August 27, 2015
In order to determine whether or not an expert opinion will be deemed admissible in Texas, attorneys should be guided by the Daubert-Robinson Doctrine, as well as the Texas Rules of Evidence (TRE). The Daubert-Robinson Rule combines the United States Supreme Court’s guidelines in Daubert with a broadened set of rules set out in the Texas Supreme Court’s Robinson case. See Daubert v. Merell Dow Pharmaceuticals, 509 U.S. 579 (1993); See E.I. du pont de Nemours & Co, Inc. v. Robinson, 923 S.W. 2d 549 (Tex. 1995). Moreover, TRE 702 sets out a two-prong test to determine whether an expert’s testimony should be admitted in court.
Part I of this series addressed the first prong, which deals with the requirement that expert evidence assist the trier of fact. This part discusses the second component of the test, which addresses whether an expert is considered qualified to provide an opinion to a judge and jury.
Part II: Qualifications:
As one attorney explained in a continuing legal education seminar for the State Bar of Texas, “In deciding whether an expert is qualified to offer an opinion, the trial court must determine that ‘those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion.’” Thomas C. Riney, “Expert Witness-Back to the Basics,” State Bar of Texas Annual Advanced Evidence & Discovery Course, 2012, quoting Gammill v. Jack Williams Chevrolet, Inc., 972 S.W. 2d 713, 719 (Tex. 1998); See also Broders v. Heise, 924 S.W. 2d 148, 152 (Tex. 1996). Two Texas Supreme Court cases, Gammill and Broders, offer some insight into the qualification requirement of TRE 702. See id. The Gammill Court found that simply because a person was a mechanical engineer did not necessarily make that person qualified to render an opinion in complex products liability litigation. See Gammill, supra. Similarly, in Broders, the Texas Supreme Court held that just because a party is a physician does not mean that individual is qualified to testify on the issue of causation in every case alleging medical malpractice. See Broders, supra. As one legal instructor noted, “Likewise, a degree in chemistry alone may not be sufficient to offer an opinion regarding tire chemistry.” Riney, supra, citing Cooper Tire & Rubber Co. v. Mendez, 204 S.W. 3d 797, 806 (2006). Clearly, the Texas courts and the TRE contemplate a situation in which an expert must possess more than simply a title or degree in order to be considered qualified to provide evidence in court.
Determining whether an expert is qualified to give testimony is quite tricky from the perspective of practicing attorneys. As one legal analyst points out, in Texas, “It is nearly impossible to lay down any definite guidelines for determining the knowledge, skill or experience required in a particular case or of a particular witness.” Riney, supra, citing Rogers v. Gonzalez, 654 S.W. 2d 509. 513 (Tex.–Corpus Christi 1983, writ ref’d n.r.e.). However, attorneys in Texas may find specific statutes helpful in assessing whether and when expert witnesses will be considered qualified to render their opinions.
For example, the Texas Civil Practice & Remedies Code (hereinafter “the Code”) offers some guidance on the matter of expert qualifications. The following examples are enumerated in the Code:
( a ). In medical liability cases, attorneys can refer to Section 74.402 of the Code, which sets forth the requirements for experts who wish to testify about “the departure from the standards of care” in medical liability cases. Riney, supra. Expert reports in health care liability claims must be served by claimants on adverse parties within 120 days of filing the original petition. The Code, §74.351.
Furthermore, the Code asserts that in such cases, any objections attorneys wish to make to an expert’s qualifications must be raised within 21 days of the objecting attorney’s receipt of the expert’s curriculum vitae or deposition. Id., citing The Code, §§74.401(e), 74.402(f), 74.403(b).
( b ). In cases that involve asbestos-related injuries, litigants must provide a report by a physician who has certain qualifications contemplated by § 90.003 of the Code.
( c ). In any actions or arbitrations that are against “licensed architects, surveyors, or engineers,” litigants must provide an affidavit by an expert, under § 150.002 of the Code. Riney, supra. This affidavit must be conducted by a “third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor.” The Code, § 150.002. Moreover, the party making the affidavit must:
The aforementioned list is by no means exhaustive, but it does offer attorneys in Texas some guidance as to what the courts will be looking for when attempting to determine whether an expert witness meets the qualification prong of the two-part test contemplated and codified by the TRE.
In Texas, it can be very difficult to understand whether a trial court will deem a Texas expert qualified to give testimony in a particular case. However, there are two ways in which attorneys can help to assess this and thereby protect their clients and experts. First, attorneys should understand that Texas requires a bit more than a witness who holds a particular title. In this respect, it appears that the courts are contemplating a showing that a specific witness has the highly-particularized set of knowledge needed for a given case, and that such determinations will be made on an individual basis. Neither attorneys nor experts should take it for granted that the fact that a witness may have been considered qualified in one case makes that person qualified in every case. Second, attorneys should pay careful attention to the statutes that cover the particular type of case that is being tried. Litigators who follow these two guidelines should find themselves in much better shape when the question of qualifications arises, and courts are more likely to reward attorneys who have familiarized themselves with the statutes and case law and have anticipated a discussion of their experts’ qualifications.