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Understanding the requirements for admission of expert testimony

Over the past several years, Utah’s Supreme Court has lowered the requirements for admission of expert testimony. Utah Rule of Evidence 702 was most recently amended by the Utah Supreme Court in 2007. The 2007 amendment added the introductory clause in part (a), along with parts (b) and (c). Utah R. Evidence 702 advisory committee notes.  Rule 702 presently provides:

Utah’s Rule 702 as amended provides:

(a)                Subject to the limitations in subsection (b), if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

(b)                Scientific, technical, or other specialized knowledge may serve as the basis of expert opinion if the scientific, technical, or other principles or methods underlying the testimony meet a threshold showing that they (i) are reliable, (ii) are based upon sufficient facts or data, and (iii) have been reliably applied to the facts of the case.

(c)                The threshold showing required by subparagraph (b) is satisfied if the principles or methods on which such knowledge is based, including the sufficiency of facts or data and the manner of their application to the facts of the case, are generally accepted by the relevant expert community.

Utah R. Evid. 702 (2007).

The Utah Supreme Court has not followed the Federal “general acceptance” test annunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Federal Rule on admissibility of expert testimony is now articulated in the U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Utah Supreme Court began digressing from Frye in State v. Rimmasch, 775 P.2d 388, 396 (Utah 1989).   The Utah Supreme Court said:

In recent years, the Frye test has been criticized as being too restrictive because, inter alia, in some circumstances it can operate to deny admission of evidence based on newly discovered principles that may be reliable but so new that they cannot be said to have attained general acceptance in what may be deemed to be the relevant scientific community.

Rimmasch, 775 P.2d at 396. Prior to the 2007 amendment, Utah law required a threshold finding of “inherent reliability” before scientific evidence was introduced at trial.  State v. Rimmasch, 775 P.2d 388, 396 (Utah 1989) (citing Phillips v. Jackson, 615 P.2d 1228, 1234, 1235 (Utah1980)).  Rimmasch held, however, that the proponent of the evidence needed first to make a foundational showing that the evidence was inherently reliable.  Rimmasch, 775 P.2d at 398.  The Rimmasch Court expressly rejected the “contention that the Phillips inherent reliability threshold standard for admissibility [did] not survive[] the promulgation of rule 702 [as amended in 2000] and that mere relevancy is sufficient.” Id. This threshold finding could be made in “two different ways: a request that the trial court take judicial notice of the ‘inherent reliability’ of the testimony’s foundational principles or techniques or, alternatively, a request that the trial court determine that these principles or techniques are inherently reliable after an evidentiary hearing addressing the issue.” Id. at 399.

In amending Rule 702 in 2007, the Utah Supreme Court did not intend to make it more difficult to admit expert testimony.  Rather, it intended to clarify the requirements for expert testimony admission.  Eskelson v. Davis Hospital and Medical Center, 2010 UT 59, ¶ 11, 242 P.3d 762 (Utah 2010).

The advisory committee notes make clear that the new rule 702 “assigns to trial judges a ‘gatekeeper’ responsibility to screen out unreliable expert testimony”—not just scientific expert testimony.  Utah R. Evid. 702 advisory committee notes, ¶ 3.  When applying the new rule 702, judges should approach expert testimony with “rational skepticism.”  Id.  But the “degree of scrutiny [that should be applied to expert testimony by trial judges] is not so rigorous as to be satisfied only by scientific or other specialized principles or methods that are free of controversy or that meet any fixed set of criteria fashioned to test reliability.” Id.  Importantly, both subsections (b) and (c) require the plaintiff to make only a “threshold showing” of reliability.  Utah R. Evid. 702(b)-(c).

Eskelson, 2010 Utah 59, ¶ 12 (emphasis added).  Consequently, under Utah law, admission of expert testimony using scientific techniques or methods is more likely given the 2007 amendment of Utah Rule of Evidence 702.  The proponent of the expert testimony need only make a threshold showing that the evidence is reliable and based upon sufficient facts properly applied to the case at hand.  Utah R. Evid. 702(b).  This threshold showing can be made when the scientific evidence is accepted by the relevant scientific community, but the method or technique need not be uniformly accepted. Id. at 702(c).

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