Full opinion text
BAKER, Justice, delivered the opinion of the Court, in which ENOCH, SPECTOR, ABBOTT and HANKINSON, Justices, join. This case involves Richard Ellis’s Jones Act claims for injuries he sustained aboard a vessel owned by Maritime Overseas Corporation. The trial court rendered judgment on the jury’s verdict for Ellis for actual and exemplary damages and awarded prejudgment interest. The court of appeals affirmed the actual damages award, but reversed the awards of exemplary damages and prejudgment interest. Maritime asserts that the court of appeals used an improper standard to review the factual sufficiency of Ellis’s damages evidence. Maritime also contends that the court of appeals should have applied a Dau-bert-Robinson-Havner review to determine whether any well-founded scientific methodology supported some of the actual damages award. We conclude, under the facts of this case, that the court of appeals properly disposed of Maritime’s claims. Accordingly, we affirm the court of appeals’ judgment. I. BACKGROUND A. Facts Ellis served as a steward’s assistant in the housekeeping and galley department aboard the S/T Overseas Alaska, a 700-foot oil tanker owned by Maritime. In late August 1982, while the ship was at sea, the chief steward attempted to control a roach problem by spraying Diazinon, an industrial strength pesticide, in small, enclosed, unventilated areas, including the pantry, a storeroom and other nearby areas. The chief steward did not dilute the Diazinon properly. On the morning after the spraying, crew members noticed a strong insecticide odor. The captain ordered several crew members, including Ellis, to clean up the excess Diazinon. Ellis participated in the cleanup for about five hours without wearing inhalation protective gear or special equipment to protect his skin from contact with the insecticide. He was exposed to Diazinon levels up to 200 times over what is considered safe for human exposure. After the cleanup, Ellis complained of a headache, eye irritation, and a runny nose. The ship reached New Orleans two days later, and Ellis was sent to the New Orleans General Hospital Emergency Room. At the hospital, emergency room personnel found Ellis had myosis with pupil constriction, muscle twitching, and muscle weakness along with other symptoms. Ellis’s blood tests revealed that he had depressed levels of ace-tylcholinesterase, an essential enzyme. The insecticide Diazinon is an organophosphate, which is toxic to humans in varying degrees. The emergency room doctor testified at trial that on a scale of one to ten, with one representing normal health and ten representing death, Ellis suffered organophosphate exposure of a level of six to seven. The examining physician concluded that Ellis suffered from Diazinon exposure and gave Ellis medication for eye problems. The examining physician did not hospitalize Ellis, but she recommended follow-up care. About a month later, Ellis saw another doctor for continuing problems with his eyes. Months after his exposure to Diazinon, Ellis began to complain of memory defects, irritability, gastrointestinal problems, anxiousness, fatigue, indigestion, nausea, muscle pain and stiffness, leg cramps, dizziness, insomnia, high blood pressure, and black-out spells. At trial, Ellis’s experts testified that his Diazinon exposure had caused him to suffer from “delayed neurotoxicity” or “neu-ropathy.” Ellis’s experts also testified that his condition is irreversible. B. Procedural History About ten months after his exposure to Diazinon, Ellis sued Maritimé for gross negligence under the Jones Act and unseaworthiness under general maritime law. Based on the jury’s verdict, the trial court rendered judgment for Ellis for $8,576,000 in actual damages, $1,000,000 in punitive damages, $1,000,000 in exemplary damages for failure to pay maintenance and cure, and $1,871,728 in prejudgment interest. The damages totaled about $12.6 million. Maritime filed post-verdict motions for judgment notwithstanding the verdict and new trial or, in the alternative, for remittitur. Maritime alleged that the actual and exemplary damages were excessive because the evidence was factually insufficient to support the damage awards. The trial court overruled all of Maritime’s motions. In the court of appeals, Maritime only complained about the trial court’s denial of its motion for new trial and motion for remit-titur; it did not challenge the trial court’s denial of its motion for judgment notwithstanding the verdict. The case was first argued before a three-judge panel of the court of appeals. The panel majority held that the evidence was factually insufficient to support the damages award. There was a dissent without an opinion. Later, the court of appeals granted Ellis’s motion for en banc rehearing. Following argument, the en banc court affirmed the actual damages award, but reversed the trial court’s judgment for exemplary damages and prejudgment interest. 886 S.W.2d 780. This Court granted Maritime’s application for writ of error on two issues. First, Maritime contends that the court of appeals erred by not using the proper standard to review the factual sufficiency of Ellis’s actual damages evidence. Maritime argues that the court of appeals should have applied a traditional factual sufficiency review to the damages award instead of a featherweight causation standard because the trial court submitted the damages question to the jury based upon a preponderance of the evidence burden of proof. Second, Maritime contends, within the framework of its factual sufficiency review argument, that the court of appeals should have examined whether any well-founded scientific methodology supported the jury’s actual damages award. At oral argument in this Court, Maritime stated that it was not making a no evidence complaint. Rather, Maritime asserted that its only complaint is that the court of appeals did not properly conduct a factual sufficiency review. However, under its factual sufficiency argument, Maritime argues that there is no evidence of long term injury from delayed neurotoxicity. In essence, Maritime would have this Court conduct a no evidence review of the evidence about delayed neurotoxicity within the Court’s review of whether the court of appeals properly reviewed the factual sufficiency of the evidence. We decline to do so. II. COURT OF APPEALS’ FACTUAL SUFFICIENCY REVIEW A. The Jones Act 46 U.S.C. § 688 The Jones Act provides a cause of action for maritime workers injured by an employer’s negligence. Federal law provides that a party asserting an admiralty action may bring the action in state court. See 28 U.S.C. § 1333(1). When a state court hears an admiralty ease, that court occupies essentially the same position occupied by a federal court sitting in diversity: the state court must apply substantive federal maritime law but follow state procedure. See Texaco Ref. & Mkt. Inc. v. Estate of Dau Van Tran, 808 S.W.2d 61, 64 (Tex.1991); see also General Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex.1993). Under the Federal Employers’ Liability Act (FELA), a related statute, the causation burden is not the common law proximate cause standard. Rather, the causation burden is “whether the proof justifies with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury for which the claimant seeks damages.” Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506-07, 77 S.Ct. 443, 448-49, 1 L.Ed.2d 493 (1957); Landry v. Oceanic Contractors Inc., 731 F.2d 299, 302 (5 th Cir.1984). This burden has been termed “featherweight.” See Johnson v. Offshore Exp., Inc., 845 F.2d 1347, 1352 (5 th Cir.1988); Smith v. Trans-World Drilling Co., 772 F.2d 157, 162 (5 th Cir.1985); see also Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107, 80 S.Ct. 173, 4 L.Ed.2d 142 (1959). The Jones Act expressly incorporates FELA and the case law developing that statute. See Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521, 77 S.Ct. 457, 1 L.Ed.2d 511 (1957). Thus, the causation standard under the Jones Act is the same as that under FELA. See American Dredging Co. v. Miller, 510 U.S. 443, 456, 114 S.Ct. 981, 989-90, 127 L.Ed.2d 285 (1994); see also Brown & Root, Inc. v. Wade, 510 S.W.2d 408, 410 (Tex.Civ.App. — Houston [14 th Dist.] 1974, writ ref d n.r.e.). B. Standards of Review 1. Jones Act Liability Texas courts have long recognized that in addition to the burden of proof being less stringent, the standard of appellate review in a Jones Act case is also less stringent than under the common law. See Texas & Pac. Ry. v. Roberts, 481 S.W.2d 798, 800 (Tex.1972); Brown & Root, Inc., 510 S.W.2d at 410. As with the law on causation, FELA’s standard of appellate review applies in Jones Act cases. See Ferguson, 352 U.S. at 523, 77 S.Ct. at 458. Thus, the purpose of the Jones Act standard of review is to vest the jury with complete discretion on factual issues about liability. See Rogers, 352 U.S. at 506-07, 77 S.Ct. at 448-49. Once the appellate court determines that some evidence about which reasonable minds could differ supports the verdict, the appellate court’s review is complete. See Roberts, 481 S.W.2d at 800 (citing Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946)). Essentially, a Texas court of appeals may not conduct a traditional factual sufficiency review of a jury’s liability finding under the Texas “weight and preponderance” standard. See Roberts, 481 S.W.2d at 801; see also Brown & Root, Inc., 510 S.W.2d at 410. Rather, courts of appeals must apply the less stringent federal standard of review. 2. Excessive Damages and Remittiturs Texas courts of appeal have the power to review excessiveness of damages and to order remittitur in FELA actions and, by implication, in Jones Act cases as well. See Sweet v. Port Terminal R.R., 653 S.W.2d 291, 294-95 (Tex.1983); cf. Nobles v. Southern Pac. Transp. Co., 731 S.W.2d 697, 699 (Tex.App — Houston [14 th Dist.] 1987, writ ref d n.r.e.); see also Naim v. National R.R. Passenger Corp., 837 F.2d 565, 566 (2d Cir.1988). The appellate court must make its own “detailed appraisal of the evidence bearing on damages.” Nairn, 837 F.2d at 567, (quoting Grunenthal v. Long Island R.R., 393 U.S. 156, 159, 89 S.Ct. 331, 333, 21 L.Ed.2d 309 (1968)). The standard of review for an excessive damages complaint is factual sufficiency of the evidence. See Rose v. Doctors Hosp., 801 S.W.2d 841, 847-48 (Tex.1990); Pope v. Moore, 711 S.W.2d 622, 624 (Tex.1986). The court of appeals should employ the same test for determining excessive damages as for any factual sufficiency question. See Pope, 711 S.W.2d at 624. When considering a factual sufficiency challenge to a jury’s verdict, courts of appeals must consider and weigh all of the evidence, not just that evidence which supports the verdict. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986). A court of appeals can set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. See Ortiz, 917 S.W.2d at 772; Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). The court of. appeals is not a fact finder. Accordingly, the court of appeals may not pass upon the witnesses’ credibility or substitute its judgment for that of the jury, even if the evidence would clearly support a different result. See Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex.1986). If the court of appeals determines that the evidence supports the jury’s verdict, it is not required to detail all the evidence supporting the judgment when it affirms the trial court’s judgment for actual damages. See Ellis County State Bank v. Keener, 888 S.W.2d 790, 794 (Tex.1994). On the other hand, when reversing a trial court’s judgment for factual insufficiency, the court of appeals must detail all the evidence relevant to the issue and clearly state why the jury’s finding is factually insufficient or so against the great weight and preponderance of the evidence that it is manifestly unjust. See Keener, 888 S.W.2d at 794; Pool, 715 S.W.2d at 635. The court of appeals must explain how the contrary evidence greatly outweighs the evidence supporting the verdict. See Keener, 888 S.W.2d at 794; Pool, 715 S.W.2d at 635. Because the question of whether damages are excessive and that a remittitur is appropriate is a factual determination made final in the court of appeals, this Court lacks jurisdiction to review such findings. Tex. Const, art. V, § 6; Tex. Gov’t Code, § 22.225(a); Akin v. Dahl, 661 S.W.2d 917, 921 (Tex.1983); Sweet, 653 S.W.2d at 295. C. Analysis Maritime concedes that the Jones Act imposes a reduced burden in proving a defendant’s liability, but asserts the Act does not reheve a plaintiff of the burden of proving damages by a preponderance of the evidence. Initially, Maritime contends that by submitting the damages question based upon a' preponderance of the evidence, Ellis waived any argument that a featherweight standard applies to the court of appeals’ review of damages. See De La Lastra, 852 S.W.2d at 916. Maritime further argues that both federal and Texas appellate courts have reviewed damage awards for factual sufficiency and excessiveness using traditional standards of review in Jones Act cases. See Nairn, 837 F.2d at 566; Sweet, 653 S.W.2d at 294-95. Maritime asserts that the court of appeals used the wrong standard when it reviewed the actual damages award in this case. We disagree. As explained below, the court of appeals properly analyzed this case in the context of Maritime’s point of error and argument in that court. The record shows that during trial, Ellis offered the testimony of five expert medical doctors, four of whom had examined and treated Ellis. Maritime did not challenge the testimony of any of the five experts at trial. All five expert witnesses testified that Ellis’s severe and lengthy exposure to Diazi-non caused his prolonged neural damages. They expressed their opinions on bases ranging from reasonable medical probability to without a doubt. In essence, all five experts testified that Ellis’s prolonged exposure to excessive levels of Diazinon due to Maritime’s negligence caused the long-term effects of delayed neurotoxicity. Maritime presented three medical doctor experts, only one of whom had treated Ellis. These three experts testified that Ellis’s injuries were not a delayed effect of his Diazinon exposure. The jury answered “yes” to the question of whether Maritime’s negligence played any part, even the slightest, in producing injury or illness to Ellis. The jury then found, based on a preponderance of the evidence, that $8,576,000 in actual damages would fairly and reasonably compensate Ellis for the injuries or illnesses resulting from the occurrence in question. The trial court rendered judgment for Ellis on the jury’s verdict for the actual damages together with exemplary and punitive damages and