How does a state witness competency rule affect the admissibility of expert testimony? In a Federal Tort Claims Act case of first impression, the Ninth Circuit reverses judgment based on admission of medical malpractice expert testimony; circuit notes under the FTCA there is a sequential screening of proffered expert witnesses where under FRE 601 "state law governs the witness's competency regarding a claim or defense for which state law supplies the rule of decision,” and then FRE 702 governs the determination of the expert testimony reliability, in Liebsack v. United States, __ F.3d __ (9th Cir. Sept. 23, 2013)
FRE 601 is not a commonly utilized rule in the Federal Rules of Evidence. In pertinent part, the rule provides: "in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision." On the other hand, FRE 702 involves a steady stream of dispute. Yet, in certain types of litigation there is a close relation between the two rules and their application. This issue was presented in a recent Ninth Circuit case that considered the interplay of FRE 601 to specify the competency of an expert witness in a professional malpractice case based on standards of professional competence recognized by the states.
Professional Malpractice & State Requirements
In the case, plaintiff Liebsack suffered a stroke while receiving medical care for a "schizoaffective disorder that was treated ... with lithium." Allegedly her death was the result of a mix-up among her various medical providers. The controversy over the mix-up involved whether the federal government would be liable for not having processed a medical test ordered for the plaintiff, or was it the negligence of the non-federal providers of medical services to the plaintiff. The mix-up resulted in the plaintiff suffering a heart attack due to lack of effective monitoring, resulting in her lithium reaching toxic levels. The plaintiff sued her various medical providers for negligence, including the federal government under the Federal Tort Claims Act (“FTCA”).
The case was removed to the U.S. district court, where the government asserted as it's "primary defense at the ensuing bench trial ... that the fault lay with another, nonfederal healthcare provider." In its verdict, the court found that other non-federal providers were at greater fault than the government. Under the applicable state comparative negligence scheme, the court assigned 15% of the fault to the federal government.
Whether State Law Requirements Apply
On appeal, the plaintiff argued that the government had been improperly allowed to present evidence regarding the negligence of nurse practitioner Jones, one of the non-federal providers. The plaintiff argued that the government's evidence concerning Jones failed to conform with "an Alaska statute requiring specialized expert testimony in medical malpractice actions." Under Alaska Statute § 09.20.185, certain requirements were established for an expert witness on the issue of the standard of care. The statute provides:
(a) In an action based on professional negligence, a person may not testify as an expert witness on the issue of the appropriate standard of care unless the witness is (1) a professional who is licensed in this state or in another state or country; (2) trained and experienced in the same discipline or school of practice as the defendant or in an area directly related to a matter at issue; and (3) certified by a board recognized by the state as having acknowledged expertise and training directly related to the particular field or matter at issue. (b) The provisions of (a) of this section do not apply if the state has not recognized a board that has certified the witness in the particular field or matter at issue.
Liebsack, __ F.3d at __.
The Ninth Circuit set forth several propositions to guide its assessment in the case. It noted that the government's liability under the FTCA:
“[T]he extent of the United States' liability under the FTCA is generally determined by reference to state law.” Molzof v. United States, 502 U.S. 301, 305 (1992); 28 U.S.C. § 2674. But “[i]t is clear that federal law governs all procedural aspects of a claim under the [FTCA].” Schwarder v. United States, 974 F.2d 1118, 1126 (9th Cir. 1992). In the analogous setting of diversity suits, the Federal Rules of Evidence “ordinarily govern.” Wray v. Gregory, 61 F.3d 1414, 1417 (9th Cir. 1995). However, “where a state evidence rule is intimately bound up with the rights and obligations being asserted, Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938), mandates the application of a state rule in a diversity suit.” Wray, 61 F.3d at 1417 (internal quotation marks, alterations, and citations omitted). Moreover, Federal Rule of Evidence 601 instructs that, in civil cases, “state law governs the witness's competency regarding a claim or defense for which state law supplies the rule of decision.”
Liebsack, __ F.3d at __.
Sixth Circuit Approach In Legg v. Chopra
In order to determine if the Alaska professional negligence standard was applicable, the circuit discussed a Sixth Circuit case that "addressed a nearly identical question in the context of a medical malpractice diversity action." The case was Legg v. Chopra, 286 F.3d 286 (6th Cir. 2002), in which the court noted the relation of FRE 601 and FRE 702. As described by the Ninth Circuit:
Legg also held that application of Rule 601 ... did not displace Rule 702, which—together with the analysis in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)—governs the admissibility of expert evidence. See Legg, 286 F.3d at 291. Specifically, the court ruled that the Tennessee statute “is directed at establishing the substantive issue in the case, and [Rule 702] is a gatekeeping measure designed to ensure ‘fairness in administration’ of the case.” Id. at 292 (quoting Fed.R.Evid. 102). Thus, Legg instructed district courts first to apply any state competency requirements pursuant to Rule 601, and then to determine if the testimony is “otherwise admissible” under Rule 702 and Daubert.
Liebsack, __ F.3d at __.
Interplay Of FRE 601 and FRE 702
The Sixth Circuit conclusion was one that was echoed in the Ninth Circuit's assessment. The Ninth Circuit warned that state competency rules for expert witnesses "do not displace Rule 702 and Daubert. 286 F.3d at 291. Rule 702 concerns the admissibility of scientific evidence, not a witness' competency to testify in the first place. '[A] key to establishing the scope of Rule 601 is to distinguish between competency and admissibility. A witness may be competent but unable to testify as to anything [admissible].' 27 Charles Alan Wright, et al., Federal Practice and Procedure § 6003 (2d ed. 2013). Thus, for example, a witness might satisfy the specialization and certification requirements under § 09.20.185, but her testimony would be inadmissible if, under Rule 702, it is not “based on sufficient facts or data.” As one court has recognized, “possessing requisite credentials alone is not enough to render expert testimony admissible.”Fuesting v. Zimmer, Inc., 421 F.3d 528, 535 (7th Cir.2005), vacated in part on other grounds, 448 F.3d 936 (7th Cir.2006).
After explaining the relation of FRE 601 and FRE 702 in the FTCA context, the circuit determined that the trial court erred and case was remanded for a new trial. The circuit determined that the error "could not have been harmless" and so the matter would have to be tried again.
The Liebsack provides a recent example of the application of FRE 601 in civil cases. The court should apply state law standards concerning the competency of a witness where "a claim or defense for which state law supplies the rule of decision." Other rules of evidence will govern the admissibility of the witness testimony.
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