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 115th District Court 

Upshur County, Texas 

Cause No. 588-12

Honorable Lauren Parish, Presiding Judge 

_________________________________________ 

OPENING BRIEF OF APPELLANTS, 

DEBRA DENT LEAL A/K/A DEBBIE D. 

LEAL, AND TANGO TRANSPORT, INC., 

AND TANGO TRANSPORT, LLC. 

_________________________________________ 

Matthew L. Thigpen 

Texas State Bar No. 24056425 

Norman R. Ladd, III. 

Texas State Bar No. 24041285 

223 S. Bonner Ave. 

Tyler, Texas 75702 

(903) 705-7211 

(903) 705-7221 (FAX) 

ATTORNEYS FOR APPELLANTS 

ORAL ARGUMENT REQUESTED 

ACCEPTED

12-15-00119-CV

TWELFTH COURT OF APPEALS

TYLER, TEXAS

12/2/2015 8:48:50 PM

Pam Estes

CLERK

 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 12/2/2015 8:48:50 PM PAM ESTES Clerk
ii

IDENTITY OF PARTIES AND COUNSEL

THE FOLLOWING IS A LIST OF ALL PARTIES TO THE TRIAL 

COURT’S ORDER APPEALED FROM, AND THE NAME AND ADDRESSES 

OF ALL TRIAL AND APPELLATE COUNSEL:

1. APPELLANTS-DEFENDANTS ARE DEBRA DENT LEAL A/K/A 

DEBBIE D. LEAL, AND TANGO TRANSPORT, INC., AND TANGO 

TRANSPORT, LLC.

2. TRIAL AND APPELLATE COUNSEL FOR APPELLANTSDEFENDANTS DEBRA DENT LEAL A/K/A DEBBIE D. LEAL, AND 

TANGO TRANSPORT, INC., AND TANGO TRANSPORT, LLC. IS

LADD & THIGPEN, PC, NORMAN R. LADD, III, AND MATTHEW L. 

THIGPEN, 223 S. BONNER AVE., TYLER, TEXAS 75702.

3. APPELLEE-PLAINTIFF IS JAMES JORDAN.

4. TRIAL AND APPELLATE COUNSEL FOR APPELLEE-PLAINTIFF, 

JAMES JORDAN IS PHENIX, PHENIX AND CRUMP, RUSTY 

PHENIX, 118 S. MAIN STREET, HENDERSON, TEXAS 75653.
iii

TABLE OF CONTENTS

PAGE

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

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

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

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

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

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

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

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

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

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

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

relevant evidence of pre-existing injury to JORDAN?.............11

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

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

deposition testimony of Dr. Ritesh Prasad and Dr. Charles 

Gordon?....................................................................................11
iv

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

during his Direct 

Testimony.............................................................21

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

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

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

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

INDEX OF AUTHORITIES

PAGE

Cases

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

TEXAS RULES OF EVIDENCE

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

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

Texas Rules of Evidence § 403...........................................10, 15, 21
1

STATEMENT OF THE CASE

1

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

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

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

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

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

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

JORDAN asserted negligence against LEAL while acting within the course 

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

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

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

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

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

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

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

Furthermore JORDAN alleged Respondeat Superior complaining of TANGO 

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

 

1

“CR” refers to the volume and page of the Clerk’s Record. “RR” refers to the volume and page of the transcribed 

hearing in the Reporter’s Record. “SR” refers to the volume and page of the transcribed hearing in the Reporter’s 

Record entitled Hearing on Defendant’s Objections, which was supplemented during this appeal.
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 granted JORDAN’S Motion in Limine, 

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

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

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

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

Prasad. CR., P. 741.

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

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

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

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

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

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

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

testimony to be included at the time of Trial.

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

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

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

ruling from six (6) days prior. RR Volume 3, P. 11, LL. 17-24.
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 conclusion of this trial, the Jury rendered its verdict, wherein 

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

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

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

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

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

operation of law. CR., P. 765.

