Shortly after we recently posted our 50-state survey of state law concerning expert “gatekeeping,” we received a thoughtful email from friend-of-the-Blog Tom Hurney, of Jackson Kelly, informing us that there were additional gatekeeping-related issues in West Virginia that our search – limited to cases using the word “gatekeeping” – did not reflect. His email was sufficiently detailed that we invited Tom to prepare a guest post on the subject. He agreed, and here it is. As always our guest bloggers deserve 100% of the credit (and any blame) for their efforts.

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In the “50-State Survey of State Court Decisions Supporting Expert-Related Judicial Gatekeeping,” the Drug & Device Law Blog (the Best Blog on the Planet) describes West Virginia as a “gatekeeper” state because of cases reflecting adoption of the Daubert analysis of W. Va. R. Evid. 702 by the Supreme Court of Appeals of West Virginia.  But while the Great, Wild, and Wonderful State of West Virginia indeed adopted Daubert in late 1993, declaring its circuit judges “gatekeepers” under W. Va. R. Evid. 702, that role and analysis was limited to scientific evidence in the case law.  Then, in 2014 the Court amended Rule 702 from mirroring its federal counterpart to expressly limiting the Daubert admissibility analysis to “novel scientific theory, principle, methodology, or procedure.”  Thus, while the Blog correctly celebrates West Virginia judges as Rule 702 gatekeepers, their role is narrower and the gate perhaps wider than elsewhere.

The Supreme Court of Appeals of West Virginia moved from the Frye test to Daubert in Wilt v. Buracker, 443 S.E.2d 196, 198 (W. Va. 1993).  Noting W. Va. R. Evid. 702 was (at the time – more on this below) identical to the Federal Rule, the Court stated “we believe that Daubert is directed at situations where the scientific or technical basis for the expert testimony cannot be judicially noticed and a hearing must be held to determine its reliability. We conclude that Daubert’s analysis of Federal Rule 702 should be followed in analyzing the admissibility of expert testimony under Rule 702 of the West Virginia Rules of Evidence (italics added).”  The Court applied the new Wilt/Daubert standard to find that expert psychological and economic testimony on “hedonic damages” – ginning up a psychological percentage and putting a dollar figure on loss of enjoyment of life – and held “[t]he loss of enjoyment of life resulting from a permanent injury is part of the general measure of damages flowing from the permanent injury and is not subject to an economic calculation.” 

As the Blog noted, later cases affirmed the gatekeeping role.  “The [procedural] regime contemplates that trial judges will perform a gatekeeping function, determining whether the . . . methodology underlying proffered expert testimony is scientifically valid and whether that . . . methodology properly can be applied to the facts in issue.”  Harris v. CSX Transportation, Inc., 753 S.E.2d 275, 305 (W. Va. 2013) (citation and quotation marks omitted).  “We . . . impose[] a ‘gatekeeper’ duty upon trial courts to screen scientific expert opinions to ensure relevancy and reliability.”  Anstey v. Ballard, 787 S.E.2d 864, 880 (W. Va. 2016).  In West Virginia, “a trial court has a gatekeeper obligation to screen scientific expert opinions for admissibility.”  State v. Surbaugh, 786 S.E.2d 601, 609 (W. Va. 2016).

When scientific evidence is proffered, a circuit court in its gatekeeper role . . . must engage in a two-part analysis in regard to the expert testimony.  First, the circuit court must determine whether the expert testimony reflects scientific knowledge, whether the findings are derived by scientific method, and whether the work product amounts to good science.  Second, the circuit court must ensure that the scientific testimony is relevant to the task at hand.

San Francisco v. Wendy’s International, Inc., 656 S.E.2d 485, 493 (W. Va. 2007) (citation omitted).  In exercising its role as evidentiary “gatekeeper” confronting scientific testimony, court must make a preliminary determination of “whether the reasoning or methodology underlying the testimony is scientifically valid” before the jury may receive it.  State ex rel. Weirton Medical Center v. Mazzone, 584 S.E.2d 606, 611 (W. Va. 2003) (citation and quotation marks omitted); see also State v. Lockhart, 542 S.E.2d 443, 450 (W. Va. 2000) (trial court, as gatekeeper, must determine “whether expert scientific testimony reflects scientific knowledge, whether the findings are derived by scientific method, and whether the work product amounts to good science”).

