655 S.E.2d 126
In this case, the majority correctly determined that Mr. Jones's expert witness,
Dr. Sheptak, should have been permitted to testify and that the circuit court erred by refusing
his testimony. I write separately to address two matters. First, although the majority
correctly found that Dr. Sheptak should have been permitted to testify, the majority
incorrectly limited his testimony to exclude any reference to “biomechanics,” and from that
ruling, I respectfully dissent. Insofar as Dr. Sheptak was qualified as a neurosurgeon to
render expert testimony in this case, he should have been permitted to offer an opinion as to
the neurological effects, if any, of the underlying accident vis-a-vis the injuries which Dr.
Naum has attributed thereto. I write further to touch upon a recurrent issue arising in the
circuit courts of this State: the automatic exclusion of expert witness testimony even though
the expert is qualified to render such an opinion and the expert's testimony is admissible. See San Francisco v. Wendy's Int'l, Inc., ___ W. Va. ___, ___ S.E.2d ___ (No. 33284 Nov. 21,
2007) (Davis, C.J., concurring) (commenting on exclusion of testimony of expert witnesses). Cf. Walker v. Sharma, ___ W. Va. ___, ___ S.E.2d ___ (No. 33308 Nov. 8, 2007) (Davis,
C.J., concurring) (emphasizing that once trial court has found expert qualified to testify,
determination of weight to be afforded to expert's testimony rests within province of fact
finder). Given the pervasiveness of this problem, a clarification of the circuit courts'
“'gatekeeper' role,” Syl. pt. 4, in part, Gentry v. Mangum, 195 W. Va. 512, 466 S.E.2d 171
(1995), is in order.
Rule 702 of the West Virginia Rules of Evidence authorizes testimony by
expert witnesses. Specifically, “[i]f 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.” Id. See also W. Va. R. Evid. 703
(explaining “[b]ases of opinion testimony by experts”); W. Va. R. Evid. 705 (discussing
“[d]isclosure of facts or data underlying expert opinion”); W. Va. R. Evid. 706 (permitting
“[c]ourt appointed experts”). It is apparent, then, that Rule 702 requires a trial court to make
three threshold determinations: (1) whether “scientific . . . knowledge” (See footnote 1) would be instructive
to rendering a decision in the case, (2) whether the proffered witness is qualified to render
an opinion as an expert witness, and (3) whether the expert witness's testimony is admissible.
First, the trial court must ascertain whether “scientific knowledge” would assist
the trier of fact in rendering a decision in the case. With respect to this first inquiry, we have
explained the term “scientific knowledge,” as used in Rule 702, in the following manner:
“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.
Syl. pt. 6, in part, Gentry v. Mangum, 195 W. Va. 512, 466 S.E.2d 171. Moreover,
[i]n determining whether the testimony will assist the trier of fact, a circuit court is required to make a common sense inquiry into “whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in [the] dispute.”
Gentry, 195 W. Va. at 528, 466 S.E.2d at 187 (quoting Mason Ladd, Expert Testimony, 5
Vand. L. Rev. 414, 418 (1952)).
The second inquiry requires the trial court to determine whether the proffered
witness is qualified as an expert. To assist trial courts in determining whether a witness
should be qualified as an expert, we have adopted a list of factors that should be considered
when conducting a Rule 702 analysis:
In determining who is an expert, a circuit court should conduct a two-step inquiry. First, a circuit court must determine whether the proposed expert (a) meets the minimal educational or experiential qualifications (b) in a field that is relevant to the subject under investigation (c) which will assist the trier of fact. Second, a circuit court must determine that the expert's area of expertise covers the particular opinion as to which the expert seeks to testify.
Syl. pt. 5, Gentry v. Mangum, 195 W. Va. 512, 466 S.E.2d 171. Accord Cargill v. Balloon
Works, Inc., 185 W. Va. 142, 146, 405 S.E.2d 642, 646 (1991) (per curiam) (observing that
an “expert witness [may be] qualified by knowledge, skill, experience, training, or education”
(emphasis added)). See also Gentry, 195 W. Va. at 525 n.18, 466 S.E.2d at 184 n.18
(“Neither a degree nor a title is essential, and a person with knowledge or skill borne of
practical experience may qualify as an expert[.]”).
