West Virginia Expert Witness Rules: What Litigators Need to Know

Expert testimony is often central to civil litigation in West Virginia, particularly in medical malpractice, product liability, and toxic tort cases. The state has adopted procedural and evidentiary rules modeled after federal standards, requiring attorneys to manage expert disclosures, reports, and admissibility with precision. West Virginia follows the Daubert standard, meaning courts serve as gatekeepers to ensure that expert opinions are not only relevant but also grounded in reliable methodology.

Designation Requirements

West Virginia does not mandate a formal designation of experts by motion. Instead, disclosure is governed by Rule 26(b)(4) of the West Virginia Rules of Civil Procedure, and the timing and method are typically controlled by a scheduling order entered early in the litigation.

Parties must disclose:

• The identity of each expert expected to testify
• The subject matter of the expected testimony
• A summary of opinions and their basis
• Any written report, if required by the court

Disclosure is generally accomplished through responses to interrogatories or compliance with the court’s scheduling order. Failure to meet expert disclosure deadlines can result in exclusion under Rule 37(c)(1), particularly if the non-disclosure is not substantially justified or results in prejudice to the opposing party.

Expert Disclosure Process

Under W. Va. R. Civ. P. 26(b)(4), expert disclosures must be sufficiently detailed to allow opposing parties to evaluate and, if necessary, depose the expert. Required elements include:

• The substance of the expert’s opinions
• A summary of the facts and reasoning
• Supporting documents, literature, or test data
• The expert’s qualifications, including prior testimony
• Compensation arrangements

Although a full expert report is not required in all cases, the court may order one where the complexity of the issues or the nature of the expert testimony demands it. In medical malpractice cases, additional affidavit requirements apply, discussed below.

Required Declarations

While West Virginia does not universally require declarations or affidavits during the disclosure process, they are essential when supporting or opposing motions for summary judgment under Rule 56(e). Affidavits or declarations must:

• Be based on personal knowledge
• Present facts admissible in evidence
• Affirm the expert’s competence to testify

In medical professional liability actions, West Virginia law imposes a unique requirement under W. Va. Code § 55-7B-6, which mandates that plaintiffs serve a Notice of Claim and a screening certificate of merit from a qualified health care provider at least 30 days prior to filing suit. The certificate must outline the standard of care, how it was breached, and the causal link to the injury.

Failure to serve a proper certificate can result in dismissal with prejudice.

Fees and Compensation

Expert compensation in West Virginia is not statutorily capped. The party that retains the expert pays their fees, including for consulting time, report preparation, and testimony.

When an expert is deposed by the opposing side, Rule 26(b)(4)(C) provides that the party seeking the deposition must pay the expert a reasonable fee for the time spent in deposition. If the parties cannot agree on the rate, the court may intervene and determine what constitutes reasonable compensation.

Discovery Scope and Limitations

Under W. Va. R. Civ. P. 26(b)(4), the scope of expert discovery includes:

• The expert’s opinions and basis
• Documents reviewed or relied upon
• Prior expert reports or testimony
• Curriculum vitae and list of publications
• The terms of compensation

Parties are entitled to depose testifying experts, but not consulting experts who are not expected to testify unless the party can demonstrate exceptional circumstances, such as unavailability of equivalent information from other sources.

Draft reports and communications between counsel and expert may be shielded by the work-product doctrine, although the facts and data considered by the expert are discoverable.

Admissibility Standards

West Virginia follows the Daubert standard, codified in Rule 702 of the West Virginia Rules of Evidence. The state formally adopted this standard in Harris v. CSX Transportation, Inc., 753 S.E.2d 275 (W. Va. 2013), which replaced the state’s former Frye-Reed test.

Under Rule 702, expert testimony is admissible if:

1. The witness is qualified by knowledge, skill, experience, training, or education
2. The testimony is based on sufficient facts or data
3. The testimony is the product of reliable principles and methods
4. The expert has reliably applied those methods to the facts of the case

Trial courts serve as gatekeepers, responsible for assessing both reliability and relevance before allowing an expert to testify. Daubert hearings may be held to challenge the methodology, especially in cases involving novel science or technical fields.

Key Deadlines & Strategy Notes

Deadlines for expert disclosure are usually set in a Rule 16 scheduling order, and adherence is strictly enforced. While timelines vary by court, a typical structure includes:

• Plaintiff’s expert disclosures: 90–120 days before trial
• Defendant’s disclosures: 30–60 days after plaintiff’s
• Rebuttal disclosures: 30 days after defense disclosures
• Daubert motions: Filed before the close of discovery or pretrial conference

In medical negligence and toxic tort cases, early expert retention is essential. Not only must experts be qualified and available, but they must also be prepared to defend their methodologies during Daubert proceedings or risk preclusion at trial.

State-Specific Statutes & Local Rules

• W. Va. R. Civ. P. 26(b)(4): Expert witness discovery procedures
• W. Va. R. Civ. P. 56(e): Affidavit requirements for summary judgment
• W. Va. R. Evid. 702: Daubert standard for expert testimony
• Harris v. CSX Transp., Inc., 753 S.E.2d 275 (W. Va. 2013): Adopted Daubert standard
• W. Va. Code § 55-7B-6: Certificate of merit requirement in medical malpractice cases

Local court rules in counties such as Kanawha, Monongalia, and Cabell may impose additional scheduling expectations or expert report requirements. Attorneys should review judge-specific case management orders to ensure compliance with local procedures.