GUIDEBOOK FOR CONSULTING EXPERT WITNESSES IN TEXAS CIVIL PROCEEDINGS

BY: TEXAS ATTORNEY, CAMDEN BLAKE CHANCELLOR

CURRENT AS OF DECEMBER 31, 2023

 TABLE OF CONTENTS AND BOOKMARKS

Foreword

Author’s Summaries and Notes on rules of procedure, rules of evidence, and expert standards in the following jurisdictions:

FEDERAL

Federal Rules of Civil Procedure

Federal Rules of Evidence

Federal Expert Standards

TEXAS

Texas Rules of Civil Procedure

Texas Rules of Evidence

Texas Expert Standards

AMERICAN ARBITRATION ASSOCIATION

Commercial Rules of the American Arbitration Association

Author’s Short Guides

EXPERT WITNESS PRIVILEGES

CONSULTING V. TESTIFYING

MISTAKES TO AVOID

 FOREWORD

As witnesses consulting with counsel and parties in civil proceedings, experts are important actors in the primary governmental function of administering justice. Although consulting experts are primarily employed professionals, they also act as assistants to the court in the search of a just solution to disputes. In this way, experts are important components of the public’s general welfare and resistance to evil.

In the past, particular branches of business specially experienced evils[1] relating to ignorance, incapacity, and imposition.[2] For these reasons, the many states commenced regulations against the various classes of the public, striking against the evils of professions according to the needs of the public in relation to each.[3] Thus, licensures and professional regulations were created. Some states enacted stricter regulations which prohibit corporations from engaging in the right to practice certain regulated professions – preferring to impose the public’s obligations specifically upon its individuals.

Finally, for those experts who hold professional licensures or credentials, the expert’s opinions and testimony are commercial speech which is protected by the First Amendment of the Constitution of the United States to enable the expert to serve as an instrument to enlighten the public, preserve democracy, and provide a free flow of information.[4]

 AUTHOR’S SUMMARY OF EXPERT WITNESS RULES WITHIN THE FEDERAL RULES OF CIVIL PROCEDURE

Fed Rules Civ Proc R 26(a)(2) – Disclosure of Expert Testimony.

Identity of Expert Witness

v  R 26(a)(2)(A) – the party must disclose the identity of expert witnesses testifying at trial

Written and Signed Report

v  R 26(a)(2)(B) – if the expert witness is retained by a party to provide expert testimony in the case, or if the expert witness regularly gives expert testimony in his duties and is employed by a party, the expert witness must provide a written and signed report that must include:

§  R 26(a)(2)(B)(i) - a complete statement of all opinions the witness will express and the basis and reasons for them

§  R 26(a)(2)(B)(ii) – the facts or data considered by the witness in forming them

§  R 26(a)(2)(B)(iii) – any exhibits that will be used to summarize or support them

§  R 26(a)(2)(B)(iv) – the witness’s qualifications, including a list of all publications authored in the previous 10 years

§  R 26(a)(2)(B)(v) – a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition

§  R 26(a)(2)(B)(vi) – a statement of the compensation to be paid for the expert’s study and testimony in the case

Minimal Disclosures

v  R 26(a)(2)(C) – if the expert witness is not required to provide a written report, the party must still disclose the following matters concerning the expert:

§  R 26(a)(2)(C)(i) - the subject matter on which the witness is expected to present evidence

§  R 26(a)(2)(C)(ii) - a summary of the facts and opinions to which the witness is expected to testify

Deadlines to Disclose

v  R 26(a)(2)(D) – A party must first disclose expert testimony according to the times within a court order, but in the absence of such an order the party must abide by the following default deadlines for disclosures:

§  R 26(a)(2)(D)(i) – at least 90 days before the date set for trial or for the case to be ready for trial

§  R 26(a)(2)(D)(ii) – if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party’s disclosure

v  R 26(a)(2)(E) – The parties have a duty to supplement their disclosures as follows:

§  R 26(e)(1)(A) - in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing

§  R 26(e)(1)(A) – as ordered by the Court

§  R 26(e)(2) – For an expert whose report must be disclosed, the party’s duty to supplement extends both to information included in the report and to information given during the expert’s deposition. Any additions or changes to this information must be disclosed by the time the party’s pretrial disclosures are due [unless the court orders otherwise, at least 30 days before trial]

Fed Rules Civ Proc R 26(b)(4)(A) – Deposition of an Expert Who May Testify.

A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.

