In July of 2004, R.S.A. 516:29-a and R.S.A. 516:29-b took effect purporting to impose federal expert reliability standards and federal expert disclosure rules on New Hampshire state court cases. The expert reliability standards set forth in section 29-a are merely a codification of the New Hampshire Supreme Court’s ruling in Baker Valley Lumber v. Ingersoll-Rand Company.i However, the expert disclosure requirements in section 29-b, specifically the necessity of a report signed by the expert, are significantly more onerous than those in Superior Court Rule 35f.
In this article, we will compare the two new statutes with the existing rules and explain that, to the extent the Legislature has enacted conflicting provisions, it has exceeded its constitutional authority. Specifically, we will show that the report requirement in section 29-b is clearly unconstitutional and, therefore, invalid.
II. Expert Reliability:
In Baker Valley Lumber v. Ingersoll-Rand,ii the New Hampshire Supreme Court squarely adopted the expert reliability standards first set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.iii Specifically, the Baker Valley court instructed trial judges to determine expert witness reliability by considering:
(1) Whether the theory or technique can be and has been tested;
(2) Whether the theory or technique has been subjected to peer review and publication;
(3) The known or potential rate of error of the technique; and
(4) Whether the theory or technique has gained “general acceptance.”iv
R.S.A. 516:29-a merely codifies the Baker Valley opinion. In begins by stating that expert testimony is admissible only if it is based upon sufficient facts or data and is the product of reliable principles and methods.v In addition, it says that an expert can only offer such testimony if he or she has applied the principles and methods reliably to the facts of the case.vi It then goes on to set forth the four Baker Valley/Daubert considerations:
In evaluating the basis for proffered expert testimony, the court shall consider, if appropriate to the circumstances, whether the expert’s opinions were supported by theories or techniques that:
(1) Have been or can be tested;
(2) Have been subjected to peer review and publication;
(3) Have a known or potential rate of error; and
(4) Are generally accepted in the appropriate scientific literature.vii
Like Baker Valley and Daubert, the statute makes it clear that the four factors “are not a definitive checklist or test.”viii Section 29-a expressly permits judges to consider “other factors” specific to the proffered testimony.ix
III. Expert Disclosure:
While section 29-a does not appear to impose any significant change in the law, the same cannot be said of section 29-b. Current practice in New Hampshire state courts, at least in Superior Court and Probate Court, calls for parties to disclose their experts by providing the opposing side with a) the identity of each expert, b) a brief summary of his or her relevant education and experience, c) a description of the subject matter on which he or she is expected to testify, d) a summary of the facts and opinions to which he or she is expected to testify, and e) a summary of the grounds for each opinion.x If an expert has prepared a report, it must be turned over to the other side.xi However, there is no requirement that an expert prepare a written report.
R.S.A. 516:29-b drastically changes the current law by mandating that a party intending to offer testimony from “a witness who is retained or specially employed to provide expert testimony” must provide the opposing side with a written report signed by the expert.xii The report must contain a complete statement of:
(a) All opinions to be expressed and the basis and reasons therefor;
(b) The data or other information considered by the witness in forming
(c) Any exhibits to be used as a summary of or support for the opinions;
(d) The qualifications of the witness, including a list of all publications authored by the witness within the preceding 10 years;
(e) The compensation to be paid for the study and testimony; and
(f) A listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding 4 years.xiii
R.S.A. 516:29-b mirrors Federal Rule of Civil Procedure 26(a)(2) with one significant difference. The federal rule requires the report to be prepared and signed by the expert, whereas section 29-b merely requires the report to be signed by the expert. Therefore, it appears permissible under section 29-b for the attorney to prepare the report and submit it to the expert for his or her approval and signature. In all other respects, section 29-b is identical to Federal Rule 26(a)(2), which was among the federal rules that our Supreme Court rejected in 1995 in In re Proposed New Hampshire Rules of Civil Procedure.xiv
In order to comply with section 29-b, the first question one must ask is to which cases does it apply? Since there is nothing to the contrary in the text of the statute or in its legislative history, in the absence of constitutional considerations it would appear to apply equally in civil and in criminal cases. Similarly, it appears to have been intended to apply in District Court, Probate Court, and Superior Court alike. It does not appear, however, that the statute was intended to apply in quasi-judicial administrative proceedings since it refers exclusively to “the court” throughout.
