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1 DAUBERT - THE IMPACT ON ESTATE AND FIDUCIARY LITIGATION STEVE M. KING Judge Probate Court Number One Tarrant County, Texas MARY C. BURDETTE Calloway, Norris, Burdette & Weber Dallas, Texas State Bar of Texas th 28 ANNUAL ADVANCED ESTATE PLANNING AND PROBATE COURSE June 9-11, 2004 San Antonio CHAPTER 15


3 Probate Court Number One Tarrant County, Texas Steve M. King Judge fax: Steve M. King Biographical Information PERSONAL Native of Graham, Young County, Texas 6th Generation Texan Married 29+ years to Julia Milford King, two children, Cassie and Mason EDUCATION Baylor University School of Law, Juris Doctor, 1976 University of Texas, Austin, Texas, Bachelor of Arts (Government), "with honors", 1974 PROFESSIONAL CAREER Private Practice of Law - Fort Worth, Texas Judge, Tarrant County Probate Court Number One, Present Assistant Presiding Judge, Statutory Probate Courts of Texas, Presiding Judge, Statutory Probate Courts of Texas, PROFESSIONAL ACTIVITIES State Bar of Texas; Real Estate, Probate and Trust Section Judicial Section Uniform Trust Code Revision Committee Texas Guardianship Manual Revision Committee Fellow, Tarrant County and Texas Bar Foundations Life Member, Baylor Law School Alumni Association Tarrant County Bar Association, History & Archives Committee Founding Director, President, Tarrant County Probate Bar Association Life Member, National College of Probate Judges Secretary-Treasurer, National College of Probate Judges Faculty, Texas College of Probate Judges Texas Supreme Court Judicial Committee for Information Technology CURRENT CIVIC INVOLVEMENT Chair, Buckner Foundation Tarrant County Historical Society Fort Worth Heritage Trails Task Force Chair, Outriders of the Fort Worth Herd North Fort Worth Historical Society Fort Worth Corral, Westerners International Director, Fort Belknap Archives Director, Dispute Resolution Services, Inc. Deacon, Travis Avenue Baptist Church PUBLICATIONS AIDS, An Epidemic of Fear," Personnel Law 1987, Professional Management Seminars, Inc., Dallas, TX, 1987 The Tarrant County Courthouse: A Self-Guided Walking Tour, Tarrant County, 1995 Cement Mountain, Flag Springs, Salt Creek Prairie, The Turtle Hole, The New Handbook of Texas, Texas State Historical Association, Austin, TX, 1996 "Actual Administration Including Accounting Practices," Guardianship Issues in Probate and Family Law Courts, State Bar of Texas, Dallas, TX, 1996 "Administration of a Guardianship," Guardianship Issues in Probate and Family Law Courts, State Bar of Texas, Dallas, TX, 1998 The Role of the Ad Litem, 1998 Advanced Probate and Estate Planning Course, State Bar of Texas, Austin, TX Inventories and Accountings, 1999 Intermediate Estate Planning, Guardianship and Elder Law Conference, University of Texas, Galveston, TX

4 Tool Time (Less Restrictive Alternatives to Guardianship), 2000 Wills and Probate Institute, Southwestern Legal Foundation, Dallas, TX Survival Kit for the Ad Litem, 2000 Advanced Probate and Estate Planning Course, State Bar of Texas, Fort Worth, TX Primer: Ad Litems 2nd Annual Intermediate Estate Planning, Guardianship and Elder Law Conference, University of Texas, Galveston, TX, 2000 The Pink Lady on the Bluff: History of the Tarrant County Courthouse, Tarrant County Historical Society Annual Meeting, Fort Worth, TX, 2001 Legislative Update, Real Estate, Probate and Trust Law Section Luncheon, State Bar of Texas Annual Meeting, Austin, TX, 2001 Mediation Training - Existing Probate Court Mediation Programs, National College of Probate Judges, 2000 Fall Conference, Indian Wells, CA rd 2001: A Probate Odyssey, 3 Annual Intermediate Estate Planning, Guardianship and Elder Law Conference, University of Texas, Galveston, TX, 2001 Ad Litems 2002: The Roles of Attorneys and Guardians Ad Litem, Guardianships: An Elder And Mental Health Perspective, State Bar of Texas, Austin, TX, 2002 Experts in Probate The Search for the Right Stuff, 2002 Probate Litigation Seminar, Tarrant County Probate Bar Association, Fort Worth, TX How Judges and their Spouses Relieve Tension - Hobbies of Successful Judges and Their Spouses, National College of Probate Judges Fall 2002 Conference, Tucson, AZ Less Restrictive Alternatives to Guardianship, Issues in Psychiatric Services: Year 2002, Texas Hospital Association, San Antonio, TX Special Needs Trusts: A View from the Bench, Special Needs Trusts, Stetson University School of Law and Texas Wesleyan School of Law, Fort Worth, TX, 2003 National Survey of Probate Court Jurisdiction National College of Probate Judges Spring Conference 2003, Galveston, TX Jurisdiction: A View from the Probate Court, Advanced Personal Injury Law Course, State Bar of Texas, Dallas, TX, 2003 th Ad Litems 2003: The Roles of Attorneys and Guardians Ad Litem, 5 Annual Intermediate Estate Planning, Guardianship and Elder Law Conference, University of Texas, Galveston, TX Panelist, Symposium on the Future of the Connecticut Probate Courts, Connecticut Bar Association, New Haven, CT, 2003 Contributing Writer, Centennial History of the Tarrant County Bar Association, , Magnolia Media Publishing, Fort Worth, Texas, 2004 If My Court Had Unlimited Resources, Where I Would Spend it and Why, National College of Probate Judges Spring Conference 2004, Santa Fe, NM Probate, Guardianship and Mental Illness Case Update, Texas College of Probate Judges Annual Meeting 1996, 1997, 1998, 1999, 2000, 2001, 2002

5 MARY C. BURDETTE Calloway, Norris, Burdette & Weber 3811 Turtle Creek Boulevard, Suite 400 Dallas, Texas Phone: Fax: BIOGRAPHICAL INFORMATION AREAS OF PRACTICE Probate, Estate and Trust law, including will, trust and fiduciary litigation; estate administration; guardianships; estate planning; estate taxation; wills and trusts. EDUCATION Bachelor of Science Degree in Accounting, summa cum laude, University of Texas at Dallas Juris Doctor Degree, cum laude, Southern Methodist University School of Law. PROFESSIONAL HISTORY Admitted to the State Bar of Texas by the Supreme Court of Texas, November Associated with the law firm of Thompson & Knight, June 1982; Shareholder, December Partner in the law firm of Calloway, Norris & Burdette, September Board Certified Estate Planning and Probate Law - Texas Board of Legal Specialization. Board Certified Tax Law - Texas Board of Legal Specialization. Certified Public Accountant. Chairperson, Probate, Estates & Trust Section, Dallas Bar Association


