Volkswagen of America, Inc. v. Andrew Ramirez, Sr.

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 Transp ort

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