Winter 2022

Can the Opposition’s Expert Make Their Closing Argument?

A crucial part of many lawsuits is presenting and contesting expert witnesses. However, an expert’s persuasive role should be limited. As you prepare for experts in your case, beware of the opposition trying to disguise its closing argument within an expert’s “opinion” on the stand.

Expert assistance is wise for all sides whenever a case involves concepts or standards outside an ordinary jury’s knowledge. Such wisdom rises to the level of legal necessity in some matters, including medical malpractice actions in Virginia, which generally require a plaintiff to obtain an opinion from an expert on the applicable standard of care and breach of the same. Va. Code Ann. §8.01-20.1. But in cases where a theory of liability lies within the range of the jury’s common knowledge and experience, then expert testimony is unnecessary – and arguably irrelevant. See, e.g., Lake v. Adams, 2020 WL 1016352 (W.D. Va. 2020) (expert testimony regarding pedestrian or ordinary traffic movement excludable); Hot Springs Lumber & Mfg. Co. v. Revercomb, 110 Va. 240, 267 (1909) (“The ordinary affairs of life cannot be the subject of expert testimony”).

So when can we prevent a witness from giving an improper expert-stamp-of-approval on the opposition’s ultimate theory of liability?

The need to defeat this overreaching testimony may be enhanced in negligence per se cases arising from violations of safety statutes. See, e.g., McGuire v. Hodges, 273 Va. 199 (2007). A party’s violation of the statute alone (e.g., pool-fence height requirements, speed limits) creates an inference of negligence, challenging the defense from the start.

For the inference to apply, the court must find the statute was 1) enacted for public safety, 2) the plaintiff belongs to a class of persons for whose benefit the statute was enacted, and 3) the harm is of the type the statute is designed to protect against. This is a purely legal inquiry conducted by the court. See, e.g., France v. Southern Equip. Co., 225 W.Va. 1 (2010); McGuire, 273 Va. at 14. In these cases, experts must not be permitted to opine on conclusions of law or legality of conduct. Va. R. Sup. Ct. 2:704 (“in no event may such [expert] witness . . . express any opinion which constitutes a conclusion of law”); France at Syl. Pt. 10. Since expert testimony on breach of the applicable standard of care is not required, what is the remaining role of an expert, if any, in the negligence per se context?

Some plaintiffs have attempted to use asserted safety experts to opine on whether a statute “covers” a particular act, procedure, or protocol, often in realms where industry standards are implicated. However, this tactical testimony should be impermissible if the expert’s opinion concerns questions of law. Va. Code Ann. § 8.01-401.3; Va. R. Sup. Ct. 2:704; France, 225 W.Va. at 14. The application of the underlying statute in a negligence per se claim is an inquiry reserved for the court alone. Id. As such, in the context of negligence per se, an expert’s role at trial must be limited. Id. Importantly, a plaintiff cannot use an expert’s testimony to make it seem more likely to a judge or jury that a statute applies for the purpose of negligence per se. Id.

In cases involving alleged violations of ordinary traffic safety statutes, the opposition may also attempt to bolster its case with a safety expert’s “opinion” not only on the uncontroversial applicability of a statute, but also on the general causative effects of code violations. This broad testimony often simply amounts to a closing argument on duty, breach, causation, and damages. Will the trier of fact actually be assisted by a safety expert’s belief that speed limit violations cause accidents? Or is opposing counsel simply trying to distract the jury from the fact that their client swerved across the centerline and struck your client, who was traveling a mere mile per hour over the speed limit?

Luckily, there is a process in all jurisdictions whereby a litigant can challenge the admissibility of the opposing side’s experts and their opinions, including federal court. Although the Federal Rules of Evidence provide that an “opinion” is not objectionable just because it embraces an ultimate issue,” the Advisory Committee Notes clarify that Fed. R. Evid. 702 and 403 are designed to prevent “admission of opinions which would merely tell the jury what result to reach”. Courts recognize that “expert witnesses have the potential to be both powerful and quite misleading”. Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999). If the testimony has a “greater potential to mislead than to enlighten”, it should be excluded. Id. Many states’ evidentiary rules closely track this federal standard.

If the issues are too ordinary, straightforward, or ‘common-sense” for an expert to be necessary, a litigant should challenge the opposition’s expert testimony on those issues. If an issue is uncontestable, strategic stipulations may be useful to prevent unnecessary piling on testimony. Furthermore, if the expert’s proffered testimony sounds more like opposing counsel’s closing argument, a litigant should be on the alert for conclusions of law. By utilizing motions in limine to contest the opposing side’s attempt to offer expert testimony on the legality of conduct,  a litigant can mitigate the danger of opposing counsel clothing their closing in the mantle of expert testimony.

For more information contact Stephen J. Marshall.