7-3 CHALLENGING THE EXPERT'S TESTIMONY

• Jurisdiction: United States

7-3 Challenging the Expert's Testimony

To preserve a challenge to an expert's testimony at trial, the party must either object to the testimony before trial or object when the testimony is offered at trial.¹⁵ When the offering party is notified of the objection, it can attempt to cure the deficiency by, for example, recalling the expert witness. If the party is aware of an expert's qualifications (or lack thereof) and the expert's expected opinions at trial, the party should file a pretrial motion and have a pretrial hearing challenging the expert's qualifications or opinions before the expert begins his or her testimony at trial.¹⁶ If the party against whom the evidence is offered does not object to the expert testimony, the opinion may be considered probative evidence even if the basis for the opinion is unreliable, but not if it lacks any factual basis or relies on a foundation that does not support the opinion.¹⁷ As the Texas Supreme Court explained in a recent opinion:

Courts must "rigorously examine the validity of the facts and assumptions on which [expert] testimony is based[.]" If an expert's opinion is unreliable because it is "based on assumed facts that vary from the actual facts," the opinion "is not probative evidence." This does not mean that an expert's factual assumptions must be uncontested or established as a matter of law. If the evidence conflicts, it is the province of the jury to determine which evidence to credit. Nor does it mean that parties must prove up every inconsequential assumption on which their expert relies.¹⁸

The trial court's ruling on admission of expert evidence is reviewed for abuse of discretion.¹⁹

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Notes:

^[15] Southwestern Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 716 (Tex. 2016) (purpose of objection requirement is to prevent "trial and appeal by ambush" and allow offering party to cure any defects); In re Estate of Trawick, 170 S.W.3d 871, 874 (Tex. App.—Texarkana 2005, no pet.).

^[16] In re Estate of Trawick, 170 S.W.3d 871, 874 (Tex. App.—Texarkana 2005, no pet.).

^[17] Southwestern Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 716 (Tex. 2016); see also Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 832-33 (Tex. 2014).

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