Dispatches from the courtroom 1.15.2005

In a Virginia wrongful death case, the Virginia Supreme Court concluded that the testimony of an economic expert witness in a wrongful death case should have been excluded because of its unreliability. Thanks to (SW VIrginia Law Blog)

In this case, the court concluded, among other things, that the plaintiff's expert utilized unrealistic assumptions to construct the economic damage report. The court found that the economists earnings projections did not comport with the facts in the case. Background concerning the economic experts testimony and excerpts from the court's decision can be found below in this post.

The bottomline: Using realistic assumptions is crucial. In this case, the court nor the defendants had any issue with the qualifications of the plaintiffs expert, it was his inability to build a economic damage model that was soundly based on the case facts that the courts took issue with.


Click here to download decision

Background on what the economist did (from the court's decision):

No objection was made to his [the economist's] qualifications. He testified that
Mrs. Mabini’s lost income and benefits would have amounted to
$121,533 if she had worked until age 60 and $203,145 if she
had worked until age 66. He gave the value of her lost
household services as $343,287 and reasonable funeral expenses
as $12,403.

His calculation of the total economic loss to the
beneficiaries was thus $477,223 based on retirement at 60 and
$558,835 based on retirement at 66. These conclusions were
necessarily dependent upon certain assumptions to which the
defendants objected:

*that the decedent would have found fulltime employment the day after the accident at a wage of $8.00 per hour ($16,000 per year) and

* would have remained so employed until retirement;

* that her employer would have provided additional contributions amounting to 3.7% of her income in the form of a “401(k)” or similar retirement benefit;

* that her income would increase by 4.25% per year, and that Pomeroy, her dependent adult son,

*would have continued to live 24 years into the future even though the witness knew that he had died before trial.

*The defendants also objected to the witness’ failure to consider the life expectancy of the
decedent’s husband in arriving at the economic value of her
lost household services.


The Court said (from SW Virginia Law Blog):


In Vasquez v. Mabini, the Virginia Supreme Court concluded that the testimony of an expert witness in a wrongful death case should have been excluded because of its unreliability.

The expert gave testimony based on assumptions that the decedent (who in life never made more than $7,000 in a year) would get a job paying at least $16,000 per year, get a 401(k) savings plan, get a bunch of raises, and so on.

The Court explained:"We have never, however, construed [Va. Code 8.01-401.1] to permit the admission of expert testimony that lacks evidentiary support. . . . Estimates of damages based entirely on statistics and assumptions are too remote and speculative to permit 'an intelligent and probable estimate of damages.' . . . .

Expert testimony founded upon assumptions that have no basis in fact is not merely subject to refutation by cross examination or by counter-experts; it is inadmissible. . . . Furthermore, expert testimony is inadmissible if the expert fails to consider all the variables that bear upon the inferences to be deduced from the facts observed."

Analyzing the expert's conclusions that the decedent would have obtained full-time work, what it would have paid, what raises she would have obtained, were all not based in fact, even where they involved otherwise valid statistics.

The Court concluded:"Because the expert testimony was based upon fictional assumptions not supported by the evidence, it was speculative and unreliable as a matter of law and should have been stricken."