Alabama (last Shepardized on 9/25/04)
The attorney monitoring Alabama state law decisions for this site is the estimable Edward Still, also known to many of our visitors as the author of the highly reputed Votelaw weblog. General background on Alabama's law of expert evidence is available in a 1997 article by attorneys Christopher T. Newkirk and Thomas F. Allen, Jr., posted on the web as part of Harvard's Judicial Gatekeeping Project. See also Bagley v. Mazda Motor Corp., 864 So. 2d 301 (Ala. 2003) (Alabama follows Daubert for DNA evidence, by statutory directive, but otherwise adheres to Frye).
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Alabama Supreme Court
Kyser v. Harrison, No. 1031203 (Ala. Jan. 7, 2005). Infant is dropped off at daycare center, where he is placed face-down in crib for nap. Two hours later, it is discovered that infant is not breathing, and he is taken to hospital, where he is pronounced dead. Autopsy determines cause of death to be Sudden Infant Death Syndrome (SIDS). Infant's parents, however, claim that death was attributable to positional asphyxia (suffocation) caused by center's negligent care. In their suit against daycare center's proprietor, parents rely on cause-of-death testimony from Dr. E. Hunt Scheuerman, forensic pathologist. On daycare center's motion, trial court excludes testimony and awards summary judgment to daycare center. Exclusion affirmed. Trial court was justified in determining that Dr. Scheuerman was not competent or qualified to opine on cause of death, given his lack of expertise in distinct field of pediatric pathology. Moreover, he failed to explain how his opinion flowed from scientific methods, principles, or procedures that have gained general acceptance in field, as is required under Frye. His opinion amounted to mere assertion of belief, without any supporting research, testing, or experiments.
Vesta Fire Ins. Co. v. Milam & Co. Constr., Inc., No. 1021196 (Ala. Aug. 27, 2004). Fire destroys video store. Owner's subrogated insurers sue contractors and subcontractors responsible for construction and maintenance of building, alleging that faulty installation of electrical components in HVAC system caused fire. Insurers rely in part on testimony from electrical engineer Jim Jones, who opines that fire originated from short circuit created when wires were nicked during installation. Defendants seek summary judgment. Trial court determines that Jones is qualified and admits his testimony, but because certain physical evidence was destroyed when building was demolished, trial court awards summary judgment to defendants as sanction for spoliation. Admissibility affirmed. Sanction of dismissal was too severe under circumstances of case. On merits of summary judgment motion, Jones's testimony created genuine issue of fact. Defendants argue Jones's testimony should be excluded under Daubert and/or Frye, but Alabama has not explicitly adopted Daubert, and court declines to do so in this case. Defendants are not challenging any scientific principles of electrical engineering followed by Jones, novel or otherwise, so Frye is likewise inapplicable. Trial court did not err in concluding that Jones was qualified and that his testimony satisfied requirements of Ala. R. Evid. 702.
Martin v. Dyas, No. 1020286 (Ala. Aug. 13, 2004). Woman with history of back problems slips and falls. After two nights in hospital for observation and tests, woman becomes unable to move legs and feels no sensation below knees. Her physician now orders immediate MRI, revealing lumbar epidural hematoma at site of previous surgery. Another surgery (lumbar decompression and lateral fusion) is now performed, but it leaves patient partially paralyzed. She sues physician and others, alleging that failure of timely diagnosis caused her condition, and designates board-certified orthopedic surgeon Dr. Charles Clark as her expert witness. Defendants move to strike, arguing that expert's testimony cannot satisfy Daubert because Dr. Clark's emphasis is in cervical (upper) spine, not lumbar (lower) spine, and because he has not performed any lumbar decompression and lateral fusion in over 20 years. Trial judge grants motion and ultimately awards judgment as matter of law to defendants. Exclusion reversed. Defendants urge adoption of Daubert as law of Alabama. But that question need not be reached. Plaintiff complains not of malpractice during surgery, but in connection with diagnosis, and witness opined on standard of care for diagnosis, not actual lumbar surgery. Notwithstanding his emphasis in cervical spine practice, he was qualified under Ala. R. Evid. 702 to render opinion on diagnostic standard of care, based on his experience as on-call orthopedist dealing with wide variety of injuries to all parts of spine, including lumbar area. Although it is unnecessary to consider his qualifications in light of Daubert, expert's opinion would also appear to satisfy Daubert's relevance and reliability prongs. "Accordingly, it is unnecessary for this Court to consider the more extreme arguments of the parties concerning . . . Daubert; it is sufficient to say, for the reasons stated above, that the trial court exceeded its discretion in excluding Dr. Clark's testimony."
General Motors Corp. v. Jernigan, 883 So. 2d 646 (Ala. 2003). Twelve-year-old passenger in Oldsmobile suffers severe brain injury in head-on collision. Child and his father sue GM, alleging defective design, and relying on expert testimony from automotive design engineer, who opines over GM's objection that alternative designs available at time of vehicle's manufacture could have prevented injury. Jury awards substantial damages. Admissibility affirmed. GM invites abandonment of Frye and adoption of Daubert, but that invitation is rejected. Under either standard, expert's testimony was admissible. GM complains that expert did not test his alternative designs, and argues that mere assertion of expert belief, without support in testing, experimentation, or research, cannot satisfy either Frye or Daubert. But defendants mischaracterize this expert's testimony. Expert had access to considerable test data from GM, as well as to both automobiles from collision, and he also relied on his substantial experience.
