Preview
FILED
12/20/2021 5:53 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Dorothy Strogen DEPUTY
CAUSE NO. DC-20-06053
SYLVIA TOMASA OLVERA, IN THE DISTRICT COURT OF
Individually, and on behalf
of the
ESTATE OF JUAN GABRIEL
BASURTO SANCHEZ,
Plaintiff,
VS.
NATHALIE BAIER, RICARDO DALLAS COUNTY, TEXAS
SANCHEZ CHAVEZ, Individually and
d/b/a RS GUTTERS, GUARDIAN
EXTERIORS, INC. and ONCOR
ELECTRIC DELIVERY COMPANY
LLC
Defendants.
192%P JUDICIAL DISTRICT
ONCOR ELECTRIC DELIVERY COMPANY LLC’S MOTION TO EXCLUDE
KHALED OLGAMAL AS AN EXPERT WITNESS
NOW COMES, Oncor Electric Delivery Company LLC (“Oncor”), Defendant in the
above-entitled and numbered cause, and pursuant makes and files this its Motion to Exclude
Khaled Elgamal as an Expert Witness. In support of same, Oncor would respectfully show as
follows:
I
SUMMARY
According to eyewitness testimony and physical evidence, Decedent Juan Gabriel Basurto
Sanchez (“Sanchez”), in violation of a statute designed for his safety, caused an aluminum gutter
to come into contact with an open and obvious Oncor high voltage powerline. This powerline was
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more than 24 feet above ground and almost 6 feet from the edge of the house where Sanchez was
working when this occurred. The powerline had been at that same location for over 50 years.
Following a storm in June 2019, Defendant Nathalie Baier hired Defendant Guardian
Exteriors to replace the roof and gutters on her home. Guardian contracted with Defendant RS
Gutters to do the gutter work. Sanchez worked for RS Gutters, although his status as an employee
or independent contractor of that entity remains unclear. While on a ladder attempting to remove
a large section of gutter attached to the second story roof by himself, Sanchez caused the gutter to
contact the powerline, resulting in electrical burn injuries and his death.
Oncor received no prior notice of the work. The incident involving
Sanchez did not occur on an Oncor job site. No Oncor personnel were on site at Baier’s property
at the time of the incident. Neither Oncor employees nor contractors were involved in the roof or
gutter project. The only individuals present at the time of the work were Sanchez and two of his
co-workers, none of whom were Oncor employees or contractors.
Plaintiff Sylvia Olvera was the purported spouse of Sanchez at the time of his death and
has sued Oncor for negligence, alleging failure to properly inspect and maintain the lines and that
the lines were too low and/or too close to Baier’s house. It is undisputed that the lines at issue
were over 24 feet high and almost 6 feet from the house, both of which far exceed the requirements
of Texas law as established by the applicable edition of the National Electrical Safety Code
(“NESC”). Plaintiff has also asserted negligence claims against Baier, Guardian, and RS Gutters
generally alleging failure to warn, train, and supervise, and Baier has asserted a claim for
contribution against all other defendants.
In its Original Answer and live pleading, Oncor generally denied Plaintiff’s allegations and
pleaded Chapter 752 of the Texas Health and Safety Code, which prohibits work near high voltage
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overhead powerlines without prior notice to Oncor, as an affirmative defense and as the basis for
Oncor’s claim for indemnity.
In an attempt to rebut Sanchez’s Chapter 752 violation, Plaintiffs retained an electrical
engineering expert, Khaled Elgamal, P.E., who purportedly authored and signed a Certificate of
Merit dated November 17, 2020 attached to Plaintiff’s Fourth Amended Petition (the “Certificate
of Merit”). Mr. Elgamal does not dispute that Sanchez brought the gutter into contact with Oncor’s
high voltage overhead line. Nor does he dispute that neither Sanchez nor anyone else notified
Oncor about his intended work at least 48 hours before it began, as required by Chapter 752.
Instead, in his Certificate of Merit he concludes Oncor’s line did not meet the required horizontal
clearance to the edge of the roof on which Sanchez was working. All parties agree that required
horizontal clearances from high voltage overhead power lines to houses and other buildings are
set by the NESC. Mr. Elgamal appears to rely upon one table from the 1997 edition of the NESC
to conclude that the minimum horizontal clearance between Oncor’s line and the roof was required
to be 7.5 feet, and that Oncor’s line violated the NESC because this clearance was instead nearly
six (6) feet. Elgamal has not, however, provided any evidence to demonstrate that he is qualified
to make these conclusions or to explain why these conclusions are compelled in this case. In fact,
he has offered no evidence whatsoever to explain why the 1997 edition of the NESC and the
table cited even apply to the facts of this case. In fact, they do not.
Elgamal’s opinions are not only without a sufficient supporting basis, but they also ignore
the fact that the NESC has multiple editions, each of which applied at different time periods,
and ignore other key provisions of the NESC, including the so-called “grandfather clause,”
which established that overhead powerlines need only comply with the clearance requirements of
the edition of the NESC that applied at the time of the line’s construction. Mr. Elgamal also fails
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to offer any account for why he did not investigate and consider the horizontal clearance
requirements existing in 1965, when this powerline was constructed, or if he did, why he excluded
any discussion of them or the grandfather clause from his Certificate of Merit. In sum, Mr. Elgamal
has not shown himself to be qualified to render the opinions he has issued in this case, and those
opinions are not relevant or reliable because based upon an inapplicable edition of the NESC.
Moreover, given the absence of any probative value to his opinions, they are substantially
outweighed by the dangers of misleading of the jury, confusion of the issues, and unfair prejudice
to Oncor. Additionally, Plaintiff's expert designation of Mr. Elgamal was untimely under the
scheduling order in this case and was insufficient under that order and Texas Rule of Civil
Procedure 194.2(f). Accordingly, the Court should exclude Mr. Elgamal as an expert witness and
exclude all his opinions, including, without limitation, the opinion that Oncor’s powerline violated
the NESC based on its measured horizontal clearance to the roof.
I. ARGUMENT
A The Governing Law Concerning Expert Testimony.
“Texas Rule of Evidence 702 permits a witness qualified as an expert by ‘knowledge,
skill, experience, training, or education’ to testify on ‘scientific, technical, or other specialized’
subjects if the testimony ‘will assist the trier of fact to understand the evidence or to determine
a fact in issue.”” Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 904 (Tex. 2004); accord
WhirlpoolCorp. v. Camacho, 298 S.W.3d 631, 637 (Tex. 2009). Under Rule 702, expert
testimony is inadmissible if the expert is unqualified, or if the expert’s opinions are not
relevant to the facts of the case, or if they are unreliable. E.g., Gunn v. McCoy, 554 S.W.3d
645, 666 (Tex. 2018); Volkswagen, 159 S.W.3d at 904.
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1. Principles Regardin, Whether a Purported Expert is ualified.
Whether an expert is qualified “is a preliminary question to be decided by the trial
court.” Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713, 718 (Tex. 1998) (quoting
Broders v. Heise,924 S.W.2d 148, 152 (Tex. 1996)). If the expert’s qualifications are
challenged, “[t]he party offering the expert’s testimony bears the burden to prove that the
witness is qualified under [TexasRule of Evidence] 702.” Id.
A trial court is required to separately examine the expert’s qualifications for each
opinion. Broders, 924 $.W.2d at 151-53. “[C]redentials alone do not qualify an expert to
testify.” In re Bohannan, 388 S.W.3d 296, 305 (Tex. 2012). Rather, the court must “‘ensur[e]
that those who purport to be experts ¢ruly have expertise concerning the actual subject about
which they are offering an opinion.’ The test is ‘whether ‘the offering party [has]
establish[ed] 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.” Id. at 305(emphasis added) (quoting Gammill, 972
S.W.2d at 719 and Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003), 111 S.W.3d at
121); accord Gammill, 972 S.W.2d at 718 (the expert’s proponent must demonstrate that
the witness “possesses special knowledge as to the very matter on which he proposes to give
an opinion”) (emphasis added).
In other words, “[t]he evaluation of an expert’s qualifications entails a two-step
inquiry: first, whether the witness possesses sufficientbackground in a particular field, and
second, whether that background goes to the matter on which the witness is to give an opinion.”
Gumtow v. State, No. 03-18-00077-CR, 2019 Tex. App. LEXIS10847, at *19 (Tex. App.—
Austin Dec. 12, 2019, no pet.). Accordingly, an expert may be qualified for one opinion, but
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not for another. E.g., Goodyear Tire & Rubber Co. v. Rios, 143 S.W.3d 107, 116 (Tex. App.—
San Antonio 2004, pet. denied); Pack v. Crossroads, Inc., 53 S.W.3d 492, 507 (Tex. App.
Fort Worth 2001, pet. denied).
In sum, a trial court, in ruling on a challenge to a purported expert witness’
qualifications, must first examine the witness’ qualifications for each issue to which his/her
opinions relate and then determine if the witness is qualified to testify about the issue based
on his/her specialized knowledge, skill, experience, training, or education. If the court
determines that the witness is unqualified to testify about an issue, his/her opinions regarding
it must be excluded.
2. Principles Regarding Relevance of an Expert’s Opinions
To be relevant, an expert’s testimony must be es sufficiently tied to the facts of the case that
it will aid the jury in resolving a factual dispute.’” Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623,
629 (Tex. 2002)(quoting Robinson, 923 S.W.2d at 556)(in turn quoting United States v. Downing,
753 F.2d 1224, 1242 (3d Cir. 1985)). “Evidence that has no relationship to any issue in the case
does not satisfy Rule 702 and is thus inadmissible under rule 702, as well as rules 401 and 402.”
