In what circumstances will an expert’s evidence be excluded due to the expert’s lack of qualifications?

RULE 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Rule 702 of the Texas Rules of Evidence states,

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.⁵

Thus, before admitting expert testimony under Rule 702, the trial court must be satisfied that three conditions are met: (1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case.⁶

A trial court need not exclude expert testimony simply because the subject matter is within the comprehension of the average jury.⁷ If the witness has some special knowledge or additional insight into the field that would be helpful, then the expert can assist the trier of fact to understand the evidence or to determine a fact in issue. An expert "may add precision and depth to the ability of the trier of fact to reach conclusions about subjects which lie well within common experience."⁸ Because the possible spectrum of education,

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skill, and training is so wide, a trial court has great discretion in determining whether a witness possesses sufficient qualifications to assist the jury as an expert on a specific topic in a particular case.⁹

Appellate courts may consider several criteria in assessing whether a trial court has clearly abused its discretion in ruling on an expert's qualifications. First, is the field of expertise complex? The degree of education, training, or experience that a witness should have before he can qualify as an expert is directly related to the complexity of the field about which he proposes to testify.¹⁰ If the expert evidence is close to the jury's common understanding, the witness's qualifications are less important than when the evidence is well outside the jury's own experience. For example, DNA profiling is scientifically complex; latent-print comparison (whether of fingerprints, tires, or shoes) is not. Second, how conclusive is the expert's opinion? The more conclusive the expert's opinion, the more important is his degree of expertise. Testimony that "a given profile occurred one time in 2.578 sextillion (2.578 followed by 21 zeroes), a number larger than the number of known stars in the universe (estimated at one sextillion)"¹¹ requires a much higher degree of scientific expertise than testimony "that the defendant's tennis shoe could have made the bloody shoe print found on a piece of paper in the victim's apartment."¹² And third, how central is the area of expertise to the resolution of the lawsuit? The more dispositive it is of the disputed issues, the more important the expert's qualifications are. If DNA is the only thing tying the defendant to the crime, the reliability of the expertise and the witness's qualifications to give his opinion are more crucial than if eyewitnesses and a confession also connect the defendant to the crime.¹³

The specialized knowledge that qualifies a witness to offer an expert opinion may be derived from specialized education, practical experience, a study of technical works or a combination of these things. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000). "A witness must first have a sufficient background in a particular field, but a trial judge must then determine whether that background ‘goes to the very matter on which [the witness] is to give an opinion.’ " Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006), quoting Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996). "Fit" is a component of qualification, and "the expert's background must be tailored to the specific area of expertise in which the expert desires to testify." Vela, 209 S.W.3d at 133. The party offering expert testimony has the burden to show the witness is qualified on the matter in question. Penry v. State, 903 S.W.2d 715, 762 (Tex. Crim. App. 1995).

To determine whether a trial court has abused its discretion in ruling on an expert's qualifications, an appellate court may consider three questions: (1) Is the field of expertise complex? (2) How conclusive is the expert's opinion? (3) How central is the area of expertise to the

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resolution of the lawsuit? See Rodgers, 205 S.W.3d at 528. Greater qualifications are required for more complex fields of expertise and for more conclusive and dispositive opinions. Id. The first two Rodgers ' factors – complexity and conclusiveness – weigh in favor of less stringent qualification requirements in this case while the third factor – dispositiveness – weighs in favor of higher requirements.

The trial court is supposed to act as a gatekeeper against expert testimony that would not help the trier of fact. This is not the same thing as requiring every expert to be the best possible witness. We agree with the State that the relevant question was not whether Doyle lacked a particular qualification that would have made him the ideal expert witness but whether the qualifications that he did have

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would have assisted the jury in determining an issue of fact. We hold that Doyle's qualifications would have assisted the jury in determining issues of fact, namely, where and how the collision happened, and we affirm the court of appeals' decision that the trial court did not abuse its discretion in determining Doyle was qualified to offer an expert opinion on these issues.

Under rule 702, Texas Rules of Evidence, “a witness qualified as an expert by knowledge, skill, experience, training,

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or education” may testify in the form of an opinion or otherwise “[i]f scientific, technical, or other specialized knowledge will assist the trier or fact to understand the evidence or to determine a fact in issue.” The proponent of the expert testimony bears the burden of showing that two tests have been met: 1) the expert must be qualified, and 2) the testimony must be relevant and based on a reliable foundation. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex.1995). Where experts rely on experience and training rather than a particular methodology to reach their conclusions, a reviewing court considers whether there is too great an analytical gap between the data and the opinion proffered for the opinion to be reliable. See Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex.1998).⁵

