Sufficiency Challenge Not Waived by Failure to Contest Admissibility, Says Texas Supreme Court

Suppose an expert testifies for plaintiff, in conclusory terms, that defendant's conduct showed conscious indifference to the rights, safety, or welfare of others. Suppose further that defendant does not challenge the admissibility of the expert's testimony at trial. On appeal, however, defendant contends there was insufficient evidence to sustain the jury's finding of gross negligence, because the expert's conclusory and unsubstantiated opinion was not competent evidence of conscious indifference. Did the defendant waive the sufficiency issue on appeal by failing to seek the exclusion of the expert's testimony at trial?

Not according to the Texas Supreme Court, as we learn from a decision to which Jim Dedman alerts us. See Coastal Transp. Co., Inc. v. Crown Central Petroleum Corp., No. 01-0301 (Tex. Sup. Ct. May 14, 2004).