Whether a defendant’s action caused a plaintiff ’s injury is often the make-or-break issue in litigation. In many cases, this causal connection must be established through technical or scientific evidence. This evidence typically takes the form of testimony by an expert witness, like a medical doctor, chemist, or engineer. In the past, these experts often would testify based on his or her knowledge, education, and experience, coupled with observations, experiments, or studies made or conducted by the witness. Often, however, these observations, experiments, or studies were not reliable, scientifically speaking. It was “junk science.”

Robinson banned unreliable technical and scientific evidence from Texas courtrooms. Under Robinson, technical and scientific evidence must be based on peer-reviewed studies conducted using the scientific method. After Robinson, it is no longer acceptable for a hired-gun expert to provide unsupported testimony based solely on her knowledge, education, or experience; or based on observations, experiments, or studies that were not scientifically valid.

The question of whether scientific evidence presented at trial meets the Robinson standards is a question of law made by the trial judge and reviewed by appellate courts if a challenge to the evidence is part of an appeal. So, while it is important that trial judges make the correct decision on the admissibility of expert testimony, uncompromising appellate review is critical. Robinson reflects the common-sense idea that scientific evidence must be based on real science, not on speculation, conjecture, or rigged experiments by a hired-gun “expert.” It helped put Texas at the forefront in the battle against the use of “junk science” nationwide.

Robinson and the decisions that follow it are a thorn in the side of many personal injury trial lawyers, including Houston’s Mark Lanier.

Robinson, for example, applies to asbestos litigation. Litigation in which the claimants allege asbestos-caused diseases constitutes the nation’s longest-running mass tort. Over the past 40 years, the judicial system nationwide has grappled with hundreds of thousands of plaintiffs claiming an asbestos-caused disease, but showing no sign of illness. In Texas, Mark Lanier and other plaintiff lawyers had filed thousands of lawsuits on behalf of plaintiffs claiming a non-impairing asbestos illness, typically diagnosed from x-rays taken in discount-store and union-hall parking lots by x-ray readers hired by plaintiffs’ lawyers.

In 2007, the Texas Supreme Court held in Borg-Warner Corp. v. Flores that Robinson applies in asbestos cases. Consequently, asbestos plaintiff lawyers like Mark Lanier had to start proving an actual scientific connection between asbestos exposure and their clients’ alleged diseases.

Lanier also was heavily involved in litigation throughout the nation related to the pharmaceutical Vioxx. Lanier represented plaintiffs who claimed they suffered various heart-related problems after taking Vioxx. Lanier had won a jury trial in Brazoria County against Merck, the manufacturer of Vioxx. The jury awarded his client over $253 million in damages. Lanier, however, lost the Brazoria County case at Texas’s Fourteenth Court of Appeals in 2009 because his evidence was insufficient under Robinson to prove causation ( Merck & Co. v. Ernst).

Lanier’s theory in Ernst was that Vioxx created a blood clot that caused the plaintiff ’s husband to have a fatal heart attack. An autopsy, however, did not reveal a blood clot. To explain the missing blood clot, Lanier’s hired-gun medical experts testified that the blood clot might have dissolved after death or might have been dislodged or broken-up by CPR. Unfortunately for Lanier, his experts provided no scientific support for the idea that a blood clot could dissolve after death or that CPR could dislodge or break-up a blood clot. In other words, his case was built on junk science that was admitted into evidence by a trial judge reputed to be friendly to Lanier. The court of appeals disallowed the junk science and reversed the judgment.

Subsequent to Ernst, the Robinson standard was applied by the Texas Supreme Court in another Vioxx case, in Merck & Co. vs. Garza.

These decisions and others like them appear to have triggered political activity by Mark Lanier and a group of wealthy plaintiff lawyers who typically support Democrats.

In the most recent election cycle, three respected members of the Texas Supreme Court were challenged in the Republican primary while seeking re-election to their positions—Chief Justice Nathan Hecht, Justice Phil Johnson, and Justice Jeff Brown.

Chief Justice Hecht was the author of the Court’s opinion in Garza and joined in the Court’s decision in Borg-Warner. Justice Johnson joined in the Court’s decisions in Garza and Borg- Warner. Justice Brown was a member of the Fourteenth Court of Appeals at the time it considered Ernst, and he served on the three-judge panel that reversed Lanier’s judgment in that case.

Mark Lanier—and a group of Texas’s richest plaintiff lawyers—financed Republican primary challengers to the three incumbent justices. Fortunately, the three incumbent justices all won the Republican nomination by large majorities, despite Lanier’s funding of their opponents.

Lanier, and the Democrat personal injury trial lawyers who are helping him challenge conservative Supreme Court justices, are doubtless hoping they can create a critical mass of justices on the Texas Supreme Court who will vote to reverse or water-down Robinson and allow “junk science” back into Texas’s courtrooms. If they are successful, Texas courts will return to the days when speculation, conjecture, and rigged experiments by a well-compensated “scientist” will replace real science in Texas’s courtrooms. This is an effort the supporters of the rule of law should vigorously oppose, whether the effort arises in the courts, in the Legislature, or in the form of attempts to oust highly qualified jurists. ■