Miscellaneous

Arizona Expert Limits Unconstitutional

By Anne Skove, Esq.

You know you're a parent when you hear yourself say "It's only fun until someone gets hurt!"

Similarly, tort reform sounds great, until it's held unconstitutional. Today an Arizona court overturned the state's rule on expert witness qualifications in medical malpractice cases.

The state's Rule 702 requires experts with "scientific, technical, or other specialized knowledge" to be qualified to testify if they have "knowledge, skill, experience, training, or education."

But a statute, ARS sec. 12-2604(A) (Supp. 2007), adds that specialists testifying against board certified defendants must be "board certified in that [same] specialty [as the defendant];" must have "devoted the majority o the person's professional time to either or both [...] active clinical practice of the same health profession [or] the instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession as the defendant." ARS secs. 12-2604(A)(1)(2)(a)(b).

General practitioners must have "devoted a majority of the witness's professional time in the year preceding the occurrence giving rise to the lawsuit to either [...] active clinical practice as a general practitioner [or] instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession as the defendant." ARS sec. 12-2604(A)(3)(a)(b).

So, the question was: court rule or statute? To make a long story short, separation of powers says "court rule" every time.

At least 16 other states have such rules. Who knows what, if anything, their supreme courts will say.

Something voters might want to keep in mind before acting on these so-called reforms (other than statistics and their Seventh Amendment rights): is it likely to be held constitutional? If not, what a waste of energy. (It looks as though Arizona has already experimented with medmal procedure; its Uniform Rules of Practice for Medical Malpractice Cases were repealed in 2000. Arizonans, what's up?)

See the brief but telling State Court Overturns AZ Law on Expert Witnesses, AP/KVOA (June 17, 2008).

The case is Seisinger v. Siebel, CV 07-0266.

Full post as published by court-o-rama.org on June 17, 2008 (boomark / email).