Havner factors in Texas

2015Absent direct, scientifically reliable proof of actual causation, Havner requires the proponent of causation testimony in the toxic tort context to demonstrate that exposure “more likely than not” caused the injury by pointing to at least two epidemiological studies demonstrating a statistically significant doubling of the risk as proof of general causation. 5 Havner, 953 S.W.2d at 714-15 (causation has two components: general and specific causation); Merck, 347 S.W.3d at 265-66 (epidemiological evidence showing a statistically significant doubling of the risk is a threshold requirement of rel

2015Absent direct, scientifically reliable proof of actual causation, Havner requires the proponent of causation testimony in the toxic tort context to demonstrate that exposure “more likely than not” caused the injury by pointing to at least two epidemiological studies demonstrating a statistically significant doubling of the risk as proof of general causation. 5 Havner, 953 S.W.2d at 714-15 (causation has two components: general and specific causation); Merck, 347 S.W.3d at 265-66 (epidemiological evidence showing a statistically significant doubling of the risk is a threshold requirement of rel

2015Motors Corp. v. Harper, 61 S.W.3d 118, 130 (Tex. App. - Eastland 2001, pet. denied) (holding that expert’s testimony ″was based on an assumption that Page 54 of 230 52 Hous.

2003See General Motors Corp. v. Harper, 61 S.W.3d 118, 129 (Tex.App.-East-land 2001, no pet.) (citing General Motors Corp. v. Sanchez, 997 S.W.2d 584, 591 (Tex.1999) and Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex.1998)).

2009He contends that the Havner standards apply only to toxic tort cases, including general and specific causation and the role of epidemiology studies.10 See Havner, 953 S.W.2d at 714-75 ; Halim v. Ramchandani, 203 S.W.3d 482, 489 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (medical malpractice case in which court applied general reliability requirements as established in Robinson and not Havner analysis).

2009He contends that the Havner standards apply only to toxic tort cases, including general and specific causation and the role of epidemiology studies. (10) See Havner , 953 S.W.2d at 714-75 ; Halim v. Ramchandani , 203 S.W.3d 482, 489 (Tex. App.--Houston [14th Dist.] 2006, no pet.) (medical malpractice case in which court applied general reliability requirements as established in Robinson and not Havner analysis).

2011But it is impossible to ignore the Havner factors here, as the field of expertise is the same — the epidemiological evidence connecting a chemical exposure and a disease.”); Austin, 25 S.W.3d at 287 (“[A] trial court could not properly review the reliability of scientific testimony based on epidemiological studies if it were required to ignore the basic principles articulated in Havner that the scientific community employs in conducting such studies.”). *338 Finally, as BNSF points out, the entire record demonstrates that the jury could have reasonably concluded that the Fausts failed to carry

2011But it is impossible to ignore the Havner factors here, as the field of expertise is the same — the epidemiological evidence connecting a chemical exposure and a disease.”); Austin, 25 S.W.3d at 287 (“[A] trial court could not properly review the reliability of scientific testimony based on epidemiological studies if it were required to ignore the basic principles articulated in Havner that the scientific community employs in conducting such studies.”). *338 Finally, as BNSF points out, the entire record demonstrates that the jury could have reasonably concluded that the Fausts failed to carry

2003See General Motors Corp. v. Harper, 61 S.W.3d 118, 129 (Tex.App.-East-land 2001, no pet.) (citing General Motors Corp. v. Sanchez, 997 S.W.2d 584, 591 (Tex.1999) and Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex.1998)).

2003See General Motors Corp. v. Harper , 61 S.W.3d 118, 129 (Tex. App.--Eastland 2001, no pet.) (citing General Motors Corp. v. Sanchez , 997 S.W.2d 584, 591 (Tex. 1999) and Maritime Overseas Corp. v. Ellis , 971 S.W.2d 402, 409 (Tex. 1998)).

2003See General Motors Corp. v. Harper, 61 S.W.3d 118, 129 (Tex.App.-East-land 2001, no pet.) (citing General Motors Corp. v. Sanchez, 997 S.W.2d 584, 591 (Tex.1999) and Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex.1998)).

2003See General Motors Corp. v. Harper , 61 S.W.3d 118, 129 (Tex. App.--Eastland 2001, no pet.) (citing General Motors Corp. v. Sanchez , 997 S.W.2d 584, 591 (Tex. 1999) and Maritime Overseas Corp. v. Ellis , 971 S.W.2d 402, 409 (Tex. 1998)).

2003Servs., Inc., 989 S.W.2d 120, 125 (Tex.App.-San Antonio 1999, pet. denied) (considering "no-evidence” complaint to expert opinion as merely possibility, surmise, or speculation under Robinson and Havner factors). 4 .

2003Servs., Inc., 989 S.W.2d 120, 125 (Tex. App.--San Antonio 1999, pet. denied) (considering "no-evidence" complaint to expert opinion as merely possibility, surmise, or speculation under Robinson and Havner factors). 4.

2003See Havner, 953 S.W.2d at 718-19; Robinson, 923 S.W.2d at 557 ; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593-94 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993) (promoting flexible inquiry rather than a definitive checklist); Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 599, 611 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (en banc) (“pertinent, suggested inquiries in assessing the reliability of expert testimony are applied flexibly and are not exclusive or required.”).

