Experts are expensive.\u00a0 After an expert is retained, briefed, wood-shedded, designated and deposed, they cost several thousand dollars.\u00a0 It would be a financial drain to any firm to have the expert disqualified just prior to trial and could spell disaster for a client\u2019s case.<\/p>\n
An attorney that hires an expert must determine the admissibility of that expert\u2019s opinions.\u00a0 This paper will examine how the trial and appellate courts have recently treated experts in premises liability cases.\u00a0 It will also explore strategies for using experts in identifying potential parties, developing theories of liability, and through the discovery process. Finally, the paper includes a discussion on general strategies for keeping and excluding experts.<\/p>\n
There are several things to consider when deciding whether or not to hire an expert in a premises liability case.\u00a0 Because experts are expensive, it is necessary to consider the overall potential cost of the expert when compared to your client\u2019s potential recovery.\u00a0 Also consider whether individuals who already have personal knowledge of the incident may be used instead of paying for a retained expert.\u00a0 Sometimes treating physicians, first responders (i.e., law enforcement) may have the requisite knowledge, skill, and expertise to provide expert testimony about the issues present in your case.<\/p>\n
Finally, consider the nature of your case and the complexity of the issues at hand. The cost of an expert may not be justified when the issues before the potential jury are not complex.\u00a0 Remember, the rules of evidence set standards for expert admissibility \u2014 one of which is helpfulness to the jury.\u00a0 So, consider whether the issues in your case are ones a lay person could understand when presented with a clear presentation of the evidence.\u00a0 If there are complexities regarding policy, design, medical causation, or other areas outside general public knowledge, you probably need an expert.<\/p>\n
Once you decide you need an expert, you will need to determine what type of expert you need.\u00a0 To do this you will need a clear understanding of exactly what issues you are seeking expert testimony to prove.\u00a0 Once you have that understanding, start thinking about the educational skills, experience, and training an expert in that particular area would need.\u00a0 Remember, experts must be qualified by education, training, skill, experience, or knowledge in the area you seek to admit their testimony.<\/p>\n
There are multiple places to locate experts and multiple things to consider when deciding who to hire. Some ways to locate potential experts include:<\/p>\n
Here is a list of some general expert search web sites and services:<\/p>\n
Once you have located potential experts, you need to figure out who is best suited for the job. Consider logistics.\u00a0 Ask potential experts about their upcoming availability due to existing personal and professional commitments.\u00a0 You want to hire someone who is not already over burdened with other commitments to ensure accessibility.\u00a0 Also ask about costs, billing schedules, and previous experience as an expert in similar matters.\u00a0 Additionally, although not dispositive on the ultimate issue of admissibility, ask if the expert has ever had his\/her opinions excluded by a court.<\/p>\n
Once you have located and retained an expert, you need to provide the expert with information on which to base his\/her opinions.\u00a0 That information is going to come from the discovery and other evidence gathering you have done.<\/p>\n
Talk to the expert and see what type of information he\/she typically relies on to render opinions.\u00a0 If there is still time left before discovery expires, make sure to serve discovery on any area where you find gaps after speaking with the expert.\u00a0 Additionally, as evidence comes in over the course of litigation, make sure you continue to provide it to your expert.<\/p>\n
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Experts can also be useful for identifying potential parties.\u00a0 For instance, an expert in a slip and fall at an airport may identify different people, employees, and companies who would have a presence in the area of the incident.\u00a0 That may include an independent cleaning company, and you may find through discovery the independent cleaning company has some culpability in the fall.<\/p>\n
As a side note regarding slip and falls, should you find another customer was the source of a spill or other fall catalyst, you may want to assert a claim of general negligence against that person.\u00a0 Such a negligence claim would be in addition to, not lieu of, your claims in premises liability against the property owner, and you may be able to seek damages from an existing homeowner\u2019s insurance policy.<\/p>\n
