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7990 1 3 5 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 * * * * * * * * * * * * * * * * * Hearing of the Supreme Court 7990 1 2 3 4 5 6 7 * * * * * * * * * * * * * * * * * 8 HEARING OF THE SUPREME COURT ADVISORY COMMITTEE 9 MAY 16, 1997 10 (MORNING SESSION) 11 12 13 * * * * * * * * * * * * * * ^: * * 14 15 16 17 18 19 Taken before William F. Wolfe, 20 Certified Court Reporter and Notary Public in 21 Travis County for the State of Texas, on the 22 16th day of May, A.D. 1997, between the hours 23 8:45 o'clock p.m. and 5:30 o'clock p.m., at 24 the Texas Law Center, 1414 Colorado, Room 101, 25 Austin, Texas 78701. ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 MAY 16, 1997 MEMBERS PRESENT : MEMBERS ABSENT: Charles L. Babcock Alejandro Acosta, Jr. Pamela Stanton Baron Prof. Alexandra Albright David J. Beck Hon. Ann T. Cochran Honorable Scott A. Brister Michael T. Gallagher Prof. Elaine A. Carlson Hon. Clarence A. Guittard Prof. William V. Dorsaneo III Michael A. Hatchell Sarah B. Duncan Charles F. Herring, Jr. Anne L. Gardner Tommy Jacks Donald M. Hunt Franklin Jones, Jr. Gilbert I. Low David E. Keltner John H. Marks Jr. Joseph Latting Anne McNamara Thomas S. Leatherbury Anthony J. Sadberry Hon. F. Scott McCown Luther H. Soules III Russell H. McMains Stephen D. Susman Robert E. Meadows Paula Sweeney Richard R. Orsinger Stephen Yelenosky Hon. David Peeples David L. Perry EX OFFICIO blEMBERS : EX-OFFICIO MEMBERS ABSENT: Honorable William Cornelius Hon. Nathan L. Hecht O.C. Hamilton Hon. Paul Womack Doris Lange Paul N. Gold Mark Sales David B. Jackson Bonnie Wolbrueck W. Kenneth Law Hon. Paul Heath Till Doc #11894 44 MAY 16, 1997 MORNING SESSION Rule Page(s) TRCE 103(a)(2) 8060-8065 TRCE 106, 107 8031 TRCE 202, 204 8031-8032 TRCE 410 8032-8049 TRCE 504 8049-8050 TRCE 503 8019-8020 TRCE 509, 510 8020-8050 TRCE 513(d) 8050-8054 TRCE 702 8020-8027; 8059-8060 TRCE 705 8027-8031 TRCE 706 (Expert Appointed to Assist the 7992-8019 Court) TRCE 802 8054-8059 TRCE 1009 8027 TRCP 5 (New Rule 6, Time) 8066-8067 TRCP 21, 21a, 21b (New Rule 10, Service 8067-8069 & Filing of Pleadings) TRCP 38 (New Rule 27, Third Party Practice) 8069-8076 TRCP 76a 8105-8130 TRCP 171 8087-8089 TRCP 174 8089-8097 TRCP 237a, 239, 239a, 240, 241, 243, 244, 330) 8076-8087 (New Rule , Default Judgment) TRCP , Motions in Limine 80.98-8105 Doc #11907 7991 1 INDEX OF VOTES 2 3 Votes taken by the Supreme Court Advisory Committee during this session are reflected on 4 the following pages: 5 8017 8031 (two votes) 6 8032 8049 7 8050 8054 8 8055 8059 9 8065 8067 10 8069 8075 (two votes) 11 8082 8087 12 8088 8096 13 8097 8105 14 8126 15 16 17 18 19 20 21 22 23 24 25 ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306•1003 7992 1 (Meeting convened 8:45 a.m.) 2 CHAIRMAN SOULES: All right. 3 Thank you all for being here. Once again 4 we'll convene our Supreme Court Advisory 5 Committee meeting. We'll send a sign-up sheet 6 around. 7 Lee Parsley had asked me to bring 8 something to the attention of the Committee 9 early on for resolution here, and I think it's 10 something that Mark Sales-has been working 11 on. I don't want to get too far ahead of Mark 12 and Buddy. It is an evidence issue. 13 The Court had asked or apparently had 14 asked for some indication from the State Bar 15 Rules Committee and our Committee concerning 16 having the court appoint court experts or case 17 experts in addition to the experts selected by 18 the parties or maybe instead of experts 19 selected by the parties and what have you. 20 The State Bar Rules Committee responded 21 to the charge of the Court to write something 22 up that would get the job done, if necessary, 23 but unanimously opposes having such a rule. 24 And I think what Lee has suggested the Court 25 may want to know first is, does anybody feel ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 7993 1 we really need such a rule? 2 And Mark, I think I'm being fair to you 3 to say that you agree we don't even need to 4 look at the substance of this until we pass 5 the threshold of whether it's needed, right? 