Hernandez v. Ayala involved a dispute about the value of a “barndominium“–basically, a barn that you can live in–and turned on the “property owner” rule about testimony as to value:

Ayala provided no basis for his valuations of the property. He did not testify that he was familiar with the market value of the partnership property or otherwise explain how he determined the value of each item, except for his testimony that an appraiser told him the barndominium was worth $120,000.

No. 05-23-00549-CV (June 18, 2024).

Among other expert-testimony issues in Smith v. Nexion Health, the Fifth Court reminded about the importance of excluding alternative causes:

There also was some evidence of other plausible causes of Smith’s death, and Dr. Gupta made no attempt to exclude those causes with reasonable certainty.  Smith’s attending physician at the hospital, in addition to attributing her death to cardiac arrest, made diagnoses of unspecified dementia without behavioral disturbance, essential hypertension, hypotension, hypolipidemia, unspecified, anemia, unspecified, and a personal history of TIA. Irwin Korngut, M.D., an expert witness designated by appellees, testified that the emergency physicians found no evidence to suggest that Smith was septic at the time of her death and did not list sepsis as a diagnosis. Dr. Korngut further testified that Smith’s anemia, her known coronary disease, or internal bleeding could have caused cardiac arrest.

No. 05-22-01140-CV (Aug. 11, 2023) (mem. op.) (citations omitted).

A medical records prove-up affidavit in McGee v. Tatum said the following:
But that statement was insufficient to establish causation: “[N]othing in the record shows that Cruz is a medical professional or that she was testifying as an expert medical professional. Furthermore, Cruz’s statement is nothing more that a ‘bare proclamation that this one event caused another and is not enough to establish causation.’” No. 05-21-00303-CV (Nov. 28, 2022) (mem. op.).

In an echo of Toyota Motor Sales v. Reavis, 627 S.W.3d 713 (Tex. App.–Dallas 2021, pet. filed), the Fifth Court found that the plaintiff’s expert testimony in a significant car-accident case was sufficient to create legitimate jury issues on the topics of (1) “human factors” testimony about design defect, (2) a mechanical engineer’s testimony about a safer alternative design, and (3) proximate cause. American Honda Motor Co. v. Milburn, No. 05-19-00850-CV (Nov. 24, 2021) (mem. op.).

Among other issues in Barcus v. Scharbauer, the Fifth Court affirmed the appellee’s testimony about the fair market value of certain artwork: “Appellants challenge the legal sufficiency of proof of commercially reasonableness of sales as proving market value and proving market value at a time over a year before the sales. … However, appellants do not dispute Mohle’s testimony that the sales were commercially reasonable or point to any evidence in the record that the sales were ‘out of the ordinary in some way.’ … A reasonable factfinder could decide Mohle’s testimony about the reasonably commercial sales conformed to the legal definition and theory of fair market value established by willing sellers and buyers under no compulsion.  A reasonable factfinder could credit Mohle’s testimony regarding the sufficient stability of the art market to conclude the sales in 2018 established fair market value a little more than a year earlier in 2016.”  No. 05-19-01121-CV (April 15, 2021) (mem. op.) (citations omitted). (My LPHS colleagues Eric Pinker and Paulette Miniter represented the successful appellee in this case.)

A late discovery supplementation may be allowed if the party shows good cause and a lack of unfair surprise. The Fifth Court reversed a trial court ruling about an expert supplementation when, inter alia: “The record shows (1) Mr. Longeway’s report was based almost entirely on his inspection of the job site’s deactivated electrical lines and (2) the lines’ deactivation could be performed only by the electric delivery company and was not completed until November 30, 2018. Appellants received Mr. Longeway’s report on January 11, 2019, and filed their motion for reconsideration and new trial, with that report attached, several days later. Weekley’s response to the attempted late designation focused only on [another expert’s] report and did not specifically address good cause or unfair surprise or prejudice as to Mr. Longeway.” Paniagua v. Weekley Homes, No. 05-19-00439-CV (Jan. 13, 2021).

