North Carolina Adopts Daubert . . .To the Consternation of its Supreme Court

By Joshua Fruchter, Esq
On January 21, 2014, the North Carolina Court of Appeals decided State v. McGrady. In McGrady, the appellate court held that amendments to Rule 702 of the North Carolina Rules of Evidence in 2011 adopted the standards in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), for admitting expert witness testimony in North Carolina state courts.

The McGrady decision effectively displaces the ruling by the Supreme Court of North Carolina in Howerton v. Arai Helmet, Ltd., 597 S.E.2d 674 (2004), which had held categorically that “North Carolina is not, nor has it ever been a Daubert jurisdiction.”

While apparently superseded by the 2011 amendments, the Howerton decision offers some thoughtful criticisms of Daubert that raise questions about whether courts have applied Daubert differently than the United States Supreme Court intended.

In Howerton, the plaintiff suffered a devastating spinal injury in an accident while riding his off-road motorcycle at a track in North Carolina. The injury left him permanently paralyzed from the neck down.
The plaintiff asserted various product liability claims against Arai Helmet, the manufacturer of his motorcycle helmet, on the grounds that the helmet was negligently designed, defective, and unreasonably dangerous under ordinary usage.

To support his claims, plaintiff introduced testimony from four expert witnesses. Collectively, these experts opined that the helmet worn by plaintiff employed a dangerous design that differed from that of other motorcycle helmets, and that such design defect was the cause of plaintiff’s injury.  Specifically, the expert testimony showed that many other helmets are designed with a rigid chin bar that is molded into the helmet. Among other purposes, these rigid guards are designed to protect the head and neck from extreme forward rotation in an accident by stopping against the motorcyclist’s chest upon impact.

In contrast, plaintiff’s helmet was equipped with a flexible, removable guard across the chin and mouth that was secured to the helmet on each side by nylon screws. According to plaintiff’s experts, these nylon screws broke on impact, thereby allowing plaintiff’s head to rotate too far forward, resulting in a “hyperflexion” of his neck that caused the resulting cervical fractures and paralysis. Plaintiff’s experts contended that had the helmet been properly designed, it would have restricted the movement of plaintiff’s neck and cushioned his head on impact preventing the catastrophic spinal injury he suffered.

The manufacturer moved to exclude the testimony of plaintiff’s experts on the issue of causation under Rule 702 on the grounds that the testimony was unreliable under Daubert. The court held that the admissibility of expert testimony in North Carolina courts was governed by Daubert, and granted the motion to exclude, as well as a simultaneous motion for summary judgment in favor of the manufacturer (on the grounds that plaintiff could not establish causation absent admissible expert testimony).  On appeal, the North Carolina Court of Appeals affirmed.

The Supreme Court of North Carolina reversed. After reviewing prior case law concerning the principles of North Carolina law governing the admissibility of expert testimony, it concluded that “we are satisfied that our [the] approach [in North Carolina] is distinct from that adopted by the federal courts [under Daubert].” It further rejected the lower courts’ conclusion that it had ever previously adopted the Daubert standard. Therefore, because plaintiff’s expert testimony had been rejected under the wrong standard, the motion to exclude – and motion for summary judgment – were improperly granted.

But the Supreme Court didn’t stop there. Instead, it criticized what it perceived as the shortcomings of Daubert. First, it observed that “[o]ne of the most troublesome aspects of the Daubert ‘gatekeeping’ approach is that it 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.” The Supreme Court felt that judges, untrained in science, are in no position “to delve into complex scientific and technical issues at the level of understanding necessary to generate with any meaningfulness the conclusions required under Daubert.”

The North Carolina Supreme Court also noted ironically that while the U.S. Supreme Court felt the principles enunciated in Daubert would relax traditional barriers to admission of expert testimony, in practice, trial courts’ application of Daubert had achieved just the opposite – what one commentator called “’strict scrutiny’ of science by non-scientifically trained judges.”

The Supreme Court further speculated that as a consequence of the stringent threshold standards for admitting expert testimony being applied by federal trial courts, parties were now incentivized to use pre-trial motions to exclude expert testimony under Daubert to bootstrap motions for summary judgment that otherwise were not likely to succeed. This is precisely what happened in Howerton where the helmet manufacturer coupled its Daubert motion with a motion for summary judgment once all the experts were knocked out.

Such procedural maneuvers are made possible under Daubert, the Supreme Court noted, because different standards apply to rulings on motions to exclude expert testimony versus rulings on motions for summary judgment. Whereas on a motion for summary judgment, the evidence presented to the trial court must be admissible at trial, and must be viewed in a light most favorable to the non-moving party, and courts are not permitted to decide conflicting issues of material fact (which must be left for the jury), on a motion to exclude expert testimony under Daubert, trial courts are not bound by the rules of evidence, are not required to view the evidence in a light favorable to the non-movant, and may preliminarily resolve conflicting issues of fact relevant to the Daubert admissibility ruling.  As a consequence, “trial courts asserting sweeping pre-trial ‘gatekeeping’ authority under Daubert may unnecessarily encroach upon the constitutionally-mandated function of the jury to decide issues of fact and to assess the weight of the evidence.”

While seemingly valid, the Supreme Court’s criticisms apparently fell on deaf ears as far as the North Carolina legislature was concerned. Before 2011, Rule 702 of the North Carolina Rules of Evidence provided:
“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.”

The 2011 amendments added three criteria to the Rule:

“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.”

As noted, the appellate court in McGrady saw these changes – as well as relevant statements in the legislative history -- as clear evidence of the legislature’s intent to adopt Daubert.

McGrady was a criminal case involving a defendant who had shot and killed his first cousin. The jury convicted the defendant of first degree murder, and he was sentenced to life in prison without parole.
On appeal, the defendant argued that the trial court had improperly excluded expert testimony concerning the “science” of “use of force,” which includes such concepts as “force variables” and “pre-attack cues,” and tended to suggest that defendant had been reacting to an imminent threat of attack by his cousin.

Applying Daubert to the facts before it, the court upheld the lower court’s exclusion of the testimony on the grounds that it was not reliable in light of the absence of well-established principles or methodologies underlying the expert’s conclusions. In some respects, one gets the impression that the concerns expressed in Howerton were realized in McGrady.

To be sure, McGrady was only an appellate court decision. Still, given the explicit nature of the amendments, and supporting legislative history, it seems unlikely that the Supreme Court would disagree and conclude that Daubert is still not the controlling standard – despite its discomfort with the potential consequences of Daubert discussed in Howerton.

Please share your thoughts. Do you think the North Carolina Supreme Court’s criticisms of Daubert were valid? Have you experienced the kind of procedural maneuvering that the Supreme Court described?

Maggie Tamburro

Maggie Tamburro is an attorney and writer who holds a Juris Doctor from The John Marshall Law School and a Bachelor of Arts from the University of Texas. She was admitted to the Illinois Bar in 1994 and Florida Bar in 1999 and has significant experience in legal research, editing, and writing. Maggie is active her in local community, holding various publicly appointed civic board positions.

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