them , she watched th e SUV’s driver in the next five seconds “ben d down to change a radio station, pick up her phone [,] or something. But j us t from here to there, she

– that’s all she needed, j us t to look up.” Accordi ng 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’s12 truck, which was “right there at the median, going to cross over[.]” Ja son 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

- - beca us e I felt like

- - I didn’t think he had enough time.” Cooley explained that after let ting of f the gas, an SUV in the inside lane passed his Expedition and hit the flatbed trailer

. At trial, Jason testified tha t 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 the n r an 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

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

us ing 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 b rake lights on the SUV came on beca us e “it was like she never even seen it. You know, maybe she was looking at her phone or

- - something like that. And she j us t never let off the gas or anything.” Jennifer also testified that she never saw Marley’s SUV mo ve 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 Corpora l 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 assi st ed him gathered and photographed the physical evidence at the scene the day the collision14 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 wa s crossing U.S. 59[ ,] . . . [r]igh t between the last two [rear] axles.” Corporal Bass also testified “there wer e no skid

mar k s 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 accordin g 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 coul d have avoided the crash.” Bass also testified that in15 his opinion, Adair’s failure to yield the right

- of

- way to the southbound traffic on U.S. 59 was a contributing ca us e 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

. B efore admitting the Officer’s Crash Report , the trial court required Adair’s attorney to redact information in it show ing 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 Kell e y Adamson, a licensed professional civil engineer, to reconstruct the crash and to express opinions about its

ca us e. Adamson testified that he has worked in the field of accident reconstruction since 1983 and is certified in the fie l d 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 f rom the black box , which shows the speeds at which Marley’s SUV was traveling at vario us times16 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 seco nds 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 h er 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 ca us e a delay in perception and reaction[.]” That said, Adair was not allow ed 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 pe r hour, Marley’s stopping distance would have been 397 feet . In contr ast, 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 get17 out of the way.” Even then, Adam son 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

us e of their faculties to have a normal ability to perceive and to react to the hazards of driving. According to Adamson , fatigue may ca us e 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 alcohol ic beverages that evening beca us e evidence ab out alcohol was excluded from the trial

. Testimony from Mar ley ’s boyfriend , Nana Yeboah, established that the morning the wreck occurred, Marley left h er apartment to drive to work, which was approximately a two

- and

one - half

- hour drive from his apartment. Th e 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 night18 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 m uch 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 ca us ed the wreck. 5 Randle explained that his investigati o n 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

5 In an affidavit that Randle signed in response to a motion seeking to limit his testimony, Randle state s that he has a B achelor of Science in C ivil E ngineering and that he has “been engaged in the practice of accident reconstruction for the last 10 years.” At trial, Randle tes tified that he is not a licensed professional engineer.19 considering “the time she was

- - that she had out here, that 4 seconds to impact . . . there’s j us t not enough time outside of t he 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 o f [Marley’s] attention level” in assessing her negligence

. Randle testified “there’s no way to conclude that she wasn’t paying attention beca us e the download shows she was braking.” But as to Adair, Randle stated that beca us e Adair impeded the flow of traf fic 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 the20 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

us e 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 cou rt’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 . A ccording to Dr. Holland , the blood

- alcohol level in the s pecimen tested was sufficient to have ca us ed a driver’s normal perception and reaction to a hazard to have been impaired. The toxicology report shows th at Marley’s blood specimen tested positive for e thanol , 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 the21 proffer, Adair’s attorney told the trial court that Adair wanted to introduce evidence based on the toxicology report show ing that Marley had alcohol in her s ys tem when the wreck occurred. Ad air’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 fo r 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 woul d 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

