EI Du Pont De Nemours & Co. v. Robinson

CORNYN, Justice, joined by HIGHTOWER, GAMMAGE and SPECTOR, Justices, dissenting.

Whether jurors will be permitted to hear testimony on an essential element of the plaintiffs’ lawsuit, and accept or reject it, in whole or in part as they see fit, is the issue with which we are presented. It is not whether we as judges find such evidence credible or “reliable,” to use the terminology adopted by the Court. Determining credibility is uniquely a jury function. Although I share the Court’s concern about admission of unsupported expert testimony, see Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 464-66 (Tex.1992) (Cornyn, J., dissenting), I do not think that the Court correctly applies the Texas Rules of Evidence to the facts of this ease. Nor does the Court establish a workable or wise rule for regulating the admission of such evidence.

The rule adopted by the Court is unworkable because it requires judges to venture upon a determination that the foundation for an expert witness’s opinion is “scientifically reliable.” In so holding, the Court refiexively embraces what the Supreme Court itself referred to as only “general observations” in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591-93, 113 S.Ct. 2786, 2796, 125 L.Ed.2d 469 (1993). The Court also overlooks the fact that these general observations were directed at only a narrow subspecies of expert testimony, novel scientific evidence, and thus are of doubtful application in this case. Finally, the Daubert dicta thrusts judges, by and large untrained in science, into the inappropriate role of amateur scientists, see id. at 599, 113 S.Ct. at 2800 (Rehnquist, C.J., concurring and dissenting), and has been rejected as either inapplicable or unworkable by numerous state and federal courts.1

The Court’s requirement that trial judges determine the reliability of scientific testimony is unwise because it threatens to invade the jury’s province as “the sole judge of the credibility of the witnesses and the weight to be given their testimony.” See Tex.R.Civ.P. 226a (approved instructions) pt. III.

Aside from these disagreements over the proper standard to be applied to novel scientific testimony, I believe the majority today errs in a more fundamental way; In the Court’s haste to uncritically embrace Dau-bert, it overlooks two alternative reasons for admitting the expert testimony at issue in this case. First, the Court overlooks the fact that Dr. Whitcomb’s testimony was based on both: (1) facts and data normally relied upon by experts in the field of horticulture; and (2) first-hand knowledge gained by personal observations and investigation of the potential causes of the damage to the Robinsons’ pecan trees. This second source of information is independently sufficient under Rule 703 of the Texas Rules of Civil Evidence to require admission of Dr. Whitcomb’s testimony, regardless of the Court’s evaluation of *561the separate scientific study he performed. Indeed, DuPont does not even contest this basis for the admission of Whitcomb’s testimony.

Second, the Court overlooks the lack of any evidence to controvert Dr. Whitcomb’s testimony that his opinions are grounded in good science. Although DuPont’s attorneys vigorously argued that Whitcomb’s testimony was not admissible under the Daubert standard. DuPont offered no rebuttal testimony in the trial court with which the court might assess the validity of Dr. Whitcomb’s methods. No evidence, just unsupported arguments of counsel, has been offered to show that the facts and data relied upon by Dr. Whitcomb are not of the type routinely relied upon by experts in the field. Accordingly, I dissent.

I.

There are certain threshold requirements that all expert testimony must meet to be admissible. Our rules of evidence provide that “[a]ll relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority.” Tex.R.Civ.Evid. 402.2 Undeniably, Dr. Whitcomb’s testimony about what caused the damage to the Robin-sons’ pecan trees satisfies this relevance requirement.

Furthermore, expert testimony must be given by “a witness qualified as an expert by knowledge, skill, experience, training, or education.” Tex.R.Civ.Evid. 702. No one asserts that Dr. Whitcomb is unqualified as an expert witness under Rule 702. To the contrary, all agree that he is qualified by virtue of his education and experience to testify as an expert witness, and no one contests that the subject matter of his testimony is appropriately provided by expert opinion.

Finally, his testimony is rather clearly designed to “assist the trier of fact to understand the evidence or to determine a fact in issue.” Tex.R.Civ.Evid. 702.3 This requirement is consistent with our observation that

[ejxpert testimony concerning the possible causes of the condition in question will often assist the trier of fact in evaluating other evidence in the case. If the witness were permitted to state his opinion only in terms of ... probabilities, moreover, the court and jury would have no opportunity to decide the case on the basis of the substance rather than the form of his testimony.

