DEFEATING DAUBERT/ROBINSON CHALLENGES.

TEXAS TRIAL LAWYERS ASSOCIATION

Beat the Heat

June 30-July 8*Broadmoor Hotel *Colorado Springs

Andrew L. PayneHowie & Sweeney, L.L.P.

2911 Turtle Creek Boulevard, Suite 1400Dallas, Texas 75219

(214) 523-8800(214) 523-8888 FAX

ap@howie-sweeney.com

i

Table of Contents

I. INTRODUCTION

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. BACKGROUND: FROM FRYE TO ROBINSON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. Frye . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. Daubert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

C. Robinson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III. DAUBERT/ROBINSON’S ANALYSIS NOW APPLIES TO ALL EXPERTS - KUMHO AND

GAMMILL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. Federal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

IV. THE OUTER GATE: IS YOUR EXPERT QUALIFIED TO TEST IFY ON THE

SUBJECT-AT-ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

V. THE DAUBERT/ROBINSON STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

A. The Trial Court’s Gatekeeping Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

B. The Reliability Requirement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1. Testability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

2. Peer Review and Publication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

3. Potential Rate-of-Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

4. Generally Accepted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

5. Non-Judicial Uses W hich Have Been M ade of the Theory . . . . . . . . . . . . . . 9

6. Whether a Theory Relies Upon an Expert’s Subjective Interpretation . . . . 9

C. The Alternative Reliability Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

D. The Relevancy Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

VI. THE SIGNIFICANT CASES SINCE DAUBERT/ROBINSON . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

VII. HELPFUL CASES IN DEFENDING EXPERTS FROM DAUBERT/ROBINSON CHALLENGES

FROM 1999 TO 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

VIII. PROCEDURAL APPLICATION OF DAUBERT/ROBINSON . . . . . . . . . . . . . . . . . . . . . . . . . . 21

A. Challenging Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

B. Defending Challenged Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

1. Thoroughly Investigate Your Own Expert’s Qualifications . . . . . . . . . . . . 24

2. Thoroughly Explore Your Witness’s Expertise on the Subject-at-Issue . . 25

3. Monitor Your Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

4. Investigate the Gatekeeper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

5. Flush Out a Potential Challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

6. Bill of Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

IX. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

X. APPENDIX: SAM PLE RESPO NSE TO A DAUBERT CHALLENGE

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I. INTRODUCTION

In 1993, the United States SupremeCourt changed the evidentiary landscape forthe admissibility of expert testimony in thelandmark decision, Daubert v. Merrell DowPharmaceuticals, Inc. 509 U.S. 579, 125 L.Ed. 2d 469, 113 S. Ct. 2786(1993)(“Daubert”). The Texas SupremeCourt followed suit in 1995 by adopting andexpanding the Daubert holding in E.I. du PontDe Nemours and Co., Inc. v. Robinson, 923S.W.2d 549 (Tex. 1995)(“Robinson”). Thesedecisions erected “gates” through whichexpert testimony must pass. Since thesedecisions were initially handed down, the lawregarding the admissibility of expert testimonyhas continued to evolve.

This paper is intended to provide apractical framework of the law regarding theadmissibility of expert testimony, with aspecific focus on Daubert/Robinson and theirprogeny. Additionally, this paper outlines theprocedure--and provides practice pointers--for challenging and defending experts onDaubert/Robinson grounds. Finally, recenthelpful cases involving Daubert/Robinson aresummarized.

II. BACKGROUND: FROM FRYE TOROBINSON

By now, most lawyers are familiar withthe facts and holdings of Frye, Daubert andRobinson. Accordingly, this section onlybriefly abstracts the Frye, Daubert andRobinson decisions.

A. Frye

In Frye v. U.S., 293 Fed. 1013 (D.C.1923), the Court affirmed the exclusion ofopinion testimony derived from an earlyversion of the polygraph. In doing so, theCourt held that opinion testimony based onscientific evidence is admissible only if thescience is “generally accepted” in the field to

which it belongs. Id. at 1014. The Frye“generally accepted” test governed theadmissibility of expert testimony for the nextseventy years.

B. Daubert

Daubert was a products liability caseinvolving the morning-sickness drugBendectin. Bendectin allegedly caused birthdefects in children whose mothers ingestedthe drug during pregnancy. The Daubertplaintiffs relied on expert testimony to linkBendectin to the birth defects. Those expertopinions were based on animal studies,pharmacological studies purporting to showsimilarities between the chemical make-up ofBendectin and other drugs which were knownto cause birth defects and re-analysis ofpreviously published human statisticalstudies. The district court rejected theplaintiffs’ expert testimony holding that suchevidence did not meet the Frye “generalacceptance” test. The Ninth Circuit affirmedbased on Frye. See Daubert v. Merrell DowPharmaceuticals, Inc., 951 F.2d 1128 (9thCir. 1991)(Daubert I).

On appeal, the U.S. Supreme Court heldthat Frye was superseded by the adoption ofRule 702 of the Federal Rules of Evidence.Daubert v. Merrell Dow Pharmaceuticals,Inc., 509 U.S. 579, 589-90 (1993). TheSupreme Court noted that, pursuant to Rule702, a proponent of expert testimony mustshow that the offered opinions andconc lus ions a re based on (1)“...scientific...knowledge” that (2) will“...assist...” the trier of fact. Daubert, 113 S.Ct. at 2796. Keying on this language, theCourt erected two “gates” or requirementsthat must be satisfied before a trial court canproperly admit scientific expert testimony.The requirement that an expert’s testimonypertain to “...scientific...knowledge”establishes the standard of evidentiaryreliability--the reliability gate. Id. at 2795.Likewise, the requirement that an expert’s

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opinion “...assist...” the trier of fact is the rootof the relevancy gate. Id. The DaubertCourt charged trial courts with a gatekeepingfunction by requiring that trial court’sdetermine that evidence is “reliable” and“relevant” before admitting it as evidence forconsideration by the trier of fact. The factorssuggested by the Court for assessing the“reliability” and “relevancy” of profferedevidence are discussed, in detail, in latersections.

C. Robinson

In E.I. du Pont De Nemours andCompany, Inc. v. Robinson, 923 S.W.2d 549(Tex. 1995) the Texas Supreme Courtadopted standards for the evaluation ofscientific expert testimony that paralleled andexpanded Daubert. In Robinson, a land-owner sued the manufacturer of a pesticidefor damage to his pecan orchard. Plaintiff’sexpert testified that the pesticide, Benlate50DF, was contaminated, and when applied,it damaged plaintiff’s trees. Defendant movedto exclude the expert on the grounds that hismethodologies and research were flawed.The trial court excluded plaintiff’s expert.Robinson, 923 S.W.2d at 552. The Court ofAppeals reversed, holding that the trial courtabused its discretion since only the expert’smethodology and research, not hisqualifications, were contested. Robinson v.E.I. du Pont Nemours and Co., Inc., 888S.W.2d 490 (Tex. App. - Ft. Worth 1994),rev’d 923 S.W.2d 549 (Tex. 1995).

The Texas Supreme Court reversed theCourt of Appeals and affirmed the trial court’sdecision. The Texas Supreme Courtconcluded that trial judges should undertakea “gatekeeper” role in evaluating experttestimony. Robinson, 923 S.W.2d at 553(“trial judges have a heightened responsibilityto ensure that the expert testimony has someindicia of reliability.”) The Robinson decisionendorsed the reasoning of Daubert and Kellyv. State, 824 S.W.2d 568 (Tex. Crim. App.1992)(adopting a standard for determiningthe relevancy and reliability of evidence under

Rule 702 of the Texas Rules of CriminalEvidence). The Robinson Court held that inaddition to showing that an expert is qualified,Rule 702 also requires that the proponentshow that the expert’s testimony is relevant tothe issues in the case and is based upon areliable foundation. Robinson, 923 S.W.2d at556.

With Daubert in Federal Court andRobinson in State Court, we have now movedfrom the “generally accepted” test of Frye(wherein the scientific community served asthe “gatekeeper”) to the reliability andrelevancy tests (wherein the trial court servesas the “gatekeeper”). Both Daubert andRobinson enumerated factors to guide trialjudges in their determination of what isreliable and relevant. These factors arediscussed in Section V. But, prior to thatdiscussion, is an explanation of a thresholdrequirement of Rule 702—having an expertthat is qualified in the area of the profferedtestimony. See Section IV

III. DAUBERT/ROBINSON’S ANALYSISNOW APPLIES TO ALL EXPERTS:KUMHO/GAMMILL

Both Daubert and Robinson dealt with“ha rd ” sc ience . Ap p l yi n g t heDaubert/Robinson holding to the “hard”sciences is logical. Application of thesedecisions, however, to the “soft” sciences orto expert testimony based upon experienceand training is difficult at best. This problemwas the topic of much debate, but has beendecided by the U.S. Supreme Court in KumhoTire v. Carmichael, 526 U.S. 137, 119 S. Ct.1167 (1999) and by the Texas SupremeCourt in Gammill v. Jack Williams Chevrolet,Inc. 972 S.W.2d. 713 (Tex. 1998).

A. Federal Court

The Fifth Circuit (applying what wouldultimately be the law of the land) handeddown two significant decisions on this issuebefore Kumho time: Watkins v. Telsmith, Inc.,121 F.3d 984 (5th Cir. 1997) and Moore v.

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Ashland Chemical Inc., 125 F.3d 679 (5th Cir.1997)(en banc). Watkins is a productsliability case where a gravel wash plantemployee was killed when the conveyor hewas operating fell on him. Watkins, 121 F.3d984. The Plaintiff brought suit alleging thatthe conveyor was defectively designedbecause it was supported by only one wirerope. In support of this claim, the Plaintiffoffered the testimony of a civil engineer, whoclaimed that the conveyor was unreasonablydangerous and that alternative designs werefeasible. However, the expert did not makecost calculations or design drawings tosupport his opinions that the existing designwas defective or that an alternative designwas safer. The district court excluded theplaintiffs’ engineering expert’s testimonyregarding an alternative design of theconveyor system pursuant to Rule 702 andDaubert. Id. The Fifth Circuit affirmed. Inaffirming the district court, the Fifth Circuitrejected the view proffered by the TenthCircuit in Compton v. Suburu of America, Inc.,82 F.3d 1513 (10th Cir.1996), that an expert’sopinions can avoid scrutiny under Daubertmerely because they are based on hisexperience and training. The court reasoned:

We cannot agree with the Comptoncourt’s conclusion that Daubert onlyapplies when “unique, untested orcontroversial methodologies ortechniques” are relied on by theexpert....The nonexclusive list offactors relevant under Daubert toassessing scientific methodology--testing, peer review, and “generalacceptance”--are also relevant toassessing other types of expertevidence. Whether the expert wouldopine on economic valuation,adver t is ing psycho logy, orengineering, application of theDaubert factors is germane toevaluating whether the expert is ahired gun or a person whose opinionin the courtroom will withstand thesame scrutiny that it would amonghis professional peers.

