On whether to take the big step

I heard this question from Judge Petty of the Court of Appeals in the audio recording of an oral argument held in January 2015:

"Virginia has never adopted Daubert, and we have recently adopted Rules of Evidence that do not include Daubert. Now, if we were to say that is the appropriate standard for the admissibility of scientific evidence, that would not just apply in this case. It would apply in criminal cases, it would apply in other civil cases, and that would be a pretty big step for us to take. Why should we go there?"

And the answer given was something like, hopefully you don't have to do it, which was a pretty good answer, because the perception has been for many years that it would indeed be a "big step" that would keep out evidence that gets in now.

I posted this note about a discussion with Judge Kelsey (now appointed to the Supreme Court), Judge Ney (a delightful man, in my limited time around him which was mostly at VBA meetings), and Bumgardner (likewise) at a VBA meeting in 2006, about how the Virginia Supreme Court has tiptoed around anything like wholesale adoption of Daubert because of the perception that it leads to the increased exclusion of expert testimony.

A few weeks later in 2006, Judge Petty got his seat on the Court of Appeals, for which Judge Ney had been a popular candidate, as the Washington Post reported here. Last year, the Post had this obituary for Judge Ney. He literally wrote the book on appellate practice in Virginia. I imagine that Judge Ney would have wanted to know the answer to the very same question, if history was rewritten and he had been sitting in the panel in 2015.