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Lack of medical evidence makes cross-examination relevant

Nick Hurston//May 1, 2023

Lack of medical evidence makes cross-examination relevant

Nick Hurston//May 1, 2023

Truck driver operating vehicle

A vocational expert who opined that a truck driver was “vocationally 100 percent disabled” may be cross-examined about his failure to consider the driver’s vision difficulties when calculating his work life expectancy, the Western District of Virginia has held.

Arguing that there wasn’t any medical evidence to support an inference that his visual dysfunction reduced his work life expectancy, the plaintiff moved to exclude all cross-examination on the issue as irrelevant.

U.S. District Judge James P. Jones disagreed. Finding no proper grounds to exclude the evidence from jury consideration, he denied the plaintiff’s motion.

The opinion is Rice v. Tempur-Pedic North America LLC (VLW 023-3-178).


Billy Joe Rice worked as a truck driver until he was injured on the job when a Tempur-Pedic employee knocked over a stack of wooden pallets. Rice sued the company, seeking to recover the present value of future earnings, among other damages.

During his deposition, Rice testified that he tried to go back to work after the accident but that he “couldn’t back a truck” because he “couldn’t judge it,” adding that “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.”

Rice explained that his eyes “won’t move backwards and forwards; up and down neither, as far as that.” He believed the accident caused this problem despite having no medical evidence supporting that belief.

Vocational expert

A. Bentley Hankins, a vocational expert, testified in a deposition that Rice was “vocationally 100 percent disabled” due to permanent back injuries. Absent the accident, Hankins calculated Rice’s work life expectancy was approximately five years, during which he would earn between $257,374 to $300,945.

During the deposition, Tempur-Pedic’s counsel cross-examined Hankins by asking “if [Rice] 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?”

Rice later moved to exclude all 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.”

Because there was no medical evidence as to the question of whether any “visual impairment would reduce his work life expectancy,” Rice argued that the cross-examination was irrelevant.

Clearly relevant

Jones wasn’t convinced that the cross-examination was irrelevant or that there were any other grounds by which to exclude it.

“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 judge explained. “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.”

Finding no grounds to exclude the evidence under Rule 403, Jones concluded that the jury was entitled to know of the evidence and denied Rice’s motion in limine.

Settlement reached

“There was information regarding our client’s vision but it wasn’t germane to the vocational expert’s opinion,” said Joseph W. McMurray who partnered with lead attorney, R. Wayne Culbertson of Kingsport, Tenn. “Our position was they’re confusing the issues because Rice was able to do the job before the back injuries and our vocational expert verified that he couldn’t do so afterwards.”

The parties settled the matter and filed a stipulation of dismissal on the day Jones’ opinion was published. McMurray noted how the judge forecast his opinion after argument.

“Judge Jones said — which I love — ‘Well, gentlemen, if it’s going to settle, I’d like to encourage you to settle it quickly,” McMurray said, adding that the judge jokingly asked if the insurance company was “being too tight.”

“We all just laughed but then we got an offer of judgment that was probably twice what they had previously offered,” he said.

David W. Hearn litigates complex cases for Sands Anderson in Richmond. He told Virginia Lawyers Weekly he felt the court rightfully said a party can’t shut the door on a potential weakness for the expert’s opinion.

“The opposing party is entitled to draw out not only what the expert considered to form a conclusion, but also can really dig into two things — what did the expert know and what facts were given weight or were rejected,” Hearn explained.

He added that “there’s also a legitimate basis to ask about what the expert didn’t even know about, and I think that’s sometimes overlooked when preparing an expert opinion.”

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