Preview
Electronically Filed
10/4/2023 10:12 PM
Hidalgo County District Clerks
Reviewed By: Kristina Morin
CAUSE NO. C-2866-22-J
DEAN A. BROWN AND § IN THE DISTRICT COURT OF
DONNA M. DAVIS §
Plaintiffs, §
§
v. § HIDALGO COUNTY, TEXAS
§
MURPHY WALL PRODUCTS §
INTERNATIONAL, INC. AND §
ADRIAN MENDOZA §
Defendants. § 430TH JUDICIAL DISTRICT
DEFENDANTS’ MOTION TO EXCLUDE PLAINTIFFS’ EXPERT WITNESS
OFFICER JUAN MERCADO
TO THE HONORABLE JUDGE RAMON:
Defendants Murphy Wall Products International, Inc. and Adrian Mendoza move to
exclude the expert opinions and testimony of Plaintiffs’ expert witness Officer Juan Mercado and
in support show the Court as follows:
I. INTRODUCTION
This personal injury lawsuit arises from an accident between Plaintiff Dean Brown,
operating a Mack truck, and Mr. Mendoza, operating a tractor-trailer. Officer Juan Mercado
investigated the accident and determined that Mr. Mendoza caused the accident because he failed
to control his speed. The Court should exclude Officer Mercado’s testimony because (1) he is not
qualified to testify as an expert here, (2) even if he were qualified to testify as an expert here, his
bare opinions are not probative evidence, and (3) his opinions are inadmissible lay witness
testimony.
The Court should exclude Officer Mercado’s testimony as inadmissible expert testimony
because the Plaintiffs have failed to show that Officer Mercado possesses special knowledge as to
DEFENDANTS MURPHY WALL PRODUCTS INTERNATIONAL, INC. AND ADRIAN MENDOZA’S
MOTION TO EXCLUDE PLAINTIFFS’ EXPERT OFFICER JUAN MERCADO
Electronically Filed
10/4/2023 10:12 PM
Hidalgo County District Clerks
Reviewed By: Kristina Morin
the very matter on which he proposes to give an opinion—accident reconstruction in an accident
involving an 18-wheeler. Mr. Mercado lacks special knowledge in accident reconstruction, lacks
experience in accident reconstruction, lacks an accident reconstruction certification, has never
testified on accident reconstruction, and has received no training on accident reconstruction.
Officer Mercado not only has no training or experience in accident reconstruction for 18-wheeler
accidents, but he also admits that his training and experience is limited to motor vehicle accident
investigation, his training did “[n]ot necessarily” involve 18-wheelers, and he is only “somewhat”
familiar with commercial motor vehicle accident investigations.
Even if Officer Mercado is qualified to testify as an expert here, the Court should exclude
his testimony because his bare conclusions are not probative evidence. Officer Mercado concluded
that Mr. Mendoza’s failure to control his speed caused the crash. When asked to explain the basis
of his opinion to the jury, Officer Mercado said, “I believe the unit 1 failed to control speed because
he – he failed to control speed to avoid colliding with another vehicle.” Officer Mercado
Deposition at 23:19-25. When later asked to clarify, Officer Mercado stated, “Well, he failed to
slow down and causing [sic] the accident[,]” id. at 54:16-19, and “[i]f he was going at a slower
speed, he wouldn’t have hit the vehicle, id. at 54:20-55:1.
The Court should exclude Officer Mercado’s testimony on how the accident occurred and
who was at fault because Officer Mercado’s testimony is inadmissible lay opinion testimony, as it
is not helpful to clearly understanding his testimony or to determining a fact in issue. Officer
Mercado’s conclusory opinions do not help the jury as the jury possesses the same information as
Officer Mercado and can draw the proper conclusions. The jury can examine the same photos and
videos that Officer Mercado viewed, hear from the same witnesses Officer Mercado heard from,
and reach its conclusions without Mr. Mendoza’s conclusory opinion.
DEFENDANTS MURPHY WALL PRODUCTS INTERNATIONAL, INC. AND ADRIAN MENDOZA’S
MOTION TO EXCLUDE PLAINTIFFS’ EXPERT OFFICER JUAN MERCADO
Electronically Filed
10/4/2023 10:12 PM
Hidalgo County District Clerks
Reviewed By: Kristina Morin
II. ARGUMENTS AND AUTHORITIES
1. The Court should exclude Officer Mercado’s testimony because it is inadmissible
expert testimony.
