dissent">LEE ANN DAUPHINOT,

Justice, dissenting.

I must respectfully dissent to the majority’s holding that the trial court did not abuse its discretion in allowing Dr. Donahue and Dr. Kefler to testify “concerning the forces necessary to cause the injury resulting in the victim’s death.” These doctors did not confine their testimony solely to their observations gleaned from studying the “various tests, examinations, and treatments given to the victim”; rather, they ranged freely into speculation regarding causation and Appellant’s culpable mental state.

The majority correctly points out that “[t]he role of the trial court in qualifying experts is to ensure ‘that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion’ ” by requiring the party offering the expert’s testimony to show that the witness possesses “special knowledge as to the very matter on which he proposes to give an opinion.” The majority then justifies the admission of both doctors’ testimony on the basis that, because their testimony “falls into the clinical medicine category, as opposed to a ‘hard’ science category,” we must be “flexible” to the point of requiring no actual expertise on the part of expert witnesses in the specific area about which they are offering their opinions.

Not only did Dr. Kefler deny having any expertise or training in the field of forensic pathology, but he also specifically testified outside the presence of the jury that he did not know the degree of force necessary to cause the child’s injuries. He stated, “I don’t, nor is that my area of expertise to know the physics or the forensic pathology of what would cause this exact sort of injury.” Indeed, Dr. Kefler acknowledged that he could not quantify the type of force that would be required to cause the inju*328ries sustained in this case, stating, “That is not my area of expertise as a clinical physician.” While he testified that there were studies dealing with this particular subject, he did not know what they were. Despite this evidence concerning his qualifications, however, Dr. Kefler was permitted to testify before the jury to the degree of force necessary to inflict the injury suffered by the child. Specifically, Dr. Kefler testified in pertinent part as follows:

[T]here are different kinds of head injuries that children sustain. There is a child who can just fall or hit a soccer ball and have a little loss of the consciousness and that wouldn’t cause injury like this.

Just an injury to the — pop to the head because you are upset with him wouldn’t cause an injury like this.

This is more what I call brute force, something that-like I said, it wouldn’t just be a fall on to a carpeted floor, fall off a bed or against a dresser.

You know, it’s sort of an injury that you see when the child is coming in after a car wreck, when there has been all sorts of forces hit the head, from the hitting against the dashboard.

If it’s a fall, it would have to be a fall from a several story building. I have seen children who have fallen off a balcony from several stories up that had an injury like this.

If a person inflicted it, it’s not the sort of thing that anybody would do just to give a little physical punishment to a child. It’s more of a violent thing.

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It’s — it wouldn’t be the sort of-sort of mild physical punishment that someone might give and then have the child go stand in the corner for 15 minutes.

It would be — you know, I can imagine someone picking a child up by the ankles and whamming them against the side of the bathtub, that sort of thing, if you didn’t have any sort of instrument, or just a blunt blow to the head using all of the force you have.

Dr. Kefler also testified that such “brute force” could be generated by a fall from a forty-story building or being hit on the head with a baseball bat.

Dr. Donahue testified outside the presence of the jury that his “strong feelings and strong opinions are based on the literature and the experience of others who have seen more than I of this type of injury.” Yet, he could cite to no such studies or literatüre. Dr. Donahue also testified that he had no expertise in the area of forensic pathology and no training of any kind in forensic medicine. He stated, “So I certainly don’t claim to be a forensic expert, and I’m not even sure what forensics is, but I certainly don’t want to be a neuropathologist.” Furthermore, Dr. Donahue candidly acknowledged that his conclusions were derived from speculation. He testified that parents want an' explanation of what made their children sick, so “a clinician, when a patient comes into his hospital, speculates on a million things but when he is finished-or when she is finished speculating, they come down with an opinion.”

