Motion to Strike in Allen Soape, Et Al vs. DSW Homes, LLC, Et Al| Trellis.Law

On December 15, 2017 a Motion-Secondary was filed involving a dispute between Dsw Homes, Llc, Soape, Allen, Soape, Joy, and Barfield Home Inspections, Dsw Homes, Llc, for Injury/Damage - Other in the District Court of Galveston County.

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Filed: 9/27/2019 11:25 AM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 37188917
By: Lisa Kelly
9/27/2019 11:43 AM

CAUSE NO. 17-CV-1506

ALLEN and JOY SOAPE § IN THE DISTRICT COURT OF
Plaintiffs §
§
vs. §
§ GALVESTON COUNTY, TEXAS
DSW HOMES, LLC, §
AAK ELECTRIC, LLC, and §
DALE’S WATER WELLS, LLC §
Defendants § 405th JUDICIAL DISTRICT
______________________________________________________________________________

PLAINTIFFS ALLEN AND JOY SOAPE’S RESPONSE TO DSW HOMES, LLC’S
MOTION AND SUPPLEMENTAL BRIEF IN SUPPORT OF ITS MOTION TO STRIKE
PLAINTIFFS’ EXPERT MICHAEL S. MORSE, PH.D., AND IN THE ALTERNATIVE
MOTION FOR CONTINUANCE
______________________________________________________________________________

TO THE HONORABLE JUDGE JARED ROBINSON:

Plaintiffs Allen and Joy Soape file this Response to DSW Homes, LLC’s (“DSW”) Motion

and Supplemental Brief in Support of itsMotion to Strike Plaintiffs’ Expert Michael S. Morse,

Ph.D. and Alternative Motion for Continuance (“Motion to Strike” or “Motion”), and in support

thereof would respectfully show the following:

I. INTRODUCTION

On August 14, 2019, Defendant DSW filed its Motion to Strike Plaintiffs’ Expert Michael

S. Morse, Ph.D. Following Dr. Morse’s deposition on August 28, 2019, DSW then filed its

Supplemental Brief in Support of its Motion to Strike and Alternative Motion for Continuance on

September 16, 2019. DSW’s Motion should be denied for the reasons set forth below.

II. ARGUMENTS AND AUTHORITIES

A. Dr. Morse is qualified to testify within the scope of his intended opinions as
clearly detailed in his designation and deposition testimony.

1. DSW first seeks to disqualify Dr. Morse primarily by arguing he is “not qualified

1
to opine on the issue of medical causation,” with the “crux” of his opinion being that Mr. Soape’s

injuries are a “result of his alleged electrical shock.” 1 DSW’s Motion falsely mischaracterizes Dr.

Morse’s opinions and testimony, even after he fully reiterated them during his deposition. Dr.

Morse’s opinion is not that Mr. Soape’s immediate and long-term injuries were caused by electric

shock, but rather that the type of symptoms experienced by Mr. Soape are consistent with the types

of symptoms that individuals can experience following an electric shock. There is a very distinct

difference between these two positions, and Dr. Morse has vigorously denied under oath that the

former is even within the scope of his expertise.

2. Dr. Morse’s testimony further qualified which symptoms he would identify as

consistent with the electric shock received by Mr. Soape. 2 He self-limited his testimony on

consistent symptomatology to that which has been demonstrated by scientifically valid,

statistically valid, independently reproduced, peer reviewed studies. 3 Dr. Morse in his deposition

identified the leaders in this field of research and has since provided specific peer reviewed

references to statistically valid scientific research that supports the specific symptomatology that

he endorsed in his deposition testimony.4

3. DSW presented the correct standard in its original Motion that non-physician

biomedical engineer experts such as Dr. Morse “may only state ‘whether or not injuries generally

would or would not be expected” from “the forces involved in an alleged injury-producing event.” 5

Plaintiffs’ expert designation of Dr. Morse specifically says he will be providing just that in this

case, stating for example that Dr. Morse is “expected to testify that the experience described by

1
See Defendant’s Motion to Strike at p.2-3, attached hereto as Exhibit 1.
2
See Deposition of Dr. Morse at 31:15-32:14, 54:11-60:6, attached hereto as Exhibit 2.
3
Id. at 60:15-61:4.
4
See Unsworn Declaration of Michael Morse, Ph.D., attached hereto as Exhibit 3.
5
See Defendant’s Motion to Strike at p.4, citing Layssard v. United States, CIV.A. 06-0352, 2007 WL 4144936, at
*3 (W.D. La. Nov. 20, 2007, attached hereto as Exhibit 1.

