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). The Fed.R.Ev. 702 Advisory Committee Note, which is attached, contains an extensive explanation of the rationale behind the 2000 amendments to the rule.
The Committee has not yet discussed whether it would be appropriate for North Dakota to adopt the federal amendments. N.D.R.Ev. 702 was identical to the federal rule up until the time of the 2000 amendments. Under the amendments, a phrase imposing three conditions to the admission of expert testimony is added to the rule. A proposed amended version of N.D.R.Ev. 702 containing the additional federal language is attached.
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 proferred expert testimony for minimal reliability. The Daubert Court devised a five factor test for judges to use in exercising their gatekeeper function in cases involving scientific evidence.
In Kumho Tire, the Supreme Court held that judges must exercise the Daubert gatekeeper function even when proffered expert testimony is not based on scientific principles, and that judges may use the Daubert factors where applicable when addressing non-scientific expert evidence.
The North Dakota Supreme Court has not adopted the Daubert test (nor did it ever adopt the "general acceptance" test of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which was Daubert's predecessor). See Howe v. Microsoft Corp., 2003 N.D. 12, 656 N.W.2d 285. Instead, the standard for the admission of expert testimony in North Dakota is the standard contained in Rule 702, as interpreted by our Supreme Court.
As the existing explanatory note to Rule 702 indicates, the key North Dakota expert testimony case is 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."
The proposed amended language for Rule 702's explanatory note indicates that the longstanding North Dakota approach (as set out in Stein) seems consistent with the current federal approach as set out in amended Fed.R.Ev. 702. It can be argued, however, that a more liberal standard than that set out in Stein has evolved over time in North Dakota. See Langness v. Fencil Urethane Systems, Inc., 2003 ND 132, 667 N.W.2d 596 (holding that a trial abused its discretion in excluding expert testimony).