A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or
other specialized knowledge will help the trier of fact to understand the evidence or to determine
a fact in issue. TEX. R. EVID. 702; Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718
(Tex. 1998). Whether an expert is qualified is a preliminary question decided by the trial court.
TEX. R. EVID. 104(a); Gammill, 972 S.W.2d at 718. The party offering the expert’s testimony bears
the burden to prove that the witness is qualified under Rule 702. Gammill, 972 S.W.2d at 718. The
offering party must demonstrate that the witness possesses special knowledge as to the very matter
on which he proposes to give an opinion. Id.
a. Officer Mercado is not qualified to render opinions about this accident.
Without the Supreme Court of Texas’s guidance, Texas courts of appeals agree that, in
general, police officers, based on their position as police officers alone, are not qualified to render
opinions about accidents. Pilgrim's Pride Corp. v. Smoak, 134 S.W.3d 880, 891 (Tex. App.—
Texarkana 2004, pet. denied); Pyle v. Southern Pac. Transp. Co., 774 S.W.2d 693, 695 (Tex.
App.—Houston [1st Dist.] 1989, writ denied); Lopez v. S. Pac. Transp. Co., 847 S.W.2d 330, 334
(Tex. App.—El Paso 1993, no writ). Police officers are qualified to testify on accident
reconstruction only if they are trained in the science and possess the high degree of knowledge
sufficient to qualify as an expert. Smoak, 134 S.W.3d at 891; Lopez, 847 S.W.2d at 334; Chavers
v. State, 991 S.W.2d 457, 460–61 (Tex. App.—Houston [1st Dist.] 1999, pet. ref'd); Trailways,
Inc. v. Clark, 794 S.W.2d 479, 483 (Tex. App.—Corpus Christi 1990, writ denied); Gainsco
County Mut. Ins. Co. v. Martinez, 27 S.W.3d 97, 105 (Tex. App.—San Antonio 2000, pet. dism'd
DEFENDANTS MURPHY WALL PRODUCTS INTERNATIONAL, INC. AND ADRIAN MENDOZA’S
MOTION TO EXCLUDE PLAINTIFFS’ EXPERT OFFICER JUAN MERCADO
Electronically Filed
10/4/2023 10:12 PM
Hidalgo County District Clerks
Reviewed By: Kristina Morin
by agr.). Because “[n]o definite guidelines exist for determining whether a particular witness
possesses the knowledge, skill, or expertise to qualify as an expert,” determining whether an officer
is qualified to testify as an expert is a discretionary matter left to the trial court. Martinez, 27
S.W.3d at 105.
Plaintiffs have failed to show that Officer Mercado possesses specialized knowledge in
accident reconstruction. The evidence the Plaintiffs have elicited shows that Officer Mercado lacks
any specialized knowledge under Texas law to testify as an expert here. In his deposition, Officer
Mercado did not state whether he has any special knowledge in accident reconstruction, experience
in accident reconstruction, testified on accident reconstruction, or received any special training in
accident reconstruction. to overcome their evidentiary hurdle, the Plaintiffs attempt to blur the
lines between “accident reconstruction” and “accident investigation.” But there is a significant
difference between an investigator who determines what happened and an accident reconstruction
who how and why it happened. Officer Mercado admitted that he only has training in investigating
accidents—not reconstructing them:
Officer Mercado Deposition at 6:11-20.
DEFENDANTS MURPHY WALL PRODUCTS INTERNATIONAL, INC. AND ADRIAN MENDOZA’S
MOTION TO EXCLUDE PLAINTIFFS’ EXPERT OFFICER JUAN MERCADO
Electronically Filed
10/4/2023 10:12 PM
Hidalgo County District Clerks
Reviewed By: Kristina Morin
Officer Mercado Deposition at 6:24-7:3
Texas courts of appeals have addressed similar cases involving similar police officers and
determined that officers like Officer Juan Mercado are not qualified to testify as experts in accident
reconstruction. One court held that it would not have been an abuse of discretion for the trial court
to exclude the testimony of an officer whose experience and training consisted of eight years with
the police department, attendance at the police academy, and a seminar on accident investigation.
