# Texas Workers' Compensation Commission v. Wausau Underwriters Insurance

> Texas Court of Appeals, 1st District (Houston) · December 17, 2003 · 127 S.W.3d 50

URL: https://www.frixlaw.com/law-library/cases/9664321

## Case

- **Full name:** TEXAS WORKERS’ COMPENSATION COMMISSION and Katherine D. Kaus, Appellants, v. WAUSAU UNDERWRITERS INSURANCE, Appellee
- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** December 17, 2003
- **Citations:** 127 S.W.3d 50; 2003 WL 22208820
- **Precedential status:** Published
- **Opinion:** Dissent by Jennings
- **Judges:** Tim Taft
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9664321

## How later opinions describe it (automated extraction)

- stating that Rule 803(9) “provides an alternative avenue of admissibility for death certificates, in addition to section 191.052 of the Texas Health and Safety Code”
- discussing differing treatment of findings of accident or suicide as facts or opinions and listing cases

## Opinion text

TERRY JENNINGS, Justice,
dissenting from denial of en banc consideration.
I respectfully dissent from the denial of en banc review of this case. I agree with the reasoning of Justice Price’s dissent from the panel opinion.
It is well-settled in Texas that trial courts have the responsibility to ensure that expert testimony is not only relevant, but “rehable.” Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex.1998). Moreover, if an expert relies upon unreliable foundation data, any opinion drawn from that data is likewise unreliable. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex.1997). If expert testimony is not rehable, it is not evidence. Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 595 (Tex.App.-Houston [1st Dist.] 2002, pet. denied).
*66 It is axiomatic that the proponent of expert testimony has the burden of showing its reliability. Here, the proponent of the expert testimony in question failed to meet that burden, and the trial court’s subsequent change of heart, no matter the cause, cannot transform what is “no evidence” into some evidence. Given the extraordinary nature of this case, en banc consideration is required. Tex.R.App.P. 41.2(c).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9664321. Public record. Not legal advice.