Tort Law

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Expert Testimony-Qualification of Expert and the related topic of personal injury.    For more information on expert witnesses see the pages on Wikipedia.

Expert Testimony Qualification of Expert-Cases

2010 Hollingsworth v. Norfolk S. Ry., 279 Va. 360, 689 S.E.2d 651.
In this FELA case, the circuit court properly refused to admit testimony of podiatrists because they were not medical doctors and therefore not qualified to render expert opinions on causation.

2009 Jackson v. Qureshi, 277 Va. 114, 671 S.E.2d 163.
In this medical malpractice action, trial court improperly struck expert witness. Issue that expert was to testify on was whether infant should have been admitted to inpatient hospital care when he presented at the emergency room showing signs of respiratory distress and/or pertussis. The record is clear that the witness directly treated patients who presented with this condition within one year of the date of the alleged omission in this case. Thus, he met the requirement of an active clinical practice requirement and was properly qualified.

2008 Lloyd v. Kime, 275 Va. 98, 654 S.E.2d 563.
Defense counsel used deposition in support of motion in limine to strike plaintiff’s expert witness. Although the motion was styled a motion in limine, it was in effect a motion for summary judgment. However, because plaintiff did not object to the use of deposition testimony, there is no error in the court considering that deposition testimony in support of the motion in limine. That motion determined that plaintiff’s neurologist was not qualified to act as a standard of care witness in terms of intra-operative negligence in the performance of back surgery. It was error, however, for the trial court to strike plaintiff’s neurologist from testifying on post-operative negligence or causation.

2007 Dagner v. Anderson, 274 Va. 678, 651 S.E.2d 640.
In this medical malpractice action defense medical expert testified as an emergency room physician on the issue of causation. This witness acknowledged that his role was not to provide long term care for patients and he also acknowledged that as an emergency room doctor he did not have the requisite expertise to offer an opinion on whether there was a multi-factorial cause to the decedent’s brain injury. As such, the witness should not have been qualified to testify that the decedent’s brain injury was caused by alcohol withdrawal.

2005 Hinkley v. Koehler, 269 Va. 82, 606 S.E.2d 803.
It was error for trial court to admit standard of care testimony in this medical malpractice case where physician did not have active clinical practice in defendant’s specialty or related field within one year of the alleged negligence. The standard for admission of standard of care testimony in a medical malpractice case is the knowledge requirement and the active clinical practice requirement. In this case, the doctor’s teaching and consulting work did not constitute an active clinical practice.

2004 Christian v. Surgical Specialists of Richmond, Ltd., 268 Va. 60, 596 S.E.2d 522.
In this medical malpractice action, trial court improperly excluded plaintiff’s medical expert on grounds that he was not familiar with the Virginia standard of care. Plaintiff did not present letter from Board of Medicine establishing that this physician would be qualified to practice in Virginia. As such, there is no presumption that favors the physician. Physician, however, did testify that he knows Virginia standard of care by talking with Virginia physicians and attending medical seminars in Virginia. This was sufficient basis to establish knowledge of Virginia standard of care. Supreme court expressly rejects any suggestion that it adopts a national standard of care.

2004 Wright v. Kaye, 267 Va. 510, 593 S.E.2d 307.
Whether a witness is qualified to testify as an expert is within the discretion of the trial court. However, in a medical malpractice action, the supreme court will overturn trial court’s exclusion of a proffered expert opinion when it appears clearly that the witness was qualified. In this case, defendant doctor claimed that plaintiff’s experts had never performed the procedure in question and therefore, lacked the requisite knowledge to testify as an expert. Plaintiff countered by saying that the alleged negligence was not the performance of that procedure but rather a broader concept including surgery in the vicinity of the bladder involving the use of a surgical stapler. Trial court improperly struck plaintiff’s experts simply because they had no knowledge or experience with the former procedure. This case also presented the question of whether a physician employed in the same medical practice as plaintiff’s medical expert may testify on behalf of the defendant without the plaintiff’s consent. In this case, the court said that the defense witness was to be allowed. The test is whether or not there has been any exchanging of confidential information between such experts.

2002 Perdieu v. Blackstone Family Practice Ctr., Inc., 264 Va. 408, 568 S.E.2d 703.
Medical malpractice action. Plaintiff sought to qualify three different physicians in various fields relating to nursing home injury. None of them had active type of practice within one year of alleged malpractice and as such, their testimony was not admissible.

2000 Sami v. Varn, 260 Va. 280, 535 S.E.2d 172.
In this suit against emergency room physician, obstetrician/gynecologist was in fact qualified to give expert testimony on standard of care for pelvic examination performed by emergency room doctor. Plaintiff’s expert witness in this case testified that he was familiar with the standards of care applicable to pelvic examinations and that these standards were the same for emergency room physicians as they were for obstetricians/gynecologists. Although plaintiff’s expert did not have an active clinical practice in emergency medicine, he did have an active clinical practice in obstetrics/gynecology and because procedure at issue is performed in both specialties, this was sufficient to allow him to testify.

1999 Black v. Bladergroen, 258 Va. 438, 521 S.E.2d 168.
Expert testimony qualification of expert.Any physician licensed to practice in Virginia is presumed to know the state-wide standard in their specialty. This presumption also applies to any physician licensed in some other state who meets educational and examination requirements for licensing in Virginia. That showing of meeting the Virginia licensing requirement may be established by means of a letter from the Board of Medicine.

