Arizona's Adoption of Federal Rule of Evidence 702

Article originally appeared Arizona Attorney on 3/1/12

As we rang in 2012, the Arizona Supreme Court tolled the bell for Logerquist, its decade-old standard for the admissibility of expert testimony, adopting instead Federal Rule of Evidence 702. This made our ears perk up, and we sat down to figure out exactly what the rule change means, and what it doesn’t mean, to practice in state court.

This article examines the approach courts now use in regard to expert witness testimony. (For detailed background on the admissibility of such testimony before this year, see the sidebar on p. 46.)

The Legislature and Supreme Court Act

In 2010, a move toward Daubert began down two tracks in Arizona. First, a bill was introduced in the Arizona Legislature in early 2010 to adopt Daubert. The bill was signed into law, taking effect in July 2010 at A.R.S. § 12- 2203. The statute requires expert opinions to be “the product of reliable principles and methods” and requires experts to have “reliably applie[d] the principles and methods to the facts of the case.” It also requires courts to consider the Daubert factors (testing, peer review, error rate, and general acceptance), “if applicable.”

The constitutionality of § 12-2203 was immediately challenged by the State in a sexual abuse case when the defendant sought to preclude the prosecution’s expert on child sexual abuse accommodation syndrome. The prosecution argued that the statute violated separation of powers by infringing on the Arizona Supreme Court’s rule-making authority. The trial court agreed and held the statute unconstitutional. That decision was upheld by the Arizona Court of Appeals in early 2011.

While the Legislature was enacting § 12-2203, Chief Justice Berch established an Ad Hoc Committee on Rules of Evidence in March 2010, charging the committee with comparing the Arizona Rules to the restyled Federal Rules and providing input on possible conforming changes to the Arizona Rules. The committee consisted of nine
members and was chaired by Vice Chief Justice Hurwitz.

The committee held two public hearings to allow for discussion of Rule 702. At those hearings, current and former federal and state court judges, among others, spoke on the issue of sticking with Frye/Logerquist or moving to the federal standard. Discussion in favor of the federal standard focused largely on achieving consistency with the federal courts, while discussion against focused on concerns with taking fact-finding functions away from the jury and with the added time and expense in conducting Daubert hearings. During those public committee hearings, a hybrid approach was offered to adopt in part Federal Rule 702, but omit the requirement that the expert reliably apply the principles and methods to the facts of the case.

In the end, the committee was split on the issue of keeping Rule 72 as is, revising it to conform to the federal rule, or taking the hybrid approach of partial adoption of the federal rule. The committee’s December 2010 Petition to amend the Arizona Rules of Evidence thus did not take a position with respect to Rule 702, but instead laid out the three options for the Supreme Court’s consideration.

In September 2011, the Arizona Supreme Court adopted an amendment to Rule 702 to conform to the federal rule. The new language of Rule 702 (identical to the federal rule) is:

    A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

When Does Amended Rule 702 Apply?

Amended Rule 702 went into effect on January 1, 2012, without any explicit language regarding retroactivity. Generally, though, procedural rules apply even on the issue of keeping Rule 702 as is, to lawsuits filed before their enactment. In evaluating § 12-2203, the Court of Appeals held that a change in the general standard for expert testimony is procedural rather than substantive. Amended Rule 702 is therefore likely to govern any expert testimony proffered after January 1, 2012, even if the lawsuit arose and an expert was designated before that date.

What Does Amended Rule 702 Mean to Practice in Arizona?

A New, Old Rule

As of January 1, 2012, Frye/Logerquist is no longer the standard governing the admissibility of expert testimony in Arizona; the Daubert/Kumho Tire reliability test is (see sidebar for detail on those cases). Amended Rule 702 applies in both civil and criminal cases, and trial courts are now charged with acting as gatekeepers for all expert testimony, a significant change for our courts.11 On the other hand, attorneys who have practiced in federal court will be in familiar territory.

A Wealth of Federal Case Law

Arizona is no longer deprived of “the advantage of being able to learn from and follow the reasoning of other courts as they develop and apply [Federal Rule] 702.”12 As the Comment accompanying the 2012 revisions to the Arizona Rules of Evidence points out, where the language of the Arizona rule mirrors the language of the federal rule, federal case law is “persuasive.”13 The federal case  law in this area is extensive: approximately 10,000 federal cases cite Daubert, and more than 7,000 have cited Federal Rule 702 since its amendment in 2000. Given the lack of Arizona authority on the Daubert standard, this federal case law will, at least for now, be the best source of authority for trial courts and attorneys.

Experts Must be Able to Explain Their Methodology

An expert’s opinion that is connected to existing data only by the expert’s naked assurance of reliability is not good enough under the Daubert standard.14 Instead, an expert “must explain [her] methodology and demonstrate in some objectively verifiable way that [she] has chosen a reliable … method and followed it.”15 For example, an expert offering an opinion on the amount of repairs that should have been covered by a warranty cannot simply review invoices and offer a conclusory opinion of what should have been covered. Instead, she must explain her methodology for reaching that figure and why it is reliable (e.g., describe how the method complies with industry standards). 16 The manner for meeting this requirement will depend upon the type of expert and opinion involved, but the overarching question is always whether the expert is employing “the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”17

