DAUBERT CHALLENGES IN PRACTICE

Moderator & Co-Author

GARY M. JEWELL, Houston
Christian, Smith & Jewell, LLP

Panelists
HONORABLE JEFFREY BROWN, Houston
Fourteenth Court of Appeals

HARVEY G. BROWN, JR., Houston

Wright, Brown & Close, LLP

HONORABLE TRACY CHRISTOPHER, Houston

Fourteenth Court of Appeals

HONORABLE SCOTT LINK, Houston

Christian, Smith & Jewell

HONORABLE CAROLYN WRIGHT, Dallas

Fifth District Court of Appeals

Co-Author
JOHN THOMAS OLDHAM, Houston
Christian, Smith & Jewell, LLP

State Bar of Texas

23RD ANNUAL
ADVANCED EVIDENCE AND DISCOVERY COURSE
May 20-21, 2010
San Antonio

CHAPTER 22
 2302 FANNIN, SUITE 500
HOUSTON, TEXAS 77002
PHONE: (713) 659-7617
FAX: (713) 659-7641

Gary M. Jewell - Partner

gjewell@csj-law.com

Gary Jewell’s practice focuses primarily in commercial litigation with an emphasis

on contract and partnership disputes. Over the years, he also gained
considerable experience handling a variety of other litigation assignments,
involving – among others - stock fraud, intellectual property, personal injury,
real estate, family, and employment matters. Gary is also a certified mediator.

Gary received his Bachelor of Science degree from Texas A&M University at
College Station, Texas, in 1981 and his Doctor of Jurisprudence from St. Mary’s
University School of Law at San Antonio, Texas, in 1990. Following law school,
Gary served as the Briefing Attorney for Justice Michol O'Connor of the First
District Court of Appeals, Houston, Texas.

Following his experience with the First District Court, Gary entered private
practice with an insurance defense firm. Ultimately, Gary found his way into a
partnership with his friends at Christian, Smith & Jewell in 1998.

In addition to the Texas State Bar, Gary is also admitted to practice before every
United States District Court in Texas and the United States Court of Appeals,
Fifth Circuit. In 2004, Gary was admitted to the New York Bar and the United
States District Court for the Southern District of New York.

Professional Affiliations Education

• State Bar of Texas (1991) • Bachelor of Science (Psychology), Texas A&M

• United States District Court, Southern District of University at College Station, Texas, 1981
Texas (1992) • Doctor of Jurisprudence, St. Mary’s University
• United States Court of Appeals, Fifth Circuit (1993) School of Law at San Antonio, Texas, 1990
• United States District Court, Northern District
of Texas (1993)
• United States District Court, Western District of
Texas (1994)
• State Bar of New York (2004)
• United States District Court, Eastern District of
Texas (2007)
• American Bar Association
• American Association for Justice
• Houston Bar Association
Family & Personal Interests

Gary settled in Kingwood, Texas after bouncing around the globe as a “military
brat.” He is married (to a “tea sip”) and has a daughter and a son – both of
whom are “Aggies.”

Like most, being an attorney is simply Gary’s “day job.” Gary’s true passion is
outdoor adventure, especially when it means being deep underwater. Gary is
an Advanced Open Water Instructor and teaches SCUBA diving in
Kingwood/Humble, Texas area. In addition to regularly leading groups of
divers on trips to Caribbean, he has been diving in a variety of locations around
the globe and is an avid spear-fisherman in the Gulf of Mexico. When Gary is
not diving, he also enjoys bird hunting, salt-water fishing – and much to the
chagrin of his spouse – computer gaming.

www.csj-law.com
 Justice Jeff Brown
Fourteenth Court of Appeals
1307 San Jacinto Street, 11th Floor
Houston, Texas 77002

JEFF BROWN was appointed to the Fourteenth Court of Appeals by Governor Rick Perry in December
2007 and won election to the same seat in 2008. Before taking the appellate bench, he served for six years
as judge of the 55th District Court in Harris County. He has been consistently one of the highest ranked
judges in the Houston Bar Association’s judicial-evaluation poll.

Jeff is board-certified in civil trial law by the Texas Board of Legal Specialization. Before becoming a judge,
he practiced at Baker Botts, trying jury cases throughout Southeast Texas. Before joining Baker Botts, he
was a briefing attorney to Justices Jack Hightower and Greg Abbott on the Texas Supreme Court.

He earned his bachelor’s degree in English from the University of Texas and his law degree with high
honors from the University of Houston. While in law school he served as chief note & comment editor of the
Houston Law Review.

In 2006, the Texas Young Lawyers Association named Jeff Outstanding Young Lawyer of Texas. Jeff has
been active in state and local bar activities, including service as judicial liaison to the Houston Young
Lawyers Association, chairman of HYLA’s Non-Profit Law Committee, co-chairman of the Houston Bar
Association’s John J. Eikenburg Law Week Fun Run and as vice-chairman of TYLA’s National Trial
Competition. He has served on the boards of directors of the Texas Lyceum, the Houston Law Review, the
University of Houston Law Alumni Association, the Texas Supreme Court Historical Society, the Texas
Center for the Judiciary, and the Christian Community Service Center.

An Eagle Scout, Jeff served on the Sam Houston Area Boy Scouts’ Urban Scouting Committee, a program
dedicated to bringing Scouting’s values to inner-city young men. He is committee chairman of Cub Scout
Pack 455, assistant scoutmaster of Boy Scout Troop 222, has coached baseball, soccer, and flag-football,
and often teaches Sunday school. He also volunteered for Operation Compassion, serving food to Katrina
evacuees in 2005. The Texas Jaycees named him one of the Five Outstanding Young Texans of 2008.

Jeff has been an adjunct professor at the University of Houston Law Center and is a member of the State
Bar’s Pattern Jury Charge Committee. He also serves on the editorial board of the The Advocate, the
quarterly journal of the State Bar’s Litigation Section. In 2008, he was elected to the American Law Institute.
He has served on the faculty of the National Judicial College.

Jeff and his wife, Susannah, a schoolteacher, live in southwest Houston with their three children, Kathleen,
Rob and Gus. They are active members of Bellaire United Methodist Church.
 HARVEY G. BROWN, JR.
WRIGHT BROWN & CLOSE, LLP
Three Riverway, Suite 600
Houston, Texas 77056
(713) 572–4321
E–mail: brown@wrightbrownclose.com

EMPLOYMENT
July 2003 to Present WRIGHT BROWN & CLOSE, LLP
Partner in Fifteen lawyer firm

Feb. 2002 to June 2003 Orgain, Bell & Tucker, LLP

Managing partner of the Houston office

June 1995 to Feb. 2002 Judge, 152nd District Court

Chair Harris County District Judges Legislative Committee
1998–2001
Administrative Judge of Panel over Diet Drug Cases
1998–2001
Administrative Judge Pipe Cases 1998–2000

1981 to 1995 Sewell & Riggs, A Professional Corporation, Houston

Litigation attorney (shareholder, 45–attorney firm)

Summer 1998 University of Houston School of Law

–Spring 2002 Adjunct Professor of Evidence, Trial Advocacy

EDUCATION
University of Texas School of Law, 1978 – 1981
J.D. with Honors, May 1981
Member Texas Law Review
Order of Coif

University of Texas at Austin, 1975 – 1978

B.A. in Psychology with High Honors, May 1978
Honors: Phi Beta Kappa, Phi Kappa Phi

