                                                                                              ACCEPTED
                                                                                          14-14-00010-CV
                                                                          FOURTEENTH COURT OF APPEALS
                                                                                       HOUSTON, TEXAS
                                                                                    4/29/2015 11:19:20 AM
                                                                                    CHRISTOPHER PRINE
                                                                                                   CLERK


                         No. 14-14-00010-CV
                                                                        FILED IN
                                                                 14th COURT OF APPEALS
                                                                    HOUSTON, TEXAS
                        In the Fourteenth Court of Appeals
                                                                 4/29/2015 11:19:20 AM
                                  Houston, Texas                 CHRISTOPHER A. PRINE
                                                                          Clerk


                              WENDY SCHREIBER,
                            Appellant/Cross-Appellee,

                                          v.

                              STATE FARM LLOYDS,
                             Appellee/Cross-Appellant.


                     On Appeal from the 190th District Court
                              Harris County, Texas
                       Trial Court Cause No. 2012-03419


             APPELLANT’S SUPPLEMENTAL AUTHORITIES


TO THE HONORABLE FOURTEENTH COURT OF APPEALS:

      Appellant Wendy Schreiber submits these supplemental authorities, both

published within the past few days, in support of her appeal of the trial court’s

judgment.

      If there were any doubt about the admissibility or discoverability of the facts

relating to Blevins’s and Deutsch’s bias, prejudice, and reputations for truthfulness,

the Texas Supreme Court has put that to rest:
         Relevance also governs the scope of cross-examination in Texas, as the
         rules allow witnesses to be cross-examined “on any matter relevant to
         any issue in the case.” Tex. R. Evid. 611(b). And it is well established
         that “any fact which bears upon the credit of a witness would be a
         relevant fact, ... whether it goes to his indisposition to tell the truth, his
         want of opportunity to know the truth, his bias, interest, want of
         memory, or other like fact.” Evansich v. Gulf, C. & Santa Fe R.R. Co.,
         61 Tex. 24, 28 (1884).

JLG Trucking, LLC v. Garza, No. 13–0978, --- S.W.3d ----, 2015 WL 1870072 (Tex.

April 24, 2015) (emphasis added) (attached at Tab A). The trial court thus committed

error.

         The ability to demonstrate bias, prejudice, and lack of truthfulness is especially

important in situations where, as here, the witness wears two hats:

         Once he or she has qualified as an expert, and explained fire science to
         the jury, the members of the jury are likely to perceive anything the
         investigator says as scientific fact, even when that is not the case.
         Particularly in a case where there is one individual serving as both the
         scientist and the law enforcement investigator or case agent, there exists
         a risk of confusion if the two roles are not distinguished.

         A fire investigator’s core competency is determining where the fire
         started. Recent studies have shown that the error rate for this important
         task may be shockingly high. And knowledge that the homeowner was
         behind his or her mortgage or recently had an argument with his or her
         spouse are facts that are not the least bit relevant to the task.

John J. Lentini, Contextual Bias in Fire Investigations: Scientific vs. Investigative

Data, THE BRIEF, v. 44, no. 3 at 41 (Spring 2015) (published by the Tort Trial &




                                              -2-
Insurance Prac. Sec. of the Am. Bar Ass’n) (emphasis in original) (attached at Tab B).

The trial court’s error was thus harmful.

                                                  KELLY, DURHAM & PITTARD, L.L.P.


                                       By:        /s/ Peter M. Kelly
                                                  Peter M. Kelly, Lead Counsel
                                                  State Bar No. 00791011
                                                  1005 Heights Boulevard
                                                  Houston, Texas 77008
                                                  Telephone: 713.529.0048
                                                  Facsimile: 713.529.2498
                                                  Email: pkelly@texasappeals.com

                                                  DOYLE RAIZNER LLP

                                                  /s/ Michael Patrick Doyle
                                                  Michael Patrick Doyle
                                                  State Bar No. 06095650
                                                  Andrew P. Slania
                                                  State Bar No. 24056338
                                                  2402 Dunlavy Street, Suite 200
                                                  Houston, Texas 77006
                                                  Telephone: 713.571.1146
                                                  Facsimile: 713.571.1148
                                                  Email: mdoyle@doyleraizner.com

                                                  Counsel for Wendy Schreiber




                                            -3-
                          CERTIFICATE OF COMPLIANCE

      Relying on the word count function in the word processing software used to
produce this document, I certify that the number of words in this supplemental
(excluding any caption, signature, proof of service, and certificate of compliance) is
384.

      This document complies with the typeface requirements of TRAP 9 because:

             WordPerfect X6 in 14-point Aldine401 BT.



                                               /s/ Peter M. Kelly
                                               Peter M. Kelly




                                         -4-
                           CERTIFICATE OF SERVICE

      A true and correct copy of this Appellant’s Supplemental Authorities has been
forwarded to all counsel of record on April 29, 2015, by electronic service:

M. Micah Kessler
mkessler@NCK-Law.com
Kathleen Crouch
kcrounch@NCK-Law.com
NISTICO, CROUCH & KESSLER, P.C.
1900 West Loop South, Suite 800
Houston, Texas 77027

Linda J. Burgess
lburgess@winstead.com
Elliot Clark
eclark@winstead.com
WINSTEAD PC
401 Congress Ave., Suite 2100
Austin, Texas 78701

Counsel for State Farm Lloyds




                                              /s/ Peter M. Kelly
                                              Peter M. Kelly




                                        -5-
TAB A
                                                                                          Page 1
--- S.W.3d ----, 2015 WL 1870072 (Tex.)
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NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE
PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR
WITHDRAWAL.

                                JLG Trucking, LLC, Petitioner,
                                             v.
                                 Lauren R. Garza, Respondent
                                          NO. 13–0978
                                 Supreme Court of Texas.
                                Argued February 26, 2015
                           OPINION DELIVERED: April 24, 2015
ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FOURTH
DISTRICT OF TEXAS
JUSTICE LEHRMANN delivered the opinion of the Court.
    *1 This case requires us to review the trial court's exclusion of evidence on relevance
grounds. The plaintiff was involved in two car accidents approximately three months apart.
After the second accident, she sued the opposing driver in the first accident and alleged that
this collision caused her injuries. The defendant sought to present two alternative defensive
theories. First, the defendant presented expert testimony that the plaintiff's injuries were de-
generative and thus not trauma-related at all. Alternatively, the defendant contended that the
second accident caused her injuries. On the plaintiff's pretrial request, and because of the lack
of expert testimony supporting the defendant's alternative theory, the trial court excluded all
evidence of the second accident on relevance grounds. The trial court rendered judgment on
the jury's verdict for the plaintiff, and the court of appeals affirmed. We hold that evidence of
the second accident was relevant to the central issue of whether the defendant's negligence
caused the plaintiff's damages. We further hold that the trial court committed harmful error in
excluding the evidence, and particularly in refusing to allow cross-examination of the
plaintiff's expert on the subject. Accordingly, we reverse the court of appeals' judgment and
remand the case for a new trial.
                                         I. Background
    On July 16, 2008, Lauren Garza was traveling south on U.S. Highway 83 in Zapata
County when an 18–wheeler driven by a JLG Trucking, LLC employee rear-ended her truck.
An ambulance was called to the scene but did not transport Garza to the hospital. Instead, Gar-
za testified that her aunt took her to a nearby emergency clinic where x-rays were taken, al-
though the record contains no medical records from the clinic regarding that visit. Five days
later Garza saw an orthopedic surgeon, Dr. Guillermo Pechero, complaining of neck and back
pain. An x-ray showed some straightening of the lordotic curve, which Dr. Pechero concluded




