Virginia Lawyers Weekly VA Lawyers Weekly
Where a man injured in a multi-vehicle automobile accident offered an expert to testify about the weather in the area on the date and at the time of the accident, but the expert relied on radar that scanned the area every 3-6 minutes, the opinion was excluded. A 3-6-minute gap in scanning the weather is significant when an expert is opining on the weather conditions for a moving vehicle.
Background
Judy M. Paul and Andre G.H. Le Doux V sue Western Express Inc. and Ervin Joseph Worthy to collect damages for the injuries they sustained during a multi-vehicle accident on Interstate 81. The parties have filed several motions to exclude expert testimony.
Gregory J. O’Shanick
Le Doux has disclosed Dr. O’Shanick as an expert witness to testify at trial regarding the nature and extent of Le Doux’s injuries. He opines about Le Doux’s need for future neurosurgery to install a ventriculo-peritoneal shunt. Defendants argue the court should exclude this opinion because it is too speculative and unreliable.
Dr. O’Shanick’s testimony is not speculative. Dr. O’Shanick stated that Le Doux “will develop ongoing scarring within the brain” that “will more likely than not” result in Le Doux developing “hydrocephalus which will require neurosurgery for a ventriculo-peritoneal shunt.” This opinion is much more definite than the trial court’s finding that the plaintiff “might” need surgery.
Defendants also claim that the record reflects that Le Doux is resistant to medical assistance and thus there is no evidence that Le Doux would consent to the neurosurgery. However, Le Doux’s history of resisting past medical treatment does not support a finding that he would refuse needed neurosurgery in the future.
Causation opinions
Defendants also move to exclude the causation testimony of Dr. O’Shanick for failure to delineate which impact from the multi-vehicle accident caused what injury. Defendants correctly note that Dr. O’Shanick did not delineate which impact from the multi-vehicle accident caused Le Doux’s brain injury. However, the court believes this to be a jury issue. The jury will be instructed on Virginia law and will determine, based on the evidence presented at trial, whether it is impossible to determine in what proportion each vehicle impact contributed to Le Doux’s brain injury.
Weather-related testimony
Plaintiffs have disclosed Heath Stewart as an expert witness in “collision analysis” and Steven Greco as a “meteorological analyst.” Mr. Greco uses radar to track the precipitation that occurred on Aug. 11, 2018, from 4:10 p.m. to 5:08 p.m. This radar “reads at multiple scanning levels every 3-6 minutes (depending on the number of elevation angles)” to generate weather images. Mr. Stewart relies on Mr. Greco’s weather data for depicting the weather as Worthy was driving.
Defendants argue this portion of Mr. Stewart’s testimony should be excluded because his methodology is speculative and flawed. The court agrees. A 3-6-minute gap in scanning the weather is significant when an expert is opining on the weather conditions for a moving vehicle. Adding to this concern, defendants’ expert argues that Mr. Stewart’s locational data is based on an inaccurate time stamp.
Without Mr. Stewart’s testimony or other reliable testimony tying Worthy’s location to the weather data, the probative value of Mr. Greco’s testimony is significantly reduced and is substantially outweighed by the risk of unfair prejudice and jury confusion.
Whelan
Defendants have disclosed James D. Whelan as an expert on accident reconstruction. The court holds that Mr. Whelan is permitted to testify about Worthy reducing his brake force during the jackknife event. However, he will not be permitted to testify on direct concerning the Georgia CDL manual, which he may have used to form the basis of his opinion.
Second, Mr. Whelan’s opinion that “Worthy was keeping a proper lookout and observed the vehicles in front of him,” is excluded. This question is a jury issue because it concerns “everyday knowledge and experience of a lay juror.”
Mr. Whelan’s conclusion that “Worthy applied his brakes less than two seconds after recognizing that there were slow moving vehicles on the roadway and an accident was imminent, which was a reasonable perception-reaction time for an alert driver,” is based on a reliable foundation and relevant to the negligence claim. But Mr. Whelan’s conclusions about hypotheticals are inadmissible because they are merely based on speculation.
Seth Tuwiner
Defendants have disclosed Dr. Seth Tuwiner, a neurologist, to testify about Le Doux’s brain injury as well as Le Doux’s orthopedic injuries and his need for future orthopedic medical care. Le Doux seeks to exclude Dr. Tuwiner’s orthopedic opinions for lack of qualification. The court will thus defer ruling on the motion until trial, at which point Dr. Tuwiner will be examined about his knowledge, skill, experience, training or education.
Plaintiff’s motion to exclude granted in part, denied in part. Defendants’ motion to exclude granted in part, denied in part.
Paul v. Western Express Inc., Case No. 6:20-cv-51, March 23, 2023. WDVA at Lynchburg (Moon). VLW 023-3-150. 13 pp.
