Utah Rules of Evidence

I am expressing my concern and my opposition to the proposed Rule of Evidence 702. In nearly every federal case that I have had, the Daubert challenge is used to oppose nearly every expert. It has substantially increased the expense of litigation for attorneys and for clients, since the experts charge for all of this additional time. In practice, it is purposely being used to, or it has the practical effect of, discouraging the use of experts and wearing down a party with less means to pursue litigation. It gives the upper hand to the party who can best afford the burdensome process. It usually requires hearings and extensive paper work, adding to the burden of the already burdened trial judges. Unlike federal courts, our state trial judges do not have the clerks and resourses necessary to adequately handle this process. The current Rule 702 adaquately protects against improper expert testimony without facilitating the much more involved and expensive Daubert process.

I write in opposition to the proposed amendments to Rule 702. The adoption of the 2000 federal amendments for Utah is ill-advised and contrary to many years of Utah jurisprudence. It believe it will also significantly drive up the cost of litigation without attendant benefits.
Is this a solution in search of a problem? I am aware of no problem with “junk science” in Utah courts nor are any of my colleagues with whom I’ve spoken. What then, is the reason for this significant change to our long-established state approach, other than a desire for consistency with the federal rules?
The federal rules should be no model for Utah. They have been amended repeatedly in recent years, are in a constant state of controversy, and the rule that the Advisory Committee now suggests that we copy is only the most recent iteration from the federal system.
Utah has a system for dealing with experts that works; why change it? State v. Rimmasch,775 P.2d 388 (Utah 1989) and its progeny stand for the proposition that the Rule 702 “helpfulness” standard is the general rule for the admission of all expert testimony, but where it involves novel scientific principles or techniques, courts should apply an additional “inherent reliability” test. See, State v. Kelley, 1 P.3d 546 (Utah 2000) (rejecting need for Rimmasch analysis for IQ tests) and Patey v. Lainhart, 977 P.2d 1193 (Utah 1999) (rejecting Rimmasch analysis for endodontal issues, for two recent examples among many.
The proponents of these rules changes assert that “junk science” needs to be kept out of court. Like motherhood or apple pie, who could disagree? But there simply are no data beyond anecdotes to indicate that the present state expert evidence system isn’t working, or that it needs tweaking.
Daubert was originally thought to liberalize federal evidence practice and abolish what was regarded as Frye’s antiquated insistence that expert opinions represent a “consensus” view.
However, the Daubert/Joiner/Kumbo Tire trilogy had quite the opposite effect on civil plaintiffs, triggering a deluge of pretrial motions. In the six years after Daubert, federal courts published 1,065 opinions on expert admissibility on these motions, 871 of which involved civil cases, or thirty six times the number of rulings in civil cases in the previous six-year period.
The great majority of Daubert motions are filed by civil defendants and they have been winning nearly seventy percent of the time. Groups like the American Tort Reform Association and the Defense Research Institute are urging defense lawyers to file Daubert motions whenever possible. These groups promote the motions as a low-cost way to exhaust the patience and finances of all but the most well-funded and persistent plaintiffs’ lawyers.
That’s exactly what has been happening in federal courts, with Daubert motions a routine part of nearly every civil case. Indeed, one federal judge included “Daubert Motions” in his form pretrial order. Nearly every expert of any stripe is put through the gauntlet, requiring controverting affidavits and hearings on matters that were traditionally thought to properly be the place for cross examination.
The cost and harassment for a plaintiff trying to get a personal injury case to a jury is rarely something that academics and judges consider, but it is perhaps the most pernicious aspect of the proposed change. Treating physicians are reluctant enough to testify; forcing them through time-consuming motions will make them even less likely to be willing to appear as witnesses.
The effect of the Daubert motion practice has been to devolve power to judges or magistrates to decide not only the qualifications but the weight to be given to experts.
I question whether Utah state trial judges have the time or inclination to be burdened with a substantial wave of new pretrial motions. They certainly do have the law clerk support that the federal judges must rely upon.
The rush to federalization of the evidence rules has been rejected by most states that have had the opportunity to consider it. Utah should do likewise. Like Utah, many jurisdictions limit “validity/reliability” analysis to the ten percent of experts who offer purely scientific testimony, not to the forty percent who offer medical expertise or the remaining half who supply all kinds of other expert testimony.
Francis J. Carney