6 MR. SALES: I think that's 7 correct. 8 CHAIRMAN SOULES: You're not 9 going to be offended if we don't,noodle into 10 your work product, and the State Bar Rules 11 Committee won't be offended either, is that 12 right? 13 MR. SALES: Well, I think the 14 rule was -- the idea was to draft that rule 15 taking what Judge Brister had done and first 16 take it to them to see if there was any 17 support for it, which there was not, but in 18 that event, let's go forward and draft 19 something, and here is what the rule ought to 20 look like. And I think I put a copy up there 21 for folks to look at. But I would not -- you 22 know, obviously if there's no support, there's 23 no support. 24 CHAIRMAN SOULES: All right. 25 And Buddy, your committee recommends we have ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512I306•1003 7994 1 no such rule? 2 MR. LOW: No. But let me give 3 you a little history on it. 4 CHAIRMAN SOULES: Okay. Good. 5 MR. LOW: This Committee voted 6 against having a rule like the Federal 706 7 where they testify and so forth. So it was 8 suggested by Justice Hecht that we look at the 9 limited situation of appointing an expert in 10 duPont vs. Robinson type Daubert situations. 11 My committee met in Houston, and Judge 12 Brister helped us to draft such a rule. We 13 took 706 and modified it to that extent. My 14 committee really did not address the merits of 15 the rule, and we just drew a rule. So it is 16 appropriate to discuss whether or not we 17 should have a rule, and I would ask -- I think 18 Judge Brister was in favor of such a rule, and 19 maybe he has reasons and would like to state 20 why he favors the reason. And I think some of 21 the other judges have requested a rule. Judge 22 Brister? 23 CHAIRMAN SOULES: Judge 24 Brister. 25 HON. SCOTT A. BRISTER: The ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 7995 1 original impetus was the discussion -- I spent 2 a half day or a full day in the most recent 3 judicial conference in Houston, and there 4 seemed to be significant, if not great, 5 majority support among the judges to at least 6 have the option on the duPont vs. Robinson 7 hearing for the court to get the assistance of 8 somebody. 9 Now, I hope it doesn't come as a surprise 10 to you, to anybody here, that in situations 11 like that, judges sometimes call up doctors or 12 neighbors and ask them about these things even 13 now. This would allow a more formal procedure 14 and allow you to know what the judge talked to 15 somebody about before you just find out what 16 the judge's decision is. The problem is, 17 especially in the duPont situation, I'm 18 supposed to be determining what is and is not 19 mainstream science. And if I can't appoint an 20 expert, then I can tell you right now what 21 each side is going to say. The party 22 purporting the expert is going to say it is, 23 and the party against the expert is going to 24 say it ain't. And that is not going to help 25 me, because I know right now that's what ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306•7003 7996 1 they're going to say. You could say, "Well, I 2 could look at their CVs," and you know, 3 sometimes that will be helpful and sometimes 4 it won't. I could look at peer review, but 5 you know, if you want the test to be, it has 6 to be in a peer review journal or it ain't 7 science, that's fine. That's easy for me to 8 apply. But I don't think most lawyers are 9 going to want that. 10 And so then I've got to have something to 11 go on, and I've got to have something more 12 than the credibility, that credibility 13 assessment of the hired experts by either 14 sides, who I know in advance what they're 15 going to say, because you can hire experts 16 that are good for credibility reasons, for 17 acting like they're credible, whether they 18 are, just like you can hire one that's good on 19 the science. 20 So the idea was to draft a rule modeled 21 on the federal rule, but limit it to allowing 22 courts to appoint an expert only per this 23 issue, Robinson vs.
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