Ballou v. Henri Studios, Inc.

WILLIAMS, J.

On the afternoon of June 14, 1977, an automobile traveling at approximately fifty miles per hour struck the rear of an eighteen-wheel tractor-trailer which was parked entirely on the right hand shoulder of a curved, divided highway in Beaumont, Texas. The driver of the car, Jesse Ballou, was killed instantly; Ballou's sole passenger, twelve-year-old Leonard Herman Clay, was rendered unconscious upon impact and died two days later. The plaintiffs Yolanda Ballou and Terrence Ballou, the children of Jesse Ballou, and Lula Mae LeBlanc, the mother of Leonard Herman Clay filed this diversity suit in Texas federal district court against Appellant Henri Studios, Inc., alleging that the deaths of Jesse Ballou and Leonard Herman Clay were proximately caused by the negligence of Henri Studios' employee, John Woelfel, the driver of the truck. Henri Studios, inter alia, denied that Woelfel's conduct was negligent and asserted that the collision was caused by the negligence of the deceased driver of the car, Jesse Ballou.

Prior to trial, the plaintiffs filed a motion in limine seeking to prevent the introduction at trial of any evidence that Jesse Ballou was intoxicated at the time of the collision. Specifically, the motion in limine sought to exclude the results of a blood alcohol test performed by the Beaumont Regional Crime Laboratory upon a blood sample allegedly taken from the body of Ballou which reflected that his blood contained 0.24% alcohol by weight at the time of his death. On the day the trial of the case began, the district court held a hearing outside the presence of the jury on the issue whether the results of the blood alcohol test should be excluded from evidence at trial. After hearing argument and testimony, the district court sustained the motion in limine and ruled the results of the blood test inadmissible. . . .

The jury returned a general verdict for the plaintiffs, but found that Henri Studios was 40% negligent and that Jesse Ballou was 60% contributorily negligent. . . .

Henri Studios raises several issues on appeal, including the trial court's alleged reversible error in excluding the results of the blood alcohol test, refusing to accept the original verdict of the jury, resubmitting the case to the jury in a manner that had the effect of coercing a verdict for the plaintiffs, and giving erroneous instructions on the Texas law concerning the placement of warning reflectors. Henri Studios does not appeal the judgment in favor of Lula Mae LeBlanc individually for the death of Leonard Herman Clay. However, LeBlanc as administratrix of the estate of Leonard Herman Clay cross-appeals, contending the jury's finding of no damages for Clay's pain and suffering is inconsistent with allegedly undisputed testimony that Clay experienced conscious pain. Concluding that the district court erred in excluding the results of the blood alcohol test, we reverse the judgment in favor of Yolanda and Terrence Ballou and remand for a new trial. We affirm, however, the judgment awarding no damages for Clay's pain and suffering.

A proper evaluation of Henri Studios' claim that the district court erred in excluding the results of the blood alcohol test requires a narration of the facts presented and arguments made at the hearing on the motion in limine as well as a statement of the district court's reasons for excluding the test from evidence. As noted above, prior to trial the plaintiffs filed a motion in limine seeking to exclude at trial any evidence indicating that Jesse Ballou was intoxicated at the time of the collision, and specifically to exclude the results of a blood alcohol test performed upon a sample of blood allegedly taken from Ballou's body. On the first day of the trial, the district court held a hearing on the motion in limine outside the presence of the jury.

At the hearing, the plaintiffs presented two basic arguments for exclusion of the results of the blood test. First, they contended that the results of the blood test were inadmissible because the defense had failed to establish an adequate "chain of custody" for Ballou's body and the blood sample, and had failed to show that adequate precautions had been taken to prevent the possibility of contamination of the blood sample. Second, the plaintiffs sought to refute the results of the blood test through proof that Ballou was not intoxicated at the time of the collision.

