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Carnell v. Barker Management6/3/2002
gue that the district court erred by striking Bidstrup's second affidavit. Appellants assert that Idaho Rule of Evidence 702 mirrors F.R.E. 702, which has been construed in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny; there have been countless federal opinions addressing the requirements of F.R.E. 702. Appellants cite to these cases for the premise that the preferred method of determining the admissibility of an affidavit is an evidentiary hearing, which the district court did not do in this case. Appellants believe this was an abuse of discretion. Appellants assert that Bidstrup was qualified, had reviewed the depositions in this case, photographs of the basement, and a video of the basement in formulating his opinion, and possessed scientific, technical, or other specialized knowledge in the field of fire cause and origin. Appellants argue that Bidstrup raised genuine issues of fact that should have been presented to a jury.
On reply, appellants contend that the respondents were aware of appellants' intention to use Bidstrup as an expert, so no prejudice resulted from untimely disclosure. According to the appellants, "a summary judgment motion should constitute good cause for altering a scheduling order, especially when a prior affidavit has been submitted by this same expert, thereby, apprising Defendants of Plaintiffs' intent to use him."
Idaho Rule of Evidence 104 in pertinent part states, "preliminary questions concerning the qualifications of a person to be a witness . . . or the admissibility of evidence shall be determined by the court . . . ."
Idaho Rule of Evidence 702 states "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 thereto in the form of an opinion or otherwise." This Court has stated "that the appropriate test for measuring reliability of evidence in this state is I.R.E. 702." State v. Merwin, 131 Idaho 642, 646, 962 P.2d 1026, 1030 (1998) (citing Walker v. Am. Cyanamid Co., 130 Idaho 824, 832, 948 P.2d 1123, 1131 (1997)). "The trial court's broad discretion in admitting evidence 'will only be disturbed on appeal when there has been a clear abuse of discretion.'" Id. In Merwin, the defendant argued that the studies relied upon by the experts did not meet the standards set forth in Daubert. This Court rejected the proposed application of Daubert to expert witness testimony in Idaho in Merwin.
The district court was cognizant of the fact that this Court has not adopted Daubert, and conducted a bare analysis of Bidstrup's second affidavit under I.R.E. 104 and 702. In its decision, the court first addressed whether Bidstrup was qualified as a fire causation and origin expert. Citing the lack of information in his affidavit concerning his education, training, and experience in the area of fire investigation, coupled with no mention of how Bidstrup gained his knowledge in fire causation, the district court found that Bidstrup was "unqualified to testify as to the cause, place of origin, or spread of fire . . . ." The court next tried to determine if Bidstrup's testimony was based on "scientific, technical, or other specialized knowledge" as required by I.R.E. 702. The court found that other than the one sentence stating that fire burns towards fuel or oxygen, a common fact known by most lay people, there was no other explanation of the methodology Bidstrup used to determine the cause of the fire or exclude possible causes. The court also found that Bidstrup's testimony lacked factual foundation. Even though Bidstrup claim
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