Exclusion of Evidence and Alternative Pleadings in Texas

Pleading alternative claims or defenses is common in Texas. See Texas Rule of Civil Procedure 48. Rule 48 entitled “Alternative Claims for Relief” expressly states that a party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses. Is pleading alternatively that simple and if so, what claims gets presented to the jury? Fortunately, the Supreme Court of Texas in JLG Trucking, LLC. v. Garza, 466 S.W.3d 157, 164 (Tex. 2015) provides answers and guidance.

In Garza, plaintiff had been involved in two car accidents within three months. She sued the driver in the first accident and alleged that he caused her injuries. Defendant sought to present two alternative theories – (1) plaintiff injuries were degenerative and thus not trauma related; and (2) that the second accident caused the injuries complained of by plaintiff. The trial court excluded all the evidence of the second accident because there was no expert testimony and prevented the defendant from cross examining the plaintiff’s expert about the second accident at trial. On appeal, the court of appeals affirmed the trial court’s actions. Defendant then appealed to the Supreme Court of Texas.

The Supreme Court of Texas reversed the court of appeals and held that the evidence of the second accident was relevant to the central issue of whether defendant’s negligence caused plaintiff’s damages. The Supreme Court of Texas also held that the trial court committed harmful error in excluding the evidence, and particularly in refusing to allow cross-examination of plaintiff’s expert on the subject. So, you ask, what does this mean as to alternative theories and claims? What does the jury get to hear?

With respect to alternative theories, the Supreme Court of Texas stated that while a party may plead conflicting claims and defenses, they must have a reasonable basis in fact and law to do so. JLG Trucking, LLC. v. Garza, 466 S.W.3d 157, 164 (Tex. 2015), citing, Low v. Henry, 221 S.W.3d 609, 615 (Tex. 2007). Also, the Supreme Court of Texas held that parties may present evidence of alternative, and even inconsistent theories of relief to the jury, leaving it to the jury to “choose the theory that it believes based on a resolution of the conflicting evidence.” JLG Trucking, LLC. v. Garza, 466 S.W.3d 157, 164 (Tex. 2015), citing, Wilson v. Whetstone, No. 03-08-00738-CV, 2010 Tex App. LEXIS 3041, 2010 WL 1633087, at *10 (Tex. App.-Austin April 20, 2010, pet denied) and In re Arthur Andersen LLP, 121 S.W.3d 471, 482 n. 32 (Tex. App.-Houston [14th Dist.] 2003, orig proceeding).

Garza is also noteworthy because it discusses how alternative claims affect the burden of proof. The Supreme Court of Texas reiterated that it is plaintiff’s burden to plead and prove that defendant caused the accident and that the first accident caused her injuries. Part of plaintiff’s burden includes excluding with reasonable certainty other plausible causes of her injuries. Defendant’s burden is not to prove, but to purely negate one of plaintiff’s elements, in this case causation. The excluding of the evidence under an alternative defensive theory prevented that from happening and was error.

Alternative claims and defenses are very common. The Garza opinion by the Supreme Court of Texas provides much needed guidance as to what is required and what the jury can see. The opinions in this blog are solely the author’s and any comments, suggestions or replies can be sent to john@jrjoneslaw.com.