The Fifth Court concluded that a fact issue was raised on the issue of a contractor’s actual exercise of control based on this evidence: “Leobardo Maravilla’s testimony that Mr. Holmes ‘will always demand to me to work a certain way,’ ‘didn’t allow me to freely do what I know how to work,’ required him to purchase new scaffolding, took him to the building supply store, directed him to buy the aluminum scaffolding his employees were using on the day of the accident, and told him to stay at the project site and continue working even though Mr. Holmes left due to weather conditions,” bolstered by an expert report stating that “while Leobardo Maravilla’s crew continued their work in the ongoing ‘thunderstorm,’ there were numerous lightning strikes in the area that likely energized the rebar in the wet concrete on which they were standing while holding onto the metal scaffolding, thus causing their injuries.”  Paniagua v. Weekley Homes, No. 05-19-00439-CV (Jan. 13, 2021) (mem. op.).

This is a crosspost from 600Hemphill, which follows business litigation in the Texas Supreme Court. 

The Texas Supreme Court recently summarized the sometimes-confusing law about preservation of objections an an expert’s testimony:

“Requiring an admissibility objection to the reliability of expert testimony gives the proponent a fair opportunity to cure any deficiencies and prevents trial and appeal by ambush. Thus, when an expert opinion ‘is admitted in evidence without objection, it may be considered probative evidence even if the basis of the opinion is unreliable.’ But conclusory or speculative opinion testimony is not relevant evidence because it does not make the existence of a material fact more or less probable. Evidence that lacks probative value will not support a jury finding even if admitted without objection. ‘Bare, baseless opinions will not support a judgment even if there is no objection to their admission in evidence.'”

Pike v. Texas EMC Management LLC, No. 17-0557 (June 19, 2020). While this quote eliminates the case citations in the original, the cited authorities provide further discussion of these principle and illustrate their applications in specific settings.

After a jury trial, Mumford was declared to be a sexually violent predator and then civilly committed. Dr. Turner, a psychologist, interviewed him and prepared a written report. The trial court struck, for procedural reasons, another expert who the State planned to call at trial, and then allowed the State to offer Dr. Turner’s written report in evidence. The Fifth Court reversed, finding that the report was prepared in anticipation of litigation (the commitment proceedings) and thus was not admissible as a business record. As to harm, it said: “Dr. Turner’s report was the only evidence that appellant ‘suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence.’ Without evidence to support that finding, the jury could not have found
appellant was a sexually violent predator.” In re Mumford, No. 05-19-00186-CV (March 31, 2020) (mem. op.)

In re Parks denied a mandamus petition arising from the striking of counteraffidavits, related to the reasonableness and necessity of certain medical expenses, filed pursuant to Chapter 18 of the Civil Practice and Remedies Code. Applying Fifth Court precedent, the Court drew an analogy to the striking of expert designations, which is not ordinarily addressed by mandamus review. A dissenting opinion argued that “our existing construction raises serious constitutional concerns related to the parties’ rights to a trial by jury, as well as their due process rights to a decision on the merits and to appellate review,” and would have considered the merits of the petition. No. 05-19-00375-CV (Feb. 18, 2020) (mem. op.)

The Mian Devel. Corp. v. State of Texas involved an epic “battle of the experts” arising from the condemnation of some parking for the Sterling Hotel, a large hotel complex on I-35 near downtown Dallas. The hotel’s owners offered experts calculating compensation of $13,600,101 or $19,100,000; the State offered experts calculating compensation at $1,027,927 or $764,970, and also called an expert who said the Sterling was an unviable business. The jury awarded damages of $1,186,350 and the owner appealed. The Fifth Court affirmed in a detailed review of these experts’ testimony, discussing, inter alia: (1) the line between unreliable methodology (admissibility) and material for cross-examination (weight) (pages 10-11); (2) the concept and legal definition of fair market value (page 13); (3) five evidentiary issues about objecting to discussion of material relied upon by an expert (pages 18-19); and (4) throughout, the accepted methodologies and data resources used in this area of law. No. 05-17-01385-CV (July 18, 2019) (mem. op.).

