Eight Gates for Expert Witnesses: Fifteen years later

Transcription

1 Eight Gates for Expert Witnesses: Fifteen years later

2 Predicative Reliability Courts are to rigorously examine the validity of facts and assumptions on which [expert] testimony is based.... Whirlpool Corp v. Camacho If the foundational data underlying opinion testimony are unreliable, an expert will not be permitted to base an opinion on that data because any opinion drawn from data that is likewise unreliable. Merrell Dow Pharmaceuticals v. Havner

3 Factual Predicates If you fail to put forth any evidence supporting your side s version of the facts or If the other side disproves those facts

4 Factual Predicates... then your expert s testimony is unreliable AND will be no evidence if the facts are material to analysis.

5 Houston Unlimited Inc. v. Mel Acres Factual predicative reliability does not mean that an expert s assumption must be uncontested or established as a matter of law. If the evidence conflicts, it is the province of the jury to determine which evidence to credit. It is not necessary to prove up every inconsequential assumption relied on by an expert

6 Houston Unlimited When the facts support several possible conclusions, only some of which support the expert s conclusions, the expert must explain to the fact finder why those conclusions are superior based on verifiable evidence, not simply the expert s opinion.

7 Bostic v. Georgia Pacific How does Havner apply in multidefendant in asbestos cases? Will the same rule apply to all multidefendant toxic tort cases where causation is related to dosage?

8 Bostic Defendant-specific proof of but-for causation is not required PJC 2.4 Proximate cause means a cause that was a substantial factor in bringing about an event, and without which cause such event would not have occurred.... [plus foreseeability] There can be more than one proximate cause. PJC 70.1: Producing cause means a cause that was a substantial factor in bringing about an event, and without which cause such event would not have occurred. There can be more than one producing cause.

9 Bostic What does substantial-factor causation require? Does not require mathematical precision But does require defendant-specific dose evidence Must show exposure to this defendant s product more than doubled risk (Havner) Epidemiological studies must demonstrate a doubling of risk at doses relatable to defendantspecific evidence

10 Connective Reliability Whirlpool Corp v. Camacho: Courts are to rigorously examine... the manner in which the principles and methodologies are applied by the expert to reach the conclusions.

11 Connective Reliability Requires Experts To Show Their Work

12 Connective reliability Elizondo v. Krist (Tex. 2013) Attorney s opinion on settlement values based on experience Also based on 10 factors such as type of injury and lawyer s experience The attorney merely stated that he considered these factors

13 Methodological Reliability Whirlpool Corp v. Camacho: Courts are to rigorously examine... the principles, research, and methodology underlying the expert s conclusions

14 Daubert/Robinson Factors + Causation Requirement Daubert/Robinson factors = starting point Testing particularly impt in products But see Control Solutions v. Gharda (1st Dist. 2012, pet. granted) (OA Dec. 10)

15 Daubert/Robinson Factors + Causation Requirement Exclusion of other plausible causes is required Failure to do so may make it conclusory. See Houston Unlimited But an expert is not required... to categorically exclude each and every possible alternative cause in order to render the proffered testimony admissible. Custom Transit, L.P. v. Flatrolled Steel, Inc., (14th Dist. 2012)

16 Procedural Issue What needs to be in the record? Atterbury; Schronk v. Laerdal Medical Corp. (Waco 2013) No evidence if study not introduced But see BNSF Railway Co. v. Phillips (Ft Worth 2014); Pink v. Goodyear (Beaumont 2010)

17 Legal Sufficiency Issues for Expert Testimony: A Journey to Expanded Appellate Challenges

18 Havner (1997) An expert s bare opinion does not constitute evidence; to determine whether it qualifies as evidence [t]he substance of the testimony must be considered. An expert s bald assurance of validity is not enough. The underlying data should be independently evaluated in determining if the opinion itself is reliable. An appellate court looks at the testimony in its entirety, because to accept the expert s opinion as some evidence simply because he used the magic words would effectively remove the jurisdiction of the appellate courts to determine the legal sufficiency of the evidence in any case requiring expert testimony.

