Expert Witnesses & Reports – Part 1

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

The Texas appellate courts have a deep interest in experts. Since 1995, few topics have consistently generated as many opinions from the Texas appellate courts as has the topic of expert testimony. The Texas legislature has also taken an interest in experts. The Legislature recently tightened the longstanding requirement in medical malpractice cases that plaintiffs provide an expert report to support their claims. The Legislature has also started requiring expert reports in other types of lawsuits.

The starting point for any discussion of experts is Rule 702. The U.S. Supreme Court inaugurated the current approach to Rule 702 in its landmark 1993 decision in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). The Texas Supreme Court adopted Daubert less than two years later in 1995. E.I. Dupont de Nemours and Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995). Following Daubert and Robinson, a body of case law developed in Texas setting out (1) the substantive standards for evaluating the admissibility of expert testimony and (2) the procedures for preserving error when challenging experts. Soon after Robinson, however, the Texas Supreme Court applied the standards for the admissibility of experts at trial to appellate “no evidence” challenges to final judgments. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711-14 (Tex. 1997).
This ultimately created an alternative system of error preservation. This alternative method of challenging expert testimony is much more limited than preserving error under Robinson-so, of course, all practitioners should follow the normal methods of error preservation. Nevertheless, these alternative arguments can salvage a terrific appeal when it might otherwise appear lost. This paper will first review these three issues mentioned above: (1) the Robinson test for the admissibility of expert testimony; (2) preservation of error under Robinson; and (3) preservation of error under the alternative methods that have developed following Havner.
Finally, this paper will also discuss (4) Texas statutory requirements for expert reports and (5) unique expert issues that arise in specific areas of the law.