The Fifth Circuit further stated that theCompton decision “suffers from thevagueness of the line it draws between‘methodology’ and other scientific or technicalknowledge.” The court reasoned the when anengineering expert testifies to alternativedesigns, that opinion, by definition, includeselements of science, technology, andmethodology.

The Watkins court held that Daubert’s“...focus on a standard of evidentiaryreliability and the requirement that proposedexpert testimony must be appropriatelyvalidated are criteria equally applicable to‘ t echn i ca l o r o ther spec ia l i ze dknowledge’...The nonexclusive list of factorsrelevant under Daubert ... are also relevant toassessing other types of expert evidence.”Id. at 990. In the Fifth Circuit’s view, allowingan expert to avoid Daubert simply by statingthat his conclusions were not reached by anyparticular method or technique, but rathergeneral engineering principles and practicalexperience, would lead to an approach of “theless factual support for an expert’s opinion,the better.”

After holding that Daubert and its factorsapply to an engineer testifying about analternative product design, the Fifth Circuitaffirmed the trial court’s exclusion of plaintiffs’expert. In applying Daubert, the Fifth Circuitwas critical of the expert’s: (1) failure to testalternative designs; (2) failure to investigateother designs available at the relevant time;(3) failure to make any design drawings; (4)failure to retain calculations supporting thedesign; (5) failure to examine the failedcomponent part; (6) failure to analyze theimpact an alternative design would have theproduct’s utility; and, (7) failure to analyze thecosts associated with implementation of thealternative design. Id. Significantly, theCourt held that the Daubert factors applied inconcept, but in the Court’s application, theygloss over three of the four factors. See Id.The only factor that the Court did apply wasthat of testability. Id. So, did the Daubertfactors apply or not? The answer to this

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question was better clarified in the FifthCircuit’s en banc decision in Moore v.Ashland Chemical Inc., 125 F.3d 679 (5th Cir.1997), and ultimately the U. S. SupremeCourt in Kumho Tire.

In Moore v. Ashland Chemical Inc., 125F.3d 679 (5th Cir. 1997), Moore contractedreactive airway dysfunction syndrome hoursafter being exposed to a mixture of chemicalgases on defendants’ premises. Moore andhis wife sued claiming that the chemicalexposure caused his condition. Id. at 683. Insupport of their claims, the Moores offeredthe testimony of “two well credentialed clinicalphysicians.” Id. The trial court excluded oneof the two physician’s testimony on causationpursuant to Rule 702 and Daubert. Id. at697-700. After the exclusion of thistestimony, the jury found that Moore’s injurywas not proximately caused by defendants’negligence, and the trial court granted thedefendants a take-nothing judgment. Id. at683.

Sitting en banc, the Fifth Circuit reversedand remanded. Id. at 710. It also made twosignificant clarifications in Fifth Circuit law.First, the Moore Court held that the trialcourt’s “gatekeeping” function, as espousedin Daubert, applies to the admission orexclusion of every type of expert testimony.Id. at 682, 685-86. However, the MooreCourt also took a giant leap towardsrestricting the application of the Daubertfactors. Id. at 683, 688. (“The Daubertfactors, which are techniques derived fromhard science methodology, are, as a generalrule, inappropriate for use in making thereliability assessment of the expert clinicalmedical testimony.”) Rather than blindlyapplying the Daubert factors, the trial court, inexecuting its “gatekeeping” function, shouldlook to the principles, methods andprocedures of the particular field ofknowledge involved. Id. at 686-87.

Kumho Tire Company, Ltd., et al v.Carmichael, 526 U.S. 137, 119 S. Ct. 1167(1999)

In Daubert v. Merrell DowPharmaceuticals, Inc., 509 U.S. 579 (1993)the Court focused upon the admissibility ofscientific expert testimony. It pointed out thatsuch testimony is admissible only if it is bothrelevant and reliable. It held that the FederalRules of Evidence “assign to the trial judgethe task of ensuring that an expert’stestimony both rests on a reliable foundationand is relevant to the task at hand.” Id. at597. The Court also discussed certain morespecific factors, such as testing, peer review,error rates, and “acceptability” in the relevantscientific community, some or all of whichmight prove helpful in determining thereliability of a particular scientific “theory ortechnique.” Id. at 593-594.

Kumho Tire required the Court to decidehow Daubert applies to the testimony ofengineers and other experts. The Courtconcluded that Daubert’s general holding --setting forth the trial judge’s general“gatekeeping” obligation -- applies not only totestimony based on “scientific” knowledge,but also to testimony based on “technical”and “other specialized” knowledge. See Fed.Rule Evid. 702. The Court also concludedthat a trial court may consider one or more ofthe more specific factors that Daubertmentioned when doing so will help determinethat testimony’s reliability.

But, as the Court stated in Daubert, thetest of reliability is “flexible,” and Daubert’s listof specific factors neither necessarily norexclusively applies to all experts or in everycase. Rather, the law grants a district courtthe same broad latitude when it decides howto determine reliability as it enjoys in respectto its ultimate reliability determination. SeeGeneral Electric Co. v. Joiner, 522 U.S. 136,143 (1997) (courts of appeals are to apply“abuse of discretion” standard whenreviewing district court’s reliabilitydetermination). Applying these standards,the court determined that the District Court’sdecision in Kumho Tire -- not to admit certain

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expert testimony -- was within its discretionand therefore lawful.

B. Texas

The recent Texas Supreme Courtopinions are consistent with Fifth Circuit lawthat Daubert/Robinson applies not only to allscientific testimony, but to all experttestimony. Gammill v. Jack WilliamsChevrolet, Inc., 972 S.W.2d 713 (Tex.1998).In so holding, the Texas Supreme Courtstated that the Daubert court expresslyrejected the argument the Federal Rule 702'srequirement that expert testimony be reliableapplied “specifically or exclusively tounconventional evidence.” Gammill, citingDaubert, 509 U.S. at 592, n.11, 113 S.Ct.2786 (“Although Frye focused exclusively on‘novel’ scientific techniques, we do not readthe requirements of Rule 702 to applyspecifically or exclusively to unconventionalevidence....). The Court also cited the TexasCourt of Criminal Appeals in rejecting thedual application of Daubert/Robinson. TheCourt stated:

[N]owhere in Kelly did we limit thetwo-pronged [relevance andreliability] standard to novel scientificevidence. The Supreme Court inDaubert directly addressed thisissue in a footnote...The SupremeCourt noted the “under the Rules,the trial judge must ensure that anyand all scientific testimony orevidence admitted is not onlyrelevant, but reliable.” Daubert, 509U.S. at 589, 113 S.Ct. at 2795. Welikewise see no value in having adifferent standard of admissibility fornovel scientific evidence. Theproblems presented in determiningwhether or not a particular type ofevidence would be considered“novel” are daunting enough toreject application of a dual standard.Moreover, we observe that thefactors and criteria set forth in Kellyas bearing upon the reliability of

proffered scientific evidence are anadequate measure for assuring that“novel” scientific evidence which is“junk science” is excluded. Thesefactors “addressed the soundness ofthe underlying scientific theory andtechniques.”Jordan v. State, 928S . W . 2 d 5 5 0 , 5 5 4(Tex.Crim.App.1996).

Gammill , 927 S.W.2d at 721.

The Texas Supreme Court also notedthat the consensus of Federal Circuit courtsthat had addressed Daubert’s scope that itsapplication is not limited to novel scientificmethodologies but, at a minimum, extends toall scientific expert testimony proffered underFederal Rule of Evidence 702. Watkins v.Telsmith, Inc., 121 F.3d 984, 991 (5thCir.1997)(“We cannot agree...the Daubertonly applies when ‘unique, untested orcontroversial methodologies or techniques’are relied on by the expert.”); Southland SodFarms v. Stover Seed Co., 108 F.3d 1134,1143, n.8 (9th Cir.1997)(“Daubert’s holdingapplies to all expert testimony, not justtestimony based on novel scientificmethods.”); Peitzmeier v. Hennessey Indus.,Inc., 97 F.3d 293, 297 (8th Cir.1996, cert.denied, 117 S.Ct. 1552, 137 L.Ed. 701(1997)(refusing to limit Daubert’s applicationto nove l sc ien t i f i c theor ies ormethodologies.”). Like the above citedFederal Circuit Courts, the Texas SupremeCourt did not believe that the rules governingadmission of scientific evidence should differdepending on whether the evidence isconsidered novel or unconventional. Thus,the Gammill court held that theDaubert/Robinson analysis applied to allscientific testimony.

In addition to holding that theDaubert/Robinson analysis applied to allscientific testimony, the Texas SupremeCourt held that the Daubert/Robinsonanalysis applied to all expert testimony. TheCourt stated that “[w]e agree with the Fifth,Sixth, Ninth, and Eleventh Circuits that Rule

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702's fundamental requirements of reliabilityand relevance are applicable to all experttestimony offered under that rule. Nothing inthe language of the rule suggests thatopinions based on scientific knowledgeshould be treated any differently thanopinions based on technical or otherspecialized knowledge. It would be an oddrule of evidence that insisted that someexpert testimony should be shown to bereliable but not others. All expert testimonyshould be shown to be reliable before it isadmitted.” Gammill, 972 S.W.2d at 726.

While the Texas Supreme Court took ahard line approach in determining that allexpert testimony is subject to the two-prong[relevancy and reliability] gate-keepinganalysis proscribed under Daubert/Robinson,it recognized that the methods of performingthat gate-keeping duty will not be the samefor every case. The Court stated, “it is equallyclear that the considerations listed in Daubertand in Robinson for assessing the reliabilityof scientific evidence cannot always be usedwith other kinds of expert testimony.”Gammill, 972 S.W.2d at 726. The Court usedan analogy proffered in Berry v. City ofDetroit, 25 F.3d 1342 (6th Cir.1994), toexplain the necessity of fluidity in the factorsused by the trial courts. The Court stated:

To borrow the Berry court’s analogy,a beekeeper need not havepublished his findings that bees takeoff into the wind in a journal for peerreview, or made an elaborate test ofhis hypotheses. Observations ofe n o u gh bees i n va r i o uscircumstances to show a patternwould be enough to support hisopinion. But there must be somebasis for the opinion offered to showits reliability. Experience alone mayprovide a sufficient basis for anexpert’s testimony in some cases,but it cannot do so in every case. Amore experienced expert may offerunreliable opinions, and a lesserexperienced expert’s opinions may

have solid footing. The court indischarging its duty as gatekeepermust determine how the reliability ofparticular testimony is to beassessed.

