Trial Briefs - Trial Briefs Winter 2020
Make Sure Your Expert Qualifies in 2020
Jeremy Wilson 2020-01-29 22:27:17
The Threshold for Expert Testimony in North Carolina, Particularly Now That It Is a Daubert State
Introduction
In 2011, the North Carolina General Assembly amended Rule 702(a) of the North Carolina Rules of Evidence, which establishes the qualifications necessary for a testifying expert witness.1 Specifically, Rule 702(a) now states:
(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.2
Thus, an expert offering such specialized testimony should only be allowed to testify if each of the three enumerated factors are present. This new version of Rule 702(a) tracks the Federal Rules of Civil Procedure, which led many practitioners initially to believe that in 2011 North Carolina had adopted the heightened “gatekeeping” standard for expert testimony utilized by federal courts, known as the Daubert3standard. The Supreme Court of North Carolina eliminated any question when, in 2016, the Court issued its opinion in State v. McGrady, holding that “the General Assembly has made it clear that North Carolina is now a Daubert state.”4So since 2016, litigators in North Carolina state courts have been subject to a heightened burden in qualifying their expert witnesses. This article provides a basic overview of the Daubert standard as applied in North Carolina and provides recommendations to help ensure your expert witness qualifies.5
What Is This Daubert Standard Anyway?
The Daubert standard is the test used by federal courts and many state courts (including, now, North Carolina) to determine whether expert testimony should be admissible, based on the trial court judge’s determination of whether the testimony relies upon scientifically valid reasoning that can properly be applied to the facts at issue. The United States Supreme Court adopted this standard through a series of cases in the 1990s, starting with Daubert v. Merrell Dow Pharmaceuticals Inc., an opinion examining expert testimony in a pharmaceutical products liability case involving birth defects.6 The Supreme Court held that, under the Federal Rules of Evidence, trial court judges are to serve as gatekeepers, determining whether scientific methodology “is not only relevant, but reliable” before such testimony may reach the jury.7 In doing so, trial court judges are to conduct “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.”8
The U.S. Supreme Court further outlined the Daubert standard in General Electric Co. v. Joiner9 and Kumho Tire Co. v. Carmichael,10 including clarifying that the trial judge’s general “gatekeeping” obligation applies not only to testimony based on “scientific” knowledge, but also to testimony based on “technical” and “other specialized” knowledge.11 In 2000, Federal Rule of Evidence 702 was amended in response to Daubert and the cases applying it.12
While the Daubert standard is supposed to be a “flexible” inquiry, there are specific factors that the federal courts have outlined to allow a trial court judge to determine if expert testimony is sufficiently reliable to reach the jury. When expert testimony involves something akin to a scientific field, these factors include:
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whether the theory or technique in question can be and has been tested;
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whether it has been subjected to peer review and publication;
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its known or potential error rate;
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the existence and maintenance of standards controlling its operation; and
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whether it has attracted widespread acceptance within a relevant scientific community.13
Non-scientific opinions that are still based on “technical or other specialized knowledge” can be examined under the preceding five factors as applicable, in addition to other applicable considerations for reliability, including whether the expert:
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is proposing to testify about matters growing naturally and directly out of research conducted outside of the litigation, or has developed his or her opinions expressly for purposes of testifying;
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has unjustifiably extrapolated from an accepted premise to an unfounded conclusion;
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has adequately accounted for obvious alternative explanations;
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is being as careful as he or she would be in their regular professional work outside of their paid litigation consulting;
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has claimed a field of expertise known to reach reliable results for the type of opinion anticipated to be given.14
The burden is on the proponent of the expert testimony to establish its admissibility by a preponderance of proof.15 Make no mistake, Daubert leads to a heightened burden for parties to meet in seeking to admit expert testimony — including plaintiffs in personal injury and other civil cases. While the Daubert standard is meant to prevent “junk science” from reaching the jury, it takes decisions out of the hands of jurors who should be allowed to determine whether an expert’s opinions are sufficiently reliable so long as basic qualifications are met. The Daubert standard also leads to heightened expense and complexity in some cases, requiring highly detailed technical opinions on certain issues, multiple experts, and substantial expert discovery and motions practice. The result is that some plaintiffs face a more difficult and expensive road to have their day in court. And, whether the Daubert standard actually achieves its goal of preventing “incorrect” results based on “bad” science is not at all clear, whether empirically or anecdotally.
Regardless, as the North Carolina Supreme Court held in McGrady, North Carolina is a Daubert state as a result of the General Assembly’s 2011 amendment to the N.C. Rules of Evidence. Thus, some version of this heightened expert analysis is here to stay (as discussed below).