I write in opposition to the proposed amendments to Rule 702, Utah Rules of Evidence. As a lawyer who represents plaintiffs in tort actions, I oppose the changes for all of the reasons set forth by Mr. Humpherys, Mr. Carney and Mr. Abbott. I have personally experienced defense counsel using Daubert motions as clubs to obstruct and exhaust plaintiffs in every Federal Court case I have participated in since Daubert and its progeny were decided and anecdotally, every plaintiffs’ lawyer I have spoken with about the issue has had the same experience. The current Rule 702 scheme in Utah works and there is no reason to change it.

Re: Opposition to Proposed Utah R. Evid. 702
To Whom it May Concern,
This letter is intended to state my position opposing the proposed amendment to Rule 702 of the Utah Rules of Evidence to the Supreme Court and its Advisory Committee. This letter is substantially similar to one I wrote about 4 years ago when Rules 701 through 703 were proposed to be changed. I am of the firm belief that nothing has changed since the time of my letter to justify any need for a change which was passed over at that time. My thoughts are as follows:
I believe adoption of these amendments are unnecessary and would create an undue burden (particularly with regard to many of the cases of individuals with problems against corporate or business defendants).
In large part, these proposed changes seem based upon the changes to the federal counterpart to our rules. My comments stem from my concerns with both the federal rules and with the proposed changes to the Utah rules.
I believe in the old adage, “If it isn’t broken, don’t fix it!” I believe the proposed rule changes make the process a lot more expensive, both in time and money for all participants. This is particularly onerous to cases where the prospective Plaintiff is an individual and the prospective Defendant is a corporation or other business entity with more funds and time available to litigate. I believe the system is in good shape as it stands. Our system is an adversarial system, where one side proposes evidence, a judge decides if the evidence is relevant to the case, and if it is, it may be presented to the jury. Opposing counsel then has an opportunity to rebut the content and the expertise and credibility of the expert. Thereafter, the jury gets to decide what weight the expert testimony will receive.
I place great faith in a jury. In my opinion, the differing life experience and collective intelligence of a jury generally far surpasses that of most individuals. I believe that a jury can distinguish between the import and needed weight of the testimony of “Jerry” from “Jerry’s Tires,” who has spent 20 years watching what road wear does to tires, and that of a certified Professional Engineer from “Worldwide MegaTire” who’s spend 10 years with them in laboratory conditions only. If there’s an error or inconsistency, the jury members will probably catch it. If they miss something, the trial judge should catch the error. If not, the appellate court is in a position to correct the error. The Utah Supreme Court should only need to come into the picture if there has been a major error in a specific case which has not been caught through this process.
I foresee increased difficulties for plaintiffs, especially individuals, who’ll bear the increased burden of time and expense. Judges may now have to hold a hearing on every “expert” brought to the court and defense attorneys now have an added opportunity to prevent technical or scientific testimony from reaching the jury. There are also the added cost of procuring “appropriate” expert testimony. Many struggling consumers and injured parties may not be able to afford the experts or at least the expense of the “qualifying process” of the experts. Will recognized and frequently used experts, sometimes referred to as “professional witnesses,” be cut out of the system because of the way they make their living? Will non-credentialed individuals with years or decades of personal experience doing the job suddenly find their testimony barred because their industry does not have a tradition of publication or review by colleagues? How will new methods, tests and procedures be viewed? Will they be dismissed simply because there isn’t a recognized body of study, known error rates, or general acceptance?
I believe that no single rule can fit the broad range of technical and scientific experts. I don’t believe we need more standards on experts. What we need is to put more trust in the experience and intelligence of the juries. If the trial court properly determines relevance and counsel for the Plaintiff and the Defendants properly do their job of establish the strength and weaknesses of expert testimony, the jury should be able to accord expert testimony its proper weight. As I have earlier stated, if they err, the trial court or appellate courts should be able to address these few limited instances. If the point is to limit appellate claims, I believe these will only increase with the proposed rule changes.
I would request that the proposed rule change not be adopted. We are not sheep to blindly follow the federal shepherd. Let us not change without convincing proof that the people are better served with these changes. Our system works. Our rules and appellate case law already address those concerns necessary in accepting and reviewing expert testimony. Sometimes, as the saying goes, “less is more.”
According to an article by Huron Consulting Group [www.huronconsultinggroup.com; 866-229-8700 — I could provide a copy if needed], as of 2004, ten states had rejected the Daubert standard. These states are: Arizona, California, Florida, Kansas, Maryland, Michigan,
Missouri, New York, North Dakota, and Pennsylvania. Four states that apply some combination of Frye or Daubert are: Alabama, Nevada,Tennessee, and Virginia. Furthermore, Utah is one of seven states and the District of Columbia that follow their own state version of a relevance/reliability determination, usually based on the respective state code of evidence:
Colorado, Hawaii, New Mexico, South Carolina, Utah, and Wisconsin, and the District of Columbia.
Utah does not stand alone in refusing to adopt Fed. R. Evid. 702 and the Daubert standard. For the reasons presented herein, I respectfully urge the Utah Supreme Court and its Advisory Committee to not adopt the proposed revisions to Utah R. Evid. 702. I believe that numerous other practitioners of the law feel as I do and would urge you to consider similar comments to mine. I would be more than happy to be contacted by the Court or the committee if you would like to discuss my opinions in more depth.
Sincerely,
Jon H. Rogers
Jon H. Rogers, Attorney at Law #6434
803 North 300 West, Suite N144
Northgate Business Center
Salt Lake City, Utah 84103
Telephone: (801) 532-6272
Facsimile: (801) 532-4192
E-Mail: jhrogers@burgoyne.com