St. Louis Sw. Ry. Company v. King, 817 S.W.2d 760, 763 (Tex. App.—Texarkana 1991, no writ).
Another court of appeals held that a police officer holding a Level II certification in accident
reconstruction was not qualified to testify as an expert witness in a negligence action. See Lopez-
Juarez v. Kelly, 348 S.W.3d 10 (Tex. App. —Texarkana 2011), review denied, (Mar. 30, 2012).
Even an officer with twenty years of experience and 150 accident investigations is
unqualified to testify when the officer fails to explain how that experience imbued him with
expertise in accident reconstruction. Id. (citing Walker v. Rangel, No. 14-08-00643-CV, 2009 WL
4342505, at *3 (Tex. App.—Houston [14th Dist.] Dec. 3, 2009) (mem. op.). Texas courts have
even held that an officer is not qualified to testify when the officer was employed by the police
department for about nine years, holds the highest level of peace officer certification, and
completed course work and training on accident investigation and reconstruction but only had
training on traffic accident and no formal training on the specific accident at issue involving train-
DEFENDANTS MURPHY WALL PRODUCTS INTERNATIONAL, INC. AND ADRIAN MENDOZA’S
MOTION TO EXCLUDE PLAINTIFFS’ EXPERT OFFICER JUAN MERCADO
Electronically Filed
10/4/2023 10:12 PM
Hidalgo County District Clerks
Reviewed By: Kristina Morin
pedestrian collisions or railroad accident reconstruction. Lopez v. S. Pac. Transp. Co., 847 S.W.2d
330, 335 (Tex. App.—El Paso 1993, no writ).
Here, Officer Mercado is a Trooper I with no certification in accident reconstruction. That
Officer Mercado has worked at Mission Police Department for a little over ten years and has
investigated “several hundred” accidents, See Officer Mercado Deposition at 5:20-6:2, is irrelevant
given that the Plaintiffs have failed to show how that experience imbued Officer Mercado with
expertise in accident reconstruction. Officer Mercado not only lacks accident reconstruction
training but also admitted that his limited training did “not necessarily” involve specific regulations
or accidents involving 18-wheelers, which is the specific accident here. Officer Mercado
Deposition at 8:7-12. Officer Mercado added that he is “not necessarily” responsible for enforcing
traffic laws involving 18-wheelers and that the commercial motor vehicle troopers handle those
enforcement matters. Id. at 8:15-22. Most importantly, Officer Mercado admits that he lacks
specialized knowledge on commercial motor vehicle accident investigation:
Id. at 9:6-11.
The Court should exclude Officer Mercado’s testimony as an expert witness because the
Plaintiffs have failed to “demonstrate that [Officer Mercado] possess special knowledge as to the
very matter on which he proposes to give an opinion.” Gammill, 972 S.W.2d at 718.
DEFENDANTS MURPHY WALL PRODUCTS INTERNATIONAL, INC. AND ADRIAN MENDOZA’S
MOTION TO EXCLUDE PLAINTIFFS’ EXPERT OFFICER JUAN MERCADO
Electronically Filed
10/4/2023 10:12 PM
Hidalgo County District Clerks
Reviewed By: Kristina Morin
a. Even if Officer Mercado is qualified to render opinions about this accident, his
bare conclusions are not probative evidence.
Only certain expert testimony will support a judgment. Nat. Gas Pipeline Co. of Am. v.
Justiss, 397 S.W.3d 150, 156 (Tex. 2012). A qualified expert’s bare conclusions are not probative
evidence. See id. at 156-57. If an expert brings little more than his credentials and a subjective
opinion to court, his testimony will not support a judgment. Id. at 156. An expert's testimony is
conclusory as a matter of law if he simply states a conclusion without any explanation. Id.