Lenger v. Physician’s Gen. Hosp., 455 S.W.2d 703, 707 (Tex.1970).

II.

Once these general requirements are met, Rule 703 presents a more specific substantive hurdle for the admission of expert testimony.4 Rule 703 addresses the types of “facts *562or data” upon which the expert’s opinion can be based:

The facts or data in the particular case upon which an expert bases an'opinion or inference may be those perceived by or reviewed by the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Tex.R.Civ.Evid. 703. Broken down into its components, the rule contemplates three sources of the “facts or data” that might underlie the expert’s testimony: (1) firsthand knowledge; (2) hypothetical questions based on admitted evidence,5 and (3) inadmissible data, if of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. See Fed.R.Evid. 703 Advisory Committee’s Note; Sutton, Commentary on Expert Testimony, in Texas Rules of Evidenoe Handbook 847 (2d ed. 1993).

Placed within the framework of Rule 703, Dr. Whitcomb’s testimony of a cause-and-effect relationship between the Benlate and the damage to the Robinsons’ trees rested on two permissible bases: (1) first-hand observation, that is, facts perceived by the witness himself; and (2) information of a type that, although inadmissible in the present case, would be, in the words of the rule, “reasonably relied upon by experts in the particular field in forming opinions or inferences on the subject.” See Tex.R.Civ.Evid. 703. This is demonstrated in the following sections.

A.

Dr. Whitcomb’s excluded testimony was based, at least in part, on the following firsthand observations made during his inspection of the Robinsons’ orchard in 1992: (1) many leaves had an unusual coloration or were deformed in shape, but the pattern of occurrences were inconsistent with frost damage, insect infestation, or nutrient deficiencies; (2) many nuts had failed to form properly, but the deformities were not consistent with nutrient deficiencies or drought; (3) roots had failed to develop normally, but the abnormalities were inconsistent with freeze damage, drought, or root rot; (4) new growth in the limbs of the trees had failed to develop normally or had experienced die-back; (5) soil conditions were of adequate depth and consistency to support a pecan orchard; (6) drainage patterns in the orchard were sufficient to prevent excess accumulations of rainfall that could damage pecan trees; and (7) insects were not present in any appreciable level.

This first category of “facts or data” is not contested by DuPont, nor is it even discussed by the Court. In fact, many of the exhibits tendered by DuPont in support of its motion to exclude Dr. Whitcomb’s testimony relied upon similar first-hand observations. Alone, this type of information is a sufficient basis for rendition of an expert opinion, for whatever weight (if any) the factfinder might give it. See Weinstein et al„ Weinstein’s Evidence § 703-7 (1995) (“Personal observation has always been an adequate basis for an expert’s opinion, ‘and indeed has been called the most desirable of all bases.’ ” (quoting Fed.R.Evid. 703 Advisory Committee’s Note)).

Dr. Whitcomb’s testimony based on his personal observations is roughly analogous to that which may be offered by a physician, who may testify based on nothing more than a personal examination, the patient’s history, and correspondence with other physicians. See Hart v. Van Zandt, 399 S.W.2d 791, 798 (Tex.1965); see also Goode et al., Guide to the Texas Rules of Evidenoe: Civil and Criminal § 703.3 at 51 (1993). To the extent Dr. Whitcomb was simply applying his extensive knowledge of horticultural phenomena to observable conditions in the Robinsons’ orchard, his testimony was unquestionably admissible. On this basis alone, the trial court erred in excluding all of Dr. Whitcomb’s testimony.

The rationale behind this admittedly expansive standard for the admission of expert opinions based on personal observations may be better understood in the context of change *563in Texas law wrought by adoption of Rule 703. As late as 1980, Texas law disallowed admission of expert opinions based solely on hearsay evidence, mainly because this basis for the expert’s testimony was not considered sufficiently trustworthy. See Moore v. Grantham, 599 S.W.2d 287, 289 (Tex.1980). The Court’s adoption of the Rules, however, overruled Moore and allowed an expert to base opinion testimony entirely on inadmissible evidence, but the concern for the trustworthiness of the underlying basis for the expert’s opinion did not evaporate. Instead, Rule 703 requires that if an expert intends to base an opinion solely on hearsay evidence, that it must be of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. See WendoRF et al, Texas Rules of Evidence Manual at VII — 15; Fed.R.Evid. 703 Advisory Committee’s Note. This change was designed to broaden the basis for expert opinions and to bring courtroom practice in line with the practice of experts themselves when they are not in court. Id.