Fed Rules Civ Proc R 26(b)(4)(B) – Trial-Preparation Protection for Draft Reports or Disclosures.

The Rules protect drafts of any expert report or disclosure required, regardless of the form in which the draft is recorded, except:

v  R 26(b)(3)(A) – if the materials are generally discoverable and one party shows that it has a substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means

v  R 26(b)(3)(B) - If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation

Fed Rules Civ Proc R 26(b)(4)(C) – Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses.

The Rules protect communications between the party’s attorney and any expert witness required to provide a report, regardless of the form of the communications, except to the extent that the communications:

v  R 26(b)(3)(C)(i) – relate to compensation for the expert’s study or testimony

v  R 26(b)(3)(C)(ii) – identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed

v  R 26(b)(3)(C)(iii) – identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed

Fed Rules Civ Proc R 26(b)(4)(D) – Expert Employed Only for Trial Preparation.

Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only:

v  R 26(b)(4)(D)(i); R 35(b) – in connection with an Examiner’s Report following a physical or mental examination of a person

v  R 26(b)(4)(D)(ii) - on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means

Fed Rules Civ Proc R 26(b)(4)(E) – Payment.

Unless manifest injustice would result, the court must require that the party seeking discovery:

v  R 26(b)(4)(E)(i) – pay the expert a reasonable fee for time spent in responding to depositions; or, if a consulting only expert, in responding to special court orders for discovery against the consulting only expert

v  R 26(b)(4)(E)(ii) – if a party obtains discovery against a consulting only expert, the party must pay the retaining party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert’s facts and opinions

AUTHOR’S SUMMARY OF EXPERT WITNESS RULES WITHIN THE FEDERAL RULES OF EVIDENCE

Fed Rules Evid R 702 – Testimony by Expert Witnesses.

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if all of the following are satisfied:

v  R 702(a) - the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue

v  R 702(b) - the testimony is based on sufficient facts or data

v  R 702(c) - the testimony is the product of reliable principles and methods

v  R 702(d) - the expert has reliably applied the principles and methods to the facts of the case

Fed Rules Evid R 703 - Bases of an Expert’s Opinion Testimony.

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

Fed Rules Evid R 705 - Disclosing the Facts or Data

Underlying an Expert’s Opinion. Unless the court orders otherwise, an expert may state an opinion—and give the reasons for it—without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.

Fed Rules Evid R 706 - Court-Appointed Expert Witnesses.

If a consenting expert is appointed by the Court, the expert:

v  R 706(b)(1) – must advise the parties of any findings the expert makes

v  R 706(b)(2) – may be deposed by any party

v  R 706(b)(3) – may be called to testify by the court or any party

v  R 706(b)(4) - may be cross-examined by any party, including the party that called the expert

v  R 706(c) – is entitled to a reasonable compensation as set by the court

Author’s Note: “Voir Dire” is a French term of art used in Court. For the purposes of expert witnesses, Voir Dire means that an expert witness is examined by a judge or counsel in order for the Court to have sufficient information to make rulings about the witnesses’ qualifications and intended testimony. During Voir Dire an expert is likely to be asked about the expert’s qualifications and the methodology employed by the expert in rendering any expert opinions.

The Federal Rules of Civil Procedure do not contain a provision directly setting forth the powers of the parties and the court to conduct Voir Dire examination of expert witnesses. Instead, a Federal Court is free to allow the judge or counsel to question potential expert witnesses through Voir Dire as follows:

v  During a pre-trial hearing;

v  During trial, outside the hearing of the jury;

v  During trial, within the hearing of the jury.

Most Courts prefer to conduct Voir Dire outside the presence of the jury to eliminate the risk of prejudicial statements to the jury. However, when permitted, Voir Dire within the presence of the jury is an excellent opportunity for counsel to bolster the credibility of the expert witness.

ADMISSION OF EXPERT REPORTS AND EXPERT TESTIMONY INTO EVIDENCE

FEDERAL LAWSUITS.

Daubert Standards for Reliability

In all circumstances, expert reports and expert testimony cannot be admitted into evidence unless the opinions are shown to be reliable.

The Supreme Court has stated that, in order for a trial judge to determine whether the expert is proposing to testify to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue, this entails “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.”[5]

Some factors that bear on this inquiry are:

1) whether the expert's theories, methods or techniques can be or have been tested;

2) whether the technique, method, or theory has been subject to peer review and publications;

3) whether the known or potential rate of error of the technique when applied is acceptable; and

4) whether the technique, method, or theory has been generally accepted in the scientific community.

