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Texas (last Shepardized on 1/18/05)

    Texas state appellate decisions are currently monitored for this site through the gracious efforts of James M. Dedman, IV.  (See also jdedman.com.)  He does not author the summaries and should not be blamed for them.  References to Robinson in the summaries are to the Texas Supreme Court's decision in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995) (adopting Daubert).  References to Gammill are to the decision in Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998) (Texas analogue to Joiner and Kumho Tire).  Helpful background on Texas's treatment of expert evidence is also available in this paper authored by attorneys at the Houston firm of Bracewell & Patterson, L.L.P., and from Harvard's Judicial Gatekeeping Project.  The Texas Supreme Court makes the Texas Rules of Evidence available online.

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Texas Supreme Court

Volkswagen of Am., Inc. v. Ramirez, No. 02-0557 (Tex. Dec. 31, 2004).  Volkswagen Passat crosses median and crashes into oncoming vehicle.  Following accident, left rear wheel of Passat is found completely detached from car's stub axle and lying on its side, positioned directly under Passat's left rear wheel well.  Estate of Passat's fatally injured driver sues Volkswagen, alleging design defect.  Did wheel's separation from axle cause accident, or result from it?  To show the former, estate offers testimony from accident reconstructionist Ronald Walker.  Seeking to explain how wheel could have reached its post-accident position under auto if it separated from axle prior to accident, Walker says "laws of physics" enabled wheel to remain pocketed in rear wheel well while Passat traversed median, spun around, and stopped.  Jury returns verdict for estate and Volkswagen appeals.  Admissibility reversed.  Expert cited no literature and conducted no tests to support his theory.  Vague reliance on "laws of physics," without more, is sheer ipse dixit.  Because Walker's opinion is unreliable, and because estate otherwise has no evidence to support its theory, judgment is reversed.

Coastal Transp. Co., Inc. v. Crown Central Petroleum Corp., 136 S.W.3d 227 (Tex. 2004).  Coastal's truck loads loads gasoline at Crown Central's bulk loading facility.  Truck is equipped with probe intended to prevent it from being loaded beyond capacity.  Probe fails, resulting in spillage of 100 gallons of gasoline.  Engine in another nearby truck ignites vapors from spill, sparking fire that destroys loading facility.  In support of exemplary damages in its suit against trucking company, facility relies on testimony from trucking safety expert Arthur Atkinson, who opines in conclusory fashion that trucking company's conduct posed high degree of risk and that trucking company proceeded with conscious indifference to rights, safety, or welfare of others.  Trial court directs verdict in Coastal's favor on exemplary damages because expert's conclusory testimony is insufficient to support finding of gross negligence.  Jury awards damages for negligence and Coastal appeals.  Texas Court of Appeals reverses directed verdict on exemplary damages, holding that Crown Central's failure to challenge admissibility of expert's testimony precluded subsequent challenge to testimony's sufficiency.  Coastal petitions for review by Texas Supreme Court.  Reversed.   Failure to challenge admissibility of expert testimony waives only later sufficiency challenges based on contention that expert's methodology was flawed, not "no evidence" sufficiency challenges against speculative or conclusory testimony possessing, on its face, no probative value.  Verdict reinstated.

Texas Courts of Appeals

Costilla v. Crown Equip. Corp., 148 S.W.3d 736 (Tex. App. Dallas 2004).  Worker loses leg when forklift he is operating falls from loading dock.  Worker brings defective design claim against forklift manufacturer, alleging that forklift should have door to keep operator in compartment during such falls.  Over worker's objection, manufacturer offers testimony from [engineer?] Charles Watkins, who opines that inclusion of door would not make forklift safer, because remaining in forklift during fall could also cause serious injury.  Trial court admits testimony and jury finds for manufacturer.  Admissibility affirmed.  Worker argues that expert's testimony concerned only possibilities, not probabilities.  But expert described his methodologies, and his conclusions were based on more than mere subjective speculation.  Worker cross-examined expert on this point, and presented expert testimony of his own.  No abuse of discretion. 

