Expert Witnesses – Selection and Accessibility

SOUTH TEXAS COLLEGE OF LAW
PERSONAL INJURY LAW CONFERENCE: KEYS TO SUCCESS
HOUSTON, TEXAS – APRIL 2000

Recent changes and fluctuations in the law have made the need for not only the existence of experts, but for effective experts, exceedingly important. While the typical opinion on experts is that “they’ve got one, so I’ve got to get one of my own,” the truth is that while a good expert may help, a bad expert will kill your case. This paper will discuss the present state of the law regarding the use of experts and provide some practical assistance in best obtaining and using – or attacking – experts.

I. Independent Medical Examination

There is possibly no bigger misnomer in the practice of law than the idea that any rule exists in the State of Texas for ordering an “independent” medical examination.

A. Tex. R. Civ. P. 204

The Texas Rules of Civil Procedure provide that when the physical or mental condition of a party has been put into issue, Tex. R. Civ. P. 204.1(c)(1)the court, on the motion of a party, can order a party to submit to an examination by a qualified physician or psychologist. Tex. R. Civ. P. 204.1(a). There is nothing in the rule, or in the law, which provides that such an examination be done by an independent healthcare provider.

B. Requirements for Motion for Examination

1. Timeliness

A motion made under Tex. R. Civ. P. 204 must be made no later than thirty (30) days before the end of any applicable discovery period. Tex. R. Civ. P. 104.1(a).

2. Requirements for Motion

(1) The movant must show good cause for obtaining the examination. Tex. R. Civ. P. 204.1(c). Good cause includes three elements: (a) the examination is relevant to the genuine issues; (b) there is a reasonable nexus between the condition in controversy and the examination sought; and (c it is not possible to obtain the information sought through other, less intrusive means. Coates v. Whittington, 758 S.W.2d 749, 752 (Tex.1988). In Coates, the defendant attempted to obtain a psychiatric examination based on the plaintiff’s claim of mental anguish. The Texas Supreme Court, in denying the defendant’s right to examination found that to allow an examination where there were no damages being sought for psychiatric treatment, and there was to be no testimony proffered on the part of the plaintiff regarding her mental condition, found that to allow such an examination would destroy the intent of the procedural rule. Id. As noted in Coates, the court must balance the party’s right of privacy and the movant’s right to a fair trial. Id. at 753.

3. Condition In Controversy

In order to obtain an examination, the movant must show that “each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination.” Schlagenhauf v. Holder, 379 U.S. 104, 118-19, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); Tex. R. Civ. P. 204.1(c)(1). A condition is not “in controversy” merely because of a conclusory allegation that a physical or mental attribute was a factor in causing the incident underlying the lawsuit. Spear v. Gayle, 857 S.W.2d 122, 125 (Tex. App. – Houston [1st Dist.] 1993, orig. proceeding).

An example of the difference between an issue in controversy and one not in controversy can be found in Williams v. Sanderson, 904 S.W.2d 212 (Tex. App. – Beaumont 1995, orig. proceeding). In that case, the plaintiff alleged that the defendant failed to keep a proper lookout. That mere allegation was not enough to put the eyesight of the defendant “in controversy” under the rule; however, in his deposition, the defendant contended that he had a piece of metal imbedded in his eye as a result of a prior accident. The court, based on this additional information, did find the quality of eyesight of the defendant in controversy and ordered the examination. Id. at 215.

a. Physical Condition in Controversy

The physical condition of a plaintiff of a plaintiff is always in controversy in a personal injury suit. Reamon v. O’Neill, 865 S.W.2d 583, 586 (Tex. App. – Houston [14th Dist.] 1993, orig. proceeding).

b. Mental Condition In Controversy

As held by the Texas Supreme Court in Coates, supra, a mere claim of mental anguish, standing alone, does not place a party’s mental health in controversy. Coates, 758 S.W.2d at 752. The courts have found however that when a party’s mental condition is an element of a claim, the condition is in controversy. Laub v. Millard, 925 S.W.2d 363, 364-65 (Tex. App. – Houston [1st Dist.] 1996, orig. proceeding) (plea of incompetence to toll statute placed mental condition in controversy). As indicated by the court in Coates, the plaintiff’s designation of a mental health expert as a witness at trial is sufficient to place the party’s mental condition in controversy. Coates, 758 S.W.2d at 752; Tex. R. Civ. P. 204.1(c)(2); see also, Exxon Corp. v. Starr, 790 S.W.2d 883, 887 (Tex. App. – Tyler 1990, orig. proceeding).

