Tuesday, April 14, 2015

More on Daubert

In Padula-Wilson v. Wilson, the Court of Appeals in an unpublished opinion by Judge Decker decided the appeal of a custody case between two lawyers.

Among other things, the Court held that the trial court erred by its reliance on the opinions of a non-testifying expert that were cited by a testifying expert, and by its explicit reliance on Daubert as the standard for the admissibility of expert testimony. Related to Daubert, the opinion cites Justice Kelsey's article, Virginia’s Answer to Daubert’s Question Behind the Question, 90 Judicature 68 (2006).

I don't recall another case that has made the point any more explicitly, that not only is Daubert not the law of Virginia, but also its use may be reversible error in Virginia state court, and was reversible error in that case.