ACCEPTED 13-15-00167-CV FILED THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS IN THE 13TH COURT OF APPEALS 8/24/2015 7:58:54 PM CORPUS CHRISTI - EDINBURG CECILE FOY GSANGER CLERK 8/24/15 NO. 13-15-00167-CV CECILE FOY GSANGER, CLERK BY DTello IN THE THIRTEENTH COURT OF APPEALS RECEIVED IN CORPUS CHRISTI, TEXAS 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 8/24/2015 7:58:54 PM CECILE FOY GSANGER Clerk HIDALGO COUNTY, TEXAS, Appellant v. DORA HERRERA, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF REYNALDO HERRERA, DECEASED, ERIC HERRERA, EFREN HERRERA, MICHAEL HERRERA, JESSICA HERRERA RODRIGUEZ, CELIA HERRERA, VANESSA HERRERA, VERONICA HERRERA RODRIGUEZ HERRERA AND REY HERRERA, Appellees

APPEAL FROM CAUSE NO. C-1418-12-G 370TH JUDICIAL DISTRICT COURT OF HIDALGO COUNTY, TEXAS HON. NOE GONZALEZ, PRESIDING

APPELLANT’S BRIEF

Preston Henrichson State Bar No. 09477000

LAW OFFICES OF PRESTON HENRICHSON, P.C. 222 W. Cano Edinburg, Texas 78539 (956) 383-3535 (956) 383-3585 (fax) [email protected]

Counsel for Appellant, Hidalgo County, Texas

ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL

Appellant: Trial and Appellate Counsel:

Hidalgo County, Texas Preston Henrichson LAW OFFICES OF PRESTON HENRICHSON, P.C. 222 W. Cano Edinburg, Texas 78539

Appellees: Trial and Appellate Counsel:

Jessica Herrera Rodriguez, Wyatt D. Snider Individually and As SNIDER LAW FIRM, PLLC Representative of the Estate of 3535 Calder Street, Ste. 300 Reynaldo Herrera, Deceased Beaumont, Texas 77706 Dora Herrera Eric Herrera, Librado Keno Vasquez Efren Herrera KENO VASQUEZ LAW OFFICE Michael Herrera 3525 W. Freddy Gonzalez, Ste. C Celia Herrera Edinburg, TX 78539 Vanessa Herrera Veronica Herrera Rodriguez Herrera Rey Herrera

i TABLE OF CONTENTS Table of Contents ............................................................................................ ii Index of Authorities ........................................................................................ v Statement of the Case...................................................................................... x Statement of Jurisdiction............................................................................... xii Statement Regarding Oral Argument ........................................................... xii Issues Presented ............................................................................................ xii Statement of Facts ........................................................................................... 1 Summary of the Argument.............................................................................. 5 Argument......................................................................................................... 6 1. The Trial Court Erred in Denying Defendant Hidalgo County’s Plea to the Jurisdiction because Plaintiffs Have Neither Alleged Nor Proven and Cannot Allege or Prove an Affirmative Waiver of Hidalgo County’s Sovereign Immunity…………………………6 2. Hidalgo County is Not Liable Because Deputy Ortega Did Not Breach the Emergency Standard of Care…………………………… 20 3. Hidalgo County Is Not Liable Because Deputy Ortega Was Acting Within the Scope of His Authority and In Good Faith………27 4. The Report of "Expert" Weinblatt Is Not Based Upon a Reliable Foundation and Must Be Regarded as No Evidence and the Trial Court Erred in Failing to Exclude it From Consideration…….. 34 ii Conclusion and Prayer .................................................................................. 37 Appendix Tab 1 Order Denying Hidalgo County's First and Second Amended Plea to the Jurisdiction (1CR405) Tab 2 Tex. Civ. Prac. & Rem. Code § 101.021 Tab 3 Tex. Civ. Prac. & Rem. Code § 101.055(2) Tab 4 Tex. Transportation Code § 546.001, et seq. Tab 5 Hidalgo County Deputy John Ortega Affidavit (1CR85-87) Tab 6 Maps (1CR88-89) Tab 7 Sgt. Miguel Davila Incident Report (1CR94-96) Tab 8 Sergio Veliz Affidavits (1CR102-103 and 1CR270-272) Tab 9 Armando Veliz Affidavits (1CR98 and 2CR267-269) Tab 10 Margarita Veliz Affidavit (1CR104-105) Tab 11 Claudia Janeth Valdez Villarreal Affidavit (1CR91) Tab 12 Francisco Javier Valdez Villarreal Affidavit (1CR92) Tab 13 City of Dallas v. Hillis, 308 S.W.3d 526, 524-35 (Tex. App.—Dallas 2010, pet. denied) Tab 14 Teague v. City of Dallas, 344 S.W.3d 434 (Tex. App.—Dallas, 2011) Tab 15 Muniz v. Cameron County, 2012 Lexis 3816, WL 1656326 Tab 16 Lopez v. Escobar. No. 04-13-00151-CV, 2013 Tex. App. LEXIS 10846, iii 2013 WL 4679062 (Tex. App.—San Antonio Aug. 28, 2013, no pet.) (mem. op.) Tab 17 Weinblatt Expert Report Tab 18 52 Hous. L. Rev. ^[1] (2014) Tab 19 Hidalgo County’s Motion to Exclude Richard Weinblatt’s Report Tab 20 Hidalgo County’s Letter Brief to the Court iv INDEX OF AUTHORITIES Cases Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991) ..................................................................... 36 Barabin v. AstenJohnson,Inc., 700 F.3d 428, 432 (9th Cir. 2012), on reh’g en banc sub nom ..................... 34 Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) ..................................................................... 7 Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) ................................................................. 36 Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003) ...................................................7, 8, 11, 12 Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998) ................................................................. 12 City of Amarillo v. Martin, 971 S.W.2d 426, 431 (Tex. 1998) ................................................................. 21 City of Dallas v. Hillis, 308 S.W.3d 526, 524-35 (Tex. App.—Dallas 2010, pet. denied)........................................12, 13, 17, 19 City of El Paso v. Hernandez, 16 S.W.3d 409, 415 (Tex. App. El Paso 2000) ............................................. 10 City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex. 1993, per curiam) ....................................8, 28, 33 City of Lancaster v. Chambers, 883 S.W.2d 650, 653, 37 Tex. Sup. Ct. J. 980 (Tex. 1994) 28, 29, 31, 33 , 36 City of Pasadena v. Kuhn, 260 S.W.3d 93, 99 (Tex. App.—Houston [1st Dist.] 2008, no pet.) ....... 21, 26 v City of Pharr v. Aguillon, No. 13-09-00011-CV, 2010 WL 1138449 *2 (Tex. App.—Corpus Christi March 25, 2010, no pet.) ............................... 6, 7 City of San Angelo Fire Dept. v. Hudson, 179 S.W.3d 695, 701-702 (Tex. App.—Austin 2005, no pet.) ..................... 26 City of San Antonio v. Hartman, 201 S.W.3d 667, 672 n.19 (Tex. 2006) ......................................................... 21 City of San Antonio v. Ytuarte, 2005 Tex. App. LEXIS 10824, *7 (Tex. App. San Antonio Sept. 14, 2005) ....................................................... 28 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993) .............................................................................. 34 Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457 (9th Cir. 2014) ......................................................................... 34 Hamshire-Fannett Indep. Sch. Dist. v. LeLeaux, 835 S.W.2d 49, 51 (Tex. 1992) .................................................................9, 11 Harless v. Niles, 100 S.W.3d 390, 397 (Tex. App.—San Antonio 2002, no pet.) ................... 29 Harris Cnty. v. Gibbons, 150 S.W.3d 877, 886 (Tex. App.—Houston [14th Dist.] 2004, no pet.) ......................................... 28 Lopez v. Escobar, No. 04-13-00151-CV, 2013 Tex. App. LEXIS 10846, 2013 WL 4679062, at *5 ............................................................................... 13 Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998) ................................................................... 7 Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex. 1984) ................................................................. 36 vi Mount Pleasant Indep. Sch Dist. v. Estate of Lindburg, 766 S.W.2d 208, 211 (Tex. 1989) ................................................................. 11 Muniz v. Cameron County, 2012 Lexis 3816, WL 1656326 ..................................................................... 12 Pakdimounivong v. City of Arlington, 219 S.W.3d 401, 411-12 (Tex.App.—Fort Worth 2006, pet. denied) ................................................... 26 Ramos v. City of San Antonio, 974 S.W.2d 112, 116-17 (Tex. App.—San Antonio 1998, no pet.) ...................................................... 11 Russell v. Whirlpool Corp., 702 F.3d 450, 456 (8th Cir. 2012) ................................................................. 34 Smith v. Janda, 126 S.W.3d 543, 545-46 (Tex. App.—San Antonio 2003, no pet.) .............. 26 Southland Lloyds Ins. Co. v. Cantu, 399 S.W.3d 558, 563 (Tex. App.—San Antonio 2011, pet denied) ............. 34 State ex rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 326 (Tex. 2002) ..................................................................... 8 Storagecraft Tech. Corp. v. Kirby, 744 F.3d 1183, 1190 (10th Cir. 2014) ........................................................... 34 Teague v. City of Dallas, 344 S.W.3d 434 (Tex. App.—Dallas, 2011) ...........................................13, 17 Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993) ................................................................... 6 Texas Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001) ..................................................................... 7 Texas Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 224-225 (Tex. 2004) ........................................................ 7, 8 vii Tex. Dep’t of Pub. Safety v. Sparks, 347 S.W.3d 834, 838 (Tex.App.—Corpus Christi 2011) .............................. 20 Texas Natural Resource Conservation Com'n v. White, 46 S.W.3d 864, 869 (Tex. 2001) ................................................................... 11 Travis v. City of Mesquite, 830 S.W.2d 94 (Tex. 1992) .....................................................................18, 19 TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 234 (Tex. 2010) ................................................................. 35 Univ. of Houston v. Clark 38 S.W.3d 578, 580 (Tex. 2000) ............................................................28, 33 Wadewitz v. Montgomery, 951 S.W.2d 464, 466-67, 40 Tex. Sup. Ct. J. 894 (Tex. 1997) 30, 31, 33, 36, 37 Statutes & Rules Tex. Civ. Prac. & Rem. Code §§ 101.001-101.109 ................................................... 8 Tex. Civ. Prac. & Rem. Code § 101.001(3)(B) ......................................................... 7 Tex. Civ. Prac. & Rem. Code §101.021 ....................................................8, 9, 10, 11 Tex. Civ. Prac. & Rem. Code §101.021(1)....................................................8, 10, 11 Tex. Civ. Prac. & Rem. Code § 101.025(a) ............................................................... 8 Tex. Civ. Prac. & Rem. Code ...................................................................8, 9, 20, 27 Tex. Transp. Code § 546.001 ................................................................................... 10 Tex. Transp. Code § 546.002 .................................................................................. 10 Tex. Transp. Code § 546.003 .................................................................................. 10 Tex. Transp. Code § 546.005 .......................................................................10, 20, 21 viii Other Sources 52 Hous. L. Rev. ^[1] (2014)........................................................................................ 34 ix STATEMENT OF THE CASE Nature of the Case: Plaintiffs filed a wrongful death and bystander claim against the City of Pharr and Hidalgo County after automobile collision between decedent and third party suspect fleeing to avoid a traffic stop in Pharr and after refusing to stop for Pharr police or Hidalgo County Sheriff’s Deputy. Pharr and County units were not involved in or nearby at the time of the collision. This is an interlocutory appeal of the denial of a Plea to the Jurisdiction filed by Hidalgo County as a governmental entity. The legal question at issue is whether Hidalgo County retains governmental immunity from Plaintiffs’ claims for personal injuries and wrongful death. Defendant Hidalgo County contends that Plaintiffs have not pleaded and have not filed competent prima facie evidence of a claim which overcomes governmental immunity or which fits within a waiver exception thereto. In short, the trial Court has no jurisdiction over Plaintiffs’ claim, as pleaded and proved herein. Course of Proceedings: Plaintiffs filed suit against Hidalgo County, Texas and other governmental entities on May 23, 2012. 1CR201. Defendant Hidalgo County, Texas answered on July 2, 2012. 1CR36. Defendant County filed a First Amended Answer on September 18, 2102. 1CR44. Plaintiffs filed a First Amended Petition on February 22, 2105. 1CR52, which Defendant County answered on September 10, 2013. 1CR127. Defendant County filed a First Amended Plea to the Jurisdiction and Brief on July 18, 2013 (1CR69) and a Second Amended Plea to 1 Citations to the Clerk’s Record will be to the record filed on April 13, 2015 as follows: [Vol.]CR[Page]. Citations to the Supplemental Clerk’s Record will be to the record filed on August 6, 2015 as follows: [Vol.]CR[Page]. An example of a citation to the video recordings filed as part of the Supplemental Clerk’s Record on or about August 7, 2015 is as follows: 2CR J. Lopez Video at [time stamp]. Citations to the Reporter’s Record will be as follows: [Vol.]RR[Page]. Citations to the Appendix will be as follows: App.Tab.[No.]. x the Jurisdiction and Brief on July 29, 2013. 1CR112. Plaintiffs filed a Response to Defendant County’s First and Second Amended Plea to the Jurisdiction on September 24, 2013, relying on report of their expert witness, Dr. Richard Weinblatt. 1CR181. On September 26, 2013, the Court heard Defendant County’s Second amended Plea to the Jurisdiction. 2RR1. On March 31, 2014, Defendant County filed a Reply to Plaintiffs’ Response to its First and Second Amended Plea to the Jurisdiction. 1CR248. On May 5, 2014, Defendant County filed a Motion to Exclude the Report of Plaintiffs’ expert, Dr. Richard Weinblatt. 1CR273. On May 20, 2014, Plaintiffs filed a Response to Defendant County’s Motion to Exclude. 1CR285. On May 21, 2014, Hidalgo County filed an First Amended Reply to Plaintiffs’ Response to Its First And Second Amended Plea to the Jurisdiction. 1CR371. On May 21, 2014, the Court heard Defendant County’s Second Amended Plea to the Jurisdiction and its Motion to Exclude Plaintiffs’ Expert Report. 3RR1. Thereafter, on the same date, Defendant County filed a Letter Brief to the Court. 1CR377. On March 13, 2015, the Court denied Defendant County’s First and Second Amended Plea to the Jurisdiction. 1CR405. Defendant County filed its Notice of Appeal on March 31, 2015. 1CR406. Trial Court’s Disposition: On March 13, 2015, the trial court denied Defendant County’s Plea to the Jurisdiction. 1CR405. The trial court has never ruled on Defendant County’s Motion to Exclude Plaintiffs’ Expert Report. xi STATEMENT OF JURISDICTION Defendant Hidalgo County challenges the jurisdiction of the trial court as set out herein. This court has appellate jurisdiction over this matter pursuant to §51.014(a)(8) Tex. Civ. Prac. & Rem. Code, which allows interlocutory appeals from the denial of a plea to the jurisdiction by a governmental unit. STATEMENT REGARDING ORAL ARGUMENT Appellants request oral argument in order to elaborate on the issues presented and answer questions of the Court, based on the complexity of the facts. The record is somewhat complicated and oral argument would assist the Court in focusing on the facts and relevant issues. ISSUES PRESENTED 1. The Trial Court Erred in Denying Defendant Hidalgo County’s Plea to the Jurisdiction because Plaintiffs Have Neither Alleged Nor Proven and Cannot Allege or Prove an Affirmative Waiver of Hidalgo County’s Sovereign Immunity. ^[2]. Hidalgo County is Not Liable Because Deputy Ortega Did Not Breach the Emergency Standard of Care. ^[3]. Hidalgo County Is Not Liable Because Deputy Ortega Was Acting Within the Scope of His Authority and In Good Faith. ^[4]. The Report of "Expert" Weinblatt Is Not Based Upon a Reliable Foundation and Must Be Regarded as No Evidence. xii STATEMENT OF FACTS Plaintiffs filed a negligence action under the Texas Tort Claims Act2 against Hidalgo County, Texas (and other law enforcement agencies), alleging damages arising from a fatal collision between vehicles being driven by Rafael Carro Quintero and Plaintiffs’ deceased family member, Reynaldo Herrera. 1CR137-141, 143-147. Quintero was the driver of a black Ford Expedition who was fleeing from a pursuit through multiple jurisdictions initiated by a City of Pharr Police Officer. CR139. At approximately 6:00 p.m. on May 26, 2010, City of Pharr Police Officer Emilio Gonzalez had attempted to stop the black Expedition being driven by Quintero on a traffic violation. 1CR138. Officer Gonzalez reported to his dispatcher that the vehicle had come out of a high drug traffic area, but did not tell his dispatcher that he was pursuing the vehicle because of a window tint violation. 1CR138; 2CR43, 45. At a high rate of speed, Quintero fled from Officer Gonzalez, who pursued him eastbound on Military Road and through the City of Alamo. 1CR139. During the pursuit, Officer Gonzalez radioed for assistance from other law enforcement agencies, including the Hidalgo County Sheriff’s Department. 1CR139, 140. 2 Plaintiffs erroneously plead that their causes of action arise under Tex. Civ. Prac. & Rem. Code § 101.102. 1CR137. This Section of the Tort Claims Act only sets out the pleading and service requirements for the commencement of a suit.

At approximately 6:16 p.m., Hidalgo County Senior Deputy John Ortega

was parked west of the intersection of Tower and Canton Roads in Edinburg, Hidalgo County. He heard the Hidalgo County Sheriff’s Office communications dispatcher radio that Pharr Police Department was in pursuit of a black Ford

Expedition travelling northbound from F.M. 495 on Tower Road and that it was possibly transporting narcotics. 1CR85; App.Tab.^[5]. Sgt. Miguel Davila of Hidalgo

County Sheriff’s Office also heard the Sheriff’s Office dispatcher relay the City of Pharr request for assistance and that the vehicle was transporting narcotics. 1CR95.

Deputy Ortega then repositioned and parked his unit facing south, on Tower Road south of Canton Road. He observed that at a distance south on Tower Road, red and blue emergency lights and wig wags of the vehicles involved in the pursuit were visible. 1CR85; App.Tab.^[5]. He then observed the black Expedition with

Mexico license plates traveling north on Tower Road at a very high rate of speed.

1CR85-86; App.Tab.^[5]. He activated his own emergency lights and siren to identify

himself to the fleeing vehicle as a Hidalgo County Sheriff’s Office unit and Sheriff’s deputy. The fleeing vehicle continued past him, traveling north at a very high rate of speed. 1CR86; App. Tab.^[5]. Sometime thereafter, Pharr Police Officer

Gonzalez disengaged the pursuit at the intersection of Tower and Trenton Roads, but failed to radio to advise other agencies to disengage. 1CR140, 1CR96;

App.Tab.7.

After making a u-turn at Canton Road, Deputy Ortega observed the fleeing vehicle already passing Iowa Road, one half-mile north of Canton Road. 1CR85-86;

1CR88; App.Tab.^[5]. By the time Deputy Ortega reached Iowa Road, the Expedition had turned westbound onto Curve Road, 7/10ths of a mile north of Deputy Ortega’s location. 1CR86; App.Tab.^[5]; 1CR89; App.Tab.6. When Deputy

Ortega reached the intersection of Tower Road and Curve Road he made a complete stop. He then turned and headed west towards Alamo Road; he had no sight of the vehicle but followed a cloud of dust. 1CR86; App.Tab.^[5]. Curve Road is a dirt road. 1CR96 App.Tab.7. Concerned that the dust prevented him from

being able to see oncoming traffic and because of the rough road surface and potholes, Deputy Ortega drove slowly from Tower Road to Alamo Road on Curve

Road. Demonstrating a further concern for the safety of others, he made a

complete stop where Curve Road intersects with Alamo Road to observe north and south bound traffic. There, he observed a white Hidalgo County Sheriff’s Office

Expedition approach from the south. 1CR86; App.Tab.^[5]. As Deputy Javier Lopez

(in the white Expedition) drove north on Alamo Road, he had heard Deputy Ortega report that the black Expedition was traveling toward Alamo Road on Curve Road.

1CR96; App.Tab.7. As he drove toward the intersection of Curve Road and Alamo

Road, Deputy Lopez did not see the black Expedition cross the intersection, but saw a dust cloud at the intersection. Then, Deputy Lopez observed Deputy Ortega cautiously cross Alamo Road. 1CR96; App.Tab.7. 2CR J. Lopez Video at 2:01.

After crossing the intersection, Deputy Ortega continued to travel westbound on

Curve Road and Deputy Javier Lopez turned onto Curve Road and followed him.

1CR86; App.Tab.^[5]. 2CR J. Lopez Video at 2:01. Neither Deputy Ortega nor Deputy Lopez had sight of the black Expedition as they proceeded west on Curve

Road until they arrived at the intersection of Curve Road and Cesar Chavez Road and saw that it had been involved in a major traffic accident. 1CR86; App.Tab.^[5].

The two Hidalgo County Sheriff’s Office units driven by Deputy Ortega and Deputy Lopez arrived at the scene of the collision two to three minutes after it occurred. 1CR98; App.Tab.9; 1CR102-103; App.Tab.8; 1CR267-272; App.Tabs.8, 9.

Thus, Deputy Ortega was not directly engaged in the vehicle pursuit after he lost sight of the black Expedition when it turned onto Curve Road. 1CR96. When

Sgt. Miguel Davila, Deputy Ortega’s supervisor reviewed Deputy Ortega’s dashcam video he determined that it had not recorded any data that day. The last recorded data was the evening before on May 25, 2010 at 8:53 p.m. 1CR96;

App.Tab.7.

The driver of the fleeing black Expedition was transporting persons who had crossed the river from Mexico into the United States that afternoon. 1CR91; App.Tab. 11. Following the collision several persons ran from the black

Expedition. Six persons were detained following the collision. 1CR95; App.Tab.7.

The front seat passenger being transported in the black Expedition stated that after the vehicle entered the dirt road, she could no longer see police lights or hear sirens. 1CR91; App.Tab 11. A passenger in the middle of the second row of seats

(who had been told to keep his head down) stated that sometime prior to the collision he could no longer hear the sirens. 1CR92; App.Tab.12.

SUMMARY OF THE ARGUMENT

Plaintiffs have not as a matter of law pleaded a cause of action in this case or presented evidence which overcomes Hidalgo County’s sovereign immunity under the Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code 101.021(2), because there is no use of a motor vehicle by Hidalgo County that caused the collision between the third party and the Plaintiff’s vehicle in this case. The only evidence

on the issue of causation is that the County vehicle was 2-3 minutes away when the collision occurred and was not within sight or hearing. Accordingly, there was

such a physical and temporal separation between the County vehicle and the collision in question, that no causal nexus exists as a matter of law.

Further, the County Deputy involved was acting under an “emergency” and clearly did not breach the standard applicable to such situation; he was not reckless; and the only evidence of his conduct demonstrates care and caution, as opposed to the “conscious indifference” and “reckless disregard” required for liability under the law.

Additionally, Deputy Ortega was acting in good faith, within the scope of his authority, and was acting well within his discretionary immunity at all times.

No competent evidence exists that no reasonably prudent officer under the same or similar circumstances could have believed that Deputy Ortega should have

responded differently and should not have followed the fleeing suspect in the manner in which he did. The only evidence offered by the Plaintiffs is that of the police procedure “expert” who is not qualified to render opinions on causation or accident reconstruction, and whose opinions relative to Deputy Ortega are conclusory, unreliable and unsupported by a factual foundation.

Consequently, the trial court erred in its denial of the Plea to the Jurisdiction and the case should be reversed and rendered in favor of Hidalgo County.

ARGUMENT

1. The Trial Court Erred in Denying Defendant Hidalgo County’s Plea to the Jurisdiction because Plaintiffs Have Neither Alleged Nor Proven and Cannot Allege or Prove an Affirmative Waiver of Hidalgo County’s Sovereign Immunity.

A plaintiff bears the burden of alleging facts affirmatively showing that the trial court has subject matter jurisdiction. City of Pharr v. Aguillon, No. 13-09-

00011-CV, 2010 WL 1138449 *2 (Tex. App.—Corpus Christi March 25, 2010, no pet.)(mem. op., not designated for publication) citing Texas Ass’n of Business v.

Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); Dallas Area Rapid

Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003); see also Texas Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001).

Whether a trial court has jurisdiction is a question of law. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Sovereign immunity deprives a

trial court of subject matter jurisdiction for lawsuits in which the state or certain governmental units have been sued, unless the Tort Claims Act expressly waives immunity. Texas Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 224-

225 (Tex. 2004).

To determine if a plaintiff has met his burden to prove subject matter jurisdiction and a waiver of sovereign immunity, the Court may consider the facts alleged by the plaintiff and must consider evidence in the record when necessary to

resolve the jurisdictional issue. City of Pharr, 2010 WL 1138449 *2, citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); see also Miranda at

227).

Hidalgo County is a political subdivision and is therefore a governmental unit of the State of Texas. See, Tex. Civ. Prac. & Rem. Code § 101.001(3)(B).

Sovereign immunity includes two distinct principles, immunity from suit and immunity from liability. Miranda at 224. Immunity from liability is an affirmative defense and immunity from suit deprives the court of subject matter jurisdiction.

Id.

The Texas Tort Claims Act provides a limited waiver of sovereign immunity. Id.; Tex. Civ. Prac. & Rem. Code §§ 101.001-101.109. The Act creates a unique statutory scheme in which the two immunities are co-extensive:

“Sovereign immunity to suit is waived and abolished to the extent of liability created by this chapter.” Miranda at 224, citing Tex. Civ. Prac. & Rem. Code §

101.025(a); State ex rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82

S.W.3d 322, 326 (Tex. 2002). Accordingly, Hidalgo County is immune from suit unless the Tort Claims Act expressly waives immunity.

Hidalgo County’s sovereign immunity is not expressly waived under either

or all of the sections of the Tort Claims Act relevant to this case. Tex. Civ. Prac. & Rem. Code §101.021 (because there is no use of a motor vehicle); and Tex. Civ. Prac. & Rem. Code §101.055(2) (emergency response or situation). Further, Hidalgo County’s immunity is preserved under the official immunity which

protects Deputy Ortega. Tex. Civ. Prac. & Rem. Code §101.021(1). See, City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex. 1993, per curiam).

In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of immunity Whitley at 542. Plaintiffs have failed to plead a waiver of the Texas Tort Claims Act against Hidalgo County under Section 101.021, although they did plead a waiver under Section 101.055(2) (emergency response or situation). 1CR142. Plaintiffs have also asserted that the employees, officers and agents of Hidalgo County are not entitled to official immunity. 1CR143.

Section 101.021 of the Texas Tort Claims Act provides the following limited waiver of sovereign immunity, stating that a governmental unit is liable (and may be sued) for:

(1) Property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within the scope of his employment if:

(A) The property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

(B) The employee would be personally liable to the claimant according to Texas law; or (2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to claimant according to Texas law.

For immunity to be waived under this section, the government employee must be the person who operated or used the motor vehicle that caused the injury.

Hamshire-Fannett Indep. Sch. Dist. v. LeLeaux, 835 S.W.2d 49, 51 (Tex. 1992);

“This requirement is consistent with the clear intent of the Act that the waiver of sovereign immunity be limited.” LeLeaux, 835 S.W.2d at 51.

Rather than the negligence standard of care set out in Section 101.021, Plaintiffs cite to the higher duty of care owed by the operator of an authorized emergency vehicle under Section 546.005 of the Texas Transportation Code to support their claims.

Sections 546.001, et. seq. of the Code provide, in part, that under limited circumstances, the operator of an authorized emergency vehicle may disregard certain traffic laws when responding to an emergency call, or when pursuing an

actual or suspected violator of the law. Tex. Transp. Code §§ 546.001, 546.002, 546.003. Section 546.005 of the Code sets out the duty of care owed under this chapter:

This chapter does not relieve the operator of an authorized emergency vehicle from: (1) the duty to operate the vehicle with appropriate regard for the safety of all persons; or (2) the consequences of reckless disregard for the safety of others.

Tex. Transp. Code § 546.005.

However, before Plaintiffs can avail themselves of this provision of the Texas Transportation Code, they must first establish the waiver of Hidalgo

County’s sovereign immunity under Tex. Civ. Prac. & Rem. Code § 101.021(1).

“A claim arising from the action of a governmental unit's employee while responding to an emergency call is subject to Section 101.021.”

City of El Paso v. Hernandez, 16 S.W.3d 409, 415 (Tex. App. El Paso 2000).

Accordingly, Plaintiffs must first prove that the subject collision and death of the decedent were proximately caused by and “arise[s] from the use of a motor- driven vehicle.” Tex. Civ. Prac. & Rem. Code § 101.021(1). Plaintiffs have not done this and cannot do so, because they cannot establish the causal nexus.

For immunity to be waived under section 101.021, the government employee must be the person who operated or used the motor vehicle that caused the injury. LeLeaux, 835 S.W.2d at 51; Ramos v. City of San Antonio, 974 S.W.2d

112, 116-17 (Tex. App.—San Antonio 1998, no pet.)[emphasis added](holding

"immunity is only waived where the governmental employee, not a third party, is the operator of the motor vehicle causing the injury"). In this context, "operation"

means "a doing or performing of a practical work" and "use" means "to put or bring into action or service; to employ for or apply to a given purpose." LeLeaux

835 S.W.2d at 51 (quoting Mount Pleasant Indep. Sch Dist. v. Estate of Lindburg, 766 S.W.2d 208, 211 (Tex. 1989)). The phrase "arises from," as used in section

101.021, requires a nexus between the operation or use of the motor vehicle and the plaintiff's injuries. Whitley, 104 S.W.3d at 543; LeLeaux, 835 S.W.2d at 51.

The nexus must be more than mere involvement of the motor vehicle; the government employee's operation or use of the vehicle "must have actually caused the injury." Whitley, 104 S.W.3d at 543 (quoting Texas Natural Resource

Conservation Com'n v. White, 46 S.W.3d 864, 869 (Tex. 2001)). "[T]he operation or use of a motor vehicle 'does not cause injury if it does no more than furnish the condition that makes the injury possible.'" Whitley, 104 S.W.3d at 543 (quoting

Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998)).

In a case factually similar to the case at hand, the Thirteenth Court of Appeals held that a “pursuit alone did not give rise to a waiver of immunity under

the [Tort Claims] Act.” Muniz v. Cameron County, 2012 Lexis 3816, WL 1656326, citing City of Dallas v. Hillis, 308 S.W.3d 526, 524-35 (Tex. App.—Dallas 2010, pet. denied). In Muniz, the family of a deceased motorist brought a wrongful death claim against Cameron County when their family member was killed when a motorist who was being pursued by a Cameron County Sheriff’s deputy veered into the vehicle decedent was driving.

In City of Dallas v. Hillis, a Dallas police officer pursued a motorcyclist with

a passenger for a traffic violation. Subsequently the motorcyclist lost control of the motorcycle, was involved in an accident and he and his passenger died. Hillis, supra. The Hillis plaintiffs asserted that the City was liable for initiating and continuing a high speed chase. The City of Dallas had a no pursuit policy in place and the City of Dallas officer pursued Hillis at speeds of over 100 m.p.h. in an area governed by a 45 m.p.h. speed limit. “[a]t the moment of the accident, it still took

[the officer] 10 seconds to reach the approximate area where Hillis lost control of his motorcycle.” Hillis, at 534 [emphasis added]. Concluding that “the claimants could not meet the applicable Texas causation standard, because the police officer

did not hit the motorcycle with his patrol car and did not physically force the motorcycle off the road or into another vehicle or object.” Id. [emphasis added], the Dallas Court of Appeals held that there was no use of a motor vehicle that caused the accident and therefore immunity was not waived.

The Dallas Court of Appeals employed similar reasoning in a 2011 case

involving a pursuit by Dallas Police Department and Dallas Sheriff’s Department, in which the closest pursuing vehicle was 70 yards from the fleeing vehicle, the Dallas Court of Appeals found the county and city’s operation of their vehicles

“too physically and temporally separated” from the conduct of the fleeing driver to constitute a cause of plaintiff’s injuries. Teague v. City of Dallas, 344 S.W.3d

434 (Tex. App.—Dallas, 2011).

The San Antonio Court of Appeals followed the Hillis court's reasoning in Lopez v. Escobar. No. 04-13-00151-CV, 2013 Tex. App. LEXIS 10846, 2013 WL

4679062, at *5 (Tex. App.—San Antonio Aug. 28, 2013, no pet.) (mem. op.). In Lopez, police officers signaled a truck to stop in a highway median, but the truck driver instead darted into oncoming traffic and collided with Escobar, the plaintiff.

Id., at *2. In holding that the accident did not arise from the officer's operation or use of a motor vehicle, the San Antonio Court of Appeals held that "pursuing" the truck driver into the median did not proximately cause Escobar's injuries. Id., at *6.

Rather, the suspect driver caused them. Id.

In the case at hand, the Plaintiffs have not established a causal nexus with their injuries. In contrast, Hidalgo County has provided voluminous competent and uncontradicted evidence from independent witnesses which clearly demonstrate that the closest Hidalgo County deputy to the fleeing vehicle (Ortega) was approximately 2-3 minutes behind the fleeing vehicle, and was out of view and earshot of the undocumented immigrant passengers prior to the collision.

Two witnesses testify that they saw Hidalgo County Sheriff’s deputies arrive at the scene of the collision about two to three minutes after it occurred. 1CR102-

103; 1CR270-272; App.Tab.9; 1CR98; 1CR267-269; App.Tab.9.

Notably, Sergio Veliz, an eyewitness to the collision itself, states that he was driving eastbound on Curve Road about a half mile from the intersection with

Cesar Chavez Road, when he noticed the black Expedition speeding toward him.

He did not hear sirens or see an official car following the Expedition. The Expedition passed him and he saw the collision in his rear view mirror. He stopped his vehicle and got off. About three minutes later he saw the Hidalgo County

Sheriff’s Office patrol units approaching the intersection, driving westbound on

Curve Road. 1CR102-103; 1CR270-272; App.Tab.8.

Sergio Veliz’s brother, Armando Veliz states that he was in his shop at the corner of Curve and Cesar Chavez Roads, when he heard a loud noise. He went outside to Curve Road and saw that a black Ford Expedition and a red car had

crashed. He saw five men and one woman get out of the Expedition and that two of the men from the Expedition had been ejected. One of the men tried getting into his house, but his wife closed the door. After two to three minutes he returned to his shop and was standing outside it when he saw the black Ford Expedition from the County arrive. 1CR98; 1CR267-269; App.Tab.9.

In her affidavit, Margarita Veliz describes several activities undertaken by her from the time that she heard the crash to the time she noticed the arrival of law enforcement officers on the scene. Ms Veliz states that she was at home at 4210

Curve Road, Edinburg, Texas on the computer when she heard a loud noise outside. She and her son ran out through the front door and noticed a maroon car with a man hanging out of the door. She remembers saying “Someone call 9-1-1.”

She then noticed that her daughter was outside and told her daughter to go inside

and call 9-1-1. Ms. Veliz went back inside the house with her daughter to look for the phone, but they were unable to find it. Ms. Veliz decided to go to her ex- husband’s machine shop behind the house to use the phone. However, when she opened her back door she found an injured man on her doorstep asking to come in.

She tried to close the door on him and he pushed back, trying to get in. She pushed against him and was able to close and lock the door. She went back out through

the front door and was walking around the side of her house, when she saw the same man lying on the ground. At that time, she noticed that “several cop cars” had arrived and a law enforcement officer was standing next to the man on the ground.

1CR104-105. App.Tab.10. Had the vehicles driven by the Hidalgo County

deputies been visible or within audible range when Ms. Veliz first went outside, she would not have felt a need to tell anyone to call 9-1-1. Ms. Veliz’s affidavit confirms the reasonableness of her husband’s and brother-in-law’s estimates that the Hidalgo County deputies arrived at the scene of the crash about two to three minutes after the fact.

