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Thomas v. Heard

Supreme Court of Alabama

March 24, 2017

Timothy Joel Thomas
v.
Randell Heard and Donna Heard Timothy Joel Thomas
v.
Laura Wells, as guardian ad litem and next friend of M.A., a minor

         Appeal from Geneva Circuit Court (CV-14-900015), (CV-13-900145)

         On Application for Rehearing

          PER CURIAM.

         This Court's no-opinion order of affirmance of November 4, 2016, is withdrawn, and the following is substituted therefor.

         Timothy Joel Thomas appeals following the denial of his numerous postjudgment motions by the Geneva Circuit Court ("the trial court") challenging a judgment entered by the trial court on a jury verdict in favor of Randell Heard and Donna Heard and Laura Wells, as guardian ad litem and next friend of M.A., a minor.

         Facts and Procedural History

         This case arises out of an automobile accident that occurred on October 15, 2013, at approximately 5:00 p.m. A vehicle driven by Thomas, in which M.A. was a passenger, collided with a vehicle driven by Randell Heard, in which Donna Heard was a passenger.

         Thomas testified that, on the day of the accident, he visited Amber Foster's house between 3:15 p.m. and 3:30 p.m. Foster testified that, after Thomas had been at her house for approximately 20 minutes, Thomas drove two of Foster's children, one of whom was M.A., to a Dollar General discount store.[1] Foster testified that Thomas and her two children returned to her house approximately 30 minutes later. Foster then testified that Thomas again left her house with M.A., approximately 20 minutes later.

         Foster testified that she did not notice anything unusual about Thomas while he was at her house. Foster also testified that she did not see Thomas consume any alcohol or prescription medications while he was at her house. Foster further testified that she would not have allowed M.A. to leave with Thomas if Foster had thought that Thomas was intoxicated, impaired, or unable to operate a vehicle.

         Thomas testified that, while he was at Foster's house, he took Seroquel, a prescription drug, and drank beer. Thomas also testified that, in addition to his prescription for Seroquel, he had prescriptions for other drugs; Thomas testified that it was possible that he had taken some of those prescription drugs in addition to the Seroquel within 24 hours of the accident. Thomas also testified that he purchased beer -- "a tallboy" -- while on his errand to the Dollar General discount store. When asked if it was possible that he had purchased more than one beer, Thomas responded, "[a]nything is possible." Thomas further testified that while he was at Foster's house he drank "one tallboy beer" and that he was not sure if he had drunk more than the one beer. Thomas also testified that he "could have" drunk more than one beer. Thomas testified that he "remember[ed] not being impaired when [he] left the driveway" of Foster's house with M.A. When asked whether he was impaired at the time he was driving toward the intersection just before the accident, Thomas replied, "[n]o, sir, not that I know of."

         Jack Sewell, a pharmacist at the pharmacy where Thomas filled his prescriptions, testified that some of the prescriptions he filled for Thomas, including Seroquel, cause drowsiness. Sewell testified that drinking alcohol with these prescriptions would "just add[] to" that drowsiness effect.

         Thomas left Foster's house at approximately 4:40 p.m. with M.A. in his vehicle and drove south on County Road 41. At approximately 5:00 p.m., Thomas was approaching the intersection of County Road 41 and State Highway 167 ("the intersection"), which is where the accident occurred. There are stop signs on County Road 41 requiring the traffic traveling on County Road 41 to yield to the traffic traveling on State Highway 167; there are no stop signs halting traffic traveling on State Highway 167. Thomas testified that he drove over several "rumble strips"[2] on County Road 41 as he approached the intersection. Thomas drove his vehicle into the intersection without stopping at the stop sign on County Road 41. Thomas's vehicle collided with the vehicle being driven by Randell Heard. Thomas testified:

"[Wells's trial counsel:] Why didn't you see the stop sign?
"[Thomas:] I can't tell you that.
"[Wells's trial counsel:] Why didn't you stop at the stop sign?
"[Thomas:] I can't tell you that.
"[Wells's trial counsel:] Why didn't you see the Heards traveling in their silver car to your right?
"[Thomas:] I can't tell you that."

         Elizabeth Mims witnessed the accident. Mims testified that it appeared that Thomas slowed his vehicle before entering the intersection but did not completely stop his vehicle. Mims testified that she witnessed Thomas drive his vehicle into the intersection in front of the Heards' vehicle, which, she said, caused the accident.

         After the accident occurred, Mims checked on the occupants of both vehicles. Mims testified that "when [she] got to" Thomas's vehicle she could smell alcohol. Mims later clarified that, although she was certain that the odor of alcohol was coming from Thomas's vehicle, she could not identify the source of the odor of alcohol. Mims also testified that she spoke with another woman at the scene of the accident who also indicated that she smelled alcohol. However, Mims did not indicate where at the scene of the accident this other woman had smelled alcohol; specifically, Mims did not testify that this other woman smelled alcohol emanating from Thomas or his vehicle. Chris Sirois, an emergency medical technician dispatched to the scene, testified that he did not smell alcohol while he was "treating or paying attention to" M.A., who was in the vehicle driven by Thomas.

