Daubert Challenges

DAUBERT CHALLENGES IN PRACTICE

Moderator & Co-AuthorGARY M. JEWELL, HoustonChristian, Smith & Jewell, LLP

PanelistsHONORABLE JEFFREY BROWN, Houston

Fourteenth Court of Appeals

HARVEY G. BROWN, JR., HoustonWright, Brown & Close, LLP

HONORABLE TRACY CHRISTOPHER, Houston Fourteenth Court of Appeals

HONORABLE SCOTT LINK, HoustonChristian, Smith & Jewell

HONORABLE CAROLYN WRIGHT, DallasFifth District Court of Appeals

Co-AuthorJOHN THOMAS OLDHAM, Houston

Christian, Smith & Jewell, LLP

State Bar of Texas23 ANNUAL RD

ADVANCED EVIDENCE AND DISCOVERY COURSEMay 20-21, 2010

San Antonio

CHAPTER 22

2302 FANNIN, SUITE 500 HOUSTON, TEXAS 77002 PHONE: (713) 659-7617

FAX: (713) 659-7641

www.csj-law.com

Gary M. Jewell - Partner

[email protected] Gary Jewell’s practice focuses primarily in commercial litigation with an emphasis on contract and partnership disputes. Over the years, he also gained considerable experience handling a variety of other litigation assignments, involving – among others - stock fraud, intellectual property, personal injury, real estate, family, and employment matters. Gary is also a certified mediator.

York.

Gary received his Bachelor of Science degree from Texas A&M University at College Station, Texas, in 1981 and his Doctor of Jurisprudence from St. Mary’s University School of Law at San Antonio, Texas, in 1990. Following law school, Gary served as the Briefing Attorney for Justice Michol O'Connor of the First District Court of Appeals, Houston, Texas. Following his experience with the First District Court, Gary entered private practice with an insurance defense firm. Ultimately, Gary found his way into a partnership with his friends at Christian, Smith & Jewell in 1998. In addition to the Texas State Bar, Gary is also admitted to practice before every United States District Court in Texas and the United States Court of Appeals, Fifth Circuit. In 2004, Gary was admitted to the New York Bar and the United States District Court for the Southern District of New

Education

• Bachelor of Science (Psychology), Texas A&M University at College Station, Texas, 1981

• Doctor of Jurisprudence, St. Mary’s University School of Law at San Antonio, Texas, 1990

Professional Affiliations

• State Bar of Texas (1991) • United States District Court, Southern District of Texas (1992) • United States Court of Appeals, Fifth Circuit (1993) • United States District Court, Northern District of Texas (1993) • United States District Court, Western District of Texas (1994) • State Bar of New York (2004) • United States District Court, Eastern District of Texas (2007) • American Bar Association • American Association for Justice • Houston Bar Association

Family & Personal Interests Gary settled in Kingwood, Texas after bouncing around the globe as a “military brat.” He is married (to a “tea sip”) and has a daughter and a son – both of whom are “Aggies.” Like most, being an attorney is simply Gary’s “day job.” Gary’s true passion is outdoor adventure, especially when it means being deep underwater. Gary is an Advanced Open Water Instructor and teaches SCUBA diving in Kingwood/Humble, Texas area. In addition to regularly leading groups of divers on trips to Caribbean, he has been diving in a variety of locations around the globe and is an avid spear-fisherman in the Gulf of Mexico. When Gary is not diving, he also enjoys bird hunting, salt-water fishing – and much to the chagrin of his spouse – computer gaming.

Justice Jeff Brown

Fourteenth Court of Appeals 1307 San Jacinto Street, 11th Floor

Houston, Texas 77002

JEFF BROWN was appointed to the Fourteenth Court of Appeals by Governor Rick Perry in December

2007 and won election to the same seat in 2008. Before taking the appellate bench, he served for six years

as judge of the 55th District Court in Harris County. He has been consistently one of the highest ranked

judges in the Houston Bar Association’s judicial-evaluation poll.

Jeff is board-certified in civil trial law by the Texas Board of Legal Specialization. Before becoming a judge,

he practiced at Baker Botts, trying jury cases throughout Southeast Texas. Before joining Baker Botts, he

was a briefing attorney to Justices Jack Hightower and Greg Abbott on the Texas Supreme Court.

He earned his bachelor’s degree in English from the University of Texas and his law degree with high

honors from the University of Houston. While in law school he served as chief note & comment editor of the

Houston Law Review.

In 2006, the Texas Young Lawyers Association named Jeff Outstanding Young Lawyer of Texas. Jeff has

been active in state and local bar activities, including service as judicial liaison to the Houston Young

Lawyers Association, chairman of HYLA’s Non-Profit Law Committee, co-chairman of the Houston Bar

Association’s John J. Eikenburg Law Week Fun Run and as vice-chairman of TYLA’s National Trial

Competition. He has served on the boards of directors of the Texas Lyceum, the Houston Law Review, the

University of Houston Law Alumni Association, the Texas Supreme Court Historical Society, the Texas

Center for the Judiciary, and the Christian Community Service Center.

An Eagle Scout, Jeff served on the Sam Houston Area Boy Scouts’ Urban Scouting Committee, a program

dedicated to bringing Scouting’s values to inner-city young men. He is committee chairman of Cub Scout

Pack 455, assistant scoutmaster of Boy Scout Troop 222, has coached baseball, soccer, and flag-football,

and often teaches Sunday school. He also volunteered for Operation Compassion, serving food to Katrina

evacuees in 2005. The Texas Jaycees named him one of the Five Outstanding Young Texans of 2008.

Jeff has been an adjunct professor at the University of Houston Law Center and is a member of the State

Bar’s Pattern Jury Charge Committee. He also serves on the editorial board of the The Advocate, the

quarterly journal of the State Bar’s Litigation Section. In 2008, he was elected to the American Law Institute.

He has served on the faculty of the National Judicial College.

Jeff and his wife, Susannah, a schoolteacher, live in southwest Houston with their three children, Kathleen,

Rob and Gus. They are active members of Bellaire United Methodist Church.

HARVEY G. BROWN, JR. WRIGHT BROWN & CLOSE, LLP

Three Riverway, Suite 600

Houston, Texas 77056

(713) 572–4321

E–mail: [email protected]

EMPLOYMENT

July 2003 to Present WRIGHT BROWN & CLOSE, LLP

Partner in Fifteen lawyer firm

Feb. 2002 to June 2003 Orgain, Bell & Tucker, LLP

Managing partner of the Houston office

June 1995 to Feb. 2002 Judge, 152nd District Court

Chair Harris County District Judges Legislative Committee

1998–2001

Administrative Judge of Panel over Diet Drug Cases

1998–2001

Administrative Judge Pipe Cases 1998–2000

1981 to 1995 Sewell & Riggs, A Professional Corporation, Houston

Litigation attorney (shareholder, 45–attorney firm)

