EXPERT WITNESSES BACK TO THE BASICS

Transcription

1 EXPERT WITNESSES BACK TO THE BASICS THOMAS C. RINEY Riney & Mayfield LLP 600 Maxor Building 320 South Polk Street Amarillo, Texas State Bar of Texas 25 TH ANNUAL ADVANCED EVIDENCE AND DISCOVERY COURSE 2012 Dallas - April 26-27, 2012 San Antonio May 24-25, 2012 CHAPTER 2

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3 THOMAS C. RINEY RINEY & MAYFIELD LLP Maxor Building 320 S. Polk Street Amarillo, TX (806) ; Fax (806) Thomas C. Riney has practiced civil trial law for over 30 years. His practice includes general civil litigation, commercial litigation, professional liability, products liability and healthcare related litigation. He is a Fellow of the American College of Trial Lawyers and is Board Certified in Civil Trial Law by the Texas Board of Legal Specialization. Tom is a former President of the Texas Association of Defense Counsel and is former President of the Amarillo Area Bar Association. He has served as Chair of the Committee on the Administration of the Rules of Evidence of the State Bar of Texas and currently serves on the Pattern Jury Charge Oversight Committee of the State Bar of Texas and on the Texas Supreme Court Advisory Committee. He is a member of the American Health Lawyers Association. Mr. Riney was named to the Top 100 Texas Super Lawyers in and a Top 50 Central & West Texas Region Super Lawyer of Texas Monthly magazine in He is named in the Best Lawyers of America. He is an Advocate Member and former President of the West Texas Chapter of the American Board of Trial Advocates. He is a Sustaining Life Fellow of the Texas Bar Foundation. Mr. Riney is a frequent author and lecturer at continuing legal education events. He is the author of Chapter VI, Death and Survival Actions, Texas Torts & Remedies, Matthew Bender & Co He is also the author of Chapter 12, Counterclaims, Cross-Claims and 3rd Party Claims, Federal Civil Procedure Before Trial 5th Circuit, (Lawyer s Cooperative Publishing Company, 1996) and is co-author of Hippocrates Enters the New Millennium Texas Medical Privileges in the Year 2000, 41 S. TEX. L. REV. 315 (2000). Tom received his B.A. degree from the University of Oklahoma in 1972 and his J.D. from the University of Oklahoma College of Law in 1976 where he served as a member of the Board of Editors of the Oklahoma Law Review. Tom has been active in his community, having served as President of the Golden Spread Council of the Boy Scouts of America, President of the Downtown Amarillo Kiwanis Club, President of the Coffee Memorial Blood Center and as a member of the Board of Directors of Catholic Family Service. He is a member of the Board of Governors of Northwest Texas Healthcare System.

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5 TABLES OF CONTENTS I. INTRODUCTION... 1 II. RULES OF EVIDENCE... 1 III. ASSISTING THE TRIER OF FACT... 1 IV. QUALIFICATIONS... 2 V. INADMISSIBLE EVIDENCE AS THE BASIS OF EXPERT TESTIMONY... 3 VI. OPINION ON ULTIMATE ISSUE... 5 VII. CONCLUSORY OR SPECULATIVE OPINIONS... 5 VIII. WORK PRODUCT PRIVILEGES REGARDING EXPERTS... 7 IX. CONCLUSION... 7 i

6 TABLE OF AUTHORITIES Cases Akin v. Santa Clara Land Co. Ltd., 34 S.W.3d 334 (Tex. App. San Antonio 2000, pet. denied)... 2 Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113 (Tex. 2004)... 2 Amerada Hess Corp. v. Wood Group Prod. Tech., 30 S.W.3d 5 (Tex. App. Houston [14th Dist.] 2000, pet. denied)... 2 Arkoma Basin Exploration Co., Inc. v. FMF Assocs A, Ltd., 249 S.W.3d 380 (Tex. 2008)... 6, 7 Birchfield v. Texarkana Mem l. Hosp., 747 S.W.2d 361, 365 (Tex. 1987)... 5 Borg-Warner v. Flores, 232 S.W.3d 765 (Tex. 2007)... 6 Broders v. Heise, 924 S.W.2d 148 (Tex. 1996)... 2 Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497 (Tex. 1995)... 5 Cantu v. Moore, 90 S.W.3d 821 (Tex. App. San Antonio 2002, pet. denied)... 2 Celotex Corp. v. Tate, 797 S.W.2d 197, (Tex. App. Corpus Christi 1990, no writ)... 1 City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009)... 5 Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227 (Tex. 2004)... 6 Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797 (Tex. 2006)... 2 Daubert v. Merrell Dow Pharmaceuticals, Inc, 509 U.S. 579 S. Ct. 2786, 125 L.Ed.2d 469 (1993)... 1 DeLeon v. Louder, 754 S.W.2d 148 (Tex. 1988)... 5 Dickerson v. DeBarbieris, 964 S.W.2d 680 (Tex. App. Houston [14th Dist.] 1998, no pet.)... 2, 5 E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995)... 1 E-Z Mart Stores, Inc. v. Terry, 794 S.W.2d 63 (Tex. App. Texarkana 1990, writ denied)... 5 First Southwest Lloyds Ins. Co. v. MacDowell, 769 S.W.2d 954 (Tex. App. Texarkana 1989, writ denied)... 4 Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998)... 2 GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605 (Tex. 1999)... 1 Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007)... 