An expert witness, providing an affidavit in opposition to a motion for summary judgment, must provide the same type of testimony he or she would provide if called as a witness at trial. Information known to the expert and the basis of the expert’s testimony will be ignored if it is simply conclusory.
In Edgar Ortega and Bituminous Insurance Company v. National Oilwell Varco, L.P., Court of Appeals of Texas, No. 07-13-00140-CV (April 24, 2014), [enhanced version available to lexis.com subscribers], an injured worker, Edgar Ortega and his insurer, Bituminous Insurance Company (jointly referred to as Ortega) appeal from the granting of a no evidence motion for summary judgment in favor of National Oilwell Varco, L.P. (NOV). Ortega sued NOV alleging claims of negligence and products liability for injuries received while working on an oil rig manufactured by NOV. In response to the summary judgment motion, Ortega offered only an affidavit from an engineer who opined as to NOV’s liability.
Ortega challenges the trial court’s finding that William Munsell (the engineer) lacked the qualifications to render the opinions given and that his testimony was conclusory, speculative, and lacking in factual support. Since the propriety of a finding concerning the trial courts ruling with regard to Munsell is dispositive, the court of appeal limited its decision to that ruling.
Munsell’s affidavit consisted of a statement describing the information he had reviewed which information included his examination or review of:
1) component parts and research concerning such component parts,
2) the Model 5C rig manufactured by National Oilwell VARCO . . . and involved in the subject accident, and
3) seven depositions and exhibits thereto.
He also mentioned interviewing four persons. The entirety of the opinions that followed are these: “My opinion is that the subject workover rig . . . was defective as designed and manufactured, and that said rig was negligently designed and manufactured by the manufacturer, in such respects as are more specifically set forth hereafter. Further, the defects and acts and omissions of negligence were producing and proximate causes of the accident in which Mr. Ortega was injured.”
Conclusory statements by an expert witness are insufficient to raise a question of fact to defeat a summary judgment. Conclusory statements are ones that do not provide the underlying facts to support the conclusion. An expert opinion is conclusory when the opinion has no basis or when the basis provides no support.
Munsell’s opinions and statements are conclusory. The most the court was able to derive from them is that:
1) some unnamed “component part” failed to perform as intended and acted as “a producing and proximate cause of the accident,”
2) an unnamed safety system failed in a foreseeable way, safer alternative designs were available, there were unnecessary delays in the braking function, and
3) the service and emergency brakes failed to function.
Munsell did not, however, explain or reveal what the component part was and whether it was part of the braking system or some other system, how the part was designed or manufactured defectively, and how the failure of the part resulted in the accident, whether the safety system that failed is the braking system or some other system, how the safety system was designed or manufactured defectively, why it was foreseeable that the system would fail, and how that failure resulted in the accident, the identity or description of safer alternative designs that were purportedly feasible, why they were safer and feasible, and whether they would have prevented or reduced the risk of personal injury without impairing the utility of the product, what facts made the delays in the braking function unnecessary and how those delays resulted in the accident, and what facts showed a breach of duty by NOV with respect to the failure of the brakes.
The court of appeal concluded that the absence of this information was fatal Ortega’s claim and suit. No other summary judgment evidence appears of record to explain the conclusions reached by Munsell. Therefore, the trial court did not err in finding his opinions to be conclusory, that is, lacking in factual support.
A witness, even an expert witness, may have personal knowledge of facts; yet, he must still disclose those facts for his testimony to have any value. While the engineer may have had personal knowledge of his opinions and facts underlying them, his opinions were conclusory and lacked probative value because those facts (or the rationale for his opinions) went unmentioned in his affidavit.
Noting that Munsell’s opinions may be quite reliable the court of appeal concluded they had no evidentiary value if unaccompanied by explanations or facts. Indeed, when testimony is challenged as being non-probative or conclusory on its face, there is no need to go beyond the face of the record to determine their reliability. As a result the court of appeal affirmed the trial court.
Since one of the plaintiffs was an insurance company – a professional litigant – it paid a great deal of money for the work of Mr. Munsell and should have made sure that the affidavit submitted contained more than his conclusions as to the defects in the oil rig. It needed to make sure that the opinions stated the facts and knowledge that supported the conclusion that the defendant produced a defective product.
The suit was lost, not because it had no value, but because counsel for Ortega and Bituminous allowed the expert to prepare a bare, conclusory, affidavit. Experts, like engineers, are usually not lawyers and need the assistance of the experienced litigant and counsel to make sure that the expert’s report provides the court with evidence it can rely on in making its decision.
By Barry Zalma, Attorney and Consultant
Reprinted with Permission from Zalma on Insurance, (c) 2014, Barry Zalma.
Barry Zalma, Esq., CFE, is a California attorney who limits his practice to consultation regarding insurance coverage, insurance claims handling, insurance bad faith and fraud and acting as a mediator or arbitrator on insurance disputes. Mr. Zalma serves as a consultant and expert almost equally for insurers and policyholders. He founded Zalma Insurance Consultants in 2001 and serves as its only consultant. He recently published the e-books, "Zalma on Rescission in California - 2013"; "Random Thoughts on Insurance" containing posts from this blog; "Zalma on Insurance;" "Murder and Insurance Don't Mix;" “Heads I Win, Tails You Lose — 2011,” “Zalma on Diminution in Value Damages,” “Arson for Profit” and “Zalma on California Claims Regulations,” and others that are available at Zalma Books.
Mr. Zalma can be contacted at Barry Zalma or firstname.lastname@example.org, and you can access his free "Zalma on Insurance Fraud" newsletter at Zalma’s Insurance Fraud Letter.
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