Not every doctor can qualify as an expert in every given case. Travelers Ins. Co. v. Wilson, 28 S.W.3d 42, 48 (Tex.App.–Texarkana 2000, no pet.). Admissibility of the expert's opinion hinges on whether the expert has special knowledge concerning the matter on which his opinion is sought that will assist the trier of fact. Id. In Wilson, the court concluded an orthopedic surgeon was not qualified to testify regarding the reasonableness and necessity of chiropractic treatment where the surgeon testified that he had no training, education, or experience in chiropractic skills or treatment, and did not testify how he determined when chiropractic treatment was reasonable and necessary for a patient with chronic pain. Id. Where there was no showing that the surgeon's training and experience qualified him to opine about the reasonableness and necessity of chiropractic care, it was within the trial court's discretion to exclude his testimony on that subject. Id.

Ingram relies on Hayhoe v. Henegar, 172 S.W.3d 642 (Tex.App.–Eastland 2005, no pet.), to argue that a chiropractor may testify about the necessity of medical treatment he or she is not qualified to perform. Dr. Hollander, the chiropractor in Hayhoe, testified about surgery performed by Dr. Ramsey, a medical doctor. See id. at 645. Dr. Hollander also presented a written report concluding that “the surgical intervention entered into by Dr. Ramsey was the sole result of [the] motor vehicle accident that [Henegar] had been involved with.” Id. at 645. Relying on Dr. Hollander's 20 years of chiropractic experience, postgraduate work in physics and dynamics, and experience with herniated discs, the court of appeals concluded that the trial court did not abuse its discretion in finding that the chiropractor was “qualified to testify that the car collision caused Henegar's back injury and that the back injury required surgery.” Id. at 644. The court also concluded that because of Dr. Hollander's 20 years of chiropractic experience, his report and testimony constituted legally and factually sufficient evidence of causation. Id. at 645.

In contrast, Dr. Starry's testimony was that he trusted Dr. Khan and others to whom he referred Ingram to make decisions about treatment that Dr. Starry was not qualified to undertake. Dr. Starry testified that from his own study and experience

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he was familiar with the testing and surgery commonly undertaken for disc protrusions, as well as the types of spinal injuries commonly caused by vehicle collisions. But unlike Dr. Hollander in Hayhoe, he did not testify to his own conclusion, based on his own experience and training, that Ingram's back injury required the specific treatment given by the medical providers to whom he referred her. The record includes Dr. Starry's testimony that he was not qualified by training, education, or statute to perform the procedures himself, and that he did not make the decisions whether to undertake the treatment, concessions absent from Hayhoe. See id.; see also Hong v. Bennett, 209 S.W.3d 795, 804 (Tex.App.–Fort Worth 2006, no pet.) (chiropractor's affidavit not sufficient to controvert reasonableness and necessity of medical doctor's, radiologist's, and pharmacist's services, where affidavit did not state how chiropractor was qualified to opine on those subjects).

A plaintiff may recover only for medical expenses specifically shown to result from treatment made necessary by the negligent acts or omissions of the defendant. Texarkana Mem'l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 839–40 (Tex.1997). Because Dr. Starry was not qualified to testify that $19,347.71 in non-chiropractic past medical expenses would fairly and reasonably compensate Ingram for injuries that resulted from the collision, the evidence offered at trial did not support this jury finding. See City of Keller, 168 S.W.3d at 827; Whirlpool Corp., 298 S.W.3d at 638. The trial court erred by admitting Dr. Starry's testimony regarding non-chiropractic past medical expenses. See Whirlpool, 298 S.W.2d at 638. We sustain Moreno's issue in part.

During Dr. Lipman's testimony before the jury, the State objected to defense counsel asking Lipman whether physical illnesses can cause psychological problems, stating that Lipman was not a medical doctor and therefore he was not qualified to testify about how a physical illness could impair cognitive ability. Defense counsel countered that Lipman dealt with situations "all the time" where the question was whether an effect on the brain was caused by drugs or by a physical illness such as lupus. The trial court sustained the objection, ruling that Lipman could not testify about the effect of lupus on the brain because he was not qualified to testify outside his area of expertise, which was neuropharmacology.⁷

On this record, we hold that the trial court did not abuse its discretion when it determined that the effect of a physical illness on the brain was outside Lipman's area of expertise. Lipman had testified that his area of expertise in neuropharmacology was focused on the effects of drugs on nerves, brain, and behavior. Lipman's testimony that he sometimes helped neuropsychologists and physicians with complex cases did not necessarily establish that he was qualified to give an opinion concerning the psychological effects of physical illness. Point of error nine is overruled.

A trial court's acceptance of an expert's qualifications is reviewed for an abuse of discretion. Broders v. Heise, 924 S.W.2d 148, 151 (Tex.1996). The role of the trial court in qualifying experts is to ensure “that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion.” Id. at 152.

