NO. 12

- 15 -00119- CV IN THE TWELFTH COURT OF APPEALS

TYLER, TEXAS

_________________________________________ DEBRA DENT LEAL A/K/A DEBBIE D. LEAL, AND TANGO TRANSPORT, INC., AND TANGO TRANSPORT, LLC. Appellants

vs.
JAMES JORDAN Appellee

_________________________________________

Appealed from the 115 th District Court Upshur County, Texas Cause No. 588- 12 Honorable Lauren Parish, Presiding Judge

_________________________________________ OPENING BRIEF OF APPELLANTS, DEBRA DENT LEAL A/K/A DEBBIE D. LEAL, AND TANGO TRANSPORT, INC., AND TANGO TRANSPORT, LLC.

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

ORAL ARGUMENT REQUESTED ACCEPTED 12-15-00119-CV TWELFTH COURT OF APPEALS

TYLER, TEXAS 12/2/2015 8:48:50 PM

Pam Estes CLERKii IDENTITY OF PARTIES AND COUNSEL

THE FOLLOWING IS A L IST OF ALL PARTIES T O THE TRIAL COURT’S ORDER APPEAL ED FROM, AND THE NAM E AND ADDRESSES OF ALL TRIAL AND APP ELLATE COUNSEL:
1. APPELLANTS

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

2. TRIAL AND APPELLATE COUNSEL FOR APPELLANTS

DEFENDANTS DEBRA DENT LEAL A/K/ A DEBBIE D. LEAL, AN D TANGO TRANSPORT, INC ., AND TANGO TRANSPO RT, LLC. IS LADD & THIGPEN, PC, NORMAN R. LADD, III, AND MATTHEW L. THIGPEN , 223 S. BONNER AVE. , TYLER, TEXAS 75702

. 3. APPELLEE

- PLAINTIFF IS JAMES JORDAN

. 4. TRIAL AND APPELLATE COUNSEL FOR APPELLEE

- PLAINTIFF, JAMES JORDAN IS PHENIX, PHENIX AND C RUMP , RUSTY PHENIX , 118 S. MAIN STREET , HENDERSON , TEXAS 75653

.iii TABLE OF CONTENTS

PAGE IDENTITY OF PARTIES AND COUNSEL

................................ .......................... i ii

TABLE OF CONTENTS

................................ ................................ ......................... iii

INDEX OF AUTHORITIES

................................ ................................ ...................... v

TEXAS RULES OF EVIDENCE

... ... ... ... ... ... ... ... ... ... ... ... .. ... ... ... ... ... ... .. vii

STATEMENT OF THE CASE

................................ ................................ .................. 1

ISSUES P RESENTED

................................ ................................ ............................... 4

STATEMENT OF FACTS

................................ ................................ ........................ 5

SUMMARY OF THE ARGUMENT

................................ ................................ ........ 7

ARGUME NT

................................ ................................ ................................ ............. 9

Standard of Review

................................ ................................ ................................ ... 9

Issue No. 1: Did the trial court err and abuse its discretion by excluding

relevant evidence of pre

- existing injury to JORDAN?............. 11
Sub

- issue No. 1: Was the evidence that the Tria l Court excluded relevant?.....

.. . 11
Sub

- issue No. 2: Did the trial court err and abuse its discretion by in excluding the

deposition testimony of Dr. Ritesh Prasad and Dr. Charles Gordon?....................................................................

.......... ..... . 11iv

Issue No. 2: Did JORDAN Open the Door related to Pre

- existing Injuries

during his Direct Testimony

............................................. ................21

CONCLUSSION................................................ ............................24

PRAYER

................................ ................................ ................................ .................. 25

CERTIFICATE OF SERVICE

................................ ................................ ................ 26

CERTIFICATE OF COMPLIANCE

................................ ................................ ....... 27v INDEX OF AUTHORITIES

PAGE

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

... 7

McGraw v. Maris , 8282 S.W.2d 756, 757 (Tex.1992)...................................7 Bay Area Healthcare Grp., Ltd. v. McShane , 239 S.W.3d 231, 234 (Tex.2007)

. 9 , 22 Certain Underwriters at Lloyd's, London v. Chicago Bridge & Iron Co. , 406 S.W.3d 326, 338 (Tex.App.

– Beaumont 2013, pet. denied)

................................ ................ 9 Caffe Ribs, Inc. v. State , 32 8 S.W.3d 919, 927 (Tex.App.

