Leveling the playing field In re H.E.B., 492 S.W.3d 300
(Tex. 2016). SUPPLEMENTATION AND REFINEMENTS
New opinions v. refinements of existing opinions Federal v. State
Expert must timely supplement deposition testimony. Failure to timely supplement can result in automatic sanctions under Tex. R. Civ. P. 193.6 Death Penalty Sanctions
Disfavored, but available. SCOPE OF DISCOVERY
TEX. R. CIV. P. 192.3 Opinions and the factual data provided to or considered by a testifying expert or consulting plus expert are discoverable.
Opinions of a consulting only expert are not discoverable. Are facts known by a consulting only expert discoverable?
Yes and no. Controversial Seems to depend on whether the facts are obtained as part of a protected investigation. In re Energy Transfer Partners, L.P., Not Reported in S.W.3d,
2009 WL 1028056 (Tex. App.-Tyler 2009) In re Fast-Trak Const., Inc., 307 S.W.3d 526 (Tex. App.-Dallas, 2010). In re Jourdanton Hospital Corporation,
Not Reported in S.W.3d, 2014 WL 3745447 (Tex. App. San Antonio 2014) Designating risk manager as testifying expert. There is a distinction between a report prepared in anticipation of litigation and one provided to or prepared by or for an expert in anticipation of trial or
deposition testimony. [citations omitted] A report provided to an expert for the purpose of preparing the witness to provide expert opinion testimony is discoverable, while one provided solely for the purpose of evaluating potential claims in anticipation of possible future litigation is not.
BIAS In re Ford, 427 S.W. 3d 396 (Tex. 2014)
Reports from other litigation Drafts of the report
MOTIONS FOR PROTECTION In re Garza, 544 S.W.3d 836
(Tex. 2018) In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 445 (Tex. 2007, orig. proceeding) work product was not protected if provided to or reviewed by a
testifying expert. COMPARE In re Jourdanton Hospital Corporation, Not Reported in S.W.3d, 2014 WL 3745447 (Tex. App. San Antonio 2014)
While the work product exemption may be waived, courts have found that the attorney/client privilege is not waived. In re Segner,
441 S.W.3d 409 (Tex. App. Dallas 2013) UPDATE In re City of Dickinson
2019 WL 638555 (Tex. 2019) In-house expert. Attorney/client privilege not waived. RESPONSIBLE THIRD
PARTY PRACTICE ExxonMobil Corporation v. Pagayon, 467 S.W.3d 36, 51-53 (Tex. App. Houston [14th Dist.] 2015) revd on other grounds,
Pagayon v. ExxonMobil Corporation, 536 S.W.3d 499 (Tex. 2017) Emergency room physician may be designated for violation of standard of care, but still must be qualified, reliable expert testimony of a violation of the standard of care and causation to
sustain the designation for trial. DE-DESIGNATION AND CROSS DESIGNATION
No bargains to suppress evidence De-designation not available if other testifying experts have reviewed or relied upon the testifying experts opinions prior to that expert being de-designated.
Daubert/Robinson No Conclusory Opinions Testimony Must Be Relevant And Reliable No Analytical Gap
Reliable Methodology Bases Of Opinion Must Be Reliable Non-exclusive Factors - Flexibility Non-scientific Experience May Be Sufficient Testimony Must Be Based On Reasonable Probability
Rule Out Other Likely Causes Or Factors Application of Daubert/Robinson
All experts Treating physicians
Defendant physicians? Learned Treatises Is a conclusory acknowledgement that an article is a learned treatise really enough?
Diagnoses and prognoses in medical records Differential diagnosis is an accepted methodology, provided general causation is established. Must demonstrate differential diagnosis methodology. Just saying I used a differential diagnosis may not cut it.
TRIAL Basic Guidelines One Party May Designate and Call Another Partys Expert
An Expert May Rely On But Cannot Quote Inadmissible Evidence An Experts Report Is Not Admissible, At Least Regarding Opinions [Schedules and Charts] An Expert May Not Testify About Credibility Of Other
Witnesses An Expert May Be Impeached By Prior Testimony and Finances A Court Has Discretion To Limit Cumulative Expert Witnesses On A Topic or Issue
UPDATE Windrum v. Kareh, M.D. 2019 WL 321925
(Tex. 2019) Although the bases for Dr. Parrish's testimony could have been better, we hold that Dr. Parrish's testimony as to the standard of care and Dr. Kareh's breach of that standard of care did not simply state a conclusion without any explanation or ask the jurors to take
[his] word for it and therefore was not conclusory.
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