An Arizona law that set qualifications for expert witnesses is unconstitutional, the state court of appeals has decided.

Under the state constitution, the Arizona courts are empowered to establish their own procedures. One rule says an expert witness must be “qualified by knowledge, skill, experience, training, or education.”

The legislature adopted a law in 2005 that was drafted with the support of the Arizona Medical Association. The statute required expert witnesses to be actively practicing or teaching in the same specialty as the accused physician.

On behalf of a unanimous court, Judge Patrick Irvine wrote the law “is unconstitutional because it violates the separation of powers. It sets stricter limits on qualifications… and thus is in direct conflict” with the judiciary rule.


Continue Reading

Expert witnesses are called in medical malpractice cases to explain the pertinent standard of care to jurors. “Whether a witness was engaged in active clinical practice or instruction in the defendant’s area of practice… is not determinative as to whether the witness is qualified to assist the jury,” Irvine said. The statutory requirements “might be relevant to the credibility or weight to be given the testimony, but not its admissibility.”

The case involved a 2004 claim against an anesthesiologist. The plaintiff’s lawyer conceded that the expert she planned to call was not qualified under the statute. Rather than find another expert, she challenged the constitutionality of the law.

Her claim was referred back to the trial court for adjudication.