Virginia Client Advisory: Virginia Juries Demonstrate Importance of Expert Testimony and Presenting a Reasonable Defense

CLIENT ADVISORY

 Virginia Client Advisory

Generous Virginia juries demonstrate importance of expert testimony, and presenting a reasonable defense.

In 2024, Virginia juries repeatedly returned verdicts in excess of $1 Million.  Throughout the state, in eight cases involving motor vehicle accidents and other tort claims, juries awarded a combined total of $20.37 Million to injured plaintiffs.  Review of those cases illustrates the importance of preparing well-substantiated expert testimony, and taking a reasonable approach in presenting a strong defense.

Effective Use of Experts

It is no surprise that tort claims often involve complicated issues of causation or damages that are uncommon to a juror’s personal experience.  In those cases, expert witnesses are critical in helping the jury to understand either how the incident occurred, what damages are reasonably related to the incident, or both.  Not all experts are created equal, however, and various factors warrant consideration when evaluating the selection of an expert.

For example, in Estate of Katcham v. John Crane, Inc., a case in Newport News Circuit Court, liability was at issue when plaintiff claimed that the decedent contracted mesothelioma from asbestos-containing gaskets he used at work decades earlier.  The defense expert, a former head of the Occupational Safety and Health Administration (“OSHA”), contended that the decedent’s exposure to the gaskets was insufficient to cause mesothelioma; he testified that it would take 1,000 years of exposure to the product to result in that diagnosis.

Unfortunately for the defense, plaintiff’s evidence showed that multiple medical and scientific organizations directly contradicted that expert testimony – including an OSHA-published opinion stating a mere one or two days of asbestos exposure could cause mesothelioma.  The jury awarded plaintiff $3.45 Million.

While discredited testimony can cause difficulties at trial, problems can also arise when a defendant elects to completely forego use of an expert witness.  In Garner v. Rice Tire, et al, a 2024 case from the Circuit Court of Loudoun County, the evidence showed that plaintiff completed treatment more than two years prior to the trial date.  It appears that the defense did not present expert testimony to rebut plaintiff’s expert’s opinion that the injured party possessed future medical needs, and required a life care plan of $1.2 Million.  The jury took little more than two hours to return a verdict of $4.4 Million.

Moral of the stories?  Experts matter.  It is often worth the time and related expenses to present an expert to offset plaintiff’s claims, even when there are facts which might suggest to the jury that the plaintiff’s claimed expenses are exaggerated.  And it is worth the time and related expenses to thoroughly vet not just the proposed expert’s credentials and work history, but to investigate whether credible resources exist that contradict that expert opinion.

Reasonableness – or the Lack Thereof – Can Impact the Outcome

In the Virginia Beach Circuit Court case of Paul v. Barret, the defendant refused to meaningfully participate in discovery (the process by which the parties exchange information and evidence prior to trial).  There are rules which require parties to cooperate with discovery requests, and penalize those who do not.  After multiple attempts to obtain the information from the unreasonably unresponsive defendant, the Court granted plaintiff’s motion to strike the other party’s defenses and to prohibit the defendant from testifying at trial.  The jury found for the plaintiff in the amount of $3.05 Million.

Another example of unreasonable individual defendants was displayed in Fox v. Warshanna determined by the Loudoun County Circuit Court.  Plaintiffs sued for malicious prosecution, defamation, and private nuisance after their neighbors engaged in egregious behaviors over a two-year period, including printing and posting dozens of custom signs along the property line which accused plaintiffs of engaging in animal cruelty, bestiality, white supremacy, public nudity, and terrorism.  The jury found that the plaintiffs had engaged in none of those things, and awarded them $1,491,619.00.

It is not always the unreasonableness of the individual defendant which provokes a plaintiff’s verdict.  Some of the 2024 cases demonstrate that insistence upon what in retrospect might have been an unreasonably harsh defense position is not necessarily rewarded by the jury.

For example, in Garner v. Rice Tire, et al, where plaintiff’s last treatment occurred more than two years prior to trial, the defense argued that plaintiff was “just fine,” and did not need additional medical treatment or the $1.2 Million life plan presented by plaintiff’s expert.  Minimizing plaintiff’s claims was an ineffective strategy in that case; the jury awarded plaintiff $4.4 Million.  Similarly, a jury in Norfolk Circuit Court returned a verdict of $1.2 Million in favor of sisters of the deceased, despite the defense argument that the nonverbal, unmarried, and childless status of decedent meant that there were no economic losses.

Unreasonableness is not always displayed in characterization of the plaintiff.  In the Culpeper County case of O’Shea v. Johnson, the defense insisted on calculating plaintiff’s lost wages based only upon her $35,000 annual base salary, although the evidence showed that plaintiff’s income included commissions and had increased from $50,000 and $300,000 in the years prior to the crash.  The jury agreed with plaintiff’s argument that commissions were compensable, and returned a verdict in the amount of $1.38 Million.

Moral of the stories?  Juries appreciate reasonable conduct – both by the parties involved, and the positions they take at trial.

Cynthia A. King, Esquire is a member of TTH’s general liability, commercial, and business litigation sections.  Questions about this advisory can be directed to Cynthia at (804) 566-3571 or cking@tthlaw.com.