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Friday, February 28, 2014

Daubert & North Carolina – A rocky relationship ends in a wedding, but will the marriage last?


After almost 15 years, North Carolina finally tied the knot with Daubert.  In January 2014, the Court of Appeals declared that North Carolina courts should apply the Daubert criteria to expert testimony. In State v McGrady (2014) the Court upheld the trial court’s exclusion of expert testimony and clarified what the 2011 Amendments to NC Rule of Evidence 702 meant for expert testimony.  In short, the Court stated that the standard for admissibility set in Howerton v Arai Helmet (2004) was replaced by Daubert with the adoption of the 2011 amendments.  Here is a little history of the rocky relationship.

The courtship & a happy relationship


In 1993, the U.S. Supreme Court adopted Daubert as the standard governing admissibility of expert testimony in federal court. Two years later, the Supreme Court of North Carolina cited the U.S. Supreme Court’s decision in Daubert when addressing the admissibility of one of the prosecutor’s experts (State v Goode (1995)). At issue was the testimony of the State’s bloodstain pattern interpretation expert in a double homicide case. The NC Supreme Court upheld the trial court’s decision that the prosecutor’s expert was qualified in this area and this area of testimony was a scientifically reliable field.

Shortly after Rule 702 of the Federal Rules of Evidence (FRE) was amended in 2000 to essentially codify Daubert, North Carolina’s Superior Court, in considering motions to exclude expert testimony, offered a lengthy discussion on Daubert and Kumho Tire. The Court noted that “[t]he North Carolina Rules of Evidence are patterned after the Federal Rules. Therefore, although this Court is not bound by federal case law, these cases prove to be helpful in arriving at a list of factors relevant to assessing the reliability of the expert testimony proffered in this case.” Ultimately, the Court relied on a number of factors gleaned from Daubert, Kumho and the FRE 702 advisory committee in its decisions on the admissibility of Plaintiff’s experts’ testimony (Praxair, Inc. v. Airgas, Inc. (2000)). Of the five plaintiff’s experts, the Court excluded one expert for being unqualified and offering an unreliable methodology. The Court then limited the remaining experts from giving testimony on conclusions of law, consistent with NC Rule 704 (patterned after FRE 704), which does not allow an expert to tell a jury what decision to make on the ultimate issue.

For ten years (1995-2004) North Carolina was content in its relationship with Daubert and relied on its criteria when evaluating the admissibility of expert testimony in appellate cases.

The break-up


Despite the good times in the preceding years, 2004 marked a change.  Bitter about federal trial judges’ use of Daubert to exclude experts and then granting summary judgment thereby reducing the number of jury trials, the NC Supreme Court denounced Daubert and its “gatekeeping approach”. In Howerton v. Arai Helmet, Ltd (2004) the Court clearly stated that “North Carolina is not, nor has it ever been a Daubert jurisdiction”.  The Court went its separate way and adopted a three-pronged test modified from State v Goode to evaluate the admissibility of expert testimony.  Applying this three-step process, the Court reversed the lower court’s exclusion of plaintiff’s experts.

It was now clear that the State and Daubert were never getting back together. The split  was reinforced in State v Anderson (2006) when the Court of Appeals stated that “our Supreme Court has held that the principles of Daubert do not apply in this State”. For the next seven years, North Carolina stayed single – relying on its own Howerton standard set in 2004.

The reconciliation


In 2011, another change occurred. The General Assembly amended NC’s Rule of Evidence 702(a), which sets forth guidance for the trial court to use when considering the admissibility of an expert. The amended section (new language underlined) reads:

(a) 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, if all of the following apply:

(1) The testimony is based upon sufficient facts or data.
(2) The testimony is the product of reliable principles and methods.
(3) The witness has applied the principles and methods reliably to the facts of the case.

Those familiar with Federal Rule of Evidence (FRE) 702 will notice similarities in the initial paragraph and identical language in the subparts.  The relationship between North Carolina and Daubert seemed to be on again when the Court of Appeals stated in State v Hudson (2012), that Rule 702(a) was “amended” ‘to adopt the standard for expert testimony set forth in Daubert’” However, as recently as October 2013, the  Court of Appeals expressed criticism of the Daubert approach for excluding experts and thereby limiting the opportunity for juries to consider the weight of evidence and decide issues of fact (State v Cooper (2013)). So, for a period of time there was confusion as there was no official recognition of the relationship and the Courts were left puzzling over whether North Carolina was a Daubert state.

The wedding


Back to the present. North Carolina has officially wed Daubert. The Court of Appeals, in evaluating whether the trial court abused its discretion in excluding the expert testimony of one of the defendant’s experts, clarified the application of Rule 702(a) amendments. In State v McGrady, the Court upheld the lower court’s exclusion of defendant’s expert testimony on “use of force” in a first degree murder case and confirmed that amended Rule of Evidence 702(a) follows Daubert.  It is also confirmed the trial court’s gatekeeping role to consider admissibility of expert testimony using the Daubert criteria.

Will the marriage last?


If marrying Daubert results in a decrease in jury trials as a consequence of trial courts excluding experts and granting summary judgment, a divorce may be in the future.  The Courts have been clear on this issue: North Carolina wants jury trials as long the expert testimony satisfies the requirements of relevance and reliability.

Submitted by Wendy N. Pearson, President

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