Gammill, 972 S.W.2d at 726. Clearly, theTexas Supreme Court has held that while therelevancy and reliability gate-keeping analysisestablished by Daubert/Robinson apply to allexpert testimony, the trial courts mustdetermine for themselves the proper methodfor this analysis, which may differ from caseto case.

Following the mandate of the TexasSupreme Court, the Austin Court of Appealsrecently held that the trial court, indischarging its duty as “gatekeeper,”determines how the reliability of particulartestimony is to be assessed. Olin Corp. v.Smith, 990 S.W.2d 789 (Tex. App.-Austin1999, writ denied). In Olin, plaintiff sueddefendant for marketing defectiveammunition and for failing to warn users thatthe ammunition was subject to delayed firing.After attempting to shoot a pig, plaintiff hearda click. Assuming the revolver was empty, hebrought it into the vehicle to reload. Heplaced the revolver on his right thigh with itsmuzzle pointed toward the floorboard. Hereached for more ammunition and the gundischarged, striking him in the leg. Plaintiffsustained serious injuries which resulted inthe eventual amputation of his leg below theknee. The trial court allowed plaintiff’s expertsto testify to cause of the delayed dischargeand the jury returned a verdict in favor of theplaintiff. On appeal, defendant argued thatthe expert testimony offered by plaintiff toshow that the delayed discharge was causedby defective ammunition was merelyanecdotal and not based on scientific tests.The Court of Appeals held that the trial courtmust determine how the reliability ofparticular testimony is to be assessed whendischarging its “gate-keeper” responsibilitiesunder Daubert/Robinson. Thus, while theDaubert/Robinson two-pronged “gate-keeper”analysis is applicable to all expert testimony,

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the trial court must determine how the twoprongs are to be assessed to particulartestimony.

IV. THE OUTER GATE: IS YOUR EXPERTQUALIFIED TO TESTIFY ON THESUBJECT-AT-ISSUE

In the shadows of Daubert/Robinsonmany practitioners failed to give adequateconsideration to important threshold issues--are the proffered experts qualified and arethose qualifications in the area of theproffered testimony. Although theDaubert/Robinson decisions deal with Rule702 and the admissibility of expert testimony,the gravamen of those opinions do notdiscuss the actual qualifications of expertwitnesses. Nevertheless, this important outergate should not be ignored. See Broders v.Heise, 924 S.W.2d 148 (Tex. 1996).

Rule 702 of the Texas Rules of Evidencereads:

If scientific, technical, or otherspecialized knowledge will assist thetrier of fact to understand theevidence or to determine a fact inissue, a witness qualified as anexpert by knowledge, skill,experience, training, or educationmay testify thereto in the form of anopinion or otherwise. (emphasisadded)

New Federal Rule of Evidence 702reads:

If scientific, technical, or otherspecialized knowledge will assist thetrier of fact to understand theevidence or to determine a fact inissue, a witness qualified as anexpert by knowledge, skill,experience, training, or education,may testify thereto in the form of anopinion or otherwise, if (1) thetestimony is based upon sufficientfacts or data, (2) the testimony is the

product of reliable principles andmethods, and (3) the witness hasapplied the principles and methodreliably to the facts of the case.

Thus, the first key to the outer gate is aqualified expert. A witness testifying pursuantto Rule 702 must be qualified as an expert“...by knowledge, skill, experience, training, oreducation...” The witness’s qualification asan expert may be by way of education, evenin the absence of practical, hands-onexperience. Lavestere v. Niagara Machine &Tool Works, Inc., 910 F.2d 167, 176-77 (5thCir. 1990), cert. denied 510 U.S. 859, 126 L.Ed. 2d 132, 114 S. Ct. 171 (1993). However,a formal education is not required forqualification of an expert under Rule 702;practical experience may suffice. SeeGlasscock v. Income Property Services, Inc.,888 S.W.2d 176, 180 (Tex. App.--Houston[1st Dist.] 1994, writ dism’d by agrmt);Petrolia Insurance Co. v. Everitt, 719 S.W.2d639, 641 (Tex. App.--El Paso 1986, no writ);U.S. v. Hernandez - Talacios, 838 F.2d 1346,1350 (5th Cir. 1988).

A qualified expert will not, by itself, getone past the outer gate. As the TexasSupreme Court recently reminded us--thequalified expert must be qualified to testify onTHE SUBJECT MATTER AT ISSUE. InBroders v. Heise, 924 S.W.2d 148 (Tex.1996), the Texas Supreme Court affirmed theexclusion of testimony by an emergencyroom medical doctor who attempted to opineon the causal relationship between a headinjury and a death. In doing so the Courtnoted:

Dr. Condos’s medical expertise isundoubtedly greater than that of thegeneral population, but the Heisesdo not establish that his expertise onthe issue of cause-in-fact met therequirements of Rule 702.... On thisrecord, the Heises simply did notestablish that Dr. Condos’s opinionson cause-in-fact would have risenabove mere speculation to offer

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genuine assistance to thejury.... Just as a lawyer is not,by general education andexperience, qualified to give anexpert opinion on every subjectof the law, so to a scientist ormedical doctor is not presumedto have expert knowledge aboutevery conceivable scientificprinciple or disease. Id. at 153.

The Broders Court’s rationale was that evena highly trained emergency medical doctor isnot an “expert” in neurology. Therefore, themedical doctor (although qualified) was notqualified on the subject matter at issue, thatbeing neurology.

Insure that your expert witness isqualified by one of the methods recognized inRule 702 (knowledge, skill, experience,training, or education). Then, determinewhether your qualified expert is, indeed,qualified to give opinions in the area of his orher expected testimony. In short, to pass theouter gate, one must affirmatively show (1) aqualified expert (2) who is qualified to testifyon the subject-at-issue.

V. T H E D A U B E R T / R O B I N S O NSTANDARDS

A. The Trial Court’s GatekeepingFunction

The Daubert/Robinson decisions andtheir progeny have dramatically changed thelandscape of the admissibility of experttestimony in that the trial court (rather thanthe community in which the expert practices)now has the “gatekeeping” role indetermining what types of evidence areand/or will be admissible.

In interpreting the language of Rule 702,the seven justice majority in Daubert erectedtwo “gates” through which scientific evidencemust pass before it may be presented to ajury. Daubert, 113 S. Ct. at 2796. The

Watkins and Gammill courts expanded thescope of these gates to include all experttestimony, whether scientific or other. SeeWatkins, 121 F.3d 984 (5th Cir.1997);Gammill v. Jack Williams Chevrolet, 927S.W.2d 713 (Tex.1998). Thus, faced with aproffer of expert testimony, the trial judgemust determine, pursuant to Rule 104(a),whether the qualified expert is proposing tooffer opinions and conclusions based upon(1) a scientific or technical knowledge that (2)will assist the trier of fact to understand or todetermine a fact in issue. Id. at 2796. Indetermining whether the proffered evidenceis relevant and reliable, the focus “must be onprinciples and methodology, not on theconclusions they generate.” Id. at 2796.Stated differently, the court should not decidewhether the expert is right, but rather decideif he used proper scientific methodology toarrive at his conclusion. In addition, as statedin Gammill and Olin, the trial court is calledupon to determine the proper reliability testsfor testimony that is not scientific. Gammill,927 S.W.2d at 726.

The requirement that an expert’stestimony pertain to “scientific or technicalknowledge” establishes a standard ofevidentiary reliability. Id. at 2795. Likewise,the requirement that an expert’s testimony“assist” the trier of fact is the root of Rule702’s relevancy requirement. In short, thetrial court must analyze both standards ofadmissibility, reliability and relevancy, todetermine whether the evidence should passthrough the gates of admissibility.

B. The Reliability Requirement.

The Daubert/Robinson Courts had giventrial judges parameters to guide them indetermining what evidence should pass thereliability “gate” by providing a list of factors toconsider. Id. at 2797; Robinson, 923 S.W.2dat 557. The factors a trial court may considerinclude: (1) The extent to which the theoryhas been or can be tested; (2) whether thetheory was subject to peer review orpublication; (3) the theory’s potential rate of

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error; (4) the general acceptance of thetheory within the relevant and scientificcommunity; (5) non-judicial uses which havebeen made of the theory; and, (6) the extentto which the theory relies upon the subjectiveinterpretation of the expert. Id. The latter twofactors are mentioned only in the Robinsonopinion. Id.

1. Testability

The Robinson and Daubert Courts heldthat an important factor in assessing reliabilityis whether the scientific theory can be andhas been tested. Id; See also AmericanForeign Ins. Co. v. General Electric, 45 F.3d135, 138 (6th Cir. 1995); Bradley v. Brown,42 F.3d 434, 438 (7th Cir. 1994)(Holding thatthe first and most important factor in theDaubert analysis is whether the theory wassubjected to the scientific method); UnitedStates v. Dorsey, 45 F.3d 809, 813 (4th Cir.1995); Wheat v. Pfizer, Inc., 31 F.3d 340, 343(5th Cir. 1994); Porter v. White HallLaboratories, Inc. 9 F.3d 607, 613 (7th Cir.1993). Stated differently, scientificmethodology is based upon generatinghypotheses and testing them to see if theycan be falsified. Daubert, 113 S. Ct. at 2797.

2. Peer Review and Publication

The Robinson Court, in its second factorfor demonstrating reliability, emphasizes theimportance of peer review and publication.Robinson, 923 S.W.2d at 557. The DaubertCourt agrees by holding that peer review andpublication of an expert theory is crucialbecause it markedly increases the likelihoodthat substantial flaws in methodology will bedetected. Daubert, 113 S. Ct. at 2797.

3. Potential Rate-of-Error

A third of the Daubert/Robinson Court’sconsiderations for determining reliability is thepotential rate-of-error of the theory inquestion. Daubert, 113 S. Ct. at 2796-97;Robinson, 923 S.W.2d at 557. If the rate of

error exceeds an acceptable level or isunknown, then this factor weighs againstadmissibility. Id.; See also Bradley, 42 F.3dat 434; and Resado, 5 F.3d at 119.

4. Generally Accepted

The Daubert and Robinson Courts bothconsider whether the type of evidence and/ortheory as issue has been generally acceptedin the relevant scientific community as afactor in determining reliability. Daubert, 113S. Ct. at 2796-97; Robinson, 923 S.W.2d at557. This factor is reminiscent of the old“generally accepted” test described in Frye v.United States, 293 F. 1013, 1014 (1923).

