INTRODUCTION

This paper addresses the admissibility of expert testimony in court. Numerous recent decisions have clarified the rules governing the admissibility of expert testimony. It is the purpose of this paper to review these cases and to outline what the rules are now both in the state courts of Texas and in the federal courts across the United States.

The paper is divided into ten (10) distinct sections.

Section One is the "Introduction," which outlines the purpose of the paper and gives a general overview of each of the other major sections of the paper.

Section Two, entitled "The Pre-Daubert History of the Admissibility of Expert Testimony in Texas" reviews the transformation of the rules regarding the admissibility of expert testimony from one of general acceptance under Frye v. United States, to one of liberal admission under Rule 702, to the factors announced by the Texas Court of Criminal Appeals in Kelly v. State.

Section Three of the paper, entitled "(1993) The U.S. Supreme Court’s Decision - Daubert," discusses the court’s clear rejection of the restrictive Frye "general acceptance" standard in favor of a more liberal standard of "relevance and reliability" under Rule 702 of the Federal Rules of Evidence. This section also discusses the four non-exclusive factors for assessing the reliability of expert testimony in scientific evidence cases, and queries whether these four factors were limited to expert scientific evidence. Finally, there is a brief discussion of the contrast between the actual holding in Daubert in favor of the Plaintiff, and spin to the press and the general public that Daubert was a huge win for the defense bar in its efforts to keep "junk science" out of the courtroom.

Section Four of the paper is entitled "The Post-Daubert Texas Supreme Court cases Regarding Admissibility and Use of Expert Testimony." This section discusses the Texas Supreme Court opinions since Daubert relating to the admissibility and use of expert testimony, including E.I. du Pont de Nemours Company v. Robinson in 1995, Burroughs Wellcome Co. v. Crye in 1995, Broders v. Heise in 1996, S.V. v. R.V. in 1996, United Blood Services v. Longoria in 1997, Merrell Dow Pharmaceuticals, Inc. v. Havner in 1997, Maritime Overseas Corp. v. Ellis in 1998 and Gammill v. Jack Williams Chevrolet, Inc. in 1998.

Section Five of the paper is entitled "U.S. Supreme Court Caselaw Since Daubert," and discusses the high court’s decisions in General Electric Corp. v. Joiner and in Kumho Tire Co., Ltd, et al v. Carmichael.

Section Six of the paper is entitled "Fifth Circuit Caselaw Since Kumho Tire v. Carmichael," and details the interpretations of Daubert handed down by the United States Court of Appeals for the Fifth Circuit since the Kumho Tire decision. These Fifth Circuit decisions include Black v. Food Lion and Tanner v. Westbrook.

Section Seven of the paper is entitled is entitled "Ten (10) Basic Principles to remember About the Admissibility of Expert Testimony." This section of the paper discusses importance concepts outlined in the caselaw which should be remembered by the trial practitioner and discussed with trial courts holding Daubert/Robinson hearings.

Section Eight of the paper is entitled "Recent Texas Cases Regarding The Admissibility of Expert Opinions," and includes recent civil and criminal cases in Texas concerning this topic.

Section Nine includes the authors’ acknowledgements to others providing source materials utilized during the presentation of this paper.

Section Ten is the biographical outline of the author.

II. THE PRE-DAUBERT HISTORY OF EXPERT ADMISSIBILITY IN TEXAS

The essential history of expert admissibility in Texas begins with the 1923 decision of the United States Court of Appeals for the District of Columbia in Frye v. United States establishing the "general acceptance" test for expert admissibility. The promulgation of Rule 702 liberalized this standard and made the admissibility of expert testimony a more flexible inquiry.

A. (1923) - THE "GENERAL ACCEPTANCE" TEST OF FRYE V. UNITED STATES

In Frye, lie detector testimony was rejected because the scientific principles on which it was based were not well recognized in the scientific community. The Court stated:

"Just when a scientific principle or discovery crosses the line between the experimental and demonstrative stages is difficult to define. Somewhere in this twilight zone, the evidential force of the principle must be recognized and where the courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the things from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs."

Id. The Frye court held that "general acceptance" of a scientific theory in the relevant field was a prerequisite to the admissibility of expert scientific evidence.

The "general acceptance" test has also become known as the "preponderance of the numbers" test. It has been explained as follows: "If fifty percent of the scientists in the relevant field agreed that the particular technique or theory was trustworthy, expert testimony based on the theory or technique was admissible."

Frye became the controlling test for determining the admissibility of scientific testimony in the federal courts as well as in at least forty-five states. In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Court noted that "[i]n the 70 years since its formulation in the Frye case, the ‘general acceptance’ test has been the dominant standard for determining the admissibility of novel scientific evidence at trial."

A review of the cases strictly utilizing the Frye standard to reject expert testimony revealed that the application of Frye in products liability cases was largely limited to toxic tort "causation" cases.

B. (1974) RULE 702 OF THE RULES OF EVIDENCE

In 1974, the United States Congress enacted Rule 702 of the Federal Rules of Evidence. Rule 702 provides 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 in the form of an opinion or otherwise."

Fed.R.Evid. 702.

Texas later implemented an identical version of Rule 702 to govern the admissibility of expert testimony in Texas.

1. Frye is Not Incorporated into Rule 702

Nothing in Rule 702 mentioned "general acceptance" as a requirement. Accordingly, Some courts held that the general acceptance had been legislatively overruled, and created other standards for determining the admissibility of "novel" scientific evidence in accordance with the guidelines established by the Federal Rules of Evidence. Indeed, despite its previous widespread acceptance, the "general acceptance" test was then modified or rejected in four circuits and at least fifteen states during the late-1970s and 1980s. Later, the United States Supreme Court noted in Daubert, that the petitioners "contend that the Frye test was superseded by the adoption of the Federal Rules of Evidence. We agree." The Court later noted that "[n]othing in the text of this Rule establishes "general acceptance" as an absolute prerequisite to admissibility."

2. Pre-Daubert Law in Texas

Prior to Daubert, Texas required only that the expert be qualified to give an opinion, and that he not base that opinion on speculation or surmise. Prior to Daubert and Robinson, the Texas Supreme Court held that the opinion testimony of a qualified expert is admissible and probative - and that questions of reliability, method, factual basis, credibility, and the like, are questions for the trier of fact. As

such, Texas courts of appeals rejected attempts to exclude the admission of expert testimony based on the reliability of an expert’s methods or technique.

C. (1992) KELLY V. STATE

In Kelly v. State, the Court of Criminal Appeals affirmed the admissibility of DNA fingerprint testimony by experts. In determining the reliability of scientific evidence, the Court listed seven (7) factors to consider:

(1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained;

(2) the qualifications of the expert(s) testifying;

(3) the existence of literature supporting or rejecting the underlying scientific theory and technique;

(4) the potential rate of error of the technique;

(5) the availability of other experts to test and evaluate the technique;

(6) the clarity with which the underlying scientific theory and technique can be explained to the court; and

(7) the experience and skill of the person(s) who applied the technique on the occasion in question.

II. (1993) THE U.S. SUPREME COURT’S DECISION - DAUBERT

In Daubert, the trial court granted a motion for summary judgment on the grounds that the Plaintiffs’ evidence was not "generally accepted" within the scientific community, as most of the published studies on Bendectin concluded that there was no causal link between the drug and limb reduction birth defects. The Ninth Circuit Court of Appeals affirmed, also citing Frye. On petition for certiori before the United States Supreme Court, the petitioners claimed that Rule 702 superseded the Frye test, and that the "general acceptance" test no longer applied. The Supreme Court agreed, and fashioned a much less restrictive test.

A. THE COURT’S CLEAR REJECTION OF FRYE

In Daubert, the plaintiffs argued that Rule 702 rejected the Frye standard. The Court agreed: "The drafting history makes no mention of Frye, and a rigid ‘general acceptance’ requirement would be at odds with the ‘liberal thrust’ of the Federal Rules and their ‘general approach to relaxing the traditional barriers to opinion testimony.’" The Court, writing through Justice Harry Blackmun, rejected Frye as an ‘austere standard, absent from, and incompatible with, the Federal Rules of Evidence [that] should not be applied in federal trials.’ Thus, the Court rejected Frye in favor of a more liberal, flexible approach under Rule 702 of the Federal Rules of Evidence.

B. THE "RELEVANT AND RELIABLE" REQUIREMENT

After rejecting Frye, the Court fashioned a new standard, holding that the Rules of Evidence require only that a court "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." The "relevance" requirement is merely that the evidence "must assist the trier of fact to understand the evidence or to determine a fact in issue," the requirement was described by the Court as one of "fit." The "reliability" requirement requires that the scientific testimony be "reliable," yet the Court clearly suggested that the focus

must be on "principles and methodologies, not on the conclusions that they generate." The Court ended its opinion with its simple holding:

"To summarize: ‘General acceptance’ is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence - especially Rule 702 - do assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands."

C. THE FACTORS TO EVALUATE THE RELIABILITY

OF SCIENTIFIC TESTIMONY INCLUDED IN

SECTION II(C) OF THE DAUBERT OPINION

In Daubert,, Justice Blackmun made "general observations," including four factors to consider when screening scientific expert testimony: (1) the testability of the theory ; (2) whether the theory or technique has been subjected to peer review and publication ; (3) the potential rate of error ; and (4) the general acceptance of the theory or technique in the scientific community. The Court cautioned that the "general observations" were not requirements, stating that "[t]he inquiry envisioned by Rule 702 is, we emphasize, a flexible one." The Court indicated its preference

for admission into evidence of expert testimony, and the testing of such testimony through the art of cross examination.

D. WERE THE SECTION II(C) RELIABILITY FACTORS

LIMITED TO EXPERT SCIENTIFIC EVIDENCE?

Two portions of the Daubert decision seemed to reflect that the "general observations" made in Section II(C) of the opinion were meant by the Court to be limited to expert scientific testimony. First, the Court framed its assignment in the case early in the opinion, stating: "In this case we are called upon to determine the standard for admitting expert scientific testimony in a federal trial." Second, the Court dropped a footnote emphasizing that Daubert is limited to "scientific knowledge." "Rule 702 also applies to ‘technical, or other specialized knowledge.’ Our discussion is limited to the scientific context..." Despite the above two qualifiers in the Court’s opinion, Chief Justice Rehnquist foresaw the problems with the observations being made in the first place. Chief Justice Rehnquist concurred in part and dissented in part. His opinion prophetically stated concerns about the "general observations" of the majority opinion:

Questions arise simply from reading [Part II-B and C] of the Court’s opinion, and countless more questions will surely arise when hundreds of district judges try to apply its teachings to particular offers of expert testimony. Does all of this dicta apply to an expert seeking to testify on the basis of "technical

or other specialized knowledge" ... or are the "general observations" limited only to "scientific knowledge?

E. THE HOLDING VS. THE HYPE - POST-DAUBERT SPIN

It is critical to note that the holding of Daubert replaced the restrictive Frye general acceptance standard of expert admissibility with a more liberal, less restrictive flexible inquiry of "relevance" and "reliability." However, the legal and general press took one phrase from the opinion, and indoctrinated America with the proposition that the Supreme Court had issued an opinion intended to stop "junk science." In truth, the Court’s opinion in general was a very reasoned approach intended to replace a restrictive holding of Frye with a more case-specific analysis to be conducted by the trial court.

IV. THE POST-DAUBERT TEXAS SUPREME COURT CASES

REGARDING ADMISSIBILITY AND USE OF EXPERT TESTIMONY

Subsequent to the decision of the United States Supreme Court in Daubert, several opinions by the Supreme Court of Texas have interpreted Daubert and have promulgated new and specific standards concerning its use in the state of Texas. These decisions - including Robinson, Havner, Broders v. Heise, Gammill v. Jack Williams Chevrolet are discussed herein.

A. (1995) E.I. DU PONT DE NEMOURS CO. V. ROBINSON

In E.I. Du Pont de Nemours & Co. v. Robinson, the Supreme Court of Texas applied Daubert and made an extension of it the law in Texas governing the admissibility of expert scientific testimony.

1. The Procedural History

In Robinson, a horticultural expert opined that the Robinson’s pecan trees had been damaged by du Pont’s Benlate. At trial, no one questioned the experts qualifications to give the testimony. The trial court excluded the testimony, finding the expert’s methodology to lack a reliable foundation. The Court of Appeals reversed the exclusion, holding that the jury, not the judge, was to determine the weight and credibility of the testimony of the expert witness. The Supreme Court reversed the Court of Appeals, holding that the trial court had not abused its discretion in excluding the expert’s testimony, and announced a six-part test for evaluating the reliability of scientific expert testimony which was largely derived from the Daubert test.

2. Adding Two More Reliability Factors

to The Four Daubert Factors

In Robinson, the Supreme Court of Texas adopted the "general observations" of Justice Blackmun in Daubert as factors to be considered by trial judges deciding whether to admit expert scientific testimony. Additionally, in Robinson, the Texas Supreme Court not only adopted the four Daubert factors, it also endorsed two more:

- the extent to which the technique relies upon the subjective interpretation of the expert; and

- the non-judicial uses which have been made of the theory or technique.

Thus, the so-called Robinson reliability factors were enumerated as follows:

There are many factors that a trial court may consider in making the threshold determination of admissibility under Rule 702. These factors 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;

(6) the non-judicial uses which have been made of the theory or technique.

The Court noted that the above factors are "non-exclusive," that trial courts may consider "other factors which are helpful to determining the reliability of the scientific evidence," and instructed that the "factors a trial court will find helpful in determining whether the underlying theories and techniques of the proffered evidence are scientifically reliable will differ with each particular case."

B. (1995) BURROUGHS WELLCOME CO. V. CRYE

On the same day it issued the Robinson opinion, the Supreme Court of Texas decided Burroughs Wellcome Co. v. Crye, reversed a trial court judgment for the Plaintiff, and held that the Plaintiff’s evidence was legally insufficient to establish that the Plaintiff suffered frostbite as a result of using the defendant’s spray antibiotic powder. While the court’s opinion never mentioned Daubert or Robinson, Justice Gonzalez concurred (joined by Hecht & Owen) and argued that the Plaintiffs’ evidence of a pigs’-foot study to compare the cooling effect of Polysporin spray with that of other sprays should be inadmissible. Justice Gonzalez noted that in Robinson, "we addressed the standard trial courts should employ when determining whether expert testimony is admissible under Rule 702. Under this standard, expert evidence must be both relevant to a fact issue in the case and based on a reliable technique or theory to be admissible. Justice Gonzalez argued that the test was"not based on a scientifically reliable technique," that the expert admitted that he poorly recorded the test results, improperly recorded temperatures, that the study was conducted the study for purpose of testifying in Mrs. Crye’s suit, and that it was not subjected to peer review or publication.

C. (1996) BRODERS V. HEISE

In Broders v. Heise, the Supreme Court of Texas decided that a trial court had not abused its discretion in excluding the testimony of an emergency physician that the conduct of three defendant emergency room physicians and the defendant hospital was a cause in fact of the death of a patient. In doing so, the Court found that the plaintiffs did not meet their burden to show that their expert had "knowledge, skill, experience, training or education" which would "assist the trier of fact in deciding the issue of cause in fact."

At trial, the plaintiffs called Dr. Frederick Condo as an expert witness, introduced evidence that he had been licensed as a medical doctor since 1960, had practiced emergency medicine since 1980, and had been trained in "the brain and its functions" in medical school. Without objection, he testified as to the standard of care and to the deviations therefrom. However, the trial court refused to allow him to testify as to cause in fact, concluding that Dr. Condo was not competent to offer an opinion on causation. The defendant called two neurosurgeons, who testified that the alleged negligence was not a cause of the plaintiffs’ damages because the brain injury itself was inoperable and untreatable. The jury returned a verdict for the defense, and the plaintiffs appealed the trial court’s judgment complaining of the exclusion of Dr. Condo’s testimony concerning causation. The Court of Appeals reversed, holding that the trial court abused its discretion in excluding Dr. Condo’s testimony on cause-in-fact, because Dr. Condo met the requirement of Rule 702 by "possess[ing] knowledge and skill not possessed by people generally." The Supreme Court of Texas reversed the judgment of the court of appeals, and affirmed the decision of the trial court to exclude Dr. Condo.

1. All Doctors Are Not Qualified to Testify

on Every Medical Question

The Supreme Court held in Broders that all doctors are not qualified to testify as to every medical question. The Court disagreed with the plaintiff’s position that an expert of the same school of practice as the defendant is qualified to testify as to all matters pursuant to the Court’s holding in Hart v. Van Zandt. Instead, the Broders court cautioned that "Van Zandt does not go on to say that experts who are medical doctors are automatically qualified by virtue of their medical degrees.... we do not believe that either the letter or the spirit of Van Zandt supports the Heises’ interpretation that any medical doctor can always testify on any issue against any other medical doctor in a malpractice case." The Court followed a long line of federal and sister state cases similarly holding, and explained as follows:

[G]iven the increasingly specialized and technical nature of medicine, there is no validity, if there ever was, to the notion that every licensed medical doctor should be automatically qualified to testify as an expert on every medical question. Such a rule would ignore the modern realities of specialized medicine.... Dr. Condo’s medical expertise is undoubtedly greater than that of the general population, but the Heises did not establish that his expertise on the issue of cause in fact met the requisites of Rule 702. While he knew both that neurosurgeons should be called to treat head injuries and what treatments they could provide, he never testified that he knew, from either experience or study, the effectiveness of those treatments in general, let alone in this case. On this record, the Heises simply did not establish that Dr. Condo’s opinions on cause in fact would have risen above mere speculation to offer genuine assistance to the jury.

2. One Need Not Be A Specialist in a Particular Sub-Specialty

When Other Experience or Knowledge Concerning

the Particular Subject Makes the Expert’s Opinion

"Of Assistance" to the Jury

The Court was very careful in Broders to note that its "holding today does not mean that only a neurosurgeon can testify about the cause in fact of death from an injury to the brain, or even that an emergency room physician could never so testify." Rather, the Court held merely that "[w]hat is required is that the offering party establish that the expert has "knowledge, skill, experience, training or education" regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject." The Court also noted that when a party can demonstrate that "when a subject is substantially developed in more than one field, testimony may come from a qualified expert in any of those fields." Thus, the particular experiential pedigree of an expert is critical, only if he has no other basis for providing specialized testimony on a specific particular subject at issue before the jury.

D. (1996) S.V. v. R.V.

In S.V. v. R.V., a repressed memory case, the Supreme Court of Texas held that expert opinions regarding recovered memories of childhood sexual abuse could not meet the objective verifiability element for extending the discovery rule in childhood sexual abuse case and thus action was time barred. The Court held that for the discovery rule to apply, the claim must have been "inherently undiscoverable" within the limitations period, and the Court then required "objective verifiability" to apply the discovery rule to extend the statute of limitations, and held that the evidence concerning the expert opinions concerning recovered memories of childhood sexual abuse could not meet the objective verifiability requirement. While the Court’s majority opinion made clear that the issue of expert reliability under Robinson and Daubert was not properly before the Court, Justice Gonzalez and Justice Cornyn engaged in a spirited debate as to whether the proffered expert testimony was admissible under Robinson and Daubert.

In Justice Gonzalez’s concurrence, he opined that "[t]he testimony of R.’s experts is not admissible under these [Robinson] guidelines" because (1) "it cannot be empirically tested," "because the testimony "relies heavily upon the subjective interpretation of the expert," and because "the potential error rate is high in cases of repressed memory." Justice Gonzalez concluded that "[g]iven what we know today about the subject, expert testimony regarding repressed memory is the type of junk science that should be kept out of our courtroom under the guidelines set forth in Robinson."

