Seisinger v. Siebel – 3/13/2009
Arizona Supreme Court Holds That A.R.S. § 12-2604(A) Does Not Violate the Separation of Powers Provision of the Arizona Constitution.
In August 2004, Seisinger filed a medical malpractice action against Dr. Siebel relating to a spinal epidural and disclosed a retired anesthesiologist as an expert witness. Siebel filed a motion in limine to preclude his testimony because A.R.S. § 12-2604(A), which governs the qualifications of expert witnesses in medical malpractice cases, requires an expert witness in a medical malpractice case to have recently practiced or taught in the in the same health profession as the defendant. Seisinger argued that A.R.S. § 12-2604(A) conflicts with Arizona Rule of Evidence 702, and therefore violates the separation of powers clause of the Arizona Constitution. The trial court granted Siebel’s motion, ruling that the statute was not unconstitutional. When Seisinger did not produce another expert witness, the trial court granted Seibel’s motion to dismiss. Seisinger timely appealed. The Arizona Appeals Court reversed, holding that § 12-2604(A) violates the separation of powers doctrine because it conflicts with Rule 702 and does not establish substantive rights.
The Arizona Supreme Court vacated the opinion of the Appellate Court, holding that while § 12-2604(A) conflicts with Rule 702, it does not violate the constitutional separation of powers doctrine. The majority reasoned that § 12-2604(A) places requirements in addition to those in Rule 702 on expert witnesses in medical malpractice cases. Because a witness who would otherwise be qualified under Rule 702 is precluded from testifying in medical malpractice cases unless he or she also meets the requirements of § 12-2604(A), the majority determined that rule and statute directly conflict.
The Court then examined whether § 12-2604(A) is substantive or procedural, explaining that if the statute is substantive in nature, it prevails under the doctrine of separation of powers. Justice Hurwitz, writing for the majority, noted that under Arizona common law – developed long before the adoption of the Rules of Evidence –the standard of care in medical malpractice must be given by an expert witness who is a physician. He also reasoned that § 12-2604(A) modifies the common law to increase a plaintiff’s burden of production with respect to the standard of care. Therefore, the majority concluded, the requirement of expert physician testimony in medical malpractice cases is a substantive component of medical malpractice law and does not offend the separation of powers doctrine. The majority went to find that the statute did not retroactively apply to Seisinger’s claim and vacated the trial court’s judgment and remanded for further proceedings.
Judge Eckerstrom, sitting by designation in the case, concurred in part and concurred in the result. He explained that he agrees with the majority that § 12-2604(A) directly conflicts with Rule 702; but unlike the majority, he would find that the statute is an unconstitutional violation of the separation of powers doctrine. Judge Eckerstrom pointed to a number of prior Arizona Supreme Court cases that addressed alleged conflicts between statutes and the Arizona Rules of Evidence, noting that in each case, the Court assumed that the pertinent evidentiary rule fell within the Court’s constitutionally endowed judicial power, and thus, to the extent the statute at issue conflicted with the rule, the Court found that it was unconstitutional. Disagreeing with both the majority’s decision to conduct the substantive/procedural analysis and the result of that analysis, he stated that “while § 12-563 sets forth substantive law by specifying what must be proven, § 12-2604(A) prescribed the method by which litigants must prove their entitlement to relief under that substantive law.” Therefore, he concluded, § 12-2604(A) is procedural in nature, and is “an unconstitutional encroachment” by the legislature on the powers of the judicial branch.
Justice Hurwitz wrote for the majority of the Court. Judge Eckerstrom, sitting by designation, concurred in part and concurred in the result.