State v. McGrady, __ N.C. App. __, __ S.E.2d __ (Jan. 21, 2014), is the first appellate decision which provides a meaningful analysis of the North Carolina legislature's adoption of the Daubert standard for evaluating the admissibility of expert testimony. In McGrady, the trial court excluded the testimony of a defense expert in the "use of force." The defense offered the expert's testimony in support of a claim of self-defense, primarily focusing on "pre-attack" cues by the decedent that might indicate a reasonable belief by the defendant of a forthcoming assault. Although the expert testified he had special knowledge concerning "use of force," he was unable to convince the trial court that his opinions were based upon sufficient facts or data or that his methods were reliable. The Court of Appeals upheld the trial court, finding it had not abused its discretion but had correctly applied Rule 702 and Daubert in concluding that the expert's opinions were not based on reliable principles and methodologies and were merely "within the realm of common knowledge." The Court noted that while the trial court's inquiry is "flexible," valid considerations included whether the expert's theory or technique had been tested, subject to peer review, and had an established error rate. McGrady serves as a reminder that where there is "too great an analytical gap" between science and an expert's proffered opinion, such testimony is inadmissible.
Submitted by Will Latham and Phillip Brown, Womble Carlyle Sandridge & Rice
