IN THE SUPREME COURT OF TEXAS
`444444444444
`NO. 13-0978
`444444444444
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`JLG TRUCKING, LLC, PETITIONER,
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`v.
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`LAUREN R. GARZA, RESPONDENT
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`4444444444444444444444444444444444444444444444444444
`ON PETITION FOR REVIEW FROM THE
`COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS
`4444444444444444444444444444444444444444444444444444
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`Argued February 26, 2015
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`JUSTICE LEHRMANN delivered the opinion of the Court.
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`This case requires us to review the trial court’s exclusion of evidence on relevance grounds.
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`The plaintiff was involved in two car accidents approximately three months apart. After the second
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`accident, she sued the opposing driver in the first accident and alleged that this collision caused her
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`injuries. The defendant sought to present two alternative defensive theories. First, the defendant
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`presented expert testimony that the plaintiff’s injuries were degenerative and thus not trauma-related
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`at all. Alternatively, the defendant contended that the second accident caused her injuries. On the
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`plaintiff’s pretrial request, and because of the lack of expert testimony supporting the defendant’s
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`alternative theory, the trial court excluded all evidence of the second accident on relevance grounds.
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`The trial court rendered judgment on the jury’s verdict for the plaintiff, and the court of appeals
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`affirmed. We hold that evidence of the second accident was relevant to the central issue of whether
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`the defendant’s negligence caused the plaintiff’s damages. We further hold that the trial court
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`committed harmful error in excluding the evidence, and particularly in refusing to allow cross-
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`examination of the plaintiff’s expert on the subject. Accordingly, we reverse the court of appeals’
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`judgment and remand the case for a new trial.
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`I. Background
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`On July 16, 2008, Lauren Garza was traveling south on U.S. Highway 83 in Zapata County
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`when an 18-wheeler driven by a JLG Trucking, LLC employee rear-ended her truck. An ambulance
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`was called to the scene but did not transport Garza to the hospital. Instead, Garza testified that her
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`aunt took her to a nearby emergency clinic where x-rays were taken, although the record contains
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`no medical records from the clinic regarding that visit. Five days later Garza saw an orthopedic
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`surgeon, Dr. Guillermo Pechero, complaining of neck and back pain. An x-ray showed some
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`straightening of the lordotic curve, which Dr. Pechero concluded was associated with muscle spasms
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`in the neck. Dr. Pechero prescribed physical therapy, which Garza underwent for roughly eleven
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`weeks.
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`On October 9, 2008, shortly after ceasing physical therapy, Garza was involved in a second
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`car accident. She was taken by ambulance from the scene of the accident to a hospital on an
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`immobilization board with a hard collar to prevent movement in her neck. At the hospital, Garza
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`complained of pain in her head, neck, and chest. On October 31, Garza returned to Dr. Pechero for
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`a follow-up visit, complaining of continuous pain in her neck that radiated into her shoulders. Dr.
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`Pechero ordered an MRI, which revealed that Garza had two herniated discs in her neck. Dr.
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`Pechero began a conservative treatment of primarily medication in hopes of avoiding surgery, but
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`a March 2009 nerve study revealed that a nerve at the site of the herniations had become compressed,
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`and a second MRI in August 2011 showed two additional herniated discs in her neck. Garza
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`underwent spinal fusion surgery in January 2012. The surgery was successful, and at the time of trial
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`Garza was “doing well.” However, Garza lives with a scar on her neck, reduced neck mobility, the
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`permanent presence of hardware from the surgery, and the possibility of future surgery.
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`Garza sued JLG, alleging that the employee driver’s negligence proximately caused her
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`injuries and seeking damages for past and future medical expenses, loss of earning capacity, physical
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`pain, mental anguish, physical impairment, and disfigurement. Garza’s treating physician, Dr.
`1
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`Pechero, served as her expert witness to testify that the July 2008 accident caused the herniated discs.
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`JLG designated Dr. Bruce Berberian, a neuroradiologist, as its expert witness to testify that Garza
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`was suffering from degeneration of her discs, and not a trauma-related injury at all. JLG also
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`intended to introduce evidence of the October accident as an alternative cause of Garza’s injuries,
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`although JLG did not designate an expert to testify in support of that theory.
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`Garza filed a pretrial motion to exclude any evidence of the second accident on the grounds
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`that such evidence was not relevant, or that its probative value was substantially outweighed by the
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`unfair prejudice or confusion it would cause the jury, because “there is no causal connection between
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`the injuries [Garza] is complaining of and the subsequent collision.” After a hearing, the trial court
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`granted Garza’s motion to exclude.
