Rule 702. Testimony by experts. - North Carolina Statutes

Rule 702. Testimony byexperts.

(a)        If scientific,technical or other specialized knowledge will assist the trier of fact tounderstand the evidence or to determine a fact in issue, a witness qualified asan expert by knowledge, skill, experience, training, or education, may testifythereto in the form of an opinion.

(a1)      (For change ineffective date, see note) A witness, qualified under subsection (a) of thissection and with proper foundation, may give expert testimony solely on theissue of impairment and not on the issue of specific alcohol concentrationlevel relating to the following:

(1)        The results of aHorizontal Gaze Nystagmus (HGN) Test when the test is administered by a personwho has successfully completed training in HGN.

(2)        Whether a person wasunder the influence of one or more impairing substances, and the category ofsuch impairing substance or substances. A witness who has received training andholds a current certification as a Drug Recognition Expert, issued by the StateDepartment of Health and Human Services, shall be qualified to give thetestimony under this subdivision.

(b)        In a medicalmalpractice action as defined in G.S. 90‑21.11, a person shall not giveexpert testimony on the appropriate standard of health care as defined in G.S.90‑21.12 unless the person is a licensed health care provider in thisState or another state and meets the following criteria:

(1)        If the party againstwhom or on whose behalf the testimony is offered is a specialist, the expertwitness must:

a.         Specialize in thesame specialty as the party against whom or on whose behalf the testimony isoffered; or

b.         Specialize in asimilar specialty which includes within its specialty the performance of theprocedure that is the subject of the complaint and have prior experiencetreating similar patients.

(2)        During the yearimmediately preceding the date of the occurrence that is the basis for theaction, the expert witness must have devoted a majority of his or herprofessional time to either or both of the following:

a.         The active clinicalpractice of the same health profession in which the party against whom or onwhose behalf the testimony is offered, and if that party is a specialist, theactive clinical practice of the same specialty or a similar specialty whichincludes within its specialty the performance of the procedure that is thesubject of the complaint and have prior experience treating similar patients;or

b.         The instruction ofstudents in an accredited health professional school or accredited residency orclinical research program in the same health profession in which the partyagainst whom or on whose behalf the testimony is offered, and if that party isa specialist, an accredited health professional school or accredited residencyor clinical research program in the same specialty.

(c)        Notwithstandingsubsection (b) of this section, if the party against whom or on whose behalfthe testimony is offered is a general practitioner, the expert witness, duringthe year immediately preceding the date of the occurrence that is the basis forthe action, must have devoted a majority of his or her professional time toeither or both of the following:

(1)        Active clinicalpractice as a general practitioner; or

(2)        Instruction ofstudents in an accredited health professional school or accredited residency orclinical research program in the general practice of medicine.

(d)        Notwithstandingsubsection (b) of this section, a physician who qualifies as an expert undersubsection (a) of this Rule and who by reason of active clinical practice orinstruction of students has knowledge of the applicable standard of care fornurses, nurse practitioners, certified registered nurse anesthetists, certifiedregistered nurse midwives, physician assistants, or other medical support staffmay give expert testimony in a medical malpractice action with respect to thestandard of care of which he is knowledgeable of nurses, nurse practitioners,certified registered nurse anesthetists, certified registered nurse midwives,physician assistants licensed under Chapter 90 of the General Statutes, orother medical support staff.

(e)        Upon motion byeither party, a resident judge of the superior court in the county or judicialdistrict in which the action is pending may allow expert testimony on theappropriate standard of health care by a witness who does not meet therequirements of subsection (b) or (c) of this Rule, but who is otherwisequalified as an expert witness, upon a showing by the movant of extraordinarycircumstances and a determination by the court that the motion should beallowed to serve the ends of justice.

(f)         In an actionalleging medical malpractice, an expert witness shall not testify on acontingency fee basis.

(g)        This section doesnot limit the power of the trial court to disqualify an expert witness ongrounds other than the qualifications set forth in this section.

(h)        Notwithstandingsubsection (b) of this section, in a medical malpractice action against ahospital, or other health care or medical facility, a person may give experttestimony on the appropriate standard of care as to administrative or othernonclinical issues if the person has substantial knowledge, by virtue of his orher training and experience, about the standard of care among hospitals, orhealth care or medical facilities, of the same type as the hospital, or healthcare or medical facility, whose actions or inactions are the subject of thetestimony situated in the same or similar communities at the time of thealleged act giving rise to the cause of action.

(i)         (For change ineffective date, see note) A witness qualified as an expert in accidentreconstruction who has performed a reconstruction of a crash, or has reviewedthe report of investigation, with proper foundation may give an opinion as tothe speed of a vehicle even if the witness did not observe the vehicle moving. (1983, c. 701, s. 1; 1995, c.309, s. 1; 2006‑253, s. 6; 2007‑493, s. 5.)