On Jan. 8, the court ruled 6-1 that Gage Duncan’s claims were based on testimony from an expert who lacked a proper foundation for his opinions. The January decision ended the case with entry of final judgment for car maker Hyundai Motor Co. Ltd.
Duncan’s lawyers urged the court to reconsider, prompting the court to ask Hyundai to file a brief in response.
The unusual request came in a Feb. 24 letter to Hyundai counsel. “The Court has directed me to inform you that it wishes to receive a brief in response to the petition for rehearing filed by the appellees,” wrote court Clerk Patricia L. Harrington.
In his petition for rehearing, Duncan’s lawyers argued the Supreme Court ignored two key principles – that a jury is the ultimate judge of an expert’s reliability and that a reviewing court must view testimony in a light most favorable to the winner at trial.
On April 24, the high court issued a one-sentence order denying the petition for rehearing.
“The Duncan family is very disappointed by the Supreme Court’s ruling in this appeal,” said Virginia Beach attorney L. Steven Emmert, who represented Duncan on appeal.
“The events of this case have been devastating to their lives, and they will now set about the task of adapting as best they can, knowing that our civil justice system will not help them,” Emmert said.
Ari Casper of Baltimore represented Duncan at trial.
An attorney for Hyundai said the company had no comment.
The high court’s earlier ruling in the Duncan case provoked concern about the Virginia standard for admitting expert testimony. The court’s Jan. 8 opinion invoked federal case law emphasizing the trial judge’s role as a gatekeeper to keep out “junk science.”
The touchstone 1993 U.S. Supreme Court case is Daubert v. Merrell Dow Pharmacueticals.
In response, the state legislature approved language to disassociate Virginia statutes on expert qualifications from the Federal Rules of Evidence.
“It leaves kind of a gray area, whether Virginia has something different from Daubert and, if it is different, what is it,” said law Prof. Jeffrey Bellin at the College of William & Mary.
Bellin, author of a recent book comparing the Virginia and federal rules of evidence, said the Virginia high court could embrace the Daubert test, “but it continues to shy away.”
The Court of Appeals of Virginia did more than shy away from Daubert in an April 14 custody ruling.
A three-judge panel said a Chesterfield County circuit judge erred by using the Daubert test to exclude testimony from a forensic audio expert.
The expert was offered to identify vocal stress points in a 9-1-1 recording of one of the couple’s children, made while in the father’s custody.
The trial judge should have allowed the evidence to be heard by a jury, the Court of Appeals said in its unpublished opinion in Padula-Wilson v. Wilson (VLW 015-7-111).
Updated April 28 and 29 to add comment from counsel, comment from Bellin and reference to Padula-Wilson.