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`1
` Garza named the employee as a defendant, but it appears that he was never served with citation. Garza also
`asserted claims against JLG for negligent entrustment and gross negligence, but those claims were not submitted to the
`jury.
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`3
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`Dr. Pechero testified by deposition at trial that the July accident caused Garza’s injuries. He
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`noted that Garza exhibited neck pain after that accident and that the October MRI revealed injuries
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`consistent with a rear-end collision. One portion of the deposition played to the jury contained the
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`following exchange between Dr. Pechero and Garza’s counsel:
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`Q.
`correct?
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`Now, up to this point in the treatment of her you took a history,
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`A.
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`Correct.
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`And Lauren indicated to you that she had not had any or been
`Q.
`involved in any other accidents other than the one from July -- July 16th of 2008; is
`that correct?
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`A.
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`I don’t think I asked her one way or the other on that.
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`. . . .
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`Q.
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`A.
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`Q.
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`A.
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`Q.
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`A.
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`injury.
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`Well, you took a history, correct?
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`Correct.
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`All right. And let’s take a look at the July 21st note real quick.
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`Okay. Are you referring to the October note, or the July note?
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`The July note.
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`Oh, okay. In the July note, she did not have any other history of
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`Taking the position that this testimony opened the door to questions concerning the second
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`accident, JLG renewed its objection to the exclusion of all mention or evidence of that accident. The
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`trial court upheld its earlier exclusion ruling, and JLG submitted an offer of proof as to the testimony
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`that would have been elicited from Dr. Pechero and the evidence that would have been presented in
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`support of the second accident as an alternative cause. JLG’s offer of proof included the police
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`report regarding the second accident, photos of Garza’s vehicle after the second accident, medical
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`records documenting Garza’s emergency treatment after that accident, and Dr. Pechero’s testimony
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`that he had not reviewed those medical records. Garza responded with an offer of proof consisting
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`of Dr. Pechero’s testimony that he had relied on Dr. Berberian’s testimony that the second accident
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`did not cause Garza’s injuries to rule out that possibility. The jury found that JLG’s employee’s
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`negligence proximately caused the July accident and awarded her $1,166,264.48 in damages.2
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`JLG appealed the trial court’s judgment on the verdict, arguing that evidence of the second
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`accident was relevant and that its exclusion amounted to harmful error because it prevented JLG
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`from holding Garza to her burden of proving that JLG caused her injuries. The court of appeals
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`affirmed, holding that the trial court did not abuse its discretion in excluding evidence of the second
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`accident because “expert testimony would be required to establish any . . . causal link between the
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`second collision and Garza’s injuries.” __ S.W.3d __, __ (Tex. App.—San Antonio 2013).
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`II. Analysis
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`We review a trial court’s exclusion of evidence for an abuse of discretion. Interstate
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`Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001). Erroneous exclusion of evidence
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`is reversible only if it probably resulted in an improper judgment. Id.; TEX. R. APP. P. 44.1(a)(1).
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`2
` The jury awarded $108,135.48 for past medical expenses, $110,000.00 for future medical expenses,
`$583,693.00 for future loss of earning capacity, $42,048.00 for past physical pain, $252,288.00 for future physical pain,
`$5,000.00 for past physical impairment, $57,600.00 for future physical impairment, and $7,500.00 for future
`disfigurement. The jury awarded $0 for past loss of earning capacity, past and future mental anguish, and past
`disfigurement.
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`In this case, the disputed evidence was excluded as irrelevant, and so the rules of evidence governing
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`relevance are the starting point of our analysis.
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`A. Evidence of the Second Accident Is Relevant to the Issue of Causation
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`Rule 401 broadly defines relevant evidence to include “evidence having any tendency to
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`make the existence of any fact that is of consequence to the determination of the action more
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`probable or less probable than it would be without the evidence.” TEX. R. EVID. 401. Evidence that
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`is not relevant is inadmissible, while relevant evidence is admissible unless otherwise excluded by
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`law. TEX. R. EVID. 402. Relevance also governs the scope of cross-examination in Texas, as the
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`rules allow witnesses to be cross-examined “on any matter relevant to any issue in the case.” TEX.
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`R. EVID. 611(b). And it is well established that “any fact which bears upon the credit of a witness
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`would be a relevant fact, . . . whether it goes to his indisposition to tell the truth, his want of
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`opportunity to know the truth, his bias, interest, want of memory, or other like fact.” Evansich v.
