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Assembly pushes back against strict expert test

Peter Vieth//April 10, 2015

Assembly pushes back against strict expert test

Peter Vieth//April 10, 2015

BWhile the Supreme Court of Virginia weighs the role of trial judges as gatekeepers to keep “junk science” out of the courtroom, the General Assembly has sent a message that it intends to be involved in any changes in the rules for expert admissibility.

A new law to give nurse practitioners a seat at the expert witness table was approved last month with an obscure but none-too-subtle message for Virginia courts: Don’t be too quick to embrace the federal Daubert standard for admitting expert testimony at trial.

The message comes in reaction to a January decision in which the court tossed out a $14 million auto products liability verdict. The court cited weak support for the plaintiff’s expert’s opinions. The case remains active because the injured driver asked the court to reconsider the result.

That products case provoked tension between the court and the Assembly on whether Virginia will embrace a strict test used by federal courts to decide whether experts are allowed to testify.

Court rejected injured driver’s expert

The state high court, in Hyundai Motor Co. Ltd. v. Duncan, suggested Virginia has adopted the federal standard for expert witnesses, which sets up the trial judge as a gatekeeper against unfounded testimony.

Plaintiffs’ lawyers have sought to limit the authority of trial judges to impose barriers to expert testimony.

In Duncan, the state Supreme Court cited a 1997 U.S. Supreme Court opinion for the proposition that trial courts should not admit expert opinions that are only loosely based on existing data.

The court’s opinion, authored by Justice Elizabeth A. McClanahan, noted that the cited federal case was decided under an evidence rule now adopted in Virginia.

The cited U.S. Supreme Court case expounded on the federal standard for expert opinions derived from the touchstone case from 1993, Daubert v. Merrell Dow Pharmaceuticals Inc.

Relying on the federal authority, the Virginia Supreme Court ruled there was an unhealable “analytical gap” in the testimony of the plaintiff’s expert in the Duncan automobile liability case. The court upended the driver’s $14 million verdict and entered judgment for the defendant auto manufacturer.

Court watchers wondered if a new standard for expert witnesses was being announced.

By citing “one of the key rulings in the progeny of Daubert, the Virginia Supreme Court appears to have indicated that Daubert and its progeny are authoritative sources of law governing the admissibility of expert testimony in Virginia state court proceedings,” wrote Williamsburg attorney William W. Sleeth III in an essay last month.

Case still under consideration

When the driver asked the court to take another look, the court signaled it was willing to revisit the case. After receiving the driver’s request, the court took the unusual step of asking for input from the auto manufacturer, as well.

The driver argued the court’s opinion ignored the principle that a jury is the ultimate judge of an expert’s reliability.

Hyundai – the defendant – countered that the Virginia Supreme Court has long established, “independent of any federal evidentiary rule,” that the trial court, not the jury, determines in the first instance whether expert testimony is admissible.

Assembly responds

Against that background, some delegates thought the General Assembly ought to assert its prerogative to set the ground rules on admissibility of evidence.

Dels. Scott A. Surovell, David B. Albo and Gregory D. Habeeb, who all represent plaintiffs in their law practices, thought the legislature ought to speak on the issue, Surovell said.

Surovell said he looked for legislation which might be amended to add the appropriate language. He found two companion bills that would permit expert testimony by nurse practitioners.

While those bills were making their way through the Assembly, the sponsors, Del. James A. “Jay” Leftwich, R-Chesapeake, and Sen. A. Benton Chafin, R-Lebanon, were agreeable to having additional language added to address the expert gatekeeper issue.

Floor amendments added this sentence: “Nothing in this act, § 8.01-401.2:1, or § 8.01-401.3 shall be construed as a codification of Rule 702 of the Federal Rules of Evidence as presently construed.”

Rule 702 is the federal evidence rule controlling admissibility of opinion evidence. The referenced Virginia statutes all apply to the same issue.

Surovell, a Democrat, said he shepherded the modified bill in the House Democratic caucus while Habeeb, R-Salem, and Chafin worked Republicans in the House and Senate. No opposition emerged.

House Bill 1476 and Senate Bill 861 were signed into law by Gov. Terry McAuliffe on March 17 with the added language.

Because the added language is not part of the statutes amended by the new law, the language may not appear in the code books. Nevertheless, the so called “enactment clause” carries the weight of law as part of the Virginia Acts of Assembly.

Surovell said he and his colleagues were concerned about confusion over whether Virginia would be considered a “Daubert state” in the wake of the Duncan opinion.

“I think it’s the kind of thing the legislature should step in and clarify if it can,” Surovell said.

“In Virginia, we have our very own unique standards for experts. We want to preserve that. If the standard is going to change, we in the legislature ought to do that,” Surovell said.

Reviewing the added language, Sleeth said it was not clear if the intent is only to reject future case law interpreting the federal evidence rule.

“As a practical matter, given the uncertainty surrounding the Virginia Supreme Court’s ruling in Duncan, coupled with the ambiguity surrounding the new law, the best practice for Virginia litigators is likely to avoid any citations to Daubert and its progeny in construing Rule 2:702 of the Virginia Rules of Evidence, so as to avoid creating a potential appealable issue centering on the extent to which Daubert and its progeny are authoritative sources construing Rule 2:702,” Sleeth said.

Requests for comment from several Virginia civil defense attorneys were not responded to as of press time.

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