By contrast, Justice Cornyn in his concurrence expressed dismay that the Robinson factors do not provide a workable framework for analysis in many cases: "[a]side from the role of amateur scientist that Robinson unfortunately thrust upon them, trial courts face additional problems in behavioral science cases like this one because these disciplines cannot be readily evaluated under the nonexclusive factors enunciated in Robinson." Justice Cornyn concluded as follows:

Even though Robinson now plainly controls the admissibility of some expert testimony, it cannot reasonably be construed to control the admissibility of all expert testimony. There are some types of expert testimony to which the nonexclusive factors in Robinson are clearly inapplicable.... As I have said before, I fear that the admissibility standard that the Court adopted in Robinson will prove unworkable in a wide variety of contexts in which Rule 702 of our Rules of Evidence is implicated, including cases like this one.

On rehearing, Justice Gonzalez issued a new concurring opinion, wherein he largely agreed with Justice Cornyn and recognized that the Robinson factors do not apply workably in all cases:

As Justice Cornyn correctly recognizes, this case foreshadows larger issues than the admissibility of repressed memory syndrome. Under Robinson, many social and behavioral disciplines will undoubtedly suffer the same fate. Thus, we need to develop a standard or filter apart from Robinson to judge the validity of expert testimony based on the social sciences. A recent commentator has aptly summarized the problem:

Although the [view that Daubert-Robinson provides the exclusive standard for evaluating scientific expert testimony] is our preferred solution, it leaves no safe harbor for evidence widely viewed as scientific, is accepted as sound, but cannot meet the Daubert criteria. This appears to be a dilemma that the lower courts will have to resolve on their own... Conley & Peterson, The Science of Gatekeeping: The Federal Judicial Center’s New Reference Manual on Scientific Evidence, 74 N.C.L.Rev. 1183, 1204 (1996).

Rather than addressing this problem on a case-by-case basis, the bench and bar would be better served if we dealt with it head-on. I therefore suggest that we refer this matter to the Supreme Court Advisory Committee and the appropriate state bar committees for recommendations concerning a possible rule change by our court. In the meantime, I suggest that trial courts apply

Robinson across the board in determining the admissibility of scientific evidence.

E. (1997) UNITED BLOOD SERVICES V. LONGORIA

In United Blood Services v. Longoria, the Supreme Court of Texas issued a per curiam opinion and reversed the Corpus Christi court of appeals’ reversal of trial court summary judgment against the Plaintiff based on an exclusion of proffered expert testimony. The Plaintiffs had offered the testimony of a witness to testify on the standard of care for the blood-banking industry, yet the witness was not a doctor of medicine or osteopathy, had admitted that he did not consider himself as an expert in blood banking, hematology, or immunology, had "never worked for a blood bank, never took any courses on blood banking, never published any articles related to blood banks, and obtained his Ph.D. by correspondence course" from an unaccredited university. The trial court excluded the testimony, and the court of appeals reversed this exclusion. The Supreme Court noted that "[w]hether a witness is qualified to offer expert testimony is a matter committed to the trial court’s discretion" and held that the trial court did not abuse its discretion in rejecting the proposed expert testimony." In Longoria, the Supreme Court noted that "[w]hile properly citing the correct standard of review, the court of appeals improperly substituted its opinion for that of the trial court’s."

F. (1997) MERRELL DOW PHARMACEUTICALS V. HAVNER

In Merrell Dow Pharmaceuticals, Inc. v. Havner, the Supreme Court of Texas reversed a judgment in favor of the Plaintiff, and rendered that the Plaintiff take nothing. In doing so, the Court found that the Plaintiff had presented no "reliable" evidence of causation. The Court extended Daubert and Robinson to the "no evidence" review process in order to reach its result. It is important to note that Havner is not a case deciding whether the experts at issue were qualified to given opinions under Rule 702, but rather one focusing on whether the underlying scientific bases relied upon are to be adjudicated "reliable."

1. Robinson Applies to a "No Evidence"

Review of Scientific Evidence

In Robinson, the Court provided the factors for trial judges to utilize in deciding, within their discretion, whether or not to admit expert scientific evidence. Yet the decision was that of the trial judge, and therefore, was subject to an "abuse of discretion" standard. In Havner, the Court extended the Daubert/Robinson standards to the "no evidence" review, thereby, permitting itself to review the decision, in effect, de novo: "The issue in Robinson was admissibility of evidence, but as we have explained the same factors may be applied in a no evidence review of scientific evidence."

2. New Principles of "No Evidence" Review

Havner’s most significant impact concerns the Court’s usurpation of power by extending its constitutionally limited role of performing a "no evidence" review into a de novo review to be performed in the clothing of a legal sufficiency review. Two new principles were applied by the Court that are worthy of discussion.

First, an expert’s bare opinion of causation will not suffice. In perhaps its most far-reaching holding in the opinion, the Court, supposedly constitutionally constrained to perform only a "no evidence" analysis, decided that the opinion of an expert, properly qualified under Rule 702, is no evidence by itself.

Second, the Court described two circumstances when expert opinions alone will constitute "no evidence." The Court, by Justice Owen, enunciated two circumstances wherein an expert’s opinion alone will constitute "no evidence" for purposes of appellate review of a trial court record: (1) when the data on which the expert opinion is based are unreliable ; and (2) when the conclusions are from sound data, but arise from using flawed methodology. Thus, the methodology must be correct, and it must produce data or results consistent with the expert’s proffered opinion.

3. Causation in Toxic Tort Cases

The Court spends many pages discussing causation in toxic tort cases. Because it established dramatic new and specific requirements for such evidence to present even a fact issue, this section of the opinion is discussed herein.

The Court distinguished between general causation and specific causation in the toxic tort context, as follows: "General causation is whether a substance is capable of causing a particular injury or condition in the general population, while specific causation is whether a substance caused a particular individual’s injury." The Court, in dicta, discussed the two traditional ways to prove specific causation in the context of a toxic tort case: direct experiments, or epidemiological studies. If a claimant cannot prove specific causation through a direct experiment, the Court observed that the only other possible route is through "inference proof" or epidemiological studies:

In the absence of direct, scientifically reliable proof of causation, claimants may attempt to demonstrate that exposure to the substance at issue increases the risk of their particular injury. The finder of fact is asked to infer that because the risk is demonstrably greater in the general population due to exposure to the substance, the claimant’s injury was more likely than not caused by that substance.

The Court noted that the Havners primarily relied upon epidemiological studies, but also relied upon in vivo animal studies, in vitro animal studies, as well as direct testimony of causation from medical experts. In performing its "no evidence" review of the Havners’ proof, the Court established new requirements for epidemiological studies to constitute "some evidence" of causation. These new requirements are discussed herein.

The Court first established new minimum requirements concerning the statistical "relative risk" necessary to create a fact issue, but as if to leave itself some "wiggle room" should a plaintiff ultimately succeed in bringing the Court such overwhelming proof, the Court then issues disclaimers that this new requirement may not be enough to get there. First, the new minimum requirement concerning statistical "relative risk" evidence is that a plaintiff’s epidemiological proof must show more than a "doubling of the risk" to avoid being automatically adjudged "no evidence." Even though it requires proof of more than a doubling of the risk, the Court then says that even that may not be sufficient, instead warning that other factors must be considered first. The Court writes:

"We do not hold, however, that a relative risk of more than 2.0 is a litmus test or that a single epidemiological test is legally sufficient evidence of causation. Other factors must be considered."

"[E]pidemiological studies only show an association. There may in fact be no causal relationship even if the relative risk is high."

"[B]ias can dramatically affect the scientific reliability of an epidemiological study."

"We draw no conclusions from any of the foregoing articles other than to point out that there are a number of reasons why reliance on a relative risk of 2.0 as a bright line boundary would not be in accordance with sound scientific methodology in some cases. Careful exploration and explication of what is reliable scientific methodology in a given context is necessary."

"It must be reiterated that even if a statistically significant association is found, the association does not equate to causation."

Having selected a "more than doubling of the risk" relative risk requirement, the Court then announced a new requirement for Texas courts: for relative risk evidence to raise a fact issue, the confidence interval cannot cross 1.0. In doing so, the Court writes as follows:

"A confidence level can be used in epidemiological studies to establish the boundaries of the relative risk. These boundaries are known as the confidence interval."

"A confidence interval" shows a "range of values within which the results of a study sample would be likely to fall if the study were repeated numerous times."

"If based on a confidence level of 95%, a study showed a relative risk of 2.3 and had a confidence interval of 1.3 to 3.8, we would say that, if the study were repeated, it would produce a relative risk between 1.3 and 3.8 in 95% of the repetitions."

"However, if the interval includes the number 1.0, the study is not statistically significant or, said another way, is inconclusive."

Next, the Court determined that a statistical significance level of ninety-five percent (95%) or higher is necessary for a plaintiffs’ epidemiological evidence to constitute more than no evidence. Different statistical significance levels are utilized by statisticians. The Court selected the 95% statistical significance level as the minimum threshold for epidemiological studies to constitute "some evidence" of causation. In doing so, the Court writes as follows:

"The generally accepted significance level or confidence level in epidemiological studies is 95%, meaning that if the study were repeated numerous times, the confidence interval would indicate the range of relative risk values that would result 95% of the time."

"We should not widen the boundaries at which courts will acknowledge a statistically significant association beyond the 95% level to 90% of lower values."

Next, the Court added a new requirement that the dosage levels in the studies must be similar to those of the Plaintiff for the studies to constitute "some evidence" of causation:

To raise a fact issue on causation and thus to survive legal sufficiency review, a claimant must do more than simply introduce into evidence epidemiological studies that show a substantially elevated risk. A claimant must show that he or she is similar to those in the studies. This would include proof that the injured person was exposed to the same substance, that the exposure or dose levels were comparable to or greater than those in the studies, that the exposure occurred before the onset of the injury, and that the timing of the onset of injury was consistent with that experienced by those in the study.

The Court then adds a requirement that "if there are other plausible causes of the injury or condition that could be negated, the plaintiff must offer evidence excluding those causes with reasonable certainty."

In section VI(B) of its Havner opinion, the Court concluded that the Havners’ evidence of in vivo animal studies showing a link between Bendectin and limb reduction defects is no evidence of causation. The Court refused to acknowledge these studies as constituting "some evidence" for two reasons: first, the dosage levels in the studies were much higher than that taken by humans ; and second, the Court concludes that "scientific methodology would not rely on animal studies, standing alone, as conclusive evidence that a substance is a teratogen in humans."

In Section VI(C) of the Havner opinion, the Court concluded that the Havners’ evidence of in vitro animal studies showing a link between Bendectin and limb reduction defects is no evidence of causation. Here, the Court used two separate reasons to conclude that this type of evidence did not even raise a fact issue on causation. First, Plaintiffs’ expert concerning the in vitro animal studies, Dr. Stuart Allen, testified that the limb reduction defects of the Havner girl "could" or "can" cause a disease or disorder is not evidence in reasonable probability that it does." Second, the Court again concluded that this type of animal study is not legally sufficient evidence of causation by itself: "The fact that Bendectin may have an adverse effect on limb bud cells is "the beginning, not the end of the scientific inquiry and proves nothing about causation without other scientific evidence.... Dr. Newman offered no explanation of how he made the logical leap from the in vitro studies on animal tissue to his conclusion that Bendectin causes birth defects in humans. Dr. Newman’s testimony is not evidence of causation."

Next, the Court reviewed the direct expert testimony of specific causation of Dr. Palmer, for the reason that his opinion was unsupported by reliable scientific evidence. The Court acknowledges that the Havners did provide the jury with direct expert opinion evidence of specific causation, yet found that the underlying facts upon which the expert’s opinion was based was unreliable. The Court found the substance of the testimony to be unreliable for two reasons: first, the Court stated that Dr. Palmer’s opinions were based on epidemiological studies that conclude the opposite. Arguably, this analysis is inconsistent with the Daubert Court’s instructions concerning focusing on methodology over conclusions. Second, the Court noted that Dr. Palmer cannot rely upon the studies of Drs. Swan, Glasser, Newman or Gross, and therefore that Palmer is not free to testify on the subject. This reasoning seems to be contrary to prior caselaw as well.

4. Did The Court Actually Use the Old "General Acceptance" Test?

It can be argued that the Court, in effect, pulled Texas back to old Frye test even though it spoke in terms of Daubert-type language:

"More than thirty studies on Bendectin and birth defects have been conducted and published in peer-reviewed scientific and medical journals since questions were first raised. None of these studies concludes that children of women who took Bendectin during pregnancy had an increased risk of limb reduction birth defects."

"The federal courts have dealt extensively with Bendectin litigation. To date, no plaintiff has ultimately prevailed in federal court."

"Gross also failed to explain why the published studies from which he extracted his data had concluded Bendectin was not harmful."

G. (1998) MARITIME OVERSEAS CORP. V. ELLIS

In Maritime Overseas Corp. v. Ellis, the Supreme Court of Texas held that Daubert/Robinson/Havner challenges made for the first time on appeal have been waived. The Court correctly noted that "[h]ere, Maritime did not object to the scientific reliability of a single one of Ellis’s five expert witnesses until after the jury verdict," that [b]efore trial, Maritime did not ask for a Daubert/Robinson-type hearing," that "Maritime did not make any objection to the reliability of Ellis’s experts before trial or when Ellis offered the evidence." In holding that Maritime had waived the issue on appeal, the Court correctly noted as follows:

Maritime cannot complain for the first time after the verdict that the testimony from Ellis’s five experts does not support the judgment. To allow otherwise would deny Ellis’s scientific experts the opportunity to "[p]ass muster" in the first instance and usurp the trial court’s discretion as "gatekeeper." Rules and procedures about error preservation promote certainty and fairness. Such rules also frame and develop the legal issues for appeal, giving notice to both the litigants and to appellate courts about what issues remain. Appellate courts must base their decisions on the record as made and brought forward, not on a record that should have been made or could have been made. For this Court to decide now that Ellis’s scientific evidence is unreliable under Daubert or Robinson would base appellate review on a record that was not made.

H. (1998) GAMMILL V. JACK WILLIAMS CHEVROLET, INC.

In Gammill v. Jack Williams Chevrolet, Inc., the Supreme Court of Texas held that mechanical engineering testimony is subject to the Robinson test of relevance and reliability, yet expertly acknowledged that the specific factors offered in Daubert and Robinson for assessing the reliability of scientific evidence cannot be applied to the mechanical engineering testimony offered by the Gammills’ experts.

1. The Background Facts

The Gammill case arose from an automotive design defect lawsuit alleging both that the Plaintiff lost control of her vehicle because the accelerator pedal became caught in a wiring harness beneath the dashboard, and that the driver’s daughter died because "her seat belt did not restrain her as it should have."

(a) Unconscionable Delay, A Lack of Preparation and Successive Withdrawals By Three Attorneys

Unfortunately for his clients, the Plaintiffs’ attorney waited two years after filing suit and still had not procured an expert to support any theory. After an inspection of the vehicle by the defendants occurred more than two years into the litigation, the defendants moved for summary judgment with affidavits negating the factual bases for the contentions located in the Plaintiffs’ pleadings. In sum, the summary judgment proof was that the accelerator pedal did not become caught, would not have prevented brake application had it been caught, that the plaintiff’s decedent was not wearing her seat belt, and that even had she been wearing her belt, her injuries would have been fatal. The Gammills attorney then withdrew, and the Court granted the Plaintiff time to locate new counsel. When new counsel was located, opposing affidavits were filed with a response to the summary judgment, yet summary judgment was granted, and an appeal was taken. On appeal, a third attorney took over for the Plaintiff, a reversal and remand was obtained, and six months later, the third attorney withdrew and a fourth attorney was located.

(b) The Procedural Background

After the fourth attorney was located, the defendants again moved for summary judgment, and the plaintiffs’ attorney responded with a request for another vehicle examination. At a subsequent hearing, the Plaintiffs offered testimony of two new experts, Ronald Huston and David Lowry, and the defendants challenged the reliability of their opinions under Robinson. The Court deferred its ruling on the motion for summary judgment, ordered mediation, and after the mediation failed, the court granted the defendants’ motion to disqualify Huston and Lowry under Robinson. The trial court found them unqualified to give the opinions they offered, and found the opinions unreliable under Robinson. The court of appeals affirmed, and the Supreme Court granted the Plaintiffs’ writ of error.

2. Exclusions Based on The Qualifications of the Experts

The Gammills tendered affidavits from Ronald Huston, a seatbelt expert, and David Lowry, a mechanical engineer with fighter plane construction experience. As noted above, the trial court excluded both engineers’ testimony, and found them unqualified to give the opinions offered in their affidavits, and this finding of fact was affirmed by the court of appeals. The specifics of their expertise are important here because while Lowry was held to have been properly excluded as unqualified, the Court specifically found that the trial court abused its discretion in "holding that Huston was not qualified to testify that the rear restraint system in the Gammills’ vehicle was defective.

3. The Trial Court’s Exclusion of Huston’s

Seat Belt Defect Testimony On Reliability Grounds

Having concluded the trial court correctly excluded Lowry, no issue with respect to the braking defect remained and the Supreme Court ended its discussion of that issue. Yet, having concluded that Lowry was qualified to give opinions with respect to the seatbelt defect issue, the Court then turned to the question of whether the trial court abused its discretion in finding his opinions in that regard unreliable under Robinson.

Following the United States Supreme Court’s dictate in Daubert that the issue of reliability is a flexible one to be decided on a case-by-case basis under the facts of each case, the Supreme Court first ruled that the Daubert/Robinson reliability standard applied to mechanical engineers, and then affirmed Lowry’s exclusion as to reliability under very case-specific grounds.

(a) The Court First Held That Daubert & Robinson’s "Relevance and Reliability" Standard

Applies to All Expert Testimony

In Section III(A) of the Court’s opinion, Justice Hecht outlined the common holding of Daubert, Kelly and Robinson - proffered expert testimony must be shown to be both relevant and reliable. However, the Gammills argued that the reliability scrutiny prescribed by these cases applied only to novel scientific evidence, and not to science such as mechanical engineering when the expert’s opinions are based on his individual skills, experience or training. The Court rejected this argument, and after reviewing the applicable cases, held that the standard of relevance and reliability "adopted in Robinson applies to all scientific testimony. After reviewing many of the United States Supreme Court cases construing Daubert in the context of mechanical engineering, i.e., non-novel scientific evidence, the Court concluded its review of the caselaw with the following conclusion:

We agree with the Fifth, Sixth, Ninth, and Eleventh Circuits that Rule 702’s fundamental requirements of reliability and relevance are applicable to all expert testimony offered under that rule. Nothing in the language of the rule 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.

(b) The Court Next Held That Daubert & Robinson’s

Factors For Assessing Reliability Cannot Always Be

Applied to the Mechanical Engineering Testimony

in The Context of Design Defect Testimony

After reaching the correct conclusion that the requirements of relevance and reliability apply to all types of expert testimony, the Court then addressed the critical question of whether the four factors provided in Section II(C) of the Daubert opinion and the six factors provided in Robinson for assessing the reliability of expert testimony should be applied to expert testimony based upon an expert’s "individual skills, experience, or training." Here, Justice Hecht’s analysis distinguishing the issue of whether the requirements of relevance and reliability should apply from the issue of whether the specific factors for assessing reliability provided in Daubert and Robinson is brilliantly and correctly stated as follows:

All expert testimony should be shown to be reliable before it is admitted. That said, it is equally clear that the considerations listed in Daubert and in Robinson for assessing the reliability of scientific evidence cannot always be used with other kinds of expert testimony.... In determining whether Daubert applies to particular expert testimony, some courts have confused two aspects of Daubert: on the one hand, the construction of Rule 702 to require that expert testimony be reliable and relevant, and on the other hand, the considerations to be used in determining the reliability of scientific opinion.

The Court then announced the same distinction was valid with respect to the Robinson reliability factors:

The Robinson factors for assessing the reliability of scientific evidence cannot be applied to the testimony offered by the Gammill’s experts, even though mechanical engineering, the expertise claimed by the witnesses, is scientific in nature. But Rule 702’s general requirement of reliability must still be satisfied....

The distinction drawn by Justice Hecht in Gammill between the application of the relevance and reliability requirements on the one hand, and the application of the four Daubert reliability factors on the other hand, was prophetic, as the Supreme Court took great pains in its decision in Kumho Tire Co. v. Carmichael to stress that a trial court may apply the factors, but only when they are found to be appropriate.