In addition to finding that a party’s mental condition is in controversy when that party designates a psychologist as a testifying expert, Tex. R. Civ. P. 204 modifies the previous Rule 167a to provide that the mental condition is in controversy when a party discloses a psychologist’s records for possible use at trial. Tex. R. Civ. P. 204.1(c)(2).

c. Other Experts in Controversy

In Moore v. Wood, 809 S.W.2d 621 (Tex. App. – Houston [1st Dist.] 1991, orig. proceeding) the defendant attempted to invoke the spirit of Tex. R. Civ. P. 167a (now 204) to obtain the testing and evaluation of the plaintiff by defendant’s vocal rehabilitation specialist. The court found for the plaintiff as the expert is not one contemplated by the rule (for mental or physical examination). Id. at 623.

4. Need for Evidence

When the condition of a party is not in controversy from the face of the pleadings, the movant must establish that such controversy exists through evidence in the record of the court. Walsh v. Ferguson, 712 S.W.2d 885, 887 (Tex. App. – Austin 1986, orig. proceeding); Williams, 904 S.W.2d at 214.

5. Application as to Defendant

“As recognized by the United States Supreme Court in Schlagenhauf, [supra] the rule regarding medical or physical examinations applies to both plaintiffs and defendants. “Discovery is not a one-way proposition.” Schlagenhauf, 379 U.S. at 113, 85 S.Ct. at 240, 13 L.Ed.2d at 161.” Williams, 904 S.W.2d at 216.

6. Who Conducts the Examination?

The only examinations provided for under Tex. R. Civ. P. 204 are for physical or mental examination. Moore, supra, 809 S.W.2d at 624 (Tex. R. Civ. P. 204 is not a proper avenue to compel examination by a vocational rehabilitation specialist). The term “physician” is not defined in the Rule, but the courts have defined a physician as “a practitioner of medicine who is skilled in medicine and surgery.” Coates, 758 S.W.2d at 751. The Rule does define a psychologist: “a person licensed or certified by a state or the District of Columbia as a psychologist.” Tex. R. Civ. P. 204.5.

7. Who Selects the Examiner?

As noted at the beginning of this section, calling a motion under Tex. R. Civ. P. 204 a motion for an independent examination is in fact incorrect. The rule does not provide that the examination must be by an independent healthcare provider, nor does it state that the parties must agree to a specific physician or psychologist. This does not however mean that the movant can pick any healthcare provider they wish. Employers Mut. Cas. Co. v. Street, 707 S.W.2d 277, 279 (Tex. App. – Fort Worth 1986, orig. proceeding). In Street, the court went through a thorough examination of Tex. R. Civ. P. 167a (now 204) in determining how an examiner should be selected. In the court’s review, the court looked at the basis for Tex. R. Civ. P. 167a which is found in Fed. R. Civ. P 35(a). In the court’s analysis, it not only looked at prior Texas case law, but also at both Federal interpretations of Fed. R. Civ. P. 35 as well as other states’ treatment of the Rule. Id. In doing so, the Street court concluded that there should be an attempt to have a meeting of the minds between the parties as to who should conduct the examination, and if the parties cannot agree, then the decision will fall with the court. Id.

C. Hearing on the Motion

At the time of the hearing on the motion for examination, the party to be examined should identify and obtain an order on all of the ‘ground rules’ for the examination. This should include: who will be doing the examining; where and when the examination will occur; the limits to the examination, both in terms of time as well as in terms of areas to be examined, either physically or mentally; who else will be attending the examination; what records (x-rays, MRI’s, medical records, etc.) will be provided to the examiner, and; what recordings (audio/video) will be allowed during the examination.

D. Order for Examination

The order must be in writing, and must specify the time, place, manner, scope and conditions of the examination, including identifying who will be conducting the examination. Tex. R. Civ. P. 204.1(d). It should also set out explicitly all of the ‘ground rules’ identified immediately above.

