2008 Regular Session . May 29, 2008
Daubert Bill on Its Way to the House
SB 308, brought by Sen. Jack Donahue on behalf of the U.S. Chamber of Commerce and its Institute for Legal Reform, passed the Senate yesterday after spirited debate and several sets of amendments. The bill gives any party the right to invoke a mandatory pre-trial Daubert hearing on any expert anticipated as a witness at trial.
The author added amendments on the floor proposed by the District Judges Association to address their concerns. However, those do not resolve all of the problems litigators will have with the bill. For example, once a motion for pre-trial examination is filed, the court must hold a contradictory hearing, even though the expert is one who has been qualified previously in that same court on the same methodology. The judge has no discretion.
The court must hold a “Daubert” hearing and issue a written ruling no later than 30 days before trial. The court must provide specific written reasons of law and fact to support its ruling. Reasons must include the elements required by La. Code of Evidence Articles 702-705.
Loser Pay and Frivolous Daubert Challenges
Sen. Jody Amedee added a loser pay amendment to discourage frivolous Daubert challenges that unnecessarily delay the case or drive up costs. The amendment passed by a vote of 22-15. Sen. Donahue's attempt to remove the loser pay amendment failed 18-20.
As one former judge commented in committee, the bill will increase court time and costs for litigants. He noted that a party — by filing requests for hearings, activating all of these steps, appealing the ruling, etc.--could keep the opponent in delays for long terms, preventing the case from getting to trial. And, yes, these Daubert-type challenges may be frivolous.
The U.S. Chamber ran TV, radio and full-page newspaper ads labeling the civil justice system in Louisiana as 49th in the nation and our judges as 50th.
Exceptions and Additional Concerns
Amendments by Sen. Julie Quinn added exceptions for testimony in actions for divorce or annulment of marriage, separation in a covenant marriage, property partitions or any proceedings incidental or ancillary to those actions.
Even though the District Judges Association successfully addressed general concerns of the bench, your district judges may be interested to know about this proposed legislation and may have individual concerns as to how this will work in their court.
We expect the bill to be referred to House Civil Law and Procedure.
Stay in Touch
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Archived broadcasts of House and Senate proceedings are available on their respective Web sites.