Here, Officer Mercado concluded that Mr. Mendoza’s failure to control his speed caused
the crash. Officer Mercado Deposition at 18:25-19:16. But when asked to explain the basis of his
opinion to the jury, Officer Mercado said, “I believe the unit 1 failed to control speed because he
– he failed to control speed to avoid colliding with another vehicle.” Id. at 23:19-25. When later
asked to clarify, Officer Mercado stated, “Well, he failed to slow down and causing [sic] the
accident [,]” id. at 54:16-19, and “[i]f he was going at a slower speed, he wouldn’t have hit the
vehicle, id. at 54:20-55:1. When asked about what could have prevented the accident, Officer
Mercado stated, “If Mr. Mendoza was able to control his speed,” and merely agreed with the
Plaintiffs’ counsel that, based on a photo he was shown, Mr. Mendoza was “probably a little bit
too close to the dump truck” and “being a little bit farther back from the dump truck would have
helped.” Id. at 31:1.
Officer Mercado’s “bare conclusions … cannot constitute probative evidence.” Justiss,
397 S.W.3d at 156. The heart of Officer Mercado’s conclusion is that Mr. Mendoza hit Mr. Brown
from behind, and therefore he failed to control his speed. This conclusory testimony “is not
relevant evidence, because it does not tend to make the existence of a material fact more probably
or less probable.” Id. (citing TEX. R. EVID. 401). The Court should therefore exclude Officer
Mercado’s testimony.
DEFENDANTS MURPHY WALL PRODUCTS INTERNATIONAL, INC. AND ADRIAN MENDOZA’S
MOTION TO EXCLUDE PLAINTIFFS’ EXPERT OFFICER JUAN MERCADO
Electronically Filed
10/4/2023 10:12 PM
Hidalgo County District Clerks
Reviewed By: Kristina Morin
2. The Court should exclude Officer Mercado’s testimony because it is inadmissible lay
witness testimony.
This Court should exclude Officer Mercado’s testimony on how the accident occurred and
who was at fault because Officer Mercado’s testimony is inadmissible lay opinion testimony. See
TEX. R. EVID. 701. A lay witness can only testify to opinions that are (1) rationally based on the
witness’s perception and (2) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue. See TEX. R. EVID. 701.
Officer Mercado’s conclusory testimony that Mr. Mendoza’s failure to control his speed is
not helpful to clearly understanding his testimony or determining a fact in issue. The jury will
possess the same information as Officer Mercado and can draw the proper conclusions. Indeed,
the jury can just as easily examine the same photos and videos that Officer Mercado viewed, hear
from the same witnesses Officer Mercado heard from, and determine whether Mr. Mendoza failed
to control his speed because he hit Mr. Brown from behind. The jury can do so without the help of
Mr. Mendoza’s opinion. The Court should exclude Officer Mercado’s testimony as a lay witness
because it is not helpful to clearly understanding his testimony or to determining who caused the
accident.
III. CONCLUSION
The Court should exclude Officer Mercado’s opinions because (1) he is not qualified to
testify as an expert here, (2) even if he were qualified to testify as an expert here, his bare opinions
are not probative evidence, and (3) his opinions are inadmissible lay witness testimony.
IV. PRAYER
Defendants Murphy Wall Products International, Inc. and Adrian Mendoza request that the
Court grant their Motion to Exclude and enter an order that excludes the Plaintiffs from presenting
Officer Mercado at trial, including his opinions, testimony or reports, and exclude any other
DEFENDANTS MURPHY WALL PRODUCTS INTERNATIONAL, INC. AND ADRIAN MENDOZA’S
MOTION TO EXCLUDE PLAINTIFFS’ EXPERT OFFICER JUAN MERCADO
Electronically Filed
10/4/2023 10:12 PM
Hidalgo County District Clerks
Reviewed By: Kristina Morin
retained or consulting experts’ testimony or opinion that is based or relies, in whole or in part, on
the opinions of the excluded expert, and for any other relief to which Defendants may show
themselves justly entitled.
Respectfully submitted,
HARTLINE BARGER, LLP
/s/Matthew R. Gelina
Peter C. Blomquist
State Bar No. 00794921
pblomquist@hartlinebarger.com
Matthew R. Gelina
State Bar No.: 24096050
mgelina@hartlinebarger.com
1980 Post Oak Blvd. Suite 1800
Houston, Texas 77056
(713) 759-1990 (Telephone)
(713) 652-2419 (Fax)
Service: trv@hartlinebarger.com
Attorneys for Defendants
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was forwarded to
all known counsel of record pursuant to the Texas Rules of Civil Procedure on this the 4th day of
October 2023.
