law-expert-witness
EXPERT TESTIMONY REQUIREMENTS
Expert testimony must provide an adequate factual basis for the expert's conclusions. See City of San
Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009). A conclusory opinion is one that does not provide
the underlying facts to support the conclusion. CA Partners v. Spears, 274 S.W.3d 51, 63 (Tex. App.-
Houston [14th Dist.] 2008, pet. denied). Conclusory statements in an affidavit unsupported by facts are
insufficient to defeat summary judgment. Id.
EXPERT WITNESS TESTIMONY - APPELLATE REVIEW
we also must consider the difference between (1) a challenge to an expert’s methodology; and (2) a legal
sufficiency challenge predicated on a contention that an expert’s testimony lacks probative value. See
Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004); Nip v. Checkpoint
Sys., Inc., 154 S.W.3d 767, 770-71 (Tex. App.—Houston [14th Dist.] 2004, no pet.). These are two distinct
inquiries.
“When the expert’s underlying methodology is challenged, the court ‘necessarily looks beyond what the
expert said’ to evaluate the reliability of the expert’s opinion.” Coastal Transp. Co., 136 S.W.3d at 233.
“When the testimony is challenged as conclusory or speculative and therefore non-probative on its face,
however, there is no need to go beyond the face of the record to test its reliability.” Id. Therefore, “when
a reliability challenge requires the court to evaluate the underlying methodology, technique, or
foundational data used by the expert, an objection must be timely made so that the trial court has the
opportunity to conduct this analysis.” Id.; Nip, 154 S.W.3d at 770-71. However, when the challenge is
restricted to the face of the record — when expert testimony is speculative or conclusory on its face —
then a party may challenge the legal sufficiency of the evidence even in the absence of any objection to its
admissibility. Coastal Transp. Co., 136 S.W.3d at 233; Nip, 154 S.W.3d at 770-71.
Expert
Rule 702 of the Texas Rules of Evidence governs the admissibility of expert testimony. Tex. R. Civ. Evid.
702; E. I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 554 (Tex. 1995). Rule 702 provides: "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." Tex. R. Civ. Evid. 702. The testimony
must be relevant and based on a reliable foundation. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d
713, 727-28 (Tex. 1998); Robinson, 923 S.W.2d at 554. Once the opposing party objects to proffered
expert testimony, the proponent of the witness' testimony bears the burden of demonstrating its
admissibility. Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996); Robinson, 923 S.W.2d at 557.
If the foundational data underlying an expert's opinion testimony is unreliable, the expert will not be
permitted to base an opinion on that data because any opinion drawn from that data is likewise unreliable.
Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997). A flaw in the expert's reasoning
from the data may render reliance unreasonable and render his inferences drawn from information
dubious. Id. In that circumstance, the expert's testimony is unreliable and legally constitutes no evidence.
Id.
The trial court held a full evidentiary hearing on the admissibility of opinion testimony by Edward's real
estate appraisal expert, Tom Jackson. Mr. Jackson admitted that Edward asked him to appraise the ranch
as raw land as of the Fifth Anniversary and the Divorce Date ignoring the value of the timber on the land.
He was then instructed to include a third party's timber appraisal originally from June 1996 See Footnote
2 in his total values. Although he was a trained and certified forester, Jackson was not engaged to
express an opinion on the timber value The expert admitted that the method dictated by Edward's counsel
did not conform with mandatory provisions of the Uniform Standards of Professional Appraisal Practice
See Footnote 3 and that he had never valued real estate “that way” before.
During the Daubert-Robinson hearing, Edward offered no evidence regarding the reliability of the third
party's timber appraisal or its methodology, and, thus, he failed to prove the underlying data for his
expert's opinion was reliable. Accordingly, the trial court did not abuse its discretion in concluding that the
expert's methodology was unreliable and excluding his testimony. We overrule Edward's third issue as to
the exclusion of Mr. Jackson's testimony.
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