Editor’s Note: this blog post has since been superseded by new events. To see a discussion of the new events, please click here.
The other month, the Virginia Supreme Court issued an opinion that could have potentially significant implications for the use of expert witnesses in estate litigation matters. The ruling appears to bring Virginia law closer to the federal Daubert standard for the admissibility of expert witness testimony.
First some background: In 1993, the United States Supreme Court ruled in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) that the then-current test for the admissibility of expert testimony (the “Frye general acceptance test”) has been superseded by the adoption of Rule 702 of the Federal Rules of Evidence. As a result, in assessing whether expert testimony should be admitted, the determining factor for federal courts is no longer whether the evidence has gained general acceptance in the particular field to which it belongs (as the Frye general acceptance test held); rather, a new standard consistent with Rule 702 should be applied. While a full discussion of the Daubert standard is far beyond the scope of this blog post (there have been dozens of articles written discussing it in length), in short, the Daubert standard requires a court to serve a “gatekeeping function” to ensure that expert opinions are based on “scientific knowledge,” and to exclude any testimony that is found not to satisfy such an inquiry. Pursuant to Daubert, in order for an opinion to “qualify as ‘scientific knowledge,’ an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation – i.e., ‘good grounds,’ based on what is known. In short, the requirement that an expert’s testimony pertain to ‘scientific knowledge’ establishes a standard of evidentiary reliability.” Id. at 590.
While a sizable number of states have adopted the Daubert standard, some states have explicitly rejected such, and have instead retained the Frye standard. Virginia has never explicitly adopted the Daubert standard, nor rejected it. Instead, a series of judicial rulings have developed a standard for the admissibility of expert testimony which is similar in some respects to the Daubert standard, but different in other respects (note that several years ago, Virginia recently adopted Rules of Evidence for the first time, the adoption of which explicitly retained the prior caselaw [See Virginia Rule of Evidence 2:102]).
Against this background, the Virginia Supreme Court recently issued its ruling in Hyundai Motor Company v. Duncan, 766 S.E.2d 893 (2015) which cited the United States Supreme Court case of General Elec. Co. v. Joiner, 522 U.S. 136 (1997). General Elec. Co. is significant because it interpreted Daubert and expanded on its holding. The Virginia Supreme Court in turn justified its citation of General Elec. Co. by noting that that case was decided under the version of Rule 702 of the Federal Rules of Evidence that the Virginia General Assembly adopted, verbatim, in Virginia Code Section 8.01-401.3(A) (which serves as the basis for several Virginia rules of evidence). In short, by citing one of the key rulings in the progeny of Daubert, the Virginia Supreme Court appears to have indicated that Daubert and its progeny are authoritative sources of law governing the admissibility of expert testimony in Virginia state court proceedings.
The implications to the legal practitioner are potentially significant. Attorneys will likely want to draw on the formidable body of caselaw developed by Daubert and its progeny in support of motions to strike expert testimony, and motions in limine to exclude such.
But questions remain. First, the Virginia Supreme Court did not explicitly adopt the Daubert standard. This raises the question of to what extent Daubert and its progeny are authoritative in Virginia state court. Second, Federal Rule of Evidence 702 was amended in 2011, thereby calling into question to what extent attorneys should cite post-2011 Daubert-line decisions in Virginia state court, since the Virginia Supreme Court noted in Hyundai Motor Company that the Virginia General Assembly adopted Virginia Code Section 8.01-401.3(A) verbatim based off the old pre-2011 Federal Rule 702. It will be interesting to see how these issues develop.
For our purposes relating to estate litigation, estate litigators appear to have a new line of caselaw to use to attack the admissibility of expert testimony in the context of estate disputes. The most commonly used experts in estate disputes are doctors, appraisers, and handwriting experts.
Doctors are often called as experts to testify in cases where one party alleges that a person lacked testamentary capacity at the time of execution of a will or trust. While doctors are, for the most part, precluded from offering their opinion on the precise issue as to whether a person had adequate testamentary capacity (there are numerous reasons for why this is, which I’ll discuss in a future blog post), in many instances doctors are permitted to testify to the person’s physical and mental condition near in time to the will signing, based on the doctor’s review of the person’s medical records and (where applicable) his treatment of the person.
In disputes relating to valuing assets of an estate, appraisers are often called to testify as to the valuation of items of personal property. And in circumstances involving a dispute over whether a signature to a will or trust is valid (or whether a holographic will was truly drafted by the person that one of the parties claims drafted it), handwriting experts will often be called to testify to support or oppose the contention that a signature or document was in fact signed or written by a person.
Depending upon the adequacy of the opposing party’s expert witness disclosure, and the expert’s deposition testimony, estate litigation attorneys frequently move to strike an opposing expert on the basis that his opinions are outside of the area of the expert’s expertise, that they invade the province of the jury, that they are unreasonably speculative, that they are based on assumptions that lack a factual basis, that the expert failed to consider all of the applicable variables in formulating his opinion, etc. In light of the Hyundai Motor Company ruling, estate litigators in Virginia now have a new line of cases available to cite in support of motions to exclude an opposing party’s expert witnesses.