PRESENT: Carrico, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Compton, S.J.
SARAH A. JOHN, M.D.
v. Record No. 010759 OPINION BY JUSTICE BARBARA MILANO KEENAN
March 1, 2002
WONG SHIK IM
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Marcus D. Williams, Judge
In this appeal, we consider whether the trial court abused
its discretion in excluding evidence of a quantitative
electroencephalogram (QEEG test) and the testimony of expert
witnesses that was based on this evidence.
In July 1998, Sarah A. John, M.D., was a passenger in an
automobile that was struck from behind by a vehicle driven by
Wong Shik Im, an uninsured motorist. John filed a motion for
judgment against Im and obtained service of process on uninsured
motorist carriers State Farm Mutual Automobile Insurance Company
and United Services Automobile Association Casualty Insurance
Company (collectively, State Farm). John alleged, among other
things, that as a result of the collision she "suffered severe
permanent physical injury."
In support of her claim, John proffered expert testimony
that was based on an analysis of a QEEG test performed on her
after the accident. In a QEEG test, the electrical activity of
the brain is measured and converted into a digital format to
facilitate analysis of and to detect deviations from normal
brain functioning.
John offered into evidence the de bene esse deposition
testimony of Robert W. Thatcher, who holds a doctorate in
psychology and was program director of QEEG testing at the Bay
Pines Veterans Administration Hospital in Florida. Thatcher is
a colleague of John's father, Dr. E. Roy John, and collaborated
with him in developing QEEG testing and in writing several books
and articles on this subject.
Based on the results of the QEEG test performed on John,
Thatcher concluded that there was "very clear evidence" that
John suffered an injury to her brain that was caused by a "rapid
acceleration/deceleration" trauma. Thatcher stated that he was
unable to determine when the injury occurred, and that the
"rapid acceleration/deceleration" trauma was not necessarily
caused by an automobile accident, but could have been caused by
an assault or by "[a]ny number of events."
Thatcher also stated that he did not observe the QEEG test
performed on John, but reviewed the test results he received
from a person he identified as "Dr. Sitar." Thatcher was
unaware of Sitar's occupation, including whether Sitar was a
medical doctor or a physical therapist. Thatcher did not know
anything regarding Sitar's training, how long Sitar had
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conducted QEEG tests, or whether Sitar personally performed the
QEEG test on John or employed a technician for that purpose.
Thatcher testified that there are no "control conditions"
required for accurate performance of a QEEG test, other than
having a patient sit "with her eyes closed," and that the
testing data indicated that John's eyes were closed when the
test was conducted. Although Thatcher was aware that John was
taking the medications Neurontin and Ritalin, he did not know
when she had last taken them before the QEEG test. He stated
that medications such as Neurontin can "globally affect" a
patient's QEEG test results, and that John's QEEG test results
demonstrated "a very specific pattern" indicating a particular
type of brain injury.
Thatcher also acknowledged that drowsiness in a patient can
affect QEEG test results. However, when asked if John was
drowsy during her QEEG test, Thatcher initially replied, "You
would have to ask Dr. Sitar." Thatcher later stated that he
knew "with certainty" that John had not been drowsy at the time
of the test based on his review of John's QEEG test results.
In addition to Thatcher's deposition testimony, John also
offered into evidence the de bene esse deposition testimony of
John K. Nash, Ph.D., a licensed psychologist. Nash testified
that during his examination of John, she informed him that she
had developed several symptoms after the accident, including
3
slowed thinking and difficulty organizing her thoughts and
concentrating.
Based on these symptoms, and on Thatcher's analysis of
John's QEEG test results, Nash concluded that John had sustained
a "mild traumatic brain injury that she suffered as a result of
the impact and the sudden acceleration-deceleration of her head
in [the] car accident." Nash further testified that he was not
a forensic psychologist or a medical doctor, and that the
medications John was taking at the time of her QEEG test should
be "taken into account" in analyzing her test results.
State Farm filed a motion in limine seeking to exclude the
testimony of Thatcher and Nash. State Farm asserted that the
expert testimony should be excluded because, among other
reasons, it lacked a proper foundation. State Farm also argued
that the expert testimony was inadmissible because QEEG testing
had not been established as reliable scientific evidence under
the evaluation criteria set forth in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993).
