Motion to Exclude Expert Testimony in Texas

What Is a Motion to Exclude Expert Testimony?

Background

Texas Rule of Evidence 702 permits a party to call forth a witness who is "qualified as an expert by knowledge, skill, experience, training, or education" to testify "in the form of an opinion or otherwise" if "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." (Tex. R. Evid. 702.)

“Rule 702 requires expert testimony to be relevant and reliable.” (E.I. du Pont de Nemours & Co. v. Robinson (1995) 923 S.W.2d 549, 550, [where the Supreme Court addressed the proper standard for the admission of expert testimony under Texas Rule of Evidence 702.]; but see, Wilson v. State (2006) 195 S.W.3d 193 [noting that Rule 702 does not provide a bright line test as to whether expert testimony is admissible].)

How to Structure the Motion

A Motion to Exclude Expert Testimony “must clearly address not only the opinion, but each of the different ways the opinion will be presented to the jury through documents.” (Austin v. Weems (2011) 337 S.W.3d 415, 418 [finding that motion to exclude only addressed the expert's opinion in his testimony and two of the five instances his opinion was expressed in the exhibits. The appeals court has held that plaintiff was required to object to each part of the exhibits that contained expert's opinion in order to preserve error on appeal.].)

“The requirement that the proposed testimony be relevant incorporates traditional relevancy analysis under Rules 401 and 402 of the Texas Rules of Civil Evidence.” (E.I. du Pont de Nemours & Co., 23 S.W.2d 549, 556.) “To be relevant, the proposed testimony must be ‘sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.’” (Id., citing United States v. Downing (1985) 753 F.2d 1224, 1242; see Daubert v. Merrell Dow Pharmaceuticals, Inc (1993) at 589-93.)

“Evidence that has no relationship to any of the issues in the case is irrelevant and does not satisfy Rule 702's requirement that the testimony be of assistance to the jury.” (E.I. du Pont de Nemours & Co., 23 S.W.2d 549, 563 citing WEINSTEIN BERGER, WEINSTEIN'S EVIDENCE, p 702[02] (1994).) “It is thus inadmissible under Rule 702 as well as under Rules 401 and 402.” (Id.)

There are many factors a trial court may consider in determining the reliability of expert testimony. (E.I. du Pont de Nemours & Co., 23 S.W.2d at 557 citing United States v. Downing (1985) 753 F.2d 1224, 1241.)

the extent to which the expert's opinion has been or can be tested;
the extent to which the opinion relies upon the subjective interpretation of the expert;
whether the expert's opinion has been subject to peer review or publication;
the potential rate of error;
whether the expert's opinion was based on a reliable foundation;
whether testing was conducted to exclude other possible causes;
whether the expert's methodology was suspect; and
whether the expert's research was conducted for litigation.

(Wyndham International, Inc. v. Ace American Insurance Co.(2006) 186 S.W.3d 682, 685 citing Neal v. Dow Agrosciences LLC (2002) 74 S.W.3d 468, 471-72.)

The trial court must evaluate the methods, analysis and principles relied upon by the expert in reaching an opinion. (Gammill v. Jack Williams Chevrolet, Inc.(1998) 972 S.W.2d 713, 725.)

The Court’s Decision

The trial court's decision to admit or exclude expert testimony is reviewed under an abuse of discretion standard. (Gammill, 972 S.W.2d at 728.) A trial court abuses its discretion when its decision is arbitrary or unreasonable or it acts without reference to any guiding rules or principles. (K-Mart Corp. v. Honeycutt (2000) 24 S.W.3d 357, 360; Mercedes-Benz Credit Corp. v. Rhyne (1996) 925 S.W.2d 664, 666.)

Where “the proponent of the testimony ... fail[s] to establish that the proffered testimony [is] scientifically reliable, the trial court [does] not abuse its discretion by excluding the expert witness.” (E.I. du Pont de Nemours & Co. v. Robinson (1995) 923 S.W.2d 549, 550.)

“In addition to being relevant, the underlying scientific technique or principle must be reliable.” (Id. at 557.) “Scientific evidence which is not grounded ‘in the methods and procedures of science’ is no more than ‘subjective belief or unsupported speculation.’” (Id., citing Daubert, 509 U.S. at 590.) “Unreliable evidence is of no assistance to the trier of fact and is therefore inadmissible under Rule 702.” (Id., citing Kelly v. State (1992) 824 S.W.2d 568, at 572 quoting Kreiling, Scientific Evidence: Toward Providing the Lay Trier with the Comprehensible and Reliable Evidence Necessary to Meet the Goals of the Rules of Evidence (1990) 32 ARIZ.L.REV. 915, 941-42.)

Court Review of Administrative Agency Decisions

An agency has broad discretion when deciding whether to admit expert testimony in an administrative hearing, and its decision will not be disturbed absent an abuse of discretion. (Fay-Ray Corp. v. Texas Alcoholic Bev. Comm'n (1998) 959 S.W.2d 362, 367.) In addition, it is well established that the agency is the sole judge of the weight to be accorded the testimony of each witness. (Central Power Light, 36 S.W.3d at 561.) When weighing the evidence, the agency may accept or reject the testimony of witnesses or may accept part of a witness's testimony and disregard the remainder. (Id.)