The Seat Belt Defect Expert’s Opinions

on Grounds of Non-Reliability

Instead of applying the inappropriate Daubert and Robinson factors to a case involving design defect opinions by a mechanical engineer, the Court turned to the integral question posed by the United States Supreme Court in General Electric Co. v. Joiner - whether "there is simply too great an analytical gap between the data and the opinion proffered." In answering this question, the Court noted the following:

The "analytical gap" between the data in this case and Huston’s opinion was not shown to be due to his techniques in assessing the vehicle restraint system. On the contrary, Huston based his conclusions on observations and testing similar to those employed by defendants’ experts. Rather, the "gap" in Huston’s analysis was his failure to show how his observations, assuming they were valid, supported his conclusions that Jaime was wearing her seat belt or that it was defective.

In analyzing the factual problems with Huston’s affidavit, the Court engages in a hyper-specific, intense and critical analyses of Huston’s affidavit, which frankly is appropriate in Gammill, given the fact that the Court was being asked to judge a trial court’s decision to exclude the evidence to be an abuse of discretion. Indeed, Justice Hecht’s analysis in this regard is somewhat unique to summary judgment cases, as he appears to be reviewing the record which contained only an affidavit that was inartfully worded. One critical observation of the Supreme Court of Texas bears repeating: ‘The Compton court’s refusal to apply the Daubert factors to the engineering expert’s testimony appears correct. At least some of those factors -- such as the requirement of peer review and an assessment of the rate of error of the technique the expert relied upon -- simply do not fit testimony like that being offered."

V. U.S. SUPREME COURT CASELAW SINCE DAUBERT

Since the United States Supreme Court handed down its opinion in Daubert in 1993, it has ruled in two other significant cases construing the Daubert opinion: (1) General Electric Co. v. Joiner; and (2) Kumho Tire Co., Ltd, et al. v. Carmichael. This section of the paper discusses these two cases.

A. (1997) GENERAL ELECTRIC COMPANY V. JOINER

In General Electric Company v. Joiner, the United States Supreme Court held that appellate review of a trial court’s decision to exclude expert testimony based on Daubert is one to be conducted with an "abuse of discretion" standard.

1. Background Facts

Robert Joiner and his wife brought suit, seeking damages for his injuries arising from his contracting lung cancer at age 37. The lawsuit alleged that he was exposed to polychlorinated biphenyls ("PCBs"), while working for the City of Thomasville, Georgia. Joiner worked around the City’s electrical transformers, and when they required repair, Joinder opened them, drained the dielectric fluid, made repairs and refilled the same. This process required Joiner to stick his hands and arms into the dielectric fluid, and evidence existed that it had splashed onto his face and into his mouth on several occasions. Joiner sued the manufacturers of products, including General Electric. After the case was removed to federal court, the defendants moved for summary judgment, alleging the Plaintiffs had no evidence which was relevant and reliable under Daubert tying his lung cancer to his exposure to their product.

The Joiners responded with depositions and affidavits of two experts, Daniel T. Teitelbaum, M.D., and Arnold Schechter, M.D., M.P.H., who testified that PCBs alone can cause cancer and that furans and dioxins can also promote cancer, that Joiner was exposed to PCBs, furans and dioxins, and that, in these experts’ opinions, such exposure was responsible for Joiners’ lung cancer.

The district court found that there was no credible evidence that Joiner had been exposed to furans and dioxins. While the Court found Joiner had been exposed to PCBs, it ruled the testimony of the experts regarding causation relating to PCBs to be unreliable because the data upon which is was based did not support their conclusions. Specifically, the Court held that the four studies relied upon by the Plaintiffs’ experts did not support the conclusions the experts reached. The court deemed inadmissible all of the testimony presented by Joiners’ experts and granted summary judgment for the defendants.

2. The Court of Appeals Decision

The Joiners appealed the trial court’s summary judgment to the United States Court of Appeals for the Eleventh Circuit, alleging two central errors: (1) the trial court improperly granted summary judgment on the issue of Joiner’s exposure to furans and dioxins; and (2) the trial court improperly excluded under Daubert the Joiners’ experts opinions as to causation relating to PCBs exposure.

With respect to the issue of whether Joiner had been exposed to furans and dioxins, the Court of Appeals reversed the trial court.

With respect to the trial court’s exclusion under Daubert of Plaintiff’s experts’ testimony as to exposure to PCBs causing lung cancer, the Court reversed the judgment of the trial court. In doing so, the Court applied "a particularly stringent standard of review to the trial judge’s exclusion of expert testimony" and noted that "[t]o the extent that the district court’s ruling turns on an interpretation of a Federal Rule of Evidence, our review is plenary." The Court then found that "Teitelbaum and Schechter each utilized scientifically reliable methods and procedures in gathering and assimilating all of the relevant information in forming their respective opinions" and that "the extensive experience and specialized expertise of each of these experts augment the reliability of their reasoning and methodology." The Court of Appeals also criticized as follows the trial court’s "rejection" of animal studies relied upon by Joiners’ experts:

The assessment of reliability also involves reviewing the basis for an expert’s opinion.... While this inquiry cannot be made without some consideration of the quality of the research in question, the district court’s focus is a narrow one and does not encompass deciding which expert’s conclusions are better reasoned or more appealing. Nor should the court make independent scientific judgments on the basis of individual studies. For example, the court "rejected" the two animal studies because (1) there were only two studies, (2) which used massive doses of PCBs, (3) which represented a preliminary stage of research, and (4) which tested animals, not humans. None of these reasons is sufficient to render an expert’s opinions legally unreliable.... Instead of viewing the bases of an expert’s opinion as a whole to screen out mere speculation, the district court assessed only a portion of the studies relied upon by each of the Joiners’ experts, and then excluded the testimony because it drew different conclusions from the research than did each of the experts. Ultimately, the court should satisfy itself as to the legal reliability of proffered expert testimony, leaving the jury to decide the correctness of competing expert witnesses.

After having the summary judgment in its favor reversed by the Eleventh Circuit Court of Appeals, General Electric filed a petition for writ of certiori in the United States Court of Appeal, which was granted based upon a conflict among the circuits as to the appropriate standard for appellate review to be applied when reviewing a trial court’s determination to exclude expert testimony under Daubert.

3. The U.S. Supreme Court Decision

The United States Supreme Court held that the "abuse of discretion" standard is the appropriate standard for an appellate court to utilize in reviewing a trial court’s exclusion of proffered expert testimony under Daubert, and concluded that the District Court did not abuse its discretion in excluding the testimony proffered by the Joiners. In doing so, the Court reasoned as follows:

We have held that abuse of discretion is the proper standard of review of a district court’s evidentiary rulings. Indeed, our cases on the subject go back as far as Spring Co. v. Edgar, 99 U.S. 645, 658, 25 L.Ed. 487 (1878) where we said that "cases arise where it is very much a matter of discretion with the court whether to receive or exclude the evidence; but the appellate court will not reverse in such a case, unless the ruling is manifestly erroneous." The Court of Appeals suggested that Daubert somehow altered this general rule in the context of a district court’s decision to exclude scientific evidence. But Daubert did not address the standard of appellate review for evidentiary rulings at all.... A court of appeals applying "abuse of discretion" review to such rulings may not categorically distinguish between rulings allowing expert testimony and rulings which disallow it.... We hold that the Court of Appeals erred in its review of the exclusion of Joiners’ experts’ testimony. IN applying an overly "stringent" review to that ruling, it failed to give the trial court the deference that is the hallmark of abuse of discretion review. We believe that a proper application of the correct standard of review here indicates that the District Court did not abuse its discretion

While applying an "abuse of discretion" review to the trial court’s ruling, the Supreme Court held that the trial court did not abuse its discretion in excluding testimony based on mice studies and one four epidemiological studies. Holding "that, because it was within the trial court’s discretion to conclude that the studies upon which the experts relied were not sufficient, whether individually or in combination, to support their conclusions that Joiner’s exposure to PCBs contributed to his cancer, the District Court did not abuse its discretion in excluding their testimony," the Court reasoned as follows:

Respondent points to Daubert’s language that the "focus, of course, must be solely on principles and methodology, not on conclusions that they generate." He claims that because the District Court’s disagreement was with the conclusion that the experts drew from the studies, the District Court committed legal error and was properly reversed by the Court of Appeals. But conclusions and methodology are not existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered. That is what the District Court did here, and we hold that it did not abuse its discretion in so doing.

The Supreme Court’s decision did not hold it would have been an abuse of discretion to admit the testimony; rather, it merely clarified the fact that "the abuse of discretion standard of review applies whether the district judge has excluded or admitted evidence."

B. (1999) KUMHO TIRE CO., LTD. V. CARMICHAEL

In its most recent decision regarding Daubert, the United States Supreme Court extended Daubert and Rule 702’s general requisites of "relevance and reliability" to all types of expert testimony, including that which is experienced or skill-based, and held that the four specific reliability factors provided by the Court in Daubert "may" be applied by a trial court in determining the reliability of expert testimony in such cases.

1. Bad Facts Justify This Trial Judge’s Decision

The Kumho Tire case arises from a lower-court’s summary judgment granted after the Plaintiff’s only tire defect expert was excluded under Daubert. Before a discussion of the legal holdings contained in the various opinions in Kumho Tire, it is important to recount the bad facts which justify the trial judge’s decision.

(a) The Background Facts Concerning

the Accident and the Tire

The products liability action arose from an accident in Alabama involving a Ford Aerostar which flipped after the right rear tire failed. Eight persons were ejected, and one died. The tire that failed had been manufactured in 1988 by Kumho & Company, a South Korean tire manufacturer. The service history of the tire was unknown, the tire had been punctured by a nail or a screw during some point in its service life, and the holes had not been adequately filled. The tread depth was between 0/32" to 3/32" at the time of the accident.

(b) The Unique Methodology Employed

by the Plaintiff’s Expert, Dennis Carlson

The plaintiffs employed George Edwards, a tire expert and consulting expert witness. Shortly before his deposition, Edwards got sick, and assigned the case to his employee, Dennis Carlson. The trial court found that "[w]ith respect to the tire at issue in this case, Carlson examined it for the first time on the morning that his deposition was taken." Carlson "could not say whether the tire had traveled more than 10, or 20, or 30, or 40, or 50 thousand miles."

Carlson opined that the tire failed because of poor or insufficient adhesion between the rubber, steel and nylon components of the tire, which poor adhesion caused the components to separate from each other, resulting in the flapping of the tread and the catastrophic loss of air pressure in the tire. Carlson testified that loss of adhesion is caused by one of two causes: a defect, or abuse. The only type of abuse possibly applying to the case at hand is overdeflection, which occurs when a tire is underinflated, overloaded or both. Carlson looks for four signs of overdeflection

(1) greater tread wear on the shoulder than on the center of the tire;

(2) sidewall deterioration or discoloration;

(3) abnormal bead grooving on the tire; and

(4) rim flange impressions.

Carlson testified that when he "fails to find sufficient evidence of two of these four indicators in a tire, he rules out overdeflection as a cause of the tire failure and ,

barring other evidence of abuse, concludes the loss of adhesion was prompted by a manufacturing or design defect."

from His Stated Methodology

During his deposition in Carmichael, Carlson admitted that "he observed some evidence of uneven tread wear, sidewall deterioration, abnormal bead grooving and rim flange impressions." However, he then qualified these statement by saying that the presence of these observed factors were either insufficient to demonstrate overdeflection or that it was attributable to causes other than overdeflection." Carlson then concluded that there was no overdeflection of the tire; thus, the detreading occurred as a result of either a manufacturing or design defect.

Additionally, Carlson admitted in his deposition that prior abuse of the tire included that the tire had been punctured by a nail or a screw during some point in its service life, and the holes had not been adequate filled. However, he subjectively discounted this fact as having nothing to do with the loss of air pressure.

(d) Carlson’s Complete Absence of

Affirmative Evidence of Defect

Because Carlson ruled out overdeflection and other forms of abuse, Carlson then concluded that the tire failure must have resulted from either a manufacturing defect or a design defect. However, the trial court found no affirmative evidence in the record (other than Carlson’s employed methodology) showing the presence of a defect, writing:

[N]either the plaintiffs’ written submissions nor the Court’s review of Carlson’s voluminous deposition transcripts indicate that Carlson identified any affirmative evidence of a defect in the tire. Stated differently, Carlson’s expert opinion that the tire failure was caused by a manufacturing or design defect is founded on his determination that there is a paucity of evidence of overdeflection or other abuse, rather than by his ability to pinpoint any affirmative evidence of a defect.

2. The Specific Holdings Contained in

the Trial Court’s Opinion

Because Daubert requires a case-by-case, factually-specific determination by a trial court as to reliability, and because defense lawyers and other practitioners may be tempted to pronounce Kumho Tire as the death of tire defect litigation as we know it, it is important to understand the specific and limited holdings made by the trial court, and the fact-based reasons for them that are specific to the Carmichael case and Carlson’s poor work in that particular case.

(a) The Trial Court Did Not Reject

A Process-of-Elimination Methodology

Provided it is an Objective Process

The trial court took great pains to be clear that a methodology of utilizing a process of elimination to reach his conclusions was not deficient, rather it was Carlson’s subjective deviations therefrom that made his opinions unreliable in the particular case at bar:

The Court rejects the defendants’ argument that Carlson’s testimony, if admissible, failed to make a prima facia showing that the tire was defective. Carlson’s finding of defect was prompted by his conclusion that insufficient signs of abuse were present, and his belief that there can be no causes of tire separation other than abuse and defect.... Despite defendants’ exhortations to the contrary, the Court perceives no inherent flaw in a process-of-elimination form of proof per se, as long as the underlying methodology is scientifically valid.

(b) The Court Held Carlson’s Methodology

Did Not Meet Any One of the Four (4)

Daubert Reliability Factors

The trial court concluded (falsely) that "[i]n assessing whether proffered scientific testimony is admissible, a court must consider such factors as (1) whether the technique or theory may be tested or refuted; (2) whether the technique or theory has been a subject of peer review or publication; (3) the known or potential rate of error of a technique; and (4) the degree of acceptance of a theory or technique within the relevant scientific community."

The Court found that with respect to the first factor - "whether the technique or theory may be tested or refuted" - the Court made the following findings: (1) "Carlson’s method for analyzing the tire is not susceptible to testing or falsification"; (2) "Carlson admits that his work is ‘subjective’ and that there is a certain degree of ‘uncertainty’ in his conclusions" ; and (3) Carlson "could not identify any specific tests or other procedures which could be used to corroborate or refute the results of his visual inspection of the tire at issue."

With respect to the second factor - "whether the technique or theory has been a subject of peer review or publication" - the Court noted that "Carlson concedes that there are no publications or papers which have approved or otherwise discussed his techniques for tire failure analysis," that "Carlson was able to point to no other publications on which relied in performing his analysis," and that "it is evident from Carlson’s testimony that there are no papers or publications which specifically address the propriety of the visual inspection method of analyzing failed tires which Carlson employed in this case."

With respect to the third factor - "the known or potential rate of error of a technique" - the Court noted that "Carlson testified repeatedly that he did not know the potential error rate of his method for determining whether a given tire failure is the result of abuse or a defect" and that "there is no evidence that he (or anyone else) has tested his methods in a controlled laboratory setting to gauge their accuracy in correctly distinguishing between overdeflected and defective tire separations."

With respect to the fourth factor - "the degree of acceptance of a theory or technique within the relevant scientific community" - the Court held that "Carlson’s method does not pass muster under the fourth prong of the Daubert analysis" because "[t]he Court cannot conclude from the record before it that Carlson’s analysis is generally accepted in the relevant scientific community."

In conclusion, the Court observed that "it appears that none of the four admissibility criteria outlined by the Daubert court are satisfied in this case."

to Technical Analyses of Products

The plaintiffs’ claimed that Carlson’s testimony was a mere "technical analysis" rather than scientific evidence, and that it is therefore "exempted from Daubert-style scrutiny." The Court concluded that "[t]his argument is meritless." The court noted that it had "a responsibility to serve as a gatekeeper, ensuring that purportedly expert testimony does not reach a jury unless that testimony is reliable and reasonable" and concluded that "Carlson’s testimony is simply too unreliable, too speculative, and too attenuated to the scientific knowledge on which it is based to be of material assistance to the trier of fact."

3. The Trial Court’s Ruling

Did Not Regard Carlson’s Qualifications

The trial court chose not to base its ruling on Carlson’s qualifications, and for purposes of its decision, stated "the Court will not examine his qualifications in any greater depth at this time, and will assume (without deciding) for purposes of this order that Carlson is qualified to offer expert testimony on this subject."

4. The Trial Court’s Opinion on Reconsideration

Although the trial court’s opinion on reconsideration is not available to this author, it is quoted from by the United States Supreme Court in its opinion as follows:

The plaintiffs, arguing that the court’s application of the Daubert factors was too "inflexible," asked for reconsideration. And the Court granted that motion. After reconsidering the matter, the court agreed with the plaintiffs that Daubert should be applied flexibly, that its four factors were simply illustrative, and that other factors could argue in favor of admissibility. It conceded that there may be widespread acceptance of a "visual-inspection method" for some relevant purposes. But the court found insufficient indications on the reliability of "the component of Carlson’s tire failure analysis which most concerned the Court, namely, the methodology employed by the expert in analyzing the data obtained in the visual inspection, and the scientific basis, if any, for such an analysis." It consequently affirmed its earlier order declaring Carlson’s testimony inadmissible and granting the defendants’ motion for summary judgment.

5. The Reversal By the Eleventh Circuit Court of Appeals

The United States Court of Appeals for the Eleventh Circuit reversed, holding that the testimony of the proffered expert, Dennis Carlson, was not "scientific" and thus was not subject to a Daubert inquiry for determining admissibility of scientific expert testimony.

The Eleventh Circuit first stated that it would review "the district court’s legal decision to apply Daubert de novo. Next, it noted that Daubert was a case that explicitly limited its holding to cover only the "scientific context," and defined a "scientific expert [as] an expert who relies on the application of scientific principles, rather than on skill- or experience-based observation, for the basis of his opinion." Finally, the Court concluded that "Carlson’s testimony falls outside the scope of Daubert and that the district court erred as a matter of law by applying Daubert in this case."

The Court thus, reversed the trial court’s summary judgment, and remanded the case for a new determination of relevance and reliability under Rule 702 that was independent of the Daubert factors.

6. The Kumho Tire Opinion of the United States Supreme Court

On March 23, 1999, the United States Supreme Court handed down its decision in Kumho Tire Co., Ltd. v. Carmichael. The Court held that Daubert’s general "gatekeeping" obligation of the trial court to find expert testimony both "relevant and reliable" before admitting the same applies not only to "scientific" testimony, but to all expert testimony, and held that, when assessing the reliability of an engineering expert’s testimony, a trial court "may" consider the four factors provided in Daubert. Thus, the court held the trial court did not abuse its discretion in applying the four Daubert reliability factors in assessing Carlson’s testimony, and reversed the judgment of the Court of Appeals.

(a) The Basic Gatekeeping Obligation of Daubert

Applies to All Expert Testimony

At the start of its opinion, the Court noted that "[t]he initial question before us is whether this basic gatekeeping obligation applies only to ‘scientific’ testimony or to all expert testimony. We, like the parties, believe that it applies to all expert testimony."

The Court recited the language of Rule 702 of the Federal Rules of Evidence, and properly observed that

[t]his language makes no relevant distinction between ‘scientific’ knowledge and ‘technical’ or ‘other specialized’ knowledge. It makes clear that any such knowledge might become the subject of expert testimony. In Daubert, the Court specified that it is the Rule’s word "knowledge," not the words (like "scientific") that modify that word, that "establishes a standard of evidentiary reliability." Hence, as a matter of language, the Rule applies its reliability standard to all "scientific," "technical," or "other specialized" matters within its scope.... Neither is the evidentiary rationale that underlay the Court’s basic Daubert "gatekeeping" determination limited to "scientific" knowledge.