Ghidoni, the plaintiff in a legal-malpractice case involving the handling of a lawsuit about the noise caused by water wells, offered Anderson as an expert witness. Anderson was a trial lawyer of thirty years’ experience, but had not handled matters involving the specific water-law problem at issue in the underlying case. The Fifth Court affirmed the decision to exclude Anderson:

“By way of analogy, ‘there is no validity . . . to the notion that every licensed medical doctor should be automatically qualified to testify as an expert on every medical question.’ Extending this principle to the topic of legal malpractice, ‘that a person may be a licensed attorney . . . who holds years of experience in the practice of law, standing alone, will not qualify him or her to give an opinion on every conceivable legal question, including legal malpractice issues.” While the record in this case shows that Anderson has handled several malpractice cases as an attorney and has testified as an expert witness in two such cases, it contains no evidence about the particular issues that Anderson handled or addressed in these capacities. Nor did Ghidoni offer evidence regarding the specific water law issues that Anderson has handled. Absent such proof, we cannot say that the district court abused its discretion in excluding Anderson’s testimony.”

Ghidoni v. Skeins. No. 05-18-00355-CV (May 10, 2019) (mem. op.) (citations omitted).

An issue in the Texas Supreme Court’s analysis of Bombadier Aerospace v. SPEP Aircraft Holdings, No. 17-0578 (Feb. 1, 2019), was whether an appraisal expert’s testimony created a legally sufficient foundation for the damages awarded. The Court found that it was: “Fogg did not attach specific dollar figures or percentage deductions to each of these issues to show exactly how he arrived at his 10% deduction. Nor did he examine a specific comparable aircraft; rather he conducted a general market examination for Challenger 300s. Indulging every reasonable inference in support of the verdict, we conclude that although Fogg’s reasoning for his valuation could have been more substantive, he sufficiently linked his conclusions about the Challenger 300’s value to available facts about its issues and the marketplace.” 

Notably, the expert explained credibly why certain valuation techniques were not used:  “[F]inding comparable values in the marketplace tends to be difficult for aircraft, and Fogg explained that the depreciation in value of an aircraft is a ‘variable number.’ And finding comparable values for aircraft with certain damage or issues may be impossible. Fogg made it clear that this particular Challenger 300 had unique issues and that the lack of documentation of all of these issues made the value uncertain . . . We note that Fogg’s experience with aircraft alone may be a sufficient basis for his valuation, and coupled with the engines’ issues, we conclude that he provided sufficient bases for his valuation opinion.”

In the first opinion by Justice Osborne discussed by this blog, Porter complained that he should have been awarded attorneys’ fees in a successful DTPA claim, noting that his attorney’s invoice was admitted without objection. Unfortunately, though: “Porter bore the burden of proving reasonableness. Consequently, on appeal, the question is not  whether A-1 objected to Porter’s failure to offer evidence of reasonableness, but whether the evidence in the record is sufficient to support the trial court’s implied finding that Porter did not meet his burden of proof.” As Porter did not offer evidence on this point besides the invoice itself, the trial court’s ruling was affirmed. Porter v. A-1 Parts, No. 05-17-01468-CV (Jan. 14, 2019) (mem. op.)

In a civil commitment action under the Sexually Violent Predator Act, the appellant argued that the State’s expert was used as an impermissible “conduit” for unflattering factual information (inter alia, “records about appellant’s training and education, employment and medical histories, two prior sexual offenses, prison file, and a copy of the statutorily required MDT (Multi-Disciplinary Team) evaluation”). The Fifth Court rejected the argument, noting that the expert “was explaining the basis for his opinion using the type of information reasonably relied on by experts in his field (citation omitted),” and that “the trial court included a limiting instruction to further restrict the jury’s use of Turner’s opinion.” In re Commitment of Barnes, No. 05-17-00939-CV (July 20, 2018) (mem. op.)

