No Science Allowed: Civil Courts Block Expert Testimony More Often Than Criminal Courts

Michael Howell
Texas Lawyer
09-12-2005


In most toxic-tort cases with potentially high damages, one or both sides will challenge the admissibility of the other side's expert witness testimony on reliability grounds. However, all courts and burdens of proof are not created equal. While it may seem counterintuitive, my review of Texas case law reveals that it's harder to get scientific evidence admitted in civil court than it is in criminal court. Lawyers in toxic-tort cases in the civil court system need to be aware of this fact, so they can prepare and develop an effective strategy to maximize the likelihood that the court will admit their expert testimony.

For plaintiffs to prevail in a civil suit, the burden of proof is the more-likely-than-not standard. In a criminal case, the proponent of expert testimony must show by the clear-and-convincing standard that the testimony is reliable. The higher standard of proof in a criminal case might lead lawyers to think that it's harder to introduce scientific evidence in criminal trials than in civil trials.

Texas Rule of Evidence 702 governs the reliability of expert testimony in civil and criminal cases. It 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."

Before the early 1990s, in civil and criminal cases, courts analyzed expert witness testimony's admissibility under the general-acceptance test enunciated in the D.C. U.S. Circuit Court of Appeals' opinion Frye v. United States (1923). In Frye, the D.C. Circuit held that the scientific basis for expert testimony must be "sufficiently established to have gained general acceptance in the particular field in which it belongs."

The Texas Court of Criminal Appeals disavowed Frye in Kelly v. State (1992) indicating that Texas Rule of Evidence 702 was the governing standard. The Texas Supreme Court likewise found that Rule 702 trumps the Frye standard in E.I. du Pont de Nemours & Co. v. Robinson (1995).

According to my research, the Texas Supreme Court has delivered five opinions in which the admissibility of scientific evidence was dispositive, while the Court of Criminal Appeals has delivered six opinions on the subject. Taking a look at their decisions, plus those of the intermediate courts of appeals, shows that toxic-tort lawyers trying civil cases face a more difficult battle when they try to introduce expert testimony than their colleagues in the criminal bar do.

Texas Supreme Court

The Supreme Court has ruled on only two cases in which the trial court admitted the expert testimony.

In 1999's Mireles v. Texas Department of Public Safety, the Supreme Court affirmed the trial court's admissibility ruling. The trial judge had permitted DPS expert testimony regarding a breath test in a license revocation case. The court held that the expert did not need to know how to extrapolate the results from the time of the test back to the time Albert Mireles Jr. was actually driving for the testing to be admissible.

Merrell Dow Pharmaceuticals Inc. v. Havner, et al., decided in 1997, is the only other case reviewed by the Supreme Court in which the trial court initially admitted expert testimony. The Supreme Court ultimately ruled that the Havner family's expert opinions were not admissible due to a lack of peer-reviewed epidemiological data linking Bendectin to specific birth defects.

The Texas Supreme Court has reviewed three cases in which the trial court struck the experts' opinions as unreliable, Gammill v. Jack Williams Chevrolet Inc., et al. (1998); GTE Southwest Inc. v. Bruce, et al. (1999); and Robinson. The Supreme Court upheld the trial court's decisions in all three cases.

Texas Court of Criminal Appeals

Of the five cases reviewed by the Texas Court of Criminal Appeals in which the trial courts admitted the experts' testimony, the judges reversed only one: Hernandez v. State (2003). In Hernandez, the trial court admitted evidence against Arturo Chavez Hernandez from an ADx analyzer, which the state contended was evidence of Chavez's use of marijuana in violation of his probation terms. The CCA reversed the trial court's ruling, agreeing with Corpus Christi's 13th Court of Appeals that the trial court had abused its discretion, because the state failed to submit any evidence of the machine's reliability. Interestingly, the CCA noted that the 13th Court had previously stricken the ADx machine as unreliable in an unpublished opinion in a different case, also involving Chavez.

The Court of Criminal Appeals has affirmed the only case it has reviewed in which the trial court excluded expert testimony on reliability grounds. The CCA held in 2000's Weatherred v. State that the trial court did not abuse its discretion by excluding a psychologist attempting to testify on the unreliability of eyewitness identification, primarily because "he failed to produce or even name any of the studies, researchers or writings [evidencing he was an expert in the field]."

Intermediate Courts

The intermediate courts of appeals have reviewed a total of 62 cases in which the trial court decided the admissibility of scientific evidence. Of those, 21 (34 percent) were civil cases and 31 (66 percent) were criminal cases. There is a striking difference between the appellate courts' reversal rates in civil and criminal cases.

For civil cases, 14 involved the trial court admitting the expert testimony. Of these, the appeals courts affirmed 10 cases (71 percent) and reversed four cases (29 percent). Trial courts excluded expert testimony in seven cases decided by the appellate courts. In a total of four cases (57 percent), the courts of appeals affirmed the trial court, while in three cases (43 percent), the courts of appeals reversed the trial court.

In the criminal cases, 28 of the 31 (90 percent) involved cases where the trial court admitted the expert testimony. Of those, the appellate courts affirmed 27 cases (93 percent) while reversing only one (7 percent). A total of three cases involved the trial court excluding expert testimony. All three were affirmed (100 percent).

These figures are somewhat similar to decisions reached in federal court cases. According to a leading admissibility Web site, www.Daubertontheweb.com, 88.4 percent of cases are affirmed in the federal court system when the trial court admits expert testimony. When federal trial courts exclude expert testimony, the courts affirm those decisions 84.8 percent of the time.

What is clear is that, although the admissibility standard for scientific evidence is theoretically higher in criminal cases, it is much harder to have expert testimony admitted in civil court � 67 percent of civil appeals showed the trial court admitted the expert testimony versus 90 percent admitted by the trial court in criminal cases. It is also much more likely on appeal that experts' opinions will be held invalid: 38 percent in civil cases versus only 13 percent in criminal cases.

Michael Howell is an associate with Reich & Binstock in Houston. He represents plaintiffs nationwide in personal injury and property damage toxic-tort cases. He is also a licensed professional geologist and was a hydrogeologist with several environmental consulting firms for more than eight years before becoming an attorney. He would like to thank Ashli Ayer for her research assistance.

It means that, compared to prosecutors, plaintiff's attorneys are more likely to offer bogus "scientific" testimony to support frivolous cases that should have never been filed.

That's kind of what I was thinking. However, the use of psychiatric evidence by criminal defense attorneys certainly approaches that same sort of creativity. I just think that prosecutors are more reluctant to challenge it before the judge. They trust the jury to use their common sense and reject it.

Despite the fact that the civil attorney looks down his nose at the criminal prosecutor, the prosecutor is the better judge of his case.