Summer 1998 University of Houston School of Law

–Spring 2002 Adjunct Professor of Evidence, Trial Advocacy

EDUCATION

University of Texas School of Law, 1978 – 1981

J.D. with Honors, May 1981

Member Texas Law Review

Order of Coif

University of Texas at Austin, 1975 – 1978

B.A. in Psychology with High Honors, May 1978

Honors: Phi Beta Kappa, Phi Kappa Phi

PROFESSIONAL ASSOCIATIONS

American Law Institute

Texas Supreme Court Advisory Committee 1999 – present

Texas Supreme Court Jury Task Force 1996–1997

Board Certified by the Texas Board of Legal Specialization– Personal Injury Law

2

College of the State Bar of Texas

American Inns of Court – Garland Walker Inn 1997-2004

Fellow of the Texas Bar Foundation

Fellow Houston Bar Association

State Bar District–Four Committee on Admissions, 1986 to 1988

Charter Member – Institute for Responsible Dispute Resolution

Defense Research Institute

Judicial Section of the State Bar of Texas Legislative Committee 2000–2001

Course Director State Bar of Texas Advanced Personal Injury Course 2000

Member various State Bar of Texas CLE Course Committees

Member, State Bar of Texas Continuing Legal Education Committee 2004-2007

Member, PJC Volume 1 Committee, 2005 – present

Member, PJC Consistency Committee, 2007

AWARDS

State Bar of Texas Outstanding Law Review Article 2000

Houston Law Review Professional Legal Scholarship Award 2000

COMMUNITY SERVICE

Houston Habitat for Humanity, board member 1995–2004, advisory board member 2004-

present, vice president during Jimmy Carter work project in 1998, president 2000 –2001

Spring Branch Community Church, elder and Sunday school teacher 1992– 2002, Sunday

School Teacher 2004-Present.

Spring Branch Sports Association – Coach of baseball, basketball, softball and soccer

1991 – 2000. Served as commissioner and director of basketball leagues at various times

Memorial High School Community Network 2000–2007

Chairman, Parent Forum Committee 2003-2005

Chairman, 2005-2007

KSBJ Radio – board member January 2005-present

PUBLICATIONS

TRIAL OBJECTIONS: CIVIL AND CRIMINAL (2003)

Daubert Objections to Public Records: Who Bears the Burden of Proof?, 39 HOUS. L.

REV. 413 (2002)

3

Eight Gates for Expert Witnesses, 36 HOUS. L. REV. 743 (1999)

Procedural Issues Under Daubert, 36 HOUS. L. REV. 1133 (1999)

The Summary Jury Trial: Perspectives of Bench and Bar, The Houston Lawyer, March

and April 2001, at 32

Practical Tips on Expert Witnesses, The Advocate (2006)

The Summary Jury Trial Part II: Perspectives of Bench and Bar, The Houston Lawyer,

May and June 2001, at 16

Section 1983: The Vehicle for Vindicating Employees' Constitutional Rights, 47

BAYLOR L. REV. 619 (1995)

Government Noninvolvement With Religious Institutions, 59 TEX. L. REV. 921 (1981)

TRACY CHRISTOPHER

Justice, 14th

Court of Appeals

1307 San Jacinto, 11th

Floor

Houston, TX 77002

(713) 655-2800

Professional Experience:

2009 to present Justice, 14th

Court of Appeals Harris County, TX

Member of a nine member intermediate court of appeals with jurisdiction over civil and

criminal appeals in a ten county area.

1995 - 2009 Judge, 295th

Civil District Court Harris County, TX

Judge, General Civil Docket.

Region 2, Rule 11 judge, Baycol cases.

Regions 4 & 5, Rule 11 judge, Oil and Gas tax cases.

Statewide Rule 13 judge, silica cases.

1986-1994 Susman Godfrey Houston, TX

Prepared and tried commercial lawsuits for the plaintiff and the defense. Briefed and

argued cases before the Texas appellate courts.

1981-1986 Vinson & Elkins Houston, TX

Prepared and tried personal injury lawsuits primarily for the defense. Briefed and argued

cases before the Fifth Circuit.

Education:

1978-1981 University of Texas School of Law Austin, TX

J.D. with honors

1974-1978 University of Notre Dame South Bend, IN

B.A. in Economics, with honors

Awards, Certifications and Committees:

2001 Trial Judge of the Year, Texas Association of Civil Trial and Appellate Specialists

Board Certified in Civil Trial Law by the Texas Board of Legal Specialization

Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization

Supreme Court Advisory Committee 2003-2011

Pattern Jury Charge Committee 2004-2010, Chair of Oversight 2007-2010

Houston Bar Life Fellow and Texas Bar Fellow

College of the State Bar

Administrative Judge, Civil Trial Division 2002-2003, 2009

2302 FANNIN, SUITE 500

HOUSTON, TEXAS 77002

PHONE: (713) 659-7617

FAX: (713) 659-7641

Scott Link - Partner

[email protected]

Scott Link served 11 years as a judge for the 80th Texas State District Court before retiring in 2003. He has since served on the

Liaison Committee to the Texas State Silica Multi-District Litigation and the Liaison Committee to the Texas State Asbestos Multi-

District Litigation. Scott taught Civil Trial Advocacy from 1996-1999 at South Texas College of Law as an Adjunct Professor. Scott

now focuses his practice on commercial litigation. He vigorously represents his clients in State and Federal Courts across the nation.

He also has represented numerous clients before Arbitrators and Arbitration Committees. Scott has been appointed as an arbitrator

on several cases and is a certified mediator. He is board certified in Civil Trial Law and Personal Injury Trial by the Texas Board of

Legal Specialization.

Education

·University of Texas, Austin

·University of Houston

·Doctor of Jurisprudence, South Texas College of Law

Professional Affiliations

·United States Court of Claims

·United States District Court, Northern District of Texas

·United States District Court, Southern District of Texas

·United States District Court, Eastern District of Texas

·United States District Court, Western District of Texas

·State Bar of Texas

·Justice of the Honor Court, South Texas College of Law

Honors & Distinctions

·Texas Trial and Appellate Specialists “Trial Judge of the Year”, 1997

·Master Asbestos Judge for Harris County, Texas, 1995-2002

·Chairman; Mass Tort Committee for the Board of District Judges, 1997-2000

·Co-Chair; Board of District Judges Breast Implant Committee, 1998-2000

·Elected to the American Board of Trial Advocates, 2003

·Am Jur Awards for Excellence in Educational Achievement, South Texas College of Law

Publications & Speeches

Scott has published numerous papers and articles in the areas of Mass Torts, Challenges to Experts, Tort Reform, Evidence, Trial

Techniques, Jury Charge, and Injunctions.

www.csj-law.com

CHIEF JUSTICE CAROLYN WRIGHT

Fifth District Court of Appeals

600 Commerce St., Ste. 200

Dallas, TX 75202

(214) 712-3410 Fax (214) 745-1083

Chief Justice Carolyn Wright, 5th

District Court of Appeals, has served in the Texas judiciary for more than 25

years. She is a native Texan and “overseas military brat.” Her judicial service includes: 15 years on the court of

appeals, which has jurisdiction over both civil and criminal appeals from trial courts in the six large North Texas

counties from which she is elected; 8 years as a State District Judge; and 3 years as an appointed Associate Judge in

the Family District Courts. Prior to her judicial service, she was engaged in the private practice of law in areas of

business transactions and litigation, as well as juvenile and family law. She graduated from the Howard University

