EXPERT TESTIMONY

Texas is a state that looks hard at the underlying work of an expert's opinion, and you will not get your expert's opinion into evidence without the expert identifying the factual basis and pointing out that he/she did an independent investigation.  Here is a sample case on the subject.

Independent Investigation. Citation of Underlying Facts and Reasons for the Opinion.

Bell v. Phillips, No. 14-00-01189-CV (Tex.App. Dist.14 04/18/2002) says, in part:

[44] An expert's deposition opposing a motion for summary judgment must present probative evidence of the facts at issue; an expert deposition or affidavit that gives no basis for its opinions is conclusory and not sufficient to raise fact issues. See Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999); Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). . . . .  To offer an expert opinion: (1) the witness must be qualified; (2) the proposed testimony must be scientific, technical, or consist of other specialized knowledge; and (3) the testimony must assist the trier of fact in understanding the evidence or determining a fact at issue. See TEX. R. CIV. P. 702; E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549, 552 (Tex. 1995).

[45] To negate the causation and damages elements of Wanda's claims, Phillips asserts: * * * *[46] (1) Wanda's expert testimony was not based on underlying facts, and thus is insufficient as a matter of law;. . . . ..

[47] John Gladney's Deposition Testimony. [48] Gladney testified that Phillips breached the standard of care because "a reasonable and prudent attorney would have filed a new and separate lawsuit on Wanda's behalf as soon as she obtained standing to sue." Gladney stated that Phillips fell below this standard of care by waiting so long to pursue her claim that he had to file a bill of review on her behalf instead of a new lawsuit (when the claim in intervention was not successful), * * * *

[50] * * * *, Gladney's expert opinions are unsupported. Gladney testified that he had read the underlying court of appeals opinion, some interrogatories, and the contingency fee agreement between Phillips and Wanda, and that he relied primarily on information he had received from Wanda. Gladney did not review any of the pleadings, correspondence, deposition transcripts, motions, or any expert reports in the underlying litigation nor did he meet with Phillips. Gladney performed no independent investigation as to whether Wanda even had a valid claim against BMC. . . .

 An expert witness testifying on the subject of the proper standard of legal care and alleged legal malpractice would not rely solely on the factual assertions of an interested party in forming an opinion. See Hall v. Rutherford, 911 S.W.2d 422, 426 (Tex. App.--San Antonio 1999, pet. denied.). Because Gladney relied primarily on Wanda's factual assertions without further exploration of the evidentiary and procedural background of the case, we conclude his testimony failed to raise any fact issues regarding the specific instances of malpractice alleged.

* * * * *

Do Not Just Ask for Your Expert's Opinion.  Ask "On what basis do you come to that opinion?"  It is surprising how may lawyers think that they have put in enough evidence to support their case if their expert has rendered a favorable opinion.  In many states, like Texas, an unsupported opinion is not sufficient to support a judgment.  The expert must give the facts and reasoning behind his opinion, and those facts he recites must be in the record by the time the case goes to the jury.

Coastal Transport Co. Inc v. Crown Central Petroleum Corp,. 136 SW3d 227 (Tex 2004) illustrates the point.