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was associated with muscle spasms in the neck. Dr. Pechero prescribed physical therapy,
which Garza underwent for roughly eleven weeks.
    On October 9, 2008, shortly after ceasing physical therapy, Garza was involved in a
second car accident. She was taken by ambulance from the scene of the accident to a hospital
on an immobilization board with a hard collar to prevent movement in her neck. At the hospit-
al, Garza complained of pain in her head, neck, and chest. On October 31, Garza returned to
Dr. Pechero for a follow-up visit, complaining of continuous pain in her neck that radiated in-
to her shoulders. Dr. Pechero ordered an MRI, which revealed that Garza had two herniated
discs in her neck. Dr. Pechero began a conservative treatment of primarily medication in
hopes of avoiding surgery, but a March 2009 nerve study revealed that a nerve at the site of
the herniations had become compressed, and a second MRI in August 2011 showed two addi-
tional herniated discs in her neck. Garza underwent spinal fusion surgery in January 2012. The
surgery was successful, and at the time of trial Garza was “doing well.” However, Garza lives
with a scar on her neck, reduced neck mobility, the permanent presence of hardware from the
surgery, and the possibility of future surgery.
    *2 Garza sued JLG, alleging that the employee driver's negligence proximately caused her
injuries and seeking damages for past and future medical expenses, loss of earning capacity,
physical pain, mental anguish, physical impairment, and disfigurement.FN1 Garza's treating
physician, Dr. Pechero, served as her expert witness to testify that the July 2008 accident
caused the herniated discs. JLG designated Dr. Bruce Berberian, a neuroradiologist, as its ex-
pert witness to testify that Garza was suffering from degeneration of her discs, and not a
trauma-related injury at all. JLG also intended to introduce evidence of the October accident
as an alternative cause of Garza's injuries, although JLG did not designate an expert to testify
in support of that theory.
       FN1. Garza named the employee as a defendant, but it appears that he was never
       served with citation. Garza also asserted claims against JLG for negligent entrustment
       and gross negligence, but those claims were not submitted to the jury.
    Garza filed a pretrial motion to exclude any evidence of the second accident on the
grounds that such evidence was not relevant, or that its probative value was substantially out-
weighed by the unfair prejudice or confusion it would cause the jury, because “there is no
causal connection between the injuries [Garza] is complaining of and the subsequent colli-
sion.” After a hearing, the trial court granted Garza's motion to exclude.
    Dr. Pechero testified by deposition at trial that the July accident caused Garza's injuries.
He noted that Garza exhibited neck pain after that accident and that the October MMI revealed
injuries consistent with a rear-end collision. One portion of the deposition played to the jury
contained the following exchange between Dr. Pechero and Garza's counsel:
   Q. Now, up to this point in the treatment of her you took a history, correct?
   A. Correct.
   Q. And Lauren indicated to you that she had not had any or been involved in any other ac-




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 cidents other than the one from July—July 16th of 2008; is that correct?
   A. I don't think I asked her one way or the other on that.
   ....
   Q. Well, you took a history, correct?
   A. Correct.
   Q. All right. And let's take a look at the July 21st note real quick.
   A. Okay. Are you referring to the October note, or the July note?
   Q. The July note.
   A. Oh, okay. In the July note, she did not have any other history of injury.
    Taking the position that this testimony opened the door to questions concerning the second
accident, JLG renewed its objection to the exclusion of all mention or evidence of that acci-
dent. The trial court upheld its earlier exclusion ruling, and JLG submitted an offer of proof as
to the testimony that would have been elicited from Dr. Pechero and the evidence that would
have been presented in support of the second accident as an alternative cause. JLG's offer of
proof included the police report regarding the second accident, photos of Garza's vehicle after
the second accident, medical records documenting Garza's emergency treatment after that ac-
cident, and Dr. Pechero's testimony that he had not reviewed those medical records. Garza re-
sponded with an offer of proof consisting of Dr. Pechero's testimony that he had relied on Dr.
Berberian's testimony that the second accident did not cause Garza's injuries to rule out that
possibility. The jury found that JLG's employee's negligence proximately caused the July acci-
dent and awarded her $1,166,264.48 in damages. FN2
          FN2. The jury awarded $108,135.48 for past medical expenses, $110,000.00 for future
          medical expenses, $583,693.00 for future loss of earning capacity, $42,048.00 for past
          physical pain, $252,288.00 for future physical pain, $5,000.00 for past physical
          impairment, $57,600.00 for future physical impairment, and $7,500.00 for future dis-
          figurement. The jury awarded $0 for past loss of earning capacity, past and future men-
          tal anguish, and past disfigurement.
     *3 JLG appealed the trial court's judgment on the verdict, arguing that evidence of the
second accident was relevant and that its exclusion amounted to harmful error because it pre-
vented JLG from holding Garza to her burden of proving that JLG caused her injuries. The
court of appeals affirmed, holding that the trial court did not abuse its discretion in excluding
evidence of the second accident because “expert testimony would be required to establish any
... causal link between the second collision and Garza's injuries.” ––– S.W.3d ––––,––––
(Tex.App.–San Antonio 2013).
                                      II. Analysis
   We review a trial court's exclusion of evidence for an abuse of discretion. Interstate




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Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex.2001). Erroneous exclusion of evid-
ence is reversible only if it probably resulted in an improper judgment. Id.; TEX. R. APP. P.P.
44.1(a)(1). In this case, the disputed evidence was excluded as irrelevant, and so the rules of
evidence governing relevance are the starting point of our analysis.
         A. Evidence of the Second Accident Is Relevant to the Issue of Causation
    Rule 401 broadly defines relevant evidence to include “evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” TEX. R. EVID. 401. Evid-
ence that is not relevant is inadmissible, while relevant evidence is admissible unless other-
wise excluded by law. TEX. R. EVID. 402. Relevance also governs the scope of cross-
examination in Texas, as the rules allow witnesses to be cross-examined “on any matter relev-
ant to any issue in the case.” TEX. R. EVID. 611(b). And it is well established that “any fact
which bears upon the credit of a witness would be a relevant fact, ... whether it goes to his in-
disposition to tell the truth, his want of opportunity to know the truth, his bias, interest, want
of memory, or other like fact.” Evansich v. Gulf, C. & Santa Fe R.R. Co., 61 Tex. 24, 28
(1884). Finally, relevant evidence “may be excluded if its probative value is substantially out-
weighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”
TEX. R. EVID. 403.
    JLG argues that evidence of the second accident is relevant to the causation element of
Garza's negligence claim. We agree. Establishing causation in a personal injury case requires
a plaintiff to “prove that the conduct of the defendant caused an event and that this event
caused the plaintiff to suffer compensable injuries.” Burroughs Wellcome Co. v. Crye, 907
S.W.2d 497, 499 (Tex.1995). For example, when an accident victim seeks to recover medical
expenses, she must show both “what all the conditions were” that generated the expenses and
“that all the conditions were caused by the accident.” Guevara v. Ferrer, 247 S.W.3d 662, 669
(Tex.2007). Further, “expert testimony is necessary to establish causation as to medical condi-
tions outside the common knowledge and experience of jurors.” Id. at 665. Finally, we have
held that “if evidence presents ‘other plausible causes of the injury or condition that could be
negated, the [proponent of the testimony] must offer evidence excluding those causes with
reasonable certainty.’ ” Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 218 (Tex.2010)
(quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 720 (Tex.1997) (alteration in
Crump ) (emphasis in Crump omitted)); see also Harris v. Belue, 974 S.W.2d 386, 393–94
(Tex.App.–Tyler 1998, pet. denied) (rejecting the argument that the plaintiff failed to negate
other probable causes of her injury in light of the lack of factual support in the record for
those proposed causes).
    *4 In this case, Garza sought to prove that the negligence of JLG's employee caused the
July accident. She also sought to prove by expert testimony from Dr. Pechero that this acci-
dent caused the herniated discs in her neck along with all of the associated pain, medical ex-
penses,FN3 loss of earning capacity, impairment, and disfigurement. JLG sought to under-
mine Garza's theory and Dr. Pechero's testimony by presenting evidence of the October 2008
accident as an alternative cause of those injuries. Garza argues that the record does not sup-
port a connection between the October accident and her injuries, rendering the evidence prop-
erly excluded.




