Assigned to CED                                                                                                  FOR CAUCUS & FLOOR ACTION

ARIZONA STATE SENATE

Forty-eighth Legislature, First Regular Session

AMENDED

FACT SHEET FOR S.B. 1505

expert opinion testimony; admissibility

Purpose

            Prohibits the admission of scientific opinion testimony in an action for personal injury, death or damage to property unless the court determines that the expert’s opinion is reliable and useful, based on the consideration of specified criteria.

Background

            Arizona Rules of Evidence prohibit a person from testifying to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter (Ariz. R. Evid. 601).  If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise (Ariz. R. Evid. 702).   

            Federal Rules of Evidence, which apply only to federal courts, permit a witness who is qualified as an expert by knowledge, skill, experience, training or education to testify if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact and:

a) the testimony is based on sufficient facts or data.

b) the testimony is the product of reliable principles and methods.

c) the witness has applied the principles and methods reliably to the facts of the case (Fed. R. Evid. 702).

            In 2000, in Logerquist v. McVey, the Arizona Supreme Court held that it would not adopt the Daubert test for determining admissibility of scientific evidence but instead would retain the Frye rule, as limited to a witness’ opinion based on application of novel scientific principle or technique formulated by another, and would continue to apply rule of evidence governing admissibility of expert evidence as written and interpreted by state case law (196 Ariz. 470, 1 P.3d 113).  In Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), the U.S. Supreme Court rejected the Frye (1923) test and held that:

a) general acceptance is not a necessary precondition to admissibility of scientific evidence under Federal Rules of Evidence.

b) the Federal Rules of Evidence assign the judge with the task of ensuring that the expert’s testimony rests on reliable foundation and is relevant (509 U.S. 579, 113 S.Ct. 2786). 

S.B. 1505 requires Arizona’s courts to apply the Daubert test to scientific opinion testimony for the purposes of an action for personal injury, death or property damage.

            There is no anticipated fiscal impact associated with this measure.

Provisions

1. Prohibits the admission of scientific opinion testimony in an action for personal injury, death or damage to property unless the court determines that the expert’s opinion is reliable and will assist the trier of fact.

2. Requires the court to examine the expert’s opinion and the basis of the opinion, including the facts, technique, methodology and reasoning, and to consider all of the following factors:

a) whether the expert’s opinion and its basis have been or can be tested.

b) whether the expert’s opinion and its basis have been subjected to peer review and publication.

c) the known or potential rate of error of the expert’s opinion and its basis, where applicable.

d) whether the basis for the expert’s opinion is reliable and the degree that the expert’s opinion and its basis are generally accepted in the expert community.

e) whether the opinion or methodology of the expert is relied on by experts outside of the context of litigation.

3. Prohibits a novel methodology or form of scientific evidence from being admitted into evidence unless the proponent establishes that the methodology or form has achieved general scientific acceptance among impartial and disinterested experts in the field.

4. Becomes effective on the general effective date.

Amendments Adopted by Committee

· Specifies that the court must consider the known or potential rate of error of the opinion only where applicable.

Senate Action

CED                2/14/07     DPA     6-2-0-0

Prepared by Senate Research

February 21, 2007

LB/jas