ADMISSIBILITY OF EXPERT TESTIMONY Thomas W. Williamson, Jr., Esq. Williamson & Lavecchia L.C. Richmond, Va. I. Statutes governing admissibility of expert testimony. A. Virginia has adopted by statute, with minor modifications, the Federal Rules of Evidence (“FRE”) provisions governing admissibility of expert testimony in civil actions. B. 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 give opinion testimony. Va. Code § 8.01-401.3 (adopted from FRE 702). C. An expert witness may give testimony and render an opinion or draw inferences fr om fact, circumstances or data made known to or perceived by such witness at or before the hearing or trial. The facts, circumstances or data relied upon by the expert in forming an opinion or drawing inferences need not be admissible into evidence if of a type normally relied upon by others in the particular field of expertise in forming opinions and drawing inferences. Va. Code § 8.01.401.1 (adopted from FRE 703). D. No expert or lay witness shall be prohibited from expressing an otherwise admissible opinion or conclusion as to any matter of fact solely because that is the ultimate issue or critical to the resolution of the case. However, in no event shall the witness be permitted to express any opinion which constitutes a conclusion of law. Va. Code § 8.01-401.3 (adopted from FRE 704). This recently adopted provision was cited by the Supreme Court in holding the opinion of an accountant that a business’s lost profits were caused by an employee’s departure is admissible. R.K. Chevrolet v. Hayden, 253 Va. 50, 480 S.E.2d 912 (1997). E. An expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. Va. Code § 8.01.401.1 (adopted from FRE 703). This article was authored by Tom Williamson, senior trial attorney at Williamson & Lavecchia, L.C. Please visit our website for more information about Tom and Williamson & Lavecchia, L.C.2F. In applying Va. Code § § 8.01-401.1 and -401.3, the construction given to FRE 703, 704 and 705 by the federal courts is “instructive”. McMunn v. Tatum, 237 Va. 558, 565, 379 S.E.2d 908, 911-12 (1989). II. Is the expert’s opinion a matter of common knowledge? A. The Supreme Court of Virginia has rigorously policed a ban on admitting expert testimony touching upon matters deemed to be within the “common knowledge” of jurors. The Court held the expert testimony in each of the following described instances to be a matter of common knowledge and thus, inadmissible: • Proffered evidence that in the opinion of a psychiatrist, the key witness of the prosecution in a murder trial "cannot determine the truth, when she's testifying." Coppola v. Commonwealth, 220 Va. 243, 257 S.E.2d 797 (1979). • Opinion of state trooper as to what would have been a maximum safe speed at the crash scene under the conditions existing at the time of the collision, which was the subject of a wrongful death action. Peters v. Shortt, 214 Va. 399, 200 S.E.2d 547 (1973). • Opinion of an engineering professor of an automobile's speed at time of impact based upon the damage done to the vehicle, view of the scene, weight of the automobile and its occupants, and application to these facts of the conservation of energy principle. Grasty v. Tanner, 206 Va. 723, 146 S.E.2d 252 (1966). • Testimony concerning the safety of using a "snatch block" to load lumber onto a building. Virginia-Carolina Chem. Co. v. Knight, 106 Va. 674, 56 S.E. 725 (1907). • Testimony on whether advertisements indicated a preference for one religious group. Commonwealth v. Lotz Realty Co., 237 Va. 1, 376 S.E.2d 54 (1989). • Opinion that the defendant newspaper reporter adhered to the standards for investigative reporting. Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 227, 362 S.E.2d 32 (1987).3 • Opinion concerning supervision of a resident of an adult home. Commercial Distribs., Inc. v. Blankenship, 240 Va. 382, 397 S.E.2d 840 (1990). • Testimony on whether a hole in the ground in the vicinity of a merry-go-round was an unreasonably dangerous condition. Kendrick v. Vaz, Inc., 244 Va. 380, 421 S.E.2d 447 (1992). B. The boundary between “common knowledge” and “specialized knowledge” was laid out in Board of Supervisors v. Lake, 247 Va. 293, 297, 440 S.E.2d 600, at 602 (1994): Expert testimony is inadmissible regarding "matters of common knowledge" or subjects "such that [persons] of ordinary intelligence are capable of comprehending them, forming an intelligent opinion about them, and drawing their own conclusions therefrom." Thus, when the question presented can be resolved by determining what precautions a reasonably prudent person would have taken under like circumstances, no expert testimony is required or permitted. Further, expert testimony is admissible only when specialized skill and knowledge are required to evaluate the merits of a claim. Issues of this type generally arise in cases involving the practice of professions requiring advanced, specialized education, such as engineering, medicine, and law, or those involving trades that focus upon scientific matters, such as electricity and blasting, which a jury cannot understand without expert assistance. (Citations omitted). C. Determining whether the Supreme Court will find the expert’s opinion a matter of common knowledge can be difficult. Although certain subjects (such as medical causation) are obviously beyond the realm of the knowledge and experience of the average person, other areas in which experts are called to render opinions may be deemed by one court to be a matter of common knowledge and by another court to be a proper subject for expert testimony. Contrasting Venable v. Stockner, 200 Va. 900, 108 S.E.2d 380 (1959) with Compton v. Commonwealth, 219 Va. 716, 250 S.E.2d 749 (1979) illustrates the divergent results produced by judicial application of the "common knowledge"4limitation on expert testimony. In Venable, the plaintiff
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