ERIC PROFACA AND KRISTAAN DALE, Appellants v. BREEZE COACH LEASING, INC., TMARE, LLC, AND JOSEPH LYES, Appellees
NO. 01-24-00078-CV
Court of Appeals For The First District of Texas
Opinion issued July 15, 2025
On Appeal from the 215th District Court, Harris County, Texas, Trial Court Case No. 2020-19954
MEMORANDUM OPINION
This personal injury appeal arises from a single-vehicle bus accident on Loop 610 in Houston. After leaving Dallas in the predawn hours, the bus somehow ran off the road and crashed into a concrete barrier as it attempted to merge onto Loop 610. The crash damaged the bus and threw the sleeping passengers around the inside of
Passengers Eric Profaca and Kristaan Dale filed suit. They persuaded a jury that the driver was negligent and won compensatory damages against the driver‘s employer, Breeze Coach Leasing, Inc. But the jury‘s award of combined damages totaling nearly $1.9 million was less than they believed was appropriate, so they appealed.
Profaca and Dale assert three issues on appeal. In the first two issues, they argue that the trial court gutted their case by excluding critical evidence. In the third issue, they argue that the jury charge misworded the definition of physical impairment.
Although the challenges to the trial court‘s evidentiary rulings have considerable force, we hold that the rulings did not cause an improper judgment. Appellants tried their case well enough to obtain a finding that the driver‘s negligence proximately caused the injuries they sustained in the bus crash. The trial fell short of perfect, but they have not established harm on this record. We further hold that the charged definition of physical impairment was correct. Accordingly, we affirm.
Tyler Marenyi is an electronic dance artist who performs concerts across the country under the stage name DJ Nghtmre. In December 2019, DJ Nghtmre embarked on the Portal Tour, which included performances in Dallas and Houston in February 2020, just before the COVID-19 pandemic. DJ Nghtmre formed TMARE, LLC to facilitate the tour. TMARE hired Joseph Lyes as the tour manager. The tour employed Profaca as a master electrician and Dale as the production manager. Profaca, Dale, and other members of the production crew traveled to each of DJ Nghtmre‘s performances.
The tour transported its equipment with an 18-wheeler truck, but it transported DJ Nghtmre and the crew in buses. TMARE leased two tour buses from Breeze for use on the Portal Tour: one bus transported DJ Nghtmre and the second bus transported eleven crew members, including Dale and Profaca. Breeze also provided drivers for the buses, and it hired Cynthia Lopez to drive the crew bus.
TMARE and Breeze entered into a written coach lease agreement concerning the buses.1 Relevant here, the agreement provided that TMARE would assume certain duties, including “the Driver‘s compliance” with federal regulations:
6. Lessee shall neither use nor allow the Coach(s) to be used for illegal purposes or otherwise subject the Coach(s) to confiscation. Lessee agrees not to permit the leased Coach(s)
hereunder to be used in violation of any Federal, State, or Municipal statute, law, ordinance, rule or regulation applicable to the operation of such coach(s). . . . ****
10. Lessor shall be solely responsible for the Coach‘s compliance with Federal Motor [C]arrier Regulations in response to U.S. Department of Safety implementation of the Motor Carrier Safety Act of 1984. . . . Lessee shall be solely responsible for the Driver‘s compliance with Federal Motor Carrier Regulations in response to U.S. Department of Safety implementation of the Motor Carrier Safety Act of 1984.
(Emphasis added.) One such regulation prohibits commercial drivers from operating a commercial vehicle whenever illness or the like would impair driving ability:
§ 392.3 Ill or fatigued operator.
No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver‘s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle. However, in a case of grave emergency where the hazard to occupants of the commercial motor vehicle or other users of the highway would be increased by compliance with this section, the driver may continue to operate the commercial motor vehicle to the nearest place at which that hazard is removed.
Lyes, the tour manager, emailed a contact person at Breeze, passing on what he had heard about the driver:
Hey Jennifer
We need to get Cynthia [Lopez] off the road after Houston, she isn‘t healthy enough to carry on.
Kris our PM is worried for her health and the guys on the bus. She‘s vomiting on the side of the road and hasn‘t told me about it.
How should we proceed? It needs to happen after Houston.
Thanks
Joe Lyes
Tour Manager | NGHTMRE & GUD VIBRATIONS
In response, Breeze‘s contact person expressed serious concern:
OMG! Why hasn‘t she told anyone out there or called me?! That‘s not safe.