The Supreme Court was clear, however, that this was not a definitive or exhaustive list and was intended to be applied in a flexible manner. The focus is on the scientific validity and the evidentiary relevance and reliability of the principles and methodology underlying a proposed submission.[6]

Expert Reports

“Hearsay” means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement. Expert reports are “Hearsay” which is generally inadmissible as evidence.[7] The purpose behind making expert reports is usually to disclose the expert testimony intended at the time of trial and to guide the parties in evaluating case positions.

However, there are circumstances in which the admission of an expert report is appropriate either at trial or during summary proceedings. The admissibility of expert evidence is governed by the same rules, whether at trial or on summary judgment. [8]

Because the Daubert factors neither necessarily nor exclusively apply to all experts in every case, the trial court may consider one or more of those factors when doing so will help determine the reliability of an expert's opinion or testimony.[9]

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.[10]

The trial court must have the same kind of latitude in deciding how to test an expert's reliability, and to decide whether or when special briefing or other proceedings are  needed to investigate reliability, as it enjoys when it decides whether that expert's relevant testimony is reliable.

AUTHOR’S SUMMARY OF EXPERT WITNESS RULES WITHIN THE TEXAS RULES OF CIVIL PROCEDURE

Tex. R. Civ. P. 192.3(e) – Testifying and Consulting Experts.

The identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are not discoverable.

Author’s Note: The parties to an action are not allowed any discovery of any party’s expert who consults as to the litigation only – and is not testifying at trial and whose work is not reviewed by any other expert witness testifying at trial.  This means that “consulting only” experts may review the work of a party or of other “consulting only” experts without causing their identities and any of their work materials to become subject to discovery.

v  R 192.3(e) - A party may discover the following information regarding a testifying expert or regarding a consulting expert whose mental impressions or opinions have been reviewed by a testifying expert:

§  R 192.3(e)(i) - the expert’s name, address, and telephone number

§  R 192.3(e)(ii) - the subject matter on which a testifying expert will testify

§  R 192.3(e)(iii) - the facts known by the expert that relate to or form the basis of the expert’s mental impressions and opinions formed or made in connection with the case in which the discovery is sought, regardless of when and how the factual information was acquired

§  R 192.3(e)(iv) - the expert’s mental impressions and opinions formed or made in connection with the case in which discovery is sought, and any methods used to derive them

§  R 192.3(e)(v) - any bias of the witness

§  R 192.3(e)(vi) - all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of a testifying expert’s testimony

§  R 192.3(e)(vii) - the expert’s current resume and bibliography

Tex. R. Civ. P. 195.1 – Permissible Discovery Tools.

A party may obtain information concerning testifying expert witnesses only through disclosure under this rule and through depositions and reports as permitted by this rule.

Author’s Note: While Rule 195 is designed to be the exclusive form of discovery against testifying experts, if the testifying expert’s work was reviewed by any other of that party’s testifying experts, then the testifying expert and the expert’s work materials are subject to discovery as listed in R 192.3(e). For this reason, counsel may prohibit you from relying upon the opinions of other testifying experts in rendering your expert opinion.

Tex. R. Civ. P. 195.2 – Schedule for Designating Experts.

Unless otherwise ordered by the court, a party must designate experts by furnishing its experts’ information by the following dates:

v  R 195.2(a) - with regard to all experts testifying for a party seeking affirmative relief, 90 days before the end of the discovery period

v  R 195.2(b) - with regard to all other experts, 60 days before the end of the discovery period

Tex. R. Civ. P. 195.3 – Scheduling Depositions.

Author’s Note: Rule 195.3 sets forth a separate tool by which parties may conduct depositions of other parties’ experts, but this rule only applies to experts who are retained by, employed by, or otherwise subject to the control of a party. There are instances where a party to litigation designates an expert witness whose attendance to give testimony will be compelled by operation of law. These “non consenting” experts are subject to discovery and deposition by subpoena.

Experts for Parties Seeking Affirmative Relief

R 195.3(a) – A party seeking affirmative relief must make an expert retained by, employed by, or otherwise in the control of the party available for deposition as follows:

v  195.3(a)(1) – If No Report is Furnished. If a report of the expert’s factual observations, tests, supporting data, calculations, photographs, and opinions is not produced when the expert is designated, then the party must make the expert available for deposition reasonably promptly after the expert is designated. If the deposition cannot—due to the actions of the tendering party—reasonably be concluded more than 15 days before the deadline for designating other experts, that deadline must be extended for other experts testifying on the same subject.

v  195.3(a)(2) – If Report is Furnished. If a report of the expert’s factual observations, tests, supporting data, calculations, photographs, and opinions is produced when the expert is designated, then the party need not make the expert available for deposition until reasonably promptly after all other experts have been designated.

