TEXAS SUPREME COURT AFFIRMS TAKE-NOTHING JUDGMENT BECAUSE OF UNRELIABILITY OF PLAINTIFFS’ “INTERDEPENDENT” EXPERT TESTIMONY

Gharda USA, Inc. v. Control Solutions, Inc.
Supreme Court of Texas, No. 12-0987 (May 8, 2015)
Opinion by Justice Green
Fire devastated a chemical warehouse. Trying to prove what caused the fire, the plaintiffs presented testimony from four experts. But the trial court ruled the expert testimony unreliable and entered judgment for the defendant. Approving that result, the Supreme Court found the “testimony of all four experts [to be] unreliable because the individual opinion testimony of at least two experts was unreliable and the remaining two experts based their opinions on the first two experts’ unreliable opinions.”

Two of the plaintiffs’ experts were fire-scene investigators, and they testified based on their inspections and investigations that the fire started in the “hot box” in the warehouse, where flammable vapors of some sort must have built up and exploded. But they deferred to the chemist experts to determine the nature and extent of the vapor and how it ignited. Plaintiffs proffered two chemist experts who testified that barrels of a pesticide called chlorpyrifos, produced by the defendants, must have been contaminated with EDC, which could have caused a build-up of gasses that could have spontaneously combusted or been ignited by static electricity. Neither expert performed testing to confirm their theory, however, and neither expert could demonstrate that defendants’ chemicals actually were contaminated with EDC. One expert testified that, because defendants’ manufacturing process relied on human judgment rather than a computer-operated system, human error could result in contamination of the product. But he acknowledged that just because defendants could have manufactured a contaminated drum of chlorpyrifos did not mean they actually did. The Court found, therefore, that the individual opinions of the two chemists were based on mere possibilities and lacked a reliable foundation. Because the two fire-scene investigators relied on the chemists’ unreliable opinions, the Court found their opinions were unreliable as well.

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