
IN THE SUPREME COURT OF TEXAS

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No. 02-0557
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Volkswagen of America, Inc., Petitioner,

v.

Andrew Ramirez, Sr., et al., Respondents

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On Petition for Review from the
Court of Appeals for the Thirteenth District of Texas
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Argued April 23, 2003


            Justice Wainwright delivered the opinion of the Court in which Justice Hecht, Justice
Owen, Justice Smith, Justice Brister, and Justice Medina joined.

            Justice Hecht filed a concurring opinion, in which Justice Owen joined.

            Chief Justice Jefferson filed a dissenting opinion, in which Justice O’Neill joined.

            In this case, we consider whether there was sufficient evidence to support a jury’s finding that
a defect in an automobile manufactured by Volkswagen of America, Inc. was the proximate cause
of a fatal two-car accident.  After a unanimous jury returned a defense verdict, the trial court granted
a motion for new trial and the second jury returned a verdict awarding substantial monetary damages. 
Because we hold that the evidence was not legally sufficient to support causation, we reverse the
judgment of the court of appeals and render a take-nothing judgment in favor of Volkswagen.
 
I.  Factual and Procedural Background
            On November 26, 1996, Haley Sperling was driving a 1996 Volkswagen Passat eastbound
on U.S. 83, a divided highway with two lanes of traffic in each direction.  The eastbound and
westbound lanes of U.S. 83 are separated by a grass median that gently slopes down from both sides
of the highway to a flat concrete strip in the median’s center.  Sperling was traveling in the inside
eastbound lane as she approached a Camaro heading in the same direction in the outside lane.  The
two cars bumped twice, after which Sperling’s car immediately crossed the median and collided
nearly head-on with a Ford Mustang traveling westbound on U.S. 83.  The Mustang was driven by
Diana Ramirez Guerra (Guerra) and occupied by her fourteen-year-old daughter, Jacquelyn Guerra
(Jackie).  Sperling and Guerra died as a result of the collision, and Jackie suffered severe head
trauma.  Andrew Ramirez Sr., Ester Ramirez, and Andrew Ramirez Jr., as administrator of Guerra’s
estate and next friend of Jackie (collectively the Ramirezes), sued Volkswagen, alleging that a defect
in the Passat caused the accident.
            In the first trial, the jury returned a unanimous verdict in favor of Volkswagen.  The trial
court rendered a take-nothing judgment against the Ramirezes but subsequently granted a motion
for new trial under Texas Rule of Civil Procedure 320, relying on the familiar refrain–“in the interest
of justice.”