Exxon Pipeline Co. v. Zwahr, 88 S.W.3d at 629.
3. Principles Regarding Reliability of an Expert’s Opinions.
Merely because a witness is an “expert” and has an opinion on an issue does not mean
thatthe witness has the right to share the opinion with the jury. Rather, all expert testimony
must be based on a reliable foundation. Gunn, 554 S.W.3d at 666; Volkswagen, 159 S.W.3d
at 904.
“The party offering or relying on expert testimony bears the burden of showing the
expert’sopinion is reliable.” Plunkett v. Conn. Gen. Life Ins. Co., 285 S.W.3d 106, 115-16
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(Tex. App.— Dallas 2009, pet. denied). The proponent bears this burden “regardless of the
quality or quantity of the opposing party’s evidence on the issue and regardless of whether the
opposing party attemptsto conclusively prove the expert testimony is wrong.” Whirlpool, 298
S.W.3d at 639. “The trial court serves as a gatekeeper to screen out . . . unreliable expert
evidence.” Zamora v. Champion Cooler Corp., No. 05-16-00577-CV, 2018 Tex. App. LEXIS
653, at *4 (Tex. App.—Dallas Jan. 23, 2018, no pet.) (emphasis added).
In determining whether expert testimony is reliable, the trial court is “to rigorously
examine the validity of facts and assumptions on which the testimony is based, as well as the
principles, research, and methodology underlying the expert’s conclusions and the manner in
which the principles and methodologies are applied by the expert to reach the conclusions.”
Whirlpool, 298S.W.3d at 637; accord Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 579 (Tex.
2006). Texas Ruleof Evidence 702 lists three broad categories of expert testimony: “scientific,
technical, or other specialized knowledge.” “When the expert testimony involves scientific
knowledge, the expert’sconclusions must be ‘grounded in the methods and procedures of
cience.’ Otherwise, the testimony is ‘no more than subjective belief or unsupported
speculation.”” Mack Trucks, 206 S.W.3d at 578 (quoting E./. du Pont de Nemours & Co. v.
Robinson, 923 S.W.2d 549, 557 (Tex. 1995)).
The Texas Supreme Court has identified the following non-exclusive factors that a
trial court should consider when determining the reliability of expert testimony involving
scientific knowledge: “(1) the extent to which the theory has been or can be tested; (2) the
extent to which the technique relies upon the subjective interpretation of the expert; (3)
whether the theory has been subjected to peer review and/or publication; (4) the technique’s
potential rate of error; (5) whether the underlying theory or technique has been generally
7
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accepted as valid by the relevant scientific community; and (6) the non-judicial uses that have
been made of the theory or technique.” /d. at 578 n.6 (quoting Robinson, 923 S.W.2d at 557);
accord Bohannan, 388 S.W.3dat 305. These factors, however, “may not apply when testimony
is not scientific, but, rather, involves technical or other specialized knowledge.” Mack Trucks,
206 S.W.3d at 578. In such cases, a trial court is to determine whether “there is simply too
great an analytical gap between the data and the opinion proffered.” /d.
“Whether an analytical gap exists is largely determined by comparing the facts the
expert relied on, the facts in the record, and the expert’s ultimate opinion.” Gharda USA, Inc.
v. ControlSols., Inc., 464 S.W.3d 338, 349 (Tex. 2015). Such a gap exists when “the expert
unreliably applies otherwise sound principles and methodologies, the expert’s opinion is based
on assumed facts that vary materially from the facts in the record, or the expert’s opinion is
based on tests or data that do not support the conclusions reached. ‘[A] claim will not stand or
fall on the mere ipse dixit of a credentialed witness.’” /d. (quoting Burrow v. Arce, 997 S.W.2d
229, 235 (Tex. 1999)).
B Application of Law to Elgamal’s Designation and Opinions
1 Plaintiff’s Designation of Elgamal Was Untimely and Insufficient
Plaintiff served her Designation of Experts on November 3, 2021, two days late under the
scheduling order of which Defendant requests the Court to take judicial notice. In her designation
concerning Mr. Elgamal, Plaintiff identified Mr. Elgamal as a retained expert, but did not provide
any substantive designation of his specific opinions and their bases and did not attach any expert
report for Mr. Elgamal to that designation. The designation of Mr. Elgamal reads as follows:
“Plaintiff anticipates that Khaled Elgamal, P.E. may be called upon to testify regarding the
circumstances of safety issues as they relate to the case and the incident that is the substance
of the case.”
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(See Ex. “A” “Plaintiff’s Designation of Experts” p. 4). This designation is untimely and is
insufficient as a matter of law under Tex. R. Civ. P. 194.2(f). Accordingly, it should be excluded.
To the extent Plaintiff relies upon the Certificate of Merit signed by Mr. Elgamal in November,
2020 as his expert designation, it is also insufficient for the following reasons.
In her Fourth Amended Petition,' Plaintiff attached a Certificate of Merit purportedly
signed by Mr. Elgamal on November 17, 2020, wherein he opined that Oncor’s high voltage
overhead line at issue was too close, horizontally, to the roof of the house where Sanchez was
replacing the gutter. He attached to his Certificate of Merit one table from a 1997 edition of the
NESC, without offering any basis or explanation for why that edition of the NESC applied or why
that particular table of the NESC applied to the facts of this case. Apparently based on this one
table from the 1997 edition of the NESC, Elgamal concluded that Oncor’s line was in violation of
the NESC if it had less than a 7.5 foot horizontal clearance to the edge of the roof. (/d.).
The Certificate of Merit filed as an attachment to Plaintiffs Fourth Amended Petition does
not suffice as an expert report under Tex. R. Civ. P. 194.2(f). It was filed pursuant to Chapter 150,
Texas Civil Practice & Remedies Code, to prevent dismissal of Plaintiff's case in response to
Oncor’s Motion to Dismiss. It was not filed or served pursuant to Tex. R. Civ. P. 194.2(f) as an
expert report, nor was it adopted or incorporated by reference in Plaintiff's untimely filed
Designation of Experts. It also does not set forth all documents that Mr. Elgamal has been
provided, reviewed or relied upon to support his opinions. Tex. R. Civ. P. 194.2(f). Accordingly,
' This petition has now been superseded by Plaintiff's Fifth Amended Petition filed on August 20, 2021. The
Certificate of Merit of Khaled Elgamal, P.E. was not attached to Plaintiff's Fifth Amended Petition. However, the
Court may take judicial notice of the Certificate of Merit attached to Plaintiff's Fourth Amended Petition.
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the Certificate of Merit is inadequate as an expert designation and any opinions contained therein
should be excluded.
De Elgamal Has Not Shown Himself Qualified to Render His Opinion:
Although Mr. Elgamal asserts in the Certificate of Merit that he is “familiar” with the
NESC, he does not explain how he has acquired his familiarity with the NESC, or how he has
become familiar with application of the NESC to the clearance requirements of overhead high
voltage power lines like the one involved in this case. The mere fact that Mr. Elgamal holds a
Professional Engineer license in Texas does not alone render him qualified to opine about any
aspect of the NESC, (which includes multiple sections on a variety of topics), or its application
to a specific set of facts at issue in this case. See, e.g., Broders v. Heise, 924 S.W.2d 148, 153
(Tex. 1996)(held no abuse of discretion in excluding opinion of emergency room physician who
lacked qualifications to opine on effectiveness of treatments a neurosurgeon could have provided
or whether the lack of such treatment caused the patient’s death); Gammill v. Jack Williams
Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex. 1998)(“Just as not every physician is qualified to
testify as an expert in every malpractice case, not every mechanical engineer is qualified to testify
as an expert in every products liability case.”); accord Cooper Tire & Rubber Co. v. Mendez, 204
S.W.3d 797, 806-07 (Tex. 2008) (a witness with an “undergraduate degree in chemistry and a
master’s degree in polymer science and engineering,” was not qualified to testify “about the
subject of wax migration and contamination in tires” because he had no specialized expertise in
tire chemistry).”
2 See also Ghidoni v. Skeins, No. 05-18-00355-CV, 2019 Tex. App. LEXIS 3818, at *11-12 (Tex.
App.— Dallas May 10, 2019, no pet.) (mem. op.) (attorney who had handled 15-20 malpractice cases and had
testified as an expert in several others was unqualified to testify as an expert in a malpractice action involving
water rights because he had no experience handling such matters); Gomez v. Am. Honda Motor Co., No. 04-14-
00398-CV, 2015 Tex. App. LEXIS3990, at *13-14, 15-16 (Tex. App.—San Antonio Apr. 22, 2015, pet. denied)
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Similarly, Mr. Elgamal has not shown he has the requisite knowledge, education,
experience, or training to competently testify about the proper application of the NESC’s
requirements concerning clearances of high voltage overhead lines erected in 1965. Accordingly,
his opinion must be excluded on that basis.
