MARITIME OVERSEAS CORPORATION, Petitioner,
v.
Richard ELLIS, Respondent.
NO. 94-1057.Argued Nov. 5, 1997.
Decided April 16, 1998.
Rehearing Overruled July 3, 1998.
BAKER, Justice, delivered the opinion of the Court, in which ENOCH, SPECTOR, ABBOTT and HANKINSON, Justices, join.
This case involves Richard Ellis's Jones Act claims for injuries he sustained aboard a vessel owned by Maritime Overseas Corporation. The trial court rendered judgment on the jury's verdict for Ellis for actual and exemplary damages and awarded prejudgment interest. The court of appeals affirmed the actual damages award, but reversed the awards of exemplary damages and prejudgment interest.
Maritime asserts that the court of appeals used an improper standard to review the factual sufficiency of Ellis's damages evidence. Maritime also contends that the court of appeals should have applied a Daubert-Robinson-Havner review to determine whether any well-founded scientific methodology supported some of the actual damages award. We conclude, under the facts of this case, that the court of appeals properly disposed of Maritime's claims. Accordingly, we affirm the court of appeals' judgment.
I. BACKGROUND
A. FACTS
Ellis served as a steward's assistant in the housekeeping and galley department aboard the S/T Overseas Alaska, a 700-foot oil tanker owned by Maritime. In late August 1982, while the ship was at sea, the chief steward attempted to control a roach problem by spraying Diazinon, an industrial strength pesticide, in small, enclosed, unventilated areas, including the pantry, a storeroom and other nearby areas. The chief steward did not dilute the Diazinon properly. On the morning after the spraying, crew members noticed a strong insecticide odor. The captain ordered several crew members, including Ellis, to clean up the excess Diazinon. Ellis participated in the cleanup for about five hours without wearing inhalation protective gear or special equipment to protect his skin from contact with the insecticide. He was exposed to Diazinon levels up to 200 times over what is considered safe for human exposure.
After the cleanup, Ellis complained of a headache, eye irritation, and a runny nose. The ship reached New Orleans two days later, and Ellis was sent to the New Orleans General Hospital Emergency Room. At the hospital, emergency room personnel found Ellis had myosis with pupil constriction, muscle twitching, and muscle weakness along with other symptoms. Ellis's blood tests revealed that he had depressed levels of acetylcholinesterase, an essential enzyme. The *405 insecticide Diazinon is an organophosphate, which is toxic to humans in varying degrees. The emergency room doctor testified at trial that on a scale of one to ten, with one representing normal health and ten representing death, Ellis suffered organophosphate exposure of a level of six to seven. The examining physician concluded that Ellis suffered from Diazinon exposure and gave Ellis medication for eye problems. The examining physician did not hospitalize Ellis, but she recommended follow-up care. About a month later, Ellis saw another doctor for continuing problems with his eyes.
Months after his exposure to Diazinon, Ellis began to complain of memory defects, irritability, gastrointestinal problems, anxiousness, fatigue, indigestion, nausea, muscle pain and stiffness, leg cramps, dizziness, insomnia, high blood pressure, and black-out spells. At trial, Ellis's experts testified that his Diazinon exposure had caused him to suffer from "delayed neurotoxicity" or "neuropathy." Ellis's experts also testified that his condition is irreversible.
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III. COURT OF APPEALS' REVIEW OF SCIENTIFIC EVIDENCE
Maritime's second contention is that the court of appeals erred because it did not examine whether any well-founded scientific evidence supports the actual damages award. Maritime argues that the federal standard articulated in Daubert and the state standard articulated in Robinson and Havner are the proper standards for reviewing the sufficiency of Ellis's damages evidence. Significantly, Maritime does not complain about the trial court's admission of any of the scientific evidence from any of Ellis's five experts. Rather, Maritime's position is that if the court of appeals applied a proper scientific methodology test to Ellis's experts' testimony, the testimony would be legally insufficient to show that the long term conditions Ellis claims he suffers were caused by delayed neurotoxicity. Thus, Maritime concludes, by way of its complaints about the court of appeals' factual sufficiency review, that there is no evidence of some of Ellis's actual damages. Maritime's argument is flawed.