  As with the first trial, the focus of the second trial was whether a defect in the Passat’s
left rear wheel assembly caused the accident.  The parties do not dispute that the wheel separated
from the Passat, but they do dispute when the wheel assembly detached and whether the detachment
caused the accident or resulted from it.  Crucial to this difference of opinion is the undisputed fact
that after the collision, the left rear wheel of the Passat was found completely detached from the car’s
stub axle and lying on its side, positioned directly under the left rear wheel well.  The Ramirezes
argued that the wheel separation occurred while Sperling traveled in the eastbound lanes of U.S. 83,
causing her to lose control of the vehicle, cross the median, and collide with Guerra’s Mustang.  To
support this theory, the Ramirezes offered the testimony of Ronald Walker, their accident
reconstruction expert.
            Walker testified that while the Passat was traveling in the eastbound lanes of U.S. 83, its left
rear wheel detached from the stub axle but stayed “tucked underneath” the left rear wheel well as the
car entered and fishtailed across the grass and concrete median at 50 to 60 miles per hour, collided
with the Mustang, and spun partially around before coming to rest.  Walker further testified that the
“laws of physics” explain how the wheel was able to remain pocketed in the rear wheel well
throughout the turbulent accident sequence.  Walker opined that a defect in the wheel was the
proximate cause of the accident.  Volkswagen contends that Walker’s testimony was unreliable
because he did not present any scientific support for his opinion that a wheel could behave in the
manner he described.  Specifically, Volkswagen complains that Walker failed to conduct tests, cite 
studies, or perform calculations to support his “floating wheel” theory.  In addition to the expert
testimony, at trial the Ramirezes showed a videotaped interview of an unidentified witness at the
scene of the accident who purported to see the Passat’s tire blow up before it crossed the median and
collided with the Mustang.
            Volkswagen contested the existence of any defect and argued that the accident was due to
Sperling’s reaction to the contact between her car (the Passat) and the Camaro.  Volkswagen offered
expert testimony to support its position that the Passat’s wheel separation was a result of the accident
and not the cause of the accident.  Volkswagen also claimed that the unidentified witness’s testimony
was unreliable hearsay.
            In response to Volkswagen’s assertion that there was no evidence of causation, the Ramirezes
counter that their metallurgical expert, Edward Cox, provided evidence that the defect caused the
accident.  In this Court, Volkswagen does not challenge the reliability of Cox’s testimony that a
defect existed in the left rear wheel assembly, but does assert that Cox was not offered to opine on
causation and his brief opinion that the defect caused the accident constitutes no evidence to support
the verdict.  Cox testified that because there was grass in the grease in the wheel hub, the left rear
wheel assembly must have come off before the Passat entered the median and therefore  caused the
accident.  Cox does not attempt to explain how the left wheel remained “tucked” in the left rear
wheel well throughout the accident sequence.
            In the second trial, the jury returned a 10 to 2 verdict in favor of the Ramirezes.  Volkswagen
moved for judgment not withstanding the verdict, arguing that the trial court wrongfully admitted
unreliable expert testimony that was legally insufficient to support the jury’s finding.  The trial court
denied Volkswagen’s motion and entered a final judgment awarding the Ramirezes over seventeen
million dollars in damages.  Volkswagen subsequently moved for a new trial on the basis that the
verdict was rendered by only nine qualified jurors.  Volkswagen learned that one of the ten jurors
who signed the verdict was a convicted felon, which it argued disqualified him from serving on the
jury.  The trial court denied the motion.
            Volkswagen appealed the trial court’s judgment.  Among the issues presented to the court
of appeals was Volkswagen’s contention that there was no evidence of negligence to support the
jury’s verdict because the testimony of Walker and Cox was unreliable and therefore had to be
disregarded.  Volkswagen also alleged that the trial court abused its discretion by allowing the
Ramirezes to present the videotaped statement of the unidentified witness because the testimony
constituted inadmissible hearsay.  Volkswagen further argued that one of the jurors who was
convicted of a felony was disqualified from serving on the jury because article 42.12, section 20 of