– Houston [14th Dist.] 2010, no pet.) (citing Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002)) 9 , 10 Hooper v. Chittaluru , 2 22 S.W.3d 103, 107 (Tex.App.

– Houston [14th Dist .] 2006, pet. denied) (op. on reh'g)

................................ ................................ ....................... 9

St rauss v. Continental Airlines, Inc ., 67 S.W.3d 428, 449 (Tex.App.

– Houston [14th Dist.] 2002, no pet.)

................................ ................................ ....................... 10, 21 City of San Antonio v. Pollock, 2 84 S.W.3d 809, 816

– 17 (Tex.2009)

................... 10 Interstate Northborough P'ship v. State, 6 6 S.W.3d 213, 220 (Tex.2001)

............. 10
Blackburn v. State, 820 s.W.2d 824, 826 (Tex.App.

— Fort Worth, 1991, pet. ref’d)

................................ ................................ ................................ .............................. 11
Perez v. State , 830 S.W.22d, 684, 687

- 88 (Tex.App.

— Corpus Christi, 1992, no pet)

................................ ................................ ................................ .............................. 11vi

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

.. ........ 12
Castro v. Sebesta , 808 S.W.2d 189, 191 (Tex.App.

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

.................................................................. .. .................. 12
Henderson v. State , 906 S.W.2d 589, 597 (Tex.App.

— El Paso, 1995, pet. ref’d)

.. . 12 Montgomery v. State , 810 S.W.2d 372, 376 (Tex.Crim.App., 1990) ............12, 14 Layton v. State , 280 S.W.3d 235, 240 (Tex.Crim.App., 2009)

........................ . 13

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

........................... 14
Menchaca v. State , 901 S.W.2d 640, 648 (Tex.App.

— El Paso, 1995, pet. ref’d)

... 14
Russell Stover Candies, Inc. v. Elmore, 58 S.W.3d 154, 158 (Tex.App.

– Amarillo 2001, pet. denied) ............................................................................14 Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 218 (Tex.2010)............... 14
Baker v. Dalkon Shield Claimants Trust, 15 6 F.3d 248, 252 (1st Cir.1998).......... 15 Brownsville Pediatric Ass'n v. Reyes, 68 S.W.3d 184, 195 (Tex.App.

– Corpus Christi 2002, no pet.)

........................................................................................... 15
Cruz ex rel. Cruz v. Paso Del Norte He alth Found., 44 S.W.3d 622, 632

– 33 (Tex.App.

– El Paso 2001, pet. denied)

..................................................... 15
Harris v. Belue, 974 S.W.2d 386, 393

– 94 (Tex.App.

– Tyler 1998, pet. denied)

. .... 15
Moore v. Bank Midwest, N.A., 39 S.W.3d 395, 402 (Tex.App.

— Houston [1 st Dist.] 2001, pet. denied).............................................................................22 Horizon/CMS Healthcare Corp. v. Auld , 34 S.W.3d 887, 906 (Tex.2000) ...........22vii TEXAS RULES OF EVIDE NCE Texas Rules of Evidence § 401....................................

.... ... 11, 12, 13 Texas Rules of Evidence § 402...........................

.... ............ .......... 10 Texas Rules of Evidence § 403.......................................

. ... 10, 15, 211 STATEMENT OF THE CAS E 1

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

accident case
. Appell ee James Jordan , (“ JORDAN ”) filed suit against Appellants Debra Dent Leal a/k/a Debbie D. Leal, and Tango Transport, Inc., and Tango Transport, LLC

. , (“LEAL” and/or “TANGO”) CR , P. 7

- 69 . Factually, JORDAN
and LEAL were involved in an automotive collision on October 1, 2010 , invol ving two (2) tractor trailer rigs. CR, P. 7

- 69.
JORDAN asserted negligence against LEAL while acting within the course and scope of her employment for TANGO

. CR, P. 7

- 69 . Additionally, JORDAN

asserts that LEAL operated her vehicle in a negligent manner by failing to keep a proper lookout, failing to maintain control of her vehicle, failing to control her speed, failing to keep an assured clear distance in violation of Sections 545.062(a) of the Texas Transp ortation Code, failing to comply with the Federal Motor Carrier Safety Regulations, and in committing other acts of negligence, all of which were a proximate cause of the occurrence in question

. CR, P. 7

- 69

. Furthermore JORDAN alleged Respondeat Superior complaining of TANGO as LEAL was acting within the course and scope of her employment with TANGO.

