Qualifications, Presentation and Challenges to Expert Testimony - Daubert (i.e. is a DFPS caseworker an expert) 1. Introduction Theodore B. Jereb Attorney at Law P.L.L.C. 16506 FM 529, Suite 115 Houston, Texas 77095 Tel: (832) 721-4110 Fax: (832) 553-3263 Email: jereblawfirm@gmail.com The Texas Rules of Evidence provide that a person qualified as an expert by knowledge, skill, experience, training, or education may provide testimony in the form of an opinion if the trier of fact will be assisted in understanding the evidence or determining a fact in issue. Tex. R. Ev. 702. Generally, expert testimony must meet two requirements. First, the expert must be qualified in the field of the subject matter in issue, and second, the testimony must be relevant and based on a reliable foundation. If these requirements are met, the expert may offer an opinion on a mixed question of law and fact, i.e. an ultimate issue to be decided by the trier of fact. Tex. R. Ev. 704. Certain types of cases require expert witness testimony to survive a motion for an instructed verdict and to submit the case to the trier of fact. For example, a claimant alleging malpractice against a physician, attorney, engineer or other professional needs an expert qualified in that field to establish the applicable standard of care. Some cases require expert testimony to establish causation between the claimed damages and the incident or transaction made the basis of the suit, when the connection is not plainly within the knowledge of laypersons. In other cases expert testimony is not necessary, but can assist the trier of fact, such as a reconstruction expert in an auto collision case or a valuation expert in a lost business opportunity case. 2. Discovery of Expert Witnesses Under the Texas Rules of Civil Procedure, parties may discover information concerning the opposing party s testifying expert witnesses only through a request for disclosure under T.R.C.P. 194 and through depositions and reports under T.R.C.P. 195. Information regarding a non-testifying consulting expert whose mental impressions or opinions have been reviewed by a testifying expert is also discoverable through Rules 194 and 195. However, information about a pure consulting expert, whose work product is for the benefit of an attorney and not any testifying expert, is not discoverable. A Rule 194 request for disclosure is used to obtain the identity of an opposing party s testifying expert witnesses, the subject matter of the expert s testimony, and the mental impressions and opinions of the expert. A Rule 194 request for disclosure can also be used to discover other vital information to prepare for trial in a CPS termination
case, such as 1) the legal theories, and in general, the factual bases, for the Texas Department of Family and Protective Services ( TDFPS ) s claims, 2) the identity of any potential party, 3) the identity of TDFPS fact witnesses, and 4) the existence of any witness statements. A party responding to request for disclosure for information regarding expert witnesses is not permitted to object to the request or assert the attorney work product privilege provided by Rule 192.5. T.R.C.P. 194.5. Rule 194.2 requires the responding party to furnish, upon request, the following items if the expert is retained by, employed by, or otherwise subject to the control of the responding party: A. 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 B. the expert s current resume and bibliography. If the expert is not retained by, employed by, or otherwise subject to the control of the responding party, the responding party must provide documents reflecting the general substance of the expert s mental impressions and opinions and a brief summary of the basis for the mental impressions and opinions. T.R.C.P. 194.2. A Rule 194 request for disclosure must be timely served within the discovery period provided by the applicable Discovery Control Plan. Discovery in a case filed under the Texas Family Code is governed by a Level 2 Discovery Control Plan. Under a Level 2 Discovery Control Plan, all discovery must be conducted during the discovery period, which begins when suit is filed and continues until thirty (30) days before the trial date for cases filed under the Texas Family Code. T.R.C.P. 190.3(b)(1)(a). Practice tip An attorney appointed to represent a parent in a CPS termination case should prepare and serve a Rule 194 request for disclosure on the Harris County Attorney s Office along with the parent s original answer. Because e-filing is now mandated for Harris County civil cases, counsel for a respondent parent must e-file the original answer and a certificate of written discovery with the Harris County District Clerk. The Rule 194 request for disclosure, and any other written discovery requests (such as a requests for production, interrogatories and/or requests for admission), should be served on all counsel of record with the certificate of written discovery pursuant to Texas Rule of Civil Procedure 21a. Preparing and serving discovery requests at an early stage in the case will avoid any objection by TDFPS counsel to discovery of expert witnesses and their opinions/ reports based on an untimely request. Prudent counsel should also 1) download and print a copy of the certificate of written discovery with confirmation of acceptance by the 2
