Its 10-year reign is over. Howerton is no longer the standard of admissibility for expert testimony in North Carolina. Daubert is.
On January 21, the Court of Appeals issued its opinion in State v. McGrady, No. COA13-330. McGrady was a first-degree murder case in which the defendant contended that he shot his cousin in self defense. He proffered the testimony of a “use of force” expert to bolster his defense. Upon the State’s motion in limine, the trial court conducted a voir dire of the expert witness, at which time he excluded his testimony. The defendant appealed.
Writing for a unanimous panel, former NCADA President and Court of Appeals Judge Linda Stephens noted that in 2011 the legislature amended Rule 702(a) of the North Carolina Rules of Civil Procedure to conform to Federal Rule 702(a), which itself was amended to codify the standard of expert admissibility articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). [The NCADA was intimately involved in drafting this amendment, with the express intent to codify the Daubert standard.]
As amended, Rule 702(a) now requires an expert’s opinions to be (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) based on a reliable application of those principles and methods to the facts of the case. Judge Stephens noted that the newly amended Rule 702(a) “represents a departure from our previous understanding of Rule 702,” i.e., Howerton, “which eschewed the Supreme Court’s decision in Daubert. . . . Given the changes brought by our legislature, however, it is clear that amended Rule 702 should be applied pursuant to the federal standard as articulated in Daubert.”
Judge Stephens then articulated that standard: “an expert must first based his testimony on ‘scientific knowledge,’ which ‘implies a grounding in the methods and procedures of science,’ in order for that testimony to be admissible.” The trial court, she observed, serves as the gatekeeper to determine if the expert’s proposed testimony satisfies that requirement:
It is the trial court’s responsibility to determine “whether the expert is proposing to testify to (1) scientific knowledge” and whether that knowledge “(2) will assist the trier of fact to understand or determine a fact in issue.” In deciding whether the proffered scientific theory or technique will assist the trier of fact, the trial court may consider, among other things, (1) “whether [a theory or technique] can be (and has been) tested,” (2) “whether the theory or technique has been subjected to peer review and publication,” (3) “the known or potential rate of error . . . and the existence and maintenance of standards controlling the technique’s operation,” and (4) whether the theory or technique is generally accepted as reliable in the relevant scientific community. This inquiry is “a flexible one,” and remains reviewable under the abuse of discretion standard.
Applying this standard, and standard of review, the court affirmed the trial court’s exclusion of the defendant’s proffered “use of force” expert. In doing so, it observed that federal courts traditionally grant “a great deal of discretion” to the trial court in performing its gatekeeping function under Daubert. Judge Stephens concluded that the defendant’s expert provided scant data to support the reliability of his methodology and “provided no substantive reasons – no specific knowledge, methods, or procedures – to support those assertions.” He was not even able to cite a single specific study supporting his methodology and admitted he knew nothing about its rate of error. He also lacked medical credentials required to makes some of the judgments inherent in his opinion. The appellate panel therefore saw “no reason to conclude that the trial court was manifestly unreasonable in determining the [the expert’s] knowledge . . . was not helpful to the jury.”
McGrady and its rationale should have significant impact on the way cases involving expert testimony proceed in our state courts. Indeed, expert-intensive cases in state court will begin to resemble cases litigated in federal court, with Daubert challenges and hearings becoming the norm, rather than the exception. In the early going, defense attorneys will need to pull the laboring oar in helping superior court judges understand the contours of Daubert and its progeny, their gatekeeping function, and the discretion they enjoy in making Daubert determinations. Before long, Daubert will should begin to weed out state court cases premised on weak science, just as it does with its federal counterparts. So, good-bye and good riddance Howerton! We hardly knew ye.
Submitted by Steve Epstein, Poyner & Spruill, LLP