2 Harvey v. Culpepper, 801 S.W.2d 596 (Tex. App. Corpus Christi 1990, no writ)... 5 Hutchings v. Chevron U.S.A., Inc., 862 S.W.2d 752 (Tex. App. El Paso 1993, pet. denied)... 5 In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, (Tex. 2007)... 7 Insurance Co. of North America v. Myers, 411 S.W.2d 710 (Tex. 1966)... 2 K-Mart Corp. v. Honeycutt, 24 S.W.3d 357 (Tex. 2000)... 1 Ledbetter v. Missouri Pac. R. Co., 12 S.W.3d 139 (Tex. App. Tyler 1999, pet. denied)... 2 Liptak v. Pensabene, 736 S.W.2d 953 (Tex. App. Tyler 1987, no writ)... 3 Lopez v. City Towing Assocs., Inc., 754 S.W.2d 254 (Tex. App. San Antonio 1988, writ denied)... 1 Lopez-Juarez v. Kelly, 348 S.W.3d 10 (Tex. App. Texarkana 2011, pet. filed)... 3 Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (Tex. 1998)... 6 Merrell Dow Pharms., Inc. vs. Havner, 953 S.W.2d 706 (Tex. 1997)... 6 Moore v. Grantham, 599 S.W.2d 287 (Tex. 1980)... 3 Puente v. A.S.I. Signs, 821 S.W.2d 400 (Tex. App. Corpus Christi 1991, writ denied)... 2 Roark v. Allen, 633 S.W.2d 804 (Tex. 1982)... 2 Rogers v. Gonzales, 654 S.W.2d 509 (Tex. App. Corpus Christi 1983, writ ref d n.r.e.)... 2 Royal Maccabees Life Ins. Co. v. James, 146 S.W.3d 340, 353 n.7 (Tex. App. Dallas 2004, pet. denied).. 2 Seale v. Winn Exploration Co., Inc., 732 S.W.2d 667 (Tex. App. Corpus Christi 1987, no writ)... 1 St. Paul Med. Ctr. v. Cecil, 842 S.W.2d 808 (Tex. App. Dallas 1992, no writ)... 3 Texas Workers Comp. Comm n v. Wausau Underwriters Ins., 127 S.W.3d 50 (Tex. App. Houston [1st Dist.] 2003, pet. denied)... 4 Texas Workers Compensation Comm n v. Garcia, 862 S.W.2d 61 (Tex. App. San Antonio 1993), rev d on other grounds, 893 S.W.2d 504 (1995)... 2 United Blood Services v. Longoria, 938 S.W.2d 29 (Tex. 1997)... 2 Upjohn Co. v. Rylander, 38 S.W.3d 600 (Tex. App. Austin 2000, pet. denied)... 2 i

7 Volkswagen of America, Inc. v. Ramirez, 159 S.W.3d 897 (Tex. 2004)... 6 Wal-Mart Stores, Inc. v. Merrell, 313 S.W.3d 837 (Tex. 2010)... 6 Welder v. Welder, 794 S.W.2d 420 (Tex. App. Corpus Christi 1990, no writ)... 3 Whirlpool Corp. v. Camacho, 298 S.W.3d 631 (Tex. 2009)... 6 Statutes TEX. CIV. PRAC. & REM. CODE ANN TEX. CIV. PRAC. & REM. CODE ANN (e) TEX. CIV. PRAC. & REM. CODE ANN (f)... 3 TEX. CIV. PRAC. & REM. CODE ANN (b)... 3 TEX. CIV. PRAC. & REM. CODE ANN Rules FED. R. CIV. P. 26(b)(4)... 7 TEX. R. CIV. P (e)... 7 TEX. R. EVID TEX. R. EVID. 803(18)... 3 ii

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9 EXPERT WITNESSES BACK TO THE BASICS I. INTRODUCTION Since the decision of the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc, 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 469 (1993), there have been few seminars involving evidence or discovery that did not include a topic on the reliability of expert testimony and supporting and challenging expert opinions under Daubert and E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995) and their progeny. Because of the volume of Daubert/Robinson related opinions and the importance of those issues to most lawsuits, Daubert/Robinson presentations are always timely and merit time on programs. Due to the focus on Daubert/Robinson related topics, it can be easy to overlook some of the basic requirements for expert testimony. The purpose of this paper is to survey those basic requirements and to address recent significant Texas cases on expert testimony with a focus on Texas Supreme Court cases in the last few years. The author wishes to thank Heath Hendricks, an associate with Riney & Mayfield LLP, for his assistance in preparation of this paper. Credit is also due Justice Harvey G. Brown, Jr. of the First Court of Appeals in Houston. I have borrowed from his paper entitled Daubert/Expert Witness Update presented to the 18th Annual Advanced Medical Malpractice Course in March Justice Brown s paper is an excellent summary of both Daubert/Robinson and the law on expert witnesses generally. II. RULES OF EVIDENCE Texas Rules of Evidence address expert testimony. 1 Most questions regarding expert testimony are addressed by Rules or opinions interpreting those rules. Rule 706 deals with verified reports of auditors prepared pursuant to TEX. R. CIV. P. 172 and allows the admissibility of such reports. Rule 702 reads as follows: Testimony by Experts If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify 1 References to the Rules are to the Texas Rules of Evidence unless otherwise indicated. 1 thereto in the form of an opinion or otherwise. This rule actually sets forth two requirements for the admissibility of expert testimony: 1. The knowledge will assist the trier of fact to understand the evidence or determine a fact in issue (sometimes referred to as the helpfulness requirement); and 2. Qualifications to testify as an expert. III. ASSISTING THE TRIER OF FACT The mere fact that a witness has specialized knowledge, skill, expertise or training does not necessarily mean that the opinion is admissible. The opinion must assist the trier of fact. Expert testimony assists the trier of fact when the expert s knowledge and experience on a relevant issue are beyond that of an average juror and the testimony helps the trier of fact understand the evidence or determine a fact issue. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000). When the jury is equally competent to form an opinion about the ultimate fact issue or the testimony is within the common knowledge of the jury, the opinion should be excluded. Id. If a matter is obviously within the common knowledge of jurors, testimony on the matter can be of no assistance. Accordingly, it was proper for a trial court to exclude the testimony of a human factors and safety expert that a missing top rail on a grocery cart corral created an unreasonable risk because it served as an invitation for people to sit on the lower railing and that the lack of a top railing caused the accident. Id. at Numerous Texas cases have held that expert testimony was inadmissible because it failed to assist the jury. For example, it was error to admit testimony of a clinical psychologist and licensed counselor that the defendant s conduct was outrageous, although the error was found to be harmless. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, (Tex. 1999). An economist s testimony as to the dollar value of loss of love, affection, championship and society in a wrongful death case was properly excluded because, inter alia, an economist has no trace of special knowledge which jurors do not possess in deciding this issue. Seale v. Winn Exploration Co., Inc., 732 S.W.2d 667, 669 (Tex. App. Corpus Christi 1987, no writ); see also Celotex Corp. v. Tate, 797 S.W.2d 197, (Tex. App. Corpus Christi 1990, no writ); Lopez v. City Towing Assocs., Inc., 754 S.W.2d 254, (Tex. App. San Antonio 1988, writ denied). Legal opinions are inadmissible. While such opinions would not assist the trier of fact, the

10 decisions excluding legal opinions are generally based upon the principle that legal opinions encroach upon the trial court s province to determine law. See, e.g., Akin v. Santa Clara Land Co. Ltd., 34 S.W.3d 334, 339 (Tex. App. San Antonio 2000, pet. denied) (legal interpretation of an unambiguous agreement is a question of law for the trial court); Upjohn Co. v. Rylander, 38 S.W.3d 600, 611 (Tex. App. Austin 2000, pet. denied) (opinion on construction of statute improper); Ledbetter v. Missouri Pac. R. Co., 12 S.W.3d 139, 144 (Tex. App. Tyler 1999, pet. denied) (opinion on whether OSHA regulation comprised the proper standard of care improper); Dickerson v. DeBarbieris, 964 S.W.2d 680, 690 (Tex. App. Houston [14th Dist.] 1998, no pet.) (opinion on the legal effect of a condominium declaration authorizing a nonjudicial foreclosure improper); Puente v. A.S.I. Signs, 821 S.W.2d 400, 402 (Tex. App. Corpus Christi 1991, writ denied) (an expert cannot testify to the existence of a duty ); see also Texas Workers Compensation Comm n v. Garcia, 862 S.W.2d 61, 105 (Tex. App. San Antonio 1993), rev d on other grounds, 893 S.W.2d 504 (1995) (testimony of a law school professor offered as an expert on constitutional law and defenses under the past and present workers compensation law was inadmissible). On the other hand, there are several Texas cases holding that certain subjects are appropriate topics of expert opinion. Testimony regarding bad faith insurance practices is appropriate. See, e.g., Royal Maccabees Life Ins. Co. v. James, 146 S.W.3d 340, 353 n.7 (Tex. App. Dallas 2004, pet. denied). Expert testimony is required in certain circumstances. It has long been the rule in Texas that expert testimony is necessary to establish causation of medical conditions outside the common knowledge and experience of jurors. Insurance Co. of North America v. Myers, 411 S.W.2d 710, 713 (Tex. 1966) (requiring expert testimony that a pre-existing tumor was activated and the deadly effects of the malignancy accelerated by an injury); Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982) (diagnosis of skull fracture not within the experience of the ordinary layman). The Supreme Court discussed the history of cases requiring evidence of causation in Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007). In Guevara, the court reversed a judgment that included $1.1 million in medical expenses for an 86-year-old man who was injured in a car accident because there was no expert evidence that the medical expenses were caused by the accident. Expert testimony is required in a legal malpractice case where the causal connection between the attorney s negligence and the client s loss is neither obvious nor a matter within the common knowledge of lay persons. Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, (Tex. 2004). Expert testimony was found to be necessary regarding the reasonableness of a settlement in a personal injury case. Amerada Hess Corp. v. Wood Group Prod. Tech., 30 S.W.3d 5, 11 (Tex. App. Houston [14th Dist.] 2000, pet. denied). Expert testimony is also necessary to prove the reasonableness and necessity of attorneys fees. Cantu v. Moore, 90 S.W.3d 821, 826 (Tex. App. San Antonio 2002, pet. denied). See also IV, infra, regarding certain statutes that set expert qualifications. IV. QUALIFICATIONS In deciding whether an expert is qualified to offer an opinion, the trial court must determine that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex. 1998) (emphasis added); see also, Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996). Gammill held that not every mechanical engineer is qualified to testify as an expert in every products liability case and Broders held that not every physician can testify as to causation in every medical malpractice case. Likewise, a degree in chemistry alone may not be sufficient to offer an opinion regarding tire chemistry. In Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797 (Tex. 2006), the Supreme Court held that an expert with an undergraduate degree in chemistry, a masters degree in polymer science and engineering, but had no specialized expertise in tire chemistry and had never worked for a tire company nor published any articles on tire chemistry, was not qualified to offer an opinion on the subject of wax migration and contamination in tires and their effect on tire adhesion. Id. at 806. The determination of whether a witness qualifies as an expert is within the discretion of the trial court and the trial court s discretion will not disturb absent clear abuse. The party offering the expert bears the burden to prove qualifications under Rule 702. Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996); see also United Blood Services v. Longoria, 938 S.W.2d 29, 31 (Tex. 1997) (this burden applies in a summary judgment context). It is nearly impossible to lay down any definite guidelines for determining the knowledge, skill or experience required in a particular case or of a particular witness. Rogers v. Gonzales, 654 S.W.2d 509, 513 (Tex. App. Corpus Christi 1983, writ ref d n.r.e.). Rogers involved the opinions of a police officer regarding the cause of an automobile accident. The testimony was admitted in Rogers. A comparison of the cases involving the admissibility of the 2

11 opinions of police officers on the causes of accidents illustrates the case specific nature of the analysis. See, e.g., Lopez-Juarez v. Kelly, 348 S.W.3d 10 (Tex. App. Texarkana 2011, pet. filed) (testimony of police officer not admissible). The Lopez-Juarez case cites many of the cases on this subject. While expert testimony is primarily governed by the Rules and case law, statutory requirements govern expert qualifications for certain types of claims. Texas Civil Practice & Remedies Code sets forth the requirements for an expert testifying as to the departure from the standards of care in a health care liability claim. Objections to the qualifications of a witness in such a claim must be made within 21 days after receipt of the curriculum vitae of the witness or the witness deposition. TEX. CIV. PRAC. & REM. CODE ANN (e), (f), (b). Chapter 74 also has various requirements regarding expert reports which are beyond the scope of this paper. Claims against licensed or registered architects, land surveyors or engineers require an affidavit by an expert who meets the requirements set forth in TEX. CIV. PRAC. & REM. CODE ANN A claimant asserting an asbestos-related injury must serve a report by a physician with certain qualifications that are listed in TEX. CIV. PRAC. & REM. CODE ANN V. INADMISSIBLE EVIDENCE AS THE BASIS OF EXPERT TESTIMONY Rule 703 reads: Bases of Opinion Testimony by Experts The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by, reviewed by, or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. Prior to the adoption of Rule 703, an expert could not base an opinion solely on inadmissible hearsay evidence. Moore v. Grantham, 599 S.W.2d 287, 289 (Tex. 1980). Rule 703 allows an expert to rely upon hearsay in forming his opinion if the data is of the type reasonably relied upon by experts in the particular field. St. Paul Med. Ctr. v. Cecil, 842 S.W.2d 808, 815 (Tex. App. Dallas 1992, no writ). Whether experts in the field reasonably rely upon certain data is a matter for preliminary determination by the trial court under Rule 104(a). An appellate court will look to the record as a whole in reviewing this preliminary determination by the trial court. Cecil, 842 S.W.2d at 815. The issue of reasonable reliance by other experts in the field can be proved by the expert s own testimony. Id. A trial court