PROFESSIONAL ASSOCIATIONS
American Law Institute
Texas Supreme Court Advisory Committee 1999 – present
Texas Supreme Court Jury Task Force 1996–1997
Board Certified by the Texas Board of Legal Specialization– Personal Injury Law
College of the State Bar of Texas
American Inns of Court – Garland Walker Inn 1997-2004
Fellow of the Texas Bar Foundation
Fellow Houston Bar Association
State Bar District–Four Committee on Admissions, 1986 to 1988
Charter Member – Institute for Responsible Dispute Resolution
Defense Research Institute
Judicial Section of the State Bar of Texas Legislative Committee 2000–2001
Course Director State Bar of Texas Advanced Personal Injury Course 2000
Member various State Bar of Texas CLE Course Committees
Member, State Bar of Texas Continuing Legal Education Committee 2004-2007
Member, PJC Volume 1 Committee, 2005 – present
Member, PJC Consistency Committee, 2007

AWARDS
State Bar of Texas Outstanding Law Review Article 2000
Houston Law Review Professional Legal Scholarship Award 2000

COMMUNITY SERVICE
Houston Habitat for Humanity, board member 1995–2004, advisory board member 2004-
present, vice president during Jimmy Carter work project in 1998, president 2000 –2001
Spring Branch Community Church, elder and Sunday school teacher 1992– 2002, Sunday
School Teacher 2004-Present.
Spring Branch Sports Association – Coach of baseball, basketball, softball and soccer
1991 – 2000. Served as commissioner and director of basketball leagues at various times
Memorial High School Community Network 2000–2007
Chairman, Parent Forum Committee 2003-2005
Chairman, 2005-2007
KSBJ Radio – board member January 2005-present

PUBLICATIONS
TRIAL OBJECTIONS: CIVIL AND CRIMINAL (2003)

Daubert Objections to Public Records: Who Bears the Burden of Proof?, 39 HOUS. L.
REV. 413 (2002)

2
Eight Gates for Expert Witnesses, 36 HOUS. L. REV. 743 (1999)

Procedural Issues Under Daubert, 36 HOUS. L. REV. 1133 (1999)

The Summary Jury Trial: Perspectives of Bench and Bar, The Houston Lawyer, March
and April 2001, at 32

Practical Tips on Expert Witnesses, The Advocate (2006)

The Summary Jury Trial Part II: Perspectives of Bench and Bar, The Houston Lawyer,
May and June 2001, at 16

Section 1983: The Vehicle for Vindicating Employees' Constitutional Rights, 47

BAYLOR L. REV. 619 (1995)

Government Noninvolvement With Religious Institutions, 59 TEX. L. REV. 921 (1981)

3
 TRACY CHRISTOPHER
Justice, 14th Court of Appeals
1307 San Jacinto, 11th Floor
Houston, TX 77002
(713) 655-2800

Professional Experience:

2009 to present Justice, 14th Court of Appeals Harris County, TX

Member of a nine member intermediate court of appeals with jurisdiction over civil and
criminal appeals in a ten county area.

1995 - 2009 Judge, 295th Civil District Court Harris County, TX

Judge, General Civil Docket.
Region 2, Rule 11 judge, Baycol cases.
Regions 4 & 5, Rule 11 judge, Oil and Gas tax cases.
Statewide Rule 13 judge, silica cases.

1986-1994 Susman Godfrey Houston, TX

Prepared and tried commercial lawsuits for the plaintiff and the defense. Briefed and
argued cases before the Texas appellate courts.

1981-1986 Vinson & Elkins Houston, TX

Prepared and tried personal injury lawsuits primarily for the defense. Briefed and argued
cases before the Fifth Circuit.

Education:

1978-1981 University of Texas School of Law Austin, TX

J.D. with honors

1974-1978 University of Notre Dame South Bend, IN

B.A. in Economics, with honors

Awards, Certifications and Committees:

2001 Trial Judge of the Year, Texas Association of Civil Trial and Appellate Specialists
Board Certified in Civil Trial Law by the Texas Board of Legal Specialization
Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization
Supreme Court Advisory Committee 2003-2011
Pattern Jury Charge Committee 2004-2010, Chair of Oversight 2007-2010
Houston Bar Life Fellow and Texas Bar Fellow
College of the State Bar
Administrative Judge, Civil Trial Division 2002-2003, 2009
 23 0 2 FA N N IN , S U IT E 5 0 0
HOUSTON, TEXAS 77002
PH O N E : (7 1 3 ) 6 5 9 -7 6 1 7
FA X : (7 1 3 ) 6 5 9 -7 6 4 1

Scott Link - Partner

slink@ csj-law .com

Scott Link served 11 years as a ju d g e for the 8 0 th T exas State D istrict Court before retiring in 2003. H e has since served on the
Liaison Com m ittee to the Texas State Silica M ulti-D istrict Litigation and the Liaison Com m ittee to the T exa s State Asbestos M ulti-
D istrict Litigation. Scott taught Civil Trial Advocacy from 1996-1999 at South Texas College of Law as an Adjunct Professor. Scott
now focuses his practice on com m ercial litigation. H e vigorously represents his clients in S ta te a n d Federal Courts across the nation.
H e also has represented num erous clients before Arbitrators and Arbitration Com m ittees. Scott has b een a p pointed as an arbitrator
on several cases and is a certified m ediator. H e is board certified in Civil Trial Law and Personal Injury Trial by the T exa s B o a rd of
Legal Specialization.
Education
University of Texas, Austin
·
University of H ouston
·
D octor of Jurisprudence, South Texas College of Law
·
Professional A ffiliations
United States Court of Claim s
·
United States D istrict Court, Northern D istrict of Texas
·
United States D istrict Court, Southern D istrict of Texas
·
United States D istrict Court, Eastern D istrict of Texas
·
United States D istrict Court, W estern D istrict of Texas
·
State Bar of Texas
·
Justice of the H onor Court, South Texas College of Law
·
H onors & D istinctions
Texas Trial and Appellate Specialists “Trial Judge of the Year”, 1997
·
M aster Asbestos Judge for H arris County, Texas, 1995-2002
·
Chairm an; M ass Tort Com m ittee for the Board of D istrict Judges, 1997-2000
·
Co-Chair; Board of D istrict Judges Breast Im plant Com m ittee, 1998-2000
·
Elected to the Am erican Board of Trial Advocates, 2003
·
Am Jur Aw ards for Excellence in Educational Achievem ent, South Texas College of Law
·
Publications & Speeches
Scott has published num erous papers and articles in the areas of M ass Torts, Challenges to Experts, Tort Reform , Evidence, Trial
Techniques, Jury Charge, and Injunctions.

www.csj-law.com
 
CHIEF JUSTICE CAROLYN WRIGHT
Fifth District Court of Appeals
600 Commerce St., Ste. 200
Dallas, TX 75202
(214) 712-3410 Fax (214) 745-1083

