Who’s Your Expert?: N.C. Supreme Court to Revisit The Daubert StandardOctober 7, 2014
In its decision in Howerton v. Arai Helmet, Ltd., 358 N.C. 440 (2004), the North Carolina Supreme Court could not have been clearer: “North Carolina is not, nor has it ever been, a Daubert jurisdiction.”Although this emphatic declaration rings with finality, the Supreme Court must yet again decide whether or not North Carolina courts are to follow the federal standard for determining the admissibility of expert and scientific testimony established by the U.S. Supreme Court in Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993), and subsequent cases.
In State v. McGrady, 753 S.E.2d 361 (N.C. Ct. App. 2014), the Court of Appeals evaluated the impact of a 2011 legislative amendment to North Carolina Rules of Evidence, Rule 702, and held that, given the changes made by the legislature, the rule “should be applied pursuant to the federal standard as articulated in Daubert.” The Supreme Court granted the Petition for Discretionary Review of McGrady on June 11, 2014, and will likely address the impact of the 2011 amendment to Rule 702 and the Court of Appeals’ interpretation of the applicability of Daubert in North Carolina courts.
While in 2004 the court emphatically decried the Daubert standard, ten years and one legislative amendment later, the court may have to change its tune.
The Court of Appeals has once previously held that it was “eminently clear” that North Carolina had adopted the Daubert analysis, only to be overturned by the Supreme Court in Howerton v. Arai Helmet, Ltd. In that case, the North Carolina Supreme Court drew some important distinctions between the state and the federal standard.
The Howerton opinion criticized Daubert and maintained that although the United States Supreme Court believed Daubert would loosen the rigid acceptance standard and relax barriers to opinion testimony, in practice, the Daubert standard was “anything but liberal or relaxed….” The Court was adamant that the approach to determining admissibility established in North Carolina case law in State v. Goode, 341 N.C. 513 (1995), and the cases preceding it was a distinct, more workable method than the federal standard under Daubert and the federal cases following that decision including General Electric Co. v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
The court voiced concern that parties in civil actions would use Daubert to exclude an expert witness and then “bootstrap motions for summary judgment that otherwise would not likely succeed.” Furthermore, the court worried that the federal standard would allow trial courts to assert “sweeping pre-trial ‘gatekeeping’ authority,” which would “unnecessarily encroach upon the constitutionally-mandated function of the jury to decide issues of fact and to assess the weight of the evidence.”
Regardless of the North Carolina Supreme Court’s hesitations and misgivings, the North Carolina Legislature amended Rule 702 as a part of a 2011 omnibus tort reform bill and the text of Rule 702 now mirrors, in relevant part, the current version of the federal rule. The Federal Rules of Evidence Rule 702 was amended in 2000 to include three standards that a court must use in evaluating the admissibility of an expert witness which were established by the United States Supreme Court in Daubert and its progeny.
In McGrady, the Court of Appeals upheld the district court decision to exclude the defendant’s expert witness, Dave F. Cloutier, based on the fact that the trial court found his testimony to be unreliable and not helpful to the jury and noted that “Cloutier’s testimony had not been subject to peer review, Cloutier had no knowledge of a potential rate of error regarding any of the use of force factors, and Cloutier did not recognize or apply the variables that could have affected his opinions in the case.” The factors of peer review and rate of error are factors pulled directly from the Daubert opinion. The Court Of Appeals held that applying the Daubert standard was appropriate because the 2011 amendment to Rule 702 implements the standards set forth in Daubert.
Although the Court of Appeals’ interpretation of the impact of the 2011 amendment in McGrady found that the legislature intended North Carolina to be a Daubert state, such a conclusion is not definitive until the Supreme Court makes its own ruling. The court may overturn the Court of Appeals as they did in Howerton and hold that the North Carolina standard under Goode is still the most workable framework to achieve the results required under the amended rule. Alternatively, the court could uphold the Court of Appeals decision and North Carolina would definitively become a Daubert jurisdiction. There are many groups waiting expectantly for that decision and several groups including National Association of Police Organizations and North Carolina Advocates for Justice have filed amicus curiae briefs in support of the defendant Mr. McGrady.
Whatever the outcome, the standard for review under Rule 702, whether following Daubert or Goode will still leave a great deal of discretion to the trial court; so, on an individual level, the Supreme Court’s decision may not greatly affect how an individual trial court judge determines the admissibility of an expert witness. However, the Supreme Court’s opinion will likely give an indication of the general attitude it believes North Carolina courts should take towards admitting expert and scientific testimony. This attitude could mean the difference between trial courts allowing more liberal admission of expert testimony as espoused by Howerton, or trial courts adopting the role of the mechanistic gatekeepers found in the Federal precedent following Daubert. At this point, only time and the North Carolina Supreme Court will shed light on this complicated issue.