The Texas Court of Appeals for the Thirteenth District just heard an appeal where the injured party in a catastrophic car accident sought to have the other party’s hair sample examined for evidence of substance abuse.
In In re Click, Ms. Lowenberg was driving southbound with her two sons and their friend on Highway 35 in Refugio County, while Mr. Clink was driving northbound in a truck owned by Dalton Trucking, Inc. Clink veered into oncoming traffic and struck Lowenberg’s car head-on, which led to the death of Lowenberg and her sons’ friend. Meanwhile her sons suffered physical injuries.
Lowenberg’s estate filed a lawsuit against Clink and Dalton Trucking claiming negligence, including negligent hiring, negligent supervision, negligent entrustment, and gross negligence. The estate of Lowenberg then filed a motion requesting to examine Clink’s hair follicle samples for evidence of controlled substances, per Texas Rules of Civil Procedure 196.1(b) and 204.1(a). The motion stated that, according to the police report, Clink may have been asleep at the time of the accident, and that he was currently on parole for “multiple criminal matters,” including possessing a controlled substance with the intent to manufacture. The estate of Lowenberg claimed that Clink’s physical condition was in controversy and that his condition at the time of the crash and his previous drug convictions provided good cause for testing his hair samples.
In his response, Clink argued that good cause did not exist because there was no evidence that drugs or alcohol were involved in the accident. Furthermore, he provided statements from a medical toxicologist that hair testing had limited use in determining whether an individual used drugs because the hair could have been exposed to drugs used by bystanders. The toxicologist also claimed that hair testing more than 90 days after the alleged drug use was scientifically unreliable.
The trial court granted the estate’s motion and Clink appealed, claiming that the trial court abused its discretion because the estate of Lowenberg failed to provide evidence that Clink’s physical condition was in controversy, the estate failed to provide evidence that there was good cause for the hair examination, there was unrebutted expert testimony claiming that the method was unreliable, and the testing was a violation of Clink’s rights against unreasonable seizure.
The Court found that, at the time the trial court ordered the hair sample production, good cause had not yet been established. Also, the fact that the expert’s testimony questioning the test’s effectiveness had gone unrebutted by the estate of Lowenberg suggested that good cause had not been established. The estate also made no attempt to show that it was impossible to get the desired information through a method that was less intrusive. For those reasons, the Court found that the estate did not satisfy the requirements of Rule 204 and vacated the trial court’s decision.
Bill Berenson has been successfully representing Texans injured in accidents for more than 33 years.Located in Fort Worth and with offices in Dallas, Arlington and Houston, he represents clients injured by accidents involving cars, trucks, 18 wheelers, bicycles and motorcycles. If you want an experienced, Board Certified Fort Worth personal injury attorney who will provide you with compassionate legal representation, contact him today to schedule a free initial consultation.