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A New Keeper at the Gate Predicting the Effect of the Revised Rule 702(A) on Medical Malpractice in North Carolina

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A New Keeper at the Gate Predicting the Effect of the Revised Rule 702(A) on Medical Malpractice in North Carolina A New Keeper at the Gate Predicting the Effect of the Revised Rule 702(a) on Medical Malpractice in North Carolina BY MATTHEW D. BALLEW Zaytoun Law Firm, PLLC 3130 Fairhill Drive, Suite 100 Raleigh, NC 27612 Tel: (919) 832-6690 Fax: (919) 831-4793 [email protected] Table of Contents I. Introduction ......................................................................................................................... 2 II. New Rule 702(a) .................................................................................................................. 3 A. Amended Rule 702(a) .............................................................................................................. 3 B. Other provisions of Rule 702 relevant to medical malpractice ............................................... 3 III. Context of the Change ....................................................................................................... 5 A. Goode, Howerton, and the prior N.C. rules governing general admissibility of scientific opinion testimony ........................................................................................................................ 5 B. Crocker, Day, and the most recent N.C. rules governing expert testimony in N.C. medical malpractice cases ........................................................................................................................... 7 C. Daubert and its progeny .......................................................................................................... 9 D. The current FRE 702 and Advisory Committee Notes ........................................................ 11 IV. Predicting the Effects on Medical Malpractice in N.C. ....................................................... 13 A. N.C. federal court cases applying the Daubert standard to medical testimony .................... 13 B. Expert qualification ............................................................................................................... 17 C. Standard of care opinions ..................................................................................................... 19 D. Causation opinions ............................................................................................................... 20 E. Damages opinions .................................................................................................................. 21 F. Differential Diagnosis ............................................................................................................ 21 G. Peer Reviewed Literature ....................................................................................................... 22 H. “Ipse dixit” opinions ............................................................................................................. 23 I. Rule 9(j) ................................................................................................................................... 24 V. Conclusion ......................................................................................................................... 24 VI. Appendix .......................................................................................................................... 25 A. Helpful cases and reference material ..................................................................................... 25 B. Post Daubert FRE 702 case annotations from LEXIS relevant to medical malpractice issues ....................................................................................................................... 32 |1 I. Introduction With the enactment of House Bill 542 in June 2011, the General Assembly amended Rule of Evidence 702(a), the general rule governing the admissibility of expert opinion testimony in North Carolina. Prior to this amendment, North Carolina’s Rule 702(a) was essentially identical to the old version of Federal Rule of Evidence 7021, and read simply that “[i]f 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.” N.C. Gen. Stat. 8C-702(a) (2010). As part of the General Assembly’s latest round of “tort reform” efforts last year, North Carolina Rule 702(a) was revised to bring it in line the current Federal Rule of Evidence 702 (hereinafter “FRE 702”). FRE 702 itself was amended in December 2000 in response to the court’s “gatekeeper” role as articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and its progeny. “The Federal Rules of Evidence Advisory Committee Note to its 2000 amendment of Rule 702 makes it clear that the intent of the amendment was to incorporate the principles set forth in Daubert and its progeny into the Federal Rules of Evidence.” 1-4 Brandis and Broun on North Carolina Evidence § 113 (2012). Some legal scholars believe that because North Carolina’s “Rule 702(a) has been rewritten to mirror FRE. 702 at the time the statute was enacted,” then “this indicates a clear legislative intent to abandon the Howerton standard announced by our Supreme Court2 in favor of the Daubert standard adopted by the United States Supreme Court as [currently] codified in F.R.E. 702.” 1-702 North Carolina Evidence Courtroom Manual (2012). Others take a more cautious approach, saying that “[t]he amendment to the North Carolina rule could have the same effect, thus dramatically changing the approach announced in Howerton. Whether the North Carolina courts will interpret the amendment to put the state on the same path as the federal courts or whether the interpretation will be more in line with Howerton remains to be seen.” 1-4 Brandis and Broun. Although the “extent to which Howerton and its progeny are overturned by the new Rule 702(a) remains to be determined,” it is generally agreed upon that “trial courts will undoubtedly now look to federal caselaw for guidance with respect to the acceptability of scientific methods, at least until North Carolina caselaw is developed in this area.” 1-702 North Carolina Evidence Courtroom Manual. The intent of this manuscript is to predict the effects the revised Rule 702(a) will have on medical malpractice cases in North Carolina. As the plaintiff’s bar well knows, for many years now there have been in place various procedural and evidentiary hurdles to filing and litigating medical malpractice actions in this state. As a result, a large body of case has emerged interpreting and 1 See Sec. III(B), infra, for a discussion of FRE 702 and the landmark amendment in December 2000 in response to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and its progeny. 2 See Sec. III(A), infra, for a discussion of Howerton and the prior law governing admissibility of scientific opinion testimony in North Carolina. |2 applying these technical rules in the North Carolina appellate courts. The challenge of this paper is to forecast which of these preexisting rules will be affected and to what extent. In the end, what follows is merely educated guesswork as we await the inevitable appellate opinions applying the new Rule 702(a). II. New Rule 702 in N.C. A. Amended Rule 702(a) The newly amended North Carolina Rule of Evidence 702(a) reads as follows: Rule 702. Testimony by experts. (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. The new rule can be broken down into five essential elements, all of which must be established in order for the trial court to deem any expert opinion testimony admissible: (i) the subject matter at issue must be one where “scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact3;” (ii) the proposed expert must be qualified “by knowledge, skill, experience, training, or education” to render an opinion on the subject; (iii) the testimony must be “based upon sufficient facts or data;” (iv) the testimony must be “the product of reliable principles and methods;” and (v) the expert must have “applied the principles methods reliably to the facts of the case.” These elements represent a preliminary set of requirements for the admissibility of all expert opinion testimony, including standard of care, causation and damages opinions in a medical malpractice action. Each will be discussed below. It is critical to remember, however, that these “gatekeeper” requirements will operate in conjunction with the other evidentiary rules governing expert testimony in North Carolina. B. Other provisions of Rule 702 relevant to medical malpractice While the amendments to Rule 702(a) have been considered by many to be a seismic evidentiary shift toward the much-maligned “Daubert standard,” it is easy to overlook the fact that many other provisions of North Carolina Rule 702 will continue to govern the admissibility of 3 It has long been recognized in North Carolina that expert testimony is required in medical malpractice
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