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

TANGO asserts that had the Trial Court allowed introduction of the preexisting 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

ISSUES PRESENTED

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

relevant evidence of pre-existing injury to JORDAN?

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

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

the deposition testimony of Dr. Ritesh Prasad and Dr. 

Charles Gordon?

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

during his Direct Testimony.
5

STATEMENT OF FACTS

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

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

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

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

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

work while he healed from said injuries.

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

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

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

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

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

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

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

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

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

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

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

such evidence to be admitted, but later excluded any evidence or testimony related 
6

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

physician related to the impact on their opinions.
7

SUMMARY OF THE ARGUMENT

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

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

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

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

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

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

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

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

admitted. 

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

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

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

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

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

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

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

JORDAN had no previous injury history, which is counter to his sworn testimony. 
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 Trial 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 without reference to guiding rules or principles. Caffe Ribs, Inc. v. State,

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

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

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

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

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

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

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

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

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

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

decision that are suggested by the record or urged by the parties. Id.
10

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

complaining party must demonstrate that the judgment turns on the particular 

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

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

reverse a judgment because a trial court erroneously excluded evidence when the 
11

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

the case. Id. 

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

relevant evidence of pre-existing injury to JORDAN?

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

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

the deposition testimony of Dr. Ritesh Prasad and Dr. 

Charles Gordon?

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

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

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

the evidence.” 

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

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

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

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

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

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

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

(Tex.App.—Corpus Christi, 1992, no pet).
12

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

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

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

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

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

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

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

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

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

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

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

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

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

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

accident caused identical injuries to JORDAN. 

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

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

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

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

in determining the truth or falsity of any material fact.” Montgomery v. State, 810 
13

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

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

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

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

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

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

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

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

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

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

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

Amended Answer, CR., P. 79. 

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

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

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

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

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

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

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

evidence would be not admissible at trial.
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.App., 2004); Montgomery v. State, 810 S.W.2d 372, 376 

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

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

(Tex.App.—El Paso, 1995, pet. ref’d).

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

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

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

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

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

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

denied). 

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

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

plaintiff must then exclude that cause with reasonable certainty. Transcontinental 

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

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

ticket to admission of evidence,” which must still meet admissibility requirements 
15

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

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

Cir.1998). 

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

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

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

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

applies equally to defense expert witness testifying about alternative causes of 

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

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

defensive theories regarding alternative causes need not be established “within 

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

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

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

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

more than conjecture....).

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

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

However, a week later when opening statements were commenced, JORDAN reurged its relevance argument as to any evidence of a pre-existing injury, including
16

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

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

expert opinion as to causation. 

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

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

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

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

22.

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

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

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

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

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

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

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

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

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

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

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

a pre-existing injury to JORDAN, but as to the chronic nature of such injury or
17

anything related to comparative negligence, the Court sustained the relevance

objection.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the same location as those made the basis of the trial in question.
18

LEAL and TANGO further sought in to include sworn deposition testimony

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

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

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

on the basis of relevance. 

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

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

11. Q. Okay. So Mr. Jordan comes in in October of 

12. 2010 and he tells you that you've had a -- that he --

13. that he's been involved in a wreck, correct?

14. A. Correct.

15. Q. At that time -- you referred to that as his 

16. history?

17. A. That's correct.

18. Q. Did Mr. Jordan ever refer to a previous 

19. accident he had been in?

20. A. No, he didn't.

21. Q. Okay. Did -- are you aware that he was in 

22. an accident in 2002?

23. A. No, I wasn't.

24. Q. Are you aware of any injuries that resulted 

25. from that accident?

1. A. None that he described to me.

2. Q. Okay. So those -- that MRI that was taken 
19

3. in 2010, that's really the first photo evidence we 

4. have of what Mr. Jordan's condition is?