Far more state Tort law cases are filed in the state court system than in the Federal system. Federal experience would not be directly applicable to a state court Daubert standard.The exellant state court judges would likely be flooded with Daubert hearings. The cost of these hearings would be prohibitive to the smaller state law tort case. It would have the effect of closing the door on the cost effectiveness of the average state tort law claim.The economics of state tort law practice have changed dramatically in recent years.Adopting the Daubert system in state court will close the courthouse door for many smaller cases that now at least have a fighting chance.If the current standard is confusing to the excellant state bench we have, educate the state bench.Please don’t give us a system that will burden the state judges with Daubert hearings in every case. The temptation to attempt an evidentiary tactical advantage is too great for the average attorney.Leave the hearings for only the “novel” expert testimony as under the present “Rimmasch” standard.Let the rest be weighed by the jury.Carefully review the comments by the practioners and you will note that they are overwhelmingly opposed to the federal approach.The comments are filled with excellant reasons.For each of these reasons,the Daubert standard is not a solution and should be rejected. Thank you, Bryan A. Larson

Dear Evidence Committee:
I would like to express opposition to the adoption of the Daubert standard for Utah Rules of Evidence 702. I believe that the imposition of the Daubert standard for the admission of expert testimony will be detrimental to the judges who have large caseloads and limited time, as well as detrimental to the Utah’s litigants.
The Federal Court can justify the additional expense and administration of expert testimony under Daubert because the jurisdictional minimum in Federal Court is $75,000.00. Federal cases generally have a much higher value than the average case in State Court. The value of the Federal case justifies the attacks and defense of exert witness testimony before the Federal Court because of the risk of a high recovery. In many cases in State Court, the value of the case does not justify extensive briefing and hearings on the admission of expert testimony. In State Court, the costs of the more stringent expert reports and the expert’s testimony in a Daubert hearing often exceed the value of the case to the plaintiff and plaintiff’s counsel. In the case of an attorney taking the plaintiff’s case on a contingency fee, these costly reports and hearings may cause attorneys not to accept cases with relatively small values, when the same case would be acceptable except for the additional costs imposed by Daubert. Defense counsel are often glad to file more pretrial motions that can increase the value of each case to their offices. These increased costs close the courthouse door to many individuals who have access to the courts now. The result is justice denied because of an evidentiary rule that has significantly increased the costs of litigation.
The State Courts do not have the resources of the Federal Courts. Federal Courts have clerks to assist the judges in researching and preparing for Daubert hearings. State Courts do not have this benefit. It is not unrealistic to believe that Daubert hearings will occur in virtually every case utilizing an expert witness. This is the reality in Federal Court. These hearings require the Court to know the Daubert cases from virtually every circuit and from the U.S. Supreme Court. If Daubert became the law in Utah, the trial courts would have to be familiar with the rulings of the Utah Supreme Court and the Court of Appeals, as will as the Federal case law in rendering its decisions. If a split in the Federal circuits occurs, the State trial court will be forced to choose one of the sides of the split decisions to follow, even though the case was not a Utah case. The trial court’s requirement to be familiar with the law from many different jurisdictions would be burdensome to the State trial court judges.