Akins Funeral Home, Inc. v. Miller, 878 So. 2d 267 (Ala. 2003). Plaintiffs discover wrong body in casket at funeral, and then learn that their own decedent's remains have been cremated by mistake. In suit against funeral home, plaintiffs offer testimony from bereavement counselor Judy Davidson, Ph.D., who opines that one plaintiff (decedent's mother) suffers from post-traumatic stress disorder (PTSD). Funeral home objects that expert's opinion represents "medical diagnosis" that only physicians, psychiatrists, or psychologists would be qualified to offer. Trial judge overrules objection and jury awards compensatory and punitive damages. Admissibility affirmed. Trial court did not err in permitting testimony. Expert's background and education in field of grief counseling and in traumatic effects induced by loss is extensive.
Alabama Court of Civil Appeals
Kimberly-Clark Corp. v. Sawyer, No. 2030460 (Ala. Civ. App. Nov. 19, 2004). Employee dies of lung cancer. Wife files workers' compensation claim, alleging that cancer was caused by workplace asbestos exposures. To prove causation, plaintiff offers deposition testimony from pathologist, who opines that employee suffered from pulmonary asbestosis caused by long-term workplace exposures. In reaching that conclusion, pathologist relies on written report from Dr. Philip Lucas, a "B-reader" who reviewed employee's chest x-ray and found "pleural and interstitial fibrotic changes consistent with asbestosis in a patient who has had an adequate exposure history and latent period." Trial court awards judgment to plaintiff. Admissibility reversed. Six-factor standard promulgated by American Thoracic Society enjoys general acceptance as basis for asbestosis diagnosis: (1) asbestos exposure; (2) sufficient latency period; (3) abnormal chest X-ray; (4) restrictive pulmonary function demonstrating small lungs; (5) abnormal diffusing capacity; and (6) presence of respiratory rales. Report of Dr. Lucas did not indicate that it relied on scientific methods or techniques having won general acceptance, and addressed only three of six diagnostic factors. Because Dr. Lucas's report was inadmissible and therefore not properly in evidence, pathologist could not rely on it as basis for his own opinion.
S.J.R. v. F.M.R., No. 2011261 (Ala. Civ. App. May 7, 2004). Each parent in custody dispute alleges that child has suffered sexual abuse by third parties while in custody of other parent. Court appoints Sandra Segall, licensed professional counselor, as child's counselor. Relying in part on counselor's testimony, court awards primary custody to father, over mother's objections that (1) statements by child on which counselor relies constitute hearsay not falling within any exception and (2) counselor is not qualified as expert in forensic evaluation of child sexual abuse. Admissibility reversed. Counselor did not opine on whether child suffered sexual abuse, but rather discussed her counseling sessions with child, behavioral problems in child that she had diagnosed and treated, and her recommendations for custody -- opinions she was qualified to render. However, expert could not permissibly base opinions on facts related to her by child, where expert lacked firsthand knowledge of such facts and they were not proved by other competent evidence.
Alabama Court of Criminal Appeals
Minor v. State, No. CR-00-1300 (Ala. Crim. App. Aug. 27, 2004). Defendant and his girlfriend arrive at emergency room at 11 p.m. with their two-month-old son, who has no pulse and is not breathing. Efforts to revive infant are unsuccessful. Autopsy shows infant suffered severe internal injuries consistent with trauma. Infant was healthy up to night of his death. State charges defendant with capital murder. Among other evidence, prosecution offers medical records showing infant's hemocrit level on hospital arrival at 11.4% (versus expected range between 42% and 52%), but does not comment during case in chief on significance of hemocrit level. Defendant calls two physicians who testify that it would take several hours for infant's hemocrit level to drop to 11.4% (tending to exonerate defendant, who was alone with infant only between 9:30 p.m. and 10:30 p.m.). On rebuttal, prosecution calls Dr. William Hardin, who has not reviewed hospital records or autopsy report, but who opines in general terms that one-hour drop in infant's hemocrit level could have resulted from massive trauma. Jury convicts and defendant is sentenced to death. Admissibility affirmed. Dr. Hardin's opinion was not improper rebuttal testimony (as defendant argues for first time on appeal), because his opinion was not redundant of any evidence presented in prosecution's case in chief, and also because it was responsive to testimony from defendants' experts. Defendant also complains for first time on appeal that Dr. Hardin's testimony did not satisfy Daubert and was scientifically unreliable. But Daubert governs only DNA evidence in Alabama; novel scientific evidence on other subjects would be tested under Frye. Defendant does not challenge validity of underlying hemocrit tests, but only Dr. Hardin's opinion on rate at which hemocrit might drop. That opinion was not novel scientific evidence, but rather was founded on Dr. Hardin's clinical experience, and so screening under Frye was not required. Defendant did not challenge Dr. Hardin's qualifications at trial, and in fact he was well qualified, having served, e.g., as director of trauma services at children's hospital for ten years.
Deardorff v. State, No. CR-01-0794 (Ala. Crim. App. June 25, 2004). State forensic expert Richard Dale Carter testifies in murder prosecution that duct tape recovered from victim's body matches roll of duct tape found in warehouse unit rented by defendant. Jury convicts. Admissibility affirmed. Defendant did not object to testimony at trial and so review is for plain error. Witness had extensive qualifications and explained his methodology, and his testimony concerned matters beyond ken of average juror. No abuse of discretion.
J.H.H. v. State, No. CR-02-1752 (Ala. Crim. App. Jan. 30, 2004). Defendant is accused of burglary, attempted rape, and sexual abuse. Prosecution offers DNA evidence based on scrapings from victim's fingernails. Defendant objects that evidence does not satisfy Daubert, because state crime lab had lost its accreditation at time tests were performed, due to lack of training manual and technical leader's failure to complete educational requirements. Trial court admits evidence and jury convicts. Admissibility affirmed. Defendant did not show that loss of accreditation affected reliability of tests, and his objection therefore went to weight, not admissibility.