{"id":5892,"date":"2015-07-18T14:08:21","date_gmt":"2015-07-18T20:08:21","guid":{"rendered":"https:\/\/www.textrial.com\/evidence-case-law-update-31st-annual-advanced-personal-injury-law-course\/"},"modified":"2015-07-18T14:08:21","modified_gmt":"2015-07-18T20:08:21","slug":"evidence-case-law-update-31st-annual-advanced-personal-injury-law-course","status":"publish","type":"post","link":"https:\/\/www.textrial.com\/es\/evidence-case-law-update-31st-annual-advanced-personal-injury-law-course\/","title":{"rendered":"Evidence and Case Law Update for the 31st Annual Advanced Personal Injury Law Course"},"content":{"rendered":"

1)<\/strong>\u00a0\u00a0\u00a0 Scope of Paper<\/strong><\/p>\n

This paper attempts to summarize recent cases which have some significance in the area of evidence law.\u00a0 I have tried to group the cases according to the relevant Rules of Evidence and by subject matter of the substantive law points.<\/p>\n

The Supreme Court of Texas changed the standards for a no-evidence review.\u00a0 City of Keller v. Wilson<\/em>, 168 S.W.3d 802 (Tex. 2005), stated the new standard:<\/p>\n

When expert testimony is required, lay evidence supporting liability is legally insufficient.\u00a0 In such cases, a no-evidence review cannot disregard contrary evidence showing the witness was unqualified to give an opinion.\u00a0 And if an expert\u2019s opinion is based on certain assumptions about the facts, we cannot disregard evidence showing those assumptions were unfounded.<\/p>\n

After we adopted gate-keeping standards for expert testimony, evidence that failed to meet reliability standards was rendered not only inadmissible but incompetent as well.\u00a0 Thus, an appellate court conducting a no-evidence review cannot consider only an expert\u2019s bare opinion, but must also consider contrary evidence showing it has no scientific basis.\u00a0 Similarly, review of an expert\u2019s damage estimates cannot disregard the expert\u2019s admission on cross-examination that none can be verified.<\/p>\n

Thus, evidence that might be \u201csome evidence\u201d when considered in isolation is nevertheless rendered \u201cno evidence\u201d when contrary evidence shows it to be incompetent.<\/p>\n

The Supreme Court\u2019s new standard requires that when conducting a no\u2011evidence review, the reviewing court must view the evidence in the light most favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. City of Keller<\/em>, 168 S.W.3d at 807.\u00a0 The effect of the Court\u2019s new \u201cno evidence\u201d standard did more than merely overrule In re King\u2019s Estate, <\/em>244 S.W.2d 660 (Tex. 1952); the effect is to extend its reach into areas previously prohibited by the Texas Constitution\u2019s limitation against Supreme Court fact finding.<\/p>\n

The Supreme Court of Texas\u2019 reach into evidentiary matters hardly needed the assistance of a new standard.\u00a0 As a recent law review article noted:<\/p>\n

\u201cIn…2004-2005, the court found no evidence in eighteen of the twenty-two (82%) cases in which a no-evidence claim was presented. All of the decisions holding no evidence favored defendants\u00bcIn seventeen of the decisions, the evidence had seemed probative to the jury, the trial judge, and the court of appeals, but the supreme court reversed.\u201d<\/p>\n

Anderson, D., \u201cJudicial Tort Reform in Texas\u201d 26 Review of<\/em> Litigation<\/em>, 1, 18 (2007). Examples such as Kroger Tex. L.P. v. Suberu<\/em>, 216 S.W.3d 788 (Tex. 2006) are becoming the norm, rather than the exception, as the same article noted \u201cthe extent of the current court\u2019s use of no evidence determinations appears to be unprecedented.\u201d\u00a0 Anderson, \u201cJudicial Tort Reform,\u201d 26 Review of Litigation<\/em>, at 23.<\/p>\n

It is probably no small wonder that \u201cthere has been a decline of more than fifty percent in the number of civil jury verdicts in Texas from 1985 to 2002.\u201d\u00a0 Toben, Underwood, Underwood and Wren,\u00a0 \u201cStraight from the Horse\u2019s Mouth: Judicial Observation of Jury Behavior and the Need for Tort Reform,\u201d 59 Baylor University Law Review<\/em>, 419, 433 (2007).<\/p>\n

According to the Texas Administrative Office of Courts, there were 1,195 civil jury trials in the year ending August 31, 2011.\u00a0 Of these, there were 638\u00a0 jury trials involving injury or damages.\u00a0\u00a0 In the same time period, there were 4,891 civil cases decided by summary judgment.\u00a0 Office of Court Administration Annual Report for the Texas Judiciary, March 2012 (pp. 46-47).\u00a0 It appears that there was a twenty percent (20%) decline in the last year.\u00a0 Marc Curriden, \u201cDay in Court Vanishing\u201d.\u00a0\u00a0\u00a0 Dallas Morning News, April 3, 2012 (p. D-1).<\/p>\n