5. Non-Judicial Uses WhichHave Been Made of theTheory

The fifth guideline suggested by theTexas Supreme Court in determining thereliability of expert testimony is whether or notthe experts’ opinions or theories have non-judicial uses. Robinson, 923 S.W.2d at 557.In that regard, the Robinson Court concludesthat “ opinions formed solely for the purposesof testifying are more likely to be biasedtowards a particular result.” Id. Similarly, theNinth Circuit, in Daubert II, gave “significant”consideration to whether or not the expertswere proposing to testify about mattersgrowing naturally and directly out of researchthey had conducted independent of litigation,or whether they had developed their ownopinions expressly for purposes of testifying.Daubert II, 43 F.3d 113, 117 (9th Cir. 1994).Clearly the courts consider a scientific theorythat has its genesis outside the courtroommore reliable than science generated in thecontext of litigation.

6. Whether a Theory ReliesUpon an Expert’s SubjectiveInterpretation

The last non-exclusive factor suggestedby the Texas Supreme Court in evaluatingthe admissibility of expert testimony is

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whether the technique relies upon thesubjective interpretation of the expert.Robinson, 923 S.W.2d at 557. Obviously, ifthe expert’s conclusions are verifiable byobjective tangible evidence, then thatsubstantially decreases the likelihood of abiased conclusion.

While the trial court must use thesefactors to assess the reliability of mostexpert’s testimony, they do not always meshwith the particular type of testimony beingproffered. In light of the applicability ofDaubert/Robinson to all expert testimony, theTexas Supreme Court and the Fifth Circuithave recognized that the reliability “gate”needs to remain fluid. As recently stated bythe Austin Court of Appeals, “[t]he trial courtin discharging its duty as ‘gatekeeper’determines how the reliability of particulartestimony is to be assessed.” Olin, 990S.W.2d at 789. While the factors offered inDaubert/Robinson may be helpful indetermining the reliability of an expert’stestimony, there may not be a perfect fitbetween the stated factors and the opinionsoffered. Thus, as the Texas Supreme Courtand the Fifth Circuit have acknowledged, thetrial court must use its discretion to determinehow the reliability of particular testimony is tobe assessed.

C. The Alternative Reliability Test

A pattern is arising in both Federal andState court cases dealing with “non-scientific”testimony. Many decisions dealing with non-scientific testimony either summarilydisregard the Daubert/Robinson factors orsimply failed to mention them all together.Instead, these court decisions often focusupon an “analytical gap” analysis set forth inGeneral Electric Co. v. Joiner, 118 S. CT.512, 139 L. Ed.2d 508 (1997) and later inGammill v. Jack Williams Chevrolet, 972S.W.2d 713 (Tex. 1998). In short, thesedecisions do not strictly adhere to theDaubert/Robinson factors, but consideralternative factors in assessing an expert’stestimony’s reliability. Overriding this

analysis, is a determination of whether thereis an “analytical gap” between the data andmaterials relied upon by the expert and theultimate conclusions or opinions reached bythe expert. The specific application of this“analytical gap” analysis is explored on acase by case basis in Section VII.

D. The Relevancy Requirement

In addition to determining whether theproffered is reliable, the United StatesSupreme Court and the Texas SupremeCourt require that the trial court determinewhether the evidence or testimony will“assist” the trier of fact. The illustrativeexample provided by the Daubert court is asfollows:

The study of the phases of themoon, for example, may providevalid scientific “knowledge” aboutwhether a certain night is dark, andif darkness is a fact in issue, theknowledge will assist the trier of fact.However, evidence that the moonwas full on a certain night will notassist the trier of fact in determiningwhether an individual was unusuallylikely to have behaved irrationally onthat night.” Daubert, 113 S. Ct. at2796.

Another court explained the relevancyrequirement by noting that the term“causation” has two elements: (1) whether anevent in question can cause the injury(general causation); and (2) whether theevent in question caused plaintiff’s injury(specific causation). Casey, 877 F. Supp. at1381-82. With the Daubert/Robinsondecisions, the trial courts had assumed agatekeeping role. Kumho Tire removed anydoubt clearly underscoring this gatekeepingrole. In this role, the trial court mustdetermine: whether the proffered expert isqualified to testify on the subject-at-issue;whether such testimony is based on reliablemethodology; and whether the testimony isrelevant.

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VI. THE SIGNIFICANT CASES SINCEDAUBERT/ ROBINSON

Watkins v. Telsmith, 121 F.3d 984 (5th Cir.1997)

Products liability case where a conveyerbelt collapsed and killed the defendant’semployee. Employee’s widow sued conveyerbelt’s manufacturer alleging that the belt wasdefectively designed. The trial court excludedthe plaintiff’s expert’s testimony regardingalternative design pursuant to Daubert. Theplaintiff’s appealed on the grounds thatDaubert should only apply to scientifictestimony and not where the expert is givingopinions based upon experience. The FifthCircuit disagreed and affirmed the trial courtholding that Daubert is not limited to“scientific knowledge” or testimony basedupon “novel” scientific evidence.

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

Product liability action against themanufacturer and dealer of a motor vehiclearising out of a one-vehicle accident thatresulted in the passenger’s death. Plaintiffalleged that a wiring harness was positionedtoo close to the accelerator pedal and couldblock release of the pedal. Plaintiff allegedthat this harness caused plaintiff’s acceleratorpedal to stick, causing plaintiff to lose controlof the vehicle. The Texas Supreme Courtheld that Daubert/Robinson applies to notonly to all scientific evidence, but to allproffered expert testimony. In so holding, theTexas Supreme Court recognized that thefactors enumerated in Daubert/Robinson forassessing the reliability of expert testimonymay not be applicable to certain types ofexpert testimony. In such cases, the trialcourt is to determine how to assess thereliability such testimony.

Moore v. Ashland Chemical, 125 F.3d 679(5th Cir. 1997) (en banc)

Negligence case where plaintiff allegedthat defendants exposed him to a mixture ofchemical gases causing him to contractreactive airways disease. Plaintiff’s expert, adoctor, was proffered to testify that theexposure caused the plaintiff’s disease. Thetrial court excluded the testimony, and thedefendant received a take-nothing judgmentafter the jury declined to find causation. TheFifth Circuit reversed after being asked todetermine the reliability of the expert’s opinionas to the cause of the plaintiff’s decease.The court held that the Daubert factors weremeant to apply to hard science disciplinesonly. Because clinical medicine is not a hardscience, the Daubert factors do not apply.The court reasoned that clinical medicine’sgoals, subject matter, conditions of study,and well developed methodology are suigeneris and quite different that of hardscience and its methodology. Because ofthis, the trial judge should determine whetherthe opinions are solidly based in theknowledge, principles, and methodology ofclinical medicine. Daubert factors areinappropriate in determining reliability in sucha context. However, this decision does notmean the Court is not to apply a Daubertanalysis; rather, it just loosens therequirement to use the factors enumberatedin Daubert.

Maritime Overseas Corp. v. Ellis, 971S.W.2d 402

Plaintiff had Jones Act claim for injurieshe sustained on defendant’s ship. Defendantappealed on the basis that the trial courtshould have applied a Daubert/Robinsonreview to determine whether any well foundedscientific methodology supported the actualdamages award. Defendant contended thatif such a standard were applied to theplaintiff’s experts’ testimony, the testimonywould have been legally insufficient to showthe long term conditions, of which the plaintiffcomplained. The Texas Supreme Court heldthat the defendant’s appeal was without meritbecause they did not make a timely objectionto the scientific evidence. To preserve a

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complaint that scientific evidence is unreliableand thus, no evidence, a party must object tothe evidence before trial or when theevidence is offered.

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

Products liability case where parents of achild who suffered limb reduction birth defectsued manufacturer of Bendectin drug takenby the mother during her pregnancy. Thedefendant challenged the scientific reliabilityof the plaintiff’s expert’s testimony andasserted that his opinion did not rise to thelevel of evidence. The Texas Supreme Courtheld that an expert’s bare opinion is noevidence. In order to be legally sufficientevidence, the opinion must be reliable withinthe meaning of Rule 702 and Robinson. Thisdetermination is made by independentlyevaluating the data for reliability. If the datathat the expert relied upon in reaching anopinion is flawed, then the expert’s testimonyis no evidence because it is itself unreliable.Moreover, an expert’s testimony may befound unreliable even if the underlying data isreliable when the methodology that the expertused to draw conclusions from the data isflawed.

General Electric Co. v. Joiner, 118 S. Ct.512, 139 L. Ed.2d 508 (1997)

Electrician was diagnosed with lungcancer and brought action againstmanufacturer of PCB’s alleging strict liability,negligence, fraud, and battery. The case wasremoved to federal court, and the districtcourt excluded plaintiff’s experts. The NinthCircuit reversed applying what the U.S.Supreme Court stated was a “particularlystringent standard of review” to the districtcourt’s ruling. The U.S. Supreme Court heldthe exclusion of expert testimony should bereviewed on an “abuse of discretion” basis.

United Blood Services v. Longoria, 938S.W.2d 29 (Tex. 1997)

Parents of child who died aftercontracting HIV through a blood transfusionsued the blood bank. The trial court grantedthe defense’s motion for summary judgment,and the Court of Appeals reversed. TheSupreme Court ruled that the trial court didnot abuse its discretion in rejecting theplaintiffs’ expert on the grounds that helacked qualifications to testify. The court heldthat the facts of the case conclusivelyestablished that the expert did not have therequisite knowledge, skill, experience,training, or education to testify as to therelevant standard of care in the case. Theburden of establishing the expert’squalifications is on the offering party, andthey must establish that the expert hasqualifications regarding the specific issuebefore the court which would qualify theexpert to give an opinion on that particularsubject.

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

Medical malpractice action allegingemergency room doctors were negligent infailing to treat patient’s head injury whichultimately caused her death. The TexasSupreme Court held that plaintiffs’ expert, anemergency room medical doctor, was notqualified to testify on the connection betweena head injury and plaintiff’s death.

Black v. Food Lion, Inc., 171 F.3d 308 (5thCir. 1999)

Black was a slip and fall case. Thetreating doctor was unable to identify anyphysical basis for the plaintiff’s continuedcomplaints of pain. All objective tests for painincluding MRI, EMG, and diskogramproduced normal results. The plaintiff wasreferred to a board certified physical medicineand rehabilitation doctor who specialized intreating patients with persistent pain.Following several weeks of treatment, the

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specialist diagnosed plaintiff withfibromyalgia.1

The defendant challenged the doctor’stestimony and the causal connection betweenthe fall and the medical condition.

