EVIDENCE

ANDREW B. SOMMERMANGEORGE (TEX) QUESADASOMMERMAN & QUESADA, L.L.P.

3811 Turtle Creek Boulevard, Suite 1400Dallas, Texas 75219-4461

(800) 900-5373

July 2005

State Bar of Texas21ST ANNUAL ADVANCED

PERSONAL INJURY LAW COURSEJuly 13-15, 2005 - Dallas

August 3-5, 2005 – San AntonioAugust 24-26, 2005 - Houston

CHAPTER 12

ANDREW B. SOMMERMAN3811 Turtle Creek Blvd., Suite 1400

Dallas, Texas 75219(214) 720-0720

POSITION: Senior Partner, Sommerman & Quesada L.L.P., 1991- Present

EDUCATION: Juris Doctorate, South Texas College of Law, 1986Bachelor of Arts, University of Texas at Arlington, 1983

TEACHING EXPERIENCE:

Adjunct Professor, University of Texas at Arlington, 1999-PresentAdjunct Professor, Tarrant County Junior College, 1990-1992Adjunct Professor, South Texas College of Law, 1986

BOARD CERTIFICATION:

Personal Injury Trial Law, 1997-PresentTexas State Bar College, 2000-Present

PAST EXPERIENCE:

Associate, Brown, Maroney and Oaks Hartline, 1990-1991Associate, Law Offices of Windle Turley, 1986-1990Research Assistant, South Texas College of Law, 1983-1985Assistant to the City Manager, Town of Pantego, 1981-1983Congressional Investigator, United States Congress, 1980-1981

LICENSES: Licensed by the Texas Bar, 1986Licensed by the Federal District Court of the Northern District of Texas, 1986

BOOKS: How to Please the Court: A Moot Court Handbook, Sommerman, Knerr, Weizer et al, PeterLaws Publishing, 2004.

PRESENTATIONS AND PUBLICATIONS:

“Damages” paper delivered to the Continuing Legal Education Evidence Seminar of the University ofHouston, January, 2004.

“Undergraduate Moot Court,” Knerr, Charles R. and Andrew B. Sommerman; Published, 21 NAPLANotes 53-56 (2003).

“Evidence on Damages” paper delivered to the Continuing Legal Education Evidence Seminar of theUniversity of Houston, February, 2003.

“Undergraduate Appellate Simulation in American Colleges,” Knerr, Charles R.; Andrew B. Sommerman;Suzy K. Rogers; Accepted for publication, in the Journal of Legal Studies Education, 2003.

“Expert Witnesses,” South Texas College of Law, Automobile Injury Conference, 2003.

“Pleading, Proving and Defending Against Damages” paper delivered to the Advanced Personal Injury andInsurance Seminar, University of Houston Law Foundation, June, 2003.

“Venue and Forum Shopping” paper deliverd to the Advanced Civil Law Conference, South Texas Collegeof Law, February, 2002.

“Bringing the Supreme Court into the Undergraduate Classroom: Appellate Simulation in AmericanColleges,” Knerr, Charles R. and Andrew B. Sommerman; Accepted for publication, April 2001, in Lawand Courts.

“Bringing the Courtroom into the Undergraduate Classroom: Appellate Simulation in American Colleges,”Knerr, Charles R. and Andrew B. Sommerman; Accepted for publication, in Undergraduate Educator.

“Variation in the Conduct of Undergraduate Moot Court,” Knerr, Charles R. and Andrew B. Sommerman;paper delivered on March 15, 2001 at Annual Meeting of the Western Political Science Association, LasVegas.

“Discovery Under The Not-So-New Rules,” paper delivered on March 1, 2001 at the Advanced PersonalInjury Seminar, South Texas College of Law.

“Forum Shopping,” paper delivered on February 23, 2001 at the Multi-Party Litigation Seminar offered bythe University of Houston Law School.

“Undergraduate Moot Court: Research Agenda,” Knerr, Charles R. and Andrew B. Sommerman;paper delivered on February 22-25, 2001 at Pacific Academy of Legal Studies in Business AnnualMeeting (Palm Springs, California).

“Undergraduate Appellate Simulation in American Colleges and Universities,” Knerr, Charles R. andAndrew B. Sommerman; paper delivered on November 11, 2000 at National Communication AssociationAnnual Meeting (Seattle).

“Undergraduate Moot Court: A Comparison with Law School and Appellate Practice,” Knerr, Charles R.and Andrew B. Sommerman; paper delivered on August 31, 2000 at American Political Science AssociationAnnual Meeting (Washington, D.C.)

“Expert Witnesses and Their Evidence: Reliability and Relevance (Robinson Turns 5),” paper delivered on April 13, 2000 at the Advanced Personal Injury Seminar offered by the SouthTexas College of Law.

“Undergraduate Appellate Simulation in American Colleges and Universities,” Knerr, Charles R. andAndrew B. Sommerman; paper delivered on November 11, 2000 at National Communication AssociationAnnual Meeting (Seattle).

“Depositions Under The Rules of Civil Procedure,” paper delivered to the Civil Discovery Conferenceoffered by the University of Houston Law School on April 14, 1999, January 27, 2000; and February 3,2000.

“Evidence and Discovery: A New Ball Game,” paper delivered to the Advanced Personal Injury Conferenceon August 26, 1999 offered by the University of Houston Law School.

“Undergraduate Appellate Simulation in American Colleges and Universities,” Knerr, Charles R. andAndrew B. Sommerman; paper delivered on March 16, 2000 at Southwestern Political ScienceAssociation Annual Meeting (Galveston, Texas).

“Demonstrative Evidence,” paper delivered to the Advanced Personal Injury Seminar in June 1999 offeredby the State Bar of Texas.

“How to present a Soft Tissue Injury Case,” paper delivered to the Automobile Injury Conference on April23, 1999, May 15, 1998, April 14, 1997 and July 17, 1996; offered by the South Texas College of Law.

“Injuries in a Soft Tissue Injury Case,” paper delivered to the Insurance Law Seminar on May 14, 1998; andMay 16, 1997, offered by the University of Houston Law School.

“Mechanism of Harm in Head Injury Cases,” paper offered to the Traumatic Brain Injury Conference onAugust 27, 1997 offered by Lorman Education Center.

“Proving Difficult Damages,” paper offered to the Advanced Personal Injury and Insurance Law Course onMay 1, 1997, May 1996 and February 1995; offered by the University of Houston Law School.

“Admissibility of Medical Evidence,” paper delivered in May 1994 to the Advanced Personal Injury Seminaroffered by the South Texas College of Law.

HONORS: Super Lawyers - Texas MonthlyMoot Court Champion - multiple competitionsPhi Delta Phi - Honor SocietyAmjur award in TortsChief Prosecutor of the Honor CourtNationally ranked debate teamPhi Sigma Alpha (honor society) - PresidentWho’s Who in America

ORGANIZATIONS:

Past Director and current member, Texas Trial Lawyers AssociationPast Director and current member, Dallas Trial Lawyers AssociationMember, American Trial Lawyers AssociationMember, American Bar AssociationMember, Dallas Bar Association

Evidence Chapter 12

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TABLE OF CONTENTS

I. SCOPE OF PAPER ...................................................................................................................................... 1

II. TEXAS RULES OF EVIDENCE .................................................................................................................... 1A. Texas Rule of Evidence 103: Rulings on Evidence. .................................................................................. 1B. Texas Rule of Evidence 201: Judicial Notice ........................................................................................... 1C. Texas Rule of Evidence 401: Relevant Evidence ...................................................................................... 1D. Texas Rule of Evidence 403: Exclusion of Relevant Evidence on Special Grounds ...................................... 2E. Texas Rule of Evidence 407: Subsequent Remedial Measures; Notification of Defect .................................. 2F. Texas Rule of Evidence 408: Compromise and Offers to Compromise ....................................................... 3G. Texas Rule of Evidence 609: Impeachment by Evidence of Conviction of Crime ........................................ 3H. Texas Rule of Evidence 614: Exclusion of Witnesses ............................................................................... 3I. Texas Rule of Evidence 702: Testimony by Experts. ............................................................................... 3

1. Daubert/ Robinson ......................................................................................................................... 42. Timeliness of Objections ................................................................................................................ 63. Epidemiological Issues ................................................................................................................... 64. Methodology: Statutory Requirements ............................................................................................. 65. Subjective Tests ............................................................................................................................ 76. Methodology: Statistical Sampling .................................................................................................. 77. Assumed Facts ............................................................................................................................. 78. Foundation Experts ........................................................................................................................ 79. Experts Relying Upon Others .......................................................................................................... 810. Police Officers; Opinions ............................................................................................................... 811. Use of Specialized Experts to Prove Damages ................................................................................... 8

a. Using an Economist ................................................................................................................ 8(1) Future Loss of Earning Capacity ....................................................................................... 8(2) Medical Expenses in the Future ........................................................................................ 9(3) Loss of Household Services ............................................................................................. 9(4) Loss of a Mother ............................................................................................................ 9(5) Loss of Consortium and Loss of Society and Companionship .............................................. 9(6) Other ............................................................................................................................. 9(7) Kinds of Economic Testimony ......................................................................................... 9(8) What an Economist is Entitled to Consider ....................................................................... 10

(a) Inflation ................................................................................................................ 10(b) Income Tax .......................................................................................................... 10(c) Collateral Source ................................................................................................... 11(d) Effects of Remarriage in a Death Case ..................................................................... 11(e) Other ................................................................................................................... 11

J. Texas Rule of Evidence 801: Hearsay; Definitions ................................................................................. 11K. Texas Rule of Evidence 803: Hearsay; Availability of Declarant Immaterial ............................................... 12

III. SUBSTANTIVE EVIDENCE CASES ........................................................................................................... 12

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TABLE OF AUTHORITIES

STATUTES (NOT INCLUDING TEXAS RULES OF EVIDENCE)

TEX. CIV. PRAC. & REM. CODE ANN. 154.073 ................................................................................................. 3

TEX. CIV. PRAC. & REM. CODE §18.091 ....................................................................................................... 11

CASES

Allison v. Fire Insurance Exchange, 98 S.W.3d 227 (Tex. App.-Austin 2002, n. pet. h) ...................................... 3

Avary v. Bank of America, N.A., 72 S.W.3d 779 (Tex. App.–Dallas 2002, pet. denied) ....................................... 3

Bair v. American Motors Corp., 473 F.2d 740 (3d Cir. 1973) ......................................................................... 11

Bocanegra v. Vicmar Services, Inc., 320 F.3d 581 (5th Cir. 2003) ..................................................................... 7

Bristol-Myers Co. v. Gonzales, 548 S.W.2d 416 (Tex. Civ. App. - Corpus Christi 1976, writ granted), rev'd onother grounds, 561 S.W.2d 801 (Tex. 1978) ........................................................................................... 8