Plaintiff alleged that his counsel’s negligence as to the handling of evidence about certain property appraisals led to an unfavorable settlement. The Fifth Court affirmed summary judgment for the defense, noting that the appraisals only became relevant if a particular ruling was made on a threshold legal issue, and the plaintiff’s expert affidavit “contained no analysis of the law or the facts relating to” whether “[P]laintiff would have prevailed on the payment issue at trial.” “Therefore a ‘fatal analytical gap’ in [the expert’s affidavit divide his recitation of the facts from his opinion of the ‘true value’ of the case, and we ‘are simply left to take his word’ that the settlement was excessive.”  Barnett v. Schiro, No. 05-16-00999-CV (Jan. 9, 2018) (mem. op.)

In the legal malpractice case of Ashton v. KoonsFuller, P.C., the Fifth Court affirmed a summary judgment for the defendant law firm. Among other issues addressed, the Court criticized the testimony of the plaintiff’s expert about the defendant’s billing, providing an illustration of the commonly-litigated Daubert/Robinson issue about whether an expert adequately considered alternatives to his or her conclusion: “[W]hile Hill disagrees with the amount of time KoonsFuller spent on discovery matters and preparing for mediation, the affidavit does not state how much time would have been reasonable. Similarly, Hill complains about the number of lawyers and legal assistants billing for those services, but does not suggest what an appropriate number would be.” No. 05-16-00130-CV (May 10, 2017) (mem. op.)

Continuing its skepticism of expert opinions about how third parties would act under hypothetical situations (see Experts, show your work or it isn’t summary judgment evidence), the Dallas Court of Appeals affirmed a directed verdict in favor of the defendant in Axess International, Inc. v. Baker Botts, LLP based on the legal insufficiency of causation evidence. In that case, the plaintiff alleged that if Baker Botts had disclosed that it was pursuing similar patents on behalf of a competitor as well as the plaintiff, the plaintiff would have obtained different counsel, resulting in more favorable business terms in a deal with the competitor when conflict over the competing patents later came to a head.

At issue was an expert opinion from a patent attorney offered to show causation. He opined that the plaintiff would have initiated an interference proceeding and would have expanded its patent claims if the conflict had been disclosed, and that the result would have been a more favorable resolution between the plaintiff and the competitor. While noting that whether those two steps would have been taken was not clear, the Dallas Court of Appeals focused instead on whether there was evidence that those two steps would have resulted in a more favorable deal between the plaintiff and the competitor. The Court noted that because the expert offered no evidence of a similar case that was resolved favorably, there was no basis for the expert opinion that the plaintiff would have prevailed in the interference proceeding (heard this one before?). As to the expanded patent claims, the court held that the expert offered no factual basis to support his opinion as to how the USPTO would have responded to the hypothetical patent applications, again focusing on the lack of evidence regarding similar cases. And the court suggested it would be layering speculation upon speculation to assume that the mere threat of an interference proceeding or expanded patent claims would have resulted in a more favorable deal for the plaintiff without an indication as to the result of either. Thus, there was insufficient proximate cause evidence against Baker Botts and the trial court was affirmed.

Lesson learned (again): anytime your expert is saying what someone else would have done under alternative circumstances, the expert should identify specific similar factual scenarios that were considered by that third party that had the desired outcome. Otherwise, the expert’s testimony may be no evidence at all.

Axess International, Inc. v. Baker Botts, LLP

In Starwood Management, LLC v. Swaim, the Dallas Court of Appeals affirmed a summary judgment in favor of the defendant by holding that the plaintiff’s evidence of causation, an opinion from their expert witness, was conclusory and therefore not admissible summary judgment evidence. The opinion is a reminder that expert opinion evidence on summary judgment must be more than mere conclusions.