5. A. That's correct. When I saw him, I -- he --

6. specifically I wrote down that he denies any neck 

7. pain or back pain prior to the motor vehicle 

8. accident. That would mean in the last couple of 

9. years prior to the motor vehicle accident and that's 

10. what the patient says and that's all I can go by, is 

11. their history, right.

12. Q. And when -- you said earlier that you can --

13. can only go by what a patient says. So if the 

14. patient doesn't tell you everything --

15. A. Sure.

16. Q. -- you don't know everything?

17. A. Absolutely.

18. Q. Would that affect your opinion?

19. A. Sure.

CR, P. 741.2

With regards to Dr. Gordon, the deposition testimony that was originally

allowed to be offered was the following:

24. Q. Would it be, then, fair to assume that on your

25. first visit with Mr. Jordan, you were unaware that he'd

1. been in an accident in 2002?

 

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

76-77,ll. 11-19
20

2. A. The accident that I was aware of was the one

3. we've been discussing from 2010.

4. Q. Right. But you weren't aware that he'd been

5. in a vehicle -- a motor vehicle accident in 2002?

6. A. That's correct.

7. Q. So you would have no idea whether or not he

8. had any reoccurring back pain or leg pain from that

9. accident?

10. A. That's correct.

CR, P. 741.3

Had the Court not changed its ruling on the date of trial, LEAL and TANGO 

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

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

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

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

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

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

Court abused its discretion because the probative value was not substantially

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

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

 

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

50-51,ll. 24-10.
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 as to the medical condition resulted in the rendition of an improper 

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

following question; 

Question: Okay. Now up until October the 1st during this time that you last 

worked for New Waverly up until October the 1st when this 

wreck happened did you have any problem with your back?. 

Answer: No, sir.

Question: From 2006 when you began working with New Waverly again 

up until the time this wreck happened did you have any physical

problem that prohibited you from working? 

Answer: No, sir.

Question: Do you ever remember even missing any time from work?

Answer: No, Sir.

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

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

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

related to the time period of the case, being the 2010-2012 time frame. However, as 
22

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

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

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

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

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

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

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

able to go back and work and I....

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

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

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

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

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

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

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

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

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

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

the preexisting injuries from 2002, and the treatment of such injuries. JORDAN 
23

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

he stated the following:

1. That there had never been a time period in which JORDAN was unable 

to work, and

2. That he did not remember even missing any time from work.4

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

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

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

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

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

a period of several months. 

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

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

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

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

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

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

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

 

4 Again, the series of questions included different time frames, being during his time off from New Waverly, then 

from 2006 to the date of the accident. The question related to missing work did not have any time period.
24

to the inclusions of the evidence related to the 2002 accident. RR, Volume 4, P. 90-

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

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

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

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

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

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

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

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

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

CONCLUSION

The Trial Court admitted found the evidence in question relevant on 

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

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

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

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

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

discretion by excluding relevant evidence.
25

PRAYER

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

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

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

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

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

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

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

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

Respectfully submitted,

LADD & THIGPEN, P.C.

/s/ Matthew Thigpen

Matthew Thigpen

Texas State Bar No. 24056425

Norman R. Ladd, III.

Texas State Bar No. 24041285

223 S. Bonner Ave.

Tyler, Texas 75702

(903) 705-7211

(903) 705-7221 (FAX)

ATTORNEYS FOR 

APPELLANTS
26

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 Appellants, 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. Thigpen
27

CERTIFICATE OF COMPLIANCE

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

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

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

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

document.

Respectfully submitted,

LADD & THIGPEN, P.C.

/S/ Matthew Thigpen

Matthew Thigpen

Texas State Bar No. 24056425

Norman R. Ladd, III.

Texas State Bar No. 24041285

223 S. Bonner Ave.

Tyler, Texas 75702

(903) 705-7211

(903) 705-7221 (FAX)

ATTORNEYS FOR 

APPELLANTS