1) Scope of Paper
This paper attempts to summarize recent cases which have some significance in the area of evidence law. 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 review. City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005), stated the new standard:
When expert testimony is required, lay evidence supporting liability is legally insufficient. In such cases, a no-evidence review cannot disregard contrary evidence showing the witness was unqualified to give an opinion. And if an expert’s opinion is based on certain assumptions about the facts, we cannot disregard evidence showing those assumptions were unfounded.
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. Thus, an appellate court conducting a no-evidence review cannot consider only an expert’s bare opinion, but must also consider contrary evidence showing it has no scientific basis. Similarly, review of an expert’s damage estimates cannot disregard the expert’s admission on cross-examination that none can be verified.
Thus, evidence that might be “some evidence” when considered in isolation is nevertheless rendered “no evidence” when contrary evidence shows it to be incompetent.
The Supreme Court’s new standard requires that when conducting a no‑evidence 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, 168 S.W.3d at 807. The effect of the Court’s new “no evidence” standard did more than merely overrule In re King’s Estate, 244 S.W.2d 660 (Tex. 1952); the effect is to extend its reach into areas previously prohibited by the Texas Constitution’s limitation against Supreme Court fact finding.
The Supreme Court of Texas’ reach into evidentiary matters hardly needed the assistance of a new standard. As a recent law review article noted:
“In…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 defendants¼In 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.”
Anderson, D., “Judicial Tort Reform in Texas” 26 Review of Litigation, 1, 18 (2007). Examples such as Kroger Tex. L.P. v. Suberu, 216 S.W.3d 788 (Tex. 2006) are becoming the norm, rather than the exception, as the same article noted “the extent of the current court’s use of no evidence determinations appears to be unprecedented.” Anderson, “Judicial Tort Reform,” 26 Review of Litigation, at 23.
It is probably no small wonder that “there has been a decline of more than fifty percent in the number of civil jury verdicts in Texas from 1985 to 2002.” Toben, Underwood, Underwood and Wren, “Straight from the Horse’s Mouth: Judicial Observation of Jury Behavior and the Need for Tort Reform,” 59 Baylor University Law Review, 419, 433 (2007).
According to the Texas Administrative Office of Courts, there were 1,195 civil jury trials in the year ending August 31, 2011. Of these, there were 638 jury trials involving injury or damages. In the same time period, there were 4,891 civil cases decided by summary judgment. Office of Court Administration Annual Report for the Texas Judiciary, March 2012 (pp. 46-47). It appears that there was a twenty percent (20%) decline in the last year. Marc Curriden, “Day in Court Vanishing”. Dallas Morning News, April 3, 2012 (p. D-1).
2) Texas Rules of Evidence
- a) Texas Rule of Evidence 103: Rulings on Evidence.
Greenberg, Traurig of New York, P.C. v. Moody, 161 S.W.3d 56 (Tex. App.—Houston [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. It is consistent with the 5th Circuit’s teaching in Micro Chem., Inc. v. Lextron, Inc., 387 F.3d 1119 (5th Cir. 2003), interpreting Fed. R. Evid. 103 in light of the recent changes to that rule.
In Austin v. Weems, 337 S.W.3d 415 (Tex. App.— Houston [1st Dist.] 2011, no pet.), the court held that a widow waived her objection to a deputy’s oral testimony. The pre-trial objection was directed to the proffered testimony of the officer, but did not mention his investigative report. The trial court overruled the objections to the officer’s testimony and allowed the witness to express his opinions. 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. The Court of Appeals held that the pre-trial objections to the officer’s testimony did not extend to opinions contained within the officer’s written report.
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. Service Corp. International v. Guerra, 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. 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.
Kia Motors v. Ruiz, 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.
- b) Texas Rule of Evidence 201: Judicial Notice
Judicial Notice was the topic in Phillips v. United Heritage Corp., 319 S.W.3d 156 (Tex. App.—Waco 2010, no pet.). 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.
In Trujillo v. Carrasco, 318 S.W.3d 455 (Tex. App.—El Paso 2010, no pet.), the court found that where the plaintiff did not ask the court to take judicial notice of a Labrador’s 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’s roosters and hens was foreseeable, and thus Plaintiff failed to prove proximate cause.
Ennis, Inc. v. Dunbrooke Apparel Corp. 427 S.W.3d 527 (Tex. App.—Dallas 2014, no pet.) described the proper sequence of taking judicial notice concerning choice-of-law. 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.
- c) Texas Rule of Evidence 401: Relevant Evidence
In Republic Waste Servs., Ltd. v. Martinez, 335 S.W.3d 401 (Tex. App.—Houston [1st Dist.] 2011, no pet.), the court affirmed a trial court’s decision to exclude evidence concerning the decedent’s immigration status under Rules 401 and 403. 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. 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. The Court of Appeals agreed with the trial court’s determination that the prejudicial effect of the evidence far outweighed its probative value under Rule 403.