Written by: Zachary D. Howser
Article 1425(F) of the Louisiana Code of Civil Procedure governs challenges to the admissibility of expert testimony. An amendment to Article 1425(F), passed by the Legislature in its 2024 session, now forecloses any challenge to the qualifications or methodologies of an expert witness if not challenged in a motion filed at least sixty days in advance of trial.
Before May 2024, Article 1425(F)(1) read as follows:
(F)(1) Any party may file a motion for a pretrial hearing to determine whether a witness qualifies as an expert or whether the methodologies employed by such witness are reliable under Articles 702 through 705 of the Louisiana Code of Evidence. The motion shall be filed not later than sixty days prior to trial and shall set forth sufficient allegations showing the necessity for these determinations by the court.
The use of the permissive word “may” led the First Circuit Court Appeal to hold, in Williams v. State Farm Mutual Automobile Insurance Co., that Article 1425(F) “does not mandate a pretrial motion to challenge the qualifications of an expert,”[1] and allows a party to pose such a challenge at trial. Decisions in the Third and Fourth Circuit Courts of Appeal disagreed with Williams, and each of those appellate courts ruled that pre-trial challenges to an expert’s qualifications or methodologies must be made in a pre-trial motion.[2] Their holdings were based on the mandatory language in the last sentence that the “motion shall be filed not later than sixty days prior to trial.
In addition to the split decisions in those circuits, Judge Holdridge strongly criticized Williams in his concurring opinion in Sulak v. Brimmer Construction Services, LLC.[3], and noted that an Article 1425(F) motion must be heard in accordance with the deadlines in Article 1425(1-3), unless, in accordance with Article 1425(F)(6), all parties give their unanimous consent, and the trial court agrees. Only then can an objection to admissibility be heard for the first time at trial.[4] Judge Holdridge concluded that, without unanimous consent, an objection made at trial after the sixty-day deadline has passed is untimely.
Before the 2024 legislative amendment, the clearest explanation for why Article 1425(F) imposed mandatory, not discretionary, deadlines were provided by the Louisiana Third Circuit in Wilzcewski v. Brookshire Grocery Co., echoing the reasoning of Wilzcewski.[5]
A reading of the remainder of La. Code Civ. P. art. 1425(F) makes it clear why the sixty-day filing requirement is mandatory. When such a motion is filed, the trial court is required to hold a contradictory hearing at least thirty days prior to trial and, in the event the trial court should take the matter under advisement, it may remain under advisement only five days. La. Code Civ. P. art. 1425(F)(2) and (3). Additionally, the statutory schedule gives the unsuccessful party the opportunity to seek immediate appellate review. La. Code Civ. P. art. 1425(F)(5).[6]
To clarify that the Third and Fourth Circuit decisions as well as Judge Holdridge’s concurrence in Sulak, rather than Williams, represented the correct reading of Article 1425(F), on May 20, 2024, the Louisiana legislature enacted Act. No. 371, H.B. No. 227. Act No. 371 replaced the permissive word “may” with the mandatory word “shall” in Article 1425(F)(1) to clarify that challenges to an expert’s qualifications or methodologies must be made by pretrial motion sixty days prior to trial.
Article 1425(F)(1) now reads:
A party seeking to challenge whether a witness qualifies as an expert or whether the methodologies employed by the witness are reliable under Code of Evidence Articles 702 through 705 shall file a motion for a pretrial hearing. The motion shall be filed not later than sixty days prior to trial and shall set forth sufficient allegations showing the necessity for these determinations by the court.
The mandatory deadline promotes judicial efficiency in several ways. It eliminates the potential for ambush in increasingly costly trials. It allows the parties to know in advance whether their expert witnesses will be allowed to testify, rather than having their witnesses struck in the middle of trial when it’s too late to find another. It supports the trial court’s gatekeeping function, encapsulated in Article 1425, by providing the trial court sufficient time to make informed decisions on the admissibility of the expert’s testimony, with the benefit of pre-trial briefing, unhurried by exigencies that might otherwise result in erroneous snap rulings that practically may not be reviewed until trial is over and a substantial adverse judgment is issued.
Perhaps most importantly, the losing party’s statutory right to appellate review that is provided in Article 1425(F)(5), the pretrial deadline for challenging expert qualifications and methodologies allows early appellate intervention to ensure correct resolution in advance, eliminating the time and expense of a second trial due to reversible error in adverse judgments based on unreliable expert testimony.
As the legislature originally intended, and as now clarified, Article 1425(F)(1) properly ensures that challenges to the admissibility of an expert’s qualifications or methodologies must be resolved first at the trial level, in advance of trial, subject to appellate review, to minimize or eliminate jury confusion and error in making findings based on testimony from unqualified witnesses or unscientific methods.
[1] 2020-0787, p. 4 (La. App. 1 Cir. 3/11/21), 322 So.3d 795, 797-98.
[2] See Wilzcewski v. Brookshire Grocery Co., 2010-1148, ps. 11-12 (La. App. 3 Cir. 3/16/11), 59 So. 3d 530, and Hidalgo v. Bd of Supervisors of Louisiana State University, 2024-0040, p. 4 (La. App. 4 Cir. 1/22/24), 381 So. 3d 169.
[3] 2023-CA-0058 (La. App. 1 Cir. 10/10/23), 382 So. 3d 919.
[4] Id. at 927.
[5] 2010-1148, ps. 11-12 (La. App. 3 Cir. 3/16/11), 59 So. 3d 530, 538-39:
[6] Id. (Emphasis Added).