West Virginia Supreme Court Ruling Appears to Rescind Daubert Standard

by Luke Lafferre

Late last year, the West Virginia Supreme Court of Appeals, appeared to rescind, or at least disregard, its line of cases that followed the federal Daubert standard for assessing the admissibility of scientific evidence.

The plaintiff in Harris v. CSX Transportation, Inc., 2013 W. Va. LEXIS 1285 (W. Va. Nov. 13, 2013), was alleged to have died from multiple myeloma contracted as a result of his workplace exposure to diesel exhaust.  Plaintiff’s counsel called experts Peter Infante, Ph.D., Lawrence Goldstein, Ph.D., and Brian Durie, M.D..  After a two-day hearing that focused not on the qualifications of the plaintiff’s experts nor on the methodology that should be followed to form an opinion on causation, but on whether these experts in this case followed the agreed-on methodology to form their opinions, the trial court found that they did not, and excluded them. Since the plaintiff was then without causation evidence, summary judgment was granted to CSXT.

Although the Supreme Court states in the body of the 4 to 1 majority opinion that “…the question before us is whether the trial court abused its discretion in concluding that the reliability prong of Rule 702 was not met,” the court stated in its official syllabus point to the opinion that “…we will review the circuit court’s method of conducting the analysis de novo,” which is what it did. The court’s opinion, which is not a model of clarity, asserts that the plaintiff’s experts followed appropriate methodology, and that “The only issue that was in dispute was whether Petitioner’s experts were correct in reaching the conclusions they reached. Challenging the latter issue is a matter for jury determination.”  The dissenting Justice caustically wrote, “By simplistically viewing the mere qualification as an expert as all that was necessary to get the opinions of these experts before the jury, the majority missed the mark.”