On Daubert in Virginia state court

On Friday and Saturday, I attended the Virginia Bar Association meeting in Williamsburg.

One session involved a discussion of whether and how Daubert applies in Virginia, and the thesis was put forward by the speakers, Judges Kelsey, Ney, and Baumgardner among them, that Virginia has the functional equivalent of Daubert in its case law applying the Virginia statute with the language of Rule 702, while avoiding the "Daubert Effect." The Daubert Effect was described as the paradox between the "liberalizing" intent of Rule 702 and the practical result that district courts in the exercise of their role as gatekeepers are keeping out more evidence, not less. Judge Ney was the trial judge in the case of John v. Im, in which the Virginia Supreme Court noted expressly that it was not making a decision about whether to adopt Daubert in applying Va. Code §§ 8.01-401.1 - 401.3: "We note, however, that we have not previously considered the question whether the Daubert analysis employed by the federal courts should be applied in our trial courts to determine the scientific reliability of expert testimony. Therefore, we leave this question open for future consideration."

As to the Daubert Effect, Judge Kelsey cited what I believe was this study available from the Federal Judicial Center, which notes in the summary: "Reporting both on their general experience with expert testimony and on their most recent civil trial involving such testimony, judges and attorneys indicated that judges were more likely in 1998 than in 1991 to scrutinize expert testimony before trial and then limit or exclude proffered testimony."

Michael Imprevento of the VTLA reported that there is a hearing today (Monday) in the General Assembly on this year's version of the Daubert bill, which I believe is H.B. 807, on which the VTLA and VADA take opposite views.

Judge Kelsey noted the Supreme Court's recent decision in the Lincoln Property v. Roche case, where the plaintiff's purpose in avoiding removal to federal court was acknowledged to be the difference in the standard for admissibility of expert testimony. Indeed, the District Court in the Roche case excluded the plaintiff's expert and entered summary judgment on the merits for lack of evidence of causation.

Judge Kelsey's introduction was so excellent I wish he would write it down and publish it in the VBA Journal.