1 “CR” refers to the volume and page of the Clerk’s Record. “RR” refers to the volume and page of the transcribed hearing in the Reporter’s Record. “SR” refers to the volume and page of the transcribed hearing in the Reporter’s Record entitled Hearing on De fendant’s Objections , which was supplemented during this appeal

.2

Therefore TANGO is liable for such acts, omissions and conduct under the doctrine of Respondeat Superior. CR, P. 7

- 69

. On August 27, 2014, the Trial Court gr anted JORDAN’S Motion in Limine,
Number 15, related to the 2002 accident

. See Plaintiff’s Motion in Limine, C R, P. 295; see also Order on Plaintiff’s Motion in Limine, CR ., P. 306. On November 6, 2014, JORDAN filed the Notice of Deposition Excerpts and

O bjections Regarding Depositions of Dr. Charles Gordon, M.D., and Dr. Ritesh
Prasad. C R., P. 741.
On November, 10, 2015, the Trial Court convened Vior Dire in the 115 th Judicial District Court for Upshur County under Cause Number 588

- 12. Before Jury
Selec tion, the Court heard contested issues that were before the Court including the

issue of J ORDAN’s pre

- existing conditions, and sought a ruling on the objections to the proposed deposition excerpts proffered by LEAL and TANGO . See C R. P. 741.
JORDAN’s co unsel objected to the admission of the expert’s testimony regarding JORDAN’s pre

- existing injuries. The Court overruled his objection, allowing testimony to be included at the time of Trial. On the date of Trial, November 16, 2015, Counsel for JORDAN requested to

re
- open the issue of allowing JORDAN’s pre

- existing conditions coming in at Trial. The Judge allowed his argument and then ruled in his favor, overturning her own ruling from six (6) days prior. R R Volume 3, P. 11, LL. 17

- 24.3

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

pre
- existing injuries, and LEAL and TANGO requested that the Trial Court allow such evidence. This request was denied. Following a conclu sion of this trial, the Jury rendered its verdict, wherein

certain d amages were awarded to JORDAN, including $75,000.00 for past pain and suffering, and $35,000.00 for future pain and suffering. C R., P. 746. On January 29, 2014, the Court signed the Final Judgment. C R., P. 763. On February 25, 2015, LEAL and TANGO filed their Motion for New Trial, which the Trial Court never ruled upon, allowing such motion to be denied by operation of law. C R., P. 765. On May 7, 2015, TANGO filed its Notice of Appeal. C R., P. 773. TANGO asserts that had the Trial Court allowed introduction of the pre

existing injury, which would have been relevant to the damages and the proximate cause portions of this case, the Jury verdict would have been lower.4 ISSUE S PRESENTED
ISSUE No. 1: Did the trial court err and abuse its discretion by excluding

relevant evidence of pre

- existing injury to JORDAN?
Sub

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

- issue No. 2: Did the trial court err and abuse its discretion by in excluding

the deposition testimony of Dr. Ritesh Prasad and Dr. Charles Gordon?
ISSUE No. 2: Did JORDAN Open the Door related to Pre

- existing Injuries

during his Direct Testimony
.5 STATEMENT OF FACT S
On May 13, 2013, JORDAN was deposed by LEAL and TANGO , at which
time he testified that he had been involved in an automobile accident in 2002, wherein he sustained injuries to his neck and back. See R R. , Volume 8, entitled

“ Defendants’ Trial Exhibit D

- 21 ” . Such testimony also related to the treatment provided to these injuries, and the lengthy of time that JORDAN was not able to work while he healed from said injuries.

On March 17, 201 4, JORDAN’S treating physician Dr. Charles Gordon was deposed by L EAL and TANGO , during which time the impact, if any, of the 2002 accident and injuries to JORDAN’S neck and back would be relevant to his opinions. Such testimony was later submitted as LEAL and TANGO ’S deposition excerpts for the trial. JORDAN objected to such testimony as being irrelevant.
On August 14, 2014, JORDAN’S treating physician Dr. Ritesh Prasad was deposed by LEAL and TANGO , during which time similar questions related to the impact, if any, of the 2002 accident and injuries would be relevant to his opinions. Again, this testimony was submitted as LEAL and TANGO ’S deposition excerpts for the trial, to which JORDAN objected as being irrelevant.