Can you email me your schedule for the remainder of the tour. I will work on this now.
Various witnesses described Lopez during the days leading up to the wreck as “just not herself,” “lethargic,” and “really sick.” In the moments just before leaving Dallas, Lopez was seen “asleep in the rear lounge of the bus with her hair on the
On the other hand, other reports indicated that Lopez felt well enough to drive to Houston, and no eyewitness actually saw her vomit. Whatever her ailment, Lopez had been well enough to drive the bus safely for eleven days leading up to the Dallas show. Details about her condition remain murky because she did not live to testify and because so many of the reports about her condition were hearsay.
On the morning of February 29, 2020, after leaving Dallas late, Lopez arrived in Houston with eleven crew members asleep in the bus. The weather was clear. Lopez exited Interstate 45 for Loop 610 driving just under 35 miles per hour. While attempting to merge onto Loop 610, she crashed into a stationary concrete barrier on the side of the road. The bus came to a stop on top of the barrier.
Police and paramedics arrived on the scene, stabilized the bus, and removed Lopez and the crew members from the bus. Profaca, Dale, and several other crew members claimed injuries from the crash. A police officer who responded to the crash reported that the bus “was attempting to merge” onto the highway “when the driver‘s door came open.” Lopez “attempted to pull to the side of the road to fix the
Profaca and Dale filed suit against Breeze, and they later added claims against TMARE and Lyes. Profaca and Dale asserted claims for negligence, gross negligence, negligence per se, and several direct negligence claims, including negligent training, negligent supervision, negligent entrustment, and negligent maintenance or inspection. Breeze admitted in its answer that Lopez was its employee and acting in the course and scope of her employment when the bus crashed. Prior to trial, several other crew members who were allegedly injured in the bus crash intervened in the lawsuit as plaintiffs, and several parties affiliated with the Portal Tour were added as defendants.3 The only parties remaining for trial, however, were Profaca and Dale as plaintiffs and Breeze, TMARE, and Lyes as defendants.
Plaintiffs and Intervenors have absolutely no admissible evidence the driver was impaired by illness or that her alleged illness proximately caused the crash. The driver‘s alleged illness and/or death is irrelevant or, in the alternative, the probative value is substantially outweighed by the danger of unfair prejudice and/or misleading the jury.
Breeze made the same argument in its motion in limine.
But the defendants went beyond merely requesting that counsel approach the bench before discussing Lopez‘s illness and death. They asked for outright exclusion. The trial court granted it. The court excluded all evidence of driver illness and any mention of the federal regulation quoted above that addresses driver illness, including evidence that TMARE was contractually bound under the lease agreement to ensure Lopez‘s compliance with the regulation. See
Although these disputes first arose in the context of pretrial limine discussion, the trial court solidified its position and clarified that it was excluding the evidence: “The Court has made a decision. You can put it on the record all you want.” The
The trial court also excluded evidence from three testifying doctors that the bus crash caused Profaca and Dale‘s injuries. Two of the doctors testified that they had treated Profaca and Dale for numerous injuries after the bus crash.4 A third doctor, who created lifecare plans for but did not treat Profaca and Dale, testified about their past and future medical care costs. But when Profaca and Dale‘s counsel asked these doctors whether the injuries and related costs were caused by the bus crash, defense counsel objected on the ground of speculation. Outside the jury‘s presence, defense counsel argued that Profaca and Dale both had serious preexisting injuries which the doctors had not considered in reaching their expert opinions. The trial court sustained the objections.
Breeze filed a separate motion for directed verdict, which the trial court granted in part. The court directed a verdict for Breeze on Profaca and Dale‘s claims of gross negligence, negligence per se, and negligent training, supervision, entrustment, maintenance, and inspection. But the court allowed the case to go to the jury on a question about simple negligence by Lopez.
At a charge conference, the parties raised objections to various parts of the charge. The trial court overruled all objections.
The charge submitted to the jury asked about liability only in Question 1: “Did the negligence, if any, of Cynthia Lopez proximately cause the occurrence in question?”5 The charge instructed the jury not to consider any evidence about training, supervision, or entrustment, or about bus maintenance or inspection. The jury answered “Yes” to the liability question.