Brookshire Bros. v. Smith, No. 01-02-00677-CV, 2004 WL 1064776 (Tex.App.–Houston [1st Dist.] 2004,n.p.h.) ................................................................................................................................................. 6

Buckner & Sons v. Allen, 289 S.W.2d 387 (Tex. Civ. App. - Austin 1956, no writ) .......................................... 10

Burns v. Baylor Health Care System, 125 S.W.3d 589 (Tex.App.–El Paso 2003, Rule 53.7(f) motion granted) ...... 5

Cano v. North Texas Nephrology Assocs., P.A., 99 S.W.3d 330 (Tex. App.–Forth Worth 2003, no pet.) ............... 2

Caterpillar Tractor Co. v. Gonzales, 599 S.W.2d 633 (Tex. Civ. App. - El Paso 1980, writ ref'd n.r.e.) .............. 11

Cigna v. Pybas, 127 S.W.3d 400 (Tex.App.–Dallas 2004, no pet.) .................................................................. 12

Coastal Transport Co. v. Crown Central Petroleum, 136 S.W.3d 227 (Tex. 2004) ............................................ 12

Columbia Medical Center v. Bush, 122 S.W.3rd 835 (Tex. App.–Fort Worth, 2003, pet.denied) ......................... 4

Columbia Medical Center of Las Colinas, Inc. v. Hogue, 132 S.W.3d 671 (Tex.App.-Dallas, 2004, rev.withdrawn) ...................................................................................................................................... 8, 9

Cooper Tire & Rubber Company v. Mendez, 155 S.W.3d 382 (Tex.App.–El Paso, 2004, pet. filed) ...................... 6

Costilla v. Crown Equipment Corp., 148 S.W.3d 736 (Tex.App.–Dallas 2004, no writ) ....................................... 2

Culver v. Slater Boat Co., 688 F.2d 280 (5th Cir. 1982) (en banc), cert. denied, 469 U.S. 819 (1984) ................ 10

Culver v. Slater Boat Co., 722 F.2d 114 (5th Cir. 1983) ................................................................................. 10

Ed Rachal Foundation v. D’Unger, 117 S.W.3d 348 (Tex. App.–Corpus Christi 2003, n.pet. h.) ......................... 1

E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995) ....................................... 4, 5, 6

Exxon Corp v. Makofski, 116 S.W.3d 176 (Tex.App.-Houston [14th Dist.] 2003, pet. filed) ................................. 3

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Fethkenher v. Kroger Co., 139 S.W.3d 24 (Tex. App.—Fort Worth, 2004, n.p.h) ............................................ 13

Ford Motor Company v. Ledesma, 2005 WL 1033916 (Tex.App.–Austin 2005) ................................................. 4

Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) .............................................................................. 1

Fraud-Tech, Inc. v. Choicepoint, Inc. , 102 S.W.3d 366 (Tex. App.–Fort Worth 2003, pet. denied) ...................... 8

Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998) ....................................................... 5, 6

Garza v. Berlanga, 598 S.W.2d 377 (Tex. Civ. App. - El Paso 1980, writ ref'd n.r.e.) .................................. 9, 11

Haddigan v. Harkins, 441 F.2d 844 (3d Cir. 1970) ......................................................................................... 9

Hagins v. E Z Mart, 128 S.W.3d 383 (Tex. App.—Texarkana 2004, n.p.h.) ...................................................... 2

Halliburton Co. v. Olivas, 517 S.W.2d 349 (Tex. Civ. App. - El Paso 1974, no writ) ....................................... 10

Har-pen Truck Lines, Inc. v. Mills, 378 F.2d 705 (5th Cir. 1967) ..................................................................... 9

Ho Wah Genting Kintron SDN BHD v. Leviton Manufacturing Co., 2005 WL 432936 (Tex.App.–San Antonio2005) ................................................................................................................................................ 11

In re K. M. B., 91 S.W.3d 18 (Tex. App.–Fort Worth 2002, no pet.) ................................................................ 3

In re Marriage of Rice, 96 S.W.3d 642 (Tex. App.–Texarkana 2003, no pet.) .................................................... 1

In re: R.O.C., 131 S.W.3d 129 (Tex. App.–San Antonio 2004, n.p.h.) .............................................................. 6

Johnson v. Penrod Drilling Co., 510 F.2d 234 (5th Cir. 1975) (en banc) ......................................................... 10

Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983) ....................................................................... 10

Kerr-McGee Corp. v. Helton, 133 S.W.3d 245 (Tex. 2004) ............................................................................. 6

KMB Kanal-Muller-Gruppe Deutschland GMBH & Co. KG v. Davis, 2005 WL 568056 (Tex.App.–Houston [1st

Dist.] 2005) ......................................................................................................................................... 8

Koko Motel, Inc. v. Mayo, 91 S.W.3d 41 (Tex. App.–Amarillo 2002, pet. denied) ........................................... 2

Kroger Texas L.P. v. Suberu, 113 S.W.3d 588 (Tex. App.—Dallas, 2003 n.p.h.) ................................................ 2

Lee v. Perez, 120 S.W.3d 463 (Tex.App–Houston [14th Dist.] 2003, no pet. h.) ................................................ 1

Loram Maintenance of Way, Inc. v. Ianni, 141 S.W.3d 722 (Tex.App.–El Paso 2004, n.p.h.) ........................ 5, 6

Longtin v. Country One Stop, Inc., 129 S.W.3d 632 (Tex.App.–Dallas 2003, rev. den.) ...................................... 1

Luensmann v. Zimmer-Zampese & Assocs., Inc., 103 S.W.3d 594 (Tex. App.–San Antonio 2003, no pet.) ............ 1

Main Bank and Trust v. York , 498 S.W.2d 953 (Tex. Civ. App. - San Antonio 1973, writ ref'd n.r.e.) ................. 9

Mieth v. Ranchquest, Inc. , 2005 WL 615594 (Tex.App.–Houston [1st Dist.] 2005) ............................................. 3

Missouri K.T. Ry. Co. v. McFerrin, 291 S.W.2d 931 (Tex. 1956) ................................................................... 10

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Missouri-Kansas-Texas Railroad Co. v. Wright, 311 S.W.2d 440 (Tex. Civ. App. - Fort Worth 1958, writdism'd) ................................................................................................................................................ 8

Missouri-Pacific Railroad Co. v. Navarro, 90 S.W.3d 747 (Tex. App.–San Antonio 2003, no pet.) ...................... 6

Manasco v. Ins. Co. of State of Pennsylvania, 89 S.W.3d 239 (Tex. App.–Texarkana, 2002, no pet.) .................. 6

Marvelli v. Alston, 100 S.W.3d 460 (Tex. App.–Fort Worth, 2003, no pet.) ...................................................... 7

Mauzey v. Sutliffe, 125 S.W.3rd 71 (Tex.App.–Austin, 2003, no pet.) ............................................................ 12

Neal ex rel Neal v. Dow Agrosciences, L.L.C., 74 S.W.3d 468 (Tex. App.–Dallas 2002, n.w.h.) ......................... 6

Norfolk & Western R.R. Co. v. Liepelt, 444 U.S. 490 (1980) ......................................................................... 11

Norstrud v. Trinity Universal Ins. Co., 97 S.W.3d 740 (Tex. App.–Fort Worth, no pet.) ..................................... 7

Oakwood Mobile Homes, Inc. v. Cabler, 73 S.W.3d 363 (Tex. App.–El Paso 2002, pet. denied) .......................... 1

Pilgrim’s Pride Corporation v. Smoak, 134 S.W.3d 880 (Tex. App.–Texarkana, 2004) ...................................... 8

Praytor v. Ford Motor Co., 97 S.W.3d 241 (Tex. App.–Houston [14th Dist.], 2002, no pet.) .............................. 6

Richardson v. Holmes, 525 S.W.2d 293 (Tex. Civ. App. - Beaumont 1975, writ ref'd n.r.e.) ............................. 11

Ridgecrest Retirement v. Urban, 135 S.W.3d 757 (Tex.App.-Houston [1st Dist.] 2004, pet. denied) ................... 12

Roth v. Law, 579 S.W.2d 949 (Tex. Civ. App. - Corpus Christi 1979, ref'd n.r.e.) ........................................... 11

Seale v. Winn Exploration Co., 732 S.W.2d 667 (Tex. App. - Corpus Christi 1987, writ denied) .......................... 9

Schmitt v. Jenkins Truck Lines, Inc., 170 N.W.2d 632 (Iowa 1969 .................................................................. 9

Schwartz v. Forest Pharmaceuticals, Inc., 127 S.W.3d 118 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) ............................................................................................................................................ 1, 2

Sherrod v. Berry, 827 F.2d 1195 (7th Cir. 1987), opin. withdrawn, 835 F.2d 1222 (1988) ................................... 9

Smith v. United States, 587 F.2d 1013 (3d Cir. 1978) .................................................................................... 11

State Farm Fire & Casualty Co. v. Rodriguez, 88 S.W.3d 313 (Tex. App.–San Antonio 2002, pet. denied) ...... 7

Steel Co. v. Recer, 508 S.W.2d 889 (Tex. Civ. App. -Fort Worth 1974, writ ref'd n.r.e.) .................................... 8

Texas A&M University v. Bishop, 105 S.W.3d 646 (Tex. App.–Houston [14th Dist.], reversed on other grounds,156 S.W. 3d 580 (Tex. 2005) ................................................................................................................ 2

Texas Mutual Insurance Company v. Lerma, 143 S.W.3d 172 (Tex.App.–San Antonio 2004, rev. denied) ............. 5

Taylor v. American Fabritech, Inc. v. Taylor, 132 S.W.3d 613 (Tex.App.—Houston [14thDist.] 2004, pet.denied) ................................................................................................................................................ 5

Ter-Vartanyan v. R & R Freight, 111 S.W.3d 779 (Tex. App.–Dallas 2003, pet. denied) .................................... 8

The Goodyear Tire & Rubber Co. v. Rios, (Tex.App.– San Antonio, 2004, n.p.h.) ............................................. 7

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Town of Flower Mound v. Teague, 111 S.W.3rd 742 (Tex. App.–Fort Worth 2003, n. p. h.) .............................. 3

Torrez v. Sanders, 2005 WL 471188 (Tex.App.–San Antonio 2005) .................................................................. 2

Trencor, Inc. v. Cornech Machine Co. a/k/a/ CMC Iran, 115 S.W.3d 145 (Tex.App.–Fort Worth 2003, rev.denied) .............................................................................................................................................. 12

Tucker’s Beverages, Inc. v. Fopay, 145 S.W.3d 765 (Tex.App.–Texarkana 2004, no writ) ................................ 12

Turner v. General Motors, 584 S.W.2d 844 (Tex. 1979) ................................................................................ 10 Tyson Foods v. Guzman, 116 S.W.3d 223 (Tex. App.—Tyler, 2003, n.p.h.) ...................................................... 3

Twin City Fire Ins. Co. v. Gibson, 488 S.W.2d 565 (Tex. Civ. App. - Amarillo 1972, writ ref'd n.r.e.) ............... 11

Urista v. Bed, Bath & Beyond, 132 S.W. 3d 517 (Tex. App.—Houston [1st Dist.] 2004, n.p.h.) ........................ 13

USAA v. Gordon, 103 S.W.3d 436 (Tex. App.–San Antonio 2002, no pet.) ....................................................... 7

U.S.A. Precision Machining Co. v. Marshall, 95 S.W.3d 40 (Tex. App.–Dallas 2002, pet denied) ........................ 3

U.S. Restaurant Properties v. Motel Properties, 104 S.W.3d 288 (Tex. App.–Beaumont 2003, pet. denied) ........... 3

Vasquez v. Hyundai Motor Co., 119 S.W.3d 848 (Tex. App.–San Antonio 2002, no pet.) .................................... 7

Volkswagon of America, Inc. v. Ramirez, 159 S.W.3d 897 (Tex. 2004) ..............................................................

