Daubert hearing in Texas

2025Under the Daubert standard, in addition to showing that an expert witness is qualified, Rule 702 also requires the proponent to show that the expert’s testimony is relevant to the issues in the case and is based upon a reliable foundation. 509 U.S. at 597 .

2025Under the Daubert standard, in addition to showing that an expert witness is qualified, Rule 702 also requires the proponent to show that the expert’s testimony is relevant to the issues in the case and is based upon a reliable foundation. 509 U.S. at 597 .

2015See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 599 (1993) (Rehnquist, C.J., and Stevens, J., concurring and dissenting) (Daubert factors involve consideration of issues “far afield from the expertise of judges”); Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir. 1996) (“it is a daunting task for judges who do not have a scientific background (and most do not) to decide whether a scientist's testimony is real science or not”); Kelly v. State, 824 S.W.2d 568, 576 (Tex. Crim.

2015See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 599 (1993) (Rehnquist, C.J., and Stevens, J., concurring and dissenting) (Daubert factors involve 12 consideration of issues “far afield from the expertise of judges”); Rosen v. Ciba- Geigy Corp., 78 F.3d 316, 318 (7th Cir. 1996) (“it is a daunting task for judges who do not have a scientific background (and most do not) to decide whether a scientist's testimony is real science or not”); Kelly v. State, 824 S.W.2d 568, 576 (Tex. Crim.

2015Case Law and Matters of Science The Supreme Court cases Daubert v. Merrell Dow Pharmaceuticals,79 General Electric Co. v. Joiner,80 and Kumho Tire Co. v. Carmichael81 articulated what is known as the “Daubert standard.” The standard addressed Rule 702 of the Federal Rules of Evidence,82,83 and clearly defined a judge’s role in playing “gatekeeper,” determining whether expert testimony is based on sound scientific reasoning and methodology. 77 <http://texasforestservice.tamu.edu/main/popup.aspx?id=16509>. 78 A blog is a website that typically contains an online personal journal and that sometim

2015Inc., 158 F.3d 548, 562-63 (11th Cir. 1998) (finding abuse of discretion when court fails to make adequate inquiry into Daubert factors); Guadalupe-Blanco River Auth. v. Kraft, 39 S.W.3d 264, 272 (Tex. App. - Austin 2001) (Patterson, J., dissenting) (″The trial court’s discretion extends to determining which of the Daubert-Robinson-Gammill factors reasonably measure whether an expert’s opinion is reliable, and whether other factors might apply.″), rev’d on other grounds, 77 S.W.3d 805 (Tex. 2002). 1218 Kumho, 526 U.S. at 141, 150 (noting that Daubert factors do not ″necessarily″ apply in every

2020Cantu contends that he challenged Schmidt’s qualifications by Daubert motion and that at the Daubert hearing, the Commission presented evidence regarding Schmidt’s experience in bankruptcy but “completely failed” to present evidence that Schmidt was qualified in “legal ethics” or in “divining truth from fiction” or that he possessed “expertise in fraud or unethical conduct.” See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 589–90 (1993); E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 554 (Tex. 1995).

2020Cantu contends that he challenged Schmidt’s qualifications by Daubert motion and that at the Daubert hearing, the Commission presented evidence regarding Schmidt’s experience in bankruptcy but “completely failed” to present evidence that Schmidt was qualified in “legal ethics” or in “divining truth from fiction” or that he possessed “expertise in fraud or unethical conduct.” See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 589–90 (1993); E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 554 (Tex. 1995).

2012See Davis v. State, 313 S.W.3d 317, 352-53 (Tex.Crim.App.2010) (defendant must still lodge objection at Daubert hearing to preserve error); Neal v. State, 256 S.W.3d 264, 279 (Tex.Crim.App.2008) (failure to articulate objection after Daubert hearing forfeited right to challenge expert’s qualifications on appeal). 58 .

2011Thus, he forfeited the right to challenge that ruling on appeal.47 The failure to articulate an objection after the Daubert hearing could mean that appellant was 46 Davis, 313 S.W.3d at 352-53 . 47 Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim.

2004Because the evidence offered by Dr. Mears related to social science or a field that is based primarily on experience and training as opposed to the scientific method, we are mindful that the Daubert factors “do not necessarily apply outside of the hard science context.” Nenno v. State , 970 S.W.2d 549, 561 (Tex. Crim.

