TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 5, 2012
RE: Rule 702, N.D.R.Ev., Excluding Witnesses
Form and style amendments to Rule 702 consistent with the 2011 federal amendments are proposed. Through these amendments, the federal rulemakers have clarified the provisions added to Rule 702 in the 2000 federal amendments that followed the Supreme Court's rulings in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).
The Committee considered the Daubert amendments to Rule 702 in 2004-2005, first approving them by a 10-8 vote at the September 2004 meeting, then declining to approve them by a 4-11 vote at the September 2005 meeting. Excerpts from these minutes are attached for the Committee's review.
One of the reasons the Committee did not approve the Daubert amendments was because our Supreme Court had not previously adopted Daubert. However, in State v. Hernandez, 2005 ND 214, ¶ 6, (decided after the Committee's discussion) the court stated that it would not adopt the Daubert rule changes by opinion. Specifically, the Court said:
This Court has never explicitly adopted Daubert and Kumho Tire. See Howe v. Microsoft Corp., 2003 ND 12, ¶ 27 n. 1, 656 N.W.2d 285. Contrary to Hernandez's assertion, this Court is not required to follow Daubert and Kumho Tire, which involved admissibility of expert testimony in federal courts under the federal rules of evidence. This Court has a formal process for adopting procedural rules after appropriate study and recommendation by the Joint Procedure Committee, and we decline Hernandez's invitation to adopt Daubert by judicial decision. See State v. Osier, 1997 ND 170, ¶ 5 n. 1, 569 N.W.2d 441 (refusing to adopt procedural rule by opinion in litigated appeal).
Hernandez, ¶ 6 (emphasis added). A copy of this case is attached.
As the Court stated, it is the Committee's responsibility to consider whether the Daubert amendments should be part of North Dakota's rules. The amendments are included in the proposal for the Committee's discussion.
Hernandez is the latest North Dakota case to reference Daubert. There has been substantial federal case law development of the Daubert amendments to Rule 702 in the 12 years since they took effect. If the Committee needs any additional information or research on these amendments, staff can obtain this on the Committee's direction.
The explanatory note will need to be amended if the Committee decides to approve the amendments to Rule 702.