The Power of Expert Testimony in a Trial

Virginia (VA) Personal Injury Lawyers
Offices in VA Beach, Hampton & Elizabeth City, NC  

INTRODUCTION

Experts have become the center of attention in modern personal injury trials. The effectiveness and believability of their testimony frequently dictates the outcome of the trial. Accordingly, it is imperative that a personal injury trial lawyer understands the rules and strategies that should be utilized in preparing the "expert" portion of a personal injury case.

Because 95% of the automobile personal injury cases undertaken today settle before trial, thoughtful and careful expert witness selection is also important in convincing the other side of your case that you very well may prevail if they do not settle the case.

The issue of the use of experts in medical negligence cases is not the focus of this presentation. Indeed, that subject could take up a day long instructional session. Nevertheless, it is important for you to be aware of the fact that in 2006, the Virginia State Legislature enacted Section 8.01-20.1 of the Code of Virginia, which now requires that plaintiff's counsel have a "certificate of merit" signed and in hand prior to requesting service of process upon a health care provider. Failure to comply with this Code section will result in your case being dismissed, likely with prejudice.

WHEN IS EXPERT TESTIMONY APPROPRIATE?

As a general rule, two rules govern the admissibility of expert testimony. First, expert testimony has been held admissible when the subject matter of the inquiry was not within the range of common experience of the men and women who comprise the jurors in the case. If the average person would not be sufficiently knowledgeable in a given area to make informed judgments based upon factual information presented, expert testimony has been considered essential and, therefore, admissible.

Second, if the matter was within the common range of human knowledge and experience, expert testimony has been determined to be not admissible. Expert evidence is inadmissible on matters of common knowledge, or those as to which the jury are as well informed to form an intelligent and accurate opinion as is the witness.

The principles have been codified in Section 8.01-401.3 of the Code, which states as follows:

A. In a civil proceeding, if 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.

B. No expert or lay witness while testifying in a civil proceeding shall be prohibited from expressing an otherwise admissible opinion or conclusion as to any matter of fact solely because that fact is the ultimate issue or critical to the resolution of the case. However, in no event shall such witness be permitted to express any opinion which constitutes a conclusion of law.

C. Except as provided by the provisions of this section, the exceptions to the "ultimate fact in issue" rule recognized in the Commonwealth prior to enactment of this section shall remain in full force.

Paragraph B significantly broadens what expert testimony was admissible prior to its enactment by eliminating the "ultimate fact and issue" prohibition which existed before its enactment. However, it is still intended to prevent an expert from rendering "legal opinions."

Also, note that there is the common rule that expert testimony, even in cases where the subject is beyond the realm of common human knowledge, must meet certain fundamental requirements. It cannot be speculative or founded upon assumptions that have an insufficient factual basis. They will also be excluded if the expert has failed to consider all of the variables that bear upon the inferences to be deduced from the facts observed. If tests are involved, expert testimony will be excluded unless there is proof that the conditions existing at the time of the tests and at the time relevant to the facts at issue are substantially similar.

Thus, it should be abundantly clear that in many cases it is the lawyer's job to make sure the expert has all of the tools and all of the knowledge he or she needs to present an effective presentation for the jury and one which will withstand attacks by your adversary.

TYPES OF EXPERTS

In very general terms, in a personal injury case, there are two types of experts: treating healthcare providers and specially retained experts. Occasionally, these categories can overlap where the attorney refers the injured party to a healthcare provider for substantive care and treatment.

Many people view treating healthcare providers as factual witnesses. To an extent, this is true. However, if the healthcare provider is going to be asked by you to render opinion testimony regarding causation issues in your case, as well as medical necessity issues, it is clear that this constitutes opinion testimony and during that portion of his presentation, the healthcare provider becomes an expert witness.

Although it is usually not necessary for the attorney to provide a treating healthcare provider with a great deal of background information regarding how the accident happened and what the circumstances of the particular trauma were, in a recent automobile accident case, a Federal Magistrate Judge in Norfolk excluded the testimony of a treating physician because he had testified at his deposition that his opinions regarding causation were based upon the history he took from the patient alone. In addition, the treating physician was not aware of a number of prior traumas that the plaintiff had suffered. For these reasons, the magistrate judge ruled that the treating physician did not have a sufficient factual basis upon which to render causation testimony and excluded his testimony. Needless to say, this was fatal to the plaintiff's case.

Accordingly, out of an abundance of caution, if you are in federal court representing a personal injury plaintiff or your case is being vigorously defended on causation grounds by able counsel in state court, you should probably go the extra mile and feed any treating physician, whom you expect to use in establishing causation, additional information about how the accident occurred, such as the police accident report, witness statements, depositions and accident photographs. In addition, if your client has had prior traumas, surgeries or the like, it is important that this information be communicated to the treating physician who you expect to address causation issues.

Specially retained experts are certainly a horse of a different color than treating physicians. Effective selection and use of specially retained experts is an extraordinarily challenging task for the personal injury attorney. The first thing one must do is to determine what areas of your case require expert assistance.