Other Experts

R 195.3(b) – A party not seeking affirmative relief must make an expert retained by, employed by, or otherwise in the control of the party available for deposition reasonably promptly after the expert is designated and the experts testifying on the same subject for the party seeking affirmative relief have been deposed.

Author’s Note: Unlike the Federal Rules of Civil Procedure, the Texas Rules of Civil Procedure state that all Voir Dire examinations of experts must take place outside the presence of the jury’s hearing. The judge might turn off the microphone to the witness stand, or else the judge might dismiss the jury from the room entirely.

Tex. R. Civ. P. 195.4 – Oral Deposition.

A party may obtain discovery concerning the subject matter on which the expert is expected to testify, the expert’s mental impressions and opinions, the facts known to the expert (regardless of when the factual information was acquired) that relate to or form the basis of the testifying expert’s mental impressions and opinions, and other discoverable matters, including documents not produced in disclosure, only by oral deposition of the expert and by a report prepared by the expert.

Author’s Note: The Court may Order, pursuant to Tex. R. Civ. P. 195.5(b), that the expert witness make and produce an expert report at the time of deposition.

Tex. R. Civ. P. 195.5 – Expert Disclosures and Reports.

v  R 195.5(a) – Without awaiting a discovery request, a party must provide the following for any testifying expert:

§  R 195.5(a)(1) - the expert’s name, address, and telephone number

§  R 195.5(a)(2) - the subject matter on which the expert will testify

§  R 195.5(a)(3) - the general substance of the expert’s mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by, employed by, or otherwise subject to the control of the responding party, documents reflecting such information

§  R 195.5(a)(4) - if the expert is retained by, employed by, or otherwise subject to the control of the responding party:

-          R 195.5(a)(4)(A) – all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert’s testimony

-          R 195.5(a)(4)(B) - the expert’s current resume and bibliography

-          R 195.5(a)(4)(C) - the expert’s qualifications, including a list of all publications authored in the previous 10 years

-          R 195.5(a)(4)(D) - except when the expert is the responding party’s attorney and is testifying to attorney fees, a list of all other cases in which, during the previous four years, the expert testified as an expert at trial or by deposition

-          R 195.5(a)(4)(E) - a statement of the compensation to be paid for the expert’s study and testimony in the case

Tex. R. Civ. P. 195.5(b) – Expert Reports.

If the discoverable factual observations, tests, supporting data, calculations, photographs, or opinions of an expert have not been recorded and reduced to tangible form, the court may order these matters reduced to tangible form and produced in addition to the deposition.

Tex. R. Civ. P. 195.5(c) – Expert Communications Protected.

Communications between the party’s attorney and any testifying expert witness in the case are protected from discovery, regardless of the form of the communications, except to the extent that the communications:

v  R 195.4(c)(1) – relate to compensation for the expert’s study or testimony

v  R 195.4(c)(2) – identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed

v  R 195.4(c)(3) – identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed

Tex. R. Civ. P. 195.5(d) – Draft Expert Reports and Disclosures Protected.

A draft expert report or draft disclosure required under this rule is protected from discovery, regardless of the form in which the draft is recorded.

Tex. R. Civ. P. 195.6 – Amendment and Supplementation.

A party’s duty to amend and supplement written discovery regarding a testifying expert is governed by Rule 193.5. If an expert witness is retained by, employed by, or otherwise under the control of a party, that party must also amend or supplement any deposition testimony or written report by the expert, but only with regard to the expert’s mental impressions or opinions and the basis for them.

v  R 193.5(a)(1) – If a party learns that the party’s response to written discovery was incomplete or incorrect when made, or, although complete and correct when made, is no longer complete and correct, the party must amend or supplement the response to the extent that the written discovery sought identification of expert witnesses

Deadline to Amend or Supplement Expert Information

v  R 193.5(b) – An amended or supplemental response must be made reasonably promptly after the party discovers the necessity for such a response. Except as otherwise provided by these rules, it is presumed that an amended or supplemental response made less than 30 days before trial was not made reasonably promptly. An amended or supplemental response must be in the same form as the initial response and must be verified by the party if the original response was required to be verified by the party, but the failure to comply with this requirement does not make the amended or supplemental response untimely unless the party making the response refuses to correct the defect within a reasonable time after it is pointed out.

