This section contains the nature of the case and procedural background.

P and others filed a wrongful death action against D in federal court based on diversity. P had remarried after the death of her husband but testified falsely at trial claiming that the marriage to her deceased husband was her only marriage. D tried to impeach P with evidence that she was currently married. The district court applied the Federal Rules of Evidence and disallowed the attempt. P got the verdict and D appealed. D claimed the evidence of remarriage was admissible under Texas rules in a wrongful death action. The initial panel affirmed the district court judgment. D filed a petition for rehearing, specifically arguing that art. 4675a was not a mere rule of evidence but rather, part of Texas' substantive law on wrongful death.

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