2)<\/strong>\u00a0\u00a0\u00a0 Texas Rules of Evidence<\/strong><\/p>\n

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  1. a)<\/strong> Texas Rule of Evidence 103: Rulings on Evidence<\/strong>.<\/li>\n<\/ol>\n

    Greenberg, Traurig of New York, P.C. v. Moody<\/em>, 161 S.W.3d 56 (Tex. App.\u2014Houston [14th Dist.] 2004, no pet.), discusses pretrial rulings under Tex. R. Evid. 103 and instances in which those objections do not need to be re-urged at trial.\u00a0 It is consistent with the 5th Circuit\u2019s teaching in Micro Chem., Inc. v. Lextron, Inc.<\/em>, 387 F.3d 1119 (5th Cir. 2003), interpreting Fed. R. Evid. 103 in light of the recent changes to that rule.<\/p>\n

    In Austin v. Weems<\/em>, 337 S.W.3d 415 (Tex. App.\u2014 Houston [1st Dist.] 2011, no pet.), the court held that a widow waived her objection to a deputy’s oral testimony.\u00a0 The pre-trial objection was directed to the proffered testimony of the officer, but did not mention his investigative report.\u00a0 The trial court overruled the objections to the officer\u2019s testimony and allowed the witness to express his opinions.\u00a0 The Court of Appeals held that the pre-trial objections were not specific enough and did not complain of opinions contained within the police report itself.\u00a0 The Court of Appeals held that the pre-trial objections to the officer\u2019s testimony<\/u> did not extend to opinions contained within the officer\u2019s written report.<\/p>\n

    When the court hears objections outside the presence of the jury, the objections apply to such evidence without the necessity of repeating them. Tex. R. Evid. 103.\u00a0 Service Corp. International v. Guerra<\/em>, 348 S.W.3d 221 (Tex. 2011) held that the failure to object to an attorney’s statements during voir dire of the jury panel does not waive a later objection to evidence offered during trial.\u00a0 Statements by lawyers during the jury selection process are not evidence. SCI properly preserved error by timely objecting to the same voir dire material when it was introduced in trial.<\/p>\n

    Kia Motors v. Ruiz<\/em>, 432 S.W.3d 865 (Tex. 2014) describes the extensive measures taken to preserve claims of error concerning admission of records of other similar (or dis-similar) incidents.<\/p>\n

      \n
    1. b)<\/strong> Texas Rule of Evidence 201: Judicial Notice<\/strong><\/li>\n<\/ol>\n

      Judicial Notice was the topic in Phillips v. United Heritage Corp.<\/em>, 319 S.W.3d 156 (Tex. App.\u2014Waco 2010, no pet.).\u00a0 The court found that when a party moved for summary judgment based in part on the laws of a foreign country, the response included expert testimony about the laws of the foreign country, and the party created a trial brief on the foreign laws, the notice and proffering requirements of Rule 203 were met.<\/p>\n

      In Trujillo v. Carrasco<\/em>, 318 S.W.3d 455 (Tex. App.\u2014El Paso 2010,\u00a0 no pet.), the court found that where the plaintiff did not ask the court to take judicial notice of a Labrador\u2019s characteristics, the court could not find that the Labrador in question was prone to hunting and killing fowl; therefore, the plaintiff could not show the dog killing plaintiff\u2019s roosters and hens was foreseeable, and thus Plaintiff failed to prove proximate cause.<\/p>\n

      Ennis, Inc. v. Dunbrooke Apparel Corp. <\/em>427 S.W.3d 527\u00a0 (Tex. App.\u2014Dallas 2014, no pet.) described the proper sequence of taking judicial notice concerning choice-of-law.\u00a0 The rules prescribe the sequence and steps related to proof of foreign law, and attempts to re-argue the matter through summary judgment pleadings may not be effective.<\/p>\n

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      1. c)<\/strong> Texas Rule of Evidence 401: Relevant Evidence<\/strong><\/li>\n<\/ol>\n

        In Republic Waste Servs., Ltd. v. Martinez<\/em>, 335 S.W.3d 401 (Tex. App.\u2014Houston [1st Dist.] 2011, no pet.), the court affirmed a trial court\u2019s decision to exclude evidence concerning the decedent\u2019s immigration status under Rules 401 and 403.\u00a0 The defense asserted that evidence showing the decedent was an undocumented worker should be presented to the jury in order to make a proper determination of his future lost income.\u00a0 They claimed that because the decedent was subject to immediate deportation, the jury should have been allowed to determine whether or not he would have spent some of his working lifetime in the United States or in his native country.\u00a0 The Court of Appeals agreed with the trial court\u2019s determination that the prejudicial effect of the evidence far outweighed its probative value under Rule 403.<\/p>\n

        Download and read the entire publication here.<\/a><\/h2>\n","protected":false},"excerpt":{"rendered":"

        1)\u00a0\u00a0\u00a0 Scope of Paper This paper attempts to summarize recent cases which have some significance in the area of evidence law.\u00a0 I have tried to group the cases according to the relevant Rules of Evidence and by subject matter of the substantive law points. The Supreme Court of Texas changed the standards for a no-evidence
        LEER M\u00c1S<\/a><\/p>\n

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