The facts of the case arose from plaintiff hiring the defendants, an attorney and his law firm, to recover an aircraft that was seized by the DEA for an allegedly illegal registration. The defendants were late in filing a claim with the DEA’s Forfeiture Counsel to recover the aircraft, causing the plaintiff’s federal claim for the aircraft to be dismissed. The affidavit offered by the plaintiff as evidence of causation was that of an attorney who had successfully represented the plaintiff in five previous aircraft seizure cases. His opinion was that if the plaintiff had timely filed its claim with the DEA such that the federal lawsuit would not have been dismissed, the DEA would have returned the aircraft as it had in those prior five case. The district court excluded the opinion and granted summary judgment in favor of the defendants.

The Dallas Court of Appeals affirmed because it held the expert’s opinion of causation was conclusory. Inexcusably passing on an opportunity to use one of this blogger’s favorite Latin phrases, ipse dixit, the Dallas Court of Appeals instead described the legal standard in less colorful but ultimately more helpful terms. “To avoid being conclusory, ‘[t]he expert must explain the basis of his statements to link his conclusions to the facts.’ An expert must also ‘[e]xplain how and why the negligence caused the injury.’” Or as I was told in math class, the expert must show his work. This expert failed to do that because, although he had past experience in other aircraft seizure cases in which the outcome was positive, he failed to describe the facts of those cases. As a result, he failed to link those cases to the one at hand, rendering his causation opinion a mere conclusion.

Starwood Management v. Swaim

“Branch” Warren, a noted professional bodybuilder, tore a leg muscle when he slipped on a rainy ramp outside a TGI Friday’s restaurant.  He proffered expert testimony from an architect named Peter Combs who, after inspecting the ramp roughly three months after the accident, opined that it was unsafe.  The Fifth Court affirmed summary judgment for the defendant: “[A] fatal problem with the Combs affidavit is that Combs did not say what the ramp’s condition was when Warren fell. Combs did not say that the ramp was probably as slippery on August 20 (when Warren fell) as it was on December 4 (when Combs inspected the ramp). He did not say that the lapse of time and exposure to the elements made the ramp more slippery, less slippery, or had no effect on the ramp’s slipperiness. In short, Combs’s affidavit addressed the ramp’s condition only on the day he examined it.”  Warren v. Carlson Restaurants, No. 05-14-01232-CV (Dec. 30, 2015) (mem. op.)

Defendant won summary judgment, with a combination of no-evidence and traditional grounds, on fraudulent transfer claims.  Renate Nixdorf v. Midland Investors LLC, No. 05-14-01258-CV (Dec. 8, 2015) (mem. op.)  The Dallas Court of Appeals reversed, finding problems with what defensive matters were appropriately addressed by a no evidence summary judgment motion and what specific transactions were at issue, as well as proof of “reasonably equivalent value” that was conclusory.

Zive, the president of a partner in a real estate development venture, sought to testify about the value of the relevant property at various times, in the context of a dispute about the value received at a foreclosure sale.  The Court affirmed his exclusion, reminding that while “an owner is qualified to testify to property value,” the testimony must “meet the same requirements as any other opinion evidence.”  (quoting Natural Gas Pipeline Co. of America v. Justiss, 397 S.W.3d 150, 156, 159 (Tex. 2012)).  Here, although Zive relied upon an appraiser’s report, Zive “provided no substantiation for his opinion that the fair market value of the property would have increased by approximately $2 million by the 2011 foreclosure sale date,” and thus did not meet the standard.  Grapevine Diamond v. City Bank, No. 05-14-00260-CV (Nov. 10, 2015, mem. op.)

In this legal malpractice claim, the plaintiff argued that his expert opinion as to proximate causation were sufficient to establish that element of his claim.  But the Court of Appeals found that the plaintiff’s expert opinion had been excluded by the trial court as unreliable and the plaintiff did not assign error to that ruling in his appellate brief.