Further, the Court observed that"it would prove difficult, if not impossible, for judges to administer evidentiary rules under which a gatekeeping obligation depended upon a distinction between ‘scientific’ knowledge and ‘technical’ or ‘other specialized’ knowledge" because "conceptual efforts to distinguish the two are unlikely to produce clear legal lines capable of application in particular cases." Thus, the Court reaffirmed that the basic gatekeeping obligation assigned to the trial court under Daubert to ensure that proffered expert testimony is both "relevant and reliable" applies to all types of expert testimony.

(b) The Court Made Clear That the Daubert

Factors "May" or "May Not" Be Applied

by the Trial Court to Non-Scientific Expert Testimony

On ten (10) different occasions in the Court’s opinion, the Court made clear that while the general requirements of "relevance and reliability" apply to all kinds of expert testimony, the explained that the four (4) reliability "factors" mentioned in Daubert "may" be applied by a trial court, but do not always have to be applied by the trial court where they are inappropriate given the proffered testimony to be evaluated:

(1) "We also conclude that a trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony’s reliability."

(2) "as the Court stated in Daubert, the test of reliability is ‘flexible,’ and Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts or in every case."

(3) "The petitioners ask more specifically whether a trial judge determining the ‘admissibility of an engineering expert’s testimony’ may consider several more specific factors that Daubert said might ‘bear on’ a judge’s gatekeeping determination... Emphasizing the word ‘may’ in the question, we answer that question yes."

(4) "Our emphasis on the word ‘may’ thus reflects Daubert’s description of the Rule 702 inquiry as ‘a flexible one.’ Daubert makes clear that the factors it mentions do not constitute a ‘definitive checklist or test.’ And Daubert adds the gatekeeping inquiry must be ‘tied to the facts of a particular case.’"

(5) "We agree with the Socilitor General that ‘[t]he factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony.’"

(6) "The conclusion, in our view, is that we can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Daubert, nor can we now do so for subsets of cases categorized by category of expert or by kind of evidence. Too much depends upon the particular circumstances of the particular case at issue."

(7) "[Daubert] made clear that its list of factors was meant to be helpful, not definitive. Indeed, those factors do not all necessarily apply even in every instance in which the reliability of scientific testimony is challenged."

(8) "[W]e conclude that the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. That is to say, a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony."

(9) "[W]hether Daubert’s specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine."

(10) "In sum, Rule 702 grants the district judge the discretionary authority, reviewable for its abuse, to determine reliability in light of the particular facts and circumstances of the particular case."

Technique to be Unreliable

In Section III of the Court’s opinion, the Supreme Court reviewed the record and determined that the trial court’s doubts about Carlson’s testimony were reasonable, as was the trial court’s ultimate conclusion. However, like the trial court below it, the Supreme Court repeatedly made clear that its conclusion was the result of the case-specific deficiencies of Carlson’s work in the Carmichael case alone. The Supreme Court wrote:

But no one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience. Nor does anyone deny that, as a general matter, tire abuse may often be identified by qualified experts through visual or tactile inspection of the tire.

7. Justice Scalia’s Concurring Opinion in Kumho Tire

Justice Scalia, joined by Justice O’Connor and Justice Thomas, released a brief concurring opinion cautioning trial court’s not to abandon the Daubert factors to easily:

I join the opinion of the Court, which makes clear that the discretion it endorses -- trial court discretion in choosing the manner of testing expert reliability -- is not discretion to abandon the gatekeeping function. I think it worth adding that it is not discretion to perform the function inadequately. Rather, it is discretion to choose among reasonable means of excluding expertise that it fausse and science that it junky. Though, as the Court makes clear today, the Daubert factors are not holy writ, in a particular case the failure to apply one or another of them may be unreasonable, and hence an abuse of discretion.

8. Justice Steven’s Opinion, Concurring in Part, Dissenting in Part

Justice Steven’s wrote separately, fully agreeing with Parts I and II of the Court’s opinion, wherein it held the general gatekeeping function applies to all expert testimony and that the specific Daubert factors may or may not be applied during a reliability assessment being performed by a trial court. However, Justice Stevens dissented from Part III, wherein the Court analyzed the trial court’s record and ruled that it did not abuse its discretion in excluding Carlson’s testimony. Instead, Justice Stevens believed that such a fact-based analysis should be performed by the Court of Appeals, and wrote that he would have remanded the case back to the Eleventh Circuit for such an abuse of discretion review of the trial court’s decision.

VI. FIFTH CIRCUIT CASELAW SINCE KUMHO TIRE V. CARMICHAEL

The United States Court of Appeals for the Fifth Circuit has issued two opinions concerning the admissibility of expert testimony since the United States Supreme Court’s decision in Kumho Tire Co., Ltd. v. Carmichael. These two cases, Tanner v. Westbrook and Black v. Food Lion are discussed herein.

A. (MARCH 30, 1999) - BLACK V. FOOD LION, INC.

Just seven (7) days following the United States Supreme Court’s decision in Kumho Tire Co., Ltd. v. Carmichael, the Fifth Circuit issued its opinion in Black v. Food Lion, Inc., holding that an expert’s testimony that a customer’s fall in a store caused hormonal damage leading to fibromyalgia was not sufficiently reliable to be admitted under Daubert. The Court’s opinion, written by Judge Edith Jones, observed that "[w]hether Black produced reliable expert evidence that her slip-and-fall injury caused fibromyalgia is the fulcrum of Food Lion’s appeal. We conclude

that she did not. The Supreme Court’s recent decision in Kumho Tire Co. v. Carmichael reinforces our decision."

1. Background Facts

Maxine Black slipped on a mayonnaise jar broken on the floor of a Food Lion Store in Grand Prairie. After falling to the floor, she complained of lower back and arm pain, and dizziness, and sought medical treatment with Dr. James Pollifrone for several months. Dr. Pollifrone was unable to identify any physical basis for Mrs. Black’s continued complaints of pain, and objective pain tests produced normal results. Eight (8) months after her fall, Ms. Black was referred to Dr. May Reyna, who specializes in treating patients with persistent pain, for an evaluation. Dr. Reyna diagnosed a condition known as fibromyalgia syndrome, and attributed the condition to the fall at Food Lion. Dr. Reyna concluded that the fall at Food Lion caused physical trauma to Ms. Black, which caused "hormonal changes," which caused Ms. Black’s fibromyalgia.

The case was tried to a magistrate judge without a jury. Food Lion claimed that Dr. Reyna’s testimony could not "causally link the fall at Food Lion with Ms. Black’s present medical condition with any degree of medical certainty." Despite this defense, the trial court awarded judgment to Ms. Black overruling Food Lion’s Daubert challenge as follows:

Despite the elusiveness which forecloses an absolute determination of causality, the specialists in the field recognize an accepted protocol in rendering an opinion in terms of reasonable medical probability. See Plaintiff’s Exhibit 20, at page 536; Causality. The evidence in this case reflects that Dr. Reyna followed this protocol in reaching her opinion, by ruling out other possible causes for Ms. Black’s fibromyalgia. Specifically, the documentary evidence and the testimony of Dr. Reyna show that Dr. Reyna fully apprised herself of Ms. Black’s prior medical history before the accident, that she determined that no post-accident incident was an intervening cause for the onset of Ms. Black’s fibromyalgia, and that no other factors -- based upon her review of tests performed prior to accepting Ms. Black as a patient, as well as those tests which Dr. Reyna, herself, directed to be made -- contributed to Ms. Black’s fibromyalgia.

2. The Court’s Restrictive Interpretation of Kumho Tire

The Court cited Kumho Tire for its obvious proposition that "Daubert’s principles concerning the reliability-assurance function of Rule 702 apply to technical or specialized expert testimony as well as to scientific expert testimony," and then cautioned as follows:

Kumho Tire refines in a common-sense way, but does not undermine, the use of the specific Daubert factors as a reference point for gauging the reliability of potential expert testimony.... Kumho Tire’s emphasis on the word "may" [apply four reliability factors from Daubert] should not be misunderstood to grant open season on the admission of expert testimony by permitting courts discretionarilly to disavow the Daubert factors. On the contrary, the Supreme Court simply recognized the obvious factors that there are many kinds of experts and expertise, that the Daubert inquiry is always fact-specific, and that the Daubert factors may not all apply even to the admissibility of pure scientific testimony. Kumho Tire also stressed that the Daubert factors may be relevant to the reliability of experienced-based testimony.

3. The District Court’s Daubert New Obligations

Created By the Fifth Circuit In Food Lion

The Fifth Circuit cautioned in Food Lion that "Kumho Tire thus does not require district courts to reinvent the wheel every time expert testimony is offered in court." Instead, it affirmed that the Daubert reliability factors "may be used as a starting-point for analysis in the usual case." In this vein, the Fifth Circuit held that "[i]n the vast majority of cases, the district court first should decide whether the factors mentioned in Daubert are appropriate" and then "[o]nce it considers the Daubert factors, the court then can consider whether other factors, not mentioned in Daubert, are relevant to the case at hand."

First noting that "the magistrate judge’s opinion does not even cite Daubert," the Court holds that the magistrate judge "failed" "objectively to justify the admission of Dr. Reyna’s testimony." The Court held that "[b]ecause the magistrate judge misapplied the Daubert tests and failed to articulate any satisfying alternative standards, we hold that he abused his discretion in admitting Dr. Reyna’s testimony."

The Court concluded that "[t]he magistrate judge should have first applied the Daubert criteria to this case," and "[a]lternatively, if the magistrate judge decided to depart from Daubert, he failed to articulate reasons for adopting the test he used" and "failed to show why an alternate test was necessary to introduce ‘in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.’"

4. The Court’s Reversal of the Trial Court’s Judgment

The Court then reviewed literature concerning fibromyalgia, found that no appropriate studies linked trauma to the condition and concluded that "[o]verall, then, data from the literature are insufficient to indicate whether causal relationships exist between trauma and [fibromyalgia]." The Court observed that Dr. Reyna’s theory had not been tested, either by herself or by others in peer-reviewed literature, and that medical science has determined no known causes of fibromyalgia. Therefore, the court concluded that no testing, no peer-review and no general acceptance existed with respect to Dr. Reyna’s theory, and that her theory of causation had "no known potential rate of error." Because no Daubert factors were satisfied, and no other factors were articulated by the trial judge, the Court reversed the trial court’s judgment.

5. The Process of Elimination Concerning Causation

is Not Sufficient without Some Predicate Knowledge

Existing in the Scientific Community

The Court then reviewed the magistrate judge’s conclusion that Dr. Reyna had followed an accepted protocol by (a) taking a medical history from Black, (b) ruling out prior or subsequent "causes" of fibromyalgia, (c) performing or reviewing physical tests [which all turned up negative], and (d) deducing that the Food Lion

fall was the only possible remaining cause of the fibromyalgia that appeared nine months later. The Court assessed this protocol critically as follows:

This analysis amounts to saying that because Dr. Reyna thought she had eliminated other possible causes of fibromyalgia, even though she does not know the real "cause," it had to be the fall at Food Lion. This is not an exercise in scientific logic but in the fallacy of post-hoc propter-hoc reasoning, which is as unacceptable in science as in law. By the same "logic," Dr. Reyna could have concluded that if Black had gone on a trip to Disney World and been jostled in a ride, that event could have contributed to the onset of fibromyalgia.

In discussing the general medical process of ruling out, step-by-step, other possible causes, the Court affirmed the usefulness of such a process, but only when there is some knowledge as to what factors affirmatively cause the process to occur:

The court’s task was to determine whether Dr. Reyna’s methodology tied the fall at Food Lion by some specific train of medical evidence to Black’s development of fibromyalgia. No one doubts the utility of medical histories in general or the process by which doctors rule out some known causes of disease in order to finalize a diagnosis. But such general rules must, under Daubert, Kumho Tire and Moore be applied fact-specifically in each case. The underlying predicates of any cause-and-effect medical testimony are that medical science understands the physiological process by which a particular disease or syndrome develops and knows what factors cause the process to occur. Based on such predicate knowledge, it may then be possible to fasten legal liability for a person’s disease or injury.... In this case, neither Dr. Reyna nor medical science knows the exact process that results in fibromyalgia or the factors that trigger the process. Absent these critical scientific predicates, for which there is no proof in the record, no scientifically reliable conclusion on causation can be drawn. Dr. Reyna’s use of a general methodology cannot vindicate a conclusion for which there is no underlying medical support.

In conclusion the Court held that "[a]s Dr. Reyna’s was unsupported by a specific methodology that could be relied upon in this case and contradicted the general level of current medical knowledge, the court abused its discretion by admitting that testimony." The Court reversed the case, rendering that Black could take no damages relating to fibromyalgia, and remanding the case for a calculation of

damages and medical expenses incurred for the treatment of her direct physical injuries caused by her fall at Food Lion.

B. (APRIL 27, 1999) - TANNER V. WESTBROOK

On April 27, 1999, the Fifth Circuit released its opinion in Tanner v. Westbrook, a case brought by the family of a little girl, Jennifer Tanner, alleged to have cerebral palsy caused by medical malpractice occurring at her birth by an obstetrician, Dr. Wade Westbrook, and others, at Baptist Memorial Hospital ("BMH") in DeSoto, Mississippi. The jury returned a verdict in favor of the Plaintiffs for $3,200,000.00. The Fifth Circuit vacated the trial court’s judgment, and remanded the case for a new trial due to the erroneous admission of expert testimony at trial.

1. The Discussion Regarding the Standard of Review

Before detailing the specific reasons for its reversal, the Fifth Circuit outlined the standard of review as being one of an abuse of discretion review of the decision to admit the evidence, and a subsequent application of the harmless error doctrine to determine if reversal is required. However, the Court then reduced its practical test for whether an abuse of discretion occurred to one similar to Alice in Wonderland’s pronouncement: "It is because I say it is" by concluding as follows: "In determining whether district courts have abused their discretion in admitting or excluding expert testimony, we ask whether the expert testimony meets or fails to meet the Daubert standard of admissibility."

2. The Trial Court Has Wide Latitude to Decide How and When

to Conduct Proceedings to Determine Reliability

Prior to trial, BMH filed a Daubert motion under Federal Rule of Evidence 104, asking for a pretrial hearing and an order excluding testimony by the plaintiffs’ experts, Dr. St. Amant and Dr. Nestrud, on the issue of causation. The trial court deferred the issue until trial, BMH properly objected to the testimony at trial and thereby preserved the issue for appeal, The Fifth Circuit held that by overruling BMH’s objection to Dr. Nestrud’s opinion concerning causation at trial, the trial court "effectively conducted a Daubert inquiry, presumably basing its conclusion on the arguments and scientific literature submitted in regard to the pretrial motion for an FRE 104 hearing" and that "[o]n the basis of these materials, the district court concluded that the expert testimony was relevant and reliable, and it admitted Dr. Nestrud’s expert testimony."

Thus, in the trial court proceedings, the court deferred the Daubert issue until the expert testified at trial. When an objection was made to his testimony under Daubert, it was simply overruled. The Fifth Circuit cited Kumho Tire for the proposition that an appellate court should have granted the trial court "the same kind of latitude in deciding how to test an expert’s reliability, and to decide whether and when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether or not that expert’s relevant testimony is reliable." In essence, the Fifth Circuit approved, or at the very least tolerated the fact that the trial court chose not conduct a separate Daubert hearing before the trial. However, the Court indicated that the Plaintiff is placed in peril because the Court is then constrained to analyzing the record presented to the trial court at the time the determination was made to admit the evidence, and hinted that a more developed record would have been helpful.

3. The Rejection of Plaintiffs’ Expert Was Based Only

on the Limited Record Before the Court

The Plaintiffs’ expert testified that birth asphyxia is a cause of cerebral palsy, and that Jennifer Tanner suffered from birth asphyxia. He concluded that "through proper treatment of this condition [birth asphyxia], Jennifer’s cerebral palsy could have been avoided." BMH countered that the cerebral-palsy causing incident occurred some time before her birth through an insult during labor, which caused her birth asphyxia; however, it contended that its treatment of her birth asphyxia was not the cause of her cerebral palsy. BMH provided medical literature stating that birth asphyxia rarely causes cerebral palsy, and that a large percentage of cerebral palsy cases remain unexplained. Studies it provided concluded that in the small number of cases where birth asphyxia was found to have caused cerebral palsy, major organ damage also resulted. It was agreed that Jennifer Tanner had not suffered major organ damage. The Plaintiffs provided no literature supporting the opinion that birth asphyxia has caused cerebral palsy in cases with no organ damage. Further, the Plaintiff’s expert confirmed that to rule out other causes of cerebral palsy, a physical exam of the patient would be necessary; however, the expert had not performed such an exam, nor "reviewed the results of such an exam when he testified at his deposition."

4. The Court Rejected the Expert’s Opinions Based on a Lack of Fit

Between the Specific Issue at Hand and the Experience of, and Literature Relied Upon, By The Expert

The basic holding of the Court is that the Plaintiffs’ expert, while qualified on the standard of care, lacked a background specific to the issue of what causes cerebral palsy, and that the literature he relied upon did not specifically support the expert’s position on the specific issue at hand. The Court so held with the following analysis:

The trial judge could have correctly concluded, based on the FRE 104 motion materials, that Dr. Nestrud had sufficient expertise, based on his experience and training, to testify about the standard of care to be given to a baby suffering from asphyxia. His ability to testify reliably about the cause of Jennifer’s cerebral palsy, however, hinges on the validity of his opinion linking the post-birth asphyxia to Jennifer Tanner’s cerebral palsy -- specifically the depth of his knowledge of a complicated, specialized medical subject matter. He has no background in studying the causes of cerebral palsy. He bases his opinion on causation in part upon articles which state that asphyxia causes cerebral palsy. This fact is not disputed. What is in dispute is whether it is more likely than not that a baby with Jennifer Tanner’s symptoms developed cerebral palsy as a result of the hospital’s negligent treatment of her birth asphyxia. "[T]he question before the trial court was specific, not general. The trial court had to decide whether this particular expert had sufficient specialized knowledge to assist the jurors in deciding the particular issues in this case." Kumho Tire, ___ U.S. at ___, 119 S.Ct. 1167, ___ L.Ed.2d ___, 1999 WL 152455, at *13 (internal quotation marks and citations omitted). Based on the materials before the trial judge, Dr. Nestrud did not have the kind of specialized knowledge required to testify regarding causation, nor did he rely upon medical literature directly addressing the causation issue in this case. This deficiency rendered his expert testimony as to a critical issue in the case - causation - unreliable. Thus, admitting the testimony, based on the materials submitted in support of its validity, was an abuse of discretion.

Because the testimony related to a critical issue, the court applied the harmless error rule, and found the error was harmful, thereby vacating the judgment and remanding the case for a new trial.

VII. TEN (10) BASIC PRINCIPLES TO REMEMBER ABOUT

THE ADMISSIBILITY OF EXPERT TESTIMONY

The opinions in Kelly, Daubert, Robinson and Havner have changed the law in Texas governing the admissibility of expert testimony, and whether such testimony will constitute legally sufficient evidence to support a jury verdict. After researching Daubert and its progeny in cases across this country, the author has developed ten (10) basic principles to remember about the admissibility of expert testimony:

1. A Presumption Exists in Favor of Admitting this Evidence

The first principle to remember is that a presumption exists in favor of admitting relevant expert testimony which is of assistance to the trier of fact.

The rules of evidence make relevant evidence presumptively admissible. Rule 402 of both the Federal Rules of Evidence and the Texas Rules of Civil Evidence, providing: "All relevant evidence is admissible." The U.S. Supreme Court noted in Daubert that "[t]he Rule’s basic standard of relevance thus is a liberal one." In Daubert, the Court held that Frye is inconsistent with the "liberal thrust" of the Federal Rules of Evidence and that the "general approach of relaxing traditional barriers to opinion testimony."

The Supreme Court in Daubert acknowledged the inclusionary role of Federal Rule of Evidence 702 as the basis for its holding. The progeny of Daubert have thus held that Daubert relaxed the standard for admissibility of expert testimony.