Chief Justice Carolyn Wright, 5th District Court of Appeals, has served in the Texas judiciary for more than 25
years. She is a native Texan and “overseas military brat.” Her judicial service includes: 15 years on the court of
appeals, which has jurisdiction over both civil and criminal appeals from trial courts in the six large North Texas
counties from which she is elected; 8 years as a State District Judge; and 3 years as an appointed Associate Judge in
the Family District Courts. Prior to her judicial service, she was engaged in the private practice of law in areas of
business transactions and litigation, as well as juvenile and family law. She graduated from the Howard University
School of Law, Washington, D.C. Prior to and during law school, she worked for the federal government in a law-
related field of juvenile justice. She is a frequent lecturer and speaker at educational institutions and State Bar of
Texas CLE programs. She is a former volunteer faculty member of the Texas Center for the Judiciary and the
National Judicial College, Reno, Nevada. Her professional memberships and service include: Past Chair and
Sustaining Life Fellow of the Texas Bar Foundation, a multi- million dollar legal charity; Fellow of the Foundations
of the Dallas Bar and Dallas Young Lawyers; Member of the College of the State Bar of Texas, the National and
American Bar Associations and the JL Turner African-American Legal Association; the Judicial Ethics Committee
and a Texas Supreme Court Appellate Tribunal for removal of a judge from elected office; appointed to the Texas
MDL panel; appointed to a task force to set national standards for mediation practice and a trail-blazer in Texas
court-connected mediation. Awards and Honors include: National Association of Women Lawyers’ Leadership
Award; the ABA Business Section’s Award for contributions to women and proficiency in law; Howard University
School of Law’s “Distinguished Alumnus Award;” Dallas Bar Association’s MLK, Jr. Award for Justice; Dallas
Women Lawyers’ Louise Raggio Award; J. L. Turner Legal Association’s Distinguished Jurist Award; the
American Jewish Congress’s “Woman of Spirit” Award; the Women Council’s Distinguished Public Service
Award; Altrusa International’s Public Service Award; and Governor Bush’s “Yellow Rose of Texas Award” for
community-service, as well as numerous others.
Daubert Challenges in Practice Chapter 22

TABLE OF CONTENTS

I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. TEXAS CASE LAW ON EXPERT RELIABILITY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III. PRACTICAL APPLICATION OF THE LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. Proponents Perspective. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2. The Opponent’s Perspective. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

APPENDIX: TERMS, RULES, CASE LAW AND PRACTICE POINTERS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Operational Terms Defined.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Texas Rules of Evidence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Relevant Case Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Suggested Practice Pointers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

DAUBERT CHART.......................................................................................................................................................13