"...although expert opinion testimony often provides valuable evidence in a case, "it is the basis of the witness's opinion, and not the witness's qualifications or his bare opinions alone, that can settle an issue as a matter of law; a claim will not stand or fall on the mere ipse dixit of a credentialed witness." Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999). Opinion testimony that is conclusory or speculative is not relevant evidence, because it does not tend to make the existence of a material fact "more probable or less probable." See TEX. R. EVID. 401. This Court has labeled such testimony as "incompetent evidence," and has often held that such conclusory testimony cannot support a judgment. Cas. Underwriters v. Rhone, 132 S.W.2d 97, 99 (Tex. 1939) (holding that a witness's statements were "but bare conclusions and therefore incompetent"); see also Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997) ("[A]n expert witness's conclusory statement... will neither establish good faith at the summary judgment stage nor raise a fact issue to defeat summary judgment."). Furthermore, this Court has held that such conclusory statements cannot support a judgment even when no objection was made to the statements at trial.*fn1 Dallas Ry. & Terminal Co. v. Gossett, 294 S.W.2d 377, 380 (Tex. 1956) ("It is well settled that the naked and unsupported opinion or conclusion of a witness does not constitute evidence of probative force and will not support a jury finding even when admitted without objection."); Rhone, 132 S.W.2d at 99 (holding that "bare conclusions" did not "amount to any evidence at all," and that "the fact that they were admitted without objection add[ed] nothing to their probative force"); see also Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 712 (Tex. 1997) ("When the expert 'brings to court little more than his credentials and a subjective opinion,' this is not evidence that would support a judgment.... If for some reason such testimony were admitted in a trial without objection, would a reviewing court be obliged to accept it as some evidence? The answer is no.").

So be sure to ask your expert "Why?".   Or you can find yourself out of court with no way back in for a new trial.

Coastal also illustrates the point that good experts make when asked "Just read enough to give us a short affidavit to prevent summary judgment"  The good expert will tell you that almost as much work must be done for the first affidavit in the case as the final report in the case.  The expert must have conducted an independent investigation and must give a report that has a solid foundation in fact.

Form of Affidavits.

Affidavits in Texas need to be long and have supporting documents that are sworn to as accurate.  Witness the case of  Brown v. Brown, (Tex.App. Dist.5 08/30/2004) 05-03-00873-CV ,  in which the Dallas Court of Appeals  decided that an expert's affidavit is substantively defective when the absence of referenced papers from summary judgment evidence makes the affidavit conclusory,

The appellant had sued some law firms for malpractice. The firms moved for summary judgment, and the appellant filed a response supported by the affidavit of his expert. The firms objected to the affidavit on several grounds, including that it was conclusory.

The appellate court pointed out that sworn or certified copies of all papers referred to in an affidavit must be attached to the affidavit or served with it! The expert's "affidavit makes many references to the divorce records, and she draws her conclusions about appellees' negligence in representing appellant from the divorce records. However, those records were not attached to her affidavit, filed with it, or otherwise included in the summary judgment evidence. . . ."Without those records, appellant's statements about appellees' actions and inactions in representing him in the divorce have no factual basis and are conclusory," the court wrote.

Now here is another real danger you face when an affidavit of your expert is the defense to a "no-evidence" summary judgment motion.   You can be mouse trapped into a fatal defect.

"Defects in the substance of an affidavit are not waived by the failure to obtain a ruling from the trial court on the objection, and they may be raised for the first time on appeal. McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex. App.-Houston [14th Dist.] 2003, pet. denied). An affidavit that is conclusory is substantively defective. Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 241 (Tex. App.-Waco 2003, no pet.); McMahan, 108 S.W.3d at 498. Because conclusory affidavits are substantively defective, and substantive defects are not waived by the failure to object, we overrule appellant's sixth point of error. "

Can it get worse?  Yes, it can.  You may not be able to supplement the affidavit with materials that are available.  Again, the Brown court on the subject:

"A trial court should allow supplementation to cure defects of form. Tex. R. Civ. P. 166a(f); Webster v. Allstate Ins. Co., 833 S.W.2d 747, 750 (Tex. App.-Houston [1st Dist.] 1992, no writ). However, a trial court need not allow supplementation to cure a substantive defect. Clendennen v. Williams, 896 S.W.2d 257, 260 (Tex. App.-Texarkana 1995, no writ) (op. on motion for reh'g); Ceballos, 881 S.W.2d at 445. Because Templeton's supplemental affidavit is substantively defective, we conclude the trial court did not err by denying appellant's motion to supplement the summary judgment evidence. "

But take heart, a footnote in the Brown case tells us some appeals courts might think otherwise.  Footnote 1 reads:

"*fn1 The Beaumont and the two Houston courts of appeals have declared this defect to be one of form. See Sunsinger v. Perez, 16 S.W.3d 496, 501 (Tex. App.-Beaumont 2000, pet. denied); Mathis v. Bocell, 982 S.W.2d 52, 60 (Tex. App.-Houston [1st Dist.] 1998, no pet.); Martin v. Durden, 965 S.W.2d 562, 565 (Tex. App.-Houston [14th Dist.] 1997, pet. denied). The Texarkana, Amarillo, Fort Worth, and El Paso courts of appeals have determined the defect is one of substance. See Kleven v. Tex. Dep't of Criminal Justice-Inst. Div., 69 S.W.3d 341, 345 (Tex. App.-Texarkana 2002, no pet.); Natural Gas Clearinghouse v. Midgard Energy Co., 23 S.W.3d 372, 379 (Tex. App.-Amarillo 1999, pet. denied); Gorrell v. Tex. Util. Elec. Co., 915 S.W.2d 55, 60 (Tex. App.-Fort Worth 1995), writ denied, 954 S.W.2d 767 (Tex. 1997) (per curiam); Rodriquez v. Tex. Farmers Ins. Co., 903 S.W.2d 499, 506 (Tex. App.-Amarillo 1995, writ denied); Ceballos v. El Paso Health Care Sys., 881 S.W.2d 439, 445 (Tex. App.-El Paso 1994, writ denied). The supreme court and the Austin court of appeals have held that an affidavit lacking the referenced papers cannot support a summary judgment, but those courts did not expressly hold the defect was one of substance and not form. See Gardner v. Martin, 162 Tex. 156, 158, 345 S.W.2d 274, 276-77 (1961); Langdeau v. Dick, 356 S.W.2d 945, 957 (Tex. Civ. App.-Austin 1962, writ ref'd n.r.e.). In Gorrell, the supreme court denied the application for writ of error but stated, "We neither approve nor disapprove of the conclusion of the court of appeals that the failure to attach copies of documents referenced in the affidavit of an expert witness 'constituted a defect in the substance of the affidavit.'" Gorrell, 954 S.W.2d at 767 (quoting Gorrell, 915 S.W.2d at 60). "

Experts and their income: Pretrial discovery of a witness' accounting and financial records, solely for the purpose of impeachment, may be denied. In Re Weir, a 2005 Texas Appeals Court case, again illustrates the question and its resolution. The case involved an expert witness who fought a trial court's order to produce federal income tax returns.   During a deposition, the opposing parties (the plaintiffs) asked expert witness Weir what percentage of his income came from litigation in the last two years.  The trial court ordered Weir to give deposition testimony on his litigation-related income for 2002-2004, as well as the percentage of the total income this litigation-related income represented. The appeals court reversed. The Texas Supreme Court has expressed reluctance to unnecessary discovery of federal income tax returns. The plaintiffs' interests in obtaining discovery solely for impeachment must be weighed against the witness' legitimate interest in protecting unrelated financial information.  See generally, Russell v. Young, 452 S.W.2d 434, 436 (Tex. 1970); and Olinger v. Curry, 926 S.W.2d 832 (Tex. App.--Fort Worth 1996, orig. proceeding).

When asked to reconstruct his sources of income for the last year, Weir testified as follows:

"I believe that that falls within the purview of me and the IRS. And that is my position. And then I will tell you the -- my knowledge of my income as it pertains to this case, my rate of income, and my understanding of what I can recollect from my work in litigation as it pertains to matters such as this. I don't feel it's either appropriate or anyone's business, including my wife's, what else I make. "

The appeals court in Weir found that: "The deposition ordered here would not materially benefit the dispute resolution process in this case in view of the information already available to the parties and the trial court concerning this expert witness."

In Re Weir, (Tex.App. Dist.9 06/16/2005) Per curium. 09-05-116 CV