In Daubert, the Supreme Court considered "the standard for admitting expert scientific testimony in a federal trial." *409Daubert, 509 U.S. at 579, 113 S.Ct. 2786, (emphasis added). Daubert' s focus is on the trial court's discretion, when faced with an objection to scientific evidence, to admit or exclude such evidence before or during the trial. The Supreme Court added that when the trial court concludes that the disputed scientific evidence is insufficient to go to the jury, the trial court may grant a summary judgment or a directed verdict. Daubert, 509 U.S. at 595, 113 S.Ct. 2786. However, Daubert does not support the proposition that a reviewing court can in effect exclude expert testimony that was not objected to based on its scientific reliability before trial or when it was offered at trial and then render judgment against the offering party.
Similarly, in Robinson, we granted DuPont's application for writ of error to decide "the appropriate standard for the admission of scientific expert testimony." See Robinson, 923 S.W.2d at 554 (emphasis added). Like the Supreme Court in Daubert, we recognized the special nature of scientific expert testimony. See Robinson, 923 S.W.2d at 554-58. We then explained the trial court's role as a "gatekeeper," and recognized that "[t]he trial court is responsible for making the preliminary determination of whether the proffered testimony meets the standards [for scientific reliability]." Robinson, 923 S.W.2d at 556. Like Daubert, Robinson' s focus is on a trial court's discretion in admitting or excluding scientific evidence after a party lodges an objection to the reliability of its opponent's scientific expert testimony before trial or when the evidence is offered. See Robinson, 923 S.W.2d at 557.
Under Havner, a party may complain on appeal that scientific evidence is unreliable and thus, no evidence to support a judgment. See Havner, 953 S.W.2d 706. Havner recognizes that a no evidence complaint may be sustained when the record shows one of the following: (a) a complete absence of a vital fact; (b) the reviewing court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more that a mere scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact. See Havner, 953 S.W.2d at 711 (citing Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEX. L.REV. 361, 362-63 (1960)). Here, like in Havner, Maritime contends that because Ellis's scientific evidence "is not reliable, it is not evidence," and the court of appeals and this Court are "barred by rules of law or of evidence from giving weight" to Ellis's experts' testimony. See Havner, 953 S.W.2d at 711, 713.
B. ERROR PRESERVATION
[18] To preserve a complaint that scientific evidence is unreliable and thus, no evidence, a party must object to the evidence before trial or when the evidence is offered. See Robinson, 923 S.W.2d at 557; see also Havner, 953 S.W.2d at 713 ("If the expert's scientific testimony is not reliable, it is not evidence."). Without requiring a timely objection to the reliability of the scientific evidence, the offering party is not given an opportunity to cure any defect that may exist, and will be subject to trial and appeal by ambush. See Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1066-67 (9 th Cir.1996), cert. denied, 519 U.S. 1108, 117 S.Ct. 942, 136 L.Ed.2d 831 (1997); Sumitomo Bank v. Product Promotions, Inc., 717 F.2d 215, 218 (5th Cir.1983).
[19] Reviewing courts may not exclude expert scientific evidence after trial to render a judgment against the offering party because that party relied on the fact that the evidence was admitted. Babbitt, 83 F.3d at 1067. To hold otherwise is simply "unfair." Babbitt, 83 F.3d at 1067. As the Babbitt court explained:
[P]ermitting [a party] to challenge on appeal the reliability of [the opposing party's] scientific evidence under Daubert, in the guise of an insufficiency-of-the-evidence argument, would give [appellant] an unfair advantage. [Appellant] would be 'free to gamble on a favorable judgment before the trial court, knowing that [it could] seek reversal on appeal [despite its] failure to [object at trial].'
Babbitt, 83 F.3d at 1067 (citations omitted). Thus, to prevent trial or appeal by ambush, we hold that the complaining party must *410 object to the reliability of scientific evidence before trial or when the evidence is offered.