E. Who May Attend the Examination

1. In General

As noted by the court in Moore v. Johnson, 785 S.W.2d 176 (Tex. App. – Waco 1990, orig. proceeding), a court is not under any duty to allow anyone to attend the examination with the party being examined. Id. at 178. The decision to allow attendance by others is within the sound discretion of the court. Id. If a party can show some particularized need for there to be another person present, the court may allow for such attendance, again, at the court’s discretion. Simmons v. Thompson, 900 S.W.2d 403 (Tex. App. – Texarkana 1995, orig. proceeding). In Simmons, the plaintiff’s attorney provided no reason for his attendance at the examination, save and except an argument under law, which was rejected as good cause by both the trial court and appellate court. Id.

As a practical matter, the party to be examined should always ask the court to include, as part of its order, a provision allowing attendance by another in the examination. Good cause to provide for attendance includes not only the obvious – having someone with you at any examination is always a good idea – but also the added protection which is inherently necessary in a process where your client is being forced to undergo physical or mental examination by a healthcare provider selected by, and paid for by, the very party you have sued.

2. Workers’ Compensation Cases

Under the Workers’ Compensation Act, a party is allowed to have a physician or chiropractor attend an examination performed at the request of the Industrial Accident Board. Moore, 785 S.W.2d at 176.

F. Rights Subsequent to Examination

1. Right to a Report

Tex. R. Civ. P. 204.2(a) provides that, upon request, the party causing the examination to occur must provide to the requesting party a copy of a detailed written report of the examiner; the report to include the examiner’s finding, the results of tests conducted, and the examiner’s diagnoses and conclusions. Subsequent to receipt of the report, the par ty examined must, upon request, provide the party seeking examination with any reports regarding the condition examined.

2. Failure to Provide Report

If a physician or psychologist fails or refuses to provide a report, the court may exclude the testimony if offered at trial. Tex. R. Civ. P. 204.2(a).

3. Right to Report on Examination Done by Agreement of the Parties

The right to a report, and the penalty for failure to provide the same, apply whether the examination was conducted by order of the court or by agreement of the parties. Tex. R. Civ. P. 204.2(b).

II. Access to Healthcare Providers

More and more frequently, defendants are attempting to obtain direct access to a plaintiff’s healthcare providers; not just the records, but actual discussions with the physician, and without the presence or consent of the plaintiff.

A. Confidentiality

Tex. R. Civ. Evid. 509(c) provides: “Confidential communications between a physician and a patient, relative to or in connection with any professional services rendered by a physician to the patient are privileged and may not be disclosed.” See also, Tex. Occ. Code, A7 159.002(a). The evidentiary rules also provide: “Records of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician are confidential and privileged and may not be disclosed.” Tex. R. Evid. 509(c)(1-2). These privileges may be claimed by either the physician or the patient. Tex. R. Evid. 509(d); Tex. Occ. Code, A7 159.002(e).

Exceptions to both the rules of evidence and the Occupational Code exist when a party relies on a medical condition as part of the party’s claim or defense. Tex. R. Evid. 509(e)(4); Tex. Occ. Code, A7 159.003(a)(4); see also, R.K., M.D. v. Ramirez, 887 S.W.2d 836, 842 (Tex. 1994). Whether the litigation exception exists is determined on the face of the pleading giving rise to the exception. Id. at 842.

B. Meeting With Healthcare Providers

Few courts have directly addressed whether a defendant should have unfettered access to a plaintiff’s treating physician. In Texas, there are two cases, sitting on either side of the access-fence. In Hogue v. Kroger store No. 107, 875 S.W.2d 477 (Tex. App. – Houston [1st Dist.] 1994, writ denied), the court held that defendant’s ex parte meeting with the plaintiff’s treating physician was permissible as the plaintiff had placed his health care in controversy. Id. at 481-82. Subsequent to the state court of appeals’ holding in Houge, a Texas Federal court found to the contrary of the Houston court. In Perkins v. U.S., 877 F.Supp. 330 (E.D. Tex 1995), the court questioned the advisability of allowing the defendant to meet with the plaintiff’s treating physicians, opining that to allow for such a meeting would “extend unwitting carte blanche to defense lawyers, deciding themselves what is relevant and what is not.” Id. at 332-33.