The physical and temporal separation between the fleeing vehicle and Deputy Ortega’s unit in this case is further supported by the statements of two of the immigrants who were being transported in the black Expedition, as taken by the investigating agency, Texas Department of Public Safety. Claudia Janeth

Valdez Villarreal, who had been seated in the front passenger seat, described the pursuit initiated by the City of Pharr police officer and stated that after the driver crossed onto a dirt road and there was a lot of dust, he seemed to lose the police officer. She no longer saw the police lights or [heard] the siren. Shortly after that

she saw a stop sign, the driver slowed, but continued through the intersection and crashed into another vehicle. 1CR91. App.Tab.11. Ms. Valdez’s brother, Francisco Javier Valdez Villarreal was in the middle of the second row of seats. He had been told to keep his head down. He could hear the police sirens behind them.

He stated that they were chased by the police for what seemed like thirty minutes, then he didn’t hear the police any more, but the driver continued to drive fast. He

heard someone in the vehicle yell at the driver to let [the passengers] out, but the driver did not respond. Shortly after that Mr. Valdez heard the screeching of tires and they crashed with another vehicle. 1CR92; App.Tab.12 [emphasis added].

Even if the Veliz brothers’ estimates of the Sheriff’s Office units arriving two to three minutes after the collision are slightly overestimated, it is clear that sufficient time had passed between the collision and the arrival of the Hidalgo

County deputies to establish a physical and temporal separation sufficient to support a lack of causal nexus as applied by our Texas courts, particularly as applied in Hillis and Teague.

It is undisputed that the vehicle which collided with the car driven by the decedent, Reynaldo Herrera was the black Expedition driven by Quintero, which was the subject of the pursuit initiated by the City of Pharr, Texas. It is also undisputed that no deputy from Hidalgo County collided with Mr. Herrera’s vehicle. 1CR138-139; 1CR85-87; App.Tab.^[5]; 1CR115-116. Neither did any

Hidalgo County deputy “physically force” Quintero’s vehicle “off the road or into another vehicle or object.” Deputy Ortega was thrust into a situation over which he had no control when Quintero’s vehicle entered his jurisdiction at a high rate of speed and blew past him. By the time Deputy Ortega became involved, events had already been long set in motion. Even when the occupants of Quintero’s vehicle

believed that the police were no longer pursuing and begged Quintero to stop and let them out, Quintero chose to speed on toward the intersection of Curve and Cesar Chavez Roads and into the path of Reynaldo Herrera’s vehicle. Quintero’s actions were the sole cause of Reynaldo Herrera’s death. Plaintiffs have offered no contradictory evidence.

Accordingly, Plaintiffs have not established and cannot establish the required causal nexus between the death of Reynaldo Herrera and the actions of any Hidalgo County deputy and cannot defeat Hidalgo County’s sovereign immunity. Therefore, this Court should dismiss Plaintiffs claims for lack of subject matter jurisdiction.

In the case at hand, Plaintiffs’ reliance on the plurality opinion in Travis v. City of Mesquite, 830 S.W.2d 94 (Tex. 1992) is misguided. In Travis two off-duty police officers pursued a fleeing suspect vehicle down a one-way highway access road. The fleeing driver then crashed head on into another vehicle killing one person and injuring others. Analyzing causation, the Travis court held that “[t]here was summary judgment evidence that the conduct of the police officers was a cause in fact of the accident in question, and of the injuries for which the plaintiffs seek recovery.” Id., at 98.

Like Plaintiffs herein, the Hillis plaintiffs relied on the holdings of the Travis court. Hillis, 308 S.W.3d at 535. However, the Hillis court found Travis to be distinguishable, because “the defendants in Travis did not argue immunity as a defense because the Travis court analyzed the case only as a general proximate- cause case, not an immunity case.” Travis, at 99; Hillis, at 535 [emphasis added].

“Thus, the Travis court considered only the broad question of whether general police negligence caused the accident in question; it did not consider the narrower

issue of whether the use of a police car was the actual cause of the accident in question. By contrast, this case squarely presents the question of what constitutes a sufficient causal nexus between the use of a police vehicle and a subsequent accident.” Hillis, at 535.

Like the City of Dallas in Hillis, Hidalgo County appeals the denial of its plea to the jurisdiction. This case presents the same question— what constitutes a sufficient causal nexus between the use of a police vehicle and a subsequent

accident—as does Hillis. When the Hillis causal nexus analysis is applied to the facts of this case, it is clear that Plaintiffs’ claims do not arise out of Hidalgo

County’s use of a Sheriff’s department vehicle and thus Hidalgo County’s immunity has not been waived.

2. Hidalgo County is Not Liable Because Deputy Ortega Did Not Breach the Emergency Standard of Care

A. The Standard of Care in an Emergency Action

Plaintiffs have pled that the Emergency Exception to the Texas Tort Claims

Act does not apply. This is a specific exception to the general waiver of sovereign immunity involving automobile accidents. Tex. Civ. Prac. & Rem. Code §

101.055(2). Hidalgo County asserts that this exception bars Plaintiffs’ suit as a matter of law.

This section provides:

This chapter does not apply to a claim arising … from the action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to the emergency action, or in the absence of such law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others.

Tex. Civ. Prac. & Rem. Code § 101.055(2).

The law applicable to emergency action in this context is section 546.005 of the Texas Transportation Code. Tex. Dep’t of Pub. Safety v. Sparks, 347 S.W.3d

834, 838 (Tex.App.—Corpus Christi 2011). This section, upon which Plaintiffs rely, provides that the driver of an emergency vehicle must drive with “appropriate

regard for the safety of all persons,” and he is not relieved of “the consequences of reckless disregard for the safety of others.” Tex. Transp. Code § 546.005. The Texas Supreme Court has held that this provision “imposes a duty to drive with due regard for others by avoiding negligent behavior, but it only imposes liability for reckless conduct.” City of Amarillo v. Martin, 971 S.W.2d 426, 431 (Tex.

1998)(interpreting the uncodified predecessor of Section 546.005). This requires more than a momentary judgment lapse—it requires a showing that the driver

committed an act he knew or should have known posed a high degree of risk of serious injury. Id., at 430; City of Pasadena v. Kuhn, 260 S.W.3d 93, 99 (Tex.

App.—Houston [1st Dist.] 2008, no pet.). In Martin, the court noted the Texas legislature specifically excluded operation of emergency vehicles in emergency situations from the general waiver of immunity for negligent operation of vehicles contained in the TTCA and held, "[w]ere we to . . . impose liability generally on emergency vehicle operators for mere negligence, we would render meaningless the portion of section 101.055 that specifically excludes emergency vehicle operators from the waiver of immunity for negligence." Martin, 971 S.W.2d at

430.

Further, the Texas Supreme Court has stated that the terms “conscious

indifference” and “reckless disregard” “require proof that a party knew the relevant facts but did not care about the result.” City of San Antonio v. Hartman, 201 S.W.3d 667, 672 n.19 (Tex. 2006).

Plaintiffs have offered no proof of what Deputy Ortega knew, what his thought processes were, that he chose to ignore any “relevant” facts, or that didn’t care about the safety of others, including the decedent.

The only evidence of what Deputy Ortega knew is in his affidavit (1CR85-

87; App.Tab.^[5]), portions of which Plaintiffs and their expert have selectively chosen to ignore.

Deputy Ortega knew that:

 “Pharr Police Department was in pursuit of a black Ford Expedition traveling northbound on North Tower Road from FM 495 vehicle possibly transporting narcotics (dope) in its vehicle’s contents.” 1CR85.

 He could see from a distance “the red/blue emergency lights and wig wags of the units involved in the pursuit.” 1CR85; App.Tab. ^[5].

 He saw “the vehicle in question a black Ford Expedition with tinted windows bearing Mexico license plates” pass him, “traveling at a very high rate of speed disregarding the safety of others.” 1CR85-86;

App.Tab.^[5].

 When he activated his lights and siren, “the suspect vehicle did not stop, but continued traveling north on Tower at a high rate of speed.” 1CR86;

App.Tab.^[5].

 After he made his u-turn (at Canton Road), he saw that the vehicle was already passing Iowa Road, one half mile further north. 1CR85-86;

App.Tab.^[5];1CR88;App.Tab.6.

 By the time he reached Iowa Road, he saw that the vehicle was already headed westbound on Curve Road, 7/10th of a mile further north. 1CR86;

App.Tab.^[5]; 1CR89; App.Tab.6.

 When he reached Curve Road, he turned west and discovered he had lost sight of the black Expedition. He could only see a cloud of dust. 1CR86;

App.Tab.^[5].

 At the intersection of Curve Road and Alamo Road, he observed a white

Hidalgo County Sheriff’s Office Expedition approach from the south.

1CR86; App.Tab.^[5].

 He had no sight of the black Expedition as he proceeded west on Curve

Road until he arrived at the intersection of Curve Road and Cesar Chavez

Road and saw that it had been involved in a major traffic accident.

1CR86; App.Tab.^[5].

 After the suspect turned onto Curve Road, Deputy Ortega was not even engaged in the pursuit, because he had no “visual” on the black

Expedition. 1CR96; App.Tab7.

Plaintiffs’ allegations against Hidalgo County are based on the assumption the Deputy Ortega was engaged in the pursuit and the common theme that Deputy

Ortega should not have engaged in the “pursuit”; that it was reckless and dangerous to do so. For example, they allege that a reasonably prudent officer should appreciate that a “prolonged pursuit … through residential neighborhoods

… with many near crashes” should have been discontinued immediately (1CR198).

However, they offer no evidence that Deputy Ortega had any knowledge of the length and nature of the pursuit prior to his decision to respond to City of Pharr

Officer Gonzalez’s request for assistance, or during his response.

Plaintiffs also contend that “it was incumbent upon Sr. Deputy Ortega and his supervisors to understand the justification for the chase and ask if the justification was absent or murky.” 1CR196. Plaintiffs conclude that Deputy

Ortega “evidences a lack of good faith for initiating, engaging and continuing the pursuit based on weak, legally faulty, or non-existent justification for the pursuit.”

1CR196. Plaintiffs further conclude that “[b]ased upon the weak reasoning behind

Officer Gonzalez’ initiation of the pursuit, the assisting agencies should not have commenced, continued, or assisted in the chase and doing so constituted a conscious disregard for public safety.” 1CR198. Plaintiffs offer no evidence that

Deputy Ortega, or his supervisors, or any other Hidalgo County Deputy, knew that the City of Pharr pursuit originated from a traffic stop based on a window tint violation. Deputy Ortega’s affidavit makes it clear that he understood that the reason for the City of Pharr pursuit was because the vehicle was suspected of transporting narcotics, as relayed to him by his dispatcher. 1CR85; App.Tab.^[5].

This is understandable when you consider that Deputy Gonzalez reported to his dispatcher that the vehicle had come out of a high drug traffic area, but did not tell his dispatcher that he was pursuing the vehicle because of a window tint violation.

1CR138; 2CR43, 45. Deputy Ortega’s affidavit also shows that he knew that the suspect vehicle was black, with tinted windows, had Mexican license plates and was raveling at a high rate of speed. 1CR85-86; App.Tab.^[5]. Accordingly, in Deputy Ortega’s mind there was no “absent or murky,” “weak,” “legally faulty,” or “non-existent” justification for the City of Pharr’s pursuit and Plaintiffs have presented no evidence to the contrary.

Further, Deputy Ortega’s affidavit demonstrates how he proceeded to follow the black Expedition cautiously with concern for the safety of the public. Despite the fact that the fleeing vehicle was traveling at a “high rate of speed,” and was pulling away from him, Ortega “made a complete stop at Curve Road where Tower

Road continues north towards highway 107 to avoid any incoming traffic traveling south on Tower Road.” 1CR86; App.Tab.^[5]. He then “drove slowly from

Tower Road on Curve Road towards Alamo Road since [he] no longer had sight of the suspect vehicle and Curve Road surface was rough terrain with pot holes and [he] could not see the incoming traffic.” 1CR86; App.Tab.^[5]. Upon arriving at

Alamo Road, he “came to a complete stop to observe traffic at the intersection traveling north and south.” 1CR86; App.Tab.^[5].

In cases involving collisions between emergency vehicles and third parties3

Texas courts have found more direct factual evidence to be insufficient to show

reckless disregard and conscious indifference . See Kuhn, 260 S.W.3d at 99-100, (holding that officer’s actions not taken with conscious indifference or reckless disregard for safety of citizen when officer collided with citizen after slowing

down to enter intersection); Pakdimounivong v. City of Arlington, 219 S.W.3d 401, 411-12 (Tex.App.—Fort Worth 2006, pet. denied)(holding that officers’ actions

were not taken with conscious indifference or reckless disregard for safety of others when no evidence showed that officers did not care what happened to deceased); Smith v. Janda, 126 S.W.3d 543, 545-46 (Tex. App.—San Antonio

2003, no pet.)(holding evidence insufficient to establish recklessness when ambulance driven to emergency with lights and sirens activated as it approached

intersection, other drivers at intersection could hear and see sirens and lights, ambulance driver slowed down, looked and then proceeded into intersection without coming to a complete stop); City of San Angelo Fire Dept. v. Hudson, 179 S.W.3d 695, 701-702 (Tex. App.—Austin 2005, no pet.)(holding no evidence of reckless disregard for safety of others when officer entered intersection without stopping and witness did not hear brakes being applied).

In the instant case, competent evidence proves that Deputy Ortega’s actions were in compliance with the laws and ordinances applicable to emergency action and that he demonstrated consummate concern for the safety of others, as set out above. The fact that he was 2-3 minutes behind Quintero’s vehicle further evidences his exercise of due caution under exigent circumstances. Plaintiffs have

offered no competent evidence of recklessness, or of any conscious disregard for the safety of the public on the part of Deputy Ortega. Neither have Plaintiffs

produced evidence sufficient to establish a material fact issue regarding the standard of care relating to emergency pursuits. Consequently, the waiver of sovereign immunity under section 101.055(2) of the Tort Claims Act does not apply and Hidalgo County retains its immunity. Accordingly, Plaintiffs’ claims must be dismissed for lack of jurisdiction.

3. Hidalgo County Is Not Liable Because Deputy Ortega Was Acting Within the Scope of His Authority and In Good Faith.

Hidalgo County is also immune from Plaintiffs’ claims based on the official immunity of Deputy Ortega. Had Deputy Ortega been individually named as a party to this suit, he would be entitled to official immunity under Texas law. If official immunity protects the employee from liability, then the governmental entity's sovereign immunity remains intact. Univ. of Houston v. Clark, 38 S.W.3d

578, 580 (Tex. 2000); City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex.

1993) (per curiam).

Official immunity protects government employees from personal liability when employees perform discretionary duties within the scope of their authority and are acting in good faith. Clark, at 580; City of San Antonio v. Ytuarte, 2005

Tex. App. LEXIS 10824, *7 (Tex. App. San Antonio Sept. 14, 2005); see also City of Lancaster v. Chambers, 883 S.W.2d 650, 653, 37 Tex. Sup. Ct. J. 980 (Tex.

1994).

There is no dispute that Deputy Ortega was acting in the scope of his

authority. 1CR143. However, Plaintiffs surprisingly allege that “employees, officers and agents of the Defendants are not entitled to immunity because the pursuit was a ministerial act and not conducted in good faith.” 1CR143.

The Texas Supreme Court defines discretionary functions as being those actions that involve personal deliberation, decision, and judgment. Chambers, 883

S.W.2d at 654. The Chambers court also defines ministerial functions as being

those actions that require obedience to orders or to the performance of a duty for which the actor has no choice. Id. When a police officer is driving a vehicle in a non-emergency setting, he or she is performing a ministerial function. Harris Cnty. v. Gibbons, 150 S.W.3d 877, 886 (Tex. App.—Houston [14th Dist.] 2004, no pet.), but when an officer engages in a high-speed vehicular pursuit, the officer performs a discretionary function. Chambers, 883 S.W.2d at 655. A police officer's operation of a vehicle is discretionary in some situations. These include high-speed chases; investigations; traffic stops; and an officer's decision to violate traffic laws to respond quickly to an officer's call for assistance. Harless v. Niles, 100 S.W.3d

390, 397 (Tex. App.—San Antonio 2002, no pet.). Thus, Deputy Ortega was performing a discretionary function as a matter of law.

Further, despite alleging that Deputy Ortega’s actions (and those of other

Hidalgo County Sheriff’s deputies) were ministerial, Plaintiffs’ criticism of Deputy

Ortega is based on alleged discretionary acts, as follows:

f. Senior Deputy Ortega evidences a lack of good faith for initiating, engaging and continuing the pursuit based on weak, faulty or non-existent justification for the pursuit. 1CR145.

and g. It was the Hidalgo County Sheriff’s Office’s actions and the decision not to get the justification for the pursuit and not to engage or terminate quickly who decided to chase and who got the momentum going. 1CR145.

Plaintiffs also state that “it is commonly acceptable police standards and practices that the danger of the situation should not outweigh the justification for their involvement” and allege that Deputy Ortega made a “willful decision to ignore

this.” 1CR145. They also allege that Deputy Ortega “involved himself willfully in the pursuit in question.” 1CR146. All of these allegations demonstrate that

Plaintiffs really believe that Deputy Ortega had the discretion to make such decisions.

Additionally, the Hidalgo County Sheriff’s Office Deputy Sheriff Job

Description makes it clear that deputies are expected to perform discretionary

functions. For example, under the paragraph entitled “Essential Duties and Responsibilities” a deputy may perform the duty of responding “to emergency calls and routine complaints and take action as necessary.” (Emphasis added). 1CR106.

A necessary skill of the job is the “ability to analyze situations and adopt a quick, effective and reasonable course of action.” 1CR108. Under “Safety Requirement,” a deputy must “maintain mental capacity which permits … making sound decisions and using good judgment.” 1CR110.

To establish good faith, Hidalgo County must show that a reasonably prudent officer in the same or similar situation could have believed that the need for officers to respond outweighs the risks associated with the officers' actions.

Wadewitz v. Montgomery, 951 S.W.2d 464, 466-67, 40 Tex. Sup. Ct. J. 894 (Tex.

1997). The test of good faith adopted by the Chambers court “is one of objective legal reasonableness” and “qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.” Chambers, 883 S.W.2d at

656.

The evidence herein establishes that Deputy Ortega would be entitled to official immunity and that each of the good faith test elements set out by the Texas

Supreme Court in Wadewitz and Chambers have been met.

As stated above, by the time the City of Pharr Police Department’s request for assistance was relayed to Deputy Ortega, events had already been set in motion.

Any risk to the safety of the public long pre-existed his involvement. Immediately after receiving request for assistance, Quintero’s vehicle entered Deputy Ortega’s jurisdiction “driving at a high rate of speed disregarding the safety of others.”

1CR85-86; App.Tab.^[5]. At the time, Deputy Ortega had no knowledge of the duration or nature of the City of Pharr pursuit. Deputy Ortega activated his lights

and siren in an attempt to stop the vehicle, but it continued on at a high rate of speed. 1CR86; App.Tab.^[5]. Deputy Ortega followed the fleeing vehicle cautiously, out of a concern for the safety of the public, stopping at intersections and allowing it get so far ahead of him that he quickly lost sight of it. 1CR86; App.Tab.^[5]; J.

Lopez Video at 2:01. The evidence clearly establishes that Deputy Ortega balanced the need for taking the conservative action that he took against any risk to the public beyond what already existed and proceeded accordingly.

The Plaintiffs have not offered, and cannot offer, competent evidence to show that no reasonably prudent officer under the same or similar circumstances

could have believed that Deputy Ortega should have responded differently and should not have followed the fleeing suspect in the manner in which he did.

Plaintiffs’ expert, Richard Weinblatt offers no more than conclusory statements without factual basis regarding the good faith actions of Deputy Ortega and Hidalgo County:

“In my opinion, Officer Gonzales and Sr. Deputy Ortega evidenced a lack of good faith for initiating, engaging, and continuing the pursuit based on weak, faulty, or non-existent justification for the pursuit …”

1CR171; 1CR238; App.Tab.17, p.7. and “It is also true that a reasonable and prudent officer should see that a prolonged pursuit (including “following”) like this, through residential neighborhoods (houses are visible on the sides of the street), with many near crashes, should have been discontinued almost immediately.”

1CR180; 1CR247; App.Tab.17, p.16.

Dr. Weinblatt chooses to ignore that fact that Deputy Ortega understood that the basis for the pursuit was because the fleeing vehicle was suspected of transporting narcotics. 1CR85; App.Tab.^[5]. He also fails to consider that Officer

Gonzalez did not advise his City of Pharr dispatcher that he initiated the pursuit based on a window tint violation and reported to his dispatcher that the vehicle had come out of a high drug traffic area. 1CR138; 2CR43, 45. Therefore, there was no

“weak, faulty, or non-existent justification for the pursuit” as Deputy Ortega understood it.

Further, Dr. Weinblatt, in an all-seeing position of hindsight, after review

several dashcam videos from the vehicles of different law enforcement agencies, documenting the pursuit from beginning to end, incorrectly assumes that Deputy

Ortega had knowledge of the duration and nature of the pursuit prior to his involvement.

Dr. Weinblatt’s conclusory statements are insufficient to support or defeat summary judgment. Wadewitz at 466. Therefore, they are not competent evidence in a Plea to the Jurisdiction and fail to raise a question of fact. Further, Dr.

Weinblatt fails to substantiate his opinion with reference to each aspect of the Chambers balancing test with respect to Deputy Ortega and as required by

Chambers and Wadewitz. See Wadewitz, 951 S.W.2d at 467.

For the above reasons, Deputy Ortega is entitled to official immunity and Hidalgo County’s sovereign immunity remains intact. Clark, supra; Kilburn, supra.

4. The Report of “Expert” Weinblatt Is Not Based Upon a Reliable Foundation and Must Be Regarded as No Evidence, and the Trial Court Erred in Failing to Exclude it from Consideration.

Not only is the “expert” report full of conclusory and unsupported statements, it does not meet the basic reliability requirements of Daubert and its

progeny. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993). The authoritative treatise on such requirements is “ARTICLE: EIGHT GATES FOR EXPERT WITNESSES: FIFTEEN YEARS LATER”, 52 Hous. L. Rev. ^[1].

App.Tab18. The gatekeeping function of the trial judge is mandatory.^[4] Id. at p.4.

"The trial court serves as an evidentiary gatekeeper by screening out irrelevant and unreliable expert evidence … ." Southland Lloyds Ins. Co. v. Cantu, 399 S.W.3d

558, 563 (Tex. App. - San Antonio 2011, pet. denied).

In this case, Appellant Defendant Hidalgo County challenged the reliability of the “expert” testimony offered by affidavit by “Hidalgo County’s Motion to

Exclude Richard Weinblatt’s Report”, and a letter brief to the Court.

4 Russell v. Whirlpool Corp., 702 F.3d 450, 456 (8th Cir. 2012) (“[T]he assumption of the gatekeeper role is mandatory, not discretionary.”). The Tenth Circuit recently stated that a trial judge’s gatekeeping role is sufficiently important so that the judge (1) cannot simply “say on the record that [he] has decided to admit the expert testimony after due consideration” but rather should “furnish enough of a record to permit a reviewing court to say with confidence that it ‘properly applied the relevant law’” and (2) “must reply in some meaningful way to the Daubert concerns the objector has raised,” although the judge does not have to discuss every Daubert factor. Storagecraft Tech. Corp. v. Kirby, 744 F.3d 1183, 1190 (10th Cir. 2014). Similarly the Ninth Circuit stated that given “[t]he potentially significant influence of expert testimony,” trial judges must engage in “assiduous ‘gatekeeping.’” Barabin v. AstenJohnson, Inc., 700 F.3d 428, 432 (9th Cir. 2012), on reh’g en banc sub nom. Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457 (9th Cir. 2014). (Note 12, 52 Hous. L. Rev. ^[1], 4.)

App.Tab.19,20; 1CR273-284; 1CR377-379. The trial court also heard arguments at the hearing, but did not rule on the record or by signed order regarding the Motion to Exclude, except by implication when it denied the Plea to the Jurisdiction almost

9 months later. 3RR4,7,8,17-39; 1CR405; App.Tab.^[1]. It was error for the trial

court not to exclude such report from consideration, and this Court must review the decision (or failure to decide) to exclude the report de novo as a part of its review of the trial court’s denial of the Plea to Jurisdiction. Such review and consideration is inherent to any analysis of the basis of such denial.

Accordingly, County of Hidalgo adopts and re-urges those arguments set out in the subject motion to exclude, letter brief, and in the transcript of the hearing on the motion. App.Tab19,20; 1CR273-284; 1CR377-379; 3RR4,7,8,17-39.

Dr. Weinblatt provided a resume that may qualify him as an expert on police procedure, but it does not qualify him on accident reconstruction or the causation issues that flow seamlessly through his report. (See 1CR321 et. seq.); TXI Transp.

Co. v. Hughes, 306 S.W.3d 230, 234 (Tex. 2010) (“For an expert’s testimony to be

admissible, the expert witness must be qualified to testify about ‘scientific, technical, or other specialized knowledge,’ and the testimony must be relevant and based upon a reliable foundation.”) Nowhere does his resume indicate an expertise in accident reconstruction, and his opinions are not based upon a reliable foundation.

For example, as detailed above, his report imputes information to the County

Deputy without any basis for such imputation because the only evidence about what the Deputy knew is his own affidavit about what was told to him by his

dispatcher. Further, Weinblatt applies facts he gleans from the dash cam of the Pharr Police officer to the decisions and actions made by the Hidalgo County

deputy without a basis for such application. Certainly, there is no evidence that the Hidalgo County deputy saw the Pharr Police dash cam and knew that the fleeing suspect had been pursued through a high traffic area in Alamo with swerving civilian vehicles. App.Tab17,p.3-5; 1CR167-5. There was no dash cam footage from the perspective of Deputy Ortega’s vehicle for Weinblatt to review, as his report admits. Id.

All of this demonstrates that the expert report is incompetent evidence upon

which to base a denial of the Plea to the Jurisdiction. As set out in Wadewitz, An expert's testimony will support summary judgment only if it is "clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted" TEX. R. CIV. P. 166a(c). Conclusory statements by an expert are insufficient to support or defeat summary judgment. See Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991); see also Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex. 1984); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). Thus, an expert witness's conclusory statement that a reasonable officer could or could not have taken some action will neither establish good faith at the summary judgment stage nor raise a fact issue to defeat summary judgment. Instead, expert testimony on good faith must address what a reasonable officer could have believed under circumstances, see Chambers, 883 S.W.2d at 656-57, and must be substantiated with reference to each aspect of the Chambers balancing test. Wadewitz v. Montgomery, 951 S.W.2d 464, 466- 467, (Tex. 1997).

In this case, the report is neither clear, nor positive, nor direct. It does not address what a reasonable officer could have believed under the circumstances, it relies upon conclusory statements, and it reaches conclusions about which the expert is not qualified, and which are without sound foundation. Accordingly, such report

should have been excluded from consideration relative to the Plea to the Jurisdiction and should be disregarded by this court in its review of the decision of the trial court’s denial of such plea.

CONCLUSION AND PRAYER

Because the Plaintiffs cannot establish causation as a matter of law, based

upon the undisputed facts, because such facts do not show any breach of the applicable “emergency” vehicle standard of care, because the County deputy was acting in good faith in the scope of his duties, and covered by his discretionary immunity, and because the Plaintiffs’ expert was unqualified and his opinions were unreliable and unsupported by the facts, the trial court erred in denying the Plea to the Jurisdiction of Hidalgo County. Each of the four reasons cited would justify a reversal of such decision. Accordingly, Hidalgo County prays that this court

reverse and render a final judgment of no liability in favor of Hidalgo County and against the plaintiffs on the pleadings, for costs, and for such other and further relief to which Hidalgo County is entitled, in law and in equity.

Respectfully submitted, /s/ Preston Henrichson

Preston Henrichson State Bar No. 09477000 LAW OFFICES OF PRESTON HENRICHSON, P.C. 222 W. Cano Edinburg, Texas 78539 (956) 383-3535 (956) 383-3585 (fax) E-Service: [email protected]

Appellate and Trial Counsel for Hidalgo County, Texas

38 CERTIFICATE OF COMPLIANCE In compliance with Tex. R. App. Proc. 9.4(i)(3), I hereby certify that this Response contains 8,831 words, excluding the caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance and appendix. In calculating the word count, I have relied on the word count feature of Microsoft Office Word 2007. /s/ Preston Henrichson ______________________________________ Preston Henrichson

CERTIFICATE OF SERVICE

On August 24, 2015, in compliance with Texas Rule of Appellate Procedure 9.5, I served a copy of this response upon Appellees and all parties to the trial court proceeding through the electronic filing manager and/or e-mail.

/s/ Preston Henrichson ______________________________________ Preston Henrichson

Wyatt D. Snider SNIDER LAW FIRM, PLLC 3535 Calder Street, Ste. 300 Beaumont, Texas 77706 Via E-Service: [email protected]

Librado Keno Vasquez KENO VASQUEZ LAW OFFICE 3525 W. Freddy Gonzalez, Ste. C Edinburg, TX 78539 Via E-Service: [email protected]