Furthermore, since the statute is procedural in nature, it is “deemed to apply retroactively to those pending cases which on the effective date of the statute have not yet gone beyond the procedural stage to which the statute pertains.”xv Therefore, the new expert disclosure requirements imposed by section 29-b would appear to apply to all New Hampshire court cases in which expert disclosures are made after July 16, 2004. The statute does leave room for the parties to “opt out” of the report requirement by agreement.xvi
The next question is to which witnesses does the report requirement apply? By its terms, the report requirement applies only to those who are “retained or specially employed to provide expert testimony” and those “whose duties as an employee of the party regularly involve giving expert testimony.”xvii This language, which is identical to the federal rule, has spawned a significant amount of litigation in the federal courts as well as much scholarly commentary. In particular, many courts and commentators have addressed the question whether a treating physician is subject to the report requirement. That issue was foreseen by the Advisory Committee for the 1993 amendments that placed the report requirement in the federal rules. The Advisory Committee notes published with Federal Rule 26(a)(2) expressly state that
The requirement of a written report . . . applies only to those experts who are retained or specially employed to provide such testimony in the case or whose duties as an employee of a party regularly involve the giving of such testimony. A treating physician, for example, can be deposed or called to testify at trial without any requirement for a written report.xviii
In New Hampshire’s federal district court, Magistrate Judge Muirhead issued a published opinion holding that the report requirement does not apply to treating physicians.xix Judge Muirhead began his analysis by noting that “Although the language of the rule, which differentiates between retained and unretained experts, and of the advisory committee note as to treating physicians is seemingly straight forward, it has spawned considerable debate in the bar and numerous cases across the country.”xx After surveying a number of federal court decisions, he explained that the majority had concluded that “reports are not required as a prerequisite to a treating physician expressing opinions as to causation, diagnosis, prognosis and extent of disability where they are based on the treatment.”xxi He then wrote:
I am persuaded that the majority view . . . is correct. The structure of [the federal rule] provides a clear distinction between the “retained” class of experts and the unretained class of experts. While all experts must be disclosed . . ., only “retained” experts must provide . . . reports. The distinction is both fair and logical.xxii
Although the Sprague opinion was issued in 1998, as recently as July of 2004 it was still true that “a majority of courts hold that a . . . report is not required from a treating physician unless the physician will testify to matters learned outside the scope of treatment.”xxiii
Since section 29-b is identical to Federal Rule 26 in all relevant respects, it seems clear that a party intending to introduce testimony from a treating physician need not produce a report. A report is only required of a specially retained expert witness.
The fact that a treating physician is not subject to the report requirement does not mean that he or she need not be disclosed as an expert witness. Whether or not a report is required, a party must still provide the opposing side with “the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the New Hampshire rules of evidence.”xxiv Since a treating physician is someone who will be presenting “expert” evidence,xxv he or she must be disclosed even if he or she is not a “retained” expert subject to the report requirement. In sum, all “experts” must be disclosed but only those who were specially retained must also produce a written report.
Once it is determined that the report requirement applies to a particular expert, the next question is what is necessary to produce a compliant report? The first thing the statute calls for is a complete statement of all opinions to be expressed and the basis and reasons therefor.xxvi This is substantially more than the requirement in Superior Court Rule 35f that the disclosing party “state a summary of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.”
The stricter requirements of the statute fail to take into account the fact that it is virtually impossible for an expert, at the disclosure stage, to list all of the opinions he or she will express at trial. In particular, an expert for the party that discloses first cannot possibly predict all of the opinions he or she will express in response to the opinions of the opponent’s experts. Superior Court Rule 35f provides the flexibility necessary to handle such practical problems.
The next thing the statute calls for is a complete statement of the data or other information considered by the witness in forming the opinions.xxvii Superior Court Rule 35f has no equivalent provision. Although it is customary for a disclosing party to identify the factual materials that have been provided to the expert, the new statute goes further and appears to require the expert to identify materials such as professional literature or learned treatises that he or she considered.
Section 29-b also requires each expert to attach to his or her report any exhibits to be used as a summary of, or support for, the opinions he or she will give.xxviii This is a new requirement in New Hampshire practice. As a practical matter, it will be virtually impossible for an expert to produce trial exhibits at the early stage in which expert disclosures are made.
Next, the statute calls for each expert to list his or her qualifications, including a list of all publications authored within the preceding ten years.xxix Superior Court Rule 35f, on the other hand, requires a party to provide only “a brief summary of the expert’s education and experience relevant to his area of expertise.”xxx The difference here is minimal, however, since it is customary for parties to include with the disclosure each expert’s complete curriculum vitae, which presumably contains the information required by section 29-b.