2
Mr. Soape and that the injuries sustained and complained of are consistent with the above

described, well-documented, and known results of suffering an electric shock.” 6 Yet DSW tries to

persuade this Court that Dr. Morse’s opinions are only aimed at such things as attempting “to step

into the shoes of a physician to make a specific diagnosis and/or prognosis of Mr. Soape’s

complaints.” 7 To the contrary and as DSW has even specifically highlighted for the Court in its

Supplemental Brief, Dr. Morse explicitly testified under oath the he does not intend to offer

medical testimony as to the cause of Mr. Soape’s injuries, “only consistency between the shock

received and the symptomatology presented.” 8

4. In fact, the United States Court of Appeals for the 9th Circuit recently affirmed an

order from the United States District Court for the Western District of Washington allowing Dr.

Morse’s general causation testimony that the plaintiff’s symptoms were of the type expected

following a low voltage electric shock. 9 Dr. Morse had specifically not opined as to the medical

causation of the plaintiff’s injuries. 10 In that case and just as in this one, Dr. Morse was not retained

to offer an opinion regarding causation but rather to “provide information regarding symptom

consistency from which other experts and the jury can determine whether there is a causal

connection in this case.” 11 As a biomedical engineer, Dr. Morse is routinely retained to provide

testimony related to general causation of symptomatology observed in individuals as being

consistent with symptomatology known to typically occur following an electric shock, including

in Texas cases, and he has never been prohibited from testifying as to general causation in at least

6
See Plaintiffs’ First Amended Designation of Expert Witnesses at p. 4, attached hereto as Exhibit 4.
7
See Defendant’s Motion to Strike at p.4, attached hereto as Exhibit 1.
8
See DSW’s Supplemental Brief in Support of its Motion to Strike Plaintiffs’ Expert Michael S. Morse, Ph.D. and
Alternative Motion for Continuance at p. 2-3, citing to Dr. Morse’s deposition at 177:24-178:8 and 150:12-151:3,
attached hereto as Exhibit 5.
9
Murray v. S. Route Mar. S.A., 870 F.3d 915, 922 (9th Cir. 2017), attached hereto as Exhibit 6.
10
Id.
11
Murray v. S. Route Mar., S.A., 2014 U.S. Dist. LEXIS 58852 (W.D. Wash., Oct. 8, 2014), attached hereto as Exhibit
7.

3
39 State and Federal Courts across the United States of America.12 Dr. Morse’s opinions in this

case are similarly fully in line with the permissible scope of his expertise and should be allowed

to testify in order to assist the trier of fact consistent with Texas Rule of Evidence 702.13 Indeed,

understanding the symptomatology on the human body following an electric shock is a critical

area in which the jury will be assisted in understanding by hearing Dr. Morse’s testimony.

Moreover, given the number of Courts across this country who have similarly acted as a gatekeeper

and allowed Dr. Morse’s testimony, this Honorable Court should have a high level of comfort in

allowing him to testify.

B. Dr. Morse’s testimony is well-founded.

5. DSW next attempts to characterize Dr. Morse’s testimony as impermissible ipse

dixit, arguing incorrectly that he could not cite to a single source to support his opinions and that

he “offers no true basis for his opinions.”14 Quite to the contrary, Dr. Morse provided a thorough

bibliography of articles to DSW at his deposition representing the generalized body of knowledge

he relied upon. He then specifically cited to a few of them by name during the deposition, including

the works referenced in his bibliography by Pliskin, Primeau, and Andrews as representative

sources regarding symptomatology following electric shock.15 Dr. Morse has also produced a

declaration which further categorizes the articles he relies upon by topic.16

6. The notion that Dr. Morse was relying solely on his credentials and “subjective

opinion” is thus completely false and absurd. Dr. Morse as a rule does not rely specifically on his

own published, peer reviewed, and scientifically valid research (which by itself has peer supported