Author’s Note: Case law on the meaning of “reasonably promptly” indicates that reasonably promptly is a matter of discretion for the presiding judge. Many Courts recognize that a party has supplemented reasonably promptly although the party produced materials in the weeks before trial. Considerations at play include late-discovered evidence, late-made counterclaims and requests for equitable relief, and late-joinder of parties to the lawsuit. The Court must also look to the prejudice to the parties when excluding any late-supplemented evidence, and thus supplements concerning the issues in dispute are more appropriate than supplements concerning indirect and corollary issues. Ultimately, during the 90 days proceeding trial, the expert should provide urgent attention to client requests for amendment or supplementation of the expert’s work.

If the experts or counsels fail to timely supplement expert materials, Don’t Panic. Continue cooperating and communicating with counsel who may argue to the Court that good cause exists for any delays, or that admission of the evidence will not unfairly prejudice any party. Further, the Court may order a continuance of trial to allow additional discovery, additional amendments, additional supplements, and additional responses of the parties. Finally, many civil matters settle just prior to trial, and the opposing parties may decide to stop conducting discovery during settlement negotiations.

Tex. R. Civ. P. 195.7 – Cost of Expert Witnesses.

When a party takes the oral deposition of an expert witness retained by the opposing party, all reasonable fees charged by the expert for time spent in preparing for, giving, reviewing, and correcting the deposition must be paid by the party that retained the expert.

 AUTHOR’S SUMMARY OF EXPERT WITNESS RULES WITHIN THE TEXAS RULES OF EVIDENCE

Tex. Evid. R. 702 – Testimony by Expert Witnesses.

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

Tex. Evid. R. 703 – Bases of an Expert’s Opinion Testimony.

An expert may base an opinion on facts or data in the case that the expert has been made aware of, reviewed, or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.

Tex. Evid. R. 705 – Disclosing the Underlying Facts or Data and Examining an Expert About Them.

v  R 705(a) – Stating an Opinion Without Disclosing the Underlying Facts or Data.

Unless the court orders otherwise, an expert may state an opinion — and give the reasons for it — without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.

v  R 705(b) - Voir Dire Examination of an Expert About the Underlying Facts or Data.

Before an expert states an opinion or discloses the underlying facts or data, an adverse party in a civil case may-or in a criminal case must-be permitted to examine the expert about the underlying facts or data. This examination must take place outside the jury’s hearing.

v  R 705(c) - Admissibility of Opinion.

An expert’s opinion is inadmissible if the underlying facts or data do not provide a sufficient basis for the opinion.

v  R 705(d) - When Otherwise Inadmissible Underlying Facts or Data May Be Disclosed; Instructing the Jury.

If the underlying facts or data would otherwise be inadmissible, the proponent of the opinion may not disclose them to the jury if their probative value in helping the jury evaluate the opinion is outweighed by their prejudicial effect. If the court allows the proponent to disclose those facts or data the court must, upon timely request, restrict the evidence to its proper scope and instruct the jury accordingly.

Author’s Note: The Court may appoint an Auditor over the parties, said Auditor being a recognized expert in the lawsuit.

Tex. Evid. R. 706 – Audit in Civil Cases.

Notwithstanding any other evidence rule, the court must admit an auditor’s verified report prepared under Rule of Civil Procedure 172 and offered by a party. If a party files exceptions to the report, a party may offer evidence supporting the exceptions to contradict the report.

Tex. R. Civ. P. 172 – Audit.

When an investigation of accounts or examination of vouchers appears necessary for the purpose of justice between the parties to any suit, the court shall appoint an auditor or auditors to state the accounts between the parties and to make report thereof to the court as soon as possible. The auditor shall verify his report by his affidavit stating that he has carefully examined the state of the account between the parties, and that his report contains a true statement thereof, so far as the same has come within his knowledge. Exceptions to such report or of any item thereof must be filed within 30 days of the filing of such report. The court shall award reasonable compensation to such auditor to be taxed as costs of suit.

ADMISSION OF EXPERT REPORTS AND EXPERT TESTIMONY INTO EVIDENCE

TEXAS LAWSUITS.

Robinson Factors for Reliability

Although an expert witness need not always be formally credentialed as a scientist, expert testimony on scientific matters naturally must be grounded in the methods and procedures of science.[11] Unreliable testimony, by contrast, includes that which is no more than subjective belief or unsupported speculation.