There are many more cases filed in the State Courts than in the Federal Courts. If Daubert became the law of expert witnesses in Utah, the trial courts must expect many more motions for each case to be filed than it presently experiences. This is likely to increase the workload of the State trial judges. Currently, there is a very small percentage of cases that are actually tried. This percentage is not likely to change with a Daubert expert witness rule. Therefore, the work that a judge must perform on each case will increase, badly taxing the limited judicial resources of the State. The Rimmasch standard is familiar to the State trial courts, has worked well in the past, and is a product of Utah jurisprudence. If there is some confusion about this standard, Rule 702 could be clarified and additional comments included in the commentary. But a wholesale abandonment of Rimmasch is too drastic and unwarranted. I have not seen any studies or evidence justifying the abandonment of the Rimmasch standard. Such studies or evidence would seem advisable in light of the huge detrimental effect this rule change could bring.
Revising Rule 702 seeks to fix a rule that is not broken and risks imposing additional burdens on the already limited State trial courts which will render little benefit to justice. Revising Rule 702 will significantly increase the cost of litigation to all parties and close the courthouse doors to many. The ends of changing Rule 702 are not justified by the means of imposing Daubert hearings on the admission of expert testimony when access to the courts is already an issue undermining the public’s respect for the judiciary. The increased cost of access to the courts minimizes the fundamental principle of equal protection and due process under the law. If one does not have access to the courts, one is not able to avail oneself to due process and protection under the law. We should strive to make the courts and the justice they administer accessible to more citizens, not less.
Thank you for your consideration.
Sincerely,
Ralph C. Petty

I am writing to express my concerns about the proposed changes to URE 702 that will incorporate Daubert standards regarding expert testimony. I have read all of the comments of my esteemed colleagues opposing such a change in the rule. I agree with most of the reasoning contained in those comments and will not restate those arguments.
However, I hope the committee will focus on the practical effect of a change to the federal standard when it comes to the potential testimony of physicians and other medical professionals. Most doctors are already reluctant to testify. Many have told me that doing so takes them away from their clinics or scheduled procedures, causes great inconvenience to their patients, and effectively removes them from the setting they feel they can do the most good. A Daubert standard will undoubtedly invite many needless motions attempting to further restrict medical testimony. Most treating physicians do not have the time, energy, or desire to school themselves to prepare for Daubert type hearings. Injured people will be forced to retain separate experts to testify about medical conditions, causation, and prognosis that have previously been addressed by treating physicians further complicating the trial and increasing the costs dramatically. The people hurt most by this will be the people who need justice most–injured plaintiff. Yet we must not forget the practical effect on the medical professionals and their patients. I forsee a widening of the gap between the legal and medical professions in the event a Daubert standard is adopted. We should be doing all we can to lessen that gap.
The Rimmasch standards for novel scientific testimony coupled with the current rules have worked well and will continue to do so. I encourage retention of the current URE 702.