2. Jurors Are Still Supposed to be the Trier of Fact,

Not So-Called "Gatekeeper" Judges

The second principle to remember is that a despite the so-called "gate-keeper" role referenced by Justice Blackmun in Daubert, the jurors are still supposed to be the trier of fact, not the so-called "gatekeeper" judges.

In Daubert,the Court noted:

Respondent expresses apprehension that abandonment of "general acceptance" as the exclusive requirement for admission will result in a "free-for-all" in which befuddled juries are confounded by absurd and irrational pseudoscientific assertions. In this regard respondent seems to use to be overly pessimistic about the capabilities of the jury, and of the adversary system generally. Vigorous cross-examination, presentation of contrary evidence, and careful instructions on burden of proof are the traditional means of attacking "shaky but admissible evidence."

The Court later concludes that "[t]hese conventional devices rather than wholesale exclusion should be used as appropriate safeguards where the basis of scientific testimony meets the standards of Rule 702."

The concept that Daubert was not intended to substitute the judge into the traditional role of the jury. This is confirmed by numerous decisions of the lower courts. Additionally, legal scholars have recognized that "an incorrect interpretation of the Daubert decision would place the judiciary in the unfortunate position of having to become experts in every field of endeavor, a task judges are poorly equipped to perform."

Additionally, the Seventh Amendment contains a right to trial by jury. Thus, Tex.R.Civ.P. 226A, provides that jurors "are the sole judges of the credibility of the witnesses and the weight to be given to their testimony."

These concepts should be kept in mind when arguing the applicability of Daubert to the admissibility of expert testimony.

3. The Decision Whether to Admit Expert Testimony

is Within the Trial Court’s Discretion

Almost universally, the courts of this nation have held that a trial court’s decision whether to admit expert testimony is within its discretion. This is true both in cases decided in the Texas state courts, as well as in federal courts.

(a) Texas Cases

In Texas, "[t]he qualification of a witness as an expert is within the trial court’s discretion." "Whether a witness is qualified to offer expert testimony is a matter committed to the trial court’s discretion." "The decision of whether to admit evidence rests within the discretion of the trial court."

(b) Federal Cases

The federal courts also almost uniformly hold that the decision of whether to admit trial court testimony is within the trial court’s discretion, and is reviewable with an "abuse of discretion" or a "clear error" standard. For example, in Salem v. United States Steel Lines Co., the United States Supreme Court held that "the trial judge has broad discretion in the matter of the admission or exclusion of expert evidence, and his action is to be sustained unless manifestly erroneous." This standard has been applied by the lower circuit courts as well.

4. "Fit" - The Testimony Must Relate to the Matter at Issue

In Daubert v. Merrill Dow Pharmaceuticals, after quoting United States v. Downing for the proposition that "[a]n additional consideration under Rule 702 - and another aspect of relevancy - is whether expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute," the Court noted that this "consideration has aptly been described...as one of ‘fit,’" and observed that "Rule 702’s ‘helpfulness’ standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility."

The notion of "fit" has recently been applied by the Supreme Court of Texas in Broders v. Heise, wherein the Court held that "the proponent of the testimony has the burden to show that the expert "possess[es] special knowledge as to the very matter on which he proposes to give an opinion," yet noted that "[o]ur holding does not mean that only a neurosurgeon can testify about the cause in fact of death from an injury to the brain, or even that an emergency room physician could never so testify. What is required is that the offering party establish that the expert has "knowledge, skill, experience, training or education" regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject."

(a) The Expert’s Specialized Knowledge

Must Relate to the Topic at Issue

The federal courts writing on this issue generally indicate that the expert’s specialized knowledge must relate to the topic at issue.

In Ambrosini v. Labarraque, the United States Court of Appeals for the District of Columbia noted that "once an expert has explained his or her methodology, and has withstood cross- examination or evidence suggesting that the methodology is not derived from the scientific method, so long as it ‘fits’ an issue in the case, is admissible under Rule 702 for the trier of fact to weigh." In Sorensen v. Robert B. Miller & Associates, the Sixth Circuit noted that the appropriate standard for the admissibility of a technical expert’s testimony is based on the expert’s "first hand familiarity" with the subject of the testimony. In Chistophersen v. Allied-Signal Corporation, the Fifth Circuit held that "[t]he questions...do not stop if the expert has an M.D. degree. That alone is not enough to qualify him to give an opinion on every conceivable medical question." In In Re: Paoli R.R. Yard PCB Litigation, the Court likewise applied the "fit" analysis.

United States district courts similarly have held that an expert’s specialized knowledge must relate to the topic at issue.

(b) The Concept of "Fit" Does Not Require Experience

in the Defendant’s Industry

The notion of "fit" should not be confused to require that an expert have actually participated in the design of the product at issue, or like products, before that expert is qualified to render design opinions in the case. The trial court in Lappe v. American Honda Motor Co. adeptly explained the reason for this:

"When an expert has the education or background to permit him to analyze a given set of circumstances, he can through reading, calculations, and reasoning from known scientific principles make himself very much an expert in the particular product even though he had not had actual experience in its manufacture."

Likewise, a rule that one must have experience in the industry being sued would effectively permit an industry to immunize itself by keeping its former employees from testifying on behalf of Plaintiffs. As the Third Circuit noted in Knight v. Otis Elevator Co.,

"[i]f we were to declare as a rule of law that one must actually have practical experience in a given industry in order to qualify as an expert in litigation involving its products, we might very well place an onerous burden on plaintiffs in some cases. Where the industry is small and tightly knit, it may be very difficult for the plaintiff to obtain the services of an expert currently

employed therein, and it might be equally difficult to find someone who was formerly employed in the industry..."

5. An Expert’s "Pedigree" By Itself is Irrelevant to Admission

State courts in Texas, as well as federal courts, do not hold that the fact that an expert does not have a certification or specialty in a particular field will result in an exclusion of that expert’s ability render opinions concerning that field.

(a) Texas Cases

The above principle has been stated in several Texas state court cases. Most prominently, the Supreme Court of Texas, while requiring specific particularized knowledge to meet the concept of fit, cautioned in Broders v. Heise that "[o]ur holding does not mean that only a neurosurgeon can testify about the cause in fact of death from an injury to the brain, or even that an emergency room physician could never so testify." Similarly, in America West Airlines, Inc. v. Tope, the

El Paso Court of Appeals made the following appropriate observations regarding the proffered testimony of a social worker treating traumatic stress disorder:

"There are no definitive guidelines to determine whether a witness’ education, experience, skill, or training qualifies that person as an expert." Id., at 918, citing Longoria v. United Blood Services, 907 S.W.2d 605, 613 (Tex.App. - Corpus Christi 1995), rev’d, 938 S.W.2d 29, 30 (Tex. 1997).... That Ms. Simpson did not possess an M.D. or Ph.D., therefore, should not have prevented her testimony if she was otherwise qualified, and we find that she was amply so. She possessed two graduate degrees, was licensed to practice clinical psychology in New Mexico and Texas, belonged to numerous professional societies, and had been engaged in her profession for almost two decades.".... Clinical social workers have been specifically recognized as entitled to the same psychotherapist-patient privilege that is afforded psychiatrists and psychologists, as "drawing a distinction between the counseling provided by costly psychotherapists and the counseling provided by more readily accessible social workers serves no discernible purpose." Jaffe v. Redmond, 518 U.S. ___, ___-___, 116 S.Ct. 1923, 1931-32, 135 L.Ed.2d 337, 348-50 (1996). We believe this rationale applies equally in assessing the qualifications of a clinical social worker to give expert testimony, and the challenge to Ms. Gibson’s qualifications was specious.

The above concept has been applied in Texas courts of appeals in the medical causation and physical therapy concepts as well to allow non-physicians to testify concerning medical matters.

(b) Federal Cases

The above principle has been stated in many federal court cases, yet most significantly by the Sixth Circuit in Berry v. City of Detroit, with the following language that has been quoted from by the United States Supreme Court in Kumho Tire:

The distinction between scientific and non-scientific expert testimony is a critical one. By way of illustration, if one wanted to explain to a jury how a bumblebee is able to fly, an aeronautical engineer might be a helpful witness. Since flight principles have some universality, the expert could apply general principles to the case of a bumblebee. Conceivably, even if he had never seen a bumblebee, he would still be qualified to testify, as long as he was familiar with its component parts.... On the other hand, if one wanted to prove that bumblebees always take off into the wind, a beekeeper with no scientific training at all would be an acceptable witness if a proper foundation were laid for its conclusions. The foundation would not relate to his formal training, but to his firsthand observations. In other words, the beekeeper does not know any more about flight principles than the jurors, but he has seen a lot more bumblebees than they have.

It is clear that engineering experience in the particular industry of which the defendant manufacturer is a party is not per se a requirement for admissibility of an expert opinion. In DaSilva v. American Brands, Inc., the First Court found a mechanical engineer with twenty-three years of engineering experience and "extensive experience evaluating and recommending safety devices for machines" qualified to testify regarding safety design for industrial mixer. In Hammond v. International Harvester Co., the Third Circuit ruled that an engineer whose only qualification was sales experience in the field of automotive and agricultural equipment permitted to testify in products liability action involving tractors. In Lavespere v. Niagara Mach. & Tool Works, Inc., the Fifth Circuit held that an engineer experienced in designing devices similar to a brake press qualified to testify on safety of brake press. In Dixon v. International Harvester Co., the Fifth Circuit likewise permitted a design engineer to testify on safety of crawler tractor despite lack of experience approving crawler tractor designs. In Circle J Dairy, Inc. v. A.O. Smith Harvestore Products, Inc., the Eighth Circuit held that a witness who was not a veterinarian or who held no advanced degrees could testify as to cattle’s injuries if he had "significant practical experience with feed related health problems in dairy cattle." In Thomas v. Newton Int’l Enters., a negligence action by an injured longshore worker against the owner of a vessel, the Ninth Circuit permitted expert testimony from a person with 29 years’ experience as a longshore worker, noting that "[the expert’s] declaration stated that he had 29 years of longshore experience, and that he had worked in a variety of job categories for numerous stevedoring companies. Clearly, this lays at least the minimal foundation of knowledge, skill, and experience required in order to give "expert" testimony as to the working conditions of experienced longshore personnel." In United States v. Markum, the Tenth Circuit observed as follows in permitting a fireman to testify concerning the cause and origin of a fire:

The very fact that fire departments have specialized arson investigation units argues that arson is an area of technical and specialized knowledge beyond the ken of the average juror....Experience alone can qualify a witness to give expert testimony... Chief Pearson worked as a firefighter and Fire Chief for 29 years. In addition to observing and extinguishing fires, throughout that period, he attended arson schools and received arson investigation training. The trial court found that Chief Pearson possessed the experience and training necessary to testify as an expert on the issue whether the second fire was a natural rekindling of the first fire or was deliberately set. That finding was not clearly erroneous.

Likewise, in Compton v. Suburu of America, Inc., the Tenth Circuit permitted a mechanical engineer to give design opinions on roof structure despite his lack of experience in designing roofs for automobiles, noting: "As long as an expert stays ‘within the reasonable confines of his subject area,’ our case law established a lack of specialization does not affect the admissibility of [the expert] opinion, but only its weight." Other Tenth Circuit cases support the proposition that particularized experience in the defendant’s industry is not required for a Plaintiff’s expert to testify.

Various United States district courts have similarly held. In Lappe v. American Honda Motor Co., the Court observed as follows:

Defendants argue that the development of feasible alternative automotive designs (allegedly required for this litigation) is a task reserved for a true automotive engineer. Since plaintiff’s expert is not an automotive engineer by trade, defendants argue that he lacks expertise in automobile design, and is therefore unqualified to testify in this litigation under Fed.R.Evid. 702.".... In a product liability action, an expert witness is not strictly confined to his area of practice, but may testify concerning related applications; a lack of specialization affects the weight of the opinion, not its admissibility. Quinton v. Farmland Industries, Inc., 928 F.2d 335, 336 (10th Cir. 1991). Where an expert has the education or background to permit him to analyze a given set of circumstances, ‘he can through reading, calculations, and reasoning from known scientific principles make himself very much an expert in the particular product even though he has not had actual expertise in its

manufacture.’ United States v. Viglia, 549 F.2d 335 (5th Cir. 1977), cert. denied, 434 U.S. 834, 98 S.Ct. 121, 54 L.Ed.2d 95 (1977).

Finally, in his treatise on Evidence, Professor Charles McCormick wrote that "[w]hile the court may rule that a certain subject of inquiry requires that a member of a given profession, such as a doctor, an engineer, or a chemist, be called, usually a specialist in a particular branch within the profession will not be required."

6. The Daubert General Observations are Not Strict Requirements, Rather They Should Be Used as Part of "A Flexible Inquiry"

In Daubert, the Court emphasized that the inquiry is a "flexible one," and that none of the factors discussed is necessarily applicable in every case or dispositive; nor are the four factors exhaustive. The Court noted that it was not setting forth a "definitive checklist." By way of example, one Court noted that some expert subjects are not subject to publication. Further, the Supreme Court of Texas similarly noted in Gammill that some of the Daubert factors (including rate of error) did not fit the mechanical engineering testimony being offered as a result of a visual inspection of a seat belt.

7. The Reliability Inquiry Relates only to the Methodology Employed,

Not to the Conclusions

The United States Supreme Court in Daubert envisions a flexible inquiry, with "[t]he focus, of course, must be solely on solely on principles and methodology, not on the conclusions they generate." Additionally, that the reliability inquiry

should focus not on conclusions, but rather solely on the methodology employed, is affirmed by numerous decisions of the federal circuit courts of appeals.

8. Good Qualifications is Circumstantial Evidence

of Use of Valid Methodology

Several courts have held that an expert’s good qualifications constitute circumstantial evidence that he or she has used a scientifically valid methodology. For example, in Ambrosini v. Labarracque, the Court used an expert’s qualifications as circumstantial evidence that she has used a scientifically valid methodology:

While such evidence usually goes to whether an expert has sufficient qualifications to testify, several circuits have treated it as circumstantial evidence as to whether the expert employed a scientifically valid methodology or mode of reasoning. See Joiner, 78 F.3d at 532 (11th Cir.); Hopkins, 33 F.3d at 1125 (9th Cir.); United States v. Downing, 753 F.2d 1224, 1239 (3d Cir. 1985).

9. Although Carmichael Allows Them to Be Used in All Cases, Courts have Largely Limited the Daubert/Robinson’s Reliability Factors to the Evaluation of Scientific Testimony, and Have Not Applied Them To "Technical or Other Specialized Knowledge" Testimony

Daubert’s progeny consists of numerous cases. The vast majority of courts addressing the issue have held that the Daubert Section II(C) "general observations" or factors [(1) testability, (2) publication and peer review, (3) potential rate of error, and (4) general acceptance, do not apply to experts offering opinions based on technical or other specialized knowledge. In Daubert, the Court explicitly dropped footnote 8, and noted that "Rule 702 also applies to ‘technical, or other specialized

knowledge.’ Our discussion is limited to the scientific context because that is the nature of the expertise offered here."

In light of the new holding in Carmichael, the author has performed a nationwide review of cases addressing this issue. The vast majority of reasoned decisions (issued prior to Kumho Tire) indicate that Daubert’s Section II(C) factors have been limited to cases of expert scientific testimony.

(a) Federal Cases

This section of the paper first addresses various decisions of the United States courts of appeals. It then reviews a number of United States district court opinions on the subject. It then reviews various cases handed down by other states’ courts. Finally, it briefly cites some of the legal commentaries writing on the subject.

(1) United States Court of Appeals cases

The vast majority of the United States Courts of Appeals have held that Daubert’s Section II(C) "general observations" do not apply to cases where an expert’s opinion is based on "technical, or other specialized knowledge."

a. Limited to expert scientific testimony

Many decisions of the United States Courts of Appeals indicate that Daubert’s Section II(C) "general observations" do not have to apply to cases where an expert’s opinion is based on "technical, or other specialized knowledge." In Abrosini v. Labarracque, the First Circuit observed that "[r]ecognition of the limited nature of the Daubert inquiry is implicit in Joy and similarly reflected in other circuits’ post-Daubert decisions." In Bogosian v. Mercedes-Benz of North America, Inc., a products liability case against manufacturer of automobile, the Court observed that "Bogosian contends that the Court ...wrongly characterized the subject of Davidson’s testimony as ‘scientific’ rather than ‘technical,’ and thus, Daubert was inapplicable...the district court may have inartfully cited Daubert in making its ruling..." In Valada v. Teledyne Indus., an aircraft products liability case, the Court observed that "Daubert’s holding - that a scientific principle may sometimes be the basis for expert testimony even if it is not ‘generally accepted’ - has nothing to do with this case, in which the dispute concerns an event rather than a scientific law."

In Iacobelli Construction, Inc. v. County of Monroe, the Second Circuit held that Daubert does not apply to a geotechnical consultant or underground consultant in a construction litigation case, and reversed a summary judgment entered on basis of excluding experts with Daubert.. In so doing, the Court observed as follows:

In deciding the motion [for summary judgment], however, the district court completely disregarded the affidavits of Iacobelli’s experts, Ronald Heuer and Paul Eller... Relying on Daubert v. Merrell Dow Pharmaceuticals..., the district court disqualified the two affidavits from consideration... We believe the district court erred in its rejection of the affidavits of Heuer and Eller. Its reliance on Daubert was misplaced. Daubert sought to clarify the standard for evaluating ‘scientific knowledge’ for purposes of admission under Fed.R.Evid. 702... The affidavits of Heuer and Eller do not present the kind of ‘junk science’ problem that Daubert meant to address. See Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 53 (2d Cir. 1993) (Daubert "specifically dealt with the admissibility of scientific evidence"). Rather, they rely upon the type of methodology and date typically used and accepted in construction-litigation cases.

Similarly, in Tamarin v. Adam Caterers, Inc., the Second Circuit held an accountant’s affidavit summarizing his review of payroll records not inadmissible under Daubert because "that case specifically dealt with the admissibility of scientific evidence."

In Freeman v. Case Corporation, a lawn mower defect case, where Plaintiffs’ experts’ credentials as a mechanical engineer were not contested, the Fourth Circuit observed as follows:

The district court refused to hold Reed’s testimony inadmissible under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), reasoning that Daubert only applied to scientific testimony and not technical testimony, like Reed’s.... In cases like this one, where an expert relies on his experience and training and not a particular methodology to reach his conclusions, "application of the Daubert [analysis] is unwarranted." Compton v. Suburu of America, Inc., 82 F.3d 1513, 1518 (10th Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 611, 136 L.Ed.2d 536 (1996); see also United States v. Jones, 107 F.3d 1147, 1158 (6th Cir. 1997) (holding Daubert inapplicable to testimony based on experience or training); United States v. 14.38 Acres of Land, More or Less Situated in Leflore County, 80 F.3d 1074, 1078-79 (5th Cir. 1996) (same); Iacobelli Constr., Inc. v. d of Monroe, 32 F.3d 19, 25 (2d Cir. 1994) (same). Thus, we affirm the district court’s rejection of the Daubert challenge to Reed’s testimony..."

Similarly, the Fourth Circuit stated in Benedi v. McNeil-P.P.C., Inc., that Daubert interpreted "the admissibility of expert scientific evidence."

In United States v. 14.38 Acres of Land, the Fifth Circuit reversed a trial court’s exclusion of expert opinions concerning an imminent domain decrease in property value, noting that "Daubert expressly limited its discussion to the admissibility of scientific expert testimony."

In United States v. Jones, a case regarding the proffered expert is a forensic document analyst for the United States Postal Service, the Sixth Circuit, in allowing testimony of a handwriting expert without using methodology test of Daubert the Court recognized that gatekeeper requirements of relevance and reliability imposed by Rule 702 apply to all expert evidence, while emphasizing that the Part II-C Daubert factors were limited to scientific evidence:

The Court stated that "Daubert provides a ‘flexible’ framework to aid district courts in determining whether expert scientific testimony is reliable. If that framework were to be extended to outside the scientific realm, many types of relevant and reliable expert testimony - that derived substantially from practical experience - would be excluded. Such a result truly would turn Daubert, a case intended to relax the admissibility requirements for expert scientific evidence, on its head."