A witness may be qualified to testify as an expert based on his knowledge, skill, experience, training, or education. Tex. R. Evid. 702. However, The mere ipse dixit of the expert—that is, asking the jury to take the expert's word for it because he is an expert—will not suffice.[12]

Texas also recognizes that expert testimony is unreliable if there is simply too great an analytical gap between the data and the opinion proffered.

In the Robinson case[13], Texas identified six non-exclusive factors courts may consider in determining whether expert testimony is reliable:

1. the extent to which the theory has been or can be tested;

2. the extent to which the technique relies upon the subjective interpretation of the expert;

3. whether the theory has been subjected to peer review and/or publication;

4. the technique's potential rate of error;

5. whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and

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

These “Robinson Factors” are not always determinative when assessing an expert's reliability, but even when they are not, the court must be provided with some way of assessing the reliability of objected-to expert testimony, apart from the expert's credentials and say-so.[14]

Expert Reports

“Hearsay” means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.[15] Expert reports are “Hearsay” which is generally inadmissible as evidence. The purpose behind making expert reports is usually to disclose the expert testimony intended at the time of trial and to guide the parties in evaluating case positions.

However, there are circumstances in which the admission of an expert report is appropriate either at trial or during summary proceedings.[16]

A two-part test governs whether expert testimony is admissible: (1) the expert must be qualified; and (2) the expert’s testimony must be relevant and based on a reliable foundation.[17] If an expert’s qualifications are challenged, in deciding whether the expert is qualified, the trial court must ensure that the purported expert truly has expertise concerning the actual subject about which he or she is offering an opinion If the reliability of the expert’s testimony is challenged, the court must examine the principles, research, and methodology underlying the expert’s conclusions.[18]

The court does not determine whether the expert’s conclusions are correct, but only whether the analysis the expert used to reach those conclusions is reliable.[19]

AUTHOR’S SUMMARY OF EXPERT WITNESS RULES WITHIN THE COMMERCIAL RULES OF THE AMERICAN ARBITRATION ASSOCIATION

Procedure 2 – Preliminary Hearing Procedures.

The items to be addressed in a particular case will depend on the size, subject matter, and complexity of the dispute, and are subject to the discretion of the arbitrator, including an election under P-2(a)(xiii) – whether the parties intend to present evidence from expert witnesses, and if so, whether to establish a schedule for the parties to identify their experts and exchange expert reports.

Rule 35 - Evidence.

v  R 35(a) – The parties may offer such evidence as is relevant and material to the dispute and shall produce such evidence as the arbitrator may deem necessary to an understanding and determination of the dispute. Conformity to legal rules of evidence shall not be necessary. All evidence shall be taken in the presence of all of the arbitrators and all of the parties, except where any of the parties is absent, in default, or has waived the right to be present.

v  R 35(b) – The arbitrator shall determine the admissibility, relevance, and materiality of the evidence offered and may exclude evidence deemed by the arbitrator to be cumulative or irrelevant.

v  R 35(d) – An arbitrator or other person authorized by law to subpoena witnesses or documents may do so upon the request of any party or independently.

Rule 36 - Evidence by Written Statements and Post-Hearing Filing of Documents or Other Evidence.

R 36(a) – At a date agreed upon by the parties or ordered by the arbitrator, the parties shall give written notice for any witness or expert witness who has provided a written witness statement to appear in person at the arbitration hearing for examination. If such notice is given, and the witness fails to appear, the arbitrator may disregard the written witness statement and/or expert report of the witness or make such other order as the arbitrator may consider to be just and reasonable.

Author’s Note: The American Arbitration Association (AAA) maintains separate rules for disputes between personal and commercial; and sometimes separate rules based upon the following practice areas:

§  Commercial

§  Construction

§  Employment

§  International

§  Labor

§  Government

§  Consumer

Search for AAA’s Active Rules here: https://www.adr.org/active-rules

 AUTHOR’S SHORT GUIDES

EXPERT WITNESS PRIVILEGES

As highly qualified consultants and regulated professionals, there are aspects of your work which are subject to claims of professional negligence. Naturally, inexperienced expert witnesses fear the constant uncertainty of civil proceedings and initially are risk averse.

-          What if I misstate a fact in my expert writings or during testimony?

-          What if I offer opinions that are defamatory of some person or entity?

-          What if I am compelled to testify about a subject matter against the best wishes of my employer or client?

-          What if a lawyer or party misconstrues my opinions or testimony during proceedings?