NO. 13-15-00167-CV

IN THE THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS

HIDALGO COUNTY, TEXAS, Appellant v. DORA HERRERA, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF REYNALDO HERRERA, DECEASED, ERIC HERRERA, EFREN HERRERA, MICHAEL HERRERA, JESSICA HERRERA RODRIGUEZ, CELIA HERRERA, VANESSA HERRERA, VERONICA HERRERA RODRIGUEZ HERRERA AND REY HERRERA, Appellees APPEAL FROM CAUSE NO. C-1418-12-G 370TH JUDICIAL DISTRICT COURT OF HIDALGO COUNTY, TEXAS HON. NOE GONZALEZ, PRESIDING APPENDIX Tab 1 Order Denying Hidalgo County's First and Second Amended Plea to the Jurisdiction (1CR405) Tab 2 Tex. Civ. Prac. & Rem. Code § 101.021 Tab 3 Tex. Civ. Prac. & Rem. Code § 101.055(2) Tab 4 Tex. Transportation Code § 546.001, et seq. Tab 5 Hidalgo County Deputy John Ortega Affidavit (1CR85-87) Tab 6 Maps (1CR88-89) Tab 7 Sgt. Miguel Davila Incident Report (1CR94-96) Tab 8 Sergio Veliz Affidavits (1CR102-103 and 1CR270-272) Tab 9 Armando Veliz Affidavits (1CR98 and 2CR267-269) Tab 10 Margarita Veliz Affidavit (1CR104-105) Tab 11 Claudia Janeth Valdez Villarreal Affidavit (1CR91) Tab 12 Francisco Javier Valdez Villarreal Affidavit (1CR92) Tab 13 City of Dallas v. Hillis, 308 S.W.3d 526, 524-35 (Tex. App.—Dallas 2010, pet. denied) Tab 14 Teague v. City of Dallas, 344 S.W.3d 434 (Tex. App.—Dallas, 2011). Tab 15 Muniz v. Cameron County, 2012 Lexis 3816, WL 1656326 Tab 16 Lopez v. Escobar. No. 04-13-00151-CV, 2013 Tex. App. LEXIS 10846, 2013 WL 4679062 (Tex. App.—San Antonio Aug. 28, 2013, no pet.) (mem. op.) Tab 17 Weinblatt Expert Report Tab 18 52 Hous. L. Rev. ^[1] (2014) Tab 19 Hidalgo County’s Motion to Exclude Richard Weinblatt’s Report Tab 20 Hidalgo County’s Letter Brief to the Court Tex. Civ. Prac. & Rem. Code § 101.021 This document is current through the 2015 regular session, 84th Legislature, S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B. 835 (ch. 6), S.B. 901 (ch. 54), S.B. 903 (ch. 3), S.B. 1749 (ch. 29), and S.B. 1985 (ch. 4). Texas Statutes & Codes Annotated by LexisNexis® > Civil Practice and Remedies Code > Title 5 Governmental Liability > Chapter 101 Tort Claims > Subchapter B Tort Liability of Governmental Units Sec. 101.021. Governmental Liability. A governmental unit in the state is liable for: (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if: (A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and (B) the employee would be personally liable to the claimant according to Texas law; and (2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. History Enacted by Acts 1985, 69th Leg., ch. 959 (S.B. 797), § 1, effective September 1, 1985. Texas Statutes & Codes Annotated by LexisNexis® Copyright © 2015 Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. Tex. Civ. Prac. & Rem. Code § 101.055 This document is current through the 2015 regular session, 84th Legislature, S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B. 835 (ch. 6), S.B. 901 (ch. 54), S.B. 903 (ch. 3), S.B. 1749 (ch. 29), and S.B. 1985 (ch. 4). Texas Statutes & Codes Annotated by LexisNexis® > Civil Practice and Remedies Code > Title 5 Governmental Liability > Chapter 101 Tort Claims > Subchapter C Exclusions and Exceptions Sec. 101.055. Certain Governmental Functions. This chapter does not apply to a claim arising: (1) in connection with the assessment or collection of taxes by a governmental unit; (2) from the action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action, or in the absence of such a law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others; or (3) from the failure to provide or the method of providing police or fire protection. History Enacted by Acts 1985, 69th Leg., ch. 959 (S.B. 797), § 1, effective September 1, 1985; am. Acts 1987, 70th Leg., 1st C.S., ch. 2 (S.B. ^[5]), § 3.05, effective September 2, 1987; am. Acts 1995, 74th Leg., ch. 139 (H.B. 383), § 1, effective September 1, 1995. Texas Statutes & Codes Annotated by LexisNexis® Copyright © 2015 Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. Tex. Transp. Code § 546.001 This document is current through the 2015 regular session, 84th Legislature, S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B. 835 (ch. 6), S.B. 901 (ch. 54), S.B. 903 (ch. 3), S.B. 1749 (ch. 29), and S.B. 1985 (ch. 4). Texas Statutes & Codes Annotated by LexisNexis® > Transportation Code > Title 7 Vehicles and Traffic > Subtitle C Rules of the Road > Chapter 546 Operation of Authorized Emergency Vehicles and Certain Other Vehicles > Subchapter A Authorized Emergency Vehicles Sec. 546.001. Permissible Conduct. In operating an authorized emergency vehicle the operator may: (1) park or stand, irrespective of another provision of this subtitle; (2) proceed past a red or stop signal or stop sign, after slowing as necessary for safe operation; (3) exceed a maximum speed limit, except as provided by an ordinance adopted under Section 545.365, as long as the operator does not endanger life or property; and (4) disregard a regulation governing the direction of movement or turning in specified directions. History Enacted by Acts 1995, 74th Leg., ch. 165 (S.B. 971), § 1, effective September 1, 1995. Texas Statutes & Codes Annotated by LexisNexis® Copyright © 2015 Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. Tex. Transp. Code § 546.002 This document is current through the 2015 regular session, 84th Legislature, S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B. 835 (ch. 6), S.B. 901 (ch. 54), S.B. 903 (ch. 3), S.B. 1749 (ch. 29), and S.B. 1985 (ch. 4). Texas Statutes & Codes Annotated by LexisNexis® > Transportation Code > Title 7 Vehicles and Traffic > Subtitle C Rules of the Road > Chapter 546 Operation of Authorized Emergency Vehicles and Certain Other Vehicles > Subchapter A Authorized Emergency Vehicles Sec. 546.002. When Conduct Permissible. (a) In this section, “police escort” means facilitating the movement of a funeral, oversized or hazardous load, or other traffic disruption for public safety purposes by a peace officer described by Articles 2.12(1)—(4), (8), (12), and (22), Code of Criminal Procedure. (b) Section 546.001 applies only when the operator is: (1) responding to an emergency call; (2) pursuing an actual or suspected violator of the law; (3) responding to but not returning from a fire alarm; (4) directing or diverting traffic for public safety purposes; or (5) conducting a police escort. History Enacted by Acts 1995, 74th Leg., ch. 165 (S.B. 971), § 1, effective September 1, 1995; am. Acts 2003, 78th Leg., ch. 66 (S.B. 461), § 1, effective May 16, 2003; am. Acts 2005, 79th Leg., ch. 834 (S.B. 866), § 1, effective June 17, 2005; am. Acts 2013, 83rd Leg., ch. 540 (S.B. 545), § 1, effective June 14, 2013. Texas Statutes & Codes Annotated by LexisNexis® Copyright © 2015 Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. Tex. Transp. Code § 546.003 This document is current through the 2015 regular session, 84th Legislature, S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B. 835 (ch. 6), S.B. 901 (ch. 54), S.B. 903 (ch. 3), S.B. 1749 (ch. 29), and S.B. 1985 (ch. 4). Texas Statutes & Codes Annotated by LexisNexis® > Transportation Code > Title 7 Vehicles and Traffic > Subtitle C Rules of the Road > Chapter 546 Operation of Authorized Emergency Vehicles and Certain Other Vehicles > Subchapter A Authorized Emergency Vehicles Sec. 546.003. Audible or Visual Signals Required. Except as provided by Section 546.004, the operator of an authorized emergency vehicle engaging in conduct permitted by Section 546.001 shall use, at the discretion of the operator in accordance with policies of the department or the local government that employs the operator, audible or visual signals that meet the pertinent requirements of Sections 547.305 and 547.702. History Enacted by Acts 1995, 74th Leg., ch. 165 (S.B. 971), § 1, effective September 1, 1995. Texas Statutes & Codes Annotated by LexisNexis® Copyright © 2015 Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. Tex. Transp. Code § 546.004 This document is current through the 2015 regular session, 84th Legislature, S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B. 835 (ch. 6), S.B. 901 (ch. 54), S.B. 903 (ch. 3), S.B. 1749 (ch. 29), and S.B. 1985 (ch. 4). Texas Statutes & Codes Annotated by LexisNexis® > Transportation Code > Title 7 Vehicles and Traffic > Subtitle C Rules of the Road > Chapter 546 Operation of Authorized Emergency Vehicles and Certain Other Vehicles > Subchapter A Authorized Emergency Vehicles Sec. 546.004. Exceptions to Signal Requirement. (a) A volunteer fire fighter who operates a private vehicle as an authorized emergency vehicle may engage in conduct permitted by Section 546.001 only when the fire fighter is using visual signals meeting the pertinent requirements of Sections 547.305 and 547.702. (b) An authorized emergency vehicle that is operated as a police vehicle is not required to be equipped with or display a red light visible from the front of the vehicle. (c) A police officer may operate an authorized emergency vehicle for a law enforcement purpose without using the audible or visual signals required by Section 546.003 if the officer is: (1) responding to an emergency call or pursuing a suspected violator of the law with probable cause to believe that: (A) knowledge of the presence of the officer will cause the suspect to: (i) destroy or lose evidence of a suspected felony; (ii) end a suspected continuing felony before the officer has obtained sufficient evidence to establish grounds for arrest; or (iii) evade apprehension or identification of the suspect or the suspect’s vehicle; or (B) because of traffic conditions on a multilaned roadway, vehicles moving in response to the audible or visual signals may: (i) increase the potential for a collision; or (ii) unreasonably extend the duration of the pursuit; or (2) complying with a written regulation relating to the use of audible or visible signals adopted by the local government that employs the officer or by the department. History Enacted by Acts 1995, 74th Leg., ch. 165 (S.B. 971), § 1, effective September 1, 1995. Texas Statutes & Codes Annotated by LexisNexis® Copyright © 2015 Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. Tex. Transp. Code § 546.005 This document is current through the 2015 regular session, 84th Legislature, S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B. 835 (ch. 6), S.B. 901 (ch. 54), S.B. 903 (ch. 3), S.B. 1749 (ch. 29), and S.B. 1985 (ch. 4). Texas Statutes & Codes Annotated by LexisNexis® > Transportation Code > Title 7 Vehicles and Traffic > Subtitle C Rules of the Road > Chapter 546 Operation of Authorized Emergency Vehicles and Certain Other Vehicles > Subchapter A Authorized Emergency Vehicles Sec. 546.005. Duty of Care. This chapter does not relieve the operator of an authorized emergency vehicle from: (1) the duty to operate the vehicle with appropriate regard for the safety of all persons; or (2) the consequences of reckless disregard for the safety of others. History Enacted by Acts 1995, 74th Leg., ch. 165 (S.B. 971), § 1, effective September 1, 1995. Texas Statutes & Codes Annotated by LexisNexis® Copyright © 2015 Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. Tex. Transp. Code § 546.001 This document is current through the 2015 regular session, 84th Legislature, S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B. 835 (ch. 6), S.B. 901 (ch. 54), S.B. 903 (ch. 3), S.B. 1749 (ch. 29), and S.B. 1985 (ch. 4). Texas Statutes & Codes Annotated by LexisNexis® > Transportation Code > Title 7 Vehicles and Traffic > Subtitle C Rules of the Road > Chapter 546 Operation of Authorized Emergency Vehicles and Certain Other Vehicles > Subchapter A Authorized Emergency Vehicles Sec. 546.001. Permissible Conduct. In operating an authorized emergency vehicle the operator may: (1) park or stand, irrespective of another provision of this subtitle; (2) proceed past a red or stop signal or stop sign, after slowing as necessary for safe operation; (3) exceed a maximum speed limit, except as provided by an ordinance adopted under Section 545.365, as long as the operator does not endanger life or property; and (4) disregard a regulation governing the direction of movement or turning in specified directions. History Enacted by Acts 1995, 74th Leg., ch. 165 (S.B. 971), § 1, effective September 1, 1995. Texas Statutes & Codes Annotated by LexisNexis® Copyright © 2015 Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. Tex. Transp. Code § 546.002 This document is current through the 2015 regular session, 84th Legislature, S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B. 835 (ch. 6), S.B. 901 (ch. 54), S.B. 903 (ch. 3), S.B. 1749 (ch. 29), and S.B. 1985 (ch. 4). Texas Statutes & Codes Annotated by LexisNexis® > Transportation Code > Title 7 Vehicles and Traffic > Subtitle C Rules of the Road > Chapter 546 Operation of Authorized Emergency Vehicles and Certain Other Vehicles > Subchapter A Authorized Emergency Vehicles Sec. 546.002. When Conduct Permissible. (a) In this section, “police escort” means facilitating the movement of a funeral, oversized or hazardous load, or other traffic disruption for public safety purposes by a peace officer described by Articles 2.12(1)—(4), (8), (12), and (22), Code of Criminal Procedure. (b) Section 546.001 applies only when the operator is: (1) responding to an emergency call; (2) pursuing an actual or suspected violator of the law; (3) responding to but not returning from a fire alarm; (4) directing or diverting traffic for public safety purposes; or (5) conducting a police escort. History Enacted by Acts 1995, 74th Leg., ch. 165 (S.B. 971), § 1, effective September 1, 1995; am. Acts 2003, 78th Leg., ch. 66 (S.B. 461), § 1, effective May 16, 2003; am. Acts 2005, 79th Leg., ch. 834 (S.B. 866), § 1, effective June 17, 2005; am. Acts 2013, 83rd Leg., ch. 540 (S.B. 545), § 1, effective June 14, 2013. Texas Statutes & Codes Annotated by LexisNexis® Copyright © 2015 Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. Tex. Transp. Code § 546.003 This document is current through the 2015 regular session, 84th Legislature, S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B. 835 (ch. 6), S.B. 901 (ch. 54), S.B. 903 (ch. 3), S.B. 1749 (ch. 29), and S.B. 1985 (ch. 4). Texas Statutes & Codes Annotated by LexisNexis® > Transportation Code > Title 7 Vehicles and Traffic > Subtitle C Rules of the Road > Chapter 546 Operation of Authorized Emergency Vehicles and Certain Other Vehicles > Subchapter A Authorized Emergency Vehicles Sec. 546.003. Audible or Visual Signals Required. Except as provided by Section 546.004, the operator of an authorized emergency vehicle engaging in conduct permitted by Section 546.001 shall use, at the discretion of the operator in accordance with policies of the department or the local government that employs the operator, audible or visual signals that meet the pertinent requirements of Sections 547.305 and 547.702. History Enacted by Acts 1995, 74th Leg., ch. 165 (S.B. 971), § 1, effective September 1, 1995. Texas Statutes & Codes Annotated by LexisNexis® Copyright © 2015 Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. Tex. Transp. Code § 546.004 This document is current through the 2015 regular session, 84th Legislature, S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B. 835 (ch. 6), S.B. 901 (ch. 54), S.B. 903 (ch. 3), S.B. 1749 (ch. 29), and S.B. 1985 (ch. 4). Texas Statutes & Codes Annotated by LexisNexis® > Transportation Code > Title 7 Vehicles and Traffic > Subtitle C Rules of the Road > Chapter 546 Operation of Authorized Emergency Vehicles and Certain Other Vehicles > Subchapter A Authorized Emergency Vehicles Sec. 546.004. Exceptions to Signal Requirement. (a) A volunteer fire fighter who operates a private vehicle as an authorized emergency vehicle may engage in conduct permitted by Section 546.001 only when the fire fighter is using visual signals meeting the pertinent requirements of Sections 547.305 and 547.702. (b) An authorized emergency vehicle that is operated as a police vehicle is not required to be equipped with or display a red light visible from the front of the vehicle. (c) A police officer may operate an authorized emergency vehicle for a law enforcement purpose without using the audible or visual signals required by Section 546.003 if the officer is: (1) responding to an emergency call or pursuing a suspected violator of the law with probable cause to believe that: (A) knowledge of the presence of the officer will cause the suspect to: (i) destroy or lose evidence of a suspected felony; (ii) end a suspected continuing felony before the officer has obtained sufficient evidence to establish grounds for arrest; or (iii) evade apprehension or identification of the suspect or the suspect’s vehicle; or (B) because of traffic conditions on a multilaned roadway, vehicles moving in response to the audible or visual signals may: (i) increase the potential for a collision; or (ii) unreasonably extend the duration of the pursuit; or (2) complying with a written regulation relating to the use of audible or visible signals adopted by the local government that employs the officer or by the department. History Enacted by Acts 1995, 74th Leg., ch. 165 (S.B. 971), § 1, effective September 1, 1995. Texas Statutes & Codes Annotated by LexisNexis® Copyright © 2015 Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. Tex. Transp. Code § 546.005 This document is current through the 2015 regular session, 84th Legislature, S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B. 835 (ch. 6), S.B. 901 (ch. 54), S.B. 903 (ch. 3), S.B. 1749 (ch. 29), and S.B. 1985 (ch. 4). Texas Statutes & Codes Annotated by LexisNexis® > Transportation Code > Title 7 Vehicles and Traffic > Subtitle C Rules of the Road > Chapter 546 Operation of Authorized Emergency Vehicles and Certain Other Vehicles > Subchapter A Authorized Emergency Vehicles Sec. 546.005. Duty of Care. This chapter does not relieve the operator of an authorized emergency vehicle from: (1) the duty to operate the vehicle with appropriate regard for the safety of all persons; or (2) the consequences of reckless disregard for the safety of others. History Enacted by Acts 1995, 74th Leg., ch. 165 (S.B. 971), § 1, effective September 1, 1995. Texas Statutes & Codes Annotated by LexisNexis® Copyright © 2015 Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. Tex. Civ. Prac. & Rem. Code § 101.055 This document is current through the 2015 regular session, 84th Legislature, S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B. 835 (ch. 6), S.B. 901 (ch. 54), S.B. 903 (ch. 3), S.B. 1749 (ch. 29), and S.B. 1985 (ch. 4). Texas Statutes & Codes Annotated by LexisNexis® > Civil Practice and Remedies Code > Title 5 Governmental Liability > Chapter 101 Tort Claims > Subchapter C Exclusions and Exceptions Sec. 101.055. Certain Governmental Functions. This chapter does not apply to a claim arising: (1) in connection with the assessment or collection of taxes by a governmental unit; (2) from the action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action, or in the absence of such a law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others; or (3) from the failure to provide or the method of providing police or fire protection. History Enacted by Acts 1985, 69th Leg., ch. 959 (S.B. 797), § 1, effective September 1, 1985; am. Acts 1987, 70th Leg., 1st C.S., ch. 2 (S.B. ^[5]), § 3.05, effective September 2, 1987; am. Acts 1995, 74th Leg., ch. 139 (H.B. 383), § 1, effective September 1, 1995. Texas Statutes & Codes Annotated by LexisNexis® Copyright © 2015 Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. Tex. Transp. Code § 546.001 This document is current through the 2015 regular session, 84th Legislature, S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B. 835 (ch. 6), S.B. 901 (ch. 54), S.B. 903 (ch. 3), S.B. 1749 (ch. 29), and S.B. 1985 (ch. 4). Texas Statutes & Codes Annotated by LexisNexis® > Transportation Code > Title 7 Vehicles and Traffic > Subtitle C Rules of the Road > Chapter 546 Operation of Authorized Emergency Vehicles and Certain Other Vehicles > Subchapter A Authorized Emergency Vehicles Sec. 546.001. Permissible Conduct. In operating an authorized emergency vehicle the operator may: (1) park or stand, irrespective of another provision of this subtitle; (2) proceed past a red or stop signal or stop sign, after slowing as necessary for safe operation; (3) exceed a maximum speed limit, except as provided by an ordinance adopted under Section 545.365, as long as the operator does not endanger life or property; and (4) disregard a regulation governing the direction of movement or turning in specified directions. History Enacted by Acts 1995, 74th Leg., ch. 165 (S.B. 971), § 1, effective September 1, 1995. Texas Statutes & Codes Annotated by LexisNexis® Copyright © 2015 Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. Tex. Transp. Code § 546.002 This document is current through the 2015 regular session, 84th Legislature, S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B. 835 (ch. 6), S.B. 901 (ch. 54), S.B. 903 (ch. 3), S.B. 1749 (ch. 29), and S.B. 1985 (ch. 4). Texas Statutes & Codes Annotated by LexisNexis® > Transportation Code > Title 7 Vehicles and Traffic > Subtitle C Rules of the Road > Chapter 546 Operation of Authorized Emergency Vehicles and Certain Other Vehicles > Subchapter A Authorized Emergency Vehicles Sec. 546.002. When Conduct Permissible. (a) In this section, “police escort” means facilitating the movement of a funeral, oversized or hazardous load, or other traffic disruption for public safety purposes by a peace officer described by Articles 2.12(1)—(4), (8), (12), and (22), Code of Criminal Procedure. (b) Section 546.001 applies only when the operator is: (1) responding to an emergency call; (2) pursuing an actual or suspected violator of the law; (3) responding to but not returning from a fire alarm; (4) directing or diverting traffic for public safety purposes; or (5) conducting a police escort. History Enacted by Acts 1995, 74th Leg., ch. 165 (S.B. 971), § 1, effective September 1, 1995; am. Acts 2003, 78th Leg., ch. 66 (S.B. 461), § 1, effective May 16, 2003; am. Acts 2005, 79th Leg., ch. 834 (S.B. 866), § 1, effective June 17, 2005; am. Acts 2013, 83rd Leg., ch. 540 (S.B. 545), § 1, effective June 14, 2013. Texas Statutes & Codes Annotated by LexisNexis® Copyright © 2015 Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. Tex. Transp. Code § 546.003 This document is current through the 2015 regular session, 84th Legislature, S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B. 835 (ch. 6), S.B. 901 (ch. 54), S.B. 903 (ch. 3), S.B. 1749 (ch. 29), and S.B. 1985 (ch. 4). Texas Statutes & Codes Annotated by LexisNexis® > Transportation Code > Title 7 Vehicles and Traffic > Subtitle C Rules of the Road > Chapter 546 Operation of Authorized Emergency Vehicles and Certain Other Vehicles > Subchapter A Authorized Emergency Vehicles Sec. 546.003. Audible or Visual Signals Required. Except as provided by Section 546.004, the operator of an authorized emergency vehicle engaging in conduct permitted by Section 546.001 shall use, at the discretion of the operator in accordance with policies of the department or the local government that employs the operator, audible or visual signals that meet the pertinent requirements of Sections 547.305 and 547.702. History Enacted by Acts 1995, 74th Leg., ch. 165 (S.B. 971), § 1, effective September 1, 1995. Texas Statutes & Codes Annotated by LexisNexis® Copyright © 2015 Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. Tex. Transp. Code § 546.004 This document is current through the 2015 regular session, 84th Legislature, S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B. 835 (ch. 6), S.B. 901 (ch. 54), S.B. 903 (ch. 3), S.B. 1749 (ch. 29), and S.B. 1985 (ch. 4). Texas Statutes & Codes Annotated by LexisNexis® > Transportation Code > Title 7 Vehicles and Traffic > Subtitle C Rules of the Road > Chapter 546 Operation of Authorized Emergency Vehicles and Certain Other Vehicles > Subchapter A Authorized Emergency Vehicles Sec. 546.004. Exceptions to Signal Requirement. (a) A volunteer fire fighter who operates a private vehicle as an authorized emergency vehicle may engage in conduct permitted by Section 546.001 only when the fire fighter is using visual signals meeting the pertinent requirements of Sections 547.305 and 547.702. (b) An authorized emergency vehicle that is operated as a police vehicle is not required to be equipped with or display a red light visible from the front of the vehicle. (c) A police officer may operate an authorized emergency vehicle for a law enforcement purpose without using the audible or visual signals required by Section 546.003 if the officer is: (1) responding to an emergency call or pursuing a suspected violator of the law with probable cause to believe that: (A) knowledge of the presence of the officer will cause the suspect to: (i) destroy or lose evidence of a suspected felony; (ii) end a suspected continuing felony before the officer has obtained sufficient evidence to establish grounds for arrest; or (iii) evade apprehension or identification of the suspect or the suspect’s vehicle; or (B) because of traffic conditions on a multilaned roadway, vehicles moving in response to the audible or visual signals may: (i) increase the potential for a collision; or (ii) unreasonably extend the duration of the pursuit; or (2) complying with a written regulation relating to the use of audible or visible signals adopted by the local government that employs the officer or by the department. History Enacted by Acts 1995, 74th Leg., ch. 165 (S.B. 971), § 1, effective September 1, 1995. Texas Statutes & Codes Annotated by LexisNexis® Copyright © 2015 Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. Tex. Transp. Code § 546.005 This document is current through the 2015 regular session, 84th Legislature, S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B. 835 (ch. 6), S.B. 901 (ch. 54), S.B. 903 (ch. 3), S.B. 1749 (ch. 29), and S.B. 1985 (ch. 4). Texas Statutes & Codes Annotated by LexisNexis® > Transportation Code > Title 7 Vehicles and Traffic > Subtitle C Rules of the Road > Chapter 546 Operation of Authorized Emergency Vehicles and Certain Other Vehicles > Subchapter A Authorized Emergency Vehicles Sec. 546.005. Duty of Care. This chapter does not relieve the operator of an authorized emergency vehicle from: (1) the duty to operate the vehicle with appropriate regard for the safety of all persons; or (2) the consequences of reckless disregard for the safety of others. History Enacted by Acts 1995, 74th Leg., ch. 165 (S.B. 971), § 1, effective September 1, 1995. Texas Statutes & Codes Annotated by LexisNexis® Copyright © 2015 Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. 85 86 87 88 89 93 94 95 96 102 103 270 271 SPANISH AFFIDAVIT OF SERGIO VELIS SANCHEZ; TAKEN ON JANUARY 11TH 2014 [English Translation of Testimony] “My name is Sergio Velis Sanchez. I am over 18 years of age, in my right mind and capable and capable of making this affidavit. The facts in this affidavit are within my personal knowledge and are true and correct. The day of 26 of May in 2010, around six twenty in the afternoon I was at the stop sign of the intersections of the streets Cesar Chavez and Curve, Edinburg, Texas, looking east. I Drove towards the east in Curve Road and about half a mile later after passing the stop sign, I saw a black Ford Expedition truck that was driving west on Curve Road. The black Expedition passed me, I saw in the rear view mirror that it did not make a stop and crashed with a red car. I did not hear sirens and I did not see officer following the black Ford Expedition that crashed. The red car that had crashed with the black Ford Expedition was heading south. I saw that dust was raised in the intersection of Cesar Chavez and Curve so I stopped; I went back to the intersection of Cesar Chavez and Curve. I turned towards the left on Cesar Chavez and I parked. About three minutes later the County Sheriffs got there, I understand that in my first testimony I put that the first two officer’s trucks were white but after further reflection I remember that one was black and one was white.” Page 1 of 1

SPANISH AFFIDAVIT OF ARMANDO VELIS; TAKEN ON JANUARY 11TH 2014

[English Translation of Testimony]

“My name is Armando Velis. I am over 18 years of age, in my right mind and capable and capable of making this affidavit. The facts in this affidavit are within my personal knowledge and are true and correct.

The day 26 of May of 2010, around six thirty in the afternoon, I was in my shop when I heard a loud sound from the Road. I went outside, to Curve Road. I saw a black Ford

Expedition that had crashed, and I also saw a red car that had crashed. I thought that the turned red car was my brother Sergio, because he had just left the shop. I saw five men and a woman

get out of the black Expedition. Two men from the Expedition had been ejected. One of the men tried getting into my house but my wife closed the door. One of the men jumped my neighbors’ fence but he stayed in the floor. After two to three minutes I returned to my shop, I

was standing outside my shop when I saw a black Ford Expedition from the County arrive. The officer took out his pistol and he pointed it at the subjects that had gotten out of the black

Expedition that had crashed. Officers got there later and started looking for the subjects that had gotten out of the truck. I live and have my shop in the corner of Cesar Chavez and Curve.”

City of Dallas v. Hillis Court of Appeals of Texas, Fifth District, Dallas March 30, 2010, Opinion Issued No. 05-08-01644-CV

Reporter 308 S.W.3d 526; 2010 Tex. App. LEXIS 2854 CITY OF DALLAS, Appellant v. PHIL HILLIS, (Texas), which granted in part and denied in part INDIVIDUALLY AND AS PERSONAL appellant city’s plea to the jurisdiction based on REPRESENTATIVE OF THE ESTATE OF governmental immunity in a suit brought by TAYLOR HILLIS, DECEASED, AND BUFFY appellee survivors arising from the death of a HILLIS, Appellees motorcyclist during a police chase.

Subsequent History: Released for Publication Overview May 11, 2010. A city police officer attempted to stop the Rehearing overruled by City of Dallas v. Hillis, motorcyclist and, when he fled, chased him at 2010 Tex. App. LEXIS 3507 (Tex. App. Dallas, high speed until he crashed. The court stated that Apr. 29, 2010) the survivors’ notice of cross-appeal, although Petition for review denied by Hillis v. City of late, was filed within the 15-day grace period Dallas, 2011 Tex. LEXIS 343 (Tex., Apr. 29, 2011) provided by Tex. R. App. P. 26.3 and was sufficiently explained under Tex. R. App. P. Prior History: [**1] On Appeal from the County 10.5(b)(1)(C) by a mistaken belief that it was Court at Law No. 1, Dallas County, Texas. Trial timely. The court held that Tex. Civ. Prac. & Rem. Court Cause No. cc-08-03205-A. Code Ann. § 101.0215 (2005) did not provide an independent basis for a waiver of governmental Core Terms immunity. The city did not waive the defense of governmental immunity by a judicial admission governmental immunity, immunity, trial court, because a statement in its answer indicating that pet, patrol car, cross-appeal, waived, motorcycle, the statutory waiver of governmental immunity notice, fleeing, traffic, speed, miles per hour, was applicable, which immediately followed a police officer, negligently, injuries, causal nexus, statement invoking the defense of governmental video, ramp, judicial admission, summary immunity, was not unequivocal and thus could not judgment, entrustment, eastbound, argues, be a judicial admission. The motorcyclist’s death governmental function, motor vehicle, police car, was not caused, for purposes of Tex. Civ. Prac. & supervision, discipline, passenger Rem. Code Ann. § 101.021(1)(A) (2005), by the operation of the patrol car because he caused his accident by his own reckless driving. No general Case Summary waiver of immunity existed for claims that an officer negligently carried out governmental Procedural Posture policy. Cross-appeals were taken from an order of the County Court at Law No. 1, Dallas County Outcome

Page 2 of 11 308 S.W.3d 526,[*526] ; 2010 Tex. App. LEXIS 2854, **1

The court affirmed the dismissal of claims for court rules on the plea to the jurisdiction as a negligent hiring, retention, and assignment; matter of law. This standard generally mirrors that negligent supervision, training, and direction; and of a summary judgment under Tex. R. Civ. P. negligent failure to discipline. The court reversed 166a(c). By requiring the political subdivision to the denial of the city’s plea to the jurisdiction as to meet the summary judgment standard of proof in claims for negligent implementation of policy, such cases, courts protect the plaintiffs from negligent entrustment, and wrongful death and having to put on their case simply to establish survival. The court rendered judgment dismissing jurisdiction. The standard of review is de novo. the case for lack of subject-matter jurisdiction. Governments > Local Governments > Claims By & LexisNexis® Headnotes Against Torts > Public Entity Liability > Immunities > Civil Procedure > Appeals > Reviewability of Sovereign Immunity Lower Court Decisions > Timing of Appeals Torts > ... > Liability > State Tort Claims Acts > HN1 An appellate court implies a motion to Entities Covered extend time to file a notice of appeal where the notice was filed within the 15-day grace period HN3 A municipality enjoys governmental provided by Tex. R. App. P. 26.3. The inquiry then immunity from suit and from liability for its becomes whether the appellants have furnished a governmental functions. Police protection is a reasonable explanation for the untimely filing. governmental function. Tex. Civ. Prac. & Rem. Tex. R. App. P. 10.5(b)(1)(C). Under this standard, Code Ann. § 101.0215(a)(1) (2005). The Texas any conduct short of deliberate or intentional Tort Claims Act provides a limited waiver of noncompliance qualifies as a reasonable governmental immunity if certain conditions are explanation. A party’s mistaken belief that no met. extension was required because the notice of Torts > ... > Liability > State Tort Claims Acts > appeal was timely reasonably explains the failure General Overview to file a motion for an extension of time. HN4 See Tex. Civ. Prac. & Rem. Code Ann. § Civil Procedure > ... > Responses > Defenses, 101.021 (2005). Demurrers & Objections > Motions to Dismiss Civil Procedure > Appeals > Standards of Review > Torts > ... > Liability > State Tort Claims Acts > De Novo Review General Overview Governments > Local Governments > Claims By & HN5 Tex. Civ. Prac. & Rem. Code Ann. § 101.0215 Against (2005) is not a free-standing waiver of HN2 If a plea to the jurisdiction challenges the governmental immunity. Section 101.0215 does existence of jurisdictional facts, the trial court not provide an independent basis for a waiver of governmental immunity. must consider relevant evidence submitted by the parties. If the evidence creates a fact question Evidence > Types of Evidence > Judicial regarding the jurisdictional issue, the trial court Admissions > Pleadings must deny the plea to the jurisdiction, and the fact issue will be resolved by the fact finder. But if the HN6 Assertions of fact, not pleaded in the relevant evidence is undisputed or fails to raise a alternative, in the live pleadings of a party are fact question on the jurisdictional issue, the trial regarded as formal judicial admissions. A judicial

Page 3 of 11 308 S.W.3d 526,[*526] ; 2010 Tex. App. LEXIS 2854, **1

admission must be a clear, deliberate, and governmental policy. That is, unless the plaintiff’s unequivocal statement. negligent-implementation-of-policy claim comes within some statutory waiver of immunity, Torts > ... > Liability > State Tort Claims Acts > immunity is not waived as to that claim. A claim General Overview against a municipality arising from the HN7 Under Tex. Civ. Prac. & Rem. Code Ann. § performance of a governmental function is barred 101.021(1)(A) (2005), governmental immunity is by immunity unless a statutory waiver of immunity waived if several elements are met, one of which applies. is that the injury or death sued upon must arise from the operation or use of a motor-driven Counsel: For APPELLANT: Patricia M. Medrano, vehicle or motor-driven equipment. The ″arises City of Dallas Attorney’s Office, Dallas, TX. from″ requirement means that the vehicle’s use must have actually caused the injury. The causal For APPELLEE: Jeffrey Simon, Sean R. Cox, nexus is not satisfied by the mere involvement of Simon, Eddins, & Greenstone, LLP., Dallas, TX; a vehicle, nor by an operation or use that does no Randy Isenberg, Dallas, TX. more than furnish the condition that makes the Judges: Before Justices Moseley, FitzGerald, and injury possible. When an alleged cause is Lang-Miers. Opinion By Justice FitzGerald. geographically, temporally, or causally attenuated from the alleged effect, that attenuation will tend Opinion by: KERRY P. FITZGERALD to show that the alleged cause did no more than furnish the condition that made the effect possible. Opinion Torts > ... > Liability > State Tort Claims Acts > [*528] Opinion By Justice FitzGerald General Overview Appellees sued the City of Dallas on claims HN8 The chain of causation can be broken under arising from the death of Taylor Hillis. The City Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(A) filed a plea to the jurisdiction based on (2005) when the injury most directly results from governmental immunity. The trial court signed an the injured person’s own decisions. A person’s order granting the plea in part and denying it in deliberate decision to flee from police can undercut part. The City timely perfected this interlocutory the claim that resulting injuries are caused by the appeal from that order. Appellees cross-appealed police. Allegations of causation may be insufficient the order to the extent the trial court granted the where a pursuing police vehicle did not hit a plea. We conclude that all of appellees’ claims are fleeing vehicle or otherwise physically force it off barred by governmental immunity, so we affirm in the road or into another vehicle or object. part and reverse in part. Governments > Local Governments > Claims By & I. BACKGROUND Against Torts > Public Entity Liability > Immunities > Phil and Buffy Hillis sued the City of Dallas. Sovereign Immunity Their live pleading at the time of the order now on appeal was their first amended petition. In the first Torts > ... > Liability > State Tort Claims Acts > General Overview amended petition, they allege the following facts. On October 6, 2006, Dallas police officer HN9 There is no general waiver of immunity for [**2] Fernando Perez attempted to initiate a claims that an officer negligently carried out routine traffic stop of Taylor Hillis, who [*529]

Page 4 of 11 308 S.W.3d 526,[*529] ; 2010 Tex. App. LEXIS 2854, **2

was operating a motorcycle. When Hillis did not granted the plea as to the Hillises’ claims for (1) stop, Perez pursued in his police car at speeds negligent hiring, retention, and assignment; (2) exceeding 110 miles per hour. Perez followed negligent supervision, training, and direction; and Hillis onto South Central Expressway. At the (3) negligent failure to discipline. The court denied ″High Five″ overpass, Hillis entered the eastbound the plea as to the claims for (1) negligent ramp to Interstate 635. Hillis lost control of his implementation of policy; (2) negligent motorcycle on the ramp, causing him and his entrustment; and (3) wrongful death and survival. passenger to fall off the overpass and to sustain The City appealed the court’s order, and the fatal injuries. Hillises filed a notice of cross-appeal. [**4] We have jurisdiction pursuant to section 51.014(a)(8) The Hillises assert wrongful-death and survival of the civil practice and remedies code. claims against the City for the death of Taylor Hillis. They invoke several legal theories of II. MOTION TO DISMISS CROSS-APPEAL liability. First, they allege that Perez’s negligently The City has moved to dismiss the Hillises’ caused Hillis’s death by his conduct. In connection cross-appeal because their notice of cross-appeal with this claim, they allege that Perez violated the was untimely. The trial court signed the relevant Dallas Police Department’s own ″no-chase policy″ order on December 3, 2008. The City timely filed governing high-speed chases. Second, they allege its notice of appeal on December 10, 2008. The that the City negligently hired, retained, and Hillises filed their notice of cross-appeal on assigned Perez. Third, they allege that the City January 5, 2009. Under Texas Rule of Appellate negligently supervised, trained, and directed Perez. Procedure 26.1(d), the notice of cross-appeal was Fourth, they allege that the City negligently due on December 24, 2009. 1 The Hillises entrusted the patrol car to Perez. Fifth, they allege acknowledge that their notice of cross-appeal was that the City negligently failed to discipline Perez late, but they point out that they filed the notice for prior instances [**3] of negligent or reckless within the fifteen-day grace period provided by conduct. The Hillises also assert globally that rule 26.3. Under Verburgt v. Dorner, 959 S.W.2d ″[a]ll of the allegations in this Petition address the 615, 617 (Tex. 1997), HN1 we imply a motion to negligent implementation of policy.″ extend time to file notice of appeal under these The City filed a plea to the jurisdiction attacking circumstances. The inquiry then becomes whether all of the claims pleaded in the Hillises’ original the Hillises have furnished a reasonable petition. After the Hillises amended their explanation for the untimely filing. TEX. R. APP. pleadings, the City filed a supplemental plea to P. 10.5(b)(1)(C). Under this standard, any conduct the jurisdiction to address the new allegations in short of deliberate or intentional noncompliance the first amended petition. The trial court held an qualifies as a reasonable [*530] explanation. evidentiary hearing on the City’s plea to the Hone v. Hanafin, 104 S.W.3d 884, 886-87 (Tex. jurisdiction. At the hearing, the court admitted 2003) (per curiam). The Hillises’ [**5] attorney into evidence the video recording made by the has explained that he misinterpreted the appellate dashboard camera in Perez’s patrol carduring the rules and mistakenly believed he had timely incident in question. cross-appealed by filing the notice of cross-appeal within thirty days of the interlocutory order in The trial court signed an order granting the City’s question. We accept this as a reasonable plea in part and denying it in part. The court explanation and deny the City’s motion to dismiss. ^[1] The Hillises do not contend that the clerk’s office was closed on December 24 for the Christmas holiday, but their notice of cross-appeal was untimely even if the holiday extended their deadline to Monday, December 29, 2008.