i
D a u b e r t C h a ll e n g e s i n P r a c t i c e
DAUBERT CHALLENGES IN
PRACTICE
I. INTRODUCTION:
This article focuses on Texas case law and rules and
will give an “executive summary” of the law concerning
the admission of expert testimony in Texas. Following
the overview - along with the attached appendix - we
proffer practice pointers that lawyers may consider
carefully when preparing to defend or challenge the
opinions of an expert witness.
II. T E X A S CASE LAW ON EXPERT
RELIABILITY:
Expert testimony many times is the difference
between success and failure in complex litigation. In
1993, the United States Supreme Court in Daubert
recognized this and delineated four factors to try to
excise “Junk Science” from playing a part in jury trials
across the nation, realizing the need for a more
streamlined approach to analyzing the reliability of
expert testimony.1 The four factors that make up the
Daubert standard are: (1) whether a theory or technique
can be and has been tested (falsifiability); (2) whether the
theory or technique has been subjected to peer review
and publication; (3) the technique’s known or potential
rate of error; and (4) the general acceptance of the theory
or technique by the relevant scientific community.
In 1995, the Texas Supreme Court was provided the
perfect opportunity to extend Daubert. However, rather
than applying only the four factor’s of Daubert to expert
testimony, the Texas Supreme Court in Robinson decided
to add two more factors to this non-exclusive test.2 The
two factors added were: (1) the extent to which the
technique relies upon the subjective interpretation of the
expert, and (2) the non-judicial uses which have been
made of the theory or technique.3
These six factors became what is known so well to
trial attorneys in Texas as the Daubert/Robinson test.
Shortly thereafter, the Texas Courts were presented with
another issue in the continuing saga of expert testimony;
how to address the “soft sciences” or testimony based
solely on personal experience of the expert. In 1997 and
1998, the Texas Supreme Court articulated another
1 5
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993).
2
E.I. Dupont de Nemours & Co. v. Robinson, 923 S.W .2d 549
(Tex. 1995).
3
Id. at 557.
1
C h a p te r 2 2
analysis, known as the “Analytical Gap” test through its
opinions issued in Havner and Gammill.4
The “Analytical Gap” test should only be applied
when the Daubert/Robinson factors would not effectively
operate to determine the reliability of the expert.
Primarily this served to present a minimum standard to
be met by expert testimony when testifying on personal
experience, outside of hard sciences such as
thermodynamics or physics. The test, as set forth in
Gammill, was to evaluate the methodology and analysis
relied on by the expert and the ultimate opinions that
were reached. If too great an “analytical gap” was found,
the expert’s testimony was deemed unreliable and thus
inadmissible. One significant factor was whether the
expert had ruled out other possible causes, if testifying
about the causation element. “Assuming [the expert] was
correct, he has offered nothing to suggest that what he
believes could have happened actually did happen. His
opinions are little more than ‘subjective belief or
unsupported speculation.’”5 Because of the existence of
two tests, and ambiguity as to which should be applied
in what circumstance, courts have since been wrestling
with the application of each.
In 2006, the Texas Supreme Court decided two
different cases in which they sought to clarify the
application of the two tests.6 In Mack Trucks and Cooper
Tires, the Court rejected the application of the
“Analytical Gap” test when the Robinson factors could
have been applied. This signaled somewhat of a retreat
towards stricter scrutiny of expert testimony, as parties
could not simply announce their experts would be
testifying based on personal experience, thus negating
Robinson.
In 2007, the Texas Supreme Court was again
presented with an opportunity to strike down expert
testimony founded in the “soft sciences” when it decided
Pleasant Glade.7 In Pleasant Glade, expert testimony of
psychiatrists and clinical psychologists was admitted
based almost entirely on interviews with the plaintiff.
The plaintiffs in the case were claiming Post Traumatic
Stress Disorder after two chilling incidents at their
church. The facts were in dispute, but some type of
exorcism was attempted.
4
Merrel Dow Pharmaceuticals, Inc. v. Havner, 953 S.W .2d 706
(Tex. 1997); Gammill v. Jack Williams Chevrolet, Inc., 972
S.W .2d 713 (Tex. 1998).
Id.
6
Mack Trucks v. Tamez, 206 S.W .3d 572 (Tex. 2006); Cooper
Tire & Rubber Co. v. Mendez, 204 S.W .3d 797 (Tex. 2006).
7
Pleasant Glade Assembly of God v. Schubert, 264 S.W .3d 1
(Tex. 2008).
D a u b e r t C h a ll e n g e s i n P r a c t i c e
The Texas Supreme Court, rather than grapple with
the expert testimony predicament presented, decided to
dismiss the case as falling under the protection of the first
amendment, since “laying of the hands” was a church
practice.
Since Pleasant Glade, there have been a number of
expert testimony cases decided by the courts. In
particular, two of these have been heard by the Texas
Supreme Court, with another currently pending review.
In May of 2009, the Texas Supreme Court once
again reaffirmed that when there is too great an
“analytical gap” between the evidence and the expert’s
conclusions, it amounted to no evidence. In Pollock, the
plaintiffs had alleged that in utero exposure to the
chemical benzene had caused their daughter to have
leukemia.8 The defendant in the case, City of San
Antonio, did not even challenge the reliability of the
expert testimony that in utero exposure to benzene
caused leukemia. In fact, the City conceded that at high
enough levels, benzene could in fact cause leukemia and
other chromosomal abnormalities. Instead, the City
challenged the concentration levels of benzene that the
expert had hypothesized.
Because this was not a challenge to the reliability of
the expert testimony, the Texas Supreme Court pointed
out the fact that a challenge as to the testimony being
legally insufficient evidence could be made for the first
time on appeal.9 The Texas Supreme Court determined
that there was too great an “analytical gap” between the
(albeit reliable) expert data and methodology, and the
conclusions that the expert ultimately held. Because of
this “no evidence” holding by the Texas Supreme Court,
a take nothing judgment against the Pollocks was
rendered, rather than a reverse and remand for a new
trial.10 This poses a major complication in the realm of
expert testimony. Recall that in Gammill, the Court held
that it is the obligation of the trial court to act as
“gatekeeper” to ensure relevance and reliability of expert
testimony.11 Parties should not be allowed to have their
opponents evidence admitted, only to challenge the
reliability of the evidence at the judgment stage of trial or
8
City of San Antonio v. Pollock, 284 S.W .3d 809, 811 (Tex.
2009).
9 17
Id.
10
Id. at 821.
11
Gammill, 972 S.W .2d at 728.
2
C h a p te r 2 2
later on appeal.12 This would, in effect, usurp the trial
courts “gate keeping” function.
In Whirlpool, a decision issued by the Texas
Supreme Court in December of 2009, the Court once
again struck down expert testimony and rendered a take
nothing judgment against the plaintiffs.13 In this products
liability case, the jury found that a design defect in an
electric clothes dryer caused a fatal fire.14 On appeal, the
Corpus Christi Appellate Court affirmed, concluding that
the expert testimony was based on personal experience,
so its review was limited to determining whether an
“analytical gap” existed between the data he used and his
conclusions. The review did not incorporate the
reliability factors of Robinson.15 The Texas Supreme
Court reviewed the evidence, once again, not under the
abuse of discretion standard for determining the
reliability of the expert testimony, but under a “de novo
like” standard of review, being that it was a no evidence
challenge.16 The Court held that the trial court should
have applied the Robinson factors to the expert
testimony, and that simply because the expert was
testifying based on personal experience, this did not
preclude the application of the factors to the underlying
tests and methodology that the expert relied on when
formulating his opinion. Due to the expert testimony
relying on facts that were themselves subject to the
Robinson gauntlet, and the failure of the trial court to
even apply these, the Texas Supreme Court held that the
expert testimony was legally insufficient, reversed the
lower court and rendered a take nothing judgment. 17
In a case currently pending review, the Texas
Supreme Court will once again be presented with a trial
court’s decision to exclude expert testimony based on its
unreliability. In St. Clair v. Alexander, the trial court
refused to allow the plaintiff’s expert to testify as to the
standard of care involved in the surgery that plaintiff had
undergone.18 The expert used “differential diagnosis” to
pinpoint the cause of injury by systematically ruling out
12
Pollock, 284 S.W .3d at 817. (“An objection is required to
give the proponent a fair opportunity to cure any deficit and
thus prevent trial by ambush.”).
13
Whirlpool Corp. v. Camacho, 298 S.W .3d 631 (Tex. 2009).
14
Id. at 633.
15
Id. at 637.
16
Id. at 638.
Id.
18
St. Clair v. Alexander, No. 13-08-00218-CV, 2009 Tex.
App. LEXIS 7682 (Tex. App.-Corpus Christi Sep. 30, 2009,
pet. filed)(mem. op.).
D a u b e r t C h a ll e n g e s i n P r a c t i c e
other causes.19 The expert identified three possible
causes of the plaintiff’s current condition, then ruled out
two through contravening data, leaving only one possible
explanation for the plaintiff’s current injury. 20 The
Corpus Christi Court of Appeals determined that the trial
court’s refusal to admit the expert testimony, and the
subsequent granting of a no evidence summary judgment,
was an abuse of discretion.21 The Court of Appeals’
greatest critique of the trial court was the failure to lay
out the grounds for its refusal to admit the expert
testimony.22 Because the Court of Appeals used both the
Robinson factors and the “Analytical Gap” test in
reversing the trial courts decision, we believe the petition
to the Supreme Court is likely to be denied. If the Texas
Supreme Court does in fact decide to validate the
decision by refusing the petition, this would continue the
trend of applying both tests to expert testimony. As long
as a trial court lays out the basis for its opinion, and
follows Robinson if possible, its decision should be
upheld on appeal.
The Texas Supreme Court appears to be growing
ever more cynical with allowing parties to sidestep the
Robinson factors simply by proclaiming that their expert
is testifying based on personal experience. Although it
is a shorter hurdle to clear, the consequences of vying for
the “Analytical Gap” test - rather than the Robinson
factors - can be daunting.
As seen in both Whirlpool and Pollock, the Texas
Supreme Court is likely to use the “de novo like”
standard, and look towards the legal sufficiency of the
evidence, rather than abuse of discretion standard,
looking only to whether the trial court was within the
bounds of its discretion. These cases, continuing with
the tradition set forth in Mack Trucks and Cooper Tire,
signal a resurgence in the Robinson factors being the
cornerstone of expert reliability.
III. PRACTICAL APPLICATION OF THE LAW :
1. Proponents Perspective
The burden of proving reliability of an expert is on
the proffering party, after the appropriate challenge is
made.23 The only thing an opposing party must do is
raise a timely objection, and the proffering party must be
prepared prior to and during trial to defend the experts
reliability. If the proper foundation is laid at the trial
19
Id. at 12.
20
Id. at 13.
21
Id. at 16.
22
Id. at 12.
23
Robinson, 923 S.W .2d 549.
3
C h a p te r 2 2
court, and the expert’s methodologies and theories have
been proven up with supporting data through the
evidence, the likelihood of being reversed for legal
insufficiency on appeal is greatly diminished. It is
crucial to thoroughly prepare from the moment it is
determined that an expert is needed. This preparation
begins with selection of the appropriate expert.
When choosing the expert, research the expert’s
qualifications, and his/her prior experience in the subject
matter. This includes but is not limited to prior witness
testimony, prior conflicting view points, etc.24 In
Robinson, the Texas Supreme Court determined that one
of the two factors that would be added to the Daubert
standard would be the non-judicial uses of the theory or
technique.25 “Opinions formed solely for the purpose of
testifying are more likely to be biased toward a particular
result.”26 It seems as though the Court was expressly
frowning upon the reliability of “Professional Testifiers.”
When choosing an expert and later when designating
him/her, it is important to fully understand what that
expert will be testifying about, more specifically,
whether he/she will be testifying about one of the “hard
sciences”, “soft sciences”, or personal experience. “Hard
sciences” are generally thought of as those that can be
unequivocally proven through the scientific method, such
as physics or thermodynamics. “Soft sciences” on the
other hand will encompass such things as psychology,
psychiatry, or social sciences.
From a practical perspective, an expert will generally
be testifying in regards to a combination of two or more
of the fields rather than one individually, such as the
situation in Pleasant Glade. In Pleasant Glade, expert
testimony about the psychological harm inflicted upon
the plaintiff was admitted based substantially on
interviews with the plaintiff and her family. 27 This
testimony was proffered by clinical psychologists as well
as psychiatrists, it being based on both “soft sciences”
and personal experience. It is well established that the
Robinson factors should be applied when they would
help determine the reliability of the expert. When the
Robinson factors would not help to determine the
reliability of the expert, such as testimony based on
personal experience, the “Analytical Gap” test
established through Havner and Gammill would apply.
This test, as noted earlier, looks to the expert’s theories
24
James W . Christian & Alistair B. Dawson, Daubert
Challenges, 10 (Advanced Evidence and Discovery Seminar,
2007).
25
Robinson, 923 S.W .2d at 556.
26
Id. at 559.
27
Pleasant Glade, 264 S.W .3d at 5.
D a u b e r t C h a ll e n g e s i n P r a c t i c e
and methodologies and the final conclusions drawn by
the expert to see if there is “too great an analytical gap”
to be reliable.28
It appears in all practicality that simply stating that
your expert would be testifying based on personal
experience, and proffering evidence that there is no
“gap” in the methodology and conclusions, may be the
more efficient way to approach the situation. However,
as seen most recently in Whirlpool, this can be the end
game with a legal sufficiency challenge at the judgment
stage of trial or even for the first time on appeal. 29 In
Whirlpool, although the expert was testifying based on
personal experience, the Texas Supreme Court held that
1) because the tests and evidence relied on by the expert
were themselves subject to the Robinson factors, and 2)
the trial court’s decision to bypass these in applying the
“Analytical Gap” test, that this amounted to no evidence.
The key lesson to be learned from this is that regardless
of what your expert is testifying about, if the Robinson
factors can be applied, they must.
Furthermore, if your expert is testifying in regards to
some type of causation (which most experts are) then a
failure to rule out other possible causes can render the
testimony conclusory or speculative. This, if not
properly addressed, could lead to a decision being
overturned based on legal sufficiency. “ . . . An expert
should carefully consider and rule out alternative causes,
and the failure to rule out other causes results in
speculation and conjecture and amounts to no evidence
of causation.”30 As a better practice, the proffering party
should, if possible, give evidence as to why the expert
withstands the Robinson factors, even without a proper
challenge by the opposing party. This would, it seems,
insure that the appellate courts review the decision under
an abuse of discretion standard; rather than using a “de
novo like” approach when deciding a legal sufficiency
challenge.
In conclusion, it seems as though an easier path
would be to sidestep the Robinson factors in favor of the
“Analytical Gap” test, when in reality, this could prove
fatal. The Texas Supreme Court in recent years has
overturned several cases on legal sufficiency grounds
(using a “de novo like” rather than an abuse of discretion
standard) due to the trial courts decision not to employ
the Robinson factors when evaluating expert testimony.
Once the expert has been admitted after being put to the
test under the Robinson factors, he is virtually safe from
appellate scrutiny, absent an abuse of discretion. The
28
Gammill, 972 S.W .2d at 726.
29
Whirlpool, 298 S.W .3d at 637.
30
Hess v. McLean Feedyard, Inc., 59 S.W .3d 679, 687 (Tex.
App–Amarillo 2000, pet. denied).
4
C h a p te r 2 2
safer approach favors designating an expert with the
Robinson factors in mind, or at least preparing your
expert for the inevitable challenge prior to trial using
Robinson as a reference.
2. The Opponent’s Perspective
Although it was once believed that you were only
given one chance to object to unreliable expert testimony
being admitted without any recourse after trial had
began, this no longer appears to be the case. In the past
decade the Texas Supreme Court has reversed several
different decisions on the grounds that the expert
testimony relied on was “no evidence.” 31 Although an
objection to the reliability of the expert testimony must
be made at trial, to attack the testimony by the expert
witness as being conclusory or speculative can be made
for the first time on appeal. 32 As seen in Pollock, an
opposing party may concede the reliability of the
expert’s underlying data and methodology, and then at
the judgment stage or even on appeal object to the
testimony as “no evidence” based on the gap between the
underlying data and the expert’s ultimate conclusions. 33
The proper basis to object to expert testimony at the
pretrial and trial stage is simply to raise an objection in
regards to the reliability of the expert; the burden to
prove reliability will then be on the party presenting the
evidence. After the proffering party has made some sort
of a prima facie showing in regards to the reliability, it is
up to the court to decide if the evidence is admissible.
The most effective way to keep expert testimony out of
the trial is a two step process. The first step would be to
show that the testimony is subject to the Robinson test
and the second step is to show why the testimony does
not meet that standard. The effectiveness of disproving
the reliability of expert testimony by using the Robinson
factors is enunciated in Mack Trucks and Cooper Tires.
Mack Trucks effectively broadened the scope of
applicability for the Robinson factors, and Cooper Tires
showed just how damning those factors can be when
critically applied to any expert.” 34 The initial step will
likely be the highest hurdle as many times the proponent
will simply allege that the expert is testifying based on
personal knowledge and that the “Analytical Gap” test
should be employed. Coming upon this situation, one of
31
Whirlpool, 298 S.W .3d at 643.
32
Coastal Transp. Co. v. Crown Central Petrol. Corp., 136
S.W .3d 227, 232 (Tex. 2004).
33
See Pollock, 284 S.W .3d 809.
34
James W . Christian & Alistair B. Dawson, Daubert
Challenges, 10 (Advanced Evidence and Discovery Seminar,
2007).
D a u b e r t C h a ll e n g e s i n P r a c t i c e C h a p te r 2 2

