The role of an attorney when handling a brain injury case will most likely require expert testimony. Expert testimony must have a proper foundation. The foundation must be established as reliable scientific evidence under the correct legal criteria. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993). If expert testimony is speculative or founded on assumptions that have an insufficient factual basis, the expert testimony will not be admissible. Therefore, a party must lay the proper foundation by having the expert establish: (1) the technique used can be tested; (2) rate of error of the technique; (3) whether the technique has been published or subject to peer review; and (4) whether or not the technique is generally accepted in the relevant scientific community.
A party relying on expert testimony in a brain injury case should have the expert qualified prior to trial or submission of court documents. In car accident or wrongful death cases, this requires the expert to swear to all facts an opinions in his expert report in a competent affidavit. In Texas, an unsworn report is not evidence; and an expert report is not an affidavit either.
For attorneys that work on personal injury cases in Houston or San Antonio, Texas it is important to remember that the that expert’s affidavit should contain (1) a statement that the affiant’s statement is based on his personal knowledge and is true and correct, (2) the facts are based on his personal knowledge, (3) a jurant that it is sworn testimony, and (4) a notary public’s signature and stamp. See City of San Juan v. Gonzalez, 22 S.W.3d 69, 72 (Tex. App – Corpus Christi 2000, no pet.).
If you have questions about utilizing or qualifying experts, we would be happy to provide additional information. You can reach us at 210-807-8932.
– Article By Richard Weaver