In Roback v. V.I.P. Transportation, Inc., a third party claim of design defect where the issue was the reliability of testimony of engineer William Rosenbluth, the Seventh Circuit observed that "[t]he Court found Rosenbluth’s testimony sufficiently "scientific" to satisfy the dictates of Rule 702 and Daubert, noting that "[h]is data were subject to examination and independent verification." Id., at 1215. The Court did not apply the four (4) Daubert factors." Id. Likewise, in United States v. Sinclair, the Seventh Circuit held that "Daubert does not create a special analysis for answering questions about the admissibility of all expert testimony. Instead, it provides a method for evaluating the reliability of witnesses who claim scientific expertise."

In McKendall v. Crown Control Corp., a furniture store employee Donovan McKendall sued Crown Control Corporation after his back and legs were injured by a sofa that slid from the cargo area of one of the company’s forklifts onto the platform where he was operating machinery. The plaintiff offered expert testimony by an experienced mechanical engineer, Professor Martin Siegal, who had worked in product design, development and safety for about fifty (50) years, to support his claim that a forklift was defectively designed. The trial court, applying the Daubert factors, excluded the testimony as unreliable. The Ninth Circuit reversed. Citing Compton, the Ninth Circuit said the lower Court had erred in applying the Daubert factors - relevant only to testimony bearing on scientific knowledge - to the expert’s testimony, which was based on his experience investigating hundreds of forklift cases. Repeatedly, the Ninth Circuit clarified that Daubert applies only to scientific evidence.

In Compton v. Suburu of America, Inc., the Tenth Circuit rendered an opinion that held the Daubert reliability factors did not apply to a design engineer’s expert testimony in a product liability case. Steven Compton was rendered a quadriplegic in a rollover accident, and brought suit against Suburu and Fuji Heavy Industries, alleging design defects in the Suburu station wagon in which he was a passenger. At trial, Suburu and Fuji objected to the proposed testimony of Compton’s automotive design expert, arguing that this mechanical engineer’s background and experience did not qualify him as an expert on the design of automotive roofs. The trial court held a Rule 104(a) hearing, and concluded that Compton’s expert was qualified. The jury returned a verdict in Compton’s favor. On appeal, Suburu argued the plaintiff’s design expert could not meet the Daubert factors for reliability. On appeal, the Tenth circuit framed the issue as follows:

Suburu and Fuji argue Mr. Bihlmeyer’s testimony should have been excluded because it lacked evidentiary reliability and was not grounded in any particular reasoning or methodology. They contend Mr. Bihlmeyer’s testimony was nothing more than his personal opinion the hood of the accident vehicle was not sufficiently resistant to crush.... Accordingly, because there was no peer review, no testing, and no evidence of general acceptance of Mr. Bihlmeyer’s theory, Suburu and Fuji argue Mr. Bihlmeyer’s testimony should have been excluded under Daubert. In response, Mr. Compton contends Daubert is inapplicable to Mr. Bihlmeyer’s non-scientific testimony."

The Court then made the following holding concerning the Daubert factors in the contect of a mechanical engineering expert:

In Daubert, the Court considered the admissibility of novel scientific evidence.... The language in Daubert makes clear the factors outlined by the Court are applicable only when a proffered expert relies on some principles or methodology. In other words, application of the Daubert factors is unwarranted in cases where expert testimony is based solely on experience or training.... In sum, we do not believe Daubert completely changes our traditional analysis under Rule 702. Instead, Daubert sets out additional factors the trial court should consider under Rule 702 if an expert witness offers testimony based upon a particular methodology or technique.... The Tenth Circuit applied the traditional Rule 702 analysis, and determined the testimony was relevant and reliable. The Court noted: "it is unnecessary to reach the question of whether Daubert mandates a further inquiry into Mr. Bihlmeyer’s ‘scientific, technical, or other specialized knowledge’ under Rule 702 because we find his testimony was not based on any particular methodology or technique. Rather, Mr. Bihlmeyer reached his expert conclusions by drawing upon general engineering principles and his twenty-two years of experience as an automotive engineer. Absent some particular methodology or technique, Daubert simply has little bearing on Mr. Bihlmeyer’s testimony."

The Tenth Circuit has repeatedly permitted the use of expert testimony in areas not relating to hard science without employing the four (4) Daubert reliability factors.

b. not limited to expert scientific testimony

Several opinions of United States Courts of Appeals seemingly have applied the Section II-C "general observations" to expert testimony which is not scientific in nature. In Smelser v. Norfolk Southern Ry. Co., the Sixth Circuit appears to have erroneously extended Daubert to the opinions of a biomechanical engineer who proffered opinions based on both "litigation testing" and scientific knowledge. The case may be distinguished by showing the bias of the litigation tests. In Cummins v. Lyle Industries, 93 F.3d 362 (7th Cir. 1996) the Seventh Circuit applied some, but not all of the Daubert factors. The Court upheld the exclusion of an expert engineer’s testimony about the alleged defective design of an industrial trim press by applying some of the Part II-C factors. The Court specifically recognized, however, that in the non-scientific context, some of the factors would not apply. The judgment of the Seventh Circuit upheld a district court ruling excluding the testimony of a mechanical engineer concerning the existence of a safer alternative design that could have been used in the manufacture of a mechanical saw. The Court upheld the exclusion of the engineer’s testimony because he had not personally tested the existing alternative design nor reared any studies of specific tests. In Peitzmeier v. Hennessy Industries, Inc., a product liability case involving a claim that a tire changing machine was defectively designed, the Court rejected the argument that Daubert applies only to novel scientific evidence and is therefore inapplicable to opinions founded on basic engineering principles. The Court examined the proffered testimony under each of the Part II-C factors and determined it did not meet the test. Likewise, in Pestel v. Vermeer Manufacturing Co., the Eighth Circuit used a similar analysis, applying the Daubert II-C factors to engineering testimony).

(2) United States district court cases

The vast majority of the United States District Courts have chosen not to apply Daubert’s Section II(C) "general observations" to cases where an expert’s opinion is based on "technical, or other specialized knowledge."

a. limited to expert scientific testimony

United States district courts deciding the issue oftentimes have chosen to restrict the applicability of the Daubert reliability factors to expert scientific testimony. For example, in Thornton v. Caterpillar, Inc., the defendant filed a motion to exclude plaintiffs’ expert, Melvin K. Richardson, Ph.D, and the Court held that "Daubert does not apply to non-scientific expert evidence: "This Court declines to apply the Daubert test to this area of expertise... Daubert is not applicable, nor was it intended to apply, to experts testifying in the field of technical or other specialized knowledge. Engineers can be classified as possessing either technical or other specialized knowledge but by definition they can never be legitimately classified as scientists." The Court further held as follows:

In interpreting the Daubert factors, confusion is rampant. Part of the confusion stems from a common misconception that the Daubert decision applies to all three categories of expert testimony, rather than expert scientific testimony only.... Based on the facts before the Court in Daubert, I conclude that Daubert should apply only to novel scientific testimony.... The Daubert test cannot, and was not intended to, apply to expert testimony that is technical in nature, or to expert testimony that covers specialized knowledge.... The rules set forth in Daubert simply are not applicable to ‘technical or other specialized knowledge.’ And the Court so stated." Fed.R.Evid. 702 is still viable and the principles enunciated in Daubert should be narrowly limited to controversial and novel scientific evidence. Daubert has no other application for use in the expert field of engineering, as well as in the fields of general medical issues, real estate or other types of technical subjects or those requiring specialized knowledge.... Auto mechanics, engineers, accountants, attorneys, DEA agents, IRS agents, real estate appraisers, and the like who have technical qualifications cannot logically come within the ambit of Daubert. Nor do persons with ‘other specialized knowledge.’.... To apply Daubert factors to technical and specialized knowledge experts clearly miss the mark."

Likewise, in Liriano v. Hobart Corp., a plaintiff lost his right hand and much of his right forearm in a meat grinder at a Super Associated Market. The plaintiff sued the manufacturer, asserting claims of strict liability for design defect and failure to warn. The manufacturer challenged the verdict, arguing that the plaintiff’s case rested on expert testimony that should not have been admitted under Daubert because the witness did not perform any testing. The Court held that Daubert does not apply to testimony based solely on an expert’s personal experience or training, and accordingly, refused to set aside an $891,000 verdict against the commercial meat grinder manufacturer, Hobart Corporation. The Court rejected defense arguments that plaintiff’s engineer should not have been permitted to testify, based on his 40 years of experience as an engineer and a safety consultant, that it was foreseeable that users of Hobart’s model 4046 commercial meat grinder would remove the guard, and that the grinder was defective because it lacked adequate warnings. The Court cited Compton v. Suburu of America, and stated that the proper understanding of the Daubert analysis applies to cases involving "unique, untested, or controversial methodologies or techniques." Further, the United States District Court for the Southern District of New York noted as follows:

It is not appropriate to invoke the Daubert test in cases where expert testimony is based solely on experience or training, as opposed the methodology or technique. Indeed, it would be impossible to do so.... Expert opinion based on personal experience cannot always be evaluated on the basis of ‘rate of error,’ ‘peer review’ or ‘general acceptance’ in the relevant scientific community.... Where a witness’ opinion is not the product of scientific methodology or systematic analysis, but rather a conclusion based on years of accumulated learning and insight, ... reliability should be assessed without resort to the Daubert factors. Daubert may not be talismanically invoked against the use of all untested expert opinions, as defendants attempt." Id., at 178 & n. 4. The Court then held that the opinion testimony was "helpful" under Federal Rule of Evidence 702, and therefore admissible because there was a "close fit" between the expert’s testimony and the material facts in dispute.

In Tassin v. Sears, Roebuck & Co., a products case alleging that the injury to plaintiff’s hand was caused by a table saw, the Court observed that "[t]he Court in Daubert specifically stated that its discussion was limited ‘to the scientific context" and that "[w]hen an expert’s opinion is based on facts of the case, a reasonable investigation, and traditional technical/mechanical expertise... rigid compliance with Daubert is unwarranted."

In Freeman v. Case Corporation, a products liability case arising from injury occurring in a tractor accident, the issue before the Court was the expert testimony of Smith Reed, a mechanical engineer, offering testimony on defect. The Court concluded that cases that "apply Daubert to testimony the scientific nature of which is doubtful" are "misguided," and noted that in Daubert,

the Court explicitly stated that its holding was addressed to the context of scientific evidence.... That Daubert is limited to a scientific context has been widely recognized.... The Court must conclude that cases applying Daubert to merely technical testimony are aberrational. In any event, unless and until it is compelled by binding precedent to extend Daubert to a nonscientific context such as the examination of a tractor by a mechanical engineer, this Court shall decline to do so."

In Strickland v. Royal Lubricant Co., Inc., a products liability case arising from plaintiff being sprayed in the face with a hydraulic fluid manufactured by the defendant, the Court found that the systems safety analysis techniques used by Plaintiffs’ warnings expert were "well recognized methodology" sufficient to meet the dictates of Daubert - yet the Court did not apply the Section II(C) factors listed in Justice Blackmun’s "general observations" section.

In Dickerson v. Cushman, Inc., a products liability suit against manufacturer of three-wheeler, alleging sprayer system caused it to lose stability, the Court held the Daubert factors were inapplicable to a mechanical engineer’s opinion that baffles, used to prevent the free movement of liquid inside spray tanks, should have been used inside spray tanks which were mounted on the back of a three-wheeler to prevent the three-wheeler from tipping over. The Court held the expert’s opinion was based on "rather elementary principles of engineering," and that therefore, did not even apply the Daubert factors.

In Edwards v. Atro SpA, a products liability case against manufacturer of a nail gun, the Court noted that "[t]he application of Daubert in this case to the testimony of plaintiff’s three opinion witnesses would require an expansion of the Supreme Court’s language beyond its obvious scope and meaning. Daubert’s narrow focus is on the admissibility of ‘novel scientific evidence’ under Fed.R.Evid. 702." The Court then concluded as follows:

Plaintiffs’ experts "opinions are based upon facts, investigation, research, and traditional technical or mechanical expertise. Their conclusions are supported by rational explanations, and none of their methods strike the Court as novel or extreme.... Daubert does not preclude the introduction of such testimony....

In Smith v. Ford Motor Co., a design defect case involving the fuel lines of a Ford F-150, Ford moved to exclude the testimony of Plaintiff’s expert, James Grinnell. The Court excluded his testimony on defect, based on insufficient qualifications, yet permitted him to testify concerning accident reconstruction and fire cause. The Court noted that "Daubert’s focus appears to be on ‘novel scientific evidence’ and the ‘junk science’ problem" and that "[i]n the present case, because of the nature of the expert witness, the four factors laid out in Daubert are not as readily applicable."

In United States v. Starzecpyzel, the Court held that the "Daubert factors of testability, known rate of error, peer review and publication, and general acceptance not applicable to determination of admissibility of testimony by forensic document examiner: "Daubert does not impose any new standard, other than what is found in the text of the Federal Rules of Evidence, for the admissibility of the testimony of nonscientific experts such as harbor pilots or real estate appraisers."

In Lappe v. American Honda Motor Co., a case with pedal defect and roof crush claims made against automobile manufacturer, the Court held that Daubert does not apply to expert engineer in product liability case, stating: "Daubert only prescribes judicial intervention for expert testimony approaching the outer boundaries of traditional scientific...knowledge." In holding the Daubert factors inapplicable to engineers’ testimony concerning the crashworthiness of a roof, the Court observed as follows:

The participation of plaintiff’s expert is not based on novel scientific evidence or testimony. In this action, he will participate as an engineer and convey opinions relating to the happening of an automotive accident. As noted earlier, his opinions are based on facts, an investigation, and traditional technical/mechanical expertise."

In Officer v. Deledyn Republic/Sprague, a personal injury case involving injuries caused when a hydraulic jack exploded, the defendant challenged the sufficiency of the opinion of the plaintiff’s expert, Darryl Holt, arguing that "Holt’s opinion is unbolstered by field tests or other empirical data and thus does not satisfy the requirements of Daubert...." Holding the Daubert factors inapplicable to a mechanical/design engineer’s testimony concerning the defective design of a hydraulic jack, the Court noted that "[w]hile Daubert’s principles have valuable application in determining the admissibility of controversial and novel scientific hypotheses, they have less use in fields like design engineering where ‘general acceptance’ is the norm, not the exception."

In MacCleery v. Royce Union Bicycle, Inc., the Court held that the Daubert factors were inapplicable to a mechanical engineer’s testimony pertaining to the defective design of a bicycle. The Court noted that the opinion was based on "elementary principles of physics and mechanical engineering," involving the

"function of free turning nuts and bolts ... and the effect of [friction]/mechanical wear on such parts."

Other district courts have similarly held that the Daubert reliability factors should not be applied in cases involving mechanical engineering in products liability matters.

b. not limited to expert scientific testimony

Several United States District Court opinions reflect application of the Daubert Section II-C factors to expert testimony which is not "scientific." For example, in Rogers v. Ford Motor Co., the trial court excluded the plaintiffs’ expert’s testimony on inertial unlatching, even though expert had performed tests showing failure mode, for the reason that the expert had offered nothing "but a bottom line conclusion" and had not conducted tests on an alternative design. In Byrnes v. Honda Motor Co., Ltd., the Court applied the Daubert factors to engineers and actually excluded the testimony because expert had not constructed an alternate design which would be subject to peer review.). Other Courts have also applied the Daubert reliability factors to mechanical engineering testimony.

(b) Other states’ courts have limited Daubert factors

to expert scientific testimony

Other states’ courts have also generally held that Daubert’s Section II(C) "general observations" do not have to apply to cases where an expert’s opinion is based on "technical, or other specialized knowledge." For example, in Mensick v. American Grain, a case involving a grain elevator explosion, the Defendant sought to exclude a retired engineering professor who had studied the issue for 30 years. Holding that Daubert does not apply to judge the reliability of expert testimony of retired professor seeking to offer testimony on fire protection, the Court observed that "the Daubert analysis has been held not to apply to all cases involving expert testimony; rather, it is to be used as an aid in determining the reliability of proffered evidence of a complex nature. Using the language of Rule 702, complex cases would usually involve ‘scientific’ as opposed to those involving ‘technical or other specialized knowledge.’"

In Gentry v. Mangum, the West Virginia Supreme Court noted that "the question of admissibility under Daubert only arises if it is first established that the testimony deals with ‘scientific knowledge.’" The Court noted that "the expert here relies, not upon any ‘scientific knowledge’ or ‘methodology,’ but upon a range of factors including his experiences and understanding of police work. The question is not one for analysis under peer review, rate of error and publication and general acceptance but whether, based upon the witness’ experience, his opinion will assist the trier of fact." Noting first that "[s]everal federal courts have considered the Daubert test to be too stringent to employ in considering whether to admit expert testimony in nonscientific cases," the Court concluded that "[d]isputes as to the strength of an expert’s credentials, mere differences in the methodology, or lack of

textual authority for the opinion go to the weight and not to the admissibility of their testimony."

the Daubert factors may be limited

to expert scientific testimony

Prior to Justice Hecht’s brilliantly expressed distinction in Gammill between the generalized gatekeeping obligation which applies to all expert testimony, and the specific factors to assess reliability provided in Daubert, which suggested that the Daubert factors do not seem to apply well to mechanical engineering opinions, other opinions of various justices on the Supreme Court of Texas suggested the same conclusion.

Initially, however, some justices seemed to indicate that the Daubert factors might apply across the board to all expert testimony. First, in Burroughs Wellcome Co. v. Crye, Justice Gonzalez in his concurrence, which was joined by justices Hecht and Owen, wrote that he would have held a pigs’-foot study to compare the cooling effect of Polysporin spray with that of other sprays inadmissible, writing that in Robinson, "we addressed the standard trial courts should employ when determining whether expert testimony is admissible under Rule 702. Under this standard, expert evidence must be both relevant to a fact issue in the case and based on a reliable technique or theory to be admissible. Concluding that the test was "not based on a scientifically reliable technique," Justice Gonzalez noted that the expert poorly recorded the test results, improperly recorded temperatures, and admitted did not get the right temperatures. He further noted that the expert conducted the study for purpose of testifying in Mrs. Crye’s suit, and that the study was not subjected to peer review or publication. Second, in S.V. v. R.V., a repressed memory case holding that expert opinions regarding recovered memories of childhood sexual abuse could not meet the objective verifiability element for extending discovery rule in childhood sexual abuse case and thus action was time barred, Justice Gonzalez agains sought to bar the testimony under Robinson. In his concurrence, Justice Gonzalez wrote that "[i]n Robinson, this Court set forth a number of non-exclusive factors to be considered by the trial court when deciding the admissibility of expert testimony:...[lists 6 Robinson factors]. The testimony of R.’s experts is not admissible under these guidelines." Noting that "repressed memory theory is not admissible is because it cannot be empirically tested," that "epressed memory diagnosis relies heavily upon the subjective interpretation of the expert," that "the potential error rate is high in cases of repressed memory...," Justice Gonzalez concluded as follows:

There may be some value to repressed memory theory as a therapeutic tool, but because it does not meet the admissibility guidelines we have established, it should not be admitted as evidence.... Given what we know today about the subject, expert testimony regarding repressed memory is the type of junk science that should be kept out of our courtroom under the guidelines set forth in Robinson."