Nevertheless, Dr. Donahue was permitted to testify before the jury regarding the “settings in which this injury would occur.” Dr. Donahue described three such settings: (1) “falls from a high distance, i.e. several stories”; (2) “children involved in high velocity motor vehicle accidents”; and (3) “children who have been injured non-accidentally or children who have been dashed against a wall or otherwise brutalized.” Dr. Donahue testified that such injuries could be caused by a fall of at least ten feet or by the child’s head being run over by the tire of a car traveling five *329miles an hour. He also stated that these “severe traumatic injuries” could be suffered by a child who is held by his feet and thrown against a wall or dropped forcefully against a hard object. In particular, Dr. Donahue gave the following example: “A child who is in a car and flies out of a car like they are in a car accident and they are in an infant seat and the infant seat flies out of the car and flies up against the wall.” When asked whether a human being could generate a sufficient amount of force with one blow to cause the type of injury suffered by the child in this case, the doctor responded, “If the person giving the blow was Hulk Hogan and they were running a[s] fast as they could when they delivered the punch and they had about a ten-yard start, yes.”

Under the old rule, once a threshold level of expertise was established, any weaknesses or defects in a witness’s qualifications went to the weight of his testimony, not to its admissibility. The jury was credited with the ability to determine whether the “expert’s” testimony was worthy of belief. The jury is no longer credited with sufficient judgment to make this determination. Rather, the trial judge is now the gatekeeper, deciding in advance whether a purported expert is worthy of the jury’s confidence. I am not aware that a judge’s training has been expanded into scientific or other areas of expertise. It is not, however, the function of an intermediate appellate court to rewrite the rules of evidence or to criticize them. Our duty is simply to try to understand the rules and to determine whether a trial court abused its discretion by its rulings on evidentiary matters.

In the case now before us, the majority holds that the trial court properly ignored the doctors’ uncontroverted testimony that they were not qualified to testify to causation and mental state. To support its holding, the majority relies on the court of criminal appeals’ observation that the Daubert inquiry must be flexible to account for those fields of study outside of the so-called “hard” sciences. A flexible test should not, however, dispense with all standards for determining whether a witness is qualified to testify as an expert and the reliability of such testimony, particularly where, as here, the proffered “expert” witnesses deny having any expertise in the subject matter about which they will testify.

My fear is that, in the name of flexibility, we are developing four different standards for the admission of expert testimony. Although we now have a single set of evidentiary rules for both civil and criminal trials, we appear to be applying these rules differently depending on who is offering the evidence in a particular case. The rules of evidence should be applied in the same manner whether the evidence is offered by the State, a criminal defendant, a civil plaintiff, or a civil defendant. When application of the rules is determined by the party offering or opposing the evidence, we risk a fearful departure from the rule of law.

In Pack v. Crossroads, Inc., this court held that the plaintiffs did not demonstrate that Dolores Alford, a nurse, had particular expertise in the field of nursing home standards of care and, therefore, the trial court did not err in finding her unqualified to testify to those standards in a malpractice action against a nursing home.1 We held that Alford’s testimony on this subject was properly excluded despite the fact that Alford held both a nursing diploma and a Ph.D.2 At trial, Alford explained that she *330had been a staff nurse and a clinical instructor in a licensed vocátional nurse program, the education director of Seaton School of Nursing, an assistant professor of nursing at Texas Women’s University in Houston, and was currently a consultant with the Department of Justice to determine why troubled, government-run nursing homes are unable to meet regulations.3 Alford had also received a fellowship in the American Academy of Nursing, the Honorary Nurse Practice Award from the American Nurses Association, and had been named a distinguished alumnus at Louisiana State University and the University of Texas.4 Alford testified that her experience included consulting nursing homes on resident problems and teaching aides in nursing homes.5 In addition, Alford stated that she had written many published works about nursing care in general and in nursing homes specifically and that she had worked with nurses in nursing homes to assess the conditions of residents and develop a care plan to meet their needs.6

After acknowledging this training and experience, we pointed out that Alford never fully explained her. responsibilities with the Texas Department of Human Services and that she claimed to be under a federal gag order prohibiting her from revealing specifics about her job with the Department of Justice.7 We also noted that Alford conceded that she had never worked as a staff nurse or a charge nurse in a nursing home, had never been an administrator of a nursing home, had never performed nursing functions or routine shift work in a nursing home on a day-today basis, and had not delivered health care to someone other than a relative since 1991.8 For these reasons, we concluded that the plaintiffs did not meet their burden to establish that Alford possessed specific expertise on the subject of the standards of care for a nursing home-.