The Fifth Circuit reviewing the trial court’sfactual findings for clear error and itsconclusions of law de novo cited thetraditional rule that under Texas law, plaintiffswere required to prove to a reasonabledegree of medical certainty, based onreasonable medical probability andscientifically reliable evidence, that the fallcaused the fibromyalgia.

The trial judge had admitted the doctor’sexpert testimony notwithstanding Food Lion’sRule 702/Daubert challenges.

Significantly, the Fifth Circuit noted thatthe trial court did not tie the expert’stestimony to the standards for scientificreliability set forth in Daubert. However, thetrial court did base his decision on severalfactors including:

1. The doctor’s testimony;

2. Testimony of other medical expertspresented by deposition;

3. Observations that notwithstandingthe elusiveness which forecloses anabsolute determination of causality,the doctor followed an acceptedprotocol in rendering opinions in

terms of reasonable medicalprobability.

4. The doctor followed the well-established protocol in reaching heropinion by ruling out other possiblecauses for the fibromyalgiaincluding:

Fully apprising herself of theplaintiff’s prior medical historybefore the accident;

D e t e r m i n i n g t h a t nopostaccident incident was anintervening cause for the onsetof fibromyalgia;

No other factors, based uponreview of tests performed priorto accepting plaintiff as apatient, as well as her owntesting, contributed to thefibromyalgia.

The Fifth Circuit affirmed the abuse ofdiscretion test in reviewing the trial court’sultimate determination of scientific reliability.The court specifically noted that Kumho Tirehad explained that abuse of discretion reviewalso governs a trial court’s decision abouthow to determine scientific reliability.

Noting that Kumho Tire had affirmedDaubert’s principles concerning the reliability-assurance function of Rule 702 applying totechnical or specialized testimony as well asto scientific expert testimony, the courtconcluded that the Kumho Tire opinion fullysupports the Fifth Circuit’s en banc decisionin Moore that Daubert analysis governsexpert medical testimony.

The Fifth Circuit then noted that KumhoTire refines in a common sense way, butdoes not undermine, the use of the specificDaubert factors as a reference point forgauging the reliability of potential experttestimony.

1Fibromyalgia is characterized bycomplaints of generalized pain, poor sleep,inability to concentrate and chronic fatigue. The condition is most common in womenbetween the ages of 30 and 50 and is oftenassociated with hormonal problems. Thedoctor hypothesized that the fall causedphysical trauma which in turn caused hormonalchanges causing the fibromyalgia.

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While Kumho Tire clearly holds that thetrial court “may” consider factors in addition tothe Daubert requirements, the Fifth Circuitheld that:

Kumho Tire’s emphasis on the word“may” should not be misunderstoodto grant open season on theadmission of expert testimony bypermitting courts discretionarily todisavow the Daubert factors. On thecontrary, the Supreme Court simplyrecognized obvious facts that thereare many kinds of experts andexpertise, that the Daubert inquiry isalways fact specific, and thatDaubert factors may not all applyeven to admissibility of purescientific testimony. Kumho Tirealso stressed that the Daubertfactors may be relevant to thereliability of experience-basedtestimony. The over arcing goal ofDaubert’s gatekeeping requirement,however, is to ensure the reliabilityand relevancy of expert testimony.It is to make certain that an expert,whether basing testimony uponprofessional studies or personalexperience, employs in thecourtroom the same level ofintellectual rigor that characterizesthe practice of an expert in therelevant field.

Kumho Tire, 119 S. Ct. at 1167.

Bearing in mind that the doctor expert inthis case had employed in the courtroom the“same level of intellectual rigor thatcharacterizes the practice of the doctor in therelevant field, in that she had treated thefibromyalgia condition outside the courtroombased upon the earlier diagnosis ultimatelyrepeated in the courtroom,” the Fifth Circuitthen proceeded to exclude the expert’stestimony!

The Fifth Circuit made it very clear thatKumho Tire does not require district courts to

reinvent the wheel every time experttestimony is offered in court. The courtfurther stated that the Daubert factors “maybe used as a starting point” for analysis in theusual case citing Moore, 151 F.3d at 275(noting Daubert’s “five factor, nonexclusive,flexible test” for determining the reliability ofexpert testimony. The court then noted notevery guidepost outlined in Daubert willnecessarily apply to expert testimony ... butthe district court’s preliminary assessment ofwhether the reasoning or methodologyunderlying the testimony is scientifically valid... is no less important. Black, 171 F.3d 308citing, Daubert 509 US at 592-593.

The Fifth Circuit continued that:

In the vast majority of cases, thedistrict court first should decidewhether the factors mentioned inDaubert are appropriate. Once itconsiders the Daubert factors, thecourt can then consider whetherother factors not mentioned inDaubert, are relevant to the case athand.

Noting that the trial court did not have thebenefit of Kumho Tire or the Fifth Circuit enbanc decision in Moore when he admitted theexpert’s testimony, and the fact that the trialcourt’s opinion did not even cite Daubert, thecourt proceeded to exclude the expert’stestimony, holding that the trial courtmisapplied the Daubert test and failed toarticulate any satisfying alternative standardsabusing its discretion and admitting thetestimony.

Citing medical literature indicating aninsufficient causal relationship betweentrauma and fibromyalgia, and the doctor’stestimony that fibromyalgia had no knownetiology, the court concluded that if medicalscience does not know the cause, then theexpert’s theory of causation is isolated andunsubstantiated.

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In language reminiscent of the old Frye“generally accepted” test, the court then heldthat the expert’s opinion, having failed to gainacceptance within the medical profession,and since experts in the field conclude thatthe ultimate cause of fibromyalgia cannot beknown, only an educated guess can be madebased upon the patient’s history.

The court concluded that while no onedoubts the utility of medical histories ingeneral and the process by which doctorsrule out some known causes of disease inorder to finalize the diagnosis, such generalrules must under Daubert, Kumho Tire, andMoore, be applied, specifically to the facts ineach case.

The court concluded that the trial judgeshould have first applied the Daubert criteriato this case. Alternatively, if the trial courtdecided to depart from Daubert, he shouldhave articulated reasons for adopting the testthat he used and in particular, should haveshown why an alternate test was necessaryto introduce “in the courtroom the same levelof intellectual rigor that characterizes thepractice of an expert in the relevant field.”citing Kumho Tire.

VII. HELPFUL CASES IN DEFENDINGEXPERTS FROMDAUBERT/ROBINSONCHALLENGES FROM 1999 TO 2001

This section of the paper provides briefabstracts of recent Daubert/Robinson casesthat should be helpful in defending achallenged expert. Cases were reviewedfrom January 1999 to the present. Not allsignificant Daubert/Robinson cases areincluded in this section. Rather, the authorselected a sample of cases with goodlanguage and facts that may be useful inresponse briefs defending experts.

A. FEDERAL CASES

St. Martin v. Mobil Exploration andProduction USA, Inc., 224 F.3d 402 (5th Cir.2000)(en banc)

In this case the St. Martin’s ownedproperty which contained an ecologicallysensitive fresh water marsh. This marshabutted canals on which barges operated byMobil and other Defendants run. ThePlaintiff’s alleged that the oil companies useof and failure to maintain the canals causederosion and other damage to the St. Martin’sfresh water marsh.

In support of their allegations, thePlaintiffs offered Dr. Robert Chabreck who isa specialist in the ecology of the region, butnot an expert in hydrology. Admittedly, Dr.Chabreck failed most of the Daubertstandards in that has not published or peerreviewed his theory in the case, his theory isnot supported by specific scientific studiesand he has not conducted any test to verifyhis hypothesis. Nevertheless, the Courtfound that Dr. Chabreck’s expertise in themarsh land ecology and his personalobservation of the property, sufficientlyqualified him to testify as an expert. Id. at405. As to whether the substance of histestimony was sufficiently reliable andrelevant, the en banc Fifth Circuit held: “theDaubert factors are non-exclusive and neednot be rigidly applied in every case”. Id. at406. The Court acknowledges that his theoryarose “...from his general understanding ofthe dynamics within marshes...combined withhis personal observation of the marsh inquestion.” Id. at 407. The Court goes on tonote that a marsh land expert would not havepublished a peer review paper on eachpossible permeatation of factors or eachdamaged area of a marsh. They again notethat Dr. Chabreck’s testimony is based on hispersonal observation of the marsh in questionand his general and undisputed expertise onmarsh ecology and deterioration. Id. at 408.In not applying the Daubert factors, the enbanc Fifth Circuit significantly held the DistrictCourt properly considered alternative indices

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of Chabreck’s testimony’s reliability andrelevancy.

This en banc decision by the Fifth Circuitis significant in that they are blessing an“eyeball” conclusion by qualified expert. It isthe author’s opinion that tests could havebeen conducted to simulate waves made bythe barges and the effects of those waves ona marsh. Apparently, these tests were notrequired. Likewise, the Fifth Circuit does notrequire any strict adherence to the Daubertfactors but specifically notes that the Courtproperly considered alternative ways ofassessing expert testimony’s reliability andrelevancy.

Skidmore v. Precision Printing andPackaging, Inc., 188 F.3d 606 (5th Cir.1999).

Skidmore was suing her former employerfor sexual harassment and attempted tointroduce a psychiatrist’s testimony thatheadaches, vomiting and nightmares resultedfrom the post-traumatic stress disorder. Thedefense contended that the psychiatrist’stestimony did not satisfy the factors listed inDaubert. In response the Fifth Circuit notedthat whether the Daubert factors applydepends on the nature of the issue at hand,the witnesses’ particular expertise and thesubject matter of the testimony. The FifthCircuit states “it is a fact specific inquiry.”

The psychiatrist testified to his expertise,the criteria by which he diagnosed Plaintiff,and the standard methods of diagnosis in hisfield. With this foundation, the Fifth Circuitheld “absent any indication that (expert’s)testimony amounted to the sort of “junksilence” Daubert blocks, we see no abuse ofdiscretion in the District Court’s admitting thetestimony.

This is again another case in which theexpert provides the court with the appropriatefactors to be used in determining whether thetestimony is reliable and is another example

where the application of the Daubert factorswas not strictly adhered to.

Rushing v. Kansas City Southern R.R. Co.,185 F.3d 496 (5th Cir. 1999).

This is a nuisance case in which Plaintiffsare suing a railroad for excessive noiseemissions from an adjoining switching yard.In this case, a Federal standard set forthmethodology for conducting sound-level testsas well as maximum decibel levels. The FifthCircuit held that the reliability of testprescribed by the legislature or a regulatoryagency may not be challenged underDaubert.