The jury then answered two more questions about actual damages for Profaca and Dale, respectively. During closing arguments, Profaca and Dale requested awards of about $30 million each. Breeze did not dispute that they were injured in
In Question 2, the jury found that Profaca had sustained $1,008,800 in damages:
- Medical care in the past - $262,500
- Medical care in the future - $202,800
- Pain in the past - $90,000
- Pain in the future - $25,000
- Mental anguish in the past - $50,000
- Mental anguish in the future - $21,000
- Earning capacity in the past - $175,000
- Earning capacity in the future - $80,000
- Disfigurement in the past - $0
- Disfigurement in the future - $2,500
- Physical impairment in the past - $50,000
- Physical impairment in the future - $50,000
In Question 3, the jury found that Dale had sustained $878,023 in damages:
- Medical care in the past - $159,745
- Medical care in the future - $142,778
- Pain in the past - $75,000
- Pain in the future - $25,000
- Mental anguish in the past - $100,000
- Mental anguish in the future - $75,000
- Earning capacity in the past - $108,500
Earning capacity in the future - $62,000 - Disfigurement in the past - $2,500
- Disfigurement in the future - $2,500
- Physical impairment in the past - $50,000
- Physical impairment in the future - $75,000
The trial court signed a final judgment on the jury‘s verdict. The judgment stated that Breeze, as Lopez‘s employer, was liable to Profaca and Dale for the jury‘s damages awards. The judgment also assessed pre- and post-judgment interest and costs. The judgment also ordered that Profaca and Dale take nothing from TMARE and Lyes.
Profaca and Dale moved for a new trial. In their motion, they argued at length that the evidentiary rulings had seriously harmed their case against Breeze. They also argued that the court erred in granting directed verdicts for appellees and in submitting a jury charge that contained improper instructions. The motion was overruled by operation of law. See
Evidentiary Rulings
In their first two issues, Profaca and Dale contend that the trial court reversibly erred by excluding certain evidence.
A. Standard of Review
Appellate courts review a trial court‘s ruling to exclude evidence for an abuse of discretion. See Fleming v. Wilson, 610 S.W.3d 18, 21 (Tex. 2020); Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).
“Exclusion [of evidence] is likely harmless if the evidence was cumulative or if the rest of the evidence was so one-sided that the error likely made no difference in the judgment.” Gunn v. McCoy, 554 S.W.3d 645, 668 (Tex. 2018). But “even if the exclusion of evidence is crucial to a key issue, it is ‘likely harmful,’ not conclusively or per se harmful.” Id. We evaluate harm in light of the whole record. Id.; Tex. Dep‘t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000).
B. Exclusion of Evidence Concerning Liability
In their first issue, Profaca and Dale assert that the trial court erred in excluding evidence about three related topics:
- the illness of bus driver Lopez, who had been ill for days, who said she could make the trip from Dallas to Houston, and who then passed away shortly after the incident;
- the federal regulation (
49 C.F.R. § 392.3 ) that governs driver illness and fatigue as they pertain to driver impairment; and
the contract between Breeze and TMARE, in which TMARE promised Breeze to be “solely responsible” for driver compliance with federal motor carrier regulations.
They decry what they call “a series of devastating, erroneous evidentiary rulings that presented a woefully incomplete account of the bus crash.” As a result, they seek a new trial.
Appellees disagree with this legal analysis at every turn. In their view, “this case is about a 33.5 mph (at most) bus accident and Plaintiffs’ request for nearly $60 million in damages[.]” They contend that the evidentiary complaints are unpreserved, wrong on the merits, and defeated by the harmless error rule.
1. Preservation of Error
Appellees contend that Profaca and Dale did not preserve error on their first issue because they did not obtain additional rulings on their offers of proof. We disagree.
Profaca and Dale obtained definitive rulings excluding evidence concerning Lopez‘s illness, including the federal regulation and the TMARE-Breeze lease agreement. They then made several offers of proof. Contrary to appellees’ suggestion that Profaca and Dale should have gone further by obtaining an additional ruling after putting their offers on the record, no additional rulings were necessary.
To preserve error in the exclusion of evidence, a party must (1) attempt during the evidentiary portion of the trial to introduce the evidence; (2) if an objection is lodged, specify the purpose for which [the evidence] is offered and give the trial court reasons why the evidence is admissible; (3) obtain a ruling from the court; and (4) if the court rules the evidence inadmissible, make a record, through a bill of exceptions, of the precise evidence the party desires admitted.