District Clerk and 2) retain proof of service, pursuant to T.R.C.P. 21 and 21a, to prove the method and date of service on TDFPS counsel. Attachment 1 is a form Request for Disclosure that may be used in a CPS termination case. Attachment 2 is a form Request for Production to obtain the TDFPS case file and a respondent parent s various evaluations/assessments, which are generally performed as part of the parent s family plan of service. The attorney representing the parent may modify the form Request for Production to obtain other relevant, nonprivileged documents as needed for that particular case. Attachment 3 is a form Certificate of Written Discovery for e-filing with the Harris County District Clerk. 3. Admissibility of Expert Witness Testimony Texas Rule of Evidence 702 (formerly Texas Rule of Civil Evidence 702) was adopted in 1983 and governs the admission of expert testimony as follows: 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. After Rule 702 was adopted, the Texas court of appeal decisions conflicted regarding the appropriate standard of admissibility of scientific expert testimony. The Texas Supreme Court addressed the issue and resolved the conflict in E.I. du Pont de Nemours and Company, Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995). Robinson involved a property damage claim resulting from an allegedly defective fungicide product. The plaintiffs offered testimony from a degreed horticulturist, but following a pretrial hearing, the trial court excluded the testimony on the basis that it was not grounded on valid scientific methods and was, therefore, not reliable. On appeal, the Court of Appeals reversed and remanded for a new trial, holding that once the proponent establishes an expert s qualifications, the weight to be given the testimony and the credibility of the witness is to be determined by the trier of fact. Robinson v. E.I. du Pont de Nemours and Company, Inc., 888 S.W.2d 490, 492 (Tex. App.-Fort Worth 199, writ granted). Du Pont appealed the ruling and urged the Texas Supreme Court to adopt a reliability standard similar to the standards applicable to Rules 702 of the Federal Rules of Evidence and the Texas Rules of Criminal Evidence, which were identical in wording to Texas Rule of Civil Evidence 702. Robinson, 923 S.W.2d at 556. The United States Supreme Court decided this issue in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-90 (1993) and held that Federal Rule of Evidence 702 required scientific expert testimony to be reliable and relevant in order to be admissible. It was the responsibility of the trial court, when scientific expert testimony was proffered, to determine as a preliminary matter whether the expert was proposing to testify to 1) scientific knowledge that 2) will assist the trier of fact to 3
understand or determine a fact in issue. Under the Daubert holding, the trial court must first assess whether the reasoning or methodology underlying the proffered testimony is scientifically valid, i.e. reliable, and whether the reasoning or methodology can be properly applied to the facts in issue, i.e. relevant. Daubert, 509 U.S. at 592-3. In Robinson the Texas Supreme Court was persuaded by the reasoning in Daubert and held that in addition to showing that an expert witness is qualified, Rule 702 requires the expert s testimony to be relevant to the issues of the case and be based on a reliable foundation. Robinson, 923 S.W.2d at 556. The Court outlined the following, nonexclusive factors that the trial court could consider in making the threshold determination of admissibility: 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 (such as research conducted outside of the legal forum). After a finding that the proffered scientific expert testimony is both relevant and reliable, the trial court must also determine whether to exclude such testimony under Texas Rule of Evidence 403. Robinson, 923 S.W.2d at 557 (citing Daubert, 569 U.S. at 595-6). Rule 403 provides that: 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. Upon a timely challenge to the proffer of expert testimony the trial court is, therefore, the gatekeeper and must determine, at a pretrial hearing, whether such testimony is admissible at trial. The party proffering the expert testimony bears the burden of proof and must convince the trial judge that: 1. the expert is qualified in the field in question; 4