the Texas Code of Criminal Procedure, which grants Texas courts the power to discharge a convicted
felon from the disabilities of a felony, is unconstitutional.  Lastly, Volkswagen claimed that the trial
court abused its discretion by discarding the initial judgment for Volkswagen and granting a motion
for new trial.
            The court of appeals affirmed the judgment of the trial court.  79 S.W.3d 113, 128.  It
concluded that Walker’s and Cox’s testimony met the common law standards for reliability and the
unidentified witness’s statements did not constitute hearsay.  Id. at 122, 124-25.  The court of
appeals denied Volkswagen’s juror claim, holding that article 42.12, section 20 of the Texas Code
of Criminal Procedure is constitutional, and a dismissal of a conviction under the statute restores the
right of a convicted felon to serve on a jury.  Id. at 120-21.  Additionally, the court declined to
review the trial court’s order granting the Ramirezes’ motion for a new trial, stating that the trial
court’s order granting a new trial is not subject to review from a final judgment.  Id. at 128 (citing
Cummins v. Paisan Constr. Co., 682 S.W.2d 235, 235-36 (Tex. 1984) (per curiam)).
            Volkswagen petitioned this Court for review.  Since we conclude that there was no evidence
to support causation, we do not reach Volkswagen’s challenge to the trial court’s order granting a
new trial or to the constitutionality of article 42.12, section 20 of the Texas Code of Criminal
Procedure.
II.  Legal Sufficiency Review
            A party may raise a properly preserved complaint on appeal that scientific evidence is
unreliable and thus no evidence to support a judgment.  See Merrell Dow Pharms., Inc. v. Havner,
953 S.W.2d 706, 711-12 (Tex. 1997); see also Coastal Transp. Co. v. Crown Cent. Petroleum Corp.,
136 S.W.3d 227, 232-33 (Tex. 2004).  When reviewing a no evidence challenge, we consider only
the evidence that tends to support the jury’s finding.  Kerr-McGee Corp. v. Helton,133 S.W.3d 245-54 (Tex. 2004); Havner, 953 S.W.2d at 711; see also Coastal Transp., 136 S.W.3d at 233-34
(applying same standard to directed verdict).  “A no evidence point will be sustained when (a) there
is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of 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 than a mere scintilla, or (d) the evidence conclusively establishes the
opposite of the vital fact.”  Havner, 953 S.W.2d at 711 (citing Calvert, “No Evidence” and
“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960)).
            Volkswagen argues that neither Walker’s testimony, claimed to be unreliable, nor the
unidentified witness’s statements, asserted to be hearsay, are competent evidence.  Accordingly,
Volkswagen claims there is no evidence to support the Ramirezes’ theory that a defect in the Passat’s
left rear wheel assembly caused Sperling to lose control of the vehicle, veer across the median, and
collide with Guerra’s Mustang.  In response, the Ramirezes assert that their metallurgical expert,
Edward Cox, provided legally sufficient evidence that Volkswagen caused the accident. 
Volkswagen argues that Cox’s testimony is not legally sufficient to support a finding of causation
because it does not explain Walker’s “tucked wheel” opinion or establish when in the accident
sequence the bearing failure caused the wheel to detach from the Passat.  In reviewing Volkswagen’s
no evidence point, we determine whether Walker’s testimony meets the standards of reliability and
whether the unidentified witness’s statements fall within a hearsay exception.  If the testimony of
Walker and the unidentified witness do not survive Volkswagen’s no evidence challenge, then we
must determine whether in the remaining evidence there is more than a scintilla of evidence that
supports the Ramirezes’ theory of causation.  Havner, 953 S.W.2d at 711; see also Coastal Transp.,
136 S.W.3d at 233-34.
A.  Ronald Walker
            The Ramirezes proffered Walker’s testimony to prove that a bearing defect in the left rear
wheel assembly of the Passat driven by Sperling caused her initially to lose control of the vehicle and
subsequently collide with the Mustang driven by Guerra.  Crucial to Walker’s opinion is his theory
that the left rear wheel of the Passat detached from the stub axle and stayed tucked underneath the
left rear wheel well as the car entered and crossed the grass and concrete median, collided with the
Mustang, and spun partially around before coming to rest.  Walker proposed that the “laws of
physics” explain how the wheel was able to remain pocketed in the rear wheel well throughout the
turbulent accident sequence:
[E]ven with the wheel dropping off, the wheel wanted to still have the capability of
going faster than the vehicle because it wasn’t being slowed down as much by
friction.  And so consequently, it could follow the vehicle across the median.

