law-experts | admission & exclusion of evidence | deficient affidavits | conclusory affidavit |
Rule 194 of the Texas Rules of Civil Procedure provides that if an expert is retained by a party, the other party
may request disclosure of "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." Tex. R. Civ.
The exclusion of evidence, including expert testimony, is committed to the trial court's sound discretion. Texas
Dep't of Transp. v Able, 35 S.W.3d 608, 617 (Tex. 2000); Buls v. Fuselier, 55 S.W.3d 204, 208 (Tex.
App.-Texarkana 2001, no pet.). The trial court abuses its discretion when its ruling is arbitrary, unreasonable,
or without reference to any guiding rules or legal principles. Buls, 55 S.W.3d at 208. For an expert's testimony
to be admissible under rule 702 of the Texas Rules of Evidence, the expert must be qualified, and the expert's
opinion must be relevant to the issues in the case and based upon a reliable foundation. TEX. R. EVID. 702;
Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 628 (Tex. 2002); E.I. du Pont de Nemours & Co. v. Robinson, 923
S.W.2d 549, 556 (Tex. 1995). The requirement that the proposed testimony be relevant incorporates traditional
relevancy analysis under rules 401 and 402 of the Texas Rules of Civil Procedure. Robinson, 923 S.W.2d at
556. To be relevant, the proposed testimony must be "sufficiently tied to the facts of the case that it will aid the
[fact finder] in resolving a factual dispute." Id. (quoting United States v. Downing, 753 F.2d 1224, 1242 (3d Cir.
1985)). Evidence that has no relationship to any of the issues in the case is irrelevant and does not satisfy the
rule 702 requirement that the testimony be of assistance to the fact finder. Id.
EXCLUSION OF EXPERT TESTIMONY | MOTION TO STRIKE EXPERT AFFIDAVIT /
LIVE WITNESS TESTIMONY | PAROLE EVIDENCE RULE
XTO Energy Inc. v. Smith Production, Inc. (Tex.App. - Houston [14th Dist.] Feb. 24, 2009)(Frost)
(contract interpretation, expert witness affidavit struck)
AFFIRMED: Opinion by Justice Frost
Before Justices Frost, Seymore and Guzman
14-07-00069-CV XTO Energy Inc. v. Smith Production Inc.
Appeal from 281st District Court of Harris County
Trial Court Judge: David J. Bernal
Dissenting Opinion by Justice Guzman (Tex.App. - Houston [14th Dist.] Feb. 24, 2009)(contract construction)
Failure to produce report /expert for deposition
Source: Duerr v. Brown et al (Tex.App.- Houston [14th Dist.] July 3, 2008)(Boyce)
(legal malpractice, breach of fiduciary duty, BoFD, claim splitting, continuance)
The failure to provide expert information as required by the rules is sanctionable by exclusion of that expert's
report. See Tex. R. Civ. P. 193.6; Moore v. Mem'l Hermann Hosp. Sys., Inc., 140 S.W.3d 870, 875 (Tex. App.-
Houston [14th Dist.] 2004, no pet.). To avoid this sanction, Duerr had to demonstrate that his failure to make
such disclosures would not have unfairly surprised or prejudiced Fleming, or that his failure to make such
disclosures was for good cause. See Tex. R. Civ. P. 193.6; Moore, 140 S.W.3d at 875.
The trial court acted within its discretion in striking Lyon and his affidavit. The trial court was entitled to
conclude that Fleming was prejudiced by the failure to (1) make Lyon available for deposition, or (2) provide
Fleming with Lyon's expert report. Similarly, Duerr did not establish good cause for waiting until the eve of trial
to begin engaging in discovery, or for failing to make his expert witness available until after the close of
discovery. Duerr's only argument was that Fleming did not make sufficient concessions to Duerr in scheduling
Lyon, and that any failure to make Lyon available was not due to Duerr's lack of willingness. The trial court
acted within its discretion in concluding that Duerr failed to establish good cause under Rule 193.6.
ADMISSION OF EXPERT TESTIMONY
Generally, courts review a challenge to the admission of expert testimony under an abuse of discretion
standard. See Taylor v. Am. Fabritech, Inc., 132 S.W.3d 613, 618 (Tex. App.- Houston [14th Dist.] 2004, pet.
denied). However, when a trial court admits expert testimony that is challenged on appeal as constituting Ano
evidence," as here, we review the reliability of the expert testimony using a de novo standard of review.
Transcon. Ins. Co., 274 S.W.3d at 96; Goodyear Tire & Rubber Co. v. Rios, 143 S.W.3d 107, 113 (Tex. App.-
San Antonio 2004, pet. denied).
Thomas v. Uzoka (Tex.App.- Houston [14th Dist.] May 28, 2009)(Sullivan)(auto collision liability,
negligence per se defense nonuse of seatbelt, proportionate responsibility, allocation of fault)
The trial court is charged with ensuring that expert testimony is based upon a reliable foundation and is
relevant to the issues in the case. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 728 (Tex. 1998).
In deciding the reliability of an expert's methodology and the underlying data, the trial court may consider
several non-exclusive factors, including (1) the extent to which the expert's theory has been or could be tested;
(2) the extent to which his technique relies upon subjective interpretation; (3) whether his technique has been
subjected to peer review and/or publication; (4) the potential error rate for the technique; (5) whether the
expert's underlying theories or techniques have been generally accepted as valid by the relevant scientific
community; and (6) the non-judicial uses that have been made of the theory or technique. See E.I. du Pont de
Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995). In addition, a trial court may give weight to the
expert's skill and experience when appropriate to do so. See Gammill, 972 S.W.2d at 726. If there is an
analytical gap between the expert's conclusions and the underlying data upon which he relies, his expert
testimony may be unreliable and inadmissible. See id.
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