7 TABLE OF CONTENTS I. INTRODUCTION... 1 II. DEVELOPMENT OF THE CURRENT STANDARDS FOR ADMISSION OF EXPERT TESTIMONY. 1 A. Frye v. United States -- The "General Acceptance" Standard... 1 B. Adoption of the Rules of Evidence... 1 C. Daubert v. Merrell-Dow Pharmaceuticals -- Federal Rules of Evidence Supersede Frye D. The Gatekeeper Role of the Trial Judge III. THE TEXAS STANDARDS FOR CHALLENGING RELIABILITY OF EXPERT TESTIMONY... 2 A. The Texas Rules of Evidence B. Texas Cases on Expert Testimony Pre-Daubert Expert Tests Adoption of Daubert Rationale Extension of Daubert/Robinson Criteria to All Expert Testimony a. Texas... 4 b. Nationally Additional Texas Cases following Robinson IV. GETTING A HANDLE ON GATEKEEPING: THE EIGHT GATES... 8 V. A CONTINUUM OF EXPERTS... 8 A. When Experts are Required B. When Experts are Helpful C. When Experts are Neither Required nor Helpful... 9 VI. THE CARD AND FEEDING OF EXPERTS A. Guardianship/Capacity Issues B. Qualification for the Specified Area C. Did I Really Say That? D. Start Off in First, Then Shift Gears E. Once the Toothpaste is out of the Tube F. Give Your Expert the Tools to Do the Job G. Simplify, Simplify, Simplify H. Practice, Practice, Practice VII. WHEN AND HOW TO CHALLENGE/ATTACK AN EPERT A. Timing Prior to Trial At the Pre-Trial At the Motion in Limine At Trial Continually Educate the Jury B. Is an Expert Even Necessary? C. Is This Expert Qualified? - Shooting the Messenger D. Making a Daubert/Robinson Challenge - Attacking the Message E. Third Line of Defense: Limiting Instructions F. Specific Areas of Qualification XIII. PRESERVING ERROR A. Procedural Considerations B. Practical Applications Make a Record Build Your Evidentiary Record C. Standard of Review: Abuse of Discretion i

8 IX. EXPERT TESTIMONY AND THE PROBATE COURT A. Decedent's Estates Will Contests a. Statutory Definition of Capacity b. Proper Opinion Testimony is as to Elements of Capacity, Not Ultimate Issue c. Acceptance of Non-Expert Testimony Regarding Capacity d. Non-Binding Nature of Testimony on Jury Will Contests: Undue Influence a. Elements of Proof b. Burden of Proof/Circumstantial Evidence Will Contests: Handwriting a. Lay Opinion Testimony Admissible b. Expert Testimony Acceptable Will Contests: Revocation a. Methods of Revocation b. Intent to Revoke Fiduciary Duty? B. Guardianships Contractual Capacity to Retain Selecting Medical Experts Doctor's Letter Court-Ordered Medical Examination Payment Confidentiality of Mental Exam (The "Medical Miranda") C. Mental Commitments Elements for Civil Commitment Expert Testimony Required D. Legitimation and Heirship Heirship Legitimization a. Paternity v. Legitimization b. Creature of Statute c. Liberally Construed d. Modern Trend e. Exclusive Means f. Evidentiary Standard g. Expert Testimony or Not? Cases E. Gender Determination F. Administration Issues G. Attorney's Fees Basic Premise Entitlement to Attorney's Fees: Will Contest Entitlement to Attorney's Fees: Guardianship Contest Sine Qua Non: Expert Testimony on Reasonableness What is Reasonable? Sine Qua Non(2): Adequate Documentation Discovery Considerations Regarding Attorney's Fees H. Commissions X. A BIBLIOGRAPHICAL NOTE: ii

9 DAUBERT THE IMPACT ON E S T A T E A N D F I D U C I A R Y LITIGATION I. INTRODUCTION The use of expert witnesses has become increasingly common in the probate court, with the dueling experts each seeking to sell their theory to the judge or jury. With the Texas Legislature s persistent expansion of the jurisdiction of the statutory probate court (see In re Graham, 971 S.W.2d 56 at 59 (Tex. 1998), matters now come regularly before the probate bench (and necessarily involving the probate bar) that were previously only known to the environs of the District Court. Far beyond the standard fare of will contests and guardianship fights, the dockets of the statutory probate courts are now crowded with nursing home abuse, wrongful death and medical and legal malpractice cases. Medical science in the late twentieth and early twenty-first centuries has handed us a two-edged blade: with the possibility of a longer life, we also face an increasing possibility that some of our remaining lifespan will be spent in a condition of diminished capacity. In our grandparents day, most people died at home. Today, of the approximately 2 million people who die each year in America, 80% die in hospitals or long-term care facilities (see studies discussed in Cruzan v. Director, Missouri Department of Health 110 S. Ct (1990) Today, except for AIDS or anthrax, it is comparatively rare in America to die of an infectious disease. Over three-quarters of all Americans who die after age 65 succumb either to cancer or cardiovascular disease (heart attack or stroke). Also, increased longevity, coupled with an unprecedented accumulation of wealth in America, has created a burgeoning cottage industry of probate litigation. This paper will attempt to briefly review the development of the current standards for expert testimony and evidence under Texas jurisprudence, examine some of the principal areas in which expert testimony might be encountered in the probate arena and discuss some practical pointers in using and challenging experts. II. DEVELOPMENT OF THE CURRENT STANDARDS FOR ADMISSION OF EXPERT TESTIMONY A. Frye v. United States -- The "General Acceptance" Standard Long before Daubert v. Merrell-Dow Pharmaceuticals, 113 S.Ct (1993) (hereafter sometimes Daubert ), the admissibility of scientific testimony, particularly regarding novel scientific theories, was addressed by the federal courts in Frye v. United States, 293 F (D.C. Cir. 1923). Frye, the defendant, was charged with murder. As a defense, Frye s attorneys sought to introduce expert testimony regarding the results of a systolic blood pressure deception test, an early form of lie detector. The trial court refused to admit the evidence and the defendant was convicted. The defendant argued on appeal that such expert testimony should be admissible where an inexperienced person would be unable to form a correct opinion because the testimony concerned a science, art, or trade in which the person does not have experience, and where the issue does not fall within common knowledge. The test formulated by the Court of Appeals for the D.C. Circuit was that the theory from which the expert's deduction is made must be sufficiently established to have gained general acceptance in that particular discipline. Frye at The trial judge only had the burden to determine whether the scientific theory had gained "general acceptance," rather than have to evaluate the reliability of the particular scientific theory. If the scientific evidence had not gained general acceptance within the scientific community, it would be deemed inadmissible. B. Adoption of the Rules of Evidence Subsequent to the ruling in Frye (1923), the Federal Rules of Evidence were adopted. In 1982, Texas adopted the Texas Rules of Evidence, largely mirroring the federal rules. Federal Rule of Evidence 702, which governs testifying experts, provides: 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 thereto in the form of an opinion or otherwise. C. Daubert v. Merrell-Dow Pharmaceuticals -- Federal Rules of Evidence Supersede Frye In Daubert v. Merrell-Dow Pharmaceuticals, 113 S.Ct (1993), two minor children and their parents sued Merrell-Dow, alleging that the children's birth defects had been caused by their mothers' prenatal ingestion of Bendectin, a prescription anti-nausea drug marketed by Merrell-Dow. Merrell-Dow filed for a summary judgment supported by the affidavit of an expert, based on a review of the published scientific literature on the 1