2. the expert s testimony must be sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute, Robinson, 923 S.W.2d at 556, and therefore, relevant; 3. the expert s testimony must be based on scientific knowledge, and therefore, reliable; and 4. if an objection is asserted under Texas Rule of Evidence 403, the expert s testimony outweighs 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. 4. Challenges to Expert Witness Testimony A typical TDFPS response to a Rule 194 request for disclosure in a termination case will name, among other persons, every case worker involved in the case, their supervisor and program director, as expert witnesses for trial. The response usually names anyone from the investigative unit, the conservatorship unit, and even the Family Based Services unit, who has a connection to the case, as an expert for trial. The danger of not challenging the designation of these individuals as experts is the extremely prejudicial impact on the jury, in part because of the way the jury perceives a witness labeled as an expert. Robinson, 923 S.W.2d at 553. A witness found qualified as an expert by the trial court arguably has more credibility than a lay witness, and his or her opinions may be given greater weight simply because of the label of an expert witness. Every caseworker must have a four-year college degree to be hired. TDFPS prefers, but does not require, that the major field study be in social work or human studies. However, even a four-year degree in social work or psychology, for instance, should not qualify the case worker as an expert witness without further education, training and experience. In response to a Rule 194 request for disclosure concerning the proposed subject matter on which TDFPS expert witnesses may offer testimony, the following response is generally given: The best interests of the child subject of this suit; the facts, history and background of the case; the behaviors and needs of the child; Respondent s involvement with the child, services offered to Respondent. Arguably, most of the areas listed above do not need expert testimony to assist the trier of fact to understand the evidence or to determine a fact in issue, and a case worker would be allowed to testify without being qualified as an expert. These areas are 1) the best interests of the child, 2) the facts, history and background of the case, 3) Respondent s involvement with the child, and 4) the services offered to Respondent. 5
In CPS termination cases where the Court has appointed a guardian ad litem, the guardian ad litem is authorized to make recommendations concerning the best interests of the child without regard to any qualification as an expert witness. Tex. Fam. Code 107.002(e). In contrast, certain subject matter would require testimony from a qualified expert, such as: 1. Diagnosis, prognosis and treatment of a child s medical, psychological or psychiatric condition; 2. Psychological or psychiatric evaluation of a parent and recommendations for therapy or other services; 3. Substance abuse assessment of a parent and recommendations for treatment or other services; 4. A parent s progress with therapy and need for further therapy; and 5. Diagnosis, prognosis and treatment of a parent s emotional or physical disabilities (which could impact parenting ability). In order to properly prepare for a termination trial, counsel must review TDFPS response to a Rule 194 request for disclosure and evaluate the qualifications of each person designated as an expert witness. For any therapist, counselor, psychologist, and physician who is expected to testify about any of the five areas listed immediately above, counsel must have filed the appropriate discovery request for, and/or subpoena, the documents which form the basis of the expert s mental impressions and opinions. For any case worker or other ostensibly unqualified person designated as an expert for TDFPS, counsel should zealously represent a parent respondent by challenging such designation and place the burden of proof regarding the case worker or other person s qualifications on TDFPS and its counsel at a pretrial hearing. Practice tip In order to challenge TDFPS designation of a case worker (or any other unqualified person) as an expert witness, counsel for a parent must file a written objection to the designation of expert witnesses and set the matter for hearing. Attachment 4 is a form objection that may be used to provide written notice of the parent s objection to the designation of the case worker or other person as an expert. Attachment 4 also contains an order setting hearing, which is used to notify all counsel of the time and date of the pretrial hearing on the objection. To set the hearing, counsel should consult the court coordinator (or other person authorized to set hearings) and ensure the hearing date selected provides at least three days notice to all counsel, excluding the date of filing/service, pursuant to T.R.C.P 21. 6