Volkswagen contends that this testimony is unreliable because he did not present any scientific
support for his opinion that it was physically possible for a wheel to behave in the manner he
described, or that the wheel in this case did behave as described.  Specifically, Volkswagen
complains that Walker failed to conduct tests, cite studies, or perform calculations in support of his
“floating wheel” theory.
            Texas Rule of Evidence 702 permits a witness qualified as an expert by “knowledge, skill,
experience, training, or education” to testify on “scientific, technical, or other specialized” subjects
if the testimony “will assist the trier of fact to understand the evidence or to determine a fact in
issue.”  To meet these standards, an expert must not only be qualified, but his proposed testimony
must be relevant and reliable.  Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001); E.I.
du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995).  Expert testimony is
unreliable if it is not grounded “in the methods and procedures of science” and is no more than
“subjective belief or unsupported speculation.”  Robinson, 923 S.W.2d at 557 (quoting Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993)).  Expert testimony is also unreliable if there
is too great an analytical gap between the data on which the expert relies and the opinion offered. 
Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727 (Tex. 1998); see also Havner, 953
S.W.2d at 714 (reasoning that an expert’s testimony is unreliable even when the underlying data are
sound if the expert draws conclusions from that data based on flawed methodology).
            In Robinson, we identified six non-exclusive factors that trial courts should consider to
determine whether an expert’s testimony is reliable and thus admissible.  923 S.W.2d at 557.  These
factors include, but are not limited to:
1.the extent to which the theory has been or can be tested;
 
2.the extent to which the technique relies upon the subjective interpretation of
the expert;
 
3.whether the theory has been subjected to peer review and/or publication;
 
4.the technique’s potential rate of error;
5.whether the underlying theory or technique has been generally accepted as
valid by the relevant scientific community; and
 
