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Arkansas (last Shepardized on 10/16/04)

   The Arkansas Supreme Court formally adopted Daubert in Farm Bureau Mut. Ins. Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000), at least for novel scientific evidence.  It had already adopted a similar test in Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991).  It embraced Kumho Tire in Coca-Cola Bottling Co. v. Gill, 352 Ark. 240, 100 S.W.3d 715 (2003). The Arkansas judiciary makes the Arkansas Rules of Evidence available online. 

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Arkansas Supreme Court

Jackson v. State, No. CR 03-800 (Ark. Nov. 4, 2002).  Prosecution calls police officer as gang expert in murder trial.  Jury convicts.  Admissibility affirmed.  Defendant says trial court erred in failing to subject officer's testimony to reliability analysis under Daubert and Kumho Tire.  But Daubert factors are inapplicable to such evidence.  Trial court permissibly admitted officer's testimony based on his extensive experience with gang-related issues.   

Coca-Cola Bottling Co. v. Gill, 352 Ark. 240, 100 S.W.3d 715 (2003).  Coca-Cola delivers concession trailer to high school for use during track meet.  Electrical cord from trailer is plugged into three-pronged receptacle in field shed, but receptacle's ground wire is disconnected, and trailer has no auxiliary grounding system.  High school custodian is severely shocked when he attempts to raise trailer's windows, resulting in his permanent disability.  In personal injury action against Coca-Cola, custodian offers expert testimony from electrician Jimmy Clark, who opines that accident was caused by electrical failure in cord or trailer, and that trailer should have been grounded with metal rod.  Jury awards damages to custodian and Coca-Cola appeals.  Admissibility affirmed.  Coca-Cola argues that Clark is unqualified, because he has not worked as electrician since 1970, and because his license has expired.  But current licensure is not prerequisite for qualification as expert, and Clark possesses considerable experience and training.  Coca-Cola also challenges reliability of testimony, condemning as speculative Clark's opinion that trailer's electrical cord was replaced after accident, and that defect in original cord was 95% likely to have caused accident.  But Clark added that he was 100% sure that defect in either cord or trailer caused accident, and other testimony corroborated Clark's assessment that cord was replaced prior to post-accident inspection, making it impossible to replicate conditions on day of accident with certainty.  Clark's testimony was based on review of depositions and photographs, and on general principles of electricity.  Coca-Cola's objections go to weight, not admissibility.  No abuse of discretion.  Dissent: No evidence supports Clark's assumption that cord was replaced and was previously defective.

Farm Bureau Mut. Ins. Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000).  Fire consumes residence.  Owners file insurance claim.  Insurer denies coverage, contending that fire was set intentionally by owners or at their direction.  Owners sue insurer.  At trial, trial court excludes expert testimony from state trooper regarding ability of his canine partner to detect accelerants at fire scene.  Jury awards damages to owners and insurer appeals.  Exclusion affirmed.  Trial judge permissibly held that trooper's testimony did not satisfy Daubert, which Arkansas Supreme Court has not previously adopted but now formally adopts, having previously announced very similar criteria for novel scientific testimony in Prater [infra].  In this case, insurer failed to carry its burden of demonstrating testimony's reliability under either Daubert or Prater.  Witness relied on study from master's thesis authored by director of Florida State Crime Laboratory, which supposedly established that trained canines can detect accelerants at 300 parts per billion, whereas laboratory equipment is less sensitive and can detect accelerants only down to 100 parts per million.  But witness did not produce study, and so there was no way for trial court to ascertain what techniques it used or what their rate of error might be.  Nor did insurer offer evidence that witness's theory had been tested, subjected to peer review, or otherwise embraced by relevant scientific community.

Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996).  Defendant is charged with rape and murder of 90-year-old neighbor.  At trial, prosecution offers evidence from FBI crime lab witnesses that DNA from defendant's blood matches DNA from semen at crime scene, and that odds of match occurring by chance are 1 in 500,000.  Jury convicts and defendant appeals.  Admissibility affirmed.  Defendant complains that trial court refused to conduct preliminary hearing on general reliability of DNA testing.  It is true that in Prater [infra], DNA profiling was held to depend on novel scientific theory, and to be admissible only after preliminary judicial assessment of theory's reliability.  But in light of post-Prater developments, DNA profiling should no longer be viewed as novel scientific evidence, and trial court therefore did not err in taking judicial notice of technique's general reliability, or in admitting specific testimony based on affidavit attesting to FBI's adherence to appropriate testing protocols and describing how probabilities were computed.  However, mistrial should have been granted on other grounds.  Remanded for new trial. 

Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991).  In rape trial, prosecution offers evidence from FBI crime lab that semen swabbed from prosecutrix matches defendant's DNA, and that chances of match occurring by chance are 1 in 3700.  Trial court overrules defendant's objection after conducting preliminary hearing.  Jury convicts and defendant appeals.  Admissibility affirmed.  Although Frye represents majority approach to admissibility of novel scientific evidence, Arkansas Supreme Court has never formally adopted Frye, and now adopts more liberal standard based on "relevancy approach" embodied in Uniform Rules of Evidence and currently followed in about one-third of all jurisdictions.  "The relevancy approach requires that the trial court conduct a preliminary inquiry which must focus on (1) the reliability of the novel process used to generate the evidence, (2) the possibility that admitting the evidence would overwhelm, confuse or mislead the jury, and (3) the connection between the novel process evidence to be offered and the disputed factual issues in the particular case."  Novel scientific evidence coupled with evidence of mathematical probabilities should be admitted only when proponent makes preliminary showing of reliability of both novel scientific technique and process underlying calculations.  "The opponent of the evidence may cross-examine and attack the showing of reliability with his own experts at the preliminary hearing.  If the evidence is determined to be reliable and admissible, the opponent may, after its admission at trial, cross-examine or directly attack the evidence since the jury must determine the weight and credibility to be given it."  Trial court permissibly held prosecution's DNA evidence admissible after following this procedure.

