law-expert-witnesses | untimely designation failure to disclose |
Fort Brown Villas III Condo Ass'n. v. Gillenwater, No. 07-1028 (Tex. Apr. 17, 2009)(premises liability suit,
exclusion of evidence not produced in discovery, witness exclusion, undesignated witness, mandatory
exclusion of witness at trial vs. exclusion in summary judgment)(untimely disclosed expert witness excluded
from no-evidence summary judgment proceeding)(affidavit of expert witness excluded from summary judgment
response because not timely disclosed under the discovery control plan)
FORT BROWN VILLAS III CONDOMINIUM ASSOCIATION, INC. D/B/A FORT BROWN CONDOSHARES AND
LRI MANAGEMENT, INC. v. COY GILLENWATER; from Cameron County; 13th district (13-06-00478-CV, ___
SW3d ___, 11-01-07)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals’ judgment and renders judgment.
Per Curiam Opinion (Justice Johnson not sitting)
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.
08-0728
ELIZABETH W. BUFKIN v. EDWARD O. BUFKIN, JR.; from Dallas County; 5th district (05-06-01719-CV, 259
SW3d 343, 07-01-08) 2 petitions, pet. denied Nov. 2008)(prejudgment interest, admissibility of expert
testimony, harm analysis of evidentiary ruling by trial court, divorce fault grounds, prenup, stipulation
agreement)