2003See Havner, 953 S.W.2d at 718-19; Robinson, 923 S.W.2d at 557 ; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593-94 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993) (promoting flexible inquiry rather than a definitive checklist); Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 599, 611 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (en banc) (“pertinent, suggested inquiries in assessing the reliability of expert testimony are applied flexibly and are not exclusive or required.”).

2003See Havner, 953 S.W.2d at 718-19; Robinson, 923 S.W.2d at 557 ; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593-94 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993) (promoting flexible inquiry rather than a definitive checklist); Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 599, 611 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (en banc) (“pertinent, suggested inquiries in assessing the reliability of expert testimony are applied flexibly and are not exclusive or required.”).

2003See Havner, 953 S.W.2d at 718-19; Robinson, *196 923 S.W.2d at 557 ; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593-94 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993) (promoting flexible inquiry rather than a definitive checklist); Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 599, 611 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (en banc) ("pertinent, suggested inquiries in assessing the reliability of expert testimony are applied flexibly and are not exclusive or required. ").

2002See, e.g., Scherl v. State, 7 S.W.3d 650, 651-52 (Tex.App.-Texarkana 1999, pet. ref'd) (under equivalent criminal rule); Chisum v. State, 988 S.W.2d 244, 250-51 (Tex.App.-Texarkana 1998, pet. ref’d) (same); Hon.

2002See, e.g. , Scherl v. State , 7 S.W.3d 650, 651-52 (Tex. App.--Texarkana 1999, pet. ref'd) (under equivalent criminal rule); Chisum v. State , 988 S.W.2d 244, 250-51 (Tex. App.--Texarkana 1998, pet. ref'd) (same); Hon.

2002See, e.g., Scherl v. State, 7 S.W.3d 650, 651-52 (Tex.App.-Texarkana 1999, pet. ref'd) (under equivalent criminal rule); Chisum v. State, 988 S.W.2d 244, 250-51 (Tex.App.-Texarkana 1998, pet. ref’d) (same); Hon.

2002See, e.g. , Scherl v. State , 7 S.W.3d 650, 651-52 (Tex. App.--Texarkana 1999, pet. ref'd) (under equivalent criminal rule); Chisum v. State , 988 S.W.2d 244, 250-51 (Tex. App.--Texarkana 1998, pet. ref'd) (same); Hon.

2015Absent direct, scientifically reliable proof of actual causation, Havner requires the proponent of causation testimony in the toxic tort context to demonstrate that exposure “more likely than not” caused the injury by pointing to at least two epidemiological studies demonstrating a statistically significant doubling of the risk as proof of general causation. 5 Havner, 953 S.W.2d at 714-15 (causation has two components: general and specific causation); Merck, 347 S.W.3d at 265-66 (epidemiological evidence showing a statistically significant doubling of the risk is a threshold requirement of rel

2015Therefore, a Robinson/Havner challenge is not required.″); Rayon v. Energy Specialties, Inc., 121 S.W.3d 7, 20-21 (Tex. App. - Fort Worth 2002, no pet.) (″An expert’s affidavit that is based on assumed facts that vary from the actual undisputed facts has no probative force… .

2015Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 712-13 (Tex. 1997); cf. Bartosh v. Gulf Health Care Ctr.-Galveston, 178 S.W.3d 434, 442-43 (Tex. App. - Houston [14th Dist.] 2005, no pet.) (holding that physician’s opinion that ant bites contributed to resident’s death was not supported by adequate foundation because physician had ″only slight experience regarding fire ant bites and no experience″ with complications from such bites). 879 See Samuels v. Holland Am.

2015But, as noted above, the Texas Supreme Court applied the Havner standard in Merck without distinction, even though the plaintiffs in Merck presented separate evidence of specific causation. 678 In a 2011 workplace radiation case, the Fifth Circuit relied on the standards for expert causation evidence articulated in Havner, concluding that the plaintiffs’ evidence failed as a matter of law 669 In re Hanford Nuclear Reservation Litig., 292 F.3d 1124, 1130 (9th Cir. 2002). 670 Id. at 1134-35 . 671 Id. at 1136-37 . 672 Claimants in the case alleged that their illness was caused by radiation emitte

2015But, as noted above, the Texas Supreme Court applied the Havner standard in Merck without distinction, even though the plaintiffs in Merck presented separate evidence of specific causation. 678 In a 2011 workplace radiation case, the Fifth Circuit relied on the standards for expert causation evidence articulated in Havner, concluding that the plaintiffs’ evidence failed as a matter of law 669 In re Hanford Nuclear Reservation Litig., 292 F.3d 1124, 1130 (9th Cir. 2002). 670 Id. at 1134-35 . 671 Id. at 1136-37 . 672 Claimants in the case alleged that their illness was caused by radiation emitte

2015See Bostic v. Georgia-Pacific Co., 439 S.W.3d 332, 347-48 (Tex.2014) (“[w]e have never held that [Havner] applies universally to all tort cases where causation is an issue”).

2015Auth./Cent. of Tenn. Ry. & Navigation Co. v. Cent. of Tenn. Ry. & Navigation Co., 114 S.W.3d 573, 578 (Tex. App. - Austin 2003, pet. denied) (″Capital Metro argues that, because it is not challenging the reliability of the methodology of the expert, it was not required to make a Robinson/Havner challenge below in order to assert a no-evidence challenge on appeal.