How Is the Daubert Standard Different From North Carolina’s Prior Expert Standard?
By its terms, the Daubert standard formally recognized in McGrady is a higher standard for admissibility of expert testimony than what existed prior in North Carolina. A party seeking to rely on an expert testimony based on scientific, specialized, or technical subject matter has a higher bar to meet before such testimony can reach the jury. And there is greater likelihood of formal challenges to an expert’s testimony, including those linked to summary judgment motions.
Prior to the General Assembly’s 2011 amendment to N.C. Rule of Evidence 702(a), our courts had explicitly rejected the Daubert standard. In the 2004 opinion Howerton v. Arai Helmet, Ltd.,15 for instance, the North Carolina Supreme Court stated that “North Carolina is not, nor has it ever been, a Daubert jurisdiction.”16 The Court noted that “the North Carolina approach is decidedly less mechanistic and rigorous than the exacting standards of reliability demanded by the federal approach.”17 North Carolina trial courts instead were to conduct a three-step inquiry based on the following areas of analysis: “(1) Is the expert’s proffered method of proof sufficiently reliable as an area for expert testimony? (2) Is the witness testifying at trial qualified as an expert in that area of testimony? (3) Is the expert’s testimony relevant?”18
In fact, the Howerton Court detailed its concerns with Daubert. Among other things, the Court noted that “the Daubert ‘gatekeeping’ approach … places trial courts in the onerous and impractical position of passing judgment on the substantive merits of the scientific or technical theories undergirding an expert’s opinion.”19 As such, trial court judges essentially are asked to become “amateur scientists” in order to decide disputed issues regarding the reliability of a particular type of technical analysis.20 The Court also noted concerns over how Daubert-type motions would lead to more dispositive results in areas where technical expert opinions are needed for an essential element of a claim.21 And, as a result, ultimate decisions would be taken away from juries and placed in the hands of individual judges making highly technical “gatekeeping” decisions.22
So, how is Daubert different? Basically, those concerns outlined in Howerton have been put in play in North Carolina state courts. Trial court judges are asked to perform the Daubert “gatekeeping” role and rule expert opinions inadmissible if they are not deemed sufficiently reliable based on the numerous Daubert factors relevant to a particular expert’s field, as applicable. Daubert sets a higher bar. Courts are asked to determine if an expert meets that higher bar by conducting detailed technical inquiries focused on topics like peer review, rates of error, and the opinions of other experts in the same field. The end result is the exclusion of more expert testimony leading to fewer cases reaching the jury.
One caveat, however, is that North Carolina state courts obviously are not bound by federal decisions. The McGrady Court specifically noted that while such federal opinions may be helpful, they certainly are not determinative in North Carolina.23Further, North Carolina’s existing precedent concerning expert testimony admissibility remains good law so long as it does not specifically conflict with the required Daubert analysis codified in Rule 702(a).24
What Challenges Does Daubert Present?
New Rule 702(a) formalized a higher threshold for expert opinion testimony to be able to reach the jury. Trial lawyers certainly always needed to work diligently to ensure their expert witnesses were qualified and well-prepared. That task requires even greater attention and resources since North Carolina officially became a Daubert state.
In civil personal injury cases, defense attorneys are becoming increasingly focused on using Daubert as a means to try to exclude plaintiffs’ expert testimony, and often even to have a plaintiff’s case dismissed based on that exclusion. This can be done with any expert who relies on “scientific, technical or other specialized knowledge” — which is essentially any type of expert.25 In civil cases, defense attorneys are raising Daubert challenges to an expanding list of experts: medical experts, accident reconstructionists, other engineers, life-care planners and others.
