Duncan , S. Joiner , U.
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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.
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.
Rule 702. Testimony by Expert Witnesses
Second, Federal Rule of Evidence was amended in , thereby calling into question to what extent attorneys should cite post Daubert -line decisions in Virginia state court, since the Virginia Supreme Court noted in Hyundai Motor Company that the Virginia General Assembly adopted Virginia Code Section 8. It will be interesting to see how these issues develop. Carmichael , S. In Daubert the Court charged trial judges with the responsibility of acting as gatekeepers to exclude unreliable expert testimony, and the Court in Kumho clarified that this gatekeeper function applies to all expert testimony, not just testimony based in science.
See also Kumho , S. The amendment affirms the trial court's role as gatekeeper and provides some general standards that the trial court must use to assess the reliability and helpfulness of proffered expert testimony. Consistently with Kumho , the Rule as amended provides that all types of expert testimony present questions of admissibility for the trial court in deciding whether the evidence is reliable and helpful. Consequently, the admissibility of all expert testimony is governed by the principles of Rule a.
Under that Rule, the proponent has the burden of establishing that the pertinent admissibility requirements are met by a preponderance of the evidence. United States , U. Daubert set forth a non-exclusive checklist for trial courts to use in assessing the reliability of scientific expert testimony. The specific factors explicated by the Daubert Court are 1 whether the expert's technique or theory can be or has been tested—that is, whether the expert's theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; 2 whether the technique or theory has been subject to peer review and publication; 3 the known or potential rate of error of the technique or theory when applied; 4 the existence and maintenance of standards and controls; and 5 whether the technique or theory has been generally accepted in the scientific community.
Daubert itself emphasized that the factors were neither exclusive nor dispositive. Other cases have recognized that not all of the specific Daubert factors can apply to every type of expert testimony. In addition to Kumho , S.
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Urban Search Management , F. See also Kannankeril v.
The standards set forth in the amendment are broad enough to require consideration of any or all of the specific Daubert factors where appropriate. Courts both before and after Daubert have found other factors relevant in determining whether expert testimony is sufficiently reliable to be considered by the trier of fact. Joiner , U. Labarraque , F. Daily Racing Form, Inc.
New Ruling Has Implications for Expert Witnesses in Estate Litigation Matters | Estate Conflicts
See Kumho Tire Co. All of these factors remain relevant to the determination of the reliability of expert testimony under the Rule as amended. Other factors may also be relevant. See Kumho , S. Yet no single factor is necessarily dispositive of the reliability of a particular expert's testimony. A review of the caselaw after Daubert shows that the rejection of expert testimony is the exception rather than the rule.
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As the Court in Daubert stated: Likewise, this amendment is not intended to provide an excuse for an automatic challenge to the testimony of every expert. When a trial court, applying this amendment, rules that an expert's testimony is reliable, this does not necessarily mean that contradictory expert testimony is unreliable. The amendment is broad enough to permit testimony that is the product of competing principles or methods in the same field of expertise.
As the court stated in In re Paoli R. The evidentiary requirement of reliability is lower than the merits standard of correctness. Pepsi Cola , F.
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Under the amendment, as under Daubert , when an expert purports to apply principles and methods in accordance with professional standards, and yet reaches a conclusion that other experts in the field would not reach, the trial court may fairly suspect that the principles and methods have not been faithfully applied. The amendment specifically provides that the trial court must scrutinize not only the principles and methods used by the expert, but also whether those principles and methods have been properly applied to the facts of the case.
The selection of decisions spans from January to the date of publication.
Rule of the Federal Rules of Evidence provides that expert opinion evidence is admissible if: Under Daubert and its progeny, including Daubert II, a district court's inquiry into admissibility is a flexible one. In evaluating proffered expert testimony, the trial court is "a gatekeeper, not a fact finder. City of Pomona v. And it is reliable if the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant discipline.
The judge is "supposed to screen the jury from unreliable nonsense opinions, but not exclude opinions merely because they are impeachable. Simply put, "[t]he district court is not tasked with deciding whether the expert is right or wrong, just whether his testimony has substance such that it would be helpful to a jury.
The test of reliability is flexible. Estate of Barabin v. The court must assess the expert's reasoning or methodology, using as appropriate criteria such as testability, publication in peer-reviewed literature, known or potential error rate, and general acceptance. But these factors are "meant to be helpful, not definitive, and the trial court has discretion to decide how to test an expert's reliability as well as whether the testimony is reliable, based on the particular circumstances of the particular case.
The test "is not the correctness of the expert's conclusions but the soundness of his methodology," and when an expert meets the threshold established by Rule , the expert may testify and the fact finder decides how much weight to give that testimony. Challenges that go to the weight of the evidence are within the province of a fact finder, not a trial court judge. A district court should not make credibility determinations that are reserved for the jury.
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