The Texas Supreme Court issued another ruling last Friday (May 1, 2009) in City of San Antonio v. Pollock which allows the defense to attack on appeal the plaintiff’s expert’s opinions, even without a timely objection at trial.
In Pollock, plaintiffs lived near a city-run landfill. Their daughter contracted a serious leukemia with the acronym ALL. The plaintiffs alleged that, while the daughter was in utero, her mother was exposed landfill gases. The jury awarded a multimillion dollar verdict for the plaintiffs’ daughter based upon a finding that the city was negligent and grossly negligent, and a $29,000 verdict for property damages to the plaintiffs’ house based upon a finding that the landfill was a nuisance. The Supreme Court reversed and rendered judgment for the city, primarily by holding that plaintiffs’ experts’ testimony was “conclusory or speculative,” and thus it provided no evidence, so no objection was required to preserve error.
The court cited Coastal Transportation Company v. Crown Central Petroleum Corporation:
“‘We therefore conclude that when a reliability challenge [to an expert] requires the court to evaluate the underlying methodology, technique, or foundational data used by the expert, an objection must be timely made so that the trial court has the opportunity to conduct this analysis. However, when the challenge is restricted to the face of the record – for example, when expert testimony is speculative or conclusory on its face – then a party may challenge the legal sufficiency of the evidence even in the absence of any objection to its admissibility.'” [Italics added.]
The court then went further: “But even when some basis is offered for an opinion, if that basis does not, on its face, support the opinion, the opinion is still conclusory.” So, when a “scientific opinion is admitted in evidence without objection, it may be considered probative evidence even if the basis for the opinion is unreliable. But if no basis for the opinion is offered, or the basis offered provides no support, the opinion is merely a conclusory statement and cannot be considered probative evidence, regardless of whether there is no objection.” [Italics added.]
Applying these principles, the court ruled that the opinion of the first of plaintiffs’ experts regarding exposure levels was a “naked conclusion” (he had based it on a nearby well drilled to monitor the gas), and that their doctor’s opinion that the gases could cause the disease was also “conclusory and cannot support liability” because there was a “large gap” between the exposure levels reported in medical literature and the concentration levels proposed by the plaintiffs’ first expert.
To add insult to injury, the court reversed the jury’s nuisance finding by holding that, even if the city were negligent, “there is no evidence that the City knew that [plaintiffs’] property was being damaged or that damage was a necessary consequence.” This, despite the fact that the city was aware of gas migrating from the landfill over many years and taking various “steps to prevent damage.”