By Cory Bilton

For every injured plaintiff, there are defense experts who will testify that the plaintiff is not injured.  Usually this defense expert is a medical doctor who testifies either that the plaintiff was never injured to begin with, was already injured before the incident, or that the plaintiff was injured in the incident, but should have already recovered despite complaints of ongoing problems.  The latter opinion requires the expert to draw on evidence of other injured people whom the expert has treated personally, has heard about, or has read about in academic literature.  As with any “should” argument, it is an appeal to the average experience of others.  Which group of “others” you choose for comparison, can largely determine the logical outcome of the argument.

Recently, the Supreme Court of Virginia handed down the decision in the case Funkhouser v. Ford Motor Company, 736 S.E.2d 309 (Va. 2013).  In the opinion, the court held, “that an expert cannot offer opinion testimony based on evidence that fails the substantial similarity test.”  Id. at 316.  Earlier in the decision, the Court explained the test “consists of two prongs: (1) the substantially same circumstances prong, and (2) the causation prong.”  Id. at 314.  Therefore, evidence of other similar accidents or occurrences must be shown to have occurred under substantially the same circumstances and had the same cause as the incident at issue in the case.

The court further explained that even though Virginia Code § 8.01-401.1 provides that the facts, circumstances or data relied upon by the expert need not be admissible into evidence, it “does not … relieve the court from its responsibility, when proper objection is made, to determine whether the factors required to be included in formulating the opinion were actually utilized.”  Funkhouser, 736 S.E.2d at 315.  So even when inadmissible, the trial court is expected to evaluate the evidence the expert relies upon when making a comparison between the incident in the current case and past ones.  If those prior incidents used for comparison fail the substantial similarity test, the court should exclude the expert’s opinion.  See id.

In summarizing this case on the Virginia Appellate News & Analysis blog, Steven Emmert expanded on a reader’s suggestion that the holding might well work against personal injury defense experts.  Emmert noted, “[a]s I see it, the new Funkhouser decision requires that doctor to establish the circumstances of all those other injuries, to ensure that they’re really ‘similar.’”

This result will likely require defense experts to significantly change how they formulate their opinions in personal injury cases in Virginia.  I pulled some defense expert opinions from recent completed cases to look for statements that I think would fail the substantial similarity test.  Some examples (I’ve included the implied, but unwritten, comparison in brackets):

• “In my opinion, she sustained, at most, a mild uncomplicated soft tissue injury of her back that could have been reasonably expected to resolve naturally within six to eight weeks [which is the typical time this type of injury in an unspecified group could be expected to resolve].”
• “It is common in an office practice to see neck and back pain frequently in an even healthy population [of all people with a variety of medical backgrounds].”
• “It is my strong opinion she likely reached maximum medical improvement by eight weeks status post the original injury [which is the time when further treatment provides no further benefit in an unspecified group of patients with unspecified injuries].”

The problem with these statements is that they are silent about the comparison group.  Even if the comparisons are drawn from a treatise or academic study, Funkhouser says the underlying comparison groups would need to be shown to have been injured under substantially the same circumstances and from the same cause.  At the very least, the defense expert would need to show that the comparison groups meet these criteria.  But much more likely is that the defense expert’s generalized comparisons are not tied to any specific group of former patients, academic study, or treatise.  Given the clear wording of Funkhouser, upon objection, an expert’s opinion making such a generalized comparison should be ruled inadmissible.  This should help Plaintiff’s lawyers narrow, or eliminate, a vague and poorly reasoned defense expert’s opinion in Virginia.

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