Chapter 14 — Expert Witnesses and Robinson/Daubert Challenges
Overview of Expert Testimony in Dram Shop Cases
Expert testimony often determines the outcome of dram shop litigation. The 2025 Raoger decision has fundamentally shifted the landscape by rejecting expert testimony based solely on BAC calculations without observational anchors. This creates powerful new opportunities for defense counsel to exclude or limit plaintiff’s experts while presenting credible defense experts who emphasize the reliability gaps in circumstantial evidence.
Plaintiff’s Expert Categories and Enhanced Vulnerabilities Post-Raoger
1. Toxicologists and Retrograde Extrapolation
Typical Plaintiff Approach: Plaintiff’s toxicologist will attempt to work backward from a post-incident BAC test (or estimated consumption) to calculate what the patron’s BAC “must have been” at the time of service. They then argue this BAC level would have produced obvious signs of intoxication.
Enhanced Vulnerabilities Post-Raoger:
- Legal Standard Violation: Raoger held that expert opinions about how someone “would have” appeared based solely on BAC constitute “pure speculation”
- Missing Observational Foundation: The Court emphasized that circumstantial evidence cannot stand alone without direct evidence of patron’s appearance
- Temporal Disconnect: Experts cannot bridge the gap between post-accident calculations and real-time observations at service
- Statutory Misinterpretation: BAC calculations cannot prove what was “apparent to the provider” at the time of service
Post-Raoger Expert Deposition Strategy
Pre-Deposition Preparation:
- Obtain copy of Raoger decision and key quotes
- Research expert’s published articles and prior testimony for inconsistencies
- Prepare demonstrative aids showing gaps in observational evidence
- Identify specific time-of-service window for testimony focus
Sample Questions Incorporating Raoger:
- “Dr. Smith, you weren’t present at [Bar Name] when [Patron] was served alcohol, correct?”
- “You never observed [Patron] personally at the time of service, did you?”
- “You’re aware that the Texas Supreme Court held in Raoger Corporation v. Myers that expert opinions about how someone ‘would have’ appeared based solely on BAC constitute ‘pure speculation,’ aren’t you?”
- “The Court in Raoger emphasized that circumstantial evidence cannot stand alone without direct observational evidence, correct?”
- “Your opinion attempts to bridge BAC calculations to appearance, which is exactly what Raoger rejected, isn’t it?”
Enhanced Robinson/Daubert Motion Strategy Post-Raoger
2. Legal Framework Strengthened
The Raoger decision provides controlling Texas Supreme Court authority that expert testimony attempting to prove obvious intoxication through BAC calculations alone is impermissible speculation.
Sample Motion Language:
DEFENDANT’S MOTION TO EXCLUDE EXPERT TESTIMONY UNDER ROBINSON, DAUBERT, AND RAOGER
I. CONTROLLING AUTHORITY BARS PLAINTIFF’S EXPERT TESTIMONY
In Raoger Corp. v. Myers, 711 S.W.3d 206 (Tex. 2025), the Texas Supreme Court unanimously held that expert opinions about how a patron “would have” appeared based solely on BAC constitute “pure speculation” and cannot establish the statutory requirement that intoxication was apparent to the provider.
II. DR. [NAME]’S TESTIMONY VIOLATES RAOGER
A. Impermissible Speculation Dr. [Name]’s opinion attempts to bridge BAC calculations to visible appearance without any observational foundation. This is precisely the type of “inferences upon inferences” that Raoger rejected as insufficient to establish obvious intoxication.
B. Contradicts Statutory Standard The Court emphasized that “the relevant inquiry is the customer’s appearance to the dram shop when he was served—not whether the customer drank an amount of alcohol that may or should make some people very intoxicated.” Dr. [Name]’s testimony focuses on alcohol consumption rather than apparent intoxication.
III. PRAYER
WHEREFORE, Defendant requests exclusion of Dr. [Name]’s testimony, attorney’s fees, and costs.