Don’t worry, as expert witnesses in civil proceedings, you are absolutely privileged against what you do and say during official proceedings. That is to say, the judicial official presiding over the civil proceedings is exercising a judicial function and is absolutely immune from civil actions for defamation and libel, and you, as a participant in proceedings enjoy the privileges afforded the judge.[1]

For this reason, an expert’s focus should remain on the subject matter of the professional service, and not on the consequences of communications in written judicial materials and live proceedings.

“The reason for the official privilege is said to be that the threat of damage suits would otherwise inhibit the fearless, vigorous, and effective administration of policies of government and dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 282, 84 S. Ct. 710, 727 (1964)(internal quotations omitted).

“Even defamatory testimony is privileged, and the witness granted immunity, because of the public policy rationale that the privilege leads to more just trials by (1) encouraging more witnesses to come forward and (2) ensuring that witnesses will be more open and honest in testifying. The widespread recognition of the privilege is predicated on the idea that parties are protected from witness misconduct by (1) their ability to reveal any deficiencies in testimony through cross-examination and (2) the threat of prosecution for perjury or other sanctions against the witness.” Lawson v. Helmer, 77 P.3d 724, 727 (Alaska 2003).

         Defamation and libel concern interests protected by the states. The only recognized state causes of action for civil libel and civil defamation arising from communications made during the course of judicial proceedings all require that the wrongdoer act with actual malice.

AUTHOR’S SHORT GUIDES

CONSULTING V. TESTIFYING

Consulting Only Experts

Parties anticipating a claim, or parties in a civil proceeding, may wish to have expert consultants clarify the disputes involved in any particular claim, and further may ask experts to verify their attorney’s proposed arguments. All of these communications are designed to support the decision-making process of litigants, and these materials are not intended to be included in the actual civil proceedings.

Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial (consulting only experts). This exclusion of discovery against consulting only experts is known as “protection”. However, there are exceptional circumstances when the parties are only able to discover facts pertaining to the civil proceeding by seeking orders to compel information about consulting only experts.

Depending on the jurisdiction, materials of a consulting expert which are reviewed by a testifying expert may become discoverable.

Testifying Experts

The manner and method of obtaining discovery about a testifying expert is dependent upon the jurisdiction of civil proceedings. However, the general rule is that a testifying expert must either: (1) reduce their intended testimony and opinions into a written report; or (2) disclose their intended testimony and opinions during deposition; or (3) both (1) and (2).

         The most common types of testifying experts include:

         First, an expert may be used purely as a fact witness. One example is that an expert investigating a construction site may be called as a witness to testify as to the expert’s personal observations of the site on the day of the inspection. For obvious reasons, the expert’s personal observations are likely to have more credibility than an inexperienced lay witness because the expert has experience observing construction sites.

         Second, an expert may be used as a teaching witness. A party may wish to use the expert witness to explain the scientific or technical principles the jurors need to evaluate the facts in the case. One example of this is when an expert witness testifies to the common customs and practices of a particular industry without offering any opinion on the facts of the specific case.

         Third, an expert may be used as an evaluator by offering an opinion on the issues in dispute. This, the most common form of expert testimony, is when the expert employes a general theory or principal to evaluate the facts of the case. The expert may offer an opinion as to the facts of the case, or else may offer an opinion on a mixed question of fact and law (e.g., “after looking at all the facts, its is my opinion that defendant was the proximate cause of the damages to plaintiff”).

         Fourth, an expert may be used as a lay witness to offer lay opinion testimony. An example of this use is when an expert is a strong witness as to certain observations, although the expert did not employe any specific methodology to support the expert’s observations. One example may be when an expert describes an object as the size of the expert’s fist – although the expert did not actually measure the object.

         Finally, the testifying expert’s testimony generally covers five topics:

-          The witness’s qualifications as an expert;

-          The general methodology which the expert applied;

-          The underlying facts of the case, which the expert considered;

-          The expert’s opinions;

-          The expert’s explanation of the opinions.

AUTHOR’S SHORT GUIDES

MISTAKES TO AVOID

Ipse Dixit

Although the courts cannot rule as to the correctness or incorrectness of any expert conclusion (such determinations belong to the trier of fact), the courts must still act as “gate keepers” against unreliable ipse dixit by expert witnesses. For example, the court cannot allow an expert witness to testify that consuming lead is safe for children, despite most industry experts concluding that lead consumption is hazardous to children.

