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 (4^th 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.

In the 1992 film “Wayne’s World,” the titular character, newly flush with cash, goes to a music store to purchase “Excalibur,” a ’64 Fender Stratocaster “in classic white, with triple single-coil pickups and a whammy bar.”  He tests out the guitar, playing a few notes before the store clerk stops him and sternly points to a sign reading “NO Stairway to Heaven.”  Wayne, stopped in his tracks, incredulously remarks, “No Stairway?  Denied!”  The music store, caring nothing for the musician’s skill or quality of the instrument, made the policy decision to impose an absolute bar on the playing of Led Zeppelin’s 1971 song, “Stairway to Heaven,” on the premises.

Maryland’s statutes of limitations, set forth at Md.  Code Ann., Cts. & Jud.  Proc.  §5-101, et seq., impose a similar bar upon would-be litigants.  No matter the sufficiency of their case, the sympathy of their cause, or entitlement to relief, the law prevents them from bringing an action outside the applicable time period.  Maryland’s general limitations period affords a litigant three years from the date a cause of action accrued to file suit (although other limitations periods apply depending on the cause of action).  See Md.  Code Ann., Cts. & Jud.  Proc.  §5-101.  By way of example, if Wayne tripped over a guitar cable in the music store and sustained damages on December 1, 2017, he would have until December 1, 2020, to file suit.

While the general limitations period is easy enough for lawyers and lay-people to understand, the COVID-19 pandemic resulted in a flurry of orders across the United States, modifying the rules and operating procedures of the courts (including orders from Maryland’s highest court, the Court of Appeals), tolling and/or suspending the statutes limitations.

In its COVID-19 administrative orders, Maryland’s Court of Appeals ordered, among other things: a judicial state of emergency; a period from March 16, 2020, through July 20, 2020, during which the courts were closed to the public; and the tolling and/or suspension of deadlines relating to the initiation of matters (including statutes of limitations).  These orders have sparked vigorous debates amongst attorneys because some interpret the orders as applying only to those matters whose limitations period would have expired from March 16, 2020, through July 20, 2020 (the “narrow interpretation”), whereas other attorneys interpret the Court of Appeals’ orders as tolling and/or suspending the limitations period for all matters during the time the Courts were closed (the “broad interpretation”).

Those who support the narrow interpretation look to the following language:

For the purposes of tolling of statutes of limitations and other deadlines related to the initiation of matters, in this Order, “tolled or suspended by the number of days that the courts were closed” means that the days that the offices of the clerks of court were closed to the public (from March 16, 2020 through July 20, 2020) do not count against the time remaining for the initiation of that matter; and

For the purposes of tolling the statutes of limitations and other deadlines related to the initiation of matters, in this Order, “matters” are nunc pro tunc to March 16, 2020, those matters for which the statute of limitations and other deadlines and other deadlines related to the initiation would have expired between March 16, 2020, through the termination date of the COVID-19 emergency operations in the Judiciary as determined by the Chief Judge of the Court of Appeals.

Tenth Revised Administrative Order (August 6, 2021).  The inclusion of “nunc pro tunc” (Latin meaning “now for then”) in the administrative orders is significant because it allows the court to retroactively change the date of an order, deadline, or filing to a past date.  A narrow interpretation of the administrative orders views this language as limiting tolling to matters that would have expired from March 16, 2020, through July 20, 2020, and tolling those matters by 141 days from March 16, 2020 (the administrative orders also provide a 15 day grace period after the expiration of the tolling period).  Under their interpretation, Wayne’s deadline for filing would remain unchanged because it falls outside of the March 16, 2020, through July 20, 2020 time period during which the courts were closed to the general public.

But those who support the broad interpretation look to the following language:

. . . all statutory and rules deadlines related to the initiation of matters required to be filed in a Maryland state trial or appellate court, including statutes of limitations, shall be tolled or suspended, as applicable, effective March 16, 2020 by the number of days that the courts are closed to the public . . .

. . .  For example, if two days remained for the filing of a new matter on March 15, 2020, then two days would have remained upon the reopening of the offices of the clerks of court to the public on July 20, 2020.  With the additional fifteen days, seventeen days would be left for a timely filing, beginning July 20, 2020.

Tenth Revised Administrative Order (August 6, 2021).  The argument in favor of the broad interpretation is that the scope of the tolling is not limited to matters falling within the March 16, 2020, through July 20, 2020 time period because the tolling applies to “those matters for which the statute of limitations  . . . would have expired between March 16, 2020, through the termination date of the COVID-19 emergency operations in the Judiciary . . .”.  Id.  To date, the COVID-19 emergency operations in the Judiciary have not ended.  Accordingly, under the broad interpretation, Wayne had 261 days to bring suit as of March 15, 2020, and, following the time during which the courts were closed to the general public, would have 276 days from July 20, 2020, to bring suit.

While Maryland Appellate Courts have yet to clarify this particular issue in an opinion, the Supreme Court of Massachusetts analyzed a similar tolling order, compared it with COVID-19 tolling orders in other jurisdictions, and noted that Maryland was among the jurisdictions that imposed a broad, blanket extension on the initiation of all matters (not just those that would have expired within a specified period).  See Shaw’s Supermarkets, Inc. v. Melendez (Slip Op. SJC-13054, 2021).  Additionally, at least one plaintiff has appeared to have prevailed in arguing for the broad interpretation of the administrative orders in defending against a motion for summary judgment before a Maryland trial court.  See e.g., Reed v. One Call Concepts, Inc., et al. (2021).

Ultimately, it will fall upon the Maryland Court of Appeals to determine whether its “party on, Wayne” or “stairway denied” for plaintiffs relying upon the administrative orders to file outside of the general limitations period.  Still, an answer may be coming soon.  Recently, the United States District Court for the District of Maryland presented a certified question to the Maryland Court of Appeals, asking Maryland’s high court to determine whether it had the authority to modify the applicability of the statutes ofl limitations.  See Jesse J. Murphy, et al. v. Liberty Mutual Insurance Co., (Misc. No. 5, September Term, 2021) (argued December 3, 2021).  Based upon the questions asked by the Court of  Appeals at oral argument, it would be surprising if the high court determines that it did not, in fact, have the authority to toll and/or suspend the statutes limitations.  Attorneys are optimistic that the court of appeals will also clarify the application of its administrative orders when addressing the certified question, but if the high court does not, there will surely be an appeal on the issue in the near future.  Until Maryland’s high court explicitly addresses the issue, plaintiffs should err on the side of caution and comply with the legislatively-established statutes of limitations, while defendants may continue to challenge matters filed outside of the March 16, 2020, through July 20, 2020 tolling period that have potential timeliness issues under the Statues of Limitations.

For more information contact Stephen J. Marshall.