The concerns raised by the Perkins court, and by this author, are that allowing the defendant free and unfettered access to the plaintiff’s healthcare providers would lead to access of information specifically protected by both the Texas Rules of Evidence and the Texas Occupational Code; information which is irrelevant to that cause before the court.

III. Hiring an Expert

A. Reasons to Retain an Expert

The purpose of employing an expert witness is three-fold. First, an expert should assist counsel in his own case, second, the expert should educate the jury, and third, the expert should be able to sway a jury. Therefore, the first question is, what does the practitioner know himself and why does he know it?

When an attorney first sits down with his client in his initial meeting, he should already have a feeling that he understands or does not understand each element he will later have to prove to a jury. If he understands the concepts which will be necessary to make his case, it probably is not wise to rush out to other sources for help as the same can be done when issues are better formulated and strategies are being prepared for presentation to a jury; however, if the attorney is unsure of his client’s very position due to the technological aspects of his case, it is incumbent on the attorney to seek immediate help – sometimes even before agreeing to handle a case.

The second issue is how the expert assists at trial. An expert should not be used where a layperson could provide the same proof. In such a situation, the court will disallow such expert testimony and leave the jury to their own understandings. Morgan v. Compugraphic Corp, 675 S.W.2d 729, 733 (Tex. 1984); Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996). In Justice v. Carter, 972 F.2d 951 (8th Cir. 1992), the court quoted the advisory committee notes on Fed. R. Evid. 702 which stated:

There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having specialized understanding of the subject involved in the dispute.

Id. at 957. Furthermore, some aspects of a case may be proven without the need of an expert even if such information is not readily apparent to the jury. For instance, a layperson can testify to the market value of real property as long as he testifies to matters within his knowledge. Wise v. DeToca, 761 S.W.2d 467, 469 (Tex. App. – Houston, [14th Dist.] 1988, no writ); Porras v. Craig, 675 S.W.2d 503, 505 (Tex. 1984). Essentially, before placing an alleged expert before the jury, ask yourself if they are necessary. Credibility will be lost both from the jury and your client (who paid for the expert) if your expert talks down to the jury or, worse, if the court disallows the expert’s testimony.

This leads to the third issue. Will the expert sway the jury and in what way. Suffice it to say, an expert can turn a jury off just as easily as move a jury toward your point of view. More so, an expert can put you into an excellent position or put you in a hole.

B. Reason Not to Retain an Expert

Perhaps the mistake made most in hiring an expert is under the mistaken belief that the opposition has and expert so I need an expert. If this is your only reasoning for putting forth the expense of an expert, you are opening up a Pandora’s box that may never be closed.

C. Where to Find an Expert

If you have determined that an expert is necessary, the next question is where to find one. First, ask what you are attempting to prove. An expert need not have a degree to make an effective and qualified expert. Suggested sources are:

The Telephone Book – an obvious but generally overlooked source of information on experts;

Colleges and Universities – Take advantage of all resources around you. If there is an institution of higher learning in your area, contact the relevant departments. Most university staffs have a great deal of leeway in offering their services as experts and their position many times lends instant credibility to their testimony. Furthermore, if there is no expert who will be able to assist, universities provide the resources to determine where else to turn.

Your Client – Either your client himself may qualify as an expert, or he may know of someone who will be able to assist in that capacity.

Industry/Medical Literature – Most libraries have at least some books or magazines on the subject for which you seek assistance. Look at the authors of these works and the articles they have authored or edited. Again, many individuals who write in trade journals also provide expert services and their publications assist in their credibility. This may also provide an attorney an excellent opportunity to educate himself on the area at issue.

Specifically, regarding medical experts, medical school libraries are excellent sources. All medical school libraries have a digest called the Index Medicus (a medical version of the Index to Legal Periodicals). This reference is published yearly and indexes all medical articles by subject. Authors of these articles may prove to be good expert witnesses as they not only have provided a good base for testimony, but, just as important, they have published there findings for peer review and therefore meet a crucial test under Daubert, Robinson, and their progeny.

Attorney Literature – The Texas and national bar journals as well as other publications directed at attorneys are loaded with advertisements for experts. But remember, testifying experts can be cross-examined as to how they were retained and advertising can compromise credibility.

Other Attorneys – Never be shy to ask for assistance from a colleague. They may have been in a similar situation or know where to send you.

