Davis warns judges to stop excluding expert witnesses

By Steve Korris | Dec 7, 2007


CHARLESTON – Chief Justice Robin Davis of the West Virginia Supreme Court of Appeals has warned circuit judges to stop excluding expert witnesses.

"Trial courts should not exclude testimony by an expert until they have considered the nature of the evidence and the expert's qualifications," she declared in a Nov. 26 opinion.

"Wholesale exclusion of expert testimony is appropriate only when such evidence is determined to be 'junk science,'" she wrote.

Three times in November the Supreme Court of Appeals reversed circuit judges who had excluded doctors or limited their testimony.

The Justices found fault with decisions of former Justice Arthur Recht of Ohio County, Paul Zakaib of Kanawha County, and John Cummings of Cabell County.

Recht limited testimony of a doctor in a car crash trial, Zakaib excluded two doctors in a food poisoning claim against Wendy's International, and Cummings excluded a doctor in a medical malpractice case.

Davis crafted concurring opinions in all three cases, to clarify the role of trial judge as "gatekeeper" for experts.

In the Recht case, she wrote that a judge must first ascertain whether scientific knowledge would assist a jury in rendering a decision.

Second, she wrote, a judge must decide if a witness meets minimal qualifications by education or experience in the area on which he or she will testify.

She wrote, "Third, and finally, after the trial court has determined that the evidence at issue constitutes 'scientific knowledge' and that the proferred witness is qualified to testify as an expert, the trial court must decide whether such evidence is admissible."

The first requirement of admissibility, she wrote, is that the testimony must be both reliable and relevant.

Second, she wrote, a judge must assess the scientific evidence offered by an expert, "particularly the basis upon which the expert has relied in formulating his/her opinion."

She wrote, "Once a trial court has found that a witness is qualified to testify as an expert and that his/her testimony is reliable, the opposing party may discredit the expert's testimony through cross examination or contradictory evidence."

She wrote that jurors, not judges, determine credibility.

In a footnote Davis guided readers to an article she wrote in 2002 in the West Virginia Law Review, "Admitting Expert Testimony in Federal Courts and its Impact on West Virginia Jurisprudence."

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