prejudgment interest. In the court of appeals, Maritime contended the trial court erred in denying its motion for new trial because factually insufficient evidence supported the jury’s finding that Ellis suffered $8,576,000 in actual damages, and because the amount was excessive. However, as the court of appeals recognized, Maritime’s argument to that court was not about the amount of actual damages the jury awarded, but about causation. The court of appeals observed: Appellant concedes that appellee suffered short-term effects from the exposure to Diazinon and in effect, that overexposure to Diazinon is toxic to humans and can cause damage to the nervous system on some temporary basis. Thus, appellant does not contest damages for the medical treatment appellee received in New Orleans in 1982 or for the loss of two days of work. Appellant does contest damages awarded for appellee’s claim of delayed and permanent neurotoxic damage on the ground that appellee’s expert testimony was speculative and not based on reasonable medical probability. Essentially, appellant’s attack is directed at the issue of causation as to the delayed and permanent damage found by the jury based on the circumstantial and expert evidence before them. 886 S.W.2d at 783 (emphasis added). Because Maritime contended there was factually insufficient evidence to support the damages award, the court of appeals considered all the evidence both in favor of and contrary to the judgment. The court of appeals detailed the material testimony of all eight experts — five for Ellis and three for Maritime. After doing so, the court of appeals first concluded that the evidence more than satisfied the Jones Act standard for causation. 886 S.W.2d at 791. The court of appeals stated that sufficient evidence justified the jury’s finding that Maritime’s admitted negligence in exposing Ellis to extreme levels of a dangerous pesticide did play a part in producing the injury for which the damages were sought and awarded. 886 S.W.2d at 791. In addition to concluding that the evidence satisfied the “featherweight” burden of negligence and causation in Jones Act eases, the court of appeals also concluded that the evidence was sufficient under the higher standard of proof for causation under Texas common law. The court of appeals followed applicable law when it analyzed Maritime’s challenge to causation instead of damages and when it reviewed the amount of the damages award under traditional factual sufficiency review. See Rogers, 352 U.S. at 506-07, 77 S.Ct. at 448-49; Naim, 837 F.2d at 566; Landry, 731 F.2d at 302; Sweet, 653 S.W.2d at 294-95. Accordingly, we conclude that the court of appeals followed the appropriate standard of review in analyzing Maritime’s claims. Again, this Court has no jurisdiction to decide whether the court of appeals reached the correct result — that is whether the actual damages award was excessive. See Akin, 661 S.W.2d at 921. We reject Maritime’s first argument. III. COURT OF APPEALS’ REVIEW OF SCIENTIFIC EVIDENCE Maritime’s second contention is that the court of appeals erred because it did not examine whether any well-founded scientific evidence supports the actual damages award. Maritime argues that the federal standard articulated in Daubert and the state standard articulated in Robinson and Hamer are the proper standards for reviewing the sufficiency of Ellis’s damages evidence. Significantly, Maritime does not complain about the trial court’s admission of any of the scientific evidence from any of Ellis’s five experts. Rather, Maritime’s position is that if the court of appeals applied a proper scientific methodology test to Ellis’s experts’ testimony, the testimony would be legally insufficient to show that the long term conditions Ellis claims he suffers were caused by delayed neurotoxicity. Thus, Maritime concludes, by way of its complaints about the court of appeals’ factual sufficiency review, that there is no evidence of some of Ellis’s actual damages. Maritime’s argument is flawed. A. Daubert-Robinson-HavNer In Daubert, the Supreme Court considered “the standard for admitting expert scientific testimony-in a federal trial.” Daubert, 509 U.S. at 579, 113 S.Ct. 2786, (emphasis added). Daubert’s focus is on the trial court’s discretion, when faced with an objection to scientific evidence, to admit or exclude such evidence before or during the trial. The Supreme Court added that when the trial court concludes that the disputed scientific evidence is insufficient to go to the jury, the trial court may grant a summary judgment or a directed verdict. Daubert, 509 U.S. at 595, 113 S.Ct. 2786. However, Daubert does not support the proposition that a reviewing court can in effect exclude expert testimony that was not objected to based on its scientific reliability before trial or when it was offered at trial and then render judgment against the offering party. Similarly, in Robinson, we granted DuPont’s application for writ of error to decide “the appropriate standard for the admission of scientific expert testimony.” See Robinson, 923 S.W.2d at 554 (emphasis added). Like the Supreme Court in DaubeH, we recognized the special nature of scientific expert testimony. See Robinson, 923 S.W.2d at 554-58. We then explained the trial court’s role as a “gatekeeper,” and recognized that “[t]he trial court is responsible for making the preliminary determination of whether the proffered testimony meets the standards [for scientific reliability].” Robinson, 923 S.W.2d at 556. Like Daubert, Robinson’s focus is on a trial court’s discretion in admitting or excluding scientific evidence after a party lodges an objection to the reliability of its opponent’s scientific expert testimony before trial or when the evidence is offered. See Robinson, 923 S.W.2d at 557. Under Havner, a party may complain on appeal that scientific evidence is unreliable and thus, no evidence to support a judgment. See Havner, 953 S.W.2d 706. Havner recognizes that a no evidence complaint may be sustained when the record shows one of the following: (a) a complete absence of a vital fact; (b) the reviewing court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more that a mere scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact. See Havner, 953 S.W.2d at 711 (citing Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L.Rev. 361, 362-63 (I960)). Here, like in Havner, Maritime contends that because Ellis’s scientific evidence “is not reliable, it is not evidence,” and the court of appeals and this Court are “barred by rules of law or of evidence from giving weight” to Ellis’s experts’ testimony. See Havner, 953 S.W.2d at 711, 713. B. ERROR PRESERVATION To preserve a complaint that scientific evidence is unreliable and thus, no evidence, a party must object to the evidence before trial or when the evidence is offered. See Robinson, 923 S.W.2d at 557; see also Havner, 953 S.W.2d at 713 (“If the expert’s scientific testimony is not reliable, it is not evidence.”). Without requiring a timely objection to the reliability of the scientific evidence, the offering party is not given an opportunity to cure any defect that may exist, and will be subject to trial and appeal by ambush. See Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1066-67 (9 th Cir.1996), cert. denied, —• U.S. -, 117 S.Ct. 942, 136 L.Ed.2d 831 (1997); Sumitomo Bank v. Product Promotions, Inc., 717 F.2d 215, 218 (5th Cir.1983). Reviewing courts may not exclude expert scientific evidence after trial to render a judgment against the offering party because that party relied on the fact that the evidence was admitted. Babbitt, 83 F.3d at 1067. To hold otherwise is simply “unfair.” Babbitt, 83 F.3d at 1067. As the Babbitt court explained: [Permitting [a party] to challenge on appeal the reliability of [the opposing party’s] scientific evidence under Daubert, in the guise of an insuffieieney-of-the-evidence argument, would give [appellant] an unfair advantage. [Appellant] would be ‘free to gamble on a favorable judgment before the trial court, knowing that [it could] seek reversal on appeal [despite its] failure to [object at trial].’ Babbitt, 83 F.3d at 1067 (citations omitted). Thus, to prevent trial or appeal by ambush, we hold that the complaining party must object to the reliability of scientific evidence before trial or when the evidence is offered. C. Analysis In this case, Maritime did not object to the reliability of Ellis’s scientific evidence until after the jury verdict. Maritime nevertheless argues that the court of appeals should have applied the Daubert-Robinson-Hav-ner rationale as part of its factual sufficiency review. These cases do not support Maritime’s argument because: (1) each involve admissibility or no evidence considerations, and (2) in each case the defendants timely objected to the scientific evidence. Daubert and Havner involve the anti-nausea drug, Bendectin. In these two cases, plaintiffs asserted that Bendectin caused birth defects. See Daubert, 509 U.S. at 591, 113 S.Ct. 2786; Havner, 953 S.W.2d at 708. Robinson involved a fungicide known as Ben-late that DuPont manufactured. The Robin-sons contended that the B enlate they used was contaminated and damaged their pecan crop. See Robinson, 923 S.W.2d at 551. In all three cases, causation was hotly contested, as it is in this case, on delayed effects. In all three cases, the manufacturer objected before trial or when the evidence was offered that the plaintiffs’ scientific expert testimony on causation was inadmissible because it was neither relevant nor based upon a reliable foundation. Daubert, 509 U.S. at 591, 113 S.Ct. 2786; Robinson, 923 S.W.2d at 552; Havner, 953 S.W.2d at 708-09. Thus, the manufacturers in all three eases properly preserved their claims that the expert testimony was inadmissible and was no evidence of causation because it was not relevant and not based on well-founded scientific methodology. In Daubert, Merrell Dow moved for summary judgment. The trial court granted summary judgment on the grounds that the Dauberts did not establish that the principle on which their experts based their opinions was generally accepted by the relevant scientific community. See Daubert v. Merrell Dow Pharms., Inc., 727 F.Supp. 570, 572 (S.D.Cal.1989). On appeal, the United States Supreme Court held that the criteria is whether the scientific evidence is relevant and reliable and thus admissible. The Court remanded Daubert to the circuit court to determine whether the expert testimony rested on a reliable foundation and was relevant. See Daubert, 509 U.S. at 597,113 S.Ct. 2786. On remand, the Ninth Circuit held that the testimony about Bendectin’s effect was inadmissible under Federal Rule of Evidence 702. In Robinson, the trial court granted DuPont’s pretrial motion and excluded the Rob-insons’ expert testimony on the ground that it was neither relevant nor based upon a reliable foundation. See Robinson, 923 S.W.2d at 552. At trial, the Robinsons again attempted to introduce their expert’s testimony but the trial court abided by its earlier ruling and excluded that testimony. The Robinsons then offered a bill of exception on their expert’s testimony. At the close of evidence, the trial court granted DuPont’s motion for directed verdict. The Robinsons appealed on the grounds that the trial court abused its discretion by excluding their expert’s testimony. This Court followed Dau-bert and held that a party must show, in addition to showing an expert witness is qualified, that the expert’s testimony is relevant and reliable. See Robinson, 923 S.W.2d at 556. Accordingly, although Robinson involves the exclusion of expert testimony, DuPont timely objected to the expert testimony before trial and when the evidence was offered. Unlike Maritime, DuPont did not wait until after the verdict to challenge the reliability of its opponent’s expert testimony. In Havner, Merrell Dow objected to the Havners’ scientific evidence “at several junctures” during the litigation. See Havner, 953 S.W.2d at 708. Merrell Dow moved for summary judgment contending there was no scientifically reliable evidence that Bendectin caused limb reduction birth defects or that Bendectin caused the plaintiff’s birth defect. Cf. General Elec. Co. v. Joiner, — U.S. -, 118 S.Ct. 512, 189 L.Ed.2d 508 (1997) (affirming summary judgment when plaintiffs expert evidence did not show link between polychlorinated biphenyls (PCBs) and cancer). The trial court held a hearing at which the scientific reliability of the Havner’s summary judgment evidence was extensively aired. The trial court then denied Merrell Dow’s motion for summary judgment. Before trial, Merrell Dow filed a motion in limine again questioning the scientific reliability of the Havner’s expert testimony. The trial court denied Merrell Dow’s motion in limine. During trial, Merrell Dow objected to the admission of the Havners’ scientific evidence. Merrell Dow also unsuccessfully moved for directed verdict when the Havners closed their case, complaining about the Hav-ners’ scientific evidence. The trial court overruled Merrell Dow’s objections and denied its motion for directed verdict. In Hav-ner, while the issue was whether the scientific evidence was legally sufficient to be some evidence of causation, Merrell Dow timely challenged the experts’ testimony at every opportunity in the trial court, and it properly preserved a no evidence claim. Indeed, this Court emphasized that the offering party should be allowed the opportunity to “pass[ ] muster” under a trial court Robinson objection — “to present the best evidence available” — before an appellate court considers whether legally sufficient evidence supports a judgment. Havner, 953 S.W.2d at 720. Here, Maritime did not object to the scientific reliability of a single one of Ellis’s five expert witnesses until after the jury verdict. Before trial, Maritime did not ask for a Daubert/Robinson-type hearing. Cf. Havner, 953 S.W.2d at 708-09. During trial, the record reflects that Maritime made nine objections while Ellis’s five experts testified. Five objections complained about nonresponsiveness, three complained about leading questions, and one complained that the witness was testifying from a document not in evidence. Simply put, Maritime did not make any objection to the reliability of Ellis’s experts before trial or when Ellis offered the evidence. Maritime cannot complain for the first time after the verdict that the testimony from Ellis’s five experts does not support the judgment. To allow otherwise would deny Ellis’s scientific experts the opportunity to “pass[ ] muster” in the first instance and usurp the trial court’s discretion as “gatekeeper.” See Havner, 953 S.W.2d at 720; Robinson, 923 S.W.2d at 554. Rules and procedures about error preservation promote certainty and fairness. Such rules also frame and develop the legal issues for appeal, giving notice to both the litigants and to appellate courts about what issues remain. Appellate courts must base their decisions on the record as made and brought forward, not on a record that should have been made or could have been made. See Babbitt, 83 F.3d at 1067. For this Court to decide now that Ellis’s scientific evidence is unreliable under Daubert or Robinson would base appellate review on a record that was not made. IV. RESPONSE TO THE DISSENT We do not disagree with the dissent that “Maritime Overseas’ position has always been ... that no rehable scientific evidence shows that Diazinon can cause long-term neurotoxicity.” 