Page 5 of 11 308 S.W.3d 526,[*530] ; 2010 Tex. App. LEXIS 2854, **5

See Christus Health Se. Tex. v. Broussard, 267 S.W.3d 98, 103 (Tex. App.--Dallas 2008, pet. S.W.3d 531, 533-34 (Tex. App.--Beaumont 2008, denied). [**7] Police protection is a governmental no pet.) (″A party’s mistaken belief that no function. TEX. CIV. PRAC. & REM. CODE ANN. extension was required because the notice of § 101.0215(a)(1) (Vernon 2005). The Texas Tort appeal was timely reasonably explains the failure Claims Act provides a limited waiver of to file a motion for an extension of time.″). governmental immunity if certain conditions are met. Harris County v. Sykes, 136 S.W.3d 635, 638 III. ANALYSIS (Tex. 2004). The relevant section of the Act provides: The City argues in three issues that the trial court erred to the extent it denied the City’s plea to the HN4 A governmental unit in the state is liable for: jurisdiction. The Hillises argue in a single issue in their cross-appeal that the trial court erred to the (1) property damage, personal injury, and extent it granted the City’s plea to the jurisdiction. death proximately caused by the wrongful act or omission or the negligence of an employee A. Standard and scope of review acting within his scope of employment if: HN2 If the plea to the jurisdiction challenges the (A) the property damage, personal injury, existence of jurisdictional facts, the trial or death arises from the operation or use of [**6] court must consider relevant evidence a motor-driven vehicle or motor-driven submitted by the parties. Tex. Dep’t of Parks & equipment; and Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. (B) the employee would be personally 2004). If the evidence creates a fact question liable to the claimant according to Texas regarding the jurisdictional issue, the trial court law; and must deny the plea to the jurisdiction, and the fact issue will be resolved by the fact finder. But if the (2) personal injury and death so caused by a relevant evidence is undisputed or fails to raise a condition or use of tangible personal or real fact question on the jurisdictional issue, the trial property if the governmental unit would, were court rules on the plea to the jurisdiction as a it a private person, be liable to the claimant matter of law. Id. at 227-28. ″[T]his standard according to Texas law. generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c). . . . TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 By requiring the [political subdivision] to meet (Vernon 2005). the summary judgment standard of proof in cases [*531] The Hillises argue that section 101.0215 like this one, we protect the plaintiffs from having of the civil practice and remedies code is an to ’put on their case simply to establish independent waiver provision that waives jurisdiction.″’ Id. at 228. Our standard of review municipalities’ governmental immunity for all is de novo. Id. [**8] damages arising from all ″governmental B. The law of governmental immunity functions,″ including police services. See generally id. § 101.0215. They further argue that we HN3 A municipality enjoys governmental embraced their interpretation of section 101.0215 immunity from suit and from liability for its in footnote 2 of our opinion in City of Celina v. governmental functions. Gipson v. City of Dallas, Blair, 171 S.W.3d 608 (Tex. App.--Dallas 2005, no 247 S.W.3d 465, 469 (Tex. App.--Dallas 2008, pet. pet.). The City argues that the Hillises misinterpret denied); accord City of Dallas v. Heard, 252 City of Celina and that Texas courts have

Page 6 of 11 308 S.W.3d 526,[*531] ; 2010 Tex. App. LEXIS 2854, **8

uniformly held that section 101.0215 is not an The City would show that the allegations independent waiver of governmental immunity. against it herein concern a governmental See, e.g., Sanders v. City of Grapevine, 218 function, police protection, and that the limited S.W.3d 772, 778 (Tex. App.--Fort Worth 2007, pet. waiver of governmental immunity set forth in denied) (″[Section 101.0215] does not provide an Chapter 101 of the Texas Civil Practice and independent basis for a waiver of governmental Remedies [Code] is applicable. [**10] In the immunity.″); City of Kemah v. Vela, 149 S.W.3d unlikely event that Plaintiffs can prove a cause 199, 203-04 n.1 (Tex. App.--Houston [14th Dist.] of action against the City, then Plaintiffs’ 2004, pet. denied) (same); accord City of Houston monetary recovery would be governed by the v. Rushing, 7 S.W.3d 909, 914 (Tex. App.--Houston limits set forth therein. [1st Dist.] 1999, pet. denied); City of Garland v. Jezari, No. 05-99-02188-CV, 2000 Tex. App. LEXIS The Hillises argue that the second sentence in the 3644, 2000 WL 707289, at *2 (Tex. App.--Dallas foregoing passage constitutes an unequivocal June 1, 2000, no pet.) (not designated for admission that the statutory ″waiver of publication). governmental immunity . . . is applicable.″

We agree with the City that footnote 2 in our City HN6 Assertions of fact, not pleaded in the of Celina opinion does not support the Hillises’ alternative, in the live pleadings of a party are interpretation of section 101.0215. That footnote regarded as formal judicial admissions. Holy Cross states, in its [**9] entirety: Church of God in Christ v. Wolf, 44 S.W.3d 562, The City’s participation in the functions of 568 (Tex. 2001). ″A judicial admission must be a constructing, designing, and maintaining roads clear, deliberate, and unequivocal statement.″ is governmental in nature, rather than Regency Advantage Ltd. P’ship v. Bingo proprietary. Thus the City is civilly liable for Idea--Watauga, Inc., 936 S.W.2d 275, 278 (Tex. damages pursuant to those functions only 1996) (per curiam). Reading the City’s pleading where the legislature has waived its sovereign as a whole, we conclude that the City did not immunity in the Act. See TEX. CIV. PRAC. & judicially admit that its governmental immunity REM. CODE ANN. § 101.0215(a)(3), (4). was waived as [*532] to the Hillises’ claims. The second sentence in the above quotation is 171 S.W.3d at 610-11 n.2. HN5 Section 101.0215 contradicted by the assertion in the preceding is not a free-standing waiver of governmental sentence that the City ″invokes the defense of immunity. We hold that section 101.0215 does not governmental immunity.″ Even if we determined provide an independent basis for a waiver of the paragraph to be equivocal, it nevertheless governmental immunity. would not be a judicial admission. See Price Pfister, Inc. v. Moore & Kimmey, Inc., 48 S.W.3d C. Application of the law to the facts 341, 349 (Tex. App.--Houston [14th Dist.] 2001, pet. denied) [**11] (″Because the statement made 1. Waiver by judicial admission by MKI’s attorney was, at best, equivocal, it The Hillises make a threshold argument that the cannot constitute a judicial admission.″). City waived the defense of governmental immunity by a judicial admission in the City’s We reject the Hillises’ contention that the City live pleading (its original answer). The relevant judicially admitted that governmental immunity is passage from the City’s answer follows: inapplicable. For further answer, Defendant, City of Dallas, invokes the defense of governmental immunity. 2. Liability for Perez’s negligence

Page 7 of 11 308 S.W.3d 526,[*532] ; 2010 Tex. App. LEXIS 2854, **11

The first liability theory pleaded by the Hillises is The only evidence admitted at the hearing on the that the City is liable because Perez negligently City’s plea to the jurisdiction was the video taken and directly caused Taylor Hillis’s death by by the camera mounted in Perez’s patrol car. The initiating and continuing a high-speed chase video shows the following [**13] sequence of contrary to the no-chase policy of the Dallas events. At about 2:30 a.m. on October 6, 2006, Police Department. In its second issue on appeal, Perez parked his patrol car on the street near an the City argues that it is immune as to this claim apartment complex. A few moments later, a because Hillis’s death did not arise from the use motorcycle emerged from the complex, turned of a motor vehicle. The Hillises argue that there is right without stopping, and proceeded down the a sufficient causal nexus between Perez’s use of street away from Perez. Perez immediately began the patrol car and Taylor Hillis’s death to satisfy to follow the motorcycle in his patrol car. About section 101.021(1)(A). We agree with the City. 45 seconds later, the video shows that the motorcycle was traveling about 51 miles per hour HN7 Under section 101.021(1)(A), governmental in a 35-mile-per-hour zone. At that point, Perez immunity is waived if several elements are met, activated his vehicle’s emergency lights. The one of which is that the injury or death sued upon motorcyclist (Hillis) accelerated and attempted to must ″arise[] from the operation or use of a flee, thereby committing another traffic violation. motor-driven vehicle or motor-driven equipment.″ See TEX. TRANSP. CODE ANN. § 545.421(a) TEX. CIV. PRAC. & REM. CODE ANN. § (Vernon Supp. 2009) (forbidding a motorist from 101.021(1)(A) (Vernon 2005); see also LeLeaux v. fleeing a police vehicle after being signaled to Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d stop). Perez followed at [*533] speeds reaching 49, 51 (Tex. 1992) [**12] (holding that the 78 miles per hour during this phase of the pursuit. ″operation or use″ in question must be operation A passenger on the motorcycle looked back at or use by the governmental employee). The Perez at least once during this part of the pursuit. Less than a minute after Perez activated his supreme court has construed the ″arises from″ emergency lights, Hillis entered southbound requirement to mean that the vehicle’s use ″must Central Expressway. His speed is unknown, but have actually caused the injury.″ Dallas Area despite Perez’s speed of 92 miles per hour, Hillis Rapid Transit v. Whitley, 104 S.W.3d 540, 543 quickly pulled so far ahead of Perez as to be out (Tex. 2003) (internal quotations omitted). The of sight [**14] for a short time. Only by causal nexus is not satisfied by-the mere accelerating to over 100 miles per hour was Perez involvement of a vehicle, nor by an operation or able to bring the motorcycle back into view as the use that ″does no more than furnish the condition two vehicles approached the exit ramp from that makes the injury possible.″ Id. (internal Central Expressway to Interstate 635. quotations omitted). When an alleged cause is geographically, temporally, or causally attenuated The vehicles entered the exit ramp leading to from the alleged effect, that attenuation will tend Interstate 635, both eastbound and westbound. to show that the alleged cause did no more than Traffic entering the ramp passes a yellow traffic furnish the condition that made the effect possible. sign posting a speed limit of 45 miles per hour for See Dallas County Mental Health & Mental the ramp. When Perez reached this point, his Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. speed was about 107 miles per hour, but he made 1998) (escaped mental patient’s death on a freeway slight progress in catching up to Hillis. As traffic was ″distant geographically, temporally, and approaches the fork in the exit ramp for eastbound causally″ from the unlocked doors through which and westbound Interstate 635, it passes a second he escaped). yellow traffic sign, illegible in the video, where

Page 8 of 11 308 S.W.3d 526,[*533] ; 2010 Tex. App. LEXIS 2854, **14

the eastbound fork curves sharply to the left. As from claims for injuries allegedly caused by Hillis entered the left curve of the eastbound fork, failure to timely send ambulance in response to he lost control of the motorcycle. He was still so 911 call). far ahead of Perez that the video shows no details Some Texas cases do indicate, however, that HN8 of the accident except for several flashes of the chain of causation can be broken when the sparks. Although Perez’s speed was about 105 injury most directly results from the injured miles per hour at the moment of the accident, it person’s own decisions. One such case is City of still took Perez about ten seconds to reach the Sugarland v. Ballard, 174 S.W.3d 259 (Tex. approximate area where Hillis had lost control of App.--Houston [1st Dist.] 2005, no pet.). In that his motorcycle. There Perez stopped his car and case, police officers had arrested Mark Ballard got out to [**15] investigate. and were transporting him in a patrol car when he The parties attached some documents to their escaped from the car and was killed shortly filings relating to the City’s plea to the jurisdiction, thereafter when hit by another car. Id. at 263. The but they do not shed any additional light on the court held that Ballard’s [*534] death was not pivotal question of whether Perez’s use of the caused by the use of the patrol car: ″The actual patrol car caused the accident and the death of cause of Mark’s death was his deliberate decision Taylor Hillis. In particular, the Hillises attached to flee into freeway traffic and a separate car’s an expert report by a retired police officer to their hitting him there; the failure to secure Mark in the response, and they point out that the expert stated first place merely furnished the condition that in his report that the City’s gross deficiencies in made it possible for him to escape and then run retaining, supervising, and disciplining Perez into oncoming traffic.″ Id. at 266. Ballard thus ″were a direct causal factor in [Perez’s] pursuit of shows that a person’s deliberate [**17] decision Taylor Hillis and the subsequent fatal traffic to flee from police can undercut the claim that accident.″ But this assertion is a bare conclusion resulting injuries are ″caused″ by the police. We and in any event has no bearing on whether also take note of Texas Department of Public Perez’s use of the patrol car actually caused Safety v. Grisham, 232 S.W.3d 822 (Tex. Hillis’s death or merely furnished a condition that App.--Houston [14th Dist.] 2007, no pet.). In that made his death possible. In sum, the video of the case, a policeman parked his car on the right accident is the only relevant and competent shoulder with its emergency lights flashing, and evidence in the record. passing motorist Grisham was injured when he switched to the left lane and struck a disabled We have found little Texas authority closely on vehicle on the left shoulder that partially obstructed point. The City brings several cases to our his lane. Id. at 824. Although Grisham argued that attention, but they are not very similar to this case the police car caused the accident by ″funneling″ factually and give us little guidance on the him into the disabled vehicle, the court of appeals use-causation issue we must confront. See, e.g., held that the use of the police car merely furnished Whitley, 104 S.W.3d at 541 (DART immune from the condition that made the injury possible; it did claims by bus passenger who was ejected from not actually cause the injury. Id. at 827. ″In the bus and assaulted by others after ejection); end, Grisham’s decision to change lanes and the [**16] Tex. Natural Res. Conservation Comm’n v. collision with [the disabled] vehicle which White, 46 S.W.3d 864, 869-70 (Tex. 2001) followed actually caused his injuries.″ Id. In our (TNRCC immune from claims for property view, this case is like Ballard and Grisham in that damage allegedly caused by nonuse of motorized the only actual cause of Hillis’s accident was his pump); Gipson, 247 S.W.3d at 471 (city immune own decision to attempt to exit to eastbound

Page 9 of 11 308 S.W.3d 526,[*534] ; 2010 Tex. App. LEXIS 2854, **17

Interstate 635 at a reckless rate of speed. At most, down a one-way highway access road. Id. The Perez’s use of his police car only furnished the fleeing driver then crashed head-on into another condition that [**18] made Hillis’s accident motorist’s car, killing one person and injuring possible. others. Id. The victims of the crash sued the city and the police officers for negligence, among A case from the Michigan Supreme Court is also other liability theories. Id. at 96-97. The defendants instructive. In Robinson v. City of Detroit, the sought summary judgment on several theories court considered two consolidated cases in which including the absence of proximate [*535] cause, police pursuits ended in injuries to passengers in and the trial court granted summary judgment for the fleeing vehicles. 462 Mich. 439, 613 N.W.2d the defendants. Id. at 97. The court of appeals 307, 312-13 (Mich. 2000). Michigan had a similar affirmed based on the absence of proximate cause, statute waiving governmental immunity for [**20] but the supreme court reversed based on injuries ″resulting from″ the negligent operation the following causation analysis: of a government-owned motor vehicle. Id. at 315. Observing that waivers of immunity should be The . . . summary judgment evidence raises narrowly construed, the court held that the plaintiff the inference that [the fleeing motorist] drove passengers could not ″satisfy the ’resulting from’ down the access road at excessive speed language of the statute where the pursuing police because of the police decision to give chase. vehicle did not hit the fleeing car or otherwise There was summary judgment evidence that physically force it off the road or into another the conduct of the police officers was a cause vehicle or object.″ Id. at 316. Thus, the city of in fact of the accident in question, and of the Detroit’s immunity was not waived. Id. at 322. injuries for which the plaintiffs seek recovery. Using similar logic, we conclude that the claimants Id. at 98. in this case cannot satisfy the causation standard applicable in Texas. Perez did not hit Hillis’s We conclude that Travis is distinguishable. First, motorcycle with his patrol car. He did not the defendants in Travis actually conceded ″that physically force Hillis off the road or into another fact issues remain[ed] requiring reversal and vehicle or object. At the time of the accident, remand for trial.″ Id. at 99. The City has made no Perez’s operation of his vehicle was so physically such concession in this case. Second, it appears and temporally [**19] separated from Hillis’s the defendants in Travis did not argue immunity motorcycle that, as a matter of law, Perez’s as a separate defense on appeal because the Travis operation of his vehicle did not actually cause court analyzed the case only as a general Hillis’s accident. proximate-cause case, not an immunity case. See id. at 99-100. Thus, the Travis court considered The Hillises rely on the plurality opinion in Travis only the broad question of whether general police v. City of Mesquite, 830 S.W.2d 94 (Tex. 1992). In negligence caused the accident in question; it did that case, two off-duty police officers were not consider the narrower issue of whether the use working at a truck stop as late-night security of a police car was the actual cause of the accident guards. Id. at 96. Suspicious that the occupants of in question. By contrast, this case squarely presents a car in the back parking lot were involved in the question [**21] of what constitutes a sufficient prostitution, the officers obtained the driver’s causal nexus between the use of a police vehicle identification and asked him to drive to the front and a subsequent accident. parking lot and wait for them there. Id. Instead, the driver fled the scene, and the off-duty police For the foregoing reasons, we conclude as a officers followed him as he drove the wrong way matter of law that Perez’s use of his patrol car was

Page 10 of 11 308 S.W.3d 526,[*535] ; 2010 Tex. App. LEXIS 2854, **21

too attenuated from Hillis’s conduct for that use to governmental unit’s discretionary decisions); constitute a cause of Hillis’s injuries. The trial Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d court erred by failing to dismiss the Hillises’ 653, 657 (Tex. 2007) (construing section 101.056). claim based directly on the alleged negligence of [*536] In this case, this means that the Hillises’ Perez. negligent-implementation claim must satisfy section 101.021, including a causal nexus between 3. Liability for negligent implementation of the use of the [**23] patrol car and Taylor Hillis’s policy or entrustment death. The City has refuted that causal nexus as a matter of law. Accordingly, the trial court erred by In its first issue on appeal, the City argues that it failing to dismiss the Hillises’ claim for negligent is immune from the Hillises’ claims based on the implementation of policy. City’s allegedly negligent implementation of policy and negligent entrustment of a vehicle to As to negligent entrustment, the City argues that Perez. We address each theory in turn. immunity is never waived for such claims because the act of entrusting a motor vehicle does not The Hillises argue as a general proposition that a constitute the operation or use of a motor vehicle. governmental unit is not immune if an injury is The City relies on two Texas appellate decisions caused by a negligent implementation of a for support. See Los Fresnos Consol. Indep. Sch. governmental policy. This is not a correct Dist. v. Rivas, No. 13-04-168-CV, 2005 Tex. App. statement of the law. HN9 There is no general LEXIS 6627, 2005 WL 1981494, at *6 (Tex. waiver of immunity for claims that an officer App.--Corpus Christi Aug. 18, 2005, pet. denied) negligently carried out governmental policy. Perez (mem. op.); Waldon v. City of Longview, 855 v. City of Dallas, 180 S.W.3d 906, 911 (Tex. S.W.2d 875, 880 (Tex. App.--Tyler 1993, no writ). App.--Dallas 2005, no pet.); City of Garland v. We need not decide whether this general Rivera, 146 S.W.3d 334, 338 (Tex. App.--Dallas proposition of law is correct. A claim against a 2004, no pet.). That is, [**22] unless the plaintiff’s municipality arising from the performance of a negligent-implementation-of-policy claim comes governmental function is barred by immunity within some statutory waiver of immunity, unless a statutory waiver of immunity applies. See immunity is not waived as to that claim. Rivera, City of Dallas v. Blanton, 200 S.W.3d 266, 271 146 S.W.3d at 338. The Hillises rely on judicial (Tex. App.--Dallas 2006, no pet.). We have already statements like the following: ″If . . . an officer or concluded that there was not a sufficient causal employee acts negligently in carrying out nexus between Perez’s operation of his patrol car [government] policy, government liability may and Taylor Hillis’s death to satisfy the only exist under the Act.″ State v. Terrell, 588 S.W.2d statutory waiver [**24] in play, section 101.021. 784, 788 (Tex. 1979) (emphasis added). The point Accordingly, the City has established that its of statements such as these, however, is not to governmental immunity was not waived as to the recognize a new category of waiver of Hillises’ negligent-entrustment claim, and the trial governmental immunity for ″negligent court erred by failing to dismiss that claim for implementation of policy,″ but rather to distinguish lack of jurisdiction. negligent-implementation claims; for which immunity is waived if some other waiver provision 4. Cross-appeal applies, from claims for negligent formulation of policy, for which immunity is retained. See TEX. In their cross-appeal, the Hillises argue that the CIV. PRAC. & REM. CODE ANN. § 101.056 trial court erred by dismissing their claims for (Vernon 2005) (retaining immunity for a negligent hiring, retention, and assignment;

Page 11 of 11 308 S.W.3d 526,[*536] ; 2010 Tex. App. LEXIS 2854, **24

negligent supervision, training, and direction; and IV. CONCLUSION negligent failure to discipline. They contend that section 101.021 waives immunity as to these The City established that governmental immunity defeats every claim asserted by the Hillises. Thus, liability theories because the negligent conduct the trial court lacks subject-matter jurisdiction alleged under each theory ″ultimately resulted in over this lawsuit. the negligent operation of the motor vehicle that caused the death of Taylor Hillis.″ We have We affirm the trial court’s order to the extent the already concluded that the evidence conclusively court granted the City’s plea to the jurisdiction refutes the causal nexus between Perez’s operation and dismissed the Hillises’ claims for negligent of his patrol car and Hillis’s death. Accordingly, hiring, retention, and assignment; negligent the trial court correctly determined that supervision, training, and direction; and negligent governmental immunity was not waived as to failure to discipline. We reverse the trial court’s these theories of liability, and it properly dismissed order to the extent the court denied the City’s plea those claims for lack of jurisdiction. to the jurisdiction, and we render judgment dismissing the case for lack of subject-matter 5. Duty jurisdiction.

In light of the foregoing, we need not address the /s/ Kerry P. Fitzgerald City’s third issue, in which it argues that it owed KERRY P. FITZGERALD no legal duty to Hillis [**25] as a suspect fleeing from a police officer. We express no opinion on JUSTICE that issue.

Teague v. City of Dallas Court of Appeals of Texas, Fifth District, Dallas May 4, 2011, Opinion Filed No. 05-10-01163-CV

Reporter 344 S.W.3d 434; 2011 Tex. App. LEXIS 3341 LISA TEAGUE, Appellant v. CITY OF DALLAS vehicles, and the trial court improperly excluded a ET. AL., Appellees witness statement. The appellate court noted that its inquiry turned on whether the passenger’s Subsequent History: Released for Publication injuries arose from the negligent operation of a June 13, 2011. motor-driven vehicle pursuant to Tex. Civ. Prac. Petition for review denied by Teague v. City of & Rem. Code Ann. § 101.021. The pleadings did Dallas, 2011 Tex. LEXIS 564 (Tex., July 29, 2011) not allege and the evidence did not demonstrate a nexus between the operation of the city and Prior History: [**1] On Appeal from the 193rd county vehicles and the injuries the passenger Judicial District Court, Dallas County, Texas. sustained. The county’s and city’s operation of Trial Court Cause No. DC-08-05770-L. their vehicles was too physically and temporally separated from the driver’s conduct to constitute a Core Terms cause of the passenger’s injuries. The witness’s statement merely provided additional evidence trial court, injuries, vehicles, pursuit, patrol car, that the driver lost control of his vehicle before collision, immunity, asserts, traffic, governmental the collision occurred. This did not raise a fact immunity, governmental unit, motor-driven, city question about whether the police officer was and county, waive immunity, jurisdictional, negligent or whether his negligence caused the pleadings, pleas passenger’s injuries.

Case Summary Outcome The judgment was affirmed. Procedural Posture

The 193rd Judicial District Court, Dallas County, LexisNexis® Headnotes Texas, granted appellees’, city and county, pleas to the jurisdiction based on governmental Civil Procedure > ... > Subject Matter Jurisdiction > immunity on appellant passenger’s tort claims. Jurisdiction Over Actions > General Overview The passenger appealed. Civil Procedure > Appeals > Standards of Review > De Novo Review Overview HN1 An assertion of governmental immunity The passenger argued the trial court erred because from suit challenges the trial court’s exercise of the evidence raised fact issues concerning the subject matter jurisdiction and is properly asserted negligent use and operation of motor-driven in a plea to the jurisdiction. Whether a trial court

Page 2 of 7 344 S.W.3d 434,[*434] ; 2011 Tex. App. LEXIS 3341, **1

has subject matter jurisdiction is a question of law Torts > ... > Liability > State Tort Claims Acts > that the appellate court reviews de novo. In Entities Covered reviewing a trial court’s ruling on a plea to the jurisdiction, the appellate court does not look to HN4 The legislature granted a limited waiver of the merits of a case, but considers only the immunity in the tort claims act, which allows suits pleadings and the evidence relevant to the to be brought against governmental units in limited jurisdictional inquiry, and it construes the circumstances. When the governmental unit is a pleadings liberally in favor of conferring municipality, the waiver of immunity analysis jurisdiction. begins with the determination of whether the governmental unit was engaged in a governmental Civil Procedure > ... > Subject Matter Jurisdiction > function at the time of the action giving rise to the Jurisdiction Over Actions > General Overview claim, Tex. Civ. Prac. & Rem. Code Ann. § Civil Procedure > Appeals > Standards of Review > 101.0215(a) (2005). When the governmental unit General Overview is a county, however, this step of the inquiry is HN2 In a case in which the jurisdictional challenge unnecessary because all of the functions of a implicates the merits of the plaintiff’s cause of county are governmental. Once it is determined action and the plea to the jurisdiction includes that a governmental function is involved, the evidence, the trial court reviews the relevant question becomes whether the allegations meet evidence to determine if a fact issue exists. If the the requirements of Tex. Civ. Prac. & Rem. Code evidence creates a fact question regarding the Ann. § 101.021 (2005). jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue Torts > ... > Liability > State Tort Claims Acts > will be resolved by the fact finder. However, if the Exclusions From Liability relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial HN5 See Tex. Civ. Prac. & Rem. Code Ann. § court rules on the plea to the jurisdiction as a 101.021. matter of law. Torts > ... > Liability > State Tort Claims Acts > Civil Procedure > ... > Federal & State Exclusions From Liability Interrelationships > State Sovereign Immunity > HN6 In addition to ″operation″ or ″use,″ the tort State Immunity claims act requires a plaintiff to establish a causal Civil Procedure > ... > Federal & State connection between the governmental employee’s Interrelationships > State Sovereign Immunity > actions and the plaintiff’s injuries, Tex. Civ. Prac. Waiver of Immunity & Rem. Code Ann. § 101.021(1)(A). Therefore, HN3 When performing governmental functions, for liability to ″arise from″ the use of a motor political subdivisions derive governmental vehicle, there must be a nexus between the injury immunity from the state’s sovereign immunity. and the operation of the vehicle. When an alleged Governmental immunity from suit deprives the cause is geographically, temporally, or causally trial court of subject matter jurisdiction over a attenuated from the alleged effect, that attenuation plaintiff’s claims against a governmental entity will tend to show that the alleged cause did no unless the State consents to suit. Thus, in a suit more than furnish the condition that made the against a governmental unit, the plaintiff must effect possible. Thus, the causal nexus requires affirmatively demonstrate the trial court’s more than mere involvement of the property; the jurisdiction by alleging a valid waiver of immunity. vehicle’s use must have actually caused the injury.

Page 3 of 7 344 S.W.3d 434,[*434] ; 2011 Tex. App. LEXIS 3341, **1

Counsel: For APPELLANT: Grant B. Stock, Illinois Avenue. Aponte’s girlfriend, Teague, was Jessica Sharma Graham, Thomas Matthew Corea, a passenger in the vehicle. Officer Still attempted The Corea Firm, P.L.L.C., Dallas, TX. to initiate a traffic stop by turning on his emergency lights and siren, but Aponte refused to For APPELLEE: Todd Keith Sellars, Assistant stop. As Officer Still followed the vehicle, he saw District Attorney, Dallas, TX; Tatia R. Wilson, Teague’s head briefly appear in the back seat of Jason G. Schuette, Office of The City Attorney, the car. Teague looked back at Still and then Dallas City Hall, Dallas, TX; Barbara E. lowered her head. After a few minutes, Aponte Rosenberg, City of Dallas Attorney’s Office, increased the speed of his vehicle. Officer Still Dallas, TX. was eventually joined by another patrol car driven by deputy sheriff Darren Burgess. During the Judges: Before Justices Morris, Moseley, and course of the pursuit, Aponte drove at speeds Richter. Opinion By Justice Richter. exceeding ninety miles per hour, disregarded red lights, and ran a stop sign. As the pursuit continued, Opinion by: MARTIN RICHTER Officer Still radioed for assistance. After Aponte ran a red light at the intersection of Buckner Opinion Boulevard and Bruton Road, Officers Gilbert Salinas and John Ross from the Dallas Police [*436] Opinion By Justice Richter Department (″DPD″) joined the chase. The DPD car took the lead, and the county deputies acted as After the vehicle in which Lisa Teague was a backup. All of the patrol cars had their vehicle passenger was involved in a high-speed police sirens and emergency lights activated, but chase resulting in a collision, Teague sued the [**3] there was no communication between the City of Dallas (the ″City″) and Dallas County (the DPD officers and the county deputies because ″County″) under the tort claims act. The City and their radios are not on the same frequency. The the County each filed a plea to the jurisdiction patrol cars did not pull up beside Aponte’s vehicle based on governmental immunity, and the trial or attempt to bump it. The pursuit continued to court granted the pleas. In this interlocutory North Buckner Boulevard, and as Aponte neared appeal, Teague asserts the trial court erred because the intersection of Buckner and Peavy Road, he the evidence raised fact issues concerning the suddenly swerved his vehicle and cut across three negligent use and operation of motor-driven lanes of traffic onto the connector road to vehicles, and the trial court improperly excluded a northbound Peavy. As he did so, Aponte was witness statement. Teague further asserts the trial traveling approximately eighty miles per hour and court erred in construing her pleading to allege the DPD patrol car was approximately seventy intentional acts outside the scope of governmental yards away. When Aponte exited Buckner, he lost immunity. Concluding Teague’s arguments are control of his vehicle when it rotated without merit, we affirm the trial court’s orders. counterclockwise. None of the officers directed Aponte to exit Buckner, attempted to create a I. BACKGROUND roadblock, or attempted to force Aponte’s vehicle On May 26, 2006, Dallas County deputy constable off the road. Around the time Aponte exited, Billy Still was operating a patrol car while on duty Officer Steven Oliphant, an officer with the DPD, when he noticed a 1988 four-door green Pontiac was headed southbound in the right curbside lane [**2] Grand Prix without a vehicle registration of traffic on Peavy to assist in the pursuit. Aponte’s sticker on its windshield. The vehicle, driven by vehicle crossed over the center island curb into Jonathan Aponte, was traveling eastbound on East the southbound lane of traffic and its right

Page 4 of 7 344 S.W.3d 434,[*436] ; 2011 Tex. App. LEXIS 3341, **3

passenger area collided with Officer Oliphant’s HN1 An assertion of governmental immunity patrol car. The last event Officer Oliphant recalled from suit challenges the trial court’s exercise of was either sitting [**4] still at the red light or subject matter jurisdiction and is properly asserted approaching the red light waiting for it to turn in a plea to the jurisdiction. Tex. Dep’t of Parks & green. Teague does not remember the collision, Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. and Aponte died shortly after the accident. 2004). Whether a trial court has subject matter jurisdiction is a question of law that this Court [*437] Teague sued the City and the County reviews de novo. State v. Holland, 221 S.W.3d under the Texas Tort Claims Act (the ″Act″) for 639, 642 (Tex. 2007). In reviewing a trial court’s personal injuries arising from the collision. See ruling on a plea to the jurisdiction, we do not look TEX. CIV. PRAC. & REM. CODE ANN. 101.021(1)(A) to the merits of a case, but consider only the (West 2005). Specifically, Teague asserted that pleadings and the evidence relevant to the her negligence claims fell within the Act’s waiver jurisdictional inquiry, and we construe the of immunity arising from the operation or use of pleadings [**6] liberally in favor of conferring a motor-driven vehicle. Teague also asserted jurisdiction. Harris Cnty. v. Luna-Prudencio, 294 claims for negligent implementation of policy. S.W.3d 690, 695-96 (Tex. App.—Houston [1st The City and the County each filed a plea to the Dist.] 2009, no pet.). jurisdiction. The County asserted the official HN2 In a case in which the jurisdictional challenge immunity of its deputies and alleged that Teague’s implicates the merits of the plaintiff’s cause of injuries did not arise from the use or operation of action and the plea to the jurisdiction includes the County’s vehicles. The City also asserted evidence, the trial court reviews the relevant immunity and claimed there was no nexus between evidence to determine if a fact issue exists. Id. at the operation of the city vehicle in pursuit of 696. If the evidence creates a fact question Aponte and Teague’s injuries. The City further regarding the jurisdictional issue, then the trial asserted there was no waiver of immunity for court cannot grant the plea to the jurisdiction, and violation of a city policy. The trial court conducted the fact issue will be resolved by the fact finder. evidentiary hearings on the pleas to the Id. However, if the relevant evidence is undisputed jurisdiction. When the hearings concluded, the or fails to raise a fact question on the jurisdictional trial court granted both the City’s and [**5] the issue, the trial court rules on the plea to the County’s pleas and dismissed Teague’s claims for jurisdiction as a matter of law. Id. want of subject-matter jurisdiction. This appeal followed. HN3 When performing governmental functions, political subdivisions derive governmental II. DISCUSSION immunity from the state’s sovereign immunity. See City of Galveston v. State, 217 S.W.3d 466, Waiver of Immunity 469 (Tex. 2007). Governmental immunity from In her first issue, Teague asserts the trial court suit deprives the trial court of subject matter erred in granting the pleas to the jurisdiction jurisdiction over a plaintiff’s claims against a because her negligence claims fall within the governmental entity unless the State consents to waiver of immunity for personal injuries arising suit. Miranda, 133 S.W.3d at 224; Dallas County from the operation of a motor-driven vehicle. The v. Wadley, 168 S.W.3d 373, 376 (Tex. App.—Dallas City and County respond that the trial court 2005, pet. denied). [**7] Thus, in a suit against a properly concluded there was no subject-matter governmental unit, the plaintiff must affirmatively jurisdiction because Teague’s claims did not demonstrate [*438] the trial court’s jurisdiction invoke a waiver of governmental immunity. by alleging a valid waiver of immunity. Dallas

Page 5 of 7 344 S.W.3d 434,[*438] ; 2011 Tex. App. LEXIS 3341, **7

Area Rapid Transit v. Whitley, 104 S.W.3d 540, the present case, there is no dispute that the police 542 (Tex. 2003). action at issue involves a governmental function. See TEX. CIV. PRAC. & REM. CODE ANN. * 101.0215(a) HN4 The legislature granted a limited waiver of (1)(West 2005). Therefore, our inquiry turns on immunity in the tort claims act, which allows suits whether Teague’s injuries arose from the negligent to be brought against governmental units in limited operation of a motor-driven vehicle pursuant to circumstances. Tex. Dep’t of Crim. Justice v. section 101.021. Miller, 51 S.W.3d 583, 587 (Tex. 2001). When the governmental unit is a municipality, the waiver of Teague argues that the city officers and county immunity analysis begins with the determination deputies violated policies and procedures of whether the governmental unit was engaged in mandating termination of a chase resulting from a a governmental function at the time of the action traffic violation if the dangers of pursuit are too giving rise to the claim. See TEX. CIV. PRAC. & REM. great. According to Teague, the use and operation CODE ANN. * 101.0215(a) (West 2005). When the of the city and county [**9] vehicles in governmental unit is a county, however, this step contravention of these policies proximately caused of the inquiry is unnecessary because all of the the injuries she sustained as a passenger in functions of a county are governmental. See e.g., Aponte’s car. ^[1] We are not persuaded by this Nueces County v. San Patricio County, 246 S.W.3d argument. 651, 652 (Tex. 2008) (stating counties have no proprietary functions; all functions are HN6 In addition to ″operation″ or ″use,″ the tort governmental). Once it is determined that a claims act requires a plaintiff to establish a causal governmental function is involved, the question connection between the governmental employee’s becomes whether the allegations meet the actions and the plaintiff’s injuries. TEX. CIV. PRAC. requirements [**8] of section 101.021. See TEX. & REM. CODE ANN.* 101.021(1)(A). Therefore, for CIV. PRAC. & REM. CODE ANN. * 101.021 (West liability to ″arise from″ the use of a motor vehicle, 2005). Section 101.021 provides that a there must be a nexus between the injury and the governmental unit is liable (and may be sued) for: operation of the vehicle. See Whitley, 104 S.W.3d at 543; Tex. Natural Res. Conservation Comm’n v. HN5 (1) Property damage, personal injury, White, 46 S.W.3d 864, 869 (Tex. 2001); Gipson v. and death proximately caused by the wrongful City of Dallas, 247 S.W.3d 465, 471 (Tex. act or omission or the negligence of an App.—Dallas 2008, no pet.). As this court recently employee acting within the scope of his observed: employment if: When an alleged cause is geographically, (A) The property damage, personal injury, or temporally, or causally attenuated from the death arises from the operation or use of a alleged effect, that attenuation will [*439] motor-driven vehicle or motor-driven tend to show that the alleged cause did no equipment; and [**10] more than furnish the condition that (B) The employee would be personally liable made the effect possible. to the claimant according to Texas law . . . . City of Dallas v. Hillis, 308 S.W.3d 526, 532 (Tex. See id.; see also Whitley, 104 S.W.3d at 542-43. In App.—Dallas 2010, pet. denied) (citing Dallas 1 The City and County argue there is no waiver of immunity for negligent implementation of policy. But we do not construe Teague’s appellate challenge to assert waiver on this basis. Instead, Teague appears to argue the policy violation as a component of proximate cause.