After the hearing date is selected and the order setting hearing is completed by counsel as to the time and date, counsel must request that the trial court judge sign the order. It is highly recommended for the parent s counsel to confirm that the written objection to designation of expert witnesses with the signed order setting hearing is e-filed and accepted by the District Clerk. A copy of the notice of objection, with signed order setting hearing, must be served on the Harris County Attorney s Office, representing TDFPS, and all other counsel pursuant to T.R.C.P. 21a. The parent s counsel should also 1) download and print the written objection to the designation of expert witnesses with confirmation of acceptance by the District Clerk and 2) retain proof of service to prove the method and date of service on TDFPS counsel. 7
ATTACHMENT 1 No. IN THE INTEREST OF IN THE DISTRICT COURT HARRIS COUNTY, TEXAS CHILD(REN) TH JUDICIAL DISTRICT RESPONDENT S REQUEST FOR DISCLOSURE TO PETITIONER TO: TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Petitioner, by and through its attorneys of record, Vince Ryan, Harris Country Attorney, and, Assistant Harris County Attorney, 1019 Congress Ave., 15 th Floor, Houston, Texas 77002 Pursuant to T.R.C.P. 194.2, Respondent requests that Petitioner disclose, within thirty (30) days after service of this request, the following information and material: 194.2(a) 194.2(b) 194.2(c) 194.2(e) 194.2(f) The correct names of the parties to this lawsuit. The name, address, and telephone number of any potential parties. The legal theories and, in general, the factual bases of the responding party s claims or defenses (the responding party need not marshall all evidence that may be offered at trial). The name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person s connection with the case. For any testifying expert: (1) the expert s name, address, and telephone number; (2) the subject matter on which the expert will testify; (3) the general substance of the expert s mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by, employed by, or other wise subject to the control of the responding party, documents reflecting such information; 8
(4) if the expert is retained by, employed by, or other wise subject to the control of the responding party: (A) (B) all documents, tangible things, reports, models, or data compilations that have 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. 194.2(h) 194.2(i) Any and all settlement agreements as described in T.R.C.P. 192.3(g). Any and all statements of persons with knowledge of relevant facts as described in T.R.C.P. 192.3(h). Respectfully submitted, CERTIFICATE OF SERVICE By: YOUR NAME SBN: Tel: Fax: Email: ATTORNEY FOR RESPONDENT I certify that a true and correct copy of the foregoing Request for Disclosure was served on all counsel of record pursuant to the Texas Rules of Civil Procedure on. YOUR NAME 9
ATTACHMENT 2 No. IN THE INTEREST OF IN THE DISTRICT COURT HARRIS COUNTY, TEXAS CHILD(REN) TH JUDICIAL DISTRICT RESPONDENT S REQUEST FOR PRODUCTION TO PETITIONER TO: TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Petitioner, by and through its attorneys of record, Vince Ryan, Harris Country Attorney, and, Assistant Harris County Attorney, 1019 Congress Ave., 15 th Floor, Houston, Texas 77002 Pursuant to Texas Rules of Civil Procedure 192 and 196, Respondent serves the following Request for Production upon Petitioner TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, whose Response is due within thirty (30) days after the date of service on Petitioner. Respondent requests that Petitioner produce the requested documents and tangible items in the office of the undersigned counsel within the above stated time period. Respectfully submitted, By: YOUR NAME SBN: Tel: Fax: Email: ATTORNEY FOR RESPONDENT 10
CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing Request for Production was served on all counsel of record pursuant to the Texas Rules of Civil Procedure on. YOUR NAME RESPONDENT S REQUEST FOR PRODUCTION TO PETITIONER Request for Production no. 1 A complete and unaltered copy of Petitioner s case file for this matter. RESPONSE: Request for Production no. 2 Complete and legible copies of Petitioner s trial exhibits. RESPONSE: Request for Production no. 3 A complete and unaltered copy of Respondent s drug and alcohol assessment. RESPONSE: Request for Production no. 4 A complete and unaltered copy of Respondent s psychological evaluation. RESPONSE: Request for Production no. 5 A complete and unaltered copy of Respondent s psychiatric evaluation. RESPONSE: 11
