CHAPTER 8.I. Motion Authorities

• Jurisdiction: United States

I. Motion Authorities

A. Motion to Exclude Improper Expert Opinion

1. Suggested Motion Text

(Name of Moving Party) hereby moves this Court for an order excluding any and all testimony, references to testimony, or argument based upon the testimony of (Name of Witness) relating to (Describe Improper Opinion Sought to Be Excluded, e.g., the Witness's Opinion of the Legal Interpretation of the Jury Instructions in This Case). The motion is based upon the ground that the subject matter of the witness's opinion testimony is improper and is therefore inadmissible.

2. Motion Summary

This motion is used to exclude the opinion of an expert witness that is based upon improper matter. Texas Rule of Evidence 702 limits an expert opinion to those subjects that "will assist the trier of fact to understand the evidence or to determine a fact in issue. See GTE Sw. v. Bruce, 998 S.W.2d 605, 620 (Tex. 1999). Under Texas Rule of Evidence 702, the witness must be qualified as an expert based upon "knowledge, skill, experience, training or education," in order to provide expert opinions. See generally, Texas Rule of Evidence 702 and cases cited below.

3. Supporting Authorities

Texas Rule of Evidence 702 states:

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.

Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370, 379 (Tex. 2019) ("Testimony by an expert witness is admissible only if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.").

Morale v. State, 557 S.W.3d 569, 575 (Tex. 2018) ("[E]xpert testimony in condemnation cases is inadmissible if it relates to remote, speculative, and conjectural uses of the property that are not reflected in the present market value of the property.").

Gunn v. McCoy, 554 S.W.3d 645, 666 (Tex. 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, 666 (Tex. 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.").

Rogers v. Zanetti, 518 S.W.3d 394, 405 (Tex. 2017) ("An expert's familiarity with the facts is not alone a satisfactory basis for his or her opinion.").

Wolfe v. State, 509 S.W.3d 325, 335 (Tex. Crim. App. 2017) ("For expert testimony to be admissible . . . the proponent of the expert scientific evidence must demonstrate by clear and convincing evidence that the testimony is sufficiently reliable and relevant to help the jury in reaching accurate results. . . . In other words, the proponent must prove two prongs: (1) the testimony is based on a reliable scientific foundation, and (2) it is relevant to the issues in the case.").

Wolfe v. State, 509 S.W.3d 325, 335 (Tex. Crim. App. 2017) ( "[There are] three criteria for reliability that the proponent of scientific evidence must prove [are]: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question.").

Wolfe v. State, 509 S.W.3d 325, 335 (Tex. Crim. App. 2017) ("Unreliable scientific evidence is inadmissible because it simply will not assist the jury to understand the evidence or accurately determine a fact in issue; such evidence obfuscates rather than leads to an intelligent evaluation of the facts.").

Southwestern Energy Production Company v. Berry-Helfand, 491 S.W.3d 699, 717 (Tex. 2016) ("[A]n expert must connect the data relied on and his or her opinion and show how that data is valid support for the opinion reached . . . If there is too great an analytical gap between the data relied on and the expert's opinion, the expert's testimony is unreliable.").

Enbridge Pipelines (East Texas) L.P. v. Avinger Timber, LLC, 386 S.W.3d 256, 261 (Tex. 2012) (an expert's testimony must be relevant to the issues and based upon a reliable foundation).

In re Commitment of Bohannan, 388 S.W.3d 296, 304 (Tex. 2012) (an expert 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) (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) (credentials alone do not qualify an expert to testify).

In re Commitment of Bohannan, 388 S.W.3d 296, 304 (Tex. 2012) (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).

Merck & Co. v. Garza, 347 S.W.3d 256, 262 (Tex. 2011) (if the foundational data underlying expert opinion testimony are unreliable, an expert will not be permitted to base an opinion on that data because any opinion drawn from that data is likewise unreliable).

Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011) (expert testimony that a particular class of persons to which the victim belongs is truthful is not expert testimony of the kind that will assist the jury, as is required by Texas Rule of Evidence 702, and is thus inadmissible).

Reid Road Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 854 (Tex. 2011) (witness is testifying as an expert witness when the witness's testimony, in substance, is based on special knowledge, skill, experience, training, or education in a particular subject).

Reid Road Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 854 (Tex. 2011) (when the main substance of the witness's testimony is based on application of the witness's specialized knowledge, skill, experience, training, or education to the witness's familiarity with the property, then the testimony will generally be expert testimony within the scope of Rule 702, and a witness giving such testimony must be properly disclosed and designated as an expert and the witness's testimony is subject to scrutiny under rules regarding experts and expert opinion).

Reid Road Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 854 (Tex. 2011) (subject to the provisions of Rule 701, a witness who will be giving opinion evidence about a property's fair market value must be disclosed and designated as an expert pursuant to discovery and other applicable rules).

Reid Road Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 854 (Tex. 2011) (testimony that was based on the witness's expertise—"knowledge, background, education and experience"—not the witness's personal familiarity with the property, was properly excluded because the witness was not timely disclosed as an expert).

Dynegy Midstream Servs. Ltd. P'ship v. Apache Corp., 294 S.W.3d 164, 170 (Tex. 2009) (experts have a proper, if confined, role in litigation, but it is not to supply parol evidence to vary or contradict the terms of unambiguous contracts).

Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006) (expert testimony is admissible if the expert is qualified, and the testimony is relevant and based on a reliable foundation).

Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 628 (Tex. 2002) (reliability requirement of Rule of Evidence governing the admission of expert testimony focuses on the principles, research, and methodology underlying an expert's conclusions, and under this requirement, expert testimony is unreliable if it is not grounded in the methods and procedures of science and is no more than subjective belief or unsupported speculation).

Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 628 (Tex. 2002) (expert testimony is unreliable if there is too great an analytical gap between the data the expert relies upon and the opinion offered, and in applying this reliability standard the trial court does not decide whether the expert's conclusions are correct, but rather, the trial court determines whether the analysis used to reach those conclusions is reliable).

Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727 (Tex. 1998) (too great of analytical gap between expert's theories and conclusions and therefore not reliable).

E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995) (scientific evidence not grounded "in the methods and procedures of science" is no more than "subjective belief or unsupported speculation").

Jordan v. State, 928 S.W.2d 550, 554 (Tex. Crim. App. 1996) (under Texas law, scientific evidence must be relevant and reliable to be admissible, and Texas standard for reliability adopted in Kelly case is similar to Daubert standard adopted under federal law; held that trial court should have admitted expert evidence regarding reliability of eyewitness identification). See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992) (evidence must be relevant and reliable to be admissible; note: held that DNA evidence should have been admitted).

Brown v. State, 580 S.W.3d 755, 765 (Tex. App.—Houston [14th Dist.] 2019, pet. ref'd) ("[A]n expert is not permitted to give a direct opinion on the truthfulness of a witness. . . . This type of testimony is inadmissible because it does...