However, in his concurrence, Justice Cornyn took Justice Gonzalez to task for his across-the-board application of the Robinson factors. He noted that "the centerpiece of the Court’s opinion is the validity of expert testimony about repressed memory syndrome, and in assessing such testimony, the Court obliquely implicates the admissibility of this evidence under Robinson..." He complained that "[a]side from the role of amateur scientist that Robinson unfortunately thrust upon them, trial courts face additional problems in behavioral science cases like this one because these disciplines cannot be readily evaluated under the nonexclusive factors enunciated in Robinson." Finally, he observed that "[e]ven though Robinson now plainly controls the admissibility of some expert testimony, it cannot reasonably be construed to control the admissibility of all expert testimony. There are some types of expert testimony to which the nonexclusive factors in Robinson are clearly inapplicable." Finally, Justice Cornyn concluded that the Robinson factors cannot be applied across the board to all contexts of expert testimony:

Thus, Justice Gonzalez cannot be correct when he contends that under Robinson or Daubert, evidence from any discipline that is incapable of being "empirically tested" is categorically inadmissible.... As I have said before, I fear that the admissibility standard that the Court adopted in Robinson will prove unworkable in a wide variety of contexts in which Rule 702 of our Rules of Evidence is implicated, including cases like this one.

On rehearing, Justice Gonzalez appeared to realize the distinction being drawn by Justice Cornyn, and withdrew his original opinion in favor of a new one. In his concurring opinion on rehearing, Justice Gonzalez correctly observed as follows:

The rule we adopted E.I. DuPont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995), was guided by the United States Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The Supreme Court appears to have intended that Daubert provide the exclusive standard for evaluating the reliability of expert testimony about anything characterized as science. See Daubert, 509 U.S. at 589 & n. 8, 113 S.Ct. at 2795 & n. 8 (distinguishing science from "technical or other specialized knowledge" also subject to scrutiny under Federal Rule of Evidence 702). That was our intent in adopting the Daubert rule in Texas. See Robinson, 923 S.W.2d at 557 (adopting Daubert rule to guide trial courts in "determining the reliability of the scientific evidence" presented under Texas Rule of Civil Evidence 702). But many things commonly represented and accepted as science cannot meet the Daubert-Robinson standard because they do not qualify under the definition of "science" set forth in Daubert. [1] [Science is the process of generating and testing hypotheses. The initial inquiry is whether the proffered testimony is scientifically valid, and validity depends on testability. See Daubert, 509 U.S. at 591-95, 113 S.Ct. at 2796-97 (1993); Robinson, 923 S.W.2d at 555.] They are not testable under the scientific method. As I discussed in my concurring opinion in the present case, repressed memory syndrome, as that phenomenon is now understood, is one of those things.... As Justice Cornyn correctly recognizes, this case foreshadows larger issues than the admissibility of repressed memory syndrome. Under Robinson, many social and behavioral disciplines will undoubtedly suffer the same fate. Thus, we need to develop a standard or filter apart from Robinson to judge the validity of expert testimony based on the social sciences. A recent commentator has aptly summarized the problem: "Although the [view that Daubert-Robinson provides the exclusive standard for evaluating scientific expert testimony] is our preferred solution, it leaves no safe harbor for evidence widely viewed as scientific, is accepted as sound, but cannot meet the Daubert criteria. This appears to be a dilemma that the lower courts will have to resolve on their own... Conley & Peterson, The Science of Gatekeeping: The Federal Judicial Center’s New Reference Manual on Scientific Evidence, 74 N.C.L.Rev. 1183, 1204 (1996)."

Justice Gonzalez concluded by stating the obvious difficulties of applying the Daubert factors across the board, stating that "[r]ather than addressing this problem on a case-by-case basis, the bench and bar would be better served if we dealt with it head-on. I therefore suggest that we refer this matter to the Supreme Court Advisory Committee and the appropriate state bar committees for recommendations concerning a possible rule change by our court. In the meantime, I suggest that trial courts apply Robinson across the board in determining the admissibility of scientific evidence."

However, in Merrell Dow Pharmaceuticals, Inc. v. Havner, Justice Gonzalez again concurred and seemed to backtrack on his previous pronouncements concerning the limited application of the Daubert/Robinson factors. He wrote:

I write separately to reiterate that the guidelines we established in E.I. du Pont de Nemours v. Robinson, 923 S.W.2d 549 (Tex. 1995), are not limited to expert scientific testimony based on a novel scientific theory." Id., at 867.... "But I am concerned that some litigants may misread Robinson to apply only to novel scientific evidence because of my later writings applying it to "junk science" cases. See S.V. v. R.V., 933 S.W.2d 1, 26 (Tex. 1996) (Gonzalez, J., concurring); Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 500 (Tex. 1995) (Gonzalez, J., concurring).... we intended Robinson to ‘provide the exclusive standard for evaluating the reliability of expert testimony about anything characterized as science.’ S.V. v. R.V., 933 S.W.2d at 42 (Gonzalez, J., concurring on rehearing).

We did not intend to free from Robinson’s grasp what might be considered routine science."

Courts of Appeals in Texas appear to have understood the critical distinction between applying Daubert/Robinson’s "gatekeeping" function across the board from applying its reliability factors across the board. In the court of appeals decision in Maritime Overseas Corp. v. Ellis, the Court of Appeals rejected the use of Daubert factors in negligence cases. More recently, in Dico Tire, Inc. v. Cisneros, a case where a tire service repairman injured when front-end loaded tire he was working on brought products liability and negligence action against tire manufacturer, the Court considered the trial court’s decision to allow the plaintiff to introduce expert testimony from Walter Harm, an engineer for Uniroyal Tire Company for 31 years. He held positions of tire construction engineer, materials engineer, research engineer, automotive manager for original equipment and senior engineer for tire reliability. The trial court, 117th Judicial District, Nueces County, Texas (Judge Robert Blackmon) allowed the testimony and entered judgment for the plaintiff. Dico Tire contended "on appeal that Harm’s testimony was not scientifically reliable because it does not satisfy the Texas Supreme Court’s reliability test set forth in E.I. DuPont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995)." The Corpus Christi Court of Appeals held as follows:

Although the Robinson test was aimed at the admissibility of expert testimony which Dico did not challenge at trial, the Supreme Court, in Merrell Dow Pharmaceuticals, Inc. v. Havner, recently held the test was applicable to a no evidence review of scientific evidence. 40 Tex. Sup. Ct. J. 846, 849, 851, ___ S.W. ___, ___, ___ (July 9, 1997). However, now every testifying expert is providing scientific evidence. See S.V. v. R.V., 933 S.W.2d 1, 41 (Tex. 1996) (Cornyn, J., concurring) (citing Edward J. Imwinkerlried, The Next Step After Daubert: Developing a Similarly Epistemiological Approach to Ensuring the Reliability of Nonscientific Expert Testimony, 15 CARDOZO L.REV. 2272, 2278 (1994)). Some expert testimony is derived from specialized knowledge or technical expertise. Tex.R.Civ.Evid. 702. We conclude that Harm was not providing scientific evidence; his testimony was derived from specialized knowledge and technical expertise. We, therefore, rely on Schaefer v. Texas Employers’ Ins. Ass’n, 612 S.W.2d 199 (Tex. 1980), for the appropriate test.

(d) The Legal Commentaries Indicate that the Daubert factors

Do Not Have to be Applied in the Non-Scientific Context

Well-reasoned legal commentaries have also argued persuasively that the Daubert factors should not blindly be applied in the non-scientific context in cases where the testimony is not based on novel scientific testimony.

10. The Requirements of "Relevance" and "Reliability"

Apply to All Types of Expert Testimony under Rule 702

Despite whether the Daubert Section II-C "general observations" or factors do not have to apply to expert testimony based on "technical or other specialized knowledge," Rule 702’s requirements that the testimony be "relevant" and "reliable" will still apply. Both the United States Supreme Court in Kumho Tire and the Supreme Court of Texas in Gammill have made this clear.

Likewise, the Advisory Committee for the Federal Rules of Evidence, wrote the following with respect to Rule 702:

"Whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier. ‘There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute."

Thus, an expert’s proffered testimony must always be relevant to the issues at hand, and be reliable, in order to be admissible under Rule 702.

VIII. RECENT TEXAS CASES REGARDING

THE ADMISSIBILITY OF EXPERT OPINIONS

Recent cases in Texas concerning the admissibility of expert opinions have clarified the rules concerning the qualifications required and what constitutes an opinion that is not reliable. In this section, recent civil cases concerning expert opinions and recent criminal cases concerning expert opinions are included.

A. THE QUALIFICATIONS REQUIRED

Before admitting expert testimony, "[t]he trial court must determine if the putative expert has "knowledge, skill, experience, training, or education" that would "assist the trier of fact." "What is required is that the offering party establish that the expert has ‘knowledge, skill, experience, training, or education’ regarding the specific issue before the Court which would qualify the expert to give an opinion on that particular subject."

B. OPINIONS THAT ARE NOT RELIABLE

Two cases decided by the Supreme Court of Texas outside the context of scientific testimony have decided that the proffered expert testimony was unreliable. First, in Schaefer v. Texas Employers’ Ins. Ass’n, the Court reviewed the substance of a medical expert’s testimony, and hold that his testimony constituted no evidence of causation, as it was based on "assumptions, possibility, speculations, and surmise." Second, in Burroughs Wellcome Co. v. Crye, the Court stated that "[w]hen an expert’s opinion is based on assumed facts that vary materially from the actual, undisputed facts, the opinion is without probative value and cannot support a verdict or judgment."

C. RECENT CIVIL CASES IN TEXAS

CONCERNING EXPERT OPINIONS

This section of the paper reviews recent decisions of Texas courts concerning expert opinions in civil cases.

In Harrison v. Wells Fargo Bank Texas, N.A., the court of appeals affirmed the exclusion by the trial court of proffered expert testimony of Stanley Johanson, a Professor of Law at the University of Texas School of Law. Although the Court affirmed the exclusion, it did not do so on Daubert grounds; rather, it excluded the testimony because testimony relating purely to matters of law is inadmissible regardless of the qualifications of the witness seeking to provide it.

In Olin Corp. v. Smith, the Austin Court of Appeals affirmed a trial judgment for $6,343,444 over Daubert objections in a gun defect case. In affirming the trial judge’s rulings, the Court relied heavily upon Justice Hecht’s analysis in Gammill v. Jack Williams Chevrolet and found the Court met the standards of relevance and reliability required in Rule 702 of the Texas Rules of Evidence.

In Traylor Bros., Inc. v. Garcia, the Court affirmed a liability finding, yet reversed a judgment in favor of the plaintiff on the issue of damages by virtue of the improper admission of expert testimony by Everett Dillman, Ph.D., an economist, regarding the per diem value of various non-pecuniary elements of damages. In reversing the trial court’s judgment, the Court held that "[w]e believe the trial court abused its discretion in permitting Dillman to testify in detail as to how the jury should value such non-economic damages." Id., at p. 10. The Court held Dillman’s testimony should be rejected for four (4) distinct reasons:

(1) Dillman is Not Qualified to Testify About

Value of Non-Pecuniary Damages

The Court wrote as follows:

First, Dillman’s testimony, based as it was on speculative numbers, is not relevant within the meaning of Robinson. Dillman was imminently qualified by his training and experience as an expert economist; however, this record is devoid of evidence that Dillman is an expert parent, and expert spouse or an expert sibling. In fact, this record is devoid of evidence that Dillman plays any of those roles in real life. Dillman’s giving opinions on the topic amounts to an abuse of his position as an expert.... The utter absence of Dillman’s qualifications, coupled with his failure to show any facts about this father and these children and their relationship, leads to the conclusion that Dillman is nothing more than an unqualified "think big" witness.... Because this record is devoid of evidence that Dillman knew the Alaniz family, his opinion was not "rationally based on the perception of the witness" and this testimony was improper.

(2) Dillman’s Testimony Was Not Relevant

The Court wrote that Dillman’s testimony should be excluded for an additional reason as well: it was not relevant. In so holding, the Court wrote as follows:

We also believe Dillman’s testimony was not relevant because it was not a proper topic of expert testimony. As noted in another case in which Dillman attempted to quantify loss of society and consortium damages, his testimony "possesses no traces of special knowledge which jurors do not possess in deciding this issue." And is it error to admit expert testimony on a topic which does not require expert testimony.

(3) Dillman’s Testimony Was Not Reliable

Next, the Court concluded that Dillman’s testimony should be excluded for a third reason: it is not "reliable" under the Daubert /Robinson analysis:

[W]e believe Dillman’s testimony is not reliable within the meaning of Robinson. The heart of Dillman’s testimony is the rather novel assertion that such damages as loss of society and loss of consortium can be rationally calculated on a per diem basis, and that this loss can be assumed to remain constant over the projected lifespan of an individual. This theory has not been published, has not been reviewed by peers and was created solely for the purposes of litigation. In other words, it is not "based on a reliable foundation." It meets the criteria that would qualify it as junk science...

Because Dillman’s testimony was not shown to be scientifically reliable, then, the trial court abused its discretion in admitting such testimony.

(4) Dillman’s Testimony Invades the Province of the Jury

Finally, the Court wrote that Dillman’s testimony was improper because it invaded the province of the jury:

Dillman’s testimony does violence to the deeply rooted concept in Texas that the duty of resolving the monetary value to be placed on loss of society damages, such as loss of consortium, falls upon the jury and its impartial conscience and judgment acting reasonably, intelligently and in harmony with the evidence. Evaluating these damages is primarily and peculiarly within the province of the jury.

In State Farm Fire & Casualty Co. v. Morua, the Supreme Court noted its recent decision in Maritime Overseas Corp. v. Ellis, holding that "if a party wants to object to expert testimony on Daubert/Robinson grounds, the party has to make that objection either pretrial or at least when the testimony is offered at trial and not later."

In Baxter Healthcare Corp. v. Grimes, the Dallas Court of Appeals affirmed a trial court judgment in favor of the plaintiff in a breast implant lawsuit. Baxter challenged the judgment on appeal, arguing that Grimes did not prove a "theoretical basis" for causation, and very vaguely attacked the alleged deficiencies in the expert’s opinions. The Court held the Daubert challenges had been waived, by Baxter’s failures to specifically assign its complaints as error on appeal. In doing so, the Court noted that "Baxter’s vague references to reliability are not sufficient to raise this complaint on appeal. Without a properly briefed Daubert/Robinson

complaint, we will not review the underlying reliability of Grimes’s scientific evidence in this case."

In GTE Communications Systems Corp. v. Telecoin Communications, Inc., the Court affirmed a trial court judgment despite a Daubert challenge. In doing so, the Court that any error, if it existed, did not probably cause the rendition of an improper verdict. Thus, the court "assume[d], without deciding, that the trial court erred in excluding Davidson’s testimony," held it did not cause an improper verdict, and then stated that "[i]n so doing, we express no opinion on the applicability of Daubert and Robinson to Davidson’s proposed testimony."

In Minnesota Mining and Manufacturing Co. v. Atterbury, the Texarkana Court of Appeals wrote a lengthy recitation of many Daubert/Robinson-type cases. The opinion can be described as having two parts: first, criticisms of the holdings of the Supreme Court of Texas in Robinson and Havner; and second, following Havner’s statements as to what will not constitute causation in a toxic tort-type case, the Court eliminates each of the Plaintiffs’ pieces of evidence as being insufficient under Havner. The Texarkana Court’s two shots at the Supreme Court of Texas include three specific complaints:

(1) The Texas Supreme Court Has No Confidence in the Jury System

First the Texarkana Court of Appeals complained that the Supreme Court of Texas has applied Robinson much more severely than the United States Supreme Court has applied Daubert:

The Texas Supreme Court differed from the United States Supreme Court in the confidence that it has in the ability of the adversarial system to present, and fair and impartial juries to consider, borderline evidence. As stated before, the United States Supreme Court favored admission of evidence on the borderline because the jury should be able to ascertain the truth through "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.... However, the Texas Supreme Court apparently does not share this confidence in the adversarial system and the abilities of counsel. It stated that judges are better at evaluating scientific reliability because counsel often cannot cross-examine expert witnesses effectively "because it can be difficult to explain weaknesses in the [expert’s] testimony to the jury and can even make things worse."

(2) The Defendant Gets Two Bites At The Apple

to Defeat Plaintiffs’ Evidence

Second, the Texarkana Court of Appeals pointed out the inherent unfairness in the Robinson/Havner scheme:

Under Robinson and Havner, a defendant has two bites at the Daubert apple. He can and should object to the proffer of evidence at trial. If the trial court excludes the evidence, then the reviewing court views the trial court’s decision by the lenient abuse of discretion standard. However, if the trial court overrules the defendant’s objection and admits the evidence, then the defendant may seek review of the trial court’s decision in a sufficiency of the evidence point of error to an appellate court. Further, under the sufficiency of the evidence standard, the appellate court looks to the plaintiff’s evidence in an almost do novo standard because the "in the light most favorable to the judgment" standard appears to be all but eviscerated.

The Court then reviewed the plaintiff’s evidence of causation, applied Havner to the same, and concludes that under Havner the plaintiff’s evidence will not support a finding of causation. The court thus reversed the judgment, and rendered judgment in favor of the plaintiff.

In Gammill v. Jack Williams Chevrolet, Inc., the Supreme Court of Texas held that Daubert’s specific reliability factors do not apply when assessing the reliability of engineering testimony; however, the general requirements of relevance and reliability do apply to all proffered expert testimony, and the Court held the testimony at issue was unreliable.

In Harris v. Belue, the Court held that Robinson factors do not apply to "logical deduction" such as the evidence regarding medical negligence being offered by the Plaintiff, and applied the Maritime Overseas case to find a waiver by virtue of the fact that the "expert testimony of [Plaintiff’s experts] was received by the trial court without objection as to its scientific reliability."

In Degrate v. Chevron, USA, Inc., the Beaumont Court of Appeals approved the admission of gas dispersion modeling expert’s testimony. The Court appropriately noted that under Daubert, "[t]he inquiry to be made by the trial court considers solely the underlying principles and methodology of the expert witness, and not the conclusions they generate."

In Waring v. Wommack, the Court of Appeals affirmed a trial court’s decision to permit the defendant’s accident reconstructionist to testify at the trial of a vehicular-bike accident. The defendant proffered the testimony of Dr. William Nalle, an accident reconstructionist. Noting that "[t]his state has a long history of allowing qualified accident reconstruction experts to testify regarding the way in which an accident occurred, the Court reviewed Dr. Nalle’s backgrounds, and his methodology at the scene, and affirmed the trial court’s determination that his work was reliable. As it should, the Court stated:

In determining reliability, the trial court is to "focus solely on the validity of principles and methodology underlying the testimony, not on the conclusions generated." North Dallas Diagnostic Center v. Dewberry, 900 S.W.2d 90, 95 (Tex.App. - Dallas 1995, writ denied) (anticipating Robinson by applying Kelly and Daubert in a civil trial). The accuracy of the conclusions reached by an expert whose theory and methodology are reliable may be challenged by cross-examination as they were at this trial.

In United Blood Services v. Longoria, the Court reversed the Corpus Christi court of appeals’ reversal of trial court summary judgment against the Plaintiff based on an exclusion of proffered expert testimony. In Longoria, the Supreme Court noted that "[w]hile properly citing the correct standard of review,

the court of appeals improperly substituted its opinion for that of the trial court’s."

In Powell v. International Paper Co., the Court refused to consider the defendant’s argument that none of a plaintiff’s expert’s testimony should have been allowed, as there was no objection on the basis of Daubert at the time of trial.

In S.V. v. R.V., a repressed memory case, the Court held that expert opinions regarding recovered memories of childhood sexual abuse could not meet the objective verifiability element for extending the discovery rule in childhood sexual abuse case and thus action was time barred.

In Broders v. Heise, the trial court excluded proffered testimony of an emergency room physician that the conduct of three defendant emergency physicians and the defendant hospital was a cause in fact of a patient’s death. The court of appeals reversed, and then the Supreme Court reversed the court of appeals, finding that "[b]ecause plaintiffs did not meet their burden to show that their expert had "knowledge, skill, experience, training or education" which would "assist the trier of fact" in deciding the issue of cause in fact, Tex.R.Civ.Evid. 702, we conclude that the trial court did not abuse its discretion."

In Dico Tire, Inc. v. Cisneros, the court of appeals decided that Daubert/Robinson factors do not apply to non-scientific testimony based on an engineers’ experience.