3. Elgamal’s Opinions are Not Relevant to This Cas:
Mr. Elgamal’s opinions must also be excluded because they are not sufficiently tied to the
facts of this case to be relevant. The Texas Utilities Code provides, in pertinent part, as follows:
“(a) ... With regard to clearances, an electric utility that is not a municipal electric
utility shall construct, operate, and maintain its transmission lines and distribution
lines along highways and at other places in accordance with the national electrical
safety code.
ee
(d) In this section, “national electrical safety code” means the National Electrical
Safety Code, as published in March 1948 by the National Bureau of Standards,
Handbook 30, as revised by Handbook 81, published by the National Bureau of
Standards in November 1961.”
Tex. UTIL. CODE § 181.045(a),(d)(emphasis added).
A trial court may take judicial notice of the NESC as it relates to clearances of overhead
high voltage electric lines, and must do so if a party supplies it with sufficient information
concerning the NESC’s applicable contents. Hernandez v. Houston Lighting & Power Co., 795
S.W.2d 775,776-7 (Tex. App.—Houston [14" Dist.] 1990, no writ)(held trial court did not err in
taking judicial notice of provision of NESC dealing with required line height for maintenance of
overhead high voltage line); TEx. R. Evip. 201(b)(1),(2), (c)(2); see also, Humphreys v. Texas
Power & Light Co., 427 §.W.2d 324, 331-2 (Tex. Civ. App.—Dallas 1968, writ ref’d n.t.e.)(noting
(mem. op.) (“a veteran rider and mechanic with over 25 years’ experience working with and riding ATVs,” who
had “investigated over 1,000 ATVaccidents and .. . testified in 27 states and in Canada” was unqualified to testify
that the absence of a rear differential on an ATV caused the accident because he had never designed an ATV).
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former article 1436a, REVISED CIVIL STATUTES, now Section 181.045 of the Utilities Code,
expressly incorporated the NESC as to clearances). The court may take judicial notice of an
adjudicative fact, such as the applicable contents of the NESC, at any stage of the proceeding. TEX.
R. Evip. 201(d).
The overhead line at issue in this case had been installed in the location it was in at the time
of the incident for more than 50 years. The NESC, itself, had existed for decades before the
installation of this overhead line. See TEX. UTIL. CODE § 181.045(d). An earlier edition of the
NESC, (the 1961 edition), which was expressly incorporated by reference in Section 181.045(d)
of the Utilities Code and its predecessor statute, article 1436a, Revised Civil Statutes, was in effect
at the time of construction of the overhead line at issue. A true and correct copy of excerpted pages
from the 1961 edition of the NESC pertaining to clearance of overhead high voltage electric lines
is attached hereto and incorporated by reference herein as Exhibit “B.” Oncor requests the Court
to take judicial notice of the contents of Exhibit “B,” and specifically Section 234(C) and Table
4 of Section 234(C). According to Table 4 of Section 234(C) of the 1961 edition of the NESC, at
the time of the subject line’s original construction, overhead electric lines with a voltage capacity
between 300 to 8,700 volts were required to have a horizontal clearance from any building of at
least three (3) feet. (Ex. “B,” p. 69, Section 234(C) and Table 4). It is undisputed that the
overhead line at issue has a nominal voltage capacity of 7,600 volts measured from phase to
ground. It is also undisputed that the line’s horizontal clearance to the portion of the roof on which
Mr. Sanchez was working was nearly double that required by the 1961 edition of the NESC.
Moreover, another section of the NESC, Section 13(B), contains the language of the so-
called “grandfather clause” which has existed in the Code since the late 1970’s. A true and correct
copy of the excerpted pages from the 1984 edition of the NESC containing this section is attached
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hereto and incorporated by reference herein as Exhibit “C.” Oncor requests the Court to take
judicial notice of the contents of Exhibit “C,” and specifically the contents of Section 13(B) on
page 46 of Exhibit “C.” That section, labeled “Existing Installations,” reads as follows:
1, Existing installations including maintenance replacements, which comply with
prior editions of the code, need not be modified to comply with these rules except
as may be required for safety reasons by the administrative authority.
Where conductors or equipment are added, altered, or replaced on an existing
structure, the structure or the facilities on the structure need not be modified or
replaced if the resulting installation will be in compliance with the rules which
were in effect at the time of the original installation.
(Exhibit “C,” Section 13(B) of NESC, p. 46)(emphasis added).
Despite the existence of a different horizontal clearance requirement in the edition of the
NESC that was in effect at the time of the subject line’s construction, and the existence of the
“grandfather clause” in the NESC for decades, Mr. Elgamal has chosen to rely upon the clearance
requirements of another edition of the NESC that has no relevance to the specific overhead electric
line at issue in this case. Mr. Elgamal offers no explanation why he has chosen to rely on an
inapplicable edition of the NESC. Because his opinions, based on an inapplicable edition of the
NESC, are not sufficiently tied to the facts of this case to enable the jury to determine whether
Oncor’s specific overhead line in question in fact complied with the relevant NESC, those opinions
are not relevant and must be excluded.
4. Elgamal’s Opinions Are Not Reliable Under the Analytical Gap
Test
Mr. Elgamal’s opinions and any expert testimony he would proffer should also be
excluded because his opinions are not reliable. Elgamal’s opinion that the horizontal clearance
of the powerline at issue did not meet NESC requirements is based on the material assumption
that the 1997 edition of the NESC applied to the powerline in question. This opinion is
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unreliable because it suffers from a fatal analytical gap, as its underlying assumptions are
wrong. Although Mr. Elgamal purports to rely upon one edition of the NESC for his opinion,
he does not cite any provision of the NESC or any other authority to support his conclusion
that the 1997 edition of the NESC and its clearance requirements apply. In fact, to reach his
a
conclusion, he must ignore the NESC’s “grandfather clause” and the clearance requirements
of the 1961 edition of the NESC in place at the time of this powerline’s construction in 1965.
(Ex. “B,” Ex. “C”). Mr. Elgamal’s failure to cite any authority for his interpretation of the
NESC is fatal to his opinion’s reliability. Even if Mr. Elgamal is relying upon his experience
applying the NESC, he has not shown how that experience is grounded in a reliable
methodology to support his conclusion in this case. His mere conclusion that the 1997 edition
of the NESC applies is not sufficient as a matter of law. As noted by one leading commentator
on the admissibility of expert testimony in Texas:
An expert’s declaration that a term has an industry meaning or that a practice is
standard is insufficient; the expert needs to present some support for the declaration.
“If the witness is relying solely or primarily on experience, then the witness must
explain how that experience leads to the conclusion reached, why that experience
is a sufficient basis for the opinion, and how that experience is reliably applied to
the facts.” “It is not enough for the expert to explain that he or she is resting the
opinion on his or her education or experience.” “The trial court’s gatekeeping function
requires more than simply “taking the expert’s word for it.”
Harvey Brown & Melisa Davis, supra p. 16, 52 Hous. L. Rev. at 156-157 (quoting Edward J.
Imwinkelried, Serendipitous Timing: The Coincidental Emergence of the New Brain Science and
the Advent of an Epistemological Approach to Determining the Admissibility of Expert
Testimony, 62 Mercer L. Rev. 959, 975 (2011)(emphasis added), and Fed. R. Evid. 702, Advisory
Committee’s Note); accord Davis, 2012 U.S. Dist. LEXIS 115421, at *13-14 (holding that an
expert’s opinionthat NESC § 218 also applied “to ‘properly maintaining vegetation around any
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overhead lines, especially involving trees, whether they are electric lines, guy wires,
telecommunication lines andmessengers, cable television cables, etc.” was unreliable because it
was entirely subjective and notbased on any relevant experience).
In other words, Mr. Elgamal has grounded his ultimate opinion (that Oncor’s
powerline did not meet NESC clearance requirements) on an assumption about the facts, (that
the clearance requirements of the 1997 edition of the NESC applies), that varies materially
from the actual facts (the subject line was constructed in 1965 under the clearance
requirements of an earlier NESC edition). Gharda USA, Inc. v. ControlSols., Inc., 464 S.W.3d
338, 349 (Tex. 2015). In sum, Mr. Elgamal’s opinions regarding line horizontal clearance are
contrary to actual evidence and wholly subjective. They suffer from a fatal analytical gap and
must be excluded as unreliable.
5. Elgamal’s Opinions Are Not Reliable under the Robinson Factor:
Although the Robinson factors are not as readily applicable to the Mr. Elgamal opinions,
as they are more of a technical than pure scientific nature, nevertheless, Mr. Elgamal’s opinions
are also unreliable when measured against the Robinson factors.
(1) The extent to which the theory has been or can be tested.
This first Robinson factor is not readily applicable to Mr. Elgamal’s opinions. However,
Mr. Elgamal has not demonstrated that his theory, (that an edition of the NESC issued three
decades after a powerline’s construction applies to this powerline), can be or has been tested. On
the contrary, the only relevant test of this theory is close inspection of other provisions of the
NESC, itself, including the grandfather clause and the 1961 edition of the NESC in place at the
time of the subject line’s construction.
Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness 15
4876-4285-9270 v.1 3300.2038
(2) The extent to which the technique relies upon the subjective interpretation
of the expert.
Application of the second Robinson factor to Mr. Elgamal’s opinions demonstrates their
unreliability, because his theory rests solely upon his own subjective interpretation of the NESC,
which is not supported by any scientific or technical literature, or any other reliable methodology.
(3) Whether the theory has been subjected to peer review and/or publication.
Mr. Elgamal’s opinions are unreliable under the third Robinson factor, because he has
cited no peer-reviewed literature or other publication supporting his interpretation of the NESC
and conclusion that the clearance requirements of the 1997 edition apply.
