A proposal to give judges more authority to exclude expert testimony during a trial advanced to the full Senate on Feb. 14.
One senator voted yes in the Commerce and Economic Development Committee because he had given his word to do so, but said he would likely oppose the bill when it goes to the floor. A colleague said he felt “very conflicted” after hearing testimonies of lawyers who backed and opposed S1505.
Approved by a vote of 6-2, S1505, sponsored by Sen. Barbara Leff, R-11, prohibits the admission of scientific testimony in personal injury, death or damage to property cases unless the judge determines that the expert’s opinion is reliable and useful.
It bars the acceptance of expert opinion unless it is established that the methodology used to arrive at the opinion has gained wide acceptance among peers.
“I don’t think there should be a limit to what a jury can hear,” Sen. Robert Blendu, R-12, explained his no vote. The jury, whom he said he trusts, should be able to listen to the “good, the bad and the ugly.”
Sen. Richard Miranda, D-13, echoed one lawyer’s testimony in committee by saying he felt one and half hours of discussion on the subject was not enough for him to fully digest the bill’s potential ramifications.
After testifying before the committee, lawyer Paul Giancola explained:
“The purpose of this bill is to have reliable, new scientific testimony as opposed to testimony that is simply an unsupported opinion without a scientific basis.
“This has nothing to do with whether a judge likes or dislikes expert testimony. Judges in 50 states are currently doing that. It’s just another item of fact that judges have to consider when determining whether particular types of testimony should be heard by the jury. It is a reliability standard, the same way a judge has to determine whether a testimony is relevant,” he said.
Trial lawyer: Judges aren’t experts
But trial lawyer Richard Langerman said the bill gives a judge an additional reason to exclude testimony.
“(And it is) a basis which the judge frankly isn’t qualified to do, which is to determine the reliability of scientific evidence. The judge is not an expert in that field,” Langerman said.
After the bill was given approval, Langerman lamented that lawmakers sometimes think they are more knowledgeable than the courts on court procedures.
“Would it apply to psychologists≠ The answer is it would and it would exclude all testimony based on clinical judgment because clinical judgment is not something that is subject to peer review,” he earlier testified.
“It is clinical judgment based on education, training and experience of a clinician… All of them every day use their clinical judgment to make life and death decisions and those life and death judgment decisions that they make are good enough to keep us healthy, but under this bill, they would not be good for a jury to hear.”
The bill requires the court to consider the following factors when examining an expert opinion:
• Whether its basis has been or could be tested.
• Whether the opinion and its basis have been subjected to peer review.
• Whether the basis is reliable and to what degree it has been accepted in the expert community.
• Whether the opinion or methodology is relied on by experts outside of litigation.