may also judicially notice that hearsay evidence is of a type relied upon by experts in the field. Liptak v. Pensabene, 736 S.W.2d 953, (Tex. App. Tyler 1987, no writ). In addition, a trial court may infer from other evidence in the case, including testimony by other experts that they relied on the information, that the inadmissible evidence is of a type relied upon by experts in the field. Welder v. Welder, 794 S.W.2d 420, 430 (Tex. App. Corpus Christi 1990, no writ) (accountant could testify as to separate or community nature of various assets based upon a schedule which traced community interests, separate interests, and expenditures through the joint account, even if the summaries on records were inadmissible hearsay because of testimony by witnesses about the records used). Although an expert may rely upon inadmissible evidence under certain circumstances, the fact of the expert s reliance does not make the evidence admissible. Learned treatises are partially admissible. To the extent called to the attention of an expert witness on cross-examination or relied upon by the expert in direct examination, statements in learned treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art established as reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial evidence are admissible into evidence as an exception to the hearsay rule. Although the statements may be read into evidence, they may not be received as exhibits. Rule 803(18). Rule 705 reads: Disclosure of Facts or Data Underlying Expert Opinion (a) Disclosure of Facts or Data. The expert may testify in terms of opinion or inference and give the expert s reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event disclose on direct examination, 3

12 or be required to disclose on cross-examination, the underlying facts or data. (b) Voir dire. Prior to the expert giving the expert s opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall, or in a civil case may, be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. This examination shall be conducted out of the hearing of the jury. (c) Admissibility of opinion. If the court determines that the underlying facts or data do not provide a sufficient basis for the expert s opinion under Rule 702 or 703, the opinion is inadmissible. (d) Balancing test; limiting instructions. When the underlying facts or data would be inadmissible in evidence, the court shall exclude the underlying facts or data if the danger that they will be used for a purpose other than as explanation or support for the expert s opinion outweighs their value as explanation or support or are unfairly prejudicial. If otherwise inadmissible facts or data are disclosed before the jury, a limiting instruction by the court shall be given upon request. Subparts (b), (c) and (d) were added by amendment in If the expert relies upon inadmissible hearsay, may he recount that hearsay in explaining the opinion? In other words, can the expert become a conduit for otherwise inadmissible hearsay testimony? There was disagreement among the appellate courts on this issue prior to the adoption of subsection (d). An opinion that thoroughly analyzed this issue was First Southwest Lloyds Ins. Co. v. MacDowell, 769 S.W.2d 954 (Tex. App. Texarkana 1989, writ denied). An insurer in MacDowell sought to offer testimony of a fire marshal that an eyewitness had reported to him that a witness had seen a fire begin in the building in question and that a person ran from the front of the building and sped away in a vehicle. The insurer offered this testimony as a partial basis for the fire marshal s conclusion that the fire was incendiary to support the insurer s arson defense. The trial court allowed the fire marshal to state that an eyewitness account contributed to his conclusion but refused to allow him to recount before the jury what the eyewitness had told him. Id. at 957. In a careful analysis, the Texarkana court first observed that the language of what is currently Rule 705(a) that the expert may in any event disclose on direct-examination the underlying facts or data did not indicate an absolute right of the expert to disclose all of the facts and underlying data under all circumstances. The court concluded that the better judicial position is to disallow the affirmative admission of otherwise inadmissible matters merely because such matters happen to be underlying data upon which an expert relies. Id. at 958. The court made a careful distinction between an expert generally stating the basis for his opinion on direct examination, and stating in detail all information that contributed to the formation of the opinion. Accordingly, while the fire marshal could testify that his opinion was based in part upon reports made to him during the course of the investigation, he would not necessarily be entitled to express all the details of