/s/Matthew R. Gelina
Matthew R. Gelina
DEFENDANTS MURPHY WALL PRODUCTS INTERNATIONAL, INC. AND ADRIAN MENDOZA’S
MOTION TO EXCLUDE PLAINTIFFS’ EXPERT OFFICER JUAN MERCADO
Preview
Electronically Filed 10/4/2023 10:12 PM Hidalgo County District Clerks Reviewed By: Kristina Morin CAUSE NO. C-2866-22-J DEAN A. BROWN AND § IN THE DISTRICT COURT OF DONNA M. DAVIS § Plaintiffs, § § v. § HIDALGO COUNTY, TEXAS § MURPHY WALL PRODUCTS § INTERNATIONAL, INC. AND § ADRIAN MENDOZA § Defendants. § 430TH JUDICIAL DISTRICT DEFENDANTS’ MOTION TO EXCLUDE PLAINTIFFS’ EXPERT WITNESS OFFICER JUAN MERCADO TO THE HONORABLE JUDGE RAMON: Defendants Murphy Wall Products International, Inc. and Adrian Mendoza move to exclude the expert opinions and testimony of Plaintiffs’ expert witness Officer Juan Mercado and in support show the Court as follows: I. INTRODUCTION This personal injury lawsuit arises from an accident between Plaintiff Dean Brown, operating a Mack truck, and Mr. Mendoza, operating a tractor-trailer. Officer Juan Mercado investigated the accident and determined that Mr. Mendoza caused the accident because he failed to control his speed. The Court should exclude Officer Mercado’s testimony because (1) he is not qualified to testify as an expert here, (2) even if he were qualified to testify as an expert here, his bare opinions are not probative evidence, and (3) his opinions are inadmissible lay witness testimony. The Court should exclude Officer Mercado’s testimony as inadmissible expert testimony because the Plaintiffs have failed to show that Officer Mercado possesses special knowledge as to DEFENDANTS MURPHY WALL PRODUCTS INTERNATIONAL, INC. AND ADRIAN MENDOZA’S MOTION TO EXCLUDE PLAINTIFFS’ EXPERT OFFICER JUAN MERCADO Electronically Filed 10/4/2023 10:12 PM Hidalgo County District Clerks Reviewed By: Kristina Morin the very matter on which he proposes to give an opinion—accident reconstruction in an accident involving an 18-wheeler. Mr. Mercado lacks special knowledge in accident reconstruction, lacks experience in accident reconstruction, lacks an accident reconstruction certification, has never testified on accident reconstruction, and has received no training on accident reconstruction. Officer Mercado not only has no training or experience in accident reconstruction for 18-wheeler accidents, but he also admits that his training and experience is limited to motor vehicle accident investigation, his training did “[n]ot necessarily” involve 18-wheelers, and he is only “somewhat” familiar with commercial motor vehicle accident investigations. Even if Officer Mercado is qualified to testify as an expert here, the Court should exclude his testimony because his bare conclusions are not probative evidence. Officer Mercado concluded that Mr. Mendoza’s failure to control his speed caused the crash. When asked to explain the basis of his opinion to the jury, Officer Mercado said, “I believe the unit 1 failed to control speed because he – he failed to control speed to avoid colliding with another vehicle.” Officer Mercado Deposition at 23:19-25. When later asked to clarify, Officer Mercado stated, “Well, he failed to slow down and causing [sic] the accident[,]” id. at 54:16-19, and “[i]f he was going at a slower speed, he wouldn’t have hit the vehicle, id. at 54:20-55:1. The Court should exclude Officer Mercado’s testimony on how the accident occurred and who was at fault because Officer Mercado’s testimony is inadmissible lay opinion testimony, as it is not helpful to clearly understanding his testimony or to determining a fact in issue. Officer Mercado’s conclusory opinions do not help the jury as the jury possesses the same information as Officer Mercado and can draw the proper conclusions. The jury can examine the same photos and videos that Officer Mercado viewed, hear from the same witnesses Officer Mercado heard from, and reach its conclusions without Mr. Mendoza’s conclusory opinion. DEFENDANTS MURPHY WALL PRODUCTS INTERNATIONAL, INC. AND ADRIAN MENDOZA’S MOTION TO EXCLUDE PLAINTIFFS’ EXPERT OFFICER JUAN MERCADO Electronically Filed 10/4/2023 10:12 PM Hidalgo County District Clerks Reviewed