concurring.
Because there is no evidence that the use of Polysporin spray caused Mrs. Crye to suffer a frostbite injury, I concur in the *501Court’s judgment. However, I believe the trial court abused its discretion by admitting into evidence Dr. H.R. Fuentes’s “pig’s foot” study in violation of Rules 403 and 702 of the Texas Rules of Civil Evidence.
This case arose when Jewell Crye sustained permanent foot injuries, allegedly from frostbite caused by the application of Polysporin antibiotic spray. Mrs. Crye brought a products liability action against Burroughs Wellcome Company, the manufacturer of Polysporin, alleging design and marketing defects, negligence, and breach of warranty. In support of her design defects claim, Mrs. Crye offered the report of a study conducted at the request of her attorney and Dr. H.R. Fuentes’s related deposition testimony to show that Polysporin spray, in comparison with other sprays, causes a substantial skin temperature reduction.
Sunder Pappu, a graduate research assistant at the University of Texas at El Paso, conducted a study under the direction of Dr. Fuentes, a civil engineering professor. The study compared the cooling effects of five commercially available antibiotic sprays, including Polysporin. In the study, Pappu applied the sprays to dead pigs’ feet from various distances, for different periods of time, and at two different angles. In order to measure the decrease in temperature as a function of depth from the surface of the skin, Pappu placed one thermocouple, a metal device that measures temperature, on the pigs’ feet at the surface of the skin and inserted two thermocouples at different depths below the surface of the skin. He then compared the temperature decreases the sprays caused. The report of the study concluded that Polysporin spray caused a greater temperature reduction than any of the other sprays tested. However, the report also stated that the results of the study could not be directly extrapolated to human skin.
Burroughs objected to the admission of the report and Dr. Fuentes’s related testimony on the grounds that they were not relevant or helpful to the trier of fact, that Dr. Fuentes’s methodology was not appropriate because it was not recognized by members of the medical field, and that the probative value of the report would be outweighed by its prejudicial effect. The trial judge overruled Burroughs’s objections and admitted the report of the “pig’s foot” study and Dr. Fuentes’s testimony. On appeal, Burroughs argued that the trial court abused its discretion by admitting the report and testimony. The court of appeals held that the trial court did not err in admitting the evidence, concluding that “the comparative discrepancies between Mrs. Crye’s use of the product and Dr. Fuentes’ pig’s foot study were clearly explained to the jury. Such discrepancies go to the credibility and the weight to be given by the jury to Dr. Fuentes’ testimony and experiment and not to its admissibility.” - S.W.2d-,-. The court further held that even if the trial court improperly admitted the evidence, any error was harmless because the outcome of the case did not turn on the report and Dr. Fuentes’s testimony. Id. at-.
Rule 702, which governs the admission of expert testimony, states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Tex.R.Civ.Evid. 702. In E.I. du Pont de Nemours & Co. v. Robinson, - S.W.2d - [1995 WL 359024] (Tex.1995), we addressed the standard trial courts should employ when determining whether expert testimony is admissible under Rule 702. Under this standard, expert evidence must be both relevant to a fact issue in the case and based on a reliable technique or theory to be admissible. Id. at-. Applying this standard to the facts of this case, I would hold that the trial court abused its discretion by admitting the report and Dr. Fuentes’s related testimony into evidence.
The expert evidence in this case was not based on a scientifically reliable technique. On cross examination, Dr. Fuentes admitted that because Pappu had poorly recorded the test results, it was possible that the results were incorrect. When questioned about Pap-pu’s failure to either make or record critical temperature readings, Dr. Fuentes agreed *502that Pappu’s work could be characterized as “real sloppy investigative work.” He also stated that he was “feeling ashamed” of his lack of knowledge regarding the raw data and that some of the raw data was not well documented. Dr. Fuentes further admitted that the temperature readings at the surface of the pigs’ feet actually measured the temperature of the metal thermocouples because the sprays were applied directly to the thermocouples on the surface of the skin. Dr. Fuentes agreed that as a result, Pappu probably did not obtain an accurate measurement of the temperature of the pigs’ feet at the surface, and that the temperature decrease in the metal thermocouples resulting from direct application of the sprays was probably more dramatic than the temperature decrease in the skin of the pigs’ feet.
Other factors also indicate that the report of the “pig’s foot” study and Dr. Fuentes’s related testimony were not based on scientifically reliable methodology. One factor is that Dr. Fuentes conducted the study for the purpose of testifying in Mrs. Crye’s suit against Burroughs. See Robinson, - S.W.2d at - (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1817 (9th Cir.1995) (upon remand)). Research conducted for the purpose of litigation is not automatically rendered unreliable. Id. at -. However, findings based on research conducted independently of litigation are “less likely to have been biased toward a particular conclusion by the promise of remuneration.” Daubert, 43 F.3d at 1317. Another factor suggesting that Dr. Fuentes’s methodology was not scientifically reliable is that his study was not subjected to peer review or publication. See Robinson, - S.W.2d at -. Peer review and publication increase the likelihood that any weaknesses in the methodology will be exposed, and provide an indication that the expert’s research meets some minimal criteria of good science. Daubert, 43 F.3d at 1318.
Another ground on which the trial court could have excluded the report and Dr. Fuentes’s testimony is Rule 403, which states:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.
Tex.R.Civ.Evid. 403. In this case, the probative value of the report of the “pig’s foot” study and Dr. Fuentes’s testimony, if any, was outweighed by the dangers of unfair prejudice, confusion of the issues, and misleading the jury.
A critical issue in this case affecting all of Mrs. Crye’s theories of liability was whether the application of Polysporin' caused her to suffer frostbite. The jury could have interpreted Dr. Fuentes’s opinion that Polysporin caused a greater skin temperature reduction than any other spray, sometimes to temperatures below freezing, as evidence that Polys-porin spray caused frostbite in Mrs. Crye’s foot. Thus, the jury may well have viewed Dr. Fuentes’s report and testimony as evidence in support of Mrs. Crye’s other claims. Because the probative value of the report and related testimony was substantially outweighed by the danger of unfairly prejudicing the jury’s determination of Burroughs’s liability as to Mrs. Crye’s other claims, the evidence should have been excluded under Rule 403.
In sum, Dr. Fuentes’s methodology was unreliable, and the probative value of his report and related testimony was substantially outweighed by the dangers of unfair prejudice, confusion of the issues, and misleading the jury. Accordingly, I would hold that the trial court abused its discretion by admitting into evidence the report of the “pig’s foot” study and Dr. Fuentes’s related testimony.