C. ANALYSIS
In this case, Maritime did not object to the reliability of Ellis's scientific evidence until after the jury verdict. Maritime nevertheless argues that the court of appeals should have applied the Daubert-Robinson-Havner [FN2] rationale as part of its factual sufficiency review. These cases do not support Maritime's argument because: (1) each involve admissibility or no evidence considerations, and (2) in each case the defendants timely objected to the scientific evidence.
FN2. Maritime also cites Brock v. Merrell Dow Pharms., Inc., 874 F.2d 307 (5 th Cir.), modified, 884 F.2d 166 (1989), to support its argument that Ellis's experts' testimony was not proper scientific evidence. However, like Daubert, Robinson and Havner, in Brock, Merrell Dow challenged the scientific evidence before the jury verdict. Here, Maritime did not challenge Ellis's scientific evidence until after the jury verdict.
Daubert and Havner involve the anti-nausea drug, Bendectin. In these two cases, plaintiffs asserted that Bendectin caused birth defects. See Daubert, 509 U.S. at 591, 113 S.Ct. 2786; Havner, 953 S.W.2d at 708. Robinson involved a fungicide known as Benlate that DuPont manufactured. The Robinsons contended that the Benlate they used was contaminated and damaged their pecan crop. See Robinson, 923 S.W.2d at 551. In all three cases, causation was hotly contested, as it is in this case, on delayed effects. In all three cases, the manufacturer objected before trial or when the evidence was offered that the plaintiffs' scientific expert testimony on causation was inadmissible because it was neither relevant nor based upon a reliable foundation. Daubert, 509 U.S. at 591, 113 S.Ct. 2786; Robinson, 923 S.W.2d at 552; Havner, 953 S.W.2d at 708-09. Thus, the manufacturers in all three cases properly preserved their claims that the expert testimony was inadmissible and was no evidence of causation because it was not relevar frnd not based on well-founded scientific methodology.
In Daubert, Merrell Dow moved for summary judgment. The trial court granted summary judgment on the grounds that the Dauberts did not establish that the principle on which their experts based their opinions was generally accepted by the relevant scientific community. See Daubert v. Merrell Dow Pharms., Inc., 727 F.Supp. 570, 572 (S.D.Cal.1989). On appeal, the United States Supreme Court held that the criteria is whether the scientific evidence is relevant and reliable and thus admissible. The Court remanded Daubert to the circuit court to determine whether the expert testimony rested on a reliable foundation and was relevant. See Daubert, 509 U.S. at 597, 113 S.Ct. 2786. On remand, the Ninth Circuit held that the testimony about Bendectin's effect was inadmissible under Federal Rule of Evidence 702.
In Robinson, the trial court granted DuPont's pretrial motion and excluded the Robinsons' expert testimony on the ground that it was neither relevant nor based upon a reliable foundation. See Robinson, 923 S.W.2d at 552. At trial, the Robinsons again attempted to introduce their expert's testimony but the trial court abided by its earlier ruling and excluded that testimony. The Robinsons then offered a bill of exception on their expert's testimony. At the close of evidence, the trial court granted DuPont's motion for directed verdict. The Robinsons appealed on the grounds that the trial court abused its discretion by excluding their expert's testimony. This Court followed Daubert and held that a party must show, in addition to showing an expert witness is qualified, that the expert's testimony is relevant and reliable. See Robinson, 923 S.W.2d at 556. Accordingly, although Robinson involves the exclusion of expert testimony, DuPont timely objected to the expert testimony before trial and when the evidence was offered. Unlike Maritime, DuPont did not wait until after the verdict to challenge the reliability of its opponent's expert testimony.
