Using and Attacking Expert Witnesses in Summary Judgment Proceedings

February 07, 2002

Introduction
For many years, Texas courts held that expert (or interested witness) testimony would not support a summary judgment motion or response.  See, e.g., Lewisville State Bank v. Blanton, 525 S.W.2d 696 (Tex. 1975) (per curiam); Gibbs v. General Motors Corp., 450 S.W.2d 827, 828-29 (Tex. 1970).  However, the 1978 amendment to Rule 166a specifically permits the granting of a motion for summary judgment based on the uncontroverted testimonial evidence of an interested witness, or of an expert witness, if the trier of fact must be guided solely by the opinion testimony of experts as to a subject matter.  Tex. R. Civ. P. 166a(c); see also Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997) (per curiam); Republic Nat’l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex. 1986).  The evidence must meet the following criteria:
 
 (1) It is clear, positive, and direct;
 (2) It is otherwise credible and free from contradictions and inconsistencies; and
 (3) It could have been readily controverted.
 
See Tex. R. Civ. P. 166a(c); see also Trico Techs., 949 S.W.2d at 310.

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