10 subject, concluding that Bendectin was not shown to be a risk factor for human birth defects. The plaintiffs responded with eight experts of their own, each arguing that Bendectin could cause birth defects, and basing their conclusions on animal studies, chemical structure analysis and an unpublished "reanalysis" of previously published human statistical studies. The trial court granted a summary judgment for Merrell-Dow, holding that the plaintiff's evidence did not meet the "general acceptance" standard established by Frye for the admission of expert testimony. The Ninth Circuit Court of Appeals affirmed, holding that expert opinion based on scientific technique is inadmissible unless the technique is "generally accepted" as reliable in the relevant scientific community, citing Frye. Because the reanalyses of epidemiological studies (by the plaintiff's experts) had neither been published nor subjected to peer review, the court concluded that the Dauberts evidence provided an insufficient foundation to allow expert testimony supporting the theory of causation of the birth defects and that the plaintiffs failed to carry their burden of proving causation. On review by the Supreme Court, the High Court held that the Frye standard did not survive the enactment of the Federal Rules of Civil Evidence, which provide the applicable standard for admitting expert scientific testimony. It noted that Frye's restrictive "general acceptance" test was at odds with the liberal approach of the Federal Rules of Evidence. Daubert, 509 U.S. at 588, 113 S.Ct. at D. The Gatekeeper Role of the Trial Judge In reversing and remanding the matter to the trial court, the Supreme Court charged the trial judge with the responsibility to act as a "gatekeeper" to screen expert testimony. To constitute "scientific knowledge," the proffered testimony must be both reliable and relevant. 1. Threshold Determination: As a threshold determination required, the trial judge must first determine, pursuant to Fed. R. Evid. 104, whether the proffered testimony will assist the trier of fact in light of the Daubert factors, whether there is a "valid scientific connection to the pertinent inquiry" and then make a threshold determination regarding admissibility. This determination largely fulfills the relevance requirement 2. The Daubert Factors: The court in Daubert did not give the trial judge a definite yardstick or formula to follow, but enumerated the following four non-exclusive factors to assist trial judges in determining whether scientific evidence is relevant and reliable (and therefore admissible under Federal Rule of Evidence 702) Id. 509 U.S.At , 113 S.Ct. at : a. whether the theory or technique can be and has been tested to see if it can be falsified; b. whether the theory or technique has been subjected to peer review and publication; c. the technique's known or potential rate of error; and d. the degree of acceptance of the theory or technique within the relevant scientific community. 3. Testing the Evidence: The High Court made much of the benefit of vigorous cross examination, presentation of contrary evidence, and careful instruction on the burden of proof, rather than wholesale exclusion under an uncompromising "general acceptance" standard, is the appropriate means by which evidence based on valid principles may be challenged. The trial judge is therefore given a good bit of discretion to insure both the reliability of the expert's testimony as well as its relevance. III. T H E T E X A S S T A N D A R D S F O R CHALLENGING RELIABILITY OF EXPERT TESTIMONY A. The Texas Rules of Evidence The Texas Rules of Evidence, adopted in 1982, largely follow the Federal Rules of Evidence. The pertinent rules regarding expert testimony are as follows: 1. Rule 702 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 thereto in the form of an opinion or otherwise. 2. Rule 703 Bases of Opinion Testimony 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 2

11 relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or ta need not be admissible in evidence. 3. Rule 703 Reliability & Hearsay Rule 703 imposes a reliability test, but expressly provides an exception to the hearsay rule for experts. Also, under Rule 602, expert witnesses are excepted from the usual requirement that a witness may not testify to a matter without personal knowledge of the matter. 4. Rule 803 Hearsay Exceptions In addition, several portions of Rule 803 (the Hearsay Exceptions ) are often cited in connection with the testimony of expert witnesses in the probate courts: (4) Statements for Purposes of Medical Diagnosis or Treatment; (5) Recorded Recollection; (6) Records of Regularly Conducted Activity; (7) Absence of entry in records kept pursuant to the Provisions of Paragraph (6); (8) Public Records and Reports; (9) Records of Vital Statistics; (10) Absence of Public Record or Entry; (14) Records of Documents Affecting an Interest in Property; (15) Statements in Documents Affecting an Interest in Property; (17) Market Reports, Commercial Publications; and (18) Learned Treatises. 5. Rule 704 Opinion on Ultimate Issue Testimony [from an expert witness] in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. 6. Rule 705 Procedural Protections: Disclosure of Data Underlying Expert Opinion Disclosure of Facts or Data. The expert may testify in terms of opinion Or inference and give the expert s reasons therefore without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event disclose on direct examination, or be required to disclose on cross-examination, the underlying facts or data. 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 offered¼in a civil case, may be permitted to conduct 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. 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. 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 outweigh their value as explanation or support or are unfairly prejudicial. If otherwise inadmissible facts or data are disclosed before a jury, a limiting instruction by the court shall be given upon request. 7. Rule 403 Exclusion of Relevant Evidence on Special Grounds Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. B. Texas Cases on Expert Testimony 1. Pre-Daubert Expert Tests Even before Daubert set a more stringent standard for the admissibility of expert testimony, in Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App. 1992), a DNA case, the Texas Court of Criminal Appeals enumerated more specific tests for experts under Rule 702 of the Texas Rules of Criminal Evidence (before the merger of the criminal and civil evidence rules in March 1998). In Kelly, the appellate court held that expert testimony is reliable only if the underlying theory and the technique applying it are valid and if the technique was properly applied on the occasion in question. The Kelly factors affecting the trial court s determination of reliability include: 3

