Experts are expensive. After an expert is retained, briefed, wood-shedded, designated and deposed, they cost several thousand dollars. 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’s case.
An attorney that hires an expert must determine the admissibility of that expert’s opinions. This paper will examine how the trial and appellate courts have recently treated experts in premises liability cases. 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.
- Hiring Experts
- Deciding to Hire an Expert
There are several things to consider when deciding whether or not to hire an expert in a premises liability case. Because experts are expensive, it is necessary to consider the overall potential cost of the expert when compared to your client’s potential recovery. Also consider whether individuals who already have personal knowledge of the incident may be used instead of paying for a retained expert. 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.
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. Remember, the rules of evidence set standards for expert admissibility — one of which is helpfulness to the jury. So, consider whether the issues in your case are ones a lay person could understand when presented with a clear presentation of the evidence. If there are complexities regarding policy, design, medical causation, or other areas outside general public knowledge, you probably need an expert.
- So you Decide you Need Someone— Who do you get?
Once you decide you need an expert, you will need to determine what type of expert you need. To do this you will need a clear understanding of exactly what issues you are seeking expert testimony to prove. Once you have that understanding, start thinking about the educational skills, experience, and training an expert in that particular area would need. Remember, experts must be qualified by education, training, skill, experience, or knowledge in the area you seek to admit their testimony.
There are multiple places to locate experts and multiple things to consider when deciding who to hire. Some ways to locate potential experts include:
- Asking other professionals;
- Using an expert search service;
- Asking people in the applicable industry;
- Researching recent publications relevant to
the subject matter at issue.
Here is a list of some general expert search web sites and services:
Once you have located potential experts, you need to figure out who is best suited for the job. Consider logistics. Ask potential experts about their upcoming availability due to existing personal and professional commitments. You want to hire someone who is not already over burdened with other commitments to ensure accessibility. Also ask about costs, billing schedules, and previous experience as an expert in similar matters. Additionally, although not dispositive on the ultimate issue of admissibility, ask if the expert has ever had his/her opinions excluded by a court.
- Now that You Know Who— What’s Next?
Once you have located and retained an expert, you need to provide the expert with information on which to base his/her opinions. That information is going to come from the discovery and other evidence gathering you have done.
Talk to the expert and see what type of information he/she typically relies on to render opinions. 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. Additionally, as evidence comes in over the course of litigation, make sure you continue to provide it to your expert.
- Identifying Potential Parties
Experts can also be useful for identifying potential parties. 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. That may include an independent cleaning company, and you may find through discovery the independent cleaning company has some culpability in the fall.
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. 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’s insurance policy.
III. Recent Case Law
In Bartosh v. Gulf Health Care Center-Galveston, 178 S.W.3d 434, 438 (Tex. App.—Houston [14th Dist.] 2005, no pet.), a nursing home resident suffered dozens of fire ant bites on her legs and later died. The court upheld the trial court’s exclusion of Bartosh’s expert testimony because she did not establish that her expert’s testimony was based on a reliable foundation. 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.
In Goss v. Kellogg Brown & Root Inc., 232 S.W.3d 816, 818 (Tex. App.—Houston [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. The workers offered expert testimony that a larger pressure relief valve would have prevented the explosion. 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. The court explained that the facts of the case did not present the same circumstances as the expert’s testimony because the pressure relief valve on the tank had been deliberately blocked by a closed block valve downstream.
In Marathon Corp. v. Pitzner, 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. He had apparently fallen from the roof, but had no memory of the incident. The court held expert testimony was not supported by evidence where experts “postulate[d]” that the repair man was electrocuted, stumbled backwards over a gas pipeline, and fell from the roof. It explained that expert opinions must be supported by facts in evidence and not conjecture. 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’s injuries.
In Star Enterprise v. Marze, 61 S.W.3d 449 (Tex. App.—San 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. 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’s testimony was speculative and scientifically unreliable.
In Ibarra v. National Const. Rentals, Inc., 199 S.W.3d 32, 34 (Tex. App.—San 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. The court held expert testimony was insufficient to show that a failure to place sandbags to anchor the fence caused Ibarra’s injuries. 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. Accordingly, the court concluded his testimony created mere surmise and suspicion.
In Burns v. Baylor Health Care System, 125 S.W.3d 589, 592 (Tex. App.—El 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. The defendant moved to exclude Burns’ expert on several grounds, including qualifications, relevance, helpfulness to the jury, and reliability. The trial court granted the motion, and the appellate court reversed. It held the expert’s 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’s 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. The expert’s 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 – all of which provided depth or precision to the trier of fact’s understanding of a relevant issue in the case.
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. It found that the expert sufficiently demonstrated that his opinions were reliable. The court specifically noted that it was not for the trial court to determine whether the expert’s conclusions were correct, but only whether the analysis used to reach them was reliable.
