CHAPTER 8.II. Sample Motions

• Jurisdiction: United States

II. Sample Motions

A. Motion to Exclude Speculative Expert Opinion

NO.__________

__________

v.

__________

IN THE DISTRICT COURT

__________ JUDICIAL COURT

__________ COUNTY, TEXAS

Motion to Exclude Speculative Expert Opinion

Comes now___, Plaintiff in this cause, and file this, her Motion to Exclude Speculative Expert Opinion, and in support thereof, Plaintiff would show the Court the following:

1. FACTUAL BACKGROUND

This matter arises from a serious accident that occurred in the Defendant's garage on or about December 24, 2018.

The accident occurred when the Plaintiff slipped and fell in a puddle of oil on the concrete floor of the Defendant's garage, striking the back of her head on the ground as she fell. As a result of the accident, the Plaintiff has incurred serious head injuries, with long-term memory loss and other neurological deficiencies. She has no recollection of how the fall occurred. There were no witnesses to the accident or the Plaintiff's actions immediately prior to the accident.

A major issue in this case is whether the Plaintiff was running or walking when the incident occurred. The Plaintiff anticipates that Defendant's expert witness, a mechanical engineer, will attempt to testify how the fall occurred, based solely upon grease stains on the Plaintiff's shoes and clothing.

By this motion, the Plaintiff seeks to exclude any testimony as to how the fall occurred, since any such testimony would be too speculative to be reliable.

2. THIS COURT MAY PRECLUDE EVIDENCE WHERE THE PROBATIVE VALUE IS SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNDUE PREJUDICE

Texas Rule of Evidence 403 states: "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Brookshire Bros. v. Aldridge, 438 S.W.3d 9, 26 (Tex. 2014) (evidence that raises a risk of prejudice and confusion of the jury should be excluded); Farmers Texas County Mutual Insurance Co. v. Pagan, 453 S.W.3d 454, (Tex. App.—Houston [14th Dist.] 2014, no pet.) (evidence should have been excluded where its probative value was outweighed by danger of confusion of issues and misleading jury).

In the present case, any testimony relating to how the fall occurred would be purely speculative, as is discussed in more detail below. Allowing such evidence would create unfair and significant prejudice to the Plaintiff, and therefore should be excluded.

3. THIS COURT MAY EXCLUDE AN EXPERT'S OPINION WHERE BASED UPON SPECULATION OR CONJECTURE

Texas Rule of Evidence 703 states in relevant part, "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by, reviewed by, or made known to the expert at or before the hearing." (Emphasis added.)

An expert may not base his or her opinion on speculation or conjecture. Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006) (scientific testimony is unreliable if it is not grounded in the methods and procedures of science, and amounts to no more than a subjective belief or unsupported speculation); Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727 (Tex. 1998) (expert's opinions speculative and unreliable); Naegeli Transp. v. Gulf Electroquip, Inc., 853 S.W.2d 737, 741 (Tex. App.—Houston [14th Dist.] 1993, writ denied) (expert testimony cannot be based on mere guess or speculations); Cent. Mut. Ins. Co. v. D.&B., Inc., 340 S.W.2d 525 (Tex. Civ. App.—Waco 1960, writ ref'd n.r.e.) (evidence speculative and not proper subject of expert opinion testimony); Harris v. State, 137 S.W. 373 (Tex. Crim. App. 1911, no pet.) (testimony on experiments not admissible where based on speculative hypothetical theories).

An expert's opinion may also be excluded if it is not shown to be reliable. Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006)...