Other Experts – Many times an expert used in the past will not be useful for a particular case, but may be invaluable in steering an attorney to the proper expert.

The Internet – When the “Expert” portion of this paper was originally drafted, the internet was in its infancy and no mention was made of the potential to find an expert through this growing source. Only a few years later and the internet is now possibly the best resource for not only identifying experts, but also for obtaining opinions as to who are the best – and the worst – experts in a particular field, as well as obtaining information as to how to cross-examine a particular expert. Many litigation support groups provide specific on-line databases and repositories for not only information on specific experts, but actual transcripts of past deposition and trial testimony. In addition, many of the thousands of newsgroups contain information on experts and how to handle a specific witness.

D. Considerations In Retaining an Expert

In considering an expert, it is important to determine whether the individual will meet the three criteria as noted above – assist the attorney, educate the jury, sway the jury. There are several factors which should be considered in making the determination of an expert

1. General Considerations

Regional Bias – Bringing in an expert from another part of the country needs to be weighed with the inevitable cross-examination as to why counsel had to leave the city/state to hunt up an expert who will testify for him. While the jury may be impressed with credentials, they will also want answers as to why local professionals could not be used. Needless to say, the smaller the specialty or the greater the credentials, the weaker opposing counsel’s arguments against the expert.

Professional Experts – They know what to say and when to say it; however, many professional witnesses lose credibility with the jury when they make their living selling their opinions; sometimes arguing ridiculous issues having little bearing on the case but further destroying credibility. An individual who is a practitioner rather than a witness will tend to lend credibility to his testimony; however, if using a professional witness becomes a necessity, the attorney should diffuse potential cross-examination by emphasizing the education, training experience and reputation of the witness. This emphasis should be carried out at strategic points throughout the testimony.

The Expert’s History – Does the expert testify primarily for plaintiffs, defendants, or for the side which he feels is correct. Furthermore, take care to examine the expert’s background regarding contrary opinions in other cases or in publications by the expert. Also confirm that the expert examines his cases on an individual basis as opposed to using form documents and form testimony.

The Expert’s Fees – This should be examined both for practicality as well as for the effect such fees will have on a jury. Also, be sure to have an understanding as to what the fees are for and how much extra things like testimony will run, travel costs, and costs for answering questions. It is also important to keep one’s client abreast as to expert’s fees as this may have a bearing on the value of the case in general.

The Expert’s Schedule – Can the expert be depended upon to timely provide the attorney with necessary information such as reports. Is the expert available to discuss the case and assist with pre-trial matters such as responding to discovery and generating a report. Most importantly, is the expert going to be available for depositions and trial.

Association With the Attorney – An expert with too close a tie to a particular attorney or law firm may cause credibility problems.

2. Personal Considerations

Probably the most intangible aspect is how the expert will present to a jury. While an expert may be excellent in his field, and may be able to transmit his expertise to an attorney in a one-on-one situation, this does not translate automatically into a situation where the expert will be effective before a jury. If at all possible, meet with the expert face-to-face prior to the expert being retained, or, in the alternative, contact others who have used the expert in the past.

Upon meeting the expert, ask yourself whether the expert speaks and acts the part of an expert as the jury will perceive. Think of the courtroom as a theater and the expert as an actor, performing for the jury/audience. A good performance can thrill a jury and lead them toward the facts and theories you promote; on the other hand, an expert who is too quite, whiny, monotone, argumentative, or otherwise unpleasant may repulse a jury and destroy the theories being presented. Also, investigate the possible expert – a worthy opponent surely will. Look for past problems (lost or suspended professional licenses for example) and inconsistencies or other potentially impeachable characteristics.

A standby or spare expert should be available in the event that the primary expert’s opinions change, his credibility is severely called into issue, or he is unavailable at a crucial time.

Upon determining who will be hired as an expert, an engagement letter should be sent, defining the role of the expert. This letter may be discovered, so it should not suggest a desired result or give facts. Furthermore, any information sent to the expert should leave the expert open to his own interpretation, not that of the attorney. To that end, do not send summaries of records or depositions as this will severely undermine the credibility of your expert. Also, indicate to the expert not to put down any of his opinions in writing until the same have been discussed with the attorney.