But despite the language from Daubert quoted in Wilt about the “scientific or technical basis for the expert testimony,” a close read of these cases shows the Supreme Court discussed gatekeeping Wilt/Daubert in relation to expert “scientific” testimony; not all expert testimony.  Indeed, the Supreme Court made it clear that the “Wilt/Daubert” analysis does not apply outside of “scientific knowledge” in Gentry v. Mangum, 466 S.E.2d 171, 174 (W. Va. 1995) (internal citations omitted):  

The question of admissibility under Daubert v. Merrell Dow Pharmaceuticals, Inc., and Wilt v. Buracker, only arises if it is first established that the testimony deals with “scientific knowledge.” “Scientific” implies a grounding in the methods and procedures of science while “knowledge” connotes more than subjective belief or unsupported speculation. In order to qualify as ‘scientific knowledge,’ an inference or assertion must be derived by the scientific method. It is the circuit court’s responsibility initially to determine whether the expert’s proposed testimony amounts to “scientific knowledge” and, in doing so, to analyze not what the experts say, but what basis they have for saying it.

Gentry reversed the circuit court’s application of the Daubert/Wilt analysis to exclude the testimony of an expert on “police practice, customs, and safety standards” because “[t]he proffered testimony … does not present the kind of ‘junk science’ problem that Daubert/ Wilt meant to address.”  The Court left challenging the basis of non-scientific evidence to cross examination under Daubert’s “shaky but admissible” test: “Disputes as to the strength of an expert’s credentials, mere differences in the methodology, or lack of textual authority for the opinion go to weight and not to the admissibility of their testimony. Daubert, 509 U.S. at 596 (“[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence…”) (citation shortened; italics added).

In Watson v. Inco Alloys Intern., Inc., 545 S.E.2d 294 (W. Va. 2001), the Court expressly declined to follow Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137 (1999), which expanded the Daubert analysis under Fed. R. Evid. 702 to all expert testimony.  “[W]e hold that unless an engineer’s opinion is derived from the methods and procedures of science, his or her testimony is generally considered technical in nature, and not scientific. Therefore, a court considering the admissibility of such evidence should not apply the gatekeeper analysis set forth by this Court in Wilt v. Buracker, … and Gentry v. Mangum, … (citations omitted).” 

Then, in 2014, the Court amended W. Va. R. Evid. 702 with the comment “Rule 702 is a modified version of its federal counterpart. The revised rule applies existing case law that requires expert testimony based upon novel scientific theories to be evaluated by the trial court exercising its ‘gatekeeper’ function.”  This handy chart compares the two Rules:

West Virginia Rule 702

Federal Rule 702

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. In addition to the requirements in subsection (a), expert testimony based on a novel scientific theory, principle, methodology, or procedure is admissible only if: the testimony is based on sufficient facts or data; the testimony is the product of reliable principles and methods; and the expert has reliably applied the principles and methods to the facts of the case. (bold added)

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

This doesn’t mean that experts can say anything in West Virginia.  Experts must be qualified and have an appropriate basis for opinions.  See, Otto v. Catrow L. PLLC, 850 S.E.2d 708, 715 (W. Va. 2020) (“[W]e cannot say that the circuit court abused its discretion in disregarding plaintiff’s [legal malpractice] expert opinion on the applicable standard of care” where the expert “possessed no knowledge whatsoever with respect to West Virginia law or the standards and actions routinely followed by real estate practitioners in the state.”)  But the gatekeeper admissibility analysis under W. Va. R. Evid. 702 applies to “novel scientific theory, principle, methodology, or procedure.”  See, Anstey v. Ballard, 787 S.E.2d 864, 881 (W. Va. 2016) (“Even today, the admissibility of the State’s expert testimony would be assessed under Rule 702 of the West Virginia Rules of Evidence as evidence based on technical or specialized knowledge—and not under Daubert/Wilt.”)

It does mean that West Virginia’s analog to Rule 702 has been moving away from, rather than towards, the current federal version.