6 Adair’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 toxicol ogy 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 ce r tainty that Ms. Chapla was impaired at the time of the accident. T his is one possible22 Besides making an oral proffer, Adair ’ s attorney presented the trial court with a n affidavit signed by Michael G. Holland support ing his proffer. Dr. Holland’s report reflects that he is b oard c ertified 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 Toxi c ol o gy Fellowship Training Program, a program in which he teaches medical students, residents, and pharmacy students subjects in the field of t oxicology covering drug and alcohol intoxication, ab us e, overdose, and impairment. In his report , Dr. Holland explain ed that based on medical science, it has been concl us ively established that at a blood

- alcohol concentration of .055 mg/d L an “ impairment from alcohol begins at BAC’s lower than Marley Chapla’s.” Dr. Holland’s affidavit shows that he reviewed Marley’s aut ops y 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 [] t he primary contributing factor to the accident and her delayed heavy b raking application [] a contributing factor.”23 report. His affidavit lists the vario us effects document ed by the Center for Disease Control for individuals with BAC levels like Marley’s, effects that include :

• Exaggerated behavior , • May have loss of small

- m us cle control (e.g., foc us ing 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. Hollan d 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 vitreo us 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 impai red by the alcohol in her system at the time of the accident [,] ” and she didn’t have “ the normal us e of her mental and physical faculties .”24 T he 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 Defen dant’s Toxicology Expert , ” a motion the trial court granted , Adair argued that Dr. Holland’s testimony and the toxicology report w ere relevant to the jury’s determining whether Marley’s negligence had contributed to the wreck. In Adair ’s response to the Pl aintiffs’ motion to exclude Dr. Holland’s testimony, Adair included Dr. Holland’s affidavit, which has already been disc us sed, along with Dr. Holland’s seventeen

- page report , which is dated Aug us t 22, 2017 . In the report, Dr. Holland provide s even more detail about the role that the alcohol in Marley’s system played in ca us ing her ability to drive normally to be impaired. For example, Dr. Holland’s report states : “ Ms. Marl e y Chapla’s postmortem toxicology report indicated the concomitant presen ce 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 medi c al [and] scientific25 certainty , . . . Ma rley Chapla was impaired by alcohol a nd 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 sugg estion in the record that Ms. Chapla’s reaction time was negligent, related to ca us ation, 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 ca us ed 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 w ould “likely conf us e 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

7 Emphasis in the trial court’s order

.26 speed factored into the collision , but the court ruled that it would be too conf us ing , misleading, or prejudic ial to allow the jury to consider if something else

— an impairment to Marley’s driving ca us ed 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. T he 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 us e of her mental and physical faculties . So , the jury was not allowed to consider evidence directly rel ated to ca us ation and the jury’s apportionment of Marley ’s fault. For instance, during final argument the Plaintiffs’ attorney acknowledged that Marley ’s spe ed ing was a ca us e 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 frivolo us defense beca us e we know from the download that at that point in time [,] Mar ley27 is hard on her brakes when she passed and before she passed [Ki mberly 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 ca us ed 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 ca us es 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 Marl e y’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) suggest ed that when Marley was approaching Adair’s truck, she might not have seen him beca us e Gaddis saw Marley bent down , su ggesting that Marley perhaps might have been changing the radio or pick ing up something she dropped. Still, Adair’s attorney agreed that Adair was at fault for crossing the28 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 ve rdict, 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 time l y 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 exclu din g evidence for ab us e of discretion. 9 “If a trial court ab us es its discretion and erroneo us ly excludes evidence, the question is whether the error ‘probably ca us ed the rendition of an improper judgment.’” 10 “That standard does not require the complaining party to prove that but for the excl us ion of

8 Tex. R. Civ. P

. 329(c), (e). 9 JBS 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). 10 JBS Carriers , 564 S.W.3d at 836 (citing Tex. R. App. P. 61.1(a)).29 evidence , a different judgment would necessarily have resulted.” 11 “Rather, if erroneo us ly excluded evidence was crucial to a key issue, then the error was likely harmful

— that is, it probably ca us ed 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 m us t establish that an error by a trial
court in excluding evidence “probably ca us ed 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 evidenc e 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