There is, however, no similar limitation on expert opinions based on admitted evidence. See Goode et al., supra, § 703.3 at 51. If an expert bases an opinion on admitted evidence, that is, evidence already before the jury, “sufficient guarantees of trustworthiness are ordinarily present to assure the reasonableness of the expert’s reliance in the particular case.” See id. The weight, if any, to be given to that testimony is then solely within the province of the jury. See People v. Wesley, 83 N.Y.2d 417, 611 N.Y.S.2d 97, 104, 633 N.E.2d 451, 458 (1994) (stating that the court cannot determine whether the evidence underlying an expert’s opinion is true because that determination is a jury function). As Dean Sutton points out: “The jury can evaluate this evidence only indirectly by judging the credibility of the expert.” Sutton, supra, at 853. Thus, the Rules confer no authority on a court to exclude expert testimony that is based solely on evidence already before the jury, provided it meets the threshold requirements discussed above.

B.

Dr. Whitcomb’s excluded testimony was also based on the following facts or data that are of the type reasonably relied upon by experts in his field: (1) a comparison between the damage to the Robinsons’ orchard and damage occurring in other pecan trees treated with Benlate; (2) a comparison between the damage to the Robinsons’ orchard and damage to other plants treated with Benlate under a controlled scientific study conducted in 1992 (the “Comparative Symp-tomology Study”);6 (3) a comparison between the damage to the Robinsons’ orchard and damage reported in over five-hundred pages worth of articles about herbicides in peer-reviewed journals and in other authoritative reports; (4) a review of various DuPont memoranda reporting allegations of plant damage following application of Ben-late; (5) a review of various DuPont memo-randa discussing the potential contamination *564of some of its. products such as Benlate; and (6) a chemical analysis of ten boxes of Ben-late that revealed 18 identifiable foreign compounds (contaminants, according to Dr. Whit-comb) between the ten boxes, with only five common to all boxes. Furthermore, the statistical conclusions of Dr. Whitcomb’s Comparative Symptomology Study were reviewed by Dr. William Warde, a Professor of Statistics at Oklahoma State University; and his findings were also reviewed by Dr. George Madden, a Ph.D horticulturist who previously worked for the United States Government at the Brownwood Pecan USA Research Pecan Orchard.

Based on the forgoing information, Dr. Whitcomb concluded that contaminated Ben-late was, in all scientific probability, the cause of damage to the Robinsons’ pecan trees. He conceded that he could not prove the mechanism by which various contaminants caused the damage because the level of contamination was below the level of detection by state of the art techniques, as low as 20 parts per trillion. Nonetheless, he was of the opinion that toxic contaminants were present and that these contaminants caused the damage observed.

DuPont’s objections were focused on the reliability of the opinions supported by these bases.7 DuPont argues that it is “dubious methodology [that] is the source of the trial courts exercise of discretion in excluding Dr. Whitcomb’s ‘opinions.’ ” In response, the Robinsons argue that Dr. Whitcomb used scientific procedures8 reasonably relied upon by experts in his field.

Applying Rule 703 to the bases underlying Dr. Whitcomb’s testimony, I think it is clear that his testimony should have been admitted. Dr. Whitcomb performed controlled testing and chemical analysis. Both types of tests are well-established in the field of science. Dr. Whitcomb reviewed the literature that he deemed authoritative on Benlate and on potential contaminants. Reliance on literature published by a scientist’s peers is central to the scientific process. In short, the facts and data relied upon are the type reasonably relied upon by experts in the field. In my view, that should end the inquiry.

The bases of Dr. Whitcomb’s testimony are clearly distinguishable from the scientific methods usually at issue in the type of “novel scientific testimony” cases with which Daubert was concerned. His testimony did not purport to rely upon new methods of detecting the fact at issue, as was historically the concern with cases involving polygraph tests, voice spectrogram analysis, and DNA evidence. He did not purport to be able to discern new insights from existing studies that other scientists had missed, as was the case in Daubert when the experts “re-analyzed” the data in existing Bendectin studies and reached opposite conclusions from the authors of the studies. Instead, Dr. Whitcomb employed traditional scientific methods: observation, comparison, experimentation with control groups, and deductive reasoning to form his opinions. If the Court had focused on these methods of incorporating facts and data into an expert opinion, it would have concluded that Dr. Whitcomb used methods that are reasonably relied upon by expérts in the field.