6.the non-judicial uses which have been made of the theory or technique.
Id.
            In this case, the court of appeals upheld the trial court’s decision to permit Walker to opine
on his theory of the accident.  79 S.W.3d at 125.  The court of appeals relied on our holdings in
Helena Chemical and Gammill to conclude that the Robinson factors do not apply to Walker’s
testimony.  Id. at 124 n.3.  The court of appeals, however, misinterprets these cases.
            In Helena Chemical and Gammill, we recognized that the factors listed in Robinson for
measuring the reliability of scientific evidence cannot be used with certain kinds of expert testimony. 
Helena Chem., 47 S.W.3d at 499; Gammill, 972 S.W.2d at 726.  However, there still must be some
basis for the opinion offered to show its reliability.  Helena Chem., 47 S.W.3d at 499; Gammill, 972
S.W.2d at 726.  In some situations, the witness’s skill and experience alone may provide a sufficient
basis for the expert’s opinion.  Tex. R. Evid. 702; Gammill, 972 S.W.2d at 726.  That, however, is
not the circumstance in this case.
            Walker maintains that his explanation of how the wheel could separate from the Passat’s stub
axle and remain tucked in the wheel well throughout the accident sequence is based upon generally
accepted scientific principles.  He testified that “[a]ccident reconstruction is basically application of
laws of physics with respect to . . . describing the motion of [sic] vehicle before a collision, during
a collision, and after a collision using basic scientific and some engineering principles, but all
abiding by the laws of physics.”
            Walker did not conduct or cite any tests to support his theory that the Passat’s left rear wheel
could and did remain pocketed in the wheel well as the car veered off U.S. 83, crossed the median,
and collided with the Mustang.  Walker admits that he had not read any publications or seen any
studies that corroborate his findings.


  Although Walker and Cox conducted tests in this case, the
tests related to how the bearing failed and not when in the accident sequence the bearing failed.


 
Importantly, Walker never explains how these tests support his conclusions that the Passat’s wheel
remained with the car throughout the accident sequence to support his theory that the wheel
separation was the cause of the accident and not the result of the accident.
            Walker does not answer an important question.  If the left rear wheel separated from the axle
while the Passat was in the eastbound lanes, how could it remain “tucked” in the wheel well through
events that occurred at 50 to 60 miles per hour and ultimately produced sufficient force to result in
the deaths of two people?  The answer is not within common knowledge and requires expert
testimony.  Walker’s reliance on the “laws of physics,” without more, is an insufficient explanation. 
Although Walker maintains that the methods and formulas he employed are the ones generally
accepted and utilized in the accident reconstruction profession, he does not explain how any of the
research or tests he relied on support his conclusion.
            It is far from clear how the detached wheel could “follow the vehicle” in the wheel well as
it crossed the median.  However, even more concerning in light of our jurisprudence is that Walker
performed no tests and cited no publications to support his opinion that the wheel was traveling at
a higher velocity than the Passat which, by principles of physics, kept the wheel in the wheel well. 
It is well established that an expert must show the connection between the data relied on and the
opinion offered.  Gammill, 972 S.W.2d at 726.  An expert’s bare opinion will not suffice.  Havner,
953 S.W.2d at 711.  “[I]t is not so simply because ‘an expert says it is so.’” Gammill, 972 S.W.2d
at 726; Havner, 953 S.W.2d at 712 (quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 421 (5th Cir.
1987)).  Here, Walker does not close the “analytical gap” by explaining how the Passat’s wheel could
behave as he described, especially in light of the fact that there are no other studies, publications, or
peer review that support his position.  The tucked or floating wheel theory that Walker offers is not
supported by objective scientific analysis and is based solely upon his subjective interpretation of
the facts.  As such, Walker’s opinion is unreliable and constitutes no evidence of causation.
B.  Videotaped Statement
            At trial, the jury reviewed a videotape of a local television news crew’s interview of a man
at the accident scene.  The witness refused to give his name or allow his face to be shown on camera. 
During the interview, the witness stated, “The [Passat] was headed from here towards over there and
apparently had a blown-out tire.  . . . The tire blew up and it crossed the median and it hit the car that
was headed from over there towards over here.”  Volkswagen claims these statements are hearsay
not within any hearsay exception.  Volkswagen further argues that the admission of the videotaped
testimony constituted harmful error since the Ramirezes relied on it to prove the central theory of
their case—that something had gone wrong with the Passat’s left rear wheel before the Passat
crossed the median causing Sperling to lose control and collide with Guerra’s Mustang.
            The Ramirezes claim that Volkswagen did not preserve its objections to the unidentified
witness’s statement on appeal.  They contend that Volkswagen waived its objection to the videotaped
statement because it did not object to the live testimony at trial of the television reporter who
recounted her conversation with the unidentified witness at the accident scene.  The general rule is
error in the admission of testimony is deemed harmless and is waived if the objecting party
subsequently permits the same or similar evidence to be introduced without objection.  Richardson
v. Green, 677 S.W.2d 497, 501 (Tex. 1984); City of Houston v. Riggins, 568 S.W.2d 188, 190 (Tex.
Civ. App.—Tyler 1978, writ ref’d n.r.e.).
            Volkswagen asserts that it had a running objection to all references to the unidentified
witness’s testimony.  Specifically, before trial Volkswagen objected to “showing that videotape and
object[ed] to any reference to any alleged witness and object[ed] to any reference to . . . what he may
or may not have seen out there.”  The trial court denied the objection but expressly recognized
Volkswagen’s running objection to the evidence.  Because Volkswagen’s initial objection to the
evidence complied with Texas Rule of Appellate Procedure 33.1(a) and its requested running
objection clearly identified the source and specific subject matter of the expected objectionable
evidence prior to its disclosure to the jury, recognition of the running objection for more than one
witness was appropriate.