Ulogo v. Villanueva, 177 S.W.3d 496, 501-02 (Tex. App.—Houston [1st Dist.] 2005, no pet.); see
To the extent that appellants needed to do anything further to preserve their complaints, they did so when, in response to the trial court‘s comment to “put it on the record all you want,” they stated that they would have to present their offers of proof, and the court replied, “Right. That‘s fine.” This colloquy set the stage for implicit rulings thereafter: any such offer of proof that came later and was not allowed in was implicitly being excluded. See
2. Admissibility and Harm
We next consider whether the exclusion of the evidence constituted error, and if so, whether the error caused harm.
a. Driver illness
The trial court excluded all evidence about the bus driver‘s illness. This excluded evidence included reports from crew members that Lopez had been ill before driving to Houston, as well as the email from Lyes to a Breeze representative concerning Lopez‘s reported illness.
Profaca and Dale forcefully contend that this evidence was relevant and admissible. They invoke Professor McCormick‘s famous phrase about the low bar for establishing mere relevance—namely, that a brick is not a wall. See Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994) (“As Professor McCormick succinctly put it, ‘a brick is not a wall.‘“) (quoting CHARLES T. MCCORMICK, HANDBOOK OF THE LAW OF EVIDENCE § 152 (West ed. 1954)). To illustrate this point, Profaca and Dale point to the JBS Carriers decision, in which the Texas Supreme Court framed the admissibility issue in terms of whether the evidence “provides insight” into relevant issues:
Evidence that a party to an accident was intoxicated or impaired is not, in and of itself, evidence that the party acted negligently in relation to the accident. However, such evidence is probative if it is relevant to a party‘s actions in conforming or failing to conform to an appropriate standard of care.
****
The same analysis applies to evidence of a mental health issue in negligence cases—it is relevant when other evidence supports a finding that the mental impairment contributed to the party‘s allegedly negligent actions. As with evidence of drug or alcohol usage, evidence of a mental health condition is not invariably relevant. But courts have held mental health evidence admissible when it provides insight into relevant issues in the case.
JBS Carriers, Inc. v. Washington, 564 S.W.3d 830, 836-37 (Tex. 2018) (citation omitted).
The supreme court found the evidence in JBS Carriers relevant to the person‘s vigilance, judgment, and reactions. Id. at 838 (quotation omitted). Other decisions strongly point the same way. See Adair v. Chapla, No. 09-21-00372-CV, 2024 WL 718714, at *12 (Tex. App.—Beaumont Feb. 22, 2024, pet. denied) (mem. op.) (“[E]ven if the person‘s impairment from a substance or combination of substances doesn‘t rise to a level of illegal intoxication, evidence that shows a driver was impaired when offered to explain why a driver was operating a vehicle in a manner relevant to a wreck is admissible under Rule 403.“); see also Kaminski v. Mayer, No. A-6580-06T1, 2008 WL 5204738, at *7-10 (N.J. Super. Ct. App. Div. Dec. 15, 2008) (per curiam) (upholding admissibility of evidence showing driver illness shortly before accident, especially where unwell driver passed away soon thereafter).
For this reason, excluding the evidence was not harmful. See Env‘t Processing Sys., L.C. v. FPL Farming Ltd., 457 S.W.3d 414, 426 (Tex. 2015) (“We need not address the admissibility of the settlement agreement, however, because the jury found in EPS‘s favor.“); Bartosh v. Gulf Health Care Ctr.-Galveston, 178 S.W.3d 434, 444 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (“Because Bartosh prevailed on the issue of Gulf Health‘s liability, the exclusion of this evidence could not be harmful error in relation to that issue.“).
b. Federal regulation about driver illness
The trial court also excluded evidence of a federal regulation concerning drivers who are impaired by illness. As quoted above, the federal regulation at issue provided that:
No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver‘s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.
But the same logic discussed above regarding evidence of Lopez‘s illness applies equally to the exclusion of evidence about Section 392.3. Even if we assume
Profaca and Dale maintain that Section 392.3 was relevant to the standard of care. And as a matter of fact, regulations often bear on the standard of care. See Reddic v. E. Tex. Med. Ctr. Reg‘l Health Care Sys., 474 S.W.3d 672, 676 (Tex. 2015) (per curiam) (“[W]e do not necessarily disagree with the proposition that applicable regulations in some instances might bear on or evidence a standard of care.“); Hernandez v. Nueces Cnty. Med. Soc‘y Cmty. Blood Bank, 779 S.W.2d 867, 871 (Tex. App.—Corpus Christi-Edinburg 1989, no writ) (“It is well-established that state health regulations, national standards, and organizational bylaws are admissible to define the standard of care customarily offered.“).
