Summary of North Dakota's Stance on Admissibility of Expert Opinion. North Dakota has not changed its Rule 702 to follow the federal model, even though North Dakota has a long history of conforming its rules to federal procedural rules. Furthermore, North Dakota has not adopted the federal Daubert gatekeeping ideas. In contrast, North Dakota is extremely liberal in allowing expert opinions to be presented to the jury. It does not look like change is likely in the near future.

Discussion. North Dakota, before its adoption of the federal rules of evidence, historically showed a distrust of experts. E.g., a basic case in North Dakota refusing evidence in the form of an expert opinion is Meehan v. Great Northern Ry., 101 NW183 (ND1904), which stated:

The general rule of law is that witnesses must state facts within their knowledge, and not give their opinions or their inferences.., it is not sufficient to warrant the introduction of expert evidence that the witness may know more of the subject of inquiry and may better comprehend and appreciate it than the jury. . . . The rules admitting the opinions of experts should not be unnecessarily extended. Experience has shown that it is confine witnesses to facts in all cases where that is much safer to the testimony where practicable, and leave the jury to exercise their judgment and experience upon the facts proved. Where witnesses testify to facts they may be specifically contradicted..., but they may give false opinions without fear of punishment. It is generally safer to take the judgments of unskilled jurors than the opinions of hired and generally biased experts. Id.,185.

But after the adoption of the present Rule 702 in the 1950's, the North Dakota Court did a 180 degree turn in admitting expert evidence. The theory embraced was that it is a matter for the trial court's discretion, as to whether the proffered expert had qualifications of "expertise," but the trial judge had no discretion to determine if the strength of the testimony was such as to be credible or worthwhile. The Court has consistently spelled out for 50 years that generally that once it was determined the expert was indeed an expert, then whatever the opinions the expert has should be admitted into evidence for the trier of facts to weigh. See, e.g., Victory Park Apartments v. Axelson, 367 NW2d 155 (ND 1985). A

Numerous North Dakota decisions state that Rule 702, N.D.R.Evid., "envisions generous allowance of the use of expert testimony if the witnesses are shown to have some degree of expertise in the field ...@ E.g., see Myer v. Rygg, 2001 ND 123, 630 N.W.2d 62, quoting Anderson v. A.P.I. Company of Minnesota , 1997 ND 6, & 9 , 559 N.W.2d 204; and In re Estate of Aune, 478 N.W.2d 561, 564 (N.D. 1991).

The North Dakota Court and its Joint Procedural Advisory Committee has striven generally to enact the federal courts rules of procedure and evidence as the North Dakota rules. The Advisory Committee has stated the primary reasons for changing the North Dakota Rules of Evidence to always conform to the Federal Rules are:

• in a state with few lawyers who get to court often (many towns in this sparsely populated state have only one lawyer) it is wasteful of legal resources to have lawyers learn two sets of trial procedures (state and federal), and

• two sets of procedural rules create traps for the unwary.

 The author of this analysis was for 14 years the chair of the ND state bar civil rules committee and thereafter 9 years on the ND Court=s Advisory Committee, and asserts that this unwavering conformance to federal rules has been a high priority. Since 1957 until the Federal amendment of Rule 702 in 1993, the attempt of the N.D. Supreme Court was to follow the wording - and interpretations - of the federal evidence rules if at all practical under North Dakota procedural and substantive law.

The federal and North Dakota state rules are not now identical. After Daubert was decided, the federal courts changed their rule 702.  North Dakota, as of 2003, has not adopted the federal amendments to Rule 702, and this lack of change is significant. Certainly if North Dakota were to adopt the present federal rule, it would be almost inevitable that North Dakota would bring the Daubert interpretations into play.

The North Dakota Court has stated often its intention of following the federal courts= interpretation of rules of procedure and evidence A in the interest of uniform interpretation.@ E.g., Unemployment Compensation Division v. Bjornsrud, 262 NW2d 396 (ND 1977).

North Dakota's Rule 702 is the same as Rule 702 of the Federal Rules of Evidence as it existed during the federal Daubert and Kumho Tire cases. It is a given fact that North Dakota= s Rule 702 is identical with its federal counterpart at the time of Daubert and Kumho Tire. Thus one would expect that the federal interpretation of it= s rule in the Daubert and Kumho Tire cases would be highly persuasive for the North Dakota Court.. On many occasions, the North Dakota Court has stated its preference.

"[W]e have consistently deemed it appropriate to consider federal interpretations when the state procedural rule under consideration is substantially the same as the federal rule." State v. Farzaneh, 468 N.W.2d 638 (N.D. 1991), citing State v. Forsland, 326 N.W.2d 688, 692 (N.D.1982). See also State v. O'Rourke, 544 N.W.2d 384, 385 (N.D.1996)("Although we are not compelled to interpret our procedural rules in the identical manner as federal courts interpret corresponding federal rules, decisions of the federal courts are persuasive in construing our rules"); State v. Neset, 462 N.W.2d 175 (N.D. 1990)("Because of the similarity between our rule and the federal rule, we find the decisions of the federal courts', which construe the federal rule, to be highly persuasive, although we do recognize that we are not compelled to interpret our procedural rules in an identical manner as the federal courts interpret the corresponding federal rule."); and Unemployment Compensation Division v. Bjornsrud, 261 NW2d 396 (ND 1977).