The Court today avoids such a straightforward analysis of the bases for Dr. Whit-comb’s opinions, and in its place adopts a standard of “reliability.” 923 S.W.2d 549. This reliability standard shifts the focus of the admissibility inquiry. Under the plain language of Rule 703, the focus is on the normal practices of the relevant community of scientists: Do reasonable experts in the field employ the same methods and data? *565Under the reliability standard, the focus is on the independent validity of the methods, data, and conclusions themselves: Are the types of facts and data upon which the opinion is based sufficiently reliable to support the conclusion drawn?

Under the interpretation that the Court adopts today, the trial judge is left with no benchmark against which to measure the reliability of the proffered testimony. The judge must assume the role of amateur scientist and independently evaluate the reliability of the methods employed by the expert. For instance, if the expert has relied upon an experiment to form his opinion, the judge must evaluate the reliability of that experiment and the applicability of its findings to the facts of the case. This inquiry would require, among other things: (1) an evaluation of whether the confidence level achieved in the experiment was sufficient to assist the trier of fact; (2) an evaluation of whether the experiment eliminated all potential confounding factors; (3) an evaluation of whether other types of experiments could have been performed and whether these alternatives would have provided more reliable information; and (4) an evaluation of whether the experiment’s results can be legitimately extrapolated to the facts at hand. The scientists who work in the field may have devoted their professional lives to making these determinations, but the judge must now step into their shoes and independently decide these issues.9

I believe that judges should refrain from determining the admissibility of evidence based on such dubious forays into scientific inquiry. For that reason, I cannot agree with the majority’s adoption of Daubert’s reliability standard.10

III.

Even if we assume that an independent evaluation of Dr. Whitcomb’s testimony would prove that the testimony is unreliable and not grounded in good science, the trial court erred in making this determination without any evidence in the record to support this conclusion. The majority today fails to consider this complete lack of controverting evidence in the record.

Of course, trial judges have traditionally performed a preliminary fact-finding determination of the admissibility of witness testimony. See Strong, McCormick on Evi-denoe, § 58 at 212-13 (4th ed. 1992); see also Tex.Civ.R.Evid. 104(a) (“Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court....”). Even advocates of a heightened threshold for the admission of expert testimony have noted *566that “Daubert skews the normal judicial process by requiring judges to perform the fact-finding function previously assigned to the jury.” See Hamlin, “Junk Science” in the Courts: Problems and Solutions, Legal BaCKGRoundeR (Washington Legal Found., Vol. 10, No. 20, May 19, 1995). But even if we accept the propriety of this enhanced fact-finding role for the judge, we cannot allow judges to make findings of fact that have no support in the record.

The requirement that findings of fact have support in the record is especially relevant when the court is determining the validity of scientific evidence because, by definition, such evidence is beyond the competency of non-scientists. The Rules assume that scientific evidence in the form of opinions is helpful to the jury in resolving fact questions that require learning or reasoning that is beyond the competency of a lay jury. In such situations, the rules liberally admit opinions based on facts or data reasonably relied upon by experts in the field. Compare Tex.R.Civ. Evid. 701 (limiting lay opinions to those based on the perception of the witness) with Tex.R.Civ.Evid. 703 (allowing expert testimony based on evidence perceived or reviewed by the expert, including inadmissible evidence of the type reasonably relied upon by experts in the field). But by assuming that the subject matter of the opinions is beyond the competency of non-scientist jurors, the Rules necessarily assume that the subject matter of the opinions is also beyond the competency of non-scientist judges. Thus, it would be inconsistent with this assumption to maintain that judges are competent to independently assess the scientific validity of scientific opinion testimony. See Kelly v. State, 824 S.W.2d 568, 576 (Tex.Crim.App.1992) (Clinton, J., concurring) (“The greatest advantage of the Frye test is that it essentially leaves the question of validity of novel theories and techniques to those whose vocation it is to view the world from the perspective of the scientific method, viz: the scientists. Trial judges are ill equipped to make the determination whether a given theory or technique has been sufficiently ‘tested in the crucible of controlled experimentation and study’ that it can accurately be said to gauge the probability of the existence, vel non, of the fact in issue.”); People v. Leahy, 8 Cal.4th 587, 34 Cal.Rptr.2d 663, 673, 882 P.2d 321, 331 (1994) (rejecting Daubert and questioning the competency of the trial court to determine scientific validity); Posner, The Problems of Jurisprudence 62 (1990) (“Lawyers and judges (not to mention jurors) are not trained in the scientific method.”).