Page 6 of 7 344 S.W.3d 434,[*439] ; 2011 Tex. App. LEXIS 3341, **10

County Mental Health & Retardation v. Bossley, Peavy Road when Aponte exited from Buckner, 968 S.W.2d 339, 343 (Tex. 1991)). Thus, the and there is no evidence to establish that he had causal nexus requires more than mere involvement actually joined the pursuit at that time. Neither the of the property; the vehicle’s use must have City nor the County vehicles ever attempted to actually caused the injury. Whitley, 104 S.W.3d at run Aponte’s vehicle off the road, pull up beside 543; Hillis, 308 S.W.3d at 532. Aponte’s vehicle, or bump it. None of the [**12] evidence controverted any of these facts or Here, the pleadings do not allege and the evidence otherwise raised an issue of fact concerning the does not demonstrate a nexus between the negligent operation of the City and County operation of the city and county vehicles and the vehicles. Therefore, the County’s and the City’s injuries Teague sustained. With regard to the operation of their vehicles was too physically and County, Teague’s second amended petition asserts temporally separated from Aponte’s conduct to that the officers were in pursuit of Aponte despite constitute a cause of Teague’s injuries. See Hillis, policies requiring the suspension of the pursuit. 308 S.W.3d at 534. Because the operation of the Teague asserts the same as to Officer Oliphant, vehicles is too attenuated from the injuries, the and adds that Officer Oliphant joined in the trial court did not err in granting the pleas to the pursuit and drove to intercept Aponte ahead of his jurisdiction. Teague’s first issue is overruled. ^[2] location. But there are no facts asserting that See TEX. R. APP. P. 47.1. Officer Oliphant was actually involved in the pursuit at the time of the accident, or that he did Exclusion of Evidence anything more than respond to a call for assistance. The pleadings also do not assert facts to suggest During the hearing, Teague introduced the the City or County vehicles were driven in [**11] a handwritten statement of Eric Dean, a witness to negligent manner or that the operation of the the accident. The City objected to the statement vehicles caused Teague’s injuries. To the contrary, and the trial court sustained the objection. In her the pleadings state that Aponte made a sharp turn second issue, Teague argues the statement was in an effort to change direction and ″lost control competent evidence and the trial court erred in of his vehicle and crashed into Officer Oliphant.″ refusing to admit it into evidence. But we need not This suggests that Aponte, not the City or County, determine whether the statement was competent was the cause of Teague’s injuries. [**13] evidence, because even if it was, Teague fails to demonstrate how the evidence was relevant Similarly, the evidence adduced at the hearings to the jurisdictional inquiry. See e.g., Miranda, showed that the collision occurred because Aponte [*440] 133 S.W.3d at 227 (trial court must lost control of his vehicle when driving recklessly consider relevant evidence). at excessive speeds. Teague admitted she had no knowledge of how the collision occurred, and Dean’s unsworn, handwritten statement recited could not identify anything any officer may have that he saw Officer Oliphant’s vehicle in the done to cause her injuries. The evidence showed middle of Peavy Road. According to Dean, Aponte that at the time of the accident, the county appeared to try to avoid colliding with Officer vehicles were well behind Aponte’s, and the DPD Oliphant’s vehicle, but instead hydroplaned and patrol car in the lead was approximately seventy crashed into the vehicle. Other evidence before yards away. Officer Oliphant was not blocking or the court established that Officer Oliphant was obstructing the connector road to northbound traveling south in the far right hand lane of Peavy 2 Our resolution of this issue obviates the need to consider Teague’s third issue (asserting the trial court erred in construing her pleading to allege intentional conduct outside the scope of sovereign immunity). See TEX. R. APP. P. 47.1.

Page 7 of 7 344 S.W.3d 434,[*440] ; 2011 Tex. App. LEXIS 3341, **13

Road when the collision occurred. Dean’s trial court erred in refusing to admit it. Teague’s statement does not controvert this evidence, nor second issue is overruled. does it state that Officer Oliphant obstructed traffic or disobeyed traffic laws. In essence, Dean’s Having resolved all of Teague’s issues against her, statement merely provides additional evidence [**14] we affirm the trial court’s orders. that Aponte lost control of his vehicle before the collision occurred. Because the statement does MARTIN RICHTER not raise a fact question about whether Officer Oliphant was negligent or whether his negligence JUSTICE caused Teague’s injuries, we cannot conclude the

Muniz v. Cameron County Court of Appeals of Texas, Thirteenth District, Corpus Christi - Edinburg May 10, 2012, Delivered; May 10, 2012, Filed NUMBER 13-10-00689-CV

Reporter 2012 Tex. App. LEXIS 3816; 2012 WL 1656326 FRANCISCO MUNIZ, INDIVIDUALLY AND deputy sheriff was attempting to stop a speeding AS REPRESENTATIVE OF THE ESTATE OF pickup truck. MARGARITA MARISELA MUNIZ, FRANCISCO MUNIZ JR., ALONDRA MUNIZ, Overview AND DIEGO MUNIZ, Appellants, v. CAMERON Appellants claimed that the county was liable for COUNTY, Appellee. their damages because the deputy had initiated and continued a reckless, high-speed pursuit of Subsequent History: Petition for review denied the truck, which struck the vehicle the decedent by Muñiz v. Cameron County, 2012 Tex. LEXIS was driving. The court found that the county had 712 (Tex., Aug. 24, 2012) not received actual notice of appellants’ claim as required by Tex. Civ. Prac. & Rem. Code Ann. § Prior History: [*1] On appeal from the 445th 101.101(c) (2011). The record showed, as a matter District Court of Cameron County, Texas. of law, that the county was not aware of its fault, as ultimately alleged by appellants, until well Core Terms beyond the six-month notice period. The record further showed that, since the fatal collision, truck, actual notice, collision, notice, governmental witnesses had expressed difficulty recalling facts unit, fault, pursuit, investigate, pet, trial court, in their depositions taken over two years after the immunity, bumped, appellants’, fatal, police report, collision and that the deputy’s cruiser was jurisdictional, driver, notice requirements, destroyed in a subsequent non-pursuit accident in oncoming traffic, dispatcher, cruiser, lawsuit, which a driver struck the cruiser. If the county had surgery, hernia received actual notice of appellants’ claim, it would have been better able to gather information Case Summary and address appellants’ ultimate claim in the lawsuit. Procedural Posture Outcome Appellants, a decedent’s family members, challenged an order of the 445th District Court of The court affirmed the trial court’s order. Cameron County, Texas, which granted appellee county’s plea to the jurisdiction in appellants’ LexisNexis® Headnotes action under the Texas Tort Claims Act. Appellants sued the county nearly two years after the decedent Civil Procedure > ... > Subject Matter Jurisdiction > died in a fatal auto collision that occurred when a Jurisdiction Over Actions > General Overview

Page 2 of 9 2012 Tex. App. LEXIS 3816, *1

Civil Procedure > ... > Responses > Defenses, Torts > Public Entity Liability > Immunities > Demurrers & Objections > Motions to Dismiss Sovereign Immunity Civil Procedure > Appeals > Standards of Review > Torts > ... > Liability > State Tort Claims Acts > De Novo Review General Overview Civil Procedure > Appeals > Standards of Review > HN3 Under the doctrine of governmental Questions of Fact & Law immunity, a county is immune from tort liability for its own acts and the acts of its agents, unless HN1 A plea to the jurisdiction is a dilatory plea; the Texas Tort Claims Act clearly and its purpose is to defeat a cause of action without unambiguously waives immunity. Tex. Civ. Prac. regard to whether the claims asserted have merit. & Rem. Code Ann. § 101.001(3)(B) (2011). The The plea challenges the trial court’s jurisdiction Texas Tort Claims Act waives immunity for death over the subject matter of a pleaded cause of proximately caused by the wrongful act or action. Subject-matter jurisdiction is a question of omission or negligence of a government employee law; therefore, an appellate court reviews de novo acting within the scope of his employment if the a trial court’s ruling on a plea to the jurisdiction. injury arises from operating or using a motor Civil Procedure > ... > Subject Matter Jurisdiction > vehicle or motor-driven equipment and the Jurisdiction Over Actions > General Overview employee would be personally liable to the claimant according to Texas law. Tex. Civ. Prac. & Civil Procedure > ... > Defenses, Demurrers & Rem. Code Ann. § 101.021(1). ″Operation″ refers Objections > Affirmative Defenses > Immunity to doing or performing of a practical work and Civil Procedure > Pleading & Practice > Pleadings > ″use″ is defined in the context of this statute as Rule Application & Interpretation putting or bringing into action or service; Civil Procedure > Appeals > Standards of Review > employing for or apply to a given purpose. The General Overview ″arises from″ requirement means that the vehicle’s Governments > Local Governments > Claims By & use must have actually caused the injury. This Against causal nexus is not satisfied by the mere involvement of a vehicle nor by an operation or HN2 Because immunity from suit defeats a trial use that ″does no more than furnish the condition court’s subject-matter jurisdiction, it may be that makes the injury possible. properly asserted in a jurisdictional plea. In a suit against a governmental unit, the plaintiff must Torts > Public Entity Liability > Immunities > affirmatively demonstrate the court’s jurisdiction Sovereign Immunity by alleging a valid waiver of immunity. When a Torts > ... > Liability > Claim Presentation > Actual trial court’s decision concerning a plea to the Notice jurisdiction is based on the plaintiff’s petition, an Torts > ... > Liability > Claim Presentation > Time appellate court accepts as true all factual Limitations allegations in the petition to determine if the plaintiff has met its burden. The appellate court HN4 To take advantage of a waiver of immunity examines the pleader’s intent and construes the under the Texas Tort Claims Act, the Act requires pleading in the plaintiff’s favor. However, a court that a governmental unit receive notice of a claim deciding a plea to the jurisdiction is not required against it within six months of the incident giving to look solely to the pleadings, but must consider rise to the claim. Tex. Civ. Prac. & Rem. Code jurisdictional evidence as necessary to determine Ann. § 101.101 (2011). A governmental unit is any jurisdictional issue presented. entitled to a formal, written notice of a claim

Page 3 of 9 2012 Tex. App. LEXIS 3816, *1

within six months of the incident unless it receives Torts > ... > Liability > Claim Presentation > Actual actual notice within six months of the incident. Notice The Texas Tort Claims Act’s notice requirement is HN6 When records or investigative reports give jurisdictional. Tex. Gov’t Code Ann. § 311.034 no indication that a governmental unit has been at (2011). The discovery rule does not apply to fault in an incident, the governmental unit has no extend the six-month notice period even when this actual notice. The determination of whether a produces a harsh result. The notice requirement governmental unit received actual notice is a ensures prompt reporting of a claim to enable the question of fact but may be determined as a matter government to investigate while the facts are fresh of law where the evidence is insufficient to raise and the conditions remain substantially the same. a fact issue. The notice provision also aids the government in the management and control of its finances and Counsel: FOR APPELLANT: Robert O’Conor property. Jr., Attorney at Law, Houston, TX; Dan Alfaro, Attorney At Law, McAllen, TX; Helen D. Torts > ... > Liability > Claim Presentation > Actual O’Conor, Attorney at Law, Houston, TX. Notice

HN5 Actual notice to a governmental unit of a FOR APPELLEE: Eileen M. Leeds, Willette & claim against it requires knowledge of: (1) a Guerra, Brownsville, TX. death, injury, or property damage; (2) the governmental unit’s alleged fault producing or Judges: Before Justices Rodriguez, Vela, and contributing to the death, injury, or property Perkes. Memorandum Opinion by Justice Perkes. damage; and (3) the identity of the parties Opinion by: GREGORY T. PERKES involved. To have actual notice within the context of Tex. Civ. Prac. & Rem. Code Ann. § 101.101 (2011), the governmental unit must have the same Opinion information it would have had if the claimant had complied with the formal notice requirements. MEMORANDUM OPINION Mere notice that an accident has occurred is not Memorandum Opinion by Justice Perkes sufficient to establish actual notice for purposes of the Texas Tort Claims Act. Alleged fault includes Appellants, Francisco Muniz, Individually and as the governmental unit’s subjective awareness of Representative of the Estate of Margarita Marisela its fault, as ultimately alleged by the claimant, in Muniz, Francisco Muniz, Jr., Alondra Muniz, and producing or contributing to the claimed injury. It Diego Muniz (collectively ″appellants″) appeal is not enough that a governmental unit should the trial court’s order granting Cameron County’s have investigated an incident as a prudent person plea to the jurisdiction. Appellants sued the County would have, or that it did investigate, perhaps as nearly two years after Margarita Marisela Muniz part of routine safety procedures, or that it should died in a fatal auto collision. A deputy sheriff was have known from the investigation it conducted attempting to stop a speeding pickup truck when that it might have been at fault. If a governmental the truck struck the vehicle Mrs. Muniz was unit is not subjectively aware of its fault, it does driving. not have the same incentive to gather information that the statute is designed to provide, even when By two issues, appellants argue: (1) the trial court it would not be unreasonable to believe that the erred by granting the County’s plea to the governmental unit was at fault. jurisdiction because the evidence shows the

Page 4 of 9 2012 Tex. App. LEXIS 3816, *1

County received actual notice of appellants’ claim would be few drivers on the road at that hour. as is required under Texas Civil Practice and Deputy Martinez was able to get close enough to Remedies Code section 101.101(c); [*2] or (2) in make out a partial license-plate number. He then the alternative, this case should be remanded to observed the truck veer to the left, cross over the the trial court because there is a fact issue lanes of traffic and middle turn lane and move regarding whether appellants gave the County into the path of oncoming traffic. He saw the truck actual notice of their claim within six months of strike Mrs. Muniz’s vehicle. She died at the scene. the fatal traffic collision. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.101(c) (West 2011). We The accident occurred less than two miles from affirm. Cameron Park where Deputy Martinez first observed the truck, and the entire pursuit lasted I. FACTUAL AND PROCEDURAL BACKGROUND about a minute. The Brownsville Police Department investigated the accident because the Appellants’ first amended original petition was accident occurred in its jurisdiction. Their police filed on September 23, 2009, and was their live report did not state that Deputy Martinez was a pleading at the time the trial court entered its cause of the accident. [*4] Rather, it showed that order granting the County’s plea to the jurisdiction. before the collision, Deputy Martinez was only Appellants’ petition and the undisputed evidence close enough to the truck to obtain a partial submitted on the jurisdictional issue show the license-plate number. following facts. The investigating officer determined that Ernesto In the early morning hours of July 10, 2007, Moreno, the driver of the truck, was responsible Deputy Jose Martinez, a deputy sheriff with the for the accident and, consequently, Mrs. Muniz’s Cameron County Sheriffs Department, was on a death. Moreno was found to be under the influence routine patrol in Cameron Park, Brownsville, of cocaine, marijuana, barbiturates, and when he saw a young male exit a black pickup amphetamines at the time of the accident, and the truck and look toward him. Deputy Martinez truck he was driving had been reported stolen at decided to investigate because of the area and least a day prior to the accident. Cameron County time of day. As he approached the individual who indicted Moreno. Moreno pleaded guilty to had exited the truck, he noticed the truck turn left manslaughter and asked the trial court to determine onto Paredes Line Road and take off at a high rate his sentence. Moreno addressed the Muniz family of speed. Deputy Martinez decided to follow the during his sentencing and apologized to them. In truck instead of approaching the [*3] individual. his statement to the Muniz family, he took full By the time Deputy Martinez arrived at the responsibility for the collision. He did not state intersection, the truck was a significant distance that Deputy Martinez was responsible for the ahead of him. collision.

Upon turning onto Paredes Line Road, Deputy In July 2007, appellants sued Ernesto Moreno and Martinez activated his lights and siren and began Juan Velez, the owner of the pickup truck. The to accelerate in an attempt to stop the speeding County was not given notice of this lawsuit. The truck. Deputy Martinez stated that he believed he lawsuit was never prosecuted and was later needed to intervene to keep the driver of the truck dismissed. July 2, 2009, the date the present from hurting someone. In deciding to initiate a lawsuit was filed, was the first time appellants traffic stop, he took into account that he was notified the County of their intent to hold the familiar with the road and that he believed there [*5] County responsible for Mrs. Muniz’s death.

Page 5 of 9 2012 Tex. App. LEXIS 3816, *5

In their original petition, appellants alleged that at*3-4 (Tex. App.—Corpus Christi Mar. 25, 2010, the County was liable for their damages because no pet.) (mem. op.). After the parties engaged in a Deputy Martinez initiated and continued a significant amount of discovery and presented reckless, high-speed pursuit. In their first amended evidence on the notice issue,1 the trial court petition and in their response to the County’s plea granted the County’s plea to the jurisdiction, and to the jurisdiction, appellants added that Deputy this appeal followed. See TEX. CIV. PRAC. & REM. Martinez caused the collision because he CODE ANN. § 51.014(a)(8) (West 2011) (authorizing ″bumped″ Moreno’s truck at least three times, interlocutory appeal from a district court’s order causing it to move into oncoming traffic and to granting a governmental unit’s plea to the strike Mrs. Muniz’s vehicle. jurisdiction).

Appellants supported their ″bumping″ allegation II. STANDARD OF REVIEW AND APPLICABLE LAW with an affidavit from Moreno, stating that Deputy Martinez tailgated him, then bumped the right, HN1 A plea to the jurisdiction is a dilatory plea; rear of the truck three times. In his affidavit, its purpose is ″to defeat a cause of action without Moreno elaborated that the third bump sent him regard to whether the claims asserted have merit.″ into the oncoming traffic. In his opinion, Deputy Bland Indep. Sch. Dist v. Blue, 34 S.W.3d 547, 554 Martinez ″was trying to make [him] spin out, but (Tex. 2000). The plea challenges the trial court’s he hit... on the wrong side ... into oncoming jurisdiction over the subject matter of a pleaded traffic.″ Moreno added that, ″[i]f I had not been cause of action. Tex. Dep’t of Parks & Wildlife v. bumped by the deputy I would not have had the Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. wreck.″ He admitted in his affidavit that he was Parks & Wildlife Dep’t v. Morris, 129 S.W.3d 804, driving between seventy and ninety miles per 807 (Tex. App.—Corpus Christi 2004, no pet.). hour at the time, but stated that he was a careful Subject-matter jurisdiction is a question of law; driver. therefore, an appellate court reviews de novo a trial court’s ruling on a plea to the jurisdiction. The record reflects that Moreno never told anyone Miranda, 133 S.W.3d at 226; Morris, 129 S.W.3d about the ″bumping″ [*6] prior to this lawsuit, at 807. except allegedly his criminal-defense attorney. There was no physical damage to the cruiser or HN2 Because immunity from suit defeats a trial the truck which would have indicated that the court’s subject-matter jurisdiction, it may be cruiser made contact with either of the vehicles properly asserted in a jurisdictional plea. Miranda, involved in the accident. The Brownsville Police 133 S.W.3d at 225-26. In a suit against a Department investigation only attributed governmental unit, the plaintiff must affirmatively responsibility for the accident to Moreno. demonstrate the court’s jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid The County filed a plea to the jurisdiction, arguing Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. that it had no actual notice of appellants’ claim 2003). [*8] When a trial court’s decision within six months of the collision and that, as a concerning a plea to the jurisdiction is based on result, the trial court lacked jurisdiction. See TEX. the plaintiff’s petition, we accept as true all CIV. PRAC. & REM. CODE. § 101.101(c); see also factual allegations in the petition to determine if City of Pharr v. Aguillon, No. 13-09-00011-CV, the plaintiff has met its burden. Id., Morris, 129 2010 Tex. App. LEXIS 2125, 2010 WL 1138449, S.W.3d at 807. We examine the pleader’s intent 1 Although the clerk’s record shows that an oral hearing was held on the County’s plea [*7] to the jurisdiction, the record on appeal does not include a reporter’s record of that hearing.

Page 6 of 9 2012 Tex. App. LEXIS 3816, *8

and construe the pleading in the plaintiff’s favor. see also City of Kemah v. Vela, 149 S.W.3d 199, County of Cameron v. Brown, 80 S.W.3d 549, 555 204 (Tex. App.—Houston [14th Dist.] 2004, pet. (Tex. 2002); Tex. Dep’t of Transp. v. Ramirez, 74 denied); Gill v. Tex. Dep’t of Criminal Justice, 3 S.W.3d 864, 867 (Tex. 2002) (per curiam). S.W.3d 576, 581 (Tex. App.—Houston [1st Dist.] However, a court deciding a plea to the jurisdiction 1999, no pet). is not required to look solely to the pleadings, but HN4 To take advantage of a waiver of immunity must consider jurisdictional evidence as necessary [*10] under the Texas Tort Claims Act, the Act to determine any jurisdictional issue presented. requires that a governmental unit receive notice of Blue, 34 S.W.3d at 555. a claim against it within six months of the incident HN3 Under the doctrine of governmental giving rise to the claim. See TEX. CIV. PRAC. & REM. immunity, a county is immune from tort liability CODE ANN. § 101.101; Colquitt v. Brazoria County, for its own acts and the acts of its agents, unless 324 S.W.3d 539, 541 (Tex. 2010). A governmental unit is entitled to a formal, written notice of a the Texas Tort Claims Act clearly and claim within six months of the incident unless it unambiguously waives immunity. See TEX. CIV. receives actual notice within six months of the PRAC. & REM. CODE ANN. § 101.001 (3)(B) (West incident. See Tex. Dep’t of Criminal Justice v. 2011); Dallas County v. Posey, 290 S.W.3d 869, Simons, 140 S.W.3d 338, 339 (Tex. 2004) (citing 871 (Tex. 2009). The Texas Tort Claims Act Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) waives immunity for death proximately caused by (per curiam)).2 The Texas Tort Claims Act’s the wrongful act or omission or negligence of a notice requirement is jurisdictional. See TEX. GOV’T. government employee acting within the scope of CODE ANN. § 311.034 (West 2011); Colquitt, 324 his [*9] employment if the injury arises from S.W.3d at 543. The discovery rule does not apply operating or using a motor vehicle or motor-driven to extend the six-month notice period even when equipment and the employee would be personally this produces a harsh result. Timmons v. Univ. liable to the claimant according to Texas law. TEX. Med. Ctr., 331 S.W.3d 840, 848 (Tex. CIV. PRAC. & REM. CODE ANN. §101.021(1). App.—Amarillo 2011, no pet.); Univ. of Tex. Med. ″Operation″ refers to ″doing or performing of a Branch at Galveston v. Greenhouse, 889 S.W.2d practical work″ and ″use″ is defined in the context 427, 431-32 (Tex. App.—Houston [1st Dist.] of this statute as ″put[ting] or bring[ing] into 1994, writ denied). action or service; employ[ing] for or apply to a The notice requirement ensures prompt reporting given purpose.″ LeLeaux v. Hamshire-Fannett of a claim to enable the government to investigate Indep. Sch. Dist, 835 S.W.2d 49, 51 (Tex. 1992); while the facts are fresh and the conditions remain see also Starkey v. Andrews, 104 S.W.3d 626, 629 substantially the same. Colquitt, 324 S.W.3d at (Tex. App.—Tyler 2003, no pet.). The Supreme 543. The notice provision also aids the government Court of Texas has interpreted the ″arises from″ in the management and control of its finances and requirement to mean that the vehicle’s use ″must property. Id; see also Cathey, 900 S.W.2d at 341 have actually caused the injury.″ Whitley, 104 (″The purpose of the notice requirement is to S.W.3d at 543. This causal nexus is not satisfied ensure prompt reporting of claims in order to by the mere involvement of a vehicle nor by an enable governmental units to gather information operation or use that ″does no more than furnish necessary to guard against unfounded claims, the condition that makes the injury possible.″ Id; settle claims, and prepare for trial.″). 2 The Simons court held that the Texas Tort Claims Act’s notice requirement is not jurisdictional, a holding which has been superseded [*11] by statute. See TEX. GOV’T. CODE ANN. § 311.034 (West 2005) (superseding Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 339 (Tex. 2004)).

Page 7 of 9 2012 Tex. App. LEXIS 3816,[*10]

III. DISCUSSION 2010 WL 1138449, at *3. To have actual notice within the context of section 101.101, the By their first and second issues, appellants argue governmental unit must have the same information that the record shows the County had actual notice it would have had if the claimant had complied of its claim against it within six months of the with the formal notice requirements. See Bourne fatal collision, or in the alternative, that there is a v. Nueces County Hosp. Dist, 749 S.W.2d 630, 633 fact issue on the question of actual notice, such (Tex. App.—Corpus Christi 1988, writ denied); that the trial court should have denied the County’s see also Arancibia, 324 S.W.3d at 550. Mere plea to the jurisdiction. In support of their notice that an accident has occurred is not actual-notice argument, appellants rely on the sufficient to establish actual notice for purposes of police report and other evidence in the record, the Texas Tort Claims Act. See Cathey, 900 such as newspaper [*12] articles showing that S.W.2d at 340; Garcia v. Tex. Dep’t of Criminal Deputy Martinez was pursuing Moreno at the Justice, 902 S.W.2d 728, 730-31 (Tex. time of the collision; Moreno’s affidavit testimony App—Houston [14th Dist.] 1995, no writ)). that Deputy Martinez bumped him into oncoming traffic; and the Cameron County Sheriffs ″Alleged fault″ includes the governmental unit’s Department manual,3 which provided that an ″subjective awareness of its fault, as officer must receive immediate authorization from [*14] ultimately alleged by the claimant, in a supervisor to ″continue a pursuit″ once a traffic producing or contributing to the claimed injury″: pursuit has been initiated and the dispatcher has been notified of it. It is not enough that a governmental unit should have investigated an incident as a Appellants argue that under the Supreme Court of prudent person would have, or that it did Texas’s Arancibia decision, these facts show investigate, perhaps as part of routine safety actual notice to the County and that the trial court procedures, or that it should have known from should have denied the County’s plea to the the investigation it conducted that it might jurisdiction. See Univ. of Tex. S.W. Med. Ctr. at have been at fault. If a governmental unit is Dallas v. Estate of Arancibia, 324 S.W.3d 544, not subjectively aware of its fault, it does not 550 (Tex. 2010). In response, the County argues have the same incentive to gather information that because appellants did not give timely notice that the statute is designed to provide, even of their [*13] claim that Deputy Martinez when it would not be unreasonable to believe somehow caused the collision by allegedly that the governmental unit was at fault. bumping Moreno’s truck into Mrs. Muniz’s lane, the trial court lacked jurisdiction over the case. Simons, 140 S.W.3d at 347-48. HN6 When records or investigative reports give no indication that a HN5 Actual notice to a governmental unit requires governmental unit has been at fault in an incident, knowledge of: (1) a death, injury, or property the governmental unit has no actual notice. Id. damage; (2) the governmental unit’s alleged fault The determination of whether a governmental unit producing or contributing to the death, injury, or received actual notice is a question of fact but property damage; and (3) the identity of the may be determined as a matter of law where the parties involved. See Cathey, 900 S.W.2d at 341; evidence is insufficient to raise a fact issue. See see also Aguillon, 2010 Tex. App. LEXIS 2125, Arancibia, 324 S.W.3d at 549; see also Aguillon, 3 Near the end of their appellate brief, appellants argue that the sheriffs department manual constituted a contract of which Mrs. Muniz was a beneficiary, and that the County is liable and was on notice under a breach-of-contract theory. Because appellants failed to support this argument with citation to legal authority, it presents nothing for our review. See TEX. R. APP. P. 38.1(i).

Page 8 of 9 2012 Tex. App. LEXIS 3816,[*14]

2010 Tex. App. LEXIS 2125, 2010 WL 1138449, Tort Claims Act did not waive [*17] immunity for at *4. wrongful-death claim brought against City for police officer’s high-speed pursuit of motorcyclist The record shows that the Brownsville Police because there was an insufficient nexus between Department was responsible for investigating the the officer’s use of his car and the fatality; the accident. In its report, [*15] the Police Department motorcyclist’s evasion was an intervening cause concluded that Moreno, who was the driver of the and the officer did not hit the motorcycle); accord truck that struck Mrs. Muniz’s vehicle, was at Teague v. City of Dallas, 344 S.W.3d 434, 439 fault. The Police Department also found that (Tex. App.—Dallas 2011, pet. denied). Moreno Moreno was driving under the influence of veering his truck into Mrs. Muniz’s lane and multiple drugs at the time of the accident and that causing her death, combined with the fact that the truck had been reported stolen. Moreno was Deputy Martinez did not hit either vehicle under indicted for manslaughter as a result of the the pursuit-only theory of the case, render mere collision. notice of the pursuit insufficient to place the County on notice that appellants would seek to The [*16] County’s dispatch log shows that hold it responsible for the fatal collision. See Deputy Martinez informed the dispatcher that he Hillis, 308 S.W.3d at 534-35; City of Dallas v. was in pursuit of Moreno’s truck; that the accident Carbajal, 324 S.W.3d 537, 539 (Tex. 2010) (per happened shortly into this conversation; and that curiam) (holding police report that stated Deputy Martinez requested that the dispatcher one-vehicle auto accident was caused by missing contact the EMS. The entire pursuit lasted barricades on excavated road did not provide City approximately one minute. Neither the police actual notice of claim because report did not report nor the dispatch log suggests that Deputy provide City subjective awareness of fault by Martinez’s cruiser was close enough to the truck stating or even implying City was at fault for to make contact with it. Rather, the police report missing barricades); see also Benavides v. indicates that during the pursuit, Deputy Martinez Dallas-Fort Worth Int’l Airport, 946 S.W.2d 576, was only close enough to see part of the truck’s 579 (Tex. App.—Dallas 1997, no writ) license-plate number. It was not until appellants [*18] (holding police report concerning similar, filed their first amended original petition in previous one-car accident at airport was September 2009, well after the expiration of the insufficient to provide airport actual notice of six-month notice period, that they first claimed claim when report did not inculpate the airport). Deputy Martinez somehow caused the collision by allegedly bumping Moreno’s truck. This case is distinguishable from the Arancibia case on which appellants rely. In Arancibia there Timely knowledge of the pursuit alone is was only one possible instrumentality of the insufficient to place the County on actual notice harm—the governmental actor. See 324 S.W.3d at of appellants’ claim in this case, particularly 549-50. Additionally, in that case, the record because the pursuit alone did not give rise to a showed that the governmental actor was waiver of immunity under the Act. See City of subjectively aware, within days of the fatality, that Dallas v. Hillis, 308 S.W.3d 526, 534-35 (Tex. App its error alone caused the complained-of injury.^[4] — Dallas 2010, pet. denied) (holding the Texas See id. Irene Arancibia died three days after two 4 We note that to the limited extent appellants rely on case law concerning whether official immunity bars a claim against an officer for a high-speed pursuit, that reliance is misplaced because the County’s [*19] plea to the jurisdiction was based on lack of actual notice and not on an official-immunity defense. See e.g., Tex. Dep’t. of Public Safety v. Rodriguez, 344 S.W.3d 483, 488-89 (Tex. App.—Houston [1st Dist] 2011, no pet.).

Page 9 of 9 2012 Tex. App. LEXIS 3816,[*18]

resident physicians performed laparoscopic hernia standard of care issues were identified upon surgery on her. Id. at 546. Arancibia was released review.″ Id. The Supreme Court concluded that from the hospital the same day of the surgery, but Southwestern was subjectively aware of its fault returned to the emergency room two days later as ultimately alleged by the Arancibias, and that with severe abdominal pain. Id. Emergency Southwestern could not evade the actual-notice surgery showed that during the hernia operation, determination by subjectively refuting its fault. Id. her bowel was perforated, leading to acute at 550. The Supreme Court observed that the peritonitis, sepsis, and ultimately her death. Id. purpose of the notice requirement is to enable governmental units to investigate and address The Supreme Court of Texas held that the record claims appropriately, which was satisfied by showed Southwestern Medical Center was Southwestern’s actual notice. Id. subjectively aware of its fault as ultimately alleged by the Arancibias, and that it had actual notice of In this case, the record shows, as a matter of law, the claim, under the Texas Tort Claims Act. Id. at the County was not aware of its fault, as ultimately 550. Dr. Watson, an attending physician, was alleged by appellants, until well beyond the present while the two resident physicians six-month notice period. The record further shows performed the hernia repair. Id. at 549. The day that since the fatal collision, witnesses have after Arancibia’s death, Dr. Watson emailed his expressed difficulty recalling facts in their immediate supervisor, who was the chief of the depositions taken over two years after the collision, gastrointestinal/endocrine division. Id. at 546, and that Deputy Martinez’s cruiser was destroyed 549. Dr. Watson wrote that he wanted to give his [*21] in a subsequent non-pursuit accident in supervisor a ″heads up on a terrible outcome which a driver struck the cruiser. If the County with″ a patient. Id. at 549. He described the had received actual notice of appellants’ claim, it surgery, which he believed went well, and the would have been better able to gather information patient’s return to the emergency room with ″an and address appellants’ ultimate claim in this unrecognized bowel injury.″ Id. He stated that ″I lawsuit. See id. For the foregoing reasons, we have already spoken with risk″ management. Id. overrule appellants’ issues on appeal.

Shortly thereafter, having reviewed Arancibia’s IV. CONCLUSION treatment, Dr. Watson’s supervisor concluded that We affirm the trial court’s order granting the a ″technical error occurred [*20] during the County’s plea to the jurisdiction. original hernia operation resulting in″ two perforations in Arancibia’s small intestine, and GREGORY T. PERKES further that ″[c]linical management contributed Justice to″ Arancibia’s death. Id. The supervisor stated that ″[a]lthough unfortunate, this is a recognized Delivered and filed the 10th day of May, 2012. complication of laporoscopic hernia surgery. No expert opinion is initially assessed by the judge as a ″gatekeeper.″ This gatekeeping role is mandatory. 12

[*5] We focus on expert gatekeeping developments in Texas civil law, but are mindful of developments in federal law that have impacted or likely will impact the evolution of this area of law. We examine five of the eight gates from the 1999 article: the assist requirement (gate one in the 1999 article), 13 the qualifications gate (gate two), 14 and the three reliability gates (gates four, five, and six). 15 We particularly emphasize the three reliability gates because they have undergone the most development and because they are the most common basis on which courts accept or reject the admissibility or probative value of expert testimony. 16 An expert’s opinion must be based on a [*6]

the jury.″ State v. Smith, 335 S.W.3d 706, 714 (Tex. App. - Houston [14th Dist.] 2011, pet. ref’d). This is true for expert testimony but is not true for other ″unreliable″ evidence that is admissible under the rules of evidence. 11 Brown, supra note 1, at 744; see also Southland Lloyds Ins. Co. v. Cantu, 399 S.W.3d 558, 563 (Tex. App. - San Antonio 2011, pet. denied) (″The trial court serves as an evidentiary gatekeeper by screening out irrelevant and unreliable expert evidence … .″). 12 Russell v. Whirlpool Corp., 702 F.3d 450, 456 (8th Cir. 2012) (″The assumption of the gatekeeper role is mandatory, not discretionary.″). The Tenth Circuit recently stated that a trial judge’s gatekeeping role is sufficiently important so that the judge (1) cannot simply ″say on the record that [he] has decided to admit the expert testimony after due consideration″ but rather should ″furnish enough of a record to permit a reviewing court to say with confidence that it ″properly applied the relevant law’″ and (2) ″must reply in some meaningful way to the Daubert concerns the objector has raised,″ although the judge does not have to discuss every Daubert factor. Storagecraft Tech. Corp. v. Kirby, 744 F.3d 1183, 1190 (10th Cir. 2014). Similarly the Ninth Circuit stated that given ″the potentially significant influence of expert testimony,″ trial judges must engage in ″assiduous ″gatekeeping.’″ Barabin v. AstenJohnson, Inc., 700 F.3d 428, 432 (9th Cir. 2012), on reh’g en banc sub nom. Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457 (9th Cir. 2014). On rehearing en banc the court stated that trial judges ″cannot abdicate″ their role as gatekeeper by ″delegating that role to the jury.″ Estate of Barabin, 740 F.3d at 464. 13 Brown, supra note 1, at 751-57. 14 Id. at 757-72. 15 Id. at 778-875. In the 1999 article, the reliability gates were addressed in this order: methodological reliability (gate four), connective reliability (gate five), and foundational reliability (gate six). Id. In this Article, we begin with foundational reliability, which we have renamed ″predicative reliability,″ see infra Part III.B, because it provides useful groundwork for the other reliability sections. Predicative reliability is followed by methodological reliability, then connective reliability.

