Conclusory opinions, especially by experts, constitute no evidence.  Two recent opinions from the Texas Supreme Court explain when an expert opinion is conclusory.

Starwood Management, LLC v. Swaim, No. 16-0431, 2017 Tex. LEXIS 911 (Tex. Sept. 29, 2017) considered whether an expert’s causation opinion in a legal malpractice case was conclusory.  In response to a no-evidence summary judgment, the plaintiff provided the affidavits of two experts, who both opined that the attorney’s conduct in the underling case caused the plaintiff’s damages.

The trial court sustained the defendants’ objection to the affidavits as conclusory.  Citing Elizondo v. Krist, 415 S.W.3d 259 (Tex. 2013), the court of appeals affirmed, reasoning that the experts failed to conduct a case-by-case comparison of facts in similar cases.

The Texas Supreme Court reversed, explaining that the test is not whether the expert conducted a case-by-case analysis but whether the opinion sufficiently explains the link between the facts relied upon and the opinion reached.  It is unnecessary for an expert to provide a legal analysis of every possible contingency, no matter how remote.

The court reiterated its prior rules that to avoid being conclusory, an expert opinion must explain “how and why the negligence caused the injury” and establish a “demonstrable and reasoned basis on which to evaluate [the] opinion.”

A similar issue was presented in Bustamante v. Ponte et al., No. 15-0509, 2017 Tex. LEXIS 912 (Tex. Sept. 29, 2017), a medical malpractice case.  At trial, plaintiff’s experts testified that the negligence of a premature infant’s neonatologist caused her blindness.  The court of appeals held that the experts’ opinions were conclusory because they failed to rule out other possible causes of the infant’s loss of sight.

The Texas Supreme Court disagreed, finding that both experts’ testimony established “the how and why” supporting their conclusions.  The court held that the experts’ reliance on specific evidence from medical records, their own examinations and their own medical experience adequately supported their opinions.  In short, the experts “did not simply state a conclusion without any explanation or ask the jurors to take their word for it.”

The court also rejected the argument that an expert opinion on causation must rule out all other potential causes of the injury.  Rather, the court said, an expert need exclude only plausible potential causes.

In summary, an expert opinion must address “how and why” under the particular facts of the case. Opinions that provide a demonstrable and reasoned basis are not conclusory.  Expert opinions on causation need not negate every other conceivable cause, but only other plausible causes.