TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 702, N.D.R.Ev., Testimony by Experts
In 2000, Fed.R.Ev. 702 was amended in response to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) and to the cases that applied Daubert including Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). At its September 2004 meeting, the Committee discussed adopting changes to N.D.R.Ev. 702 to reflect the changes in the federal rule. The Committee approved the proposed changes on a 10-8 vote. Because the proposed changes did not receive the support of a two-thirds majority of the Committee, the proposal is back before the Committee for further consideration.
In the time that has passed since the Committee considered the proposed amendments to Rule 702, several comments have been submitted regarding the proposed changes. David Bliss, Ronald Reichert, Michael Williams and David Thompson all submitted letters opposing the proposal. These letters are attached.
The letters are universal in their opposition to the Committee adopting the "Daubert standard." To review, the Supreme Court in Daubert determined that Fed.R.Ev. 702 imposed a "gatekeeper" function on the trial judge, i.e., a responsibility to evaluate proffered expert testimony for reliability. The Daubert Court devised a five-factor test for judges to use in exercising this gatekeeper function in cases involving scientific evidence.
While the changes in Fed.R.Ev. 702 can be traced back to Daubert, Fed.R.Ev. 702 does not incorporate the Daubert factors. Instead, what Fed.R.Ev. 702 contains are fairly simple guidelines derived from the complex reasoning that came out of Daubert and the cases that followed it.
The proposed amendment to Rule 702 incorporate these federal guidelines, which require the trial court to consider, when requested to admit expert testimony: "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."
The standard for the admission of expert testimony contained in the proposed amendments to Rule 702 seems consistent with the standard for admission of expert testimony announced in Stein v. Ohlhauser, 211 N.W.2d 737, 743 (N.D. 1973). In Stein, the court said that, before expert testimony is admitted, it must be "established that the reliability of such testimony is accepted by the scientific community and the courts." The Stein court also stated that no witness should "be allowed to testify as an expert until he has been shown to have some degree of expertise in the field in which he is to testify."
Stein is lauded in Rule 702's explanatory note. However, as was observed when the Committee discussed the Rule 702 proposal in September 2004, Stein predated the adoption of Rule 702. Therefore, Stein may not be a useful case to consider.
The North Dakota Supreme Court has looked to the plain language of Rule 702 in developing its standards for the admission of expert testimony. In Harfield v. Tate, 2004 ND 45, 675 N.W.2d 155, the Court reviewed the basic principles of its expert testimony standard:
-- Expert testimony is admissible whenever specialized knowledge will assist the trier of fact;
-- Rule 702 envisions generous allowance of expert testimony if the witness is shown to have some degree of expertise in the field;
-- An expert need not be a specialist in a highly particularized field, or have a formal title, license or certificate in a field, if the expert's knowledge, training, education and experience will assist the trier of fact;
-- Whether a witness is qualified as an expert and whether the witness's testimony will assist the trier of fact are decisions within the sound discretion of the trial court.
In Langness v. Fencil Urethane Systems, Inc., 2003 ND 132, 667 N.W.2d 596 the trial court excluded the testimony of an expert witness, concluding that the witness was not qualified to testify in the field of toxicology and that the witness's proposed testimony was unduly speculative. The Supreme Court reversed, holding that the trial court abused its discretion in excluding the expert testimony. This result suggests that the Court favors the admission of expert testimony when such admission can be justified.
Based on Harfield and Langness, it can be argued that North Dakota has developed a standard for the admission of expert testimony that is more inclusive than the old Stein standard or the new federal standard. Therefore, an alternative rule amendment proposal is attached that does not incorporate the new federal language and that contains a revised explanatory note with references to Stein deleted.
At the September 2004 meeting, Mr. Kapsner suggested that the Committee discuss amendment of N.D.R.Ev. 703 in tandem with Rule 702. Fed.R.Ev. 703 was amended in 2000, and a proposal for amendment of Rule 703 based on the federal amendments is attached.
The federal rule was amended to make it clear that, while an expert may rely on inadmissible material to form an opinion, the underlying material does not become admissible merely because the expert's opinion is admitted. This is consistent with North Dakota practice. See Staiger v. Gaarder, 258 N.W.2d 641, 648 (N.D. 1977) (upholding admission of testimony about material underlying an opinion, but also discussing the steps the party opposing admission could have taken to exclude the testimony).