No Foundation for Defense Expert Opinion

At defendant otolaryngologist’s trial for alleged malpractice in failing to order overnight monitoring of a five-year-old child after removal of his tonsils and adenoids for severe obstructive sleep apnea, the trial court erred in admitting defense expert testimony from a pediatric geneticist who failed to exclude respiratory compromise as the cause of the child’s death prior to concluding his death was caused by a genetic condition; the Supreme Court of Virginia reverses the judgment for defendant physician and remands for a new trial.

Basis for opinion

Virginia Code § 8.01-401.1 permits an expert in civil cases to render an opinion from facts, circumstances or data made known to or perceived by such witness. It also permits an expert’s opinion to be based on any information normally considered by experts practicing in the expert’s discipline, even if that information would be inadmissible in evidence.

While Code § 8.01-401.1 has liberalized the admissibility of expert testimony, it does not sanction the admission of expert testimony based upon a mere assumption which has no evidentiary support. Expert testimony founded upon assumptions that have no basis in fact is not merely subject to refutation by cross-examination by counter-experts; it is inadmissible.

Generally, when an expert examines facts and circumstances leading to an injury, his opinion as to the cause of the injury is not rendered factually unsupported by the possibility of another cause. Here, however, the defense expert, a pediatric geneticist, purported to give a differential diagnosis, whereby he eliminated all possible causes of death until only one remained. To opine that the child died from Brugada syndrome, he needed to exclude postoperative respiratory compromise as a cause of death. While he acknowledged that as a geneticist he was not qualified to do this, he explained that he excluded all potential causes of death outside his area of expertise by relying upon the expertise of people who are qualified to exclude them. At trial and on appeal, the defendant physician has consistently maintained that the expert relied on the autopsy report to exclude respiratory compromise as a cause of death.

Geneticist opinion

The defense expert explained that geneticists employ a collaborative approach, wherein they form a “multidisciplinary team” of medical professionals to establish a diagnosis. The expert’s reliance on the conclusions in the autopsy report was consistent with this practice and therefore appropriate under Code § 8.01-401.1. But, contrary to defendant’s argument, the physician who performed the autopsy did not actually exclude respiratory compromise as a cause of death. She stated only that the child died of “cardiac arrhythmia of unknown etiology” and speculated about the possibility of a genetic cause. Experts for both plaintiff and defendant acknowledged that respiratory compromise would have led to cardiac arrhythmia. Thus, instead of excluding respiratory compromise as a cause of death, the autopsy report leaves it open as a possibility.

Respiratory compromise was not excluded by the geneticist nor any source upon which he relied. His differential diagnosis was founded upon an assumption that was not established during trial. The circuit court abused its discretion by admitting it into evidence.

During oral argument, defendant suggested for the first time an alternative basis upon which the defense expert could have relied – the de bene esse video deposition of a board-certified pulmonologist. That physician opined to a reasonable degree of medical certainty that the child did not die from respiratory compromise. Our review of the record belies defendant’s argument. The geneticist testified that he formed his opinion of the causation of the death before ordering the child’s genetic testing. The results of this testing were reported on Oct. 9, 2015, and the expert explained that they confirmed his previously formed opinion. The pulmonologist gave his deposition more than eight weeks after the geneticist concluded that the child died from Brugada syndrome. Further, the geneticist testified that he relied upon the child’s family history, toxicology reports, the autopsy report, the medical literature and the results of the child’s genetic testing to form his opinion. He never testified that he relied upon the pulmonologist’s conclusions when forming his opinion.

We reject plaintiff’s claim that the trial court erred in allowing defendant to offer expert testimony. Defendant’s statement that he would not have recommended surgery had he known about the child’s parents being first cousins and that two siblings predeceased the child, was not an expert opinion.

Judgment for defendant reversed and case remanded.

Toraish, Adm’r v. Lee (Mims) No. 160495, April 13, 2017; Fairfax Cir.Ct. (Kassabian) L. Steven Emmert, Robert T. Hall, Gobind S. Sethi, Samantha K. Sledd, Juli M. Porto for appellant; Michael E. Olszewski, Benjamin M. Wengerd, Richard L. Nagle, James N. Knaack for appellee. VLW 017-6-026, 10 pp.