The Admissibility of Expert Testimony in North Carolina after Howerton : Reconciling the Ruling with the Rules of Evidence

In Howerton v. Arai Helmet, Ltd., 597 S.E.2d 674 (N.C. 2004), the North Carolina Supreme Court rejected the federal Daubert standard for determining the admissibility of expert testimony. Relying upon case law pre-dating North Carolina's adoption of an evidence code based on the Federal Rules, the court explained the test for admitting expert testimony in state court was less rigorous and less exacting than the federal standard and was grounded, primarily, on factors commonly considered by juries in weighing the credibility of expert witnesses. In spite of the rejection of the Daubert substantive standard, the court retained the Daubert procedural mechanism of determining admissibility under Rule 104(a). This article argues that replacing the substance of Daubert but retaining the Daubert procedure is inconsistent with the structure and text of the North Carolina Rules of Evidence and it reflects an inherent distrust of the jury. The doctrine of conditional relevancy and the procedural mechanism envisioned by Rule 104(b) should have been adopted to make the new admissibility standard consistent with the Rules of Evidence