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AZ Judges on expert witnesses: Don't tell us what to do

The Arizona Business Gazette catches us up on a ruling by the state Court of Appeals last week, overturning a limited effort at medical tort reform. In a unaminous opinion, the court threw out a 2005 law (ARS ¶ 12-2604[A]) that set requirements for experts witnesses in medical malpractice suits. As the paper described the law, "The person not only has to be licensed as a health-care provider but also must be a specialist in the same area as the defendant and actively practicing or teaching in that area."

Judge Patrick Irvine wrote that the state's constitution generally gives the judicial branch the power to enact its own rules, and the law violated the separation of powers. The Legislature can determine court proceedings only if they are "reasonable and workable and do not conflict with, or tend to engulf, the rules promulgated by the (state) Supreme Court."

The opinion in Seisinger v. Seibel, M.D., (CV07-0266) is available here. Gov. Janet Napolitano signed the bill, SB 1306, in April 2005, but in a signing letter expressed serious doubts about its constitutionality.

UPDATE (1:30 p.m. Friday): On a related topic, a recent Washington Legal Foundation Legal Backgrounder, "Georgia Supreme Court Rejects Constitutional Challenge to Expert Testimony Law": "In 2005, the Georgia General Assembly enacted tort reform legislation that affected the state's existing laws on venue, medical malpractice claims, offers of judgment, and damage awards in certain civil actions. As part of Senate Bill 3, the General Assembly enacted O.C.G.A. section 24-9-67.1, which governs the admission of expert testimony in civil cases.1 In Mason v. Home Depot U.S.A., Inc. et al., 283 Ga. 271, 658 S.E.2d 603 (2008), the Supreme Court of Georgia upheld the constitutionality of the statute over challenges on several fronts. The decision in Mason provides for a uniform approach to the analysis of the admissibility of expert testimony in line with the Federal Rules of Evidence and also paves the way for Georgia's trial courts to require expert testimony to meet higher standards for admissibility than perhaps any
other state in the nation."

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.