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`Gulf, C. & Santa Fe R.R. Co., 61 Tex. 24, 28 (1884). Finally, relevant evidence “may be excluded
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`if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the
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`issues, or misleading the jury.” TEX. R. EVID. 403.
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`JLG argues that evidence of the second accident is relevant to the causation element of
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`Garza’s negligence claim. We agree. Establishing causation in a personal injury case requires a
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`plaintiff to “prove that the conduct of the defendant caused an event and that this event caused the
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`plaintiff to suffer compensable injuries.” Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499
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`(Tex. 1995). For example, when an accident victim seeks to recover medical expenses, she must
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`show both “what all the conditions were” that generated the expenses and “that all the conditions
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`were caused by the accident.” Guevara v. Ferrer, 247 S.W.3d 662, 669 (Tex. 2007). Further,
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`“expert testimony is necessary to establish causation as to medical conditions outside the common
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`knowledge and experience of jurors.” Id. at 665. Finally, we have held that “if evidence presents
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`‘other plausible causes of the injury or condition that could be negated, the [proponent of the
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`testimony] must offer evidence excluding those causes with reasonable certainty.’” Transcontinental
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`Ins. Co. v. Crump, 330 S.W.3d 211, 218 (Tex. 2010) (quoting Merrell Dow Pharm., Inc. v. Havner,
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`953 S.W.2d 706, 720 (Tex. 1997) (alteration in Crump) (emphasis in Crump omitted)); see also
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`Harris v. Belue, 974 S.W.2d 386, 393–94 (Tex. App.—Tyler 1998, pet. denied) (rejecting the
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`argument that the plaintiff failed to negate other probable causes of her injury in light of the lack of
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`factual support in the record for those proposed causes).
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`In this case, Garza sought to prove that the negligence of JLG’s employee caused the July
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`accident. She also sought to prove by expert testimony from Dr. Pechero that this accident caused
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`the herniated discs in her neck along with all of the associated pain, medical expenses, loss of
`3
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`earning capacity, impairment, and disfigurement. JLG sought to undermine Garza’s theory and Dr.
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`Pechero’s testimony by presenting evidence of the October 2008 accident as an alternative cause of
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`those injuries. Garza argues that the record does not support a connection between the October
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`accident and her injuries, rendering the evidence properly excluded.
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`Garza relies in part on Farmers Texas County Mutual Insurance Co. v. Pagan, 453 S.W.3d
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`454 (Tex. App.—Houston [14th Dist.] 2014, no pet.). In Pagan, the plaintiff alleged that various
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`3
` Garza did not seek to recover medical expenses associated with her emergency treatment immediately after
`the second accident.
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`neck and shoulder injuries were caused by a March 2008 car accident. Id. at 458. The defendant
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`sought to introduce evidence of an April 2009 “horse incident,” which the trial court excluded. Id.
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`at 459–60. The court of appeals affirmed, holding that the trial court “could reasonably conclude
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`that informing the jury about a horse incident with no apparent connection to the lasting injuries at
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`issue in this case would confuse the issues and mislead the jury.” Id. at 463. The court noted in
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`pertinent part that (1) the interrogatory response in which Pagan identified the horse incident did not
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`mention any resulting neck or shoulder injuries, (2) the medical records associated with the incident
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`noted only “contusions” resulting from the fall, and x-rays showed that her spine and shoulders were
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`normal, and (3) records from Pagan’s family doctor indicating that she complained of neck and
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`shoulder pain at a visit after the horse incident did not reference the incident itself. Id.
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`Regardless of whether Pagan was correctly decided, which we need not address, the evidence
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`of a connection between the proposed alternative cause and the plaintiff’s injuries that the court
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`found lacking in Pagan is present in this case. JLG’s offer of proof indicates that, as a direct result
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`of the second accident, Garza was transported to a hospital on an immobilization board and
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`constrained with a hard c-collar around her neck, she complained of neck pain once she arrived, and
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`she returned to Dr. Pechero three weeks later for the first time since the conclusion of her physical
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`therapy with complaints of continuous pain in her neck radiating into her shoulder. At that time, the
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`MRI revealed the herniated discs. The circumstances surrounding the second accident and its
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`4
` The evidence of the facts surrounding that incident is inconsistent. Some evidence indicates that Pagan fell
`off a horse, other evidence indicates that she was “trampled,” and still other evidence indicates that she fell while leading
`the horse on foot. 453 S.W.3d at 459–60.
