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June 28, 2004


Another State rejects Daubert

On Friday, the North Carolina Supreme Court rejected the federal Daubert standard for the admissibility of expert testimony. The court decided to retain North Carolina's unique admissibility standard. Like Daubert, this standard purports to require that expert testimony be reliable. However, lest they get confused, the court advised lower courts in North Carolina that "application of the North Carolina approach is decidedly less mechanistic and rigorous than the 'exacting standards of reliability' demanded by the federal approach. The court condemned Daubert's "gatekeeping" approach as putting "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." The court also expressed specific concern that Daubert leads to too many civil actions being dismissed on summary judgment (though it's not clear why the court thinks that cases based on unreliable expert evidence should survive summary judgment).

I've been arguing for years that civil justice reform advocates have been too complacent about the state of the rules for the admissibility of expert testimony. As a forthcoming article of mine explains,

while the Daubert trilogy of cases are now codififed in Federal Rule of Evidence 702, well fewer than half the states--and typically those with small populations--have adopted the Daubert trilogy, and most litigation occurs in state court. Quite a few states have more liberal relevancy/reliability tests. Most of the very populous states retain the old Frye general acceptance test (as discussed here), which is applied with varying degrees of stringentness, but is almost always less stringent than is the Daubert trilogy. Much work needs to be done before junk science, and bad expert testimony more generally, becomes a thing of the past.

Posted by David Bernstein at 12:43 PM | TrackBack (0)



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