  See Ethington v. State, 819 S.W.2d 854, 858-59 (Tex. Crim. App. 1991);
Bunnett/Smallwood & Co. v. Helton Oil Co., 577 S.W.2d 291, 295 (Tex. Civ. App.—Amarillo 1978,
no writ); see Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194, 203 (Tex. App.—Texarkana 2000,
pet. denied) (“A running objection is required to be specific and unambiguous.”).  Volkswagen
plainly identified the source of the objectionable testimony, the subject matter of the witness’s
testimony and the ways the testimony would be brought before the jury.  Hence, the running
objection preserved the complaint not only to the unidentified witness’s testimony but also to the
reporter’s testimony concerning what the witness said.
            The court of appeals held that the witness’s statement did not constitute hearsay because the
testimony was not offered for the truth of the witness’s assertion that the “tire blew up.”  79 S.W.3d
at 122.  Even if the statement constituted hearsay, the court of appeals reasoned that the trial court
may have admitted it as an excited utterance.  Id.  The court of appeals also concluded that if the trial
court committed error in admitting the videotape of the statement, the error was harmless because
the admission did not result in an improper judgment.  Id.
            Hearsay is defined as an out-of-court statement offered in evidence to prove the truth of the
matter asserted.  Tex. R. Evid. 801(d).  While the Ramirezes did not offer the videotaped statement
of the unidentified witness to prove that the “tire blew up,” they did offer it to support their theory
that the Passat’s left rear wheel separated from the car and caused Sperling’s initial loss of control
of the vehicle before it crossed the median.  For example, in closing arguments, counsel for the
Ramirezes told the jury the videotaped testimony “means that something obviously went wrong with
this tire.”  We conclude that the videotaped testimony falls squarely within the definition of hearsay
and therefore must meet one of the hearsay exceptions to be admissible.  The court of appeals’
narrow interpretation of the hearsay definition would allow circumvention of the safeguards that
were created by the hearsay rules to guarantee the trustworthiness of out-of-court statements and
prevent the unfair prejudice that could arise from their admission.  The Ramirezes argue that the
unidentified witness’s statements were admissible under the excited utterance hearsay exception. 
We therefore consider that issue.



            To be admissible as an excited utterance, a statement must be 1) a spontaneous reaction 2)
to a personal observance of 3) a startling event 4) made while the declarant was still under the stress
of excitement caused by the event.  Tex. R. Evid. 803(2); Richardson, 677 S.W.2d at 500; Hartford
Accident & Indem. Co. v. Hale, 400 S.W.2d 310, 311 (Tex. 1966).  In his treatise on evidence, John
Henry Wigmore articulated the rationale for the excited utterance exception to the exclusion of
hearsay testimony from trial:
[U]nder certain external circumstances of physical shock, a stress of nervous
excitement may be produced which stills the reflective faculties and removes their
control, so that the utterance which then occurs is a spontaneous and sincere response
to the actual sensations and perceptions already produced by the external shock. 
Since this utterance is made under the immediate and uncontrolled domination of the
senses, and during the brief period when considerations of self-interest could not
have been brought fully to bear by reasoned reflection, the utterance may be taken as
particularly trustworthy (or at least as lacking the usual grounds of
untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to
the facts just observed by him; and may therefore be received as testimony to those
facts.

