Expert Testimony and Rule 702 (Litigator Series)
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The ruling appears to bring Virginia law closer to the federal Daubert standard for the admissibility of expert witness testimony. Merrell Dow Pharmaceuticals , U. As a result, in assessing whether expert testimony should be admitted, the determining factor for federal courts is no longer whether the evidence has gained general acceptance in the particular field to which it belongs as the Frye general acceptance test held ; rather, a new standard consistent with Rule should be applied.
Proposed testimony must be supported by appropriate validation — i. While a sizable number of states have adopted the Daubert standard, some states have explicitly rejected such, and have instead retained the Frye standard. Virginia has never explicitly adopted the Daubert standard, nor rejected it. Instead, a series of judicial rulings have developed a standard for the admissibility of expert testimony which is similar in some respects to the Daubert standard, but different in other respects note that several years ago, Virginia recently adopted Rules of Evidence for the first time, the adoption of which explicitly retained the prior caselaw [ See Virginia Rule of Evidence 2: Duncan , S.
Joiner , U. In short, 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. The implications to the legal practitioner are potentially significant.
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Attorneys will likely want to draw on the formidable body of caselaw developed by Daubert and its progeny in support of motions to strike expert testimony, and motions in limine to exclude such. First, the Virginia Supreme Court did not explicitly adopt the Daubert standard. This raises the question of to what extent Daubert and its progeny are authoritative in Virginia state court.
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As a result, the importance of the case in a specific proceeding depends on whether the state has modeled its evidentiary rules on the Federal Rules. Lists on whether a state adheres to Daubert can be found across the internet. One such list is Martin S. A perfect example of how the Daubert factors can be applied by a state is Indiana. In the recent decision State Automobile Ins.
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As you can see, Indiana is a state that patterns its rules after the Federal Rules. Nevertheless, Indiana does not treat Daubert as controlling. It is important to recognize that Daubert does not apply to all expert testimony, but specifically to scientific testimony as it is rooted in methodology.
THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and interpret the provisions of Federal Rule of Evidence THIS CASEBOOK contains a selection of 29 U. S. Court of Appeals decisions that analyze and interpret the provisions of Rule of the Federal Rules of.
With that in mind, let us now return to Carter v. The case hinged on the admissibility of expert testimony in a medical malpractice claim.
Though the case decided four issues, for our purposes it is sufficient to discuss only two. While you may be thinking that this sounds bizarrely unfair and a judge that was playing favorites, I advise you not to jump to such quick conclusions and to follow along. Whether a doctor has followed this methodology is a determination to be made in each case. The way to show that the doctor did not is also very straightforward.
The second issue was whether the facts upon which the expert based his testimony were reliable. The court found that the fundamentals of this argument went toward the weight of the evidence and not the admissibility. As such, the court found that the trial judge did not err in allowing the expert to testify.
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This is a routine and acceptable practice. However, in this case the trial judge correctly did not allow the testimony.
That said, Daubert does not apply in every court. As you can see, Indiana is a state that patterns its rules after the Federal Rules. These changes are intended to be stylistic only. However, the question whether the expert is relying on a sufficient basis of information—whether admissible information or not—is governed by the requirements of Rule This raises the question of to what extent Daubert and its progeny are authoritative in Virginia state court.
The reason is because defendant, inexcusably, waited too long to disclose his expert. The trial occurred on September 26, The expert was not disclosed until August 19, Granted, the plaintiff had been less than entirely efficient in meeting discovery deadlines.
Nevertheless, by April 20, , defendant knew that he would need the testimony of his expert. Yet, he did not disclose that expert until just over a month before trial. As you can see, the procedures for getting expert testimony before a jury can be treacherous. It is important to find counsel that knows how to handle this process when navigating your case through treacherous waters of litigation.
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Join us again next time for further discussions of developments in the law. The author is licensed to practice in the state of Indiana. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.
Robinson , N. Federal Rules of Evidence Indiana Evidence Rules Guerrero , N.