School of Law, Washington, D.C. Prior to and during law school, she worked for the federal government in a law-

related field of juvenile justice. She is a frequent lecturer and speaker at educational institutions and State Bar of

Texas CLE programs. She is a former volunteer faculty member of the Texas Center for the Judiciary and the

National Judicial College, Reno, Nevada. Her professional memberships and service include: Past Chair and

Sustaining Life Fellow of the Texas Bar Foundation, a multi- million dollar legal charity; Fellow of the Foundations

of the Dallas Bar and Dallas Young Lawyers; Member of the College of the State Bar of Texas, the National and

American Bar Associations and the JL Turner African-American Legal Association; the Judicial Ethics Committee

and a Texas Supreme Court Appellate Tribunal for removal of a judge from elected office; appointed to the Texas

MDL panel; appointed to a task force to set national standards for mediation practice and a trail-blazer in Texas

court-connected mediation. Awards and Honors include: National Association of Women Lawyers’ Leadership

Award; the ABA Business Section’s Award for contributions to women and proficiency in law; Howard University

School of Law’s “Distinguished Alumnus Award;” Dallas Bar Association’s MLK, Jr. Award for Justice; Dallas

Women Lawyers’ Louise Raggio Award; J. L. Turner Legal Association’s Distinguished Jurist Award; the

American Jewish Congress’s “Woman of Spirit” Award; the Women Council’s Distinguished Public Service

Award; Altrusa International’s Public Service Award; and Governor Bush’s “Yellow Rose of Texas Award” for

community-service, as well as numerous others.

Daubert Challenges in Practice Chapter 22

TABLE OF CONTENTS

I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. TEXAS CASE LAW ON EXPERT RELIABILITY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III. PRACTICAL APPLICATION OF THE LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. Proponents Perspective. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

2. The Opponent’s Perspective. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

APPENDIX: TERMS, RULES, CASE LAW AND PRACTICE POINTERS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Operational Terms Defined.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Texas Rules of Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Relevant Case Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Suggested Practice Pointers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

DAUBERT CHART.......................................................................................................................................................13

i

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D A U B E R T C H A L L E N G E S I N

PRACTICE

I. INTRODUCTION:

This article focuses on Texas case law and rules and

will give an “executive summary” of the law concerning

the admission of expert testimony in Texas. Following

the overview - along with the attached appendix - we

proffer practice pointers that lawyers may consider

carefully when preparing to defend or challenge the

opinions of an expert witness.

II. T E X A S C A S E L A W O N E X P E R T

RELIABILITY:

Expert testimony many times is the difference

between success and failure in complex litigation. In

1993, the United States Supreme Court in Daubert

recognized this and delineated four factors to try to

excise “Junk Science” from playing a part in jury trials

across the nation, realizing the need for a more

streamlined approach to analyzing the reliability of

expert testimony. The four factors that make up the1

Daubert standard are: (1) whether a theory or technique

can be and has been tested (falsifiability); (2) whether the

theory or technique has been subjected to peer review

and publication; (3) the technique’s known or potential

rate of error; and (4) the general acceptance of the theory

or technique by the relevant scientific community.

In 1995, the Texas Supreme Court was provided the

perfect opportunity to extend Daubert. However, rather

than applying only the four factor’s of Daubert to expert

testimony, the Texas Supreme Court in Robinson decided

to add two more factors to this non-exclusive test. The2

two factors added were: (1) the extent to which the

technique relies upon the subjective interpretation of the

expert, and (2) the non-judicial uses which have been

made of the theory or technique.3

These six factors became what is known so well to

trial attorneys in Texas as the Daubert/Robinson test.

Shortly thereafter, the Texas Courts were presented with

another issue in the continuing saga of expert testimony;

how to address the “soft sciences” or testimony based

solely on personal experience of the expert. In 1997 and

1998, the Texas Supreme Court articulated another

analysis, known as the “Analytical Gap” test through its

opinions issued in Havner and Gammill. 4

The “Analytical Gap” test should only be applied

when the Daubert/Robinson factors would not effectively

operate to determine the reliability of the expert.

Primarily this served to present a minimum standard to

be met by expert testimony when testifying on personal

experience, outside of hard sciences such as

thermodynamics or physics. The test, as set forth in

Gammill, was to evaluate the methodology and analysis

relied on by the expert and the ultimate opinions that

were reached. If too great an “analytical gap” was found,

the expert’s testimony was deemed unreliable and thus

inadmissible. One significant factor was whether the

expert had ruled out other possible causes, if testifying

about the causation element. “Assuming [the expert] was

correct, he has offered nothing to suggest that what he

believes could have happened actually did happen. His

opinions are little more than ‘subjective belief or

unsupported speculation.’” Because of the existence of 5

two tests, and ambiguity as to which should be applied

in what circumstance, courts have since been wrestling

with the application of each.

In 2006, the Texas Supreme Court decided two

different cases in which they sought to clarify the

application of the two tests. In Mack Trucks and Cooper6

Tires, the Court rejected the application of the

“Analytical Gap” test when the Robinson factors could

have been applied. This signaled somewhat of a retreat

towards stricter scrutiny of expert testimony, as parties

could not simply announce their experts would be

testifying based on personal experience, thus negating

Robinson.

In 2007, the Texas Supreme Court was again

presented with an opportunity to strike down expert

testimony founded in the “soft sciences” when it decided

Pleasant Glade. In Pleasant Glade, expert testimony of7

psychiatrists and clinical psychologists was admitted

based almost entirely on interviews with the plaintiff.

The plaintiffs in the case were claiming Post Traumatic

Stress Disorder after two chilling incidents at their

church. The facts were in dispute, but some type of

exorcism was attempted.

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 5791

(1993).

E.I. Dupont de Nemours & Co. v. Robinson, 923 S.W.2d 5492

(Tex. 1995).

Id. at 557.3

Merrel Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 7064

(Tex. 1997); Gammill v. Jack Williams Chevrolet, Inc., 972

S.W.2d 713 (Tex. 1998).

Id.5

Mack Trucks v. Tamez, 206 S.W.3d 572 (Tex. 2006); Cooper6

Tire & Rubber Co. v. Mendez, 204 S.W.3d 797 (Tex. 2006).

Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 17

(Tex. 2008).

1

http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=US_supremeopinions&volume=509&edition=U.S.&page=579&id=124757_01

http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=TX_caselaw&volume=923&edition=S.W.2d&page=549&id=124757_01








The Texas Supreme Court, rather than grapple with

the expert testimony predicament presented, decided to

dismiss the case as falling under the protection of the first

amendment, since “laying of the hands” was a church

practice.

Since Pleasant Glade, there have been a number of

expert testimony cases decided by the courts. In

particular, two of these have been heard by the Texas

Supreme Court, with another currently pending review.

In May of 2009, the Texas Supreme Court once

again reaffirmed that when there is too great an

“analytical gap” between the evidence and the expert’s

conclusions, it amounted to no evidence. In Pollock, the

plaintiffs had alleged that in utero exposure to the

chemical benzene had caused their daughter to have

leukemia. The defendant in the case, City of San8

Antonio, did not even challenge the reliability of the

expert testimony that in utero exposure to benzene

caused leukemia. In fact, the City conceded that at high

enough levels, benzene could in fact cause leukemia and

other chromosomal abnormalities. Instead, the City

challenged the concentration levels of benzene that the

expert had hypothesized.

