Virginia's Blog 702 correspondent speaks

Three opinions decided today involve the use of expert testimony in civil cases in Virginia.

In Vasquez v. Mabini, the Virginia Supreme Court concluded that the testimony of an expert witness in a wrongful death case should have been excluded because of its unreliability. The expert gave testimony based on assumptions that the decedent (who in life never made more than $7,000 in a year) would get a job paying at least $16,000 per year, get a 401(k) savings plan, get a bunch of raises, and so on.

The Court explained:

"We have never, however, construed [Va. Code 8.01-401.1] to permit the admission of expert testimony that lacks evidentiary support. . . . Estimates of damages based entirely on statistics and assumptions are too remote and speculative to permit 'an intelligent and probable estimate of damages.' . . . . Expert testimony founded upon assumptions that have no basis in fact is not merely subject to refutation by cross examination or by counter-experts; it is inadmissible. . . . Furthermore, expert testimony is inadmissible if the expert fails to consider all the variables that bear upon the inferences to be deduced from the facts observed."

Analyzing the expert's conclusions that the decedent would have obtained full-time work, what it would have paid, what raises she would have obtained, were all not based in fact, even where they involved otherwise valid statistics. The Court concluded:

"Because the expert testimony was based upon fictional assumptions not supported by the evidence, it was speculative and unreliable as a matter of law and should have been stricken."

In Pettus v. Gottfried, the Virginia Supreme Court concluded that the trial court erred in a medical malpractice case by allowing into evidence the testimony of the decedent's treating physicians on matters of opinion, without expressing whether the conclusions offered were to a reasonable degree of medical certainty as required by Va. Code 8.01-399. Under the statute, "when a party seeks at trial to admit evidence of a treating physician’s diagnosis, such evidence is admissible only if it is offered to a reasonable degree of medical probability."

In Hinkley v. Koehler, the Supreme Court held that the one year requirement for an expert witness to testify as to the standard of care in a medical malpractice case under Va. Code 8.01-581.20 was not met by a witness who had not really seen any patients in that time, and his work as a teacher and consultant was not a substitute for the requirement of "active clinical practice."