12 a. a general acceptance of the theory and technique by the relevant scientific community; b. the expert s qualifications; c. the existence of literature supporting or rejecting the theory; d. the technique s potential rate of error; e. the availability of other experts to test and evaluate the technique; f. the clarity with which the theory or technique can be explained to the trial court; and g. the experience and skill of the person applying the technique on the occasion in question. Id. (citing 3 WEINSTEIN & BERGER, WEINSTEIN S EVIDENCE 702 [03] (1991)). 2. Adoption of Daubert Rationale Following the Daubert opinion, the Texas Supreme Court released two opinions offering the Texas guidelines on the use of expert testimony, E.I. du Pont de Nemours v. Robinson, 923 S.W.2d 549 (Tex. 1995) and Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497 (Tex. 1995). In Robinson, DuPont was sued over a contaminated batch of a fungicide alleged to have damaged plaintiff s pecan orchard. The trial court granted a defense motion to exclude the testimony of the Plaintiff's sole expert on the ground that his opinions were speculative and unreliable and granted a directed verdict for DuPont. The court of appeals reversed and remanded for a new trial. The Texas Supreme Court reversed the intermediate appellate court and affirmed the trial court's judgment in favor of DuPont. The Supreme Court began its opinion by pointing out that ¼in light of the increased use of expert witnesses and the likely prejudicial effect of their testimony, trial judges have a heightened responsibility to ensure that expert testimony show some indicia of reliability." This is especially true, the court declared, when the proffered evidence is based upon a novel scientific theory, or junk science. The Robinson court largely adopted the observations of the U.S. Supreme Court in Daubert, abandoning the Frye 'general acceptance' test and adopting a baseline requirement of reliability and relevance. However, rather than adopt the four nonexclusive factors cited in Daubert, the Court instead chose to use the seven factors of reliability from Kelly v. State, supra. Subsequent Court of Criminal Appeals cases have held Daubert's relevance and reliability standards to be "virtually identical" to the Kelly standard. See, Jordan v. State, 928 S.W.2d 550, 554 (Tex. Crim. App. 1996). A. The Robinson Factors. A trial court may consider the following factors in determining reliability and therefore admissibility: a. The extent to which the theory has been tested; b. The extent to which the technique relies upon the subjective interpretation of the expert; c. Whether the theory has been the subject of peer review and/or publication; d. The technique's potential rate of error; e. Whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and f. The non-judicial uses which have been made of the theory. The Robinson court specifically noted that these are non-exclusive factors and other factors may be considered. Even after the "relevant and reliable" determination, the trial judge must still determine whether or not to exclude the evidence based on a balancing test of probative value vs. the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or needless presentation of cumulative evidence. Id. at 557, Tex. R. Civ. Evid A party challenging the opposing evidence is required to produce evidence of unreliability. Procedurally, an objection to proffered expert testimony shifts the burden to the proponent to establish admissibility. Further, Robinson makes it clear that it is not the role of the judge to determine the truth or falsity of the expert s opinion, but rather the trial judge (and not the jury) must make the initial determination of relevance and reliability, based on the listed criteria. 3. Extension of Daubert/Robinson Criteria to All Expert Testimony a. Texas In Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997), (as Daubert, a Bendectin-related damages case) the Court analyzed the reliability of epidemiological studies and their relationship to causation. Perhaps the most significant ruling in Havner is the holding in the concurring opinion of Justice Gonzalez that the Robinson factors apply to all expert testimony which is subject to Rule 702, not merely "junk science." The Court of Criminal 4

13 Appeals took a similar position in Hartman v. State, 946 S.W.2d 60, 63 (Tex. Crim. App. 1997). In Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998), overruled on other grounds, State v. Terraza, 4 S.W.3d 720 (Tex. Crim. App. 1999), the Court of Criminal Appeals held that soft sciences are subject to Robinson/Kelly requirement of expert qualifications and reliability. When addressing fields of study aside from the hard sciences, such as the social sciences or fields that are based primarily upon experience and training as opposed to the scientific method, Kelly s requirement of reliability applies but with less rigor than to the hard sciences. To speak of the validity of a theory or technique in these fields may be roughly accurate but somewhat misleading. The appropriate questions are: (1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert s testimony is within the scope of that field, and (3) whether the expert s testimony properly relies upon and/or utilizes the principles involved in the field. These questions are merely an appropriately tailored translation of the Kelly test to areas outside of hard science. These Nenno factors have since been applied by civil courts. See Coastal Tankships U.S.A., Inc. v. Anderson, 87 S.W.3d 591 (Tex. App. Houston [1 st Dist.] 2002, writ denied) ( trial courts, functioning in their role as gatekeepers, have wide latitude [in the admission of expert testimony]. ) b. Nationally The United States Supreme Court, in the 1999 decision of Kumho Tire Corp., Ltd. v. Carmichael, 119 S.Ct. 1167, 526 U.S. 137 (1999), resolved the issue, on a national basis, of whether Daubert and Robinson, applied only to "hard sciences," such as testing, research, and analysis or was intended to extend to clinical sciences. In Kumho, the Supreme Court held that the gatekeeper function of the trial court, established in Daubert applied to all expert testimony. Id. at Additional Texas Cases following Robinson A. Expert Testimony May Still be "No Evidence" In Burroughs-Wellcome v. Crye, 907 S.W.2d 497 (Tex. 1995), a companion case to Robinson, the Texas Supreme Court, rather than focus on the 'gatekeeper' function of the trial judge, held that Plaintiffs' expert testimony regarding causation constituted "no evidence" of damages in light of the expert's admission that his own methods were sloppy and unreliable. B. No Universal Experts (Medicine) In Broders v. Heise, 924 S.W.2d 148 (Tex. 1996), the Texas Supreme Court upheld the trial court's exclusion of the plaintiff's expert, an emergency room physician, holding that: "[T]here is no validity¼ to the notion that every licensed medical doctor should be automatically qualified to testify as an expert on every medical question." The fact that the expert's undoubtedly greater knowledge did not establish that his expertise on the issue of cause in fact met the requisites of Rule 702. Id. at 152, 153. The Court emphasized that its holding "does not mean that only a neurosurgeon can testify about the cause in fact of death from an injury to the brain, or even that an emergency room physician could never so testify...[w]hat is required is that the offering party establish that the expert has knowledge, skill, experience, training or education regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject." Id. at 153. C. Repressed Memory" In S.V. v. R.V., 933 S.W.2d 1 (Tex. 1996), a case dealing with 'repressed memories' of past sexual abuse, the Robinson analysis was applied to support the holding that the expert's testimony did not meet the guidelines for admissibility. Largely on the bases that 1) the theory could not be tested empirically, 2) the subjective nature of the expert's interpretation of the diagnosis, and 3) the very high potential error rate. D. Procedural Steps in Preserving a Robinson Challenge/ Guidelines for a 'No Evidence' Complaint Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (Tex. 1997) gives us procedural guidelines for preserving error in a Robinson-type challenge: 1) The error must be preserved at the trial court level and may not be raised for the first time on appeal. 2) The challenging party must: a) make its objection to the reliability of the expert's opinions prior to trial; b) raise the issue via Motion in Limine; c) object to the expert's testifying at the time he is called; and d) obtain a running objection to that line of testimony. Additionally, the opinion provides guidelines for sustaining a 'no-evidence' complaint. Earmarks of a 'no-evidence' situation include: 1) a complete absence of a vital fact; 2) no more than a scintilla of evidence is offered to prove a vital fact; 3) rules of law or evidence bar the reviewing court from giving weight to the only evidence offered to prove a vital fact; or 4) the 5