(4) The technique’s potential rate of error.
The fourth Robinson factor, potential rate of error, does not readily apply to Mr. Elgamal’s
opinions. However, Mr. Elgamal has supplied no evidence to show that his theory has been shown
to be correct or accepted by other experts on the NESC or the courts in other cases. Thus, the
potential rate of error of his theory is unknown, making it of doubtful reliability.
(5) Whether the underlying theory or technique has been generally accepted as
alid by the relevant scientific community.
The fifth Robinson factor demonstrates the unreliability of Elgamal’s opinions. He offers
no evidence whatsoever that his theory applying the clearance requirements of the 1997 edition
of the NESC to a powerline constructed in 1965 has been accepted by the community of engineers
who have expertise in proper application of the NESC to clearance requirements of high voltage
overhead power lines. It is certainly not accepted by one of the leading experts in the field, B.
Don Russell, Ph.D., P.E., Oncor’s designated electrical engineering expert.
Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness 16
4876-4285-9270 v.1 3300.2038
(6) The non-judicial uses that have been made of the theory or technique.
Finally, the sixth Robinson factor does not support the reliability of Mr. Elgamal’s
opinions, as he has provided no evidence to demonstrate that his theory has been applied by
knowledgeable experts in the NESC outside of legal proceedings.
Thus, if the Court is inclined to apply the Robinson factors to Mr. Elgamal’s theory in this
case, they demonstrate its unreliability and compel an order excluding Mr. Elgamal’s testimony.
B. Mr. Elgamal’s Testimony Should Be Excluded Under Tex. R. Evid. 403.
Mr. Elgamal’s opinions are inadmissible under Texas Rule of Evidence 702 and under
Robinson and later decisions as set forth above. However, even if the Court were to find some
probative value to Mr. Elgamal’s testimony, such probative value, if any, is substantially
outweighed by the dangers of confusion of the issues, misleading of the jury, and unfair prejudice
to Oncor. Accordingly, Mr. Elgamal’s testimony should be excluded under Tex. R. Evid. 403 as
well as under Tex. R. Evid. 702.
Both the U.S. and Texas Supreme Courts have acknowledged that even expert testimony
which might be of some probative value and therefore not completely inadmissible under Tex.
R. Evid. 702 may, nevertheless, be found to be inadmissible when applying that testimony against
the trial concerns expressed by Rule 403 of the Texas (or Federal) Rules of Evidence. See, e.g.,
Robinson, 923 S.W.2d at 557 (“If the trial judge determines that the proffered testimony is
relevant and reliable, he or she must then determine whether to exclude the evidence because its
probative value is 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.””); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595, 113 S.Ct. 2786,
2798 (1993)(““Expert evidence can be both powerful and quite misleading because of the
Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness 17
4876-4285-9270 v.1 3300.2038
difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against
probative force under Rule 403 of the present rules exercises more control over experts than over
lay witnesses.’”)(quoting Weinstein, 138 F.R.D. 631, 632 (1991)).
If Mr. Elgamal were permitted to testify that the clearance requirements of the 1997 edition
of the NESC applies to Oncor’s powerline, then the jury would be misled to believe through the
first electrical engineer they hear that the law required Oncor to comply with a version of the
NESC issued more than three decades after the powerline was constructed, despite the existence
of a long-standing provision of the NESC, itself, stating just the opposite. The unfairly prejudicial
effect this misleading testimony could have on Oncor’s defense might not be undone by the jury
later hearing testimony from Oncor’s expert about the NESC’s “grandfather clause” and his
opinion that the earlier NESC edition and its clearance requirements in fact apply to this
powerline. It is probable the jury would be misled by Mr. Elgamal’s testimony to believe that
Oncor was making some “hyper-technical excuse” for why it need not comply with more recent
editions of the NESC, as some jurors might mistakenly believe is Oncor’s duty. By the time the
jury hears the reality that the NESC, itself, and long-standing industry practice supports Oncor’s
position, the damage of this misleading testimony and its unfair prejudice to Oncor may very well
have irreversibly occurred.
Even if the jury were not unfairly prejudiced against Oncor by this misleading testimony,
they undoubtedly would be hopelessly confused about which edition of the NESC applied and
what the law required. This fact would tend to make jury deliberations lengthier and subject to
confusion about the applicable legal standards, their inability to reach a proper verdict more
likely, and the need for a re-trial almost assured. The reality of these trial concerns presents a
necessary case for the Court to exercise its gatekeeping role and its time-honored function as the
Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness 18
4876-4285-9270 v.1 3300.2038
umpire who tells the jury what law applies and what that law provides. Only in this way can the
parties be ensured that they will receive a fair and impartial verdict based on clear principles of
law and reliable expert testimony. Accordingly, Mr. Elgamal’s testimony should be excluded
under Texas Rule of Evidence 403.
Il. CONCLUSION
Accordingly, based upon the arguments and authorities set forth above, the Court
should exclude Khaled Elgamal as an expert witness under Texas Rules of Evidence 702 and
403, and prevent him from offering any expert opinions at the trial of this case, including,
without limitation, the opinions that the 1997 edition of the NESC applied to Oncor’s
powerline and that Oncor failed to meet the clearance requirements under that edition of the
NESC. Mr. Elgamal is not qualified to give these opinions, they are not relevant to the facts
of this case, nor are they reliable, and their probative value is non-existent and is substantially
outweighed by the dangers of misleading the jury, confusion of the issues, and unfair prejudice
to Oncor,
WHEREFORE, PREMISES CONSIDERED, Oncor respectfully requests that the
Court will set this Motion for hearing and, following hearing of the same, the Court will grant
Oncor’s Motion to Exclude Khaled Elgamal as an Expert Witness in all things, will order that
Khaled Elgamal may not present any expert testimony at trial, including any opinion that
Oncor’s powerline failed to meet the clearance requirements of the 1997 edition of the NESC,
and any other expert opinion he may have in this case, and for such other and further relief,
both at law and in equity, to which Oncor may be justly entitled to receive.
Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness 19
4876-4285-9270 v.1 3300.2038
Respectfully submitted,
BURFORD & RYBURN, L.L.P.
By: /s/ Lance C. Travis
Lance C. Travis
State Bar No. 00797568
Andrew. C. Cox
State Bar No. 24036409
500 North Akard, Suite 3100
Dallas, Texas 75201
(214) 740-3131(Telephone)
(214) 740-2828 (Facsimile)
ltravis@brlaw.com
cox@brlaw.com
Attorneys for Defendant
Oncor Electric Delivery Company LLC
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the above and foregoing
instrument has been served upon all known counsel of record by via E-service on this 20th day of
December, 2021.
/s/ Lance C. Travis
Lance C. Travis
Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness 20
4876-4285-9270 v.1 3300.2038
[>.4a
tT ihe
CAUSE NO. DC-20-06053
SYLVIA TOMASA OLVERA, IN THE DISTRICT COURT
Individually and on behalf of the
ESTATE OF JUAN GABRIEL
BASURTO SANCHEZ,
Plaintiff.
vs.
192NP JUDICIAL DISTRICT
NATHALIE BAIER, RICARDO
SANCHEZ CHAVEZ, INDIVIDUALLY
AND D/B/A RS GUTTERS, GUARDIAN
EXTERIORS INC., AND ONCOR
ELECTRIC DELIVERY COMPANY
LLC.
Defendants. DALLAS COUNTY, TEXAS
PLAINTIFF’S DESIGNATION OF TESTIFYING EXPERTS
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Plaintiff, Sylvia Thomasa Olvera, Ind. And on Behalf of the Estate of
Juan Gabriel Basurto Sanchez, and files this, her Designation of Expert Witnesses and would show
this Honorable Court the following:
I EXPERTS
Plaintiff has designated their experts and provided all other information and documentation
concerning said experts pursuant to Texas Rule of Civil Procedure 194.3 and hereby incorporates
said designations herein.
EXPERTS (NOT RETAINED):
All agents, representatives, employees, paramedics, doctors, and Custodian of
Records of the following facilities:
PLAINTIFF’S DESIGNATION OF TESTIFYING EXPERTS
PAGE 1
Dallas Police Department
1400 S. Lamar St.
Dallas, Texas 75215
(214) 671-3001
Dallas Fire-Rescue Department
Jerrod Anderson
Michael R. Aylward
Cooper Sewell
Kevin D. Paul
Mario E. Pifia
Dallas Fire Rescue
1901 Irving Boulevard
Dallas, Texas 75207
(214) 670-5466
Plaintiff anticipates that each of the above-referenced experts may be called upon to testify
as to their investigation, findings, conclusions and opinions, which they formed. These experts are
knowledgeable regarding the incident and because of their training through accredited schools and
seminars and the nature of their day-to-day experience, are qualified to render an opinion regarding
what caused the incident,
All agents, representatives, treating physicians, nurses, doctors,
practitioners, technicians, employees, and Custodian of Records of the
following facilities:
City of Dallas EMS
P.O. Box 843835
Dallas, Texas 75284
(800) 585-5242
Parkland Health & Hospital System
Dr. Alex Koyfman, M.D.
Dr. Thomas Andrew Schaeffer, M.D.
Dr. Stephen James Weiss, M.D.
Dr. Po-Hong Liu, M.D.
Dr. Jillian Jacobson, M.D.