Nevertheless, Section 392.3 does not add a great deal to resolving the case. The primary issue is whether Lopez was negligent, not whether somebody else violated a regulation about driver impairment. A Georgia appellate court decision illustrates the point:
failure to follow federal regulations. Anthony‘s inattention or fatigue may have explained his failure to yield the right of way (and is a factor Parker vociferously argued to the jury here), but whether his fatigue violated a federal regulation is irrelevant. If the light was green at the time that Anthony approached and went through it, his relative fatigue or lack thereof (and whether such violated federal regulations) would be irrelevant, as he would have had the right of way to proceed through the intersection whether fatigued or not. If the light had been red, the violation of the federal regulation would similarly be irrelevant, as he would have been obligated to stop at the intersection regardless of whether he was also in violation of a federal regulation.The dispositive causal issue in this case is not whether Anthony was negligent in violating the Federal Motor Carrier Safety Regulations, but whether Anthony was negligent in running the red light. The proximate cause of the accident was the failure to yield the right of way, not the
The running of the red light, and not the violation of
c. Contract between Breeze and TMARE
The trial court also prevented Profaca and Dale from relying on the lease agreement between Breeze and TMARE to establish that TMARE and Lyes owed them a duty.6 Under the lease agreement, TMARE agreed to ensure that Lopez complied with applicable federal motor carrier regulations, including
The trial court‘s exclusion of the Breeze-TMARE lease agreement presents a somewhat different issue than we previously addressed. The harm analysis is
Perhaps for this reason, appellants do not claim to be third-party beneficiaries under the lease agreement. Rather, they claim to benefit from a tort duty arising out of a voluntary undertaking. That claim is unpersuasive. A negligent undertaking duty requires a showing of either reliance on or increased risk from a defendant‘s performance of services. Nall v. Plunkett, 404 S.W.3d 552, 555-56 (Tex. 2013); RESTATEMENT (SECOND) OF TORTS §§ 323-324A. This Court has taken care to enforce those requirements. See Garcia v. Kellogg Brown & Root Servs., Inc., No. 01-19-00319-CV, 2020 WL 3820426, at *10 (Tex. App.—Houston [1st Dist.] July 7, 2020, no pet.) (mem. op.); Bauer v. Gulshan Enters., Inc., 617 S.W.3d 1, 25-27 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) (op. on reh‘g). Those
If Profaca and Dale sought to apply the jury‘s findings as a basis for a judgment against TMARE, the contract might give them a right to relief. But they do not ask for that. Rather, they disagree with the jury‘s damage findings and want another trial against TMARE. But such a request cannot lead anywhere unless they can show TMARE owed a duty, and they have not shown one.
3. Allegations of Gross Negligence and Non-Respondeat Superior Theories of Negligence
This would dispose of the first issue, were it not for the fact that appellants also asserted claims against appellees for gross negligence and other theories of negligence, including negligent supervision, negligence per se, negligent training, negligent entrustment, and negligent maintenance or inspection. Appellants argue that the excluded evidence—that is, Lopez‘s illness,
Profaca and Dale argue that appellees acted with gross negligence by letting an obviously unwell bus driver take to the highway and thereby jeopardize the lives and well-being of innocent passengers. This argument gives the Court pause. And we might be inclined to accept it under the standards that existed prior to today‘s
Moriel represents a classic case of an appellate court seeing a brick but not a wall. When the supreme court endorsed Professor McCormick‘s adage about a brick not being a wall, it did so in the course of distinguishing between materiality and sufficiency: “Simply because a piece or pieces of evidence are material in the sense that they make a ‘fact that is of consequence to the determination of the action more . . . or less probable,’ does not render the evidence legally sufficient.” Moriel, 879 S.W.2d at 24-25 (quoting TEX. R. EVID. 401).
It is well-settled that gross negligence has an objective prong and a subjective prong. Medina v. Zuniga, 593 S.W.3d 238, 247 (Tex. 2019) (quotation omitted). To establish gross negligence, a plaintiff must prove that (1) when viewed objectively
The objective prong requires courts to examine “the events and circumstances from the viewpoint of the defendant at the time the events occurred, without viewing the matter in hindsight.” Moriel, 879 S.W.2d at 23. Whether a risk qualifies as extreme is a function of both the magnitude and probability of the potential injury.
