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Motions To Exclude Expert Testimony on the Rise in Crash Injury Cases

Daubert motions are becoming more prominent in personal injury litigation as more and more judges entertain pre-trial motions to strike the other side’s expert. Historically, the defendants took the lead in this tactic, but lately, Plaintiff litigants have been filing their share of Daubert motions in an attempt to strike a defendant’s expert or to strike portions of that expert’s testimony at trial. Motions being filed ares similar to the following motion used in state court:

PLAINTIFFS’ MOTION TO EXCLUDE EXPERT TESTIMONY

Plaintiffs, files this motion to strike the testimony of A.B., M.D., and Mr. T.G., P.E., and would respectfully show as follows:

Background

  1. Plaintiffs seek to recover their damages from a collision on May 16, 2016, in which J.R. was severely injured when the car she was driving was struck by debris that fell off of a truck that was in front of her.  Defendants have recently designated two experts, as experts on causation.  Defendants recently produced to Plaintiffs a copy of an opinion letter by A.B., dated April 22, 2017, in which A.B. opines that Plaintiff’s injuries were not caused by the collision.  (A copy of the opinion letter is attached to this motion as Exhibit “A.”).  In the same transmission, Defendants produced to Plaintiffs the report of T.G., which is dated April 21, 2017, and which also attempts to show that Plaintiff could not have been injured as asserted by Plaintiffs.  (A copy of the opinion letter is attached to this motion as Exhibit “B.”).
  2. Plaintiffs file this motion objecting to the opinion testimony of A.B. and T.G. because such is scientifically unreliable under E.I. du Pont de Nemours and Company, Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995) and its progeny, and asking the Court to exclude their testimony pursuant to those cases.

Arguments & Authorities

  1. Plaintiffs seek to exclude the testimony of A.B. and T.G. on the grounds that their opinions are speculative and unreliable, and therefore not admissible at trial.  Texas Rule of Evidence Rule 702 requires expert testimony to be relevant and reliable to be admissible.  Robinson, 923 S.W.2d at 550.  Scientific evidence which is not grounded “in the methods and procedures of science” is no more than “subjective belief or unsupported speculation.”  Robinson at 557, citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590 (1993).  Furthermore, the standards set forth in Robinson and Havner apply to all “scientific” experts, not just experts giving “novel scientific” testimony.  Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 721–722 (Tex. 1998).  Additionally, “Rule 702’s fundamental requirements of reliability and relevance are applicable to all expert testimony offered under that rule.”  Id. at 726.  The burden is on the proponent of scientific expert testimony to demonstrate that the evidence is relevant and reliable before it can be admitted.  Id. at 720.

The Robinson Factors

  1. In Robinson, the Supreme Court set forth a non–exclusive list of factors that courts should consider in looking beyond the bare opinion of the expert.  Those factors include:
    1. the extent to which the theory has been or can be tested;
    2. the extent to which the technique relies upon the subjective interpretation of the expert;
    3. whether the theory has been subjected to peer review and publication;
    4. the technique’s potential rate of error;
    5. whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community;  and
    6. the non-judicial uses that have been made of the theory or technique.

Robinson, 923 S.W.2d at 557.

It is against these factors that the Court must weigh the testimony of A.B. and T.G., and it is against these factors that his testimony will be found wanting.

  1. The first Robinson factor is “the extent to which the theory has been or can be tested.”  A.B. offers no evidence that his theories have or can be tested, and nowhere in his opinion letter does he refer to any testing.  T.G. claims to have “tested” his hypothesis by driving portions of his delivery route with Defendant’s driver but his “test” was conducted with empty buckets and is simply a self–serving exercise in bolstering his “opinion.”  Nowhere in either report is there any indication of proper scientific (repeatable) testing as required by the first Robinson factor.
  1. The second factor to be considered is “the extent to which the technique relies upon the subjective interpretation of the expert.”  The opinions of both A.B.and T.G. are based almost entirely on their respective subjection interpretation.  Neither A.B. nor T.G. offer any calculations or formulae to substantiate or buttress their conclusory opinions.  Their opinions appear to be of the “by gosh and by golly” school, and not truly scientific. Thus, their methodology fails to meet the requirements of Robinson and their testimony should be excluded.
  2. The third factor is “whether the theory has been subjected to peer review and publication.”  There is not indication that any of the methodology used by A.B. or T.G. has ever been subjected to peer review or publication.  A.B. does claim co–authorship of one publication entitled “Head, Neck and Mandible Dynamics Generate by ‘Whiplash’” in his Curriculum Vitae attached to his opinion letter, but there is no showing that Accident Analysis and  Prevention is a peer-reviewed publication that meets the Robinson standards.
  3. The fourth factor is “the technique’s potential rate of error.”  There is nothing to show the potential rate of error of either expert’s techniques.
  4. The fifth factor is “whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community.”
  5. The sixth factor the Court should consider is “the non-judicial uses that have been made of the theory or technique.”  Neither expert points to any non–judicial use for the techniques they rely upon.  Plaintiffs would note that A.B.’s company, B.R.C., testifies for the defense almost exclusively.  Plaintiffs would elaborate on this factor, but as noted elsewhere, they have been unable to depose either of the tendered experts.

Conclusion & Prayer

  1. Plaintiffs have shown that under the analysis set forth by the Supreme Court in Robinson and its progeny, A.B.’s and T.G.’s opinions are speculative and unreliable, and that those opinions are therefore not admissible at trial under the Texas Rules of Evidence.  Therefore, Plaintiffs ask the Court to exclude the testimony of A.B., M.D.  and T.G., P.E. from trial, and grant Plaintiffs such other relief, in law and in equity, as the Court finds just.

Sometimes, the preferred trial strategy is to not file a motion like the above, but rather allow the defense expert to testify and use the arguments that would have been developed in the motion to strike to cross-examine the expert at trial. This can, after all, be much more effective and show the jury that the defense expert is not qualified to rendered the opinions for which he or she has been offered by the defense.