How North Carolina’s New Medical Malpractice Laws Affect How We Handle Cases (Part 4)

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My last blog post examined the new rules pertaining to the bifurcation of liability and damages in the medical malpractice context.  Rule 702 was also amended to change the standards governing the admissibility of expert testimony.  This blog post will examine the changes to the language and the potential ramifications.


A.        Overview Of The Change In Law

In S.L. 2011-283 (HB 542), the General Assembly revised North Carolina Evidence Rule 702(a), effective for actions commenced on or after October 1, 2011.  Generally speaking, Rule 702(a) requires the trial court to serve as a gatekeeper with regard to expert testimony.  Traditionally, it has been the trial court’s duty to make a preliminary determination as to whether a witness has the qualifications to testify as an expert, and if so, whether the expert’s testimony is admissible.

S.L. 2011-283 was enacted as a part of new limits in all civil tort actions, not just medical malpractice cases.  However, the amended rule applies to criminal cases as well.  Thus, both civil and criminal attorneys need to understand the extent to which the statute has changed.  The amendment to Chapter 8C, Rule 702(a) reads:

(a) If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion, or otherwise, if all of the following apply:

(1) The testimony is based upon sufficient facts or data.

(2) The testimony is the product of reliable principles and methods.

(3) The witness has applied the principles and methods reliably to the facts of the case.

North Carolina Rule 702(a) now mirrors the language of its Federal counterpart.  We must now deal with Daubert.

B.         Comparisons With Old North Carolina Law

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), established the standard for admitting expert testimony in federal trials.  The Supreme Court set out five factors for trial judges to use as a measure of reliability in making a determination about the admissibility of scientific evidence:

(1)       Is the evidence based on a testable theory or technique;

(2)       Has the theory or technique been subjected to peer review and publication;

(3)       Does the technique have a known error rate;

(4)       Are there standards controlling operation of the technique; and

(5)       To what degree is the theory or technique generally accepted by the scientific community?

Id. at 593-94.

Contrast Daubert with Howerton v. Arai Helmet, Ltd., 358 N.C. 440 (2004).  In Howerton, the North Carolina Supreme Court rejected the federal standard for determining the admissibility of expert testimony.  The Court stated, “North Carolina is not, nor has it ever been a Daubert jurisdiction.”  Id. at 469.  Instead, North Carolina has used the three part inquiry set forth in Howerton:

(1)       Is the expert’s proffered method of proof sufficiently reliable as an area for expert testimony;

(2)       Is the witness testifying at trial qualified as an expert in that area of testimony; and

(3)       Is the expert’s testimony relevant?

Id. at 458, relying on State v. Goode, 341 N.C. 513, 527-29 (1995)(internal citations omitted).  The approach that North Carolina adopted in Howerton was “less mechanistic and rigorous than the exacting standards of reliability demanded by the federal approach.”  Howerton, 358 N.C. at 464 (internal citations omitted).

The first prong of the Howerton test includes a requirement that the expert’s method of proof be reliable, much like the second restriction in amended Rule 702(a).  Unlike amended Rule 702(a), however, the Howerton test does not explicitly require that experts have sufficient facts and data for their opinions, or that they apply their methods reliably to the facts.  But, arguably, these were implicit requirements under Howerton as they are components of reliability.  Some North Carolina decisions have recognized that experts should have sufficient facts and data for their opinions and should apply their methods reliably.  See, e.g., State v. Grover, 142 N.C. App. 411, aff’d per curiam, 354 N.C. 354 (2001).

C.         So What Does This Mean For Us?

So what does this mean for North Carolina trial lawyers going forward?  Amended Rule 702(a) may or may not require the precise approach required by Daubert.  However, by adopting the language of Federal Rule 702, the General Assembly has seemingly raised the hurdle for admissibility of expert testimony.  The safest practice is to assume courts will engage in greater scrutiny of expert testimony than under former North Carolina Rule 702 and the cases interpreting it.  Do not presume that a method of proof that was deemed sufficiently reliable under the former North Carolina rule and Howerton will be admissible under the amended rule.  The subparts added by S.L. 2011-283 are most definitely not a codification of Howerton.  Thus, Howerton may no longer be good law.  See Daubert, 509 U.S. at 586-87 (holding that the “general acceptance test” of Frye v. United States, 54 App. D.C. 46 (1923) was superseded by the adoption of the Federal Rules of Evidence).

Daubert was originally intended to be a somewhat flexible standard.  Some jurisdictions have interpreted Daubert rationally.  However, other jurisdictions have applied an unreasonably rigid standard.  Obviously, the hope is that North Carolina courts will fall in the former category.  Regardless, in response to the legislative changes, it is best to be prepared and proactive.  Expect your experts to undergo more rigorous scrutiny to determine admissibility.  This may involve additional discovery, motions and voir dire practices. Be prepared to spend more time laying a foundation for your experts and focus more on the sufficiency of the facts and data they have reviewed, and the fact that they are reliably applying accepted methods in their specialty.  It is important to remember that the new law applies to all experts on both sides of the aisle.  Therefore, what is good for the goose is good for the gander.  Ultimately, this author has a hard time believing there will be a sweeping sea change, especially among our more experienced judges, in the manner in which they admit expert testimony.  But it is better to be safe than sorry.