Because this was not a challenge to the reliability of

the expert testimony, the Texas Supreme Court pointed

out the fact that a challenge as to the testimony being

legally insufficient evidence could be made for the first

time on appeal. The Texas Supreme Court determined9

that there was too great an “analytical gap” between the

(albeit reliable) expert data and methodology, and the

conclusions that the expert ultimately held. Because of

this “no evidence” holding by the Texas Supreme Court,

a take nothing judgment against the Pollocks was

rendered, rather than a reverse and remand for a new

trial. This poses a major complication in the realm of10

expert testimony. Recall that in Gammill, the Court held

that it is the obligation of the trial court to act as

“gatekeeper” to ensure relevance and reliability of expert

testimony. Parties should not be allowed to have their11

opponents evidence admitted, only to challenge the

reliability of the evidence at the judgment stage of trial or

later on appeal. This would, in effect, usurp the trial12

courts “gate keeping” function.

In Whirlpool, a decision issued by the Texas

Supreme Court in December of 2009, the Court once

again struck down expert testimony and rendered a take

nothing judgment against the plaintiffs. In this products13

liability case, the jury found that a design defect in an

electric clothes dryer caused a fatal fire. On appeal, the14

Corpus Christi Appellate Court affirmed, concluding that

the expert testimony was based on personal experience,

so its review was limited to determining whether an

“analytical gap” existed between the data he used and his

conclusions. The review did not incorporate the

reliability factors of Robinson. The Texas Supreme15

Court reviewed the evidence, once again, not under the

abuse of discretion standard for determining the

reliability of the expert testimony, but under a “de novo

like” standard of review, being that it was a no evidence

challenge. The Court held that the trial court should16

have applied the Robinson factors to the expert

testimony, and that simply because the expert was

testifying based on personal experience, this did not

preclude the application of the factors to the underlying

tests and methodology that the expert relied on when

formulating his opinion. Due to the expert testimony

relying on facts that were themselves subject to the

Robinson gauntlet, and the failure of the trial court to

even apply these, the Texas Supreme Court held that the

expert testimony was legally insufficient, reversed the

lower court and rendered a take nothing judgment. 17

In a case currently pending review, the Texas

Supreme Court will once again be presented with a trial

court’s decision to exclude expert testimony based on its

unreliability. In St. Clair v. Alexander, the trial court

refused to allow the plaintiff’s expert to testify as to the

standard of care involved in the surgery that plaintiff had

undergone. The expert used “differential diagnosis” to18

pinpoint the cause of injury by systematically ruling out

City of San Antonio v. Pollock, 284 S.W.3d 809, 811 (Tex.8

2009).

Id.9

Id. at 821.10

Gammill, 972 S.W.2d at 728. 11

Pollock, 284 S.W.3d at 817. (“An objection is required to12

give the proponent a fair opportunity to cure any deficit and

thus prevent trial by ambush.”).

Whirlpool Corp. v. Camacho, 298 S.W.3d 631 (Tex. 2009).13

Id. at 633. 14

Id. at 637. 15

Id. at 638.16

Id.17

St. Clair v. Alexander, No. 13-08-00218-CV, 2009 Tex.18

App. LEXIS 7682 (Tex. App.-Corpus Christi Sep. 30, 2009,

pet. filed)(mem. op.).

2






other causes. The expert identified three possible19

causes of the plaintiff’s current condition, then ruled out

two through contravening data, leaving only one possible

explanation for the plaintiff’s current injury. The20

Corpus Christi Court of Appeals determined that the trial

court’s refusal to admit the expert testimony, and the

subsequent granting of a no evidence summary judgment,

was an abuse of discretion. The Court of Appeals’21

greatest critique of the trial court was the failure to lay

out the grounds for its refusal to admit the expert

testimony. Because the Court of Appeals used both the22

Robinson factors and the “Analytical Gap” test in

reversing the trial courts decision, we believe the petition

to the Supreme Court is likely to be denied. If the Texas

Supreme Court does in fact decide to validate the

decision by refusing the petition, this would continue the

trend of applying both tests to expert testimony. As long

as a trial court lays out the basis for its opinion, and

follows Robinson if possible, its decision should be

upheld on appeal.

The Texas Supreme Court appears to be growing

ever more cynical with allowing parties to sidestep the

Robinson factors simply by proclaiming that their expert

is testifying based on personal experience. Although it

is a shorter hurdle to clear, the consequences of vying for

the “Analytical Gap” test - rather than the Robinson

factors - can be daunting.

As seen in both Whirlpool and Pollock, the Texas

Supreme Court is likely to use the “de novo like”

standard, and look towards the legal sufficiency of the

evidence, rather than abuse of discretion standard,

looking only to whether the trial court was within the

bounds of its discretion. These cases, continuing with

the tradition set forth in Mack Trucks and Cooper Tire,

signal a resurgence in the Robinson factors being the

cornerstone of expert reliability.

III. PRACTICAL APPLICATION OF THE LAW:

1. Proponents Perspective

The burden of proving reliability of an expert is on

the proffering party, after the appropriate challenge is

made. The only thing an opposing party must do is23

raise a timely objection, and the proffering party must be

prepared prior to and during trial to defend the experts

reliability. If the proper foundation is laid at the trial

court, and the expert’s methodologies and theories have

been proven up with supporting data through the

evidence, the likelihood of being reversed for legal

insufficiency on appeal is greatly diminished. It is

crucial to thoroughly prepare from the moment it is

determined that an expert is needed. This preparation

begins with selection of the appropriate expert.

When choosing the expert, research the expert’s

qualifications, and his/her prior experience in the subject

matter. This includes but is not limited to prior witness

testimony, prior conflicting view points, etc. In24

Robinson, the Texas Supreme Court determined that one

of the two factors that would be added to the Daubert

standard would be the non-judicial uses of the theory or

technique. “Opinions formed solely for the purpose of25

testifying are more likely to be biased toward a particular

result.” It seems as though the Court was expressly26

frowning upon the reliability of “Professional Testifiers.”

When choosing an expert and later when designating

him/her, it is important to fully understand what that

expert will be testifying about, more specifically,

whether he/she will be testifying about one of the “hard

sciences”, “soft sciences”, or personal experience. “Hard

sciences” are generally thought of as those that can be

unequivocally proven through the scientific method, such

as physics or thermodynamics. “Soft sciences” on the

other hand will encompass such things as psychology,

psychiatry, or social sciences.

From a practical perspective, an expert will generally

be testifying in regards to a combination of two or more

of the fields rather than one individually, such as the

situation in Pleasant Glade. In Pleasant Glade, expert

testimony about the psychological harm inflicted upon

the plaintiff was admitted based substantially on

interviews with the plaintiff and her family. This27

testimony was proffered by clinical psychologists as well

as psychiatrists, it being based on both “soft sciences”

and personal experience. It is well established that the

Robinson factors should be applied when they would

help determine the reliability of the expert. When the

Robinson factors would not help to determine the

reliability of the expert, such as testimony based on

personal experience, the “Analytical Gap” test

established through Havner and Gammill would apply.