12
See Unsworn Declaration of Michael Morse, Ph.D. at paragraphs 4-6, attached hereto as Exhibit 3. See also Exhibit
4 at Dr. Morse’s curriculum vitae.
13
TEX. R. EVID. 702.
14
See DSW’s Supplemental Brief in Support of its Motion to Strike Plaintiffs’ Expert Michael S. Morse, Ph.D. and
Alternative Motion for Continuance at p. 7, attached hereto as Exhibit 5.
15
Id. at p. 5-6, citing to Dr. Morse’s deposition at 87:1-88:19, attached hereto as Exhibit 4.
16
See Unsworn Declaration of Michael Morse, Ph.D., attached hereto as Exhibit 3.

4
reliability), but rather chooses to rely on the research of others where his results are demonstrably

reproduced by such independent statistically valid studies. 17 As discussed above, a biomedical

engineering expert such as Dr. Morse is fully within the scope of his expertise to opine that certain

symptoms are consistent with electric shock and to do so based upon his knowledge, skill,

experience, training and review of relevant articles such as he referenced is fully in compliance

with Rule 702. 18

7. DSW further speciously argues that Dr. Morse’s testimony somehow “usurps” the

role of the jury because he believes Mr. Soape suffered an electric shock based on the totality of

factors present. 19 Dr. Morse per his testimony cites to numerous data points, including among

other things, 1) the testimony of Mr. Soape, 2) the fact that the UF Cable was found 4”-7”

underground and severed, 3) water was being used in the hole that Mr. Soape had inserted a metal

pole, 4) the testimony of Mrs. Soape finding him on the ground next to the hole and post hole

diggers, 5) the ambulance records immediately following the incident, and 6) the hospital records

immediately following the electric shock; when taken in totality, these facts point strongly in the

direction that Mr. Soape suffered an electric shock. 20

8. Lay jurors will be assisted by Dr. Morse’s testimony because he has consulted in

approximately 400 electric shock cases, which is clearly outside the area of the general lay person.

Dr. Morse can assimilate the meaning and the totality of the data points that occurred on the day

Mr. Soape suffered an electric shock and can understand and explain the underlying physics

necessary to reach the opinions he will proffer to the jury. Issues such as the effect of moisture on

17
See Deposition of Dr. Morse at 84:25-85:24, attached hereto as Exhibit 2.
18
TEX. R. EVID. 702.
19
See DSW’s Supplemental Brief in Support of its Motion to Strike Plaintiffs’ Expert Michael S. Morse, Ph.D. and
Alternative Motion for Continuance at p.8, citing to Dr. Morse’s deposition at 87:1-88:19, attached hereto as Exhibit
5. The absurdity of this argument is found in the fact that DSW’s very own electrical engineering expert intends to
testify that Mr. Soape did not suffer an electric shock injury.
20
See Deposition of Dr. Morse at 29:19-30:22, 51:2-53:8, attached hereto as Exhibit 2.

5
skin resistance, conductivity of water, and biophysical response to electric current are clearly

beyond the scope of most jurors. Dr. Morse’s testimony is critical for a juror to rely upon if they

are to conclude that Mr. Soape was indeed shocked and goes far beyond merely accepting the

testimony of Mr. Soape.

