Supreme Court Addresses Standards for Expert Testimony

Published on: 1/26/2005

January 26, 2005

Experts are the linchpin of virtually every malpractice trial. Equally important are treating physicians who, though not "hired experts," are experts nevertheless. Exclusion of an expert can destroy a case, whether it be yours or the plaintiff's. On January 14, 2005, the Supreme Court of Virginia issued three opinions addressing the admissibility of expert testimony and providing guidance as to what constitutes an expert opinion, who is qualified to give it, and under what circumstances an opinion lacks any value.


In Pettus v. Gottfried, the Court explored the distinction between "fact" and "opinion" when treating physicians testify at trial. The plaintiff in Pettus claimed that a gastroenterologist failed to diagnose a pending heart attack, leading to death. The patient's treating cardiologist testified that at the time he treated the patient, the patient was experiencing mental disorientation which the cardiologist felt could have been due to a central nervous system event, rather than a heart attack. The Court held that this statement was factual in nature, and therefore not an expert opinion, because it served to explain the impressions and conclusions the cardiologist reached at the time he was treating the patient . Because the cardiologist was not stating a "present-day" opinion, the Court held that the statement did not have to be given to a reasonable degree of medical certainty. Similarly, testimony by a treating emergency room physician regarding the decision to admit or discharge the patient several days earlier was factual in nature because it served to explain the ER physician's treatment plan and the impressions he formed at the time he was treating the patient. In highlighting the distinction between "fact" and "opinion," the Court pointed to another statement by the cardiologist that it was difficult to know what happened to the patient because no autopsy was done. The Court held that this was a "present-day" opinion and not a statement of impressions formed during treatment, therefore it was inadmissible. The Pettus decision stands for the proposition that an "opinion" formed by a treater at the time of treatment becomes a historical "fact" for trial purposes and, as such, is admissible, provided the opinion was memorialized in the medical record.


In Hinkley v. Koehler, the Supreme Court reversed a defense verdict and reiterated that only physicians with an active clinical practice within one year of the alleged negligence can give standard of care opinions. The Court held that the defendant's expert obstetrician was not qualified to render expert opinions because he had ceased "hands-on delivering obstetrics" roughly three years before the incident in question. Although the expert had 33 years of clinical experience, taught obstetrics to residents at George Washington University, performed consults for other obstetricians, and recently was asked to serve on the editorial board of a journal on obstetrics and gynecology, the Court found that he did not "evaluate, manage, or treat problems in pregnancies in the context of direct patient care" within a year of the delivery at issue. Accordingly, he did not have an "active clinical practice" in the defendant's specialty, or even a related field of medicine, therefore his testimony should not have been admitted at trial. The Hinkley decision reminds us that even "gurus" in a given field, though impressive on paper, can fail to qualify notwithstanding excellent credentials if they do not actively, clinically treat patients during the pertinent time frame.


Finally, in Vasquez v. Mabini, the Court underscored that expert testimony based upon assumptions with no basis in fact are inadmissible. In Vasquez , the plaintiff relied upon an expert economist to calculate future lost wages of his deceased wife, who had relocated to Virginia three months before her death and was employed as a part-time clerk. The expert based his conclusions on the assumption that the decedent would have found full-time employment the day after her accident, that this job would provide annual raises of 4.25% and fringe benefits including a 401k plan, and that the decedent's dependent adult son would live with her for another 24 years even though the son died six months after the decedent. The Court ruled that damages estimates based entirely on statistics and assumptions are speculative and inadmissible. The Vasquez decision should prove useful in challenging the opinions of life care planners and economists in cases with low medical expenses but large lost wage claims.