To support their claim that Ballou was not intoxicated, the plaintiffs first argued that the blood test was the only evidence of Ballou's intoxication at the time of the collision, noting that none of the persons who had come into contact with Ballou's body had noticed the presence of alcohol about his body. The plaintiffs then called to the stand Mrs. Eula Eisenhower, a registered nurse employed by Dr. Washburn, a Beaumont doctor whose office was located only a short distance from the site of the collision. Mrs. Eisenhower testified that on the afternoon of June 14, 1977, Jesse Ballou came to Dr. Washburn's office, accompanied by Leonard Herman Clay, to have some stitches removed from his hand. She testified that in removing the stitches she was eighteen inches from Ballou's face, and that Ballou did not have alcohol on his breath and did not act intoxicated, and that she was positive that he was not intoxicated. She also stated that due to experience with alcoholism in her family, she was familiar with the smell of alcohol. According to Mrs. Eisenhower, Ballou left Dr. Washburn's office at 2:30 p. m. The police report of the collision listed the time of the arrival of the officers at the scene of the wreck at 2:40 p. m.; by that time, Ballou's body had already been taken to the hospital. Finally, the plaintiffs introduced a portion of the deposition of Jim Middleton, the chemist who performed the blood alcohol test, in which Middleton testified that it would probably take at least one hour of steady consumption of alcohol in order for a person to reach a blood alcohol level of 0.24%.

In response to the plaintiffs' arguments, Henri Studios outlined the chain of events leading from the removal of Ballou's body from his automobile through the chemists' analysis of one of the samples of his blood, describing in some detail the chain of custody of Ballou's body and the blood samples. In addition, counsel outlined the procedures pursuant to which the blood samples were labeled and one of the samples analyzed by the chemist. Finally, the defendant noted the chemists' deposition testimony that the test results indicated Ballou was grossly intoxicated at the time of the collision and that such a level of intoxication would greatly impede Ballou's ability to drive his car safely.

After hearing the foregoing arguments and testimony, the district judge sustained the motion in limine. The court gave the following reasons for granting the motion:

The Court does not feel that the tests were made with sufficient reliability, that it can be offered, especially in view of all of the argument made by both counsel, which is absolutely unnecessary and superfluous as far as this hearing is concerned. It just irritates the Court to hear attorneys argue matters on a Motion when it doesn't touch the point, one way or the other.

The Court will sustain the Plaintiffs' Motion in Limine because of the lack of credibility of the tests of alcoholism at the time of the wreck, especially in view of the testimony of Mrs. Eisenhower and the time which the accident occurred. Further, the Court feels to permit it would be prejudicial to the Plaintiffs because it is never possible to judge the attitude of a Jury and how they are affected by the subject of alcohol. Now if it was tried before the Court, it would be a different question, but trying it before the Jury, the Court feels that it would be too harmful and would be extremely prejudicial to the Plaintiff.

. . . In reviewing the district court's exclusion of the results of the blood alcohol test, it is important to note at the outset that even though this is a diversity case, the Federal Rules of Evidence govern the admissibility of evidence. Johnson v. William C. Ellis & Sons Iron Works, Inc., . . . Federal law also controls all other procedural matters in diversity cases. . . .

Under Rule 403 of the Federal Rules of Evidence, a district court may exclude evidence, even if relevant, "if its probative value is substantially outweighed by the danger of unfair prejudice." A trial court's ruling on admissibility under Rule 403's balancing test will not be overturned on appeal absent a clear abuse of discretion. . . .

Although the district court neither stated with precision the grounds for its decision to exclude the results of the blood alcohol test nor specifically invoked Rule 403, the record clearly reveals that the court excluded the evidence because it believed that its prejudicial potential substantially outweighed its probative value. The court explicitly found that the evidence of Ballou's intoxication "would be too harmful" and "would be extremely prejudicial to the Plaintiff" because "it is never possible to judge the attitude of a Jury and how they are affected by the subject of alcohol." The court's comments also reveal that the court believed that the results of the blood alcohol test lacked "credibility." According to the court, its primary reason for determining that the test results lacked credibility was the testimony of Mrs. Eisenhower that Ballou was not intoxicated just a few minutes before the collision and Jim Middleton's testimony that it would probably take at least one hour of alcohol consumption to reach a blood alcohol level of 0.24%. But the court's comments also indicate, especially viewed in the context of the immediately preceding argument of counsel, that the court may have characterized the results of the blood test as lacking credibility out of concern that breaks in the "chain of custody" of Ballou's body and the blood samples had occurred or because of the possibility that the samples had been contaminated.