As outlined in detail in the following paragraphs, the Trial initially allowed such evidence to be admitted, but later excluded any evidence or testimony related6

to the 2002 accident, the injuries sustained, and any testimony from the treating physician re lated to the impact on their opinions.7 SUMMARY OF THE ARGUM ENT The court abused its discretion in excluding evidence of JORDAN’S previous accident and injury history, which was offered to show pre

- existing injuries, because
the evidence was admissible, w as controlling on a material issue, and was not
cumulative of other evidence. See Williams Distrib. Co. v. Franklin , 898 S.W.2d 816, 817 (Tex. 1995); McGraw v. Maris , 828 S.W.2d 756, 757 (Tex. 1992). Specifically, during a pre

- trial discussion regarding the expert testimony of Dr. Prasad and Dr. Gordon, the Court ordered that their testimony as to JORDAN’S previous back and neck injuries and potential alteration of their opinions was

admitted.

At the commencement of the trial, the Court changed its ruli ng on this very issue, and excluded any testimony from all witnesses. This despite the fact that the Plaintiff, had testified, without objection, during depositions to such previous injuries. Furthermore, Dr. Prasad, a treating physician, testified that had he known of the previous injury, his opinions might have been different.

The exclusion of this evidence caused the rendition of an improper judgment. Tex. R. App. P. 44.1(a)(1). Simply put, the evidence before the Jury was that JORDAN had no previo us injury history, which is counter to his sworn testimony.8

This was also the issue during trial, wherein LEAL and TANGO sought to have the Court rule that the door had been opened when JORDAN testified that related to his work and injury history. The T rial Court denied such request that the door had been opened.9 ARGUMENT

I. Standard of Review
The decision to admit or exclude evidence lies within the sound discretion of
the trial court. Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex.2007); Certain Underwriters at Lloyd's, London v. Chicago Bridge & Iron Co., 406 S.W.3d 326, 338 (Tex.App.

– Beaumont 2013, pet. denied). A trial court exceeds its discretion if it acts in an arbitrary or unreasonable
manner or wit hout reference to guiding rules or principles. Caffe Ribs, Inc. v. State, 328 S.W.3d 919, 927 (Tex.App.

– Houston [14th Dist.] 2010, no pet.) (citing Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002)). When reviewing matters committed to the trial cou rt's discretion, a reviewing court may not substitute its own judgment for the trial court's judgment. Id. Thus, the question is not whether this Court would have admitted the evidence. Rather, an appellate court will uphold the trial court's evidentiary r uling if there is any legitimate basis for the ruling, even if that ground was not raised in the trial court. Hooper v. Chittaluru, 222 S.W.3d 103, 107 (Tex.App.

– Houston [14th Dist.] 2006, pet. denied) (op. on reh'g)
Therefore, this Court is to examine all bases for upholding the trial court's decision that are suggested by the record or urged by the parties. Id.10

Relevant evidence is generally admissible. Tex. R. Evid. 402. A trial court may exclude relevant evidence, however, “if its probative value is sub stantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Tex. R. Evid. 403; see Strauss v. Continental Airlines, Inc ., 6 7 S.W.3d 428, 449 (Tex.App.

– Houston [14th Dist.] 2002, no pet.). In addition, a court may exclude an expert opinion when it is conclusory or
the basis offered for it is unreliable. Tex. R. Evid. 702; City of San Antonio v.
Pollock , 284 S.W.3d 809, 816

– 17 ( Tex.2009). To obtain reversal of a judgment based on a claimed error in excluding evidence, a party must show that the trial court did in fact err and that the error probably resulted in rendition of an improper judgment. Hooper , 222 S.W.3d at 107.

To dete rmine whether excluded evidence probably resulted in the rendition of an improper judgment, an appellate court reviews the entire record. Caffe Ribs, Inc., 328 S.W.3d at 927 ( citing Interstate Northborough P'ship v. State , 66 S.W.3d 213, 220 (Tex.2001)). T o challenge a trial court's evidentiary ruling successfully, the complaining party must demonstrate that the judgment turns on the particular
evidence that was excluded or admitted. Hooper , 222 S.W.3d at 107 ( citing Inter state Northborough P'Ship, 66 S.W. 3d at 220). A reviewing court ordinarily will not reverse a judgment because a trial court erroneously excluded evidence when the11

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

the case. Id

. ISSUE No. 1: Did the trial court err and abuse its discretion by excluding

relevant evidence of pre

- existing injury to JORDAN?
Sub

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

- issue No. 2: Did the trial court err and abuse its discretion by in excluding

the deposition testimony of Dr. Ritesh Prasad and Dr. Charles Gordon?