The trial court entered an order excluding the testimony of
both Thatcher and Nash. 1 Relying on our decision in Tittsworth
v. Robinson, 252 Va. 151, 475 S.E.2d 261 (1996), the trial court
held that "there were potential testing variables, including,
1
The judge who rendered this decision was the Honorable R.
Terrence Ney.
4
but not limited to, the medication that Dr. John was taking at
the time of the test, which could affect the outcome of the test
. . . that . . . cannot be appropriately accounted for." The
order further stated that the QEEG testing technique relied on
by Thatcher did not meet the criteria for scientific reliability
set forth in Daubert.
The trial court also held that Nash's testimony was
inadmissible because it was based on Thatcher's analysis of the
QEEG test results. The court excluded Nash's testimony on the
additional ground that Nash was not qualified to make a medical
diagnosis or to state a medical opinion that John's injury was
related to the automobile accident.
Upon trial of the case, the jury awarded John $10,700 in
damages, and the trial court entered judgment on the jury
verdict. John appeals from this judgment.
John argues that the trial court abused its discretion in
excluding the testimony of Thatcher and Nash on the grounds that
the evidence lacked a sufficient foundation. John contends that
the QEEG test, on which this testimony was based, is an
"objectively verifiable" physical test, and that the effect of
any testing conditions on the results obtained was a matter
subject to cross-examination.
In response, State Farm asserts that the trial court
properly excluded the disputed expert testimony because the
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testimony lacked a sufficient factual basis, did not take into
account all testing variables, and did not assess the effect of
those variables on the test results. State Farm also argues
that the trial court properly ruled that Nash was not qualified
to render a medical diagnosis or to give a medical opinion
regarding the cause of John's injuries. We agree with State
Farm's arguments.
In civil cases, expert testimony generally is admissible if
it will assist the trier of fact in understanding the evidence.
See Code §§ 8.01-401.1 and –401.3; Keesee v. Donigan, 259 Va.
157, 161, 524 S.E.2d 645, 647 (2000); Tittsworth, 252 Va. at
154, 475 S.E.2d at 263. However, the admission of expert
testimony is subject to certain basic requirements, including
the requirement that the evidence be based on an adequate
foundation. Id.; Tarmac Mid-Atlantic, Inc. v. Smiley Block Co.,
250 Va. 161, 166, 458 S.E.2d 462, 465 (1995). The decision
whether to admit such testimony is a matter committed to the
trial judge's sound discretion, and we will reverse a trial
court's determination in this regard only when the court has
abused its discretion. Lockheed Info. Mgmt. Sys. Co. v.
Maximus, Inc., 259 Va. 92, 111, 524 S.E.2d 420, 430 (2000);
Virginia Power v. Dungee, 258 Va. 235, 258, 520 S.E.2d 164, 177
(1999); Tarmac, 250 Va. at 166, 458 S.E.2d at 465.
6
Expert testimony is inadmissible if it is speculative or
founded on assumptions that have an insufficient factual basis.
Keesee, 259 Va. at 161, 524 S.E.2d at 648; Tittsworth, 252 Va.
at 154, 475 S.E.2d at 263; Tarmac, 250 Va. at 166, 458 S.E.2d at
466. Such testimony is also inadmissible when an expert has
failed to consider all variables bearing on the inferences to be
drawn from the facts observed. ITT Hartford v. Virginia
Financial Assoc., 258 Va. 193, 201, 520 S.E.2d 355, 359 (1999);
Tittsworth, 252 Va. at 154, 475 S.E.2d at 263; Tarmac, 250 Va.
at 166, 458 S.E.2d at 466.
In reviewing a trial court's ruling on the admissibility of
expert testimony, we are limited to an examination of the record
before us. Greater Richmond Transit Co. v. Wilkerson, 242 Va.
65, 68 n.2, 406 S.E.2d 28, 31 n.2 (1991); see McDonald v.
National Enterprises, Inc., 262 Va. 184, 195, 547 S.E.2d 204,
211 (2001); Commonwealth v. Williams, 262 Va. 661, 669, 553
S.E.2d 760, 764 (2001). Thus, in deciding this appeal, we
decline John's request that we consider several articles
concerning QEEG testing that she failed to submit to the trial
court.
