John Nichols wrote a great article for The South Carolina Lawyer Bulletin for Spring 2008 discussing the admissibility of expert’s opinions pursuant to Rule 702, and the lack of necessity for South Carolina to adopt the federal standard described as Daubert for the infamous 1993 decision Daubert v. Merrill Dow Pharmaceuticals, Inc., 526 U.S. 579 (1993). Daubert was intended to make expert testimony more admissible but Defendants and sympathetic Courts have made it more difficult and more costly to admit qualified expert opinions. Mr. Nichols explains why the change is unnecessary and uncovers the disingenous arguments for adopting the change. Below are excerpts from the article.
And what of Copernicus and Bruno?
“How do you know what you know?” That question was posed by Circuit Judge Roger Young in a November 2003 article he authored that was published in the South Carolina Bar’s magazine, The South Carolina Lawyer. Judge Young’s article has become somewhat of a centerpiece for the current efforts by the South Carolina Chamber of Commerce’s front group, the misnamed “Civil Justice Coalition,” in its efforts to have our General Assembly enter into the role of rule-maker by adopting a statute that would conflict with Rules 701 through 703 of the South Carolina Rules of Evidence. Of course, the role of making rules governing procedure and evidence in our judicial system is traditionally, and generally constitutionally, delegated to the Supreme Court. But the current effort, known as Senate Bill 687, attempts to usurp that authority in favor of a statutory revision of these rules of evidence.
In his article, Judge Young summed up his view of one means of determining reliability for scientific expert testimony by asking the expert the simple question: “How do you know what you know?” Judge Young pointed out that to assist the judges in interpreting the expert’s response to that question, the state and federal Supreme Courts have provided broad starting points, founded in evidence Rule 702. South Carolina’s version, which was adopted in 1995, was identical to the federal version until Congress amended the federal rule in 2000, which Judge Young points out was altered “to reflect the changes brought about by Daubert, although it does not enumerate the Daubert factors in the amendment.”
There’s the first rub: The United States Congress felt that Daubert and its progeny, particularly Kumho Tire, somehow strayed from the plain language of Rule 702, so much so that Congress felt the need to amend the Rule “to reflect the changes” in the Rule brought about by the United States Supreme Court in interpreting Rule 702 of the Federal Rules of Evidence. The Advisory Committee Notes to the 2000 Amendments say as much.
Turning to the current effort by the Chamber, in a hearing before a Senate subcommittee considering S. 687, advocates for the proposal claimed the current rules regarding admissibility of expert witness evidence in South Carolina resulted in a “lack of predictability” in our judicial system and that such unpredictability caused businesses to turn elsewhere when looking to locate. Advocates presented nothing other than their apocryphal stories, and the reason is clear: Businesses are simply not avoiding South Carolina because there is some perception that because South Carolina is not a “Daubert state,” our court system is unpredictable when it comes to the admission of expert evidence.
For example, on February 20, 2008, which ironically was the same day as a hearing before the Senate subcommittee, The State newspaper ran a front page article entitled “Massive trade center planned,” with the subtitle “Company could invest $100 million in first phase of I-26 project.” The article indicated an investment group known as World Trade City Orangeburg, LLC, which has ties to China and the United States, plans to purchase 1,200 acres of farmland near Bowman, South Carolina, for an international trade center that could employ more than 1,000 people. The group intends to eventually buy 5,000 acres, and its trade center will be near a 1,300-acre warehouse complex planned by a Dubai company, Jafza International, which bought land along I-95 near Santee for a project that could lead to construction of over $700 million in buildings and employment of 5,500 people by 2015. These international companies are investing significant sums into the Orangeburg economy.
Interestingly, on its website the South Carolina Commerce Department makes the following claim: “South Carolina is one of the most business-friendly states in the nation and continues to be the destination for companies to locate and expand.” The Department provides a “2006 Activity Report,” which brags about how “business friendly” South Carolina is; claims 14,420 new jobs were created in 2006; and lists “Top Ten Job Creations” during the year, all of which were investments in the State by out-of-state businesses.
In 2006, the “Small Business & Entrepreneurship Council” ranked South Carolina 11th among entrepreneur-friendly states, ahead of neighboring states Tennessee (13th), Georgia (25th) and North Carolina (40th). So the claims that there is no predictability in our rules of evidence and that this lack of predictability is scaring off business is completely untrue and as such cannot serve as a factual basis for just changing the established and familiar rules of evidence in a way deliberately designed to hurt the citizens, consumers, and small business people in favor of large out-of-state corporations.
Advocates for the rules changes in S. 687 often claim that “33 States have adopted Daubert,” but this is not true—even basic legal research belies this claim. In fact, however, only 10 states currently adopt Daubert and Kumho Tire in their entirety, and a majority of States addressing the issue either limit its application or reject it outright like South Carolina’s current evidentiary rules.
The proponents of changing the rules also claim that other states have adopted legislation similar to S. 687, and thus South Carolina needs the statute in order to compete for business opportunities and create jobs. The truth is that only one other state has adopted anything like S. 687, and that legislation has not withstood a challenge on its constitutionality yet. Two other States have incorporated Daubert into their law by statute, but these are far from the broad reaching measures pushed by the Chamber of Commerce in South Carolina.
It is telling that the only proponent of S. 687 is the South Carolina Chamber of Commerce and its front group, “Coalition for Justice.” Groups that have testified and spoken openly in opposition to changing rules of evidence by statute include the South Carolina Attorney General, the South Carolina solicitors, consumer groups, small business groups and the courts. The Chamber simply has not made the case for change. Moreover, the General Assembly should consider the enormous financial impact on small business, consumers, and our increasingly burdened court system these changes would impose. The judges in our court system, who ironically we ask to rule on matters of life and death, are now being accused by the Chamber of Commerce of not knowing how to adequately deal with expert witness evidence in South Carolina after doing so for hundreds of years; those judges should be asked what they think of this ill-advised power grab by big business, and the rules changes’ costs and consequences.
Senate Bill 687 is a bad idea being promoted by the self-serving interests of large corporations intent on making access to justice and fairness under the law hollow promises. It is our hope that the facts will emerge through the fog of hyperbole and misinformation driving this effort to favor out-of-state corporations over the people of this state.
Addendum: We would like to thank John nichols for allowing us to use his article. Nobody knows more about South Carolina law, or writes better than John Nichols.