D.        How To Prepare Your Experts (And How To Attack Opposing Experts)

David M. Malone, et al., addressed how to examine opposing experts under the Daubert standard.  Malone, David M., et al., THE EFFECTIVE DEPOSITION: TECHNIQUES AND STRATEGIES THAT WORK, pp. 348-51, 395-405. 67 (Rev. 3rd ed. 2007).  The following key questions can be used both to examine the defense expert and to prepare your expert for his or her deposition.  The very first question is an easy one:

1.         What opinions have you reached in this matter?

After exploring the expert’s opinions to be sure you have a complete list, go back to the first, or most important opinion, restate it for the expert, ask him or her to agree it is their opinion, and then ask for the bases for that opinion.  In examining the expert about the bases, the next five questions are recommended.

2.         What did you do?

3.         Why did you do that?

4.         How did you do that?

5.         What result did you get?

6.         What significance does that result have to your conclusion?

Id. at 348.  Ask these same five questions to obtain the basis for each opinion.  Ask the expert whether they have additional bases.  Are there any notes on these bases?  These questions ensure that the lawyer has exhausted the expert’s knowledge on pertinent points.  Id.

You can probably find checklists which claim to cover all the pertinent lines of questioning needed to overcome a Daubert challenge for your expert, or to help you challenge a defense expert.  However, there is no substitute for careful preparation, thoughtful questioning, attentive listening, and intensive follow-up.  Id.  Nevertheless, Malone, et al., offer four more questions, which, together with the six above, comprise a reasonably effective ten-question deposition.

7.         What are the reliable authorities in your field?

8.         What assumptions did you make in your work?

9.         What tasks did you not do?

10.       Is this your current and accurate list of credentials?

Id. at 349.

If you are concerned about whether your expert passed the Daubert challenge in his or her deposition, you may want to bolster their deposition by conducting a direct examination of them at the end of the deposition regarding things considered, reliability of methodology, consistency of application, and sufficiency of data.  Id. at 350.  It is anticipated that some defense lawyers will use your expert’s seeming lack of foundation as a basis for a motion to strike, much like we’ve seen with the community standards issue.  Similarly, with a defense expert, prepare an examination that demonstrates unreliability of methodology (for example, lack of peer review, lack of known error rate, lack of consistency in application, or insufficient data).  Id.

E.         Be Sure To Distinguish Between The Standards For Admissibility Of Expert Testimony And The Standards For Sufficiency Of Expert Testimony.

One of the more important medical malpractice opinions to come out in recent years, in the opinion of this author, is Day v. Brant, __ S.E.2d __, 2012 WL 120042 (N.C. App. 2012).  Day addresses a couple of important issues.  However, one important point is the distinction between admissibility of expert testimony and the sufficiency of such testimony to establish an element of the case such as breach or, in this case, causation.  In Day, Duncan, the decedent, was involved in a car wreck.  He went to the hospital which performed a number of tests.  However, they failed to properly evaluate his abdomen.  A CT likely would have disclosed the fact that he had lacerated his liver.  The hospital sent him home.  He died soon thereafter from internal bleeding.

The defendants argued that plaintiffs presented insufficient evidence that any breach of the standard of care proximately caused Duncan’s death.  In particular, they pointed to the testimony of one of the experts who initially had testified that had Duncan been properly evaluated, that “‘he would have survived it.’”  Id. at 2.  The expert offered other testimony that indicated it was more likely than not Duncan would have survived had the lacerated liver been discovered.  However, during cross examination, the same expert admitted to some degree of “speculation” with respect to his opinions.

The Court of Appeals wisely noted that there was no dispute at trial regarding the admissibility of the expert’s testimony.  He was admitted without objection.  The Court went on to discuss the distinction between admissibility of testimony and sufficiency of the evidence, and the confusion this can sometimes create.  Ultimately, the Court stated that the “[d]efendants’ argument on appeal perpetuates this confusion by failing to distinguish between the standard of review for admissibility and the standard of review for the sufficiency of the evidence.  Id. at 9.  After analyzing Howerton and its progeny, the Court applied the correct standard of review.  Ultimately, the Court held that the plaintiff offered sufficient evidence of causation to overcome directed verdict and reversed the trial court.  Id. at 16.

It will be important to maintain this distinction if we are to become more of a Daubert State, as the Court noted that the lines between admissibility and sufficiency of testimony become blurrier under Daubert.  The Court in Day quoted Crocker v. Roethling in making this point:

We emphasized [in Howerton], on the other hand, that the trial court’s preliminary assessment should not “go so far as to require the expert’s testimony to be proven conclusively reliable or indisputably valid before it can be admitted into evidence.” [Howerton, 358 N.C.] at 460, 597 S.E.2d at 687.  Evidence may be “shaky but admissible,” and it is the role of the jury to make any final determination regarding the weight to be afforded to the evidence.  Id. at 460-61, 597 S.E.2d at 687-88 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596, 133 S.Ct. 2786, 2798, 125 L.Ed.2d 469, 484 (1993)).

Day, at 9 (quoting Crocker v. Roethling, 363 N.C. 140, 149-50, 675 S.E.2d 625, 632 (2009)(Martin, J., concurring).

In sum, if the appellate courts correctly interpret the law, they will continue to make a similar distinction between the admissibility of expert testimony and the sufficiency of their testimony to prove an element of the case regardless of how stringently they apply Daubert.

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Attorney Kevin J. Williams at his desk in his Greensboro North Carolina office.
Attorney Kevin J. Williams at his desk in his Greensboro North Carolina office.

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