We hold that the record before us supports the trial
court's determination excluding the challenged testimony. The
initial deficiency in the foundation evidence was Thatcher's
inability to identify the person who actually performed the QEEG
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test on John. Without this information, the testing conditions
and procedures could not be ascertained.
A second deficiency in the foundation evidence was
Thatcher's inability to account for the testing variables
involving John's use of certain medications. In testifying
concerning a prior study he had conducted on QEEG testing,
Thatcher stated that the possible effects of medication on such
tests should be considered with caution. However, Thatcher
conceded that he did not know when John had last taken her
Ritalin and Neurontin medications prior to the QEEG test. He
also failed to state whether John's use of Ritalin could have
had any effect on her QEEG test results. Finally, Thatcher
testified that Neurontin can "globally affect" test results, but
did not specify whether he observed such an effect in the
results of the test performed on John.
A third deficiency in the foundation evidence concerned
Thatcher's conflicting responses when asked about the testing
variable of drowsiness. After acknowledging that drowsiness in
a patient can affect some portions of QEEG test results,
Thatcher first stated that he did not know whether John had been
drowsy when the test was conducted, but later stated that he was
certain that John was not drowsy at the time of the test. Based
on these omissions and inconsistencies in the evidence, we hold
that the trial court did not abuse its discretion in concluding
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that the evidence was insufficient to lay a foundation for the
testimony of Thatcher and Nash involving the QEEG test performed
on John and their conclusions based on the results of that test.
We also hold that the trial court properly excluded Nash's
opinion testimony that John sustained a mild traumatic brain
injury as a result of the automobile accident. An opinion
concerning the causation of a particular physical human injury
is a component of a diagnosis, which is part of the practice of
medicine. Combs v. Norfolk & W. Ry. Co., 256 Va. 490, 496, 507
S.E.2d 355, 358 (1998). Nash was a licensed psychologist, not a
medical doctor. Therefore, since Nash was not a medical doctor,
he was not qualified to state an expert medical opinion
regarding the cause of John's injury. 2 See id. at 496-97, 507
S.E.2d at 359.
2
We note that in Velazquez v. Commonwealth, 263 Va. 95, 557
S.E.2d 213 (2002), we recognized an exception to the general
rule that only a medical doctor may render an opinion regarding
the cause of a physical human injury. There, in a trial on an
indictment alleging rape, a Sexual Assault Nurse Examiner (SANE)
qualified as an expert witness on the subject of sexual assault
injuries. The record showed that the SANE had been a registered
nurse for 26 years, had received special training to qualify as
a SANE, and had examined approximately 500 victims of sexual
assault. We held, in relevant part, that although the SANE was
not a medical doctor, she was qualified under the facts
presented to render an expert opinion concerning the “causation
of injuries in the context of an alleged sexual assault.” Id.
at 104, 557 S.E.2d at 218. Because our holding in Velazquez is
limited to the unique context of a SANE's expert opinion
concerning the causation of injuries in a sexual assault case,
that holding does not change the general rule stated above that
only a medical doctor may give an expert opinion about the cause
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Because the testimony of Thatcher and Nash was inadmissible
for the reasons stated above, we do not reach the merits of the
issue whether that evidence also failed to meet the criteria for
scientific reliability articulated in Daubert, 509 U.S. at 589.
We note, however, that we have not previously considered the
question whether the Daubert analysis employed by the federal
courts should be applied in our trial courts to determine the
scientific reliability of expert testimony. 3 Therefore, we leave
this question open for future consideration.
For these reasons, we will affirm the trial court's
judgment.
Affirmed.
of a physical human injury. See Combs, 256 Va. at 496-97, 507
S.E.2d at 358-59.
3
Prior to Daubert, however, we discussed the trial court's
role in making a threshold finding of scientific reliability
when unfamiliar scientific evidence is offered. See Satcher v.
Commonwealth, 244 Va. 220, 244, 421 S.E.2d 821, 835 (1992),
cert. denied, 507 U.S. 933 (1993); Spencer v. Commonwealth, 240
Va. 78, 97-98, 393 S.E.2d 609, 621, cert. denied, 498 U.S. 908
(1990).
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