We do not separately address Rule 403 (gate eight in the 1999 article). See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 746 (3d Cir. 1994) (″Rule 702 analysis partly incorporates Rule 403 analysis but leaves some room for Rule 403 to operate independently.″); Scott v. State, 165 S.W.3d 27, 57 (Tex. App. - Austin 2005) (concluding testimony was unhelpful, unreliable, and violated Rule 403), rev’d on other grounds, 227 S.W.3d 670 (Tex. Crim. App. 2007). In ATA Airlines, Inc. v. Federal Express Corp., the Seventh Circuit concluded that an expert’s testimony was not only unreliable but also violated Rule 403 when the lawyer could not even explain the testimony. ATA Airlines, Inc. v. Fed. Express Corp., 665 F.3d 882, 890, 896 (7th Cir. 2011). The lawyers’ examinations of the expert during trial ″were perfunctory and must have struck most, maybe all, of the jurors as gibberish … If a party’s lawyer cannot understand the testimony of the party’s own expert, the testimony should be withheld from the jury. Evidence unintelligible to the trier or triers of fact has no place in a trial.″

Id. at 896. Reliance on inadmissible evidence (gate seven) is discussed as part of ″predicative reliability,″ the first of the three reliability gates. See infra Part III.B. Because it is more accurate to describe the inquiries under this gate as part of the predicative reliability gate, we now believe there are seven, not eight, gates. We briefly discuss the relevance gate (gate three) in Part II.B. 16 In this Article, we do not address the distinction between expert and lay witness testimony. See United States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008) (stating that ″lay testimony ″results from a process of reasoning familiar in everyday life,’ while expert testimony ″results from a process of reasoning which can be mastered only by specialists in the field’″ (quoting Fed. R. Evid. 701 advisory committee’s note (2000 Amendment))). Nor do we address when expert testimony is necessary. See, e.g., Wills v. Amerada Hess

Page 6 of 230 52 Hous. L. Rev. ^[1], *6

reliable foundation, and this foundation is found in the three reliability gates. 17 As stated by the U.S. Supreme Court, the standards of reliability applicable to expert evidence are ″exacting.″ 18 Our choice to focus on these five gates is driven in part by the text of Rule 702. The Ninth Circuit recently paraphrased the text of Rule 702 as identifying these five gates:

Rule 702 of the Federal Rules of Evidence provides that expert opinion evidence is admissible if: (1) the witness is sufficiently qualified as an expert by knowledge, skill, experience, training, or education; (2) the scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (3) the testimony is based on sufficient facts or data; (4) the testimony is the product of reliable principles and methods; and (5) the expert has reliably applied the relevant principles and methods to the facts of the case. 19 The Sixth Circuit also states that a ″parsing [of] the language of the Rule″ reveals that a proposed expert’s opinion must satisfy three requirements: 20 the expert is qualified, the opinion is sufficiently reliable under Daubert, 21 and the testimony assists the [*7] trier of fact. 22 Because the reliability inquiry is three gates, it therefore likewise concludes that there are five gates. The Sixth, 23 Seventh, 24 Eighth, 25 and Eleventh 26 Circuits all utilize the same summary of Rule 702’s requirements. 27 The Third Circuit agrees that ″Rule 702 embodies a trilogy of restrictions on expert testimony″ and lists Corp., 379 F.3d 32, 46 (2d Cir. 2004) (″Where an injury has multiple potential etiologies, expert testimony is necessary to establish causation.″); Guevara v. Ferrer, 247 S.W.3d 662, 668 (Tex. 2007) (explaining when medical testimony is necessary on medical causation); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006) (stating expert testimony is necessary to establish design defects and causation); FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 91 (Tex. 2004) (holding expert testimony necessary because jurors do not ″know what the standard of care is for the inspection and maintenance of the upper coupler assembly, kingpin, and base rail of a refrigerated trailer″); Alexander v. Turtur & Assocs., 146 S.W.3d 113, 119-20 (Tex. 2004) (finding expert testimony to be necessary in attorney malpractice cases to prove cause-in-fact); Rehabilitative Care Sys. of Am. v. Davis, 73 S.W.3d 233, 234 (Tex. 2002) (per curiam) (holding expert testimony necessary to establish standard of care for negligent-supervision-of-physical-therapist claim). We also do not address whether expert testimony should be excluded because the expert’s testimony ″misapplies established legal rules and principles,″ see Williams v. State, 406 S.W.3d 273, 283-84 (Tex. App. - San Antonio 2013, pet. denied) (holding that the appraiser did not violate legal principles); see also Enbridge Pipelines (E. Tex.) L.P. v. Avinger Timber, LLC, 386 S.W.3d 256, 262 (Tex. 2012) (stating that ″if an appraiser utilizes improper methodology or misapplies established rules and principles, the resulting testimony is unreliable and must be excluded″ and concluding that expert’s testimony violated value-to-the-taker rule and was inadmissible), or because it is not a proper subject of expert testimony, see United States v. Adams, 271 F.3d 1236, 1245 (10th Cir. 2001) (finding that expert testimony concerning credibility is generally not an appropriate subject for expert testimony). 17 In the 1999 article, the three reliability gates were labeled: foundational reliability, methodological reliability, and connective reliability. Because courts have used the term ″foundation″ broadly to encompass all three types of reliability and the foundation of an expert’s opinion may be a methodology or reasoning, we have renamed ″foundational reliability″ as ″predicative reliability″ in this Article. The phrase ″predicative reliability″ focuses better on the data, facts, and assumptions underlying an expert opinion. 18 Weisgram v. Marley Co., 528 U.S. 440, 455 (2000) (″Since Daubert, moreover, parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet.″). 19 City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1043 (9th Cir. 2014). 20 In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528-29 (6th Cir. 2008). 21 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993). 22 In re Scrap Metal Antitrust Litig., 527 F.3d at 528-29. 23 Id. at 528. 24 Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010). 25 Polski v. Quigley Corp., 538 F.3d 836, 839 (8th Cir. 2008); Sappington v. Skyjack, Inc., 512 F.3d 440, 448 (8th Cir. 2008); Kudabeck v. Kroger Co., 338 F.3d 856, 859 (8th Cir. 2003).

Page 7 of 230 52 Hous. L. Rev. ^[1], *7

qualification and reliability as two restrictions but defines the third restriction as the fit requirement, which it describes as requiring the expert’s testimony to be relevant and helpful. 28 The Tenth Circuit also applies a three-part inquiry with these same questions. 29

The Eleventh Circuit has explained:

Although there is some overlap among the inquiries into an expert’s qualifications, the reliability of his proffered opinion and the helpfulness of that opinion, these are distinct concepts that courts and litigants must take care not to conflate. Thus, for example, while an expert’s overwhelming qualifications may bear on the reliability of his proffered testimony, they are by no means a guarantor of reliability. By the same token, a reliable opinion expressed by a genuinely qualified expert may not help the jury if it does not pertain to a fact at issue in the case. 30

Texas courts use essentially the same trilogy of tests to analyze the admissibility of expert testimony. 31 The Texas [*8] Supreme Court typically references relevance, rather than assistance to the jury, as the third prong, but the Court has defined relevancy in this context as imposing an ″assistance to the jury″ requirement. 32

This division into separate gates does run a risk: it may ″make[] the task of determining admissibility sound more mechanical and less judgmental than it really is.″ 33 But in fact, these gates are inextricably 26 Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d 1183, 1194 (11th Cir. 2010); Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1340 (11th Cir. 2003). 27 See also 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 702.02[3], at 702-9 (Joseph M. McLaughlin ed., 2d ed. 2014) (identifying these tests as the ″three basic prerequisites to the admissibility of evidence from expert witnesses″). 28 Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003); see also Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008) (describing three major requirements for admissibility of expert testimony but using helpfulness rather than fit as third requirement). 29 In North America Specialty Insurance Co. v. Britt Paulk Insurance Agency, Inc., the court stated that Daubert establishes a two-part inquiry for expert testimony: reliability and helpfulness to the jury. N. Am. Specialty Ins. Co. v. Britt Paulk Ins. Agency, Inc., 579 F.3d 1106, 1112 (10th Cir. 2009). In Conroy v. Vilsack, the court also stated that there were two inquiries: (1) qualifications and (2) reliability and relevance. Conroy v. Vilsack, 707 F.3d 1163, 1168 (10th Cir. 2013). It stated that the relevance inquiry examines whether the evidence is helpful to the jury. Id. Thus, it uses the same three questions. 30 Quiet Tech. DC-8, Inc., 326 F.3d at 1341. 31 Compare Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 215 (Tex. 2010) (″An expert witness may testify regarding ″scientific, technical, or other specialized’ matters if the expert is qualified and if the expert’s opinion is relevant and based on a reliable foundation.″ (quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 578 (Tex. 2006))), with McMahon v. Zimmerman, 433 S.W.3d 680, 686 (Tex. App. - Houston [1st Dist.] 2014, no pet.) (recognizing three tests composed of whether the expert is qualified, the testimony assists the trier of fact, and the testimony satisfies the three-part reliability inquiry). See also Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006) (″These rules require a trial judge to make three separate inquiries, which must all be met before admitting expert testimony: (1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case. These conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance.″ (footnote omitted)). 32 See, e.g., TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 234 (Tex. 2010) (″For an expert’s testimony to be admissible, the expert witness must be qualified to testify about ″scientific, technical, or other specialized knowledge,’ and the testimony must be relevant and based upon a reliable foundation. An expert’s testimony is relevant when it assists the jury in determining an issue or in understanding other evidence.″ (citation omitted)). 33 Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir.), cert. denied, 134 S. Ct. 644 (2013).

Page 8 of 230 52 Hous. L. Rev. ^[1], *8

intertwined and their assessment, individually and collectively, is as flexible and context-specific as the subjects they attempt to evaluate. 34 Overlap is inevitable not only in the reliability gates but with all the gates: expert evidence that is not reliable necessarily is neither helpful nor relevant (even if it sounds like it would be and even if it is persuasive to the actual factfinder, who overlooks its flaws); 35 [*9] and expert evidence that is not relevant is necessarily not helpful. Thus, the gates perhaps are best pictured as interlocking gates. But ″while there is inevitably some overlap among the basic requirements - qualification, reliability, and helpfulness - they remain distinct concepts and the courts must take care not to conflate them.″ 36

Before addressing these interlocking gates, it bears emphasizing that the gates apply not only to all types of expert testimony but also to expert testimony offered by all parties. ″Any expert’s opinions should be based upon methods and research which are reliable regardless of which party has the burden of proof.″ 37

I. The Qualifications Gate

Rule 702 allows expert testimony in scientific, technical, or other specialized areas provided the ″witness [is] qualified as an expert by knowledge, skill, experience, training, or education.″ The test and standard of review for determining whether an expert is qualified has not changed in the past

34 See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999) (observing that ″there are many different kinds of experts, and many different kinds of expertise,″ such that the test for admissibility under Rule 702 is necessarily ″a flexible one″ (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 594 (1993))); see also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (noting that, while Daubert analysis focuses on the principles and methodology employed by an expert, rather than the correctness of the expert’s conclusions, an expert’s conclusions and methodology ″are not entirely distinct from one another″); Lees v. Carthage Coll., 714 F.3d 516, 521 (7th Cir. 2013) (″The Court also noted in Kumho that because there are ″many different kinds of experts, and many different kinds of expertise,’ the reliability analysis should be geared toward the precise sort of testimony at issue and not any fixed evaluative factors.″); 5 Michael H. Graham, 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 requirement.″); Morales v. State, 32 S.W.3d 862, 865 (Tex. Crim. App. 2000) (″Naturally, testimony which is unreliable or irrelevant would not assist a juror in understanding the evidence or determining a fact in issue, as is required by Rule 702.″); Schronk v. Laerdal Med. Corp., No. 10-12-00118-CV, 2013 WL 6570907, at 4 (Tex. App. - Waco Dec. 12, 2013, pet. denied) (″Unreliable expert testimony is not relevant evidence and, therefore, constitutes no evidence.″); see also Jeff Brown & Reece Rondon, Texas Rules of Evidence Handbook 690 (2014 ed.) (stating that unreliable expert testimony should be excluded because it ″would be more likely to prejudice or confuse than to assist the trier of fact″). 36 United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004). 37 Brownsville Pediatric Ass’n v. Reyes, 68 S.W.3d 184, 195 (Tex. App. - Corpus Christi 2002, no pet.). The court of appeals framed the issue as whether Daubert ″and its Texas progeny apply to a defense expert who is testifying for a party who does not have the burden of proof on the issue, but who is testifying only about possible causes that could have led to injuries and damages in this case.″ Id. While the court undoubtedly reached the correct conclusion, it is worth noting that an opinion identifying a plausible cause of an injury is different than an opinion identifying the most likely cause of an injury. Thus, the defense expert who is only testifying as to possible causes does not have to provide a reliable basis for concluding that the identified cause is the most likely cause of the injury. But the defense expert nonetheless needs a reliable basis for an opinion that another cause is plausible; otherwise, the expert is engaging in pure speculation. 38 For additional discussion of this gate, see Brown, supra note 1, at 757-72.

Page 9 of 230 52 Hous. L. Rev. ^[1], *9

fifteen years. 39 An expert must achieve ″a meaningful threshold″ of qualifications to ensure ″the effective functioning of the gatekeeper process.″ 40

[*10] Other than some language in one opinion that may modify the qualifications inquiry in cases where methodology is more important than credentials, 41 the Texas Supreme Court’s only substantive modification is to grant entities the benefit of the Property Owner Rule - like an individual, an entity’s officers, if they have adequate knowledge of a property, may now testify regarding the value of the entity’s property. 42 In this section, we first review the seven decisions by the Texas Supreme Court in the last fifteen years that address qualification issues, then some general principles from decisions by the intermediate courts, and conclude with a brief discussion of error preservation. A. Texas Supreme Court Decisions Since 1999, the Texas Supreme Court has three times determined that experts were qualified and four times determined that they were not. The experts were qualified in Helena Chemical Co. v. Wilkins, 43 Roberts v. Williamson, 44 and In re Commitment of Bohannan. 45 Helena Chemical exemplifies how a court’s characterization of the breadth of an expert’s testimony can affect whether the court finds the expert qualified to testify. 46 One issue in the case was whether seeds sold by Helena Chemical were well suited for [*11] dryland farming and were resistant to A. The Helpfulness Gate

Rule 702 of the Texas Rules of Evidence erects the first gate to admission of expert testimony: it must ″assist the trier of fact.″ 164 Or as stated in the restyled Federal Rules of Evidence: it must ″help the trier of fact to understand the evidence or to determine a fact in issue.″ 165 Helpfulness is a ″threshold determination″ that must be satisfied before expert testimony is admissible. 166 Our review of this gate will be brief because the parameters of this gate have remained largely unaltered over the past fifteen years. Only one Texas Supreme Court case, K-Mart Corp. v. Honeycutt, 167 has focused on this requirement. That does not mean helpfulness is not important. On the contrary, the entire reliability inquiry can be summarized with a helpfulness test: Does this particular expert testimony actually provide the help a reasonable juror needs? 168 Expert testimony is permitted [*29] because of the 161 See discussion infra Part II.A. 162 See discussion infra Part II.B. 163 For additional discussion of these issues, see Brown, supra note 1, at 751-57. 164 Tex. R. Evid. 702. See generally Coble v. State, 330 S.W.3d 253, 273 (Tex. Crim. App. 2010) (stating that in addition to determining whether expert evidence is reliable, the trial court ″must decide whether, on balance, that expert testimony might nonetheless be unhelpful or distracting for other reasons″); Holloway v. State, 613 S.W.2d 497, 501 (Tex. Crim. App. 1981) (en banc). 165 Fed. R. Evid. 702(a). 166 Emerson v. State, 880 S.W.2d 759, 763 (Tex. Crim. App. 1994) (en banc) (″The threshold determination in an inquiry into the admissibility of expert testimony under Rule 702 is whether such testimony is helpful to the trier of fact.″). 167 K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (per curiam). 168 See generally Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc., 711 F.3d 1348, 1374 (Fed. Cir. 2013) (″[The expert’s] layered assumptions lack the hallmarks of genuinely useful expert testimony. Such unreliable testimony frustrates a primary goal of expert testimony in any case, which is meant to place experience from professional specialization at the jury’s disposal, not muddle the jury’s fact-finding with unreliability and speculation.″ (citation omitted)); United States v. Corey, 207 F.3d 84, 88 n.5 (1st Cir. 2000) (″Under Rule 702 the only inquiry is whether the expert opinion, taken as a whole, may assist the jury in resolving an ultimate issue of fact … .″); Wood v. Minn. Mining & Mfg. Co., 112 F.3d 306, 309 (8th Cir. 1997) (″The exclusion of an expert’s opinion is proper only if it is ″so fundamentally unsupported that it can offer no assistance to the jury … .’″); Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 801 (Tex. 2006) (″If the expert brings only his credentials and a subjective opinion, his testimony is fundamentally unsupported and therefore of no assistance to the jury. Rule 702, by its terms, only provides for the admission of expert testimony that actually assists the finder of fact.″ (citation omitted)); Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex. 2002) (″The relevance requirement, which incorporates traditional relevancy analysis under Texas Rules of Evidence 401 and 402, is met if the expert testimony is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute. Evidence that has no relationship to any issue in the case does not satisfy rule 702 and is thus inadmissible under rule 702, as well as rules 401 and 402.″ (citations omitted) (internal quotation marks omitted)); Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 720 (Tex. 1998) (″Unreliable evidence is of no assistance to the trier of fact and is therefore inadmissible under Rule 702.″); Lincoln v. Clark Freight Lines, Inc., 285 S.W.3d 79, 83 (Tex. App. - Houston [1st Dist.] 2009, no pet.) (″Unreliable scientific or technical evidence is of no assistance to the jury … .″); U.S. Rest. Props. Operating L.P. v. Motel Enters., Inc., 104 S.W.3d 284, 292 (Tex. App. - Beaumont 2003, pet. denied) (″To be relevant, expert testimony must be sufficiently tied to the facts of the case that it will aid the jury in answering the questions presented.″); Star Enter. v. Marze, 61 S.W.3d 449, 461 (Tex. App. - San Antonio 2001, pet. denied) (″Unreliable evidence is of no assistance to the trier of fact and is

Page 24 of 230 52 Hous. L. Rev. ^[1],[*29]

assistance it can provide to the jury. If an expert is not qualified, his testimony will not assist the jury. If the expert is qualified but the testimony is irrelevant or unreliable, it will not assist the jury.

In Honeycutt, the Texas Supreme Court held that the trial court did not abuse its discretion by excluding the testimony of a human factors and safety expert concerning whether a missing top rail on a grocery cart corral would induce people to sit on the lower railing and whether the lack of the top railing caused the accident. 169 An expert’s impressive qualifications do not ensure that the expert will aid the jury. Instead the proffering party must show that ″the expert’s knowledge and experience … are beyond that of the average juror.″ 170 The Court instructed the trial court to exclude an expert’s opinion whenever ″the jury is equally competent to form an opinion″ on the topic of the expert’s testimony. 171

The Honeycutt Court concluded the expert’s opinion that the defendant was negligent and that the lack of a top railing served as an invitation to sit on the railing was not helpful because the jury had ″viewed photographs of the cart corral from which it [*30] could draw its own conclusions.″ 172 In other words, the jury needed only its ″collective common sense,″ not an expert, to assist it in deciding that issue. 173 The Court concluded that the expert’s other opinions - relating to whether the lack of a top railing caused the injuries, whether K-Mart’s employee received proper training for pushing shopping carts, and whether the K-Mart employee kept a proper lookout while pushing the shopping carts into the corral - were not helpful because ″they involve matters within the average juror’s common knowledge″ that did not ″require[] scientific or technical explanation.″ 174 The Court cited a number of federal cases indicating skepticism of human factors experts. 175

The San Antonio Court of Appeals relied on Honeycutt in affirming a trial court’s exclusion of testimony from a safety engineer that the uneven surface condition of a sidewalk posed an therefore inadmissible … .″). See also Brown & Rondon, supra note 35, at 670-71, 706 (stating that Rule 702 emphasizes ″whether the expert can ″assist’ the trier of fact″ and that when an expert opines on a topic ″near the fringes″ of the relevant field, the helpfulness of the opinion ″should be determinative″); id. at 706 (equating relevance and fit requirement); cf. 2 Goode, Wellborn & Sharlot, supra note 114, § 702.1, at 7 (suggesting that expert testimony must be sufficiently reliable to enhance the likelihood of accurate factfinding).

169 Honeycutt, 24 S.W.3d at 360-61. 170 See id. at 360; see also In re Commitment of Bohannan, 388 S.W.3d 296, 304 (Tex. 2012) (″Expert testimony assists the trier-of-fact when the expert’s knowledge and experience on a relevant issue are beyond that of the average juror and the testimony helps the trier-of-fact understand the evidence or determine a fact issue.″). 171 Honeycutt, 24 S.W.3d at 360. 172 Id. at 360-61. 173 Id. at 361. 174 Id. 175 Id. at 360-61 (citing Persinger v. Norfolk & W. Ry., 920 F.2d 1185, 1188 (4th Cir. 1990) (excluding expert testimony about whether the weight the plaintiff had to carry was unreasonable because the testimony ″did no more than state the obvious″); see also Scott v. Sears, Roebuck & Co., 789 F.2d 1052, 1055 (4th Cir. 1986) (holding it was error to permit a human factors expert to testify that persons wearing high heels tend to avoid walking on grates); Stepney v. Dildy, 128 F.R.D. 77, 80 (D. Md. 1989) (″Nor is the testimony of a human factors expert required to advise the jury that moisture will freeze at 32 degrees or colder.″); Douglas R. Richmond, Human Factors Experts in Personal Injury Litigation, 46 Ark. L. Rev. 333, 337 (1993) (″Many experts misuse human factors expertise in litigation by either testifying about matters clearly within the jury’s common knowledge or offering opinions without adequate foundation.″).

Page 25 of 230 52 Hous. L. Rev. ^[1],[*30]

unreasonable danger to those walking on it. 176 But the El Paso Court of Appeals reached the opposite conclusion under similar circumstances, reversing a trial court’s exclusion of expert testimony from a safety engineer that the design of a parking garage floor and curb created an ″optical illusion of a flat surface,″ which created an unreasonable danger to those walking in the garage. 177 Although the evidence in the El Paso case included photographs of the parking garage floor, showing that the floor in the area of the injury was painted with diagonal [*31] yellow stripes and the abutting curb top was painted yellow, the court did not conclude that the jury could ″view[] the photographs″ and ″draw its own conclusions″; 178 it concluded that the expert possessed ″specialized knowledge of the human visual process, which is not obviously within the common knowledge of jurors.″ 179 There are no definitive rules for determining when expert evidence will assist a jury. Sometimes it does, 180 but often it does not. 181 For example, courts have split on whether mathematical calculations that can be made with a calculator are helpful. 182 Courts sometimes rely on this gate to limit expert testimony that [*32] ″offers nothing more than what lawyers for the parties can argue in closing

176 Dietz v. Hill Country Rests., Inc., 398 S.W.3d 761, 765-66 (Tex. App. - San Antonio 2011, no pet.) (finding no error in trial court’s exclusion of the expert’s opinion on the dangerousness of the walkway because the jury could ″observe the photographs of the walkway where the fall took place,″ evaluate ″testimony about prior falls or near falls″ at the site, and consider evidence about prior complaints to ″form its own conclusion about whether the walkway posed an unreasonable risk of harm″). 177 Burns v. Baylor Health Care Sys., 125 S.W.3d 589, 595-96, 600 (Tex. App. - El Paso 2003, no pet.) (holding that trial court erred in excluding safety engineer’s testimony on how the parking garage floor may have created the optical illusion that there was no curb because the testimony ″provided depth or precision to the trier of fact’s understanding of a relevant issue in this case″). 178 Id. at 592; see Honeycutt, 24 S.W.3d at 361. 179 Burns, 125 S.W.3d at 596. 180 See, e.g., United States v. Huether, 673 F.3d 789, 796-98 (8th Cir. 2012) (rejecting the contention that trial court erred in permitting a law enforcement agent to testify that he believed defendant put child pornography on computer hard drive because it helped jury to better understand evidence and because ″knowledge of computers and internet use differ widely among lay jurors″); Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1194 (11th Cir. 2011) (holding that trial court erred in excluding expert testimony ″about whether the slip resistance of the flooring posed a danger to passengers aboard″ because subject was one that was beyond knowledge and experience of average juror). 181 See, e.g., Florek v. Vill. of Mundelein, Ill., 649 F.3d 594, 603 (7th Cir. 2011) (explaining that expert testimony about ″how long it takes to walk from room to room″ did not assist the jury); Youa Vang Lee v. Anderson, 616 F.3d 803, 808-09 (8th Cir. 2010) (stating that expert testimony on whether individual had gun in hand was based on ″simple observation″ of enhanced surveillance film and ″would not have assisted the jury but rather would have told it what result to reach″); N. Am. Specialty Ins. Co. v. Britt Paulk Ins. Agency, Inc., 579 F.3d 1106, 1112 (10th Cir. 2009) (concluding that district court did not abuse discretion in excluding expert testimony regarding standard insurance industry practice because ″the jury was fully capable of deciding this case without expert testimony″); Hoffman v. Caterpillar, Inc., 368 F.3d 709, 714 (7th Cir. 2004) (holding trial court did not abuse discretion in prohibiting expert from testifying regarding a particular employee’s ability to operate a particular machine, when a videotape of machine operations was in evidence from which jurors could make a determination for themselves with respect to his abilities); Vogler v. Blackmore, 352 F.3d 150, 153, 155-56 (5th Cir. 2003) (holding that trial court did not err in admitting the testimony of a thanatologist, a grief expert, who did not testify regarding the grief of the plaintiffs because while grief is a universally experienced emotion, the testimony was relevant even if it was ″highly unlikely″ that it aided the jury); United States v. Sebaggala, 256 F.3d 59, 66 (1st Cir. 2001) (stating Rule 702 excludes expert testimony when ″a lay person can be expected to decide the issue intelligently without an expert’s help″); cf. WWP, Inc. v. Wounded Warriors Family Support, Inc., 628 F.3d 1032, 1039-40 & n.7 (8th Cir. 2011) (rejecting a Daubert challenge to a forensic accountant’s testimony that did not involve complicated mathematical calculations). 182 Compare Powell v. Carey Int’l, Inc., 547 F. Supp. 2d 1281, 1285 (S.D. Fla. 2008) (finding expert calculations of attorney’s fees under the Fair Labor Standards Act to be unnecessary because a court could make a determination itself without hearing testimony), with WWP, Inc., 628 F.3d at 1039-40 (holding district court did not abuse discretion in overruling helpfulness objection to forensic accountant’s testimony about damages because it is unnecessary for an expert ″to make complicated mathematical calculations″), and

Page 26 of 230 52 Hous. L. Rev. ^[1],[*32]

arguments,″ 183 or when experts act as ″superlawyers″ whose primary function is to make a final argument for a party. 184 On the other hand, courts have held that expert testimony can be helpful when it discusses general principles without applying those principles to the particular facts of the case, allowing the jury to apply those principles to the evidence presented. 185 Even testimony that does not reach a firm conclusion may, in some cases, aid a jury. 186

In the end, the helpfulness test requires ″decisions that are very much ad hoc.″ 187 In other words, ″a large gray area″ exists where it is unclear whether expert testimony is helpful - ″matters respecting which expert testimony may help the trier of fact, but that arguably fall within the realm of common knowledge and common sense.″ 188 In these situations, courts generally resolve the issue in favor of admissibility, 189 perhaps because if the testimony does not particularly aid the jury it may not particularly harm the opposing party either.

Setting aside the applications of the rule, there have not been any substantive changes in the helpfulness inquiry in the [*33] last fifteen years. Courts continue to restate the rule without changing its substance. Stated positively, expert testimony is helpful in those situations where ″the expert’s knowledge and experience … are beyond that of the average juror.″ 190 It is helpful ″when it relates In re Prempro Prods. Liab. Litig., 514 F.3d 825, 831 (8th Cir. 2008) (holding district court did not abuse discretion in failing to exclude expert testimony that represented ″an exercise in basic math using simple deductive reasoning″). 183 United States v. Frazier, 387 F.3d 1244, 1262-63 (11th Cir. 2004). 184 Hogan v. Novartis Pharm. Corp., No. 06 Civ. 0260(BMC)(RER), 2011 WL 1533467, at 5 (E.D.N.Y. Apr. 24, 2011). In this pharmaceutical claim that the defendant failed to warn of the risk of developing osteonecrosis of the jaw from Zometa, the court observed that ″all of plaintiff’s experts, to some degree, are being proffered as ″superlawyers’ to serve as scientifically informed advocates of conclusions that plaintiff wants the jury to reach and which belong only in summation, not expert testimony.″ Id. The court, therefore, ″cautioned″ counsel that the expert ″must keep his characterizations of defendant’s responses and opinion regarding its conduct to himself.″ Id. 185 See Vogler, 352 F.3d at 155-56 (holding that trial court did not err in admitting testimony of a grief expert who testified about grief generally but not about plaintiffs’ grief); Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 587 (5th Cir. 2003) (concluding district court erred in finding expert’s testimony unhelpful regarding effect of marijuana on cognitive functions because it would have aided jury despite lack of testimony concerning its impact upon defendant). 186 See Walker v. Soo Line R.R. Co., 208 F.3d 581, 589-90 (7th Cir. 2000) (holding that district court abused its discretion in excluding electrical engineer’s testimony that lightning could have penetrated tower in which employee was working even if it did not hit tower through several different means directly because experts can ″posit alternate models to explain their conclusion″ and testimony would have aided jury even if expert could not say where exactly the lightning struck). 187 3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 7:9, at 759 (4th ed. 2013). 188 B. The Relevancy Gate The relevance inquiry originated from Daubert’s requirement that the opinion must ″fit″ the issues in the case; it must be ″sufficiently tied to the facts of the case that it will aid the jury in [*37] resolving a factual dispute.″ 221 Except to the extent that the connective reliability gate is based on the requirement that the expert opinion is linked to the underlying predicate data or methodology, the 213 United States v. Davis, 690 F.3d 226, 257 (4th Cir. 2012) (holding trial court did not abuse discretion in excluding expert testimony regarding lineup procedure and unreliability of eyewitness testimony because ″jurors using common sense and their faculties of observation can judge the credibility of an eyewitness identification″ (quoting United States v. Harris, 995 F.2d 532, 535 (4th Cir. 1993))).

214 See Gonzales v. Hearst Corp., 930 S.W.2d 275, 283 (Tex. App. - Houston [14th Dist.] 1996, no writ) (stating that expert’s testimony was ″objective in nature and does not assist the trier of fact in determining the subjective truth of whether [the defendants] entertained serious doubts as to the accuracy of the names published in the November 1 article″); see also Jianguang Wang v. Tang, 260 S.W.3d 149, 160 (Tex. App. - Houston [1st Dist.] 2008, pet. denied) (quoting Gonzales and noting that ″actual malice inquires only into the mental state of the defendant, and [the expert] claimed no expertise in that field″). 215 Sec. Exch. Comm’n v. Johnson, 525 F. Supp. 2d 70, 77 (D.D.C. 2007). 216 GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 619-20 (Tex. 1999) (″Except in highly unusual circumstances, expert testimony concerning extreme and outrageous conduct would not meet [Rule 702’s] standard. Where, as here, the issue involves only general knowledge and experience rather than expertise, it is within the province of the jury to decide, and admission of expert testimony on the issue is error.″). 217 Moses v. Payne, 555 F.3d 742, 749-50, 756-59 (9th Cir. 2008) (rejecting constitutional challenge to exclusion of evidence). 218 E.g., Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 591-92 (1993) (″Rule 702’s ″helpfulness’ standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.″ (emphasis added)); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 712 (Tex. 1997) (citing Viterbo v. Dow Chem. Co., 826 F.2d 420, 421 (5th Cir. 1987), for the proposition that expert testimony that lacks an adequate foundation offers no assistance to the jury). 219 United States v. Hall, 93 F.3d 1337, 1343 (7th Cir. 1996) (citation omitted) (quoting United States v. Benson, 941 F.2d 598, 604 (7th Cir. 1991)). 220 For additional discussion of these issues, see Brown, supra note 1, at 773-78. 221 Daubert, 509 U.S. at 591 (quoting United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985)) (internal quotation marks omitted); see also Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1055-56 (8th Cir. 2000) (stating that the U.S. Supreme Court

Page 30 of 230 52 Hous. L. Rev. ^[1],[*37]

relevancy gate is infrequently at issue in civil cases challenging expert testimony. 222 It was, however, the deciding issue in Exxon Pipeline Co. v. Zwahr. 223

[*38] The sole issue in Zwahr was whether the trial court erred in admitting expert testimony regarding the value of land taken by eminent domain. 224 Exxon argued, and the Texas Supreme Court agreed, that the expert had impermissibly relied on the enhanced value a property would have after the condemnation in determining the value of the plaintiffs’ land at the time of the taking. 225 Specifically, the expert had testified that the area of land Exxon had condemned for its pipeline easement was a separate economic unit, created and defined by the parameters of Exxon’s easement, with its ″highest and best use″ as a pipeline, and that the plaintiffs’ interest in the area condemned by Exxon was ″negligible″ before Exxon’s project. 226 The Court held that the expert’s testimony violated the ″project-enhancement″ rule, which prohibits the jury from considering any enhancement to the value of the landowner’s property that results from the taking itself, 227 and also failed to apply the has placed ″renewed emphasis on the importance of the ″fit’ of an expert’s opinion to the data or facts in the case″ and that even when an opinion satisfies the Daubert factors, it is inadmissible ″if it does not apply to the specific facts of the case″). ″Including relevance in the gatekeeping inquiry reinforces … the importance of ensuring that the proffered opinion … is linked to the facts of the case.″ 2 Goode, Wellborn & Sharlot, supra note 114, § 702.6, at 63. The fit ″casts an additional spin to [the] relevancy analysis … .″ Id. As explained by Professors Mueller and Kirkpatrick, ″the degree of ″fit’ between the proffered testimony and the facts and issues in the case is an aspect of relevancy.″ 3 Mueller & Kirkpatrick, supra note 187, § 7:10, at 787. 222 In criminal cases - which are not our focus - relevance is often a determinative issue because the Texas Court of Criminal Appeals several years ago in Vela v. State identified relevance as one of ″three separate conditions″ that must be satisfied for expert testimony. Vela v. State, 209 S.W.3d 128, 130-31 (Tex. Crim. App. 2006) (stating that the evidence rules ″require a trial judge to make three separate inquiries, which must all be met before admitting expert testimony: ″(1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case.’ These conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance″ (footnote omitted) (quoting Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App. 2006))). But see, e.g., Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1193 (11th Cir. 2011) (describing the third inquiry - assistance to the factfinder - as ″helpfulness″ rather than ″relevance″ (quoting United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004))). The Court of Criminal Appeals in Vela was summarizing the evidence rules implicated in expert challenges and specifically relied on Rule 402 for this last ″condition.″ In explaining these rules, however, the Vela Court quoted from an opinion earlier that same year, Rodgers v. State, in which the Court stated that the third condition, relevance, examines whether the ″expert testimony will actually assist the fact-finder in deciding the case.″ Vela, 209 S.W.3d at 131 (quoting Rodgers, 205 S.W.3d at 527). Vela’s summary equates relevance with assistance. Rodgers relied solely on the text of Rule 702, which explicitly requires the expert testimony to ″assist the trier of fact to understand the evidence or to determine a fact in issue.″ Rodgers, 205 S.W.3d at 527 (quoting Tex. R. Evid. 702). Vela looked to both Rule 402 and 702. Vela, 209 S.W.3d at 131. Thus, the Court conflated relevance and helpfulness, which are separate, though overlapping, inquiries. They overlap because evidence that is not relevant is not helpful to the factfinder in determining the issues in dispute. But they can also be distinct: evidence may be relevant but excluded as unhelpful because the subject of the testimony is within the common knowledge of the jury and the expert offers no knowledge or insight beyond the jury’s purview. While the identification of the gates and the terms differ, the Court of Criminal Appeals’ test does not alter the issues presented by expert testimony. For example, the Court has stated that the relevance inquiry examines both whether evidence ″will assist the trier of fact″ and whether it ″is sufficiently tied to the facts of the case.″ Tillman v. State, 354 S.W.3d 425, 438 (Tex. Crim. App. 2011) (quoting Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996)) (internal quotation marks omitted). The helpfulness requirement therefore is a hurdle for expert testimony in criminal cases in Texas, even if it is considered part of the relevance inquiry. 223 Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 631 (Tex. 2002). 224 Id. at 625. 225 Id. 226 Id. at 629-30. 227 Id. at 630. The project-enhancement rule is subject to ″narrow exceptions″ that were not implicated by the facts of the case. See id. at 628.