Warrantech Corp. v. Computer Adapters Services, Inc., 134 S.W. 3d 516 (Tex. App.—Fort Worth 2004, n.p.h.) ................................................................................................................................................. 1

Weakley v. Fischbach & Moore, Inc. , 515 F.2d 1260 (5th Cir. 1975) .............................................................. 10

Weingarten Realty Advisors v. Harris County Appraisal District, 93 S.W.3d 280 (Tex. App.–Houston [14thDist.] 2002, no pet.) ............................................................................................................................. 6

Wharf Cat Inc. v. Cole, 567 S.W.2d 228 (Tex. Civ. App. - Corpus Christi 1978, writ ref'd n.r.e.) ...................... 10

Williams v. General Motors Corp., 501 S.W.2d 930 (Tex. Civ. App. - Houston [1st Dist.] 1973, writ ref'd n.r.e.) ................................................................................................................................................. 9

Wil-Roye Investment Co. II and Renewable Investments, Inc., v. Washington Mutual Bank, FA, 142 S.W.3d 393(Tex.App.–El Paso 2004, no writ) ........................................................................................................ 12

Young v. Neatherlin House Moving, 102 S.W.3d 415 (Tex. App.–Houston [14th Dist], no pet.) ............................ 1

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EVIDENCE

I. SCOPE OF PAPERThis paper attempts to summarize recent cases

which have some significance in the area of evidencelaw. I have tried to group the cases according to therelevant Rules of Evidence and by subject matter of thesubstantive law points.

II. TEXAS RULES OF EVIDENCEA. Texas Rule of Evidence 103: Rulings on

Evidence.Luensmann v. Zimmer-Zampese & Assocs., Inc., 103

S.W.3d 594 (Tex. App.–San Antonio 2003, no pet.)confirmed the trial court’s decision to exclude evidenceof a Texas Penal Code Section related to a publicnuisance. Because the proponents “made no offer ofproof”, nothing was preserved for appeal. From readingthe case, the substance of the excluded evidence isunclear. According to the opinion, the proponents “claimthe trial court erroneously denied introduction of thestatute itself and testimony about its presumption ofunreasonableness.”

Ed Rachal Foundation v. D’Unger, 117 S.W.3d 348(Tex. App.–Corpus Christi 2003, n. pet. h.) and Schwartzv. Forest Pharmaceuticals, Inc. 128 S.W.3d 118 (Tex.App.–Houston [1st Dist.] 2003, pet. denied) both discuss“running objections.” There is some authority that underRule 103, a “running objection” does preserve error,other opinions hold that such objections do not preserveerror. The issue is not decided in either of these cases,but both opinions contain language indicating that“running objections” may preserve error.

In Warrantech Corporation v. Computer AdaptersServices, Inc., 134 S.W.3d 516 (Tex.App.-Fort Worth2004, n.p.h.), the Court of Appeals held that a generalstatement of “objection” to testimony, followed by anoff-the-record bench conference did not preserve thecomplaint for review.

B. Texas Rule of Evidence 201: Judicial NoticeIn re Marriage of Rice, 96 S.W.3d 642 (Tex. App. -

Texarkana 2003, no pet.), took judicial notice that anexpert witness was “routinely” appointed by the court asan appraiser.

Lee v. Perez, 120 S.W.3d 463 (Tex.App–Houston[14th Dist.] 2003, no pet. h.) held that a trial court maytake judicial notice of the contents of the case file plusthe "usual and customary fees" when awarding attorneys'fees. Under the statute, the trial court had discretion toaward an amount for attorneys' fees which did notconform to the evidence, but it was error to award zerofor attorneys' fees.

In Longtin v. Country One Stop, Inc., 129 S.W. 3d632 (Tex.App.–Dallas 2003, rev. denied), a shareholder

brought a derivative action against a corporation anddirectors and obtained a temporary injunction and thetrial court granted a no-evidence summary judgment infavor of the corporation and directors. ShareholderLongtin, on appeal, claimed that the trial court erred infailing to take judicial notice of its own records andproceedings when Longtin requested, in her response tothe summary judgment motion, that the trial court takejudicial notice of the evidence offered at the temporaryinjunction hearings. Lontgin had made a general requestfor the trial court to take judicial notice of priorproceedings, which had not been transcribed. The DallasCourt of Appeals held that the trial court did not abuse itsdiscretion by not taking judicial notice of unidentified,discrete adjudicative facts that may have been present inthe temporary injunction proceeding. Id. at 635-636.

C. Texas Rule of Evidence 401: Relevant EvidenceOakwood Mobile Homes, Inc. v. Cabler, 73 S.W.3d

363 (Tex. App. - El Paso 2002, pet. denied) concernedtestimony from another dissatisfied owner of mobilehome. The case involved DTPA violations andallegations of fraud/breach of contract related to themanufacturer’s broken promises to fix the defects in amobile home. The Court of Appeals ruled the evidenceinadmissible because the other owner’s experience didnot demonstrate a habit or pattern. Nevertheless, theopinion affirmed the trial court’s judgment as admissionof the evidence was harmless error.

Young v. Neatherlin House Moving, 102 S.W.3rd415 (Tex. App.-Houston [14th Dist], no pet.), noted anexception to the Parol Evidence Rule. Testimonyconcerning oral statements are admissible (and relevant)when attempting to prove elements of fraud,misrepresentation or violations of the DTPA.

In the realm of products liability, the Texas SupremeCourt in Ford Motor Co. v. Ridgway, 135 S.W.3d 598(Tex. 2004), the Texas Supreme Court declined to decidewhether Section 3 of the Third Restatement of Tortsaccurately reflects Texas law, and stated that even ifSection 3 were the law in Texas, it would generally applyonly to new or almost new products. The Restatementprovides:

“It may be inferred that if the harm sustainedby the plaintiff was caused by a product defectexisting at the time of sale or distribution,without proof of a specific defect, when theincident that harmed the plaintiff: (a) was ofthe kind that ordinarily occurs as a result of aproduct defect; and (b) was not, in theparticular case, solely the result of causes otherthan the product defect existing at the time ofsale or distribution”

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The Court stated that Section 3 is limited by the draftersin a note stating that “the inference of defect may not bedrawn...from the mere fact of a product-related accident.Ford Motor Co. 135 S.W. 3d 598 at 601.

D. Texas Rule of Evidence 403: Exclusion ofRelevant Evidence on Special GroundsIn Torrez v. Sanders, 2005 WL 471188

(Tex.App.–San Antonio 2005), Torrez appealed asummary judgment in favor of Sanders arguing thatevidence of workers’ compensation benefits paid toTorrez which was the only evidence Torrez intended tointroduce regarding his damages. The Court found theexclusion was not in error because (1) in accordance withearlier caselaw, the trial court could properly havedetermined that explaining the differences between thedamage concepts of lost wages and lost earning capacityand the manner in which workers’ compensation benefitsare calculated would confuse the issues and divert thejury’s attention; and (2) a showing of the amount ofmedical expenses paid does not alone establish that theexpenses were reasonable and necessary.

Texas A&M University v. Bishop, 105 S.W.3d 646(Tex. App. - Houston [14th Dist.], reversed on othergrounds – see Index of Authorities) upheld theintroduction of various reports generated by the A&Mchief of police. Texas A&M sought to exclude its owninvestigation under Texas Rule of Evidence 403.Apparently, the chief generated at least three versions ofhis investigative report. The various reports, several ofwhich were apparently helpful to the plaintiff’s case,introduced over the defense objection that it’s policechief was “unqualified” to reach his conclusions. TheCourt of Appeals dryly noted that “obviously, at the timeTexas A&M University officials asked Chief Stege toproduce a report, they must have thought he wasqualified to do so.”

Schwartz v. Forest Pharmaceuticals, Inc., 128S.W.3d 118 (Tex. App. - Houston [1st Dist.] pet. denied,2003) discussed the difference between Rule 403objections and Rule 401 objections. In this case arisingfrom a car wreck, plaintiff attempted to excludephotographs showing that the automobile he was drivingsuffered little or no damage in the wreck. The trial courtallowed the photos in evidence, and the Court of Appealsaffirmed, holding that an objection under Rule 403 doesnot preserve “relevance” arguments.

Cano v. North Texas Nephrology Assocs., P.A., 99S.W.3d 330 (Tex. App. - Forth Worth 2003, no pet.)excluded testimony of a subsequent contract between adoctor and her medical group. The doctor proffered asubsequent contract in an attempt to shed light on analleged ambiguity on an alleged ambiguity in hercontract. The Court of Appeals affirmed the lower

court’s decision to exclude the testimony because it wasnot directly connected with the transaction in question.

In Hagins v. E-Z Mart Stores, Inc., 128 S.W.3d 383(Tex.App.-Texarkana 2004, no pet.) the Court of Appealsconsidered the following jury instruction in a caseinvolving an independent contractor’s control was error:“Did E-Z Mart Stores, Inc. control fall protection on thejob in question?” The Court opined that it is clear thatTexas law supports “narrowing the issue of actualcontrol” to control over the activity or condition whichcaused the injury, but the instruction in question mayhave been too narrow. Because the jury found E-Z Martnegligent, any error was harmless. Evidence of E-ZMart’s subsequent remedial measures was not strongenough to overwhelm the jury’s determination that E-ZMart did not retain control.

In Kroger Texas L.P. v. Suberu, 113 S.W.3d 588(Tex. App.—Dallas, 2003 n.p.h.), a shopper broughtaction against a grocery store for malicious prosecutionand intentional infliction of emotional distress. Krogerargued that the trial court had committed error byexcluding (1) the testimony of an assistant districtattorney, (2) car rental documents that refuted Suberu’sinnocence of the shoplifting charge the store broughtagainst her, and (3) evidence of Kroger’s net negativeworth. Kroger, 113 S.W. 3d 588 at 602. The courtaffirmed the trial court’s ruling, holding that (1) thedistrict attorney had no personal knowledge of the eventsforming the basis of the arrest, (2) the car rentaldocuments were merely cumulative of other testimony,and (3) the witness purporting to discuss Kroger’s networth had no personal knowledge of the situation.Kroger, 113 S.W. 3d 588 at 603.

