Tuesday, March 01, 2005

The Virginia mold case dealing with subject matter jurisdiction - and Daubert

Law.com has this Legal Times article about Roche v. Lincoln Property Co., as to which the Supreme Court has granted certioriari. The issue on appeal is whether there was diversity jurisdiction between the parties. The subject matter of the case is personal injury caused by toxic mold.

The appeals court opinion was written by Judge Gregory, joined by Judge Widener and Senior Judge Beam from the Eighth Circuit. It is not that clear to me that the case is very important, because you'd think that normal business are not so ambiguously structured as the corporate defendant in this case.

To me, the most interesting aspect of the case is that in the district court, the trial court judge applied Daubert, booted the plaintiffs' evidence, and granted summary judgment. Roche v. Lincoln Property Co., 278 F. Supp. 2d 744 (E.D. Va. 2003). The application of Daubert in a mold case is in itself interesting, because there is much chicanery and not much in the way of real standards in the mold investigation business.

By appealing subject matter jurisdiction, the plaintiffs have escaped the judgment for the defendants, and may get back to Virginia state court, where Daubert (as such) does not apply. If the case is remanded, how will the state court trial judge view the preclusive (or persuasive) effect of the federal court's Daubert ruling? Some, none, or total? It is very interesting to consider - a rare chance under almost laboratory conditions to test the differences between the law of the Commonwealth and the federal evidence rule.

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