This spring, Alabama legislators are considering a piece of legislation (Senate Bill 187) proposed by Republican Senators Ben Brooks and Cam Ward that seeks to modify the rules that permit expert witnesses to testify during civil and criminal trials.
For decades, courts in Alabama have used a set of rules known as the Frye test to determine when an expert witness is allowed to testify in court and on what issues. This rule requires that expert testimony with regard to scientific techniques or tests must be based on principles sufficiently established to have gained general acceptance in the particular field in which it belongs. M. Roberts, Alabama Tort Law 44.08 (Lexis Law Publishing 5th edition 2010). A statute in the current Alabama code states: “The opinions of experts on any question of science, skill, trade or like questions are generally admissible, and such opinions may be given on the facts as proved by other witnesses.” In other words, expert testimony dealing with scientific techniques or tests—such as a doctor explaining a complex surgical procedure or an engineer reconstructing an accident scene using physics—has to be based on principles that are generally accepted within the relevant field.
Although this approach to expert testimony has long been used in Alabama courts, some other states and the Federal court system use a different test, known as the Daubert test. The current legislative proposal seek to adopt this Federal test. The Daubert test is a much more cumbersome, time-consuming and potentially expensive set of rules in comparison to what Alabama currently uses. The wisdom and fairness of changing Alabama’s expert testimony rules are debatable. Practically speaking, although the modified rules are being hailed by the bill’s sponsors as a sort of tort reform, the shift is likely to bring about more pre-trial motions and hearings such as "gate-keeping" hearings because of the more differing requirements under the proposed Daubert test, thus adding to the length and cost of litigation for the state, in addition to increasing expense to both plaintiffs and defendants in litigation. In a state judicial system already stretched thin as a result of burdensome budget cuts, adding more—and costly—procedural requirements is not practical. In addition, the strength of our legal system—and much of its fairness—is built upon its predictability. A sudden change in the admissibility and use of expert testimony calls into question that principle of fairness for individual litigants.
A Cum Laude Honors graduate of Cumberland School of Law, Alabama tort law expert Mike Roberts has successfully litigated cases covering civil litigation, personal injury, negligence, product liability, wrongful death and fraud. He is the author of six editions of Alabama Tort Law, and is licensed to practice law before the United States Supreme Court.