The variety of experts that can be used in a personal injury case are endless. However, the ones most frequently seen, and the ones which you will have the most need for and experience with, are life care planners, economists, vocational rehabilitation experts and human factors experts. Remember that accident reconstruction is almost never admissible in Virginia, so this is an area where you will have to put little, if any, energy.

Other varieties of experts that can be quite helpful include grief experts, meteorologists, agronomists,

EXPERT DISCOVERY AND DISCLOSURE

Disclosure of the identity of experts and the opinions that they hold, as well as the bases upon which they have formulated their opinion, is largely controlled by Rule 4:1(4)(A). This Rule specifically provides that if requested to do so in interrogatories, a party is required to identify an expert witness who will testify at trial, state the subject matter on which the expert is expected to testify and state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The Rule goes on to give the parties permission to depose experts who have been so identified.

This Rule has taken on new significance in Virginia as a result of the increasing use of uniform pretrial scheduling orders. These orders are used in almost all personal injury case which are pending in circuit courts across the state and have deadlines within which the identity of experts and the opinions they hold must be revealed to your adversaries. Until recently, Rule 4:1(4)(A) did not receive a great deal of scrutiny from the courts. That all changed as a result of the case of Crane v. Jones. Crane is a 2007 Supreme Court of Virginia opinion which addressed the adequacy of a plaintiff's pretrial expert disclosure and dealt very harshly with the lawyers who had prepared a misleading and/or incomplete expert witness disclosure.

Crane was an asbestos case which, as many of you know, is largely driven by whose experts the jury believes. In the trial court, the defendant called two expert witnesses to testify on various scientific issues. The attorney representing the plaintiff knew both the experts quite well, had cross examined them in previous trials and deposed them on several occasions. Nevertheless, he objected to their being allowed to testify at trial regarding information that was not referred to in the defendant's expert witness disclosure. The trial court sustained the plaintiff's objections and excluded the testimony of the experts.

The Supreme Court affirmed the trial court's ruling stating "a party is not relieved from its disclosure obligation under the Rule simply because the other party has some familiarity with the expert witness or the opportunity to depose the expert. Such a rule would impermissibly alter a party's burden to disclose and impose an affirmative burden on the nondisclosing party to ascertain the substance of the expert's testimony."

The opinion is surprising because counsel for the plaintiff was not surprised in the least by either of the experts called by the defense. However, it certainly stands for the proposition that one must be extremely careful, and more importantly, thorough, in preparing expert witness disclosures for specially retained experts.

How can you identify a top Virginia injury lawyer for your case? Look no further.

Our VA personal injury lawyers have been selected for many accolades.

Two of the attorneys with our Virginia Beach accident injury law firm, James Lewis and Rick Shapiro, have been named the Best Lawyers in America since 2008. Two of our VA injury lawyers -- Lewis and Shapiro - have been named to Virginia Super Lawyers for Personal Injury since 2010. In addition, Lewis and Shapiro have been selected for inclusion in the National Million Dollar Advocates Forum since 2009. 

Our VA accident injury law firm was the first in the commonwealth nvited to join Primerus, a select group of highly ethical and respected law firms. Rick Shapiro was named as one of the Top 100 Injury Lawyers in Virginia by the National Trial Lawyers Association.

In October, 2000 our law firm and co-counsel obtained what was then the largest verdict in Virginia's history for an injured person. Our brain damaged client received an initial award of $46 million that rose to $60 million with interest when the defendant abandoned an appeal and agreed to settle. 

Geographical Areas

Our personal injury lawyers handle personal injury cases throughout the eastern USA, and work closely with lawyers in other states on signficant injury cases.

In Virginia, this includes Norfolk, Virginia Beach, Chesapeake, Portsmouth, Hampton, Newport News, Suffolk, Richmond, Petersburg, Roanoke, Salem, Alexandria, Arlington, Fairfax, Fredericksburg, Charlottesville, Ashland, Big Stone Gap, and every community on the Eastern Shore, including Accomack, Onancock, Chincoteauge, Wachapreague, and Cape Charles, Bloxom, Eastville, Exmore, Greenbackville, Machipongo, Mappsville, Melfa, Nassawadox, Onley, Tangier, Temperanceville, Wachapreague and Wallops Island.

In West Virginia, we can handle personal injury claims in Bluefield, Beckley, Bridgeport, Charles Town, Charleston, Fairmont, Huntington, Lewisburg, Madison, Martinsburg, Morgantown, Moundsville, Parkersburg, Ripley, Sutton, Weirton, Wheeling and any other town or county.

Injury Lawyers licensed in VA, WV, North Carolina (NC), South Carolina (SC), Kentucky (KY), Florida (FL) and Washington, DC.

 

Virginia Beach, VA Personal Injury Attorneys
Virginia (VA) Personal Injury Lawyers
Specializing in Virginia Wrongful Death & Injury Law