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       FN3. Garza did not seek to recover medical expenses associated with her emergency
       treatment immediately after the second accident.
    Garza relies in part on Farmers Texas County Mutual Insurance Co. v. Pagan, 453 S.W.3d
454 (Tex.App.–Houston [14th Dist.] 2014, no pet.). In Pagan, the plaintiff alleged that vari-
ous neck and shoulder injuries were caused by a March 2008 car accident. Id. at 458. The de-
fendant sought to introduce evidence of an April 2009 “horse incident,” FN4 which the trial
court excluded. Id. at 459–60. The court of appeals affirmed, holding that the trial court
“could reasonably conclude that informing the jury about a horse incident with no apparent
connection to the lasting injuries at issue in this case would confuse the issues and mislead the
jury.” Id. at 463. The court noted in pertinent part that (1) the interrogatory response in which
Pagan identified the horse incident did not mention any resulting neck or shoulder injuries, (2)
the medical records associated with the incident noted only “contusions” resulting from the
fall, and x-rays showed that her spine and shoulders were normal, and (3) records from Pa-
gan's family doctor indicating that she complained of neck and shoulder pain at a visit after
the horse incident did not reference the incident itself. Id.
       FN4. The evidence of the facts surrounding that incident is inconsistent. Some evid-
       ence indicates that Pagan fell off a horse, other evidence indicates that she was
       “trampled,” and still other evidence indicates that she fell while leading the horse on
       foot. 453 S.W.3d at 459–60.
    Regardless of whether Pagan was correctly decided, which we need not address, the evid-
ence of a connection between the proposed alternative cause and the plaintiff's injuries that the
court found lacking in Pagan is present in this case. JLG's offer of proof indicates that, as a
direct result of the second accident, Garza was transported to a hospital on an immobilization
board and constrained with a hard c-collar around her neck, she complained of neck pain once
she arrived, and she returned to Dr. Pechero three weeks later for the first time since the con-
clusion of her physical therapy with complaints of continuous pain in her neck radiating into
her shoulder. At that time, the MRI revealed the herniated discs. The circumstances surround-
ing the second accident and its aftermath provide the necessary factual support to present the
second accident as a “plausible cause” of Garza's injuries.FN5
       FN5. Certainly, expert testimony in support of the alternative cause would lend support
       to its plausibility. And in some cases, expert testimony may in fact be necessary to el-
       evate a proposed alternative cause from theoretically possible to plausible. But this is
       not that case.
    Significantly, the exclusion of the second accident curtailed JLG's ability to probe Dr.
Pechero's conclusions about causation by asking him to explain why he discounted the second
accident as an alternative cause. JLG's offer of proof shows that, in formulating his opinion,
Dr. Pechero did not review the records from Garza's emergency treatment after the second ac-
cident, which included the statements reflecting that Garza was experiencing neck pain in its
wake. According to Garza's responsive offer of proof, Dr. Pechero's only explanation for rul-
ing out the second accident as the cause of the herniations was that he relied on Dr. Berberi-
an's testimony to that effect. But Dr. Berberian concluded that neither accident caused Garza's




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injuries, calling into question the credibility of the methods underlying Dr. Pechero's ap-
proach. Cf. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 559 (Tex.1995)
(upholding the exclusion of expert testimony when the expert failed to “carefully consider
[and rule out] alternative causes”);FN6 see also TEX. R. EVID.. 607 (“The credibility of a
witness may be attacked by any party....”). JLG could not adequately cross-examine Dr.
Pechero on those methods without discussing the improperly excluded evidence.
       FN6. JLG did not move to exclude Dr. Pechero's testimony in the trial court. We cite
       Robinson because it highlights the significance of alternative causes when a plaintiff
       must prove causation by expert testimony.
 B. The Court of Appeals Erroneously Conflated Relevance and Evidentiary Sufficiency
   *5 The court of appeals held that the trial court correctly excluded evidence of the second
accident because “no expert testimony was proffered to establish that the second collision
caused any of Garza's injuries.” ––– S.W.3d at ––––. As support for its holding, the court of
appeals relied on a line of cases addressing the necessity of expert medical testimony to prove
causation in the personal-injury context. As discussed below, in doing so the court of appeals
conflated the concepts of relevance and evidentiary sufficiency and improperly shifted the
burden of proof to the defendant.
    Principal among the cases cited by the court of appeals was Guevara v. Ferrer, 247
S.W.3d 662 (Tex.2007). That case, like this one, involved a car accident that a jury found the
defendant caused. Id. at 663, 665. The plaintiff, who had a complicated medical history that
included hypertension, heart disease, and kidney failure, complained of stomach pains and re-
ceived emergency treatment, including abdominal surgery, immediately after the accident. Id.
at 663–64. Following that surgery, he spent three-and-a-half months in the hospital, two
weeks in a continuing care facility, and two more weeks in another medical facility. Id. at 664.
His family sought to recover all the medical bills generated by his stays at the hospital and
both facilities, which exceeded $1 million, but did not present expert medical evidence to
prove that the accident caused those expenses to be incurred. Id. at 664–65. We held that,
while “the evidence [was] legally sufficient to support a finding that some of his medical ex-
penses [such as those associated with his post-accident treatment in the emergency room]
were causally related to the accident,” it was “not legally sufficient to prove what the condi-
tions were that generated all the medical expenses or that the accident caused all of the condi-
tions and the expenses for their treatment.” Id. at 669–70 (emphases added).
    In Guevara, we applied the well-established general rule, cited above, that “expert testi-
mony is necessary to establish causation as to medical conditions outside the common know-
ledge and experience of jurors.” Id. at 665 (citing cases). And we did so in the context of con-
sidering the legal sufficiency of non-expert evidence to support a finding of causation. But we
did not hold that the lack of expert testimony rendered any of the evidence irrelevant or other-
wise admissible. In fact, relevance was not at issue in Guevara.FN7 In this case, although the
court of appeals was purporting to analyze relevance, in effect it was improperly analyzing
whether the evidence was legally sufficient to support a finding that the second accident
caused Garza's injuries. But JLG did not have the burden to prove causation; Garza did. It was
Garza's burden to prove that the first accident caused her injuries, and, as discussed above, the