each of the bases of his opinion. The court further noted that even if it had determined that Rule 703 mandated that all facts or data relied upon by an expert were ipso facto admissible, the trial court in the exercise of its discretion could exclude these types of matters under Rule 403. Id. at 958. Subsection (d) of Rule 705 adopts a balancing test and mandates the exclusion of the underlying facts or data if the danger they will be used for a purpose other than as an explanation or support of the opinion outweighs their value as an explanation or support or are unfairly prejudicial. This is similar to the standard of Rule 403. Absent an objection to the expert s recitation of the otherwise inadmissible underlying facts, testimony by the expert regarding the underlying facts is admissible. Texas Workers Comp. Comm n v. Wausau Underwriters Ins., 127 S.W.3d 50, 57 (Tex. App. Houston [1st Dist.] 2003, pet. denied). In other words, a prejudicial-harm objection is necessary to invoke the balancing test. Furthermore, cross-examination can minimize any prejudicial effect. Id. In most cases, counsel will know in advance of trial whether an opposing expert relies upon hearsay. Under those circumstances, a motion in limine seeking to exclude the expert reciting those facts or, in the alternative, requesting a limiting instruction should be considered. 4

13 VI. OPINION ON ULTIMATE ISSUE An opinion that is otherwise admissible is not objectionable merely because it embraces an ultimate issue that the trier of fact will decide. Rule 704. Rule 704 has been interpreted to allow an opinion on a mixed question of law and fact, including opinions on whether certain conduct constituted negligence, gross negligence, heedless and reckless conduct, and whether certain acts were proximate causes of a condition. Birchfield v. Texarkana Mem l. Hosp., 747 S.W.2d 361, 365 (Tex. 1987). Counsel must show that the expert has offered testimony based on proper legal concepts. DeLeon v. Louder, 754 S.W.2d 148, 149 (Tex. 1988). Before an expert can give an opinion regarding negligence, counsel must lay a predicate showing that the expert is familiar with the proper legal definition of negligence. E-Z Mart Stores, Inc. v. Terry, 794 S.W.2d 63, 65 (Tex. App. Texarkana 1990, writ denied); Harvey v. Culpepper, 801 S.W.2d 596, 601 (Tex. App. Corpus Christi 1990, no writ). Other Rules may preclude opinions on an ultimate issue, such as Rule 702 (requiring that the opinion assist the trier of fact) and Rule 403 (excluding probative evidence that is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury). Wide discretion is afforded to the trial court in determining whether to admit or exclude expert testimony regarding ultimate fact issues in the case. Hutchings v. Chevron U.S.A., Inc., 862 S.W.2d 752, 761 (Tex. App. El Paso 1993, pet. denied). Rule 704 does not, however, allow an expert to state an opinion or conclusion on a pure question of law. Dickerson v. DeBarbieris, 964 S.W.2d 680, 690 (Tex. App. Houston [14th Dist.] 1998, no pet.). In light of the opinions on conclusory or speculative opinions discussed in XII, infra, counsel must be cautious about soliciting opinions on the ultimate issue without offering evidence that supports those opinions. VII. CONCLUSORY OR SPECULATIVE OPINIONS If an expert opinion is conclusory and no basis for the opinion is offered or if the basis provides no support for the opinion, the opinion is not probative evidence. City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009). While this principle is similar to a Daubert/Robinson analysis of the reliability of the opinion, it is nevertheless different. One of the most important differences is that no objection need be made to the expert s opinion during the trial to preserve an argument that the opinion is speculative or conclusory and therefore does not constitute probative evidence that supports a judgment. Id. at 816. Pollock involved a claim that a child s leukemia was caused by her in utero exposure to benzene, which had allegedly migrated from a landfill into the Pollock home. An engineer testified that the Pollocks were exposed to benzene at a certain level and an oncologist testified that the exposure to benzene concentrations at the level that the engineer postulated caused the leukemia. The City did not challenge the methodology of either expert but rather challenged only the final conclusions of those experts. The Supreme Court explained that when a scientific opinion is not conclusory but the basis offered for it is unreliable, a party who complains that the evidence is legally insufficient to support the judgment must make an objection to give the proponent of the expert a fair opportunity to cure any deficit and prevent trial by ambush. Id. at When a scientific opinion is admitted into evidence without objection, it may be considered probative evidence even if the basis of the opinion is unreliable. But if no basis for the opinion is offered or if the basis offered provides no support, however, the opinion is merely a conclusory statement and cannot be considered probative evidence. In this situation, an objection is not required. Id. at 818. Although the line between a no evidence challenge and a challenge to the expert s methodology is often blurry, the distinction has been present since the adoption of Daubert in Texas. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497 (Tex. 1995) was decided the same day as Robinson. The majority opinion in Crye makes no reference to Robinson, although Robinson is discussed in a concurring opinion. In Crye, the plaintiff attempted to establish a connection between the use of Polysporin spray and an alleged frostbite injury by offering the testimony of a civil engineering professor. His testimony included the results of a study conducted by a graduate research assistant under his direction. In that study, five different commercially available antibiotic sprays including Polysporin were sprayed on dead pigs feet from various distances for different periods of time and from two different angles. This study supposedly showed that the Polysporin spray caused a greater temperature reduction than any of the other sprays tested. The majority opinion, however, stated that where an expert s opinion is based upon assumed facts that vary materially from actual undisputed facts, the opinion has no probative value and cannot support a verdict or judgment. Because the expert had based his opinion in part on the assumption that there was no redness on the patient s foot after the spray was applied but the patient and her husband testified that the foot was red after the spray was applied, the 5

14 opinion constituted no evidence that Polysporin spray caused Crye s frostbite injury. The interrelation of the reliability of the expert s opinion and a no evidence challenge is illustrated in Merrell Dow Pharms., Inc. vs. Havner, 953 S.W.2d 706 (Tex. 1997). The Supreme Court stated therein at 714: If the foundational data underlying opinion testimony are unreliable, an expert will not be permitted to base an opinion on that data because any opinion drawn from that data is likewise unreliable. Further, an expert s testimony is unreliable even when the underlying data are sound if the expert draws conclusion from that data based on flawed methodology. A flaw in the expert s reasoning from the data may render reliance on a study unreasonable and render the inferences drawn therefrom dubious. Under that circumstance, the expert scientific testimony is unreliable, and legally, no evidence. The Court further stated at 720: In sum, we emphasize the courts must make a determination of reliability from all of the evidence. Courts should allow a party, plaintiff or a defendant, to present the best available evidence, assuming it passes muster under Robinson, and only then should a court determine from a totality of the evidence, considering all factors affecting the reliability of particular studies, whether there is legally sufficient evidence to support a judgment. In Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227 (Tex. 2004), the Court addressed the issue of whether a failure to object to the admission of expert testimony as unreliable before or during trial waived any complaint that the testimony had no probative value. The Court decided that there must be a Robinson challenge in order for a court to undertake the gatekeeping function of evaluating the expert s methodology but that such an objection was unnecessary to preserve a no evidence objection to conclusory, speculated and unsupported expert opinion. Id. at 229, 233. Crown Central presented expert testimony that the defendant s conduct involved a high degree of risk, that the defendant had actual subjective awareness of the risk, and proceeded with conscious indifference. The expert was not asked to explain the basis for his opinions. The Supreme Court concluded that this testimony did not constitute legally sufficient evidence to support a gross negligence finding. The Court distinguished its opinion in Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (Tex. 1998) and held that when the testimony is challenged as conclusory or speculative, and therefore non-probative on its face, there is no need to go beyond the face of the record to test its reliability. Thus, when a reliability challenge requires evaluation of the underlying methodology, technique, or foundational data used by the expert, an objection must be made before or during trial. When the challenge is restricted to the face of the record, such as whether the opinion is speculative or conclusory on its face, the legal sufficiency of the evidence