Costilla v. Crown Equipment Corp., 148 S.W.3d736 (Tex.App.–Dallas 2004, no writ), concerned aninjured forklift operator who alleged the forklift wasdefective. The Dallas Appeals Court found the trial courtdid not err in admitting an OSHA regulation and aNational Institute for Occupational Safety and Healthalert, both of which recommended that operators ofstand-up type forklifts be trained to exit from the truckby stepping backward if a tipover occurs). The courtfound that because the jury heard conflicting testimonyabout what a forklift operator should do if a forklift tipsover and each party’s experts presented differing viewsabout the OSHA regulation’s recommendation, theevidence was highly relevant to issues to be decided bythe jury and not prejudicial to Costilla under TEX . R.EVID. 403.

E. Texas Rule of Evidence 407: SubsequentRemedial Measures; Notification of DefectKoko Motel, Inc. v. Mayo, 91 S.W.3d 41 (Tex. App.

- Amarillo 2002, pet. denied), affirmed a trial court’sdecision to allow evidence of subsequent remedial

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measures introduced to slow the right of control in apremises liability case. Plaintiff pleaded the case underboth negligence theories and premises liability theories.Even though the negligence theory was ultimatelynonsuited, plaintiff used it to introduce evidence showingthe defendant’s control of the premises via subsequentremedial measures.

In Tyson Foods, Inc. v. Guzman, 116 S.W.3d 233(Tex.App.-Tyler 2003, n.p.h.), held that the trial courthad properly admitted evidence of the Defendant’ssubsequent remedial measures. This was because theissue of control of the manner and means of contractors’work was controverted, and therefore, the evidence fitwithin an exception to Rule 407.

F. Texas Rule of Evidence 408: Compromise andOffers to CompromiseMieth v. Ranchquest, Inc. , 2005 WL 615594

(Tex.App.–Houston [1st Dist.] 2005), was a negligenceaction brought by property owner alleging damages foroil and gas well operations. The property owners arguedthe trial court erred in allowing the introduction of one ofthe Defendant’s unsolicited and unaccepted offer to buythe owners’ tract of land to prove the value of the landhad not diminished because that offer constituted aninadmissible offer of settlement. The Court found thatbecause the Defendant’s offer to purchase the propertyhad stated specifically that it was not a settlement offerand did not ask the property owners to compromise theirclaim to the property, it was not a settlement offer withinthe meaning of TEX. R. EVID. 408.

Allison v. Fire Insurance Exchange, 98 S.W.3d 227(Tex. App. - Austin 2002, no pet.) involved the insurancecompany’s bad-faith settlement practices arising frommold contamination. The carrier sought to introduceevidence of settlement offers it made during mediation,arguing that its offers should be admissible to show thatit attempted to settle in good faith. The Court of Appealsaffirmed the trial court’s decision to exclude the evidencebecause the offers were extended during mediation andwere inadmissible against a participant under Texas CivilPractice & Remedies Code Ann. 154.073 and Rule 408.

Avary v. Bank of America, N.A., 72 S.W.3d 779(Tex. App. - Dallas 2002, pet. denied) arose when an heirsued a representative of the estate (the bank) forbreaching fiduciary duties in connection with thesettlement of a death claim. The plaintiff claimed thatthe bank breached its fiduciary duty by rejecting an offerof settlement and ultimately settling the case for a lowersum. Obviously, part of the proof of the alleged breachof fiduciary duty involved conduct at the mediation, andthe Court of Appeals ruled that Rule 408 did not preventadmission of settlement negotiation in this context.

G. Texas Rule of Evidence 609: Impeachment byEvidence of Conviction of CrimeU.S.A. Precision Machining Co. v. Marshall, 95

S.W.3d 40 (Tex. App. - Dallas 2002, pet. denied) was abreach of contract suit between a machinist and hisformer employer. U.S.A. Precision wished to introduceevidence of the machinist’s prior murder conviction toimpeach his “credibility for truthfulness” and to clarifythe false impression that he had been continuouslyemployed and living with his parents during a period oftime when he was actually incarcerated. The facts of themurder conviction are somewhat complicated: Marshallpleaded guilty to murder in 1983 and was sentenced tolife in prison. He won a new trial in 1984 and the caseagainst him was dismissed in 1985. The Court ofAppeals held that the trial court properly excludedevidence concerning the matter because there was nofinal conviction. The Court of Appeals also held theevidence inadmissible to impeach Marshall with regardto testimony about his living arrangements.

H. Texas Rule of Evidence 614: Exclusion ofWitnessesIn re K. M. B. , 91 S.W.3d 18 (Tex. App. - Fort

Worth 2002, no pet.) concerned testimony from a CPScase worker who was present in the courtroom after “TheRule” was invoked. Ordinarily, such a witness is subjectto exclusion under Texas Rule of Evidence 612. TheCourt of Appeals affirmed the trial court=s decision toallow the case worker to testify, even though she hadnever been officially designated as a representative of theState. Reference to her during jury selection and herpresence throughout the trial was tantamount to such adesignation.

Town of Flower Mound v. Teague, 111 S.W.3rd 742(Tex. App.- Fort Worth 2003, pet. denied), affirmed atrial court’s decision to exclude an expert witness under“The Rule.” While experts are generally exempt fromthe operation of Rule 612, the Court of Appeals stressedthe need for party seeking to allow the witness’s presenceto demonstrate the need for the witness to be in theCourtroom.

I. Texas Rule of Evidence 702: Testimony byExperts.U.S. Restaurant Properties v. Motel Properties, 104

S.W.3d 288 (Tex. App. - Beaumont 2003, pet. denied),excluded testimony from an expert concerning matterswhich were within the jury’s collective experience. Inthis case, the proponent of the evidence sought to useexpert testimony to establish the proper payments undera promissory note. The trial court excluded thetestimony because the subject matter of the testimony didnot require expertise beyond the jury’s knowledge.

The Houston Court of Appeals found in Exxon Corpv. Makofski, 116 S.W.3d 176 (Tex.App.-Houston [14 th

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Dist.] 2003, pet. filed) that it need not consider a pre-trialRobinson hearing in its review of the reliability of theexpert witnesses because (1) the Robinson hearing wasnot included in the record and (2) the Robinson hearingwas not relevant to Exxon’s argument. Exxonchallenged the opinions of medical experts testifying forMakofski on causation regarding benzene contaminationof the water supply of a residential area, arguing theypresented no scientific basis for their conclusions. ARobinson hearing to determine whether scientificevidence offered was reliable and thus admissible underRule 702 had been held before trial, but the hearing wasnot included in the appellate record. See E.I. du Pont deNemours & Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex.1995).

The Court stated that it is generally true that unlessan appellant files a complete reporter’s record (or alimited appeal), the court presumes the omitted portionsare relevant and support the jury’s verdict. But acomplete record “does not include matters from otherproceedings.” Exxon, 116 S.W.3d 176 at 181.Reinforcing this statement was the fact that the trialrecord made it clear that no evidence was presented at thepretrial Robinson hearing. Exxon, 116 S.W.3d 176. Also,since Exxon was not complaining about the pre-trialdecision made on the admissibility of the experttestimony, but about the legal sufficiency of thattestimony, the Court found that the record it had toreview was sufficiently complete. Exxon, 116 S.W.3d176 at 182.

In Columbia Medical Center v. Bush, 122 S.W.3d835 (Tex. App.—Fort Worth, 2003, pet.denied), theguardian of a patient diagnosed with ventriculartachycardia who suffered brain damage after beingtreated with Verapamil at an emergency room broughtmalpractice action against Columbia Medical Center.The court found that the scientific principles provided bythe plaintiff’s expert witness established for the jury atraceable chain of causation from the condition of thePlaintiff’s brain damage back to the event which causedit - the administration of Verapamil. The court held thatsuch scientific evidence is legally sufficient to supportthe jury’s finding that defendant’s negligenceproximately caused plaintiff’s injury.

There have been a number of Daubert/Robinsoncases which have emerged recently. Here are some ofthe highlights that I was able to find:

1. Daubert/ Robinsona. Daubert/ Robinson (General)

In Ford Motor Company v. Ledesma, 2005 WL1033916 (Tex.App.–Austin 2005), Ford appealed a juryverdict in favor of Ledesma, who had brought suitagainst Ford claiming his truck’s rear axle dislodged andthe driveshaft disengaged while he was driving, causinghim to lose control and hit two parked cars. Ford argued

that (1) Ledesma’s two experts did not provide sufficientevidence to prove Ford’s liability and (2) the trial courterroneously excluded some of Ford’s expert’s testimony.The Austin appellate court found that Ledesma’s twoexperts were properly allowed to testify as to whether ornot a manufacturing defect was present. Ford’s attack onthe first expert’s theory of why certain nuts were nottightened did not sufficiently undermine the expert’sobservation that nuts on the u-bolt were insufficientlytightened and allowed the u-bolt to fail. Id. at 6. Ford’sattack on the second expert regarding claiming histestimony was based on grainy photos and that he failedto personally examine the impacted vehicles went to thecredibility and not the reliability of the second expert’stheories, and those theories were subject to cross-examination. Id. at 8. Thus, the trial court did not abuseits discretion in admitting this testimony. Finally, theCourt found that Ford’s expert’s testimony on accidentreconstruction was properly excluded because the expertlacked training in accident reconstruction despite hisengineering degrees and experience. Id. at 9.

In Volkswagon of America, Inc. v. Ramirez, 159S.W.3d 897 (Tex. 2004), the Texas Supreme Courtaddressed the need for a qualified expert’s explanation toclose the analytical gap between the data relied on andthe opinion offered. Ramirez (as a next friend) broughta negligence action against Volkswagon alleging that adefect in the Passat that Haley Sperling had been drivinghad caused Sperling to lose control of the car. Ramirezproffered the testimony of accident reconstruction expertRonald Walker to prove that a bearing defect in the leftrear wheel assembly of the vehicle driven by the victimcaused the accident. Volkswagon contested thatWalker’s testimony was unreliable because he did notpresent any scientific support for his opinion regardinghow the separated wheel had remained in the rear wheelwell during the accident.

The Texas Supreme Court held that even though theRobinson factors for measuring reliability of scientificevidence cannot be used with certain kinds of experttestimony, there still must be some basis for the opinionoffered to show its reliability. Walker’s explanation forthe retention of the wheel in the rear wheel well duringthe accident was “the laws of physics.” Id. at 905.Walker did not conduct or cite any tests to support histheory on the accident and there were no other studies,publications or peer review to support his position. TheCourt found Walker’s explanation – “the laws ofphysics”– did not close the analytical gap by explaininghow the Passat’s wheel could behave as he described.

