Virgin Islands Adopts Daubert Standard in Trip & Fall Case

The Daubert test for determining the reliability/admissibility of expert evidence is the standard applied under the Federal Rules of Evidence and at least 30 state evidentiary codes. Based upon the recent opinion of the Supreme Court of the Virgin Islands in Antilles School, Inc. v. Lembach, 2016 WL 948969 (V.I. 2016), we can now also add the U.S. Virgin Islands to Daubert the column.

In Lembach, Jamie Lembach

Antilles School in the Superior Court, asserting causes of action for negligence and premises liability. In his complaint, Lembach alleged that he attended a “Food Fair” at Antilles School on the night of January 28, 2012, and after exiting a taxi walked towards a dual-use pedestrian and vehicular bridge that went over a nine-foot deep natural gulley containing metal culverts. Lembach, who suffers from cataracts and was legally blind, tripped and fell, falling off the bridge and sustaining injuries that required his medical evacuation from St. Thomas to a hospital in West Palm Beach, Florida.

Before trial, Antilles School

filed a motion to preclude Lembach’s expert witness, Rosie Mackay, from testifying. In her expert report, Mackay stated that the International Building Code, the National Fire Protection Life Safety Code, the Occupational Safety and Health Administration regulations, the National Safety Council Accident Prevention Manual, and the Encyclopedia of Occupational Health and Safety were all “in agreement” that “any drop[-]off of more than 48 inches requires protective measures, installed to a height of 42 [inches] above walking level, and should be well lit during hours of darkness.” 

In denying this motion, the Superior Court

declined to apply the Daubert factors to this case….After considering case law from other jurisdictions, the Superior Court also determined that it is “reasonable and consistent with Virgin Islands public policy to apply the ‘general acceptance’ standard” adopted by Frye v. Unites States…,which Daubert had expressly overruled for practice in the federal courts.

The Supreme Court of the Virgin Islands disagreed, concluding that

In the 22 years since the United States Supreme Court issued Daubert, the overwhelming majority of state courts voluntarily abolished the Frye standard in favor of Daubert….Although “application of the Daubert approach to exclude evidence has been criticized as a misappropriation of the jury’s responsibilities,”…and for “necessitat[ing] that trial judges be ‘amateur scientists,’”…, we conclude that the Frye standard is even more problematic, since it is “unduly conservative” and the requirement of general acceptance ignores the historical truth “that scientific pioneers and dissenters are occasionally right.”…Importantly, while strict adherence to the Daubert framework may result in relevant expert testimony being wrongfully excluded, the Frye standard poses an even greater risk of evidence being unjustly excluded, since it may be “easily manipulated by courts when deciding whether or not to admit certain evidence” due to “[t]he lack of a definitional framework for [the key concepts under that test of] ‘field’ and ‘general acceptance.’”…Consequently, we join the vast majority of jurisdictions in holding that the more liberal Daubert standard should govern the admission of expert testimony in the Virgin Islands.

Daubert, of course, involves a more flexible approach, pursuant to which judges are to determine the reliability/admissibility of expert evidence by reference to factors such as

whether the opinion can be (and has been) tested, whether the theory or technique has been subjected to peer review and publication, what the known or potential rate of error is, and the existence and maintenance of standards controlling the technique’s operation.

-CM