The subjective prong requires actual, subjective awareness of the extreme risk and conscious indifference to the risk. Medina, 593 S.W.3d at 247 (quotation omitted). This presents an issue of the actor‘s mental state: “what separates ordinary negligence from gross negligence is the defendant‘s state of mind; in other words, the plaintiff must show that the defendant knew about the peril, but his acts or
Only actual, subjective awareness of the specific risk will satisfy the standard. See id. (“[T]here is no clear and convincing evidence that Diamond Shamrock knew of the risk of the compressor explosion that resulted in Hall‘s death and yet did not care.“); Andrade, 19 S.W.3d at 248 (“Given the Kirby managers’ testimony that they actually, subjectively believed that they had locked out the crane or witnessed someone else do so before Andrade began working, the failure to maintain a written lock-out policy is not evidence that the managers were consciously indifferent to the risks posed to Andrade by the crane[.]“).
Finally, the evidence must meet the clear and convincing standard of proof.
But appellants presented no evidence that Lopez‘s illness impaired her ability to drive or that appellees knew of any such impairment. She had been driving for eleven days prior to the Dallas show, and no evidence indicates that she had any difficulty doing so. See Moriel, 879 S.W.2d at 23 (stating that determination of whether risk is extreme requires courts to examine events and circumstances from viewpoint of defendant at time events occurred, “without viewing the matter in
In short, the risk here appears no greater than that which the court held insufficient in Medina v. Zuniga, another vehicular accident case. See id. at 249 (“Viewing the evidence in favor of the jury‘s verdict, no doubt exists that Medina‘s driving was thoughtless, careless, and risky. But any driver knows that our roads are replete with thoughtless, careless, and risky drivers. Gross negligence can be supported only by an extreme degree of risk, not ‘a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff.‘“) (quoting Ellender, 968 S.W.2d at 921); see also Boerjan, 436 S.W.3d at 312 (“Simply following a trespasser‘s truck is a far cry from the sort of objective risk that would give rise to gross negligence.“).
b. Other theories of negligence
Appellants’ alternate theories of negligence add nothing to the facts of this case. Appellants do not contend that an affirmative finding in answer to, say, a
In resolving this sub-issue, it may be useful to examine how the parties have addressed the question of harm. Appellants’ opening brief primarily focuses on whether the trial court‘s evidentiary rulings were erroneous. But they argue that harm resulted from the court‘s granting of the directed verdicts on the alternate negligence theories: “[E]xclusion of that evidence was harmful, for it left [appellants] unable to withstand Breeze‘s, TMARE‘s, and Mr. Lyes‘s motions for directed verdicts.”
In response, appellees contend that the damage findings are the damage findings. TMARE and Lyes’ brief reasons as follows:
All the addition of potentially liable parties would do is potentially change who pays what percentage of the damages. The same is true for other theories of liability, like negligent training or entrustment—they would just be other reasons that the occurrence happened. The damages caused by the occurrence remain fixed by what the jury found in response to Questions 2 and 3. In other words, the addition of potentially liable parties or potential theories of liability for Question 1‘s liability question would not have any effect on the damages—found by the jury—that arose from the occurrence.
The jury found damages from the occurrence, so the addition of potentially liable parties or the addition of liability theories have no bearing on the damages found from the occurrence, [and] the exclusion of this evidence was harmless.
Breeze takes a similar position about the end result being identical:
In light of the jury‘s finding that Lopez‘s negligence proximately caused the accident, Plaintiffs failed to show how the admission of evidence of Lopez‘s illness or the FMCSA regulation would have somehow resulted in the jury awarding more damages to Plaintiffs. Therefore, Plaintiffs have failed to demonstrate how any error caused by the excluded evidence would have resulted in the rendition of an improper judgment as to the compensatory damages Plaintiffs seek.
Thus, both briefs on appellees’ side challenge appellants to explain how there is any harm.
In replying to these arguments about harmlessness, appellants do not deny the logical force of the defense position. Instead, they acknowledge the point and then quickly fall back to their gross negligence claim:
TMARE, though, insists that the directed verdict on Plaintiffs’ negligence claims was harmless because other liability findings would not change Plaintiffs’ damages awards. But that citation-less argument (a hallmark of TMARE‘s brief) overlooks Plaintiffs’ gross-negligence claim. Had that claim been presented to the jury, it could have—and indeed likely would have—resulted in an award for exemplary damages.
