When it comes to liquor liability litigation, the threshold for many states, including Alabama, is whether there is evidence that an individual was served alcohol while showing signs of “visible intoxication.” In the absence of eye-witness testimony, an emerging trend among the Plaintiffs’ bar is to attempt to establish a specific individual’s visible intoxication through an expert who extrapolates or “back-tracks” what an individual’s blood alcohol content (“B.A.C.”) was while at a Defendant’s establishment.
In its simplest form, back-tracking is a two part process. First, the expert must establish what intoxicated individual’s B.A.C. may have been around the time the individual was being served alcohol at a Defendant’s establishment. This can involve facts both from the night in question (i.e., amount of time spent drinking, number and type of drinks consumed, other sources of alcohol, food consumed through the day, and time between alcohol consumed and collection of blood sample etc.) as well as generalities regarding the individual (i.e., gender, height, weight, etc.).
The second part of the process is a determination of what signs of visible intoxication an individual may have been showing at a given B.A.C. This usually involves expert testimony about signs a typical individual would show within a given B.A.C. range.1 The more troubling part of this process is when an expert goes one step further and attempts to provide testimony regarding what signs of intoxication a specific individual in a case was likely showing based on this same information. In the absence of any eye-witness testimony, it is this form of testimony that is troublesome due to its highly speculative nature.
While there is no absolute uniformity among the dram shop states on the issue of back-tracking, the general trend appears to require some sort of corroborating evidence before an expert can testify about whether a specific individual was showing signs of visible intoxication. See Northside Equities v. Hulsey, 567 S.E.2d 4 (Ga. 2002) (expert back-tracking regarding signs of intoxication was sufficient to create a question of fact in response to otherwise uncontested fact-witnesses); but see, Davis v. Rpoint5 Ventures, LLC, 2013 WL 5947981 (Tex. App. Houston 1st Dist. Nov. 5, 2013) (Expert must adduce some evidence of conduct or signs of intoxication that individual would have displayed to controvert the bar’s evidence that individual did not exhibit any signs of intoxication); Reed v. Breton, 475 Mich. 531 (Mich. 2006) (Circumstantial evidence, such as blood alcohol levels, time spent drinking, or the condition of other drinkers, cannot, as a predicate for expert testimony, alone demonstrates that a person was visibly intoxicated because it does not show what behavior, if any, the person actually manifested to a reasonable observer.); Johnson v. Harris, 419 Pa. Super. 541 (Pa. Super. Ct. 1992) (Doctor’s generalized conclusions about the effects of alcohol on the average person, and not his personal observations of intoxicated individual on the day of the accident, was insufficient to create a genuine issue of fact.).
Alabama has not yet had the opportunity to examine an expert’s ability to back-track in a dram shop setting. Though buried in a no-opinion concurrence, the Alabama Supreme Court, has seemed to suggest that some form of eye-witness testimony is best when establishing visible intoxication. See, Owens v. Hooters Rest., 41 So. 3d 743, 744 (Ala. 2009) (stating that while the evidence strongly supported that Plaintiff was intoxicated at the accident scene and possibly even when leaving Defendant’s establishment, there was no eye-witness testimony that Plaintiff was ever served alcohol while visibly intoxicated, and therefore, summary judgment was affirmed).
With the continued use of back-tracking in dram shop cases in Alabama, it is likely only a matter of time before the right case goes up the Alabama Supreme Court on appeal. Until then, it will be important to recognize early in your case whether there are facts that may lead opposing counsel to utilize an expert to back-track an individual’s B.A.C. If so, you may need to retain your own expert to rebut the expected testimony.
1 The “Dubowski Chart” is often referenced by expert toxicologists and is an example of how experts attribute certain B.A.C. ranges to clinical signs/symptoms associated with alcohol intoxication. http://www.drugdetection.net/PDF%20documents/Dubowski%20-%20stages%20of%20alcohol%20effects.pdf