14 evidence conclusively establishes the opposite of the vital fact. E. No Universal Experts (Engineering) In Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 717 (Tex. 1998) a products liability suit, the Supreme Court first noted that "just as every physician is not qualified to testify as an expert in every medical malpractice case, not every mechanical engineer is qualified to testify as an expert in every products liability case." In deciding the case (and rejecting the plaintiff's expert), the court did not apply the Robinson factors for reliability and relevance, instead applying only a threshold validity test of whether the scientific basis for the conclusion was valid. F. Evidence Not Significant under Havner In Weiss v. Mechanical Associated Services, Inc., 989 S.W.2d 120 (Tex. App.--San Antonio 1999, no writ), the appellate court affirmed a no evidence summary judgment against nurses complaining of work-related health problems involving x-ray equipment. The San Antonio Court of Appeals found that the deposition testimony of the plaintiff's expert regarding faulty ventilation around the x-ray equipment survived the Robinson challenge, but failed to meet the standard for significant evidence under Havner. (The theories could not or had not been tested; expert testimony not based on any scientific evidence; their failure to offer epidemiological studies; their inability to demonstrate generally accepted validity of method of diagnosis; and an inability to rule out other plausible causes.) G. Failure to Meet Robinson Factors: Silicone Implants Minnesota Mining & Manufacturing Co. v. Atterbury, 978 S.W.2d 183 (Tex. App.-- Texarkana 1998, no writ), examined the causal relationship between silicone breast implants and multiple sclerosis, methodically applying the Robinson factors: no testing of theory; no reliable, objective evidence to support theory; no published articles by expert despite many years research; no rate of error given; inability to exclude other causative factors; admission that opinions not generally accepted; and no testimony as to nonjudicial uses made of the opinions. H. Expertise Based on Education and Experience May Trump Scientific Data Olin Corp. v. Smith, 990 S.W.2d 789 (Tex.App.- Austin 1999, writ denied). (products liability / gunshot injury) Expert testimony supported by scientific data is not necessarily superior to testimony that is simply based on education and experience. Court analyzed the expert testimony at issue under the less stringent requirements of Gammill, emphasizing that the Robinson factors were not exclusive. Also, the testimony was found reliable where corroborated by the eyewitness testimony and was based on experience, training, and skill. I. Expert Reliability Shown (Home Fire) Doyle Wilson Homebuilder, Inc., v. Pickens, 996 S.W.2d 387 (Tex.App.-Austin 1999, no writ). Expert's testimony that isolated poor construction and installation technique as particular theory of causation where multiple other theories were possible (gnawing insects, rodents, electrical storm and manufacturing defects) held to be reliable where the expert was able to give plausible explanations why he discounted the other theories. Held not to be speculation where expert adequately demonstrated how he had ruled out other causes, and the opposition did not introduce evidence of any other potential cause. J. Expert Reliability Shown (Metallurgist and Electrical Engineer) Ford Motor Company v. Aguiniga, 9 S.W.3d 252 (Tex.App.-San Antonio 1999, pet. denied) (Opinions of experts held reliable despite not meeting Robinson factors, where reliability under Gammill shown in testimony as to how conclusions reached, ruling out other causes, and lack of opposing evidence by other side. K. Expert Reliability Shown Despite Lack of Testing (Burn Injuries) In the Interest of D.S. and C.R.R., 19 S.W.3d 525 (Tex.App.- Fort Worth 2000, n.w.h.). (Personal injury burn case) In a holding that would be the inverse of Gammill, the trial court held expert's testimony to be reliable even though expert could not satisfy Robinson criteria where re-creation of causative conditions to test hypothesis felt to be immoral. Court relied on expert's substantial experience in treating burn injuries, identification of numerous generally-accepted objective diagnostic criteria for burn treatment, and demonstration of how opinion was based on application of each criteria to the specific burns at issue. 6

15 L. Expert Opinion Upheld - No Contradictory Literature Texas Workers' Compensation Insurance Fund v. Lopez, 21 S.W.3d 358 (Tex.App.-San Antonio 2000, n.w.h.). Expert opinion of chronic obstructive pulmonary disease (COPD) caused by exposure to sandblasting dust during employment. Acceptance of expert's testimony upheld where opinion, even though at odds with results of cited epidemiological studies, did not contradict the scientific literature, and no contradictory studies were in evidence. M. Expert Opinion Unreliable - No Specific Causation Shown (Veterinary Malpractice) Hight v. Dublin Veterinary Clinic, 22 S.W.3d 614 (Tex.App.-Eastland 2000, n.w.h.). Death of goat during routine surgical procedure. Plaintiffs' expert found unreliable. Expert opined that death could only occur as a result of negligence and failed to establish, or even allege, specific causation N. Expert Opinion Unreliable - No Specific Causation Shown (Leukemia) Austin v. Kerr- McGee Refining Corp., 25 S.W.3d 280 (Tex.App.-Texarkana 2000, n.w.h.). (Particular strain of leukemia alleged to have been caused from on the job exposure to benzene.) Expert found unreliable where unable to demonstrate both general and specific causation. General causation shown by scientific literature showing statistically significant connection (odds ratio greater than 2.0) between benzene exposure and leukemia in general. The plaintiff's expert was unable to show that benzene exposure causes the particular type of leukemia in question, so that no specific causation was demonstrated. O. Expert Must Be Helpful (Slip and Fall) K- Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000). Human factors and safety expert in slip and fall case found not helpful to the jury because his opinions involve matters within the average juror s common knowledge. Expert testimony assists the trierof-fact when the expert s knowledge and experience on a relevant issue are beyond that of the average juror and the testimony helps the trier of fact understand the evidence or determine a fact issue. P. Expert Opinion Unreliable - Insufficient Evidence of Methodology used (parental termination) In Re CDK, 64 S.W.3d 682 (Tex. App. Amarillo 2002, no pet.) Expert s opinion found unreliable where there was insufficient evidence to show the underlying methodology for a test administered for sexual deviancy. The expert did not explain how the test was interpreted and the imperical basis for its conclusions. The court stated that for all we know, [the test s] components could be mathematically based, founded upon indisputable imperical research, or simply the magic of young Harry Potters mixing potions at the Hogwarts School of Witchcraft and Wizardry. Id. at Q. Expert Reliability Shown Regarding Mixed Question of Law and Fact (Child Care Center) In Mega Child Care, Inc. v. Tex. Dep t of Protective & Regulatory Servs., 29 S.W. 3d 303, (Tex. App. Houston th [14 Dist.] 2000, no pet.), a DPRS employee of 20 years was permitted to testify that a daycare center was operating outside the law and in violation of certain standards for daycare licensing as an opinion on a mixed question of law and fact regarding whether certain actions violated the Human Resources Code. Although a witness may not offer an opinion on a pure questions of law, an expert witness may offer an opinion on a mixed question of law and fact. An issue involves a mixed question of law and fact when a standard or measure has been fixed by law and the question is whether the person or conduct measures up to that standard. Id at 309. R. Expert Opinion Unreliable - No General - Causation Testimony (Pneumonia/Boop) Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591 (Tex. App. Houston [1 st Dist.] 2002, writ denied). Expert found unreliable were unable to demonstrate general causation. The Court found that there was legally insufficient evidence that exposure to Naphtha played any part even the slightest in causing the decedent s Boop. Id. at 612. This case provides a detailed history of Robinson and its progeny. S. Expert Reliability Shown (Burn Marks Resulted From Force Immersion) In Re D.S., 19 S.W.3d 525 (Tex. App. Fort Worth 2000, no pet.) Non-Scientific testimony can be analyzed by applying the general reliability test espoused in Gammill. The state s doctor was a general surgeon at a hospital s burn unit with 25 years of 7