9. Again, Dr. Morse’s opinions in this case focus on the symptoms experienced by

Mr. Soape and their consistency with the types of symptoms that individuals can experience

following an electric shock. It stands to reason that Dr. Morse would consider Mr. Soape’s sworn

account of the electrocution as well as Joy Soape’s testimony, in addition to the report from the

first responding ambulance company, Allegiance Mobile Heath – East, that states Mr. Soape was

found “supine on ground near water filled hole, metal pipe, shovel and utility trailer…with

“possible singed hairs to the left wrists and right ankle with small areas of abrasion/burn/scalded

skin to the right lateral ankle,” in reaching his belief that Mr. Soape suffered an electric shock. 21

10. DSW tries to further bolster its argument that Dr. Morse utilizes “circular”

reasoning by referencing Dr. Morse’s dismissal of DSW’s expert Matthew Geistfeld’s theory that

a circuit breaker would have tripped when Mr. Soape suffered shock. 22 However, as Dr. Morse

pointed out in his deposition this tripped breaker theory might work “in a vacuum” but the totality

of the facts take this scenario far beyond the realm of the “in vacuum” analysis. In his

testimony, he clearly articulates all the reasons why a breaker trip is unlikely. 23 There was an

exposed source of energy, a clear pathway to deliver the energy to Mr. Soape, and Mr. Soape was

found in a condition fully consistent with having received an electric shock. 24 In line with Dr.

21
See Records from Allegiance Mobile Health – East at Bates DSW003094, attached hereto as Exhibit 8.
22
See DSW’s Supplemental Brief in Support of its Motion to Strike Plaintiffs’ Expert Michael S. Morse, Ph.D. and
Alternative Motion for Continuance at p. 9-10, attached hereto as Exhibit 5
23
See Deposition of Dr. Morse at 49:22-53:8, attached hereto as Exhibit 2.
24
Id. at 52:17-53:2.

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Morse’s dismissal of Geistfeld’s theory, Plaintiffs’ expert Judd W. Clayton recently testified that

even if there is evidence of arching on the wires, that is no evidence that the breaker was tripped

and in fact it is difficult to create a trip scenario even once out of twenty occasions. 25 Mr. Clayton

also references another study supporting the notion that “a voltage short condition persists only

very briefly” and in converting a voltage short in to an arc the researcher “was able to create up to

30 such short circuits on a power cord before a 20-amp circuit breaker tripped.” 26

11. Moreover, in Mr. Geistfeld’s deposition testimony taken on September 25, 2019,

Mr. Geistfeld admitted that he did not have sufficient evidence to say whether the breaker would

have tripped on the date of the electric shock, and he does not intend to offer such testimony to the

jury. In sum, the tripped breaker scenario is a rare occurrence and one that DSW’s own expert

admits lacks sufficient evidence to support. There is simply nothing circular in Dr. Morse’s

reasoning.

12. For the foregoing reasons, Dr. Morse’s testimony is clearly substantiated and well-

grounded. If DSW truly believes Dr. Morse’s opinions to be faulty, circular and/or ipse dixit, the

proper approach to test his credibility is through the use of competing evidence and cross-

examination.

C. Dr. Morse has fully complied with his disclosure obligations and a trial
continuance is unwarranted.

13. Last, DSW has requested in the event the court denies its Motion to Strike Dr.

Morse that the court continue the current trial setting and afford DSW the opportunity to re-depose

him because of his alleged failure to comply with DSW’s subpoena duces tecum. When Dr. Morse

was designated as an expert on March 18, 2019, Plaintiffs specifically listed all materials that had

25
Deposition of Judd W. Clayton Jr. at 144:22-145:6, attached hereto as Exhibit 9.
26
Id. at 146:18-147:3.

7
been provided to or reviewed by Dr. Morse, as well as his CV, and bibliography in compliance

with the Rule 194.2(f). 27

14. Plaintiffs fully complied with their disclosure requirements. Although the scope of

Rule 194.2(f) concerning testifying experts allows for discovery of information only through

Requests for Disclosure, Rule 192.3 further defines the information that can be obtained through

depositions and expert reports. Rule 192.3 entitled “Scope of Discovery” allows that “A party

may discover the following information regarding a testifying expert…”:

• The expert's name, address, and telephone number;
• The subject matter on which a testifying expert will testify;
• The facts known by the expert that relate to or form the basis of the expert's mental
impressions and opinions formed or made in connection with the case in which the
discovery is sought, regardless of when and how the factual information was acquired;
• The expert's mental impressions and opinions formed or made in connection with the
case in which discovery is sought, and any methods used to derive them;
• Any bias of the witness;
• All documents, tangible things, reports, models, or data compilations that have been
provided to, reviewed by, or prepared by or for the expert in anticipation of a testifying
expert's testimony;
• The expert's current resume and bibliography. 28