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`aftermath provide the necessary factual support to present the second accident as a “plausible cause”
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`of Garza’s injuries.5
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`Significantly, the exclusion of the second accident curtailed JLG’s ability to probe Dr.
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`Pechero’s conclusions about causation by asking him to explain why he discounted the second
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`accident as an alternative cause. JLG’s offer of proof shows that, in formulating his opinion, Dr.
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`Pechero did not review the records from Garza’s emergency treatment after the second accident,
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`which included the statements reflecting that Garza was experiencing neck pain in its wake.
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`According to Garza’s responsive offer of proof, Dr. Pechero’s only explanation for ruling out the
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`second accident as the cause of the herniations was that he relied on Dr. Berberian’s testimony to that
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`effect. But Dr. Berberian concluded that neither accident caused Garza’s injuries, calling into
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`question the credibility of the methods underlying Dr. Pechero’s approach. Cf. E.I. du Pont de
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`Nemours & Co. v. Robinson, 923 S.W.2d 549, 559 (Tex. 1995) (upholding the exclusion of expert
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`testimony when the expert failed to “carefully consider [and rule out] alternative causes”); see also
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`TEX. R. EVID. 607 (“The credibility of a witness may be attacked by any party . . . .”). JLG could not
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`adequately cross-examine Dr. Pechero on those methods without discussing the improperly excluded
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`evidence.
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`5
` Certainly, expert testimony in support of the alternative cause would lend support to its plausibility. And in
`some cases, expert testimony may in fact be necessary to elevate a proposed alternative cause from theoretically possible
`to plausible. But this is not that case.
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`6
` JLG did not move to exclude Dr. Pechero’s testimony in the trial court. We cite Robinson because it highlights
`the significance of alternative causes when a plaintiff must prove causation by expert testimony.
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`B. The Court of Appeals Erroneously Conflated Relevance and Evidentiary Sufficiency
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`The court of appeals held that the trial court correctly excluded evidence of the second
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`accident because “no expert testimony was proffered to establish that the second collision caused
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`any of Garza’s injuries.” __ S.W.3d at __. As support for its holding, the court of appeals relied on
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`a line of cases addressing the necessity of expert medical testimony to prove causation in the
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`personal-injury context. As discussed below, in doing so the court of appeals conflated the concepts
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`of relevance and evidentiary sufficiency and improperly shifted the burden of proof to the defendant.
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`Principal among the cases cited by the court of appeals was Guevara v. Ferrer, 247 S.W.3d
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`662 (Tex. 2007). That case, like this one, involved a car accident that a jury found the defendant
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`caused. Id. at 663, 665. The plaintiff, who had a complicated medical history that included
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`hypertension, heart disease, and kidney failure, complained of stomach pains and received
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`emergency treatment, including abdominal surgery, immediately after the accident. Id. at 663–64.
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`Following that surgery, he spent three-and-a-half months in the hospital, two weeks in a continuing
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`care facility, and two more weeks in another medical facility. Id. at 664. His family sought to
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`recover all the medical bills generated by his stays at the hospital and both facilities, which exceeded
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`$1 million, but did not present expert medical evidence to prove that the accident caused those
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`expenses to be incurred. Id. at 664–65. We held that, while “the evidence [was] legally sufficient
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`to support a finding that some of his medical expenses [such as those associated with his post-
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`accident treatment in the emergency room] were causally related to the accident,” it was “not legally
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`sufficient to prove what the conditions were that generated all the medical expenses or that the
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`accident caused all of the conditions and the expenses for their treatment.” Id. at 669–70 (emphases
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`added).
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`In Guevara, we applied the well-established general rule, cited above, that “expert testimony
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`is necessary to establish causation as to medical conditions outside the common knowledge and
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`experience of jurors.” Id. at 665 (citing cases). And we did so in the context of considering the legal
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`sufficiency of non-expert evidence to support a finding of causation. But we did not hold that the
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`lack of expert testimony rendered any of the evidence irrelevant or otherwise admissible. In fact,
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`relevance was not at issue in Guevara. In this case, although the court of appeals was purporting
`7
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`to analyze relevance, in effect it was improperly analyzing whether the evidence was legally
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`sufficient to support a finding that the second accident caused Garza’s injuries. But JLG did not
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`have the burden to prove causation; Garza did. It was Garza’s burden to prove that the first accident
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`caused her injuries, and, as discussed above, the record in this case sufficiently demonstrates that the
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`second accident is at least relevant to that inquiry even without an expert proponent.