may be challenged without an objection to the admissibility of the opinion. Coastal Transp. Co., Inc., 136 S.W.3d at 233. Subsequent opinions finding insufficient evidence where no objection had been made include Wal-Mart Stores, Inc. v. Merrell, 313 S.W.3d 837 (Tex. 2010) (opinion of expert in fire science that a halogen lamp was the likely cause of the fire was speculative and conclusory because he failed to rule out other potential causes of the fire such as careless disposal of smoking materials while the expert laid a general foundation for the danger of halogen lamps, his specific causation theory amounted to little more than speculation); Whirlpool Corp. v. Camacho, 298 S.W.3d 631 (Tex. 2009) (expert testimony regarding design defect of a dryer was not reliable, in part because there was a lack of testing, and the opinions were subjective, conclusory and not entitled to probative weight); Borg-Warner v. Flores, 232 S.W.3d 765 (Tex. 2007) (evidence was legally insufficient to establish that asbestos fibers from grinding brake pads was a cause-in-fact of lung scarring in a smoker); Volkswagen of America, Inc. v. Ramirez, 159 S.W.3d 897 (Tex. 2004) (plaintiff s expert offered an insufficient explanation to support an opinion that a defect in a metal bearing caused the left rear wheel assembly to separate from the axle of a vehicle). In Arkoma Basin Exploration Co., Inc. v. FMF Assocs A, Ltd., 249 S.W.3d 380 (Tex. 2008), the Supreme Court again noted that an objection to expert testimony before or during trial is required if the objection requires evaluation of the underlying methodology, technique, or foundational data but that no objection was required if the complaint was restricted to the face of the record, as when the objection is that an opinion was speculative or conclusory on its face or assumed facts contrary to 6

15 those on the face of the record. The Court then noted that some objections will fall close to the line between those two categories. It determined that it did not need to characterize Arkoma s objection because it found the testimony legally sufficient even if no objection before or during trial was necessary. Id. at The issue in Arkoma was the legal sufficiency of the evidence on damages. The Court noted that some of the testimony was cursory in some respects but discussed some of the evidence supporting the opinion. It agreed that the expert s testimony could have been a lot clearer and that certain references to up here and right there while referring to slides and posters often made it hard to tell what the expert was talking about. The Court concluded that it could not say on the record that the opinions were unreliable or speculative nor conclusory as a matter of law. Contrasting earlier decisions, the Court observed the expert did not simply state a conclusion without any explanation or ask the jurors to take my word for it. Id. at 389. The Court specifically pointed out that experts are not required to introduce foundational data at trial unless the opposing party or the court insists under Rule 705. Id. at In light of its opinions on sufficiency of the evidence, however, it would seem that the proponent of an expert would run a serious risk by not introducing the foundational data at trial and then relying upon Rule 705 to sustain a judgment. for expert testimony. Proponents of expert testimony must insure that the proffered opinion meets all of the requirements for admissibility and the opponent will want to make sure that the appropriate objections are made to preserve error. The proponent of an opinion must also be sure the record includes evidence supporting the expert s opinion in order to survive a no evidence challenge on appeal. VIII. WORK PRODUCT PRIVILEGES REGARDING EXPERTS Information provided to a testifying expert is generally discoverable under Texas law. TEX. R. CIV. P (e); In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, (Tex. 2007). In 2010, FED. R. CIV. P. 26(b)(4) was amended to provide protection from disclosure of draft reports of experts and for communication between a party s attorneys and expert witnesses. The Texas Supreme Court Advisory Committee voted to recommend to the Texas Supreme Court that similar amendments not be adopted in Texas. The Supreme Court will now decide whether or not to adopt provisions similar to the amendments to the federal rules. In the meantime, one should assume that all communications with experts and all materials given to an expert are fully discoverable under Texas law. IX. CONCLUSION The reliability of an expert opinion under Daubert/Robinson should obviously be considered by both the proponent and the opponent of an expert opinion. The careful practitioner will not let that focus detract from attention to the other requirements 7

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