In Havner, Merrell Dow objected to the Havners' scientific evidence "at several junctures" during the litigation. See Havner, 953 S.W.2d at 708. Merrell Dow moved for summary judgment contending there was no scientifically reliable evidence that Bendectin caused limb reduction birth defects or that *411 Bendectin caused the plaintiff's birth defect. Cf. General Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (affirming summary judgment when plaintiff's expert evidence did not show link between polychlorinated biphenyls (PCBs) and cancer). The trial court held a hearing at which the scientific reliability of the Havner's summary judgment evidence was extensively aired. The trial court then denied Merrell Dow's motion for summary judgment. Before trial, Merrell Dow filed a motion in limine again questioning the scientific reliability of the Havner's expert testimony. The trial court denied Merrell Dow's motion in limine. During trial, Merrell Dow objected to the admission of the Havners' scientific evidence. Merrell Dow also unsuccessfully moved for directed verdict when the Havners closed their case, complaining about the Havners' scientific evidence. The trial court overruled Merrell Dow's objections and denied its motion for directed verdict. In Havner, while the issue was whether the scientific evidence was legally sufficient to be some evidence of causation, Merrell Dow timely challenged the experts' testimony at every opportunity in the trial court, and it properly preserved a no evidence claim. Indeed, this Court emphasized that the offering party should be allowed the opportunity to "pass[ ] muster" under a trial court Robinson objection--"to present the best evidence available"-- before an appellate court considers whether legally sufficient evidence supports a judgment. Havner, 953 S.W.2d at 720.
[20] Here, Maritime did not object to the scientific reliability of a single one of Ellis's five expert witnesses until after the jury verdict. Before trial, Maritime did not ask for a Daubert/Robinson-type hearing. Cf. Havner, 953 S.W.2d at 708-09. During trial, the record reflects that Maritime made nine objections while Ellis's five experts testified. Five objections complained about nonresponsiveness, three complained about leading questions, and one complained that the witness was testifying from a document not in evidence. Simply put, Maritime did not make any objection to the reliability of Ellis's experts before trial or when Ellisoffered the evidence. Maritime cannot complain for the first time after the verdict that the testimony from Ellis's five experts does not support the judgment. To allow otherwise would deny Ellis's scientific experts the opportunity to "pass [ ] muster" in the first instance and usurp the trial court's discretion as "gatekeeper." See Havner, 953 S.W.2d at 720; Robinson, 923 S.W.2d at 554.
Rules and procedures about error preservation promote certainty and fairness. Such rules also frame and develop the legal issues for appeal, giving notice to both the litigants and to appellate courts about what issues remain. Appellate courts must base their decisions on the record as made and brought forward, not on a record that should have been made or could have been made. See Babbitt, 83 F.3d at 1067. For this Court to decide now that Ellis's scientific evidence is unreliable under Daubert or Robinson would base appellate review on a record that was not made.
IV. RESPONSE TO THE DISSENT
We do not disagree with the dissent that "Maritime Overseas' position has always been ... that no reliable scientific evidence shows that Diazinon can cause long-term neurotoxicity." 971 S.W.2d at 415. However, at trial, rather than make objections to the trial court, Maritime chose to present this argument to the jury by challenging the reliability of Ellis's scientific evidence via vigorous cross-examination, presenting contrary evidence, and through opening statement and closing argument. Thus, unlike Havner, the "question of scientific reliability was [not] raised repeatedly" before the trial court. Havner, 953 S.W.2d at 709.
[21] Nevertheless, the dissent would hold that Maritime's decision to argue the weight of both parties' experts' testimony to the jury was sufficient to preserve a complaint about reliability for appeal. When the reliability of scientific evidence is contested, attempts at persuasion before the jury and reiterated on appeal cannot amount to preservation of error for appeal. To allow otherwise would impermissibly permit a party to strip away the trial court's role as gatekeeper in the first instance when a party wishes to contest the reliability of scientific evidence. See *412 Robinson, 923 S.W.2d at 553, 556, 558 (placing a "heightened responsibility" on trial judges "to ensure that expert testimony show some indicia of reliability" by holding them "responsible for making the preliminary determination of whether the proffered testimony meets the standards [for scientific reliability]"); see also Daubert, 509 U.S. at 589, 113 S.Ct. 2786 (explaining that "the trial judge must ensure that any and all scientific testimony or evidence admitted is ... reliable"). As Justice Gonzalez rightly points out in his concurring opinion, "[i]t is impossible for a [trial] court to exercise its gatekeeper function after the evidence has been admitted and the jury discharged." 971 S.W.2d at 412.
