American Coatings Association

ACA Submits Amicus Brief in Support of Daubert



Earlier this month, ACA submitted an amicus brief in the Texas Court of Appeals, Fifth District, to provide the court further guidance regarding the district court’s proper exercising of its gatekeeping responsibility to exclude scientifically unreliable expert testimony. E.I Du Pont de Nemours and Company v. Virgil Hood and Lorrie Hood, is a toxic tort case related to benzene on appeal from Texas District court. ACA’s brief supported DuPont, and urged the appellate court to reverse the lower court ruling.

In its brief, ACA posits that the DuPont appeal raises two fundamental issues that are increasingly arising in toxic tort litigation: How should a trial court exercise its gatekeeping responsibility in the face of (1) expert testimony that merely presumes the predicate facts of historical exposures necessary to opine to a plaintiff’s total dose and duration of exposure to an alleged toxin; and (2) expert testimony that misuses and selectively relies upon studies in order to support her causation opinion. ACA believes the trial court fundamentally erred in failing to hold plaintiffs to their burden of demonstrating that his experts’ testimony satisfied Texas law on the core issues of product exposure and causation.

ACA maintains that the faithful application of the Daubert standards for the admission of expert testimony is vital to the fair decision-making process of jurors in Texas courts. The Daubert standard requires not only that an expert use reliable scientific principles and methods, but also that those principles and methods be properly applied to the particular facts of each case. ACA is a strong proponent of Daubert as the paradigm for a national standard for admissibility of scientific expert testimony.

To protect against the use of “junk science” in the courtroom, the U.S. Supreme Court issued a series of rulings in the 1990s — known as the Daubert trilogy — instructing trial courts to act as gatekeepers to only allow relevant and reliable scientific evidence to be presented to a jury. In its amicus brief, ACA cited the Texas Supreme Court statement that “[t]he trial court must act as an evidentiary gatekeeper to exclude irrelevant and unreliable expert evidence.”

Through its Amicus and Legal Tracking System program, ACA chooses select prominent cases each year in which it files an amicus, or “friend of the court,” brief as a show of support for issues that can adversely impact the industry. Specifically, the Amicus Program seeks to prevent court decisions that establish bad precedent, or to overturn such precedent where it currently exists, and to advance the legal protection of property due process and liberties that rightfully belong to good faith corporate interests and behavior. Since the program’s 2007 inception, ACA has filed some more than 50 amicus briefs.

In the brief, ACA also argues that the plaintiffs’ experts should have been excluded under Texas Rule of Evidence 702. To sustain the judgment of the trial court, the testimony of both plaintiffs’ experts must be admissible (one expert’s testimony was predicated on the other’s) — yet the testimony offered by the two purported experts failed to satisfy the requirements of Texas law.

ACA urged the appellate court to that Texas Rule of Evidence 702 and Daubert require district courts to serve as gatekeepers against expert testimony that is predicated on a scientifically unreliable factual foundation. ACA maintains that the district court abused its discretion in admitting this type of speculative expert testimony in this case, and the resulting judgment in favor of the appellee should be reversed.


Contact ACA’s Tom Graves for more information.