Kuzmin v. Schiller

For the second time this month, the Court of Appeals has decided that Oncor Electric Delivery Company was not responsible for causing a fire that damaged a plaintiff’s property. In this instance, Schepp’s Dairy alleged that Oncor’s negligence led to a fire starting with a transformer at Schepp’s facility. At trial, three different electrical engineering experts variously testified that the fire was caused on either Schepp’s side or Oncor’s side of the transformer. The jury specifically rejected the conclusions of two of those experts, leaving only one expert for Schepp’s. In a highly fact-specific opinion, the Court of Appeals held that the last expert’s opinion was unreliable. Among other problems, the witness had failed to exclude other possible causes of the fire, and he had only testified as to Oncor’s negligent maintenance of the transformer without opining as to what was the direct cause of the fire. Without that testimony, Schepp’s had no evidence of causation, and the judgment against Schepp’s was therefore reversed.

Oncor Elec. Deliv. Co. LLC v. So. Foods Gp. LLC, No. 05-12-01223-CV

In this legal malpractice case, the Court rejected the plaintiff’s expert opinion as based on invalid assumptions.  The expert opined that the value of sale of an interest in certain oil and gas wells would have been $960,000 greater in April 2008, when the interest should have sold but for a law firm’s malpractice.  Among other faulty assumptions, the Court noted that the expert wrongly assumed that (1) the later sale, in September 2008, was a simple asset sale, when, in fact, it involved a partial settlement of a lawsuit; (2) the projections of actual drilling costs, as opposed to actual results, were the proper measure of costs; and (3) that wells would have been drilled at a certain specified rate.

Thompson & Knight v. Patriot Exploration LLC

An April 2009 wildfire that damaged nearly 400 acres in Palo Pinto County led to a lawsuit in which a developer’s insurance company ultimately sought to pin the blame on Oncor Electric Company.  The insurance company’s theory of the fire was that an Oncor worker lit a cigarette and tossed it in some brush, igniting the blaze.  To support this theory, the insurance company found several expert fire reconstructionists who conducted tests and re-enactments and determined that the most likely cause of the fire was “the careless disposal of a cigarette” by the Oncor worker.

The trial court excluded the experts’ opinions, pointing to the fact that they did not have any “real experience” with wildfires and did not demonstrate a proper foundation to reach their conclusions.  On appeal, noting the deferential standard of review for the admission/exclusion of expert testimony, the Court of Appeals affirmed.

Club Vista Dev. II, Inc. v. Oncor Elec. Deliv. Co., LLC

In this breach of lease case, the appellant argued that the appellee’s damages expert opinion was unreliable and erroneous because it relied on a hypothetical market rent study.  During trial, appellant objected to the relevance of the of the market rent study, but the trial court did not rule on the objection.  The expert then testified in detail about each component of her calculation without objection from appellant about her methodology.  The Court of Appeals, however, found that because the appellant had “failed to object to the expert’s testimony on the basis of improper methodology before or during trial and obtain a ruling form the court,” appellant waived any error.

Transcontinental Realty v. Wicks

Last month, we noted an opinion that teased, but did not answer, an interesting question: Does Chapter 74 of the Civil Practice & Remedies Code require a plaintiff to produce an expert report for a breach of contract claim arising out of the provision of medical services? The Court of Appeals has now issued an amended opinion in that same case that addresses that very issue. While still holding that the defendant/counterclaimant had failed to preserve error by failing to make a proffer of the excluded evidence — namely, that his mother had been placed in a straitjacket despite the assisted-living facility’s contract stating that it was a “restraint-free community” — the revised opinion adds a new section on the expert report issue. The Court now concludes that even if the evidentiary issue had not been waived, the trial court still properly excluded that evidence because it was still a healthcare liability counterclaim that required the defendant to produce a Chapter 74 expert report. Since the defendant failed to do so, the trial court did not abuse its discretion in excluding evidence of the resident being placed in restraints.

