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New Arizona Case - Qualifications for Expert Witnesses

By Ted Schmidt, Dev Sethi, Matt Schmidt, Burt Kinerk

New Arizona Case - Expert Witness Qualification

Haab v. County, 532 Ariz. Adv. Rep. 8 (Ariz. Ct. App. Div. 1, on June 17, 2008) (Judge Irvine). ARIZONA REVISED STATUTE §12-2604(A) REQUIRING AFFIDAVIT BY MEDICAL DOCTOR IN SAME SPECIALITY AS DEFENDANT TO SUPPORT FILING LAWSUIT VIOLATE SEPARATE OF POWERS UNCONSTITUTIONAL. THE PLAINTIFF FILED A MEDICAL MALPRACTICE LAWSUIT CLAIMING THAT A DEFENDANT DOCTOR NEGLIGENTLY ADMINISTERED A SPINAL EPIDURAL. THE PLAINTIFF FILED AN AFFIDAVIT FROM A MEDICAL DOCTOR WHO WAS NOT IN THE SAME SPECIALITY AS THE DEFENDANT. Prior to trial the defense moved in limine to preclude plaintiff's expert from testifying because he did not quality under Arizona Revised Statute §12-2604(A).

The statute in question specifically requires that in order to maintain a medical malpractice lawsuit the plaintiff must file an affidavit establishing that the standard of care has been breached and the affidavit must be signed by a medical doctor with the same specialty and certifications as the defendant and that doctor must be actively practicing a majority of the time in clinical medicine or teaching. The trial court agreed with the defense and granted the motion and this appeal followed. The Arizona Court of Appeals found that the Arizona Constitution clearly requires the three main branches of government remain separate and distinct. Under Article 3 to the Arizona Constitution a legislative enactment will be found in violation of the separation of powers if it "unreasonably limits or hampers" the judicial system in performing its function.

Arizona Constitution Article 6, Section 5(5) gives the exclusive power to the Arizona Supreme Court to establish rules relative to procedural matters in any court. Pursuant to this mandate, the Arizona Supreme Court has enacted Arizona Rules of Evidence, 701 to 706 which govern the admissibility of expert witness testimony. Specifically Rule 702 provides that an expert with "scientific, technical or other specialized knowledge" which will "assist the trier of fact" may testify. Prior to the enactment of Arizona Revised Statute §12-2604(A) the Arizona courts had consistently held that an expert need not be of the same medical specialty as the defendant in the medical malpractice action to be competent to testify regarding the standard of care.

Accordingly, the Arizona Court of Appeals held that Arizona Revised Statute §12-2604(A) violates the Arizona Constitution Separate of Powers Provision in that it directly conflicts with Rule 702 of the Rules of Evidence. The court found that were legislative enactments merely supplement an existing rule, no conflict will be found. However here, by imposing a much stricter standard than the rules of evidence, there was a clear conflict and therefore the statute was unconstitutional.

For support his holding the court referred to Barsema v. Susong, 156 Ariz. 309, 751 P.2d. 969 (1988) which held that a statute precluding introduction of evidence showing bias of an expert due to the experts affiliation with the insurer for the defendant was unconstitutional as it violated the rules of evidence which allow the admission of such evidence for purposes other than to prove fault.

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