16 experience in treating burn victims. Although he did not rely on any scientific studies, based upon his extensive experience, he was able to articulate the factors and methodology he used. In analyzing the underlying data forming the basis for the non-scientific expert s opinion, the Court determined the [c]ritical inquiry is whether there is an analytical gap between the opinion and the basis on which it is founded. Id. at 529. This court found no such gap and affirmed the trial court s admission of the testimony. IV. GETTING A HANDLE ON GATEKEEPING: THE EIGHT GATES Perhaps the finest legal writing in the entire field of analysis on Daubert and Robinson is a two-part law review article by Harris County District Judge Harvey Brown. Eight Gates for Expert Witnesses, 36 Houston Law Review 743 (Fall 1999) and Procedural Issues under Daubert, 36 Houston Law Review 1133 (Winter 1999) Judge Brown methodically analyzes the admissibility of expert witness testimony after Daubert and its progeny, considering the impact of all major decisions and statutes in the field. From this analysis, he has developed a series of tests for the trial court judge to use in fulfilling the 'gatekeeper' function assigned by the United States and Texas Supreme Courts: A. Gate One: Helpfulness Pursuant to Rule 702, the subject matter of the expert s testimony must assist the trier of fact. If the expert s methodology, reasoning, or foundation is unreliable, the evidence will not assist the trier of fact. B. Gate Two: Qualifications the expert must be qualified on a case specific opinion-byopinion basis. C. Gate Three: Relevancy The expert testimony must be sufficiently tied to the facts of the case so that it will aid the jury in resolving the factual dispute. D. Gate Four: Methodological Reliability The expert s methodology must be reliable. E. Gate Five: Connective Reliability The expert s reasoning applying his/her methodology must be sound for the expert s opinion to be admissible. F. Gate Six: Foundational Reliability Reliability of the underlying facts or data upon which the expert s opinion is based. G. Gate Seven: Reliance Upon Inadmis-sible Evidence Used by Other Experts An expert s opinion is admissible when it is based on facts or data not independently admissible only if those facts or data relied upon by the expert are of a type reasonably relied upon by the majority of experts in the witness field. H. Gate Eight: Rule 403, Unfair Prejudice Even if the expert opinion testimony passes the seven gates, if it is unfairly prejudicial pursuant to the standards of TRE 403, then it is inadmissible. V. A CONTINUUM OF EXPERTS The following is a non-exhaustive collection of cases illustrating the various general types of situations where experts may or may not be necessary: A. When Experts are Required Not only an expert, but the right expert 1. Medical Malpractice An expert must testify as to the relevant standard of care and how the defendant doctor s failure to meet that standard caused the injury. Roark v. Allen, 633//804 (Tex. 1982) The expert must be qualified by training and knowledge to give an opinion on the specific standard of care. Broders v. Heise, 924 S. W. 2d 148 (Tex. 1996) 2. Legal Malpractice or other Professional Negligence An expert must testify as to the relevant standard of care and how the failure to meet that standard caused the injury. Onwuteaka v. Gill 908 S. W. 2d 276 (Tex. st App. Houston [1 Dist.] 1995, no writ) 3. Future Medical Care or Rehabilitative Treatment Here, too, the expert must be qualified by training and knowledge to give an opinion on the specific issue. K-Mart v. Rhyne, 932 S. W. 2d 140 (Tex. App. Texarkana 1996, no writ) (chiropractor not qualified to testify re: necessity or cost of future surgery.) Baker Marine v. Herrera, 704 S. W. 2d 58 (Tex. App. Corpus Christi 1985, writ ref d nre) Rehab counselor not qualified to testify re: future medical care.) 4. To Prove Causation in a Toxic Exposure Case Merrell Dow v. Havner 953 S. W. 2d 706 (Tex. 1997) (Judgment rendered for defendants after determination that all of plaintiff s expert testimony regarding causation was unreliable.) 8

17 5. To Demonstrate Future Lost Profits Texas Instruments v. Teletron 877 S. W. 2d 276 (Tex. 1994) (Setting forth factors to consider in evaluating lost profits and noting that lost profits must be proven with a reasonable degree of certainty) B. When Experts are Helpful Even though Rule 702 requires expert testimony to actually assist the trier of fact and subjects the expert s testimony to scrutiny, on occasions, expert testimony may be helpful to the court or jury if the opinions offered have a connection to the pertinent inquiry Daubert, 509 U. S. at Expert testimony should generally not be offered on those matters within the experience and understanding of the average juror. Hibiscus Assoc. v. th Board of Trustees, 50 F. 3d 908 (11 Cir. 1995); K- Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000); Dunnington v. State, 740 S. W. 2d 896 (Tex. App. El Paso 1987, pet. ref d) However, Rule 702 gives the trial judge discretion to allow an expert to testify about matters within the knowledge of the average juror if it is of overall help to the jury or provides some unique comprehension of the subject. Joiner v. State, 825 S. W. 2d 701 (Tex. Crim App. 1992) (psychiatric testimony re future dangerousness in a criminal case) 1. Mixed Question of Law and Fact Birchfield v. Texarkana Memorial Hosp., 747 S. W. 2d 361, (Tex. 1987) (Allowed as long as confined to the relevant issues and the expert relies upon the proper legal concepts) Mega Child Care, Inc. v. Tex. Dep t of Protective & Regulatory Servs., 29 S.W. 3d 303, th (Tex. App. Houston [14 Dist.] 2000, no pet.) (Expert witnesses may offer opinions on mixed questions of law and fact. While the legal standard itself is a question of law, where the issue is whether the person or conduct measures up to that standard, it is a mixed question of fact and law.) 2. Design Defect or Feasible Alternative Design Products Liability Case Gammill v. Jack Williams Chevrolet, 972 S. W. 2d 713 (Tex. 1998) But an untested alternative design is not likely to be allowed. Watkins v. th Telsmith, 121 F. 3d 984 (5 Cir. 1997) 3. Security Experts Glasscock v. Income Prop. Servs. 888 S. W. 2d 176 (Tex.App. st Houston [1 Dist.] 1994, writ dism d by agr.) In case alleging failure to prevent criminal activity on premises. 4. Slipperiness on a Wet Floor Buscaglia v. th United States 25 F. 3d 530 (7 Cir. 1994) Always subject to soundness of underlying methodology. 5. Economic Analysis or Calculation While probably essential to demonstrate future lost profits within a reasonable certainty, (Texas Instruments v. Teletron, supra) expert economic testimony is sometimes helpful to the judge or jury on issues such as past economic losses and future lost wages, especially if those issues are hotly contested. Fazakerly v. Fazakerly, 996 S.W.2d 260 (Tex. App. - Eastland, 1999,pet. denied ) 6. Accuracy of Identification Nations v. State 944 S. w. 2d 795 (Tex. App. Austin, 1997, pet. ref d) (regarding reliability of eyewitnesses) C. When Experts are Neither Required nor Helpful The Court as gatekeeper must always ask the threshold question: Does this expert have anything relevant and admissible to add to this case? If the answer is "no," then the expert should be excluded. 1. That a party provoked an assault. Dieter v. Baker Serv. Tools 776 S.W.2d 781 (Tex. App - Corpus Christi 1989, writ denied) 2. That a photograph is or is not a photograph of the Defendant. United States th v. Dorsey, 45 F. 3d 809 (4 Cir. 1989) 3. That a floor was slippery. Getter v. Walth Mart Stores, 66 F. 3d 1119 (10 Cir. 1995) (but cf. Buscaglia v. United States, supra, where methodology of expert was approved) 4. That the lack of a top railing created an unreasonable risk. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) 5. That walking on railroad tracks is not negligent. Andrews v. Metro North Commuter nd R.R. 882 F. 2d 705 (2 Cir. 1989) 6. That another witness is lying. Yount v. State 872 S.W.2d 706 (Tex. Crim App. 1993) (Jury is sole judge of credibility of the witnesses. T. R. Civ. Pr. 226a) 7. Expert economic testimony concerning non-economic losses such as pain and suffering and loss of consortium. Traylor Bros. V. Garcia, 949 S.W.2d 368 (Tex. App. - San Antonio 1999, n.w.h.) 8. Whether alleged emotional distress was severe in an intentional infliction case. Shauer v. Memorial Care Systems, 856 9