Because judges must logically rely on the information available from experts in the particular field to evaluate the admissibility of expert testimony, the party opposing a given expert witness’s testimony must controvert the expert’s claim of reasonable reliance.11 See Indian Coffee Corp. v. Procter & Gamble Co., 752 F.2d 891, 898 (3d Cir.), cert. denied sub nom. Folger Coffee Co. v. Indian Coffee Corp., 474 U.S. 863, 106 S.Ct. 180, 88 L.Ed.2d 150 (1985) (holding that the trial court erred in excluding experts’ testimony when no evidence appeared in the record casting doubt on their testimony that experts *567in their field rely on the type of information they relied upon); see also Moore v. Polish Power, Inc., 720 S.W.2d 183, 192 (Tex.App.— Dallas 1986, writ refd n.r.e.) (holding that the trial court erred in excluding expert testimony after reviewing the record as a whole to determine the reasonableness of the expert’s reliance on specific data). But cf. Soden v. Freightliner Corp., 714 F.2d 498, 505 (5th Cir.1983) (“Though courts have afforded experts a wide latitude in picking and choosing the sources on which to base opinions, Rule 703 nonetheless requires courts to examine the reliability of those sources.”). Learned treatises represent one basis for the court’s determination of reasonable reliance, as would judicial notice under appropriate circumstances. Cf. Tex.R.Civ.Evid. 803(18) (stating that a learned treatise may be “established as a rehable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice”); see also Goode et al., supra, § 703.3 at 48. But in the absence of such learned treatises or judicially noticeable facts, if the party opposing such testimony fails to provide the court with evidence controverting the fact that the scientific evidence underlying expert testimony is of a type reasonably relied upon by experts in the field, the trial court would necessarily be required to admit such testimony. If controverting testimony is presented, the trial judge must decide this issue as a preliminary matter under Rule 104(a) of the Texas Rules of Civil Evidence.

The Court, under the aegis of an abuse-of-discretion standard, is apparently willing to allow a trial judge to determine the reliability of scientific testimony without any support in the record. See 923 S.W.2d at 557 (holding that the opponent of expert testimony needs only to object to the testimony, not to produce controverting evidence). The Court’s approach is inconsistent with Texas law. When the trial judge determines a question of fact under Rule 104(a), there must be evidence in the record to support the judge’s finding. The trial judge commits an abuse of discretion if a finding of fact is made “without sufficient information upon which a rational decision may be made, as reflected in the appellate record.” See Hall, Revisiting Standards of Review in Civil Appeals, 24 St. Maey’s L.J. 1045, 1050-53 (1993) (quoting Reyna v. Reyna, 738 S.W.2d 772, 774 (Tex.App.— Austin 1987, no writ)). Thus, even under the Court’s standard, the opponent of the proffered testimony must produce some evidence that the expert’s methods or theories are scientifically unreliable before the trial judge can exclude the testimony.

It is important to stress that the trial judge’s determination is distinct from an evaluation of the credibility of the proffered testimony. It is also different from a determination that the underlying scientific evidence itself is scientifically reliable. Under Rule 104(a), the trial judge does not weigh the credibility of the evidence in proving the fact issue in question. Rather, the judge weighs the credibility of the conflicting testimony as to the reasonableness of the expert’s rebanee on the given facts or data. This distinction is critical in maintaining the separate roles of the expert witness, the trial judge, and the jury.

In this case, the proffered testimony of Dr. Whitcomb was based upon both personal observations and upon the application of certain scientific studies, including his Comparative Symptomology Study. DuPont offered several reports by other experts in support of its motion to exclude this testimony. While these reports reached different conclusions as to the cause of the damage to the Robinsons’ orchard, none of them directly addressed the reasonableness of Dr. Whit-comb’s reliance, in part, on his personal observations or his comparative analysis.

