Amendments to the Reliability in Expert Testimony Standards Act

NOTE: Prior to task force meetings, ALEC posts these legislative member-submitted draft model policies to our website. The draft model policies are then discussed, debated, and voted on by ALEC task force members. Policies that receive final approval by legislators on the ALEC Board of Directors become official ALEC model policy. Draft model policies that fail to become official ALEC model policy are removed from the website.

Summary

By recognizing the “Daubert Standard” and implementing a number of other expert testimony parameters, this model aims to keep junk science out of the courtroom. SEE AMENDMENTS IN PDF

Amendments to the Reliability in Expert Testimony Standards Act

Section 1.  Short Title

This Act may be known and cited as the Reliability in Expert Testimony Standards Act.

Section 2.  Testimony by Expert Witnesses  {FRE 702}

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(A)  the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(B)  the testimony is based upon sufficient facts or data;

(C)  the testimony is the product of reliable principles and methods; and

(D)  the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

Section 3.  Bases of an Expert  {FRE 703}

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

Section 4.  Prohibitions Regarding Expert Testimony

(A) A witness qualified as an expert by knowledge, skill, experience, training, or education may only offer expert testimony with respect to a particular field in which the expert is qualified.

(B)  An expert witness may receive a reasonable and customary fee for the rendering of professional services, provided that the testimony of an expert witness shall not be admitted if any such compensation is contingent on the outcome of any claim or case with respect to which the testimony is being offered.

Section 5.  Mandatory Pre-trial Hearing

If the witness is testifying as an expert, then upon motion of a party, the court shall hold a pre-trial hearing to determine whether the witness qualifies as an expert and whether the expert’s testimony satisfies the requirements of [Secs. 3-4].  The court shall allow sufficient time for a hearing and shall rule on the qualifications of the witness to testify as an expert and whether or not the testimony satisfies the requirements of [Secs. 3-4].  Such hearing and ruling shall be completed no later than the Final Pre-trial Hearing contemplated under [Insert relevant section from existing state law here].  The trial court’s ruling shall set forth the findings of fact and conclusions of law upon which the order to admit or exclude expert evidence is based.

Section 6.  Mandatory Pre-trial Disclosure of Expert Testimony
{FRCP 26(a)(2) and 26(b)(4)(A)}

(A)  A party shall disclose to the other parties the identity of any person it may be use at trial to present expert evidence.

(B)  Except as otherwise stipulated or ordered by the court, this disclosure shall be accompanied by a written report prepared and signed by the witness if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as a the party’s employee of the party regularly involve giving expert testimony. The report shall contain:

(i)  a complete statement of all opinions to be expressed and the basis and reasons for them;

(ii)  the facts or data considered by the witness in forming the opinions;

(iii)  any exhibits that will be used to summarize or support the opinions;

(iv)  the qualifications of the witness, including a list of all publications authored within the previous ten years;

(v)  a list of other cases in which the witness has testified as an expert at trial or by deposition during the previous four years; and

(vi)  a statement of the compensation to be paid for the study and testimony in the case.

(C)  These disclosures shall be made at the times and in the sequence directed by the court. In the absence of other directions from the court or stipulation by the parties, the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under paragraph 6B, within 30 days after the disclosure made by the other party.

(D) A party may depose any person who has been identified as an expert whose opinions may be presented at trial.  If a report from the expert is required under paragraph 6B, the deposition shall not be conducted until after the report is provided.

Section 7.  Interpretation

In interpreting and applying Section 3 of this Act, the courts of this state shall follow the Advisory Committee’s Note to the 2023 Amendment to Federal Rule of Evidence 702; moreover, the courts of this state may draw from other precedents binding in the federal courts of this state applying the standards set forth in the 2023 amendment to Federal Rule of Evidence 702 and the Advisory Committee’s Note.

Section 8.  Interlocutory Appeal [Optional]

Interlocutory appeal of a ruling on the admissibility of expert evidence shall be available at the discretion of the appellate court.  In deciding whether to grant the interlocutory appeal, the court shall consider whether:

(A)  the ruling involved any challenge to the constitutionality of this Act;

(B)  the ruling will help prove or disprove criminal liability; or

(C)  the testimony could be outcome-determinative for establishing liability or determining damages.  Neither a party’s failure to seek interlocutory appeal nor an appellate court’s decision to deny a motion for interlocutory appeal shall waive a party’s right to appeal a ruling on the admissibility of expert evidence after an entry of judgment in the case.

Section 9.  Standard of Review

(A) As the proper construction of the expert evidence admissibility framework prescribed by this Act is a question of law, the courts of appeals shall apply a de novo standard of review in determining whether the trial court fully applied the proper legal standard in considering the admissibility of expert evidence.

(B)  As the application of this Act to determine the admissibility of expert testimony is a question of fact, the courts of appeals shall apply an abuse of discretion standard in determining whether the trial court properly admitted or excluded particular expert evidence.

Section 10.  Severability

The provisions of this Act are severable.  If any portion of this Act is declared unconstitutional or the application of any part of this Act to any person or circumstance is held invalid, the remaining portions of the Act and their applicability to any person or circumstance shall remain valid and enforceable.

Section 11.  Effective Date

This Act shall become effective upon enactment and shall apply to all actions commenced on or after the effective date. The Act also shall apply to all pending actions in which trial has not been scheduled or in which trial has been scheduled in excess of 90 days after the effective date, except the Act shall not apply to any motions on the admissibility of expert testimony that have been fully briefed or ruled upon in a pending action on or before the effective date.