CHAPTER 5.I. Motion Authorities

• Jurisdiction: United States

I. Motion Authorities

A. Motion to Exclude Tests, Experiments, and Related Testimony

1. Suggested Motion Text

(Name of Moving Party) hereby moves this Court for an order excluding any and all evidence, references to evidence, testimony, or argument relating to (Describe Nature of Test or Experiment) conducted by (Name of Witness That Conducted Test or Experiment). The motion is based upon the ground that the evidence is (Describe Challenges to Evidence, e.g., "not generally accepted in the scientific community," "not made under substantially identical conditions to subject incident," "not reliable," etc.) and is therefore inadmissible.

2. Motion Summary

This motion is used to exclude evidence of tests and experiments that do not meet established requirements for admissibility. In general, to determine whether scientific evidence is admissible, the court must consider: 1) the extent to which the theory has been or can be tested; 2) the extent to which the technique relies upon the subjective interpretation of the expert; 3) whether the theory has been subjected to peer review and/or publication; 4) the technique's potential rate of error; 5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; 6) the nonjudicial uses which have been made of the theory or technique; 7) any other factor which is helpful to determine the reliability of scientific evidence. Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 215 (Tex. 2010); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 578 (Tex. 2006); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995).

Test evidence may be challenged for a variety of reasons, including: lack of proper expert qualifications; dissimilar conditions; not grounded in science; speculative; unreliable; and too time-consuming. See generally Sears, Roebuck & Co. v. Kunze, 996 S.W.2d 416, 424 (Tex. App.—Beaumont 1999, pet. denied).

This motion is typically presented at what is referred to as a Robinson hearing, named after the leading case of E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995).

3. Supporting Authorities—Expert Not Qualified

Texas Rule of Evidence 702 sets out the basic requirements for expert qualification:

If scientific, technical, or other specialized knowledge will assist the trier-of-fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

Gunn v. McCoy, 554 S.W.3d 645, 662 (Tex. Crim. App. 2018) ("To testify as an expert, a witness must be qualified, and the proposed testimony must be relevant to the issues in the case and based upon a reliable foundation.").

Gunn v. McCoy, 554 S.W.3d 645, 662 (Tex. Crim. App. 2018) ("An expert's opinion may be considered unreliable if it is based on assumed facts that vary materially from the actual facts, or if it is based on tests or data that do not support the conclusions reached.").

Gunn v. McCoy, 554 S.W.3d 645, 662 (Tex. Crim. App. 2018) ("Expert testimony may also be unreliable if there is simply too great an analytical gap between the data [relied upon] and the opinion proffered. . . . [Courts] are not required to ignore fatal gaps in an expert's analysis or assertions that are simply incorrect, and such a flaw in an expert's reasoning renders the scientific testimony unreliable and, legally, no evidence.").

In re Commitment of Bohannan, 388 S.W.3d 296, 304 (Tex. 2012), cert. denied, 133 S. Ct. 2747 (May 28, 2013) (experts must be qualified by knowledge, skill, experience, training, or education to assist the trier of fact to understand the evidence or to determine a fact in issue).

In re Commitment of Bohannan, 388 S.W.3d 296, 304 (Tex. 2012), cert. denied, 133 S. Ct. 2747 (May 28, 2013) (that a witness has knowledge, skill, expertise, or training does not necessarily mean that the witness can assist the trier of fact).

In re Commitment of Bohannan, 388 S.W.3d 296, 304 (Tex. 2012), cert. denied, 133 S. Ct. 2747 (May 28, 2013) (credentials alone do not qualify an expert to testify).

In re Commitment of Bohannan, 388 S.W.3d 296, 304 (Tex. 2012), cert. denied, 133 S. Ct. 2747 (May 28, 2013) (the test is whether the offering party has established that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the court, which would qualify the expert to give an opinion on that particular subject).

In re Mem'l Med. Ctr., Inc., 275 S.W.3d 458, 463 (Tex. 2008) (orig. proceeding) ("[T]here is no validity . . . to the notion that every licensed medical doctor should be automatically qualified to testify as an expert on every medical question.").

Gen. Motors Corp. v. Iracheta, 161 S.W.3d 462, 470 (Tex. 2006) (expert testimony inadmissible because the expert not qualified).

Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex. 1998) (no error in determining one of the mechanical engineers was not qualified to testify as an expert on the subject matter at issue).