Dr. John C. Kubasiak, M.D.
Dr. Thomas Shoultz, M.D.
5201 Harry Hines Boulevard
Dallas, Texas 75235
(214) 590-4900
PLAINTIFF’S DESIGNATION OF TESTIFYING EXPERTS
PAGE 2
Lakeside Physicians
Lawrence Hess, APRN, FNP-BC
1322 Paluxy Road, Suite 2
Granbury, Texas 76048
(817) 579-1642
Pecan Valley Centers Granbury Clinic
Jerry Scheen, APRN
Caresa Fenner, QMHP-CS
104 Pirate Drive
Granbury, Texas 76048
(817) 573-26
Preview
FILED 12/20/2021 5:53 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Dorothy Strogen DEPUTY CAUSE NO. DC-20-06053 SYLVIA TOMASA OLVERA, IN THE DISTRICT COURT OF Individually, and on behalf of the ESTATE OF JUAN GABRIEL BASURTO SANCHEZ, Plaintiff, VS. NATHALIE BAIER, RICARDO DALLAS COUNTY, TEXAS SANCHEZ CHAVEZ, Individually and d/b/a RS GUTTERS, GUARDIAN EXTERIORS, INC. and ONCOR ELECTRIC DELIVERY COMPANY LLC Defendants. 192%P JUDICIAL DISTRICT ONCOR ELECTRIC DELIVERY COMPANY LLC’S MOTION TO EXCLUDE KHALED OLGAMAL AS AN EXPERT WITNESS NOW COMES, Oncor Electric Delivery Company LLC (“Oncor”), Defendant in the above-entitled and numbered cause, and pursuant makes and files this its Motion to Exclude Khaled Elgamal as an Expert Witness. In support of same, Oncor would respectfully show as follows: I SUMMARY According to eyewitness testimony and physical evidence, Decedent Juan Gabriel Basurto Sanchez (“Sanchez”), in violation of a statute designed for his safety, caused an aluminum gutter to come into contact with an open and obvious Oncor high voltage powerline. This powerline was Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness 1 4876-4285-9270 v.1 3300.2038 more than 24 feet above ground and almost 6 feet from the edge of the house where Sanchez was working when this occurred. The powerline had been at that same location for over 50 years. Following a storm in June 2019, Defendant Nathalie Baier hired Defendant Guardian Exteriors to replace the roof and gutters on her home. Guardian contracted with Defendant RS Gutters to do the gutter work. Sanchez worked for RS Gutters, although his status as an employee or independent contractor of that entity remains unclear. While on a ladder attempting to remove a large section of gutter attached to the second story roof by himself, Sanchez caused the gutter to contact the powerline, resulting in electrical burn injuries and his death. Oncor received no prior notice of the work. The incident involving Sanchez did not occur on an Oncor job site. No Oncor personnel were on site at Baier’s property at the time of the incident. Neither Oncor employees nor contractors were involved in the roof or gutter project. The only individuals present at the time of the work were Sanchez and two of his co-workers, none of whom were Oncor employees or contractors. Plaintiff Sylvia Olvera was the purported spouse of Sanchez at the time of his death and has sued Oncor for negligence, alleging failure to properly inspect and maintain the lines and that the lines were too low and/or too close to Baier’s house. It is undisputed that the lines at issue were over 24 feet high and almost 6 feet from the house, both of which far exceed the requirements of Texas law as established by the applicable edition of the National Electrical Safety Code (“NESC”). Plaintiff has also asserted negligence claims against Baier, Guardian, and RS Gutters generally alleging failure to warn, train, and supervise, and Baier has asserted a claim for contribution against all other defendants. In its Original Answer and live pleading, Oncor generally denied Plaintiff’s allegations and pleaded Chapter 752 of the Texas Health and Safety Code, which prohibits work near high voltage Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness 2 4876-4285-9270 v.1 3300.2038 overhead powerlines without prior notice to Oncor, as an affirmative defense and as the basis for Oncor’s claim for indemnity. In an attempt to rebut Sanchez’s Chapter 752 violation, Plaintiffs retained an electrical engineering expert, Khaled Elgamal, P.E., who purportedly authored and signed a Certificate of Merit dated November 17, 2020 attached to Plaintiff’s Fourth Amended Petition (the “Certificate of Merit”). Mr. Elgamal does not dispute that Sanchez brought the gutter into contact with Oncor’s high voltage overhead line. Nor does he dispute that neither Sanchez nor anyone else notified Oncor about his intended work at least 48 hours before it began, as required by Chapter 752. Instead, in his Certificate of Merit he concludes Oncor’s line did not meet the required horizontal clearance to the edge of the roof on which Sanchez was working. All parties agree that required horizontal clearances from high voltage overhead power lines to houses and other buildings are set by the NESC. Mr. Elgamal appears to rely upon one table from the 1997 edition of the NESC to conclude that the minimum horizontal clearance between Oncor’s line and the roof was required to be 7.5 feet, and that Oncor’s line violated the NESC because this clearance was instead nearly six (6) feet. Elgamal has not, however, provided any evidence to demonstrate that he is qualified to make these conclusions or to explain why these conclusions are compelled in this case. In fact, he has offered no evidence whatsoever to explain why the 1997 edition of the NESC and the table cited even apply to the facts of this case. In fact, they do not. Elgamal’s opinions are not only without a sufficient supporting basis, but they also ignore the fact that the NESC has multiple editions, each of which applied at different time periods, and ignore other key provisions of the NESC, including the so-called “grandfather clause,” which established that overhead powerlines need only comply with the clearance requirements of the edition of the NESC that applied at the time of the line’s construction. Mr. Elgamal also fails Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness 3 4876-4285-9270 v.1 3300.2038 to offer any account for why he did not investigate and consider the horizontal clearance requirements existing in 1965, when this powerline was constructed, or if he did, why he excluded any discussion of them or the grandfather clause from his Certificate of Merit. In sum, Mr. Elgamal has not shown himself to be qualified to render the opinions he has issued in this case, and those opinions are not relevant or reliable because based upon an inapplicable edition of the NESC. Moreover, given the absence of any probative value to his opinions, they are substantially outweighed by the dangers of misleading of the jury, confusion of the issues, and unfair prejudice to Oncor. Additionally, Plaintiff's expert designation of Mr. Elgamal was untimely under the scheduling order in this case and was insufficient under that order and Texas Rule of Civil Procedure 194.2(f). Accordingly, the Court should exclude Mr. Elgamal as an expert witness and exclude all his opinions, including, without limitation, the opinion that Oncor’s powerline violated the NESC based on its measured horizontal clearance to the roof. I. ARGUMENT A The Governing Law Concerning Expert Testimony. “Texas Rule of Evidence 702 permits a witness qualified as an expert by ‘knowledge, skill, experience, training, or education’ to testify on ‘scientific, technical, or other specialized’ subjects if the testimony ‘will assist the trier of fact to understand the evidence or to determine a fact in issue.”” Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 904 (Tex. 2004); accord WhirlpoolCorp. v. Camacho, 298 S.W.3d 631, 637 (Tex. 2009). Under Rule 702, expert testimony is inadmissible if the expert is unqualified, or if the expert’s opinions are not relevant to the facts of the case, or if they are unreliable. E.g., Gunn v. McCoy, 554 S.W.3d 645, 666 (Tex. 2018); Volkswagen, 159 S.W.3d at 904. Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness 4876-4285-9270 v.1 3300.2038 1. Principles Regardin, Whether a Purported Expert is ualified. Whether an expert is qualified “is a preliminary question to be decided by the trial court.” Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713, 718 (Tex. 1998) (quoting Broders v. Heise,924 S.W.2d 148, 152 (Tex. 1996)). If the expert’s qualifications are challenged, “[t]he party offering the expert’s testimony bears the burden to prove that the witness is qualified under [TexasRule of Evidence] 702.” Id. A trial court is required to separately examine the expert’s qualifications for each opinion. Broders, 924 $.W.2d at 151-53. “[C]redentials alone do not qualify an expert to testify.” In re Bohannan, 388 S.W.3d 296, 305 (Tex. 2012). Rather, the court must “‘ensur[e] that those who purport to be experts ¢ruly have expertise concerning the actual subject about which they are offering an opinion.’ The test is ‘whether ‘the offering party [has] establish[ed] 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.” Id. at 305(emphasis added) (quoting Gammill, 972 S.W.2d at 719 and Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003), 111 S.W.3d at 121); accord Gammill, 972 S.W.2d at 718 (the expert’s proponent must demonstrate that the witness “possesses special knowledge as to the very matter on which he proposes to give an opinion”) (emphasis added). In other words, “[t]he evaluation of an expert’s qualifications entails a two-step inquiry: first, whether the witness possesses sufficientbackground in a particular field, and second, whether that background goes to the matter on which the witness is to give an opinion.” Gumtow v. State, No. 03-18-00077-CR, 2019 Tex. App. LEXIS10847, at *19 (Tex. App.— Austin Dec. 12, 2019, no pet.). Accordingly, an expert may be qualified for one opinion, but Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness 4876-4285-9270 v.1 3300.2038 not for another. E.g., Goodyear Tire & Rubber Co. v. Rios, 143 S.W.3d 107, 116 (Tex. App.— San Antonio 2004, pet. denied); Pack v. Crossroads, Inc., 53 S.W.3d 492, 507 (Tex. App. Fort Worth 2001, pet. denied). In sum, a trial court, in ruling on a challenge to a purported expert witness’ qualifications, must first examine the witness’ qualifications for each issue to which his/her opinions relate and then determine if the witness is qualified to testify about the issue based on his/her specialized knowledge, skill, experience, training, or education. If the court determines that the witness is unqualified to testify about an issue, his/her opinions regarding it must be excluded. 