In fact, many of the conclusions reached in these reports rely upon the same type of data that was relied upon by Dr. Whitcomb. For instance, Dr. Whitcomb relied upon the fact that pecan trees are not particularly susceptible to freezing temperatures in excluding cold weather as a cause of the damage. In one report offered by DuPont, its expert, Dr. Stein, relied upon the relative cold-weather sensitivity of particular varieties of pecans to conclude that some of the damage could be attributed to freezing weather in 1989. Similarly, Dr. Whitcomb relied upon his knowledge of the normal root depths of pecan trees to conclude that soil *568conditions were not responsible for the damage. DuPont’s experts also relied upon this data to conclude that soil conditions were at least a partial cause.

Thus, from the records available to the trial judge, there was no basis for his conclusion that the facts or data relied upon by Dr. Whitcomb were not of the type reasonably relied upon by experts in his field, despite the fact that DuPont’s experts reached different conclusions when examining the very same data.12

IV.

As I noted earlier, the Court’s conclusion today that the testimony of Dr. Whitcomb is inadmissible relies primarily on dicta from Daubert v. Merrell Dow Pharmaceuticals, Inc., in which the Court offered what it called some “general observations” regarding the admission of novel scientific testimony under Rule 702. See 509 U.S. at 591-93, 113 S.Ct. at 2796. The Supreme Court’s narrow holding was that the “general acceptance” standard derived from Frye v. United States, 293 F. 1013 (D.C.Cir.1923), did not survive the enactment of the Federal Rules of Evidence in 1975. Id. at 587-88, 113 S.Ct. at 2794. But the reader can clearly sense the trepidation of the Ninth Circuit on remand in attempting to apply the Supreme Court’s vague “observations” to the case before it. The court wrote:

Our responsibility, then, unless we badly misread the Supreme Court’s opinion, is to resolve disputes among respected, well-credentialed scientists about matters squarely within their expertise, in areas where there is not scientific consensus as to what is and what is not “good science,” and occasionally to reject such expert testimony because it was not “derived by the scientific method.” Mindful of our position in the hierarchy of the federal judiciary, we take a deep breath and proceed with this heady task.

Daubert v. Merrell Dow Pharmaceuticals, Inc. 43 F.3d 1311, 1316 (9th Cir.1995).

The Supreme Court’s narrow holding, rejecting the Frye test as the exclusive test of admissibility, should not affect Texas jurisprudence because Frye was not the law in this state. The Texas Court of Criminal Appeals rejected the Frye standard as inconsistent with Rule 702 three years ago. See Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App.1992). In civil cases, we have never adopted the Frye standard. The first citation to Frye in a Texas civil case was in Maritime Overseas Corp. v. Ellis, 886 S.W.2d 780, 785 (Tex.App.— Houston. [14th Dist.] 1994, writ requested). Before today, the Texas Supreme Court had never even cited the Frye standard, mainly because that standard has traditionally applied to novel scientific evidence in criminal cases.13

Despite the existence of a relatively well-settled and sound body of law in Texas, the Court today rushes to adopt the federal standard of reliability from Daubert. In so doing, the Court affirms a completely unsupported trial court ruling. Accordingly, I dissent.

. A number of courts have either declined to follow Daubert or found it inapplicable: Vadala v. Teledyne Indus., Inc., 44 F.3d 36, 39 (1st Cir. 1995) (holding that Daubert is limited to cases involving "scientific law” and not accidents); la-' cobelli Constr. Inc. v. County of Monroe, 32 F.3d 19, 25 (2d Cir.1994) (concluding that Daubert addressed only "junk science" cases and is inapplicable to construction litigation); Lappe v. American Honda Motor Co., 857 F.Supp. 222, 228 (N.D.N.Y.1994) (admitting expert testimony in products liability action because "Daubert only prescribes judicial intervention for expert testimony approaching the outer boundaries of traditional scientific and technological knowledge”); State v. Bible, 175 Ara.. 549, 580, 858 P.2d 1152, 1183 (1993); People v. Leahy, 8 Cal.4th 587, 34 Cal.Rptr.2d 663, 673, 882 P.2d 321, 331 (1994); Fishback v. People, 851 P.2d 884, 889 (Colo. 1993); Flanagan v. State, 625 So.2d 827, 828-29 (Fla. 1993); State v. Alt, 504 N.W.2d 38, 45-46 (Minn.CtApp.1993); State v. Carter, 246 Neb. 953, 524 N.W.2d 763, 779 (1994); People v. Wesley, 83 N.Y.2d 417, 611 N.Y.S.2d 97, 102, 633 N.E.2d 451, 456 (1994); State v. Cauthron, 120 Wash.2d 879, 846 P.2d 502, 505 (1993).

