Brien Roche Law-01

Personal Injury Twelve Week Expert

Personal Injury Twelve Week Expert
Brien Roche

I like to call them the “twelve week experts”.  They are so common among defense medical doctors that I think they deserve that name.  These doctors testify for the defense.  Their testimony is much the same from case to case.  Essentially what they say is that the plaintiff suffered an injury.  However the injury was minor.  Their injury deserved no more than 12 weeks of treatment.  The plaintiff should have recovered after 12 weeks.

The question then becomes as to whether or not that testimony is admissible.

Personal Injury Twelve Week Expert-Foundation

For any expert opinion to be admissible, it must be based upon fact.  Those facts are deemed to be the foundation.  Without that foundation, the opinion fails.  Keesee v. Donigan, 259 Va. 157, 161 (2000); Brown v. Corbin, 244 Va. 528, 533 (1992); Virginia Supreme Court Rule 2:702 and 703.

Another criteria of expert testimony is reliability.  If the testimony is based upon junk, then it fails.  In other words it must be founded upon fact.  

In Keesee, trial court admitted expert testimony based upon averages.  The expert was an accident reconstruction expert who testified as to average perception and reaction times.  The expert acknowledged that there were many factors that went into that.  They included such things as the person’s physical condition, their eyesight, their overall cognition and their age.  The expert in this case was not aware of those characteristics as to the plaintiff.  As such he was making certain assumptions about the plaintiff that had no factual basis in the record.

The Supreme Court concluded that the absence of that factual basis made the opinion inadmissible.

Personal Injury Twelve Week Expert – Statistics

In Holley v. Pambianco, 270 Va. 180 (2005), the court dealt with issues of standard of care and mitigation of damages.  In cross-examination of the plaintiff’s expert witness, defense counsel elicited statistical frequency of perforations of the colon during colonoscopies and polypectomies.  The witness testified as to what the rate was of such in regards to each procedure.  However these statistics contained no breakdown between those cases involving perforations caused by negligence and those that were not caused by negligence.  In closing argument, defense counsel argued that based on these statistics, a doctor could do everything right and still have a situation as what occurred with this plaintiff.  The Supreme Court concluded that such statistical evidence is not probative of any issue in a medical malpractice case and should not have been admitted.

Likewise in McCloud v. Commonwealth, 269 Va. 242, 259 (2005), the court noted that a raw number of events, without describing their circumstances, can be misleading or confusing to a jury.  Also in Sanitary Grocery Co. v. Steinbrecher, 183 Va. 495, 499-500 (1945), evidence of 1,000 customers per day having visited a grocery store without injury is inadmissible as being misleading since it sheds no light on the facts of the case before the jury.

Eggshell Head Plaintiff

Another point to be raised in regards to this type of testimony is that the defendant takes the plaintiff as he finds him.  The defendant has to compensate the plaintiff for the injuries suffered by this plaintiff.  Not what might have been suffered by some other plaintiff.  The defendant has no right to insist that the plaintiff should have been an average person.  The plaintiff is the plaintiff.  Defendant must compensate for the harm caused to the plaintiff that he wrongfully hurt.  

Expert Designation

If the defendant is going to call an expert witness, they must designate the witness pursuant to the rules of the court.  That designation must set forth the opinions to be rendered and the facts supporting the opinions.  In the Keesee case, the opinion was set forth but the facts supporting the opinion were not adequate.  As such those facts could not serve as the foundation.  Therefore without that factual foundation, the opinion fails as stated in John Crane, Inc. v. Jones, 274 Va. 581 (2007) 

Personal Injury Twelve Week Expert-Deposition

It’s important in these types of matters to take the deposition of the expert witness.  During the deposition, get them to admit that they did not consider such things as age, gender, weight, interaction of other medications or whatever else applies in your case.  The more such variables you can get the expert to admit were not considered, the better your position.  All of that shows a lack of foundation for the opinion.  

It is even more helpful if your own expert will confirm that those variables are important.  

Call, or contact us for a free consult. Also for more info on personal injury see the Wikipedia pages. Also see the post on this site dealing with defense medical examination issues.

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