three routes or a combination thereof could likely be reverse and render would issue, rather than the proponent
taken: (1) object to the evidence based on the fact that of the evidence getting another chance at the case on
Robinson should apply, and that the testimony would fail remand. It is important to distinguish between the
to meet the Robinson threshold, (2) object that there is “Analytical Gap” test derived from Havner and Gammill
some type of “analytical gap” between the methodology that applies to expert reliability, and a legal sufficiency
and data relied on by the expert and his ultimate opinion, challenge on appeal.
or (3) simply say nothing. At first glance, saying nothing The “Analytical Gap” test merely goes to the
seems to be an enormous mistake; however, a legal reliability of the expert testimony, whereas a legal
sufficiency challenge can be made for the first time at the sufficiency challenge is to all the evidence presented in
judgment stage, or on appeal.35 the cumulative. “When a scientific opinion is admitted in
In Pollock, the defendant conceded that the expert’s evidence without objection, it may be considered
data and methodology was reliable and then made a probative evidence even if the basis for the opinion is
challenge to the legal sufficiency of the evidence at the unreliable. But if no basis for the opinion is offered, or
judgment stage and on appeal that the “gap” between the the basis offered provides no support, the opinion is
expert’s methodology and his ultimate opinions was so merely a conclusory statement and cannot be considered
great as to render his testimony as “no evidence”. The probative evidence, regardless of whether there is no
Texas Supreme Court ratified this approach stating that objection.”36 To make a “no evidence” challenge at the
an objection to the legal sufficiency of the evidence judgment stage of trial or later on appeal, the error must
could be made for the first time on appeal, as long as the be on the face of the record, such as a challenge that the
challenge is restricted to the face of the record. If a party expert testimony is “speculative or conclusory on its
were to object to the expert testimony before trial based face.” 37
on a “gap” in the reasoning or, in the alternative, that the The most effective strategy for attacking expert
expert had failed to rule out other possible causes if testimony appears to be with the application of the
testifying to causation, then the proponent of the Robinson factors at the trial court level, and then later
testimony may have a chance to remedy. Their remedies through a legal sufficiency challenge during either the
include, but are not limited to, designating a new expert judgment stage of trial or on appeal.
or supplementing exhibits to bolster or buttress the
expert’s testimony.
The most practical and safest route would be to
object to the expert as being unreliable based on the
Robinson factors or, in the alternative, that there is an
“analytical gap” between his data and ultimate
conclusions. This would allow you to preserve error on
appeal on the reliability of the expert as well as not
“tipping your hand” if you believe that the testimony is
conclusory or speculative on the face of the record, since
this would be a legal sufficiency point not needed to be
preserved through objection at the trial court level.
There are two benefits to challenging the testimony
as to legal sufficiency on appeal. One of these benefits
is the standard of review that the appellate court will use.
On appeal, if the reliability of the expert is preserved at
the trial court, the court of appeals will use an abuse of
discretion standard giving great weight to the trial court’s
decision to admit the testimony. If, however, a legal
sufficiency challenge is taken on appeal, the appellate
court will use a “de novo like” standard of review giving
almost no deference to the trial court’s decision. The
other benefit to using a legal sufficiency challenge on
appeal is that if the appellate court decides to overturn
the decision of the trial court on the grounds that the
evidence was legally insufficient to uphold the verdict, a