1999 Phillips v. Southeast 4-H Educ. Ctr., Inc., 257 Va. 209, 510 S.E.2d 458.
Expert testimony qualification of expert.In this drowning case, plaintiff attempted to offer expert testimony from EMT experienced in CPR and water safety as to whether decedent would have survived had he been removed from water within 30 seconds of onset of drowning. Trial court excluded testimony on grounds that this requires technical knowledge in the field of medicine. On appeal, there was not found to be any abuse of discretion.

1997 Poliquin v. Daniels, 254 Va. 51, 486 S.E.2d 530.
Expert testimony qualification of expert.Malpractice case. Plaintiff’s expert in general surgery was licensed in North Carolina and testified that he was eligible for licensure in Virginia and trial court received into evidence letter to that effect from Virginia Department of Health Professionals. The Court properly qualified witness.

1996 King v. Sowers, 252 Va. 71, 471 S.E.2d 481.<
Expert testimony qualification of expert.Medical malpractice action. Ophthalmic pathologist testified as to his interpretation of CT scan. Although he was not an expert in radiology, he was fully experienced in interpreting CT scans and therefore it was permissible for court to allow such opinion.

1996 Lawson v. Elkins, 252 Va. 352, 477 S.E.2d 510.
Expert testimony qualification of expert. Medical malpractice case. Issue was whether neurosurgeon was qualified to testify as expert on standard of care imposed on orthopedic surgeon who performs chemonucleolysis procedure. Trial court properly held that since neurosurgeon had never performed this procedure and has nothing in his qualifications as to whether defendant deviated from standard of care, this testimony was properly excluded.

1995 Fairfax Hosp. Sys. v. Curtis, 249 Va. 531, 457 S.E.2d 66.
Expert testimony qualification of expert.Doctor was held not to be qualified as expert witness because of non-compliance with Va. Code § 8.01-581.20 since he had not had active clinical practice in this specialty within one year of the date of malpractice.

1994 Griffett v. Ryan, 247 Va. 465, 443 S.E.2d 149.

Expert testimony qualification of expert.Medical malpractice case where issue arose as to whether or not doctor was qualified to testify in regards to proximate cause. Doctor was duly licensed, board certified and practicing since 1970. Doctor was qualified. Question further arose as to whether other physician was qualified to testify on standard of care when his specialty is that of internal medicine and defendant’s specialty is that of gastroenterology which is a sub-specialty within internal medicine. Evidence indicated there was a good deal of overlap between this specialty and sub-specialty. Court recognized that there are certain standards of care imposed upon gastroenterologists on which internists may not be qualified to render an opinion. That is not case here and doctor was qualified to testify.

1988 Henning v. Thomas, 235 Va. 181, 366 S.E.2d 109.
Expert testimony qualification of expert.Question of whether expert is qualified rests with discretion of trial court. Plaintiff’s expert in this medical malpractice case not licensed in Virginia, never practiced in Virginia. He was qualified because he discussed case with Virginia orthopedic surgeon, read deposition of doctors who treated plaintiff, agreed that standard for this type of treatment was same in Virginia as elsewhere.

1985 Grubb v. Hocker, 229 Va. 172, 326 S.E.2d 698.
Expert testimony qualification of expert.Medical malpractice case. Plaintiff’s expert was professor of medicine who had been licensed in Virginia as general practitioner, who had taught and written about diabetes, and who maintained familiarity with standard of care for general practitioner in Virginia. Witness was competent to testify. Licensure alone is enough to allow expert to testify as to standard of care in field to which he was admitted.

1979 Noll v. Rahal, 219 Va. 795, 250 S.E.2d 741.
Expert testimony qualification of expert.Whether witness is qualified to express opinion as expert is question largely within sound discretion of trial court. Knowledge necessary to qualify one to testify as expert may be derived from study alone or experience, or both.

1979 Ives v. Redford, 219 Va. 838, 252 S.E.2d 315.<
Expert testimony qualification of expert.Doctor is not incompetent to testify as expert because he is not specialist in particular specialty involved.

1975 City of Fairfax v. Swart, 216 Va. 170, 217 S.E.2d 803.
Expert testimony qualification of expert.Qualification of expert is matter largely within discretion of trial court and its ruling will not be reversed without showing of abuse of discretion.<

1966 Norfolk & W. Ry. v. Anderson, 207 Va. 567, 151 S.E.2d 628.
Expert testimony qualification of expert.Knowledge necessary to qualify one to speak as expert may be derived from study or experience, or both. Witness need not have all knowledge possible for one in his class to entitle him to speak, but he may testify as expert if it is shown that he has sufficient knowledge of his subject to give value to his opinion.

1963 Ames & Webb, Inc. v. Commercial Laundry Co., 204 Va. 616, 133 S.E.2d 547.
Expert testimony qualification of expert.Expert on excavation requirements in sandy soil was allowed to testify, although he had no experience in Norfolk area, since he testified that characteristics of such soil were generally same everywhere. Question of expert’s qualification lies largely within discretion of trial court.

1956 Haynes v. Glenn, 197 Va. 746, 91 S.E.2d 433.
Expert testimony qualification of expert.Standard of qualification for expert on property values is usually not fixed very high. He need not be expert in strict sense of word.

1953 Swersky v. Higgins, 194 Va. 983, 76 S.E.2d 200.
Expert testimony qualification of expert. Question of expert qualification is largely in discretion of trial court.

1942 Butler v. Greenwood, 180 Va. 456, 23 S.E.2d 217.
Expert testimony qualification of expert.Physician may be allowed to testify as expert, even though he is not expert in particular specialty involved in case.