This test, as noted earlier, looks to the expert’s theories

Id. at 12.19

Id. at 13.20

Id. at 16.21

Id. at 12.22

Robinson, 923 S.W.2d 549. 23

James W. Christian & Alistair B. Dawson, Daubert24

Challenges, 10 (Advanced Evidence and Discovery Seminar,

2007).

Robinson, 923 S.W.2d at 556.25

Id. at 559.26

Pleasant Glade, 264 S.W.3d at 5.27

3





and methodologies and the final conclusions drawn by

the expert to see if there is “too great an analytical gap”

to be reliable. 28

It appears in all practicality that simply stating that

your expert would be testifying based on personal

experience, and proffering evidence that there is no

“gap” in the methodology and conclusions, may be the

more efficient way to approach the situation. However,

as seen most recently in Whirlpool, this can be the end

game with a legal sufficiency challenge at the judgment

stage of trial or even for the first time on appeal. In29

Whirlpool, although the expert was testifying based on

personal experience, the Texas Supreme Court held that

1) because the tests and evidence relied on by the expert

were themselves subject to the Robinson factors, and 2)

the trial court’s decision to bypass these in applying the

“Analytical Gap” test, that this amounted to no evidence.

The key lesson to be learned from this is that regardless

of what your expert is testifying about, if the Robinson

factors can be applied, they must.

Furthermore, if your expert is testifying in regards to

some type of causation (which most experts are) then a

failure to rule out other possible causes can render the

testimony conclusory or speculative. This, if not

properly addressed, could lead to a decision being

overturned based on legal sufficiency. “ . . . An expert

should carefully consider and rule out alternative causes,

and the failure to rule out other causes results in

speculation and conjecture and amounts to no evidence

of causation.” As a better practice, the proffering party30

should, if possible, give evidence as to why the expert

withstands the Robinson factors, even without a proper

challenge by the opposing party. This would, it seems,

insure that the appellate courts review the decision under

an abuse of discretion standard; rather than using a “de

novo like” approach when deciding a legal sufficiency

challenge.

In conclusion, it seems as though an easier path

would be to sidestep the Robinson factors in favor of the

“Analytical Gap” test, when in reality, this could prove

fatal. The Texas Supreme Court in recent years has

overturned several cases on legal sufficiency grounds

(using a “de novo like” rather than an abuse of discretion

standard) due to the trial courts decision not to employ

the Robinson factors when evaluating expert testimony.

Once the expert has been admitted after being put to the

test under the Robinson factors, he is virtually safe from

appellate scrutiny, absent an abuse of discretion. The

safer approach favors designating an expert with the

Robinson factors in mind, or at least preparing your

expert for the inevitable challenge prior to trial using

Robinson as a reference.

2. The Opponent’s Perspective

Although it was once believed that you were only

given one chance to object to unreliable expert testimony

being admitted without any recourse after trial had

began, this no longer appears to be the case. In the past

decade the Texas Supreme Court has reversed several

different decisions on the grounds that the expert

testimony relied on was “no evidence.” Although an31

objection to the reliability of the expert testimony must

be made at trial, to attack the testimony by the expert

witness as being conclusory or speculative can be made

for the first time on appeal. As seen in Pollock, an32

opposing party may concede the reliability of the

expert’s underlying data and methodology, and then at

the judgment stage or even on appeal object to the

testimony as “no evidence” based on the gap between the

underlying data and the expert’s ultimate conclusions.33

The proper basis to object to expert testimony at the

pretrial and trial stage is simply to raise an objection in

regards to the reliability of the expert; the burden to

prove reliability will then be on the party presenting the

evidence. After the proffering party has made some sort

of a prima facie showing in regards to the reliability, it is

up to the court to decide if the evidence is admissible.

The most effective way to keep expert testimony out of

the trial is a two step process. The first step would be to

show that the testimony is subject to the Robinson test

and the second step is to show why the testimony does

not meet that standard. The effectiveness of disproving

the reliability of expert testimony by using the Robinson

factors is enunciated in Mack Trucks and Cooper Tires.

Mack Trucks effectively broadened the scope of

applicability for the Robinson factors, and Cooper Tires

showed just how damning those factors can be when

critically applied to any expert.” The initial step will34

likely be the highest hurdle as many times the proponent

will simply allege that the expert is testifying based on

personal knowledge and that the “Analytical Gap” test

should be employed. Coming upon this situation, one of

Gammill, 972 S.W.2d at 726.28

Whirlpool, 298 S.W.3d at 637. 29

Hess v. McLean Feedyard, Inc., 59 S.W.3d 679, 687 (Tex.30

App–Amarillo 2000, pet. denied).

Whirlpool, 298 S.W.3d at 643.31

Coastal Transp. Co. v. Crown Central Petrol. Corp., 13632

S.W.3d 227, 232 (Tex. 2004).

See Pollock, 284 S.W.3d 809.33

James W. Christian & Alistair B. Dawson, Daubert34

Challenges, 10 (Advanced Evidence and Discovery Seminar,

2007).

4







three routes or a combination thereof could likely be

taken: (1) object to the evidence based on the fact that

Robinson should apply, and that the testimony would fail

to meet the Robinson threshold, (2) object that there is

some type of “analytical gap” between the methodology

and data relied on by the expert and his ultimate opinion,

or (3) simply say nothing. At first glance, saying nothing

seems to be an enormous mistake; however, a legal

sufficiency challenge can be made for the first time at the

judgment stage, or on appeal. 35

In Pollock, the defendant conceded that the expert’s

data and methodology was reliable and then made a

challenge to the legal sufficiency of the evidence at the

judgment stage and on appeal that the “gap” between the

expert’s methodology and his ultimate opinions was so

great as to render his testimony as “no evidence”. The

Texas Supreme Court ratified this approach stating that

an objection to the legal sufficiency of the evidence

could be made for the first time on appeal, as long as the

challenge is restricted to the face of the record. If a party

were to object to the expert testimony before trial based

on a “gap” in the reasoning or, in the alternative, that the

expert had failed to rule out other possible causes if

testifying to causation, then the proponent of the

testimony may have a chance to remedy. Their remedies

include, but are not limited to, designating a new expert

or supplementing exhibits to bolster or buttress the

expert’s testimony.

The most practical and safest route would be to

object to the expert as being unreliable based on the

Robinson factors or, in the alternative, that there is an

“analytical gap” between his data and ultimate

conclusions. This would allow you to preserve error on

appeal on the reliability of the expert as well as not

“tipping your hand” if you believe that the testimony is

conclusory or speculative on the face of the record, since

this would be a legal sufficiency point not needed to be

preserved through objection at the trial court level.

There are two benefits to challenging the testimony

as to legal sufficiency on appeal. One of these benefits

is the standard of review that the appellate court will use.

On appeal, if the reliability of the expert is preserved at

the trial court, the court of appeals will use an abuse of

discretion standard giving great weight to the trial court’s

decision to admit the testimony. If, however, a legal

sufficiency challenge is taken on appeal, the appellate

court will use a “de novo like” standard of review giving

almost no deference to the trial court’s decision. The

other benefit to using a legal sufficiency challenge on

appeal is that if the appellate court decides to overturn

the decision of the trial court on the grounds that the

evidence was legally insufficient to uphold the verdict, a

reverse and render would issue, rather than the proponent

of the evidence getting another chance at the case on

remand. It is important to distinguish between the

“Analytical Gap” test derived from Havner and Gammill

that applies to expert reliability, and a legal sufficiency

challenge on appeal.