By: Kristina Morin II. ARGUMENTS AND AUTHORITIES 1. The Court should exclude Officer Mercado’s testimony because it is inadmissible expert testimony. A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue. TEX. R. EVID. 702; Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex. 1998). Whether an expert is qualified is a preliminary question decided by the trial court. TEX. R. EVID. 104(a); Gammill, 972 S.W.2d at 718. The party offering the expert’s testimony bears the burden to prove that the witness is qualified under Rule 702. Gammill, 972 S.W.2d at 718. The offering party must demonstrate that the witness possesses special knowledge as to the very matter on which he proposes to give an opinion. Id. a. Officer Mercado is not qualified to render opinions about this accident. Without the Supreme Court of Texas’s guidance, Texas courts of appeals agree that, in general, police officers, based on their position as police officers alone, are not qualified to render opinions about accidents. Pilgrim's Pride Corp. v. Smoak, 134 S.W.3d 880, 891 (Tex. App.— Texarkana 2004, pet. denied); Pyle v. Southern Pac. Transp. Co., 774 S.W.2d 693, 695 (Tex. App.—Houston [1st Dist.] 1989, writ denied); Lopez v. S. Pac. Transp. Co., 847 S.W.2d 330, 334 (Tex. App.—El Paso 1993, no writ). Police officers are qualified to testify on accident reconstruction only if they are trained in the science and possess the high degree of knowledge sufficient to qualify as an expert. Smoak, 134 S.W.3d at 891; Lopez, 847 S.W.2d at 334; Chavers v. State, 991 S.W.2d 457, 460–61 (Tex. App.—Houston [1st Dist.] 1999, pet. ref'd); Trailways, Inc. v. Clark, 794 S.W.2d 479, 483 (Tex. App.—Corpus Christi 1990, writ denied); Gainsco County Mut. Ins. Co. v. Martinez, 27 S.W.3d 97, 105 (Tex. App.—San Antonio 2000, pet. dism'd DEFENDANTS MURPHY WALL PRODUCTS INTERNATIONAL, INC. AND ADRIAN MENDOZA’S MOTION TO EXCLUDE PLAINTIFFS’ EXPERT OFFICER JUAN MERCADO Electronically Filed 10/4/2023 10:12 PM Hidalgo County District Clerks Reviewed By: Kristina Morin by agr.). Because “[n]o definite guidelines exist for determining whether a particular witness possesses the knowledge, skill, or expertise to qualify as an expert,” determining whether an officer is qualified to testify as an expert is a discretionary matter left to the trial court. Martinez, 27 S.W.3d at 105. Plaintiffs have failed to show that Officer Mercado possesses specialized knowledge in accident reconstruction. The evidence the Plaintiffs have elicited shows that Officer Mercado lacks any specialized knowledge under Texas law to testify as an expert here. In his deposition, Officer Mercado did not state whether he has any special knowledge in accident reconstruction, experience in accident reconstruction, testified on accident reconstruction, or received any special training in accident reconstruction. to overcome their evidentiary hurdle, the Plaintiffs attempt to blur the lines between “accident reconstruction” and “accident investigation.” But there is a significant difference between an investigator who determines what happened and an accident reconstruction who how and why it happened. Officer Mercado admitted that he only has training in investigating accidents—not reconstructing them: Officer Mercado Deposition at 6:11-20. DEFENDANTS MURPHY WALL PRODUCTS INTERNATIONAL, INC. AND ADRIAN MENDOZA’S MOTION TO EXCLUDE PLAINTIFFS’ EXPERT OFFICER JUAN MERCADO Electronically Filed 10/4/2023 10:12 PM Hidalgo County District Clerks Reviewed By: Kristina Morin Officer Mercado Deposition at 6:24-7:3 Texas courts of appeals have addressed similar cases involving similar police officers and determined that officers like Officer Juan Mercado are not qualified to testify as experts in accident reconstruction. One court held that it would not have been an abuse of discretion for the trial court to exclude the testimony of an officer whose experience and training consisted of eight years with the police department, attendance at the police academy, and a seminar on accident investigation. St. Louis Sw. Ry. Company v. King, 817 S.W.2d 760, 763 (Tex. App.