The North Dakota Court has taken specific note of the Daubert/Joiner/Kumho tests.of the federal courts. Chief Justice Gerald W. VandeWalle in a special concurring opinion (Breding v. State of North Dakota, 1998 ND 170) has called for North Dakota's court to examine the Daubert tests, and seemed to be trying to call the bar of North Dakota to expect such a change in North Dakota.

"The failure in this case to fulfill the judicial expectations of expert evidence, cross-examination, and requested instructions to educate the jurors on the complete lack of reliability of hypnotically aided recollection demonstrates a need for North Dakota to reconsider the standards for use of hypnotically assisted testimony. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)(emphasizing "gatekeeper" role of trial court in admitting or excluding "scientific" evidence). "Rule 702's 'helpfulness' standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility." Id. at 591-92. The trial court must make "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Id. at 592-93. See also General Elec. Co. v. Joiner, 118 S. Ct. 512, 519 (1997)(trial court did not abuse its discretion in excluding expert opinions based upon animal studies that "were not sufficient, whether individually or in combination, to support their conclusions that [litigant's] exposure to PCBs contributed to his cancer")..."

Further Justice Marring of the North Dakota Court, authored an article published in the state bar= s journal, at "An Expert's Opinion: Post-Daubert and Post-Kumho Tire", 47 The Gavel, No. 1 p14 (2000). She clearly indicated these federal developments were worth following to some extent.

And further, the glimmerings of a Daubert type interpretation of Rule 702 was in North Dakota in Stein v. Ohlhauser, 211 N.W.2d 737 (N.D. 1973). The North Dakota Supreme Court affirmed the exclusion of an expert opinion as to the speed of a vehicle based upon crash damage. The Court stated that, in order to establish a foundation for expert testimony, it is only necessary that:

" * * * a showing must be made that the subject matter is one where expert testimony is accepted by the scientific community and the courts and that the proffered expert has sufficient expertise in the area of his competence." Syllabus 1, written by the court, at 738. [Emphasis supplied.]

The North Dakota Court, in Myer v. Rygg, 2001 ND 123,. has even cited a federal Daubert case in discussing the admission of expert testimony, to wit:

"It is the district court's responsibility to make certain expert testimony is reliable as well as relevant. Weisgram v. Marley Co., 169 F.3d 514, 517 (8th Cir. 1999), aff'd, 528 U.S. 440 (2000)."

It is thus not surprising that the at the trial court level, motions in limine, aimed at experts, have urged that North Dakota would, and should, adopt the Daubert / Joiner / Kumho tests.

Yet, the federal Frye test was never "directly adopted" in North Dakota. State v. Brown, 337 N.W.2d 138, 148 n.6 (N.D. 1983). And to date (May, 2004) the North Dakota Supreme Court has made it a point to say it has not adopted the Daubert analysis. In Howe v. Microsoft Corporation, 2003 ND 12, 656 N.W.2d 285, 656 N.W.2d 285 http://www.ndcourts.com/_court/opinions/20020075.htm the North Dakota Court stated: "We have not adopted the standards for admitting expert evidence articulated by the Supreme Court of the United States in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)" (citing Hamilton v. Oppen , 2002 ND 185, 20). See also City of Fargo v. McLaughlin, 512 N.W.2d 700, 705 n.2 (N.D. 1994)(expressing that idea as of that 1994 opinion).

When the opportunity to follow federal Daubert cases has arisen, the North Dakota Court has not taken the opportunity. The first clear opportunity was In 2001, in Myer V. Rygg, 2001 ND 123. The North Dakota court reviewed its case law on the qualifications of experts. Then without direct reference to Daubert, went on to decide the issue of qualifications in a traditional manner, and not with Federal law Daubert style reasoning. See Myer v. Rygg, 2001 ND 123 at http://www.court.state.nd.us/court/opinions/20000257.htm  

Continuing in the same vein was the case of Langness v. Fencil Urethane Systems, 2003 ND 132, 667 N.W.2d 596. This opinion was written by Justice Marring, who had previously written (see above) an article suggesting there was value in looking at the Daubert style gatekeeping. Yet her 2003 Langness opinion, without mentioning Daubert, clearly rejected any change in North Dakota= > s expert admissibility law. Quotes from this case show the tenor of the court= s leanings. I think they have clues as to the thinking of the present Court.

" Rule 702, N.D.R.Evid. > envisions generous allowance of the use of expert testimony if [proffered] witnesses are shown to have some degree of expertise in the field in which they are to testify.= Anderson v. A.P.I. Co., 1997 ND 6, & 9, 559 N.W.2d 204. * * * * A witness need not have a formal title or be licensed in any particular field to qualify as an expert, and the witness's actual qualifications may be established by knowledge, skill, experience, training, or education. Oberlander v. Oberlander, 460 N.W.2d 400, 402 (N.D. 1990). Experts need not be a specialist in a highly particularized field if their knowledge, training, education, and experience will assist the trier of fact. Kluck v. Kluck, 1997 ND 41, & 10, 561 N.W.2d 263.