Dear Evidence Committee:
My heart sank when I read the proposal to adopt Federal Rule of Evidence 702. I already avoid filing cases in federal court whenever possible because of the effects of the triology of Daubert, Joiner and Kumho Tire in creating obstacles to the admission of evidence that I think a jury should be permitted to weigh. Whereas the Rule originally was used to scrutinize novel scientific evidence to determine its admissibility, it has evolved into a restriction on admission of all types of expert evidence, whether scientific or not and whether novel or not. Federal courts now apply a type of “strict scrutiny” in determining whether to admit expert testimony, regardless of whether it is scientific or novel. The better approach is the one adopted in Utah and reflected in State v. Rimmasch, 775 P.2d 388 (Utah 1989), and its progeny. Under the present Utah rule, if expert testimony does not involve novel theories or “junk” science, a witness offering testimony need only be shown to have expertise in the field. The reliability of that testimony is a matter of weight, not admissibility. (See Alder v. Bayer Corp., 2002 UT 115, 61 P.3d 1068.) Fact finders are trusted to determine what testimony should be heeded.
The new rule, if adopted, could be used to prevent the admission of evidence of medical diagnoses, some of which are based on experience, not science. The very holding in the Alder case would be overturned because of the dearth of science on chronic fatigue syndrome and fibromyalgia. When one considers the fact that science cannot explain why aspirin works the way that it does, it can be recognized that science has limitations that should not necessarily spill over into the legal system.
The new rule would require more extensive, published, professionally reviewed, tested and testable methods in areas that are not required now. Experts in such subjects as safety, design, driving, mechanics, etc., don’t always publish in journals. Their testimony is experience-based, rather than science-based. A mechanic with 30 years experience repairing broken engines may not read the latest textbooks and publications in his field, yet may have great expertise on a subject that will assist the trier of fact to decide important issues in a case. The new rule will preclude the admission of much experience-based testimony.
The federal cases interpreting federal rule 702 have required “general acceptance” within the community of experts for expert opinions to be admitted into evidence. This gives limited opportunity for the law to respond to new discoveries. After all, hand washing as a means to prevent infection was not “generally accepted” in the medical community for many years, yet, if testimony had been offered on the point, it would have been valid, and it should have been admitted.
I had a case (since resolved) in which my client was given 150 times the recommended dose of a medication in connection with the administration of anesthesia for a surgical procedure on her knee. Furthermore, the medication was the wrong one. Immediately thereafter, she developed a heart condition that her doctor connected to the medication error. There was no “science” to support his conclusion. No tests had ever been conducted to determine the effects on the heart of administering 150 times the recommended dose of this particular medication. It would have been unethical to conduct such experiments on humans. In a conversation that I had with Magistrate Judge Ron Boyce, after the Kumho Tire case was handed down, he told me that, absent scientific studies, the treating doctor would not have been permitted to render an opinion in federal court on the causal link between the heart ailment and the medication error. His solution: pay for your own study. Fortunately for my client, the case was in state court.
I can foresee that, in many of my cases, defendants will make motions to exclude expert testimony, thereby requiring the court to hold evidentiary hearings. This will cost me and my clients more time and money, thereby raising the breakpoint on cases that I (and my colleagues can accept. The result will be to deprive many litigants of the right to access the courts, simply because such access is cost prohibitive.
In state courts, where judges lack the help of the number of clerks and staff that federal judges have, it is unreasonable to expect them to operate under a new rule requiring them to spend more time unless greater resources are forthcoming. I doubt that greater resources for this purpose will be forthcoming.
The proposed change in rule 702 is also an expression of distrust in the jury system. Juries are perfectly capable of recognizing expert testimony that is weak, unsupported or bogus. The adversary system permits cross-examination that exposes the weaknesses in expert testimony that should be disregarded. The existing state system really does work. There is no reason to believe that the federal system is superior.
It is my understanding that the impetus for adoption of the federal rule is uncertainty on the part of the state trial bench in application of the Rimmasch standard. Perhaps providing training and education on the application of Utah Rule of Evidence 702 would cure this problem, without changing the jurisprudence of expert witness testimony in Utah and without spawning a whole new wave of litigation to flesh out the meaning of a new rule.
Sincerely,
RALPH L. DEWSNUP
DEWSNUP, KING & OLSEN
202 BENEFICIAL LIFE TOWER
SALT LAKE CITY, UTAH 84111
801-533-0400

I oppose the proposed adoption of Fereral Rule 707. Utah has a large body of law defining the Rimmasch standard which has served judges and litigants well. This standard deliniates between the novel, emerging scientific theory and science which is reliable, and well established. Federal Rule 702 does not. FR 702 is the source of costly collateral litgation which is an impedement to legitate claims. If others see problems with Utah’s current rule, small changes appropriate to the concerns are a better approach than abandoning Utah’s Rimmasch standard.