(Citation omitted.) On this record, and in light of these arguments, we agree that Profaca and Dale have not carried their burden to show harm. All the alternate theories of negligence would have led to exactly the same damages.
In sum, had all defendants and all negligence theories stayed in at trial, the parties might have vigorously debated (1) how the alternate theories work, as a doctrinal matter, and (2) how to word the liability portions of the charge in light of
Profaca and Dale point out that a gross negligence finding would have made all the difference. In light of the tight strike zone created by Chapter 41 and illustrated by cases such as Medina and Boerjan, however, the gross negligence theory was not viable under today‘s standards.
We overrule appellants’ first issue.
C. Exclusion of Evidence Concerning Causation of Injuries
In their second issue, Profaca and Dale contend that the trial court erred in excluding some of their expert testimony relating to whether the crash caused their injuries. They called two treating physicians and one non-treating physician to testify at trial. Dr. Ruben Bashir and Dr. Geremy Sanders—the two treating doctors—testified at length about their treatment of Profaca and Dale after the bus crash. But
The three doctors testified in succession. Dr. Sanders testified first. He is double board certified and practices interventional pain management. He treated Profaca but not Dale. He had treated Profaca more than twenty times by the time of trial and was still treating him. He diagnosed Profaca with cervical radiculopathy. When asked whether the pain and limitations that Profaca had in his neck and back were related to the crash, Dr. Sanders answered yes. But appellees objected when appellants’ counsel asked directly about causation:
Q. In your medical opinion was the cause of Mr. Profaca‘s ongoing pain and limitations the result of this bus crash?
Defendants: Objection, Your Honor. Calls for speculation.
The Court: The objection is sustained.
A few questions later, however, Dr. Sanders answered yes when asked if Profaca‘s injuries were related to the bus crash:
Q. Based on that[,] based on your talking to Mr. Profaca and your experience, is it your opinion that the pain and the limitations that Mr. Profaca has in his neck and his back are related to the bus crash?
A: Yes.
Defendants: Same objection, Your Honor. This expert is not qualified to talk about causation.
The Court: The objection is sustained.
Dr. Bashir testified next. He is board certified and practices as a spine surgeon and an orthopedic surgeon. He treated both Profaca and Dale. He treated Profaca for herniated discs and stenosis of the spine, and he treated Dale for cervical pain and cervical radiculopathy, neck pain and numbness, and burning in his arm. Appellants’ counsel asked him: “In your medical opinion what was the cause of Mr. Profaca‘s pain in his back?” The defense objected to speculation, and the trial court sustained the objection. The same thing occurred when he testified about Dale:
Q. And Doctor, based on your medical opinion, was the cause of mister—all of Mr. Dale, all the injuries that Mr. Dale has had and you performed, has all of this been from the bus crash?
Defendants: Objection, Your Honor, calls for speculation.
The Court: The objection is sustained. Rephrase your question, Counsel.
Plaintiffs: I‘ll move on, Your Honor.
No offer of proof was made. On redirect, however, the subject came up again, and this time some testimony about causation came in despite an objection:
Q. What is your opinion as to what caused the back injuries to Mr. Dale and Mr. Profaca?
Defendants: Your Honor, for the record, I‘m making the same objection.
A. I believe it was the bus crash from February of 2020.
Shortly thereafter, the witness was passed.
Appellants contend that the trial court erred in refusing to let the two treating doctors testify that the bus crash caused the injuries. Appellees respond that (1) appellants failed to preserve error by making an offer of proof under Rule of Evidence 103; (2) the trial court had discretion to exclude this testimony; and (3) there is no harm because comparable causation testimony came in anyway, mainly from Dr. Parthasarthy.
We disagree that appellants did not preserve error under Rule 103. That Rule provides that a party waives error in a ruling to exclude evidence only if the error affects a substantial right and the party “informs the court of [the excluded evidence‘s] substance by an offer of proof, unless the substance was apparent from the context.”
Having reviewed the record as a whole, however, we see no showing of probable harm from the rulings that sustained the objections on the ground of speculation. All three doctors expressly connected the bus crash to the injuries sustained by Profaca and Dale. It would have added nothing to have Drs. Bashir and Sanders do so a second time. See Morale v. State, 557 S.W.3d 569, 576 (Tex. 2018) (per curiam) (holding harmless any error in excluding evidence that “would have been duplicative“); Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 157 n.97 (Tex. 2014) (holding that exclusion was “harmless because the testimony excluded was in some form effectively obtained from other sources“).