“Ipse dixit” is a Latin term that translates to “he himself said it.” In legal contexts, it refers to an assertion or statement made by an individual based solely on their own authority, without any supporting evidence or proof. Essentially, courts do not accept expert opinions based on an expert’s isolated conclusions within any particular field of expertise. An expert’s conclusions must be peer-reviewed and supported by industry experts, articles and papers, and verified methodology. This also means that an expert may not look at a set of facts and  apply a methodology or form an opinion as to those facts which is not supported by, or is contrary to, the prevailing view of other experts in the industry.

“A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” GE v. Joiner, 522 U.S. 136, 146, 118 S. Ct. 512, 519 (1997).

Overreaching Opinions

         An expert should take care when deciding which opinions can be rendered on behalf of a party in civil proceedings. The expert must be careful not to attempt to render opinions which are outside the scope of the expert’s field of expertise. Although the expert is likely more than capable of performing analysis in multiple fields, the expert should only employ such analysis in court when the expert has established credentials of expertise in the expert’s respective field.

         The test of the expert’s field of expertise is (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.

Confusion of the Issues

An excellent example of confusion of the issues is discussed by the Supreme Court of Texas:

Consider a situation in which a party bears the burden of proving there is no life on Mars, but the jury question inquires "Do you find by a preponderance of the evidence that there is life on Mars?" The jury's negative finding does not establish the converse—that there is no life on Mars—but merely reflects a failure to carry the burden of persuasion as to the presence of life on Mars. But even supposing a failure to find could be construed as establishing the obverse, it would not do so if the jury question interconnected two distinct inquiries, such as "Do you find by a preponderance of the evidence there is life and water on Mars?" The jury's negative response could be attributed to a failure to persuade as to one element or both. While there may be situations when the evidentiary record conclusively establishes one or the other, absent such circumstances, the party bearing the burden of obtaining an affirmative finding that there is no life on Mars lacks the fact findings necessary to do so.

Phila. Indem. Ins. Co. v. White, 490 S.W.3d 468, 489 n.12 (Tex. 2016).

Unsupported Industry Practices

             The expert should be wary of making references to common industry practices which are not verified by expert methodology. One example of this is when an expert testifies that a structure is sound because it was constructed the same way as most structures. In this case, the court can only allow the expert’s opinion as to soundness of the structure if the expert knows that the common practice of construction is the result of specific industry methodology to determine the soundness of the structure (e.g., references to the international building code). It is possible that certain prevailing construction practices are, in fact, unsound.

[1*] Restatement of the Law, Torts § 585.

[1*] Miller v. Wilson, 236 U.S. 373, 384, 35 S. Ct. 342, 344 (1915).

[2] Semler v. Or. State Bd. of Dental Exam'rs, 294 U.S. 608, 610, 55 S. Ct. 570, 571 (1935).

[3] Semler v. Or. State Bd. of Dental Exam'rs, 294 U.S. 608, 610, 55 S. Ct. 570, 571 (1935).

[4] Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 765, 96 S. Ct. 1817, 1827 (1976).

[5] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).

[6] WM Aviation, LLC v. Cessna Aircraft Co., No. 6:11-cv-2005-Orl-36GJK, 2013 U.S. Dist. LEXIS 150090, at *6 (M.D. Fla. 2013).

[7] Fed Rules Evid R 801(c).

[8] Runnels v. Tex. Children's Hosp. Select Plan, 167 F. App'x 377, 380 (5th Cir. 2006).

[9] WM Aviation, LLC v. Cessna Aircraft Co., No. 6:11-cv-2005-Orl-36GJK, 2013 U.S. Dist. LEXIS 150090, at *8 (M.D. Fla. 2013).

[10] Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S. Ct. 1167, 1176 (1999).

[11] Helena Chem. Co. v. Cox, No. 20-0881, 66 Tex. Sup. Ct. J. 389, 2023 Tex. LEXIS 208, at *11 (Mar. 3, 2023).

[12] Helena Chem. Co. v. Cox, No. 20-0881, 66 Tex. Sup. Ct. J. 389, 2023 Tex. LEXIS 208, at *11 (Mar. 3, 2023).

[13] E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995).

[14] Helena Chem. Co. v. Cox, No. 20-0881, 66 Tex. Sup. Ct. J. 389, 2023 Tex. LEXIS 208, at *14 (Mar. 3, 2023).

[15] Tex. Evid. R. 801(d).

[16] Piro v. Sarofim, 80 S.W.3d 717, 720 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (within court’s discretion to decide when and how to hold hearing on reliability factors).

[17] Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001).

[18] Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex. 2002).

[19] Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex. 2002).