11 Id . (cleaned up). 12 Id . (cleaned up). 13 Tex. R. App. P. 44.1(a)(1).30 disputed

— Marley’s negligence and her percentage of the apportioned fault. Adair also argues th e evidence that Marley was impaired by the alcoh ol she had in her system was more probative than prejudicial , and if introduced the evidence would not have been unduly prejudicial, conf us ing, misleading, or cumulative since it offered an alternative to the account the Plaintiffs offered in the trial

— tha t 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 ref us ing to allow Dr. Holland to testify merits a ruling by this Court revers ing the judgment beca us e the evidence the trial court excluded was crucial to the key issue s in the

case
— issues of fact that involved Marl e y’s negligence , what ca us ed the collision, what ca us ed Marley’s death, and the jury’s assessment of the parties’ proportionate fault.
1. Was t he evidence relevant?

Re levant 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

14 Tex. R. Evid. 402

.31 would be without the evidence

. 15 Still, “[ e ] vidence that a party to a n 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 Te xas law, it is settled “that evidence of a party’s us e 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 lik e alcohol is admissible

. 19 Even

15 Id . 401. 16 JBS Carriers , 564 S.W.3d at 836

- 37 (citations omitted ). 17 Id . 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 admi tting evidence of a drug screen offered on intoxication issue to explain why the driver of a vehicle crossed t he center line and ca us ed the collision )

. 18 Id

. 19 Id

. at 838.32 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 ev idence regarding the us e of substances to be admissible. ” 20 Turning to the evidence ( which the trial court exclude d ) 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 ca us ed or contributed to the crash. ” But the Plain tiffs 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 a lternative, they argue that “even were there some

20 Id

.33 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 link s 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 spee d, why she failed to apply her brakes or slow down sooner than she did , and whether the outcome of the collision would

21 Kell e y 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. Th us , even though at an initial speed of 92.6 miles per hour , it was Adamson’s opinion that at five second s from the trailer the collision would have occurred if she was traveling at 92.6 m iles per hour w hen 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.34 have been changed had she had the normal us e 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 BAC s 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 tie s the level of alcohol found in Marley’s specimen t o 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 us e of her mental and physical facult ies beca us e 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 acc id ents.” According to t he Plain tiffs , 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, j us t five seconds before the wreck. W e disagree

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

22 Tex. R. Evid. 401.35 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

. ” T he 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 ca us ed the wreck.” But the trial court’s finding ignores Dr. Holland’s affidavit , his proffered testimon y in the pretrial hearing , and the ruling excluding the eviden ce 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 ca us e the collision and her death

. In deciding whether Adair tied Marley’s consumption of alcohol to Marley’s actions, the trial court should have consider ed whether Marley ’s ingest ion of alcohol before the wreck help ed explain disputed issues of fact as the effects of the alcohol as described by Dr. Holland relate s to the way Marley was driving her car w hen the wreck36 occurred

. 23 In this case, Adair ’s proffer show s the effects of alcohol at a level consistent with Marley’s would have helped explain whether Marley ’s judgment s 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, evi dence 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 r us hing to get to work. The evid ence 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 slow ed when he began crossing the highw ay 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

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

- 37

.37 Dr. Holland supported his opinion that Marley’s judgment was affected by the alcohol with a chart from the Cente r 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
consequenc e 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 m us t answer an issue that resolves the factual dispute about the extent to which each party ca us ed or contribut ed “ to

25 Tex. R. Evid

. 401.38 ca us e in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangero us 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]o r each person you found ca us ed or contributed to ca us e the death .” 27 Th us , when the jury apportion ed fault between Marley and Adair , the jury could have consider ed Dr. Holland’s testimony about the role the alcohol played in deciding whether its effects c ontributed 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 ov er a car. 28 Even if the jury decided Marley couldn’t

