Utah Bar Journal
Vol. 21, No. 2, 10.
Interpreting Rules and Constitutional Provisions
Utah Bar JournalVol. 21, No. 2March/April 2008Interpreting Rules and Constitutional ProvisionsInterpreting Rules and Constitutional ProvisionsRemarks by Laura Dupaix, Linda Jones, and Christina Jepson SchmutzEdited by John BogartEditor's Note: At the July 2007 Convention of the Utah State Bar, the Appellate Practice Section sponsored a panel discussion on some recent developments and trends in decisions of the Utah appellate courts. The discussion focused on expert testimony and constitutional interpretation. What follows is a summary of the remarks by the panelists.I. Expert Testimony: Rimmasch and 702 Revisions.A revised Rule of Evidence 7021 came into effect November 2007, which makes this an opportune moment to consider the state of Utah law on expert testimony. The key case interpreting the old Rule is, of course, State v. Rimmasch, 775 P.2d 388 (Utah 1989). In Rimmasch, the Utah Supreme Court set out a three-part test for the admissibility of "novel scientific evidence."First Rimmasch requires a threshold showing that the scientific principles and techniques are 'inherently reliable.' . . . Rimmasch's second requirement is a determination that there is an adequate foundation for the proposed testimony, i.e., that the scientific principles or techniques have been properly applied to the facts of the particular case by qualified persons and that the testimony is founded on that work. . . . Finally, Rimmasch's third requirement is a determination that the scientific evidence will be more probative than prejudicial as required by rule 403 of the Utah Rules of Evidence.State v. Butterfield, 2001 UT 50, ¶¶ 29-30, 27 P.3d 1133 (internal quotation marks and citations omitted).Accordingly, "the Rimmasch test was not intended to apply to all expert testimony. Rather, Rimmasch is implicated only when the expert testimony is 'based on newly discovered principles.'" State v. Adams, 2000 UT 42, ¶ 16, 5 P.3d 642 (emphasis omitted).Consequently, if the principles or techniques at issue did not involve novel science, but instead involve techniques or principles generally accepted by experts in the field, the proponent of the testimony is not required to make a particular reliability showing for admissibility.2 Indeed, under the old Utah model, it appeared that if an expert relied on techniques or principles that are of the type reasonably relied upon in the field, that was sufficient for admissibility.3Haupt v. Heaps, 2005 UT App 436, 131 P.3d 252 demonstrates the difficulty of determining whether testimony is "scientific" and thus triggers the inherent reliability test. In Haupt the Utah Court of Appeals affirmed the trial court's decision to exclude three expert witnesses. The plaintiff argued that the trial court erred in excluding three expert witnesses, two of whom planned to testify about the value of the stock on the date the former employee sold his stock back to the company. See id.¶¶ 15-16, 28.Dr. Paul Randle, an economist, planned to testify about the value of the stock using the "SLR Method," which plots the known value of the stock on two different dates, and "draws a line between those two points and assumes that the value of the stock changed at a consistent rate between those two data points." Id.¶ 16. Dr. Randle admitted that he had never seen the SLR Method prior to his review of the company's financial statements. In addition, he did not consider it to be a "valuation method," id.¶ 17, and he did not perform his own valuation of the stock. The trial court had ruled that under Rimmasch, Dr. Randle's testimony was "novel scientific evidence" and must be shown to be inherently reliable. The trial court then found that the plaintiff could not meet this burden. The appellate court agreed that Dr. Randle's testimony was "novel" but decided to "not resolve whether economic testimony is 'scientific' for purposes of Rimmasch." Id.¶ 24. Instead, the court affirmed on an alternative basis that the testimony would not assist the trier under Rule 702 because it was more prejudicial than probative.Likewise, the court of appeals affirmed the exclusion of Curtis Bramble, a certified public accountant, who was to testify about the SLR Method as well as a valuation technique using the stock price at a later date. The court again sidestepped Rimmasch and excluded the testimony under Rule 702 as not helpful to the jury. See id. ¶ 28. The trial court had also excluded the proposed testimony of Professor William Albrecht who was to testify that "the facts of this case are consistent with typical elements of fraud" based on his theory of fraud triangles. Id.¶ 31. The trial court had noted that no previous court had found Professor Albrecht qualified to testify about his theory and counsel could not locate a single case in which the "fraud triangles" theory had been accepted as a reliable scientific method. The trial court excluded the testimony under Rimmasch and Rule 702. The court of appeals was reluctant to decide whether the economic testimony was "scientific." Instead, the court affirmed under Rule 702 because the testimony was not helpful and simply noted that it "was not an abuse of discretion to exclude that testimony." Id.¶ 33.In contrast, in Balderas v. Starks, 2006 UT App 218, 138 P.3d 75, the Utah Court of Appeals affirmed the trial court's decision to allow an expert witness on accident reconstruction. The defendant offered the testimony of an accident reconstructionist regarding "whether the forces generated in the accident could have caused the injuries claimed by Balderas." Id.¶ 5. The expert did not personally examine the cars, but instead relied on interviews with both parties about the accident, damage to the vehicles, a repair estimate for plaintiff's vehicle, photographs of the vehicles, and literature about the vehicles. The expert then used a computer program called "PC Crash" to calculate momentum. Based on his analysis, the expert testified that there was "a low probability that anyone in the general population could have been injured in the accident." Id.¶ 9. On appeal, the plaintiff argued that the expert should not have been allowed to testify about impact speed, change in velocity, or the likelihood of injury because the testimony was inherently unreliable under Rimmasch since he had not personally examined the vehicles. The court of appeals held that Rimmasch did not apply because computer-modeled accident reconstruction did not involve novel scientific principles. Accordingly, the court found that the expert need only rely on materials reasonably relied upon by other experts in the field.The amendments to Rule 702 eliminate this problem by generally adopting the Rimmasch standards, but eliminating a distinction between scientific and non-scientific testimony. Obviously, there are not yet cases interpreting the new Rule 702, only the Committee Notes. The notes suggest that Rimmasch is no longer good authority, and that the Utah Rule now more closely resembles the Federal Rule. It would be a mistake, however, to treat all of the cases under the old Rule 702 as vitiated.In addition to Balderas, which likely remains good law, in Pete v. Youngblood, 2006 UT App 303, 141 P.3d 629, the Utah Court of Appeals affirmed the trial court's decision to exclude a treating physician from giving expert testimony because he was not specifically identified as an expert by the plaintiff. See id.¶ 36. The plaintiff identified a treating physician as a potential witness, but did not identify him as an expert. In response to the defendants' motion for summary judgment, plaintiff offered an affidavit from the treating physician in which the physician opined about the standard of care. The trial court struck the affidavit and granted the defendants' motion for summary judgment. The court of appeals held that the plaintiff was required to specifically identify the treating physician as an expert witness even if no report was required because the physician was not specially...