. A court could nonetheless exclude relevant, admissible expert testimony on the basis of the balancing test prescribed by Rule 403, which authorizes exclusion of otherwise admissible evidence if its probative value is outweighed by considerations of unfair prejudice, confusion, tendency to mislead, undue delay, or cumulative nature. But here, the trial court did not base its exclusion of this testimony on Rule 403.

. Adoption of the Rules of Evidence subtly but significantly modified the former common law requirement that “need” for the expert’s testimony be demonstrated, in the sense that the subject matter of the testimony had to be beyond the understanding of a lay jury. Wendorf et al„ Texas Rules of Evidence Manual VII-16 (3d ed. 1994). A showing of "need” has been supplanted, and the scope of expert testimony significantly broadened. The new standard requires only that the testimony "assist the trier of fact.”

.By framing the admissibility determination in terms of Rule 703 rather than Rule 702, the Court’s focus appropriately remains on the foundation underlying the witness’s testimony. If, as the Court insists, courts must determine the scientific reliability of proffered testimony based on the underlying methodology, they certainly should not attempt to perform that task unaided by other expert testimony, as the trial court apparently did here. Appropriately viewed, the trial court's task becomes one of determining whether the methodology upon which an expert’s testimony is based is of a type reasonably relied upon in the relevant scientific community. Because Rule 703 specifically addresses the permissible bases for expert opinions, courts should evaluate methodology only in that context. Instead, the Court once again simply follows wherever Daubert’s dicta may lead. Not only is there no textual support in Rule 702 for this approach, this analysis disregards the role of Rule 703 in determining the appropriate bases for expert testimony.

. Rule 705, however, eliminates the need for hypothetical questions inasmuch as the expert need not state,- before tendering an opinion, the facts or data underlying that opinion.

. In planning this study, Dr. Whitcomb hypothesized that Benlate had been contaminated during the manufacturing process with, among other things, sulfonylurea herbicides, and that the herbicide contaminant damaged the Robinsons’ pecan trees. To test his hypothesis, Dr. Whitcomb tested Benlate on a variety of plants and trees, controlling the environment to reduce the likelihood of other causes of differences between plants. Each plant was planted in the same type of pot, the same soil, and subjected to identical watering, light, and temperature. They were segregated from each other so that the likelihood of airborne contaminants was reduced.

Benlate was administered to the plants by three methods: spray, drench, and soil treatment. Doses were administered according to a random assignment, and each test was duplicated four times. For comparison, Dr. Whitcomb maintained a control group, that is, a group of untreated plants. See Rodricks, Calculated Risks: The Toxicity and Human Health Risks of CAemicals in Our Environment 124-26 (describing such methodology as a cohort study). Following the application of Benlate, Dr. Whitcomb compared the plant symptoms observed in the test with those observed on sites with Benlate problems and those associated with sulfonylurea herbicides. The symptoms he observed were similar to those he found described in professional journals and publications from around the world, as well as in DuPont’s own documents. Based on his comparisons, he opined that common symptoms were exhibited. The only common denominator was the use of Benlate 50 DF. Dr. Whitcomb testified that the methodology he utilized in this study is widely used in the field of science generally, and particularly in the field of medicine, in the diagnosis of disease.

. As was the case with expert testimony based on personal observations, DuPont has apparently utilized similar tests to the ones employed by Dr. Whitcomb in its internal investigation of Benlate. Although the record contains several internal DuPont memoranda with indirect references to such tests, it is not clear whether DuPont intended to introduce any expert opinions based on these tests.

. The Supreme Court has noted: "Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry,” Daubert, 509 U.S. at 593, 113 S.Ct. at 2796 (quoting Green, Expert Witnesses and Sufficiency of Evidence in Toxic Substances' Litigation: The Legacy of Agent Orange and Bendectin Litigation, 86 Nw.U.L.Rev 643, 645 (1992)).

. This dilemma is further complicated by the fact that scientific inquiry, even at its best, does not always provide conclusive support for accepted scientific "truths.” See Posner, The Problems of Jurisprudence 62 (1990). When scientists themselves cannot truly prove their theories through objective inquiry, we can hardly expect judges to reach objective, informed decisions on which theories are "reliable.”