In Bartosh v. Gulf Health Care Center-Galveston<\/em>, 178 S.W.3d 434, 438 (Tex. App.\u2014Houston [14th Dist.] 2005, no pet.), a nursing home resident suffered dozens of fire ant bites on her legs and later died.\u00a0 The court upheld the trial court\u2019s exclusion of Bartosh\u2019s expert testimony because she did not establish that her expert\u2019s testimony was based on a reliable foundation.\u00a0 The court explained that the expert, while a large percentage of his patients were geriatric, had only treated 20 to 30 patients for fire ant bites and none of those patients were geriatric nor did any develop related infections, go into shock, or die from the attacks.<\/p>\n In Goss v. Kellogg Brown & Root Inc.,<\/em> 232 S.W.3d 816, 818 (Tex. App.\u2014Houston [14th Dist.] 2007, pet. denied), workers were injured by an explosion at a petroleum plant when a tank holding butadiene was closed off to be serviced without first removing the remaining butadiene from the tank.\u00a0 The workers offered expert testimony that a larger pressure relief valve would have prevented the explosion.\u00a0 The affirmed exclusion, finding the expert testimony was not sufficiently tied to the facts of the case to aid a jury in resolving factual dispute.\u00a0 The court explained that the facts of the case did not present the same circumstances as the expert\u2019s testimony because the pressure relief valve on the tank had been deliberately blocked by a closed block valve downstream.<\/p>\n In Marathon Corp. v. Pitzner<\/em>, 106 S.W.3d 724 (Tex. 2003), an air conditioning repairman was found semi-conscious in the parking lot of dealership where he had been working on the air conditioners located on the roof of the dealership.\u00a0 He had apparently fallen from the roof, but had no memory of the incident.\u00a0 The court held expert testimony was not supported by evidence where experts \u201cpostulate[d]\u201d that the repair man was electrocuted, stumbled backwards over a gas pipeline, and fell from the roof.\u00a0 It explained that expert opinions must be supported by facts in evidence and not conjecture.\u00a0 The court argued a jury would only be able to speculate as to whether Pitzner did actually fall from the roof, whether he actually came into contract with a high-voltage wire on the roof, and whether and how possible acts or omissions of Marathon were a substantial factor in causing Pitzner\u2019s injuries.<\/p>\n In Star Enterprise v. Marze<\/em>, 61 S.W.3d 449 (Tex. App.\u2014San Antonio 2001, pet. denied), a truck driver fell and injured his knee while trying to get his truck weighed at a truck scale and died three years later from septic shock caused by knee surgery.\u00a0 The court found that expert testimony about the possible causes of infection was scientifically unreliable. It explained that the expert was board certified only in orthopedic surgery and had no special training in internal medicine or infectious diseases, therefore the expert\u2019s testimony was speculative and scientifically unreliable.<\/p>\n In Ibarra v. National Const. Rentals, Inc.<\/em>, 199 S.W.3d 32, 34 (Tex. App.\u2014San Antonio 2006, no pet.), a woman was injured when a skater fell while holding on to a temporary fence, causing the fence to fall on the woman.\u00a0 The court held expert testimony was insufficient to show that a failure to place sandbags to anchor the fence caused Ibarra\u2019s injuries.\u00a0\u00a0 It reasoned that the expert testified during deposition that he did not have an opinion as to whether placing sandbags on the base of the fence panels would have actually prevented the accident and he did not conduct any testing to see if sandbags would have secured the fence.\u00a0 Accordingly, the court concluded\u00a0 his testimony created mere surmise and suspicion.<\/p>\n In Burns v. Baylor Health Care System<\/em>, 125 S.W.3d 589, 592 (Tex. App.\u2014El Paso 2003, no pet.), a woman was returning to her car in the parking garage when she fell from a curb that she was unable to see because the curb and the area in front of it were allegedly painted in such a manner as to create the illusion that there was no curb.\u00a0 The defendant moved to exclude Burns\u2019 expert on several grounds, including qualifications, relevance, helpfulness to the jury, and reliability.\u00a0 The trial court granted the motion, and the appellate court reversed.\u00a0 It held the expert\u2019s experience in the field of safety engineering and board certification as a safety professional along with specialized knowledge in premises safety and accident cause analysis demonstrated qualification and relevant specialized knowledge. The court further concluded the expert\u2019s opinions would have assisted the trier of fact to understand the evidence or determine a fact in issue because the expert possessed specialized knowledge of the human visual process which is not obviously within the common knowledge of jurors.\u00a0 The expert\u2019s affidavit provided background information on the accident process, provided general fall type accident statistics, described the human vision during the walking process, and discussed the core principles of safety engineering and cardinal rules of hazard control \u2013 all of which provided depth or precision to the trier of fact\u2019s understanding of a relevant issue in the case.