Under the dissent's approach, the trial court would be converted at a party's whim from a gatekeeper to "an idle spectator rendered powerless to ensure the integrity of courtroom evidence." Robinson, 923 S.W.2d at 554 (quoting DuPont's argument). We decline to take away the trial court's gatekeeping function. To do otherwise would usurp the orderly and efficient disposition of appeals, deprive the proffering party of an opportunity to cure any defects in its evidence that the objecting party might pose, and in some cases, place appellate courts in the undesirable position of making decisions about evidentiary reliability absent a fully developed record.
The dissent also goes to great lengths to set forth cases that it claims stand for the proposition that "a party may complain after verdict and on appeal that evidence admitted without objection is neither legally nor factually sufficient to support the verdict." 971 S.W.2d at 417. But the dissent's reliance on these cases is misplaced for those cases involve no evidence challenges where, on the face of the record, the evidence lacked probative value. See Calvert, supra, at 362-63. In contrast, by its own admission, Maritime is not making a no evidence complaint.
Maritime could have and should have objected to Ellis's evidence at trial in a timely fashion for appellate consideration. We have properly decided the case on the issues preserved at trial and raised on appeal, as our rules and precedent require.
V. CONCLUSION
We conclude that the court of appeals used the proper standard to review the factual sufficiency of Ellis's actual damages evidence. We also conclude that because Maritime did not preserve error about Ellis's scientific expert testimony in the trial court, the court of appeals did not err in conducting its factual sufficiency review. We overrule Maritime's other points of error. Accordingly, we affirm the court of appeals' judgment.
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GONZALEZ, Justice, filed a concurring opinion, joined by ABBOTT, Justice, with respect to Part III only.
HECHT, Justice, joined by PHILLIPS, Chief Justice, filed a dissenting opinion.
OWEN, Justice, not sitting.
GONZALEZ, Justice, joined by ABBOTT, Justice, with respect to Part III, concurring.
I concur with the Court's judgment. The Court correctly resolves the main issues: (1) approving the court of appeals' standard for reviewing the factual insufficiency of the evidence of a Jones Act cause of action, and (2) rejecting Maritime Overseas Company's untimely attempt to challenge the reliability of scientific evidence. See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex.1995) (making trial courts the "gatekeepers" of scientific evidence). I do not entirely agree with the Court's analysis of the Robinson issue. However, I ultimately reach the same conclusion that Maritime did not timely raise the issue. I think it is imperative to ventilate any Robinson issues as early as possible, preferably as a pretrial matter. To further that policy, we should give trial courts wide discretion to reject late Robinson objecti pr and hold that the trial court did not abuse its discretion in this case.
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As a final note, I encourage trial courts to aggressively exercise their role as gatekeepers of scientific evidence. There are many steps a court could take to try cases efficiently and fairly, with fidelity to sound scientific methodology. For example, a court could:
1) require parties to notify opponents and the court sufficiently in advance of the trial of plans to either offer scientific evidence or challenge an opponent's evidence;
2) conduct a preliminary hearing on admissibility in advance of plans to offer the evidence;
*415 3) in complex litigation, appoint a panel of specially trained scientists or a special master to hear evidence and report on complicated scientific and statistical matters. The report would be filed with the clerk's office. If the parties request it, the court should conduct a hearing on the report and allow the parties to cross examine the court experts (the expert's fees would be taxed as court costs);
4) render expert testimony inadmissible or rule objections waived unless the parties fully comply with the notice requirements set out above.
In sum, because a Robinson objection profoundly impacts the trial of a case, an opponent to proffered scientific evidence should raise the issue of reliability early in the litigation or risk losing the objection. I agree with the Court that an opponent to scientific evidence must object to it when offered, at the very latest. However, I would go further and hold that if a party knows pretrial about the existence of Robinson issues but fails to ask for a pretrial hearing, any objection about the admission or exclusion of such evidence raised for the first time during trial is waived.