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record in this case sufficiently demonstrates that the second accident is at least relevant to that
inquiry even without an expert proponent.
       FN7. We did confirm in Guevara that “evidence of temporal proximity ... between an
       event and subsequently manifested conditions” is not irrelevant to causation, although
       “temporal proximity ... does not, by itself, support an inference of medical causation.”
       247 S.W.3d at 667–68.
    Further, JLG did not rule out the relevance of the second accident by presenting expert
testimony that Garza's injuries were degenerative and not trauma-induced. Parties may plead
conflicting claims and defenses in the alternative so long as they have a “reasonable basis in
fact [and] law.” Low v. Henry, 221 S.W.3d 609, 615 (Tex.2007). In turn, parties may present
evidence of alternative, and even inconsistent, theories of relief, leaving to the jury to “choose
the theory that it believes based upon its resolution of the conflicting evidence.” Wilson v.
Whetstone, No. 03–08–00738–CV, 2010 WL 1633087, at *10 (Tex.App.–Austin April 20,
2010, pet. denied) (mem.op.) (holding that the plaintiff's claim and evidence of the parties' ac-
quiescence to the alleged property boundary line were not fatal to her adverse possession
claim, even assuming that the claims were mutually exclusive); see also In re Arthur Ander-
sen LLP, 121 S.W.3d 471, 482 n.32 (Tex.App.–Houston [14th Dist.] 2003, orig. proceeding)
(noting that a defendant could deny liability for conspiracy while simultaneously alleging that
third parties were also liable for conspiracy). But the burden still falls on the plaintiff to estab-
lish the elements of her cause of action.
    *6 In this case, as explained above, the burden was on Garza, the plaintiff, to establish
both that JLG caused the July 2008 accident and that this accident caused her injuries. Part of
that burden was to exclude with reasonable certainty other plausible causes of her injuries
supported by the record. Crump, 330 S.W.3d at 218. JLG's decision to present Dr. Berberian's
testimony in support of its theory that Garza's injuries were degenerative–which the jury ap-
parently found unpersuasive–did not relieve Garza of that burden. The defendant's responsibil-
ity “is not that of proving, but the purely negative one of repelling or making ineffective the
adversary's attempts to prove.” James B. Thayer, The Burden of Proof, 4 HARV. L. REV. 45,
56 (1890). In its efforts to repel Garza's attempts to prove her case, JLG was entitled to
present evidence of the second accident to the jury, which was relevant to Garza's theory of
causation irrespective of Dr. Berberian's testimony. The trial court therefore abused its discre-
tion in excluding that evidence.
                                      C. Reversible Error
    The trial court's error in excluding evidence of the second accident is reversible only if it
probably caused the rendition of an improper judgment. TEX. R. APP. P.. 44.1(a)(1). We have
declined to establish any “specific test” for determining whether evidentiary error resulted in
an improper judgment, but we have held that the appellate court must review the entire record,
“considering the state of the evidence, the strength and weakness of the case, and the verdict.”
Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871 (Tex.2008) (internal quotation
marks and citation omitted). We explained in Sevcik that “if erroneously admitted or excluded
evidence was crucial to a key issue, the error was likely harmful.” Id. at 873. “By contrast, ad-
mission or exclusion is likely harmless if the evidence was cumulative, or if the rest of the




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evidence was so one-sided that the error likely made no difference.” Id. In this case, the evid-
ence of the second accident was crucial to whether JLG's negligence caused Garza's injuries,
and the harm in its exclusion was compounded by JLG's curtailed cross-examination of Dr.
Pechero. Accordingly, we hold that the trial court's exclusion of evidence regarding the
second accident was reversible error requiring a new trial.FN8
       FN8. JLG did not contest on appeal the finding that its negligence caused the first acci-
       dent. It asserted only that the erroneously excluded evidence tainted the findings as to
       the damages caused by that accident. However, because liability was contested in the
       trial court, both liability and damages must be remanded. Estrada v. Dillon, 44 S.W.3d
       558, 562 (Tex.2001) (per curiam) (applying TEX. R. APP. P.P. 44.1(b)).
                                        III. Conclusion
    The trial court abused its discretion in excluding evidence of the second accident, which
was relevant to whether JLG's negligence caused Garza's damages. Accordingly, we reverse
the court of appeals' judgment and remand the case to the trial court for a new trial in accord-
ance with this opinion.

Tex., 2015
JLG Trucking, LLC v. Garza
--- S.W.3d ----, 2015 WL 1870072 (Tex.)
END OF DOCUMENT




                 © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                              Date of Printing: Apr 28, 2015
                                        KEYCITE
  JLG Trucking, LLC v. Garza, --- S.W.3d ----, 2015 WL 1870072 (Tex., Apr 24, 2015)
(NO. 13-0978)
                                     History
                                      Direct History

         1 JLG Trucking LLC v. Garza, 2013 WL 5570823 (Tex.App.-San Antonio Oct 09,
           2013) (NO. 04-13-00043-CV), review granted (Jan 30, 2015)
                        Judgment Reversed by
=>       2 JLG Trucking, LLC v. Garza, --- S.W.3d ----, 2015 WL 1870072 (Tex. Apr 24,
           2015) (NO. 13-0978)

                                    Court Documents
                          Appellate Court Documents (U.S.A.)

Tex. Appellate Petitions, Motions and Filings
         3 JLG TRUCKING, LLC, Petitioner, v. Lauren R. GARZA, Respondent., 2014 WL
           470789 (Appellate Petition, Motion and Filing) (Tex. Jan. 13, 2014) Petition for
           Review (NO. 13-0978)
         4 JLG TRUCKING, LLC, Petitioner, v. Lauren R. GARZA, Respondent., 2014 WL
           2472337 (Appellate Petition, Motion and Filing) (Tex. May 21, 2014) Response
           of Lauren R. Garza to Petition for Review of JLG Trucking, LLC (NO.
           13-0978)
         5 JLG TRUCKING, LLC, Petitioner, v. Lauren R. GARZA, Respondent., 2014 WL
           2761642 (Appellate Petition, Motion and Filing) (Tex. Jun. 4, 2014) Reply in
           Support of Petition for Review (NO. 13-0978)

Tex. Appellate Briefs
         6 JLG TRUCKING, LLC, Petitioner, v. Lauren R. GARZA, Respondent., 2014 WL
           4185526 (Appellate Brief) (Tex. Aug. 20, 2014) Petitioner's Brief on the Merits
           (NO. 13-0978)

Tex.App.-San Antonio Appellate Briefs
         7 JLG TRUCKING, LLC, Appellant, v. Lauren GARZA, Appellee., 2013 WL
           7090037 (Appellate Brief) (Tex.App.-San Antonio Apr. 25, 2013) Brief of Ap-
           pellant (NO. 04-13-00043-CV)




                        © 2015 Thomson Reuters. All rights reserved.
         8 JLG TRUCKING, LLC, Appellant, v. Lauren GARZA, Appellee., 2013 WL
           7090038 (Appellate Brief) (Tex.App.-San Antonio Jun. 25, 2013) Brief of Ap-
           pellee, Lauren Garza (NO. 04-13-00043-CV)

Tex. Oral Arguments
         9 JLG Trucking, LLC, v. Lauren R. Garza., 2015 WL 1359407 (Oral Argument)
           (Tex. Feb. 26, 2015) Oral Argument (NO. 13-0978)

                                     Dockets (U.S.A.)