2. Principles Regarding Relevance of an Expert’s Opinions To be relevant, an expert’s testimony must be es sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.’” Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex. 2002)(quoting Robinson, 923 S.W.2d at 556)(in turn quoting United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985)). “Evidence that has no relationship to any issue in the case does not satisfy Rule 702 and is thus inadmissible under rule 702, as well as rules 401 and 402.” Exxon Pipeline Co. v. Zwahr, 88 S.W.3d at 629. 3. Principles Regarding Reliability of an Expert’s Opinions. Merely because a witness is an “expert” and has an opinion on an issue does not mean thatthe witness has the right to share the opinion with the jury. Rather, all expert testimony must be based on a reliable foundation. Gunn, 554 S.W.3d at 666; Volkswagen, 159 S.W.3d at 904. “The party offering or relying on expert testimony bears the burden of showing the expert’sopinion is reliable.” Plunkett v. Conn. Gen. Life Ins. Co., 285 S.W.3d 106, 115-16 Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness 4876-4285-9270 v.1 3300.2038 (Tex. App.— Dallas 2009, pet. denied). The proponent bears this burden “regardless of the quality or quantity of the opposing party’s evidence on the issue and regardless of whether the opposing party attemptsto conclusively prove the expert testimony is wrong.” Whirlpool, 298 S.W.3d at 639. “The trial court serves as a gatekeeper to screen out . . . unreliable expert evidence.” Zamora v. Champion Cooler Corp., No. 05-16-00577-CV, 2018 Tex. App. LEXIS 653, at *4 (Tex. App.—Dallas Jan. 23, 2018, no pet.) (emphasis added). In determining whether expert testimony is reliable, the trial court is “to rigorously examine the validity of facts and assumptions on which the testimony is based, as well as the principles, research, and methodology underlying the expert’s conclusions and the manner in which the principles and methodologies are applied by the expert to reach the conclusions.” Whirlpool, 298S.W.3d at 637; accord Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 579 (Tex. 2006). Texas Ruleof Evidence 702 lists three broad categories of expert testimony: “scientific, technical, or other specialized knowledge.” “When the expert testimony involves scientific knowledge, the expert’sconclusions must be ‘grounded in the methods and procedures of cience.’ Otherwise, the testimony is ‘no more than subjective belief or unsupported speculation.”” Mack Trucks, 206 S.W.3d at 578 (quoting E./. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995)). The Texas Supreme Court has identified the following non-exclusive factors that a trial court should consider when determining the reliability of expert testimony involving scientific knowledge: “(1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally 7 Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness 4876-4285-9270 v.1 3300.2038 accepted as valid by the relevant scientific community; and (6) the non-judicial uses that have been made of the theory or technique.” /d. at 578 n.6 (quoting Robinson, 923 S.W.2d at 557); accord Bohannan, 388 S.W.3dat 305. These factors, however, “may not apply when testimony is not scientific, but, rather, involves technical or other specialized knowledge.” Mack Trucks, 206 S.W.3d at 578. In such cases, a trial court is to determine whether “there is simply too great an analytical gap between the data and the opinion proffered.” /d. “Whether an analytical gap exists is largely determined by comparing the facts the expert relied on, the facts in the record, and the expert’s ultimate opinion.” Gharda USA, Inc. v. ControlSols., Inc., 464 S.W.3d 338, 349 (Tex. 2015). Such a gap exists when “the expert unreliably applies otherwise sound principles and methodologies, the expert’s opinion is based on assumed facts that vary materially from the facts in the record, or the expert’s opinion is based on tests or data that do not support the conclusions reached. ‘[A] claim will not stand or fall on the mere ipse dixit of a credentialed witness.’” /d. (quoting Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999)). B Application of Law to Elgamal’s Designation and Opinions 1 Plaintiff’s Designation of Elgamal Was Untimely and Insufficient Plaintiff served her Designation of Experts on November 3, 2021, two days late under the scheduling order of which Defendant requests the Court to take judicial notice. In her designation concerning Mr. Elgamal, Plaintiff identified Mr. Elgamal as a retained expert, but did not provide any substantive designation of his specific opinions and their bases and did not attach any expert report for Mr. Elgamal to that designation. The designation of Mr. Elgamal reads as follows: “Plaintiff anticipates that Khaled Elgamal, P.E. may be called upon to testify regarding the circumstances of safety issues as they relate to the case and the incident that is the substance of the case.” Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness 4876-4285-9270 v.1 3300.2038 (See Ex. “A” “Plaintiff’s Designation of Experts” p. 4). This designation is untimely and is insufficient as a matter of law under Tex. R. Civ. P. 194.2(f). Accordingly, it should be excluded. To the extent Plaintiff relies upon the Certificate of Merit signed by Mr. Elgamal in November, 2020 as his expert designation, it is also insufficient for the following reasons. In her Fourth Amended Petition,' Plaintiff attached a Certificate of Merit purportedly signed by Mr. Elgamal on November 17, 2020, wherein he opined that Oncor’s high voltage overhead line at issue was too close, horizontally, to the roof of the house where Sanchez was replacing the gutter. He attached to his Certificate of Merit one table from a 1997 edition of the NESC, without offering any basis or explanation for why that edition of the NESC applied or why that particular table of the NESC applied to the facts of this case. Apparently based on this one table from the 1997 edition of the NESC, Elgamal concluded that Oncor’s line was in violation of the NESC if it had less than a 7.5 foot horizontal clearance to the edge of the roof. (/d.). The Certificate of Merit filed as an attachment to Plaintiffs Fourth Amended Petition does not suffice as an expert report under Tex. R. Civ. P. 194.2(f). It was filed pursuant to Chapter 150, Texas Civil Practice & Remedies Code, to prevent dismissal of Plaintiff's case in response to Oncor’s Motion to Dismiss. It was not filed or served pursuant to Tex. R. Civ. P. 194.2(f) as an expert report, nor was it adopted or incorporated by reference in Plaintiff's untimely filed Designation of Experts. It also does not set forth all documents that Mr. Elgamal has been provided, reviewed or relied upon to support his opinions. Tex. R. Civ. P. 194.2(f). Accordingly, ' This petition has now been superseded by Plaintiff's Fifth Amended Petition filed on August 20, 2021. The Certificate of Merit of Khaled Elgamal, P.E. was not attached to Plaintiff's Fifth Amended Petition. However, the Court may take judicial notice of the Certificate of Merit attached to Plaintiff's Fourth Amended Petition. Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness 4876-4285-9270 v.1 3300.2038 the Certificate of Merit is inadequate as an expert designation and any opinions contained therein should be excluded. De Elgamal Has Not Shown Himself Qualified to Render His Opinion: Although Mr. Elgamal asserts in the Certificate of Merit that he is “familiar” with the NESC, he does not explain how he has acquired his familiarity with the NESC, or how he has become familiar with application of the NESC to the clearance requirements of overhead high voltage power lines like the one involved in this case. The mere fact that Mr. Elgamal holds a Professional Engineer license in Texas does not alone render him qualified to opine about any aspect of the NESC, (which includes multiple sections on a variety of topics), or its application to a specific set of facts at issue in this case. See, e.g., Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996)(held no abuse of discretion in excluding opinion of emergency room physician who lacked qualifications to opine on effectiveness of treatments a neurosurgeon could have provided or whether the lack of such treatment caused the patient’s death); Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex. 1998)(“Just as not every physician is qualified to testify as an expert in every malpractice case, not every mechanical engineer is qualified to testify as an expert in every products liability case.”); accord Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 806-07 (Tex. 2008) (a witness with an “undergraduate degree in chemistry and a master’s degree in polymer science and engineering,” was not qualified to testify “about the subject of wax migration and contamination in tires” because he had no specialized expertise in tire chemistry).” 2 See also Ghidoni v. Skeins, No. 05-18-00355-CV, 2019 Tex. App. LEXIS 3818, at *11-12 (Tex. App.— Dallas May 10, 2019, no pet.) (mem. op.) (attorney who had handled 15-20 malpractice cases and had testified as an expert in several others was unqualified to testify as an expert in a malpractice action involving water rights because he had no experience handling such matters); Gomez v. Am. Honda Motor Co., No. 04-14- 00398-CV, 2015 Tex. App. LEXIS3990, at *13-14, 15-16 (Tex. App.—San Antonio Apr. 22, 2015, pet. denied) Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness 10 4876-4285-9270 v.1 3300.2038 Similarly, Mr. Elgamal has not shown he has the requisite knowledge, education, experience, or training to competently testify about the proper application of the NESC’s requirements concerning clearances of high voltage overhead lines erected in 1965. Accordingly, his opinion must be excluded on that basis. 