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Barely there

Fairfax Circuit Judge Jane Roush and Abingdon lawyer Mary Lynn Tate provided a “Tort Law Update” on recent cases from the Supreme Court of Virginia at the Virginia Trial Lawyers Association convention on April 2.
In particular, they commended the audience to review a January 2011 case, CNH America LLC v. Smith. It provides a “mini-treatise” on the law governing expert testimony, they said.

The case was a products liability suit involving a lawn mower, and the controversy centered around two experts for the plaintiff. On cross-examination, they admitted that they did not know this or that and that they hadn’t examined the mower hose that had failed.

In short, the trial judge observed, “they’re just barely experts, maybe . . . but’s that all they have to be.”

And that’s not wrong, Roush and Tate said. So long as the expert knows more than the trier of fact and can provide information to help in a decision, he can testify. But after the high court reversed in the CNH case, the expert’s opinion now needs to have some foundation behind it, they noted.

And while speaking of barely there experts, Roush said she remembered that back in law school at U.Va., she had a professor who had joked there was a different way to define expert: “Anybody who comes from out of town.”

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