In Yard v. Daimlerchrysler Corp., we held that a medical pathologist was not qualified as an expert competent to testify whether a driver’s skull fracture was caused by the failure of his vehicle’s air bag to deploy.9 We pointed out that the pathologist, Dr. Friedlander, indicated in his deposition testimony that he was not “completely comfortable” with his expertise in this area.10 Friedlander admitted that he did not know what types of forces were required to cause this particular fracture and that he did not try to calculate what forces would be generated with and without an air bag “because that would be pretentious and that would be getting out of the area that I am — that I’m good at. So I’ll leave these to the biomechanics people and ... the engineering people.”11 In holding that the trial court did not err by concluding that Friedlander was not qualified to testify about whether the driver would have survived the accident if his air bag deployed, we reasoned as follows:

This record shows that Friedlander’s opinions on whether a failed air bag caused Bradley’s injuries were based more on Friedlander’s review of the published literature about basilar skull fractures and the statistical effects of air *331bags on fatality rates than on his expertise as a medical doctor and forensic pathologist. While Friedlander’s medical training and experience may have contributed to his ability to understand the published literature, there is no evidence that he had any more specialized knowledge about the effects of deployed or failed air bags in automobile accidents than other well-educated individuals with access to the same literature.12

Here, when asked what theories, techniques, or methodologies he utilized to develop his opinion on the degree of force necessary to cause the injury present in this case, Dr. Kefler responded:

These areas have been studied — I’m not here to quote chapter and verse in those studies. I wasn’t told to look it up, but I don’t intend to do that.

But there have been studies and experiments — it’s like a crash test. It takes this amount of G-forces and factors and physics in order to cause an injury of this degree of severity and an injury that we can compare to just falling off of a bed, for example, or bumping the head against a dresser. It just doesn’t cause this degree of severe injury.

Dr. Kefler stated that he relied on “[p]eer review journal studies and experiments, [and] clinical retrospective studies.”

Similarly, Dr. Donahue testified that his conclusions were drawn from his review of the published literature about the causes of head injuries to children. As in Yard, while the doctors’ medical training and experience may have contributed to their ability to understand the relevant literature, there is no evidence that they had any more specialized knowledge about the causes of the child’s injuries in this case than other individuals with access to the same literature. As did Dr. Friedlander, Dr. Kefler and Dr. Donahue both candidly admitted their lack of expertise in this area. While the old rule allowing the jury to determine the weight to be given the testimony would have permitted all three doctors and nurse Alford to present their opinions to the jury, the new rule establishes a different threshold of admissibility. That threshold, however, must be measured by the same benchmark whether the testimony is offered by the State or a criminal defendant, a civil plaintiff or a civil defendant. Equal application of the law is the foundation of due process guarantees and, more essentially, of the rule of law.

Because the standard we set forth in the case now before us is in direct conflict with the standard we have established when similarly qualified expert testimony offered by a civil plaintiff has been disallowed, I respectfully dissent to the majority’s holding regarding the admissibility of Dr. Kefler’s and Dr. Donahue’s testimony on the issue of causation.

. 53 S.W.3d 492, 505-07 (Tex.App.-Fort Worth 2001, pet. denied).

. Id. at 506.

. id.

. Id.

. Id. at 506-07.

. Id. at 507.

. Id.

. 44 S.W.3d 238, 241-42 (Tex.App.-Fort Worth 2001, no pet.).

. Id. at 241.

. Id. at 242.

. Id.

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