Fletcher v. Minnesota Mining & Manufacturing Co.

MIRABAL, Justice,

dissenting.

In issue two, appellants assert the trial court erred in excluding testimony from appellant’s expert, Dr. Pierre Blais, regarding his “evaluation of the plaintiffs’ explanted breast implants.” The majority does not reach the merits of issue two. Rather, the majority holds that appellants have not preserved the issue for appellate review because they failed to make an offer of proof. I disagree.

The majority concludes that, in order to present this complaint for appellate review, appellants needed to file a “formal bill of exception” under Rule 33.2. Tex.R.App. P. 33.2. However, rule 33.2 applies only when the matter complained about does “not otherwise appear in the record.” Id. In the present case, appellants preserved error by an offer of proof under Tex.R.App. P. 33.1(a) and Tex.R. Evid. 103(a), which read in relevant part as follows:

Rule 33.1 Preservation; How Shown.
(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rules of ... Evidence or ... Appellate Procedure.

Tex.R.App. P. 33.1(a)(1).

Rule 103. Rulings on Evidence.
(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
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(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked.

Tex.R. Evid. 103(a). In the present case, the substance of the testimony of Dr. Blais was made known to the trial court prior to the trial court’s ruling excluding the evidence.

*6103M’s Motion to Exclude the Testimony of Dr. Blais

3M filed a 40-page motion to exclude Dr. Blais’s testimony. Attached to the motion are 34 exhibits primarily consisting of Dr. Blais’s testimony in previous breast implant cases. In its “Preliminary Statement,” the motion states as follows: “Plaintiffs have designated Pierre Blais, an organic chemist, to testify about his examination of the implants removed from plaintiffs ... matters regarding implant manufacture and composition ... and opinions that McGhan breast implants are defective.” The exhibits attached to the motion provide details of Dr. Blais’s background, education, and experience.

Pretrial Hearing

The record from the pretrial hearing on 3M’s motion to exclude Dr. Blais’s testimony reads, in relevant part, as follows:

[THE COURT]: I have to admit that part of my opinion about Blais is colored by another Daubert motion that’s been filed against him in the Norplant litigation .... But the arguments against Blais in Norplant were identical to his opinions here and it was not just causation, although you all aren’t offering it for causation, just on material — bioma-terial design. I don’t think he’s qualified to testify. So with that said, go ahead.
[PLAINTIFFS’ COUNSEL]: Okay. What we would have Dr. Blais testify to — let me be very — I’ve got it down here. He’s looked at the implants. In fact, he’s, indeed, examined thousands of implants. He can give an opinion on whether the implant is — has failed, period....
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[PLAINTIFFS’ COUNSEL]: I want him to say, I’ve looked at the implants and what’s the condition of them.
[THE COURT]: You talking about these three women?
[PLAINTIFFS’ COUNSEL]: Yes. These three women, and show his background. I’ve looked at 2000. How much experience? What do you do? What do you find? Here’s what I find, period.... What I’m saying is, no one is ever going to challenge Pierre Blais, I don’t believe, that he can’t look at an implant with his training and his disciplines. He can give an opinion whether or not it failed or not, period.

The trial court ultimately ruled that Dr. Blais’s testimony would be excluded in its entirety.

Analysis

From the record before us, it is clear that the substance of Dr. Blais’s offered testimony was made known to the trial court. The purpose of an offer of proof is to present the substance of the testimony in order to assist both the trial court in ruling on the objection and the appellate court in reviewing the trial court’s ruling. Melendez v. Exxon Corp., 998 S.W.2d 266, 278 (Tex.App.—Houston [14th Dist.] 1999, no pet.); see also Moosavi v. State, 711 S.W.2d 53, 54 (Tex.Crim.App.1986).1 An informal bill will suffice as an offer of proof when it includes a concise statement of the nature of the evidence being offered. See Chance v. Chance, 911 S.W.2d 40, 51-52 (Tex.App.—Beaumont 1995, writ denied); Sims v. Brackett, 885 S.W.2d 450, 453 (Tex.App.— Corpus Christi 1994, writ denied); see also Love v. State, 861 S.W.2d 899, 901 (Tex.Crim.App.1993). The law *611does not require the offer of proof to show what specific facts the examination would reveal; rather, the appellant must clearly inform the trial court of the subject matter about which he wishes to examine the witness. See Chance, 911 S.W.2d at 51-52; Sims, 885 S.W.2d at 453; see also Hoyos v. State, 951 S.W.2d 503, 507 (Tex.App.—Houston [14th Dist.] 1997), aff'd, 982 S.W.2d 419 (Tex.Crim.App.1998). Appellants properly preserved their complaint about the exclusion of Dr. Blais’s testimony, and we should reach the merits of their complaint on appeal.

. The rules of evidence and appellate procedure applicable to this case apply equally to civil and criminal appeals.