—Texarkana 1991, no writ). Another court of appeals held that a police officer holding a Level II certification in accident reconstruction was not qualified to testify as an expert witness in a negligence action. See Lopez- Juarez v. Kelly, 348 S.W.3d 10 (Tex. App. —Texarkana 2011), review denied, (Mar. 30, 2012). Even an officer with twenty years of experience and 150 accident investigations is unqualified to testify when the officer fails to explain how that experience imbued him with expertise in accident reconstruction. Id. (citing Walker v. Rangel, No. 14-08-00643-CV, 2009 WL 4342505, at *3 (Tex. App.—Houston [14th Dist.] Dec. 3, 2009) (mem. op.). Texas courts have even held that an officer is not qualified to testify when the officer was employed by the police department for about nine years, holds the highest level of peace officer certification, and completed course work and training on accident investigation and reconstruction but only had training on traffic accident and no formal training on the specific accident at issue involving train- DEFENDANTS MURPHY WALL PRODUCTS INTERNATIONAL, INC. AND ADRIAN MENDOZA’S MOTION TO EXCLUDE PLAINTIFFS’ EXPERT OFFICER JUAN MERCADO Electronically Filed 10/4/2023 10:12 PM Hidalgo County District Clerks Reviewed By: Kristina Morin pedestrian collisions or railroad accident reconstruction. Lopez v. S. Pac. Transp. Co., 847 S.W.2d 330, 335 (Tex. App.—El Paso 1993, no writ). Here, Officer Mercado is a Trooper I with no certification in accident reconstruction. That Officer Mercado has worked at Mission Police Department for a little over ten years and has investigated “several hundred” accidents, See Officer Mercado Deposition at 5:20-6:2, is irrelevant given that the Plaintiffs have failed to show how that experience imbued Officer Mercado with expertise in accident reconstruction. Officer Mercado not only lacks accident reconstruction training but also admitted that his limited training did “not necessarily” involve specific regulations or accidents involving 18-wheelers, which is the specific accident here. Officer Mercado Deposition at 8:7-12. Officer Mercado added that he is “not necessarily” responsible for enforcing traffic laws involving 18-wheelers and that the commercial motor vehicle troopers handle those enforcement matters. Id. at 8:15-22. Most importantly, Officer Mercado admits that he lacks specialized knowledge on commercial motor vehicle accident investigation: Id. at 9:6-11. The Court should exclude Officer Mercado’s testimony as an expert witness because the Plaintiffs have failed to “demonstrate that [Officer Mercado] possess special knowledge as to the very matter on which he proposes to give an opinion.” Gammill, 972 S.W.2d at 718. DEFENDANTS MURPHY WALL PRODUCTS INTERNATIONAL, INC. AND ADRIAN MENDOZA’S MOTION TO EXCLUDE PLAINTIFFS’ EXPERT OFFICER JUAN MERCADO Electronically Filed 10/4/2023 10:12 PM Hidalgo County District Clerks Reviewed By: Kristina Morin a. Even if Officer Mercado is qualified to render opinions about this accident, his bare conclusions are not probative evidence. Only certain expert testimony will support a judgment. Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 156 (Tex. 2012). A qualified expert’s bare conclusions are not probative evidence. See id. at 156-57. If an expert brings little more than his credentials and a subjective opinion to court, his testimony will not support a judgment. Id. at 156. An expert's testimony is conclusory as a matter of law if he simply states a conclusion without any explanation. Id. Here, Officer Mercado concluded that Mr. Mendoza’s failure to control his speed caused the crash. Officer Mercado Deposition at 18:25-19:16. But when asked to explain the basis of his opinion to the jury, Officer Mercado said, “I believe the unit 1 failed to control speed because he – he failed to control speed to avoid colliding with another vehicle.” Id. at 23:19-25. When later asked to clarify, Officer Mercado stated, “Well, he failed to slow down and causing [sic] the accident [,]” id. at 54:16-19, and “[i]f he was going at a slower speed, he wouldn’t have hit the vehicle, id. at 54:20-55:1. When