Featured Expert Column: Judicial Gatekeeping of Expert Evidence
By Evan M. Tager, Mayer Brown LLP, with Carl J. Summers, Mayer Brown LLP
Five years ago, the North Carolina General Assembly amended the North Carolina Rules of Evidence to mirror the Federal Rules of Evidence’s approach to expert testimony. In North Carolina v. McGrady, __ S.E.2d __, 2016 WL 3221096 (June 10, 2016), the Supreme Court of North Carolina finally confirmed that, as a result of the General Assembly’s adoption of language that mirrors that of the federal rules, the Daubert standard now governs the admission of expert testimony under state law.
The US Supreme Court first adopted the Daubert standard in 1993, interpreting Federal Rule of Evidence 702 to bestow a “gatekeeping role” on district courts. Shortly after Daubert, the Court elaborated on this standard in General Electric Co. v. Joiner and Kumho Tire Co. v. Carmichael. And in 2000, the Supreme Court adopted amendments to Rule 702 that, while not expressly mentioning Daubert in their text, were clearly intended to formally embed the Daubert standard in the Federal Rules of Evidence.
Notwithstanding this shift at the federal level and the fact that the “original text of North Carolina’s Rule 702 was largely identical to the original text of Federal Rule 702,” the Supreme Court of North Carolina initially refused to adopt the Daubert standard. The court reasoned that the gatekeeping role assigned to federal district courts is “especially troubling” when Daubert inquiries are case dispositive—i.e., when the exclusion of expert testimony necessary to the plaintiff’s claim invariably results in summary judgment for the defendant. The North Carolina Supreme Court thus favored “liberal admission of expert witness testimony and left the role of determining its weight to the jury.”
In 2011, however, the North Carolina General Assembly amended Rule 702(a) by adopting language nearly identical to that added to its federal analogue in 2000. Specifically, the General Assembly provided that expert testimony must be “based on sufficient facts or data” and be “the product of reliable principles and methods.” In addition, the General Assembly required a determination that the “witness has applied the principles and methods reliably to the facts of the case.” The commentary to the North Carolina rule explained that the revision was intended to bring uniformity to state and federal rules of evidence. Given this textual similarity and evidence of legislative intent, the Supreme Court of North Carolina held in McGrady that “the General Assembly has made it clear that North Carolina is now a Daubert state.”
The court further explained that Daubert’s “three-step framework—namely, evaluating qualifications, relevance, and reliability—is not new to North Carolina law” but that the 2011 “amendment did change the level of rigor that [North Carolina] courts must use to scrutinize expert testimony before admitting it.” The McGrady Court also concluded that Rule 702, like its federal counterpart, does not dictate a specific procedure for the admission of expert testimony, but instead grants trial courts discretion to decide the method of determining the admissibility of expert testimony.