Discovery of Expert Witnesses

1. QUALIFICATIONS, PRESENTATION AND CHALLENGES TO EXPERT TESTIMONY DAUBERT (i.e. is a DFPS caseworker an expert)  8TH ANNUAL: ADJUSTING THE BAR: THE DEFINITIVE AD LITEM SEMINAR IN DFPS CASES MAY 12, 2018 THEODORE B. JEREB ATTORNEY AT LAW P.L.L.C. 16506 FM 529, Suite 115 Houston, Texas 77095 Tel: (832) 721-4110 Fax: (832) 553-3263 Email: jereblawfirm@gmail.com

2. Discovery of Expert Witnesses • Can only use T.R.C.P. 194 Request for Disclosure to discover the identity of a party’s experts, subject matter of testimony, and general substance of expert’s mental impressions and opinions. • No objection or assertion of attorney work product privilege permitted by responding party. • Rule 194 request applies to: • Testifying experts; and • Non-testifying experts whose mental impressions and opinions have reviewed by a testifying expert.

3. Scope of Discovery for Retained/Employed Experts If the expert is retained or employed by, or otherwise subject to the control of, the responding party,the following must be produced: 1. all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert’s testimony; and 2. the expert’s current resume and bibliography.

4. Examples ofretained/employed experts • Child’s therapist • Parent’s therapist • Psychologist performing parent’s evaluation • Psychiatrist performing parent’s evaluation • Drug assessment personnel • Drug testing personnel • Children’s Crisis Care Center (4Cs)’s clinician • Children’s Crisis Care Center (4Cs)’s supervisor

5. Non-retained/non-employed Experts If the expert is not retained or employed by, or otherwise subject to the control of, the responding party, the responding party must provide documents reflecting the general substance of the expert’s mental impressions and opinions and a brief summary of the basis for the mental impressions and opinions. Examples: Child’s treating physician Parent’s treating psychiatrist

6. Discovery of Testifying Experts • T.R.C.P. 195requires party seeking affirmative relief, e.g. TDFPS, to designate experts by later of 30 days after request is served or 90 days before end of discovery period. • Discovery period for cases filed under Texas Family Code ends 30 days prior to the trial date. • Testifying expert must be made available for oral deposition with different deadlines depending on whether written report is produced. • Court may order expert to reduce opinions, etc. to writing.

7. Practice Tips for Parent’s Counsel For counsel representing a parent: • Prepare & e-file Answer & Certificate of Written Discovery; e-serve if email address of party’s attorney to be served is on file with electronic filing manager. • Prepare Request for Disclosure/Request for Production. • Serve RFD/RFP on all counsel per T.R.C.P. 21a (email, fax, regular US mail or hand delivery). • Docket date for TDFPS’ response (30 days from date of service except 33 days if service by mail). • Grant reasonable request for extension of response date. • Send reminder letter if response becomes overdue. • File motion to compel and set hearing, if needed.

8. Texas Rule of Evidence 702 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.

9. Conflict in the Courts of Appeal • Texas Rule of Evidence 702 (formerly Texas Rule of Civil Evidence 702) was adopted in 1983. • After Rule 702 was adopted, the Texas Courts of Appeal differed on the standard of admissibility of expert witness testimony: • Trial court only to assess expert witness’ qualifications; or; • Trial court to decide if underlying science is sufficiently reliable to assist the trier of fact.

10. Kelly v. State • 1992 Texas Criminal Court of Appeals case involving DNA evidence. • Held novel scientific evidence must satisfy 3 part test: • Underlying scientific theory must be valid; • Technique applying the theory must be valid; and • Technique must be properly applied on the occasion in question.

11. Daubert v.Merrill Dow Pharmaceuticals • 1993 United States Supreme Court decision involving an allegedly defective prescription drug. • Held that Federal Rule of Evidence 702 (identical to Texas Rule of Evidence 702) required scientific expert testimony to be reliable and relevant in order to be admissible. • Trial court, when scientific expert testimony was proffered, to determine as a preliminary matter whether the expert was proposing to testify to 1) scientific knowledge that 2) will assist the trier of fact to understand or determine a fact in issue.

12. Daubert preliminary determination • Under Daubert, as a pretrial matter the trial court must first assess: • Whether the reasoning or methodology underlying the proffered testimony is scientifically valid, i.e. reliable, and • Whether the reasoning or methodology can be properly applied to the facts in issue, i.e. relevant.

13. Daubert factors for reliability test • Whether a theory or technique is scientific knowledge that can be (and has been) tested; • Whether the theory or technique has been subjected to peer review and publication; • The known or potential rate of error for a particular scientific technique; and • Whether the theory or technique has been generally accepted by the scientific community.

14. E.I. du Pont de Nemours & Co. v. Robinson • 1995 Texas Supreme Court decision involving a products liability claim (fungicide). • Texas Supreme Court persuaded by reasoning in Kelly and Daubert. • Held that proponent must show 1) expert is qualified and 2) expert’s testimony is relevant to issues in case and is based upon a reliable foundation. • Trial court is responsible for preliminary determination of whether these standards are met.

15. Threshold Factors to Determine Admissibility • Non-exclusive list of factors for trial court to consider: • Extent to which theory has been or can be tested; • Extent to which techniques relies upon subjective interpretation; • Whether theory has been subjected to peer review and/or publication; • Technique’s potential rate of error; • Whether underlying theory or technique has been generally accepted as valid by relevant scientific community; and • Non-judicial uses made of the theory or techniques.