2004Because the evidence offered by Dr. Mears related to social science or a field that is based primarily on experience and training as opposed to the scientific method, we are mindful that the Daubert factors “do not necessarily apply outside of the hard science context.” Nenno v. State , 970 S.W.2d 549, 561 (Tex. Crim.

2015In fact, he is just the kind of witness that the Supreme Court has repeatedly warned about: one who travels around the country providing expert witness testimony in tire cases, i.e. a "hired gun." See Gammill at 725 ("Whether the expert would opine on economic valuation, advertising, psychology, or engineering, application of the Daubert factors is germane to evaluating whether the expert is a hired gun or a person whose opinion in the courtroom will withstand the same scrutiny that it would among his professional peers."); E.I.

2015In fact, he is just the kind of witness that the Supreme Court has repeatedly warned about: one who travels around the country providing expert witness testimony in tire cases, i.e. a "hired gun." See Gammill at 725 ("Whether the expert would opine on economic valuation, advertising, psychology, or engineering, application of the Daubert factors is germane to evaluating whether the expert is a hired gun or a person whose opinion in the courtroom will withstand the same scrutiny that it would among his professional peers."); E.I.

2003Later, the Texas Court of Criminal Appeals held that its Kelly inquiry was substantially identical to the Daubert inquiry, Jordan v. State, 928 S.W.2d 550, 554 (Tex. Crim.

2003Later, the Texas Court of Criminal Appeals held that its Kelly inquiry was substantially identical to the Daubert inquiry, Jordan v. State, 928 S.W.2d 550, 554 (Tex. Crim.

2024Stephens v. State, 276 S.W.3d 148, 153 (Tex. App.—Amarillo 2008, pet. ref’d) (holding appellant failed to preserve error when he did not object to expert’s testimony at trial or request Daubert hearing).

2022Further, appellant does not provide us with any evidence of the reasoning behind trial counsel’s conduct, and conjecture cannot overcome the presumption that trial 11 counsel’s conduct was reasonable. 6 See Johnson, 624 S.W.3d at 586; see, e.g., Washington v. State, 417 S.W.3d 713, 725 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (concluding appellant’s trial counsel’s failure to challenge the State’s expert witnesses’ qualifications did not constitute ineffective assistance of counsel); Stephens v. State, 276 S.W.3d 148, 154 (Tex. App.—Amarillo 2008, pet. ref’d) (concluding appellant’s t

2012See Davis v. State, 313 S.W.3d 317, 352-53 (Tex.Crim.App.2010) (defendant must still lodge objection at Daubert hearing to preserve error); Neal v. State, 256 S.W.3d 264, 279 (Tex.Crim.App.2008) (failure to articulate objection after Daubert hearing forfeited right to challenge expert’s qualifications on appeal). 58 .

2012App. 2010) (defendant must still lodge objection at Daubert hearing to preserve error); Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim.

2003In Nenno v. State, 970 S.W.2d 549, 561 (Tex.Crim.App.1998), overruled on other grounds, State v. Ter-razas, 4 S.W.3d 720 (Tex.Crim.App.1999), the court noted that the Daubert inquiry was “flexible” but the Daubert factors “do not necessarily apply outside the hard science context.” Nenno, 970 S.W.2d at 561 .

2003In Nenno v. State, 970 S.W.2d 549, 561 (Tex.Crim.App.1998), overruled on other grounds, State v. Ter-razas, 4 S.W.3d 720 (Tex.Crim.App.1999), the court noted that the Daubert inquiry was “flexible” but the Daubert factors “do not necessarily apply outside the hard science context.” Nenno, 970 S.W.2d at 561 .

2023See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) (establishing procedure to establish credentials of proposed expert witness); Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim.

2023See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) (establishing procedure to establish credentials of proposed expert witness); Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim.

2015Inc., 158 F.3d 548, 562-63 (11th Cir. 1998) (finding abuse of discretion when court fails to make adequate inquiry into Daubert factors); Guadalupe-Blanco River Auth. v. Kraft, 39 S.W.3d 264, 272 (Tex. App. - Austin 2001) (Patterson, J., dissenting) (″The trial court’s discretion extends to determining which of the Daubert-Robinson-Gammill factors reasonably measure whether an expert’s opinion is reliable, and whether other factors might apply.″), rev’d on other grounds, 77 S.W.3d 805 (Tex. 2002). 1218 Kumho, 526 U.S. at 141, 150 (noting that Daubert factors do not ″necessarily″ apply in every

2004See Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805 (Tex.2002).