The attorney should advise all experts who may be testifying witnesses that their notes will very likely be seen by the opposition through discovery. The attorney should emphasize the importance of keeping notes that are clear and not subject to misinterpretation. The expert should expect that the opposition would read all of his notes carefully.

3. Admissibility/Reliability

Call it Daubert, call it Robinson, call it Havner, call it Kumho Tire. Whatever your preference is as to which admissibility case you look to, a large part of your decision in choosing an expert must be based on whether that expert’s testimony will ever see the inside of the courtroom.

The route to qualifying an expert became considerably more rocky with the Texas Supreme Court’s decision in E.I. du Pont de Nemours & Co. v. Robinson., 923 S.W.2d 549 (Tex. 1994). In that case, the Supreme court found that in addition to a showing that the expert witness is qualified under Tex. R. Civ. Evid. 702, the expert’s testimony must also be relevant and based upon a reliable foundation. Id. at 556. To that end, the Court set out six criteria to be looked at by the trial court in making a determination as to the qualifications of an expert witness. These six criterion include:

  1. the extent of 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.

Id. at 557. The Court noted that these factors are not exclusive and trial courts can consider other relevant factors and any review would be based on an “abuse of discretion” standard. Id. at 558.

Following up on Robinson, the Supreme Court moved from the admissibility argument regarding an expert’s qualifications to an expert’s testimony on causation. Merrill Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997). After the court of appeals, applying the Robinson test, upheld a verdict favorable to the plaintiffs and their testifying expert, 907 S.W.2d at 564, the Supreme Court decided the case on a legal sufficiency ground, stating: “if the expert’s scientific evidence is not reliable, it is not evidence.” 953 S.W.2d at 713. The Court noted that there were some instances where the six criteria listed above do not apply if the plaintiffs can demonstrate that the exposure to the substance at issue increases the risk of their particular injury. Id. at 714-15. The Court then proceeded to set limits of reliability as to toxic tort cases and show why, under the limits set by the Court, the plaintiffs’ expert’s testimony was unreliable to show causation. Id. at 715-24. It should be noted that the Havner decision was based on a narrow set of facts in a toxic tort case; however, it did point the Court further in the direction of what was to follow.

In July of 1998, the Supreme Court handed down its decision in Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998). In Gammill, unlike in Havner before it, the issue as to the qualifications of experts was not dictated by the specific facts of the case, allowing for a broader review under the qualification criteria set out in Robinson.

First, the Court examined when the examination under Robinson and its progeny should apply. The Court indicated that a Robinson review is necessary only to determine the validity of a scientifically based opinion. Id. at 721. The court further noted that the test applies to all scientific opinions, not just those based on novel or unconventional sciences. Id. at 721-22. The Court then went into a thorough examination of just is and is not scientific testimony, citing federal cases wherein the courts upheld the engineering testimony of experts based on the experts’ training, education and experience, separate and apart from the test under Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The Gammill Court did, however, find some decisions from the federal courts which supported the application of the general principals limiting expert testimony while not applying the specific factors as set out in Daubert. 972 S.W.2d at 724-25. The Gammill Court, faced with the choice of leaving scrutiny under Robinson to the scientific community, or following the federal cases using Daubert to challenge all expert testimony went for the latter. Id. at 726. The Court therefore concluded that while the specific reliability factors set out in Robinson may not apply as to non-scientific testimony, the general requirements concerning reliability must still be met. Id. at 727. The Court concluded, noting that while cross-examination should not be supplanted as the appropriate means of attacking shaky but admissible evidence, the trial court must act a “gatekeeper” whose responsibility it is to ensure that “an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Id. at 728.

The Texas courts, following the more broad interpretation put forth by Gammill, found support from the U.S. Supreme Court in Kumho Tire v. Carmichael, 119 S.Ct. 1167 (1999) wherein the high court held that the reliability requirements espoused by Fed. R. Evid. 702 (from which Texas derives its evidentiary rule on this issue) apply not only to scientific testimony, but to all testimony. Id. at 1174.

IV. Conclusion

Experts can have a lasting effect on a jury both through their testimony and exhibits and demonstrations generated by them, to the more subtle effects of preparation such as cross-examination as well as the ability to have a proper handle on the case as a whole through the use of both testifying and non-testifying experts.

