We Are Not a Daubert State--but What Are We? Scientific Evidence in North Carolina After Howerton

• Publication year: 2004
• Citation: Vol. 6 No. 2004

John M. Conley⁰ and Scott W. Gaylord¹

I. Introduction

In June of 2004, the North Carolina Supreme Court decided Howerton v. Arai Helmet, Ltd.,² which interpreted the standard for admitting expert testimony under Rule 702 of the North Carolina Rules of Evidence. The issue before the court was whether a North Carolina trial court's gatekeeping responsibility under Rule 702 is the same as that imposed on the federal courts by the Supreme Court's 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.,³ which requires an independent preliminary assessment of whether the proffered expert testimony is both reliable and relevant. The answer was an unequivocal "no."

In concept, the admissibility of expert testimony boils down to a single question: How do you know that? Historically, there have been two approaches to this question: the guild approach and the independent scrutiny approach. Under the former (the so-called Frye⁴ standard), experts are allowed to constitute themselves as a guild and declare that their approach is "generally accepted" among its members. The latter, or Daubert standard, requires the trial court to go past the affirmations of guild members and determine on its own whether the expert's evidence is reliable.

In this state, the admissibility of expert testimony is governed by North Carolina Rule of Evidence 702, which dates back to 1975. Its text does not resolve the guild/independent scrutiny question:

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.⁵

The North Carolina rule is virtually identical to the version of Federal Rule of Evidence 702 in place when Daubert was decided:

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.⁶

The official commentary to North Carolina Rule 702 underlines the obvious: "The rule is identical to Fed. R. Evid. 702, except that the words 'or otherwise' which appear at the end of the federal rule after the word 'opinion' have been deleted."⁷

By itself, this near-identity of language might imply an intent on the part of North Carolina's rulemakers to promote the same results in state and federal court. This inference is strengthened by the commentary to North Carolina Rule 102:

Uniformity of evidence rulings in the courts of this state and federal courts is one motivating factor in adopting these rules and should be a goal of our courts in construing those rules that are identical.⁸

As we shall see, however, those of us who had long drawn this apparently obvious inference about Rule 702 would be proven wrong.

II. The Federal Daubert Standard

In Daubert, the plaintiffs sued to recover for birth defects that allegedly resulted from pregnant women's ingestion of the anti-nausea drug Bendectin. The plaintiffs proffered eight experts to testify that, despite 30 published studies finding no connection between Bendectin and birth defects, Bendectin actually does cause birth defects if ingested by mothers in the first trimester. The district court and the Ninth Circuit evaluated and rejected this evidence⁹ under the "general acceptability" standard of Frye v. United States, which had been decided in 1923 and was still followed in most federal and state courts.¹⁰ Under Frye, in order for an expert's opinion to be admissible, "the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs."¹¹ Thus, the proponent had to define a relevant field and then show that the expert's technique was generally accepted in that field.

The Daubert Court rejected the Frye standard in no uncertain terms: "That austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials."¹² Instead, federal district judges would now be required to scrutinize expert evidence for reliability:

That the Frye test was displaced by the Rules of Evidence does not mean, however, that the Rules themselves place no limits on the admissibility of purportedly scientific evidence. . . . To the contrary, under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.¹³

The Court based the new standard on the "scientific knowledge" language of Rule 702:

Proposed testimony must be supported by appropriate validation—i.e., "good grounds," based on what is known. In short, the requirement that an expert's testimony pertain to "scientific knowledge" establishes a standard of evidentiary reliability.¹⁴

To guide the trial court in performing its new "gatekeeping" duties, the Court offered a list of four non-exclusive factors to be considered—now known universally as the "Daubert factors." The first three are classic hallmarks of "hard" or "positivist" science, such as physics, while the fourth is a watered-down restatement of Frye:¹⁵ (1) whether the expert's technique or theory "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) "'[g]eneral acceptance' can yet have a bearing on the inquiry."¹⁶ The case was remanded to the Ninth Circuit for review under the new standard, and the Ninth Circuit ultimately rejected the plaintiffs' evidence again.¹⁷

Since Daubert dealt exclusively with the question of scientific expert testimony, it was unclear how the federal trial courts should deal with the Rule 702 categories of "technical or other specialized knowledge." The Supreme Court addressed this issue in the 1999 case of Kumho Tire Co. v. Carmichael.¹⁸ The Court held preliminarily that Daubert's requirement of independent scrutiny—gatekeeping—extended to all forms of expert evidence. However, non-scientific evidence should be evaluated under a more flexible standard:

[T]he test of reliability is "flexible," and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.¹⁹

The final installment in the federal story was an amendment to Rule 702 in 2000 that was intended to conform its language to the logic of Daubert and Kumho Tire. It now reads:

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 (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.²⁰

III. North Carolina Before Howerton

The North Carolina cases before Howerton can be described as "Daubert lite," or perhaps "Frye heavy." North Carolina courts talked the Daubert talk but often failed to walk the Daubert walk, leading to some—to these observers—unusual admissibility decisions. To be fair to the North Carolina courts, state trial courts generally are not well equipped to do the work that Daubert requires. Most federal courts that are faced with difficult Rule 702 decisions now conduct extensive "Daubert hearings," often on motions in limine to exclude the evidence.²¹ But federal district judges keep cases from beginning to end and have the assistance of full-time law clerks. North Carolina superior court judges, who often see a case for the first time during an all-comers motion session, have neither of these advantages. Because exclusion of expert testimony can be fatal to a plaintiff's claim, North Carolina judges are understandably reluctant to sound the death knell of cases they barely know.

Below is a timeline of critical North Carolina cases, against the background of the federal developments:

The North Carolina Cases

The key facts in those North Carolina cases were as follows:

• State v. Bullard²² footprint comparison by a physical anthropologist admissible

• State v. Pennington²³ DNA identification admissible

• State v. Crowder²⁴ "gunshot residue test" admissible

• State v. Goode²⁵ forensic serologist's "bloodstain pattern analysis" admissible²⁶

In Crowder, Bullard, and Pennington, all of which were decided before Daubert, the North Carolina Supreme Court made three essential points: It (1) rejected Frye's "general acceptance" test; (2) adopted reliability as the touchtone for admissibility; and (3) applied a nonexhaustive list of Daubert-like factors.

Each of the cases emphasized reliability. According to Crowder, for example, "[s]cientific tests . . . are competent only when shown to be reliable."²⁷ Bullard stressed reliability where the technique in question had not previously been admitted: "In general, when no specific precedent exists, scientifically accepted reliability justifies admission of the testimony of qualified witnesses."²⁸ Additionally, Pennington seemed to read reliability into the Frye test: "Believing that the inquiry underlying the Frye formula is one of the reliability of the scientific method rather than its popularity within a scientific community, we have focused on . . . indices of reliability."²⁹

But, despite its professed concern with reliability, Pennington's "indices...