<\/p>\n Finally, the court explained that the expert testimony had a clear relationship to the issues of premises liability and the safety of the curb disputed in the case.\u00a0 It found that the expert sufficiently demonstrated that his opinions were reliable.\u00a0 The court specifically noted that it was not for the trial court to determine whether the expert\u2019s conclusions were correct, but only whether the analysis used to reach them was reliable.<\/p>\n In Grieve v. Red Roof Inns, Inc.<\/em>, No. 13-99-660-CV, 2001 WL 1003312 at *1 (Tex. App.\u2014Corpus Christi August 31, 2001, pet. denied), a motel guest fell when she tripped over a step in the parking lot.\u00a0 The court found that the expert\u2019s training, background, and specialized knowledge made him qualified to give testimony regarding the step\u2019s height, compliance with building code, whether it was unsafe, and what alternate designs might have made the step safer.\u00a0 The court explained that the expert had acted as a compliance consultant for nearly 20 years before this case, had attended numerous conferences for training that included facilities assessment training, and co-authored a city\u2019s fair housing ordinance to bring it into compliance with handicap access standards.<\/p>\n It further held the expert\u2019s testimony was on matters that would be helpful to a jury because there were not within the average juror\u2019s common knowledge.\u00a0 The proffered testimony concerned whether the step complied with the building code and whether a reasonable building owner would recognize that the step did not comply with the code and presented a danger.\u00a0 Likewise, the court held the expert\u2019s testimony met the Robinson<\/em> reliability test.\u00a0 Specifically, the expert\u2019s theories that the step violated building code and could have easily and cheaply been made safer were readily testable, were subject to repetition and contradiction, were not reliant upon subjective interpretation, and the technique used was generally accepted by the scientific community.<\/p>\n In City of Dallas v. Thompson<\/em>, 210 S.W.3d 601, 602 (Tex. 2006), a woman tripped on the lip of an improperly secured metal expansion-joint cover plate and fell.\u00a0 The court found that expert testimony failed to show that the City knew of the dangerous condition even though the woman brought evidence of previous reported falls and knowledge the protrusion could arise suddenly.\u00a0 It somehow reasoned no knowledge existed even though the expert did show that employees were in the vicinity and walking over the cover plate in the hours prior to Thompson\u2019s fall.\u00a0 The court justified its conclusion by stating there was no evidence showing how long the protrusion had existed and, therefore, the proximity of the employees was not evidence of actual knowledge.<\/p>\n In Akin v. Brookshire Grocery Co.<\/em>, No. 05-99-01067-CV, 2001 WL 88194 at *1 (Tex. App.\u2014Dallas Jan. 26, 2001, no pet.), a store patron slipped and fell on a pink liquid located near the self-service drink fountain by the store\u2019s deli.\u00a0 The court found expert testimony that Brookshire knew or should have known of the spill because a person of normal height, five feet and five inches, or taller could have seen the spill from behind the deli counter was conclusory.\u00a0 The court explained that the expert\u2019s statements did not show that any of the Brookshire employees were tall enough to see over the counter or how long the spill had been on the floor, therefore the expert testimony failed to create a genuine issue of material fact.<\/p>\n In Price v. Ford<\/em>, 104 S.W.3d 331 (Tex. App.\u2014Dallas 2003, pet. denied), a nightclub patron was assaulted by other nightclub patrons.\u00a0 The court of appeals found the expert\u2019s testimony that security guards inside the nightclub should have responded more quickly was not legally sufficient to prove proximate causation.\u00a0 It explained that the expert did not testify that the guards could in fact have responded faster, or that if they had responded faster, that Ford would not have been injured.<\/p>\n In Reliable Consultants, Inc. v. Jaquez<\/em>, 25 S.W.3d 336 (Tex. App.\u2014Austin 2000, pet. denied), a woman brought suit after falling at the defendant\u2019s store.\u00a0 Her expert testified the step at issue presented a \u201ctrip and fall hazard.\u201d\u00a0 The court of appeals upheld the admission of the testimony, finding the expert qualified based on his twenty years experience as an inspector and advisor on property safety issues.<\/p>\n In Rivera v. South Green Ltd. Partnership<\/em>, 208 S.W.3d 12, 15 (Tex. App.\u2014Houston [14th Dist.] 2006, pet. denied), an employee was robbed and assaulted when an unknown man came into her office.\u00a0 The court sustained Rivera\u2019s issue that the trial court erred in granting a motion for summary judgment on the duty element of the negligence claim.\u00a0 The court found that expert testimony showing an average of more than nine crimes per month within a one-mile radius of the premises precluded South Green from conclusively proving that it had no duty to use ordinary care to protect Rivera.<\/p>\n In Gonzales v. Mobil Oil Corp.