Logerquist v. McVey

McGREGOR, Justice,

dissenting:

¶ 98 Although I agree with much of Justice Martone’s dissent, I write separately to emphasize several areas of concern that today’s majority opinion raises.

¶ 99 I am concerned about the tendency of the decision to isolate Arizona’s courts from the mainstream of judicial analysis. All federal courts, of course, must apply Daubert 1 and Kumho 2 in interpreting and applying Federal Rule of Evidence 702, which is identical to Arizona Rule of Evidence 702. In addition, a large majority of states also follow *498 Daubert or a similar standard. See Heather G. Hamilton, The Movement from Frye to Daubert: Where Do the States Stand?, 38 Jurimetrics J. 201 (1998) (noting that by December 15, 1997, thirty-three states had adopted Daubert).

¶ 100 Arizona, therefore, now falls within a tiny minority of jurisdictions that have chosen to adopt a unique interpretation of Rule 702. I see two significant negative results. First, evidentiary rulings that could significantly affect the outcome of litigation will differ depending upon whether an action proceeds in state or in federal court. We have tried to avoid such distinctions. Second, because our approach diverges from that taken in most jurisdictions, Arizona’s courts will lose the advantage of being able to learn from and follow the reasoning of other courts as they develop and apply Rule 702.

¶ 101 I also am concerned that, by rejecting Daubert, we lose the flexibility needed to admit evidence based upon reliable, but newly-developed, scientific principles. Although the majority describes our experience with Frye 3 as having been “not bad,” Op. at ¶ 47, Frye has been frequently criticized because the delay between the development of knowledge and its ability to satisfy the “general acceptance” standard deprives the courts of rehable evidence that should be placed before the trier of fact. The time lag between progress and the ability to satisfy Frye becomes more important as our scientific knowledge multiplies in ever shorter intervals. In Arizona, unlike most jurisdictions, new data and principles, regardless of their validity and reliability, will be excluded from our courts until they attain general acceptance within the relevant scientific community. Frye, despite its shortcomings, 4 may have provided an adequate basis for testing scientific evidence in the past. I do not think, however, that test best responds to the challenges facing courts today.

¶ 102 I also question whether the distinction the majority makes between “scientific” evidence, which must meet the Frye test to be admissible, and “non-seientific” evidence, which need not comply with Frye, rests on a firm basis. According to the majority, evidence is “scientific” if an expert witness reaches his or her conclusion through the use of deductive reasoning, and not scientific if the expert relies upon inductive reasoning. Op. at ¶ 62. I do not believe that distinction will prove useful and suspect it will produce inexplicable evidentiary rulings. For example, research scientists tell us that certain components of human behavior seem to be related to, and may be caused by, genetic characteristics. In an action similar to that before us, if one expert, relying upon his observations, reaches a conclusion about a party’s “human behavior” by reasoning inductively, his testimony would be admissible so long as his credentials are acceptable. But if another expert witness, with an equally impressive curriculum vitae, concludes that the plaintiffs human behavior could be explained by reasoning deductively from known principles of genetics, that expert’s testimony would be subject to the Frye analysis. The admissibility of testimony from two expert witnesses about the same subject-a litigant’s human behavior-would be tested against two different standards. And, as noted above, whether each expert can testify will depend in large part upon whether the action proceeds in state or in federal court. I see no benefit to trial courts or litigants from following a path that leads to such a result.

¶ 103 Moreover, unlike the majority, I would not permit the admission of unreliable evidence in the hope that the adversary pro *499 cess will disclose its lack of validity. I do not think that allowing a jury to hear unreliable, invalid “expert” evidence benefits either our judicial system or the litigants. Under the approach of Daubert, which the majority rejects, expert testimony can be admitted only if it is based on reliable facts or data and on sound scientific methods and valid procedures. 509 U.S. at 592-93,113 S.Ct. at 2796. If expert testimony cannot meet those criteria and, therefore, does not rest on a reliable basis, I think it unlikely its probative value could ever outweigh the danger of unfair prejudice, the likely confusion of issues, or the likelihood the jury will be misled. See Ariz. R. Evid. 403. “The probative value of scientific evidence ... is connected inextricably to its reliability; if the technique is not reliable, evidence derived from the technique is not relevant.” Paul C. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later, 80 Colum. L. Rev. 1197 , 1235 (1980). We can justify admitting unreliable, invalid evidence only if we are willing to substitute a trial judge’s analysis of an expert witness’s credentials for the judge’s analysis of the reliability of the data and methods used to produce the expert’s testimony.

¶ 104 The majority’s concerns, it seems to me, derive from an overly-broad interpretation of Daubert/Kumho. The majority repeatedly asserts that, if we adopt Dau-bert/Kumho, the trial judge will be permitted to evaluate the reliability and credibility of an expert witness and will determine the weight to give his or her testimony. Op. at ¶¶ 44, 51-54. Daubert, however, focuses not on the credibility of a witness, but upon the scientific validity of the proffered evidence. 509 U.S. at 590, 113 S.Ct. at 2795. The trial judge tests not the believability of an expert witness, but rather the reliability of the witness’s methodology. Unless we conclude that permitting a jury to hear a credible witness testify about unreliable, invalid “science” somehow assists the truth-finding function, a conclusion I find untenable, we should not hesitate to adopt the Daubert approach.

¶ 105 For those reasons, I would adopt the Daubert/Kumho approach and remand for a hearing applying those standards.

. 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993).

. 526 U.S. 137 , 119 S.Ct. 1167 , 143 L.Ed.2d 238 (1999).

. 293 F. 1013 (D.C.Cir.1923).

. Commentators and courts criticized Frye

for its difficulty of application due to the inherent vagueness of the concept of "general acceptance,” its susceptibility to manipulation, the inconsistent results it generates, its overly conservative exclusion of relevant evidence, the tendency of courts to rely on previous judicial assessments of scientific theories and techniques rather than their own evaluations, and the documented admission of evidence satisfying Ftye but subsequently deemed unreliable.

Richard Nahas, Daubert v. Merrill Dow Pharmaceuticals, Inc. Requiem for Frye: The Supreme Court Lays to Rest the Common Law Standard for Admitting Scientific Evidence in the Federal Courts, 29 New Eng. L. Rev. 93 , 101-02 (1994) (citations omitted).