The new statute goes on to require each expert to identify the compensation he or she is receiving.xxxi The current Superior Court rules contain no equivalent requirement, although compensation is usually a matter that is addressed when an expert is deposed prior to trial.
Lastly, section 29-b requires each retained expert to produce a list of any other cases in which he or she has testified as an expert, at trial or by deposition, within the preceding four years.xxxii Needless to say, a prior testimony list is not mandated by the current Superior Court rules.
Suffice it to say that the expert disclosures required by section 29-b are substantially more burdensome than the current New Hampshire practice. In addition, the statute imposes on the courts a rule which was considered and expressly rejected by the Supreme Court in 1995. This raises the question whether the Legislature has the constitutional authority to impose such changes on the courts.
By enacting R.S.A. 516:29-a and 516:29-b, the Legislature has attempted to impose procedural rules on the courts. This legislation implicates at least two provisions of the New Hampshire Constitution – Part I, Article 37, which mandates the separation of powers among the three branches of government, and Part II, Article 73-a, which grants court rulemaking authority to the Chief Justice of the Supreme Court.
In 1996, the Legislature asked the Supreme Court whether it was constitutionally permissible, in light of Part I, Article 37 and Part II, Article 73-a, for it to enact a statute that would put in place a rebuttable presumption that evidence of prior sexual assaults is admissible against the defendant in a civil or criminal case. The Court unanimously ruled that such legislation would violate the separation of powers doctrine set forth in Part I, Article 37, and, as a result, it declined to decide whether it would also violate Part II, Article 73-a.xxxiii
The Court began its analysis of Part I, Article 37 as follows:
Beginning with volume one of the New Hampshire Reports, this court undertook its duty of defining the scope of the separation of powers clause as between the legislative and judicial branches of government. See Merrill v. Sherburne & al., 1 N.H. 199 (1818). In Merrill, we reviewed the pertinent articles of our State Constitution and concluded that nothing therein mandated a conclusion other than that the general court is excluded from the exercise of “judicial powers.” Id. at 206-08. The question before us today is whether the legislature’s promulgation of the proposed statute falls within the exercise of “judicial powers.”xxxiv
The Court then considered whether rule-making was a “judicial power”:
As a separate and coequal branch of government, the judiciary is constitutionally authorized to promulgate its own rules. The inherent rule-making authority of courts of general jurisdiction in this state to prescribe rules of practice and rules to regulate their proceedings “as justice may require” has an ancient lineage supported by consistent custom, recognized by statute and enforced by numerous judicial precedents.xxxv
Concluding that “[o]ur judicial power has always included the power to prescribe procedural rules for the conduct of litigation in this State’s courts,” the Court also observed that, with the passage of Part II, Article 73-a, its inherent power to promulgate procedural rules was endorsed with constitutional authority.xxxvi
The Court continued its analysis by explaining that the inquiry does not end with the determination that proposed legislation would conflict with an existing court rule. This is true because “[u]nder the separation of powers doctrine, the legislature has a limited appropriate role to act on court rules . . .”xxxvii Specifically, the legislature may enact rules that are substantive in nature, while those that are purely procedural are “under the exclusive jurisdiction of the courts . . .”xxxviii
After describing the various tests used by other courts to determine whether a legislative enactment is “substantive” or “procedural,” the Court settled on the following definitions:
Substantive laws are those laws which have for their purpose to determine the rights and duties of the individual and to regulate his conduct and relation with the government and other individuals. Procedural laws are “those laws which have for their purpose to prescribe machinery and methods to be employed in enforcing these positive provisions. There is a critical difference between the rights of an individual and the method by which an individual’s right will be presented in a court of law.xxxix
In the case before it, the Court determined that the legislation was procedural in nature and that it would have interfered with the operation of New Hampshire Rule of Evidence 404(b), a rule the Court had enacted under its constitutional rule-making authority. Therefore, the Court concluded that the Legislature had violated the Separation of Powers mandate in Part I, Article 37. In particular, the Court emphasized that
Giving deference to the legislature would, in this instance, abolish [Rule 404(b)’s] purpose and interfere with the judiciary’s sound discretion in determining to what extent the rule serves its function in the circumstances of a particular case.xl
The Court did not hesitate to strike down the proposed legislation in the strongest of terms:
Because the proposed bill directly conflicts with Rule 404(b), a rule concerning a uniquely judicial function, the separation of powers doctrine is violated. The legislature has no more right to break down the rules prescribed by this court to assure fundamental due process in criminal and civil trials than the court has to prescribe the mode and manner in which the legislature shall perform its legislative duties.xli
Since the separation of powers holding was sufficient to invalidate the proposed statute, the Court declined to address the question whether the legislation was barred by Part II, Article 73-a.xlii
There can be no doubt that the expert disclosure provisions in R.S.A. 516:29-b constitute procedural rules which are the exclusive jurisdiction of the courts. In 1995, the Supreme Court considered adopting the Federal Rules of Civil Procedure, including the disclosure rules set forth in section 29-b, but chose not to do so. The Legislature cannot now impose those rules on the courts.