Tex.
        10 JLG TRUCKING, LLC v. LAUREN R. GARZA, NO. 13-0978 (Docket) (Tex.
           Dec. 9, 2013)

Tex.App.-San Antonio
        11 JLG TRUCKING LLC v. LAUREN R. GARZA, NO. 04-13-00043-CV (Docket)
           (Tex.App.-San Antonio Jan. 17, 2013)

                            Expert Court Documents (U.S.A.)

Tex. Appellate Petitions, Motions and Filings
        12 JLG TRUCKING, LLC, Petitioner, v. Lauren R. GARZA, Respondent., 2014 WL
           470789 (Appellate Petition, Motion and Filing) (Tex. Jan. 13, 2014) Petition for
           Review (NO. 13-0978)
        13 JLG TRUCKING, LLC, Petitioner, v. Lauren R. GARZA, Respondent., 2014 WL
           2472337 (Appellate Petition, Motion and Filing) (Tex. May 21, 2014) Response
           of Lauren R. Garza to Petition for Review of JLG Trucking, LLC (NO.
           13-0978)
        14 JLG TRUCKING, LLC, Petitioner, v. Lauren R. GARZA, Respondent., 2014 WL
           2761642 (Appellate Petition, Motion and Filing) (Tex. Jun. 4, 2014) Reply in
           Support of Petition for Review (NO. 13-0978)

Tex. Appellate Briefs
        15 JLG TRUCKING, LLC, Petitioner, v. Lauren R. GARZA, Respondent., 2014 WL
           4185526 (Appellate Brief) (Tex. Aug. 20, 2014) Petitioner's Brief on the Merits
           (NO. 13-0978)




                        © 2015 Thomson Reuters. All rights reserved.
TAB B
Contextual Bias in
Fire Investigations
 Scientific vs. Investigative Data
         BY JOHN   J. LENTINI
C
          ontextual bias is an issue that has come to the            not scientifically valid. The introduction of expectation
          forefront of forensic science in the last few              bias into the investigation results in the use of only that
          years, and nowhere is contextual bias mo re                data that supports this previously formed conclusion and
likely to influence scientific determinations than in                often results in the misinterpretation and/or the discard-
fire investigation. This is largely because many fire                ing of data that does not support the original opinion.
investigators also serve simultaneously as law enforce-              Investigators are strongly cautioned to avoid expectation
ment offi cers.                                                      bias through proper use of the scientific method.'
    This article will explore the different duties, responsi-
bilities, and ethical requirements of the scientist and the       The question then becomes, what constitutes "all of
law enforcement officer. What data constitute scientific          the relevant data"? Relevant to what ? Relevant to a
evidence and what constitute investigative information ?          reliable sc ientific determination, or relevant to the
Can the two be separated? Should they be separated?               correct law enforcement conclusion? The two are not
How does the science suffer when the scientist is influ-          necessarily the same.
enced by contextual bias? How does law enforcement                   When fire investigators testify as expert witnesses,
suffer when a fire investigator is unable to classify a fire      they are allowed the privilege of expressing an opinion
based on the physical evidence?                                   to a jury, as long as that testimony meets these criteria:
    There are no easy answers to these questions. In one
case, the ethical and valid response may be obvious,                 (a)   the expert's scientific, technical, or other specialized
while in the next case, a fire investigator attempting to                  knowledge will help the trier of fact to understand
assist the jury to understand the physical evidence can                    the evidence or to determine a fact in issue;
easily cross the line and conflate valid, but domain irrel-          (b)   the testimony is based on sufficient facts or data;
evant, invest igative data with scientific proof. It is up to        (c)   the testimony is the product of reliable principles
counsel to help the expert witnesses delineate between                     and methods; and
information that can potentially bias the interpretation             (d)   the expert has reliably applied the principles
of the physical evidence, and information that is neces-                   and methods to the facts of the case. 2
sary for its objective evaluation.
                                                                  Whether the situation is a proper one for the use of
              "Scientific" Knowledge vs.                          expert testimony is to be determined on the basis of
             "Investigative" Knowledge                            assisting the trier of fact.
The fire investigation profession some time ago com-
mitted itself to conducting scientific investigations.               "There is no more certain test for determining when
The resu lt has been a significant improvement in the                experts may be used than the common sense inquiry
reliability of origin and cause determinations. In the               whether the untrained layman would be qualified to
intervening years, the "relevant investigative com-                  determine intelligently and to the best possible degree
munity," represented by the National Fire Protection                 the particular issue without enlightenment from those
Association (NFPA) Technical Committee on Fire                       having a specialized understanding of the subject
Investigations, has tried to root out those practices                involved in the dispute." 3
that make arri v ing at a valid scientifi c conclus ion
about the origin and cause of the fire more difficult.                Once he or she has qualified as an expert, and
O ne of the obstacles to reaching a valid conclusion is           explained fire science to the jury, the members of the
cognitive bias.                                                   jury are likely to perceive anything the investigator says
   The concept of expectation bias was first introduced           as scientific fact, even when that is not the case. Partic-
to   NFPA 921: Guide for Fire and Explosion Investigations        ularly in a case where there is one individual serving as
in the 2008 edition, when the following caution about             both the scientist and the law enforcement investigator
expectation bias was added.                                       or case agent, there exists a risk of confusion if the two
                                                                  roles are not distinguished.
     4.3.8 Expectation Bias. Expectation bias is a well-estab-       A fire investigator's core competency is determining
     lished phenomenon that occurs in scientific analysis         where the fire started. Recent studies have shown that
     when investigator(s) reach a premature conclusion with-      the error rate for this important task may be shockingly
     out having examined or considered all of the relevant        high. 4 And knowledge that the homeowner was behind
     data. Instead of collecting and examining all of the data    on his or her mortgage or recently had an argument with
     in a logical and unbiased manner to reach a scientifically   his or her spouse are facts that are not the least bit rel-
     reliable conclusion, the investigator(s) uses the prema-     evant to the task.
     ture determination to dictate investigative processes,          In Michigan MiUers Mutual Insurance Corp. v. Benfield,
     analyses, and, ultimately, conclusions, in a way that is     one of the fi rst reliability challenges to a fire investigator