971 S.W.2d at 415. However, at trial, rather than make objections to the trial court, Maritime .chose to present this argument to the jury by challenging the reliability of Ellis’s scientific evidence via vigorous cross-examination, presenting contrary evidence, and through opening statement and closing argument. Thus, unlike Havner, the “question of scientific reliability was [not] raised repeatedly” before the trial court. Havner, 953 S.W.2d at 709. Nevertheless, the dissent would hold that Maritime’s decision to argue the weight of both parties’ experts’ testimony to the jury was sufficient to preserve a complaint about reliability for appeal. When the reliability of scientific evidence is contested, attempts at persuasion before the jury and reiterated on appeal cannot amount to preservation of error for appeal. To allow otherwise would impermissibly permit a party to strip away the trial court’s role as gatekeeper in the first instance when a party wishes to contest the reliability of scientific evidence. See Robinson, 923 S.W.2d at 553, 556, 558 (placing a “heightened responsibility” on trial judges “to ensure that expert testimony show some indicia of reliability” by holding them “responsible for making the preliminary determination of whether the proffered testimony meets the standards [for scientific reliability]”); see also Daubert, 509 U.S. at 589, 113 S.Ct. 2786 (explaining that “the trial judge must ensure that any and all scientific testimony or evidence admitted is ... reliable”). As Justice Gonzalez rightly points out in his concurring opinion, “[i]t is impossible for a [trial] court to exercise its gatekeeper function after the evidence has been admitted and the jury discharged.” 971 S.W.2d at 412. Under the dissent’s approach, the trial court would be converted at a party’s whim from a gatekeeper to “an idle spectator rendered powerless to ensure the integrity of courtroom evidence.” Robinson, 923 S.W.2d at 554 (quoting DuPont’s argument). We decline to take away the trial court’s gate-keeping function. To do otherwise would usurp the orderly and efficient disposition of appeals, deprive the proffering party of an opportunity to cure any defects in its evidence that the objecting party might pose, and in some cases, place appellate courts in the undesirable position of making decisions about evidentiary reliability absent a fully developed record. The dissent also goes to great lengths to set forth eases that it claims stand for the proposition that “a party may complain after verdict and on appeal that evidence admitted without objection is neither legally nor factually sufficient to support the verdict.” 971 S.W.2d at 417. But the dissent’s reliance on these cases is misplaced for those eases involve no evidence challenges where, on the face of the record, the evidence lacked probative value. See Calvert, supra, at 362-63. In contrast, by its own admission, Maritime is not making a no evidence complaint. Maritime could have and should have objected to Ellis’s evidence at trial in a timely fashion for appellate consideration. We have properly decided the case on the issues preserved at trial and raised on appeal, as our rules and precedent require. V. CONCLUSION We conclude that the court of appeals used the proper standard to review the factual sufficiency of Ellis’s actual damages evidence. We also conclude that because Maritime did not preserve error about Ellis’s scientific expert testimony in the trial court, the court of appeals did not err in conducting its factual sufficiency review. We overrule Maritime’s other points of error. Accordingly, we affirm the court of appeals’ judgment. GONZALEZ, Justice, filed a concurring opinion, joined by ABBOTT, Justice, with respect to Part III only. HECHT, Justice, joined by PHILLIPS, Chief Justice, filed a dissenting opinion. OWEN, Justice, not sitting. . See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); E.I. duPont de Nemours v. Robinson, 923 S.W.2d 549 (Tex.1995); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex.f1997). . Maritime also cites Brock v. Merrell Dow Pharms., Inc., 874 F.2d 307 (5 th Cir.), modified, 884 F.2d 166 (1989), to support its argument that Ellis's experts' testimony was not proper scientific evidence. However, like Daubert, Robinson and Havner, in Brock, Merrell Dow challenged the scientific evidence before the jury verdict. Here, Maritime did not challenge Ellis’s scientific evidence until after the jury verdict.
GONZALEZ, Justice, joined by ABBOTT, Justice, with respect to Part III, concurring. I concur with the Court’s judgment. The Court correctly resolves the main issues: (1) approving the court of appeals’ standard for reviewing the factual insufficiency of the evidence of a Jones Act cause of action, and (2) rejecting Maritime Overseas Company’s untimely attempt to challenge the reliability of scientific evidence. See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex.1995) (making trial courts the “gatekeepers” of scientific evidence). I do not entirely agree with the Court’s analysis of the Robinson issue. However, I ultimately reach the same conclusion that Maritime did not timely raise the issue. I think it is imperative to ventilate any Robinson issues as early as possible, preferably as a pretrial matter. To further that policy, we should give trial courts wide discretion to reject late Robinson objections, and hold that the trial court did not abuse its discretion in this case. I In Robinson, we made trial courts the gatekeepers of scientific evidence, charging them with the duty to screen out the speculative and unreliable. See id. at 556-57. It is impossible for a court to exercise its gatekeeper function after the evidence has been admitted and the jury discharged. Until now, however, we have not discussed in depth the procedure to preserve a Robinson objection. Preservation was not an issue in Robinson, wherein we upheld the trial court’s exclusion of expert testimony after a pretrial hearing on its reliability. During trial the proponent of the evidence asked the court to reconsider its pretrial ruling, and made a bill of exceptions when it did not. See id. at 552. We sustained a no-evidence point without discussing error preservation in Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995). The facts recited in the opinion do not reveal what steps Burroughs took to preserve error, other than its objection to the evidence when it was offered. We also sustained a no-evidence Robinson complaint in Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706 (Tex.1997). Preservation of error was beyond question in that case because Merrell Dow repeatedly challenged