Also at issue in Volkswagon was the testimony ofDr. Edward Cox. Volkswagen asserted that Cox was notoffered to opine on causation and his brief opinion that adefect had caused the accident constituted no evidence tosupport the verdict. Cox had testified that because therewas grass in the grease in the wheel hub, the left rear

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wheel assembly must have come off before the Passatentered the median and therefore caused the accident. ButCox did not attempt to explain how the left wheelremained "tucked" in the left rear wheel well throughoutthe accident. The Court found that Cox's testimony wasan unsupported conclusion and cited no testimony, tests,skid marks, or other physical evidence to support thisopinion. This failure to explain how the "tucked" wheelstayed in the wheel well was “near fatal” to Ramirez’sproffered opinions on causation.

Texas Mutual Insurance Company v. Lerma, 143S.W. 3d 172 (Tex.App.–San Antonio 2004, rev. denied)concerned an expert’s inability to exclude other possiblecauses of a worker’s death. The deceased worker’s wifebrought a negligence action alleging her husband’s deathwas causally related to the puncturing of her husband’sarm with a barbed wire at work two months before hisdeath. Texas Mutual asserted a “no evidence” challengeagainst Lerma’s causation expert, Dr. Mulder. The SanAntonio Court of Appeals agreed with Texas Mutual,stating that Dr. Mulder could not exclude other plausiblecauses of the tetanus infection with reasonable certaintyand that Dr. Mulder's reasoning that Lerma's work-related wound caused his tetanus versus diabetes ordental problems or any other source was just an inferenceof causation amounting to no more than conjecture orspeculation. Id. at 177. Thus, the court found that Dr.Mulder’s testimony presented no evidence as to the causeof Lerma’s death.

Burns v. Baylor Health Care System, 125 S.W.3d589 (Tex.App.–El Paso 2003, motion granted) addressedthe applicable type of specialized knowledge an expertwitness must possess. A patron of a parking garagebrought a premises liability action against a garageowner, seeking damages for an injury she sustained froma fall from the curb in front of the garage elevator. Thetrial court had struck the testimony of the patron’s expertwitness, Mr. Madeley, and rendered summary judgmentin favor of the garage owner. The El Paso Court ofAppeals found that the trial court had erred in striking theexpert witness’ testimony. The court found that Mr.Madeley’s expert qualifications and specializedknowledge in the field of safety engineering wererelevant to Burns’ claim despite the fact that Mr.Madeley did not have specialized knowledge related tobuilding construction and design. The court also foundthat Mr. Madeley’s opinions were beyond the commonknowledge of the trier of fact and were based on theapplication of his knowledge and training to theunderlying facts in the case, rather than on scientificmethods. There was no basis for the trial court to havestricken Mr. Madeley’s testimony.

Taylor v. American Fabritech, Inc., 132 S.W.3d 613(Tex. App.—Houston [14th Dist.] 2004, pet. denied)defendant Fabritech challenged the reliability of Taylor’sexperts’ testimony. The Houston Court of Appeals stated

that although the Texas Supreme Court in E.I. du Pont deNemours & Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex.1995) delineated the standards for reliability of scientificexpert testimony, the Texas Supreme Court in Gammillv. Jack Williams Chevrolet Inc., 972 S.W.2d 713 (Tex.1998) found that Robinson factors will not always berelevant, especially when the expert testimony is basednot on science but on the expert’s experience andknowledge in his or her field. Taylor, 132 S.W. 3d at619. If an expert’s testimony is based on personalexperience and knowledge, then the court must considerwhether there is an “analytical gap” between the experts’opinions and the bases on which they were founded.Taylor, 132 S.W. 3d. 613.

The Court of Appeals stated that the trial court didnot abuse its discretion when it admitted the testimoniesof Stephen Estrin, a builder who testified regardingconstruction safety issues and OSHA requirements; Dr.Thomas Mayor, an economist who testified regardingTaylor’s lost earning capacity and costs of care; Dr.Terry Winkler, an M.D. who testified about Taylor’s“Life Care Plan;” and Dr. William Havins, a psychologistwho testified about Taylor’s nervous system injuries.Estrin’s, Mayor’s, Winkler’s and Havins’s testimonieswere all admissible because they were based on their ownexperience and knowledge in each of their respectivefields. The court found that the Robinson factors werenot germane to the testimony proffered by these expertwitnesses.

In Loram Maintenance of Way, Inc. v. Ianni, 141S.W.3d 722 (Tex.App.-El Paso 2004, n.p.h.), Loramasserted that Ianni's expert witness psychiatrist Dr.Arthur Ramirez was not qualified to testify as an experton amphetamine abuse because only .04 percent of hispractice concerned that specialty and because he hadnever been retained as an expert nor published in thatfield. The court concluded the trial court did not abuseits discretion in determining that Ramirez was qualifiedto testify as an expert on methamphetamine abuse.Loram Maintenance of Way, Inc. , 141 S.W.3d 722 at730.

Loram also challenged the reliability of Ramirez’sopinions. The Court found that Ramirez relied on corepsychiatric knowledge and that his theory or technique inanalyzing available data involved core clinical practice inpsychiatry. The court also found that Ramirez wasfollowing common psychiatric practice in using collateraldata (information from relatives and friends) to evaluatea patient. Loram Maintenance of Way, Inc., 141 S.W.3d722 at 731.

Ramirez himself stated that he believed histechnique in the diagnosis of amphetamine abuse wasfairly standard, that the psychiatric community hadgenerally accepted his underlying theory or technique asvalid, and that a majority of psychiatrists would haveformed the same opinion in reviewing the same kind of

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information he had in that case. The El Paso Court ofAppeals found that there was sufficient evidencesupporting the trial court’s decision that Ramirez’stestimony was reliable under Rule 702 and that theRobinson factors were met. Loram Maintenance of Way,Inc., 141 S.W.3d at 732. See E.I. du Pont de Nemours &Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995).

The El Paso Court of Appeals in Cooper Tire &Rubber Company v. Mendez, 155 S.W.3d 382(Tex.App.–El Paso, 2004, pet. filed), a product liabilityaction against a tire manufacturer, addressed complaintsby the defendant regarding the qualifications of theMendez's expert witnesses and the reliability of thetestimony they gave. The court used the six non-exclusive factors laid out in E.I. du Pont de Nemours &Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995) todetermine whether the testimony given by these expertswas reliable and thus admissible under Texas Rule ofEvidence 702. The court also stated that the Robinsonfactors do not always apply to experts who testify on thebasis of specialized knowledge, citing Gammill v. JackWilliams Chevrolet, Inc. , 972 S.W.2d 713 (Tex. 1998).The court found that each of the Mendez's witnesses wasqualified to be an expert on the specific issues in the casebased on their knowledge, experience, and training. Thecourt also found that their respective opinions werereliable pursuant to Rule 702, as each of them providedthorough information regarding their methodology andprocedures in investigating the causes of the tire failure.

2. Timeliness of ObjectionsIn Kerr-McGee Corp. v. Helton, 133 S.W.3d 245

(Tex. 2004), a challenge was made after the trial cross-examination of an expert. The trial court overruled thechallenge and on appeal, the parties argued that thechallenge came too late. The Texas Supreme Courtdisagreed, holding the objection timely because it cameimmediately after cross-examination and explained thebasis for reason for the objection. The offering party hada chance to respond to the objection at that time. Thus,the objection preserved the complaint; the Court ruledthat the testimony should have been excluded because itwas not reliable sue to the fact the expert did not explainhow certain factors affected his calculations.

Similarly, in Brookshire Bros. v. Smith, No. 01-02-00677-CV, 2004 WL 1064776 (Tex.App.-Houston [1stDist.] 2004, n. p. h.), Smith contended that Brookshirehad not preserved error in the trial court for its complaintthat the scientific evidence offered by plaintiff Smith wasunreliable. The Houston Court of Appeals found thatsince Brookshire had objected to the scientific reliabilityof the expert testimony both before the trial began andduring trial (as the witness was testifying), Brookshirehad complied with timeliness requirements and there wasno trial by ambush or appeal by ambush.

3. Epidemiological IssuesNeal ex rel Neal v. Dow Agrosciences, L.L.C. , 74

S.W.3d 468 (Tex. App. - Dallas 2002, n.w.h.) affirmeda no-evidence summary judgment in favor of a pesticidemanufacturer. The Court of Appeals concluded thatthere was no reliable epidemiological evidence linkingthe pesticide to the development of a brain tumor. Theplaintiffs’ expert cited to four studies which purported toestablish a link. At least two of the studies relied uponfound there to be “inconclusive” evidence of the linkbetween pesticide exposure and brain tumors. None ofthe studies showed a statistically significant associationas required by Robinson and Havner.

Missouri-Pacific Railroad Co. v. Navarro, 90S.W.3d 747 (Tex. App. - San Antonio 2003, no pet.)excluded testimony of the link between diesel exhaustand multiple myeloma (even though this was an FELAcase). Difficulties in the method of projecting Plaintiff’sexposure and a lack of acceptable medical data resultedin the Court of Appeal’s reversal. Similarly, Manascov. Insurance Co. of the State of Pennsylvania, 89 S.W.3d239 (Tex. App. - Texarkana 2002, no pet.) applied aDaubert/Robinson analysis to exclude testimony of a linkbetween head trauma and brain tumors.

Praytor v. Ford Motor Co., 97 S.W.3d 241 (Tex.App. - Houston [14th Dist.], 2002, no pet.) affirmed asummary judgment granted in favor of Ford MotorCompany. In this case, expert testimony purporting tolink sinusitis and asthma to chemicals released during thedeployment of an air bag was properly excluded.

The San Antonio Court of Appeals in In re: R.O.C. ,131 S.W.3d 129 (Tex. App.—San Antonio 2004, n.p.h.)affirmed a lower court ruling that workers who allegedthey contracted asbestosis as a result of their employmentat an electric station and nuclear power plant failed tomeet the burden of showing the materials they wereexposed to were capable of causing injury from productssupplied by the defendants. The court upheld theexclusion of expert testimony by the trial court and statedthat the analysis regarding the reliability of scientificexpert testimony does apply to asbestos torts. See E.I. duPont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d549 (Tex. 1995).

4. Methodology: Statutory RequirementsWeingarten Realty Advisors v. Harris County

Appraisal District, 93 S.W.3d 280 (Tex. App. - Houston[14th Dist.] 2002, no pet.) affirmed the trial court’sexclusion of a real estate appraisal in a propertyevaluation dispute. Interestingly, the Court of Appealsapplied the Daubert/Robinson factors, even though thiswas a bench trial. The gatekeeper and the finder of factwere the same. The trial court did not state its basis forexcluding the expert, but the Court of Appeals found thatthe underlying data did not support the expert’sconclusions, and use this as the reason for excluding the

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evidence. With regard to the methodology employed, theCourt of Appeals indicated that it would have been errorto exclude the testimony because the appraiser followedthe statutory requirements (methodology) for reachinghis opinion.

