Toward Greater Certainty: No-Evidence Challenges To Expert Opinions

An expert's opinion admitted into evidence without objection generally constitutes probative evidence, even if the basis for the opinion is unreliable – that is, it is some evidence. But if an expert bases his opinion on assumptions that vary from the actual facts, then the opinion is no evidence and legally insufficient to sustain a finding. Determining the line between "some evidence" and "no evidence" is tough.

The Texas Supreme Court explored those boundaries in Southwestern Energy Prod. Co. v. Berry-Helfand, No. 13-0986, 2016 Tex. LEXIS 480 (Tex. June 10, 2016). In that case, Helfand, an engineer, sued Southwestern Energy Production Co. (SEPCO) for misappropriation and theft of trade secrets arising from its use of a "treasure map" identifying drilling prospects. After SEPCO executed a confidentiality and noncompete agreement that required SEPCO to maintain the information's confidentiality, use it solely to evaluate the purchase of the information, and return or