Reading between the lines, if there is aFederal Statute or Regulation that sets fortha methodology which gets you to your result,Plaintiffs should use that methodology andshould use the Rushing decision as a verypersuasive argument against a Daubertchallenge.

Bartley v. Euclid, Inc., 180 F.3d 175 (5th Cir.1999).

The Plaintiffs in this case wereemployees of the Texas Utility MiningCorporation. The Plaintiffs sustained backinjuries in the operation of coal haulingequipment manufactured by Euclid. Theevidence clearly established that the coalhauling equipment caused an extremelyrough ride. The Defendant argued that therewas insufficient evidence to prove that therough ride caused the Plaintiffs’ backproblems. In support of Plaintiffs’ claims, thePlaintiffs offered the testimony of a radiologistDr. Aprill. Dr. Aprill testified that the MRI filmsof the Plaintiffs and eighty-five other driversof coal hauling equipment showed multiplerepetitive compression fractures. Theradiologist then compared the MRIs of otherback patients noting no other back patientsthat had those same types of multiplefractures. While the radiologist concludedthat the multiple repetitive compressionfractures were a “finger print” of the coal

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hauling occupation, he did not testify that thecoal haulers caused the worker’s injuries.The Fifth Circuit concluded that theradiologist’s testimony was merely acomparison of otherwise admissible exhibits.Therefore, the District Judge did not abusehis discretion in admitting the testimony.

A lesson from the Bartley case is thatshould your expert be subject to a potentiallysuccessful Daubert challenge, creatively limitthe testimony rather than give up the battle.

Curtis v. M & S Petroleum, Inc., 174 F.3d661 (5th Cir. 1999).

This case involves the question ofwhether workers were exposed to benzene insufficient levels to cause Plaintiffs’ symptoms.In this case, the District Court grantedjudgment as a matter of law in favor of theDefendants’ after excluding expert testimonyon the above causation issue. The FifthCircuit determined that the expert testimonywas improperly excluded and had theevidence been included in the record, therewas sufficient evidence to raise a jury issue.The Fifth Circuit remanded to the DistrictCourt for a trial.

The causation evidence improperlyexcluded was the expert testimony of Dr.Frank Stevens a Ph. D. in environmentalscience with experience in industrial hygiene,occupational safety and toxicology. TheDistrict Court excluded Dr. Stevens’ ultimateconclusion that Plaintiffs’ symptoms werecaused by their exposure to benzenebecause he failed to demonstrate withsufficient certainty the amount of benzene towhich Plaintiffs were exposed. The FifthCircuit reversed and remanded on this pointin noting Dr. Stevens had a sufficientlyreliable basis to determine that refineryworkers were exposed to levels of benzenethat were several hundred times above thepermissible exposure level. The Fifth Circuitrecognized that the symptoms experience byall of the Plaintiffs were indications ofexposure to benzene at levels two to three

hundred times the permissible exposure.Second, the draeger tube testing calculatedexposure of at least one hundred times thepermissible level. Thirdly, Dr. Stevens reliedupon the testimony of Plaintiffs who testifiedthat they were often physically soaked in aproduct that was made up mostly of benzene.Finally, Dr. Stevens relied on the design ofthe refinery which was not designed toprocess highly toxic chemicals such asbenzene. The Fifth Circuit held that thisevidence “amply supports Dr. Stevensfindings that the refinery workers wereexposed to benzene levels several hundredtimes the permissible exposure level...”

Accordingly, the Fifth Circuit, while notapplying the Daubert factors, still reversed aDistrict Court decision to exclude experttestimony.

B. State Cases

General Motors Corp. v. Sanchez, 997S.W.2d 584 (Tex. 1999)

This is a park-to-reverse case. Theplaintiff’s expert Simon Tamny testified thatthe transmission at issue was defective andsuggested several design modifications to the“roaster comb” and “cam follower”.Collectively, these design changes constituteTamny’s proposed safer alternative design.For the first time on appeal, GM attacked thesafer alternative design claiming that it wasinadequate under Robinson to prove asubstantial reduction in the risk of injury.More specifically, GM contends (1) the designwas not proved safer by testing; (2) thedesign was not published and peer reviewed;and (3) GM statistical evidence shows thatthe proposed design changes that exist, inpart, in other vehicles does not result in alower occurrence of a park-to-reversesituation.

The Texas Supreme Court first held that:

To allow a Robinson challenge here,when GM did not object at all in the

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trial court to the reliability of theexpert evidence, would denythe plaintiffs’ expert theopportunity to pass muster inthe first instance and usurp thetrial court’s discretion as a‘gatekeeper.’

So, it is clear that you must object at the trialcourt to preserve the record on appeal.

Separate from the Robinson challenge,GM asserts that Tamny’s testimony does notamount to evidence of safer alternativedesign. While technically not addressing theRobinson requirements, the court doesapprove of the evidence of safer alternativedesign and the methodology used to arrive atthe same. The Court noted that Tamnydescribed the operation of the transmission,explained in detail how his proposed SADwould make the transmission safer byeliminating the risk of an inadvertent slip intoreverse. Significantly, the Court states:

...plaintiffs did not have to build andtest an automobile transmission toprove a safer alternative design. Adesign need only prove ‘capable ofbeing designed.’

While Robinson was not addressed by thissecond holding, it would be hard for the Courtto bless the methodology and conclusionswith respect to SADs and not also bless themethodology and conclusions in the contextof a Robinson challenge.

Morton International v. Gillespie, 2001 WL27911 (Tex. App.–Texarkana 2001, n.w.h.)

This is an airbag case in which plaintiffalleges that the airbag did not deploy withinthe appropriate amount of time. Plaintiffretained Dr. David Renfro to testify about themanufacturing defect in the plaintiff’s airbag.Dr. Renfro has outstanding qualifications, butnot on airbags. Indeed, Renfro admitted that“his training, education, and experiencerelating to airbags and their components was

significantly lacking.” During Voir Dire,Renfro admitted: he had never written aboutairbag modular inflators, never taughtcourses relating to airbags, never worked onairbags or their components, never studiedairbag characteristics, and had only observedone airbag deploy.

Using other testimony in the case,plaintiff was able to limit Renfro’s testimonyand still prove the case. Plaintiff testified thatshe was sitting upright. Defendant’s expertsboth testified that the airbag should deploy in50 milliseconds to comply with Federal Lawand that the only way plaintiff could havereceived the injuries is if she was within a fewinches of the airbag at deployment. Takingthis testimony, Renfro used a computermodel (MADYMO) that is widely acceptedand is used to illustrate occupant movementduring a wreck. Using this computer model,Renfro showed that it would have taken 120milliseconds for plaintiff to get within inches ofthe airbag as described by the defenseexperts. If the airbag had fired within 50milliseconds as required, then plaintiff wouldnot have sustained the injury. Stated theopposite, the only way the injury could haveoccurred is with a delayed airbag deployment.

This is another example of limiting theexpert testimony and coupling it with otherevidence in order to prove the case.Additionally, computer modeling is continuingto be used to provide a scientifically validbasis for expert opinions.

JcPenney Life Ins. Co. v. Baker, 33 S.W.3d417 (Tex. App.–Fort Worth 2000, no writ)

The plaintiff lost her husband in anautomobile accident. Her husband has lifeinsurance that paid “if injured by an accidentwhile occupying a private passengerautomobile.” However, if the death was theresult of independent causes then there is noobligation to pay. Thus, the question is didthe deceased die in the accident independentof other causes. JcPenney contended thatthe deceased had a heart attack and drove

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into a lake. Plaintiff, on the other handcontended that the deceased drown in thelake as a result of the accident, and mayhave had a heart attack, but only after hisvehicle was in the lake.

In support of plaintiff’s theory, sheoffered the testimony of an internal medicinephysician, Dr. Kuban. Dr. Kuban relied onother evidence to determine that the heartattack must have occurred after the vehiclewent in the lake. Specifically, there wasevidence that the window of the deceased’struck was up before the accident, but afterthe incident the window was rolled down. Dr.Kuban opined that a person who had a heartattack could not physically roll down awindow. Thus, the heart attack could nothave occurred before the accident as plaintiffphysically could not have rolled down thewindow. Rather the window must have beenrolled down in a attempt to escape the water.Afterwards, the heart attack occurs, if at all.In short, the accident (and attempted escape)caused the heart attack; and not, the heartattack caused the accident.

The defendant attempted to excludeKuban’s testimony on Robinson grounds. Inresponse the Fort Worth Courts starts:

“Recently, the Texas Supreme Courtaddressed the issue of scientific andnon-scientific evidence underRobinson and determined that whileall expert testimony must be reliablebefore it may be admitted, thefactors affecting reliability asoutlined in Robinson are notapplicable to all expert testimony.”

The Court acknowledged that Kuban’stestimony is based largely upon hisexperience and observations in the medicalfield. Thus, the Court holds his opinion areclearly not the type of testimony that can beeasily evaluated under the Robinson factors.Rather, the Court relies upon a determinationof whether there is an “analytical gap”between the expert’s opinions and the basis

for those opinions. Because Kuban’stestimony was closely related to hisexperiences in the medical community, theFort Worth Court determined that it was notan abuse of discretion to allow Kuban totestify.

Astran v. Cantu, 2000 WL 1675713 (Tex.App.–Austin 2000, no writ)(not designatedfor publication)

This case involves a Robinson challengeagainst the defendant’s accidentreconstruction expert, Dr. Joe Thornhill. Atissue was a parking lot collision. Plaintiffalleged that the Defendant was speeding.Thornhill was hired to offer opinions regardingthe combined speed of the vehicles at impact.Plaintiff complained that all Thornhill did was“eyeball” the damages and reach aconclusion.

In the Robinson hearing, Thornhilltestified that his testimony was based on hiseducation and professional training and onhis experience in analyzing property damageresulting from vehicle crash tests. Thornhillalso stated that he had examined theautomobiles involved in the accident as wellas the accident scene and had also reviewdeposition transcripts. Based upon thisinformation, Thornhill opined that the carshad a combined speed of 10 mph. He alsostated that the physical evidence wasinconsistent with Plaintiff’s account that thevehicles were traveling at a higher rate ofspeed.

The Court did not note whether Thornhillhad performed a reconstruction, comparedcrush tests, run EDCRASH or other similarprograms or even measured the crush zoneof the vehicles. Had these items beencompleted, it would seem that they wouldhave been included in the testimony andcourt opinion. Based upon a readingbetween the lines, it truly looks like a case of“eyeballing” it.

