Expert Witnesses & Reports – Part 3

In Expert Witnesses and Reports, Manuel Lopez and David Chaumette of Shook, Hardy & Bacon L.L.P. write:

The Admissibility of Expert Testimony in Texas after Daubert and Robinson. Rule 702 governs the admissibility of expert testimony in Texas: 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. TEX. R. EVID. 702. 1. The Robinson Opinion Created the Framework for Applying Rule 702. Robinson’s core holding is that Rule 702 requires the trial court to serve as a “gatekeeper” to ensure that (1) the expert is qualified and that the expert testimony is both (2) relevant and (3) reliable. Robinson, 923 S.W.2d at 553-54 & 556; see also Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992) (en banc) (holding that, in evaluating expert testimony in criminal cases, “the trial court’s first task is to determine whether the testimony is sufficiently reliable and relevant to help the jury in reaching accurate results.”). According to Robinson, the relevancy requirement is critical because of the prejudicial effect that expert testimony has on the jury: “a jury more readily accepts the opinion of an expert witness as true simply because of his or her designation as an expert.” Robinson, 923 S.W.2d at 553 (citations omitted). As to reliability, Robinson announced a “nonexclusive” six-factor test to evaluate expert testimony:
(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.