The offering party must demonstrate that the expert witness possesses special knowledge as to the very matter on which he proposes to offer an opinion. See Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex.1998). However, the degree of knowledge, skill, education, training, or experience a witness should have before he is deemed qualified to testify as an expert is directly related to the complexity of the field about which his testimony is proposed. Tex. R. Evid. 702; see Broders, 924 S.W.2d at 153. “A significant part of the trial court's gatekeeper function is to evaluate the expert's qualifications, listen to the testimony, view the evidence, and determine which factors and

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evaluation methodology are most appropriate to apply.” Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 579 (Tex.2006).

Analysis

The trial court conducted a hearing to consider Great American's motions to exclude as evidence the testimony of Donald Yeandle and Robert Nicholas and, at the conclusion of the evidence, denied Great American's motions. We disagree with Great American's contentions and determine the trial court did not abuse its discretion when it admitted the testimony of Yeandle and Nicholas at trial. Great American asserts that Yeandle and Nicholas failed to demonstrate any specialized knowledge that qualified them to proffer opinions as to the rate of decay or when the damage to the Hamels' home occurred. The record sets out sufficient evidence to support the trial court's acceptance of these experts' qualifications based on skill and experience.

Great American concedes that Yeandle is qualified to testify that he discovered rot in the Hamels' home in 2002 and that the rotted wood required repair. However, it complains that Yeandle is not qualified to opine regarding the rate of growth of wood rot fungus, specifically that it did not begin until May 1996, and continued at a rate requiring replacement by April 1999, or regarding the moment at which the rot led to sufficient deterioration of structural members to require repair.

At trial, Great American complained that Yeandle is not a microbiologist. A college degree is not a prerequisite for a witness to qualify as an expert. See Glasscock v. Income Property Servs., 888 S.W.2d 176, 180 (Tex.App.-Houston [1st Dist.] 1994, writ dism'd). Yeandle's extensive experience in examining and repairing homes suffering from wood rot was presented to the trial court and we need not again recite his credentials here. An expert's qualifications may be based on sufficient practical experience. See Schneider v. Lynaugh, 835 F.2d 570, 576 (5th Cir.1988).

Although Nicholas is a licensed professional structural engineer with a civil engineering degree, Great American also complains that Nicholas is not a microbiologist and lacks specific experience or training to substantiate his opinion. Nicholas discussed in depth his understanding of scientific articles he read and relied upon in forming his opinions, explained that he learned about causation and prevention of wood rot in a wood design course, and explained he had experience in dealing with wood rot in 30 to 45 homes. Although Great American complains of it, Nicholas was permitted to base his opinions or inferences on the facts of data of this case as perceived by, reviewed by, or made known to him at or before the hearings or trials. Tex. R. Evid. 703. As an expert, Nicholas was permitted to base his opinions and conclusions on facts and data of which he had no first-hand knowledge. See Tex. R. Evid. 703 (providing that expert may base opinion on facts or data “perceived by, reviewed by, or made known to” him and may consider evidence that would be otherwise inadmissible if it is “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject”); In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 440 (Tex.2007) (orig. proceeding) (holding that experts may rely on hearsay, privileged communications, or other information); Control Solutions, Inc. v. Gharda USA, Inc., 394 S.W.3d 127, 160 (Tex.App.-Houston [1st Dist.] 2012, pet. filed) (Texas law has long maintained expert witnesses are permitted to rely upon information about which they have no personal knowledge).

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Testimony by experts is permitted when it will assist the trier of fact to understand the evidence or determine a fact in issue. Tex. R. Evid. 702. All proceedings in the construction and coverage cases were tried to the bench. Absent a clear abuse of discretion, we will not disturb the trial court's determination regarding the qualifications of a specific witness to testify as an expert. See United Blood Svcs. v. Longoria, 938 S.W.2d 29, 30–31 (Tex.1997).

Both Yeandle and Nicholas were qualified to testify as experts based on their specialized knowledge, skill, and experience regarding the specific issue before the court which qualified them to give an opinion on the particular matter. See Tex. R. Evid. 702; In re Commitment of Bohannan, 388 S.W.3d 296, 304–05 (Tex.2012), cert. denied, ––– U.S. ––––, 133 S.Ct. 2746, 186 L.Ed.2d 202 (2013) (test is whether offering party has established that expert has knowledge, skill, experience, training, or education regarding specific issue before the court which would qualify expert to give an opinion on that particular matter); see also Cent. Expressway Sign Assocs., 302 S.W.3d at 870; Zwahr, 88 S.W.3d at 628; Helena Chem. Co., 47 S.W.3d at 499; Gammill, 972 S.W.2d at 718.