certain scientific evidence, raising the issue in a motion for summary judgment, motions in limine, extensive pretrial hearings on the motions, objections during the expert’s testimony, a motion for a directed verdict at the close of the Havners’ evidence, and multiple post-trial motions. Id. at 708-09; Merrell Dow Pharm., Inc. v. Havner, 907 S.W.2d 535, 539 (Tex.App. — Corpus Christi 1994). The Court resolves the question in this case by characterizing Maritime’s Robinson argument as a no-evidence complaint, and then holding that Maritime failed to preserve a legal insufficiency point. The dissenting opinion also treats Maritime’s arguments as legal insufficiency points. I think their respective analyses are wrong for two reasons. First, Maritime’s arguments here are not true no-evidence points. As the Court observes, Maritime expressly disavows any legal insufficiency complaint, and instead claims only to challenge the court of appeals’ standard of review when it evaluated factual insufficiency. Maritime’s prayer for relief seeks only a new trial. I would take Maritime’s arguments at face value and not try to read a no-evidence point into them. Maritime argues instead that the evidence of causation is factually insufficient because the record is utterly devoid of reliable scientific evidence of causation. Such an argument would be a legitimate factual insufficiency argument if made to a court of appeals. A court of appeals reviewing factual insufficiency considers all of the evidence to see if “the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the finding should be set aside and a new trial ordered.” Garza v. Alviar, 395 S.W.2d 821, 821 (Tex.1965). If there is no evidence to support the verdict, then certainly the court of appeals could conclude that the evidence is too weak to support the verdict. If the appellant’s only viable point is factual insufficiency, the court of appeals should remand for a new trial. See Wright Way Spraying Serv. v. Butler, 690 S.W.2d 897, 898 (Tex.1985). However, an argument proper in the court of appeals may not be appropriate in our Court because of our limited jurisdiction over factual insufficiency. Our jurisdiction over factual insufficiency is limited to whether the court of appeals applied the proper standard of review. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). Maritime asserts that it only wants us to exercise our limited jurisdiction over standards of review, but its arguments come perilously close to asking us to substitute our opinion for that of the court of appeals. I question whether our jurisdiction would allow us to consider the merits of Maritime’s argument. See Havner v. E-Z Mart Stores, Inc., 846 S.W.2d 286, 286 (Tex.1993) (Gonzalez, J., concurring on denial of application for writ of error) (cautioning that this Court must not second-guess the court of appeals’ review of factual insufficiency); Lofton v. Texas Brine Corp., 777 S.W.2d 384, 388 (Tex.1989) (Hecht, J., dissenting) (criticizing the Court for circumventing constitutional limitations over factual insufficiency through pretextual legal issues). Compare with Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 29-30 (Tex.1993) (Gonzalez, J., concurring) (noting rare circumstance that allowed this Court to exercise jurisdiction over a court of appeals’ factual insufficiency review). In any event, since Maritime only brings a factual insufficiency point, it is not necessary to decide if Maritime preserved a no-evidenee complaint. II Moreover, whether we categorize Maritime’s arguments as factual insufficiency or legal insufficiency does not resolve the case for me. I do not think the usual rules for preserving either factual or legal insufficiency complaints adequately address the concerns unique to Robinson issues. Ordinarily, both legal and factual insufficiency points may be preserved by post-judgment motions. See Cecil v. Smith, 804 S.W.2d 509 (Tex.1991). A court simply looks at the record to determine the existence and weight of evidence to prove a given point. Appellate courts and trial courts make such a review without additional information from outside the record. However, the no-evidence analysis we describe in Havner is qualitatively different from the ordinary eviden-tiary review: [W]e emphasize that courts must make a determination of reliability from all the evidence. Courts should allow a party, plaintiff or defendant, to present the best available evidence, assuming it passes muster under Robinson, and only then should a court determine from a totality of the evidence, considering all factors affecting the reliability of particular studies, whether there is legally sufficient evidence to support a judgment. Merrell Dow Pharm., Inc. v. Havner, 958 S.W.2d at 720. It should be apparent that appellate courts constitutionally cannot conduct such a hearing in the first instance. However, I do not think that allowing parties to raise Robinson objections for the first time post verdict, or even during trial, is fair to the litigants or judicially efficient. A court should not be required to interrupt trial to conduct a Robinson hearing which could have been held pretrial. As Merrell Dow v. Havner illustrates, the trial court’s role as gatekeeper requires it to decide complex issues in fields outside its primary expertise. Some courts have tried innovative approaches, such as selecting neutral experts in the field to serve as masters, a step I encourage when the issues are especially complex. See Justice Breyer Calls for Experts to Aid Courts in Complex Cases, N.Y. Times, Feb. 17,1998, at A17. Such innovation is not possible if the trial court is not given advance warning. I recognize that there may be instances of good cause for not making a Robinson objection pretrial, in which case the trial court should entertain the objection. Also, some opinion testimony may be so untenable on its face that no Robinson hearing is necessary. For example, our Court recognized long before Robinson that courts are not bound by testimony at odds with indisputable physical facts and common knowledge because it has no probative value. Humble Oil & Refining Co. v. Martin, 148 Tex. 175, 222 S.W.2d 995, 1001-02 (1949) (holding that court could disregard petitioner’s “incredible” testimony that she had secured her automobile by engaging the reverse gear before it rolled downhill striking pedestrians). Such situations will be comparatively rare, however. Our discovery rules require the proponent of expert testimony to identify the witnesses and the substance of their opinions in response to appropriate discovery. Thus in the ordinary case, it should be very apparent at the discovery stage that a party will proffer scientific testimony. The opponent of such testimony should bring its objections to the trial court’s attention so that the trial court may resolve them without interfering with the eventual trial. Ill As a final note, I encourage trial courts to aggressively exercise their role as gatekeepers of scientific evidence. There are many steps a court could take to try cases efficiently and fairly, with fidelity to sound scientific methodology. For example, a court could: 1) require parties to notify opponents and the court sufficiently in advance of the trial of plans to either offer scientific evidence or challenge an opponent’s evidence; 2) conduct a preliminary hearing on admissibility in