As set forth in Plaintiffs’ designation of Dr. Morse, this information was provided in full to DSW. 29

15. It was not until August 15, 2019 (the motion deadline under the Docket Control

Order), that DSW served Dr. Morse’s deposition notice and improper subpoena duces tecum

purportedly pursuant to Texas Rules of Civil Procedure 199. 30 However, the date his deposition

was noticed was less than two weeks later on August 28, 2019. Rule 199.2(b)(5) states in relevant

part that “when the witness is a party or subject to the control of a party, document requests under

27
See p. 4 of Plaintiffs’ First Amended Designation of Expert Witnesses, attached hereto as Exhibit 4; TEX R. CIV. P.
194.2(f).
28
See TEX.R.CIV.P. 192.3(e).
29
See Exhibit 4, attached hereto.
30
See DSW’s Supplemental Brief in Support of its Motion to Strike Plaintiffs’ Expert Michael S. Morse, Ph.D. and
Alternative Motion for Continuance at p. 12, attached hereto as Exhibit 5.

8
this subdivision are governed by Rules 193 and 196.” 31

16. Importantly, Rule 196.2(a), dictates the time frame for response: “The responding

party must serve a written response on the requesting party within 30 days after service of the

request, except that a defendant served with a request before the defendant's answer is due need

not respond until 50 days after service of the request.” 32 Pursuant to the Texas Rules of Civil

Procedure, Dr. Morse should have been allowed up to 30 days to produce the requested materials

from the date his deposition was noticed but this was not the case.

17. Notably, the subpoena was also invalid as a matter of law because Dr. Morse is not

a Texas resident and is outside the subpoena range of DSW. The proper procedure for DSW to

follow is set forth in Texas Rule of Civil Procedure 201.1, which DSW did not follow.

18. Nevertheless, despite DSW’s completely unreasonable request, Dr. Morse provided

a bibliography of background materials of the generalized body of knowledge he relied upon

during his deposition as well as thumb drives containing all case materials he had been provided

for review. While Dr. Morse was fully compliant especially given that he was operating under

half the time to respond to DSW’s request, immediately upon receiving DSW’s Motion on

September 16, 2019, Dr. Morse supplied DSW the very next day with a Declaration attaching his

specific source materials that form the background information within the generalized body of

knowledge for biomedical and electrical engineering regarding symptomatology of an electric

shock injury, electrical resistance of the body and the implications of moisture/water being present

including from sweat. Some of these sources were specifically referenced by name in Dr. Morse’s

deposition.

19. Of note, Dr. Morse was deposed in his residence and made DSW’s counsel fully

31
TEX. R. CIV. P. 199.2(b)(5).
32
TEX. R. CIV. P. 196.2(a).

9
aware that he had his complete digital file available literally only feet away from the table where

the deposition was taken. Counsel had the opportunity but chose not to request that Dr. Morse

produce or show any digital materials that were in the file at the location of the deposition. In a

break for even just a few minutes, Dr. Morse could have answered any specific request from

counsel for supportive materials or for materials of which they inquired during the deposition.

Instead, counsel chose to make no such request, presumably so as to make a non-compliance

argument at a later time.

20. Plaintiffs also offered several options to present Dr. Morse again for further

examination before the current trial setting regarding his file and presumably the examples he

offered of the generalized body of knowledge to which he referred in his deposition. 33 In response,

on September 18, 2019, DSW advised Plaintiffs’ counsel it would not agree to re-depose Dr. Morse

until its Motion to Strike Dr. Morse was ruled upon. 34 DSW should not be allowed to pick and

choose which Rules to follow and then be rewarded for unreasonable demands and cause further

and unnecessary delay in this case which has been on file since December 15, 2017. Dr. Morse

has been more than fully compliant and as such DSW’s request for continuance should be denied.

III. CONCLUSION AND PRAYER

For the foregoing reasons, Plaintiffs pray that the Court deny DSW’s Motion and grant to

Plaintiffs all other relief to which they are entitled.

