Expert Witness Selection and Reliability in Texas Catastrophic Injury Trials

Experts link the crash or fall to the injury and the injury to a lifetime of costs, and Texas judges check each link before a jury hears it.

There's a fourth way to lose, and Gharda USA v. Control Solutions shows it. A Pasadena warehouse burned on March 8, 2004, after workers left 32 drums of chlorpyrifos to melt overnight in a hot box. The plaintiffs' case ran through four experts, each leaning on another. In 2015, the Texas Supreme Court found at least two of those opinions unreliable, which took the other two down with them, and it reinstated a take-nothing judgment.

Which experts does a catastrophic injury case usually need?

Most cases line up like this:

• How did the crash or fall happen? An accident reconstructionist or engineer.
• What injury did it cause? A treating physician or specialist.
• What care will you need for life? A life-care planner.
• What work can you still do? A vocational expert.
• What do those losses cost in today's dollars? An economist.

A surgeon may be the right person to say a spinal fusion will need revision. The surgeon usually isn't the right person to price thirty years of attendant care.

How do Texas courts test whether an expert is reliable?

Under Texas Rule of Evidence 702, a qualified expert may give an opinion that helps the jury. The judge decides whether that opinion is relevant and reliable before the jury hears it. The expert's training must fit the specific question.

Four Texas Supreme Court cases supply the questions:

The Robinson factors differ from case to case. Gammill's gap check applies to experience-based opinions too.

Under Gharda, an opinion built on another expert's unreliable opinion fails too. If the planner's opinion falls, the economist who priced the plan can fall with it.

Does Havner mean ruling out every cause a defendant can imagine? No.

What happened in Helena Chemical Co. v. Cox?

Cotton farmers in Mitchell County said an herbicide sprayed from two planes over the Spade Ranch in July 2015 drifted onto their fields. The fields sat anywhere from 1.8 to 25 miles from the spray sites. The farmers' experts never visited those fields or collected cotton samples. Many of the farmers had filed insurance claims blaming drought or other weather.

The Texas Supreme Court ruled against the farmers in 2023. Their proof never dealt with weather or other herbicides, two plausible alternative causes, and the court reinstated summary judgment for Helena.

Rule 705(c) attacks the same problem from the evidence side. An opinion without a sufficient basis in the underlying facts or data is inadmissible.

What must be disclosed about your experts, and when?

Under Rule 195.2, unless the court orders otherwise, a party seeking relief designates experts 90 days before discovery ends. Other parties designate 60 days before. Many courts set their own dates in a scheduling order, so check yours.

Count back from the close of discovery. If it closes June 30, the injured person's experts are due about April 1 and the defense experts about May 1. A life-care planner first named in mid-April is already late.

What does the other side get to see?

• Rule 195.5(a) disclosures include the subject, the general substance of opinions, and, for retained experts, the materials reviewed, résumé, prior testimony list, and fee.
• Lawyer-expert communications are protected under Rule 195.5(c), with three exceptions: compensation, facts or data the lawyer supplied, and assumptions the lawyer supplied.
• Draft reports and draft disclosures are protected under Rule 195.5(d).
• A new surgery or new restrictions? Rule 195.6 requires retained experts' opinions and their bases to be supplemented.
• Under Rule 193.6, evidence not timely disclosed may be excluded unless good cause or no unfair surprise or prejudice is shown.

At the reliability hearing, the other side may question the expert about the underlying facts outside the jury's presence under Rule 705(b). Bring these:

• the list of every record the expert relied on
• the calculations and the workbook behind them
• the alternative-cause analysis, in writing

How does the expert team stay consistent?

Every shared assumption needs one source:

The experts should share facts, not a script. Each one has to reach the conclusion through their own professional judgment.

Related reading: the Texas catastrophic injury claims guide, Texas life care plans, How to prove lost earnings and earning capacity, and the catastrophic injury and damages hub.

Frequently asked questions

Can my treating doctor be my expert?

On the injury and your care, often yes. Nobody knows your fusion better than your surgeon. Pricing 30 years of care, measuring lost earning capacity, or rebuilding the crash is usually someone else's job.

Does a famous expert make my case stronger?

Not by itself. The Helena farmers had five causation experts. They still lost, because the proof didn't account for weather and other herbicides.

Will I meet the experts?

You'll meet some of them. Life-care planners and vocational experts often interview or test the injured person, and the defense may ask the court to order its own medical exam under Rule 204.1.

What if the defense expert disagrees with mine?

That's common. If both opinions are reliable, the jury decides which to believe.

Who pays when the defense deposes my expert?

Under Rule 195.7, the party taking the deposition pays the expert's reasonable fees for preparing, testifying, and reviewing the transcript.

Sources

1. Texas Rules of Evidence
2. Texas Rules of Civil Procedure
3. Gharda USA, Inc. v. Control Solutions, Inc., 464 S.W.3d 338 (Tex. 2015)
4. Helena Chemical Co. v. Cox, No. 20-0881 (Tex. Mar. 3, 2023)
5. Tex. Civ. Prac. & Rem. Code § 18.091
6. Tex. Civ. Prac. & Rem. Code § 41.0105

This article provides general information about Texas law, not legal advice. Every case depends on its facts, evidence, insurance, deadlines and governing law. Past results do not guarantee a similar outcome.