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In making its ruling the Austin Courtbegins: “This State has a long history ofallowing qualified accident reconstructionexperts to testify...” The Court held thatThornhill had done enough, per above, toavoid an “analytical gap” between hisconclusions and the evidence. Accordingly,the Austin Court held that the trial court didnot abuse its discretion in admittingThornhill’s testimony.

Le v. Zuniga, 2000 WL 1535313 (Tex.App.–Houston [14th Dist.] 2000, writreq’d)(not designated for publication)

This cases involves a Robinsonchallenge lodged against the defendant’saccident reconstruction expert, Ed Martinez.

In beginning its analysis, the Court turnsagain to the familiar “analytical gap”language.

In other words, an opinion is not somerely because an expert says it isso. Rather, ‘a court may concludethat there is simply too great ananalytical gap between the data andthe opinion proffered.’ Animpermissible analytical gap thusexists where an expert fails todemonstrate how his observationssupport his conclusions, i.e., toprovide some explanation to showthat ‘what he believes could happen,actually did happen.’

Plaintiffs did not dispute Martinez’squalifications or methodology. Rather, theysaid he calculated a point of impact that wasnot supported in the physical evidencebecause there were no tire marks, brokenglass or other physical evidence.

The Court reviewed Martinez’s work. Hedid a full accident reconstruction includingtaking measurements of the scene andmaking calculations to determine the timingof the collision at issue. The Court found thatthis made his testimony sufficiently reliable

and held that the trial court did not abuse itsdiscretion in allowing Martinez to testify.Again, the Court did not apply the traditionRobinson factors.

Nissan Motor Co. Ltd. v. Armstrong, 32S.W.3d 701 (Tex. App.–Houston [14th Dist]2000, writ req’d)

This is an “unintended acceleration” or“stuck throttle” case involving the testimony ofthe plaintiff’s expert, Neal Mizen.

Mizen testified that the throttle controlproblem was caused by a boot on the throttlecable that came loose, bound the bell crankand prevented the accelerator pedal fromclosing. Mizen testified that Nissansubsequently redesigned the throttle cable,shortening the boot and eliminated the lining.He testified that this had solved the problem.

Nissan challenged Mizen’s testimony onboth his qualifications and on Robinsongrounds. Nissan argued Mizen was not anautomotive engineer, had never designed anycar part, and had no background in injurycausation. Nissan also complained thatMizen did not satisfy Robinson because hehad not performed any tests of the throttlecable components. Nissan further arguedthat Mizen’s training and education did notequip him to talk about a sticking throttlecable.

The Court rejected Nissan’s argumentsholding that almost any qualified mechanicalengineer could testify about how the cableworked and how a loose dust boot might stickon the throttle cable and prevent theaccelerator mechanism from closing. TheCourt stated that it did not take anexplanation from a “rocket scientist” for thejury to understand. Without great analysis,the Court also approved of Mizen’smethodology which included reviewing Nissandocuments, depositions, photographs,videotapes, along with reports and testsmade in other incidents and documentssubmitted by Nissan to NHTSA. Again, the

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Court did not apply the traditional Robinsonfactors.

Ford Motor Co. v. Aguiniga, 9 S.W.3d 252(Tex. App.–San Antonio 1999, writ denied)

This case involved a defective fuel pumprelay and the testimony of Rex McLellan andBob Swint. The plaintiffs’ experts determinedthat the fuel pump relay was outside of itprotective covering referred to as a“doghouse.” The expert inspected the vehicleand reviewed testimony which was consistentwith a fuel pump relay failure resulting in anengine stall. Swint eliminated other possiblecauses of engine failure due to stalling andtested the fuel pump relay, which failed.

Based upon this evidence, the Court heldthat the testimony “did not fit all of theenumerated factors of Robinson, andtherefore applied the more general reliabilitytest espoused in Gammill.” The Court usedthe analytical gap test. The court held thatthere was no “analytical gap” between theunderlying data and the experts’ opinions thatthe fuel pump relay failed. Accordingly, theCourt upheld the testimony of McLellan andSwint

VIII. PROCEDURAL APPLICATION OFDAUBERT/ROBINSON/KUMHOTIRE

Armed with an understanding ofDaubert/Robinson and now Kumho Tire, alitigant should be in a position to defend itsexperts against a Daubert/Robinson/Kumhochallenge. Likewise, a litigant should beequipped to challenge defense experts. Thissection of the paper deals with the procedurefor challenging and defending experts underDaubert/Robinson/Kumho.

A. Challenging Experts

Many plaintiff’s counsel view Daubert asa tool exclusively with the province of thedefense. However, in an appropriate case, ap la in t i f f can e ffec t i ve ly use a

Daubert/Robinson challenge to strike adefense expert. Consider the following:

C Whether to challenge

Whether to challenge an expert soundslike a fairly elementary question. But thereare numerous factors to consider in makingthis decision. Foremost, one should seriouslyconsider the downside of lodging aDaubert/Robinson attack. Making thechallenge will most certainly educate theopposing counsel and the opposing experts.First, you will educate your opposition on yourstyle of cross-examination. Every lawyer hasa unique method and manner of cross-examination. Unveiling that manner andmethod for the first time in front of the jurygives the lawyer a distinct advantage. Thatadvantage is lost if the opposing expert hasbecome accustom to and comfortable withyour cross-examination style during aDaubert/Robinson hearing. In addition toeducating the opposition on your style ofcross-examination, a Daubert/Robinsonhearing educates the opposition on theirsubstantive weaknesses. Cross-examinationduring a Daubert/Robinson hearing willnecessarily overlap with substantive cross-examination planned for the jury. Conductinga pretrial Daubert/Robinson hearing will givethe opposition a chance to plan bettersubstantive responses to your jury cross-examination.

In deciding whether to challenge anexpert it is important to not only to evaluatethe potential downside of educating youropponent, but also to consider the upside ofa successful challenge. Too often, theupside of a successful pret r ia lDaubert/Robinson challenge is limited. If youare successful in a pretrial challenge of acritical expert, many judges will be inclined togrant a continuance. If this happens, thenyou have gone to a great expense to conductthe challenge; you now have educated youropponent on their own weaknesses; thejudge has allowed them an opportunity to

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repair those weaknesses; and, you have lostyour trial setting.

In light of the above, perhaps the mostimportant consideration in determiningwhether to strike an expert (next to the meritsof your motion) is your judge. It is absolutelyessential that you know how your judge viewsDaubert/Robinson challenges. Is he/sheinclined to grant Daubert/Robinson motions?Has he/she granted motions in the past? Willhe/she grant a plaintiff’s Daubert/Robinsonchallenge of a defense expert when doing sowill not dispose of the case as it often doeswith a defendant’s challenge of a plaintiff’sexpert. At a minimum, contact counsel whohave been successful in making pretrialDaubert/Robinson challenges in your court.The more you can learn about your judgebefore you make a pretrial challenge, thebetter.

Plaintiffs should anticipate a challenge inevery case. To challenge or not to challengeis a strategic call that must be consideredvery carefully in every case.

C When to challenge

If after weighing the above factors, youare still inclined toward a Daubert/Robinsonchallenge of the defendant’s experts, thenequal consideration should be given to whenthat challenge should be made. There areseveral times during the development andtrial of a case when a Daubert/Robinsonchallenge is appropriate: a pretrial motion toexclude; a motion for summary judgment; amotion-in-limine; and an objection at the timethe opposing expert is called to testify.

Making a pretrial Daubert/Robinsonc h a ll e ng e has advan tag es anddisadvantages. Most judges preferDaubert/Robinson challenges to be made asearly as possible. Their motivation stemsfrom the disposal of cases that oftenaccompany the granting of a motion, andfewer interruptions during the trial as isnecessitated by the evidentiary hearing

required in response to a Daubert/Robinsonchallenge. Based upon judicial preferenceand your particular judge, she may be moreinclined to grant a Daubert/Robinsonchallenge in a pretrial motion. SchedulingOrders are frequently controlling on thisissue.

Absent Scheduling Orders, nothingprohibits making a Daubert/Robinsonchallenge for the first time when the expertwitness is called to testify at the trial. Adisadvantage to bringing the objection for thefirst time at trial is, again, a judicial reluctanceto grant such a motion during the trial.Further, an objection during trial will slow thepresentation of evidence, which generally isa disadvantage to the plaintiff. While thereare disadvantages to Daubert/Robinsonchallenges made for the first time at trial, inmost instances, it is the most beneficial timefor plaintiffs to urge such challenges.

C How to challenge

When faced with a proffer of experttestimony, the trial judge must determine atthe outset, pursuant to Rule 104(a), whetherthe proffered opinion is reliable and relevant.Daubert, 113 S. Ct. at 2794-96.

C Always Make an Objection

The party opposing the admission ofexpert testimony need only assert a properobjection. Robinson, 923 S.W.2d at 557.Indeed in Robinson, defendant’s entirechallenge was based upon argument ofdefense counsel. Id. While an objectionalone is sufficient, do not rely on the otherpretrial motions to properly preserve error. Ifyou seek to exclude an expert by way of amotion to exclude, a motion for summaryjudgment or a motion in limine, and are notsuccessful, always reurge your objection atthe proffer of the expert’s testimony. Once aproper objection is lodged the proponent ofthe evidence has the burden to prove that theproffered expert testimony is both reliable and

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relevant. Id. This showing is made pursuantto Rule 104(a).

C Rule 104(a)

The mechanism for conducting theDaubert/Robinson hearing is provided in Rule104(a). Rule 104(a) provides as follows:

Preliminary questions concerningthe qualifications of a person to be awitness, the existence of a privilege,or the admissibility of evidence shallbe determined by the court, subjectto the provisions of subdivision (b).In making its determination it isnot bound by the rules ofevidence except those withrespect to privileges. Rule 104(a).

Both Daubert and Robinson expressly holdthat the trial court is to conduct itsgatekeeping function pursuant to Rule104(a). Daubert 113 S. Ct. at 2794-96. ARule 104(a) hearing is a hearing that takesplace outside the presence of the jury. It isimportant to note that in a 104(a) hearing, thetrial court is not bound by the rules ofevidence. Thus, articles, texts, priortestimony and other non-admissible evidencemay be used to attack the opposing expert.

C Burden of Proof

The burden for proving reliability andrelevance is placed on the proponent ofevidence and is by a “preponderance ofevidence.” Daubert, 113 S. Ct. at 2796 n.10.