HECHT, Justice, joined by PHILLIPSEnd ief Justice, dissenting.
Maritime Overseas Corporation seeks a new trial because, while Richard Ellis was undeniably injured by his exposure to diazinon, the scientific evidence does not support the conclusion that he suffers from permanent neurotoxicity, and thus the $8,576,000 awarded him in damages is excessive. The Court holds that it could not order a new trial even if it agreed with Maritime Overseas' contention, completely ignoring its decision to grant a new trial in indistinguishable circumstances just one year ago in Texarkana Memorial Hospital, Inc. v. Murdock, 946 S.W.2d 836 (Tex.1997). The Court also holds that Maritime Overseas failed to preserve its complaint for appeal because it did not object to Ellis's evidence at trial, even though Maritime Overseas' position has always been--in its opening statement, its extensive examination of the expert witnesses, its closing argument, its motion for new trial, and on appeal--that no reliable scientific evidence shows that diazinon can cause long-term neurotoxicity. As Ellis's attorney told the jury in his opening statement, Maritime Overseas' "position is that this chemical just cannot cause an injury to a worker's nervous system." Maritime Overseas' position has never been in doubt.
Not one case the Court cites so much as hints that a party in Maritime Overseas' circumstances has failed to preserve error, and one of those cases, Sumitomo Bank v. Product Promotions, Inc., 717 F.2d 215, 218 (5th Cir.1983), actually suggests that Maritime Overseas has preserved its position. The Court refuses to acknowledge, much less reconcile, its own numerous precedents that require reversal of a judgment based on non-probative evidence, even though the evidence was admitted without objection. The Court appears to think that if it ignores these cases they will somehow go away. The Court steadfastly evades the one and only issue over which these parties have fought since the day this litigation began--whether there is reliable evidence that Ellis suffers from neurotoxicity. I would decide this issue; therefore I dissent.
I
It is undisputed that Ellis suffered some injury from his exposure to diazinon and should recover some damages, but it is equally undisputed that if he did not suffer long-term neurotoxicity, his damages are nowhere near $8,576,000. The court of appeals, in determining the factual sufficiency of the evidence, considered expert testimony that Ellis not only was injured but that he suffers from neurotoxicity. Maritime Overseas argues that evidence offered in support of Ellis's long-term injury claims is unreliable and therefore no evidence at all. Thus, Maritime Overseas contends that the court of appeals erred in considering such testimony in its factual sufficiency review. The Court correctly summarizes Maritime Overseas' argument: "In essence, Maritime would have this Court conduct a no evidence review of the evidence about delayed neurotoxicity within the Court's review of whether the court of *416 appeals properly reviewed the factual sufficiency of the evidence." Ante at 412. Then the Court says: "We decline to do so." Id.
But the Court did not "decline to do so" last year in Texarkana Memorial Hospital, Inc. v. Murdock, 946 S.W.2d 836 (Tex.1997)....
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The present case is indistinguishable from Murdock. There, as here, the argument was that while some evidence showed some damages, no evidence supported all the damages awarded. Although the Hospital complained of the legal sufficiency of the evidence, it in effect challenged the court of appeals' factual sufficiency review for considering non-probative evidence, and we treated the complaint as being directed to that review, remanding for a new trial rather than rendering judgment for the Hospital. Maritime Overseas' application for writ of error states: "There is no evidence that diazinon causes delayed neurotoxicity and thus insufficient evidence that Ellis suffered $8,576,000 in actual damages." The arguments in the two cases, while phrased differently, are indistinguishable in import and effect. The arguments and the relief sought are the same in both.
Why isn't Murdock controlling or at leastinstructive? The Court refuses to answer, refuses even to cite Murdock. The argument that there is some significance in the Hospital's no-evidence challenge and Maritime Overseas' insufficient-evidence challenge is too weak even for the Court to employ. If anything, Maritime Overseas' contention that the evidence of damages is insufficient because there is no evidence of some damages awarded is more straightforward than the Hospital's contention that there was no evidence of the damages awarded because there was some evidence of only lesser damages. But in fact, both arguments come out at the same place, in substance--some but not all of the damages are supported by the evidence--and in result--a new trial excluding the unsupported claims. *417 Maritime Overseas' first point of error in this Court asserts: "The court of appeals erred in failing to examine whether any well-founded scientific methodology supports the award of ... actual damages." Even if Maritime Overseas could be faulted for misphrasing its point of error, that mistake cannot dictate the result in the case.
