“ANALYTICAL GAP” TEST, NOT ROBINSON FACTORS, APPLIES TO TESTIMONY OF FORENSIC PSYCHIATRIST

Texas Capital Bank v. Asche
Dallas Court of Appeals, No. 05-15-00102-CV (February 17, 2017)
Justices Bridges, Francis, and Whitehill (Opinion, linked here)

Brent Rubin

In this will contest, the jury found that Asche lacked capacity to execute a series of wills, codicils, and trusts and that his wife, Sallie, exerted undue influence over him. These jury findings were supported by the expert testimony of Clayton, a forensic psychiatrist.

Clayton’s testimony was challenged on reliability grounds. Courts tasked with evaluating the reliability of expert testimony often apply a list of non-exclusive factors from the Texas Supreme Court’s decision in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995). These factors focus on the scientific testing and methodology underlying the opinion. But the Robinson factors are not appropriate in every case. In certain situations, courts apply the “analytical gap test.” This test considers whether the expert’s field is legitimate, whether the testimony falls within that field, and whether the testimony properly relies on the data and the principles involved in the field.

The court of appeals characterized psychiatric testimony as a “soft science”—that is, experts in the field rely on experience or training to reach their opinions rather than on a particular scientific methodology. Therefore, the analytical gap test, not the Robinson factors, was properly used to evaluate Clayton’s testimony. After applying the analytical gap test—i.e., evaluating “whether there is too great an analytical gap between the data and the opinion proffered for the opinion to be reliable”—the court of appeals concluded the trial court did not abuse its discretion in admitting Clayton’s psychiatric testimony.