North Carolina is not Daubert territory, state high court holds.

The North Carolina Supreme Court has expressly rejected the federal standard for admissibility of scientific evidence established by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. (Howerton v. Arai Helmet, 597 S.E.2d 674 (N.C. 2004).) The ruling directly contradicts the appellate court's assertion that the state high court had adopted the federal standard in an earlier opinion.

The trial court in the case cited Daubert (509 U.S. 579 (1993)) as the reason for excluding all of the plaintiff's expert witnesses in his lawsuit against a motorcycle-helmet manufacturer, ruling that under the federal standard their testimony was unreliable and inadmissible. The exclusion left the plaintiff with no admissible evidence, and the court granted the defendant summary judgment.

The appellate, court affirmed the decision, stating that it was "eminently clear" that Daubert had been the law in North Carolina since State v. Goode, which set forth a three-step inquiry for evaluating the admissibility of expert testimony. (461 S.E.2d 631,639 (N.C. 1995).) The court cited one of its own earlier decisions--State v. Bate--in which it expressly held that the state high court had adopted the Day, Daubert standard in Goode. (538 S.E.2d 597, 600 (N.C. Ct. App. 2000).)

The supreme court disagreed with the lower court's reading of Goode.

"Contrary to the conclusion of the court of appeals, it is not 'eminently clear' that North Carolina adopted the Daubert standard," wrote Justice George Wainwright for the majority. "Such a bold proposition is neither confirmed by the case law of this court nor buttressed by the 'express holding' of the lower court in State v. Bates, which was nothing more than a passing citation parenthetical suggesting without analysis or discussion that this court had adopted Daubert in Goode."

Howerton is a landmark ruling that provided much-needed clarity to what had been murky questions regarding expert testimony in North Carolina, said Burley Mitchell of Raleigh, a former chief justice of the North Carolina Supreme Court, who represented the plaintiff.

"The looming potential of Daubert had added a level of confusion in North Carolina to what had been a pretty clear set of tests we use tot all forms of expert testimony. The Howerton case cleared away that cloud and made it absolutely certain that we are going to continue with our existing rules."

The high court noted that its reference to Daubert in Goode was meant to underscore "the generally acknowledged importance of preliminarily assessing the reliability of the reasoning or methodology underlying expert testimony." North Carolina, however, had been developing its own case law with regard to admissibility of expert testimony for years before Daubert, explained the court, and although some eases share similarities with the principles outlined in the federal standard, the state's approach is "less mechanistic and rigorous."

The court said it is not satisfied that the federal approach offers "the most workable solution to the intractable challenge of separating reliable expert opinions from their unreliable counterparts, of distinguishing science from pseudoscience....

"One of the most troublesome aspects of the Daubert 'gatekeeping' approach is that it places trial courts in the onerous and impractical position of passing judgment on the substantive merits of the scientific or technical theories undergirding an expert's opinion," Wainwright wrote. "We have great confidence in the skillfulness of the trial courts of this state. However, we are unwilling to impose upon them an obligation to expend the human resources required to delve into complex scientific and technical issues at the level of understanding necessary to generate with any meaningfulness the conclusions required under Daubert."

Plaintiff W. Bruce Howerton suffered cervical fractures and paralysis following an off-road-motorcycle accident in which he landed on the back of his head. He sued the maker of the helmet he was wearing, Arai Helmet, alleging that the removable chin guard--which broke away--should have prevented his head from rotating beyond its anatomical range.

"It seemed to me all along that the case was not exceptional on its facts," Mitchell said. "The expert testimony that we were seeking to introduce was rather routine and of the type that is regularly accepted in the courts of North Carolina."

Mitchell planned to call four expert witnesses at trial: an expert in motorcycle accidents and motorcycle helmets, an expert in biomechanics and orthopedic biomechanics, an expert in the design and manufacture of composite materials such as those found in motorcycle helmets, and a board-certified neurosurgeon.

"I've never been real sure what Daubert's standards were, and I don't think anyone else is, to be honest," Mitchell said. "The people who wrote the opinion give such slippery, sliding scales and use such vague terminology that they have given little guidance to the federal courts."

North Carolina is not alone in rejecting the federal standard. Many states, after seeing Daubert applied for a few years, have decided to go their own way, Mitchell said.

"My impression is [that] no two judges read [it] quite the same," he said. "Therefore judges were--as was complained about in many appellate cases--being asked as nonexperts to decide which of two acknowledged experts was more correct in his area of expertise. And it had just gone too far in leaving the admission of expert testimony almost totally to the discretion of the trial court."