The defense (or any other party challenging an expert) can make a “Daubert motion” pursuant to Rules 104(a) and 702(a) of the N.C. Rules of Evidence, asking that the trial court exclude the expert’s testimony and arguing that the opinions are not sufficiently reliable under the Daubert standard. Such challenges can be raised at various procedural points in a case. The defense may ask the Court to exclude expert testimony with a motion in limine at the beginning of trial. A Daubert challenge also can be raised during trial — whether after opposing counsel conducts voir dire of a particular expert witness, or possibly even after the actual cross examination of the witness. Defense attorneys can use their own expert witness’ testimony to support their Daubert challenge of a plaintiff’s expert. Depending on the procedural status and the court’s preference, a trial court judge can decide a Daubert motion based on affidavits, voir dire testimony, or pursuant to an in limine hearing.26
Also, when such expert testimony is necessary to establish an element of the plaintiff’s case, the defense can make a motion for summary judgment in conjunction with its Daubert challenge. (Expert testimony on medical causation in an injury case is one example where a Daubert challenge can prove dispositive.) The difficulty with Daubert in this context is that the required evidentiary analysis essentially changes the summary judgment standard. Motions for summary judgment pursuant to Rule 56 require that the evidence be viewed in the light most favorable to the non-movant, and any conflicting factual issues be resolved in the non-movants’ favor. Not so with a Daubert challenge. With a Daubert motion, the trial court acts as a trier of fact “[t]o the extent that factual findings are necessary to answer this question [of whether expert testimony is admissible].”27 Any factual findings must be made by the court by the greater weight of the evidence.28 Then, based on these findings, the court can conclude whether an expert’s opinions meet the qualification, relevance and reliability requirements of Rule 702(a).29
While factual findings are not always required in response to a Daubert challenge, the applicable standard means that a necessary expert can be excluded under a Daubert analysis, thereby allowing the defense to obtain summary judgment based solely on a judge’s independent analysis of the reliability of those expert opinions.30 As a result, the defense may be able to obtain summary judgment utilizing a different procedural standard than typically applies at that point in a case (i.e., not viewing factual disputes in light most favorable to the non-movant). 31The result (potentially) is more pre-trial motions fighting, greater difficulty in reaching trial, and fewer cases reaching the jury.
Daubert motions pursuant to Rules 104(a) and 702(a) are available to plaintiffs’ attorneys as well, in order to attempt to exclude defendants’ experts. It likely is wise to be judicious with use of such Daubert challenges. However, there certainly are defense experts who seem to reach pro-defense opinions without the proper analysis to establish reliability. Thus, while Daubert tends to be a tool most utilized by the defense in civil cases, it certainly is a tool available to plaintiffs’ attorneys when necessary as well.
A related challenge resulting from the Daubert standard is the increasing discovery burden (and related cost) that comes along with it. North Carolina’s adoption of the Daubert standard is leading to more in-depth expert discovery from defense attorneys in an attempt to potentially support arguments for disqualification of the expert’s opinions. This requires time and resources on the part of plaintiffs and their attorneys to have their experts prepared to detail information supporting the applicable reliability factors examined under Daubert.
How Can You Make Sure Your Expert Qualifies?
Consider Where You Are. Is your case in state court or federal court? While Daubert is the law of the land in North Carolina, our state courts are not bound by federal case law interpreting Daubert. And our Supreme Court made clear in McGrady that prior North Carolina case law still controls as long as it does not explicitly conflict with the Daubert standard.32Daubert is still relatively new for North Carolina state courts. Practically speaking, many North Carolina judges also came up practicing or presiding in a pre-Daubert court system and may not apply these Rule 702(a) requirements in a strict, mechanical manner as some federal district court judges do. There also is the (very legitimate) hesitancy for one judge to make decisions that will affect another judge’s trial. So, North Carolina judges may be less willing to consider Daubert challenges pre-trial, such as at the summary judgment stage. That calculus changes, however, when a 2.1 judge is involved. Simply put, it is important to consider your jurisdiction, your judge(s), and how the Daubert standard likely will be applied based on same, when strategically considering the necessary steps to make sure your expert qualifies.
Know the Standard (and Think About It). The most important thing you can do to make sure your expert qualifies is to be aware of the Daubert standard. Review the case law regarding the factors examined to determine reliability. Go through the factors like a checklist: have the expert’s underlying theories been tested, subjected to peer review, etc. Of course, the standard technically is supposed to be flexible, and not all factors apply in each case. Consider the type of expert with whom you are working. A medical expert in a car wreck case is not likely to receive the same level of scrutiny as a liability expert in a products liability case. Still, think through the type of testimony you will want to elicit from your expert, data/sources your expert can reply upon, and other steps needed to address the applicable factors regarding reliability.
Review Case Law and Results from Other Trial Court Proceedings. Daubert has been the standard in United States federal courts since the 1990s. While federal case law does not control North Carolina courts, it is incredibly persuasive given that the federal and state versions of Rule 702(a) now are the same. Research whether expert opinions similar to yours have been allowed or excluded and why. Be armed with supportive case law. And be ready to take steps to distinguish bad cases or have the evidence ready that would have led to a different result in the unhelpful case law.
Choose a Testifying Expert with Daubert in Mind. After looking at the case law and thinking through the Daubert factors, choose testifying experts that will allow you to overcome a Daubert challenge, or at least give you the greatest chance to do so. Look at their credentials and see if they have specific experience in the field they will be testifying about. Determine if they have been accepted as experts in other proceedings, and/or whether similar testimony has been accepted under Daubert in other cases. Have frank conversations about such Daubert factors as the existing body of research, error rates, that expert’s individual technical work, alternative explanations, and the general view on reliability of such conclusions in that particular field. Doing so will give you the greatest chance to overcome a Daubert challenge or prevent one from ever happening.
