law-expert-witnesses | untimely designation failure to disclose | property owner rule as exception to expert
witness requirement
REQUIREMENTS FOR EXPERT TESTIMONY
Expert testimony lacking a proper foundation is incompetent, and its admission is an abuse of discretion. TXI
Transp. Co. v. Hughes, 306 S.W.3d 230, 239 (Tex. 2010).
To be admissible, all expert testimony must be relevant and reliable. See Tex. R. Evid. 702; Guadalupe-
Blanco River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex. 2002). As the evidentiary gatekeeper, the trial court is
charged with assessing the reliability of particular evidence. TXI Transp. Co., 306 S.W.3d at 235. The Texas
Supreme Court has compiled a nonexclusive list of suggested factors for assessing the admissibility of
expert testimony under Rule 702. Id. This includes determining "the extent to which the technique relies
upon subjective interpretation of the expert." E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549,
557 (Tex. 1995).
In making its assessment, a court does not consider the correctness of an expert's conclusions but instead
determines whether the analysis an expert used to reach an opinion is reliable and therefore admissible. TXI
Transp. Co., 306 S.W.3d at 239. Accordingly, "courts are to rigorously examine the validity of facts and
assumptions on which the testimony is based, as well as the principles, research, and methodology
underlying the expert's conclusions and the manner in which the principles and methodologies are applied
by the expert to reach the conclusions." Whirlpool, 298 S.W.3d at 637.
"Reliability may be demonstrated by the connection of the expert's theory to the underlying facts and data in
the case." TXI Transp. Co., 306 S.W.2d at 239.
"Admission of expert testimony that does not meet the reliability requirement is an abuse of discretion."
Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006).
EXPERT WITNESS TESTIMONY
To admit expert testimony, rule 702 requires (1) the witness be qualified by knowledge, skill, experience,
training, or education, (2) the proposed testimony be scientific, technical, or other specialized knowledge,
and (3) the testimony assist the trier of fact to understand the evidence or to determine a fact in issue. Tex.
R. Evid. 702; E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). To constitute
scientific knowledge that will assist the trier of fact, the proposed testimony must be both relevant and
reliable. Id. The trial court's role is to make the initial determination of whether an expert's opinion is relevant
and whether the methods and research upon which it is based are reliable. Id. Evidence that is either
irrelevant or unreliable is inadmissible. Id.
In deciding if an expert is qualified, trial courts “must ensure that those who purport to be experts truly have
expertise concerning the actual subject about which they are offering an opinion.” Helena Chem. Co. v.
Wilkins, 47 S.W.3d 486, 499 (Tex.2001) (quoting Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713,
719 (Tex. 1998)). General experience in a specialized field does not qualify a witness as an expert. Gammill,
972 S.W.2d at 719.
Expert testimony is generally required in manufacturing defect cases to prove that the specific defect
caused the accident. Ledesma, 242 S.W.3d at 42 & n.23; see Mack Trucks, 206 S.W.3d at 583 (“Proof
other than expert testimony will constitute some evidence of causation only when a layperson’s general
experience and common understanding would enable the layperson to determine from the evidence, with
reasonable probability, the causal relationship between the event and the condition.”). 09-0039 BIC PEN
CORP. v. CARTER
TEXAS SUPREME COURT CASES
“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.” Cooper Tire & Rubber Co. v. Mendez,
204 S.W.3d 797, 800 (Tex. 2006) (quoting TEX. R. EVID. 702); see also Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 588-89 (1993). Expert testimony is admissible when the expert is qualified and his
testimony is relevant and based on a reliable foundation. Mendez, 204 S.W.3d at 800. If the expert’s
scientific evidence is speculative or unreliable, it is not evidence. Id. The trial court’s determination that
these requirements are met is reviewed for abuse of discretion. Id. A trial court abuses its discretion if it acts
without reference to any guiding rules or principles. Id. Admitting expert testimony that does not meet the
reliability requirement is an abuse of discretion. Id.
The supreme court has held that bare, baseless opinions will not support a judgment, even in the absence
of an objection:
[A]lthough expert opinion testimony often provides valuable evidence in a case, “it is the basis of the witness’
s opinion, and not the witness’s qualifications or his bare opinions alone, that can settle an issue as a matter
of law; a claim will not stand or fall on the mere ipse dixit of a credentialed witness.” Burrow v. Arce, 997 S.W.
2d 229, 235 (Tex. 1999). Opinion testimony that is conclusory or speculative is not relevant evidence,
because it does not tend to make the existence of a material fact “more or less probable.” See TEX. R.
