Expert Witnesses in North Carolina
In North Carolina, an expert witness is a witness who possesses specialized knowledge, skill, experience, training, or education that will assist the trier of fact in understanding evidence or determining a fact in issue.
Rules Governing Disclosure
Rule 26(b)(4) of the North Carolina Rules of Civil Procedure imposes an affirmative obligation to disclose testifying experts even if no interrogatory has been served. Failure to disclose can result in exclusion of the expert's testimony.
If the parties agree to accompany their disclosure with a written report, the report must contain all of the following:
I. A complete statement of all opinions the witness will express and the basis and reasons for them.
II. The facts or data considered by the witness in forming them.
III. Any exhibits that will be used to summarize or support them.
IV. The witness' qualifications, including a list of all publications authored in the previous 10 years.
V. A list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition.
VI. A statement of the compensation to be paid for the study and testimony in the case.
Failure to comply with Rule 26(b)(4) can trigger sanctions such as exclusion of expert testimony.
Admissibility Standards
In North Carolina, the admissibility of expert testimony is governed by Rule 702 of the North Carolina Rules of Evidence. Since a 2011 amendment, North Carolina has generally followed the federal Daubert standard rather than the older Frye "general acceptance" test.
North Carolina courts may consider the familiar Daubert factors, including:
Whether the theory or technique can be tested;
Whether it has been subjected to peer review and publication;
The known or potential error rate;
The existence of standards controlling the technique;
Whether it is generally accepted in the relevant field.
Attorney–Expert Communication Protection
In North Carolina, attorney-expert communications are generally protected by Rule 26(b)(4). Opposing counsel ordinarily cannot obtain draft reports, strategy discussions, or attorney comments on expert opinions. The principal exceptions are communications concerning compensation, facts supplied by counsel that the expert considered, and assumptions supplied by counsel that the expert relied upon.
Compensation
North Carolina permits experts to be reasonably compensated for their professional services, but compensation arrangements are generally discoverable. Rule 26(b)(4) specifically allows discovery of communications relating to expert compensation and requires the party taking an expert's deposition to pay the expert a reasonable fee for deposition time, absent manifest injustice.
Limits on Number of Expert Witnesses
The North Carolina Rules of Civil Procedure do not impose a numerical limit on the number of expert witnesses a party may disclose or call at trial. Rule 26(b)(4) governs disclosure and discovery of experts, but it does not contain any provision limiting parties to a specific number of experts.
Out-of-State Expert Qualification
For non-medical cases, North Carolina generally does not care whether the expert is from North Carolina, another state, or even another country, so long as the expert satisfies Rule 702's qualification and reliability requirements.
For medical malpractice cases, an out-of-state expert may testify, but must satisfy the specialty, practice/teaching, and locality-familiarity requirements of Rule 702. The question is usually not where the expert lives, but whether the expert is sufficiently familiar with the applicable North Carolina standard of care.
