When Can Jurors Consider Evidence of Intoxication, Impairment and Mental Health Conditions?

Originally posted on June 27, 2022 on Texas Lawyer Magazine. Written by Attorney Quentin Brogdon.

“The bar in a tort case for admission of evidence that a party was intoxicated or impaired, or a party suffered from a mental health condition is lower than many would imagine. If evidence raises a question about why a party acted as they did in connection with the occurrence and the probative value of the evidence substantially outweighs any danger of unfair prejudice, the evidence probably is admissible at trial.”

Evidence that a party was intoxicated or impaired, or a party suffered from a mental health condition is not, in and of itself evidence that the party was negligent in causing an accident. Instead, there must be some further evidence that the party’s intoxication, impairment or condition raises a question about why the party acted as they did in connection with the occurrence. And the probative value of the evidence must substantially outweigh any danger of unfair prejudice created by admission of the evidence.

In PPC TRANSPORTATION V. METCALF in 2008, the Tyler Court of Appeals held that the trial court should have admitted evidence that the plaintiff had been drinking alcohol before an automobile crash. The Tyler court reasoned that the evidence “was relevant in conjunction with evidence concerning his failure to steer his vehicle away from (the defendant’s) trailer, a matter concerning his vigilance, judgment, and reactions as a driver.” In TICKNOR V. DOOLAN, an unpublished 2006 case, Houston’s 14th District Court of Appeals determined that a trial court improperly excluded evidence of a bicyclist’s consumption of alcohol when there was evidence that the bicyclist suddenly veered in front of a car, putting the bicyclist’s “vigilance, judgment or reactions” at issue.

In NICHOLS V. HOWARD TRUCKING COMPANY in 1992, the Beaumont Court of Appeals found that the trial court did not err in admitting evidence of a plaintiff’s marijuana use when it was offered as a possible explanation for why the plaintiff’s auto crossed the center line of the roadway just before the crash.

A similar analysis applies to the admissibility of evidence of mental health issues. Evidence of a party’s mental health condition is not admissible unless it provides insight into relevant issues in the case. For example, in GARZA V. GARZA in 2006, the San Antonio Court of Appeals found that evidence of a

mother’s personality and bipolar disorders was relevant to the issue of whether appointing the mother as the sole managing conservator of her children was in the best interests of the children.

But some courts of appeals have upheld exclusion of evidence of intoxication or impairment when there is no evidence connecting the presence of alcohol or drugs to a party’s impairment at the time of the occurrence. For example, in BEDFORD V. MOORE in 2005, the Fort Worth Court of Appeals held that evidence of a party’s use of methamphetamines should have been excluded because there was no evidence tying the presence of amphetamines to the party’s impairment at the time of the accident.

In JBS CARRIERS V. WASHINGTON in 2018, the Texas Supreme Court undertook a comprehensive analysis of the admissibility of evidence of a party’s intoxication, impairment and mental health conditions. In JBS, a JBS truck ran over the plaintiff, a pedestrian who was crossing the street as the truck made its turn. The trial court denied JBS’ attempt to introduce evidence that the plaintiff’s autopsy showed she had alcohol, cocaine and oxycodone in her body, and the plaintiff’s medical records showed a history of crack cocaine abuse, anxiety, paranoid schizophrenia and bipolar disorder. In an offer of proof, JBS’ medical expert opined that in the time period leading up to the crash, the plaintiff “walked in a steady pace without breaking stride, without speeding up or slowing down, walked right into the side of a tractor-trailer,” and the accident sequence “fits the scenario of a person who is not only impacted by medication but more likely is having an exacerbation of a severe mental condition particularly of the nature of schizophrenia paranoid type and bipolar disorder.”

The JBS court noted that courts of appeals have allowed evidence of a party’s use of impairing substances “if the evidence raises a question about why the party acted as he or she did in connection with the occurrence.” The court noted that JBS’ medical expert testified in JBS’ offer of proof that the cocaine in plaintiff’s system “can sure impair you … to a reasonable degree of medical certainty … those things can contribute to mental impairment.” The court rejected the plaintiff’s argument that a showing of actual intoxication or impairment is a necessary prerequisite to the admissibility of evidence of drugs or alcohol in a party’s body, noting that at least one case had allowed the jury to consider evidence of liquor on a party’s breath without any showing of intoxication.