5. Subjective TestsThe Goodyear Tire & Rubber Co. v. Rios, 143

S.W.3d 107 (Tex.App. -San Antonio, 2004, pet. filed),concerned the testimony of two experts for Rios thatestablished the existence of a manufacturing defect in aGoodyear tire. The first expert based his opinion ondemonstrable facts that he collected through touch andvision, coming to the conclusion that the tire treadseparated due to a manufacturing defect. Id. Thistestimony was found to be unreliable because there wasno evidence that other experts in the industry use thistouch/vision method to differentiate a defect from normaluse and abuse over time. In addition, the expert did notcite to any articles or publications that supported themethod the expert used. The Court also held that thesecond witness was not qualified as an expert because,although his background qualified him to discussadhesion failures in a general sense, he was not qualifiedto discuss whether this tire failed because at the time ofmanufacture an adhesion defect existed.

6. Methodology: Statistical SamplingVasquez v. Hyundai Motor Co., 119 S.W.3d 848

(Tex. App. - San Antonio 2002, no pet.) involvedallegations that an air bag system was defective becauseit deployed with too much force. In this suit arising fromthe death of a young girl, the plaintiff sought to introduceevidence based upon an expert review of child air bagfatality data collected by the National HighwayTransportation Safety Administration. The Court ofAppeals affirmed the trial court’s decision to exclude thetestimony, holding that the statistical sample was notvalid.

7. Assumed FactsIn Marvelli v. Alston, 100 S.W.3d 460 (Tex. App. -

Fort Worth, 2003, pet. denied), a defendant surgeonchallenged admission of the patient’s expert testimony.Contrary to the defendant’s theory of the case, theplaintiff’s expert assumed that numerous eye surgerieshad been performed through the same incision. Thedefendant moved to exclude the testimony, relying upona line of cases holding that expert testimony cannot relyupon assumptions which have no support in the evidence.In this case, both the trial court and the Court of Appealsfound there was, in fact, evidence which supported theexpert’s opinions in the case, even though thedefendant’s experts disagreed with those assumptions.

In Bocanegra v. Vicmar Services, Inc., 320 F.3d 581(5th Cir. 2003), the trial court excluded two expert reports

that addressed both the effect marijuana use and thecause of the accident. The trial judge opined the reportsdid not pass the Daubert test, did not prove causalconnection between marijuana and the incident, and didnot prove the driver was impaired because quantity andquality of marijuana was unknown. The Fifth Circuitreversed, holding that the trial court erred in excludingthe report because the driver admitted he had ingestedmarijuana within a twelve hour period prior to theaccident, the expert showed published and acceptedstudies that have demonstrated that marijuana use impairscognitive functions for at least twelve hours, and due tothe expert’s knowledge and training in toxicology, histestimony would have been helpful to a fact finder.Bocanegra, 320 F.3d 581 at 587. Concerning the qualityor quantity of marijuana the driver used, the Court foundthat, while there are certain variables that will always bepresent (such as exact dosage), individuals smokemarijuana to get high, and a person who takes “five or sixhits,” as the driver did here, will be impaired.Bocanegra, 320 F.3d 581 at 589. The only question goesto the degree of impairment, which goes to the weightgiven to the testimony, not its admissibility. Bocanegra,320 F.3d 581. Thus, the Court of Appeals found the trialcourt’s exclusion to be an abuse of discretion.Bocanegra, 320 F.3d 581 at 590.

8. Foundation ExpertsIn the never ending battle between homeowners and

their insurance carriers, several opinions are worthnoting.

USAA v. Gordon, 103 S.W.3d 436 (Tex. App. - SanAntonio 2002, no pet.), allowed testimony from thehomeowner’s expert because he based his opinions uponexamination of similar foundations and found support ina published treatise relied on in the engineeringcommunity. As an interesting note, the court held it error(albeit harmless error) to admit evidence of a reportreviewed by an expert but not relied upon him inreaching his opinions under TEX. R. OF EVID. 705.

Norstrud v. Trinity Universal Ins. Co., 97 S.W.3d740 (Tex. App. - Fort Worth 2003, no pet.), affirmed atrial court’s decision to allow testimony from an expertwho had recently patented a new “imaging technique” tohelp determine the water concentration of an area ofground. The Court of Appeals explained that this newtechnique was only part of the expert=s foundations forhis opinions, and that the other bases were reliable andsupported in the evidence.

State Farm Fire & Casualty Co. v. Rodriguez, 88S.W.3d 313 (Tex. App. - San Antonio 2002, pet. denied)affirmed a trial court’s decision to allow testimony thata plumbing leak caused 100% of the damage to thefoundation. In this case, the expert’s opinion was basedon the same data as his opponent’s opinion (they

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obviously arrived at different conclusions) and weregrounded in scientific method and procedure.

9. Experts Relying Upon OthersFraud-Tech, Inc. v. Choicepoint, Inc., 102 S.W.3d

366 (Tex. App. - Fort Worth 2003, pet. denied),illustrates the dangers of one expert relying upon workperformed by another expert. The lead expert in this lostprofits case relied upon a market study and projectionundertaken by another expert. When the underlyingstudy and projection were rejected, the lead expert’stestimony was also excluded.

10. Police Officers; OpinionsIn Ter-Vartanyan v. R&R Freight, 111 S.W.3d 779

(Tex.App.-Dallas 2003, n.p.h.), a police officer witheight years with the police department, initial andadditional training in accident investigations, and whohad investigated hundreds of accidents was found to bequalified as an expert. The police officer offered hisopinion as to the cause of the accident. Defendantcomplained the officer was not qualified in driverinattention, what the officer found to be the cause of theaccident. The Court of Appeals the officer needed to bequalified in investigation and determination of the causeof the accident, not on the result of the investigation.

In Pilgrim’s Pride Corporation v. Smoak, 134S.W.3d 880, (Tex. App.–Texarkana, 2004), theTexarkana Court of Appeals found an investigatingofficer's conclusion that the defendant’s negligencecaused an automobile accident to be no evidence.However, the officer's testimony concerning his ownobservations during the investigation were admissible.In this case Smoak brought personal injury action againstPilgrims Pride and its employee truck driver whocollided with Smoak's vehicle while Smoak was makinga right turn and the truck driver a left turn. At trial theinvestigating officer gave his opinion as to how theaccident took place and who was at fault. Thecorporation failed to preserve error regarding the officer'squalifications. The corporation contended that,nonetheless, because the officer was not qualified as anexpert to give his opinion on whose negligence causedthe accident, his conclusion was no evidence to supporta verdict and thus, no objection was required. Pilgrim’sPride Corporation, 134 S.W.3d 880 at 891.

The court stated that no definite guidelines exit fordetermining whether a particular witness possesses theknowledge, skill, or expertise to qualify as an expert.Pilgrim’s Pride Corporation, 134 S.W.3d 880 at 892.The court found that the officer was not an accidentreconstruction expert and therefore was not qualified tooffer his opinion on whose negligence caused theaccident. However, the court did find that the officer’sopinion on causation was not based on any scientific,technical, or other specialized knowledge not generally

posessed by a layperson. Pilgrim’s Pride Corporation,134 S.W.3d 880 at 893. That was based on his owninvestigation and observations. Therefore, his opinion oncausation was admissible.

11. Use of Specialized Experts to Prove Damagesa. Using an Economist(1) Future Loss of Earning Capacity

Probably all jurisdictions have recognized eitherexplicitly or implicitly the admissibility of economists'testimony on calculating items of damages such as lossof wages and loss of wage earning capacity in the future.In Texas, for example, the courts have recognized theadmissibility of such testimony noting that it does notinvade the province of the jury. See Bristol-Myers Co. v.Gonzales, 548 S.W.2d 416 (Tex. Civ. App. - CorpusChristi 1976, writ granted), rev'd on other grounds, 561S.W.2d 801 (Tex. 1978); Texas Steel Co. v. Recer, 508S.W.2d 889 (Tex. Civ. App. -Fort Worth 1974, writ ref'dn.r.e.); Columbia Medical Center of Las Colinas, Inc. v.Hogue, 132 S.W.3d 671 (Tex.App.-Dallas, 2004, rev.withdrawn).

In projecting future wages and wage increases aneconomist must look to the past and be prepared to testifyas to the historical impact of inflation on wages. Indiscussing the easement of inflation an economist mayspeak in terms of the loss of purchase power of the dollaror the decrease in the value of the dollar due to inflation.In order to reduce to present value an economist mustlikewise be prepared to testify as to the historical patternsof interest rates and yields on government bonds andother "safe" investments.

An economist must be prepared to discuss the needsof a plaintiff for some degree of liquidity to replace theincome stream, the lack of sophistication of the averageplaintiff, the cost of investment counseling and expensesto the average unsophisticated plaintiff-investor, whatrisk-free investments are available, and the return onsuch investments, vicissitudes of investments, and thelike. Projecting future wage increases due to inflationdoes not take into consideration merit increases, upwardmobility, achieving supervisory/management status,change of occupations, etc. See, e.g., Missouri-Kansas-Texas Railroad Co. v. Wright, 311 S.W.2d 440(Tex. Civ. App. - Fort Worth 1958, writ dism'd).

In the most recent case in this area, a formeremployee brought action against a German company forbreach of contract and negligent misrepresentation inKMB Kanal-Muller-Gruppe Deutschland GMBH & Co.KG v. Davis, 2005 WL 568056 (Tex.App.–Houston [1st

Dist.] 2005). KMB appealed a $1 million verdict forDavis arguing the trial court erred in not granting theirmotion to exclude the testimony of Dr. Keith Fairchild,an economist who testified at trial as to the present andfuture value of Davis’ employment contract and whopresented a damages model to the jury. The Court found,

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however, that Fairchild was qualified to offer experttestimony, that his testimony regarding the economiclosses Davis sustained was clearly relevant to the case,and Fairchild’s testimony that his “top-down approachvaluation is considered the only valid approach tovaluation in academia, and is also generally accepted inthe financial community as a valid method” was notrebutted by KMG and KMG offered no other method ofvaluation. Id. at 6. Given that “opinions or estimates oflost profits are competent evidence...if they are based onobjective facts, figures, or data from which the amount oflost profits can be ascertained,” Fairchild’s testimonywas properly introduced into evidence. Id.