Texas Rule of Evidence 401 defines “Relevant evidence” as evidence having any tendency to make the existence of any fac t that is of consequence to the determination of the action more probable or less probable than it would be without
the evidence.”
In order for evidence to be relevant, it must meet a two

- prong test under Rule 401. First, the proposition to be proved m ust be material, meaning it must support a proposition that is a matter in issue or is probative of a matter in the case. Blackburn

v. State , 820 s.W.2d 824, 826 (Tex.App.

— Fort Worth, 1991, pet. ref’d). The second prong of the test is that the offered ev idence must be relevant, meaning it evidence must make the existence of the material fact “more probable or less probable than it

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

- 88 (Tex.App.

— Corpus Christi, 1992, no pet).12

Furthermor e, Texas Rule of Evidence 401 does not require that the fact to be proved be in dispute, Johnson v. State , 698 S.W.2d 154, 160 (Tex.Crim.App. 1985). While a court might reject evidence on a particular fact already resolved for the purposes of the lawsuit by judicial notice, stipulation or failure of the opponent to deny the fact by sworn pleading, the Court should more properly reject such evidence as “unfairly prejudicial” or a “waste of time” under Rule 403, rather than rejecting it as immaterial under R ule 401. Castro v. Sebesta , 808 S.W.2d 189, 191 (Tex.App.

— Houston [1 st Dist.] 1991, no writ). Rule 401 maintains that the theories of the parties in either prosecution or defending the claim determine the material issues in each individual case.
Henders on v. State , 906 S.W.2d 589, 597 (Tex.App.

— El Paso, 1995, pet. ref’d). In this case, JORDAN sought recovery for physical injuries that he sustained in the accident in question, which included a L5

- S1 fusion with an anterior lumbar interbody fusion of L5

- L 1. In response, TANGO and LEAL argued that a prior accident caused identical injuries to JORDAN

. The second prong of Rule 401 relates to the relevance of the evidence being offered in trial. As stated by the Texas Court of Criminal Appeals, the “appropriate test for relevancy is whether ‘a reasonable person, with some experience in the everyday work,’ would believe that a particular piece of evidence might be helpful in determining the truth or falsity of any material fact.” Montgomery v. State , 81013

S.W.2d 372, 376 (Tex.Crim.App ., 1990). Thus, the Court is to look to the purpose for offering the evidence, the material fact to be proved, and whether there is a direct or logical connection between the offered evidence and the proposition to be proved. Layton v. State , 280 S.W.3d 235, 240 (Tex.Crim.App., 2009).
In the instant matter, LEAL and TANGO sought in include sworn testimony from the Plaintiff, JORDAN, related to previous physical injuries that were from the (1) same form of employment, (2) similar physical injuries includin g the same location on the body, and (3) the course of treatment and recovery. As an affirmative
defense, LEAL and TANGO argued a pre

- existing condition related to the damages

in this matte r , thus any evidence of a prior accident with the same physical injury would be a direct logical connection to such proposition. See TANGO’S First
Amended Answer, CR., P. 79. Furthermore, a reasonable person would be able to believe that sworn testimony from JORDAN related to his previous back injuries might be helpful in determining if the extreme course of medical treatment in the instant case were all related to the accident in question, or an exasperation of a pre

- existing Defendants’
Trial Exhibit “ D

- 21”, R R ., Volume 8, D

- 21

. Thus, under the prong test for Rule 401 of the Texas Rules of Evidence, JORDAN’S testimony related to pre

- existing injuries was relevant as a matter of law, and the Court erred in ruling that such
evidence would be not admissib le at trial.14

It should be noted that relevancy is not a sliding scale, but is a “yes” or “no” proposition, as evidence must provide only a “small nudge toward proving or disproving some fact of consequence. Stewart v. State , 129 s.W.3d 93, 96 (Tex.Crim.Ap p., 2004); Montgomery v. State , 810 S.W.2d 372, 376 (Tex.Crim.App.1990). In fact, the proposition at issue does not event need to be the most likely inference from the evidence. Menchaca v. State , 901 S.W.2d 640, 648 (Tex.App.

— El Paso, 1995, pet. ref’d). With regard to evidence of pre

- existing injury, there is a general principle that a defendant may cross

- examine a plaintiff regarding previous injuries, claims, and actions when they are relevant to show that the plaintiff's present physical condition is not the result of the injury presently sued for, but wa s caused in whole or in part by an earlier or subsequent injury or a pre

- existing condition. Russell Stover
Candies, Inc. v. Elmore, 58 S.W.3d 154, 158 (Tex.App.

