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North Carolina Rejects Daubert, But Has Anything Really Changed?

    Client Alerts
  • April 26, 2005

Expert testimony is often critical to the outcome of a lawsuit. Without an expert to explain what a surgeon allegedly did wrong or why a product’s design was allegedly defective, many cases would go by the wayside. Because of the importance of expert testimony, and because anyone called an "expert" can have considerable influence on a jury, courts have struggled for years over what standards to apply in determining whether an expert should be allowed to give testimony to a jury.

The United States Supreme Court adopted a test in a well-known decision called Daubert v. Merrell Dow Pharmaceutical, Inc. in 1993. Daubert requires trial judges to be "gatekeepers" in determining whether expert testimony is admissible. The overarching consideration is whether the expert testimony is scientifically reliable. Daubert gave courts a number of non-exclusive factors to consider in determining reliability, including whether the technique had been tested, whether the technique had been subject to peer review and publication, the known or potential rate of error, the existence of standards and controls, and the degree to which the theory or technique has been generally accepted in the scientific community.(1)

In July 2004, the North Carolina Supreme Court expressly rejected Daubert as the guiding principle for North Carolina courts, stating: "North Carolina is not, nor has it ever been, a Daubert jurisdiction."(2) The North Carolina Supreme Court specifically criticized what it viewed to be an onerous burden on trial judges to ask them to evaluate the merits of scientific or technical theories.

Does this signal a significant shift for North Carolina courts in considering expert testimony? On close examination of the Howerton decision, the answer appears to be no. The 2004 Howerton decision reaffirmed a 1995 decision, State v. Good,(3) which set out a three-step test for evaluating the admissibility of the expert testimony. As explained in the Howerton decision, North Carolina’s three-step test is remarkably similar to Daubert. The first question is whether the expert’s method of proof is sufficiently reliable as an area for expert testimony. To determine reliability, courts are to look at a nonexclusive list of factors, which includes the expert’s use of established techniques, the expert’s professional background in the field, and independent research conducted by the expert.

The second step in the North Carolina test is to determine whether the witness is qualified as a expert in his or her area of testimony. The standard for qualification is not a stringent one. The 2004 decision reaffirmed that "it is enough that the expert witness because of his expertise is in a better position to have an opinion on the subject than is the trier of fact." The final test is whether the expert’s testimony is relevant.


In the end, although the express rejection of Daubert has grabbed some headlines in the legal press, the standards being applied in the trial courts in North Carolina do not appear to have changed.

(1) Daubert, 509 U.S.579, 593-94 (1993).

(2) Howerton v. Arai Helmet, Ltd., 358 N.C.440, 597 S.E.2d 674 (2004).

(3) 341 N.C. 513, 461 S.E.2d 631 (1995).