asked about what could have prevented the accident, Officer Mercado stated, “If Mr. Mendoza was able to control his speed,” and merely agreed with the Plaintiffs’ counsel that, based on a photo he was shown, Mr. Mendoza was “probably a little bit too close to the dump truck” and “being a little bit farther back from the dump truck would have helped.” Id. at 31:1. Officer Mercado’s “bare conclusions … cannot constitute probative evidence.” Justiss, 397 S.W.3d at 156. The heart of Officer Mercado’s conclusion is that Mr. Mendoza hit Mr. Brown from behind, and therefore he failed to control his speed. This conclusory testimony “is not relevant evidence, because it does not tend to make the existence of a material fact more probably or less probable.” Id. (citing TEX. R. EVID. 401). The Court should therefore exclude Officer Mercado’s testimony. DEFENDANTS MURPHY WALL PRODUCTS INTERNATIONAL, INC. AND ADRIAN MENDOZA’S MOTION TO EXCLUDE PLAINTIFFS’ EXPERT OFFICER JUAN MERCADO Electronically Filed 10/4/2023 10:12 PM Hidalgo County District Clerks Reviewed By: Kristina Morin 2. The Court should exclude Officer Mercado’s testimony because it is inadmissible lay witness testimony. This Court should exclude Officer Mercado’s testimony on how the accident occurred and who was at fault because Officer Mercado’s testimony is inadmissible lay opinion testimony. See TEX. R. EVID. 701. A lay witness can only testify to opinions that are (1) rationally based on the witness’s perception and (2) helpful to clearly understanding the witness’s testimony or to determining a fact in issue. See TEX. R. EVID. 701. Officer Mercado’s conclusory testimony that Mr. Mendoza’s failure to control his speed is not helpful to clearly understanding his testimony or determining a fact in issue. The jury will possess the same information as Officer Mercado and can draw the proper conclusions. Indeed, the jury can just as easily examine the same photos and videos that Officer Mercado viewed, hear from the same witnesses Officer Mercado heard from, and determine whether Mr. Mendoza failed to control his speed because he hit Mr. Brown from behind. The jury can do so without the help of Mr. Mendoza’s opinion. The Court should exclude Officer Mercado’s testimony as a lay witness because it is not helpful to clearly understanding his testimony or to determining who caused the accident. III. CONCLUSION The Court should exclude Officer Mercado’s opinions because (1) he is not qualified to testify as an expert here, (2) even if he were qualified to testify as an expert here, his bare opinions are not probative evidence, and (3) his opinions are inadmissible lay witness testimony. IV. PRAYER Defendants Murphy Wall Products International, Inc. and Adrian Mendoza request that the Court grant their Motion to Exclude and enter an order that excludes the Plaintiffs from presenting Officer Mercado at trial, including his opinions, testimony or reports, and exclude any other DEFENDANTS MURPHY WALL PRODUCTS INTERNATIONAL, INC. AND ADRIAN MENDOZA’S MOTION TO EXCLUDE PLAINTIFFS’ EXPERT OFFICER JUAN MERCADO Electronically Filed 10/4/2023 10:12 PM Hidalgo County District Clerks Reviewed By: Kristina Morin retained or consulting experts’ testimony or opinion that is based or relies, in whole or in part, on the opinions of the excluded expert, and for any other relief to which Defendants may show themselves justly entitled. Respectfully submitted, HARTLINE BARGER, LLP /s/Matthew R. Gelina Peter C. Blomquist State Bar No. 00794921 pblomquist@hartlinebarger.com Matthew R. Gelina State Bar No.: 24096050 mgelina@hartlinebarger.com 1980 Post Oak Blvd. Suite 1800 Houston, Texas 77056 (713) 759-1990 (Telephone) (713) 652-2419 (Fax) Service: trv@hartlinebarger.com Attorneys for Defendants CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument was forwarded to all known counsel of record pursuant to the Texas Rules of Civil Procedure on this the 4th day of October 2023. /s/Matthew R. Gelina Matthew R. Gelina DEFENDANTS MURPHY WALL PRODUCTS INTERNATIONAL, INC. AND ADRIAN MENDOZA’S MOTION TO EXCLUDE PLAINTIFFS’ EXPERT OFFICER JUAN MERCADO