(2) Medical Expenses in the FutureCalculation of the present value of future medical

expenses has been held to be properly within theprovince of economist expert testimony. Williams v.General Motors Corp., 501 S.W.2d 930 (Tex. Civ. App.- Houston [1st Dist.] 1973, writ ref'd n.r.e.). Byreference to existing statistical documents availablethrough the federal government, an economist can testifyas to the prospective future increases in the cost ofmedical care. This would ordinarily be broken downbetween medical services and medical goods andequipment, with the latter showing a much slower growthrate because it does not contain the same "labor"component.

(3) Loss of Household ServicesThe Fifth Circuit, in a Georgia case, approved the

testimony of an economist which placed a monetaryvalue on a housewife's services in Har-pen Truck Lines,Inc. v. Mills, 378 F.2d 705 (5th Cir. 1967). It should alsobe noted that in that case the witness used the "utilityproducing power" measurement rather than the sumwhich the decedent might have earned, noting that thedecedent's utility producing power was much greater thanher money income producing power. That is, if you hirea substitute for the housewife in the marketplace youwould have to pay a greater amount of money than thatwhich the decedent could have earned. See alsoColumbia Medical Center of Las Colinas, Inc. v. Hogue,132 S.W.3d 671 (Tex.App.-Dallas, 2004, rev.withdrawn).

(4) Loss of a MotherThe value of the training which a parent would have

given to a minor, using the cost of substitute services,i.e., that of a teacher, was approved in Main Bank andTrust v. York , 498 S.W.2d 953 (Tex. Civ. App. - SanAntonio 1973, writ ref'd n.r.e.). See also Garza v.Berlanga, 598 S.W.2d 377 (Tex. Civ. App. - El Paso1980, writ ref'd n.r.e.), in which the economist valued"moral guidance" given by the mother to her child ascomparable to the salary of a school teacher.

(5) Loss of Consortium and Loss of Society andCompanionshipA Corpus Christi opinion disallowed testimony of

an economist in valuing these elements of damage inSeale v. Winn Exploration Co., 732 S.W.2d 667 (Tex.App. - Corpus Christi 1987, writ denied). An economisthad adopted the per hour charge of a psychiatrist in hiscalculations and the court ruled it irrelevant, notingfurther that calculation of the damages are within therange of expertise of jurors. However, analogizing to thesubstitute services in the loss of parental guidance andhousehold services, it is believed that the benefits ofthese emotional elements of marriage and companionshipand society include such things as security, feelings of"well-being", etc., and that such benefits are provided byclergy, psychiatrists, social workers, and vocational andeducation counselors, all of whose services can bevalued. See Everett G. Dillman, Economic Insights, July,1983. [Dillman was the expert in the Seale case].

(6) OtherAs discussed above, the economist's testimony is

helpful in evaluating and placing a value on such thingsas household services of an injured or deceased spouse,loss of parental guidance and training, and perhaps othertangibles such as loss of consortium. See Sherrod v.Berry, 827 F.2d 1195 (7th Cir. 1987), opin. withdrawn,835 F.2d 1222 (1988), where an economist was permittedto value the enjoyment of life. However, an economist'stestimony was considered irrelevant to value loss ofsociety and companionship. Seale v. Winn ExplorationCo., 732 S.W.2d 667 (Tex. App. - Corpus Christi 1987,writ denied).

(7) Kinds of Economic TestimonyEconomist - obviously, a professor of economics or

one schooled in economics and actively involved ineconomic appraisal work, labor economics or economicsstatistics. See Recer, supra.

Home Economist - the Iowa Supreme Courtapproved the use of a home economist to testify andevaluate the damages in the death of a housewife.Schmitt v. Jenkins Truck Lines, Inc., 170 N.W.2d 632(Iowa 1969).

Employment Agency Worker - the Third FederalCircuit approved the use of an employment agencyowner whose agency specialized in placement ofdomestics (dishwashers, cooks, etc.) to testify as to thehourly rates of pay for various positions. Haddigan v.Harkins, 441 F.2d 844 (3d Cir. 1970).

Industrial Psychologist - In Recer, supra, anindustrial psychologist was permitted to testifyconcerning loss of earning capacity in the future.

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(8) What an Economist is Entitled to Consider(a) Inflation

In Texas it has always been permissible for a jury totake into consideration inflationary forces (the rapidlydecreasing value of the dollar) in assessing futuredamages. See, for example, Halliburton Co. v. Olivas,517 S.W.2d 349 (Tex. Civ. App. - El Paso 1974, nowrit); Wharf Cat Inc. v. Cole, 567 S.W.2d 228 (Tex. Civ.App. - Corpus Christi 1978, writ ref'd n.r.e.). For theperiod 1975 through 1982, inflation could not beconsidered in federally created causes of action,including FELA cases which were sometimes tried instate court . Johnson v. Penrod Drilling Co., 510 F.2d234 (5th Cir. 1975) (en banc).

Even while the Fifth Circuit prohibited evidence ofinflation in federal causes of action, Penrod, supra, indiversity cases the state's substantive law applied andinflation could always be considered in determiningfuture damages. Weakley v. Fischbach & Moore, Inc. ,515 F.2d 1260 (5th Cir. 1975).

In Culver v. Slater Boat Co., 688 F.2d 280 (5th Cir.1982) (en banc), cert. denied, 469 U.S. 819, 105 S.Ct. 90,83 L.Ed.2d 37 (1984), the Fifth Circuit reversed Penrod,supra, on the impact of inflation on assessing futuredamages. After this decision in Culver, the United StatesSupreme Court decided Jones & Laughlin Steel Corp. v.Pfeifer, 462 U.S. 523 (1983), holding in aLongshoremen's and Harbor Workers' Compensation Actcase that the Third Circuit Court of Appeals had erred inapplying a "total offset rule" under which future inflationwas presumed to equal future interest rates with thosefactors offsetting and canceling one another indetermining present value of a future stream of income.

The Supreme Court, in Pfeifer, discussed differentways of calculating lost future wages in civil damageactions and chose to leave the decision to the trial judgeas to which method to adopt, although it cautionedagainst using a discount rate and estimated lost stream offuture earnings premised on forecasts of future inflationas it impacts on wages and interest rates, noting that "theaverage accident trial should not be converted into agraduate seminar on economic forecasting."

Thereafter, the Fifth Circuit Court of Appealswithdrew its opinion in Culver I, insofar as it wentbeyond overruling Johnson v. Penrod Drilling Co.,supra, and taking to heart the Supreme Court'sphilosophy of not allowing a trial to be converted into agraduate seminar on economic forecasting, issued asecond Culver opinion, Culver v. Slater Boat Co., 722F.2d 114 (1983), in which it adopted a single method foradjusting damage awards for inflation. The methodadopted by the Fifth Circuit is called a "below-marketdiscount rate" and is to be used as the sole method toadjust loss-of-future-earnings awards to present value toaccount for the effect of inflation. This method is

designed to eliminate the specific forecasts of futureinflation.

The idea under this method is to mathematicallycompute the "real" wage growth rate due to productivity,collective bargaining, and other societal forces, butexclude inflation. Then, the average interest rate isdetermined using a safe investment such as treasurysecurities and subtracting therefrom the average inflationrate in the past so as to determine the "real" interest rate.Thus, the component of inflation is deleted from theprojected future income stream as well as the projectedfuture interest that can be earned on a present lump sumpayment. This results in comparing apples with apples,since inflation is now removed from the wage growthside of the equation. Having removed the inflation factorfrom both sides of the equation, using the below-marketdiscount method, one now compares the real wagegrowth with the real interest rate to determine thediscount rate or the negative discount rate (negativediscount if the real future wage growth exceeds the realinterest that can be earned during the projected futuretime frame).

After Culver I, supra, it could be said that the samerule applied in both state and federal court as to bothstate law cases and federal causes of action, that is,inflation could be considered. Since Culver II, the rulein the Fifth Circuit of federal causes of action (such asFELA cases and Longshoremen's and Harbor Workers'Compensation Act cases) is that damage awards are to beadjusted to account for inflation by using the"below-market discount rate" method which does notinvolve a specific forecast of future inflation rates, orhow such inflation rate would affect the particularplaintiff. Rather, the below-market discount rate methodwill remove the inflation components in both the wagegrowth rate and the interest rate so as to compare the twoand arrive at a discount rate or negative discount rate thatis adjusted for inflation without having to determine whatthat inflation rate is.

(b) Income TaxIt once had long been Texas law that juries were not

to take into consideration or be advised of the fact thatthe recovery in a personal injury or wrongful death casewas not subject to income taxation. Turner v. GeneralMotors, 584 S.W.2d 844 (Tex. 1979); Missouri K.T. Ry.Co. v. McFerrin, 291 S.W.2d 931 (Tex. 1956). BothTurner and McFerrin courts noted that inquiry intosubject of income tax was an immaterial collateral matteras to the damages.

Nor was it permissible to show that part of one'sincome, for which claim is made in the form of loss ofearnings or earning capacity, would be paid in incometax, as a jury should not be concerned with how plaintiffmight spend or be obligated to spend any compensationthat he or she might receive. Buckner & Sons v. Allen,

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289 S.W.2d 387 (Tex. Civ. App. - Austin 1956, no writ);and Caterpillar Tractor Co. v. Gonzales, 599 S.W.2d 633(Tex. Civ. App. - El Paso 1980, writ ref'd n.r.e.).

However, Texas law was changed in 2003 to includeTEX. CIV. PRAC. & REM. CODE §18.091. According tothis new provision, the effect of taxation on an award isnow considered in making the award. For the recoveryof loss of earnings, loss of earning capacity, loss ofcontributions of a pecuniary value, or loss of inheritance,the person must establish the amount of the claimant’snet loss after an appropriate reduction for federal incometax payments that would have been due or any unpaidfederal tax liability. Id. §18.091(a). Additionally, thecourt must instruct the jury as to whether the claimant’srecovery of compensatory damages will be subject tofederal or state income taxes. Id. §18.091(b).

The United States Supreme Court has held that in anFELA case where income taxation would have asubstantial impact, it was error to exclude evidence ofincome taxes payable on decedent's past and estimatedfuture income. Norfolk & Western R.R. Co. v. Liepelt,444 U.S. 490 (1980).

(c) Collateral SourceAn economist would not be permitted to take into

consideration collateral sources in those jurisdictions thatrecognize the collateral source rule which prohibits thewrongdoers from benefitting by any collateral sourceavailable to the plaintiff. See Twin City Fire Ins. Co. v.Gibson, 488 S.W.2d 565 (Tex. Civ. App. - Amarillo1972, writ ref'd n.r.e.). In a case applying the substantivelaw of Texas, e.g., a diversity case, a Federal Tort ClaimsAct case, etc., collateral sources could not be considered.Gibson, supra.

Even in a claim against the United States under theFederal Tort Claims Act, receipt of Social Securitybenefits would be recognized as a collateral source andnot to be a matter which the economist would have totake into consideration in calculating future losses,provided the state law recognized the collateral sourcerule. See Smith v. United States, 587 F.2d 1013 (3d Cir.1978). The reasoning is that the monies expended underSocial Security do not come from the general treasurybut from a special fund appropriated expressly for aparticular benefit or amassed from contributions byplaintiff, so there is no double payment out of thetreasury of the United States.