Rodgers v. Commission for Lawyer Discipline, No. 2-03-072-CV (Tex. App. Fort Worth Sept. 23, 2004, pet. pending).  Commission for Lawyer Discipline (CLD) brings proceedings against lawyer for violation of rules of professional conduct relating to advertising.  CLD offers testimony from attorney Lynette Fons, chairperson of CLD's Advertising Review Committee.  Jury finds violation and court imposes 2-year probated suspension.  Lawyer appeals.  Admissibility affirmed.  Trial court did not abuse discretion in determining that witness was qualified, and her opinions were not rendered unreliable merely because her legal interpretations differed from appellant's.  Moreover, even without expert's testimony, sufficient evidence existed to support verdict.  Expert's testimony was cumulative, and district court did not abuse discretion in admitting it.

In the Interest of B.L.D., No. 10-99-335-CV (Tex. App. Waco Sept. 15, 2004, pet. pending) (not designated for publication).  Court revokes parental rights after trauma nurse Monique Duncum testifies to her expert opinion that child's burns were not consistent with mother's explanation and in fact resulted from mother's intentional immersion of child in scalding water.  Admissibility affirmed.  Witness testified she relied on her training and experience as registered nurse and trial nurse.  No abuse of discretion.

Gross v. Burt, 149 S.W.3d 213 (Tex. App. Fort Worth 2004, pet. pending).  Prematurely born twins develop retinopathy of prematurity (ROP) and subsequently go blind.  Parents sue health care providers, alleging that twins' vision could have been saved by timelier intervention.  In support, parents offer causation testimony from pediatric ophthalmologist Dr. Miles Burke.  Jury awards damages and providers appeal.  Admissibility reversed.  Damages may be awarded only if there is 50% or greater likelihood that harm would have been averted absent negligence.  Evidence showed that treatment for ROP is ineffective until disease reaches "threshold."  Generally, treatment is also ineffective if delayed for too long after threshold.  Experts for both sides agreed at trial that they could not determine precisely when twins reached threshold, because no one performed any examination until after threshold occurred.  But studies on which Dr. Burke relied establish that median age for threshold, in infants of twins' birthweights, was approximately 37 to 38 weeks, or about three weeks before parents presented twins for examination.  Dr. Burke admitted that no studies supported his conclusion that ROP could be effectively treated more than 72 hours from threshold, and even his testimony from personal experience supported potential for successful treatment only within 96 hours of threshold.  Thus no reliable evidence supported 50% or greater probability that harm would not have occurred but for providers' conduct.  Verdict reversed and judgment entered for defendants.

Cass v. Stephens, No. 08-97-00582-CV (Tex. App. El Paso Aug. 31, 2004, no pet. h.).  In oil and gas accounting case brought by well owners against operators, owners offer testimony from accounting expert Harold Eldridge, who testifies in five-volume report to various improper practices and transactions by operators.  Jury finds for owners.  Operators appeal.  Admissibility affirmed.  Operators say accounting expert invented his own methods, unsanctioned by any authoritative body and at odds with accepted industry standards.  But in fact expert repeatedly cited specific and recognized accounting methods, procedures, and rules in support of his methods and opinions.  No abuse of discretion.

Moore v. Mem'l Hermann Hosp. Sys., Inc., 140 S.W.3d 870 (Tex. App. Houston [14th Dist.] 2004, no pet. h.).  Woman injures back at workplace, sues employer.  Trial court excludes rebuttal testimony from woman's treating physician, Dr. S. Ali Mohammed, as sanction for discovery nondisclosure.  Jury finds for employer.  Exclusion affirmed.  Plaintiff disclosed expert's identity but not other information required under Tex. R. Civ. P. 194.2(f).  Plaintiff says physician was rebuttal witness only, but once employer disclosed opinions of its own expert, plaintiff could reasonably have anticipated need for rebuttal, and rebuttal witnesses are not exempt from disclosure rules.