C Standard of Review

The trial court’s decision to admit or toexclude expert testimony will be reviewed bythe appellate court on an abuse-of-discretionbasis. Robinson, 923 S.W.2d at 558.

C Practice Pointers

As with most of trial practice, successdepends on early preparation and planning.T h i s i s pa r t i c u l a r l y t r u e w i thDaubert/Robinson challenges. If you believethat you will or may move to strike theopposing experts, preparation to do so muststart at the outset of the case. First, conductresearch to determine the reliability factorsthat will be applied to the expert in question.As previously discussed, in the Fifth Circuit,this will be the methods and principles foundin the field of knowledge involved. If thereare no cases speaking to the methods, sendwritten discovery addressing these issues.An interrogatory seeking the protocol usedwould be appropriate. Also, requests foradmission confirming that certain factorsapply can be invaluable. (e.g. Admit thattesting is required to properly validate yourexpert’s findings.) Regardless of how theyare discovered (case law or discovery), youwill need to define the battleground byknowing which reliability factors will apply tothe expert you are seeking to strike.

Once you have a grasp on the reliabilityfactors that will apply, conduct discoveryrelating to those factors. Written discoveryseeking details regarding the basis of theexpert’s opinions is essential. With aknowledge of the applicable factors, you canalso propound more pointed discoverydirected at the work performed by the expertto satisfy the necessary factors (e.g. “Explainall testing performed to verify...” or “admit thatyour expert has conducted no testing toverify...”) Written discovery is important inlaying the foundation for the expert challenge,but it is just the beginning.

After you have researched the law to findthe applicable reliability factors and after youhave obtained written discovery, throughlypreparing for the expert’s deposition is amust. Most important in preparing for thedeposition is an understanding of the scienceunderlying the expert’s opinion and themethodology followed by the expert. Thebest method for quickly learning the scienceis a tutoring session with your own expert.

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Also, your expert may be able to recommenda text in the field that is easily understood bylaymen. Do everything you can to arrive atthe deposition with a solid understanding ofthe science. At the deposition, have theopposing expert concede the methods andprinciples used in his field, and that the use ofthose methods and procedures are to insurereliable results. After you have obtainedthese admissions, consider covering theexpert’s efforts (or lack thereof) to satisfy theapplicable reliability factors.

After conducting the appropriatediscovery, consider whether and when tocha l lenge under Rule 702 andDaubert/Robinson. As discussed above,unless you have a strong challenge on themerits and a favorable judge, consider justmaking an objection at the time of theproffered testimony. Once the objection islodged, the court must conduct the 104(a)hearing described above. Any seriousattempt to exclude an opposing expert shouldbe accompanied by a brief which outlines theapplicable factors and their application. Also,you should plan to cross examine theopposing expert on his efforts in satisfyingthe various reliability factors. Finally, youmay affirmatively proffer evidence such asyour own expert’s testimony.

B. Defending Challenged Experts

Since a Daubert/Robinson challenge maybe raised by either party, or sua sponte, bythe court, litigants should always be preparedto respond to the challenge.

1. Thoroughly Investigate YourOwn Expert’s Qualifications

Most of us are extremely thorough in ourinvestigation of opposing experts.Unfortunately, many of us are guilty of notbeing as diligent in the investigation of ourown experts. The Broders decision and thetrend among appellate courts in generalshould be enough to dissuade any lawyer

from this bad habit. Before retaining anddesignating an expert:

C Thoroughly Review the Expert’sCurriculum Vitae

Your expert’s curriculum vitae shouldprovide a road map of his/her career, area ofexpertise and published works. Begin theinvestigation of your expert with a review ofthe curriculum vitae. Look to see if yourexpert has real-life experience in the area-at-issue. Has he/she worked for a manufactureractually designing the subject product, ordoes he/she have consulting only experience.Determine the area(s) of expertise professedby your expert. Are there unaccounted fortime periods contained in your expert’scurriculum vitae? If so, account for those orbe assured your opposing counsel will.Finally, look at your expert’s curriculum vitaewith the eye of a cross-examiner.

C Confirm the Facts Contained in YourExpert’s Curriculum Vitae

Contact educational institutions, prioremployers, licensing agencies andprofessional organizations to confirm claimsmade by your expert on his/her curriculumvitae. This task can be done with little timeand effort. Remember, anything easilydiscovered by you will certainly be discoveredby your opposing counsel. Be certain thatyour expert witness does not have mail-orderdegrees or fake credentials.

C Read Your Expert’s Written Workson the Subject-at-Issue

Has your witness published on the area-at-issue. If not, is there a plausible reason--no one in the industry publishes? Naturally,publication on the topic-at-hand bolsters yourexpert. If your expert is published on arelated issue, read it.

C Contact Other Lawyers Who HaveExperience With Your Expert

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Your expert should have informationregarding prior cases in which he has offeredopinions or has testified. Obtain this list andcontact the lawyers who have dealt with yourexpert. Do not solely rely on your expert forreferences. Obviously, he or she will provideonly those with whom they have had afavorable experience. Rather, contact thelawyer who opposed your expert or who losta case with your expert. Often, lawyers arehappy to brag on their cross of your potentialexpert and may even be willing to provide youwith details and underlying materials. Conversely, lawyers are also willing to blamea defeat on a bad expert witness. The ATLAwebpage, litigation groups/sections, andTTLA Depo Connect are outstanding sourcesof initial information on expert witnesses. Inshort, contact with other lawyer is the bestsource of information on expert witnesses.

2. Thoroughly Explore YourWitness’s Expertise on theSubject-At-Issue

The good ‘ole days, when experts werejacks-of-all-trades, are over! We must beparticularly diligent in assuring that our expertis, indeed, an expert on the subject matter atissue. To accomplish this task, consider thefollowing:

C Know the Subject-At-Issue

An obvious prerequisite to exploring yourexpert’s knowledge on the topic-at-hand ishaving an understanding of the topic yourself.Review treatises, operating manuals,reference materials, and the Internet to bringyourself up to speed on the subject-at-issue.

C Interrogate Your Potential Witnesson Her Expertise

With knowledge of the subject, you canbetter communicate with your expert.Likewise, you can better explore the witness’strue expertise. For instance, most industrieshave adopted standards. Find thosestandards and ask you expert what they are.

If they do not know, or more likely, try to bluff,do not hire them. Simply stated, once youhave an understanding of the subject, you willbe better equipped to recognize those whowon’t meet the Daubert/Robinson challenge.

C Identify Areas of Prior Testimony

Another indicia of your witness’s area ofexpertise, is the witness’s prior areas oftestimony. Does your witness have a trackrecord of success giving testimony on thesubject-at-issue? While sometime the bestexpert is one who has never or rarelytestifies, you do not want an expert that hastestified on numerous and varied topics.Aside from a potential damaging trial cross-examination, a witness who is an expert ontoo many topics is more vulnerable to a Rule702/Broders attack.

C Identify Non-Litigation ExperienceWith the Subject

Does your expert have real-worldexperience with the subject-at-issue.Experience, outside the litigation context, isalmost an essential. Nothing makes juriesand judges more suspect than an expert whois a courtroom only expert. The absence ofreal-world experience is an indication ofpotential trouble.

In conclusion, as a threshold matter, yourexpert will have to pass the outer “gate” bydemonstrating (1) that she is qualified and (2)that her qualifications are in the area of herproffered testimony. See Broders v. Heise,924 S.W.2d 148 (Tex. 1996). Implementingthe above practical pointers will help assureyour success in passing the outer “gate.”

3. Monitor Your Experts

As with challenging experts, properlydefending against a challenge begins wellbefore the 104(a) hearing. Indeed, defendinga potential Daubert/Robinson challengeshould be a foremost consideration when

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interviewing potential expert witnesses. Priorto retaining an expert, research the applicablereliability factors. From the time of the initialmeeting, begin explaining to your expert whatmust be done in order to defend against achallenge. A clear understanding of what isrequired should foreclose the vast majority ofDaubert/Robinson challenges. If your expertcan not, or economy does not allow forcompletion of one or more of the reliabilityfactors, a litigant should know this informationup front. With this knowledge, you canproperly assess the risks of proceeding, andso advise your client.

After you have retained your expert,periodically monitor his compliance with theappropriate standards. In a significant case,you may even consider having a consultingexpert monitor the reliability of your testifyingexpert’s efforts. If a Daubert/Robinsonchallenge is lodged this consulting expertcould testify at the 104(a) hearing. The bestdefense to a Daubert/Robinson challenge isan offensive position with your own experts--make sure they are doing their job.

Finally, if it is not obvious, look at thecases where the court has excluded expertsand the reasons for exclusion. Fill all theholes you can! If Daubert factors exist,satisfy them. Use alternatives if and only ifDaubert factors do not apply, or when all elsehas failed! (and after you have explained whyDaubert doesn’t apply).

4. Investigate the Gatekeeper

The Honorable Bob McGrath, a FortWorth State District to Judge, recently gavea speech on Daubert/Robinson entitled“Texas Judges Get Even Taller And BetterLooking”. A review of case law in this areaclearly demonstrates that this fact is true.Trial judges are granted enormous leeway indetermining both the factors that apply inassessing an expert’s reliability and then theapplication of those factors to the expert’smethodology and opinions. Trial judges havevastly differently approaches to their “gate

keeping” functions. In a complex case or acase that involves science which pushes theproverbial envelope, great considerationshould be given to filing cases in trial courtswith favorable Daubert/Robinson histories.

5. Flush Out a PotentialChallenge

If you expect a Daubert/Robinsonchallenge, do not wait for the trial ambush.The earlier you are aware of the problem; themore readily that problem is fixed. Considersome of the following tactics to flush out anypotential challenges.

C Send a contention interrogatoryasking if the defendants contendthat plaintiff’s experts are notreliable or relevant as defined inRule 702 and Daubert.

C Seek an agreement with theopposing counsel that no challengeswill be made.

C Ask the court to include a deadlinefor challenging experts in its pretrialscheduling order.

C File a motion to admit your expert’stestimony under Rule 104(a).

If you have a Daubert/Robinson problem,it is best to discover that problem early sothat you may obtain a continuance andredesignate expert witnesses.

6. Bill of Exception

If you have been unsuccessful in yourdefense of a Daubert/Robinson challenge,remember to make a bill to preserve yourright on appeal. The bill must show all of theevidence required to pass the “gates”discussed at length in this paper.

IX. CONCLUSION

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As with most “Rules,” the holdings inDaubert/Robinson and Kumho Tire are easyto recite. The application of the Rules is thechallenge. To the fullest extent possible, oneshould err on the side of caution to fill therecord with every possible indicia ofDaubert/Kumho compliance.

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