Litigation Alert: “Make Sure Your Expert Addresses Alternative Causes, or You May Get a Terrible Post-Trial Surprise”
Testimony from a well credentialed expert played a key role for the winning side in a jury trial. Indeed, the opposition did not even object to the admissibility of this key expert’s testimony.
The winning side might think that the jury verdict has no chance of being overturned for insufficient evidence. After all, appellate courts are to view the evidence in the light most favorable to the verdict, considering only evidence in support and disregarding contrary evidence. Also, objections not made are waived.
Appellate opinions tell the story of many disappointed parties in very similar circumstances. Verdicts based on expert testimony are an exception to the general rule of disregarding contrary evidence. When a losing party claims that the record lacks legally sufficient evidence to support a jury finding based on expert testimony, appellate courts must consider evidence that may show that the expert testimony was incompetent or unreliable, even if that evidence came from the opposing expert or was otherwise “contrary.” Moreover, a party need not have objected to the admission of expert testimony to later claim that the testimony is legally insufficient to sustain the jury finding.
One way in which courts apply this legal sufficiency analysis is in determining if expert testimony adequately ruled out alternative causes. For example, an opposing expert could testify that the injury or damages claimed by the plaintiff could have been caused by factors not addressed by the plaintiff’s expert. That contrary testimony, apparently given no weight by the jury, would be examined on appeal. If the appellate court determines that the alternative cause testimony from the defense witness was sufficient to require the plaintiff’s expert to explain why those potential causes did not apply in this case, the plaintiff will need to identify the evidence where the plaintiff’s expert ruled out these alternatives. If the plaintiff’s expert did not rule out these alternatives, the appellate court can, and generally will, reverse and render judgment for the defense on this issue. The appellate court can do this even with no objection at trial to the plaintiff’s expert’s testimony.
For example, in Houston Unlimited, Inc. v. Mel Acres Ranch, the Texas Supreme Court reversed and rendered for the defendant, in part due to the plaintiff’s expert’s failure to rule out alternative causes. For a copy of the case click here.
In a more recent case, the Texas Fourteenth Court of Appeals also reversed, in part due to the experts’ failure to rule out alternative causes. However, in Galveston Central Appraisal District v. Valero Refining-Texas L.P., the court determined that Valero’s experts had provided at least some evidence of an equal and uniform value of its property that was less than the valuation asserted by the appraisal district, and the court remanded for new trial, rather than rendering judgment for the district. Although Valero’s apparent victory was reversed, the appellate court at least gave Valero a second chance. The plaintiff in Houston Unlimited was not so fortunate. For a copy of the Valero case click here.
If the evidence at trial raises possible alternative causes, the expert should address and rule out those alternatives, even if doing so was not needed for the testimony to be admissible. Otherwise, an apparent win can become a disappointing loss, post-trial.