The “Analytical Gap” test merely goes to the

reliability of the expert testimony, whereas a legal

sufficiency challenge is to all the evidence presented in

the cumulative. “When a scientific opinion is admitted in

evidence without objection, it may be considered

probative evidence even if the basis for the opinion is

unreliable. But if no basis for the opinion is offered, or

the basis offered provides no support, the opinion is

merely a conclusory statement and cannot be considered

probative evidence, regardless of whether there is no

objection.” To make a “no evidence” challenge at the36

judgment stage of trial or later on appeal, the error must

be on the face of the record, such as a challenge that the

expert testimony is “speculative or conclusory on its

face.” 37

The most effective strategy for attacking expert

testimony appears to be with the application of the

Robinson factors at the trial court level, and then later

through a legal sufficiency challenge during either the

judgment stage of trial or on appeal.

See Pollock, 284 S.W.3d 809.35

Pollock, 284 S.W.3d at 818.36

Coastal, 136 S.W.3d at 233.37

5




APPENDIX: TERMS, RULES, CASE LAW AND PRACTICE POINTERS

OPERATIONAL TERMS DEFINED:

“Analytical Gap” Test: “When an expert opinion is based on the experience of the expert alone, the trial court must

determine if there is a sufficient connection between the existing data and the opinion offered or if there is ‘simply too

great an analytical gap’ for the expert testimony to be considered reliable.” Gammill v. Jack Williams Chevrolet, Inc.,

972 S.W.2d 713, 726 (Tex. 1998).

“Legal Sufficiency” Challenge : “A party may assert on appeal that unreliable scientific evidence or expert testimony

is not only inadmissible, but also that its unreliability makes it legally insufficient to support a verdict. . . . a no-evidence

review encompasses the entire record, including contrary evidence tending to show the expert opinion is incompetent

or unreliable.” Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009).

Robinson Factors: [The] factors to consider in determining the admissibility of scientific knowledge] include, but are

not limited to: (1) the extent to which the theory has been or can be tested, (2) the extent to which the technique relies

upon the subjective interpretation of the expert, (3) whether the theory has been subjected to peer review and/or

publication, (4) the technique’s potential rate of error, (5) whether the underlying theory or technique has been generally

accepted as valid by the relevant scientific community, and (6) the non-judicial uses which have been made of the theory

or technique. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995).

“Hard Sciences” : Characterized as relying on experimental, empirical, quantifiable data, relying on the scientific

method, and focusing on accuracy and objectivity.

“Soft Sciences”: Sciences generally not able to be proven through application of the scientific method. Such as the social

sciences, psychology, or psychiatry.

TEXAS RULES OF EVIDENCE:

Texas Rule of Evidence 401. Definition of “Relevant Evidence”.

“Relevant Evidence” means evidence having any tendency to make the existence of any fact that is of consequence to

the determination of the action more probable or less probable than it would be without the evidence.

Texas Rule of Evidence 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible.

All relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by these rules, or by other

rules prescribed pursuant to statutory authority. Evidence which is not relevant is inadmissible.

Texas Rule of Evidence 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.

Texas Rule of Evidence 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.

Texas Rule of Evidence 703. Bases of Opinion Testimony by Experts.

6





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.

Texas Rule of Evidence 704. Opinion on Ultimate Issue.

Testimony 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.

RELEVANT CASE LAW:

E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). Set out six non exclusive factors trial

courts should use to help determine the reliability of expert testimony. “Evidence that has no relationship to any of the

issues in the case is irrelevant and does not satisfy [TRE] 702's requirement that the testimony be of assistance to the jury.

It is thus inadmissible under Rule 702 as well as under [TRE] 401 and 402.”

Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997). Held that expert opinions based upon unreliable

underlying data are inadmissible. “If the foundational data underlying opinion testimony are unreliable, ... 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 conclusions 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’s scientific testimony is unreliable and, legally, no evidence.” See also Cooper Tire &

Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006).

Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998). Held that trial courts should look closely

for analytical gaps between the facts of a case and the opinions of non-scientific, experience-based experts. “Nothing in

the language of [TRE 702] suggests that opinions based on scientific knowledge should be treated any differently than

opinions based on technical or other specialized knowledge. It would be an odd rule of evidence that insisted that some

expert opinions be reliable but not others. All expert testimony should be shown to be reliable before it is admitted.” See

also Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001).

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006). Clarified Gammill by holding that any time the

Robinson factors would be helpful in determining reliability of an experts testimony, they should be used. “The

reliability inquiry as to expert testimony does not ask whether the expert’s conclusions appear to be correct; it asks

whether the methodology and analysis used to reach those conclusions is reliable.”

Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 643 (Tex. 2009). Held that even if an expert is testifying based on

personal experience, the Robinson factors should be applied to the underlying tests and data relied on if to do so would

help insure the experts reliability. “When all the evidence is considered, as it must be in a proper legal sufficiency

review, we conclude that the data on which . . .[the expert] relied does not support his opinions. His opinions are

subjective, conclusory, and are not entitled to probative weight.”

City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009). Reaffirmed that when there is too great an “analytical

gap” the expert testimony is speculative and conclusory on its face, and amounts to no evidence. “When a scientific

opinion is admitted in evidence without objection, it may be considered probative evidence even if the basis for the

opinion is unreliable. But if no basis for the opinion is offered, or the basis offered provides no support, the opinion is

merely a conclusory statement and cannot be considered probative evidence, regardless of whether there is an objection.”

St. Clair v. Alexander, No. 13-08-00218-CV, 2009 Tex. App. LEXIS 7682 (Tex. App.-Corpus Christi Sep. 30, 2009,

pet. filed)(mem. op.). The trial court granted a no evidence summary judgment for the defendant, striking the plaintiff’s

expert, even though the expert met the Robinson factors, as was later shown on appeal. Plaintiff ‘s expert was a board

7










certified neurosurgeon who would have testified as to the possible causes of plaintiff’s Cauda Equina Syndrome, a

disorder affecting the bundle of nerve roots at the lower end of the spinal cord. The expert used differential diagnosis,

a well known methodology, to determine that the cause of the plaintiff’s condition was the defendant’s negligence in

performing an earlier surgery. The Corpus Christi Court of Appeals applied both the “Analytical Gap” test as well as

the Robinson factors in determining the trial court had abused its discretion in refusing to admit the expert testimony.

“Because there is nothing in the record to indicate the test the trial court used when determining the reliability of [the

expert]’s testimony, we look to both the Robinson factors and the Gammill ‘analytical gap’ analysis.’”

SUGGESTED PRACTICE POINTERS:

A. Proponents Perspective

1. Investigate your Expert

Before retention of an expert, ask the expert to demonstrate to you that the method he will use to form an opinion

rests on a scientifically reliable foundation. If the expert can prove it to you, you may be able to prove it to the judge.