18 S.W.2d 437, 451 (Tex.App.-Houston [1 st Dist.] 1993, no writ). 9. Questions of law Even if an expert can pass muster under Robinson, testimony in certain instances is per se inadmissible. Expert testimony may not be used to instruct the jury as to the law or as to the application of law to the specific facts of the case. A witness may not give legal conclusions or interpret the law to the jury. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000); United Way of San Antonio v. Helping Hands Lifeline Foundation, Inc., 949 S.W.2d 707, 713 (Tex.App.-San Antonio 1997, writ denied). Since the trial court is presumed to have specialized competency in all aspects of the law, legal conclusions are almost never admissible. Holden v. Weindenfeller, 929 S.W.2d 124, (Tex.App.-San Antonio 1996, writ denied). The following are examples of when courts have found expert opinions on questions of law inadmissible: a) Testimony as to whether fiduciary duties were actually breached. Askanase v. Fatjo, th 130 F.3d 657, 673 (5 Cir. 1998). b) Testimony as to whether a party actually owed a duty. Puente v. ASI Signs, 821 S.W.2d 400, 402 (Tex.App.-Corpus Christi 1991, writ denied). c) Testimony as to the existence and extent of a trustee s duty. Harrison v. Wells Fargo Bank Texas, N.A., 1999 WL (Tex.App.- th Hous[14 Dist.] March 11, 1999), unpublished opinion d) Testimony as to whether fraud was committed, Connell v. Connell, 889 S.W.2d 543, 545 (Tex.App.-San Antonio 1994, writ denied). e) Testimony that a fiduciary duty exists, to what extent it actually exists and the applicable standard of care. Brown v. McCleskey, 1999 WL (Tex.App.- Amarillo 1999, unpublished opinion) f) Testimony concerning domestic law. Holden v. Weindefeller, 929 S.W.2d 124, (Tex.App.-San Antonio 1996, writ denied). g) Testimony concerning whether certain statements were disparaging in a business disparagement case. United Way of San Antonio v. Helping Hands Lifeline Foundation, Inc., 949 S.W.2d 707, 713 (Tex.App.-San Antonio 1997, writ denied). VI. THE CARE AND FEEDING OF EXPERTS While the goal of every expert is to help you win your case, this goal can get overlooked when you shift into 'automatic' in getting the case prepared. Take a hard look at the experts (if any) your case needs. Consider whether aggressive cross-examination might just as effectively counter the other side's expert. You may be able to carry the day with fact witnesses. Those experts who are not helpful to the court are generally the same experts who will not withstand a Daubert challenge. Testimony about whether there was a full moon could be relevant if darkness is an issue in the case, but probably not to show that it caused a person to behave as a lunatic. Daubert, 509 U.S. at A. Guardianship/Capacity Issues Hiring a psychiatrist or neurologist who has experience determining and testifying to capacity, or lack thereof, in guardianship proceedings is of great importance. They will be familiar with the legal test for capacity. Geriatric psychiatrists and neurologists should be used in appropriate cases if possible due to their specialized knowledge. A good approach to selecting an expert is to ascertain and hire the physician the judge appoints on independent psychiatric exams. These individuals generally have the judge's respect and the requisite level of expertise in the areas of capacity and mental examinations. Regardless of who is selected, he or she should be board certified, if possible, and have adequate credentials. Most judges will be leery about dismissing an application for guardianship with no medical testimony. If you choose to go forward without a physician (primarily in challenging a guardianship, where medical testimony is required to grant the guardianship), consider hiring an alternative expert such as a nurse, social workers, or experienced home health care workers. B. Qualification for the Specified Area Be sure your expert is specifically qualified. So many professions have grown so complicated, many professionals other than physicians, particularly in urban areas, specialize. The practice of C.P.A. s can vary widely from oil and gas, to business formation, to purely tax, to estate and gift, to fiduciary accounting. General qualifications are no longer good enough. Green v. Brantley, 11 S.W.3d 259, 263 (Tex.App.-Ft. Worth 1999, pet. denied) (Having a law license is not sufficient to qualify an attorney to testify as an expert in all areas of the legal profession.). Broders v. Heise, supra 10