Schultz on Behalf of Schultz v. Lone Star Road Construction, Ltd., 593 S.W.3d 750, 758 (Tex. App.—Houston [14th Dist.] 2019, no pet.) ("When an expert's opinion is based on an assumed fact that varies materially from the actual facts, the opinion lacks probative value and cannot raise a genuine fact issue.").

Schultz on Behalf of Schultz v. Lone Star Road Construction, Ltd., 593 S.W.3d 750, 758 (Tex. App.—Houston [14th Dist.] 2019, no pet.) ("If the record contains no evidence supporting an expert's material factual assumptions, or if such assumptions are contrary to conclusively proven facts, opinion testimony founded on those assumptions is not competent evidence.").

Equistar Chemicals, LP v. ClydeUnion DB, Ltd., 579 S.W.3d 505, 511 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) ("Expert testimony is not reliable if there is too great an analytical gap between the data on which the expert relies and the opinion offered. . . . Whether an analytical gap exists is largely determined by comparing the facts the expert relied on, the facts in the record, and the expert's ultimate opinion . . . An analytical gap exists if the expert's opinion is based on assumed facts that vary materially from the facts in the record.").

Padilla v. Loweree, 354 S.W.3d 856, 863 (Tex. App.—El Paso 2011, pet. denied) ("In deciding whether an expert is qualified to testify, the trial court must ensure those who purport to be experts truly have expertise concerning the 'actual subject about which they are offering an opinion.'").

Pediatrix Med. Group, Inc. v. Robinson, 352 S.W.3d 879, 884 (Tex. App.—Dallas 2011, no pet.) ("Under the requirements set out in section 74.401, the proper inquiry concerning whether a physician is qualified to testify as a medical expert in a medical malpractice action is not the physician's area of practice, but the stated familiarity with the issues involved in the claim before the court.").

Champion v. Great Dane Ltd. P'ship, 286 S.W.3d 533, 544 (Tex. App.—Houston [14th Dist.] 2009, no pet.) ("[I]f the expert is not qualified to offer a particular opinion in a particular case, then the expert's testimony is not admissible because it does not rise above mere speculation, and, accordingly, does not offer genuine assistance to the jury.").

MCI Sales & Serv., Inc. v. Hinton, 272 S.W.3d 17, 30 (Tex. App.—Waco 2008), aff'd, 329 S.W.3d 475 (Tex. 2010), cert. denied, 131 S. Ct. 2903 (2011) ("[T]o establish a witness's expert qualifications, the party calling the witness must show that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject.").

Page v. State Farm Lloyds, 259 S.W.3d 257, 267 (Tex. App.—Waco 2008), rev'd on other grounds, 315 S.W.3d 525 (Tex. 2010) (in deciding if an expert is qualified, trial courts must ensure that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion).

Bryan v. Watamull, 230 S.W.3d 503, 518 (Tex. App.—Dallas 2007, pet. denied) ("[I]n order to demonstrate the expert is qualified, the offering party must establish the expert has knowledge, skill, experience, training, or education regarding the specific issue before the trial court which would qualify the expert to given an opinion on that particular subject.").

Quiroz v. Covenant Health Sys., 234 S.W.3d 74, 88 (Tex. App.—El Paso 2007, pet. denied) (physician's expert opinion regarding the link between a child's permanent brain injury and cerebral palsy was not admissible where the doctor testified not only to the complexity of this issue but also about his lack of professional experience with similar injuries).

Praytor v. Ford Motor Co., 97 S.W.3d 237, 245 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (trial court properly determined insufficient foundation to qualify certain witnesses as expert witnesses).

a. Not Generally Accepted, Civil Cases

Merck & Co. v. Garza, 347 S.W.3d 256, 263 (Tex. 2011) ("[W]hile the controlled, experimental, and prospective nature of clinical trials undoubtedly make them more reliable than retroactive, observational studies, both must show a statistically significant doubling of the risk in order to be some evidence that a drug more likely than not caused a particular injury.").

Nabors Well Services, Ltd v. Romero, 508 S.W.3d 512, 531 (Tex. App.—El Paso 2016, pet. denied) ("A single study by itself would not suffice to establish legal causation. . . . The study must show other indicia of scientific validity, such an adequate sample size, an accounting for confounding variables, and a proper confidence interval. . . . Courts should be skeptical of scientific evidence which is neither published nor peer reviewed. . . . A related factor . . . is whether the...