Third, and finally, after the trial court has determined that the evidence at issue
constitutes “scientific knowledge” and that the proffered witness is qualified to testify as an
expert, the trial court must decide whether such evidence is admissible. Syl. pt. 6, in part, Gentry, 195 W. Va. 512, 466 S.E.2d 171 (“The question of admissibility . . . only arises if
it is first established that the testimony deals with 'scientific knowledge.'” (citations
omitted)). The initial inquiry regarding admissibility is whether the proffered testimony is
both reliable and relevant:
The first and universal requirement for the admissibility of scientific evidence is that the evidence must be both “reliable” and “relevant.” Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Wilt v. Buracker, 191 W. Va. 39, 443 S.E.2d 196 (1993), cert. denied, [511] U.S. [1129], 114 S. Ct. 2137, 128 L. Ed. 2d 867 (1994), the reliability requirement is met only by a finding by the trial court under Rule 104(a) of the West Virginia Rules of Evidence that the scientific or technical theory which is the basis for the test results is indeed “scientific, technical, or specialized knowledge.” The trial court's determination regarding whether the scientific evidence is properly the subject of scientific, technical, or other specialized knowledge is a question of law that we review de novo. On the other hand, the relevancy requirement compels the trial judge to determine, under Rule 104(a), that the scientific evidence “will assist the trier of fact to understand the evidence or to determine a fact in issue.” W. Va. R. Evid. 702. Appellate review of the trial court's rulings under the relevancy requirement is under an abuse of discretion standard. State v. Beard, 194 W. Va. 740, 746, 461 S.E.2d 486, 492 (1995).
Syl. pt. 3, Gentry, 195 W. Va. 512, 466 S.E.2d 171. See also Syl. pt. 4, Gentry, 195 W. Va.
512, 466 S.E.2d 171 (“When scientific evidence is proffered, a circuit court in its
“gatekeeper” role under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113
S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Wilt v. Buracker, 191 W. Va. 39, 443 S.E.2d 196
(1993), cert. denied, [511] U.S. [1129], 114 S. Ct. 2137, 128 L. Ed. 2d 867 (1994), 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.”). Cf. Syl. pt. 4, San Francisco v. Wendy's Int'l, Inc., ___ W. Va. ___, ___ S.E.2d ___
(No. 33284 Nov. 21, 2007) (“Because the summary judgment process does not conform well
to the discipline and analysis that Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) and Wilt v. Buracker, 191 W. Va. 39, 443
S.E.2d 196 (1993) impose, the Daubert/Wilt regime should be employed only with great care
and circumspection at the summary judgment stage. Courts must be cautious _ except when
defects are obvious on the face of a proffered expert opinion _ not to exclude debatable
scientific evidence without affording the proponent of the evidence adequate opportunity to
defend its admissibility. Given the plain language of the West Virginia Rules of Evidence,
the side trying to defend the admission of expert evidence must be given an adequate chance
to do so.”).
Additionally, the trial court also must assess the particular scientific evidence
offered by the expert witness, particularly the basis upon which the expert has relied in
formulating his/her opinion:
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 the 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). Cf. Syl. pt. 1, Wilt, 191
W. Va. 39, 443 S.E.2d 196 (“Under Rule 702 of the West Virginia Rules of Evidence, there
is a category of expert testimony based on scientific methodology that is so longstanding and
generally recognized that it may be judicially noticed and, a trial court need not ascertain the
basis for its reliability.”).
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. See Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 596, 113 S. Ct. 2786, 2798, 125 L. Ed. 2d 469, 484 (1993) (“Vigorous
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.”); Gentry, 195 W. Va. at 525-26, 466 S.E.2d at 184-85 (same). See also Watson
v. Inco Alloys Int'l, Inc., 209 W. Va. 234, 243-44, 545 S.E.2d 294, 303-04 (2001) (“'“Once
a witness is permitted to testify, it is within the province of the jury to evaluate the testimony,
credentials, background, and qualifications of the witness to address the particular issue in
question. The jury may then assign the testimony such weight and value as the jury may
determine.”'” (quoting West Virginia Div. of Highways v. Butler, 205 W. Va. 146, 152, 516
S.E.2d 769, 775 (1999) (quoting Cargill v. Balloon Works, Inc., 185 W. Va. at 147, 405
S.E.2d at 647))). Cf. Syl. pt. 3, Walker v. Sharma, ___ W. Va. ___, ___ S.E.2d ___ (No.
