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TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 12 TO TITLE 19 SO AS TO ENACT THE "RELIABILITY IN EXPERT TESTIMONY STANDARDS ACT" SO AS TO PROVIDE CIRCUMSTANCES UNDER WHICH LAY WITNESSES MAY OFFER OPINION TESTIMONY, ESTABLISH PROCEDURES AND STANDARDS FOR THE ADMISSIBILITY OF EXPERT WITNESS'S TESTIMONY, INSTRUCT THE COURTS ON THE INTERPRETATION OF THE CHAPTER, AND PROVIDE A DE NOVO STANDARD OF REVIEW FOR APPELLATE COURTS WHEN DETERMINING WHETHER A COURT APPLIED THE PROPER LEGAL STANDARD RELATED TO THE USE OF EXPERT TESTIMONY.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 19 of the 1976 Code is amended by adding:
Section 19-12-110. This chapter may be cited as the 'Reliability in Expert Testimony Standards Act'.
Section 19-12-120. If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are:
(1) rationally based on the perception of the witness;
(2) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue; and
(3) not based on scientific, technical, or other specialized knowledge within the scope of Section 19-12-130.
Section 19-12-130. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify in the form of an opinion or otherwise, if the:
(1) testimony is based upon sufficient facts or data;
(2) testimony is the product of reliable principles and methods; and
(3) witness has applied the principles and methods reliably to the facts of the case.
Section 19-12-140. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If it is of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, then the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.
Section 19-12-150. (A) A witness qualified as an expert by knowledge, skill, experience, training, or education may only offer expert testimony with respect to a particular field in which the expert is qualified.
(B) An expert witness may receive a reasonable and customary fee for the rendering of professional services, provided that the testimony of an expert witness may not be admitted if compensation is contingent on the outcome of a claim or case with respect to the testimony being offered.
Section 19-12-160. If a witness is testifying as an expert, upon motion of a party, the court shall hold a pretrial hearing to determine whether the witness qualifies as an expert and whether the expert's testimony satisfies the requirements of Sections 19-12-130, 19-12-140, and 19-12-150. The court shall allow sufficient time for a hearing and shall rule on the qualifications of the witness to testify as an expert and whether or not the testimony satisfies the requirements of Sections 19-12-130, 19-12-140, and 19-12-150. The hearing and ruling must be completed no later than the final pretrial conference contemplated pursuant to the South Carolina Rules of Civil Procedure, Rule 16. The trial court's ruling shall set forth the findings of fact and conclusions of law upon which the ruling to admit or exclude expert evidence is based.
Section 19-12-170. (A) Whether or not a party elects to request a pretrial hearing as contemplated in Section 19-12-160, all parties shall disclose to other parties to the litigation the identity of all persons who may be used at trial to present expert evidence.
(B) Except as otherwise stipulated or directed by the court, this disclosure, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, must be accompanied by a written report prepared and signed by the witness. The report must contain:
(1) a complete statement of all opinions to be expressed and the basis and reasons for them;
(2) the data or other information relied on by the witness in forming his opinions;
(3) all exhibits to be used as a summary of or support for the opinions;
(4) the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years;
(5) the compensation to be paid for the study and testimony; and
(6) a listing of cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
(C) These disclosures must be made at the times and in the sequence directed by the court. In the absence of other direction from the court or stipulation by the parties, the disclosures must be made at least ninety days before the trial date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence of an expert on the same subject matter identified by another party pursuant to subsection (B), within thirty days after the disclosure made by the other party.
(D) A party may depose a person who has been identified as an expert whose opinions may be presented at trial. If a report from the expert is required pursuant to subsection (B), the deposition may not be conducted until the report is provided.
Section 19-12-180. In interpreting and applying the provisions of this chapter, the courts of this State must be guided by the opinions of the Supreme Court of the United States in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999); Weisgram v. Marley, 528 U.S. 440 (2000), and their progeny. In addition, the courts of this State may draw from other precedents binding in the federal courts of this State applying the standards announced by the Supreme Court of the United States in the foregoing cases.
Section 19-12-190. (A) As the proper construction of the expert evidence admissibility framework prescribed by this chapter is a question of law, the appellate courts of the State shall apply a de novo standard of review in determining whether the court fully applied the proper legal standard in considering the admissibility of expert evidence.
(B) As the application of this chapter to determine the admissibility of expert testimony is a question of fact, the appellate courts of the State shall apply an abuse of discretion standard in determining whether the court properly admitted or excluded particular expert evidence."
SECTION 2. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 3. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 4. This act takes effect upon approval by the Governor and applies to all actions commenced on or after the effective date of this act.
This web page was last updated on February 25, 2013 at 2:56 PM