. Assuming arguendo that Daubert’s standard would be appropriate in this case, I believe that Dr. Whitcomb’s testimony would satisfy the four criteria set out by the Supreme Court: falsifiability, peer review, error rate, and general acceptance. First, Dr. Whitcomb’s theories are certainly falsifiable. He set forth the procedures used in his Comparative Symptomology Study in great detail; DuPont could repeat such tests and thereby falsify or confirm his results. Second, Dr. Whitcomb’s opinions were based, in part, upon conclusions that had been subjected to peer review. His own test results were subjected to limited review by Dr. Warde and Dr. Madden.

Furthermore, Dr. Whitcomb relied upon several articles that were published in peer-reviewed journals. See, e.g., Blair & Martin, A Review of the Activity, Fate and Mode of Action of Sulfony-lurea Herbicides, 22 Pesticide Sci. 195 (1988). Third, Dr. Whitcomb's study had a calculated rate of error that was well within acceptable ranges. Finally, the basic hypothesis — that Ben-late was causing damage to various crops — while not proven conclusively, had gained a level of general acceptance among the scientific community. The Environmental Protection Agency was reviewing the potential contamination of Benlate and its effects on agricultural production. See DuPont Pesticide Benlate Under Widespread Scrutiny, Trial, Mar. 1993, at 104. The Florida Department of Agriculture and the University of Florida were also conducting tests. See Lyons, DuPont Changes Course in Court, Nat'l L.J., Mar. 7, 1994, at 1, 40. Even DuPont had devoted $12 million and hired 100 scientists to research the issues. Because Dr. Whitcomb’s methods satisfy the Daubert criteria, I believe the trial court erred, even under the standard adopted by the Court today.

. The Court misses the point of this argument, explaining, "Once the party opposing the evidence objects, the proponent bears the burden of demonstrating its admissibility.” 923 S.W.2d at 557. In this case, the Robinsons responded to DuPont's objection, in part, by offering evidence in a bill of exceptions. In this proffer of evidence, Dr. Whitcomb explained in great detail the bases for his testimony, testifying that these were well-established scientific methods. Specifically, he testified that "comparative symptomol-ogy, [was] an approved scientific procedure reasonably relied upon by experts in [horticulture] and other fields in forming opinions.” He characterized his research techniques as "sound, statistical, and scientific,” whereby “plant response was evaluated quantitatively, ... and the resulting data ... was subjected to analysis of variance and other statistical analysis.” Obviously, this evidence went far beyond the "bald assertion of validity" criticized in Daubert by the Ninth Circuit on remand. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1316 (9th Cir.1995). Under Texas law, the expert's own testimony is sufficient to demonstrate the permissibility of the bases for the proffered opinions. See Lipsey v. Texas Dept, of Health, 727 S.W.2d 61, 72 (Tex.App. — Austin 1987, writ ref'd n.r.e.); St. Paul Med. Ctr. v. Cecil, 842 S.W.2d 808, 815 (Tex.App. — Dallas 1992, no writ).

When such evidence is presented, the proponent has carried its burden of demonstrating the admissibility of the witness's testimony, and in the absence of controverting evidence, the expert’s opinion must be admitted.

. DuPont's counsel did argue that comparative symptomology was not a scientific method reasonably relied upon by experts in the field, but this is not evidence, and did not satisfy DuPont's burden under Rule 104(a).

. See, e.g., Spence v. State, 795 S.W.2d 743, 752 (Tex.Crim.App.1990), cert. denied, 499 U.S. 932, 111 S.Ct. 1339, 113 L.Ed.2d 271 (1991) (bite-mark evidence admitted); Reed v. State, 644 S.W.2d 479, 482 (Tex.Crim.App.1983) (amytol sodium test rejected); Crawford v. State, 617 S.W.2d 925, 930 (Tex.Crim.App.1980) (polygraph results rejected); Wilson v. State, 697 S.W.2d 83, 84 (Tex.App.— El Paso 1985, pet. ref'd) (enzyme multiplied immunoassay technique to detect controlled substance rejected); Sosa v. State, 841 S.W.2d 912, 916-17 (Tex.App.— Houston [1st Dist.] 1992, no pet.) (graphoanalysis rejected).