Loram Maintenance of Way, Inc. v. Ianni, 141 S.W.3d 722 (Tex. App. El Paso 2004, pet. pending).  Man shoots police officer while strung out on methamphetamine.  Officer sues man's employer, alleging that employer condoned and facilitated employees' drug use.  At trial, officer calls psychiatrist Dr. Arthur Ramirez to testify on effects of meth on users in general and on shooter in particular.  Jury awards damages and employer appeals.  Admissibility affirmed.  Employer contests psychiatrist's qualifications, because only .04% of his practice involves meth abuse, and because he has never published in that field nor been retained as expert previously.  But psychiatrist does have significant experience with meth abuse patients, teaches psychopharmacology, and is otherwise well-credentialed.  Employer also says testimony was unreliable, because psychiatrist did not attempt to rule out alternative causes for employee's behavior, and also because psychiatrist never examined employee but instead relied on deposition testimony from employee's co-workers.  But psychiatrist testified that it is common clinical practice to rely on collateral information from drug users' family members and acquaintances, and employer explored possible alternative causes on cross-examination.  No abuse of discretion.

Axelrad v. Jackson, 142 S.W.3d 418 (Tex. App. Houston [14th Dist.] 2004, pet. pending).  Patient experiences abdominal pain and sees physician, who prescribes laxative and two enemas.  When first enema causes patient to fall to floor vomiting and to experience rigors and chills, his wife phones physician, who urges patient to take second enema.  Wife ignores physician's advice and drives patient to ER, where bowel perforation is discovered and he is diagnosed with diverticulitis.  After three surgeries and removal of eleven centimeters of colon, patient sues laxative-prescribing physician for malpractice.  In support, patient relies on testimony from Dr. Mary Schwartz, pathologist, who opines that perforation occurred prior to patient's initial visit with physician.  Jury is asked to allocate fault and assigns 49% to physician and 51% to patient for negligence in providing his medical history.  Patient appeals.  Judgment reversed; admissibility affirmed.  No evidence legitimately supported conclusion that patient was contributorily negligent in providing his medical history, and so judgment is reversed and case is remanded for new trial.  Pathologist's opinion was permissibly admitted.  She is well qualified, and she explained reasoning behind her opinion that patient's perforation preceded his visit to physician and did not originate from later enema.  No abuse of discretion.  Dissent: Record supported jury finding of contributory negligence by patient.

In re Estate of Robinson, 140 S.W.3d 782 (Tex. App. Corpus Christi 2004, pet. pending).  Did decedent have testamentary capacity when she changed her will in 1995?  Beneficiaries under prior will contend she did not, relying on testimony from forensic psychiatrist Dr. James B. Grigson.  Trial court admits testimony and jury finds decedent lacked testamentary capacity in 1995.  Admissibility affirmed.  Expert based his conclusion on review of medical records, which reflected strokes and other indications of progressive disease causing diminished brain function.  Because his opinion was not "pure science" and was not easily tested by objective criteria such as scientific formulas, it should be evaluated not under Robinson but rather under Gammill's "analytical gap" test.  Trial court could reasonably have concluded that psychiatrist's experience, coupled with his testimony about methods he employed in review of medical records, rendered his opinion reliable under that test.  No abuse of discretion.

Texas Mut. Ins. Co. v. Lerma, 143 S.W.3d 172 (Tex. App. San Antonio 2004, pet. denied).  Man cuts arm on barbed wire at work, subsequently dies of tetanus.  Surviving wife files workers' compensation claim.  Trial court admits testimony from plaintiffs' causation expert, Dr. Donald Mulder, and jury awards damages.  Employer appeals.  Admissibility reversed.  Because employer challenges reliability of expert's testimony and asserts it constitutes "no evidence" of causation, review is de novo.  Expert failed to eliminate other potential causes of worker's tetanus.  Judgment for employer.

