from Geneva Circuit Court (CV-14-900015), (CV-13-900145)
Application for Rehearing
Court's no-opinion order of affirmance of November 4,
2016, is withdrawn, and the following is substituted
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.
and Procedural History
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
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. 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.
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.
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."
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
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" 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
"[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."
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.
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.
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.
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?
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."
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.
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."
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
"[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
"[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
"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
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."
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. Thomas answered both complaints. The trial
court consolidated the two actions for purposes of discovery
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."
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.
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.
August 28, 2015, the jury returned a verdict against Thomas
and in favor of the Heards, upon which the trial ...