E.I. du Pont de Nemours and Co., Inc. v. Robinson

Decision Date08 July 1996
Docket NumberNo. 94-0843,94-0843
Citation923 S.W.2d 549
Parties, Prod.Liab.Rep. (CCH) P 14,294, 38 Tex. Sup. Ct. J. 852 E.I. du PONT de NEMOURS AND COMPANY, INC., Petitioners, v. C.R. ROBINSON and Shirley Robinson, Respondents.
CourtTexas Supreme Court

Michael A. Hatchell, Tyler, Pamela Stanton Baron, Austin, Larry E. Cotten, Fort Worth, David A. Lowrance, Fort Worth, for petitioners.

William W. Kilgarlin, Santa Fe, NM, Jack Sanders, Jr., Marshall, Wayne Fisher, Houston, David W. Holman, Houston, Charles D. Kennedy, Arlington, for respondents.

GONZALEZ, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, and HECHT, ENOCH and OWEN, Justices, join.

In this products liability case we determine the proper standard for the admission of scientific expert testimony under Rule 702 of the Texas Rules of Civil Evidence. The trial court excluded the testimony of an expert witness upon finding his opinions not scientifically reliable. The court of appeals reversed, holding that once a proponent establishes a witness's qualifications, the weight to be given the testimony and the credibility of the witness is to be determined by the trier of fact. 888 S.W.2d 490, 492. We hold that Rule 702 requires expert testimony to be relevant and reliable. Because the proponent of the testimony in this case failed to establish that the proffered testimony was scientifically reliable, the trial court did not abuse its discretion by excluding the expert witness. Accordingly, we reverse the judgment of the court of appeals and affirm that of the trial court.

I.

C.R. and Shirley Robinson sued E.I. du Pont de Nemours and Company (DuPont) for products liability, breach of warranty, and violations of the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA). TEX.BUS. & COMM.CODE §§ 17.41-17.63. The Robinsons asserted that the application of Benlate 50 DF, a fungicide manufactured by DuPont, which they claim was contaminated, damaged their pecan orchard.

The Robinsons' sole expert witness on causation was Dr. Carl Whitcomb. Dr. Whitcomb has a Bachelor of Science degree from Kansas State University and masters and doctorate degrees from Iowa State University in horticulture, plant ecology, and agronomy. From 1972 until 1985, Dr. Whitcomb taught and researched at Oklahoma State University. Since 1985, Dr. Whitcomb has engaged in consulting work for nurseries, greenhouses, and corporations. He has written numerous books and articles on horticultural topics. Dr. Whitcomb is also on the review board of The Journal of Environmental Horticulture, and he reviews articles proposed for publication in The American Society of Horticultural Science.

Dr. Whitcomb opined that Dupont contaminated Benlate during its manufacturing process with many things, including sulfonylurea (SU) herbicides, and that the application of contaminated Benlate damaged the Robinsons' pecan trees. One basis for his opinion was his inspection of the Robinsons' orchard in September 1992, conducted at the request of their attorney. Dr. Whitcomb visited the orchard and conducted an inspection that lasted two and a quarter hours. He visually scanned the orchard, which consists of about two hundred trees, and viewed approximately forty to fifty trees (25%) closely. He "dug up roots" on some of the trees and took random pictures of a few trees that exemplified what he was "trying to show." At his deposition, Dr. Whitcomb conceded that there was no consistent pattern of damage to the trees. He did not conduct any soil or tissue testing, did not research relevant weather conditions, and did not test any of the Benlate used by the Robinsons, even though they had one opened box of the fungicide remaining. At the time of his deposition, Dr. Whitcomb had not visited any other pecan orchards for the purpose of investigating for Benlate damage.

On October 3, 1992, Dr. Whitcomb reported his findings to the Robinsons' attorney. He based his opinion that contaminated Benlate damaged the Robinsons' pecan trees on a method called comparative symptomology: because the Robinsons' pecan trees exhibited symptoms common to other plants treated with allegedly contaminated Benlate under dissimilar growing conditions, Benlate, the only common factor among all the plants, caused the damage.

Another basis for Dr. Whitcomb's opinion was an experiment he conducted in 1992, at the request of an attorney in Florida who represented clients asserting claims similar to the claims asserted by the Robinsons. In this study, Dr. Whitcomb applied several different concentrations and amounts of Benlate to groups of small plants in a controlled environment designed to replicate growing conditions in Florida. He maintained one control group of plants that was not treated with Benlate. Each plant was grown under identical soil, watering, lighting, and temperature conditions. Dr. Whitcomb carefully monitored the plants and observed particular symptoms common to plants and trees treated with Benlate, such as stunted growth and abnormal leaf coloring. Based on these symptoms, Dr. Whitcomb concluded that the Benlate applied to the plants in his study must have been contaminated. Dr. William Warde, a professor of statistics at Oklahoma State University, analyzed the results of Dr. Whitcomb's study. Dr. Warde concluded that the probability of Dr. Whitcomb's results being correct was ninety-nine percent.

