Page:Broussard v. St. Edward Mercy Health System, Inc.pdf/5

 (1) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant, the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he or she practices or in a similar locality;

(2) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant that the medical care provider failed to act in accordance with that standard; and

(3) By means of expert testimony provided only by a qualified medical expert that as a proximate result thereof the injured person suffered injuries that would not otherwise have occurred.

Arkansas Code Annotated § 16-114-206(a) (emphasis added). The parties agree that at least some issues in this case do not lie within the jury's comprehension as a matter of common knowledge and that expert testimony is required to assist the trier of fact in understanding the evidence and determining facts in issue. Therefore, expert testimony is necessary in the trial of this case. See Ark. R. Evid. 702.

According to the circuit court, the phrase "a medical care provider of the same specialty as the defendant" is constitutional because it constitutes substantive law setting out the burden of proof. Substantive law "creates, defines, and regulates the rights, duties, and powers of parties." Johnson, 2009 Ark. 241, at 8, 308 S.W.3d at 141 (quoting Summerville v. Thrower, 369 Ark. 231, 237, 253 S.W.3d 415, 419–20 (2007)). In contrast, procedural law prescribes "the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves." Id., 308 S.W.3d at 141 (quoting Summerville, 369 Ark. at 237, 253 S.W.3d at 419–20). Procedural matters lie solely within the province of this court. Id., 308 S.W.3d at 141. The General Assembly lacks authority to create