Ferguson v. Plaza Health Servs. at Edgemere (amended opinion), No. 05-12-01399-CV

A memorandum opinion teases, but does not answer, an interesting question: Does Chapter 74 of the Civil Practice & Remedies Code require a plaintiff to produce an expert report for a breach of contract claim arising out of the provision of medical services? Margaret Miller’s son placed her in a “skilled nursing resident program” at Plaza Health Services and contractually agreed to be the “responsible party” for payment. Among other things, the contract provided that the facility was a “restraint-free community,” and that no restraints of any type would “be used as punishment or as a substitute for more effective medical nursing care or for the convenience of the community staff.” After the nursing facility sued for unpaid bills, he he counterclaimed for breach of contract, DTPA, and medical negligence claims. The negligence claims were dismissed due to the failure to file a medical expert report, and the trial court granted a motion in limine to exclude evidence of restraints or straitjackets used on Ms. Miller. Unfortunately, error was not preserved on that issue due to the lack of a proper proffer of the excluded evidence. The grant or denial of a motion in limine does not preserve error by itself. If the motion is granted, the losing party must, during trial, (1) approach the bench and ask for a ruling, (2) formally offer the excluded evidence, and (3) obtain a ruling on the offer. Here, the appellants argued about the relevance of the evidence, but never actually offered it or obtained a ruling during trial on its admissibility. Accordingly, error was not preserved, and judgment for the nursing facility was affirmed.

Ferguson v. Plaza Health Servs. at Edgemere, No. 05-12-01399

In 2010, the Court of Appeals reversed summary judgment in favor of the lender in a collateral-disposition case, holding that the borrowers had raised a fact question as to the commercial reasonableness of the property. DMC Valley Ranch, L.L.C. v. HPSC, Inc., 315 S.W.3d 898 (Tex. App.–Dallas 2010, no pet.). On remand, the lender took the position that the defendants’ valuation expert report was correct, and again moved for summary judgment on that basis (apparently seeking to recover a smaller deficiency rather than fighting for a larger one). The trial court granted summary judgment for the lender, and also awarded attorney fees via summary judgment. The Court of Appeals affirmed on the deficiency ruling, but reversed on attorney fees. The Court held that there was a fact issue on the reasonableness and necessity of the attorney fees because the defendants’ attorney had submitted an affidavit opining that it was unreasonable to seek fees for unsuccessful appeals and motions, and that it was not appropriate to have seven lawyers on the file. The case was therefore remanded for further proceedings on attorney fees.

DMC Valley Ranch LLC v. HPSC, Inc., No. 05-11-01730-CV

The Court of Appeals has granted mandamus in another discovery dispute. This time, it regards a trial court’s order for an expert witness to turn over all documents reflecting discussions with the plaintiff and its counsel, as well as all documents relating to the plaintiff’s claims and defenses. But the expert had also performed services for the plaintiff in a capacity that brought him within the scope of the attorney-client privilege, and the Court held that it was an abuse of discretion for the trial court to compel the production of privileged materials and items outside the scope of the rules providing for expert disclosures.

In re Segner, No 05-13-01414-CV

Several years ago, the court of appeals affirmed most of a judgment against Spin Doctor Golf, but reversed the trial court’s grant of summary judgment sustaining Paymentech, L.P.’s statute of limitations defense. Spin Doctor Golf, Inc. v. Paymentech, L.P., 296 S.W.3d 354, 363 (Tex. App.-Dallas 2009, pet. denied). On remand, the trial court denied Spin Doctor’s motion to modify the scheduling order to permit it to designate expert witnesses. The court denied that motion, and granted Paymentech’s traditional and no-evidence motions for summary judgment.

Spin Doctor had sought to designate five experts prior to the first summary judgment ruling and appeal, but that designation came months after the deadline under the scheduling order then in effect, and the trial court determined Spin Doctor had not shown good cause for the late designation of the experts. On remand, the trial court again rejected Spin Doctor’s request to designate experts. The court of appeals sustained that ruling, concluding that (1) there was a valid scheduling order in effect and Spin Doctor had blown well past it, (2) Spin Doctor’s need for a lost profits expert did not establish good cause for missing the deadline, (3) Paymentech’s failure to produce certain documents did not explain why Spin Doctor was prevented from timely designating the experts, and (4) the trial court could have reasonably determined that Paymentech would be unfairly surprised by the experts’ testimony because the record did not disclose any proffered report from those experts, leaving Paymentech to take discovery in the dark. The court of appeals also affirmed the summary judgment ruling, holding that the affidavit of Spin Doctor’s president had been properly stricken the first time through the trial court, and that its lost profits analysis was conclusory in any event.  With no evidence of damages, the judgment against Spin Doctor was affirmed.

