§ 18.10 CHOICE OF LAW

• Jurisdiction: United States

§ 18.10. CHOICE OF LAW

The second sentence of Rule 601 provides: "But in a civil case, state law governs the witness's competency regarding a claim or defense for which state law supplies the rule of decision." Congress added this provision so that state Dead Man statutes would apply in federal courts in those cases in which state law supplied the rule of decision (e.g., diversity cases).⁸¹ State statutes imposing elevated qualification standards for experts in malpractice cases⁸² may also be considered "substantive" for these purposes.⁸³

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Notes:

^[81] See Lovejoy Electronics, Inc. v. O'Berto, 873 F.2d 1001, 1005 (7th Cir. 1989) ("The legislative

history of Rule 601 reveals that the purpose of this exception was, precisely, to preserve state dead man's laws in cases such as this where state law supplies the rule of decision"; Illinois statute).

^[82] E.g., Ohio R. Evid. 601(D) (expert must devote one-half of professional time to active clinical practice in field of licensure or to its instruction in an accredited school).

^[83] See Legg v. Chopra, 286 F.3d 286, 290 (6th Cir. 2002) ("[S]ome state evidentiary rules have substantive aspects, thereby defying the substance-procedure distinction and creating a potential Erie conflict. State witness competency rules are often intimately intertwined with a state substantive rule. This is especially true with medical malpractice statutes, because expert testimony is usually required to establish the standard of care. The Federal Rules of Evidence resolve this potential conflict between state and federal law on the issue of witness competency. Rule 601 incorporates the Erie mandate.. . ."; Tenn. statute); Jerden v. Amstutz, 430 F.3d 1231...