26 Tex. Civ. Prac. & Rem. Code Ann. § 33.003. 27 Emphasis added. 28 See 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 ca us ing or contributing to the death , rather than by39 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 ca us ing or contributing to ca us e both the collision

a nd Marley’s death. We conclude the trial court ab us ed its discretion by finding the evidence about Marley’s us e 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 beca us e allowing the jury to consider the evidence wou ld “conjure up prejudice about . . . alcohol, along with unsupported insinuations about

asking the ju ry to determine each person’s percentage of responsibility for ca us ing or contributing to ca us e the harm for which recovery of damages is sought ) ; Tex. Civ. Prac. & Rem. Code Ann. § 33.003 (Determination of Percentage of Responsibility).40 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 wea k beca us e 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 a rgue d 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 traile r 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 Te xas Rule of Evidence 403 , a trial court may “ exclude relevant evidence if its probative value is41 substantially outweighed by a danger of one or more of the following: unfair prejudice, conf us ing the issues, misleading the jury, undue delay,

or needlessly presenting cumulative evidence. ” 29 Yet the evidence of another part y’s negligence is always “prejudicial” since in negligence

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

or the opposing party’s defense. Th us , und er 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, u nfair 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 beca us e the jury would view Marley as so meone 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

29 Tex. R. Evid. 40 3 (emphasis added). 30 Diamond Offshore Servs. v. Williams , 542 S.W.3d 539, 549 (Tex. 2018) (emphasis added). 31 Id

.42 regarding the us e 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 create s a presumption the driver was driving under the influence of alcohol, Dr. Holland’s affidavit (and his report dated Aug us t 22, 2017) tie Marley’s BAC level of .055% to the collision and to her loss of us e of her normal us e of faculties when the collision occurred

. 33 M oreover, even if the person’s impairment from a substance or combination of substances does n’t rise to a leve l 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

32 JBS Carriers , 564 S.W.3d at 838. 33 See Tex. Pen al Code Ann. § 49.01(2) (Defining “Intoxicated” as either “(A) not having the normal us e 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). 34 See e.g., Ticknor v. Doolan , No. 14

- 05

- 00520

- CV, 2006 Tex. App. LEXIS 6717, 2006 WL 2074721, at *2, 6 (Tex. App.

— Ho us ton [14th Dist.] July 27, 2006, pet. denied) (mem. o p . ) ; 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 .).43 Dr. Holland’s affidavit and report tied the effect of a perso n 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
st atement 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 s he engaged her brakes within a normal time. The circumstances involved in the collision between Marl e y’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 t o 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 at44 an excessive speed beca us e her mental processes were impaired, whether her inattentiv eness 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 beca us e 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 th e Plaintiffs , admitting evidence that Marley was impaired by alcohol would have been unduly prejudicial and misleading beca us e the collision would have occurred regardless of whether Marley had made a timelier application of her brakes

. We disagree with th at argument for several reasons. First, we disagree beca us e the jury had a right to consider how the alcohol affected Marley’s judgment on how fast to drive. At trial, Kell e y Adamson testified that Marl e y could have avoided the collision had she been drivi ng “prudently” at the rate of 75

35 See JBS Carriers, 564 S.W.3d at 83 9.45 miles per hour. Th us , Dr. Holland’s testimony that alcohol affects a person’s judgment was highly probative on the issue that alcohol played a role in ca us ing Marley’s death by affecting the judgment s that she made when she was driving her car

. Second, we disagree beca us e Kell e y Adamson (defendant’s accident reconstruction expert) testified that in his opinion, Marley’s “per c eption response [to the truck’s entering the highway] was delayed by 1.1 secon d.” 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 t he alcohol in Marley’s system contributed to her delayed reaction s or that she was impaired and her impairment, according to Dr. Holland, ca us ed or contributed to Marley’s death. Beca us e 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

. Th us , the evidence46 would have allowed the jury to evaluate the judgments Marley made when deciding whether she exercised ordinary care

. We conclude t he 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 beca us e t he evidence the trial court excluded was not unnecessarily cumulative. To be sure, Kell e y 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 s he left for work. 37 Beca us e the Plaintiffs obtained rulings from the trial court preventing Adair from presenting evidence that Marely had been