Spin Doctor Golf, Inc. v. Paymentech, L.P., No 05-11-0104-CV

In 2009, Andres Diaz paid $85,000 for his “dream car,” a 2010 Mercedes C63 AMG. Two weeks later, Caroline Culwell rear-ended him at a stop light, costing Diaz over $9,000 for repairs. At trial, Culwell stipulated to liability, leaving only the question of damages to be decided by the jury. Among other items, Diaz sought to recover $15,671 for the post-accident diminution in value of the car. That claim was supported by the testimony of Diaz’s appraisal expert, but the jury awarded $0.00 for diminished value. Diaz sought judgment notwithstanding that portion of the verdict, and the trial court awarded him the full amount of the claim. The court of appeals reversed, holding that it was within the province of the jury to disbelieve the appraisal expert’s testimony. Even uncontroverted expert testimony does not bind the jury unless the subject matter is one for experts alone. The court of appeals concluded that determining the value of a car for diminution of value damages is not so complicated that an expert’s testimony is required for the jury to understand the issue. Accordingly, the court of appeals reinstated the jury’s refusal to award Diaz any damages for diminution of value.

Culwell v. Diaz, No. 05-12-00093-CV

Jeanette Hooper and her husband Charles sued their lawyers for legal malpractice. The underlying case had been a personal injury suit arising out of a car wreck, which was apparently dismissed after the lawyers sued the owner of the other vehicle instead of the actual driver. The jury awarded $235,000 in damages, based on the testimony of a legal expert who opined that the Hoopers should have recovered $130,000 for past medical expenses, $180,000 for lost earning capacity, $250,000 for pain and suffering, and $250,000 for damages such as loss of consortium and physical impairment. On appeal, however, the court of appeals held that the testimony did not establish a causal link between the underlying car wreck and the subsequent damages. While it was justifiable for the jury to compensate the plaintiffs for damages sustained in the immediate aftermath of the wreck, such as emergency room bills and initial pain and suffering, the “case-within-a-case” aspect of the legal malpractice claim required the plaintiffs to establish a causal connection between the accident and the health problems Charles experienced months and even years after the collision. That connection needed to be made by the testimony of a medical expert, and could not be demonstrated through bare medical records or inferred by the jury. Because some elements of the plaintiffs’ damages were valid and some were invalid, the court of appeals also sustained the defendants’ challenge to the trial court’s submission of a broad-form damages question, reversed the judgment, and remanded for further proceedings.

Kelley & Witherspoon, LLP v. Hooper, No. 05-11-01256-CV

In a lengthy opinion arising from a legal malpractice case, the court of appeals has reversed the judgment of the district court striking the plaintiffs’ experts and granting judgment for the defendants due to the lack of expert testimony. The experts had been struck after the plaintiff’s attorney had missed two previous disclosure deadlines, then failed to provide expert reports as required by the trial court’s amended scheduling order. The plaintiff argued that the trial court had issued improper “death penalty” sanctions, and the court of appeals agreed. There was nothing in the record indicating that the plaintiff herself bore any responsibility for her attorney’s failure to timely designate the experts, so there was no direct relationship between the plaintiff’s conduct and the sanction imposed. The court of appeals also held that the sanctions were excessive in any event, because the trial court had not previously awarded any lesser sanctions for the previous failures to timely designate the experts. It was not enough, the court of appeals held, for the trial court to simply recite that no lesser sanction would suffice because this was not the type of egregious and exceptional discovery abuse that would make death penalty sanctions “clearly justified” and “fully apparent.” However, the court of appeals also affirmed the trial court’s denial of the plaintiff’s motion for leave to file an amended petition after the pleading deadline, where the petition sought to add new claims and causes of action to the case.

Gunn v. Fuqua, No. 05-11-00162-cv