Interpreting Rules and Constitutional Provisions
Jurisdiction | Utah,United States |
Citation | Vol. 21 No. 2 Pg. 10 |
Pages | 10 |
Publication year | 2008 |
Vol. 21, No. 2, 10. Interpreting Rules and Constitutional Provisions
Utah Bar Journal
Vol. 21, No. 2
March/April 2008
Vol. 21, No. 2
March/April 2008
Interpreting Rules and Constitutional
Provisions
Interpreting Rules and Constitutional
Provisions
Remarks by Laura Dupaix, Linda Jones, and Christina
Jepson Schmutz
Edited by John Bogart
Editor'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, 227 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.3
Haupt 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, 1141
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...
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