2003Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993) (law of thermodynamics is theory properly subject to judicial notice); United States v. Beasley, 102 F.3d 1440, 1448 (8th Cir.1996) (DNA testing was reliable under Daubert and courts could take judicial notice of that); In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717 , 744 n. 10 (3rd Cir. 1994) (if technique has uncontroverted validity, Daubert inquiry can be resolved by judicial notice); United States v. Martinez, 3 F.3d 1191, 1197 (8th Cir.1993), cert. denied, 510 U.S. 1062 , 114 S.Ct.

2003See also Erickson, 574 P.2d at 6-7 . [73] 880 S.W.2d 759 (Tex.Crim.App.1994). [74] Id. at 764-65 . [75] 46 S.W.3d 902, 910 (Tex.Crim.App.2001). [76] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993) (law of thermodynamics is theory properly subject to judicial notice); United States v. Beasley, 102 F.3d 1440, 1448 (8th Cir.1996) (DNA testing was reliable under Daubert and courts could take judicial notice of that); In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717 , 744 n. 10 (3rd Cir. 1994) (if technique has uncontroverted validity, Daube

2016Weatherred, 15 S.W.3d at 542 ; see generally Padilla, 387 F.3d at 1094 (concluding detective’s expert testimony based on his street experience was reliable); United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir.2000) (holding that “Daubert factors (peer review, publication, potential error rate, etc.) simply are not applicable to [expert testimony- on gang membership], whose reliability depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it”).

2016Weatherred, 15 S.W.3d at 542 ; see generally Padilla, 387 F.3d at 1094 (concluding detective’s expert testimony based on his street experience was reliable); United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir.2000) (holding that “Daubert factors (peer review, publication, potential error rate, etc.) simply are not applicable to [expert testimony- on gang membership], whose reliability depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it”).

2016Weatherred, 15 S.W.3d at 542 ; see generally Padilla, 387 F.3d at 1094 (concluding detective’s expert testimony based on his street experience was reliable); United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir.2000) (holding that “Daubert factors (peer review, publication, potential error rate, etc.) simply are not applicable to [expert testimony- on gang membership], whose reliability depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it”).

2016Weatherred, 15 S.W.3d at 542 ; see generally Padilla, 387 F.3d at 1094 (concluding detective’s expert testimony based on his street experience was reliable); United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir.2000) (holding that “Daubert factors (peer review, publication, potential error rate, etc.) simply are not applicable to [expert testimony- on gang membership], whose reliability depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it”).

2015See Somers v. State, 368 S.W.3d 528, 536 (Tex.Crim.App.2012) (validity of underlying scientific theory and validity of technique applying that theory can be determined through judicial notice).

2015See Somers v. State, 368 S.W.3d 528, 536 (Tex.Crim.App.2012) (validity of underlying scientific theory and validity of technique applying that theory can be determined through judicial notice).

2010Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim.

2010Winegarner v. State, 235 S.W.3d 787, 790 (Tex.Crim.App.2007).

2001See United States v. Howard, 117 F.Supp.2d 848 (S.D.Ind.2000) (applying Daubert inquiry to find evidence of fingerprint identification admissible). 2 .

2001See United States v. Howard, 117 F.Supp.2d 848 (S.D.Ind.2000) (applying Daubert inquiry to find evidence of fingerprint identification admissible). 2 .

2008Specifically, appellant contends that his trial counsel provided ineffective assistance based on his failure to object to or to request a Daubert hearing on Taveau’s expert opinion testimony relating to the cause of the motorcycle accident.           Ineffective assistance of counsel claims are reviewed under the two-pronged test articulated in Strickland v. Washington , 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

2008Specifically, appellant contends that his trial counsel provided ineffective assistance based on his failure to object to or to request a Daubert hearing on Taveau’s expert opinion testimony relating to the cause of the motorcycle accident.           Ineffective assistance of counsel claims are reviewed under the two-pronged test articulated in Strickland v. Washington , 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

2015However, it is worth noting that courts frequently cite an expert opinion’s failure to pass multiple Daubert criteria in concluding that the opinion is unreliable. 1242 [*207] 1234 For simplicity, we will generally refer to the factors used in Robinson as the Daubert factors because they are based primarily on Daubert and Daubert II. 1235 Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 802 (Tex. 2006). 1236 Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 388 (5th Cir. 2009) (quoting Black, 171 F.3d at 312 ). 1237 Roman v. W.