ATTACHMENT 3 No. IN THE INTEREST OF IN THE DISTRICT COURT HARRIS COUNTY, TEXAS CHILD(REN) TH JUDICIAL DISTRICT RESPONDENT S CERTIFICATE OF WRITTEN DISCOVERY TO THIS HONORABLE COURT:, Respondent in the above-entitled cause, files this Certificate of Written Discovery and certifies that the following discovery requests were served on TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Petitioner, by and through its attorneys of record, Vince Ryan, Harris Country Attorney, and, Assistant Harris County Attorney, 1019 Congress Ave., 15 th Floor, Houston, Texas 77002 by email/certified mail, return receipt requested/facsimile telecopier/hand delivery on : 1. Respondent s Request for Disclosure to Petitioner; and 2. Respondent s Request for Production to Petitioner. Respectfully submitted, By: YOUR NAME SBN: Tel: Fax: Email: ATTORNEY FOR RESPONDENT 12
CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing Certificate of Written discovery was served on all counsel of record pursuant to the Texas Rules of Civil Procedure on. YOUR NAME 13
ATTACHMENT 4 No. IN THE INTEREST OF IN THE DISTRICT COURT HARRIS COUNTY, TEXAS CHILD(REN) TH JUDICIAL DISTRICT RESPONDENT S NOTICE OF OBJECTION TO INTRODUCTION OF TESTIMONY AS PROVIDED UNDER DAUBERT, ROBINSON AND NENNO AND REQUEST FOR GATEKEEPER HEARING TO THIS HONORABLE COURT: 1. Respondent files this Notice of Objection to Introduction of Testimony, based on the lack of relevance and reliability as provided by Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993), E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex 1995), and Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998). Respondent further requests an oral hearing on the admissibility of testimony, whether live, by deposition or through written report, by the following persons designated as expert witnesses by Petitioner: 1. 2. 3. 4. 5. 6. 7. 8. 14
2. Respondent asserts that any evidence to be offered by Petitioner and any other party, including Intervenors, Attorney ad Litem, Guardian ad Litem, by the witnesses listed above is not grounded upon careful scientific methods and procedures, nor does such evidence demonstrate a careful scientific investigation upon which reliable conclusions could be based. Respondent further asserts that the conclusions and recommendations made by the witnesses listed above are not based on scientifically valid reasoning and methodology, nor does such evidence show that the witnesses have any reliable basis for their opinions which are grounded in knowledge and experience of their discipline. Respondent further asserts that the testimony of the persons listed above is not based on theories and techniques that have been properly subjected to peer review. Additionally, Respondent asserts that the witnesses listed above have failed to show that their methodology would have received any degree of acceptance within the relevant scientific community. 3. As provided by Daubert, Robinson, and Nenno, Respondent requests that an oral gatekeeper hearing be conducted by this Court, at which the burden of proof falls on Petitioner, and any other party, including Intervenors, Attorney ad Litem, Guardian ad Litem, to prove the relevance and reliability of such evidence. Based on the following factors: a. the extent to which the theory forming the basis of the opinion held by the witness has been tested; b. the extent to which the technique used by the witness in forming his or her opinion relies upon the subjective interpretation of the witness; c. whether the theory has been subjected to peer review and/or been published; d. the technique s potential rate of error; 15
e. whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and f. the non-judicial uses which have been made of the theory or technique. See Robinson, 923 S.W.2d at 557. The Nenno case requires the following test for relevance of the testimony: a. whether the field of expertise is a legitimate one; b. whether the subject matter of the witness testimony is within the scope of that field; and c. whether the witness testimony properly relies upon and/or utilizes the principles in that field. See Nenno, 970 S.W.2d at 560. Respondent requests that this Court rule on this matter prior to trial in order that the parties have a reasonable opportunity to develop litigation strategy and trial tactics. WHEREFORE, Respondent prays that this Court sustain the foregoing Objection to Introduction of Testimony, and for all other relief to which Respondent may be entitled. Respondent prays for general relief. Respectfully submitted, By: YOUR NAME SBN: Tel: Fax: Email: ATTORNEY FOR RESPONDENT 16
ORDER SETTING HEARING It is hereby ORDERED that an oral hearing on Respondent s Notice of Objection to Introduction of Testimony is set for, 20 at :00.m. before the Presiding Judge of the th District Court of Harris County, Texas. JUDGE PRESIDING CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing Notice of Objection to Introduction of Testimony and Request for Gatekeeper Hearing was served on all counsel of record pursuant to the Texas Rules of Civil Procedure on. YOUR NAME 17