<\/em>, No. 05-98-01772-CV, 2001 WL 722564 at *1 (Tex. App.\u2014Dallas June 28, 2001, no pet.), a man was shot while getting gas at the Mobil gas station.\u00a0 The court held there was no evidence to show that Mobil should have been on notice of the danger of criminal acts of third parties.\u00a0 The court explained that while there was a previous armed robbery, there was no showing of the time, date, or circumstances surrounding the robbery and therefore no showing that the previous robbery was similar to the assault on Gonzales.<\/p>\n In Del Lago Partners, Inc. v.\u00a0 Smith<\/em>, 206 S.W.3d 146 (Tex. App.\u2014Waco 2006, review granted), a resort guest was injured in a bar brawl that broke out between a wedding party and Plaintiff\u2019s fraternity at the resort\u2019s bar.\u00a0 The court held the expert\u2019s testimony shoed evidence of causation where the bartenders allowed the two groups to exchange verbal insults and minor physical alterations prior to the brawl and failed to call security.\u00a0 The court explained that other witnesses\u2019 testimony that had a security officer been present the situation could have been avoided, that uniformed police officers can deter most problems, that had security officers been present they would have removed the intoxicated patrons engaging in the threatening behavior, and that had the security officers known what was going on the bar they would have made all efforts possible to resolve it all supported the expert\u2019s opinions that the bartenders\u2019 failure to request security caused Smith\u2019s injuries.<\/p>\n In Omaha Healthcare Center, L.L.C. v. Johnson<\/em>, 246 S.W.3d 278 (Tex. App.\u2014Texarkana 2008, pet. filed), the decedent\u2019s estate brought suit against the nursing home she lived in after she died of a spider bite.\u00a0 The defendants argued the claim qualified as a health care liability claim which would require plaintiffs to file a Chapter 74 expert report.\u00a0 The court of appeals disagreed, holding the claims did not arise out of the nursing home\u2019s care or treatment, but instead arose out of its departure from safety standards (namely, failing to eradicate spiders).<\/p>\n In Christus Health v. Beal<\/em>, 240 S.W.3d 282 (Tex. App.\u2014Houston [1st Dist.] 2007, no pet.), a resident of a drug and alcohol treatment facility brought an action against the facility when the bed he was sleeping on collapsed.\u00a0 The court of appeals held the claim did note constitute a health care liability claim, and thus, no Chapter 74 expert report was necessary.\u00a0 It noted, in determining whether a claim is a premises claim or a health care liability, one consideration is whether proving the claim would require specialized knowledge of an expert.<\/p>\n In Valley Baptist Medical Center v. Stradley<\/em>, 210 S.W.3d 770 (Tex. App.\u2014Corpus Christi 2006, pet. denied), a retiree brought suit when the treadmill she was walking on unexpectedly accelerated and caused her to fall.\u00a0 The court noted: \u201c[Stradley\u2019s claims] are personal injury claims of the most pedestrian nature. A jury could understand the evidentiary issues and negligence standards posed by Stradley’s claims without the aid of a medical expert’s report.\u201d\u00a0 Id. <\/em>at 775-76.\u00a0 It held the claims were premises liability claims not requiring a Chapter 74 expert report.<\/p>\n The following are just some of the many arguments for excluding expert testimony in light of Daubert<\/em>, Robinson<\/em>, and the rules of evidence.\u00a0 These approaches, while helpful in getting unreliable testimony excluded, are important considerations for protecting your own experts from disqualification.<\/p>\n An expert can be excluded based on his\/her lack of qualifications in a specific field. As recognized by Daubert <\/em>and its progeny, qualification is no longer the trial court\u2019s only primary focus.\u00a0 However, it is still a critical piece of the whole.\u00a0 The following cases explain the importance of locating the right expert for the issues in your case.<\/p>\n Under the common law approach, a witness\u2019 testimony was limited to facts of which the witness had first-hand knowledge and cannot be based solely on hearsay. \u00a0McMillan v. State<\/em>, 754 S.W.2d 422, 425 (Tex.App.\u2014Eastland 1988, writ ref\u2019d) (holding that a lay witness could not testify to the weight of a diamond that she herself had never weighed).\u00a0 The reason for this rule is to ensure that the witness has the requisite personal knowledge and is not relying upon hearsay.<\/p>\n Introduction Experts are expensive.\u00a0 After an expert is retained, briefed, wood-shedded, designated and deposed, they cost several thousand dollars.\u00a0 It would be a financial drain to any firm to have the expert disqualified just prior to trial and could spell disaster for a client\u2019s case. An attorney that hires an expert must determine the admissibility\n
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Download and read the entire publication here.<\/a><\/h3>\n","protected":false},"excerpt":{"rendered":"
LEER M\u00c1S<\/a><\/p>\n