concluding in a products liability case involving administration of a drug alleged to cause birth defects that "the requirement of a more than 50% probability means that epidemiological evidence must show [at least] that the risk of an injury or condition in the exposed population was more than double the risk in the unexposed or control population,” citing numerous decisions and Judge Weinstein's seminal decision in In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1223, 1262 (E.D.N.Y.1985), in which he held that the plaintiffs were required to offer evidence that causation was " ‘more than 50 percent probable' ”
How later courts described this case
- concluding in a products liability case involving administration of a drug alleged to cause birth defects that "the requirement of a more than 50% probability means that epidemiological evidence must show [at least] that the risk of an injury or condition in the exposed population was more than double the risk in the unexposed or control population,” citing numerous decisions and Judge Weinstein's seminal decision in In re “Agent Orange” Product Liability Litigation, 611 F.Supp. 1223, 1262 (E.D.N.Y.1985), in which he held that the plaintiffs were required to offer evidence that causation was " ‘more than 50 percent probable' ”
- holding that legal sufficiency challenge “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 scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.”
- concluding that properly designed and executed epidemiological studies may be part of the evidence supporting causation in a toxic tort case, and finding a rational basis for relating the requirement that there be more than a "doubling of the risk" to the "more likely than not" burden of proof
- holding “[m]ore than a scintilla of evidence exists when the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions” (internal quotations omitted)
Written by the judges who cited it.
The opinion
*731 GONZALEZ, Justice,
concurring.
I join the Court’s opinion and judgment. I write separately to reiterate that the guidelines we established in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex.1995), are not limited to expert testimony based on a novel scientific theory.
In Robinson , we held that Texas Rule of Evidence 702 requires the proponent of scientific expert testimony to show that the testimony is both relevant and reliable. Robinson, 923 S.W.2d at 556 . In doing so, we followed the lead of the United States Supreme Court and the Texas Court of Criminal Appeals and adopted a list of non-exclusive factors for determining whether such testimony is admissible. 1 See id. at 554-57 (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993); Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992)). Here, the Court applies the Robinson criteria to Mer-rell Dow’s legal sufficiency challenge and concludes that the Havners’ expert testimony is no evidence of causation. 953 S.W.2d 706 . I agree with this approach. But I am concerned that some litigants may misread Robinson to apply only to novel scientific evidence because of my later writings applying it to “junk science” cases. See S.V. v. R.V., 933 S.W.2d 1, 26 (Tex.1996) (Gonzalez, J., concurring); Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 500 (Tex.1995) (Gonzalez, J., concurring).
Recently, the Court of Criminal Appeals addressed a similar attack on Kelly , that court’s equivalent of Robinson . In rejecting this argument, the court stated:
Nowhere in Kelly did we limit the two-pronged standard to novel scientific evidence. The [United States] Supreme Court in Daubert directly addressed the issue in a footnote, stating “[although the Frye decision itself focused exclusively on
‘novel’ scientific techniques, we do not read the requirements of Rule 702 to apply specifically or exclusively to unconventional evidence.” Daubert, 509 U.S. at 593 n. 11, 113 S.Ct. at 2796 n. 11. The Supreme Court noted that “under the Rules, the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Id. at 589 , 113 S.Ct. at 2795 (emphasis added). We likewise see no value in having a different standard of admissibility for novel scientific evidence. The problems presented in determining whether or not a particular type of evidence would be considered “novel” are daunting enough to reject application of a dual standard. Moreover, we observe that the factors and criteria set forth in Kelly as bearing upon the reliability of proffered scientific evidence are adequate measure for assuring that “novel” scientific evidence which is “junk science” is excluded. These factors “address the soundness of the underlying scientific theory and technique.” Jordan v. State, 928 S.W.2d 550, 554 (Tex.Crim.App.1996)....
Hartman v. State, 946 S.W.2d 60, 63 (Tex.Crim.App.1997). This analysis applies equally to Robinson. As I have said before, we intended Robinson to “provide the exclusive standard for evaluating the reliability of expert testimony about anything characterized as science.” S.V. v. R.V., 933 S.W.2d at 42 (Gonzalez, J., concurring on rehearing). We did not intend to free from Robinson’s grasp what might be considered routine science.
The Havners attempted to prove causation primarily through expert testimony based on epidemiological and animal studies. These foundations are by no means novel. By applying the Robinson factors to Merrell Dow’s no-evidence challenge, the Court implicitly holds that Robinson applies to scientific expert testimony across the board. The trial *732 court must only determine whether the evidence is relevant and rehable. See Robinson, 923 S.W.2d at 556 . It need not decide whether the evidence is also novel.
. These factors are:
(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 that theory or technique.
E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex.1995) (citation and footnote omitted).