– Amarillo 2001, pet. denied). In addition, a defendant may introduce evidence

— typically an exp ert opinion

—

regarding another “plausible cause” of the plaintiff's injury, and the plaintiff must then exclude that cause with reasonable certainty. Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 218 (Tex.2010). The be fair, the general principles “of alternative causation [are] not a free ticket to admission of evidence,” which must still meet admissibility requirements15

including relevance, reliability of expert testimony under Rule 702, and the Rule 403 balancing test. Baker v. Dalkon Shield Claimant s Trust, 156 F.3d 248, 252 (1st Cir.1998). Under these requirements, a defendant must provide a competent factual basis showing that an alternative cause is a plausible one before evidence of that cause will be presented to the jury. See Brownsville Pedia tric Ass'n v. Reyes, 68 S.W.3d 184, 195 (Tex.App.

– Corpus Christi 2002, no pet.) (holding reliability requirement applies equally to defense expert witness testifying about alternative causes of plaintiff's injury); Cruz ex rel. Cruz v. Paso Del Norte Healt h Found., 44 S.W.3d
622, 632

– 33 (Tex.App.

– El Paso 2001, pet. denied) (concluding that although defensive theories regarding alternative causes need not be established “within reasonable medical probability,” there must be “factual support in the record jus tifying [their] application”); Harris v. Belue, 974 S.W.2d 386, 393

– 94 (Tex.App.

– Tyler 1998, pet. denied) (“Without factual support in the record justifying the application of these [alternate] theories [of causation], they rise to little more than conject ure....).

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

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

. However, a week later when opening statements were commenced, JORDAN re
urged its relevance argument as to any evidence of a pre
- existing injury, including16

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

a lack of knowledge of such pre
- existing injury and the impact on thei r medical
expert opinion as to causation

. On November 10, 2014, the Court heard oral argument as to the deposition
excerpts of Dr. Prasad and Dr. Gordon. During that hearing, JORDAN’ argued that

any testimony related to the 2002 accident of JORDAN was n ot relevant, including

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

-
22

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

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

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

- 20. T he

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

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

- 13

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

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

same relevanc y objection from JORDAN. SR, P. 11, L. 5

- 24. In response thereto,

the Court “That I overruled your objection to .” SR, P. 11

- 12, L. 25

- 1.

As such, the Court ruled that LEAL and TANGO were allowed to introduce deposition testimony of Dr. Prasad and Dr. Gordon related to the impact, if any, of

a pre
- existing injury to JORDAN, but as to the chronic nature of such injury or17

anything related to comparative negligence, the Court sustained the re levance objection.

On November 19, 2014, immediately prior to the start of opening statements,
the Trial Court heard arguments related to the depositions excerpts that she had previously allowed into evidence. While the entire discussion on these issues a re

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

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

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

accident is not coming in or any reference to any possible

– well, the references to
the chronic and other, I don’t know how to phrase it, the other

— well, the condition

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

17

- 24. Such ruling effectively excluded all testimony or evidence of the pre
- existing injury to JORDAN, or at least the previous similar injury from 2002.
The record is clear that JORDAN provided sworn testimony that in 2002 he

had been involved in a accident which resulted in physical injuries to the same physical portions made the basis of the current case against TANGO. Such sworn testimony from JORDAN meets the first prong of the factual basis showing that an
alternative cause is a plausible theor y for the severity of the injuries in this matter, especially since there was a time in which he did not work, and the injuries were to
the same location as those made the basis of the trial in question.18

LEAL and TANGO further sought in to include sworn d eposition testimony

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

from 2002 would have on their opinions related to proximate causation. However,
the sweeping ruling of the Trial Court rendered such deposition excerpts exc luded

on the basis of relevance.

As to Dr. Prasad’s excluded testimony, he testified that had he known of
JORDAN’S pre
- existing injury, this could have altered his opinion as to causation. 11. Q. Okay. So Mr. Jordan comes in in October of 12. 2010 and he tells you that you've had a

-- that he

-- 13. that he's been involved in a wreck, correct? 14. A. Correct. 15. Q. At that time

-- you referred to that as his 16. history? 17. A. That's correct. 18. Q. Did Mr. Jordan ever refer to a previous 19. accident he had been in? 20. A. No, he didn't. 21. Q. Okay. Did

-- are you aware that he was in 22. an accident in 2002? 23. A. No, I wasn't. 24. Q. Are you aware of any injuries that resulted 25. from that accident? 1. A. None that he described to me. 2. Q. Okay. So those

-- that MRI that was taken19

3. in 2010, that's really the first photo evidence we 4 . have of what Mr. Jordan's condition is? 5. A. That's correct. When I saw him, I

-- he

-- 6. specifically I wrote down that he denies any neck 7. pain or back pain prior to the motor vehicle 8. accident. That would mean in th e last couple of 9. years prior to the motor vehicle accident and that's 10. what the patient says and that's all I can go by, is 11. their history, right. 12. Q. And when

-- you said earlier that you can

-- 13. can only go by what a patient says. So if the 14. patient doesn't tell you everything

-- 15. A. Sure. 16. Q.