If the expert cannot prove it to you, get another expert. Also get an affidavit from the expert stating that he or she has

never been the subject of a successful Robinson challenge. If the expert has been the subject of a successful challenge,

get a transcript—opposing counsel will. Find out if the expert uses the methodologies in everyday practice. Avoid, if1

possible, experts who work only in litigation.

2. Prepare your Expert

a. Explain Daubert/Robinson

An expert can be best prepared to withstand an attack under Daubert/Robinson if he or she understands the grounds

for exclusion. Explain up front that you will need to work closely together to meet Daubert/Robinson standards. Because

expert’s that are not tied to previous litigation are seen as more reliable, this also means that better experts under

Robinson, are ones that are the least prepared for litigation.

b. Prepare for the Deposition

If opposing counsel takes the deposition of your expert, expect that he or she will have a good working knowledge

of the field, will have investigated the expert and will have picked apart any statement made by or about the expert. A

deposition checklist is a good place to start for a list of relevant questions opposing counsel is likely to ask. However,

also expect detailed questions about the expert, the expert reports, methodology, etc. Have a good working knowledge2

of the field. Additionally, the opponent may attempt to get the expert to restate the findings of the expert report. This

should be avoided if possible, as it just opens another avenue to exposing inconsistencies. If the answer to the question

is addressed in the expert report, have the expert say so.

3. Supplement the Expert Testimony

a. Watch the Record

If you are defending an expert, you should have something in the record to defend every step of an expert’s opinion.

The Supreme Court took a keen interest in the lack of record support for the expert’s hypothesis in Cooper Tire, and

Larry G. Black, Daubert Challenge through the Eyes of the Litigator and the Expert, in the State Bar of Texas Suing1

and Defending Government Entities Course, Chap. 18, pg. 2 (2004).

DaubertOnTheWeb.Com, Generic Deposition Checklist, http://www.daubertontheweb.com/Deposition_Checklist.htm2

(last visited April 4, 2010).

8


eventually reversed the trial court’s decision to admit. The more publications, studies, charts, etc. that you can include

to support your expert at every step, the better off you will be.

b. Calculations/Supporting Data Are a Plus

Including mathematical calculations to demonstrate and/or support an expert’s theory can preclude a very likely area

of attack from opposing counsel. As seen in Cooper Tire, the absence of mathematical calculations when a court3

inquires about them can hurt your expert.

c. Include Methods and Resources

The expert should use methodology generally accepted by other experts in that field. Question your expert about

the methodology employed. Who uses the methodology? Does the expert use the methodology in his/her everyday

work? Does the opponent use this methodology? It is not enough for the expert to say that the methodology or

conclusion is valid “because I say so and I’m the expert” or “because I have vast experience in this field.” If the concept4

or method is novel, breaking it down into a series of steps, to show that it is only a small part of the method that hasn’t

been accepted, may prove helpful. This shows the court that although the final conclusion is not generally accepted in

the field, the process gone through in reaching the conclusion is sound.

d. Admit Disagreement

It is helpful to try to argue for the admissibility of your expert by admitting that there is room for disagreement with

the expert’s theory. However, the jury is the proper body to decide who is right. If you can convince the court that your

opponent is really just unhappy with the conclusions of your expert and is trying to have the court make a credibility

decision, you are helping your cause. Along these lines, pay close attention to the challenges made by your opponent

to look for areas where your expert’s final opinion is criticized as opposed to his or her methodology.

e. Defending a Challenge

If there is a challenge to the expert’s testimony, send a copy of the challenge to the expert. The expert will know

better than anyone how to defend his or her report. Also, get affidavits from other experts agreeing that the methodology

used is sound. Your expert may know of others who can review the report. Also gather all peer reviewed literature and

court cases approving of the methodology. Do not forget to look at other Daubert/Robinson opinions concerning the

decisions made by your trial judge.

4. Procedural Considerations

a. Texas Rule of Civil Procedure 194.2

Under TRCP 194.2, disclosure for retained experts includes the following: the expert’s name, address, and telephone

number; the subject matter on which the expert will testify; the general substance of the expert's mental impressions and

opinions and a brief summary of the basis for them, all documents, tangible things, reports, models, or data compilations

that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert's testimony; and

the expert’s current resume and bibliography. [One of the main differences between Federal and Texas state rules is that

the Texas rule only requires the lawyer to give the general substance of the expert’s opinions and a brief summary for

the basis of those opinions.] There is no requirement for a comprehensive report written by the expert.

b. Pre-trial Order

See Volkswagen of America Inc. v. Ramirez, 159 S.W.3d 897 (Tex. 2004).3

Cooper Tire & Rubber Co., 204 S.W.3d at 801. (holding an expert cannot rely on his own book and articles to verify4

his conclusions).

9




Putting a deadline in the scheduling order will prevent the opposing party from attempting to challenge the expert

shortly before trial or at trial order. In a ‘best case scenario’, you would want all Daubert/ Robinson challenges to be5

completed before the discovery cut-off so there is time to find a new expert, if necessary. A scheduling order may state:

An objection to the reliability of an expert’s proposed testimony under Texas Rule of Evidence 702 shall be made

by motion, specifically stating the basis for the objection and identifying the objectionable testimony, within ___

days of receipt of the written report of the expert’s proposed testimony, or within ___ days of the expert’s

deposition, if a deposition is taken, whichever is later.6

c. Lay the Groundwork

Use Interrogatories to start laying the groundwork for responding to your expert challenges. Example interrogatories7

include:

INTERROGATORY NO. ____: Please list those expert witnesses (if any) identified by whom you contend are not qualified

to render opinions under the standards set forth in E.I. Dupont De Nemours v. Robinson, 923 S.W.2d 549 (Tex. 1995), or

in any subsequent opinion by the Supreme Court of Texas which you contend extends the holdings of Robinson.

INTERROGATORY NO. ____: If you contend that any opinion rendered by [expert name] in [his/her] deposition is not

“reliable” within the meaning of E.I. DuPont De Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995), or any

subsequent opinion by the Supreme Court of Texas which you contend extends the holdings of Robinson, please state the

substance of that opinion and describe the basis for your contention.

B. Opponent’s Perspective:

1. Investigate the Expert

Investigating the expert could encompass a number of things, a few are: (1) collecting and reviewing deposition

testimony the expert has given in other cases; (2) reading what the expert has written on the topic; (3) running a

Lexis/Westlaw search on the expert; (4) running a Lexis/Westlaw search on the testing method, equipment or other

specific data used by the expert; running a general internet search on the expert. Also become familiar with the8

technology used by the expert. A lawyer may also consult the Reference Manual on Scientific Evidence published by

the Federal Judicial Center. The manual explains some common scientific terms and statistical methodology.9 10

2. Depose the Expert

An attorney must weigh the benefits and risks of taking an expert deposition. Some factors against taking an expert

deposition include: (1) disclosing strategies for cross examination at trial; (2) educating the witness and opposing counsel

DaubertOnTheWeb.Com, Tactics, http://www.daubertontheweb.com/tactics.htm (last visited April 5, 2010).5

See e.g., Local Court Rules for the Western District of Texas, Appendix B.6

Hon. Joseph M. Cox & George Quesada, Advanced Procedural Tactics, in the State Bar of Texas 21st Annual7

Advanced Personal Injury Law Course, Chap. 28, pg. 2 (2005).