In Grieve v. Red Roof Inns, Inc., No. 13-99-660-CV, 2001 WL 1003312 at *1 (Tex. App.—Corpus Christi August 31, 2001, pet. denied), a motel guest fell when she tripped over a step in the parking lot. The court found that the expert’s training, background, and specialized knowledge made him qualified to give testimony regarding the step’s height, compliance with building code, whether it was unsafe, and what alternate designs might have made the step safer. 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’s fair housing ordinance to bring it into compliance with handicap access standards.
It further held the expert’s testimony was on matters that would be helpful to a jury because there were not within the average juror’s common knowledge. 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. Likewise, the court held the expert’s testimony met the Robinson reliability test. Specifically, the expert’s 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.
- Showing Knowledge
In City of Dallas v. Thompson, 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. 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. 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’s fall. 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.
In Akin v. Brookshire Grocery Co., No. 05-99-01067-CV, 2001 WL 88194 at *1 (Tex. App.—Dallas 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’s deli. 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. The court explained that the expert’s 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.
- Showing Proximate Cause
In Price v. Ford, 104 S.W.3d 331 (Tex. App.—Dallas 2003, pet. denied), a nightclub patron was assaulted by other nightclub patrons. The court of appeals found the expert’s testimony that security guards inside the nightclub should have responded more quickly was not legally sufficient to prove proximate causation. 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.
In Reliable Consultants, Inc. v. Jaquez, 25 S.W.3d 336 (Tex. App.—Austin 2000, pet. denied), a woman brought suit after falling at the defendant’s store. Her expert testified the step at issue presented a “trip and fall hazard.” 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.
- Security and Criminal Acts of Third arties
In Rivera v. South Green Ltd. Partnership, 208 S.W.3d 12, 15 (Tex. App.—Houston [14th Dist.] 2006, pet. denied), an employee was robbed and assaulted when an unknown man came into her office. The court sustained Rivera’s issue that the trial court erred in granting a motion for summary judgment on the duty element of the negligence claim. 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.
In Gonzales v. Mobil Oil Corp., No. 05-98-01772-CV, 2001 WL 722564 at *1 (Tex. App.—Dallas June 28, 2001, no pet.), a man was shot while getting gas at the Mobil gas station. 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. 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.
In Del Lago Partners, Inc. v. Smith, 206 S.W.3d 146 (Tex. App.—Waco 2006, review granted), a resort guest was injured in a bar brawl that broke out between a wedding party and Plaintiff’s fraternity at the resort’s bar. The court held the expert’s 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. The court explained that other witnesses’ 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’s opinions that the bartenders’ failure to request security caused Smith’s injuries.
- Premises Liability Claims Against Hospitals and Nursing Homes
In Omaha Healthcare Center, L.L.C. v. Johnson, 246 S.W.3d 278 (Tex. App.—Texarkana 2008, pet. filed), the decedent’s estate brought suit against the nursing home she lived in after she died of a spider bite. The defendants argued the claim qualified as a health care liability claim which would require plaintiffs to file a Chapter 74 expert report. The court of appeals disagreed, holding the claims did not arise out of the nursing home’s care or treatment, but instead arose out of its departure from safety standards (namely, failing to eradicate spiders).
In Christus Health v. Beal, 240 S.W.3d 282 (Tex. App.—Houston [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. The court of appeals held the claim did note constitute a health care liability claim, and thus, no Chapter 74 expert report was necessary. 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.
In Valley Baptist Medical Center v. Stradley, 210 S.W.3d 770 (Tex. App.—Corpus Christi 2006, pet. denied), a retiree brought suit when the treadmill she was walking on unexpectedly accelerated and caused her to fall. The court noted: “[Stradley’s 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.” Id. at 775-76. It held the claims were premises liability claims not requiring a Chapter 74 expert report.
- Paths to Excluding Experts and Keeping your Own
The following are just some of the many arguments for excluding expert testimony in light of Daubert, Robinson, and the rules of evidence. These approaches, while helpful in getting unreliable testimony excluded, are important considerations for protecting your own experts from disqualification.
- Path One: Qualifications
An expert can be excluded based on his/her lack of qualifications in a specific field. As recognized by Daubert and its progeny, qualification is no longer the trial court’s only primary focus. However, it is still a critical piece of the whole. The following cases explain the importance of locating the right expert for the issues in your case.
Under the common law approach, a witness’ testimony was limited to facts of which the witness had first-hand knowledge and cannot be based solely on hearsay. McMillan v. State, 754 S.W.2d 422, 425 (Tex.App.—Eastland 1988, writ ref’d) (holding that a lay witness could not testify to the weight of a diamond that she herself had never weighed). The reason for this rule is to ensure that the witness has the requisite personal knowledge and is not relying upon hearsay.