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Court allows cross-examination at trial

Virginia Lawyers Weekly//April 24, 2023

Court allows cross-examination at trial

Virginia Lawyers Weekly//April 24, 2023

Where the plaintiff in a personal injury suit testified that he now has difficulty driving a truck, which was his former profession, but his expert apparently failed to consider this testimony in opining as to the man’s worklife expectancy, defense counsel may cross-examine the expert about this issue at trial.


Billy Joe Rice, a former truck driver, seeks compensation for injuries he received in an accident on Sept. 20, 2020, when wooden pallets fell on him from a truck due to the alleged negligence of the defendant’s employees. Among other things, he seeks to recover the present value of future earnings.

A. Bentley Hankins, Ph.D, a vocational expert, opined that the plaintiff is “vocationally 100 percent disabled” because of permanent back impairments, and that absent the accident, his worklife expectancy would be “approximately 5.2 years” from the date of the accident. He further projected the plaintiff’s earning capacity over that period, absent the accident, to be within a range of “$257,374 up to $300,945.”

In the plaintiff’s discovery deposition, he testified that after the accident he tried to go back to work, but that he “couldn’t back a truck” because he “couldn’t judge it.” “I’d just back up, and I’d back – I would think I was further away from stuff, and I’d just back into stuff.” The plaintiff explained that his eyes “won’t move backwards and forwards; up and down neither, as far as that.” While the plaintiff stated that he believed that a head injury suffered in the accident caused this problem, there is apparently no medical evidence supporting that belief.

In the deposition of Dr. Hankins, defense counsel cross-examined him based on the plaintiff’s testimony that he could no longer drive a truck because of his supposed vision difficulties, asking the witness, “[I]f he can’t drive a truck because he can’t see to back up, he doesn’t have any lost earning capacity related to truck driving, does he?”

In the present motion, the plaintiff seeks to exclude all such cross-examination which “attempt[s] to infer through the back door that Plaintiff is facing a reduced work life expectancy because of any visual dysfunction that he may have.” The plaintiff argues that because there is no medical evidence as to the question of whether any “visual impairment would reduce his work life expectancy,” the cross-examination in question is irrelevant.


Contrary to the plaintiff’s argument, the fact that there is no medical evidence connecting the plaintiff’s admitted vision problem to the accident makes the cross- examination clearly relevant to the issue of Dr. Hankins’ opinion as to the plaintiff’s future earnings as a truck driver. The plaintiff has stated under oath that he was unable to work at his customary occupation because of his vision problem, a fact that Dr. Hankins did not consider in arriving at his opinion. In addition, I find no proper ground to exclude the evidence under Rule 403. The jury is entitled to know of this evidence in its consideration of the evidence.

Plaintiff’s motion in limine denied.

Rice v. Tempur-Pedic North America LLC, Case No. 2:21-cv-00040, April 3, 2023. WDVA at Big Stone Gap (Jones). VLW 023-3-178. 4 pp.

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