Id. at 4.8

Id.9

A full copy of the manual is available at http://www.fjc.gov/public/pdf.nsf/lookup/sciman00.pdf/$file/sciman00.pdf.10

10




and; (3) giving the expert the opportunity to expand opinions beyond those in the original report. Thus, if an attorney’s11

goal is to “surprise” the expert, skipping the expert deposition may help accomplish that goal. Without a deposition, the

attorney and the attorney’s cross-examination strategies will remain unknown to the expert. However, unless an12

attorney conducts a deposition, much of the expert’s opinions and methodology will remain unknown to the attorney.

Unless a deposition is taken, the attorney will not know whether he or she has opened the door to evidence that might

otherwise be precluded. Thus, if the expert is important to the opposing party and the report suggests questionable13

methodology, taking the deposition is probably worth the drawbacks. Another factor weighing in favor of taking an14

expert deposition is to fully probe the data relied upon by the expert in forming his or her opinion. Discovering that the

expert relied on inadmissible data in discovery will allow the attorney to decide how far to probe the experts basis during

cross examination.

3. Procedural Considerations

a. Timing of the Expert Challenge

The best time to bring a challenge is after it is too late for the opposing party to designate a new expert. Therefore,

striking an expert just before trial or during trial may be the most devastating to you opponent. Remember that15

testimony that does not satisfy Daubert/Robinson “is . . . legally, no evidence,” and cannot support a verdict. Be very16

careful when using this tactic, however. Consider whether the trial court is likely to grant a continuance in order to give

the opposing party time to find a new expert. Additionally, the judge may have little tolerance for such tactics. Also look

closely at local rules.17

b. Attack the Gap

As shown in Gammill, the “Analytical Gap” test has become exceedingly popular in Texas courts. When preparing

your challenge, find “analytical gaps” in the expert’s method or application of that method and point them out. Look

for steps in that expert’s analysis where there are not calculations or data to back up conclusions. Expert opinions based

on an unreliable factual foundation will not be admitted. It is also well settled that an expert’s bare opinion will not18

pass the reliability stage, so point out where the expert has failed to connect the dots between the data relied on and the19

opinion offered.

c. Cross Examination

Linda J. Burgess & James G. Ruiz, Strategies on Expert Discovery, in the State Bar of Texas 17 Annual Advanced11 th

Evidence & Discovery Course, Chap. 12, note 27, at 2.

Id.12

Id. (citing TRCP 193.6 [Failing to Timely Respond—Effect on Trial]).13

Id.14

Id., supra note 27, at 8.15

Id. (citing Havner, 953 S.W.2d 706, 714, 730).16

Id.17

See Ramirez, 159 S.W.3d at 912 (holding an expert’s theory inadmissible where there were no scientific tests or18

calculations to support the theory); Havner, 953 S.W.2d at 714 (reasoning that an expert’s testimony is unreliable even

when the underlying data are sound if the expert draws conclusions from that data based on flawed methodology).

Ramirez, 159 S.W.3d at 906 (Tex. 2004).19

11






Under the Texas rule, 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. Thus, it is20

easier to for a proponent of the evidence to get otherwise inadmissible evidence into trial through the expert in Texas.

The federal rule requires that the inadmissible evidence substantially outweigh the prejudicial effect. Texas only requires

that the danger of misuse outweigh the value of the evidence as an explanation or is unfairly prejudicial. Therefore, it

is the responsibility of the opposing party to raise an objection to the introduction of inadmissible facts. 21

d. Objections

To preserve a complaint that scientific evidence is unreliable and thus, no evidence, a party must object to the

evidence before trial or when the evidence is offered. However, a ruling on a motion in limine does not preserve error22

for appeal. Remember that a challenge to the legal sufficiency of the evidence can be made if based on the face of the23

record, even if not preserved at trial through an objection.

e. Motions to Strike

You may file a motion to strike an expert witness or a motion in limine and argue that: (1) opposing counsel failed

to timely and properly designate the witness under the Texas Rules of Civil Procedure or a court scheduling order; (2)

opposing counsel failed to timely identify the witness and/or the witness's opinions in response to interrogatories and/or

to supplement same; (3) opposing counsel failed to produce expert report, curriculum vitae, and/or other relevant

documents in response to document request and/or failed to supplement same; (4) the witness will not assist the trier of

fact; (5) the witness cannot satisfy some or all of the six Robinson factors; (6) the witness is not qualified; (7) the witness

is relying on an improper standard; and (8) the witness is making legal conclusions.24

f. Evidence Used to Support Motion

A motion to strike an expert witness should be accompanied with as many sources of information buttressing your

position as possible which may include the following; (1) use deposition excerpts; (2) attached affidavits from your

experts with attachments – publications, exhibits, etc.; (3) criticize reports and methodology; (4) utilize other discovery

-interrogatories, requests for admission, requests for disclosure, expert reports; (6) live testimony at the hearing (if

allowed); (7) prior history of expert sought to be excluded, other orders of courts, other depositions, and other

reports/published papers.25

Tex. R. Evid. 705.20

Burgess, supra note 27, at 3; Tex. Workers' Comp. Comm'n v. Wausau Underwriters Ins., 127 S.W.3d 50, 57 (Tex.21

App. –Houston[1st Dist.] 2003).

Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998).22

Acord v. General Motors Corp., 669 S.W.2d 111, 116 (Tex. 1984). 23

C. Thomas Kruse & W. Jeremy Counseller, Expert and Opinion Evidence in Texas under Daubert, Robinson, and the24

Amended Federal Rules, pg. 25 (2002).

Id. at 28.25

12




Mus

t rul

e ou

t oth

er p

ossi

ble

caus

es if

test

ifyin

g to

cau

satio

n or

may

be

subj

ect t

o le

gal s

uffic

ienc

y ch

alle

nge

at ju

dgm

ent s

tage

of t

rial o

r on

appe

al.

Prop

onen

t’sPe

rspe

ctiv

e

Expe

rt

Test

imon

y

“Har

d Sc

ienc

es”

App

ly th

eR

obin

son

Fact

ors

“Sof

t Sci

ence

s”

(or p

erso

nal

expe

rienc

e)

Whe

re th

e Te

sts

and

Dat

a re

lied

on s

ubje

ct to

the

Rob

inso

nFa

ctor

s?(W

hirlp

ool)

If Y

es, a

pply

R

obin

son

Fact

ors

to T

ests

and

Dat

a R

elie

d on

If N

o, a

pply

“A

naly

tical

Gap

” Te

st

Cha

lleng

er’s

Pers

pect

ive

Cha

lleng

ing

Rel

iabi

lity

at T

rial

(abu

se o

f dis

cret

ion

stan

dard

of r

evie

won

app

eal)

Cha

lleng

ing

Lega

l Su

ffici

ency

(“de

nov

o lik

e”

stan

dard

of r

evie

won

app

eal)

Use

Rob

inso

nFa

ctor

s if

poss

ible

If R

obin

son

not

appl

icab

le, u

se

“Ana

lytic

al G

ap”

At T

rial S

tage

(thro

ugh

a di

rect

ed

verd

ict o

r JN

OV

)O

n Ap

peal

Daubert Challenges in Practice Chapter 22

13

Daubert Challenges

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