The plaintiff’s family argued that the evidence should have been excluded as prejudicial under rule 403 of the Texas Rules of Evidence, but the JBS court pointedly noted that the analysis should hinge upon whether the evidence was UNFAIRLY prejudicial. The court quoted from its holding in DIAMOND OFFSHORE SERVICES V. WILLIAMS earlier in 2018 that evidence is UNFAIRLY prejudicial only if it has an “undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one.”

The JBS court disagreed with the plaintiff’s family’s argument that, because jurors viewed video evidence of the occurrence, evidence of drug use, alcohol use, and mental impairment had low probative value. The court reasoned that the video provided only a “one-sided view of the possible reasons for [the plaintiff’s] actions,” and the jury should have been allowed to hear the medical expert’s testimony because it contradicted the plaintiff’s family’s theory that the plaintiff walked into the street in response to hand motions that JBS’s driver directed toward the driver of a car blocking his turn just before he made the turn. The court determined that allowing JBS to introduce evidence of an alternative explanation for the plaintiff’s actions — her mental condition and drugs and alcohol in her body — would not have been UNFAIRLY prejudicial to the plaintiff.

The JBS court concluded that exclusion of the evidence was not harmless for two reasons. First, the court noted that the evidence

“directly related to [the plaintiff’s] state of mind and mental condition that resulted in her decision to walk into the street where and under the circumstances she did.” The only evidence that the jury heard as to those matters was opinion testimony from the family’s expert. According to the court, that testimony implied the plaintiff was not impaired and she saw defendant’s driver’s hand signal and “interpreted it as an ordinary person would have — as a direction for her to continue across the street.” Second, the evidence related to the plaintiff’s “state of mind and mental decision-making processes,” two things that “were crucial to the key issue of whether her decision to walk into the street met the standard of reasonable care.”

Three years after JBS, the Beaumont Court of Appeals decided CRAVENS V. ALISAM ENTERPRISES, LLC. In CRAVENS, the plaintiff died when his vehicle crashed into the side of a tractor-trailer turning in front of the plaintiff. A toxicologist testified that the plaintiff ingested marijuana three to four hours before the crash and the amount of marijuana caused the plaintiff to experience euphoria, possible hallucinations, decreased reaction time, cognitive dysfunction, and decreased ability to perceive the environment. The toxicologist also testified the plaintiff ingested methamphetamines less than nine hours before the crash, the level was “far beyond the therapeutic level,” and the effects included agitation, hallucinations, paranoia, slowed visual and auditory processing, and a decreased ability to perceive one’s environment. According to the toxicologist, the effects of the marijuana and the methamphetamines were additive and it was unsafe for the plaintiff to drive with the drugs in his system.

The plaintiff’s family in CRAVENS argued that the trial court should not have admitted the toxicologist’s testimony because the toxicologist could not tie the presence of the drugs to impairment at the time of the accident or to the cause of the accident. The Beaumont Court of Appeals disagreed, citing the JBS court’s holding that evidence of impairment can be relevant in conjunction with other evidence in helping a jury consider a party’s “vigilance, judgment, and reactions as a driver.” The Beaumont court also reasoned that, “expert testimony is not required to show a driver’s use of drugs or alcohol caused a collision because causation may be proved by circumstantial evidence.”

The bar in a tort case for admission of evidence that a party was intoxicated or impaired, or a party suffered from a mental health condition is lower than many would imagine. If evidence raises a question about why a party acted as they did in connection with the occurrence and the probative value of the evidence substantially outweighs any danger of unfair prejudice, the evidence probably is admissible at trial.

Quentin Brogdon

Quentin Brogdon is a partner in Crain Brogdon, LLP. He is a member of the national executive committee of the American board of trial advocates (Abota), and he is a former president of the Dallas chapter of Abota. He is a fellow of the international academy of trial lawyers, a fellow of the American college of trial lawyers, and a fellow of the international society of barristers. He can be reached at Qbrogdon@crainbrogdon.com.