(d) Effects of Remarriage in a Death CaseSome jurisdictions do not allow proof of remarriage

in a wrongful death case, based on the philosophy thatthe damages are fixed at the time of death. Even inTexas, where evidence of remarriage has been madespecifically admissible in wrongful death cases bylegislative enactment, the courts have interpreted the law,nonetheless, so that remarriage does not operate to

diminish the damages which are recoverable and that noevidence as to the effects of remarriage is admissible onthe matter of damages. See Richardson v. Holmes, 525S.W.2d 293 (Tex. Civ. App. - Beaumont 1975, writ ref'dn.r.e.).

(e) OtherAn economist could testify as to the cost of an

annuity to replace an income stream. Missouri-Kansas-Texas Railroad Co. v. Wright, 311 S.W.2d 440 (Tex.Civ. App. - Fort Worth 1958, writ dism'd). Aneconomist, like a jury, would not be limited to histestimony to the customary retirement age, providedthere is evidence in the record to show when the plaintiffor decedent might have retired. Wright, supra. Aneconomist is entitled to place a plaintiff in a statisticalgroup for purposes of projecting one's future loss ofearnings, and this is especially necessary where theplaintiff or decedent is a child and has no work orearnings history. Roth v. Law, 579 S.W.2d 949 (Tex.Civ. App. - Corpus Christi 1979, ref'd n.r.e.).

An economist can add a percentage fringe benefitfigure provided he can explain the source of such fringebenefit estimate. Garza v. Berlanga, 598 S.W.2d 377(Tex. Civ. App. - El Paso 1980, writ ref'd n.r.e.). Unlessthe economist, in testifying to fringe benefits, is relyingon statistical data that can be pointed to, there must beevidence in the record of fringe benefits for thatparticular plaintiff or decedent. See Richardson v.Holmes, supra. An economist may rely upon learnedtreatises, government reports, books and reportsidentified as recognized authorities, and such sources asannuity tables and almanacs. Bair v. American MotorsCorp., 473 F.2d 740 (3d Cir. 1973).

J. Texas Rule of Evidence 801: Hearsay;DefinitionsIn Ho Wah Genting Kintron SDN BHD v. Leviton

Manufacturing Co., 2005 WL 432936 (Tex.App.–SanAntonio 2005), the manufacturer of a mobile home whohad been sued for injuries suffered in a fire brought across claim against the manufacturer of an extension cordinvolved in the fire. Leviton alleged that a companynamed Kintron Sdn Bhd manufactured the cord, and HoWah Genting Berhad acquired a controlling interest inKintron. The company then became “Ho Wah GentingKintron Sdn Bhd” and Kintron Sdn Bhd ceased to existas a separate entity. Leviton introduced documents intoevidence from Kintron Sdn, Kintron Berhad, and HoWah Getting Berhad regarding day to day businessmatters such as price quotes and letters of credit in orderto show there was really only one company and thuspersonal jurisdiction was properly asserted. Id. at 3. HoWah claimed these documents were hearsay as theyconsisted of out of court statements by other companies.The Court rejected this argument, however, saying none

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of the exhibits were offered to prove the truth of anymatter asserted within the documents. Id. at 3.

Tucker’s Beverages, Inc. v. Fopay, 145 S.W.3d 765(Tex.App.–Texarkana 2004, no writ), concerned out-of-court statements offered against a party when thestatement is “by the party’s agent or servant concerninga matter within the scope of the agency or employment,made during the existence of the relationship.” TEX. R.EVID. 801(e)(2)(D). Fopay brought action against a storeowner when motorist’s vehicle collided with a vehicledriven by the store’s employee.

The employee was driving across a highway that ranbetween the owner’s two stores. Statements made byMoore, the employee, immediately following theaccident showed that Moore had either been transportingmerchandise between stores or picking up night depositsat one of the stores. This meant that Moore’s attemptedhighway crossing was within the course and scope of hisemployment. Tucker’s argued on appeal that the trialcourt had erred in admitting these statements. TheTexarkana Court of Appeals found that these statementswere within TEX. R. EVID. 801(e)(2)(D). The court alsostated that Tucker’s contention that the accident occurredtwenty minutes before Moore was scheduled to startwork and that Moore’s own testimony showed that hehad been on a personal errand had little to do with theadmissibility of Moore’s statements following theaccident. Id. at 768. Moore was a Tucker’s employee onthe day of the accident, and the trial court only needed todetermine whether Moore’s statements concerned amatter within the scope of his employment.

In Wil-Roye Investment Co. II and RenewableInvestments, Inc., v. Washington Mutual Bank , FA, 142S.W.3d 393 (Tex.App.–El Paso 2004, no writ), the factorof an oil drilling business sued driller’s bank allegingcommon law fraud, fraud in a stock transaction,conspiracy, and negligence after the driller becamebankrupt. The trial court denied opposing motions forsummary judgment and, after trial, entered judgment forthe bank. The El Paso Court of Appeals found that therationale for allowing an agent’s admissions against theprincipal under Rule 801(d)(2)(D) also justifiesadmission of evidence showing that an agent/witness hasexercised his Fifth Amendment privilege, at least wherethe questions substantially relate to a party’s claim ordefense.

Trencor, Inc. v. Cornech Machine Co. a/k/a/ CMCIran, 115 S.W.3d 145 (Tex.App.–Fort Worth 2003, rev.denied) was a breach of contract dispute between anIranian corporation and a Texas manufacturer. The FortWorth Court of Appeals held that service reportsprepared by employees of CMC, while it was acting asan agent for the Texas manufacturer, were admissible asnonhearsay admissions by a party opponent under Tex.R. Evid. 801(e)(2).

The Court stated that the determination of whetheran agent’s statements are admissible against the principalas an admission of a party opponent in a suit between theagent and principal requires the court to look at thecircumstances prevailing at the time the statements weremade. Id. at 151. The evidence presented establishedthat CMC was Trencor’s agent in Iran for after-salesservice and warranty work and the objected-to servicereports concerned matters within the scope of the agencyrelationship. At the time the reports were prepared CMCand Trencor were not adverse parties, and thus theservice reports were admissible.

K. Texas Rule of Evidence 803: Hearsay;Availability of Declarant ImmaterialMauzey v. Sutliffe, 125 S.W.3rd 71 (Tex.App.-

Austin, 2003, no pet), involved the impeachment of anadverse witness through the use of a learned treatiseunder Tex. R. Evid. 803 (18). The witness recognizedthe treatise as authoritative and apparently acknowledgedthat his testimony was contrary to the results of a tablereprinted in the book. Opposing counsel was allowed tocross examine the witness with the contents of the table,but the trial court would not allow the attorney to displaythe chart to the jury since learned treatises “may not bereceived into evidence” according the Tex. R. Evid.803(18). The Court of Appeals disagreed, holding thatit was error (albeit not reversible error) to prevent theinformation from being displayed to the jury

III. SUBSTANTIVE EVIDENCE CASESIn Ridgecrest Retirement & Healthcare v. Urban,

135 S.W.3d 757 (Tex.App.-Houston [1st Dist] 2004,n.p.h.), the Court of Appeals held that the trial court erredin submitting a negligence per se instruction to the jurybased upon a Texas Administrative Code regulation. TheCourt held that the error was harmful and a new trial wascalled for because the Administrative Code did not createcriminal liability.

A. Gross NegligenceIn Coastal Transport Co. v. Crown Central

Petroleum, 136 S.W.3d 227 (Tex. 2004) the TexasSupreme Court found that speculation that CoastalTransport Co. may have followed the general industrypractice of keeping certain replacement probes for tankertrucks on shelves for several years before use fell short ofestablishing conscious indifference. Coastal TransportCo., 136 S.W.3d 227 at 235. Thus, there was noevidence that Coastal had any actual, subjectiveawareness it had used a defective replacement probe andyet proceeded to act in conscious indifference to the riskposed by such probes. The court affirmed the trialcourt’s motion for a directed verdict on gross negligence.

In Cigna v. Pybas, 127 S.W.3d 400(Tex.App.–Dallas 2004, no pet.), the Dallas Court of

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Appeals concluded that the Pybas could not recoveragainst Cigna Healthcare for gross neglect in failing tocare for the plaintiff adequately unless the CignaCorporation had authorized or ratified the wilful act oromission or gross neglect of an agent caretaker, wasgrossly negligent in hiring an unfit agent caretaker, orwas liable through the wilful acts or omissions or grossneglect of its vice principles. The court found thatPybas's caretaker nurse was liable for gross neglect, butthat Cigna was not responsible since the nurse was not avice principal of Cigna nor did Cigna ratify or authorizethe nurse’s conduct. Cigna, 127 S.W.3d 400 at 418.Therefore, Pybas could not recover exemplary damagesfrom the defendant based on gross neglect.

B. Unavoidable accident The Houston Court of Appeals concluded that the

submission of an "unavoidable accident" jury instructionwas reversible error in Urista v. Bed, Bath & Beyond,132 S.W. 3d 517 (Tex. App.—Houston [1st Dist.] 2004).Urista brought an action against a retail store for anincident where some plastic trash cans fell from anoverhead shelf and hit Urista on the head. Theunavoidable-accident instruction was erroneous to beginwith because no evidence in the case suggested that thetrash cans fell because of a peculiar circumstances thatwarranted an unavoidable-accident instruction. Urista,132 S.W. 3d 517 at 512. The instruction became harmfuland reversible, however, because (1) evidence supportingthe jury’s finding of no negligence liability was scant and(2) the record suggested that the jury might have reliedon the unavoidable-accident instruction in answering“no” to the negligence liability question because thedefendant was constantly putting forth an “accidenttheory” to explain the incident. The defense counsel inthe trial court told the jury that “there’s a lot of accidentsin this world that are unavoidable accidents. That’s whatthe court says to you...it wasn’t intended to happen, itjust did.” Urista, 132 S.W. 3d 517. at 523. The courtreversed and remanded for a new trial based on thiserroneous instruction.

In Fethkenher v. Kroger Co., 139 S.W.3d 24 (Tex.App.—Fort Worth 2004, n.p.h), a grocery store patronw as injured when struck by an automatic door andbrought a negligence action against the store owner.Fethkenher challenged the unavoidable-accidentinstruction given by the trial court. The court concludedthat the unavoidable-accident instruction was improperbecause the company did not provide any affirmativeevidence that the door’s malfunction was proximatelycaused by nonhuman events. However, the court foundthat this error was not reversible because the erroneousunavoidable-accident instruction was not likely to havecaused the rendition of an improper judgment.Fethkenher, 139 S.W. 3d 24 at 34.