Arkansas Court of Appeals

Roach v. PPG Indus., Inc., No. CA 03-654 (Ark. App. Oct. 6, 2004) (unpublished).  Deceased auto body repairman's surviving spouse alleges that repairman's acute myelogenous leukemia (AML) arose from exposures to benzene contained in paint used at workplace.  To show specific causation, she offers testimony from experts including repairman's treating physician, Dr. Greg Oakhill.  Trial court excludes Dr. Oakhill's testimony as unreliable.  Meanwhile, over plaintiff's objection, defendants rebut causation via testimony from Dr. Philip Guzelian.  Jury finds for defendants and plaintiff appeals.  Exclusion affirmed; admissibility affirmed.  Plaintiff argues that Dr. Oakhill performed reliable differential diagnosis.  That argument was not presented below and is waived.  Even if it were not waived, Dr. Oakhill did not evaluate plaintiff's exposure or dose and took no steps to rule out other causes.  Plaintiff also objects to trial court's failure to exclude Dr. Guzelian's testimony for defendants that benzene-induced AML is correlated with specific chromosomal damage that repairman did not exhibit.  But Dr. Guzelian's trial testimony was supported by peer-reviewed studies, and existence of contrary studies went merely to weight.  No abuse of discretion. 

Hudson v. State, No. CACR 02-1283 (Ark. App. Feb. 11, 2004).  In murder prosecution, state offers expert blood-splatter testimony from law enforcement officer.  Trial court conducts Daubert hearing and rules that testimony is reliable and admissible.  Jury convicts and defendant appeals.  Admissibility affirmed.  Witness boasts extensive experience, and testimony established that blood-splatter analysis is recognized science, in existence for many years.  Similar testimony has been accepted in previous Arkansas cases, and defendant's contention that blood-splatter analysis would not assist trier of fact is without merit.

Arrow Int'l, Inc. v. Sparks, 81 Ark. App. 42, 98 S.W.3d 48 (2003).  Patient bleeds to death while in hospital.  His surviving daughter brings wrongful death action against manufacturer of percutaneous sheath inducer (PSI) that was used to insert catheter in her father's jugular vein.  Manufacturer offers two experts to support its theory that patient bled to death through PSI's side-tube, whose end cap patient had apparently removed.  To rebut their testimony, and to support her theory that death was caused instead by inadvertent separation of PSI's sheath from PSI's valve, daughter calls Dr. Brock Allen, physician, who opines over manufacturer's objection that patient could not have bled to death through side-tube, because side-tube's opening was small enough that patient's blood would have clotted before he lost his entire blood supply.  Jury awards damages and manufacturer appeals.  Admissibility affirmed.  Manufacturer says physician was not qualified to render his opinion because he was not expert in fluid dynamics.  But witness possessed sixteen years' experience as emergency room physician and was familiar with PSI.  Defendant also says physician's testimony did not satisfy Daubert because it was merely anecdotal and was not based on testing or other scientific methodology.  But Daubert is of little assistance in this case.  Witness's testimony was not "novel" in any sense.  Moreover, Daubert test is flexible, and applicability of Daubert factors depends on nature of issue and area of expertise.  Here, physician's opinion was experience-based and did not purport to rest on scientific methodology.  To be sure, Daubert inquiry may aid in admissibility determinations for some experience-based testimony, but none was required in this case.  In any event, trial court did conduct reliability inquiry and did not abuse its discretion in admitting testimony.

Regions Bank v. Hagaman, 79 Ark. App. 88, 84 S.W.3d 66 (2002).  Birth of child is complicated by shoulder dystocia, and child is diagnosed with permanent brachial plexus injury.  Did physician who delivered child violate standard of care by failing to apply suprapubic pressure?  In defending malpractice claim, physician offers testimony from Dr. Herbert Sandmire, obstetrician, who opines over plaintiffs' objection that suprapubic pressure was not dictated by any applicable standard of care and would not have been effective in this case.  Jury finds for physician and plaintiffs appeal.  Admissibility affirmed.  Plaintiffs complain that obstetrician's testimony did not satisfy Daubert because some of his opinions were not specifically supported by medical literature.  But this case does not involve "novel" scientific testimony.  Obstetrician testified that by and large, process of delivering babies is same today as it was in 1950's when he began his practice.  Moreover, even under Daubert, support in published literature is not always necessary for admissibility.  Strong credentials also militate in favor of admissibility, and this expert has delivered 11,000 babies and published 36 scientific articles, including some dealing with brachial plexus injury and shoulder dystocia.  No abuse of discretion.

Wood v. State, 75 Ark. App. 22, 53 S.W.3d 56 (2001).  Defendant in rape trial offers Dr. Ann B. Tracy, psychologist, to testify that prescription drug Paxil may have influenced his behavior.  Trial court conducts Daubert hearing and excludes testimony.  Jury convicts and defendant appeals.  Exclusion affirmed.  Witness did not carry burden of showing that her theories were generally accepted, had been tested, had been subjected to peer review and publication, possessed known error rate, and were subject to standards governing their application.  In addition, witness appears to be on crusade against entire categories of pharmaceuticals, including Paxil, suggesting prejudice.  Trial court permissibly found that expert's opinions were methodologically suspect and likely to confuse trier of fact.

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