6 Wigmore, Evidence in Trials at Common Law § 1747, at 195 (James H. Chadbourn rev. 1976)
(citations omitted).  This general principle underlying the excited utterance exception has also been
espoused by the United States Supreme Court and our sister court, the Texas Court of Criminal
Appeals.  See Idaho v. Wright, 497 U.S. 805, 820 (1990) (noting that excited utterances “are given
under circumstances that eliminate the possibility of fabrication, coaching, or confabulation, and that
therefore the circumstances surrounding the making of the statement provide sufficient assurance
that the statement is trustworthy and that cross-examination would be superfluous”); King v. State,
631 S.W.2d 486, 491 (Tex. Crim. App. 1982) (recognizing that a person’s “capacity for reflection
necessary to the fabrication of a falsehood is lost” when making a spontaneous exclamation).
            For an exclamation to be spontaneously made while under the stress of excitement, it must
occur before the declarant has the opportunity to reflect on or ponder the shocking incident.  White
v. Illinois, 502 U.S. 346, 356 (1992); People v. Vasquez, 88 N.Y.2d 461, 579 (1996).  Accordingly,
we also consider the lapse in time between the startling event and the statement to assist in
determining whether a declarant made an excited utterance or a deliberative statement.  See Truck
Ins. Exch. v. Michling, 364 S.W.2d 172, 174 (Tex. 1963) (noting that statements do not have to be
strictly contemporaneous with the exciting cause because “there can be no definite and fixed limit
of time.  Each case must depend upon its own circumstances.” (quoting 6 Wigmore, Evidence in
Trials at Common Law § 1750, at 221 (3d ed. 1961))).  Similarly, that a statement was made in
response to questions is a factor to be considered although that fact alone may not render the
statement inadmissible.  Lawton, 913 S.W.2d at 553.  The declarant’s tone and tenor of voice are
also weighed in determining whether a statement qualifies as an excited utterance.  United States v.
Alexander, 331 F.3d 116, 123 (D.C. Cir. 2003).
            In this case, the exact time that it took the news crew to reach the accident scene, set up their
equipment, and interview the unidentified witness is not known.  The evidence shows that some time
had passed and the witness’s statements were not made as the accident occurred or immediately after
witnessing the accident.  After the accident and once the news crew arrived at the accident scene,
the reporter searched for people to interview about the accident.  After the reporter located the
unidentified witness, but before the witness would agree to talk to the reporter, the videotape shows
that the witness took steps to ensure that his identity remained anonymous.  During the interview,
the witness was composed as he answered the reporter’s questions and calmly related the events of
the accident.  These facts combined show that the witness had time to ponder the event to give
considered testimony after the stress of the excitement of the accident had subsided.
            The Ramirezes argue that the presence of emergency workers and the sounds of the “Jaws
of Life” machine in the background, working to free the injured parties, are themselves ongoing
startling events.  While these ongoing events are capable of placing stress on a witness, that stress
is different from the stress of excitement caused by observing the accident.
            We conclude that the unidentified witness’s account of the accident was not an excited
utterance.  The evidence indicates that the witness’s statements were calmly given in response to the
reporter’s questions after an opportunity for deliberation, rather than made as a spontaneous reaction
to the accident.  They are therefore hearsay which should have been excluded by the trial court.  The
unidentified witness’s testimony is no evidence of causation.  See Havner, 953 S.W.2d at 711 (a no
evidence point will be sustained when the court is barred by rules of law or evidence from giving
weight to evidence offered to prove a vital fact).
C.  Edward Cox
            Because Walker’s testimony and the unidentified witness’s statements cannot legally support
the jury’s finding of causation, we look to the remaining evidence in a light most favorable to the
Ramirezes to determine whether it supports their theory that a defect in the Passat caused the
collision between Sperling and Guerra.  See Kerr-McGee,133 S.W.3d at 254; Havner, 953 S.W.2d
at 711.  The only other evidence that the Ramirezes say supports causation is the testimony of Dr.
Edward Cox.  Therefore, we review his testimony and determine whether it is legally sufficient to
prove causation.
            But first we address a preliminary point.  The dissenting justices complain that the legal
sufficiency of Cox’s testimony on causation was not presented as an issue to this Court.  They
contend that Volkswagen waived the issue.  There are two brief responses.  First, Volkswagen
asserted as an issue in its petition that “the unsupported testimony of plaintiffs’ accident
reconstruction expert” is legally insufficient evidence of causation.  On appeal, the Ramirezes  relied
almost exclusively on Walker’s testimony to provide evidence of causation, but in their brief in this
Court, the Ramirezes asserted that Cox also provided evidence of causation.  It is not inappropriate
or in violation of the rules of appellate procedure that Volkswagen addresses Cox’s opinions for the
first time in its reply to the Ramirezes’ response.  Second, the no evidence issue in the petition was
not confined to Walker’s testimony.  It challenged the causation opinions of plaintiffs’ accident
reconstruction expert.  If the Ramirezes decided to rely on Cox, in addition to Walker, for such
causation opinions, the issue fairly includes both experts.  See Tex. R. App. P. 53.2(f) (“The
statement of an issue or point will be treated as covering every subsidiary question that is fairly
included.”). 
            Cox was the Ramirezes’ metallurgical expert at trial who was offered to prove that a defect
in a metal bearing caused the left rear wheel assembly to separate from the axle.  He was not offered
as an accident reconstructionist to help establish when the defect manifested itself or that the defect
caused the accident, but he did offer some limited opinions on the causation issue.  Although
Volkswagen does not dispute the reliability of Cox’s testimony regarding the existence of a defect
as it did at the trial court and court of appeals, Volkswagen does contend that Cox’s testimony is no
evidence to support causation.  Further, Volkswagen contends that, as with Walker, Cox does not
explain how the left rear wheel remained floating directly underneath the stub axle, from which it
had allegedly detached, through the accident sequence. 
            In Coastal Transport Co. v. Crown Central Petroleum Corp., we further clarified the
distinction between no evidence challenges to the reliability of expert testimony in which we
evaluate the underlying methodology, technique or foundational data used by the expert and no
evidence challenges to conclusory or speculative testimony that is non-probative on its face.  136
