The Admissibility Of Expert Testimony In Alabama

As of January 1, 2012, Alabama’s standard with respect to the admissibility of expert testimony has changed. In the past, expert testimony admissibility was governed by a standard known as the Frye test, which was adopted from a United States Supreme Court case entitled Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Frye test required evidence based upon a scientific principle to be “generally accepted” within its scientific field to be admissible in court. In the latest tort reform package, the Alabama Legislature adopted the Daubert standard for the admissibility of scientific evidence.

In Daubert v. Merrell Dow Pharmaceuticals, the United States Supreme Court created a new test which required trial courts to determine whether the methods underlying the scientific expert testimony were reliable. To determine reliability, the Court listed several factors for trial courts to consider:

• whether the theory or technique can be or has been tested;
•  whether the theory or technique has been exposed to peer review and publication;
• the known or potential error rate associated with a particular technique;
• whether there were standards that controlled a particular technique’s operation; and
• Frye’s general acceptance test.
• As amended, Alabama adopted this new test. Ala. Code § 12-21-160 states as follows:
  1. Generally, 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.
  2. Scientific evidence. In addition to requirements set forth in subsection (a), expert testimony based on a scientific theory, principle, methodology, or procedure is only admissible if:
     1. The testimony is based on sufficient facts or data,
     2. The testimony is the product of reliable principles and methods, and
     3. The witness has applied the principles and methods reliably to the facts of the case.

The Alabama Supreme Court followed by adopting this new statute into Rule 702 of the Alabama Rules of Evidence, the rule of evidence that applies to expert testimony. The new rule of evidence states:

1. 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.
2.  In addition to the requirements in section (a), expert testimony based on a scientific theory, principle, methodology, or procedure is admissible only if:
   1. The testimony is based on sufficient facts or data;
   2. The testimony is the product of reliable principles and methods; and
   3. The witness has applied the principles and methods reliably to the facts of the case.

The provisions of this section (b) shall apply to all civil state-court actions commenced on or after January 1, 2012. In criminal actions, this section shall apply only to non-juvenile felony proceedings in which the defendant was arrested on the charge or charges that are the subject of the proceedings on or after January 1, 2012. The provisions of this section (b) shall not apply to domestic-relations cases, child-support cases, juvenile cases, or cases in the probate court. Even, however, in the cases and proceedings in which this section (b) does not apply, expert testimony relating to DNA analysis shall continue to be admissible under Ala. Code 1975, § 36-18-30.

(c) Nothing in this rule is intended to modify, supersede, or amend any provisions of the Alabama Medical Liability Act of 1987 or the Alabama Medical Liability Act of 1996 or any judicial interpretation of those acts.

Under the amended Rule 702, non-scientific experts’ testimony will be admissible if it meets the requirements of Rule 702(a), while scientific expert testimony must comply with Rule 702(b), the Daubert test. It remains to be seen how courts will interpret “scientific evidence.” Will courts interpret this term differently under the Daubert test than they did under Frye? Frye did not apply to all expert testimony or to all scientific evidence. Frye was implicated only when the expert testimony was both scientific and novel.

All other expert testimony was governed by Alabama Rules of Evidence 702, which requires the expert to be qualified by “knowledge, skill, experience, training, or education” and that the testimony “assist the trier of fact to understand the evidence or determine a fact in issue.” Daubert will be triggered with all scientific evidence and will apply to the expert’s methodology and conclusions, regardless of whether the scientific evidence is also novel. This may mean that some expert testimony that escaped Frye’s application may not escape from Daubert application.

But practitioners and courts should not panic when it comes to applying this new law. As one learned scholar noted, determining what is “scientific evidence” is a “task [that] is not new to Alabama courts.” It was stated:

Because the Frye general accepted test also applies to scientific evidence only, Alabama courts were required to make the same distinction under Frye. Accordingly, a well-developed line of Alabama judicial authority exists that address whether a specific type of expert or evidence is considered “scientific” for purposes of applying the Frye standard. Previous Alabama case law developed under the Frye standard will remain instructive-if not controlling-for determining whether expert testimony is scientific and subject to Rule 702(b)’s Daubert-based inadmissibility standard. The language used in Rule702(b) to describe scientific evidence subject to the Daubert standard-“expert testimony based on scientific theory, principle, methodology, or procedure”- is the same language Alabama Courts have used when describing scientific testimony to the Frye standard.

Professor Robert J. Goodwin, Associate Dean at Cumberland School of Law who authored the above statement, worked closely with the Alabama Legislature in adopting this new standard. Professor Goodwin certainly provides an authoritative voice on how courts and practitioners should interpret and apply this new standard. Still, with any new evidentiary standard adopted, there will always be concerns of misapplication and misunderstandings related to the interpretation of a new evidentiary standard. However, if lawyers are prepared and knowledgeable about the intended application of this rule, the change will not be as traumatic as initially feared.