Page 31 of 230 52 Hous. L. Rev. ^[1],[*38]

″before-and-after″ valuation method, which dictates that the value of condemned land be measured by the difference in the market value of the land immediately before and immediately after the taking. 228 Because of these flaws, the Court observed that, ″at best,″ the expert had ″determined the value of the easement to Exxon, not the value of the loss to the Zwahrs for the taking of the easement.″ 229 Thus, the testimony ″was irrelevant to determining the value of the land taken from the [plaintiffs] and therefore inadmissible under Texas Rule of Evidence 702.″ 230

Zwahr teaches that, to be relevant, expert testimony must fit not only the facts of the case but also the applicable legal parameters. 231 Ultimately, the test for relevance looks at the fit between the testimony and the issues the factfinder must decide, which will be determined not only by the factual disputes but also by the relevant legal inquiries. For damages experts in particular, expert evidence that examines the wrong measure of [*39] damages under the law, even if otherwise reliable and applicable, is neither relevant nor admissible. 232 Responsibility for ensuring that damages and other experts offer opinions that are based on the proper legal standards falls primarily on the shoulders of the proffering party’s attorney, who is the party’s legal expert. Practitioners thus must be careful to oversee the work of retained experts to ensure that the evidence the expert provides is the kind of evidence that advances the client’s case - including ensuring that experts are using a legally correct measure of damages, are not relying on elements of damages that the law precludes, and do not overlook limitations and discounts that the law requires.

III. The Reliability Gates

The admissibility of expert opinion testimony is analyzed under a three-fold inquiry: whether the expert opinion testimony will be helpful to the jury, whether the expert is qualified to offer the opinion testimony, and whether the opinion testimony the expert offers is sufficiently reliable to be admitted. 233 The inquiry into whether expert opinion testimony is sufficiently reliable also can be broken down into three parts: predicative reliability, 234 methodological reliability, 235 and connective reliability. 236 228 Id. at 627-28, 631. The case involved a partial taking, in which ″the before-and-after rule still applies, but compensation is measured by the market value of the part taken plus any diminution in value to the remainder of the land.″ Id. at 627. But the plaintiffs in the case did not allege any damage to the remainder of their land as a result of the Exxon easement, only the market value of the land taken. Id. 229 Id. at 631. 230 Id. 231 See id. at 629-31 (discussing how the expert applied a skewed version of the facts to an incorrect legal parameter causing his testimony to be irrelevant). 232 See, e.g., id. at 631; Rojas v. Duarte, 393 S.W.3d 837, 845-46 (Tex. App. - El Paso 2012, pet. denied) (stating that although damages identified ″the financial aspects of the business that he considered important in determining its value″ and provided ″his calculation, the source of the numbers inputted into his calculation, and the result of his calculation,″ his data and valuation methods were ″pertinent only to the value of the partnership as of December 31, 2008,″ not the date in question, May 31, 2005, and that ″as a result of these shortcomings, the jury lacked sufficient data from which to extrapolate properly″ the partnership’s value on that date); Dallas Cnty. v. Crestview Corners Car Wash, 370 S.W.3d 25, 37 (Tex. App. - Dallas 2012, pet. denied) (affirming exclusion of damages expert who failed to use accepted appraisal methods). 233 See supra notes 20-22, 31-32 and accompanying text. 234 See infra Part III.B. 235 See infra Part III.C.

Page 32 of 230 52 Hous. L. Rev. ^[1],[*39]

These three parts are succinctly summarized in Mack Trucks, Inc. v. Tamez: ″The trial court should undertake a rigorous examination of the facts on which the expert relies, the method by which the expert draws an opinion from those facts, and how the expert applies the facts and methods to the case at hand.″ 237

[*40] Stated differently, the trial court should rigorously examine ″the three components of the reliability inquiry - namely, the expert’s methodology, foundational data, and whether too great an analytical gap exists as the expert connects the foundational data or methodology with the opinion.″ 238 As one federal court put it: ″The reliability analysis applies to all aspects of an expert’s testimony: the methodology, the facts underlying the expert’s opinion, [and] the link between the facts and the conclusion … .″ 239 Another observed that the reliability inquiry examines ″the adequacy of the facts or data underlying an opinion, the scientific reliability of the witness’s methodology, and the reliability of the witness’s application of that methodology to the facts.″ 240

Rule 702 of the Federal Rules of Evidence likewise divides the reliability inquiry into three prongs. It requires that expert testimony (1) be ″based on sufficient facts or data″; (2) be ″the product of reliable principles and methods″; and (3) ″reliably apply the principles and methods to the facts of the case.″ 241 As summarized by the Fifth Circuit, trial courts act as ″gate-keepers″ by making a ″preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.″ 242 This three-fold inquiry applies to each step of [*41] the expert’s reasoning process. Thus, the rigorous

236 See infra Part III.D. 237 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 579 (Tex. 2006) (quoting Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002)) (internal quotation marks omitted); see also Enbridge Pipelines (E. Tex.) L.P. v. Avinger Timber, LLC, 386 S.W.3d 256, 262 (Tex. 2012) (″If an [expert] utilizes improper methodology or misapplies established rules and principles, the resulting testimony is unreliable and must be excluded.″). 238 Wilson v. Shanti, 333 S.W.3d 909, 913 (Tex. App. - Houston [1st Dist.] 2011, pet. denied) (footnote omitted) (internal quotation marks omitted); see also Harris Cnty. Appraisal Dist. v. Hous. 8th Wonder Prop., L.P., 395 S.W.3d 245, 253-54 (Tex. App. - Houston [1st Dist.] 2012, pet. denied) (″As to reliability, the court must examine the expert’s methodology, foundational data, and whether too great an analytical gap exists between the data and methodology, on the one hand, and the expert’s opinions, on the other.″); Plunkett v. Conn. Gen. Life Ins. Co., 285 S.W.3d 106, 116 (Tex. App. - Dallas 2009, pet. denied) (″Opinions drawn either from unreliable foundational data or flawed methodology and reasoning are unreliable and legally no evidence.″); Quiroz v. Covenant Health Sys., 234 S.W.3d 74, 88 (Tex. App. - El Paso 2007, pet. denied) (listing the same four tests but describing the connective reliability test as examining whether ″notwithstanding the validity of the underlying data and methodology, there is an analytical gap in the expert evidence″); Allstate Tex. Lloyds v. Mason, 123 S.W.3d 690, 698 (Tex. App. - Fort Worth 2003, no pet.) (stating these three tests and adding a fourth test that the expert must rule out other plausible causes); In re J.B., 93 S.W.3d 609, 621-22 (Tex. App. - Waco 2002, pet. denied) (observing that expert must show foundational, methodological, and connective reliability); cf. State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009) (″To be reliable, the opinion must be based on sound reasoning and methodology.″). 239 Heller v. Shaw Indus., Inc., 167 F.3d 146, 155 (3d Cir. 1999). In Knight v. Kirby Inland Marine Inc., the court quoted Heller with approval. Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 355 (5th Cir. 2007). 240 United States v. Diaz, 300 F.3d 66, 75 (1st Cir. 2002). 241 Fed. R. Evid. 702(b)-(d). 242 Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243-44 (5th Cir. 2002) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993)) (internal quotation marks omitted). Page 33 of 230 52 Hous. L. Rev. ^[1],[*41] examination requires ″each material part of an expert’s theory [to] be reliable.″ 243 ″It is critical that an expert’s analysis be reliable at every step.″ 244 And examining every step means repeatedly evaluating all three reliability gates because this evaluation process is utilized for each challenged opinion. 245 While courts utilize a three-fold reliability inquiry, they also sometimes focus on a broader overall inquiry, examining whether experts ″employ[] in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.″ 246 ″The court should ensure that [an expert’s] opinion comports with applicable professional standards outside the courtroom and that it will have a reliable basis in the knowledge and experience of the discipline.″ 247 Stated differently, courts [*42] should ensure that the expert ″is being as careful″ and as unbiased ″as he would be in his regular professional work outside his paid litigation consulting.″ 248 But reliability does not require certainty. 249 In some circumstances, even an implausible theory may be reliable. 250 ″The reliability inquiry as to expert testimony does not ask whether the expert’s 243 Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 637 (Tex. 2009); Wilson v. Shanti, 333 S.W.3d 909, 913 (Tex. App. - Houston [1st Dist.] 2011, pet. denied); see also Knight, 482 F.3d at 355; United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc) (stating that Rule 702’s ″critical ″gatekeeping’ function″ for expert evidence ″inherently requires the trial court to conduct an exacting analysis of the foundations of expert opinions″); Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002) (″It is critical that an expert’s analysis be reliable at every step.″); In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 745 (3d Cir. 1994) (″Any step that renders the analysis unreliable … renders the expert’s testimony inadmissible.″). 244 Amorgianos, 303 F.3d at 267; see also Knight, 482 F.3d at 355 (″The reliability analysis applies to all aspects of an expert’s testimony: the methodology, the facts underlying the expert’s opinion, the link between the facts and the conclusion, et alia.″ (quoting Heller, 167 F.3d at 155)). 245 [*87] Professor Goode and his co-authors criticize Whirlpool and Pollock 474 for similar reasons. They contend that these opinions ″seem to conflict with Rule 705(a),″ 475 which gives the proponent of expert testimony the discretion to offer the basis for an expert opinion during the direct examination ″unless the court requires otherwise.″ 476 According to Professor Mueller, however, requiring an expert to provide a reliable basis for expert testimony is not inconsistent with Rule 705. Rule 705 ″does not exempt expert testimony from the requirements of Rule 702 or permit decisions on admissibility to rest on credentials alone.″ 477 It focuses ″on the manner of presenting expert testimony to the factfinder, not on any obligation to clear the admissibility hurdle.″ 478 With respect to [*88] having an opportunity to develop a full record, the U.S. Supreme Court has stated, ″Since Daubert, … parties relying on expert evidence have had notice (Tex. Crim. App. 2006) (″[A] reviewing court is permitted to consider all evidence in the trial-court record, whether admissible or inadmissible, when making a legal-sufficiency determination.″). Texas intermediate appellate courts have adopted a different rule for civil cases. See, e.g., Walker v. Lampman, No. 10-06-00096-CV, 2007 WL 2276195, at 2 (Tex. App. - Waco Aug. 8, 2007, pet. denied) (mem. op.) (″In civil cases, inadmissible evidence may not be considered in a sufficiency review.″); N. Dall. Diagnostic Ctr. v. Dewberry, 900 S.W.2d 90, 97 (Tex. App. - Dallas 1995, writ denied) (stating that it would not consider the only evidence of a specific fact because it was inadmissible); Marshall v. Telecomms. Specialists, Inc., 806 S.W.2d 904, 907 (Tex. App. - Houston [1st Dist.] 1991, no writ) (refusing to consider inadmissible hearsay in determining sufficiency of evidence on appeal); Cottle v. Knapper, 571 S.W.2d 59, 62 (Tex. Civ. App. - Tyler 1978, no writ) (refusing to consider inadmissible testimony in determining sufficiency of evidence on appeal); Texas Dep’t of Pub. Safety v. Nesmith, 559 S.W.2d 443, 447 (Tex. Civ. App. - Corpus Christi 1977, no writ) (holding that incompetent evidence, although admitted at trial, should not be considered on appeal as having any probative value). Relying heavily on commentary by Professors Dix and Dawson, the Moff Court emphasized that the proper remedy is a new trial because the State may have put on other evidence if the trial court had properly excluded other evidence. Moff, 131 S.W.3d at 490. Professors Dix and Dawson explained: This rule rests in large part upon what is perceived as the unfairness of barring further prosecution where the State has not had a fair opportunity to prove guilt. A trial judge’s commission of trial error may lull the State into a false sense of security that may cause it to limit its presentation of evidence. Erroneous admission of hearsay evidence, for example, may cause the State to forego offering other evidence that would ultimately prove admissible. Id. at 490 (quoting 43A George E. Dix & Robert O. Dawson, Texas Practice, Criminal Practice and Procedure § 43.531, at 742 (2d ed. 2001)). The Court concluded, ″Both litigants and reviewing courts should be careful to distinguish claims of improperly admitted evidence (trial error) from legal insufficiency of all admitted evidence - even improperly admitted evidence.″ Id. 473 B. Predicative Reliability Like juries and judges, scientists base their opinions on evidence. But juries and scientists draw from two decidedly different pools of evidence. The scientific approach invites consideration of all available information, including information that is incomplete, flawed, or of questionable reliability, with the scientist discerning what weight to afford each piece of information in light of any shortcomings. 497 A jury, by contrast, [*94] may consider only the evidence admitted by the court - information that is narrowly tailored to the issues in the case, having been filtered by a myriad of rules and procedures designed to eliminate anything that is irrelevant, misleading, unreliable, or excessively prejudicial. 498 One explanation for these inverse approaches can be found in the different roles of scientists and jurors. In the context of her own work, the scientist acts as both judge and jury, deciding what information to consider, what purposes to consider it for, how much weight to give it, and the ultimate import of all the information. This role reflects general perceptions of scientific research. The consumer of information in this context is an expert in the field who is well suited to evaluate the relative reliability and relevance of various pieces of information. The method of information processing used, the scientific method, is designed to neutralize passions and prejudices in the evaluation of information. And the peer-review process and the evolutionary nature of scientific research enable identification and correction of biases, design defects, or analytical flaws, on an ongoing basis. In the courtroom, the judge acts as arbiter of what facts and opinions are appropriate for juror consumption, while jurors generally decide what weight to give the information and the ultimate import of conflicting information. 499 The juror’s role reflects general perceptions of the courtroom. Jurors generally are not experts in the law, nor in the field about which an expert witness testifies. The law does not presume jurors are well suited to decipher the legally relevant from the legally irrelevant 500 or [*95] the scientifically reliable from the scientifically unreliable, 501 nor does it presume they are dispassionate in their evaluation of information. 502 The informational predicate for a judgment generally reflects a snapshot in time - the legal community is not afforded an opportunity to reassess 496 The 1999 article identifies this gate as ″foundational reliability.″ See Brown, supra note 1, at 811-12. Because courts have come to use the term ″foundational″ to refer collectively to the type of reliability discussed here as well as ″methodological reliability″ and ″connective reliability,″ we have renamed this gate ″predicative reliability″ for greater clarity. 497 See infra Part III.B.^[1].b (discussing this ″weight of the evidence″ approach). 498 See, e.g., Fed. R. Evid. 401-15 (relevance and prejudice); id. 601-15 (witness reliability); id. 701-06 (reliability of opinion testimony); id. 801-07 (hearsay); id. 901-1008 (reliability of nontestimonial evidence). Legal scholars take different views as to the best unifying principle through which to view the rules of evidence. Some advocate a ″jury control″ principle, viewing the rules of evidence as designed to prevent juries from affording undue weight to particular kinds of evidence; others, a ″best evidence″ principle, viewing the rules as designed to prefer use of the best evidence available, permitting use of lesser evidence when the best evidence is unavailable; and still others, a ″worst evidence″ principle, viewing the rules as designed to prevent, deter, and expose perjury by witnesses. Compare Edward J. Imwinkelried, The Worst Evidence Principle: The Best Hypothesis as to the Logical Structure of Evidence Law, 46 U. Miami L. Rev. 1069, 1072 (1992) (advocating the ″worst evidence″ principle and discussing the ″jury control″ principle), with Dale A. Nance, The Best Evidence Principle, 73 Iowa L. Rev. 227, 293 (1988) (advocating the ″best evidence″ principle). The courts’ construction and application of Rule 702 could likewise be viewed through these paradigms. Fear of perjury by paid experts, in particular, seems to be a motivating factor in judicial review of expert evidence, if typically an unspoken one. 499 See, e.g., Fed. R. Evid. 103. 500 Fed. R. Evid. 401-02 (admissibility of relevant evidence).

Page 73 of 230 52 Hous. L. Rev. ^[1],[*95]

and modify the facts on which a judgment was based when new developments come to light. 503 And expert testimony in the courtroom is not subject to traditional peer review (although the predicative materials on which the expert relies may have been). The absence of these safeguards is exacerbated by the fact that experts providing scientific evidence in a courtroom are subject to greater bias provocations, particularly ″adversarial bias,″ than scientists in the field. 504

Because of the differences in how evidence is used, a tension arises when an expert brings opinions based on such evidence to the courtroom. Under the old Frye test, this tension was resolved in deference to the judgment of the scientific community: an expert’s opinion was admissible if the theory underlying the [*96] opinion had achieved ″general acceptance″ in the expert’s field. 505 The barrier to entry was high, 506 but trial judges did not review the factual assumptions, data collections, studies, and opinions on which testifying experts relied in reaching their conclusion to ensure certain standards of reliability were satisfied, as they would if the evidence were offered in a judicial proceeding. 507 The modern evidentiary regime for expert testimony, ushered in by Daubert and its progeny, 508 shifted much of the ″gatekeeping″ responsibility from the scientific community at large to the trial judge. 509 501 Fed. R. Evid. 702-03 (admissibility of expert witness testimony). 502 See, e.g., Fed. R. Evid. 402 (requiring trial courts to filter out irrelevant evidence); id. 403 (requiring trial courts to filter out evidence that is relevant but more prejudicial than probative). 503 The Supreme Court observed in Daubert:

There are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly. The scientific project is advanced by broad and wide-ranging consideration of a multitude of hypotheses, for those that are incorrect will eventually be shown to be so, and that in itself is an advance. Conjectures that are probably wrong are of little use, however, in the project of reaching a quick, final, and binding legal judgment - often of great consequence - about a particular set of events in the past. We recognize that, in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596-97 (1993). 504 See David E. Bernstein, Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert Revolution, 93 Iowa L. Rev. 451, 454 (2008) (describing the various kinds of adversarial biases that plague litigation experts); see also Bernstein, supra note 246, at 33 (″Critics [have] identified three distinct types of adversarial bias: (1) conscious bias, which occurs when an expert deliberately tailors evidence to support [an opinion favorable to the] client, (2) unconscious bias, which occurs when [an] expert does not intentionally mislead the court, but is influenced by psychological attachment to his ″side’ [of the case], and (3) selection bias, which results from litigants choosing as their expert witnesses persons whose views are known to support [their position in the case].″). Bernstein has identified combatting adversarial bias as a principal purpose underlying Federal Rule of Evidence 702. Id. at 31. 505 See Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) (excluding an early version of polygraph testing because it had not yet gained acceptance among experts in the field). While the Frye approach deferred to existing scientific consensus, it did not mimic the ″weight of the evidence″ approach generally employed in the scientific community. See infra Part III.B.^[1].b. 506 The Daubert Court described the Frye test as an ″austere standard″ that ″would be at odds with the ″liberal thrust’ of the Federal Rules.″ Daubert, 509 U.S. at 588-89 (quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169 (1988)). 507 See Frye, 293 F. at 1014. 508 See generally Daubert, 509 U.S. at 597. 509 See David L. Faigman, The Daubert Revolution and the Birth of Modernity: Managing Scientific Evidence in the Age of Science, 46 U.C. Davis L. Rev. 893, 904 (2013) (″The Daubert test, in contrast to Frye, focuses courts’ attention on the methods and principles ostensibly supporting proffered expert opinion. Whether that opinion is based on good grounds, therefore, is a preliminary inquiry for the trial judge to determine.″).

Page 74 of 230 52 Hous. L. Rev. ^[1],[*96]

Trial judges are required to independently assess the reliability of ″each and every step″ of the expert’s work: ″the methodology, the facts underlying the expert’s opinion, the link between the facts and conclusion, et alia.″ 510 Thus, while the facts or data on which a testifying expert relies in reaching an opinion are not subject to the stricter rules that govern judicial admissibility (e.g., an expert can rely on hearsay or other otherwise inadmissible information 511) the expert’s opinion is subject to judicial review for reliability. 512

[*97] Review of expert testimony can be viewed as a multilayered reliability analysis 513 that examines the reliability of the processes and reasoning by which an expert reached her opinions in the case and the reliability of the factual assumptions, data collections, studies, and opinions on which an expert relies in reaching her opinions. 514 This section focuses on the latter. 515 We refer to the assimilation of facts, assumptions, data collections, studies, and opinions on which an expert relies in reaching an opinion as the ″predicate″ for the opinion and the courts’ review of the reliability of that predicate as the ″predicative-reliability gate.″ 516 While the modern regime ostensibly offers a more liberal standard 517 for the admission of expert testimony - one that makes room in the courtroom for 510 Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 355 (5th Cir. 2007) (″The expert’s testimony must be reliable at each and every step or else it is inadmissible. ″The reliability analysis applies to all aspects of an expert’s testimony: the methodology, the facts underlying the expert’s opinion, the link between the facts and the conclusion … .’″ (quoting Heller v. Shaw Indus., Inc., 167 F.3d 146, 155 (3d Cir. 1999))); see also United States v. Diaz, 300 F.3d 66, 75 (1st Cir. 2002) (″Rule 702 encompasses an array of expert witness issues, including the qualifications of the witness, the relevance of the proffered testimony, the adequacy of the facts or data underlying an opinion, the scientific reliability of the witness’s methodology, and the reliability of the witness’s application of that methodology to the facts.″). 511 Fed. R. Evid. 703. 512 See ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 291 (3d Cir. 2012) (″As we have made clear, ″the reliability analysis [required by Daubert] applies to all aspects of an expert’s testimony: the methodology, the facts underlying the expert’s opinion, [and] the link between the facts and the conclusion.’″ (quoting Heller, 167 F.3d at 155)), cert. denied, 133 S. Ct. 2025 (2013); Knight, 482 F.3d at 355; Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 81 (1st Cir. 1998) (stating that trial courts must ″evaluate the data offered to support an expert’s bottom-line opinions to determine if that data provides adequate support to mark the expert’s testimony as reliable″); see also In re Agent Orange Prod. Liab. Litig., 611 F. Supp. 1223, 1245 (E.D.N.Y. 1985), aff’d, 818 F.2d 187 (2d Cir. 1987) (″Rule 703 permits experts to rely upon hearsay… . Nevertheless, the court may not abdicate its independent responsibilities to decide if the bases meet minimum standards of reliability as a condition of admissibility. If the underlying data are so lacking in probative force and reliability that no reasonable expert could base an opinion on them, an opinion which rests entirely upon them must be excluded.″ (citation omitted)). 513 Tumlinson v. Advanced Micro Devices, Inc., 81 A.3d 1264, 1270 (Del. 2013) (applying Daubert and Havner in a case governed by Texas substantive law and Delaware procedural law). 514 Id. 515 Brown, supra note 1, at 812-13; see also Ruiz-Troche, 161 F.3d at 81 (stating that trial courts must ″evaluate the data offered to support an expert’s bottom-line opinions to determine if that data provides adequate support to mark the expert’s testimony as reliable″). In Havner, the Texas Supreme Court stated,

The underlying data should be independently evaluated in determining if the opinion itself is reliable… . ″If the underlying data are so lacking in probative force and reliability that no reasonable expert could base an opinion on them, an opinion which rests entirely upon them must be excluded.″ Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 713 (Tex. 1997) (quoting In re Agent Orange, 611 F. Supp. at 1245). 516 See supra note 496. 517 The Daubert Court described the Frye ″general acceptance″ standard as ″rigid″ and ″at odds with the ″liberal thrust’ of the Federal Rules and their ″general approach of relaxing the traditional barriers to opinion testimony,’″ as well as with ″the Rules’ permissive

Page 75 of 230 52 Hous. L. Rev. ^[1],[*97]

more experimental and ″cutting edge″ science and technologies 518 - parties proffering [*98] expert testimony face a burden that did not exist under the old regime: they must establish that the expert’s opinion is ″supported by an adequate foundation of relevant facts, data, or opinions″ before the expert’s opinion may be admitted. 519 ″Where an expert’s opinion is based on insufficient information, the analysis is unreliable.″ 520

Over the last fifteen years, courts and parties have struggled with the parameters of this burden, and that struggle has resulted in disagreement among courts and commentators - especially in areas where the tension between the scientific approach to information consumption and the judicial approach to information consumption is greatest. This section addresses these issues and how they have been resolved, if they have been resolved, or how they may be resolved in the future. We begin with several overarching issues: (1) the different components of predicative reliability 521 and how these components relate to the unique double-ended approach to expert-reliability challenges in Texas (discussed in the preceding section 522); and (2) the ongoing debate between the scientific ″weight of the evidence″ approach and the judicial ″atomization″ approach to evaluation of expert predicates. 523 Next, we address developments in the case law for assessing specific types of predicative material. 524 Finally, we discuss the issues specific to inadmissible predicates. 525

Although we will note a number of unanswered questions and disagreements among different jurisdictions (and even among different courts in Texas), one thing remains clear: courts are required to ″look beyond″ an expert’s averment that the data underlying her opinion is reliable and supports her conclusion; ″the underlying data should be independently evaluated in determining if the opinion itself is reliable.″ 526 [*99] Courts cannot rely on the ipse dixit of an expert witness alone. 527 backdrop.″ Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588-89 (1993) (quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169 (1988)). By comparison, by the turn of the century, the Supreme Court was describing the standards of reliability applicable to expert evidence under Daubert as ″exacting.″ Weisgram v. Marley Co., 528 U.S. 440, 442 (2000) (″Since Daubert, moreover, parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet.″). 518 See 29 Wright & Gold, supra note 52, § 6266, at 266 n.13 (observing that courts have liberalized the Rules governing expert testimony to allow for testimony on cutting-edge technologies). Commentators and researchers have debated whether the test for admissibility of expert evidence under Daubert and its progeny is actually a more lenient standard than the Frye test. See, e.g., Andrew Jurs & Scott DeVito, The Stricter Standard: An Empirical Assessment of Daubert’s Effect on Civil Defendants, 62 Cath. U. L. Rev. 675, 679 (2013); Jennifer L. Groscup et al., The Effects of Daubert on the Admissibility of Expert Testimony in State and Federal Criminal Cases, 8 Psychol. Pub. Pol’y & L. 339, 346-47 (2002). 519 [*127] Three justices disagreed. The dissent argued that causation in a multi-defendant toxic tort case involved three inquiries - general causation, specific causation, and substantial factor causation - and that the majority ″improperly applied Havner to answer all three questions.″ 704 By doing so, the dissent asserted, the Court ″effectively rendered Havner the exclusive measure of proof in toxic tort cases,″ in direct conflict with Havner’s ″affirmation that a plaintiff is always free to prove his case by ″direct, scientifically reliable proof of causation.’″ 705 The dissent concluded that the Bostics had put forth such ″direct, scientifically reliable proof″ of both specific and general causation (i.e., that asbestos can cause mesothelioma and that asbestos did in fact cause Timothy Bostic’s mesothelioma) and thus should not have to satisfy Havner to prove substantial factor causation (i.e., that asbestos from Georgia-Pacific’s product was a substantial cause of his mesothelioma). 706 The dissenting justices generally agreed with the majority that the determination of whether a particular defendant’s product was a substantial cause of a plaintiff’s disease should be based on evidence relating to the plaintiff’s aggregate exposure relative to the plaintiff’s exposure to the particular defendant’s products. 707 But they disagreed with the majority’s conclusion that the Bostics had failed to offer any dose-quantifying evidence, relying on evidence of ″the approximate quantum of time Timothy was exposed to″ Georgia-Pacific’s product. 708

Regardless of whether the majority or the dissent in Bostic has the better argument as to whether the Bostics presented [*128] adequate ″direct″ evidence of causation, the dissent presents a strong argument that Havner’s doubling-of-the-risk requirement does not apply to defendant-specific 702 Id. at 16-18. The Court looked at the epidemiological studies underlying the Bostics’ experts’ testimony and concluded that none of them supported an association between the disease and the kind of occasional exposure to asbestos to which Bostic testified with respect to Georgia-Pacific’s products. To the contrary, they examined consistent, occupational exposure. See id.

One Justice concurred in the Bostic judgment, agreeing that Bostic’s causation evidence was legally insufficient but disagreeing with the legal standard adopted by the majority. Id. at 19-20. The concurring Justice noted that the Bostics ″offered epidemiological studies of occupational exposure that were extrapolated to purportedly measure risk from occasional exposure,″ such as Timothy Bostic’s exposure to Georgia-Pacific’s products, but they ″never substantiated those extrapolations, yielding an analytical gap in [their] proof of causation.″ Id. at 20. 703 Id. at 25-37 (Lehrman, J., joined by Boyd, J. and Devine, J., dissenting). 704 Id. at 28. The majority disagreed, stating the ″substantial factor″ is not a separate causation requirement but, instead, ″describes the level of proof required to establish specific causation, which is always an element of the plaintiff’s case.″ Id. at 12. 705 Id. at 28 (Lehrman, J., joined by Boyd, J. and Devine, J., dissenting). The majority agreed that if a plaintiff could establish that his exposure to a particular toxin is the only possible cause of his disease and that the defendant’s product is the only possible source of his exposure, ″this proof might amount to direct proof of causation″ such that the alternative means of proving causation through epidemiological studies might be unnecessary. Id. at 13. But it did not agree that the Bostics had presented any direct proof that Georgia-Pacific’s product caused Timothy Bostic’s mesothelioma or that the testimony estimating the period of time over which Timothy was exposed to Georgia-Pacific’s product on some number of occasions amounted to evidence of how much exposure occurred during that period of time. Id. at 17-18. 706 Id. at 36. 707 Id. at 36. ″Timothy worked with his father throughout his childhood on residential construction projects. When he was only a boy, Timothy mixed dry joint compound, sanded it on the walls ″as far up as he could reach,″ and swept the dust generated by sanding. Expert witnesses consistently maintained that exposure to asbestos during childhood can be particularly detrimental.″ Id. 708 Id.

Page 98 of 230 52 Hous. L. Rev. ^[1],[*128]

causation evidence. Georgia-Pacific did not dispute that asbestos causes mesothelioma, nor did it truely challenge the contention that Bostic’s exposure to asbestos had caused his mesothelioma. 709 The principal dispute in the case was whether Georgia-Pacific’s asbestos-containing products caused Bostic’s mesothelioma, as opposed to the products of other manufacturers (some of whom had settled with the Bostics), to which Bostic may have had greater exposure. 710 The Court might have reached the same result in the case without extending the Havner requirements to defendant-specific exposure levels (as opposed to aggregate exposure levels) by relying on the considerations espoused in Flores: the Lohrmann ″frequency, regularity, and proximity″ test plus the Restatement (Second) of Torts’ substantial factor requirement. 711 As the dissent noted, by applying Havner to defendant-specific exposure levels, Bostic prevents a plaintiff from recovering from any defendant if he was exposed to asbestos from multiple products in small amounts, none of which alone more the doubled his risk of mesothelioma, but which collectively caused the mesothelioma. 712 An alternative approach would be to consider how ″substantial″ the plaintiff’s exposure to an individual defendant’s products is relative to his total exposure, which could include exposure to the products of manufacturers with which the plaintiff already settled.

Finally, although most of the jurisprudence on epidemiological evidence focuses on the probativeness of the studies (i.e., whether they actually tend to prove a causal relationship), courts have also rejected epidemiological evidence based on the soundness of the studies (i.e., when they do not bear [*129] the necessary indicia of reliability under Daubert/Havner) regardless of whether the study’s results support the expert’s conclusion. 713 In Wells v. SmithKline Beecham Corp., the Fifth Circuit applied the Daubert factors to an observational epidemiological study on which the claimant’s expert relied, the ″Weintraub Poster study,″ and found that the study did not pass muster. 714 The claimant in the case

709 Id. at 1. 710 Id. at 14-16. 711 Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 769-70 (Tex. 2007); Lohrmann v. Pittsburgh Corning Corp,, 782 F.2d 1156 1162-63 (4th Cir. 1986). 712 Bostic, 2014 WL 3797159, at 30, 37. Essentially, the majority opinion in Bostic effectuates the Restatement (Third)’s ″multiple sufficient causes″ exception to the but-for-causation requirement, at least for multi-defendant, asbestos-disease cases. See infra note 794. But this does not account for a scenario in which a disease is caused by exposure to multiple defendants’ products, none of which alone doubled the plaintiff’s relative risk but all of which combined to cause the plaintiff’s disease. A plaintiff who could conclusively prove that his mesothelioma was caused by exposure to asbestos in 200 defendants’ products might nevertheless be unable to recover against any defendant (at least in reliance on epidemiological evidence) because his aggregate exposure was significant but his exposure to each individual defendant’s products was minimal. The Restatement (Third) addresses this scenario, to some degree, with its burden-shifting rule. See Restatement (Third) of Torts , supra note 570, at §§27, 28. 713 See, e.g., Wells v. SmithKline Beecham Corp., 601 F.3d 375, 379-81 (5th Cir. 2010). After noting that epidemiological studies relied on by a testifying expert must be soundly designed and executed, the Havner Court went on to review not the reliability of the study’s protocols but whether the results of the study had any meaningful bearing on causation, even assuming they were reliably produced. See Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 719-20 (Tex. 1997). Here, courts are not examining the methodology employed by the expert himself, but rather, the methodology employed by the scientists who conducted the epidemiological study. The Court has said that a testifying expert cannot rely on scientific studies if the scientists who conducted them did not employ reasonably sound practices or demonstrated unreasonable bias. See id. at 719. 714 Wells, 601 F.3d at 380. The Weintraub Poster study was a case-controlled observational study. See id. Echoing its statement in Knight v. Kirby Inland Marine Inc., the court stated, ″Although, ″case-control studies are not per se inadmissible evidence on general causation,’ this court has frowned on causation conclusions bereft of statistically significant epidemiological support.″ Id. (footnote

Page 99 of 230 52 Hous. L. Rev. ^[1],[*129]

alleged the drug Requip had caused his compulsive gambling. 715 The Weintraub Poster study found an association between a particular category of drug (dopamine agonists) and increased impulse behavior, including gambling. 716 The court observed that the study ″passed none of the applicable Daubert tests″: it had never been published or peer reviewed, 717 the results had not been replicated, 718 and the study’s findings had not been ″generally accepted″ within the relevant scientific community. 719

Several courts, including the Texas Supreme Court, have stated that epidemiological studies are not the only permissible means by which a toxic tort claimant can prove general causation. 720 But a substantial body of epidemiological evidence challenging causation cannot be ignored. 721 When relevant [*130] epidemiological evidence exists, the absence of such evidence in the record may be fatal when general causation is contested in a toxic tort case; but when epidemiological evidence is sparse or nonexistent, perhaps due to the rarity of the disease, the absence of statistically significant epidemiological evidence generally is not a ″crucial flaw,″ as long as there is other reliable evidence of causation. 722 Sometimes there is reliable, but not legally conclusive, epidemiological evidence to support conflicting conclusions about causation. Resolution of the conflict is an issue for the jury as long as there is reliable evidence on both sides of the issue, even if the evidence on one side is stronger than the evidence on the other side. 723 omitted) (quoting Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 352 (5th Cir. 2007)) (holding that expert could not reliably extrapolate from a case-control study involving different workers, exposed to a different type of chemicals, for a different length of time).