In Bourg Chemical Distributing v. Mosieri, the court of appeals affirmed the trial court’s rulings allowing expert testimony on child’s injury affecting level of loss of consortium.

In America West Airlines, Inc. v. Tope, the court of appeals affirmed the trial court’s exclusion of proffered testimony of treating mental health worker who treated plaintiff for traumatic stress disorder. The Court, in a well-written opinion, first noted that "[t]here are no definitive guidelines to determine whether a witness’ education, experience, skill, or training qualifies that person as an expert." Second, it reviewed the proffered expert’s qualifications and concluded "[t]hat Ms. Simpson did not possess an M.D. or Ph.D., therefore, should not have prevented her testimony if she was otherwise qualified, and we find that she was amply so. She possessed two graduate degrees, was licensed to practice clinical psychology in New Mexico and Texas, belonged to numerous professional societies, and had been engaged in her profession for almost two decades" and found "the challenge to Ms. Gibson’s qualifications was specious." However, the Court reviewed the proffered expert’s work under the Robinson factors and excluded it based on its failure to meet those factors:

Gibson did not administer Tope the MMPI or other traditional diagnostic tests recognized by the psychology profession. She diagnosed him by comparing his symptoms with those outlined in the DSM-III; recurrent intrusive recollections, sleep disturbance, difficulty relating to people, trouble concentrating, and constricted affect. When asked how her diagnosis of Tope could be verified or tested, she stated "I suppose you could ask him if he was suffering all these symptoms." She did not take notes of their sessions, believing this provided confidentiality and allowed her to concentrate on the patient. She uses an eclectic approach to treatment, testifying: ‘I have studied nearly all of them [modes of treatment] and find something out of all of them that are useful and will apply whatever works at the time... [using] just a little bit of everything. What works at one time won’t at another, and vice versa.’ When asked about peer review of her methods, she testified that a frequent method of review was submission of bills for payment by insurance companies. She has also presented her methods at psychotherapy conferences.... America West objected to Ms. Gibson’s testimony as an expert because she did not follow generally recognized techniques, had not taken notes of her sessions, had not administered traditional psychological tests, did not have a medical degree or a Ph.D. in psychology, could not point to any publications supporting her method of treatment, and would testify to opinions that could be neither validated nor refuted... Here, applying the Robinson factors to Ms. Gibson’s testimony, we cannot say the trial court acted without reference to guiding principles. Her diagnosis was subjective, based upon Tope’s statements, and could be tested only by asking him again about his symptoms. Peer review of Gibson’s method was limited, and she suffered no examples of publication of her work. The potential rate of error for her diagnosis was wholly unexplored. Although it does appear her underlying techniques are accepted as valid by the psychological community, and that they are generally used for the non-judicial purpose of therapy, viewing the factors as a whole we cannot say the trial court abused his discretion in determining Ms. Gibson’s opinion did not rise to the level of reliability necessary under the Robinson test."

D. RECENT CRIMINAL CASES IN TEXAS

CONCERNING EXPERT OPINIONS

Because the Supreme Court of Texas gives deference to the opinions of the Texas Court of Criminal Appeals, recent criminal cases in Texas concerning expert opinions are noteworthy. It is interesting that the Texas Court of Criminal Appeals’ opinions in Kelly v. State and Nenno v. State were precursers to the United States Supreme Court’s opinions in Daubert and Kumho Tire respectively. Recent criminal cases concerning expert opinions reflect similar analyses to their civil counterparts.

In Munguia v. State, the Court of Appeals affirmed the admission of ballistics expert testimony and that of Dr. Lloyd White, on cause of death, and affirmed the trial court’s decision not to provide limiting instructions requested by the criminal defendant.

In Chisum v. State, the Court of Appeals held that the trial court erred in refusing to conduct a Daubert hearing before trial and in refusing to allow the defense lawyer to take the prosecution’s expert on voir dire examination outside the presence of the jury before admitted the expert’s testimony. However, the Court held the expert was so qualified in trial testimony, and that therefore, there was no harm to the defendant.

In Nenno v. State, the Texas Court of Criminal Appeals set out the standard for admission of expert testimony in the "soft" sciences, that is "fields of study aside from the hard sciences," such as the social sciences or fields that are based primarily upon experience and training as opposed to the scientific method." The Court in Nenno recognized that it had concluded that the factors it provided in Kelly were substantively identical to those provided in Daubert. It noted the question it had to confront in Nenno was "whether Kelly is applicable to nonscientific expert testimony (i.e., that involving technical or other specialized knowledge)" and answered the question with "a qualified yes." Much like the Supreme Court’s conclusion in Gammill, the Nenno Court held that "[t]he general principles announced in Kelly (and Daubert) apply, but the specific factors outlined in those cases may or may not apply depending upon the context." The Court then reviewed a number of circuit court decisions, and noted as follows:

While various federal circuits may sometimes purport to disagree with each other, a close examination of the cases shows a general agreement about two important propositions: (1) Daubert’s prescription that trial judges act as "gatekeepers" in determining the reliability of expert evidence applies to all forms of expert testimony, and (2) the four factors listed in Daubert do not necessarily apply outside of the hard science context; instead methods of proving reliability will vary, depending upon the field of expertise.

Finally, the Court laid down a new three-part test for determining reliability of expert testimony in a field outside of hard science:

When addressing fields of study aside from the hard sciences, such as the social sciences or fields that are based primarily upon experience and training as opposed to the scientific method, Kelly’s requirement of reliability applies but with less rigor than to the hard sciences. To speak of the validity of a "theory" or "technique" in these fields may be roughly accurate but somewhat misleading. The appropriate questions are:

(1) whether the field of expertise is a legitimate one,

(2) whether the subject matter of the expert’s testimony is within the scope of that field, and

(3) whether the expert’s testimony properly relies upon and/or utilizes the principles involved in the field.

In Fowler v. State, the Court held that a trial court improperly admitted a psychologist’s expert testimony without subjecting it to an analysis under the Kelly factors [note: this holding is suspect in light of Nenno], yet found it to be harmless error.

In Avila v. State, the Court affirmed the trial court’s exclusion of the defense’s proffered expert testimony in the punishment phase of a trial by an expert professing to testify as to the voluntariness of the Appellant’s actions, and as to his mental state at the time of the offense. The Court agreed with the trial court, that the testimony was irrelevant as to voluntariness, and unreliable as to mental state. Thus, the conviction for murder was affirmed.

In Hartman v State, the Texas Court of Criminal Appeals held that the court of appeals erred in holding that the Kelly v. State factors applied only to novel scientific evidence, and not to expert testimony extrapolating a BAC result back to give a conclusion as to what the alcohol level was at the time of a commission of an offense. The Court reasoned as follows:

Nowhere in Kelly did we limit the two-pronged standard to novel scientific evidence.... We likewise see no value in having a different standard of admissibility for novel scientific evidence. The problems presented in determining whether or not a particular type of evidence would be considered "novel" are daunting enough to reject application of a dual standard.... The standard adopted by this Court in Kelly applies to all scientific evidence offered under Rule 702. The Court of Appeals erred in applying a standard different than that set forth in Kelly. Accordingly, we reverse the judgment of the court of appeals and remand this cause to that court to reconsider admissibility of the evidence in light of the appropriate standard.

In Nations v. State, the Austin Court of Appeals reversed the rape conviction of a defendant because of the exclusion of his proffered expert psychologist’s testimony concerning the problems with victim identification evidence. The Court noted that "the greater admissibility of evidence promoted under the new rules of evidence was cited as the impetus for abandoning the Frye test." The Court also noted that the Kelly factors should not be applied to psychological evidence [Note: later proven correct in Nenno v. State], and held that the evidence should have been admitted.

In Jordan v. State, the Texas Court of Criminal Appeals held that "[u]nder Rule 702, a trial court must decide whether expert testimony will be sufficiently reliable and relevant to help the jury." The Court noted that "[r]eliability depends on three criteria:

(a) the underlying scientific theory must be valid;

(b) the technique applying the theory must be valid; and

In Williams v. State, in affirming trial court’s decision to allow expert to testify concerning heat treatment chemical test to identify presence of methamphetamines or amphetamines, the Court of Appeals held that the factors laid down by the Court of Criminal Appeals in Kelly v. State were still applicable, noting that "Kelly was discussed approvingly by the Court of Criminal Appeals as recently as last June." The Court also noted that "[t]he Court of Criminal Appeals views Daubert’s relevance and reliability standard as ‘virtually identical’ to the Kelly standard." The Court noted that "the Texas Supreme Court has acknowledged that in matters applying Rule 702 it too is persuaded by the reasoning of both Daubert and Kelly," and thus, "[i]n Texas, Rule 702 is the same for either civil or criminal cases, so the Texas Supreme Court’s opinion in Robinson is at least instructive."

In Forte v. State, the trial court excluded the testimony of Dr. Raymond Finn, a clinical psychologist testifying as to how a highly emotional state would affect eyewitness’ ability to remember." The Court of Appeals affirmed the trial court’s exclusion of expert testimony regarding repressed memory. Following Jordan v. State, whether the Court of Criminal Appeals found Dr. Finn’s testimony relevant, the Forte Court stated: "[w]e are, therefore, constrained to find that Dr. Finn’s testimony is relevant in this case. However, the Court then found an insufficient showing of reliability because the Kelly factors had not been met.

IX. ACKNOWLEDGMENTS

The author utilized the following sources during the preparation of this paper: John Howie, Daubert/Robinson/Kumho Tire - Qualification of Experts, presented at the Texas Trial lawyer’s Advanced Personal Injury Court, April, 1999; Annotation, Reliability of Scientific Technique and its Acceptance Within the Scientific Community as Affecting Admissibility, at Federal Trial, of Expert Testimony as to Result of Test or Study Based on Such Technique-Modern Cases, 105 ALR Fed 299 (1991); Coben, Larry, What Has Daubert Done to Us? - Or ‘Where Has All the Evidence Gone?’, printed in Andrews Automotive Reporter, August 5, 1997; Hare, Francis H., Jr., & Horn, Allwin E., IV., Expert Opinion Testimony: The Daubert Analysis is not Applicable to Established Principles of Science, Independent Counsel resources, ICR Monograph Series 011, 1997; Holman, David W., Protecting Your Experts from Daubert/Robinson Challenges, presented at the Texas Trial Lawyers’ Association’s seminar entitled "Products Liability: What’s Left After Tort Reform?", January 25-26, 1996 - Dallas; February 1-2, 1996 - Houston; Howie, John, Robinson/Daubert Challenges to Experts, presented at the Texas Trial Lawyers’ Association’s seminar entitled"Advanced Products Liability Seminar," January 9, 1997 - Austin; Johnson, Lynn R., Six, Stephen N. & Hamilton, Patrick A., Deciphering Daubert, TRIAL, November, 1997, pp. 71-78.

BIOGRAPHICAL OUTLINE

Mikal C. Watts earned his undergraduate degree from the University of Texas in 1987, receiving a Bachelor of Arts with high honors after two years of study. He graduated with honors from the University of Texas School of Law in 1989 at the age of twenty-one.

In 1989-1990, Mr. Watts worked as a briefing attorney for Hon. Thomas R. Phillips, Chief Justice of the Supreme Court of Texas. In September, 1990, he became an associate at David L. Perry & Associates in Corpus Christi, Texas, and was named a partner in December, 1991. Until March 31, 1997, he served as a partner in the law firm of Perry & Haas, L.L.P. On April 1, 1997, Mr. Watts formed his own firm, Harris & Watts, P.C., and specializes in catastrophic personal injury, product liability, automotive defect and heavy truck wreck cases.

Mr. Watts’ publications and continuing legal education presentations include:

Watts, Daubert, Robinson, and Kumho Tire - What’s the Rule Now in Texas?, presented at State Bar of Texas seminar entitled "Advanced Personal Injury Seminar," to be presented in Houston, July 7-9, 1999; and Dallas, July 21-23, 1999; San Antonio, August 4-6, 1999; Watts, Joint and Several Liability, presented at the Texas Trial Lawyers’ Association’s seminar entitled "Advanced Personal Injury Seminar - 1999", presented at Houston, April 29-20, 1999; Dallas - May 6-7, 1999; Watts, Closing Arguments: the Plaintiffs’ Perspective, presented at the Corpus Christi Bar Association’s seminar entitled "ADVANCED PERSONAL INJURY LAW SEMINAR - 1998, November 13, 1998, Corpus Christi, Texas; Watts, Joint & Several Liability, presented at the Texas Trial Lawyers Association’s seminar entitled "ADVANCED PERSONAL INJURY SEMINAR - 1998," August 21-22, 1998 - Houston, Texas, and August 28-29 1998, Dallas, Texas; Watts, Crashworthiness - Hot Trends in Auto Products: Recognizing a Good Liftgate, Rollover, or Fuel Tank Integrity case - & How to Counter Manufacturers’ Defenses, presented at the Texas Trial Lawyers Association’s seminar entitled "TTLA PRODUCTS LIABILITY - Plaintiffs Go on the Offense," The City Place Conference Center, Dallas, Texas, March 27, 1998; Watts, Discovery Abuses (Ethics), presented at the Association of Trial Lawyers of America’s "TRIAL ADVOCACY TRACK BUILDING THE CASE - DISCOVERY," Maui, Hawaii - February 22, 1998; Watts, Evidence Update, to be presented at the Corpus Christi Bar Association’s "ADVANCE PERSONAL INJURY SEMINAR," Corpus Christi, November 14, 1997; Watts, Recognizing The Automotive Product Defect Case, presented at the Texas Trial Lawyers Association’s "CAR WRECK SEMINAR," Dallas, Texas - November 7, 1997, and Houston, Texas - November 21, 1997; Watts, Defective Automotive Seatback Litigation, presented at the Western Trial Lawyers Association’s 1997 Annual Maui Convention, "WINNING STRATEGIES FROM TRIAL MASTERS," Ritz-Carlton Kapalua, Maui, Hawaii, June 9-15, 1997; Watts, Porter, Tracy & Komyatte, The Chrysler Minivan Liftgate Latch Litigation, presented at the Attorneys’ Information Exchange Group’s "SPRING SEMINAR - 1997," Atlanta, Georgia, May 8, 1997; Watts, Effective Retention, Utilization and Coordination of Experts in a Trucking Case - The Plaintiff’s Perspective, presented at the American Bar Association’s Tort & Insurance Practice Section’s "TRANSPORTATION MEGA-CONFERENCE III", New Orleans, Louisiana, May 8, 1997; Watts, Other Similar Incidents, to be presented at the Association of Trial Lawyers of America’s Annual Seminar During Jazz Fest - "PRODUCTS THAT INJURE AND KILL PEOPLE," New Orleans, Louisiana, Monteleone Hotel, April 26-28, 1997; Watts, Minivan Liftgate Latches, presented at the Texas Trial Lawyers Association’s "ADVANCED PRODUCTS LIABILITY SEMINAR," Austin, Texas - Four Seasons Hotel, January 9, 1997; Watts, Investigations and Preservation of Evidence, presented at the TTLA Annual Beach Seminar, "HOT TIPS FOR HOT TIMES," South Padre Island, August 9-10, 1996; Watts, Investigations and Preservation of Evidence, presented at the State Bar of Texas’ "PREPARING, TRYING AND SETTLING AUTO COLLISION CASES INSTITUTE 1996, March 7-8, 1996 - Dallas - Westin Galleria & March 28-29, 1996 - Houston - J.W. Marriott; Watts, Sources of Experts and Discovery Materials in Products Cases, presented at the Texas Trial Lawyers Association’s Advanced Products Liability Seminar entitled "PRODUCTS LIABILITY - WHAT’S NEXT AFTER TORT ‘REFORM’," Dallas, 1/25-26, 1996 & Houston, 2/1-2, 1996; Watts, Limitations on Discovery - the Attorney-Client, Attorney Work Product & Self-Critical Analysis Privileges, presented at the Association of Trial Lawyers of America’s "FULL DISCLOSURE - COMBATTING DISCOVERY ABUSE", Hilton Hotel, Chicago, Illinois, October 6-7, 1995; Watts & Smith, Preserving Physical Evidence -- Avoiding Spoliation Claims, presented at the Attorneys Information Exchange Group’s "SPRING SEMINAR ’95," Ritz Carlton Buckhead Hotel, Atlanta Georgia, March 30-April 1, 1995; Watts, Motor Vehicle Fuel Tank Integrity Cases, presented at Texas Trial Lawyers’ Association’s "ADVANCED PRODUCT LIABILITY COURSE, February-March, 1995; Perry & Watts, Automobile Litigation, presented at State Bar of Texas’ "ADVANCED PERSONAL INJURY LAW COURSE," July-August, 1994; Perry & Watts, Automobile Litigation, presented at Texas Trial Lawyers Association’s "ADVANCED PRODUCTS LIABILITY COURSE," April 21, 1994; Watts, Discovery Update - A Review of a Turbulent Past Year - The Cases and Their Facts, presented at Texas Trial Lawyers’ Association’s "ADVANCED PRACTICE POINTERS AND TRIAL TIPS" Seminar, Port Royal Resort, Port Aransas, Texas, August 20-22, 1992; Watts, Supreme Court Update, presented at the State Bar of Texas’ "LITIGATION UPDATE-1990" Seminar, Plaza San Antonio Hotel, San Antonio, Texas, January 19, 1990; Comment, Comparative-Fault-Second Edition (by Henry Woods), TEXAS BAR JOURNAL 803 (July 1990); and Watts & Rockwell, The Original Intent of the Education Article of the Texas Constitution, 21 ST. MARY’S L.J. 771 (1990).

Mr. Watts is an "AV" rated lawyer in the Martindale-Hubbell legal directory, is currently serving as the Co-Chair of the Attorneys’ Information Exchange Group’s Chrysler Minivan Liftgate Latch Litigation Subgroup, is a member of the Board of Directors of the Attorneys’ Information Exchange Group, and is a member of the Tort and Insurance Practice Committee (TIPS) of the American Bar Association, is a 1998-99 Vice-Chair of its Commercial Transportation Litigation Committee, and is the Chairman of its Legislative Committee. Mr. Watts is a member of the Million Dollar Advocates’ Forum, the American Bar Association (ABA), the Association of Trial Lawyers of America (ATLA), the Attorneys’ Information Exchange Group (AIEG), the Texas Trial Lawyers’ Association (TTLA), the American Bar Association, the State Bar of Texas, the College of the State Bar of Texas, the Corpus Christi Bar Association, the Corpus Christi Young Lawyers’ Association (CCYLA) and a past member of the Coastal Bend Victims’ Advocates. He has served in the past as a board member of the CCYLA, and presently serves on the Statewide Fundraising Committee of the Texas Trial Lawyers Association, and is a member of the Board of Directors of the Texas Trial Lawyers Association as an Associate Director of the Texas Trial Lawyers Association.

Mr. Watts is licensed to practice law in the State of Texas, and before United States district courts in the Southern District of Texas and in the Eastern District of Texas, before the United States Court of Appeals for the Fifth Circuit, before the United States Supreme Court, and has been admitted to practice pro hoc vice in New, York, Alabama and California. Mr. Watts has defended punitive damages obtained in federal court by oral argument before the United States Court of Appeals for the Fifth Circuit. Mr. Watts’ litigation against Chrysler involving its minivan liftgate latches recently has been chronicled on the CBS Evening News, and in the Washington Post, the Wall Street Journal, the Detroit News, USA Today, The Dallas Morning News and The Texas Lawyer. Mr. Watts cross-examined more than twenty Chrysler employees - examination and testimony which was presented in the trial of Jiminez v. Chrysler Corporation, a seminal case which resulted in a $262,500,000.00 verdict against Chrysler - the largest product liability verdict in the history of the United States. Mr. Watts’ recent litigation involving improper maintenance of commercial trucks recently has been chronicled in the National Law Journal and the Laredo Morning Times. His recent $80,000,000.00 verdict against Chrysler is one of the largest actual damages verdicts in the history of the United States.