36
Pollock, 284 S.W .3d at 818.

35 37
See Pollock, 284 S.W .3d 809. Coastal, 136 S.W .3d at 233.

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APPENDIX: TERMS, RULES, CASE LAW AND PRACTICE POINTERS

OPERATIONAL TERMS DEFINED:

“Analytical Gap” Test: “When an expert opinion is based on the experience of the expert alone, the trial court must
determine if there is a sufficient connection between the existing data and the opinion offered or if there is ‘simply too
great an analytical gap’ for the expert testimony to be considered reliable.” Gammill v. Jack Williams Chevrolet, Inc.,
972 S.W.2d 713, 726 (Tex. 1998).

“Legal Sufficiency” Challenge : “A party may assert on appeal that unreliable scientific evidence or expert testimony
is not only inadmissible, but also that its unreliability makes it legally insufficient to support a verdict. . . . a no-evidence
review encompasses the entire record, including contrary evidence tending to show the expert opinion is incompetent
or unreliable.” Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009).

Robinson Factors: [The] factors to consider in determining the admissibility of scientific knowledge] 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, and (6) the non-judicial uses which have been made of the theory
or technique. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995).

“Hard Sciences” : Characterized as relying on experimental, empirical, quantifiable data, relying on the scientific
method, and focusing on accuracy and objectivity.

“Soft Sciences”: Sciences generally not able to be proven through application of the scientific method. Such as the social
sciences, psychology, or psychiatry.

TEXAS RULES OF EVIDENCE:

Texas Rule of Evidence 401. Definition of “Relevant Evidence”.

“Relevant Evidence” means evidence having any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be without the evidence.

Texas Rule of Evidence 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible.

All relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by these rules, or by other
rules prescribed pursuant to statutory authority. Evidence which is not relevant is inadmissible.

Texas Rule of Evidence 403. Exclusion of Relevant Evidence on Special Grounds.

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation
of cumulative evidence.

Texas Rule of Evidence 702. Testimony by Experts.

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may
testify thereto in the form of an opinion or otherwise.

Texas Rule of Evidence 703. Bases of Opinion Testimony by Experts.

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D a u b e r t C h a ll e n g e s i n P r a c t i c e C h a p te r 2 2

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by,
reviewed by, or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Texas Rule of Evidence 704. Opinion on Ultimate Issue.

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an
ultimate issue to be decided by the trier of fact.

RELEVANT CASE LAW :

E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). Set out six non exclusive factors trial
courts should use to help determine the reliability of expert testimony. “Evidence that has no relationship to any of the
issues in the case is irrelevant and does not satisfy [TRE] 702's requirement that the testimony be of assistance to the jury.
It is thus inadmissible under Rule 702 as well as under [TRE] 401 and 402.”

Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997). Held that expert opinions based upon unreliable
underlying data are inadmissible. “If the foundational data underlying opinion testimony are unreliable, ... any opinion
drawn from that data is likewise unreliable. Further, an expert’s testimony is unreliable even when the underlying data
are sound if the expert draws conclusions from that data based on flawed methodology. A flaw in the expert’s reasoning
from the data may render reliance on a study unreasonable and render the inferences drawn therefrom dubious. Under
that circumstance, the expert’s scientific testimony is unreliable and, legally, no evidence.” See also Cooper Tire &
Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006).

Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998). Held that trial courts should look closely
for analytical gaps between the facts of a case and the opinions of non-scientific, experience-based experts. “Nothing in
the language of [TRE 702] 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.” See
also Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001).

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006). Clarified Gammill by holding that any time the
Robinson factors would be helpful in determining reliability of an experts testimony, they should be used. “The
reliability inquiry as to expert testimony does not ask whether the expert’s conclusions appear to be correct; it asks
whether the methodology and analysis used to reach those conclusions is reliable.”

Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 643 (Tex. 2009). Held that even if an expert is testifying based on
personal experience, the Robinson factors should be applied to the underlying tests and data relied on if to do so would
help insure the experts reliability. “When all the evidence is considered, as it must be in a proper legal sufficiency
review, we conclude that the data on which . . .[the expert] relied does not support his opinions. His opinions are
subjective, conclusory, and are not entitled to probative weight.”

City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009). Reaffirmed that when there is too great an “analytical
gap” the expert testimony is speculative and conclusory on its face, and amounts to no evidence. “When a scientific
opinion is admitted in evidence without objection, it may be considered probative evidence even if the basis for the
opinion is unreliable. But if no basis for the opinion is offered, or the basis offered provides no support, the opinion is
merely a conclusory statement and cannot be considered probative evidence, regardless of whether there is an objection.”

St. Clair v. Alexander, No. 13-08-00218-CV, 2009 Tex. App. LEXIS 7682 (Tex. App.-Corpus Christi Sep. 30, 2009,
pet. filed)(mem. op.). The trial court granted a no evidence summary judgment for the defendant, striking the plaintiff’s
expert, even though the expert met the Robinson factors, as was later shown on appeal. Plaintiff ‘s expert was a board

7
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certified neurosurgeon who would have testified as to the possible causes of plaintiff’s Cauda Equina Syndrome, a
disorder affecting the bundle of nerve roots at the lower end of the spinal cord. The expert used differential diagnosis,
a well known methodology, to determine that the cause of the plaintiff’s condition was the defendant’s negligence in
performing an earlier surgery. The Corpus Christi Court of Appeals applied both the “Analytical Gap” test as well as
the Robinson factors in determining the trial court had abused its discretion in refusing to admit the expert testimony.
“Because there is nothing in the record to indicate the test the trial court used when determining the reliability of [the
expert]’s testimony, we look to both the Robinson factors and the Gammill ‘analytical gap’ analysis.’”