S.W.3d 227, 233 (Tex. 2004); see also Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 412 (Tex.
1998) (distinguishing between challenges to scientific reliability and no evidence challenges “where,
on the face of the record, the evidence lacked probative value”).  
            The dissent pronounces that this application of Coastal Transport “sets a dangerous
precedent” because, in essence, the expert testimony in this case is too lengthy to be evaluated for
its conclusory or speculative nature.  __ S.W.3d at __ (The dissent asserts that the testimony at issue
in Coastal Transport was “paltry” by comparison.).  The Court does not agree.  Coastal Transport
and this decision are consistent with precedent.  In Schaefer v. Texas Employers’ Insurance Ass’n,
we reviewed the entire record (a substantial one at that) of a medical expert’s testimony at trial and
concluded that his opinion on causation was based on mere possibility, speculation and surmise.  612
S.W.2d 199, 204 (Tex. 1980).  The physician had opined based on reasonable medical probability
that a worker’s disease resulted from his employment as a plumber and his exposure to soil
contaminated with bird feces.  Id. at 202-03.  In that no evidence challenge, we held that the opinion
constituted no evidence of causation.  Id.  The dissent here makes arguments that the dissent made
in Schaefer.  The Court has now rejected those arguments at least twice.  See Schaefer, 612 S.W.2d
at 204-05. 
            We further addressed this situation in Havner:
It reduces the no evidence standard of review to a meaningless exercise of looking
to see only what words appear in the transcript of the testimony, not whether there
is in fact some evidence. We have rejected such an approach. See Schaefer, 612
S.W.2d at 205; see also Burroughs Wellcome, 907 S.W.2d at 499-500.
953 S.W.2d at 712.
            Since Volkswagen does not object to the reliability of Cox’s testimony, we limit our review
of this evidence to the face of the record.  We must determine whether more than a scintilla of
evidence exists to raise a fact issue on the question of causation.  Coastal Transp., 136 S.W.3d at
233-34; Havner, 953 S.W.2d at 711.  More than a scintilla of evidence exists when the evidence
supporting the jury’s finding “rises to a level that would enable reasonable and fair-minded people
to differ in their conclusions.”  Coastal Transp., 136 S.W.3d at 234 (quoting Transp. Ins. Co. v.
Moriel, 879 S.W.2d 10, 25 (Tex. 1994)); accord Havner, 953 S.W.2d at 711.
            Cox’s causation testimony is that a “sudden and abrupt catastrophic event” inside the Passat’s
left rear wheel bearing assembly set in motion a series of other events that eventually led to the wheel
separating from the car and moving outwards along the stub axle.  According to Cox, this would be
consistent with unusual and “erratic vehicle behavior which would then cause the driver to make a
corrective steer” into the median.  Cox stated that the bearing failure “ha[d] to happen” before the
vehicle entered the median because that was the only opportunity for several pieces of grass from
the median to get into grease inside the wheel’s hub.
            There are several concerns raised by reliance on Cox’s testimony as evidence of causation. 
Cox’s testimony that the results of this defect would be consistent with erratic vehicle behavior
causing the driver to make a corrective steer and veer into the median is an unsupported conclusion. 
Cox does not point to any data that proves it is more probable than not that Sperling did in fact
experience unusual behavior in the Passat, which then caused her to veer across the median and
collide with Guerra’s Mustang.  He cites no testimony, tests, skid marks, or other physical evidence
to support this opinion.  Notably, Cox emphasizes that the determination of when the vehicle’s
“unusual behavior” occurs is “Mr. Walker’s analysis.”  Cox undermines the basis for his opinions
when he acknowledged, “I haven’t been involved in the accident reconstruction.”  See Burrow v.
Arce, 997 S.W.2d 229, 235 (Tex. 1999) (focusing the review of expert opinion testimony on “the
basis of the witness’s opinion, and not the witness’s qualifications or his bare opinions alone”).
            In addition, Cox’s limited opinion on causation is based on finding grass in the wheel hub. 
His opinion is just as consistent with the wheel coming off in the median after the Passat went out
of control as it is with a wheel separation prior to entering the median. 
            Finally, as with Walker, Cox’s testimony fails to answer a crucial question raised by the
Ramirezes’s theory of causation – how the floating wheel stayed in the wheel well as the Passat
traveled through the median and collided with the Mustang.  Walker opined that the collision
between the Passat and the Mustang occurred at a closing speed of over 100 miles per hour and
caused the Passat’s rear end to jerk to the left before coming to rest with the left rear wheel laying
directly under the left rear stub axle.  Failure to explain how the “tucked” wheel stayed in the wheel
well is, by itself, near fatal to the Ramirezes’ opinions on causation.  Accordingly, Cox’s opinions
of the cause of the accident are conclusory on their face and are therefore no more than a mere
scintilla of evidence.  
            The dissent disagrees and would hold that Cox’s testimony is some evidence of proximate
cause.  The dissent cites Cox’s testimony at length, but the bulk of the testimony relied on concerns
Cox’s opinions on the existence of a defect, and not causation.  To the extent that Cox’s opinions
address the proximate cause of the accident, they merely raise a suspicion or surmise of the cause
of the accident and fall short of the burden of proving causation.  
            Certainly in a no-evidence review we indulge all reasonable inferences in favor of the jury's
verdict, as we have done here.  Havner, 953 S.W.2d at 711.  We are not required, however, to ignore
fatal gaps in an expert's analysis or assertions that are simply incorrect.  While juries are important
to our legal system, they cannot credit as some evidence expert opinions that are not reliable or are
conclusory on their face.  These principles are consistent with a legal sufficiency review.  See
Havner, 953 S.W.2d at 711-12; Schaefer, 612 S.W.2d at 204-05.III.  Conclusion
            We hold that the expert testimony of Ronald Walker and the videotaped statement of the
unidentified witness are inadmissible under the rules of evidence.  Edward Cox does not supply
legally sufficient evidence that the alleged defect in the left rear wheel assembly caused the accident. 
Consequently, there is no evidence to sustain a finding that the alleged defect proximately caused
the accident.  We therefore reverse the judgment of the court of appeals and render a take-nothing
judgment in favor of Volkswagen.
 
                                                                        ________________________________________
                                                                        J. Dale Wainwright
                                                                        Justice


OPINION DELIVERED:  December 31, 2004