19 Maritime Overseas (1998) 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.

20 Coastal Transport (2004) No preverdict objection is necessary when the expert evidence is conclusory or speculative and therefore non-probative on its face. Challenges to the reliability of an expert s methodology, technique, or foundational data require courts to look beyond the face of the record, and therefore require an objection; but challenges based on the conclusory or speculative nature of expert testimony do not require courts to go beyond the face of the record, and therefore do not require an objection

21 Post-Coastal The Court has defined conclusory and speculative to incorporate a broad array of reliability challenges, and as a result, the Coastal Transport exception to Maritime s objection requirement has nearly swallowed the rule. Thus, in Texas, appellate challenges to expert evidence are routinely raised and decided under a legal-sufficiency rubric, not the admissibility rubric. Eight Gates for Expert Witnesses: Fifteen Year Later, 52 U.H. L. Rev. 1, (2014)

22 First Expansion: Ipse Dixit Testimony Is Conclusory Burrow v. Arce (1999) it is the basis of the witness s opinion that can settle an issue as a matter of law; a claim will not stand or fall on the mere ipse dixit of a credentialed witness Affidavit did not explain why three factors supported his opinion; it was therefore conclusory. An expert cannot simply say, Take my word for it.... Therefore, expert opinion is no evidence if no basis for opinion is offered.

23 Second Expansion: Analytical Gap Test Kerr-McGee v. Helton (2004) and Volkwagen v. Ramirez (2004) Experts reasoning included analytical gaps and therefore were speculative or conclusory San Antonio v. Pollock (2009) Fatal analytical gap for first expert made opinion conclusory Large analytical gap for second expert made opinion conclusory Elizondo v. Krist (2013) Attorney s failure to connect facts to conclusion left fatal analytical gap and made opinion conclusory

24 Third Expansion: The Robinson Factors Cooper Tire v. Mendez (2006) and Mack Trucks, Inc. v. Tamez (2006) Utilized Robinson factors opinion speculative Whirlpool v. Camacho (2009) Applied Robinson factors opinion conclusory Caution: No error preservation issues in cases

25 Fourth Expansion: Nonprobative Predicates City of San Antonio v. Pollock (2009) Defined conclusory expert evidence to include not only when no basis for the opinion is offered but also when the basis offered provides no support for the opinion If no basis for [an expert] opinion is offered, or the basis offered provides no support, the opinion is merely a conclusory statement Houston Unltd. Inc. Metal Processing v. Mel Acres Ranch (2014) Rationale: [T]he evidentiary value of expert testimony is derived from its basis, not from the mere fact that the expert has said it.

26 Fifth Expansion: Predicates without Evidentiary Support City of Keller v. Wilson When an expert s opinion is based on certain [factual] assumptions, other evidence may demonstrate that those assumptions were unfounded, making the opinion unreliable. Thus, an appellate court conducting a noevidence review must consider contrary evidence showing expert opinion has no evidentiary basis.

27 Reconciliation with Coastal Transport Challenges to the reliability of an expert s methodology, technique, or foundational data require courts to look beyond the face of the record, and therefore require an objection; but challenges based on the conclusory or speculative nature of expert testimony do not require courts to go beyond the face of the record, and therefore do not require an objection

28 When is expert testimony conclusory? (1) the expert fails to provide any explanation or predicate for her opinion, (2) the explanation the expert provides for her opinion suffers from too great an analytical gap,

29 When is expert testimony conclusory? (3) the explanation is predicated on facts, data, or assumptions that do not actually support the expert s explanation or that are not supported by the evidence, (4) the expert s explanation is at such a general level that it offers no meaningful information to the jury to enable it to review the reliability of the opinion,

30 When is expert testimony conclusory? (5) in the context of causation opinions, the expert fails to rule out other plausible causes or explain why the theory of causation adopted by the expert is superior to other plausible theories of causation. Eight Gates for Expert Witnesses: Fifteen Year Later, 52 U.H. L. Rev. at 67-68

31 When is expert testimony conclusory? [T]he law requires experts to substantiate their opinions, and for good reasons. Experts who testify on behalf of parties to a lawsuit are subject to biases and potential abuses that are not always present outside the courtroom, and the courtroom itself may afford experts a veneer of credibility not present in other contexts. Legal sufficiency review requires courts to ensure that a jury that relies on an expert s opinion has heard factual evidence that demonstrates that the opinion is not conclusory on its face. Here, [the expert s] reliance on insufficient data and unsupported assumptions and the analytical gaps in her analysis render her opinion conclusory and without evidentiary value. Houston Unlimited

32 Thank you! Hon. Harvey Brown Houston First Court of Appeals Melissa Davis Texas Supreme Court