Once You Choose Your Testifying Expert, Help Prepare Them. The work does not stop after selecting your expert. Expect that defense counsel will delve into the Daubert factors during your expert’s deposition. Make sure your expert is prepared to adequately respond to these questions. And, make sure they have reviewed the necessary literature, data sources, and other materials to address the applicable Daubert factors. Again, look at case law (including federal case law) involving the same types of expert opinions to determine what the expert ought to be prepared for. If you think about Daubert after your expert’s deposition, it is too late. If the expert is unprepared for the deposition or other testimony, you risk laying the groundwork for a motion to exclude their opinions or, worse, a motion for summary judgment if the expert is critical to a necessary element of your case. Also, expect that defense experts will try to attack the reliability of your expert’s opinions, and be prepared to undercut their positions through your questioning.
Conclusion
Now that North Carolina is a Daubert state, it is important to think through steps needed to make sure your expert qualifies to render their opinions. The more technical or scientific the testimony, the more likely that opposing counsel will attempt a Daubert challenge. There has not been a sea change in North Carolina in this regard, and not every case will receive a Daubert challenge. But as time progresses, defense attorneys in civil cases are becoming more and more bold in attempting to exclude experts under the Daubert analysis codified in new Rule 702(a). Thinking through Daubert from the beginning will help make sure you can prove your case as effectively and efficiently as possible now and in the years to come.
1 See Act of June 17, 2011, ch. 283, sec. 1.3, 2011 N.C. Sess. Laws (2011 Reg. Sess.) 1048, 1049 (codified at N.C. Gen. Stat. § 8C–1, Rule 702(a)).
2 N.C. Gen. Stat. §8C–1, Rule 702(a) (emphasis added).
3 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
4 State v. McGrady, 368 N.C. 880, 888, 787 S.E.2d 1, 8 (2016).
5 While the Daubert standard applies to both civil and criminal cases, the examples used in this article primarily address civil lawsuits.
6 See generally, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See also McGrady, 368 N.C. at 884-885, 787 S.E.2d at 6.
7 Daubert, 509 U.S. at 589.
8 Id. at 592–93.
9 General Electric Co. v. Joiner, 522 U.S. 136 (1997).
10 Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
11 See generally, id.
12 See Fed. R. Evid. 702 advisory committee’s note to 2000 amendment.
13 See Daubert, 509 U.S. at 592-94.
14 See Fed. R. Evid. 702 advisory committee’s note to 2000 amendment (citations and internal quotations omitted). See also McGrady, 368 N.C. at 889-92, 787 S.E.2d at 8-10.
15 See, e.g., Fed. R. Evid. 702 advisory committee’s note to 2000 amendment (citing Bourjaily v. United States, 483 U.S. 171 (1987)).
16 Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 469, 597 S.E.2d 674, 693 (2004).
17 Id. at 464, 597 S.E.2d at 690 (citation omitted).
18 Id. at 458, 597 S.E.2d at 686 (internal citations omitted).
19 Id. at 464, 597 S.E.2d at 690.
20 Id. at 466, 597 S.E.2d at 691 (quoting Goeb v. Tharaldson, 615 N.W.2d 800, 812-13 (Minn.2000)) (additional citations omitted).
21 See id. at 467-69, 597 S.E.2d at 691-92.
22 See id.
23 See McGrady, 368 N.C. at 888, 787 S.E.2d at 8.
24 See id.
25 See N.C. Gen. Stat. §8C-1, Rule 702(a).
26 See McGrady, 368 N.C. at 893, 787 S.E.2d at 11.
27 Id. at 892, 787 S.E.2d at 10 (citation omitted).
28 Id. at 892, 787 S.E.2d at 10-11 (citations omitted).
29 Id. at 892, 787 S.E.2d at 11.
30 See Howerton, 358 N.C. at 468, 597 S.E.2d at 692.
31 See id.
32 See McGrady, 368 N.C. at 888, 787 S.E.2d at 8.
Jeremy Wilson leads the personal injury and wrongful death practice at Ward & Smith. His practice focuses on civil litigation, personal injury, medical malpractice, premises liability, insurance coverage and litigation, and business, commercial and contract litigation. He is a graduate of the University of North Carolina at Chapel Hill and UNC School of Law and earned an M.P.P. from Duke University’s Terry Sanford School of Public Policy. He is a native of Wilmington, N.C., where he lives with his wife and two children.
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