Another basis for Dr. Whitcomb's opinion was a laboratory analysis of ten boxes of Benlate (none of which were used by the Robinsons). The tests revealed that out of eighteen substances found in the Benlate samples, only five were common to all boxes. The tests did not reveal the presence of SU contaminants. At his deposition, Dr. Whitcomb conceded that, if present, the SU contaminants in the tested Benlate were below scientifically detectable levels, and that he did not know at what level or concentration SU herbicides would damage pecan trees. He also admitted that, if free of contamination, Benlate was a good product.

Dr. Whitcomb also based his opinion on a review of reports of other plants treated with SU herbicides and one study involving the application of Benlate to cucumber plants. Lastly, Dr. Whitcomb relied upon some internal DuPont documents which concerned other claims against the company for damages caused by allegedly contaminated Benlate and a recall of several batches of Benlate due to contamination by the herbicide atrazine.

After deposing Dr. Whitcomb, DuPont filed a motion to exclude his testimony, alleging among other things that his opinions were speculative and unreliable. The trial court held a pretrial hearing on DuPont's motion and found that Dr. Whitcomb's testimony:

(1) was not grounded upon careful scientific methods and procedures;

(2) was not shown to be derived by scientific methods or supported by appropriate validation;

(3) was not shown to be based on scientifically valid reasoning and methodology;

(4) was not shown to have a reliable basis in the knowledge and experience of his discipline (horticulture);

(5) was not based on theories and techniques that had been subjected to peer review and publication;

(6) was essentially subjective belief and unsupported speculation;

(7) was not based on theories and techniques that the relevant scientific community had generally accepted; and

(8) was not based on a procedure reasonably relied upon by experts in the field.

Based on these findings, the trial court excluded Dr. Whitcomb's testimony, concluding that it was not reliable and would not fairly assist the trier of fact in understanding a fact in issue in the case.

The parties agreed to try the case to the court, with the stipulation that in the event of a reversal, it would be tried the second time to a jury. At the nonjury trial, the Robinsons again sought to introduce Dr. Whitcomb's testimony. The trial court abided by its earlier ruling and excluded it. The Robinsons then offered a bill of exception containing Dr. Whitcomb's testimony. The trial court granted DuPont's motion for a directed verdict. The Robinsons appealed the judgment, claiming that the trial court had abused its discretion by excluding their expert testimony.

The court of appeals reversed and remanded the case for a new trial. 888 S.W.2d at 493. The court of appeals reviewed the trial court's Rule 702 inquiry in light of the following standards:

(1) A body of scientific, technical, or other specialized knowledge must exist that is pertinent to the facts in issue;

(2) The witness must have sufficient experiential capacity in his field of expertise. This capacity encompasses knowledge, skill, experience, training, and education;

(3) The facts evaluated must be within the witness' field of specialized knowledge.

Id. at 492 (quoting Guentzel v. Toyota Motor Corp., 768 S.W.2d 890, 897 (Tex.App.--San Antonio 1989, writ denied)). The court of appeals concluded that the trial court abused its discretion by excluding the expert testimony since DuPont had not contested Dr. Whitcomb's qualifications, only the methodology and research upon which he based his opinions. Id. at 492. The court of appeals further held that the jury was to determine the weight to be given Dr. Whitcomb's testimony and his credibility as an expert witness. Id. at 493 (citing First City Bank-Farmers Branch v. Guex, 659 S.W.2d 734, 739 (Tex.App.--Dallas 1983), aff'd, 677 S.W.2d 25 (Tex.1984)).

II.
A.

As numerous courts and commentators have observed, the use of expert witnesses in litigation has become widespread. See, e.g., In re Air Crash Disaster, 795 F.2d 1230, 1234 (5th Cir.1986) (observing that "the professional expert is now commonplace"); 2 GOODE ET AL., GUIDE TO THE TEXAS RULES OF EVIDENCE: CIVIL AND CRIMINAL § 702.2, at 17 (Texas Practice, 2d ed. 1993); Richey, Proposals to Eliminate the Prejudicial Effect of the Use of the Word "Expe...

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