-- you don't know everything? 17. A. Absolutely. 18. Q. Would that affect your opinion? 19. A. Sure. CR, P. 741. 2 With regards to Dr. Gordon, the deposition testimony that was originally
allowed to be offered was the following: 24. Q. Would it be, then, fair to assume that on your 25. first visit with Mr. Jordan, you were unaware that he'd 1. been in an accident in 2002?

2 The deposition excerpts identified by TANGO and LEAL being from the Deposition Transcript of Dr. Prasad, P. 76

- 77,ll. 11

- 1920

2. A. The accident that I was aware of was the one 3. we've been discussing from 2010. 4. Q. Right. But you weren't aware that he'd been 5. in a vehicle

-- a motor vehicle accident in 2002? 6. A. That's c orrect. 7. Q. So you would have no idea whether or not he 8. had any reoccurring back pain or leg pain from that 9. accident? 10. A. That's correct. CR, P. 741. 3 Had the Court not changed its ruling on the date of trial, LEAL and TANGO

wo uld have been more than able to argue that this accident was not the sole proximate cause of the injuries, which was specifically included in its pleadings. Simply put, the evidence sought to be offered by LEAL and TANGO was relevant, and would have been a sufficient factual basis showing that an alternative

cause is a plausible one before evidence of that cause will be presented to the jury. By denying LEAL and TANGO the ability to offer such evidence, the Trial

Court abused its discretion because the pro bative value was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

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

3 The deposition excerpts identified by TANGO and LEAL being fro m the Deposition Transcript of Dr. Gordon, P. 50

- 51,ll. 24

- 10.21

evidence.” Tex. R. Evid. 403; see Strauss v. Continental Airlines, Inc., 67 S.W.3d
428, 449 (Tex.App.

– Houston [14th Dist.] 2002, no pet.).
II. ISSUE NO. 2 Did JORDAN Open the Door related to Pre

- existing Injuries

during his Direct Testimony
.
As stated in the foregoing, the Trial Court’s had rendered a ruling sustaining JORDAN’S objection related to relevant of the evidence, thus preventing any testimony before the jury. It is LEAL and TANGO’S position that failure to allow
relevant evidence a s to the medical condition resulted in the rendition of an improper
verdict. During JORDAN’S direct testimony portion of the trial, he was asked the following question; Question: Okay. Now up until October the 1 st during this time that you last

worked f or New Waverly up until October the 1 st when this wreck happened did you have any problem with your back?. Answer: No, sir. Question: From 2006 when you began working with New Waverly again

up until the time this wreck happened did you have any physical problem that prohibited you from working? Answer: No, sir. Question: Do you ever remember even missing any time from work? Answer: No, Sir.

R R , Volume 4, P. 25

- 26, ll. 13

- 2 Later in the direct testimony, JORDAN was asked another series of questions related to his ability to provide for his family. To be clear, the question from Counsel related to the time period of the case, being the 2010

- 2012 time frame. However, as22

shown below, t he response from JORDAN incorporated his entire working history, including the 2002 time period related to the pre

- exsting injury barred by the Court. Question: Up until this point how was it not being able to work?

Answer: Not

— not being able to w ork after so many years it was to the point where I’ve always provided for my family and I could not provide for them. It was, wow, I don’t know the right termination to use for it, but just uncertain if I was going to be able to go back and work and I....

R R , Volume 4, P. 41

- 42, LL. 22

- 4. A party opens the door to the admission of otherwise objectionable evidence offered by the other side when it “introduces the same evidence or evidence of a

sim il ar character. Moore v. Bank Midwest, N.A., 39 S.W.3d 395, 402 (Tex.App.