715 Id. at 377. 716 Id. at 380. 717 Id. 718 Id. at 380 & n.29. 719 Id. at 380-81. 720 Norris v. Baxter Healthcare Corp. 397 F.3d 878, 882 (10th Cir. 2005); Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378, 1384 (4th Cir. 1995); Vassallo v. Baxter Healthcare Corp., 696 N.E.2d 909, 918 (Mass. 1998); Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 772 (Tex. 2007) (stating that epidemiological ″studies are not necessary to prove causation″). 721 Norris, 397 F.3d at 882; see also Allen v. Pa. Eng’g Corp., 102 F.3d 194, 197 (5th Cir. 1996) (finding it significant that ″numerous reputable epidemiological studies covering in total thousands of workers″ indicated that there was no causation). 722 See, e.g., Milward v. Acuity Specialty Prods. Grp., Inc., 639 F.3d 11, 24 (1st Cir. 2011); see also Taber v. Roush, 316 S.W.3d 139, 152-53 (Tex. App. - Houston [14th Dist.] 2010, no pet.) (responding to defendant’s criticism of plaintiff’s expert’s reliance on only prospective studies to support opinion on causation by observing that ″the dearth of prospective testing in support of the natural forces of labor theory is explained by ethical considerations that preclude a prospective study″). 723 See, e.g., Khun v. Wyeth, Inc., 686 F.3d 618, 622-23 (8th Cir. 2012); Taber, 316 S.W.3d at 148-53 (holding in case that ″centered on a battle of the experts″ that challenges to caliber of expert’s predicative materials went to the weight of the expert evidence, not its admissibility). In Khun v. Wyeth, Wyeth relied on an experimental epidemiological study, the ″WHI study,″ as evidence that the drug Prempro had not caused the claimants’ breast cancer. Khun, 686 F.3d at 622. The WHI study of hormone therapy drugs comprised of estrogen and progestin, like Prempro, found that breast cancer rates were lower in women using the drug than women using the placebo during the first two years of use, approximately equal during the third year, and higher in the fourth and subsequent years. Id. at 626. Because the two claimants in Khun had used the drug for three years and less than two years, respectively, the WHI study did not support the expert’s conclusion that Prempro had caused the claimants’ breast cancer. Id. at 621-23. Instead, the claimants’ causation expert relied on three observational epidemiological studies to conclude that Prempro caused the claimants’ cancer. Id. at 628. The first study observed ″a significant increase in risk for … breast cancer at 2 to 3 years of use″ among 67,754 American women. Id. The second study involved more than one million women in England, more than 20,000 of whom took a hormone therapy drug with a formulation similar to

Page 100 of 230 52 Hous. L. Rev. ^[1],[*131]

[*131] iii. Animal Studies. Epidemiological studies are often considered the first tier for indirect proof of causation in the toxic tort context. 724 When epidemiological studies are unavailable or inconclusive, experts may turn to animal studies. Under the first component of predicative reliability, animal studies are subject to the same standards of internal integrity and validity applicable to epidemiological studies and all expert evidence generally - they must be properly designed and executed such that they could be reasonably relied upon by experts in the relevant field of expertise. 725 The second component of predicative reliability - whether the animal studies actually provide reliable support for the expert’s causation conclusion - is typically less about significance and meaning of the studies in and of themselves and more about the significance of the studies in relation to humans and the facts of the case. 726 For this reason, animal studies are primarily decided under the rubric of the connective reliability gate. 727 The question is whether the expert can adequately connect the results of the animal studies to the circumstances of the case, including bridging the anatomical differences between humans and the kinds of animals used in the studies.

[*132] One court of appeals has relied on Havner to state broadly that ″animal studies, standing alone, are generally held to be inadequate to prove causation in humans absent other confirming Prempro, but the women reported their duration of use only at the time they enrolled in the study. Id. at 629. The study showed ″elevated″ relative risk of breast cancer among women who reported using the drug for less than a year at the time of enrollment and that ″the breast cancers were diagnosed on average 1.2 years after recruitment.″ Id. The claimants’ expert testified that by adding the average 1.2 years from enrollment to diagnosis, the study could be said to show an elevated risk in less than 2.2 years of use. Id. at 629-30. The third study involved more than 50,000 French women. Id. at 630. The expert recognized that this approach would result in some ″misclassifications″ but that because of the ″very large numbers″ in the study, ″small amounts of misclassifications don’t really make a lot of difference.″ Id.

The court recognized that most French women use a different formulation than Prempro and that the study did not distinguish between different formulations of hormone therapy. Id. The study showed an increased risk of breast cancer among women taking hormone therapy for less than two years when the women began taking the hormone therapy shortly after the onset of menopause. Id. The claimants’ expert noted that the WHI study’s participants were more than ten years past the onset of menopause. Id. at 623. Wyeth argued that the WHI study was a randomized control study, ″the ″gold standard’ of epidemiological studies,″ that disproved the contention that short term use of Prempro could cause breast cancer and that the claimants’ causation expert, who had relied on the WHI study in previous cases, had failed to adequately refute the study’s findings. Id. at 622-23. Wyeth argued that the claimants’ expert had ″cherry picked″ the three observational studies on which he relied from ″a wealth of studies″ showing no increased risk of breast cancer from short term use. Id. at 633. The MDL magistrate judge agreed and excluded the expert’s testimony. Id. at 626. The Eight Circuit disagreed. Id. at 627. The court stated that the claimants did not bear the burden of disproving the WHI study’s finding that short term use of Prempro does not increase the risk of breast cancer; as long as their expert ″arrived at his contrary opinion in a scientifically sound and methodological fashion,″ the issue was one of conflicting evidence for the jury to resolve. Id. at 626. The court likewise recognized the imperfections in the observational studies on which the claimants’ expert relied, but concluded that they ″were sufficient to support his opinion that short term use of Prempro increases the risk of breast cancer.″ Id. at 632. The court indicated that the limitations of the studies on which the expert relied went to the weight to be afforded the expert’s testimony by the jury, and that the ″wealth″ of observational studies Wyeth identified as reaching an opposite conclusion was likewise an issue of conflicting evidence, not admissibility. Id. at 632-33. 724 See Green, Freedman & Gordis, supra note 613, at 551 n.2, 555-56, 608-10 (″Epidemiologic studies have been well received by courts deciding cases involving toxic substances.″). 725 See generally Fed. R. Evid. 703; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595, 597 (1993). 726 See, e.g., Gen. Elec. Co. v. Joiner, 522 U.S. 136, 144-45 (1997); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 728-29 (Tex. 1997); see also Johnson v. Arkema, Inc., 685 F.3d 452, 463 (5th Cir. 2012) (quoting Allen v. Pa. Eng’g Corp., 102 F.3d 194, 197 (5th Cir. 1996) for the proposition that animal studies have ″very limited usefulness″ in proving toxicity and ″must be carefully qualified in order to have explanatory potential for human beings″). 727 Connective reliability is discussed below. See infra Part III.D.

Page 101 of 230 52 Hous. L. Rev. ^[1],[*132]

epidemiological data.″ 728 Havner is subject to differing constructions. It can be read to hold only that, when an expert relies on epidemiological evidence as a predicate for a causation opinion in a toxic tort case, the epidemiological evidence does not provide adequate support for the expert’s opinion unless it includes at least two studies demonstrating at least a ″doubling of the risk″; or it can be read to hold when an expert offers a causation opinion in a toxic tort case, the predicate for the opinion must include at least two epidemiological studies demonstrating at least a ″doubling of the risk″ - no other predicate will suffice. The second construction of Havner would preclude an expert from ever reaching a causation opinion in a toxic tort case based on animal studies alone. This construction was advanced in a case recently decided by the Texas Supreme Court. 729 The Court’s opinion in Bostic establishes that epidemiological evidence is not an absolute requirement for proof of causation in a toxic tort: the plaintiff may choose instead to provide ″direct, scientifically reliable proof of causation.″ 730 Havner ″offers an alternative method of establishing causation″ when such direct proof is not available. 731

While Bostic answers the question of whether Havner-satisfying epidemiological evidence is an absolute requirement for causation in toxic tort cases, it does not answer the question of whether animal studies could ever be sufficient in the absence of such epidemiological studies. Bostic recognized an exception for ″direct″ causation evidence, but animal studies, like epidemiological studies, are ″indirect″ causation evidence. Whatever the outcome in Texas, the U.S. Supreme Court’s rejection of the expert’s reliance on animal studies in Joiner is probably not so broad. The Joiner Court expressly noted that ″whether animal studies can ever be a proper foundation for an expert’s opinion″ was not the issue in the case. 732 Instead, the [*133] Court focused on the analytical gap between the circumstances of the animal studies and the circumstances of the case (animal v. human, high concentration v. low concentration), and the expert’s failure to bridge that gap (i.e., connective reliability). 733

iv. Published Literature. Whether an expert’s theory has been published and subjected to peer review is one of the factors identified in Daubert for evaluating the reliability of an expert’s testimony. 734 Not coincidentally, reliance on published literature is common among scientific experts, 735 and published

728 Alza Corp. v. Thompson, No. 13-07-00090-CV, 2010 WL 1254610, at 18 (Tex. App. - Corpus Christi Apr. ^[1], 2010, no pet.) (mem. op.) (citing Havner, 953 S.W.2d at 729). 729 See Georgia-Pacific Corp.’s Brief on the Merits at 15-16, 30-33, Bostic v. Ga.-Pac. Corp., No. 10-0775, 2014 WL 3797159 (Tex. July 11, 2014). The briefing in this case is available on the Texas Supreme Court’s website, www.supreme.courts.state.tx.us/ ebriefs/ebriefs.asp, under the briefing for the 2010 cases (last visited Sept. 19, 2014). 730 Bostic, 2014 WL 3797159, at 9 (quoting Merrell Dow Pharm., Inc. v. Hanver, 953 S.W.2d 706, 715 (Tex. 1997)). 731 Id. 732 Gen. Elec. Co. v. Joiner, 522 U.S. 136, 144 (1997). 733 Id. at 144-45. 734 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593 (1993). This is discussed in detail under ″methodological reliability.″ See infra Part III.C. 735 Daubert’s factors can apply to nonscientific expert testimony, and nonscientific experts often rely on published literature as well. This predicate is discussed here simply because it is most common in the context of scientific expert testimony.

Page 102 of 230 52 Hous. L. Rev. ^[1],[*133]

literature is generally viewed as a particularly reliable predicate for expert opinions. 736 But testimony may be reliable in the absence of published literature supporting the testimony. 737 A party offering scientific opinion testimony that is not supported by any published, peer-reviewed literature should explain the absence of such literature - for example, the issue may be too unusual to justify publication or too new for literature to have reached the publication stage. 738

[*134] It is insufficient for an expert to simply cite literature and claim it supports his opinion. Courts meticulously examine the content 739 and depth of the literature cited by an expert. 740 A mere citation or passing reference to literature is insufficient; 741 the expert should explain how that literature supports the opinion. 742 Articles that are ″self-limiting″ may not support a reliability finding. 743 One 736 See, e.g., Neiberger v. Fed Ex Ground Package Sys., Inc., 566 F.3d 1184, 1190-91 (10th Cir. 2009) (holding that district court did not err in admitting defense expert attributing cause of nonunion in spine to smoking where expert relied on several peer-reviewed articles in medical journal, his physical examination, and eliminated other causes); Tex. Mut. Ins. Co. v. Lerma, 143 S.W.3d 172, 176-78 (Tex. App. - San Antonio 2004, pet. denied) (holding in wrongful death claim that physician’s causation opinion was unreliable when physician admitted he knew of no scientific literature indicating a person could get tetanus more than twenty-one days after being injured and did not exclude other plausible causes of injury). 737 See, e.g., Primiano v. Cook, 598 F.3d 558, 565, 567 (9th Cir. 2010) (″Peer reviewed scientific literature may be unavailable because the issue may be too particular, new, or of insufficiently broad interest, to be in the literature″ or when medical phenomenon was so unusual that ″the specialists who publish articles do not see it in their practices.″); Clausen v. M/V New Carissa, 339 F.3d 1049, 1060-61 (9th Cir. 2003) (holding that expert’s general causation opinion that identifies ″low-level toxic effects of oil as a possible cause of the oyster mortality without supporting peer-reviewed literature specific to that subject″ was sufficiently reliable because he relied ″upon a variety of [other] objective, verifiable evidence″ (quoting Kennedy v. Collagen Corp., 161 F.3d 1226, 1228 (9th Cir. 1998))); Pipitone v. Biomatrix, Inc., 288 F.3d 239, 246 (5th Cir. 2002) (holding that lack of literature did not undermine expert’s opinion and explaining ″there is no evidence that anyone has ever contracted a salmonella infection from an injection of any kind into the knee″ and therefore ″it is difficult to see why a scientist would study this phenomenon″). 738 See, e.g., Primiano 598 F.3d at 567; White v. Ford Motor Co., 312 F.3d 998, 1008 (9th Cir. 2002) (holding that trial judge did not err in admitting expert opinion on design of parking brake and that ″scientific bolstering as published articles in reference journals was not required, because there is no reason to suppose that this detail of parking brake manufacture was of general interest to the scientific community and would generate a peer-reviewed literature″), amended and reh’g denied, 335 F.3d 833 (9th Cir. 2003). 739 Wiggs v. All Saints Health Sys., 124 S.W.3d 407, 412-13 (Tex. App. - Fort Worth 2003, pet. denied) (stating that the only two medical articles reviewed by expert did not reach the same causation conclusion as expert). 740 Doe v. Ortho-Clinical Diagnostics, Inc., 440 F. Supp. 2d 465, 472-75 (M.D.N.C. 2006) (noting a literature review may support general causation if ″performed appropriately″ but, despite ″his collective review of a motley assortment of diverse literature,″ it did not support his opinion because ″the disconnected literature he presents does not add up″ to his conclusion); Lugo v. N.Y. City Health & Hosps. Corp., 929 N.Y.S.2d 264, 279 (N.Y. App. Div. 2011) (stating court should examine ″whether a reasonable quantum of legitimate support exists in the literature of the expert’s views″); Wiggs, 124 S.W.3d at 413 (noting expert reviewed only two medical articles, not a broad spectrum of the medical literature); cf. McDowell v. Brown, 392 F.3d 1283, 1298 (11th Cir. 2004) (″[A] court should meticulously focus on the expert’s principles and methodology.″); Miller v. Pfizer, Inc., 356 F.3d 1326, 1335 (10th Cir. 2004) (affirming exclusion of expert testimony over objection that the trial court was too nitpicky: ″What the Millers call nit-picking, we would call being thorough″ because Daubert’s analysis ″is extensive, requiring the district court to carefully and meticulously review the proffered scientific evidence″). 741 Brown v. Ill. Cent. R.R. Co., 705 F.3d 531, 536 (5th Cir. 2013); United States v. Montgomery, 635 F.3d 1074, 1090-91 (8th Cir. 2011) (finding no error in exclusion of expert testimony that defendant’s PET scan test results revealed abnormalities consistent with pseudocyesis because testimony did ″not meet Rule 702’s reliability requirement″; it was ″at most a working hypothesis, not admissible scientific ″knowledge’″ where expert made only passing reference to study that purportedly supported opinion and opposing expert rebutted applicability of the study (quoting Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 670 (6th Cir. 2010))). 742 Praytor v. Ford Motor Co., 97 S.W.3d 237, 244 (Tex. App. - Houston [14th Dist.] 2002, no pet.) (stating that expert’s claimed reliance on medical literature in his diagnosis was inadequate because expert failed ″to explain what literature he read or whether the literature consists of peer-reviewed studies″).

Page 103 of 230 52 Hous. L. Rev. ^[1],[*134]

federal court stated that an expert who relies on a published article by another author to provide a reliable basis for an opinion must demonstrate that the expert has properly interpreted the article. 744 An expert ″cannot use″ an article that expressly refuses to reach a conclusion to support that very conclusion. 745 Cited literature that does not support an expert’s opinion is of no aid, 746 nor is literature with its own flaws. 747 One [*135] federal court also examined whether an expert adequately addressed literature that reached an opposite conclusion. 748 When literature is deeply divided on an issue, experts from both sides must rely on a degree of interpretation of the literature and there is no evidence that the literature for one side has flaws not present in the other side’s literature, ″courts are not equipped to″ weigh ″the relative persuasive power″ of the competing studies. 749

v. Material Safety Data Sheets and Safety Standards. Experts sometimes rely on federal regulations (particularly from the EPA, FDA, or OSHA), warnings provided by governmental or private entities, and material safety data sheets (MSDS) to infer a causal relationship between a particular substance and a particular illness or injury. Some courts have, for example, concluded that information from a chemical’s MSDS can, in some cases, provide an adequate predicate for identifying a chemical as a potential cause, particularly when combined with other support. 750 But like federal regulations and health warnings, an MSDS is not designed to establish causation. Courts have generally allowed MSDSs and other types of formalized health warnings to serve as a predicate for expert opinions on causation only when the MSDS provide sufficient factual information to support the expert’s analysis. 751 Electronically Filed 5/5/2014 4:43:19 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa

2.0 Inadmissible Report Should be Excluded

2.1 A motion to exclude, in effect, accomplishes the same thing as a running objection: it

eliminates the need to repeat the objection each time evidence is admitted on a topic. See, Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004) When expert evidence is

challenged, a gatekeeping hearing is required before admitting the evidence, regardless of whether the expertise at issue is novel or well-established. See, Jackson v. State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000). In this case the expertise at issue is novel, indeed.

2.2 Plaintiffs’ purpose for attaching an expert report: The Texas Supreme Court held that Section 546.005 of the Texas Transportation Code imposes a duty to drive with due regard for others by avoiding negligent behavior, [this is the basis of Plaintiffs’ causes of action] but it

only imposes liability for reckless conduct. See, City of Amarillo v. Martin, 971 S.W.2d 426, 431 (Tex. 1998) (interpreting the uncodified predecessor of Section 546.005) (emphasis added).

Plaintiffs attempt to raise an issue of fact as to “recklessness” by attaching Richard Weinblatt’s

report to their response to Hidalgo County’s Second Amended Plea to the Jurisdiction. See, Exhibit B to Plaintiffs’ Response to HC’s 1st & 2nd Amend. Plea to Jur.

3.0 Weinblatt’s Report is Unverified and is Conclusory

3.1 The plea to the jurisdiction standard mirrors that of a traditional motion for summary judgment. See, City of Fort Worth v. Robinson, 300 S.W.3d 892, 895 (Tex. App.—Fort Worth

2009, no pet.). As stated by the Thirteenth Court of Appeals in Corpus Christi, when an expert report is “unverified” it does “not constitute proper summary judgment evidence” and should be disallowed. See, Twist v. Garcia, 2007 Tex. App. LEXIS 7187, 2007 WL 2442363 (Tex. App.

Corpus Christi Aug. 30, 2007) “A verification is "[a] formal declaration made in the presence of an authorized officer, such as a notary public, by which one swears to the truth of the statements Electronically Filed 5/5/2014 4:43:19 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa in the document." In re Dobbins, 247 S.W.3d 394, 397 2008 Tex. App. LEXIS 1488 (Tex. App.

Dallas 2008) (citing Andrews v. Stanton, 198 S.W.3d 4, at 8 2006 Tex. App. LEXIS 98 (Tex.

App. El Paso 2006) Weinblatt’s report was not properly verified thus it does not constitute

proper evidence and should not be admitted. See, Exhibit B to Plaintiffs Response to HC’s 1st & 2nd Amend. Plea to Jur.

Admissibility of Expert Testimony [as to Recklessness]

3.2 “The United States Supreme Court explained the importance of the trial court’s gatekeeping function with respect to expert opinion testimony in Daubert v. Merrell Dow

Pharmaceuticals, Inc. 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L. Ed. 2d 469 (1993).” Thompson v. State, 2012 Tex. App. LEXIS 1579, at 10, 2012 WL 668937 (Tex. App. Houston 1st Dist.

Mar. ^[1], 2012)

3.3 Gatekeeping requires a two steps process to ascertain whether expert testimony is admissible:

STEP 1: The court must ask itself (1) if the expert is qualified and (2) is the testimony relevant and based on a reliable foundation. See, E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d

549, 556, 38 Tex. Sup. Ct. J. 852 (Tex. 1995).

STEP 2: Furthermore, the court must determine at a gatekeeping hearing whether such testimony is helpful to the trier of fact See, Emerson v. State, 880 S.W.2d 759, 763 (Tex. Crim.

App 1994); see TEX. R. EVID. 702.

“In other words, if the trial judge determines that the proffered expert testimony is reliable (and thus probative and relevant), then she must next determine whether, on balance, that testimony might nevertheless be unhelpful to the trier of fact for other reasons. Kelly, 824 S.W.2d at 572 (emphasis in original). The evidence may be unhelpful, even though reliable, if its probative value is substantially outweighed by, e.g., the risk of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or the

Hid Co.: Mot.to Excl. PAGE 3 Electronically Filed 5/5/2014 4:43:19 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa

presentation of cumulative evidence. Emerson, 880 S.W.2d at 763 (citing TEX. R. EVID. 403).” See, Thompson v. State, 2012 Tex. App. LEXIS 1579, 2012 WL 668937 (Tex. App. Houston

1st Dist. Mar. ^[1], 2012)

Expert’s Qualifications

3.4 Texas Rule of Evidence 702 permits a witness qualified as an expert by knowledge, skill, experience, training, or education to testify on scientific, technical, or other specialized subjects

if the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In their Response to Hidalgo County’s Plea to the Jurisdiction, Plaintiffs are attempting to

raise an issue of fact as to recklessness by attaching Richard Weinblatt’s unverified and conclusory report to their response. See, Exhibit B to Plaintiffs Response to HC’s 1st & 2nd

Amend. Plea to Jur. Weinblatt’s report never specifies the type of expertise he is claims to have. Id. Weinblatt’s Curriculum Vitae [“CV”] was not attached to the report but a copy can be

found in Plaintiff’s Respond to Defendant’s City of Pharr’s Plea to the Jurisdiction. Because the CV attached to Plaintiff’s Respond to Defendant’s City of Pharr’s Plea to the Jurisdiction is also

unverified it is not proper summary judgment evidence as to his qualifications. See, Twist v. Garcia, 2007 Tex. App. LEXIS 7187, 2007 WL 2442363 (Tex. App. Corpus Christi Aug. 30, 2007) Weinblatt’s unverified CV sets out his alleged qualifications and experience, but does not state what type of opinion his “qualifications” and “experience” qualifies him to give. See, Pltf.’s

Resp. to Def. City of Pharr’s Plea to the Jur. Weinblatt’s report implies that he is testifying as an expert to the “accepted police standards and practices,” but it leaves the reader guessing

because nowhere in the report is the scientific field of Weinblatt’s expertise made clear. See, Exhibit B to Plaintiffs Response to HC’s 1st & 2nd Amend. Plea to Jur.

Electronically Filed 5/5/2014 4:43:19 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa

3.5 Recklessness is defined as “an act that the operator knew or should have known posed a high degree of risk of serious injury.” See, City of Amarillo v. Martin, 971 S.W.2d 426, 429-30

(Tex. 1998). Regardless of whether or not Deputy Ortega’s actions were in line with national

“accepted policies and procedures,” which is what Weinblatt appears to be testifying about in the subject report, this Court should not consider the report because it is not relevant as to the issue of recklessness as defined above. Moreover, in Page 5 of Weiblatt’s report, he mentions a “non-

forcible felony” but Texas does not use such language to define felonies in its Penal Code, Weinblatt is applying his home State of Indiana’s legal concepts to the case at hand. More specifically, Indiana Code Section 35-41-1-11 which defines forcible felony as a “felony that involves the use or threat of force against a human being, or in which there is imminent danger of bodily injury to a human being, which is a direct misapplication of law to the facts in the case at hand. See, Exhibit B to Plaintiffs Response to HC’s 1st & 2nd Amend. Plea to Jur. Plaintiffs have not met their burden of showing their expert is qualified to testify as to what specific acts by a Hidalgo County Officer would constitute recklessness as defined by the Texas Supreme

Court. In other words, they have not met their burden under Texas law to show that Weinblatt is an expert regarding recklessness.

Relevance & Reliability of Expert’s Opinions

3.6 Assuming that Dr. Weinblatt is found to be qualified to give opinions as to recklessness as defined by Texas law; his opinions are irrelevant.

3.7 Opinion 1: “It was consistent with commonly accepted police standards and practices to attempt a traffic stop for a violation of state statute.” See, Exhibit B to Plaintiffs Response to

HC’s 1st & 2nd Amend. Plea to Jur. pg. ^[5]. It is uncontroverted that no Hidalgo County employee was involved in the initial traffic stop attempt, as set out by Plaintiffs’ own petition. See, Electronically Filed 5/5/2014 4:43:19 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa

Plaintiffs’ First Amended Petition. Accordingly, opinion No.1 fails to provide admissible evidence as to the issue of recklessness of Hidalgo County officers. Further, such opinion is clearly irrelevant to such issue.

3.8 Opinion 2: “It was not consistent with commonly accepted police standards and practices to engage in a pursuit for a non-forcible felony and at great risk to the public.” See, Exhibit B to

Plaintiffs Response to HC’s 1st & 2nd Amend. Plea to Jur. This opinion presupposes [speculates] that County Deputy Ortega was aware that a “non-forcible felony” [Texas uses “Degrees”] had occurred and that he engaged in a “pursuit” of who ever committed said non-forcible felony.

Plaintiffs’ own allegations state that the officer failed to inquire about the initial traffic stop. See, Plaintiffs’ First Amended Petition. The report does not state foundational facts or specificy what facts were used for the basis of his opinion, therefore such opinion is not only nonsensical but irrelevant and unreliable. See, Exhibit B to Plaintiffs Response to HC’s 1st & 2nd Amend. Plea to

Jur. Weinblatt actually goes into an analysis of Pharr PD’s Police Policies which is irrelevant as to Hidalgo County’s actions. Id. pg 6. Further, the Weinblatt states that because of the “pursuit for a non-forcible felony” the public was at “great risk.” Id. Here the expert moves away from

“accepted police standards and practices” and opines on the level of danger to the public at large, as a result of actions [not proven] taken by officers. He is unqualified to scientifically assess the risks to the public and to attribute such risks to actions by any police officer involved.

Accordingly, opinion No.2 fails to provide admissible evidence. Further, such opinion is clearly irrelevant to such issue and unreliable due to the lack of foundational facts.

3.9 Opinion 3: “It was not consistent with commonly accepted police standards and practices to not terminate involvement as initial or assisting units clearly and properly.” See, Exhibit B to

Plaintiffs Response to HC’s 1st & 2nd Amend. Plea to Jur. The report fails to reference what Electronically Filed 5/5/2014 4:43:19 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa foundational facts Weinblatt’s used to support his opinion as to what County Deputy Ortega

knew or didn’t know at the time at the time Hidalgo County was requested to assist the City of Pharr that would require him to “terminate” his involvement. Id. It is not the courts job to link or infer facts, the expert needs to show every step of his analysis. Weinblatt actually states that

Deputy Ortega “erroneously” chose to enter into the scenario, but does not provide foundational facts to support said claim. Id. Accordingly, opinion No.3 fails to provide admissible

evidence. Further, such opinion is clearly irrelevant to such issue and unreliable due to the lack of foundational facts.

3.10 Opinion 4: “It was not consistent with commonly accepted police standards and practices for the law enforcement agency not have a detailed pursuit policy that includes aspects such as proper termination and assisting of other agencies.” [sic] See, Exhibit B to Plaintiffs Response to

HC’s 1st & 2nd Amend. Plea to Jur. This opinion is wholly irrelevant because the duty of care in question is that of “the operator of an authorized emergency vehicle” not that of the agency employing the officer. Accordingly, opinion No.4 fails to provide admissible evidence.

Further, such opinion is clearly irrelevant to such issue.

3.11 Opinion 5: “It was not consistent with commonly accepted police standards and practices for a law enforcement officer to engage in any manner in a police pursuit while in an unmarked vehicle lacking door insignia and overhead emergency lighting especially when such conduct is contrary to written directive to the employing agency’s officials.” See, Exhibit B to Plaintiffs

Response to HC’s 1st & 2nd Amend. Plea to Jur. The definition for recklessness as stated before is “an act that the operator knew or should have known posed a high degree of risk of serious injury.” See, City of Amarillo v. Martin, 971 S.W.2d 426, 429–30 (Tex. 1998) (Emphasis

Added) Hidalgo County’s unit was in fact marked, but regardless, whether Hidalgo County’s Electronically Filed 5/5/2014 4:43:19 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa

Sheriffs conduct is “contrary to written directive” is not an “act” of a Hidalgo County officer that he/she knew or should have known posed a high degree of risk of serious injury.

Accordingly, opinion No.5 fails to provide admissible evidence. Further, such opinion is clearly irrelevant to such issue.

3.12 Opinion 6: “It was not consistent with commonly accepted police standards and practices to produce multiple law enforcement officials’ report and voluntary witnesses statements using the same or very similar verbiage.”[sic] See, Exhibit B to Plaintiffs Response to HC’s 1st & 2nd

Amend. Plea to Jur. This opinion is irrelevant because it has no bearing as to what knowledge

County Deputy Ortega or any other Hidalgo County employee had that would have made any of their actions reckless. Moreover, whether or not the witnesses’ statements were in police

“verbiage” is irrelevant because Hidalg County’s Reply to Plaintiffs’ Response to its Second

Amended Plea to the Jurisdiction has attached subsequent affidavits by the same witnesses in their natural Spanish language which verify the facts. See, Exhibit 9 to Pltf’s Resp. to its 1st & 2nd

Amend. Plea to Jur. Accordingly, opinion No.6 fails to provide admissible evidence.

Further, such opinion is clearly irrelevant to such issue.

3.13 Opinion 7: “It was not consistent with commonly accepted police standards and practices to not continually keep dispatch and supervisors appraised of all pertinent information concerning the pursuit and for other agencies to not request such information ” See, Exhibit B to

Plaintiffs Response to HC’s 1st & 2nd Amend. Plea to Jur. This opinion is irrelevant because it has no bearing as to what knowledge County Deputy Ortega or any other Hidalgo County employee had that would have made any of their actions reckless. Accordingly, opinion No.7 fails to provide admissible evidence. Further, such opinion is clearly irrelevant to such issue.

Electronically Filed 5/5/2014 4:43:19 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa

3.14 Opinion 8: “It was not consistent with commonly accepted police standards and practices to not properly manage, control, and review a pursuit.” See, Exhibit B to Plaintiffs Response to

HC’s 1st & 2nd Amend. Plea to Jur. Again, the definition for recklessness as stated before is “an act that the operator knew or should have known posed a high degree of risk of serious injury.” See, City of Amarillo v. Martin, 971 S.W.2d 426, 429–30 (Tex. 1998) (Emphasis

Added) This opinion is irrelevant because it has no bearing as to what knowledge County

Deputy Ortega or any other Hidalgo County employee had that would have made any of their

actions reckless. Accordingly, opinion No.8 fails to provide admissible evidence. Further, such opinion is clearly irrelevant to such issue.

Reliability of Report as a Whole

3.15 Even if this Court finds that Plaintiffs’ expert is qualified to give such opinions, AND such opinions are relevant, the report as a whole is unreliable. As stated by the First Court of Appeals:

“a court cannot simply accept expert testimony at face-value because unreliable expert testimony constitutes no evidence. The trial court should undertake a rigorous examination of the three components of the reliability inquiry, namely, the expert's

methodology, foundational data, and whether too great an analytical gap exists as the expert connects the foundational data or methodology with the opinion. Each material part of an expert's theory must be reliable. Stated differently, the expert's testimony must be reliable at each and every step or else it is inadmissible.”

Wilson v. Shanti, 333 S.W.3d 909, 913 2011 Tex. App. LEXIS 116 (Tex. App. Houston 1st

Dist. 2011) Electronically Filed 5/5/2014 4:43:19 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa

3.16 An expert’s simple word is insufficient to establish a matter; rather, the expert must explain the basis of his statements to link his conclusions to the facts. See, Earle v. Ratliff, 998

S.W.2d 882, 890 (Tex. 1999). In other words, just because the expert says it, doesn’t make it so, there has to be a scientific explanation based on facts. Expert opinions must be supported by facts in evidence, not conjecture. See, Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex.

2003) (per curiam).

3.17 Analytical Gap: Weinblatt states in the very first page of his report “...I have examined the following documents that you provided in order to facilitate the preparation of this Expert

Opinion document:” See, Exhibit B to Plaintiffs Response to HC’s 1st & 2nd Amend. Plea to Jur.

He then enumerates 30 documents. Id. In the subject report it is evident that Dr. Weinblatt rarely references such enumerated documents. Id. The reader has to take Weinblatt at his word that the facts necessary to support his opinions and conclusions are in the enumerated documents. In essence, Weinblatt fails to offer the necessary evidentiary basis for each opinion.

3.18 Vagueness: It is impossible to make out what alleged actions he attributes to other agencies, (e.g. Pharr police, DPS) and which allegations he attributes to any Hidalgo County employee, including Sr. Deputy Ortega. For example Weinblatt almost never specifies “Hidalgo

County” or “Deputy Ortega” he just makes vague assertions.

3.19 Such analytical gap and vagueness in Weinblatt’s report fails to establish its admissibility because the whole report is unreliable. Weinblatt has not met his burden of showing a link between his opinions and the facts.

Helpfulness of the Report

3.20 While we believe it extremely unlikely the Court should reach the second step in the gatekeeping process, (should this Court find that Weinblatt’s report is properly verified, and that Electronically Filed 5/5/2014 4:43:19 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa

Weinblatt is qualified to make such testimony, the testimony is relevant and that the testimony is

reliable), this Court would still need to find that Weinblatt’s report is helpful and will help the trier of fact understand the evidence or determine a fact in issue. See, Duckett v. State, 797

S.W.2d 906, 910 (Tex.Cr.App. 1990). Therefore, if this Court finds that Weinblatt’s unverified testimony as to nationally “accepted policies and procedures” to be confusing and/or misleading and/or prejudicial the Court should exclude Plaintiffs report.

PRAYER

WHEREFORE, Plaintiff asks for this court to grant this motion and excludefrom consideration:

a. Richard Weinblatt’s report attached to Plaintiffs’ Response to Hidalgo County’s First & Second Amended Plea to Jurisdiction.

Respectfully submitted, LAW OFFICES OF PRESTON HENRICHSON, P.C. 222 West Cano Edinburg, TX 78539 Telephone: (956)383-3535 Facsimile: (956) 383-3585 E-Mail: [email protected]

_____/s/ Mike Ruiz _____________ Preston Henrichson Texas Bar No. 09477000 Miguel “Mike” Ruiz Texas Bar No. 24079252 ATTORNEYS FOR HIDALGO COUNTY

Hid Co.: Mot.to Excl. PAGE 11 Electronically Filed 5/5/2014 4:43:19 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa

CERTIFICATE OF SERVICE

This is to certify that on this the 5th day of May, 2014, a true and correct copy of the above and foregoing was served, in accordance with Rule 21 and 21a of the Texas Rules of Civil Procedure, on all counsel of record.

___/s/ Mike Ruiz ___________________ For the Firm

Wyatt D. Snider Librado Keno Vasquez Robert W. Drinkard/Rebecca S. SNIDER LAW FIRM, PLLC KENO VASQUEZ LAW OFFICE Hayward/Ricardo J. Navarro Delaware Office Plaza 3525 W. Freddy Gonzalez Dr., Ste. C DENTON, NAVARRO, ROCHA & 3560 Delaware Street, Ste. 308 Edinburg, TX 78539 BERNAL, P.C. Beaumont, TX 77706 Fax: 956-316-1936 701 East Harrison, Ste. 100 Fax: 409-924-0808 [email protected] Harlingen, TX 78550 [email protected] Fax: 956-421-3621 [email protected] [email protected] [email protected]

Elsa Girón Nava, Antonio & Bertha Trevino, Pro Se Assistant Attorney General 908 S. Cesar Chavez Road OFFICE OF THE ATTORNEY Edinburg, TX 78542 GENERAL Tort Litigation Division Mail Stop 030 P.O. Box 12548, Capitol Station Austin, TX 78711-2548 Fax: 512-457-4459 [email protected] Electronically Filed 5/21/2014 1:33:54 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa Electronically Filed 5/21/2014 1:33:54 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa Electronically Filed 5/21/2014 1:33:54 PM Hidalgo County District Clerks Reviewed By: Kim Hinojosa