         Thomas, M.A., and the Heards sustained serious injuries as a result of the accident and were transported to medical facilities for emergency care; Thomas was transported to Southeast Alabama Medical Center ("SAMC"). Upon Thomas's arrival at SAMC's emergency room, Danielle Stanridge, a laboratory technician at SAMC, testified that she drew blood from Thomas in order to run a medical analysis of Thomas's blood, which she said was the "common and customary" practice. Stanridge used an alcohol swab to sterilize Thomas's arm before she drew his blood sample.

         SAMC conducted a "medical-alcohol test" as part of the analysis performed on Thomas's blood sample. Dr. Jack Kalin, the former chief toxicologist of the Alabama Department of Forensic Sciences and a private consultant in forensic technology certified in forensic technology by the American Board of Forensic Technology, explained that the medical-alcohol test performed by SAMC on Thomas's blood sample tested for the concentration of ethanol in Thomas's blood sample. Jeff Sheppard, who was SAMC's laboratory director at the time of the accident, testified that the presence and amount of alcohol in a patient's blood sample is important information for the treating physician to have in deciding whether to use anesthesia on the patient or to prescribe prescription drugs. Sheppard testified that the medical-alcohol test conducted on Thomas's blood sample indicated that Thomas's blood sample had a "value" of "68 milligrams per deciliter." Sheppard testified that this was an "abnormal" result, which was explained as follows:

"[Wells's trial counsel:] For example, if I've had a cholesterol test done, it tells me here's the normal range, and if mine is high, it will report back above normal. Is that kind of what this is telling us?
"[Sheppard:] Yes."

         Dr. Kalin testified that, based on Thomas's blood sample containing 68 milligrams of alcohol per deciliter, Thomas's blood-alcohol concentration "would have been somewhere between a .05 grams percent and a .06 grams percent." Dr. Kalin testified that, based on Thomas's blood-alcohol concentration of .05% to .06%, he opined that Thomas would have consumed "two to three beers, rather than just one."

         Dr. Jimmie Valentine, a consultant in clinical pharmacology and toxicology, who was called as a witness by Thomas, testified that the method used to collect Thomas's blood sample and to test for the presence of alcohol was not performed pursuant to forensic standards. For instance, Dr. Valentine testified that, if a sample of Thomas's blood had been taken for the specific purpose of testing it to determine Thomas's blood-alcohol concentration, an alcohol swab should not have been used to sterilize Thomas's arm before his blood was drawn. Dr. Valentine testified that, when an alcohol swab is used to clean the skin, some of the alcohol could be absorbed into the skin, which could contaminate the blood sample drawn. Dr. Valentine explained that the test conducted by SAMC on Thomas's blood sample to determine the presence of alcohol did not reveal the specific type of alcohol present in Thomas's blood sample. Dr. Valentine explained that the alcohol swab used by Stanridge to sterilize Thomas's arm probably contained isopropyl alcohol, while the beer Thomas drank contained ethanol alcohol. Dr. Valentine further explained that the test run by SAMC on Thomas's blood sample would have detected both kinds of alcohol, among other things, generally; there was no way to tell if Thomas's blood sample had been contaminated with the isopropyl alcohol from the alcohol swab. Dr. Valentine testified that the preferred method "for doing alcohol analysis" is a method called "gas chromatograph." SAMC did not use the gas-chromatograph method in determining that Thomas's blood sample contained 68 milligrams per deciliter. Regardless, accepting that Thomas's blood sample contained 68 milligrams of ethanol per deciliter, Dr. Valentine agreed with Dr. Kalin's assessment of Thomas's blood-alcohol concentration.

         Dr. Kalin testified that it is possible for people with a blood-alcohol concentration of less than .08% to be impaired and to have difficulty driving:

"[Heards' trial counsel:] And a blood/alcohol of a .08, you use the word intoxicated, in your area of expertise, can individuals be impaired such as they are unsafe and unfit to drive an automobile at less than a level of .08?
"....
"[Dr. Kalin:] State law provides a presumption that .08 or greater, then you are under the influence of alcohol. However, state law also recognizes the scientific reality that people below .08 can be impaired and have difficulty driving. So, if someone can be demonstrated to be impaired with an ethanol concentration of less than .08, they can be convicted of drunk driving."[3]

         Dr. Kalin explained the effects Thomas may have experienced as a result of his blood-alcohol concentration of .05% to .06%:

"[Heards' trial counsel:] ... What effect could you expect to see in Mr. Thomas with the level of blood/alcohol content of .05 to .06 that you've described?
"[Dr. Kalin:] I'm going to answer your question literally -- you would see nothing.
"[Heards' trial counsel:] In other words, would someone be able to visually tell if you were intoxicated or impaired?
"[Dr. Kalin:] Quite possibly not.
"[Heards' trial counsel:] Would there be effects to Mr. Thomas at that level?
"[Dr. Kalin:] Yes, there would be.
"[Heards' trial counsel:] And in reaching that opinion, are you trained in that regard in all of your training with the State Of Alabama and your toxicological research?
"[Dr. Kalin:] Yes.
"[Heards' trial counsel:] And is that part of what you have always done for the State Of Alabama?
"[Dr. Kalin:] Yes.
"[Heards' trial counsel:] Can you tell us what those affects would be?
"[Dr. Kalin:] The .05 to .06 you would expect the person's inhibitions to be inhibited. Ethanol is a central nervous system depressant, which means it turns things off. The first thing it turns off is your higher mental functions and that's the little voice in the back of your head that tells you to behave. That's why a couple of drinks at a party make you talk, maybe you shouldn't say what you're saying, but nonetheless you do. That's a little bit of a buzz, you feel a little bit of euphoria, you may be at the greater risk -- well, more prone to risky activity. You would be surprised over how many people get in fights over these levels of alcohol because their inhibitions are inhibited. You're going to have some fine motor skill problems, how many things can you juggle at one time. You may do okay, but you're certainly not going to do as well as you would otherwise without the ethanol. Your judgment is going to be a problem in what you see, what you perceive, what you think, what you know. That's all impaired even by low levels of ethanol. That's what the buzz is, the buzz is something that makes you care less about your circumstances than you probably otherwise should.
"You may experience some visual acuity problems, you may have difficulty focusing and you may not see very -- as well as you would otherwise, or you may see well enough, but one of the things that you do lose is your peripheral vision, where people can't see what's coming on the sides. I'm sorry I'm holding up my hand in front of the Court Reporter, but that's a demonstration of what peripheral vision is. I can see something out the side of my head, I don't have to turn left or right to see traffic coming. This is a common problem that some people experience with low levels of alcohol, the loss of that capability, you just don't see it, you never see it coming.
"So, you're not going to have a problem typically with your speech, other than you're probably going to use much more of it than you should.
"You're not going to have problems with your balance. You can probably stand up and move around and not have much of a problem, but that doesn't mean that you will have all your faculties sufficiently to do complicated tasks."

         However, Dr. Kalin also testified that, although everyone experiences the same effects of alcohol, not everyone experiences them at the same blood alcohol concentration. (R. 203.) For instance, Dr. Kalin testified:

"[Thomas's trial counsel:] And that was the purpose in asking that because although you describe that there may be visual acuity, there may be peripheral vision impacted, there may be judgment impacted with this level of blood/alcohol concentration that you say existed, does not mean that Mr. Thomas was experiencing those things, does it?
"[Dr. Kalin:] That's correct."

         On November 29, 2013, Wells, "in her capacity as guardian ad litem and next friend" of M.A., sued Thomas, among others, asserting claims of negligence and wantonness. On January 24, 2014, in a separate action, the Heards sued Thomas, among others, asserting claims of negligence and wantonness.[4] Thomas answered both complaints. The trial court consolidated the two actions for purposes of discovery and trial.

         On August 11, 2015, Thomas filed a motion to "strike, dismiss, and/or remove" Wells as the "representative" of M.A. Thomas noted that the Houston Juvenile Court had appointed Wells as M.A.'s "juvenile attorney" on June 26, 2012. However, Thomas argued that, pursuant to § 6-5-390, Ala. Code 1975, Wells had no legal authority to file the underlying action against Thomas. Section 6-5-390 states:

"A father or a mother, provided they are lawfully living together as husband and wife, shall have an equal right to commence an action for an injury to their minor child, a member of the family; provided, however, that in the event such mother and father are not lawfully living together as husband and wife, or in the event legal custody of such minor child has been lawfully vested in either of the parties or some third party, then and in either event the party having legal custody of such minor child shall have the exclusive right to commence such action."

         On August 13, 2015, Wells filed a response, arguing that the underlying action "was properly commenced in the name of the guardian ad litem for the benefit of" M.A. The trial court did not rule on Thomas's motion. Instead, on August 21, 2015, the trial court entered an order appointing Wells as guardian ad litem and next of friend of M.A.

         Trial began on August 24, 2015. At the close of the Heards' and Wells's cases, Thomas filed a motion for a judgment as a matter of law ("JML"). Generally, Thomas alleged that the Heards and Wells had failed to present sufficient evidence to support their negligence and wantonness claims. The trial court denied Thomas's motion for a JML. At the close of all the evidence, Thomas again filed a motion for a JML, raising the same issues he had raised in his initial motion. The trial court denied Thomas's second JML motion, and the case was submitted to the jury.

         On August 28, 2015, the jury returned a verdict against Thomas and in favor of the Heards, upon which the trial ...


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