33
See Letter from Plaintiffs’Counsel attaching Dr. Morse’s source materials and offering his availabilityfor
deposition, attached as Exhibit 10.
34
See Letter from DSW’s Counsel refusing Plaintiffs’ offer of Dr. Morse’s availability for follow-up deposition until
DSWs Motion is ruled upon, attached as Exhibit 11.

10
Respectfully submitted,

WALSTON BOWLIN, LLP

/S/ JOSHUA N. BOWLIN .
JOSHUA N. BOWLIN
josh@walstonbowlin.com
State Bar No. 24036253
CLIFFORD H. WALSTON
cliff@walstonbowlin.com
State Bar No. 24037666
4299 San Felipe, Suite 300
Houston, TX 77027
(713) 300-8700
(713) 583-5020 Fax
ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

I hereby certify that the foregoing document shall be served in accordance with Rule 21a
on all parties who have answered or have been served with process on September 27, 2019.

/s/ Joshua N. Bowlin .
Joshua N. Bowlin

11
CAUSE NO. 17-CV-1506

ALLEN AND JOY SOAPE § IN THE DISTRICT COURT OF
§
v. § GALVESTON COUNTY, TEXAS
§
DSW HOMES, LLC, AAK ELECTRIC, §
LLC, and DALE’S WATER WELLS, LLC § 405th JUDICIAL DISTRICT

DEFENDANT DSW HOMES, LLC’S MOTION TO STRIKE
PLAINTIFFS’ EXPERT MICHAEL S. MORSE, PH.D.

COMES NOW Defendant, DSW Homes, LLC (hereinafter DSW) and files this Motion to

Strike Plaintiffs Allen and Joy Soape’s Expert, seeking to exclude the expert opinions, reports,

and testimony of Michael S. Morse, Ph.D.

I.
INTRODUCTION

This is a construction defect case arising from injuries Plaintiff Allen Soape allegedly

sustained on or about, September 21, 2016, when he was digging in flower beds near his newly-

constructed home. Plaintiffs allege that Mr. Soape’s post-hole digger struck an underground

electrical cable running from the water well pump to his home, precipitating a 220-volt shock

that rendered Mr. Soape unconscious and caused him to suffer significant and permanent

injuries. Plaintiffs filed this lawsuit on March 9, 2018, asserting various negligence claims

against DSW and others. Plaintiffs contend that DSW, as the general contractor for the

construction of their home, failed to use proper care in installing the electrical line that caused

Plaintiffs’ injuries.

On March 18, 2019, Plaintiffs submitted their First Amended Designation of Expert

Witnesses, naming Michael S. Morse, Ph.D. (“Dr. Morse”) among their retained experts in this

Exhibit
1
case. 1 Dr. Morse is expected to testify on the issue of causation—namely, that Mr. Soape

“sustained an electrical shock that caused significant injuries[.]” 2 Dr. Morse, however, is not

qualified to opine on the issue of medical causation. Accordingly, his opinions should be struck

from the record, and he should be excluded from testifying as expert witnesses in this case.

Alternatively, his testimony should be limited to fit his qualifications.

II.
RESERVATION OF ADDITIONAL OBJECTIONS

As a preliminary matter, DSW notes that it has not yet had the opportunity to depose Dr.

Morse concerning his opinions, qualifications, methodology, and/or underlying data. However,

the Plaintiffs have agreed to produce Dr. Morse for deposition on August 28, 2019.

Unfortunately, the current Docket Control Order sets an August 15, 2019, deadline for “all

motions, except motions in limine.” Accordingly, out of an abundance of caution, DSW files the

instant motion to ensure compliance with the DCO. However, by filing this motion, DSW does

not waive, and hereby expressly reserves, any additional objections to Dr. Morse’s opinion

testimony that may be discovered through his deposition.

III.
ARGUMENT AND AUTHORITIES

Texas Rule of Evidence 702 governs the admissibility of expert testimony and provides:

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.

