Attacking and Precluding Expert Opinions
by Chris Littell
When attacking an expert opinion, the seminal case, Daubert v. Merrell Dow Pharmaceuticals, Inc., provides the foundation for any Court’s review. 509 U.S. 579 (1993). Daubert sets out the following factors when reviewing an expert opinion: (1) the extent to which a theory has been/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; and (4) the technique’s potential rate of error.
In Texas, E.I. du Pont de Nemours Company v. Robinson expands on Daubert for use in state court. 923 S.W.2d 549 (Tex. 1995). Robinson added two additional factors to the review: (1) whether the underlying theory/technique has been generally accepted as valid by the relevant scientific community; and (2) the non judicial uses which have been made of the theory or technique. These six factors are meant to capture Texas Rules of Evidence 401, 402, and 702. Courts are looking to decide whether the expert is qualified, the opinions are reliable, and the testimony is relevant.
However, even these six factors are not always able to adequately address the specific types of experts, techniques, and opinions that may sometimes appear. Since Robinson, the Texas Supreme Court has tweaked and clarified various other situations when reviewing expert witnesses. For example, in Broders v. Heise, it was held that not all doctors are qualified to present testimony regarding any medical question. 924 S.W.2d 148 (Tex. 1996). Instead, the expert should have “knowledge, skill, experience, training or education” on the particular subject before the court. Id.
In Merrell Dow Pharmaceuticals v. Havner, the Court addressed whether after a jury verdict, a court could review an expert witness’s evidence to determine whether it was scientifically reliable. 953 S.W.2d 706 (Tex. 1997). Applying a no-evidence standard to the review, the Court found that trial courts do not have to accept expert opinions as true, but should instead independently evaluate the reliability of the opinion itself. In deference to the lack of scientific training for a typical judge, the Court stated that “law lags science, it does not lead it.” The scientific foundation of the expert witness should be found reliable in the scientific community before a court relies upon such opinions and allows them to be presented to a jury.
In Gharda USA, Inc. v. Control Solutions, Inc., the Texas Supreme Court reviewed expert opinions that it was “possible” or “probable” that certain chemical percentages existed in the drums in question, causing the explosion. 464 S.W.3d 338 (Tex. 2015). However, the Court held that the expert opinions must be based on reasonable probability, not possibilities or what “could” have happened. An expert’s opinion must be based on data and reviewable techniques, not just because the expert says so, regardless of the expert’s experience and qualifications.
In Starwood Mgmt., LLC v. Swaim, the Texas Supreme Court reviewed the adequacy of an expert’s summary judgment affidavit in the context of a legal malpractice claim. The Court held that the relevant question when addressing the adequacy of expert opinion affidavits is “Why”: Why did the expert reach that particular opinion? Is the conclusion because the expert’s ipse dixit, or does the expert show their work to bridge any gaps between the underlying data and the expert’s conclusion? Just like in high school math, it is important to make sure your own expert shows their work. If an independent person can follow along and recreate the steps taken by the expert, a Court is unlikely to strike or limit the expert’s testimony.
From a practical standpoint, when an opposing party discloses their expert report to you, what comes next? As you remember, the three general areas of review for experts are their qualifications, reliability, and relevance. An expert will likely have included a copy of their CV or resume with the report, but you do not have to stop there. Companies like Westlaw and Lexis will have expert witness profile services that can get you background on previous challenges to most experts, but they come at a cost. Cheaper options include Google or even just speaking to other lawyers in your firm or industry that may have worked with or against the expert before. However, because deficiencies in the qualifications of an expert tend to be obvious, most parties will not put forward an expert without significant education or experience. This tends to be the avenue least likely to succeed in striking an expert.
Next, you will want to review the reliability of the expert. Did the expert have sufficient data? Conduct testing? Using what methodology? Are those test and methods repeatable and considered reliable in that field of expertise? Look for gaps in the expert’s report where assumptions are made and see if the expert provides justification for making those assumptions. Even the most qualified expert cannot testify based on the “because I said so” approach. “[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).
Finally, we look at the relevance of the expert’s testimony to the case. Here, we apply Rules of Evidence 401 and 402. The relevancy requirement of Robinson incorporates the traditional relevancy analysis of Texas Rules of Evidence 401 and 402 and “is met if the expert testimony is ‘sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.’” Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex. 2002). “Evidence that has no relationship to any of the issues in the case is irrelevant and does not satisfy Rule 702’s requirement that the testimony be of assistance to the jury.” Robinson, 923 S.W.2d at 556. Compare the expert’s opinions with the proposed jury charge. If the expert’s opinion, or parts thereof, are unrelated to any of the ultimate factual questions of the case, a relevance challenge can succeed.
As a reminder, when dealing with experts (including your own) it is always best to start the process early. Experts will need time to collect their data, review the documents you will provide and draft their reports. As attorneys we tend to be creatures of deadlines, but remember that this is a third party. You will not be able to stay up late to draft the report yourself, so make sure your expert is chosen and supplied with the information far enough in advance for their own schedules.
However, if you do find yourself on the wrong side of a disclosure deadline, take a deep breath. In Federal Court, the Fifth Circuit has “repeatedly emphasized that a continuance is the preferred means of dealing with a party’s attempt to designate a witness out of time.” Campbell v. Keystone Aerial Surveys, 138 F.3d 996, 1001 (5th Cir. 1998). Texas Rule of Civil Procedure 193.6 prohibits a party from offering evidence not timely disclosed in a discovery response “unless the court finds that: (1) there was good cause for the failure to timely make, amend, or supplement the discovery response; or (2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties. Some Texas courts have concluded that a party cannot claim prejudice if they decline an offer of continuance and/or an opportunity to depose the expert. See In re Kings Ridge Homeowners Ass’n, 303 S.W.3d 773, 783 (Tex. App.—Fort Worth 2009). If you find yourself late, talk to the other side, offer to make accommodations for whatever deposition or document review they need to fix the issue. Courts prefer continuances and discovery to striking an expert based purely on timing.
Chris Littell is an associate at Cowles & Thompson, PC. He maintains a general civil and commercial litigation practice in a variety of complex matters.
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