Chavez v. Davila, 143 S.W.3d 151 (Tex. App. San Antonio 2004, pet. dism'd).  Plaintiff suffers injuries in auto accident and sues driver of other vehicle.  Defendant moves for summary judgment on statute of limitations.  To support her contention that statute was tolled because she was of unsound mind, plaintiff offers affidavits from chiropractor Dr. Billy Ryan and licensed counselor Dr. Dana Lea Comstock.  Trial court rejects both affidavits on ground that experts are unqualified to render opinion on whether plaintiff was of sound mind, and awards summary judgment to defendant.  Exclusion affirmed.  Neither expert demonstrated qualifications to opine on question at issue.  Justice Lopez dissents, believing that defendant has burden to negate issue of triable fact on tolling issues on summary judgment.

Pilgrim's Pride Corp. v. Smoak, 134 S.W.3d 880 (Tex. App. Texarkana 2004, pet. denied).  Plaintiff is injured when his pickup collides with defendant's 18-wheeler.  At trial, plaintiff calls investigating police officer, who opines that accident resulted from defendant's changing lanes when it was unsafe to do so.  Plaintiff also calls economic expert Dale Funderburk to establish damages.  Trial finds for plaintiff and defendant appeals.  Admissibility reversed; admissibility affirmed.  Defendant failed to preserve objections to police officer's qualifications, but defendant's "no evidence" challenge was not waived.  Officer was not qualified to perform accident reconstruction, and so his opinion on cause of accident was incompetent and of no assistance to jury.  However, jury's verdict on negligence is supported by other evidence.  As for economic expert, defendant failed to preserve objections to qualifications or reliability, and in any event, expert was qualified based on bachelor's degree in economics, and offered reliable testimony based on basic compilations, computations, and formulae necessary to opine on plaintiff's past and future earning capacity.  Defendant also raises "no evidence" challenge to economist's testimony, but this was waived by absence of trial objection, since expert did not offer merely speculative or conclusory testimony.  Nor was exclusion of economist's testimony warranted by virtue of his failure to supplement his report.  His trial testimony varied from his report only in minor particulars that did not require supplementation.

Alvarez v. Labbruzzo, No. 08-02-00050-CV (Tex. App. El Paso Apr. 29, 2004, pet. denied) (not designated for publication).  Parties agree that ownership interests in corporation will be proportionate to their respective capital contributions.  In declaratory judgment action to assess parties' respective ownership shares, one party offers expert testimony on that ultimate issue.  Trial court permits expert to testify to amount of parties' capital contributions, but not their ownership shares.  Exclusion affirmed.  Expert testified he had never seen controlling agreement, and so his testimony deriving ownership shares from capital contributions lacked necessary foundation.  Expert was permitted to testify to amount of parties' capital contributions, from which ownership shares were ultimately derived.  No abuse of discretion.

Rio Grande City Consol. Indep. Sch. Dist. v. Stephens, Inc., No. 04-03-00292-CV (Tex. App. San Antonio Apr. 14, 2004, no pet. h.) (not designated for publication).  School district sues financial institutions for failing to secure best possible interest rates for bonds issued by district to finance construction of new high school.  At trial, school district offers expert testimony from Clifton Iverson, Jr., on liability and damages.  Trial court excludes testimony and awards directed verdict to defendants.  Exclusion affirmed.  Expert offered no explanation for his decision to adjust Bloomberg Index by 25 basis points, and not by some other amount, before comparing bond rates from Bloomberg Index with school district's rate. 