                                                                                                                                      41
TORT TRIAL & INS URANCE PRACTICE SECTION                                                       THE BRIEF • SPRING 2015
0    TIP
When working
with experts,     serv ing in the role of the scientist,      it was argued that a law enforce-              The Holistic Approach
  beware of       the Eleventh Circuit Court of               ment officer crossed the line when      In 2009, two ATF-certified fire
 mixing fact      Appeals expounded on the spec ial           he attempted to put an "expert          investigators, Steven Avato and
  testimony       aura of reliability that surrounds          gloss" on what wou ld otherwise be      Andrew Cox, published an inter-
 with opinion     "scientific testimony":                     admissible fact witness testimony:      esting and provocative article in
testimony, or                                                                                         the Fire arul Arson Investigator enti-
 your expert         The use of "science" to explain             "Interpretations" of unambiguous     tled "Science and Circumstance:
   may lose          how something occurred has the              words or phrases that are plainly    Key Components in Fire Investiga-
  that "aura         potential to carry great weight             within the jury's understand-        tion." They provide two scenarios
  of special         with a jury, explaining both why            ing are unlikely to be admissible    of a fire that resulted in identical
  reliability."      counsel might seek to couch an              under Rule 702. Expert testi-        physical evidence. In the first sce-
                     expert witness's testimony in               mony does not assist where the       nario, Mr. mith says "Hello" to his
                     terms of science, as well as why            jury has no need for an opinion      secretary, goes into his office, and
                     the trial judge plays an important          because it easily can be derived     closes the door. He then lights a
                     role as the gate-keeper in moni-            from common sense, common            candle and discards the match in a
                     toring the evidentiary reliability          experience, the jury's own per-      trash can. He receives a phone call
                     of such testimony. See Daubert,             ceptions, or simple logic.           and immediately leaves the office,
                     [509 u.s. 579,590 (1993)].                                                       closing the door behind him. A fire
                     Because of the manner in which                 . . . The witness's dual role     erupts in the trash can. In the sec-
                     this expert's testimony was pre-           might confuse the jury, or a jury     ond scenario, Mr. Smythe angrily
                     sented to the jury, we find no             might be smitten by an expert's       storms past his secretary ranting, "I'll
                     error by the trial court in deter-         "aura of special reliability" and     fix them. They'll pay for firing me."
                     mining Daubert applied to the              therefore give his factual tes-       He then enters the office, slams the
                     testimony at issue.5                       timony undue weight. Experts          door behind him, and throws a lit
                                                                famously possess an "aura of spe-     match into the trash can. He ex its
                      The Benfield decision was                 cial reliability" surrounding their   the office and closes the door and
                  handed down in May 1998, about                testimony. And it is possible         shouts "Sic semper tyrannis!'>9
                  a year before the Supreme Court               that the glow from this halo may          The authors argue that classifying
                  found that Daubert and the Fed-               extend to an expert witness's fact    the second fire as "undetennined" is
                  eral Rules of Evidence apply to all           testimony as well, swaying the        a result of disregarding relevant data,
                  expert testimony, not just scien-             jury by virtue of his perceived       and state, "This approach is not only
                  tific testimony. ln Kumho Tire Co.            expertise rather than the logi-       a willful departure from scientifically
                  v. Carmichael, the Supreme Court              cal force of his testimony. Or, the   based problem solving, but it is also
                  held that the federal rules did not           jury may unduly credit the opin-      a dangerous methodology that has
                  distinguish between "scientific,"             ion testimony of an investigating     most certainly led to erroneous ori-
                  "technical," or "other specialized"           officer based on a perception         gin and cause determinations." 10 But
                  knowledge. 6 Expert testimony is              that the expert was privy to facts    what are the data relevant to? Cer-
                  expert testimony, and the court sys-          about the defendant not pre-          tainly, the jury is entitled to learn all
                  tem relies on it in most cases that           sented at trial. Alternatively,       of the facts uncovered during the
                  go to trial today.                            the mixture of fact and expert        investigation of this fire, but does
                      Problems can arise when expert            testimony could, under some cir-      that allow the investigator, using
                  testimony is comingled with other             cumstances, come close to an          his or her expertise as a fire scien-
                  investigative information. This               expert commenting on the ulti-        tist, to conclude based on the scene
                  problem was recently highlighted              mate issue in a criminal matter. 7    examination that he or she has "sci-
                  in a case decided by the Seventh                                                    entifically" determined that the fire
                  C ircuit Court of Appeals, in which         The court went on to admonish           was intentional?
                                                              judges to instruct juries about what        The second fire was certainly
                                                              testimony is expert testimony and       intentionally set, but no expert anal-
                  John J. Lentini is the president of         what is not, and it further stated      ysis or opinion is required to reach
                  Scientific Fire Analysis, LLC. He           that prosecutors shou ld structure      that conclusion. The jury requires
                  corulucts, supervises, arul reviews fire,   their examination of a witness to       no assistance in determining what
                  arson, explosion, and asphyxiation          allow for a separation of the expert    happened here. Sometimes the sci-
                  investigations, arul provides expert        testimony from the fact testimony       ence is not useful, nor is it necessary.
                  testimony on the results. He can be         when the law enforcement officer        In fact, presenting a perfectly logi-
                  reached at scientific. fire@yahoo. com.     testifies in a dual role. 8             cal and correct conclusion under the


             42
                   THE BRIEF • SPRING 2015                                                TORT TRIAL & INSURANCE PRACTICE SECTION
color of "science" might be consid-        A. The defendant poured gaso-                     Ethical Considerations
ered disingenuous.                            line on the victim, and then             Ethics can be defined as the science
    Avato and Cox set up several              he ignited it.                          of human duty in it broadest sense.
scenarios that do not de cribe how         B. The defendant poured gaso-               If we change the word "human" to
anyone investigates fires, but they           line on the victim, and then            "professional" we can define eth-
correctly state that it is the inves-         the victim ignited it.                   ics for every profe sion, but those
tigator's responsibility to find the       C. The victim poured gaso-                 ethics are different for each . cien-
"demarcation" between relevant                line on herself, and then she            tists must live by a different set of
sc ientific data and data that are not        ignited it.                              rules than law enforcement officers.
relevant. No matter how that line                                                     Prosecutors mu t live by a different
is drawn, it surely travels through a     Scientific evaluation of the physical       set of rules than defen e attorneys.
domain called "witness statements."       evidence was of no help.                    One hopes that all of the players in
Statements that describe observa-            In another case, the owner of a          the criminal justice system behave
tions about the fire, or knowledge        retail establishment that sold ski-         ethically.
                                          ing equipment in the winter and                  One of the mo t respected forensic
                                          swimming pool supplies in the sum-
    The inherent                          mer solicited several individuals to
                                                                                        cientists on the planet, Dr. Douglas
                                                                                      Lucas, spent more than 20 year as
  tension between                         burn the store down so she could
                                          collect on her insurance policy. Find-
                                                                                      chairman of the Ethics Committee
                                                                                      in the American Academy of Foren-
    the goals and                         ing no takers, the woman declared
                                         she would do it herself, and when
                                                                                      sic Sciences. Dr. Luca has written
                                                                                      and spoken exten ively on the sub-
      n1ethods of                        her boyfriend challenged her, she
                                          wagered $500 that she would, in fact,
                                                                                      ject of ethics. He tate that one of
                                                                                      the major causes of pressure on tho e
 science and those                       bum the store down. And bum it did.          who serve as expert witne es i the
                                             It burned so completely, in fact,        adversary system of justice because
     of litigation                        that an investigative team consist-         of the inherent tension between the
                                          ing of five certified fire investigators,   goal and method of science and
   puts significant                      an electrical engineer, a fire pro-          the goals and methods of litigation.
                                         tection engineer, a chemist, and a           Thi is so even though both make
 pressure on expert                      canine team who pent three days on           sen e, and both serve vital social
                                         the scene were unable to determine           functions. In describing the different
      witnesses.                         either the origin or the cause. It took      ethical obligations of scientists and
                                         more than five years to bring the            law enforcement officers, Dr. Lucas
of the arrangement of furniture,         case to trial, and the lack of a dem-        writes:
or when the electricity was dis-         onstrated origin and cause troubled
connected clearly belong in the          the jury. In the end, however, they            For a law enforcement officer, act-
relevant scientific data column.         did not find that there was reason-            ing on information received from
Statements about motive, means,          able doubt about the store owner's             another officer is quite proper.
and opportunity are not relevant         guilt, and they convicted her. The             For a scientist, however, arriv-
to an origin or cause determina-         investigators did the right thing by           ing at a conclusion in the absence
tion, and NFPA 9 21 specifically         declaring, even knowing how many               of proper scientific data, is qu ite
states that such "data" should only      times the woman had solicited oth-             unethical. This distinction is
be considered after the origin and       ers to commit arson, that the origin           particularly important, and some-
cause have been determined.              and cau e were undetermined. The               times difficult, for scientists who
   This author was requested to          jury would not have been helped by             are part of a law enforcement
examine the evidence in the case         having an expert opine that the fire           agency, and especially for those
where a defendant was accu ed of         was intentionally set. They were able          who are also sworn officers.11
pouring gasoline on his girlfriend       to come to that conclusion them-
and setting her on fire. The prose-      selves, ba ed on common sense and               The tension between cience
cutor had heard several versions of      investigative information. Thi is            and the law was recognized by ]u -
the event and wanted an indepen-         yet another case where the scientific        tice Blackmun in the Daubert
dent evaluation of the evidence.         evaluation of the evidence was of no         decision, when he wrote:
Based on the phy ical ev idence,         help. The defendant got a fair trial,
however, three scenarios were            and had no grounds to appeal the               [T)here are important differences
equally supported:                       admission of expert testimony.                 between the quest for truth in