19 C. Did I Really Say That? Communications with any testifying expert will not be privileged. Notes taken by the expert, letters from counsel to the expert and documents provided by counsel to the expert are not privileged. If your expert is inexperienced as a testifying expert, make sure he/she is made aware that all communication (notes, letters, , and other recordings ) are discoverable by the other side. D. Start Off in First, Then Shift Gears It might be better to start off with your expert as a consulting expert, and not unwrap him/her as a designated testifying expert until you have thoroughly researched and sifted the data so that you know precisely what opinions you want and you are sure he/she will be able to give you those opinions. E. Once the Toothpaste is out of the Tube ¼After you have designated your testifying expert, remember: all documents sent to and received by such expert relating to the issues on which he will testify become discoverable, even those initial documents reviewed when he/she was still just a consulting expert. From day one every written communication (letter, note, or ) to every expert - potential, retained, consultant or designated should be treated as though the jury will get to see it. Keep a detailed log of the documents you ask an expert to review. To avoid unpleasant surprises, make sure he or she tells you before he testifies (or is deposed) what else he has looked at or considered. Precisely define the opinions that you expect the expert to give. Do not expect the expert to understand all of the nuances of your case. F. Give Your Expert the Tools to Do the Job Unless your expert is an expert on the law, never assume he/she knows the applicable law. Supply the correct and precise legal definitions and bases of any terms, concepts or processes (e.g., testamentary capacity, contractual capacity, undue influence, insane delusion) which may be involved in the case. Don t get caught flat-footed with the expert having to ask for a definition from your opponent during deposition or (even worse) at trial. Just because your expert can withstand a Robinson challenge doesn t ensure he or she will be an effective witness. Scientific expertise is the expert s forté, effective trial communication is yours. If there are weaknesses in your expert s presentation, find some tactful way to point these out to eliminate traps and pitfalls during deposition (which will be brought out again in cross-examination) and, perhaps even more importantly, to avoid confusing the jury. G. Simplify, Simplify, Simplify Whenever possible, help the expert to be more user-friendly to the judge and jury. If technical terms just cannot be avoided, get the expert to give the jury a Spot. See Spot run. definition for the terms. Tying the concept to a visual aid (model, graph, poster) will help the jury see it your way. (See below). H. Practice, Practice, Practice If you anticipate using demonstrative evidence (models, charts, graphs, etc.), first, be sure they can be accommodated by the court (e.g., if you need to use a digital projector). Second, make sure of the accuracy of your data from a legal and factual standpoint. Then thoroughly school your expert with that demonstrative evidence to ensure both you and the expert are able to flawlessly present the evidence. If you have a will contest and the issue of testamentary capacity is your key concept have the definition you know will be used in the charge made into a poster and keep it constantly before the jury during voir dire (but probably not during opening statements) and every time the term comes up with any witness, including not only your expert, but especially with the expert for the other side. It will appear that you own the concept. Remember: It takes years of piano lessons and practice to be able to nonchalantly walk into a room, sit down and play an impromptu piece. VII. W H E N A N D H O W T O CHALLENGE/ATTACK AN EPERT A. Timing Properly challenging an expert not only requires a knowledge of the law, but also some tactical planning. The first (and most important) consideration is when you raise the challenge. You must seriously consider the wisdom of raising a challenge for the first time as the expert raises his right hand to be sworn. Neither the jury (who will not understand why they have to go wait in the hall again) nor the judge (who is given broad discretion to exclude or allow an expert) will be amused. Raising the challenge during the trial really prevents the gatekeeper (judge) from having adequate time to review and consider your motion. Where the rule rather than the exception is for judges to use thorough pre-trial scheduling procedures to allow complete preparation for trial, you should raise the challenge to an expert early on. If you are able to exclude an expert, you may have excellent grounds for a summary judgment. Even if you are unsuccessful on summary judgment, you will have 11

20 gone a long way toward letting the court know where you think the proof problems are. 1. Prior to Trial Wait until the appropriate deadline passes. This will limit your opponent's ability to designate another expert if you are successful in your challenge. Crucial deadlines include: a. TRCP Rules 194 and 195 deadlines for designating experts; b. The deadline "agreed to" in a pretrial scheduling order; and c. A statutorily-mandated time period, e.g.: Section 14.01(e) of Art. 4590i ("Medical Liability and Insurance Improvement Act") 2. At the Pre-Trial Although you may choose to "lay behind the log" as long as possible to retain the element of surprise, consider the effect this may have on the judge. If you have been sitting on your information and not calling it to anyone's attention, the Court probably will not appreciate your waiting. You are pressuring the judge into shooting from the hip - a technique often calculated to prompt the judge to let the witness testify (under an abuse of discretion standard) and leave it up to the jury to decide whether the expert had the right stuff. 3. At the Motion in Limine Waiting until a Motion in Limine is heard is basically the same as waiting until the witness is called. The more current practice is to provide in a pretrial scheduling order for the deadlines for challenging witnesses and motions in limine, often at the pre-trial. 4. At Trial If the Court does not grant your Motion to Strike or Motion in Limine, you must renew your objection to the expert at the time he is called to testify and each time the witness testifies improperly. See Piro v. Sarofim, 80 S.W.3d 717, 720 (Tex. App. Houston [1 st Dist.] 2002, no writ). Pre-trial motions such as a motion in limine do not preserve error. Acord v. General Motors Corp., 669 S.W.2d 111, 116 (Tex. 1984). Prior or subsequent testimony, admitted without objection, waives all error. Richardson v. Green, 677 S.W.2d 497, 501 (Tex. 1984). 5. Continually Educate the Jury Explain the legal issues involved to the jurors from voir dire forward so that they can be evaluating and comparing the expert opinions with the legal standard (or at least your version prior to the charge). Continue the education process through your direct and cross examination and then with your final argument. B. Is an Expert Even Necessary? One line of attack is not whether the expert is qualified, but whether any expert is necessary at all. If the expert testimony will not assist the trier of fact (Rule 702), either because the subject is one on which expert testimony or because the methodology by which the expert has reached his opinions is unreliable, then the expert will not be allowed to testify at all. If only a limited portion of the expert's testimony will assist the trier of fact, then an appropriate limiting instruction can be requested and given to the jury, limiting the testimony to those areas in which it will assist the jury. It is important to establish that the expert's testimony is necessary to assist the trier of fact, and in selecting cases, the lawyer must be prepared for this potential attack. C. Is This Expert Qualified? - Shooting the Messenger Robinson and Daubert only deal with the admissibility of proffered expert testimony, and not with the qualifications of the expert. Tex. R. Civ. Evid. 104(a) requires the Court to make a preliminary determination as to both the qualifications of a witness and the admissibility of evidence. Milkie v. Metni, 658 S.W.2d 678, 679 (Tex. App.--Dallas 1983, no writ); Sears v. Cooper, 574 S.W.2d 612, 615 (Tex. Civ. App.--Houston [14th Dist.] 1978, writ ref'd n.r.e.). The judge must determine whether an expert is needed and if so, is the proffered expert qualified. See also Fed. R. Evid. 104 ("Preliminary questions concerning the qualification of a person to be a witness...or the admissibility of evidence shall be determined by the court...") 1. Hearings under Rule 104. Hearings on challenges to the qualifications of a witness or the admissibility of his testimony are held outside the presence of the jury "when the interests of justice so require." Tex. R. Civ. Evid. 104(c); Fed. R. Evid. 104(c). However, Rule 104 in no way limits a party's right to introduce evidence of an expert's lack of qualification when such is relevant to the weight or credibility to be given to the expert's testimony. Tex. R. Civ. Evid. 104(d); Fed. R. Evid. 104(e). 2. What are you looking for? The first thing to determine is whether the proffered expert has the right kind of qualifications to render any kind of opinion in the case at all. Attack any lack of skill, experience, education or 12