advance of plans to offer the evidence; 3) in complex litigation, appoint a panel of specially trained scientists or a special master to hear evidence and report on complicated scientific and statistical matters. The report would be filed with the clerk’s office. If the parties request it, the court should conduct a hearing on the report and allow the parties to cross examine the court experts (the expert’s fees would be taxed as court costs); 4) render expert testimony inadmissible or rule objections waived unless the parties fully comply with the notice requirements set out above. In sum, because a Robinson objection profoundly impacts the trial of a case, an opponent to proffered scientific evidence should raise the issue of reliability early in the litigation or risk losing the objection. I agree with the Court that an opponent to scientific evidence must object to it when offered, at the very latest. However, I would go further and hold that if a party knows pretrial about the existence of Robinson issues but fails to ask for a pretrial hearing, any objection about the admission or exclusion of such evidence raised for the first time during trial is waived.
HECHT, Justice, joined by PHILLIPS, Chief Justice, dissenting. Maritime Overseas Corporation seeks a new trial because, while Richard Ellis was undeniably injured by his exposure to diazi-non, the scientific evidence does not support the conclusion that he suffers from permanent neurotoxicity, and thus the $8,576,000 awarded him in damages is excessive. The Court holds that it could not order a new trial even if it agreed with Maritime Overseas’ contention, completely ignoring its decision to grant a new trial in indistinguishable circumstances just one year ago in Texar-kana Memorial Hospital, Inc. v. Murdock, 946 S.W.2d 836 (Tex.1997). The Court also holds that Maritime Overseas failed to preserve its complaint for appeal because it did not object to Ellis’s evidence at trial, even though Maritime Overseas’ position has always been — in its opening statement, its extensive examination of the expert witnesses, its closing argument, its motion for new trial, and on appeal — that no reliable scientific evidence shows that diazinon can cause long-term neurotoxicity. As Ellis’s attorney told the jury in his opening statement, Maritime Overseas’ “position is that this chemical just cannot cause an injury to a worker’s nervous system.” Maritime Overseas’ position has never been in doubt. Not one case the Court cites so much as hints that a party in Maritime Overseas’ circumstances has failed to preserve error, and one of those eases, Sumitomo Bank v. Product Promotions, Inc., 717 F.2d 215, 218 (5th Cir.1983), actually suggests that Maritime Overseas has preserved its position. The Court refuses to acknowledge, much less reconcile, its own numerous precedents that require reversal of a judgment based on non-probative evidence, even though the evidence was admitted without objection. The Court appears to think that if it ignores these cases they will somehow go away. The Court steadfastly evades the one and only issue over which these parties have fought since the day this litigation began — whether there is reliable evidence that Ellis suffers from neurotoxicity. I would decide this issue; therefore I dissent. I It is undisputed that Ellis suffered some injury from his exposure to diazinon and should recover some damages, but it is equally undisputed that if he did not suffer long-term neurotoxicity, his damages are nowhere near $8,576,000. The court of appeals, in determining the factual sufficiency of the evidence, considered expert testimony that Ellis not only was injured but that he suffers from neurotoxicity. Maritime Overseas argues that evidence offered in support of Ellis’s long-term injury claims is unreliable and therefore no evidence at all. Thus, Maritime Overseas contends that the court of appeals erred in considering such testimony in its factual sufficiency review. The Court correctly summarizes Maritime Overseas’ argument: “In essence, Maritime would have this Court conduct a no evidence review of the evidence about delayed neurotoxicity within the Court’s review of whether the court of appeals properly reviewed the factual sufficiency of the evidence.” Ante at 412. Then the Court says: “We decline to do so.” Id. But the Court did not “decline to do so” last year in Texarkana Memorial Hospital, Inc. v. Murdock, 946 S.W.2d 836 (Tex.1997). Murdock sued the Texarkana Memorial Hospital for negligence in delivering her daughter. The child was born with severe congenital defects and died about a year later. Murdock claimed that she was entitled to damages equal to all of the child’s medical expenses, but the Hospital argued that Mur-dock could recover only for those expenses caused by its negligence, excluding expenses for treatment necessitated by the child’s congenital defects. The district court awarded Murdock the total expenses, and the court of appeals affirmed, holding that legally and factually sufficient evidence supported the conclusion that all the medical expenses were caused by the Hospital’s negligence. Texar-kana Memorial Hosp., Inc. v. Murdock, 903 S.W.2d 868, 877-880 (Tex.App. — Texarkana 1995), rev’d, 946 S.W.2d 836 (Tex.1997). In this Court, the Hospital argued that there was “no evidence of a direct causal link between the amount of medical expenses awarded and any injuries caused by [the Hospital’s] negligence.” Murdock, 946 S.W.2d at 837. We agreed and reversed the award, explaining: [W]hile [there] is some evidence of damage caused by [the Hospital’s] negligence, a plaintiff may recover only for those injuries caused by the event made the basis of suit. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 782 (Tex.1984). The case before us is analogous to other cases where a suit for medical expenses involved another injury or pre-existing condition- We ... hold that a plaintiff should recover only for medical expenses specifically shown to result from treatment made necessary by the negligent acts or omissions of the defendant, where such a differentiation is possible. Id. at 839-840 (citation omitted). Although the Hospital couched its complaint in no-evidence terms, for which the remedy is ordinarily rendition of judgment, we concluded that “[b]ecause Murdock ... presented legally sufficient evidence that some of the medical expenses resulted from [the Hospital’s negligence], [she] should be afforded an opportunity to develop this evidence further.” Id. at 841. Thus, we remanded the case for a new trial. In support of this conclusion we cited Stewart Title Guaranty Co. v. Sterling, 822 S.W.2d 1, 10-12 (Tex.1991), in which we remanded a case for a new trial on attorney fees because the evidence supported an award of some fees for some claims, even though fees could not be awarded on all claims. The present case is indistinguishable from Murdock. There, as here, the argument was that while some evidence showed some damages, no evidence supported all the damages awarded. Although the Hospital complained of the legal sufficiency of the evidence, it in effect challenged the court of appeals’ factual sufficiency review for considering non-probative evidence, and we treated the complaint as being directed to that review, remanding for a new trial rather than rendering judgment for the Hospital. Maritime Overseas’ application