* * * * a trial court does not abuse its discretion by admitting expert testimony whenever specialized knowledge will assist the trier of fact, even if the expert does not possess a particular expertise or specific certification. Botnen v. Lukens, 1998 ND 224, & 13, 587 N.W.2d 141 (holding trial court did not abuse its discretion by permitting a psychologist to testify with regard to generalities despite the fact the expert had not interviewed or evaluated the child or any party to the litigation); * * * *Endresen [v. Beretta USA Corp.], 1997 ND 38, & 14, 560 N.W.2d 225 (holding the trial court did not abuse its discretion in admitting expert's testimony, treating the expert's lack of direct experience with specific feeding and gas venting system design of semi-automatic weapons as only bearing on the weight of his testimony); * * * * Wanner v. Getter Trucking, Inc., 466 N.W.2d 833, 837 (N.D. 1991) (holding the trial court did not abuse its discretion by admitting testimony of expert who, although not familiar with the rigging procedure for a traveling block assembly of an oil rig prior to the case, after studying the information was able to form the opinion that the trucking company did not use the safest available method); Estate of Aune, 478 N.W.2d 561, 563-64 (N.D. 1991) (holding trial court did not abuse its discretion in allowing decedent's physician, who was not a psychiatrist, to testify about insane delusions); Oberlander, 460 N.W.2d 400, 402 (N.D. 1990) (holding trial court's per se disqualification of an expert witness based on the lack of a North Dakota psychologist license was an abuse of discretion because "to qualify as an expert, a witness need not be licensed in a given field, let alone licensed in the court's jurisdiction, so long as the witness possesses the requisite knowledge, skill, experience, training, or education in that field"); Victory Park Apartments, Inc. v. Axelson, 367 N.W.2d 155, 163 (N.D. 1985) (holding the trial court did not abuse its discretion by allowing fire chief to testify in his opinion the fire was caused by a cigarette).

* * * * Although Dr. Buck did not have a degree in toxicology, he had experience and training in chemistry, biochemistry, and physical chemistry with specialized knowledge which could have assisted the trier of fact to understand the amount and concentrations of toxic materials released by Fencil during the spraying incidents. To the extent the trial court concluded that Dr. Buck had limited educational credentials in the toxicology field and he did not have a toxicology degree, we conclude the trial court misapplied the law for the qualifications of an expert under N.D.R.Evid. 702. See Kluck, 1997 ND 41, & 10, 561 N.W.2d 263; Aune, 478 N.W.2d at 563-64; Oberlander, 460 N.W.2d at 402.@

Another case in 2003 followed the same route of retaining prior liberal admissibility of expert testimony, and did not attempt a Daubert theory injection. The language of the case, using terms like A whose job it is= and A jury was entitled@ , suggests a way the Court is thinking about expert testimony. In Gonzalez v. Tounjian, 2003 ND 121 http://www.court.state.nd.us/court/opinions/20020263.htm , the court stated, on an appropriate Daubert style challenge to the soundness of the expert's opinion, the following:

Dolund also challenges the basis for Dr. Griffin's testimony, arguing he was not present at the scene of the fire, did not conduct neurological tests, and did not provide continuing treatment to Gonzalez after she was transferred from the emergency room. However, the weakness of the underlying basis for an expert's opinion goes to the credibility of the testimony, not admissibility:

As we have concluded in previous appeals attacking the basis for an expert's opinion, ordinarily weakness in an expert's opinion affects credibility, not admissibility. The trial court decides the qualifications of the witness to express an opinion on a given topic, but it is the trier of fact whose job it is to decide the expert witness's credibility and the weight to be given to the testimony.

Myer, 2001 ND 123, & 20, 630 N.W.2d 62 (citations omitted); see also Kluck v. Kluck, 1997 ND 41, & 12, 561 N.W.2d 263; Horstmeyer, 534 N.W.2d at 837. Credibility is a matter for the trier of fact, and the jury was entitled to give Dr. Griffin's testimony as much or as little weight as the jury felt it deserved. See Victory Park Apartments, Inc. v. Axelson, 367 N.W.2d 155, 163 (N.D. 1985). [Emphasis supplied].

It appears that the North Dakota Supreme Court has more faith in the jury system than the federal judges do, and North Dakota does not want judges making initial decisions about A reliability@ of the opinion of expert with appropriate credentials.

Conclusion.  North Dakota, in spite of a long history of amending their evidence rules to conform to the federal rules, has not amended their Rule 702 to conform to the present federal rule. Now, the federal and North Dakota state rules are not identical, and appear deliberately so. The North Dakota Supreme Court still resolutely is following pre-Daubert interpretations of rule 702. Those North Dakota interpretations allow A generous allowance of the use of expert testimony if [proffered] witnesses are shown to have some degree of expertise in the field in which they are to testify.@

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