                                                                                                                                43
TORT TRIAL & INSURANCE PRACTICE SECTION                                                    THE BRIEF • SPRING 2015
       the courtroom and the quest for        cord had been found in a garbage                   Scientific
       truth in the laboratory. Scien-        container near the defendant's
       tific conclusions are subject to       re idence.                                       testimony is
       perpetual revision. Law, on th e          At lea t partly as a result of the
       other hand, must resolve di putes      devastating cross-examinatio n of               expected to be
       fin ally and quickly. The scientific   Rudolph at the trial, the defen-
       project is advanced by broad and       dant was acquitted. The United                   real science,
       wide-ranging conside ration of a       State attorney wa not happy. In
       multitude of hypotheses, for those     a four-page complaint to the FBI                 independent
                                              Laboratory director, he wrote:
       that are incorrect will eventu-
       ally be shown to be o, and that
                                                                                               of other field
       in itself is an advance. Conjec-
       tures that are probably wrong are
                                                 The first deficiency in Rudolph's
                                                 analysis eems obviou . Rely-
                                                                                               information.
       of little use, however, in the proj-      ing on the hearsay views of field
       ect of reaching a quick, fin al, and      agents in rendering an opinion          as ociated with the defendants, and
        binding legal judgment-often of          as to the presence of a chemi-          it would take 1,200 pounds of the
       great consequence-abo ut a pa r-          cal compound seems obviously            explosive to cause the damage to the
        ticular set of events in the pa t.       wrong-headed. The FBI chemist is        building. The OIG a ked Williams
        We recognize that, in practice,          being asked to independently ascer-     to ju tify his testimony, and he could
        a gatekeeping role fo r the judge,       tain the existence of a substance       not. It was based entirely on con-
        no matter how flex ible, inevita-        not just regurgitate information he     textual bias. The OIG report stated,
        bly on occasion will prevent the         ha received from the field. ec-         "William failed in his re pon ibility
        jury from learning of authentic          ondly, the information from the         to provide the court with an objec-
        insights and innovations. That,          field agents may be wrong or so         tive, unbiased expert opinion."15
        nevertheless, is the balance that        speculative as to be accorded lit-          In general, the OIG inve tiga-
        is struck by Rules of Evidence           tle weight. Finally, using any bas is   tion fo und very few problems with
        designed not for the exhausti ve         other than instrumental analysis        the FBI's approach to science. But
        search for cosmic unde rstand ing        for an opinion as to the presence       becau e a very few examiners
        but for the particularized resolu-       of a chemical or compound leads,        behaved in an unethical manner in a
         ti on of legal dispute .12              as in this case, to insuffic ient       relatively small number of cases, over
                                                  instrumental testing. 13               3,000 major criminal case were cast
         Dr. Lucas served on the Office of                                                into doubt, and the otherwise well-
     In pector G eneral' (OIG's) com-              Because scientific testimony has      de erved excellent reputation of a
     mis ion convened in the mid-1990s        the potential to carry great weight         fine organization was tarnished.
     to investigate allegations of irreg-     with the jury, courts have a right to
     ularities in the FBI Laboratory'         expect that testimony presented as                  Other Examples of
     Explosives Unit. At that time, the       science is based on real science that                   Context Bias
     testifying experts were required to      is independent of other field infor-       Dr. Itiel Dror i one of the world's
     be field agent as well as cienti ts,     mation. The OIG report stated, "We         leading experts on contextual bia .
     and unfortunately, some of them          conclude that Rudolph's performance        After the Brandon Mayfield fin-
     confu ed the two role .                  in Psinakis was wholly inadequate          gerprint fiasco, 16 Dror conducted
         In one in tance, a chemist by        and unprofessional." 14 The commis-        an experiment to test the effect of
     the name of Rudolph conducted a          sion did not, however, find a factual      context bias on five fingerprint exam-
     preliminary examination of a us-         basi to conclude that he inten-            iners. A different pair of fingerprints
     pee ted explos ive, and got results      tionally overstated or biased his          was prepared for each of the expert
     "consistent with" PETN , the explo-      conclusions.                               participants. Each pair of prints had
     sive used in detonator cord. He               The OIG also l oked into the          been previously identified a a match
     testified positively at the trial of     analysis of evidence in the first          by that same expert five years ear-
     a su peered terrorist that he was        World Trade Center bombing in               lier, within the normal course of
     as sure a he could be that he had         1993. In that case, an FBI chem-          his or her work. The latent finger-
      identified PETN, but on cro -exam-       ist named W illiams opined that           prints had been obtained from the
      ination, he had to admit that he was     the main charge wa 1,200 pounds           crime scenes and were all presented
     using a combination of "scientific"      of urea nitrate, not because it was        again to the experts in their origi-
     and "investigative" information to       found at the scene, but because             nal format. They were told that the
      reach his conclu ion . Detonator         it was found at a bomb factory             pair of prints was the one that was