33308 Nov. 8, 2007) (“Following a trial court's decision that a physician is qualified to offer
expert testimony in a given field, issues that arise as to the physician's personal use of a
specific technique or procedure to which he or she seeks to offer expert testimony go only
to the weight to be attached to that testimony and not to its admissibility.”). The fact finder
then may determine whether or not the expert is credible. This credibility determination is
one to be made by the finder of fact, not by the trial court. See Syl. pt. 4, in part, Mayhorn
v. Logan Med. Found., 193 W. Va. 42, 454 S.E.2d 87 (1994) (“The jury, and not the trial
judge, determines the weight to be given to the expert's opinion.”).
The foregoing analysis sets forth the detailed inquiry trial courts are required
to conduct when a party offers scientific evidence through the testimony of an expert witness.
Trial courts should not exclude testimony by an expert until they have considered the nature
of the evidence and the expert's qualifications in accordance with these factors; credibility
determinations rest with the fact finder, not the trial court. Wholesale exclusion of expert
testimony is appropriate only when such evidence is determined to be “junk science.” See Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1321 n.18 (9th Cir. 1995) (observing
that “the two prongs of Rule 702 work in tandem to ensure that junk science is kept out of
the . . . courtroom”); Gentry, 195 W. Va. at 526, 466 S.E.2d at 185 (same). Otherwise, expert
testimony is presumptively admissible unless application of the three threshold factors
requires a contrary conclusion. “Rule 702 adopts a liberal stance on admitting expert
testimony and favors admissibility[.]” Wilt, 191 W. Va. at 53, 443 S.E.2d at 210 (Neely, J.,
concurring). In other words, “there is no 'best expert' rule. Because of the 'liberal thrust'
of the rules pertaining to experts, circuit courts should err on the side of admissibility.” Gentry, 195 W. Va. at 525, 466 S.E.2d at 184 (citation omitted). See also McDougal v.
McCammon, 193 W. Va. 229, 236, 455 S.E.2d 788, 795 (1995) (“Under Rule 401 [of the
West Virginia Rules of Evidence], evidence having any probative value whatsoever can
satisfy the relevancy definition. Obviously, this is a liberal standard favoring a broad policy
of admissibility.”).
Despite our prior holdings instructing trial courts on the procedure to follow
to determine the admissibility of expert testimony, the trial court in this case did not conduct
such an analysis but rather prohibited the expert from testifying in toto. Applying the
foregoing standards to the case sub judice, it is apparent that the first prong of the above-
described analysis has been met insofar as the evidence Mr. Jones sought to introduce
through his expert, Dr. Sheptak, is both scientific in nature and would assist the trier of fact
in rendering a determination of the case. Through Dr. Sheptak, a neurosurgeon, Mr. Jones
sought to establish the extent to which the injuries that Dr. Naum contended had resulted
from his accident with Mr. Jones were likely attributable thereto. Thus, this evidence goes
directly to the issue of causation.
Moreover, the parties do not dispute that, pursuant to the second inquiry, Dr.
Sheptak is qualified to testify as an expert witness in this case. The only dispute that the
parties had as to Dr. Sheptak's qualifications concerned the subject matter about which he
was qualified to testify. Under the third factor regarding the admissibility of the expert's
testimony, the majority delineated between those matters about which Dr. Sheptak would be
permitted to testify, i.e., neurological findings and conclusions, and those matters about
which he would not be permitted to testify, i.e., opinions as to the “biomechanics” of the
underlying accident and the effects thereof. I disagree with this demarcation. Rather, as a
neurosurgeon qualified to render an opinion in this case about Dr. Naum's neurological
injuries, if any, resulting from his underlying accident with Mr. Jones, Dr. Sheptak should
have been permitted to testify as to whether, in his expert opinion, the injuries that Dr. Naum
attributed to said accident were, in Dr. Sheptak's opinion, actually caused by that accident
or whether Dr. Naum's ailments were the result of another cause or causes.
In summary, because the majority properly considered the nature of the
evidence and the expert's qualifications to determine that Dr. Sheptak should be permitted
to testify, I concur in the majority's decision to grant as moulded the requested writ of
prohibition. However, I respectfully dissent from that portion of the majority's opinion
prohibiting Dr. Sheptak from testifying as to matters deemed by the majority to constitute
“biomechanics.”