KERR-MCGEE CORPORATION, ET AL. v. JIMMY HELTON, ET AL. (concurring)

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No. 02-0356

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Kerr-McGee Corp., et al., Petitioners

v.

Jimmy Helton, et al., Respondents

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On Petition for Review from the

Court of Appeals for the Seventh District of Texas

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Justice Hecht, joined by Justice Wainwright, concurring.

I join in the Court=s opinion with this clarification. I agree that there was an Aanalytical gap@[1] in Riley=s testimony: his factual premises C basically, the geology of the Lower Puryear, the characteristics of other wells producing in that formation, and the factors affecting a well=s production C do not appear to support his conclusion that the additional well he hypothesized Kerr-McGee should have drilled would have produced at the same rate as the Holmes 17 1 and the Fleetwood Trust 16 1 wells. For example, Riley believed that the hypothesized well would have encountered only a 60' zone of production, shallower than the 73' zone in the Holmes 17 1 well and the 79' zone in the Fleetwood Trust 16-1 well, and that production would be affected by the depth of the zone, yet he did not square these premises with his conclusion that the three wells would produce at equal rates except to say that it was possible that other factors in each well might have affected production differently. This failure, however, indicates a deeper flaw in Riley=s testimony. Even if he had testified to some lesser level of production from the hypothesized well, it is far from clear that his prediction could ever be much more than a guess, and a guess is not admissible evidence, even if made by an expert. Kerr-McGee drilled nine wells trying to hit the Lower Puryear. Two were successful, and a third was marginally profitable. If an expert could reliably have predicted where to drill, and if Kerr-McGee would have preferred to drill only profitable wells, then surely it would have acquired that expert=s advice instead of drilling six unsuccessful wells at considerable cost. Reliability does not mean one thing outside the courtroom and something less inside. If the industry would rely on expert analysis like Riley=s to determine where to drill, then it was reliable for purposes of the trial. If not, it should not have been admitted.

Nathan L. Hecht

Justice

Opinion delivered: August 28, 2003

[1] See Gammillv. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727 (Tex. 1998) (indicating that a test for reliability under Rule 702 of the Texas Rules of Evidence is Awhether >there is simply too great an analytical gap between the data and the opinion proffered,=@ quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)).