Greater Court Scrutiny

The logical conclusion is that the adoption of the Daubert standard will lead to more frequent exclusion of expert opinions. In fact, it was this belief that led the Arizona Legislature to pursue adoption of Daubert in 2010,18 and a handful of studies show that application of Daubert in federal and state courts has led to

more frequent exclusion of expert testimony. 19 It is likely that the greatest effect of the changed standard, however, will be seen in instances of expert testimony resting upon scientific or technical knowledge but that fell outside the bounds of a Frye/Logerquist analysis. Thus, cases where the changed standard may have the greatest effect include those involving  engineering issues (e.g., product liability), issues of medical causation, toxic torts, psychological evidence, and other testimony grounded in science or the scientific method but that fell outside the scope of Frye as defined in Logerquist. For example, in Lohmeier, the court upheld the admission of expert testimony by a biomechanical engineer regarding a car accident’s causation of personal injuries, but intimated that the testimony may well have been excluded, at least in part, had a Daubert reliability analysis applied.20  On the other hand, cases previously governed by Frye were already subject to a reliability test, so a dramatic effect in those cases is unlikely; indeed, scrutiny under Daubert may be more flexible.21 And in cases involving wholly nonscientific expert testimony (e.g., a police officer opining upon the meaning of drug jargon), while the testimony is subject to a reliability test, federal case law indicates a liberal view of reliability.22 In short, instead of the old regime in which cases were categorized as either involving novel scientific principles (and thus subject to Frye’s general acceptance requirement) or not  (and thus not subject to any established standard of reliability), expert testimony is now likely to be examined under more of a sliding scale, with the applicable factors of reliability depending upon the discipline and opinion involved. There also may be a Daubert side effect: In addition to reliability, courts might also scrutinize more carefully other factors affecting the admissibility of expert testimony. In one study regarding the effect of Daubert in federal courts, it was found “that once judges started acting as moreactive gatekeepers, they more carefullyexamined relevance, qualifications, and other considerations for admitting evidence, in addition to reliability.”23

What Does Amended Rule 702 Not Mean to Practice in Arizona?

Adoption of Federal Case Law

Though Amended Rule 702 mirrors Federal Rule 702, federal case law is not binding on Arizona courts, but rather only persuasive.24

A Daubert Hearing in Every Case

One of the concerns raised in Logerquist against adoption of Daubert was the fear that it would lead to time-consuming evidentiary hearings “in each case in which expert testimony is to be offered.”25 Federal trial courts, however, have “considerable leeway” in determining “how to test an expert’s reliability,” such that they need not hold unnecessary reliability proceedings. 26 Federal courts have thus routinely weighed the reliability of expert opinion testimony based solely on a written record without any evidentiary hearing. 27 There is no reason to believe it will be different in state court.

Application of Daubert Factors to Every Expert

Although the Daubert factors (testing, peer review/publication, error rate and general acceptance) have to some degree become synonymous with the federal reliability standard, those factors have not in fact been adopted as the definitive test. Instead, the inquiry is “a flexible one,”28 with “Daubert’s list of specific factors neither necessarily nor exclusively appl[ying] to all  experts or in every case.”29 Thus, the factors may not be applicable at all with respect to non-scientific testimony,30 and may not all be applicable even when looking at scientific testimony.31 Other factors considered by federal courts in weighing reliability include:

1. whether the opinion was developed independent of the litigation or expressly for purposes of testifying;

2. whether there is too great an analytical gap between the expert’s premise and conclusion;

3. whether the expert has adequately accounted for reasonable alternatives;

4. whether the expert is being as  careful as she would in her nonlitigation work; and

5. whether the field of expertise is known to reach reliable results.32

Difficulty Offering Experience-Based Testimony

Many experts base their opinions on experience rather than scientifically grounded methodology. For example, standard-of-care experts in a legal malpractice case or experts on insurance company practices in a bad-faith case generally base their opinions on their experience working in the field. Although it may seem that the opinions of these experts would have difficulty meeting the Daubert reliability factors, Amended Rule 702 should not have a drastic effect on the admissibility of such testimony in practice. The Comment to Amended Rule 702 says that the “amendment is not intended to … preclude the testimony of experience- based experts,”33 and the U.S. Supreme Court in Kumho Tire recognized that in some cases “the relevant reliability concerns may focus upon personal knowledge or experience” rather than testing, peer review or error rates.34 In practice, federal courts are flexible in examining the reliability of experiencebased experts’ opinions. For example, in Hankey,35 the court examined the  reliability of a police officer’s testimony in a criminal drug case regarding two street gangs’ “code of silence.” In doing so, the court rejected use of the Daubert factors because they “simply are not applicable to this kind of testimony, whose reliability depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it.”36 In finding the opinions reliable, the court instead focused on the experience upon which the officer was relying—namely, his conversations and undercover work with the two gangs.37 An experience-based expert must still be prepared to discuss the methodology he used in reaching his opinions and to describe how his experience leads to a reliable opinion. For example, in Johnson,38 the court precluded expert testimony from a law enforcement officer interpreting drug jargon because he did not explain his methodology for decoding the language at issue. The terminology was atypical drug slang, “highlight[ ing] the need for more information as to how [the officer’s] experience in drug enforcement would qualify him as an expert in interpreting [it].”39

Dramatic Limitation of Expert Testimony

Under Daubert, the flexible standard for examining the reliability of scientific evidence is broader than Arizona’s Frye-based standard was; indeed, the goal in Daubert was to admit more scientific testimony that could help triers of fact reach informed decisions. For example, in Logerquist, the testimony from a clinical psychiatrist that the plaintiff had long-repressed memories of physical abuse would have been excluded under Frye, at least according to the trial court, because repressed memory was not a generally accepted theory.40 However, that same testimony may well have been admissible under Daubert, because factors other than simply general acceptance are considered. Indeed, repressed memory testimony similar to that in Logerquist was found by federal courts to be admissible.41 Overall, though Amended Rule 702 will lead to increased court scrutiny of expert testimony and likely some increase in the frequency of exclusion, it is unlikely to lead to a dramatic limitation on expert testimony, given the flexibility of the reliability standard.

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