I'm speaking at a CLE tomorrow in Houston about the admissibility of expert witnesses, specifically an accident reconstruction expert. I'm also preparing a product liability case for trial in September in Beeville, Texas, so I've had the opportunity to research the huge body of law regarding expert witnesses. Getting a qualified expert is not the big challenge. It's is making sure that the expert's testimony is reliable that presents the challenge. The factors for reliability were set out by the Texas Supreme Court in the Robinson and Gammill cases decided in 1996 and 1997, respectively. They are: 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/or publication; 4) the technique's potential rate of error; 5) whether the underlying theory of technique has been generally accepted as valid by the relevant scientific community; and 6) the non-judicial uses which have been made of the theory or technique.
These factors and non-exclusive and can't be applied to every proposed expert. The court makes the analogy of a beekeeper acting as an expert on whether a bee takes off into the wind. The beekeeper's opinion doesn't fit within the 6 factors above, but if he has witnessed thousands of bees taking off, he is going to qualify as an expert. The court also notes that expert testimony is unreliable when there is too great an analytical gap between the data and the opinion offered, and if the testimony is not grounded in scientific methods or procedures, but is instead based on subjective belief or unsupported speculation.
The case that has a good discussion of reliability as it relates to an accident reconstruction expert is TXI Transportation Company v. Hughes, which is a 2010 case. An accident reconstruction expert can be a powerful tool in proving causation. The expense of the expert will be justified if the injuries are severe and/or it is a wrongful death case. The Plaintiff's expert in the Hughes case met the standard of reliability.
In the presentation in Houston tomorrow, I'm lucky enough to be joined by Danny Phillips and Marcos Salinas of Axiom Reconstruction, Inc. My expert in my product case is out of Denver and is a mechanical engineer, so our burden to show reliability will be governed largely by the Robinson, Gammill and Hughes cases.
In the product case, a forklift ran over our client. Our assertion is that the lift had a design defect in that the warning buzzer only activated in the reverse position and not when it was in the 4 wheel steering position. Our argument is basically that the 4 wheel steering position is almost identical to the reverse position as far as pedestrians are concerned. It should be interesting.