A point of error "is sufficient if it directs the attention of the appellate court to the error about which complaint is made." Courts are to construe rules on briefing liberally. An appellate court should consider the parties' arguments supporting each point of error and not merely the wording of the points.
Anderson v. Gilbert, 897 S.W.2d 783, 784 (Tex.1995) (per curiam) (citations omitted). Maritime Overseas' argument in its application for writ of error is crystal clear:
In this case, Ellis offered no epidemiological study, no peer-reviewed theory, nor any evidence of general scientific acceptance to support the conclusion of his experts that his exposure to diazinon caused delayed neurotoxicity. The premise upon which his experts' conclusion was based--that because some organophosphates can cause delayed neurotoxicity, diazinon therefore must cause delayed neurotoxicity--is false logic, as pointed out by Justice Robertson's concurring and dissenting opinion, because some organophosphates do not cause delayed neurotoxicity.
To make the matter even clearer, Maritime Overseas summarizes its position thusly: "There is no evidence that diazinon causes delayed neurotoxicity and thus insufficient evidence that Ellis suffered $8,576,000 in actual damages."
The result in Murdock was correct, and the same analysis should be applied in this case. A party must have a means of contesting the amount of damages when there is evidence for some claims but not all of them. Following Murdock, Maritime Overseas is entitled to a new trial if its evidentiary complaint has been preserved and has merit. The Court holds that Maritime Overseas' complaint was not preserved and does not reach the merits.
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Just last year in Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex.1997), we reiterated that "an expert's bare opinion will not suffice" to provide evidence of causation of an injury; "[t]he substance of the testimony must be considered." Id. at 711. Merrell Dow asserted in the trial court that scientific evidence of any causal connection between the use of Bendectin and birth defects was unreliable, and it "objected to the admission of some, but not all, of this evidence." Id. at 709. We held that the expert testimony, even that admitted without objection, was no evidence to support a judgment for Havner because the testimony showed that there was no basis for the experts' opinions. We said: "When the expert 'br [ings] to court little more than his credentials and a subjective opinion,' this is not evidence that would support a judgment." Id. at 712 (citation omitted). We added:
Justice Gonzalez, in writing for the Court, gave rather colorful examples of unreliable scientific evidence in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995), when he said that even an expert with a degree should not be able to testify that the world is flat, that the moon is made of green cheese, or that the Earth is the center of the solar system. If for some reason such testimony were admitted in a trial without objection, would a reviewing court be obliged to accept it as some evidence? The answer is no. In concluding that this testimony is scientifically unreliable and therefore no evidence, however, a court necessarily looks beyond what the expert said. Reliability is determined by looking at numerous factors including those set forth in Robinson and [Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ]. The testimony of an expert is generally opinion testimony. Whether it rises to the level of evidence is determined under our rules of evidence, including Rule 702, which requires courts to determine if the opinion testimony will assist the jury in deciding a fact issue. While Rule 702 deals with the admissibility of evidence, it offers substantive guidelines in determining if the expert testimony is some evidence of probative value.
***
To summarize, bare conclusions and assertions unsupported by facts of record, expert opinions based on facts merely assumed and not proved, or facts different from those proved, and scientific testimony without any reliable basis, even if admitted without objection, are no evidence to support a finding of fact. An expert's opinion that disease was contracted through working conditions, or that a spray caused frostbite, or that a medication caused birth defects, even if admitted without objection, is not probative evidence if the testimony shows that the opinion lacks any substantial basis. This is not to say that the deficiency in the evidence need not be pointed out in any way before the verdict, but only that it can be done by cross-examination and means other than objections.