EVID. 401. This Court has labeled such testimony as “incompetent evidence,” and has often held
that such conclusory testimony cannot support a judgment. [citations omitted] Furthermore, this Court has
held such conclusory statement cannot support a judgment even when no objection was made to the
statement at trial. [citations omitted]
City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009) (quoting Coastal Transp. Co. v. Crown
Central Petrol. Corp., 136 S.W.3d 227, 232 (Tex. 2004)). The supreme court has held that when testimony
is challenged as conclusory or speculative, no objection is necessary because there is no need for the court
to go beyond the face of the record to test its reliability. Id. Only when the reliability of the expert’s testimony
is challenged based on underlying methodology, technique, or foundational data used by the expert is a
timely objection required because then the trial court is required to go beyond the face of the record to
determine reliability. Id. SOURCE: San Antonio Court of Appeals - 04-10-00602-CV - 11/23/2011
Bic Pen Corp. v. Carter, No. 09-0039 (Tex. June 17, 2011)(Johnson)(product liability, child injured by
cigarette lighter)
Fort Brown Villas III Condo Ass'n. v. Gillenwater, No. 07-1028 (Tex. Apr. 17, 2009)(premises liability suit,
exclusion of evidence not produced in discovery, witness exclusion, undesignated witness, mandatory
exclusion of witness at trial vs. exclusion in summary judgment)(untimely disclosed expert witness excluded
from no-evidence summary judgment proceeding)(affidavit of expert witness excluded from summary
judgment response because not timely disclosed under the discovery control plan)
FORT BROWN VILLAS III CONDOMINIUM ASSOCIATION, INC. D/B/A FORT BROWN CONDOSHARES AND
LRI MANAGEMENT, INC. v. COY GILLENWATER; from Cameron County; 13th district (13-06-00478-CV, ___
SW3d ___, 11-01-07)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court reverses the court of appeals’ judgment and renders judgment.
Per Curiam Opinion (Justice Johnson not sitting)
To admit expert testimony, rule 702 requires (1) the witness be qualified by knowledge, skill, experience,
training, or education, (2) the proposed testimony be scientific, technical, or other specialized knowledge,
and (3) the testimony assist the trier of fact to understand the evidence or to determine a fact in issue. Tex.
R. Evid. 702; E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). To constitute
scientific knowledge that will assist the trier of fact, the proposed testimony must be both relevant and
reliable. Id. The trial court's role is to make the initial determination of whether an expert's opinion is relevant
and whether the methods and research upon which it is based are reliable. Id. Evidence that is either
irrelevant or unreliable is inadmissible. Id.
In deciding if an expert is qualified, trial courts “must ensure that those who purport to be experts truly have
expertise concerning the actual subject about which they are offering an opinion.” Helena Chem. Co. v.
Wilkins, 47 S.W.3d 486, 499 (Tex.2001) (quoting Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713,
719 (Tex. 1998)). General experience in a specialized field does not qualify a witness as an expert. Gammill,
972 S.W.2d at 719.
Expert
Rule 702 of the Texas Rules of Evidence governs the admissibility of expert testimony. Tex. R. Civ. Evid.
702; E. I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 554 (Tex. 1995). Rule 702 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." Tex. R. Civ. Evid. 702. The testimony
must be relevant and based on a reliable foundation. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d
713, 727-28 (Tex. 1998); Robinson, 923 S.W.2d at 554. Once the opposing party objects to proffered
expert testimony, the proponent of the witness' testimony bears the burden of demonstrating its admissibility.
Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996); Robinson, 923 S.W.2d at 557.
If the foundational data underlying an expert's opinion testimony is unreliable, the expert will not be
permitted to base an opinion on that data because any opinion drawn from that data is likewise unreliable.
Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997). A flaw in the expert's reasoning from
the data may render reliance unreasonable and render his inferences drawn from information dubious. Id. In
that circumstance, the expert's testimony is unreliable and legally constitutes no evidence. Id.
The trial court held a full evidentiary hearing on the admissibility of opinion testimony by Edward's real
estate appraisal expert, Tom Jackson. Mr. Jackson admitted that Edward asked him to appraise the ranch as
raw land as of the Fifth Anniversary and the Divorce Date ignoring the value of the timber on the land. He
was then instructed to include a third party's timber appraisal originally from June 1996 See Footnote 2 in
his total values. Although he was a trained and certified forester, Jackson was not engaged to express an
opinion on the timber value The expert admitted that the method dictated by Edward's counsel did not
conform with mandatory provisions of the Uniform Standards of Professional Appraisal Practice See
Footnote 3 and that he had never valued real estate “that way” before.
During the Daubert-Robinson hearing, Edward offered no evidence regarding the reliability of the third
party's timber appraisal or its methodology, and, thus, he failed to prove the underlying data for his expert's
opinion was reliable. Accordingly, the trial court did not abuse its discretion in concluding that the expert's
methodology was unreliable and excluding his testimony. We overrule Edward's third issue as to the
exclusion of Mr. Jackson's testimony.
08-0728
ELIZABETH W. BUFKIN v. EDWARD O. BUFKIN, JR.; from Dallas County; 5th district (05-06-01719-CV, 259
SW3d 343, 07-01-08) 2 petitions, pet. denied Nov. 2008)(prejudgment interest, admissibility of expert
testimony, harm analysis of evidentiary ruling by trial court, divorce fault grounds, prenup, stipulation
agreement)
Also see:
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