Arkansas Supreme Court Limits Legislature’s Efforts To Determine Who Can Testify As An Expert

The Arkansas Supreme Court has rejected an effort by the Arkansas Legislature to define who is permitted to give testimony as an expert witness in a medical malpractice case.

Broussard’s medical malpractice case was dismissed on summary judgment after her expert witness was excluded under Arkansas Code Annotated section 16-114-206 (Repl. 2006). Broussard argued that the requirement in section 16-114-206(a) that proof in medical-malpractice cases must be made by expert testimony by “medical care providers of the same specialty as the defendant” violates section 3 of Amendment 80 of the Arkansas Constitution.


In Broussard v. St. Edward Mercy Health System, Inc.,  2012 Ark. 14 (Jan. 19, 2012), the Arkansas Supreme Court held that "the provisions in section 16- 114-206(a), which provide that expert testimony may only be given by “medical care providers of the same specialty as the defendant,” violate the separation-of-powers doctrine, Amendment 80, and the inherent authority of the courts to protect the integrity of proceedings and the rights of the litigants.
This paragraph does a nice job summarizing the controversy and the result:
According to the circuit court, the phrase “a medical care provider of the same specialty as the defendant” is constitutional because it constitutes substantive law setting out the burden of proof.  Substantive law “creates, defines, and regulates the rights, duties, and powers of parties.”  Johnson, 2009 Ark. 241, at 8, 308 S.W.3d at 141 (quoting Summerville v. Thrower, 369 Ark. 231, 237, 253 S.W.3d 415, 419–20 (2007)).  In contrast, procedural law prescribes “the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves.” Id., 308 S.W.3d at 141 (quoting Summerville, 369 Ark. at 237, 253 S.W.3d at 419–20).  Procedural matters lie solely within the province of this court.  Id., 308 S.W.3d at 141.  The General Assembly lacks authority to create procedural rules, and this is true even where the procedure it creates does not conflict with already existing court procedure.  Id., 308 S.W.3d at 141.  
The Court went on to explain that it had a rule (Rule 702 of the Arkansas Rules of Evidence, which is very similar to  TRE 702) which governed the procedure to be following in determining whether an expert would be permitted to testify.  The Court explained that "the challenged language, “By
means of expert testimony provided only by a medical care provider of the same specialty as
the defendant,” which adds requirements to Rule 702, attempts to dictate procedure and invades the province of the judiciary’s authority to set and control procedure.  As such, it violates the separation-of-powers doctrine, Amendment 80, and the inherent authority of the courts to protect the integrity of proceedings and the rights of the litigants."  [Footnote omitted.]
Here is the text of Section 3 of Amendment 80:  " The Supreme Court shall prescribe the rules of pleading, practice and procedure for all courts; provided these rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as declared in this Constitution."
In Tennessee, and in many places across the nation,  legislatures are passing bills that attempt to address matters that have historically been left to the judicial branch of government.  For example, the Tennessee General Assembly recently passed legislation that attempts to redefine the standard of review that must be applied by the courts when evaluating a motion for summary judgment made pursuant to Rule 56 of the Tennessee Rules of Civil Procedure.   The unanimous opinion in Broussard indicates that the Arkansas Supreme Court does not intend to permit temporary political winds to cause damage to the separation of powers doctrine that has well-served this country and its fifty states for centuries.


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