[I]f the Legislature could overrule the courts in some of their essential operations, the judiciary instead of being one of the three coordinate branches of the state government, would be rendered subservient to the Legislature in a fashion never contemplated by any.xliii
It follows that the enactment of R.S.A. 516:29-b was an unconstitutional violation of the separation of powers mandate set forth in Part I, Article 37 of the New Hampshire Constitution. It also appears to violate Part II, Article 73-a, which gives the Supreme Court the authority to enact rules governing practice and procedure in all of this State’s courts. Therefore, section 29-b is invalid and should not be enforced. Superior Court Rule 35f should continue to govern the disclosure of expert witnesses in New Hampshire.
With respect to the expert reliability rules in section 29-a, the fact is that, while they appear to suffer from the same constitutional infirmities as section 29-b, they do not appreciably change the existing law. The Supreme Court has indicated that the courts may enforce such a statute as a matter of comity.
Although these enactments arguably may interfere with the judiciary’s authority over procedural matters, we may apply them as a matter of comity when they are consistent with judicial functions and policies and when no constitutional challenge is made to them.xliv
However, if the Court were ever to decide that the Baker Valley/Daubert considerations were no longer appropriate, section 29-a would automatically become unconstitutional and invalid.
By enacting legislation imposing expert reliability and expert disclosure rules on the State’s courts, the General Court has exceeded its constitutional authority. The expert reliability rules mirror those already in place and may be enforced as a matter of comity. However, the new expert disclosure rules are far more burdensome than their current counterparts and they should be declared unconstitutional and invalid.
148 N.H. 609 (2002).
See id., 148 N.H. at 614 (adopting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
See id., 148 N.H. at 616.
R.S.A. 516:29-a, I(a) and (b).
R.S.A. 516:29-a, I(c).
R.S.A. 516:29, II(a).
Baker Valley, 148 N.H. at 616 (quoting Daubert. 509 U.S. at 593).
R.S.A. 516:29-a, II(b).
Superior Court Rule 35f; Probate Court Rule 35f.
Superior Court Rule 35f(4); Probate Court Rule 35f(4).
R.S.A. 516:29-b, II.
R.S.A. 516:29-b, II (a)-(f).
139 N.H. 512 (1995).
Workplace Systems, Inc. v. CIGNA Property & Casualty Insurance Company, 143 N.H. 322, 324 (1999) (quoting State v. Hamel, 138 N.H. 392, 394 (1994)).
See R.S.A. 516:29-b, II.
R.S.A. 516:29-b, II.
Fed.R.Civ.P. 26, Advisory Committee Notes to 1993 Amendments.
Sprauge v. Liberty Mutual Insurance Company, 177 F.R.D. 78, 81 (D.N.H. 1998).
Id., 177 F.R.D. at 80.
Id., 177 F.R.D. at 81.
Rogers v. Detroit Edison Company, F.Supp.2d , (E.D. Mich. 2004). See also Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure §2031.1 (2d ed. & Supp.2004)(collecting cases at footnote 6).
R.S.A. 516:29-b, I.
See State v. Martin, 142 N.H. 62 (1997).
See R.S.A. 516:29-b, II (a).
See R.S.A. 516:29-b, II (b).
See R.S.A. 516:29-b, II (c).
See R.S.A. 516:29-b, II (d).
Superior Court Rule 35f(2).
See R.S.A. 516:29-b, II (e).
See R.S.A. 516:29-b, II (f).
See Opinion of the Justices, 141 N.H. 562 (1997).
Id., 141 N.H. at 568.
Id., 141 N.H. at 570 (quotations omitted).
Id., 141 N.H. at 571.
Id., 141 N.H. at 572 (quotations omitted).
Id., 141 N.H. at 574.
Id., 141 N.H. at 578.
Id., 141 N.H. at 569 (quotations omitted).
Id., 141 N.H. at 573-74.