Daubert Standard -

West Virginia

West Virginia generally applies a modified Daubert, knows as Daubert/Wilt.

In Wilt v. Buracker, the Supreme Court of Appeals of West Virginia indicated that “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. The trial court’s initial inquiry must consider whether the testimony is based on an assertion or inference derived from scientific methodology. Moreover, the testimony must be relevant to a fact at issue. Further assessment should then be made in regard to the expert testimony’s reliability by considering its underlying scientific methodology and reasoning. This includes an assessment of (a) whether the scientific theory and its conclusion can be and have been tested; (b) whether the scientific theory has been subjected to peer review and publication; (c) whether the scientific theory’s actual or potential rate of error is known; and (d) whether the scientific theory is generally accepted within the scientific community.” Syl. Pt. 2, Wilt v. Buracker, 191 W. Va. 39, 443 S.E.2d 196 (1993). Wilt has been cited as recently as March 23, 2020 as the authority for evaluating proffered expert testimony in West Virginia. See State v. Miles, No. 18-0043, 2020 WL 1487801 *3-4 (W. Va. Mar. 23, 2020).

The standard has been coined the Daubert/Wilt standard in Syl. Pt. 3, Gentry v. Magnum, 195 W. Va. 512, 466 S.E.2d 171 (1995). So far, the Daubert/Wilt test is only triggered if the testimony deals with “scientific knowledge,” which has been defined as “an inference or assertion [that] must be derived by the scientific method.” Syl. Pt. 6, Gentry v. Magnum, 195 W. Va. 512, 466 S.E.2d 171 (1995).

“To date, this Court has declined to adopt the current federal practice, as expressed in Kumho, of applying the Daubert/Wilt gatekeeper function to expert testimony based upon technical or other specialized knowledge. See, e.g., West Virginia Div. of Highways v. Butler, 205 W.Va. 146, 151–52 n. 4, 516 S.E.2d 769, 774–75 n. 4 (1999) (“We decline to adopt the Kumho analysis in this case.”). At this time, the majority declines to expressly address whether we will adopt the new federal procedure regarding expert testimony.” Watson v. Inco Alloys Intern., Inc., 209 W. Va. 234, 545 S.E.2d 294, n.11 (2001). In Watson, the Court determined that the proper analysis for proffered non-scientific expert testimony is conducted pursuant to Rule 702 of the West Virginia Rules of Evidence.

The Court declined to adopt Kumho as recently as 2016 in Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864, n. 58 (2016) (stating that “[e]ven 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.”).