In challenging the district court's exclusion of the results of the blood alcohol test, Henri Studios argues, inter alia, (1) that the court's decision to believe Mrs. Eisenhower's testimony rather than the results of the blood alcohol test constituted a credibility choice which should properly have been reserved for the jury; and (2) that an adequate showing was made with respect to the chain of custody and lack of contamination of Ballou's body and blood samples, and that therefore any evidence concerning possible breaks in the chain of custody or contamination go to the weight and not the admissibility of the evidence. Because we agree with both of these contentions, and in addition conclude as a matter of law that the potential for unfair prejudice of the blood alcohol test did not substantially outweigh its probative value, we hold that the exclusion of the results of the test was an abuse of discretion requiring a reversal of the judgment and a new trial.

Henri Studios' argument that the district court made an impermissible credibility choice in deciding to believe Mrs. Eisenhower's testimony rather than the results of the blood alcohol test is well taken. It is clear that the district court credited Mrs. Eisenhower's testimony, and that her statement that Ballou was not intoxicated a few minutes before the collision was the primary basis for the court's decision that the results of the blood alcohol test were not worthy of belief. Of course, since the court found that the test results lacked credibility, they were assigned little or no probative value in the Rule 403 balancing test, which ultimately led to their exclusion from evidence.

Although we find the court's skepticism about the test results understandable in light of Mrs. Eisenhower's testimony, we cannot sanction the type of credibility choice made by the district court here. Under Fed.R.Evid. 104, a district court is authorized to conduct the balancing test required by Rule 403 outside the presence of the jury, in deciding the preliminary question of the admissibility of evidence. However, we have recently held that "Rule 403 does not permit exclusion of evidence because the judge does not find it credible." United States v. Thompson. . . . "Weighing probative value against unfair prejudice under (Rule) 403 means probative value with respect to a material fact if the evidence is believed, not the degree the court finds it believable." Bowden v. McKenna. . . . Rather than discounting the probative value of the test results on the basis of its perception of the degree to which the evidence was worthy of belief, the district court should have determined the probative value of the test results if true, and weighed that probative value against the danger of unfair prejudice, leaving to the jury the difficult choice of whether to credit the evidence. . . .

The question remains whether the test results, when properly taken as true, have a potential for unfair prejudice that substantially outweighs their probative value. We hold as a matter of law that the potential for unfair prejudice of the test results does not substantially outweigh their probative value.

The results of the blood alcohol test indicate that Ballou was intoxicated at the time of the collision. Proof of Ballou's intoxication is, of course, highly relevant to and probative of one of the ultimate questions before the jury Ballou's contributory negligence and would doubtless have a major effect on the jury's apportionment of fault. On the other hand, in our view the potential prejudice of the test results is comparatively slight. As this court has consistently held, " "unfair prejudice' as used in Rule 403 is not to be equated with testimony simply adverse to the opposing party. Virtually all evidence is prejudicial or it isn't material. The prejudice must be "unfair.' " Dollar v. Long Manufacturing, N.C., Inc.. . . . Unfair prejudice within the context of Rule 403 "means an undue tendency to suggest (a) decision on an improper basis, commonly, though not necessarily, an emotional one." Notes of the Advisory Committee on Proposed Federal Rules of Evidence, 28 U.S.C.A. Rule 403 at 102. Although evidence of Ballou's intoxication would surely have an adverse effect on the plaintiffs' case, most of the potential prejudice flowing from the evidence cannot be considered to be unfair since Ballou's intoxication is unquestionably a legitimate ground for a finding of contributory negligence. While there is a slight possibility that evidence of Ballou's intoxication might adversely affect the jury's deliberation on issues other than Ballou's contributory negligence, this slight potential for unfair prejudice is virtually insignificant when compared with the high relevance and probative value of the evidence. We therefore conclude that the district court committed reversible error in excluding the results of the blood test under Rule 403 and that the judgment in favor of Yolanda and Terrence Ballou must be reversed and the cause remanded for a new trial. . . .

The judgment against Henri Studios in favor of Yolanda and Terrence Ballou is REVERSED and REMANDED to the district court for a new trial. The judgment awarding no damages for pain and suffering to Lula Mae LeBlanc as administratrix of the estate of Leonard Herman Clay is AFFIRMED.