SUGGESTED PRACTICE POINTERS:

A. Proponents Perspective

1. Investigate your Expert

Before retention of an expert, ask the expert to demonstrate to you that the method he will use to form an opinion
rests on a scientifically reliable foundation. If the expert can prove it to you, you may be able to prove it to the judge.
If the expert cannot prove it to you, get another expert. Also get an affidavit from the expert stating that he or she has
never been the subject of a successful Robinson challenge. If the expert has been the subject of a successful challenge,
get a transcript— opposing counsel will.1 Find out if the expert uses the methodologies in everyday practice. Avoid, if
possible, experts who work only in litigation.

2. Prepare your Expert

a. Explain Daubert/Robinson

An expert can be best prepared to withstand an attack under Daubert/Robinson if he or she understands the grounds
for exclusion. Explain up front that you will need to work closely together to meet Daubert/Robinson standards. Because
expert’s that are not tied to previous litigation are seen as more reliable, this also means that better experts under
Robinson, are ones that are the least prepared for litigation.

b. Prepare for the Deposition

If opposing counsel takes the deposition of your expert, expect that he or she will have a good working knowledge
of the field, will have investigated the expert and will have picked apart any statement made by or about the expert. A
deposition checklist is a good place to start for a list of relevant questions opposing counsel is likely to ask. However,
also expect detailed questions about the expert, the expert reports, methodology, etc.2 Have a good working knowledge
of the field. Additionally, the opponent may attempt to get the expert to restate the findings of the expert report. This
should be avoided if possible, as it just opens another avenue to exposing inconsistencies. If the answer to the question
is addressed in the expert report, have the expert say so.

3. Supplement the Expert Testimony

a. W atch the Record

If you are defending an expert, you should have something in the record to defend every step of an expert’s opinion.
The Supreme Court took a keen interest in the lack of record support for the expert’s hypothesis in Cooper Tire, and

1
Larry G. Black, Daubert Challenge through the Eyes of the Litigator and the Expert, in the State Bar of Texas Suing
and Defending Government Entities Course, Chap. 18, pg. 2 (2004).

2
DaubertOnTheW eb.Com, Generic Deposition Checklist, http://www.daubertontheweb.com/Deposition_Checklist.htm
(last visited April 4, 2010).

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D a u b e r t C h a ll e n g e s i n P r a c t i c e C h a p te r 2 2

eventually reversed the trial court’s decision to admit. The more publications, studies, charts, etc. that you can include
to support your expert at every step, the better off you will be.

b. Calculations/Supporting Data Are a Plus

Including mathematical calculations to demonstrate and/or support an expert’s theory can preclude a very likely area
of attack from opposing counsel.3 As seen in Cooper Tire, the absence of mathematical calculations when a court
inquires about them can hurt your expert.

c. Include Methods and Resources

The expert should use methodology generally accepted by other experts in that field. Question your expert about
the methodology employed. Who uses the methodology? Does the expert use the methodology in his/her everyday
work? Does the opponent use this methodology? It is not enough for the expert to say that the methodology or
conclusion is valid “because I say so and I’m the expert” or “because I have vast experience in this field.” 4 If the concept
or method is novel, breaking it down into a series of steps, to show that it is only a small part of the method that hasn’t
been accepted, may prove helpful. This shows the court that although the final conclusion is not generally accepted in
the field, the process gone through in reaching the conclusion is sound.

d. Admit Disagreement

It is helpful to try to argue for the admissibility of your expert by admitting that there is room for disagreement with
the expert’s theory. However, the jury is the proper body to decide who is right. If you can convince the court that your
opponent is really just unhappy with the conclusions of your expert and is trying to have the court make a credibility
decision, you are helping your cause. Along these lines, pay close attention to the challenges made by your opponent
to look for areas where your expert’s final opinion is criticized as opposed to his or her methodology.

e. Defending a Challenge

If there is a challenge to the expert’s testimony, send a copy of the challenge to the expert. The expert will know
better than anyone how to defend his or her report. Also, get affidavits from other experts agreeing that the methodology
used is sound. Your expert may know of others who can review the report. Also gather all peer reviewed literature and
court cases approving of the methodology. Do not forget to look at other Daubert/Robinson opinions concerning the
decisions made by your trial judge.

4. Procedural Considerations

a. Texas Rule of Civil Procedure 194.2

Under TRCP 194.2, disclosure for retained experts includes the following: the expert’s name, address, and telephone
number; the subject matter on which the expert will testify; the general substance of the expert's mental impressions and
opinions and a brief summary of the basis for them, all documents, tangible things, reports, models, or data compilations
that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert's testimony; and
the expert’s current resume and bibliography. [One of the main differences between Federal and Texas state rules is that
the Texas rule only requires the lawyer to give the general substance of the expert’s opinions and a brief summary for
the basis of those opinions.] There is no requirement for a comprehensive report written by the expert.

b. Pre-trial Order

3
See Volkswagen of America Inc. v. Ramirez, 159 S.W .3d 897 (Tex. 2004).

4
Cooper Tire & Rubber Co., 204 S.W .3d at 801. (holding an expert cannot rely on his own book and articles to verify
his conclusions).

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D a u b e r t C h a ll e n g e s i n P r a c t i c e C h a p te r 2 2

Putting a deadline in the scheduling order will prevent the opposing party from attempting to challenge the expert
shortly before trial or at trial order.5 In a ‘best case scenario’, you would want all Daubert/ Robinson challenges to be
completed before the discovery cut-off so there is time to find a new expert, if necessary. A scheduling order may state:

An objection to the reliability of an expert’s proposed testimony under Texas Rule of Evidence 702 shall be made
by motion, specifically stating the basis for the objection and identifying the objectionable testimony, within ___
days of receipt of the written report of the expert’s proposed testimony, or within ___ days of the expert’s
deposition, if a deposition is taken, whichever is later.6

c. Lay the Groundwork

Use Interrogatories to start laying the groundwork for responding to your expert challenges.7 Example interrogatories
include:

INTERROGATORY NO. ____: Please list those expert witnesses (if any) identified by whom you contend are not qualified
to render opinions under the standards set forth in E.I. Dupont De Nemours v. Robinson, 923 S.W .2d 549 (Tex. 1995), or
in any subsequent opinion by the Supreme Court of Texas which you contend extends the holdings of Robinson.

INTERROGATORY NO. ____: If you contend that any opinion rendered by [expert name] in [his/her] deposition is not
“reliable” within the meaning of E.I. DuPont De Nemours & Co. v. Robinson, 923 S.W .2d 549 (Tex. 1995), or any
subsequent opinion by the Supreme Court of Texas which you contend extends the holdings of Robinson, please state the
substance of that opinion and describe the basis for your contention.

B. Opponent’s Perspective:

1. Investigate the Expert

Investigating the expert could encompass a number of things, a few are: (1) collecting and reviewing deposition
testimony the expert has given in other cases; (2) reading what the expert has written on the topic; (3) running a
Lexis/Westlaw search on the expert; (4) running a Lexis/Westlaw search on the testing method, equipment or other
specific data used by the expert; running a general internet search on the expert.8 Also become familiar with the
technology used by the expert. A lawyer may also consult the Reference Manual on Scientific Evidence published by
the Federal Judicial Center.9 The manual explains some common scientific terms and statistical methodology. 10

2. Depose the Expert

An attorney must weigh the benefits and risks of taking an expert deposition. Some factors against taking an expert
deposition include: (1) disclosing strategies for cross examination at trial; (2) educating the witness and opposing counsel

5
DaubertOnTheW eb.Com, Tactics, http://www.daubertontheweb.com/tactics.htm (last visited April 5, 2010).

6
See e.g., Local Court Rules for the W estern District of Texas, Appendix B.

7
Hon. Joseph M. Cox & George Quesada, Advanced Procedural Tactics, in the State Bar of Texas 21st Annual
Advanced Personal Injury Law Course, Chap. 28, pg. 2 (2005).