for writ of error states: “There is no evidence that diazinon causes delayed neurotoxicity and thus insufficient evidence that Ellis suffered $8,576,000 in actual damages.” The arguments in the two cases, while phrased differently, are indistinguishable in import and effect. The arguments and the relief sought are the same in both. Why isn’t Murdock controlling or at least instructive? The Court refuses to answer, refuses even to cite Murdock. The argument that there is some significance in the Hospital’s no-evidence challenge and Maritime Overseas’ insufficient-evidence challenge is too weak even for the Court to employ. If anything, Maritime Overseas’ contention that the evidence of damages is insufficient because there is no evidence of some damages awarded is more straightforward than the Hospital’s contention that there was no evidence of the damages awarded because there was some evidence of only lesser damages. But in fact, both arguments come out at the same place, in substance— some but not all of the damages are supported by the evidence — and in result — a new trial excluding the unsupported claims. Maritime Overseas’ first point of error in this Court asserts: “The court of appeals erred in failing to examine whether any well-founded scientific methodology supports the award of ... actual damages.” Even if Maritime Overseas could be faulted for misphrasing its point of error, that mistake cannot dictate the result in the case. A point of error “is sufficient if it directs the attention of the appellate court to the error about which complaint is made.” Courts.are to construe rules on briefing liberally. An appellate court should consider the parties’ arguments supporting each point of error and not merely the wording of the points. Anderson v. Gilbert, 897 S.W.2d 783, 784 (Tex.1995) (per curiam) (citations omitted). Maritime Overseas’ argument in its application for writ of error is crystal clear: In this case, Ellis offered no epidemiological study, no peer-reviewed theory, nor any evidence of general scientific acceptance to support the conclusion of his experts that his exposure to diazinon caused delayed neurotoxicity. The premise upon which his experts’ conclusion was based— that because some organophosphates can cause delayed neurotoxicity, diazinon therefore must cause delayed neurotoxicity — is false logic, as pointed out by Justice Robertson’s concurring and dissenting opinion, because some organophosphates do not cause delayed neurotoxicity. To make the matter even clearer, Maritime Overseas summarizes its position thusly: “There is no evidence that diazinon causes delayed neurotoxicity and thus insufficient evidence that Ellis suffered $8,576,000 in actual damages.” The result in Murdock was correct, and the same analysis should be applied in this case. A party must have a means of contesting the amount of damages when there is evidence for some claims but not all of them. Following Murdock, Maritime Overseas is entitled to a new trial if its evidentiary complaint has been preserved and has merit. The Court holds that Maritime Overseas’ complaint was not preserved and does not reach the merits. II As early as 1912, and as recently as last year, this Court has held that a party may complain after verdict and on appeal that evidence admitted without objection is neither legally nor factually sufficient to support the verdict. The Court ignores a solid line of cases establishing this principle with respect to all kinds of evidence, including scientific testimony. There is no authority for the Court’s holding that “[t]o preserve a complaint that scientific evidence is unreliable and thus, no evidence, a party must object to the evidence before trial or when the evidence is offered.” Ante at 409. The notion that a party must as a matter of course object to evidence before trial is a complete stranger to our procedure. Despite this lack of authority, it seems clear that parties should be required to contest the reliability of scientific testimony in some way prior to the verdict in most instances. However, Maritime Overseas did so in this case. A As a rule, a contention that evidence is insufficient to support a judgment need not be raised before the verdict. Rule 279, Tex.R. Civ. P., states: “A claim that the evidence was legally or factually insufficient to warrant the submission of any question may be made for the first time after verdict, regardless of whether the submission of such question was requested by the complainant.” Prior to the verdict, a party may, but is not required to, raise the complete absence of evidence on a point. This differs from federal procedure, which requires that a motion for judgment as a matter of law be made before the ease is submitted to the jury “to assure the responding party an opportunity to cure any deficiency in that party’s proof that may have been overlooked until called to the party’s attention”. Fed.R.Civ.P. 50(a)(2) advisory committee’s note. Texas procedure does not afford parties the same protection. Thus, for example, a defendant sued for reasonable and necessary expenses can wait until after the verdict to point out that the plaintiff never offered evidence that the expenses claimed were reasonable. See McCreless Properties, Ltd. v. F.W. Wool worth Co., 533 S.W.2d 863, 868 (Tex.Civ. App. — San Antonio 1976, writ refd n.r.e.); Holt v. Purviance, 347 S.W.2d 321, 324-325 (Tex.Civ.App. — Dallas 1961, writ refd n.r.e.). A defendant sued for attorney fees may wait until after the verdict to assert that no evidence of the required presentment of the claim was offered. See Jim Howe Homes, Inc. v. Rogers, 818 S.W.2d 901, 905 (Tex.App. — Austin 1991, no writ). A pre-verdict objection to the factual-insufficiency of the evidence cannot preclude submission to the jury of pleaded claims, Brown v. Goldstein, 685 S.W.2d 640, 641 (Tex.1985), and thus has essentially no effect. Even if evidence is admitted without objection, it may be insufficient to support a judgment. This Court held eighty-six years ago that “incompetent testimony can never form the basis of a finding of facts in an appellate court, notwithstanding its presence in the record without objection.” Henry v. Phillips, 105 Tex. 459, 151 S.W. 533, 538 (Tex.1912). In that case, testimony admitted without objection was held to be no evidence on appeal because it was hearsay. Id. at 537. The Court repeatedly treated hearsay as no evidence even if it was not objected to, until Rule 802 of the Texas Rules of Civil Evidence was adopted in 1983. Zobel v. Slim, 576 S.W.2d 362, 369 (Tex.1978); Cooper Petroleum Co. v. LaGloria Oil & Gas Co., 436 S.W.2d 889, 891 (Tex.1969); Aetna Ins. Co. v. Klein, 160 Tex. 61, 325 S.W.2d 376, 379 (1959); City of Mission v. Popplewell, 156 Tex. 269, 294 S.W.2d 712, 717 (1956); Texas Co. v. Lee, 138 Tex. 167, 157 S.W.2d 628, 631 (1941). But the principle in Henry has been applied to evidence other than hearsay. In Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97 (1939), Rhone sought compensation for injuries sustained while working on a construction site. The dispute centered on whether at the time of his injuries he was employed by the general contractor, Beaumont Development Corporation, or a subcontractor, McDaniel. The jury found that Rhone was employed by the general contractor, but the court of civil appeals reversed, holding as a matter of law that Rhone was em