3. Elgamal’s Opinions are Not Relevant to This Cas: Mr. Elgamal’s opinions must also be excluded because they are not sufficiently tied to the facts of this case to be relevant. The Texas Utilities Code provides, in pertinent part, as follows: “(a) ... With regard to clearances, an electric utility that is not a municipal electric utility shall construct, operate, and maintain its transmission lines and distribution lines along highways and at other places in accordance with the national electrical safety code. ee (d) In this section, “national electrical safety code” means the National Electrical Safety Code, as published in March 1948 by the National Bureau of Standards, Handbook 30, as revised by Handbook 81, published by the National Bureau of Standards in November 1961.” Tex. UTIL. CODE § 181.045(a),(d)(emphasis added). A trial court may take judicial notice of the NESC as it relates to clearances of overhead high voltage electric lines, and must do so if a party supplies it with sufficient information concerning the NESC’s applicable contents. Hernandez v. Houston Lighting & Power Co., 795 S.W.2d 775,776-7 (Tex. App.—Houston [14" Dist.] 1990, no writ)(held trial court did not err in taking judicial notice of provision of NESC dealing with required line height for maintenance of overhead high voltage line); TEx. R. Evip. 201(b)(1),(2), (c)(2); see also, Humphreys v. Texas Power & Light Co., 427 §.W.2d 324, 331-2 (Tex. Civ. App.—Dallas 1968, writ ref’d n.t.e.)(noting (mem. op.) (“a veteran rider and mechanic with over 25 years’ experience working with and riding ATVs,” who had “investigated over 1,000 ATVaccidents and .. . testified in 27 states and in Canada” was unqualified to testify that the absence of a rear differential on an ATV caused the accident because he had never designed an ATV). Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness ll 4876-4285-9270 v.1 3300.2038 former article 1436a, REVISED CIVIL STATUTES, now Section 181.045 of the Utilities Code, expressly incorporated the NESC as to clearances). The court may take judicial notice of an adjudicative fact, such as the applicable contents of the NESC, at any stage of the proceeding. TEX. R. Evip. 201(d). The overhead line at issue in this case had been installed in the location it was in at the time of the incident for more than 50 years. The NESC, itself, had existed for decades before the installation of this overhead line. See TEX. UTIL. CODE § 181.045(d). An earlier edition of the NESC, (the 1961 edition), which was expressly incorporated by reference in Section 181.045(d) of the Utilities Code and its predecessor statute, article 1436a, Revised Civil Statutes, was in effect at the time of construction of the overhead line at issue. A true and correct copy of excerpted pages from the 1961 edition of the NESC pertaining to clearance of overhead high voltage electric lines is attached hereto and incorporated by reference herein as Exhibit “B.” Oncor requests the Court to take judicial notice of the contents of Exhibit “B,” and specifically Section 234(C) and Table 4 of Section 234(C). According to Table 4 of Section 234(C) of the 1961 edition of the NESC, at the time of the subject line’s original construction, overhead electric lines with a voltage capacity between 300 to 8,700 volts were required to have a horizontal clearance from any building of at least three (3) feet. (Ex. “B,” p. 69, Section 234(C) and Table 4). It is undisputed that the overhead line at issue has a nominal voltage capacity of 7,600 volts measured from phase to ground. It is also undisputed that the line’s horizontal clearance to the portion of the roof on which Mr. Sanchez was working was nearly double that required by the 1961 edition of the NESC. Moreover, another section of the NESC, Section 13(B), contains the language of the so- called “grandfather clause” which has existed in the Code since the late 1970’s. A true and correct copy of the excerpted pages from the 1984 edition of the NESC containing this section is attached Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness 12 4876-4285-9270 v.1 3300.2038 hereto and incorporated by reference herein as Exhibit “C.” Oncor requests the Court to take judicial notice of the contents of Exhibit “C,” and specifically the contents of Section 13(B) on page 46 of Exhibit “C.” That section, labeled “Existing Installations,” reads as follows: 1, Existing installations including maintenance replacements, which comply with prior editions of the code, need not be modified to comply with these rules except as may be required for safety reasons by the administrative authority. Where conductors or equipment are added, altered, or replaced on an existing structure, the structure or the facilities on the structure need not be modified or replaced if the resulting installation will be in compliance with the rules which were in effect at the time of the original installation. (Exhibit “C,” Section 13(B) of NESC, p. 46)(emphasis added). Despite the existence of a different horizontal clearance requirement in the edition of the NESC that was in effect at the time of the subject line’s construction, and the existence of the “grandfather clause” in the NESC for decades, Mr. Elgamal has chosen to rely upon the clearance requirements of another edition of the NESC that has no relevance to the specific overhead electric line at issue in this case. Mr. Elgamal offers no explanation why he has chosen to rely on an inapplicable edition of the NESC. Because his opinions, based on an inapplicable edition of the NESC, are not sufficiently tied to the facts of this case to enable the jury to determine whether Oncor’s specific overhead line in question in fact complied with the relevant NESC, those opinions are not relevant and must be excluded. 4. Elgamal’s Opinions Are Not Reliable Under the Analytical Gap Test Mr. Elgamal’s opinions and any expert testimony he would proffer should also be excluded because his opinions are not reliable. Elgamal’s opinion that the horizontal clearance of the powerline at issue did not meet NESC requirements is based on the material assumption that the 1997 edition of the NESC applied to the powerline in question. This opinion is Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness 13 4876-4285-9270 v.1 3300.2038 unreliable because it suffers from a fatal analytical gap, as its underlying assumptions are wrong. Although Mr. Elgamal purports to rely upon one edition of the NESC for his opinion, he does not cite any provision of the NESC or any other authority to support his conclusion that the 1997 edition of the NESC and its clearance requirements apply. In fact, to reach his a conclusion, he must ignore the NESC’s “grandfather clause” and the clearance requirements of the 1961 edition of the NESC in place at the time of this powerline’s construction in 1965. (Ex. “B,” Ex. “C”). Mr. Elgamal’s failure to cite any authority for his interpretation of the NESC is fatal to his opinion’s reliability. Even if Mr. Elgamal is relying upon his experience applying the NESC, he has not shown how that experience is grounded in a reliable methodology to support his conclusion in this case. His mere conclusion that the 1997 edition of the NESC applies is not sufficient as a matter of law. As noted by one leading commentator on the admissibility of expert testimony in Texas: An expert’s declaration that a term has an industry meaning or that a practice is standard is insufficient; the expert needs to present some support for the declaration. “If the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” “It is not enough for the expert to explain that he or she is resting the opinion on his or her education or experience.” “The trial court’s gatekeeping function requires more than simply “taking the expert’s word for it.” Harvey Brown & Melisa Davis, supra p. 16, 52 Hous. L. Rev. at 156-157 (quoting Edward J. Imwinkelried, Serendipitous Timing: The Coincidental Emergence of the New Brain Science and the Advent of an Epistemological Approach to Determining the Admissibility of Expert Testimony, 62 Mercer L. Rev. 959, 975 (2011)(emphasis added), and Fed. R. Evid. 702, Advisory Committee’s Note); accord Davis, 2012 U.S. Dist. LEXIS 115421, at *13-14 (holding that an expert’s opinionthat NESC § 218 also applied “to ‘properly maintaining vegetation around any Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness 14 4876-4285-9270 v.1 3300.2038 overhead lines, especially involving trees, whether they are electric lines, guy wires, telecommunication lines andmessengers, cable television cables, etc.” was unreliable because it was entirely subjective and notbased on any relevant experience). In other words, Mr. Elgamal has grounded his ultimate opinion (that Oncor’s powerline did not meet NESC clearance requirements) on an assumption about the facts, (that the clearance requirements of the 1997 edition of the NESC applies), that varies materially from the actual facts (the subject line was constructed in 1965 under the clearance requirements of an earlier NESC edition). Gharda USA, Inc. v. ControlSols., Inc., 464 S.W.3d 338, 349 (Tex. 2015). In sum, Mr. Elgamal’s opinions regarding line horizontal clearance are contrary to actual evidence and wholly subjective. They suffer from a fatal analytical gap and must be excluded as unreliable. 5. Elgamal’s Opinions Are Not Reliable under the Robinson Factor: Although the Robinson factors are not as readily applicable to the Mr. Elgamal opinions, as they are more of a technical than pure scientific nature, nevertheless, Mr. Elgamal’s opinions are also unreliable when measured against the Robinson factors. (1) The extent to which the theory has been or can be tested. This first Robinson factor is not readily applicable to Mr. Elgamal’s opinions. However, Mr. Elgamal has not demonstrated that his theory, (that an edition of the NESC issued three decades after a powerline’s construction applies to this powerline), can be or has been tested. On the contrary, the only relevant test of this theory is close inspection of other provisions of the NESC, itself, including the grandfather clause and the 1961 edition of the NESC in place at the time of the subject line’s construction. Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness 15 4876-4285-9270 v.1 3300.2038 (2) The extent to which the technique relies upon the subjective interpretation of the expert. Application of the second Robinson factor to Mr. Elgamal’s opinions demonstrates their unreliability, because his theory rests solely upon his own subjective interpretation of the NESC, which is not supported by any scientific or technical literature, or any other reliable methodology. (3) Whether the theory has been subjected to peer review and/or publication. Mr. Elgamal’s opinions are unreliable under the third Robinson factor, because he has cited no peer-reviewed literature or other publication supporting his interpretation of the NESC and conclusion that the clearance requirements of the 1997 edition apply. (4) The technique’s potential rate of error. The fourth Robinson factor, potential rate of error, does not readily apply to Mr. Elgamal’s opinions. However, Mr. Elgamal has supplied no evidence to show that his theory has been shown to be correct or accepted by other experts on the NESC or the courts in other cases. Thus, the potential rate of error of his theory is unknown, making it of doubtful reliability. (5) Whether the underlying theory or technique has been generally accepted as alid by the relevant scientific community. The fifth Robinson factor demonstrates the unreliability of Elgamal’s opinions. He offers no evidence whatsoever that his theory applying the clearance requirements of the 1997 edition of the NESC to a powerline constructed in 1965 has been accepted by the community of engineers who have expertise in proper application of the NESC to clearance requirements of high voltage overhead power lines. It is certainly not accepted by one of the leading experts in the field, B. Don Russell, Ph.D., P.E., Oncor’s designated electrical engineering expert. Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness 16 4876-4285-9270 v.1 3300.2038 (6) The non-judicial uses that have been made of the theory or technique. Finally, the sixth Robinson factor does not support the reliability of Mr. Elgamal’s opinions, as he has provided no evidence to demonstrate that his theory has been applied by knowledgeable experts in the NESC outside of legal proceedings. Thus, if the Court is inclined to apply the Robinson factors to Mr. Elgamal’s theory in this case, they demonstrate its unreliability and compel an order excluding Mr. Elgamal’s testimony. B. Mr. Elgamal’s Testimony Should Be Excluded Under Tex. R. Evid. 403. Mr. Elgamal’s opinions are inadmissible under Texas Rule of Evidence 702 and under Robinson and later decisions as set forth above. However, even if the Court were to find some probative value to Mr. Elgamal’s testimony, such probative value, if any, is substantially outweighed by the dangers of confusion of the issues, misleading of the jury, and unfair prejudice to Oncor. Accordingly, Mr. Elgamal’s testimony should be excluded under Tex. R. Evid. 403 as well as under Tex. R. Evid. 702. Both the U.S. and Texas Supreme Courts have acknowledged that even expert testimony which might be of some probative value and therefore not completely inadmissible under Tex. R. Evid. 702 may, nevertheless, be found to be inadmissible when applying that testimony against the trial concerns expressed by Rule 403 of the Texas (or Federal) Rules of Evidence. See, e.g., Robinson, 923 S.W.2d at 557 (“If the trial judge determines that the proffered testimony is relevant and reliable, he or she must then determine whether to exclude the evidence because its probative value is 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.””); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595, 113 S.Ct. 2786, 2798 (1993)(““Expert evidence can be both powerful and quite misleading because of the Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness 17 4876-4285-9270 v.1 3300.2038 difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 of the present rules exercises more control over experts than over lay witnesses.’”)(quoting Weinstein, 138 F.R.D. 631, 632 (1991)). If Mr. Elgamal were permitted to testify that the clearance requirements of the 1997 edition of the NESC applies to Oncor’s powerline, then the jury would be misled to believe through the first electrical engineer they hear that the law required Oncor to comply with a version of the NESC issued more than three decades after the powerline was constructed, despite the existence of a long-standing provision of the NESC, itself, stating just the opposite. The unfairly prejudicial effect this misleading testimony could have on Oncor’s defense might not be undone by the jury later hearing testimony from Oncor’s expert about the NESC’s “grandfather clause” and his opinion that the earlier NESC edition and its clearance requirements in fact apply to this powerline. It is probable the jury would be misled by Mr. Elgamal’s testimony to believe that Oncor was making some “hyper-technical excuse” for why it need not comply with more recent editions of the NESC, as some jurors might mistakenly believe is Oncor’s duty. By the time the jury hears the reality that the NESC, itself, and long-standing industry practice supports Oncor’s position, the damage of this misleading testimony and its unfair prejudice to Oncor may very well have irreversibly occurred. Even if the jury were not unfairly prejudiced against Oncor by this misleading testimony, they undoubtedly would be hopelessly confused about which edition of the NESC applied and what the law required. This fact would tend to make jury deliberations lengthier and subject to confusion about the applicable legal standards, their inability to reach a proper verdict more likely, and the need for a re-trial almost assured. The reality of these trial concerns presents a necessary case for the Court to exercise its gatekeeping role and its time-honored function as the Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness 18 4876-4285-9270 v.1 3300.2038 umpire who tells the jury what law applies and what that law provides. Only in this way can the parties be ensured that they will receive a fair and impartial verdict based on clear principles of law and reliable expert testimony. Accordingly, Mr. Elgamal’s testimony should be excluded under Texas Rule of Evidence 403. Il. CONCLUSION Accordingly, based upon the arguments and authorities set forth above, the Court should exclude Khaled Elgamal as an expert witness under Texas Rules of Evidence 702 and 403, and prevent him from offering any expert opinions at the trial of this case, including, without limitation, the opinions that the 1997 edition of the NESC applied to Oncor’s powerline and that Oncor failed to meet the clearance requirements under that edition of the NESC. Mr. Elgamal is not qualified to give these opinions, they are not relevant to the facts of this case, nor are they reliable, and their probative value is non-existent and is substantially outweighed by the dangers of misleading the jury, confusion of the issues, and unfair prejudice to Oncor, WHEREFORE, PREMISES CONSIDERED, Oncor respectfully requests that the Court will set this Motion for hearing and, following hearing of the same, the Court will grant Oncor’s Motion to Exclude Khaled Elgamal as an Expert Witness in all things, will order that Khaled Elgamal may not present any expert testimony at trial, including any opinion that Oncor’s powerline failed to meet the clearance requirements of the 1997 edition of the NESC, and any other expert opinion he may have in this case, and for such other and further relief, both at law and in equity, to which Oncor may be justly entitled to receive. Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness 19 4876-4285-9270 v.1 3300.2038 Respectfully submitted, BURFORD & RYBURN, L.L.P. By: /s/ Lance C. Travis Lance C. Travis State Bar No. 00797568 Andrew. C. Cox State Bar No. 24036409 500 North Akard, Suite 3100 Dallas, Texas 75201 (214) 740-3131(Telephone) (214) 740-2828 (Facsimile) ltravis@brlaw.com cox@brlaw.com Attorneys for Defendant Oncor Electric Delivery Company LLC CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the above and foregoing instrument has been served upon all known counsel of record by via E-service on this 20th day of December, 2021. /s/ Lance C. Travis Lance C. Travis Oncor Electric Delivery Company LLC’s Motion to Exclude Khaled Elgamal as an Expert Witness 20 4876-4285-9270 v.1 3300.2038 [>.4a tT ihe CAUSE NO. DC-20-06053 SYLVIA TOMASA OLVERA, IN THE DISTRICT COURT Individually and on behalf of the ESTATE OF JUAN GABRIEL BASURTO SANCHEZ, Plaintiff. vs. 192NP JUDICIAL DISTRICT NATHALIE BAIER, RICARDO SANCHEZ CHAVEZ, INDIVIDUALLY AND D/B/A RS GUTTERS, GUARDIAN EXTERIORS INC., AND ONCOR ELECTRIC DELIVERY COMPANY LLC. Defendants. DALLAS COUNTY, TEXAS PLAINTIFF’S DESIGNATION OF TESTIFYING EXPERTS TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Plaintiff, Sylvia Thomasa Olvera, Ind. And on Behalf of the Estate of Juan Gabriel Basurto Sanchez, and files this, her Designation of Expert Witnesses and would show this Honorable Court the following: I EXPERTS Plaintiff has designated their experts and provided all other information and documentation concerning said experts pursuant to Texas Rule of Civil Procedure 194.3 and hereby incorporates said designations herein. EXPERTS (NOT RETAINED): All agents, representatives, employees, paramedics, doctors, and Custodian of Records of the following facilities: PLAINTIFF’S DESIGNATION OF TESTIFYING EXPERTS PAGE 1 Dallas Police Department 1400 S. Lamar St. Dallas, Texas 75215 (214) 671-3001 Dallas Fire-Rescue Department Jerrod Anderson Michael R. Aylward Cooper Sewell Kevin D. Paul Mario E. Pifia Dallas Fire Rescue 1901 Irving Boulevard Dallas, Texas 75207 (214) 670-5466 Plaintiff anticipates that each of the above-referenced experts may be called upon to testify as to their investigation, findings, conclusions and opinions, which they formed. These experts are knowledgeable regarding the incident and because of their training through accredited schools and seminars and the nature of their day-to-day experience, are qualified to render an opinion regarding what caused the incident, All agents, representatives, treating physicians, nurses, doctors, practitioners, technicians, employees, and Custodian of Records of the following facilities: City of Dallas EMS P.O. Box 843835 Dallas, Texas 75284 (800) 585-5242 Parkland Health & Hospital System Dr. Alex Koyfman, M.D. Dr. Thomas Andrew Schaeffer, M.D. Dr. Stephen James Weiss, M.D. Dr. Po-Hong Liu, M.D. Dr. Jillian Jacobson, M.D. Dr. John C. Kubasiak, M.D. Dr. Thomas Shoultz, M.D. 5201 Harry Hines Boulevard Dallas, Texas 75235 (214) 590-4900 PLAINTIFF’S DESIGNATION OF TESTIFYING EXPERTS PAGE 2 Lakeside Physicians Lawrence Hess, APRN, FNP-BC 1322 Paluxy Road, Suite 2 Granbury, Texas 76048 (817) 579-1642 Pecan Valley Centers Granbury Clinic Jerry Scheen, APRN Caresa Fenner, QMHP-CS 104 Pirate Drive Granbury, Texas 76048 (817) 573-26