16. Nenno v. State • 1998 Texas Court of Criminal Appeals case involving the defendant’s future dangerousness. • Applied Kelly analysis to non-scientific expert testimony. • Four Daubert factors do not apply to clinical medicine aka “soft” science. • Appropriate questions are: • Whether the field of expertise is legitimate; • Whether the subject matter of the expert’s testimony is within the scope of the field; and • Whether the expert’s testimony properly relies upon and/or utilizes the principles in the field.

17. Texas Rule of Evidence 703 The facts or data upon which expert bases an opinion or an inference may be reviewed or made known to the expert at or before trial. If the facts or data are the type which experts reasonably rely upon in forming opinions or inferences on the subject, the facts or data do not need to be admissible in evidence. “[I]n many instances experts may rely on inadmissible hearsay, privileged communications, and other information that the ordinary witness may not.” In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 440 (Tex. 2007).

18. Texas Rule of Evidence 704 Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. “[E]xpert may state an opinion on a mixed question of law and fact as long as the opinion is confined to the relevant issues and is based on proper legal concepts” Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 361, 365 (Tex. 1997).

19. Texas Rule of Evidence 704 But see Dickerson v. DeBarbieris, 964 S.W.2d 680, 690 (Tex. App.-Houston [14th Dist.] 1998, no writ). “Expert cannot state opinion or conclusion on pure question of law.”

20. Texas Rule of Evidence 705 (a) Disclosure of Facts or Data Expert may testify without prior disclosure of underlying facts or data, unless court orders otherwise. Expert may disclose on direct examination, or be required to disclose, on cross-examination, the underlying facts or data. Practice Tip: Do pretrial discovery regarding underlying facts and data for experts. Get pretrial court order requiring disclosure of facts and data underlying expert’s opinions.

21. Texas Rule of Evidence 705 (b) Voir Dire Prior to expert giving opinion or disclosing underlying facts or data, a party against whom the opinion is offered may, in a civil case, be permitted to conduct a voir dire examination directed to the underlying facts or data for the expert’s opinion. For a jury case, the voir dire examination is conducted outside the presence of the jury.

22. Texas Rule of Evidence 705 (c) Admissibility of Opinion If the court determines that the underlying facts or data do not provide a sufficient basis for the expert’s opinion under Rule 702 or 703, the opinion is inadmissible. Practice Tip: If not previously disclosed, cross-examine opposing party’s expert on underlying facts/data and move to strike expert’s testimony if insufficient basis for opinion. “[M]otion to strike expert testimony after such cross-examination is timely.” Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 252 (Tex. 2004).

23. Texas Rule of Evidence 705 (d) Balancing Test: Limiting Instructions If the underlying facts or data are inadmissible, the court shall exclude them if the danger of their use for purpose other than as explanation or support for the expert’s opinion outweighs their value as explanation/support or are unfairly prejudicial. If otherwise inadmissible facts or data are disclosed to a jury, a limiting instruction by the court shall be given upon request.

24. Typical TDFPS Response to a Rule 194 Request for Disclosure will name as experts: • TDFPS investigative case worker and supervisor; • TDFPS conservatorship case worker and supervisor; • TDFPS FBSS case worker and supervisor, if any; • Children’s Crisis Care Center clinician and supervisor; • Child’s and parent’s therapists; • Parent’s psychological evaluator; • Parent’s psychiatric evaluator; • Parent’s drug assessment personnel; • Parent’s drug testing personnel; and • Child’s and parent’s treating physicians.

25. Typical TDFPS Response to a Rule 194 Request for Disclosure will identify the subject matter of expert testimony as: • TDFPS’ Previous Response to RFD 194.2(f) • “The best interests of the child subject of this suit; the facts, history and background of the case; the behaviors and needs of the child; Respondent’s involvement with the child, services offered to Respondent.”

26. TDFPS’s Current Response to RFD 194.2(f) • “Results & recommendations of assessments/evaluations • based on behaviors of children and/or parents while • completing assessments/evaluations; also based on facts, • medical and mental history of children and/or parents; • based on history & background of case; and needs of • children and/or parents.” • “Children and/or parents’ progress or lack thereof in • counseling and other recommended and/or court-ordered • services, based on behaviors of children and/or parents • while completing counseling and other services.”

27. TDFPS’s Current Response to RFD 194.2(f) • “Best interests of child(ren) based on: • facts, history & background of case; • children and/or parents’ participation and progress in all • other recommended and/or court-ordered services and • assessments/evaluations; and • behaviors and needs of child(ren).”

28. Practice Tips for Parent’s Counsel • To challenge TDFPS’ designation of expert witnesses: • Prepare Written Notice of Objection and Request for “Gatekeeper” Hearing. • Obtain hearing date and ask trial judge to sign order. • E-file Written Notice of Objection/Request for Hearing and serve all parties with at least 3 days notice. • Subpoena records from TDFPS’ experts if not produced. • Contact TDFPS counsel regarding which experts will actually be called to testify at trial. • Cross-examine TDFPS’ experts at hearing using threshold factors listed above. • Use hearing to limit scope of expert’s testimony.

29. Texas Family Code Section 262.014 • Prior to adversary hearing, parent’s attorney may request: • Name of any person, except TDFPS employee, whom TDFPS counsel may call to testify at adversary hearing; • Copy of any offense report relating to allegations in petition which may be used to refresh witness’s memory; and • Copy of any photograph, video, or recording that will be presented as evidence. Effective September 1, 2017.