Taylor v. American Fabritech, Inc., 132 S.W.3d 613 (Tex. App. Houston [14th Dist.] Mar. 23, 2004, pet. denied).  Worker at construction site falls through skylight, sustains injuries, and sues multiple defendants.  Trial court denies defendants' motion to exclude testimony from four experts for plaintiff: (1) Stephen Estrin, engineer and builder, on construction safety issues and OSHA requirements; (2) Dr. Thomas Mayor, economist, on lost earnings and costs of plaintiff's future medical care; (3) Dr. Terry Winkler, physician, on "Life Care Plan" prepared for plaintiff; and (4) Dr. William Havins, psychologist, on plaintiff's nervous system injuries and expected levels of function.  Jury awards damages and defendants appeal.  Admissibility affirmed.  Because these experts were not testifying on scientific subjects, trial court was not required to measure their opinions against standards for scientific testimony set forth in Robinson.  Trial court did not abuse its discretion in admitting this testimony under Gammill.  Each expert was qualified and set forth principles and materials on which he relied.

Pugh v. Conn's Appliances, Inc., No. 09-02-514 CV (Tex. App. Beaumont Mar. 18, 2004, pet. denied) (not designated for publication).  Plaintiffs' apartment is destroyed by fire.  Plaintiffs blame air conditioning unit and sue its manufacturer and seller.  At trial, defendants offer testimony from fire expert Hank Bardenhagen, who opines that fire did not originate with air conditioning unit.  Jury finds for defendants and plaintiffs appeal.  Admissibility affirmed.  Plaintiffs argue on appeal that expert's testimony was unreliable, but made no such objection at trial, where they contested only his qualifications.  District court did not err in finding him qualified.  Defendants say expert has no engineering or electrical training, but he has associate's degree in fire service technology, worked as firefighter, is certified as fire investigator, has lectured on fire investigation, and has investigated thousands of fires.

Clark v. Memorial Hermann Hosp. Sys., No. 01-02-01139-CV (Tex. App. Houston [1st Dist.] Mar. 11, 2004, no pet. h.) (not designated for publication).   Patient suffers complications after mitral valve replacement surgery for congestive heart failure, and dies following second surgery.  Patient's decedent brings medical malpractice action, relying on expert testimony from Dr. James Bass, Jr., thoracic surgeon, and Dr. Jean-Bernard Durand, cardiologist.  Trial court finds both experts unqualified and awards summary judgment to defendants.  Exclusions affirmed.  Trial court properly reviewed experts' qualifications under Tex. R. Evid. 702 and former section 14.02(a-c) of Texas Medical Liability Act (repealed 2003).  Trial court did not abuse discretion in holding them unqualified to opine on conduct of surgery, because Dr. Bass had previously surrendered surgical privileges for lack of sufficient experience with cardiac surgery, and Dr. Durand was not surgeon and admitted he lacked expertise to opine on surgery.  Both physicians also failed to demonstrate expertise sufficient to support reliable opinions on pharmacological issues or timeliness of surgery.

Goodyear Tire & Rubber Co. v. Rios, 143 S.W.3d 107 (Tex. App. San Antonio 2004, pet. pending).  Tire fails when tread and outer belt separate from inner belt.  Truck rolls over.  Passenger is ejected and dies.  Passenger's surviving family members sue Goodyear.  To show that manufacturing defect caused tire failure, plaintiffs rely on expert testimony from Robert Ochs and John Crate.  Trial court permits testimony over Goodyear's objections and jury awards damages.  Defendants appeal.  Admissibility reversed.  Ochs was qualified but offered no evidence that other industry experts employ same methods.  Crate was unqualified.  Despite his degrees in chemistry and engineering, he lacked training or experience with tires.  Trial court did not abuse discretion in excluding testimony under Gammill.

In re R.O.C. Pretrial, 131 S.W.3d 129 (Tex. App. San Antonio 2004, no pet. h.).  Trial court excludes testimony from asbestos plaintiffs' causation experts and awards summary judgment to defendants.  Exclusion affirmed.  Plaintiffs' experts assumed exposure and causation based solely on workers' claims of exposure, and did not independently diagnose disease.  Nor did experts attempt to rule out other causes.  No abuse of discretion.

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