Dear Evidence Committee:
I concur in the reasons already given for leaving Rule 702 of the Utah Rules of Evidence as it is. Apparently the purpose for changing Rule 702 is to move from a Rimmasch test to a Daubert test. The prospect of routine Daubert hearings, even in the absence of proposed novel scientific evidence, is particularly disturbing.
Under current Utah case law, the jury decides the weight to be given to expert testimony, unless the expert is relying on some novel science. Dentistry and endodontia are not novel. Accordingly, the dentist in Patey v. Lainhart, 1999 UT 31, 977 P.2d 1193, was allowed to testify that Patey needed root canals on 27 teeth because when she turned left into her driveway, she was hit by another vehicle going 35 miles per hour.
On the other hand, the test under Daubert is applied whether the science is novel or not. So even though neurology is not a novel science, a neurologist was not allowed to offer his expert opinion in Solorio v. United States, 228 F. Supp. 2d 1280 (D. Utah 2002), aff’d 85 Fed. Appx. 705, 2004 WL 65295 (10th Cir. 2004). After crashing into and killing a pedestrian, the driver was having a seizure. No jury ever heard from the board certified neurologist who was 99.99% certain the seizure did not begin before the crash. There had been no “two- or three-day trial” to show his opinion should be admitted. Solorio, supra, 2004 WL 65295. Rather, the pedestrian’s case was dismissed because the evidence was excluded that showed the driver was not impaired by a seizure when she hit the pedestrian.
Both Solorio’s estate and Patey may have been able to satisfy a Daubert hearing, but at what cost? Would they have been forced to bring in an expert from out of state, an expert with greater hourly rates and requiring greater transportation and per diem allowances? Would the hearing indeed have taken two to three extra days to qualify the expert testimony? Certainly the costs of the litigation would have increased.
A substantially greater expense may be justified in a wrongful death action, but what about a dental case? Or a case involving a couple of broken limbs? Or a case of facial scarring? Clearly many wrongs cannot be remedied if the expert witness costs are substantially increased.
If people who are injured cannot take their cases to court because of the expense of qualifying experts, how do they get justice? Through the small claims court? Or alternative dispute resolution? Or services provided pro bono? Or not at all? No matter what they choose, the public will surely be more antagonistic towards the courts, the lawyers, and the system of justice that cost too much for them even when they have a substantial case.
The Daubert test has been increasing costs in the federal courts for several years now. This may be excusable on the basis that federal courts generally handle only major cases. However, state courts must strive to provide justice to all people, whether their cases are major or not. Making the litigation process more expensive is not the way to accomplish this goal.
Sincerely,
Lynn P. Heward
ROBERT J. DEBRY & ASSOCIATES

Placing a veneer of federal authority over state rules does nothing to advance law and policy decisions for Utah. Our state carries its own social, political and legal concerns which should not be held hostage to ever changing, and often contradictory, federal decisions. Adopting Federal R. 702 raises two distinct dangers. First, trial courts may rely too heavily on extrajurisdictional federal authorities in reaching their decisions. These authorities do not necessarily reflect the values and policies of Utah jurisprudence. Second, by looking to federal authority for guidance, the evolution of Utah evidentiary law, becomes lazy and stunted in its growth.
In effect, the trial court will now decide a substantive issue of state law based upon federal interpretations of Rule 702. State appellate courts will examine any appeal from the trial court’s decision based upon an abuse of discretion standard of review. Because the abuse of discretion standard limits the appellate court’s ability to correct decisions which do not necessarily reflect Utah policies, adoption of 702 cedes decision making power to federal authorities.