If an objection to expert testimony is lodged, the proponent of the testimony bears the burden to

demonstrate admissibility. Id.; Kmart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000). The

1
See Plaintiffs’’ First Amended Designation of Expert Witnesses, attached hereto as “Exhibit A,” at pg. 3-4.
2
Id. at pg. 3.

2
trial court’s determination that an expert’s testimony is admissible is reviewed for abuse of

discretion. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001). “Admission of

expert testimony that does not meet the [Rule 702] requirement is an abuse of discretion.”

Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006).

One of Rule 702’s requirements is that the expert be qualified by “knowledge, skill,

experience, training or education” to form an opinion. TEX. R. EVID. 702. The party offering

expert testimony bears the burden to show the expert possesses “special knowledge as to the very

matter on which he proposes to give an opinion.” Gammill v. Jack Williams Chevrolet, Inc., 972

S.W.2d 713, 718 (Tex. 1998) (internal quotations omitted). General experience in a specialized

field does not qualify a witness as an expert. Houghton v. Port Terminal R.R. Ass’n, 999 S.W.2d

39, 47-48 (Tex. App.—Houston [14th Dist.] 1999, no pet.). Rather, “[w]hat is required is that

the offering party establish that the expert has ‘knowledge, skill, experience, training, or

education’ regarding the specific issue before the court which would qualify the expert to give an

opinion on that particular subject.” Broders v. Heise, 924 S.W.2d 148, 153-54 (Tex. 1996).

Dr. Morse does not possess the requisite qualifications to offer the opinions set forth in

Plaintiffs expert designations. Specifically, the crux of Dr. Morse’s opinion is that Mr. Soape

suffered various short-term and long-term physical injuries as a result of his alleged electrical

shock, including respiratory arrest, organ and/or neurological damage, and neuropsychological

and cognitive loss. 3 Dr. Morse, however, is not a medical doctor; rather, he is an engineer,

purportedly specializing in biomedical engineering. 4 As a general rule, opinion testimony of non-

physician biomedical engineers is limited to “the scientific measurements and calculations of the

forces involved” in an alleged injury-producing event, and such experts may only state “whether

3
Id. at pg. 3-4.
4
See CV of Dr. Morse, attached hereto as “Exhibit B.”

3
or not injuries generally would or would not be expected from such forces.” Layssard v. United

States, CIV.A. 06-0352, 2007 WL 4144936, at *3 (W.D. La. Nov. 20, 2007) (emphasis added);

accord Olivarez v. Get Cargo, Inc., SA13CA391OLGHJB, 2014 WL 12873157, at *4–5 (W.D.

Tex. Oct. 30, 2014); see also Laski v. Bellwood, 215 F.3d 1326 (6th Cir. 2000). Biomedical

engineers, however, “are not qualified to render medical opinions regarding the precise cause of

a specific injury.” Laski, 215 F.3d at 1326; Olivarez, 2014 WL 12873157, at *4-5; Layssard,

2007 WL 4144936, at *3.

According to Plaintiffs’ designation, Dr. Morse is not expected merely to testify

concerning the abstract physical properties of the forces involved in electric shock underlying

this lawsuit. Instead, Dr. Morse intends to testify concerning the specific injuries Mr. Soape

purportedly suffered as a direct result of the alleged shock. 5 Indeed, the expert designation

indicates Dr. Morse reviewed Mr. Soape’s medical records and Mr. Soape’s description of the

accident and his subsequent complaints in an attempt to form an opinion concerning the “long-

term” and “short-term” injuries Mr. Soape purportedly sustained. 6 In other words, Dr. Morse

inappropriately attempts to step into the shoes of a physician to make a specific diagnosis and/or

prognosis of Mr. Soape’s complaints.

Such testimony exceeds the bounds of Dr. Morse’s qualifications as a biomedical

engineer. Accordingly, because Dr. Morse is not qualified to offer the opinions set forth in

Plaintiffs’ expert designation, the Court should exclude his testimony as a whole. Alternatively,

the Court should issue an order limiting the scope of Dr. Morse’s testimony to the “scientific

measurements and calculations of the forces involved” in the underlying accident. Layssard,

2007 WL 4144936, at *3; Olivarez, 2014 WL 12873157, at *4-5.

5
See Ex. A at pg. 3-4.
6
Id.

4
IV.
CONCLUSION

Michael S. Morse, Ph.D., is not qualified to offer the type of medical causation testimony

set forth in Plaintiffs’ latest expert designations. Accordingly, Defendant, DSW Homes, LLC

respectfully requests that the Court grant this Motion to Strike and preclude all expert testimony

offered by Dr. Morse or, alternatively, limit his testimony as set forth above.