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`Further, JLG did not rule out the relevance of the second accident by presenting expert
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`testimony that Garza’s injuries were degenerative and not trauma-induced. Parties may plead
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`conflicting claims and defenses in the alternative so long as they have a “reasonable basis in fact
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`[and] law.” Low v. Henry, 221 S.W.3d 609, 615 (Tex. 2007). In turn, parties may present evidence
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`of alternative, and even inconsistent, theories of relief, leaving to the jury to “choose the theory that
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`it believes based upon its resolution of the conflicting evidence.” Wilson v. Whetstone, No. 03-08-
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`7
` We did confirm in Guevara that “evidence of temporal proximity . . . between an event and subsequently
`manifested conditions” is not irrelevant to causation, although “temporal proximity . . . does not, by itself, support an
`inference of medical causation.” 247 S.W.3d at 667–68.
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`00738-CV, 2010 WL 1633087, at *10 (Tex. App.—Austin April 20, 2010, pet. denied) (mem. op.)
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`(holding that the plaintiff’s claim and evidence of the parties’ acquiescence to the alleged property
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`boundary line were not fatal to her adverse possession claim, even assuming that the claims were
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`mutually exclusive); see also In re Arthur Andersen LLP, 121 S.W.3d 471, 482 n.32 (Tex.
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`App.—Houston [14th Dist.] 2003, orig. proceeding) (noting that a defendant could deny liability for
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`conspiracy while simultaneously alleging that third parties were also liable for conspiracy). But the
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`burden still falls on the plaintiff to establish the elements of her cause of action.
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`In this case, as explained above, the burden was on Garza, the plaintiff, to establish both that
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`JLG caused the July 2008 accident and that this accident caused her injuries. Part of that burden was
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`to exclude with reasonable certainty other plausible causes of her injuries supported by the record.
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`Crump, 330 S.W.3d at 218. JLG’s decision to present Dr. Berberian’s testimony in support of its
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`theory that Garza’s injuries were degenerative—which the jury apparently found unpersuasive—did
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`not relieve Garza of that burden. The defendant’s responsibility “is not that of proving, but the
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`purely negative one of repelling or making ineffective the adversary’s attempts to prove.” James B.
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`Thayer, The Burden of Proof, 4 HARV. L. REV. 45, 56 (1890). In its efforts to repel Garza’s attempts
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`to prove her case, JLG was entitled to present evidence of the second accident to the jury, which was
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`relevant to Garza’s theory of causation irrespective of Dr. Berberian’s testimony. The trial court
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`therefore abused its discretion in excluding that evidence.
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`C. Reversible Error
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`The trial court’s error in excluding evidence of the second accident is reversible only if it
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`probably caused the rendition of an improper judgment. TEX. R. APP. P. 44.1(a)(1). We have
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`declined to establish any “specific test” for determining whether evidentiary error resulted in an
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`improper judgment, but we have held that the appellate court must review the entire record,
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`“considering the state of the evidence, the strength and weakness of the case, and the verdict.”
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`Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871 (Tex. 2008) (internal quotation
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`marks and citation omitted). We explained in Sevcik that “if erroneously admitted or excluded
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`evidence was crucial to a key issue, the error was likely harmful.” Id. at 873. “By contrast,
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`admission or exclusion is likely harmless if the evidence was cumulative, or if the rest of the
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`evidence was so one-sided that the error likely made no difference.” Id. In this case, the evidence
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`of the second accident was crucial to whether JLG’s negligence caused Garza’s injuries, and the
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`harm in its exclusion was compounded by JLG’s curtailed cross-examination of Dr. Pechero.
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`Accordingly, we hold that the trial court’s exclusion of evidence regarding the second accident was
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`reversible error requiring a new trial.8
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`III. Conclusion
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`The trial court abused its discretion in excluding evidence of the second accident, which was
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`relevant to whether JLG’s negligence caused Garza’s damages. Accordingly, we reverse the court
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`of appeals’ judgment and remand the case to the trial court for a new trial in accordance with this
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`opinion.
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`8
` JLG did not contest on appeal the finding that its negligence caused the first accident. It asserted only that
`the erroneously excluded evidence tainted the findings as to the damages caused by that accident. However, because
`liability was contested in the trial court, both liability and damages must be remanded. Estrada v. Dillon, 44 S.W.3d 558,
`562 (Tex. 2001) (per curiam) (applying TEX. R. APP. P. 44.1(b)).
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`_________________________________
`Debra H. Lehrmann
`Justice
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`OPINION DELIVERED: April 24, 2015
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`14