36 Id . at 838. 37 Of 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 Mar ley had to go to work, she told Marley the night before she left for work that she should “get plenty of sleep[.]” Marley’s boy friend , Nana Yeboah, testified that on the night before the wreck, Marley w ent 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.47 drinking with friends the night before the collision occurred, the jury wasn’t allowed to consider that testimon y in considering whether Marley was fatigued the morning she left her boyfriend ’ s apartment to drive to work. Fourth, i n final argument , the attorney for the Plaintiffs capitalized on an evidentiary record that contained no evidence explaining Marley’s conduct but that included evidence critic al 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.” I n closing argument , the Plaintiffs’ attorney also argued that Adair’s defense that Marley could have avoided the collision was frivolo us . 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 frivolo us beca us e when the passenger saw

38 In issue four of the Appellant’s brief, he argue s the trial court erred in allowing the Plaintiffs ’ “safety/compliance expert to testify regarding vario us alleged violations of trucking regulations when the Chapla Parties’ counsel and the expert each agree that the alleged violations did not ca us e the ac cident and that the alleged violations were not relevant to the legal and factual issues.”48 Marley , Marley was ducking her head in reaction to crashing into the trailer of Adair’s truck

. We conclude the probative valu e 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 beca us e it doesn’t have an undue tendency to suggest that the jury decide the case on an improper basis. 39 Here, beca us e 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 relate s to Marley’s thought process es and judgmen ts in driv ing

a car . 40 Beca us e the evidence was probative and relevant to the jury’s deci sion 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 ab us ed its discretion in excluding Dr. Holland’s testimony and the toxicology report

. 41

39 Id . at 839. 40 Id

. at 838. 41 Tex. R. Evid. 403.49 3. Did excluding the evidence probably ca us e the rendition of an improper judgment ? Having concluded the trial court ab us ed its discretion in excluding the evidence about Marley’s alcohol impairment , we m us t determine whether the error warrants reversal

— that is, whether the error

“ probably ca us ed the rendition of an improper judgment. ” 42 Under that standard, the complaining party [need not] prove that ‘ but for ’ the excl us ion of evidence, a different judgment would necessarily have resulted. Rather, if erroneo us ly excluded evidence was crucial to a key issue, then the error was likely harmful

— that is, it probably ca us ed 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

ca us ed 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

42 Tex. R. App. P. 44.1(a)(1)

. 43 JBS Carriers , 564 S.W.3d at 836 (cleaned up).50 explains the role the alcohol in Marley’s system may have played in

ca us ing her death. Second, the evidence the trial court excluded was critical to key issue s, specifically the role th e 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 manne r it was being driven when the collision occurred was critical to the jury ’s ability to evaluat e her exercise of ordinary care. Third, the evidence in the trial in large part foc us ed on the percentage of fault that the jury should assign to Adair and Marley

. B oth 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 on coming 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 ca us ing Marley’s death. W ithout the benefit of Dr.51 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 ca us ed or contributed to Marley’s collision and her death. Whethe r Marley is 50% or more at fault for ca us ing her death turns largely on whether she was an impaired driver and whether her decision s that morning as they relate to driving her car were impaired by the level of alcohol in her system the morning the wreck oc curred. Yet even without that evidence, the jury found Marley 25% at fault. We conclude that the excluded e vidence about Marley’s us e 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

. Concl us ion We hold the trial court’s erroneo us excl us ion of Dr. Holland’s testimony and the toxicology report and evidence of impairment tied to the alcohol in Marley’s blood probably ca us ed the trial court to rend er an improper judgment. 44 We s us tain Adair’s first issue , reverse the trial

44 Tex. R. App. P. 44.1(a).52 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 J us tice

Submitted on April 20, 2023 Opinion Delivered February 22, 2024 Before Horton, Johnson and Wright, JJ.