Respectfully submitted,

SHEEHY, WARE & PAPPAS, P.C.

By:
GEORGE P. PAPPAS
SBN 15454800
gpappas@sheehyware.com
JENNIFER D. CULLY
SBN 24030026
jcully@sheehyware.com
TRAVIS CADE ARMSTRONG
SBN 24069312
tarmstrong@sheehyware.com
909 Fannin Street, Suite 2500
Houston, Texas 77010-1003
Telephone: (713) 951-1000
Facsimile: (713) 951-1199

ATTORNEYS FOR DEFENDANT
DSW HOMES, LLC

5
CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above and foregoing instrument has
been forwarded to all counsel of record in accordance with the Texas Rules of Civil Procedure
on August 14, 2019.

Clifford Walston
Joshua N. Bowlin
Nathaniel J. Alford, III
WALSTON BOWLIN, LLP
4299 San Felipe Street, Suite 300
Houston, TX 77027
-AND-
Kurt Arnold
J. Kyle Findley
ARNOLD & ITKIN, LLP
6009 Memorial Drive
Houston, TX 77007

Linda Johnson White
ALLEN, KILLGORE & WHITE, P.C.
2323 South Voss Road, Suite 230
Houston, Texas 77057
-AND-
Robbie A. Moehlmann
Mike Prather
Natasha Bahri
WALKER WILCOX MATOUSEK LLP
1001 McKinney Street, Suite 2000
Houston, Texas 77002

Marshall G. Rosenberg
Kevin B. Tompkins
Hartline, Dacus, Barger, Dreyer LLP
1980 Post Oak Blvd, Suite 1800
Houston, Texas 77056

_____________________________
George P. Pappas
3549049_1

6
CAUSE NO. 17-CV-1506

ALLEN and JOY SOAPE § IN THE DISTRICT COURT OF
Plaintiffs §
§
vs. §
§ GALVESTON COUNTY, TEXAS
DSW HOMES, LLC, §
AAK ELECTRIC, LLC, and §
DALE’S WATER WELLS, LLC §
Defendants. § 405th JUDICIAL DISTRICT

PLAINTIFFS’ FIRST AMENDED DESIGNATION OF EXPERT WITNESS

Case Info

Judge

Robinson, Jared Track Judge’s New Case

Case No.

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Document Filed Date

September 27, 2019

Case Filing Date

December 15, 2017

County

Parties

Alford, Nathaniel J., III Attorney for the Plaintiff
Arnold, Kurt B. Attorney for the Plaintiff
Barfield Home Inspections Third Party Defendant
DSW Homes, LLC Defendant
DSW Homes, LLC Third Party Plaintiff
Findley, J. Kyle Attorney for the Plaintiff
Fostel, M. Clay Attorney for the Plaintiff
Pappas, George P. Attorneys for Defendants
Pappas, George P. Attorney for the Defendant
Soape, Allen Plaintiff
Soape, Joy Plaintiff
Walston, Clifford H. Attorney for the Plaintiff
Joshua Bowlin Attorneys for Plaintiffs
Jennifer Cully Attorneys for Defendants
Michael Fostel Attorney
Marshall Rosenberg Attorneys for Defendants
Kevin Tompkins Attorney
Linda White Attorneys for Plaintiffs
Robbie Moehlmann Attorney
Michael Prather Attorney
Natasha Bahri Attorney
Jonathan Findley Attorneys for Plaintiffs
Travis Armstrong Attorneys for Defendants
Ashley Menage Attorneys for Defendants
Lara Price Attorney

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Motion-Secondary: Allen Soape, Et Al vs. DSW Homes, LLC, Et Al

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