Pretrial Objection to Evidence In Texas

Texas case law suggests that it may be sufficient to object to expert evidence before trial, as occurred in Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 713 (Tex. 1997). In the case of Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998), the court used the disjunctive "or" in five different instances to suggest that expert evidence can be objected to before trial or when the evidence is offered. See Harvey Brown, Procedural Issues Under Daubert, 36 HOUS. L. REV. 1133, at 1163, n.194 (1999). In a Fifth Circuit case, Tanner v. Westbrook, 174 F.3d 542, 545 (5th Cir. 1999), the federal court treated a denial of a pretrial motion to strike as being tantamount to the denial of the motion in limine; however, the trial court in Tanner specifically provided in its order that it will "pass on the qualifications of the said witnesses at trial." Id. Thus, there was no pretrial ruling.