— Houston [1 st Dist.] 2001, pet. denied). Furthermore, when a party opens the door when the testimony conveys a false impression. Horizon/CMS Healthcare Corp. v.
Auld , 34 S.W.3d 887, 906 (Tex.2000). Finally, the “door is opened” to admission of evidence of collateral matters when it injects those collateral issues into lawsuit. Bay Area Healthcare Grp., Ltd. V. McShane , 239 S.W.3d 231, 234 (Tex.2007). In this matter, the evidence sought to be included by TANGO was related to the preexisting injuries from 2002, and the treatment of such injuries. JORDAN23

made four statements that created a false impression to the jury, those being when he stated the following:

1

. T hat there had never been a time period in which JORDAN was unable to work, and 2. That he did not remember even missing any time from work. 4 When these statements are considered to be the whole testimony of the JORDAN, it is clear that the impression the Jury would have been provided is that JORDAN had never been without the ability to work and provide for his family. Such impression would hav e been clarified and/or avoided had the Trial Court allowed testimony of the 2002 accident, sustained injuries, and lost work time for a period of several months. Following the conclusion of JORDAN’S direct testimony, LEAL and

TANGO requested the Cour t to re

- address the exclusion of the evidence related to JORDAN’S pre

- existing injury. R R , Volume 4, P. 87

- 89. During the oral discussion, the Trial Court stated that she would have the Court Reporter look into the questionable testimony, which “is going to take forever.” After a lengthy amount of time, the Trial Court informed the parties that from her review of the testimony complained of in this brief, the door had not been opened

4 Again, the series of questions included different time frames, being during his time off from New Waverly, then from 2006 to the date of the accident. The question related to missing work d id not have any time period.24

to the inclusions of the evidence related to the 2002 accident. R R , V olume 4, P. 90

- 91. At this point, LEAL and TANGO requested the opportunity to read into the record the deposition testimony of JORDAN that would have been offered as impeachment evidence. The Trial Court refused to allow the testimony to be read

into the record, requesting instead that LEAL and TANGO include the proposed language in what later became Defendants’ Trial Exhibit “21”. R R , Volume 4, P. 91; see also Defendants’ Trial Exhibit “D

- 21”, R R , Volume 8, D

- 21.
LEAL and TANGO asserts that the door wa s opened by the false impression of JORDAN’S testimony, and continuously excluding such evidence resulted in an improper judgment by the Jury related to the damages in this case.
CONCLUSION The Trial Court admitted found the evidence in question relevant o n November 10, 2014, and later rendered a ruling that such evidence was not relevant on November 19, 2014. By refusing to allow the evidence, and subsequently ruling that JORDAN had not opened the door on this issue, a false impression was made to the jur y resulting in damages that would have been different had evidence been offered for the jury’s deliberations. In these events, the Trial Court abused its discretion by excluding relevant evidence.25 PRAYER For these reasons, Appell ants , DEBRA DENT LEAL A/K /A DEBBIE D.
LEAL, AND TANGO TRAN SPORT, INC., AND TAN GO TRANSPORT, LLC. , respectfully request that this Court reverse the Trial Court’s excluding relevant evidence related to the 2002 accident and injuries sustained thereto, and upon such ruling, return this case to the Trial Court for a new trial

. Appellants, DEBRA DENT

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

. , further respectfully request that this Court grant Appellants any and all other relief to which they may be entitled. Respectfully submitted,
LADD & THIGPEN, P.C.

/s/ Matthew Thigpen Matthew Thigpen Texas State Bar No. 24056425 Norman R. Ladd, III. Texas State Bar No. 240 41285 223 S. Bonner Ave. Tyler, Texas 75702 (903) 705

- 7211 (903) 705

- 7221 (FAX)
ATTORNEYS FOR APPELLANTS26 CERTIFICATE OF SERVICE
I hereby certify that on this the 2 nd day of December , 2015, a true and correct copy of the foregoing, Brief of Appell ants , was duly served via the following:

Rusty Phenix Phenix, Phenix and Crump 118 South Main St. Henderson, Texas 75653 (903) 657

- 3595 (903) 657

- 3598 (FAX) Counsel for James Jordan  Messenger
 Facsimile
 Certified Mail

– RRR
 First Class Mail
 Via Overnight
 Via E

- Service

_ /s/ Matthew Thigpen Matthew L. Thigpen27 CERTIFICATE OF COMPL IANCE Appellants , DEBRA DENT LEAL A/K/ A DEBBIE D. LEAL, AN D TANGO
TRANSPORT, INC., AND TANGO TRANSPORT, LLC

. , state that there are 5, 969
words contained in Appellant ’ s Brief. In determining the word count, counsel for Appellants relies on the word count stated on the botto m ruler in his Microsoft Word

document.

Respectfully submitted,
LADD & THIGPEN, P.C.

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

- 7211 (903) 705

- 7221 (FAX)
ATTORNEYS FOR APPELLANTS