44
      THE BRIEF • SPRING 2015                                                 TORT TRIAL & INSURANCE PRACTICE SECTION
erron eously match ed by the FBI as            b ias in fire cases by separa ting the        AN INVESTIGATION INTO LABORATORY
the M adrid bom ber, thus c reating an         dut ies of the principa l invest igator       PRACTICES AND ALLEG ED MISCONDUCT
extraneous context th at the prints            fro m the fire scen e an alyst . This meth-   IN ExPLOSIVEs- RELATED AN D OTHER
we re a n onmatch . Three of the fi ve         odo logy, which involves protecting           CAsEs pt. 3.A .II .A. (1 997) [here inaf-
examiners ch an ged thei r identifi ca-        th e scen e investigator from potentially     ter FBI LABORATORY INvESTIGATION
t io n to "n onma tch ." O ne ch an ged to     biasing information , h as been applied       REPORT). available at www.justice.gov/
"inconclusive," and o nly on e he ld to        successfully. 21 Law e nfo rce ment offi-     o ig/ pecial/9704a/.
th e o riginal "m atch " determin ation . 17   cers can use scien ce to a id in the              14. FBI LABORATORY INVESTIGA-
      T h e Texas Fo ren sic Scien ce          search for just ice, but if the scien ce is   TION REPORT, supra note 13, at pt.
C o mm issio n (FSC) spent three               to be used fa irly and effectively, it is     3.A.Il. B.5.
years (2008-20 11) st udy ing th e sci-        important that scientific evidence be             15. /d. at pt. 3.C.Il.B.
e n ce, a nd the lack thereof, tha t           reliable and independent. •                       16. Brandon Mayfield, an O regon
contributed to the exoneratio n of                                                           attorney, was erroneously linked to the
Ernest Ray Willis a nd the wron gful                            Notes                        2004 Madrid train bombings based on
executio n of Cameron Todd Will-                   1. N FPA 92 1: Gu m E FOR FmE AND         a fingerprint fo und on a bag of detona-
ingh am in 2004.18 In April 20 11,             ExPLOSION INVESTIGATIONs 20 (20 14 ).         tors. Invest igators also knew he was a
the FSC issued its report, which d is-             2. FEn. R. Evm. 702.                      Muslim and advertised his legal serv ices
c ussed the cogn itive b iases to which            3. FEn. R. Ev m. 702 advisory com-        in a publication owned by a suspected
fire investigators (and all fo ren -           mittee's note (quoting Mason Ladd,            terrorist. See OFFICE OF THE INSPEC-
sic scie ntists) are subj ect . The FSC        Expert Testimony, 5 VAND. L. REv. 414,        TOR GEN., U.S. DEP'T oF JusTICE, A
sta ted , "cogniti ve biases a re n o t the    4 18 ( 1952 )) .                              REviEw oF THE FBI's H ANDLING o F
result of ch aracte r fl aws; instead ,            4. Steven W. Carman , Pape r              THE BRANDON MAYFIELD CASE (2006 },
th ey are commo n featu res of deci-           Presented at the lnterscience Com-            available at www.j ustice.gov/oig/special/
sio n -ma king."19 O n e of th e key           munications 2009 Fire and Materi als          s0601/final. pdf.
recommenda tions, of 17 m ade by               Confe rence, San Francisco, Cal.: Pro-            17. ltiel E. Dror et al. , Contextual
th e FSC, was enhan ced admissibil-            gressive Burn Pattern Development in          Information Renders Experts Vulnerable
ity h earings in all arson cases. It is        Post-Flashove r Fires (Dec. 2008), avail-     to Making Erroneous Iden tifications, ! 56
at such a h earing tha t th e poten-           able at www.carmanfi rein vestigations.        FoRENSIC Sc 1. lNT'L 74 (2006).
t ia lly b ias ing "data" that may h ave       com/publications.htm l.                             18. Ernest Ray Wi llis and Cameron
influen ced the investigator's dete r-             5. 140 F.3d 9 15,920 {11th C ir.          Todd Willingham were convicted of
m in atio n of arson can be exp lored. 20      1998 ).                                       murder by arson . The Innocence Proj-
Fo r an a tto rney o n e ither side of             6. 526 U .S. 137 (1 999).                 ect urged the FSC to review both cases
an arson case, this report sh o uld be             7. U nited States v. C hristian , 673     after an independent report concluded
required reading.                              F.3d 702, 710-12 (7th C ir. 20 12) (cita-      that neither fi re was arson. See ARsoN
                                               tions omitted) (internal quotation            REV IEW CoMM., INNOCENCE PROJECT,
              Conclusion                       marks omitted ).                              REPORT ON THE PEER REVIEW OF THE
La w e nfo rcem ent is a n important               8. /d. at 71 2- 13.                       ExPERT TESTIMONY IN THE CASES OF
and h o n o rab le professio n . It p lays         9. Steven J. Avato & A ndrew T.           STATE OF TExAs v. CAMERON ToDD
a ce ntra l ro le in keeping a c iv i-         Cox, Science and Circumstance: Key            WI LLING HAM AND STATE OF TEXAS
lized socie ty c iv ilized. Bu t it is n ot    Components in Fire Investigation, 59 FIRE     v. ERNEST RAY WILLIS (2006), avail-
sc ie n ce. Lawyers a re a lso n o t sci-      & A RSON INvEsTIGATOR {Int'l Ass'n of         able at www.innocenceproject.org/files/
e nt ists. All h ave d ifferent e th ical      A rson Investigators), no. 4, Apr. 2009 ,     imported/arsonreviewreport-4.pdf.
o b liga tio n s. Legal "proof" a nd sc i-     at 47, 47 .                                        19. TEx. FoRENSIC Sci. CoMM'N,
e nt ifi c "proof' are diffe re nt. N o r          10. /d.                                   WI LLI NG HAM/WILLIS INVESTIGATION 37
is t h e p roble m of find ing o r fa ilin g       11 . Douglas Lucas, Presentation to       (20 11 ), available at www.fsc. texas.gov/
to find the de m a rcat ion between            the Canadian Association of Foren-            sites/default/files/FIN AL_ l .pdf.
scie ntific a nd in vestigative da ta          sic Scient ists, Toronto, O nt.: Forensic          20. /d. at 48-49.
confined to fire investigators or to           Science and Ethics-An Essential                    2 1. John Lentini, Paper Presented
law enfo rcem en t. Cogn iti ve biases         Association (Dec. I , 20 10).                 at the 3rd International Symposium on
a re a hum a n condi t io n that affli ct          12. Daubert v. Merrell Dow Pharm.,        Fire Investigations Science and Tech -
both th e public and the private               Inc., 509 U.S. 579,596-97 (1 993).            no logy (!SF!) , Sarasota, Fla.: Towa rd
sector, a n d bo th prosec utio n a nd             13. Letter from Ben Burch , Assis-        a More Scientific Determination :
defen se a ttorneys.                           tant U.S. A ttorney, to John Hicks,           Min imizing Expectation Bias in Fire
    This a utho r h as previo usly sug-        FBI Lab. Dir. (July 8, 1989}, quoted in       Investigations (2008), available at www.
gested means to minimize expectatio n          USDOJ/OIG, TH E FBI LABORATORY:               fi rescientist.com/publications.php.



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TORT TRIAL & INSU RANCE PRACTICE SECTION                                                           TH E BRIEF • SP RING 2015