Remember though what the main purpose behind the expense of an expert is – persuading a jury. To that end, an expert must meet minimum qualification, be able to generate opinions based on established and accepted facts and data, and present that information to a jury in a manner which is both informative as well as persuasive.

The expert has become viewed as a necessary part of trial, but as with all good tools, experts must be properly used to gain full effect. Should the need arise, an expert should be made an integral part in the building of a case, from a client’s first meeting until closing arguments.

V. Acknowledgements

I would like to take this opportunity to thank the people who assisted me in putting this paper together: Lorin M. Subar of the Law Firm of Lorin M. Subar in Dallas, and Gordon M. Carver, III, of the Law Firm of Dunn, Kacal, Adams, Pappas & Law, P.C. in Houston.

TABLE OF AUTHORITY Cases

Broders v. Heise, 924 S.W.2d 148 (Tex. 1996) 5

Coates v. Whittington, 758 S.W.2d 749 (Tex.1988) 1, 2, 3

Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) 10

E.I. du Pont de Nemours & Co. v. Robinson., 923 S.W.2d 549 (Tex. 1994) 9

Employers Mut. Cas. Co. v. Street, 707 S.W.2d 277 (Tex. App. – Fort Worth 1986, orig. proceeding) 3

Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998) 10

Hogue v. Kroger store No. 107, 875 S.W.2d 477 (Tex. App. – Houston [1st Dist.] 1994, writ denied) 5

Justice v. Carter, 972 F.2d 951 (8th Cir. 1992) 5, 6

Kumho Tire v. Carmichael, 119 S.Ct. 1167 (1999) 10

Laub v. Millard, 925 S.W.2d 363 (Tex. App. – Houston [1st Dist.] 1996, orig. proceeding) 2

Merrill Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) 9

Moore v. Johnson, 785 S.W.2d 176 (Tex. App. – Waco 1990, orig. proceeding) 3, 4

Moore v. Wood, 809 S.W.2d 621 (Tex. App. – Houston [1st Dist.] 1991, orig. proceeding) 2, 3

Morgan v. Compugraphic Corp, 675 S.W.2d 729 (Tex. 1984) 5

Perkins v. U.S., 877 F.Supp. 330 (E.D. Tex 1995) 5

Porras v. Craig, 675 S.W.2d 503 (Tex. 1984) 6

R.K., M.D. v. Ramirez, 887 S.W.2d 836 (Tex. 1994) 5

Reamon v. O’Neill, 865 S.W.2d 583 (Tex. App. – Houston [14th Dist.] 1993, orig. proceeding)2

Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964) 1, 3

Simmons v. Thompson, 900 S.W.2d 403 (Tex. App. – Texarkana 1995, orig. proceeding) 4

Spear v. Gayle, 857 S.W.2d 122 (Tex. App. – Houston [1st Dist.] 1993, orig. proceeding) 1

Walsh v. Ferguson, 712 S.W.2d 885 (Tex. App. – Austin 1986, orig. proceeding) 2

Williams v. Sanderson, 904 S.W.2d 212 (Tex. App. – Beaumont 1995, orig. proceeding) 2

Wise v. DeToca, 761 S.W.2d 467 (Tex. App. – Houston, [14th Dist.] 1988, no writ) 6

Other Authorities

Fed. R. Civ. P 35(a) 3
Fed. R. Evid. 702 6
Tex. Occ. Code, A7 159.002(a) 4
Tex. Occ. Code, A7 159.003(a)(4) 5
Tex. R. Civ. Evid. 509(c) 4
Tex. R. Civ. Evid. 702 9
Tex. R. Civ. P. 104.1(a) 1
Tex. R. Civ. P. 204 1, 3
Tex. R. Civ. P. 204.1(a) 1
Tex. R. Civ. P. 204.1(c)(1) 1, 2
Tex. R. Civ. P. 204.1(d) 3
Tex. R. Civ. P. 204.2(a) 4
Tex. R. Civ. P. 204.5 3
Tex. R. Evid. 509(c)(1-2) 5
Tex. R. Evid. 509(d); Tex. Occ. Code, A7 159.002(e) 5
Tex. R. Evid. 509(e)(4) 5

– Steven C. Laird, Laird & Cummings, P.C.,
1824 8th Avenue, Fort Worth, Texas 76110, 817-531-3000, www.texlawyers.com