2015However, it is worth noting that courts frequently cite an expert opinion’s failure to pass multiple Daubert criteria in concluding that the opinion is unreliable. 1242 [*207] 1234 For simplicity, we will generally refer to the factors used in Robinson as the Daubert factors because they are based primarily on Daubert and Daubert II. 1235 Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 802 (Tex. 2006). 1236 Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 388 (5th Cir. 2009) (quoting Black, 171 F.3d at 312 ). 1237 Roman v. W.

2002Id. at 311 (stating flexibility was not intended "to grant open season on the admission of expert testimony by permitting courts discretionarily to disavow the Daubert factors”). .Indeed, the Court declares “[o]ur role is not to determine reliability at all." But the Supreme Court in Havner stated, "The issue before us, as in most of the previously cited Bendectin cases, is whether the Havners' evidence is scientifically reliable and thus some evidence to support the judgment in their favor.” Havner, 953 S.W.2d at 711 .

2002Id. at 311 (stating flexibility was not intended "to grant open season on the admission of expert testimony by permitting courts discretionarily to disavow the Daubert factors”). .Indeed, the Court declares “[o]ur role is not to determine reliability at all." But the Supreme Court in Havner stated, "The issue before us, as in most of the previously cited Bendectin cases, is whether the Havners' evidence is scientifically reliable and thus some evidence to support the judgment in their favor.” Havner, 953 S.W.2d at 711 .

2023Because we conclude her objections to Dr. Wood’s testimony are preserved to the extent asserted in her pre-trial motion to exclude, we deny her motion for reconsideration as moot. –10– Hughes, 306 S.W.3d 230, 234 (Tex. 2010).

2015Graham, Handbook of Federal Evidence § 702:5, at 234-37 (7th ed. 2012) (noting that although the text of Federal Rule 702 suggests that the trial court must examine each of the three prongs separately, ″the dividing line between the three requirements is often at best incredibly unclear″ and contending that all three requirements focus on one inquiry: whether the expert’s approach is reasonable to draw the conclusion in question). 35 TXI Transp., 306 S.W.3d at 234 (″Expert testimony based on an unreliable foundation or flawed methodology is unreliable and does not satisfy Rule 702’s relevancy

2023See Hartman v. State, 946 S.W.2d 60, 62 (Tex. Crim.

2023See Hartman v. State, 946 S.W.2d 60, 62 (Tex. Crim.

2003Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993) (law of thermodynamics is theory properly subject to judicial notice); United States v. Beasley, 102 F.3d 1440, 1448 (8th Cir.1996) (DNA testing was reliable under Daubert and courts could take judicial notice of that); In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717 , 744 n. 10 (3rd Cir. 1994) (if technique has uncontroverted validity, Daubert inquiry can be resolved by judicial notice); United States v. Martinez, 3 F.3d 1191, 1197 (8th Cir.1993), cert. denied, 510 U.S. 1062 , 114 S.Ct.

2003See also Erickson, 574 P.2d at 6-7 . [73] 880 S.W.2d 759 (Tex.Crim.App.1994). [74] Id. at 764-65 . [75] 46 S.W.3d 902, 910 (Tex.Crim.App.2001). [76] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993) (law of thermodynamics is theory properly subject to judicial notice); United States v. Beasley, 102 F.3d 1440, 1448 (8th Cir.1996) (DNA testing was reliable under Daubert and courts could take judicial notice of that); In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717 , 744 n. 10 (3rd Cir. 1994) (if technique has uncontroverted validity, Daube

2017See Vela, 209 S.W.3d at 138 .

2012App. 2008) (failure to articulate objection after Daubert hearing forfeited right to challenge expert’s qualifications on appeal). 27 252 S.W.3d 571 , 584 n.5 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (holding that objection based on expert’s qualifications did not preserve reliability issue); see Vela, 209 S.W.3d at 131 .

2018In addressing that argument, the court acknowledged FELA’s lower burden of causation but noted that lower burden had “not been generally applied to the admissibility of expert testimony” in a FELA case and that “the Daubert standard of admissibility of expert evidence [in a FELA case] extends to each step in an expert’s analysis all the way through the step that connects the work of the expert to the particular case.”10 Id. at 751 (internal quotation omitted).

2018In addressing that argument, the court acknowledged FELA’s lower burden of causation but noted that lower burden had “not been generally applied to the admissibility of expert testimony” in a FELA case and that “the Daubert standard of admissibility of expert evidence [in a FELA case] extends to each step in an expert’s analysis all the way through the step that connects the work of the expert to the particular case.”10 Id. at 751 (internal quotation omitted).