***
The Court holds that the reliability of scientific evidence must be objected to before trial or when the evidence is offered. How one objects to evidence before trial is not entirely clear. The Court mentions Merrell Dow's motion for summary judgment and motion in limine in Havner, suggesting that these are ways in which scientific evidence can be challenged. As already noted, the Court states that "Merrell Dow objected to the admission of the Havners' scientific evidence", ante at 411, but this is only partly true. Merrell Dow only objected to some of the Havners' evidence. Had Merrell Dow been foreclosed from attacking the reliability of evidence to which it did not object, there would have been evidence to support the verdict. Thus, the Court's holding that no evidence supported the verdict was despite the absence of objections.
***
Our precedents seem to teach that parties should not be permitted to attack evidence for the first time after the verdict unless it is plainly without probative value--such as an opinion based on the moon's being made of green cheese, or a mere assertion that a person is another's employee, or that a person was injured in the course of work, or that a person made an agreement. In most situations, however, if the probative value of evidence is to be in question, then ordinarily the issue must be raised before the verdict. This prevents the ambush that concerns the Court and puts both parties and the trial court on notice of the contentions in the case. But it hardly makes sense to require a specific objection to each line of scientific opinion testimony when a party's stated, clear position is that the opinion is baseless....
***
The use of scientific evidence at trial poses unique problems. Sometimes, as in Havner, the entire body of evidence is unreliable from a scientific viewpoint. At other times, as in Crye and Schaefer, the evidence is unreliable because it is based on assumptions that cannot be demonstrated. In still other cases, like this one, the evidence is unreliable only as it pertains to a part of the claims. For the most part, I agree with the Court that the issue of the reliability of scientific evidence should be raised in the trial court. The exception is when the evidence is plainly lacking in probative value--the moon is made of green cheese. But it is not at all clear what procedures should be used to raise reliability challenges. The Court refers to motions in limine, although as a general rule rulings on such motions do not preserve error. The Court also refers to summary judgments, although this procedure may not work well when testimony is important to illuminate the issue. The Court insists that there be an objection, but Havner shows the difficulty of objecting to an entire case. Moreover, once the issue has been identified, why should further objection be necessary?
***
Maritime Overseas' challenge to Ellis's scientific evidence is valid. Although Ellis's experts testified that Ellis's exposure to diazinon caused neurotoxicity, there was no basis for their opinions in any scientific literature or experimentation. The experts reviewed all the literature regarding neurotoxicity from exposure to pesticides in general and organophosphates in particular; none was omitted. Nowhere in the literature is there any demonstration that diazinon causes neurotoxicity.
Ellis's position is that diazinon is an organophosphate, some organophosphates cause neurotoxicity (although some do not), and therefore diazinon causes neurotoxicity. The logical fallacy in this syllogism is apparent. The record establishes that no scientific evidence exists for concluding that diazinon is among the organophosphates that causes neurotoxicity or among those that do not. There is simply no way to tell.
In Havner, plaintiffs offered extensive epidemiological evidence showing a relationship between Bendectin and birth defects, but the relationship was never shown to be statistically significant. We held that that was no evidence to support a finding that Bendectin causes birth defects. The evidence in the present case is even weaker than the evidence in Havner. Here there is no evidence at all, other than Ellis's experts' bare opinions, showing a relationship between diazinon exposure and neurotoxicity. Moreover, all physical medical evidence--electroencephalograms, peripheral nerve tests, an MRI, and a CAT scan--have shown Ellis to be in normal health, aside from problems relating to obesity, high blood pressure, smoking, and alcohol dependency. Under our precedents, the experts' unsupported opinions cannot provide a basis for a judgment against Maritime Overseas.
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Because there is no basis for Ellis's experts' opinions that his exposure to diazinon caused him to suffer from neurotoxicity, those opinions were not probative evidence and should not have been considered by the court of appeals in assessing the factual sufficiency of the evidence of causation of Ellis's damages. Accordingly, I would reverse the court of appeals' judgment and remand the case to that court to redetermine the factual sufficiency of the evidence.