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Lack of expert dooms woman’s injury claim

Where a woman claimed she suffered a pelvic prolapse when she was involved in a traffic accident, but she failed to timely identify an expert on this issue, the court refused to reconsider its Rule 50 motion granting judgment for the defendant. Although the woman argued that lay testimony was sufficient, the complexity of the pelvic injuries required an expert to opine on causation.


This matter comes before the court on plaintiff’s motion for a new trial or, in the alternative, to alter or amend the court’s judgment. This motion followed a jury trial for this personal injury case emanating from a traffic accident. During the trial, defendant challenged whether plaintiff suffered a pelvic prolapse, damage to her InterStim II, or other injuries to her bladder, pelvis or uterus.

The jury found that plaintiff failed to meet her burden of proof as to the InterStim device. The court granted defendant’s Rule 50 motion as to the pelvic prolapse, finding “an insufficient evidentiary basis for a reasonable jury to find for Plaintiff on that issue” because expert testimony was necessary to support such a verdict under Virginia law.


Plaintiff argues that a new trial should be granted under Rule 59(a) because the court’s management of the first phase of the trial prejudiced plaintiff in three ways: (1) the court permitted defendant’s counsel to refer to plaintiff’s damages claim during the causation phase of trial; (2) the court limited plaintiff’s examination of Dr. Guerette to plaintiff’s Oct. 8, 2019, appointment with Dr. Guerette, despite plaintiff having subsequent appointments and (3) the court questioned plaintiff’s witnesses in the presence of the jury.

Plaintiff does not argue that the verdict is against the clear weight of the evidence, nor that it is based on evidence which is false. Plaintiff solely argues that the jury based its verdict on these procedural inconsistencies and, thus, a new trial is required as the verdict rendered was a severe miscarriage of justice. The court disagrees, finding that plaintiff does not meet this high burden, because no “error occurred in the conduct of trial that was so grievous as to have rendered the trial unfair.”

Plaintiff alternatively argues that the court should amend and reverse its grant of defendant’s motion for judgment as a matter of law under Rule 50, because it committed a clear error of law when it ruled that lay testimony was insufficient for the jury to find for plaintiff on the issue of causation on plaintiff’s pelvic prolapse injuries. Plaintiff claims that the court’s ruling constituted clear error as it contravened Fourth Circuit precedent concerning requirements of expert witnesses, the Federal Rules of Evidence and Virginia substantive tort law on causation.

The court disagrees, finding that the complexity of plaintiff’s pelvic injuries required an expert to opine on causation. Plaintiff’s motion presents an attempt to relitigate her case following trial after she failed to designate her key witness as an expert. This she cannot do.

Plaintiff’s motion for a new trial or, in the alternative, to alter or amend the court’s judgment denied.

Roop v. Desousa, Case No. 3:21-cv-675, March 9, 2023. EDVA at Richmond (Novak). VLW 023-3-119. 47 pp.

VLW 023-3-119

Virginia Lawyers Weekly