8
Id. at 4.

9
Id.

10
A full copy of the manual is available at http://www.fjc.gov/public/pdf.nsf/lookup/sciman00.pdf/$file/sciman00.pdf.

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and; (3) giving the expert the opportunity to expand opinions beyond those in the original report.11 Thus, if an attorney’s
goal is to “surprise” the expert, skipping the expert deposition may help accomplish that goal. Without a deposition, the
attorney and the attorney’s cross-examination strategies will remain unknown to the expert.12 However, unless an
attorney conducts a deposition, much of the expert’s opinions and methodology will remain unknown to the attorney.
Unless a deposition is taken, the attorney will not know whether he or she has opened the door to evidence that might
otherwise be precluded.13 Thus, if the expert is important to the opposing party and the report suggests questionable
methodology, taking the deposition is probably worth the drawbacks.14 Another factor weighing in favor of taking an
expert deposition is to fully probe the data relied upon by the expert in forming his or her opinion. Discovering that the
expert relied on inadmissible data in discovery will allow the attorney to decide how far to probe the experts basis during
cross examination.

3. Procedural Considerations

a. Timing of the Expert Challenge

The best time to bring a challenge is after it is too late for the opposing party to designate a new expert. Therefore,
striking an expert just before trial or during trial may be the most devastating to you opponent. 15 Remember that
testimony that does not satisfy Daubert/Robinson “is . . . legally, no evidence,” and cannot support a verdict.16 Be very
careful when using this tactic, however. Consider whether the trial court is likely to grant a continuance in order to give
the opposing party time to find a new expert. Additionally, the judge may have little tolerance for such tactics. Also look
closely at local rules.17

b. Attack the Gap

As shown in Gammill, the “Analytical Gap” test has become exceedingly popular in Texas courts. When preparing
your challenge, find “analytical gaps” in the expert’s method or application of that method and point them out. Look
for steps in that expert’s analysis where there are not calculations or data to back up conclusions. Expert opinions based
on an unreliable factual foundation will not be admitted.18 It is also well settled that an expert’s bare opinion will not
pass the reliability stage,19 so point out where the expert has failed to connect the dots between the data relied on and the
opinion offered.

c. Cross Examination

11
Linda J. Burgess & James G. Ruiz, Strategies on Expert Discovery, in the State Bar of Texas 17 th Annual Advanced
Evidence & Discovery Course, Chap. 12, note 27, at 2.

12
Id.

13
Id. (citing TRCP 193.6 [Failing to Timely Respond— Effect on Trial]).

14
Id.

15
Id., supra note 27, at 8.

16
Id. (citing Havner, 953 S.W .2d 706, 714, 730).

17
Id.

18
See Ramirez, 159 S.W .3d at 912 (holding an expert’s theory inadmissible where there were no scientific tests or
calculations to support the theory); Havner, 953 S.W .2d at 714 (reasoning that an expert’s testimony is unreliable even
when the underlying data are sound if the expert draws conclusions from that data based on flawed methodology).

19
Ramirez, 159 S.W .3d at 906 (Tex. 2004).

11
D a u b e r t C h a ll e n g e s i n P r a c t i c e C h a p te r 2 2

Under the Texas rule, when the underlying facts or data would be inadmissible in evidence, the court shall exclude
the underlying facts or data if the danger that they will be used for a purpose other than as explanation or support for the
expert’s opinion outweighs their value as explanation or support or are unfairly prejudicial. If otherwise inadmissible
facts or data are disclosed before the jury, a limiting instruction by the court shall be given upon request. 20 Thus, it is
easier to for a proponent of the evidence to get otherwise inadmissible evidence into trial through the expert in Texas.
The federal rule requires that the inadmissible evidence substantially outweigh the prejudicial effect. Texas only requires
that the danger of misuse outweigh the value of the evidence as an explanation or is unfairly prejudicial. Therefore, it
is the responsibility of the opposing party to raise an objection to the introduction of inadmissible facts. 21

d. Objections

To preserve a complaint that scientific evidence is unreliable and thus, no evidence, a party must object to the
evidence before trial or when the evidence is offered.22 However, a ruling on a motion in limine does not preserve error
for appeal.23 Remember that a challenge to the legal sufficiency of the evidence can be made if based on the face of the
record, even if not preserved at trial through an objection.

e. Motions to Strike

You may file a motion to strike an expert witness or a motion in limine and argue that: (1) opposing counsel failed
to timely and properly designate the witness under the Texas Rules of Civil Procedure or a court scheduling order; (2)
opposing counsel failed to timely identify the witness and/or the witness's opinions in response to interrogatories and/or
to supplement same; (3) opposing counsel failed to produce expert report, curriculum vitae, and/or other relevant
documents in response to document request and/or failed to supplement same; (4) the witness will not assist the trier of
fact; (5) the witness cannot satisfy some or all of the six Robinson factors; (6) the witness is not qualified; (7) the witness
is relying on an improper standard; and (8) the witness is making legal conclusions. 24

f. Evidence Used to Support Motion

A motion to strike an expert witness should be accompanied with as many sources of information buttressing your
position as possible which may include the following; (1) use deposition excerpts; (2) attached affidavits from your
experts with attachments – publications, exhibits, etc.; (3) criticize reports and methodology; (4) utilize other discovery
-interrogatories, requests for admission, requests for disclosure, expert reports; (6) live testimony at the hearing (if
allowed); (7) prior history of expert sought to be excluded, other orders of courts, other depositions, and other
reports/published papers. 25

20
Tex. R. Evid. 705.

21
Burgess, supra note 27, at 3; Tex. Workers' Comp. Comm'n v. Wausau Underwriters Ins., 127 S.W .3d 50, 57 (Tex.
App. –Houston[1st Dist.] 2003).

22
Maritime Overseas Corp. v. Ellis, 971 S.W .2d 402, 409 (Tex. 1998).

23
Acord v. General Motors Corp., 669 S.W .2d 111, 116 (Tex. 1984).

24
C. Thomas Kruse & W . Jeremy Counseller, Expert and Opinion Evidence in Texas under Daubert, Robinson, and the
Amended Federal Rules, pg. 25 (2002).

25
Id. at 28.

12
 Expert
Testimony

Proponent’s Challenger’s
Perspective Perspective
Daubert Challenges in Practice

Challenging Challenging Legal

“Soft Sciences” Reliability at Trial Sufficiency
“Hard Sciences” (or personal (abuse of discretion (“de novo like”
experience) standard of review standard of review
on appeal) on appeal)

13
Where the Tests
and Data relied If Robinson not At Trial Stage
Apply the Use Robinson
on subject to the applicable, use (through a directed On Appeal
Robinson Factors Factors if possible
Robinson Factors? “Analytical Gap” verdict or JNOV)
(Whirlpool)

If Yes, apply
If No, apply
Robinson Factors
“Analytical Gap”
to Tests and Data
Test
Relied on

Must rule out other possible causes if testifying to causation or may be subject to
legal sufficiency challenge at judgment stage of trial or on appeal.
Chapter 22