This analysis is reinforced by the very narrow scope of the testimony that appellants wanted to adduce: a single yes-no question to both doctors about causation. Appellants argue that Drs. Bashir and Sanders “would merely have confirmed that the accident caused the injuries they had been expounding on.” Perhaps so, but this point about merely confirming causation shows why harm is so unlikely. If all appellants wanted was a “Yes” answer from the doctors when asked whether the bus crash caused appellants’ injuries, they already obtained it. Dr.
We overrule appellants’ second issue.
Jury Charge Error
In their third issue, Profaca and Dale challenge the definition of physical impairment in the jury charge.
A. Standard of Review
Appellate courts generally review jury charge rulings for an abuse of discretion. Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 727 (Tex. 2016). As with evidentiary rulings, we may not reverse a judgment for an erroneous jury-charge ruling unless the record reveals that the error was harmful. Id. at 728;
B. Analysis
The jury charge in this case defined physical impairment as follows:
“Physical impairment” means a substantial loss or diminution of [a plaintiff‘s] ability to engage in tasks or activities for his own benefit or enjoyment. In assessing damages for physical impairment, you may consider the loss of enjoyment of life. The effect of the physical impairment must be substantial and extend beyond any pain, suffering, mental anguish, lost wages, or diminished earning capacity.
This formulation varies from the Pattern Jury Charge by using the word “substantial” twice instead of once. See Comm. on Pattern Jury Charges, State Bar of Tex., Texas
Appellants accept the part of the definition requiring that the effect of physical impairment be substantial. However, they challenge the part of the definition stating that physical impairment “means a substantial loss or diminution” in the ability to engage in tasks or activities for one‘s own benefit or enjoyment. Appellants argue that the reference to “a substantial loss” erroneously heightened the standard. According to appellants, by “twice repeating the term ‘substantial,’ the instruction improperly tilted the jury to demand evidence of physical-impairment damages even more substantial than the law required.”
We hold that using the word “substantial” twice in the definition of physical impairment was not erroneous. Requiring the loss to be substantial did not tilt the jury charge or heighten the physical impairment standard. Rather, it fixed the hurdle at the right height.
The requirement of a substantial loss goes back more than half a century when the Fourteenth Court of Appeals stated that “the plaintiff must sustain the burden of proving that the effect of his physical impairment extends beyond any impediment to his earning capacity and beyond any pain and suffering to the extent that it produces a separate and distinct loss that is substantial and for which he should be
The 1973 formulation from Green v. Baldree soon spread throughout the state and has become the consensus standard: “The legal test for physical impairment is that ‘plaintiff must sustain the burden of proving that the effect of his physical impairment extends beyond any impediment to his earning capacity and beyond any pain and suffering to the extent that it produces a separate and distinct loss that is substantial and for which he should be compensated.‘” Lawson-Avila Constr., Inc. v. Stoutamire, 791 S.W.2d 584, 599 (Tex. App.—San Antonio 1990, writ denied) (quoting Green, 497 S.W.2d at 350).
Every court, including this Court, to consider the “loss that is substantial” standard has agreed with it.9 See, e.g., Johnson v. Smith, No. 01-94-00186-CV, 1994 WL 525864, at *4 (Tex. App.—Houston [1st Dist.] Sept. 29, 1994, no writ) (not designated for publication); Robinson v. Minick, 755 S.W.2d 890, 894 (Tex. App.—Houston [1st Dist.] 1988, writ denied). Fixing the hurdle at the right height helps to
Physical impairment has long bedeviled the courts with concerns about double recovery,10 as discussed in Golden Eagle Archery, Inc. v. Jackson. See 116 S.W.3d 757, 764-70 (Tex. 2003). Given the requirement of a “separate and distinct loss that is substantial,” and given the policy concerns about the risk of double recovery, the trial court had discretion to include the express reference to a substantial loss.
We overrule appellants’ third issue.
This opinion should not be interpreted as approval of the trial court‘s rulings excluding evidence about driver illness or the federal regulation. The Court holds only that those rulings, whatever their correctness, did not cause harm on the facts of this record. We affirm the trial court‘s judgment.
David Gunn
Justice
Panel consists of Chief Justice Adams and Justices Gunn and Guiney.