Present: Lacy, Keenan, Koontz, Kinser, Lemons and Agee, JJ.,
and Russell, S.J.
ROGELIO VASQUEZ, et al. OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 040913 January 14, 2005
APOLINARIO MABINI, as Joint Heir and
Administrator of the Estate
of Tamara Jane Mabini
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Dennis J. Smith, Judge
This appeal presents questions whether expert testimony
was erroneously admitted in the trial of a wrongful death case
and whether objections to the testimony were waived.
Facts and Proceedings
The facts will be summarized in the light most favorable
to the plaintiff, the prevailing party at trial. On
January 29, 2002, at about 12:45 p.m., while Tamara Mabini was
standing at the intersection of Routes 6363 and 602 in Reston,
she was struck from behind and killed by a Fairfax County
Connector bus. The bus was driven by Rogelio Vasquez, an
employee of First Transit, Inc., which operated the bus
service under a contract with Fairfax County.
At the time of her death, Mrs. Mabini was 53 years old.
She had been employed as a part-time clerical worker earning
$8.00 per hour for the preceding three months but was seeking
full-time clerical employment. She was living with her
husband, Apolinario Mabini, and her adult son by a former
marriage, Matt Pomeroy, who was in his late twenties. Pomeroy
was bipolar and had emotional and psychological problems. He
had worked only sporadically and was dependent upon Mrs.
Mabini for most of his care. Pomeroy died on June 2, 2002,
less than six months after his mother’s death. In addition to
her part-time employment, Mrs. Mabini had devoted some 36
hours per week to caring for her household.
Three months before the accident, the Mabinis had moved
to Virginia from Texas. Mrs. Mabini had worked there for over
a year as a clerical worker and earlier had worked as a
hairdresser for 27 years. A primary motivation for the
family’s move to Virginia had been Mrs. Mabini’s desire to be
near her married daughter and three-year-old grandchild, who
lived in Falls Church. She had an “extremely close”
relationship with them and gave them considerable household
assistance.
Apolinario Mabini brought this action for wrongful death
as administrator and representative of the beneficiaries of
Mrs. Mabini’s estate, against Vasquez and First Transit, Inc.
A three-day jury trial ended January 15, 2004, with a verdict
of $1,999,872.00 for the plaintiff, upon which the trial court
entered final judgment. We granted the defendants an appeal
limited to a single assignment of error: that the trial court
abused its discretion in permitting plaintiff’s expert witness
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to present opinion testimony that was “speculative,
counterfactual, and unsupported by the evidence in the case.”
At trial, the plaintiff presented the testimony of
Richard B. Edelman, a Professor Emeritus of Finance at The
American University, as an expert witness with regard to the
decedent’s expected loss of income and the economic value of
the loss of her services, protection, care and assistance. No
objection was made to his 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 full-
time 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
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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.
Discussion
A. Expert Testimony
Code § 8.01-401.1 provides that an expert witness in a
civil case may testify and render an opinion “from facts,
circumstances or data made known to or perceived by such
witness at or before the hearing or trial,” and that such data
need not be such as to be admissible in evidence “if of a type
normally relied upon by others in the particular field of
expertise. . . .” We have never, however, construed that
section to permit the admission of expert testimony that lacks
evidentiary support. Lawson v. Doe, 239 Va. 477, 483, 391
S.E.2d 333, 336 (1990). Estimates of damages based entirely
on statistics and assumptions are too remote and speculative
to permit “an intelligent and probable estimate of damages.”
Bulala v. Boyd, 239 Va. 218, 233, 389 S.E.2d 670, 677 (1990).
In order to form a reliable basis for a calculation
of lost future income or loss of earning capacity, such
evidence must be grounded upon facts specific to the
individual whose loss is being calculated.
Id. (emphasis added).
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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.
Virginia Financial Assoc. v. ITT Hartford Group, 266 Va. 177,
183, 585 S.E.2d 789, 792 (2003). Failure of the trial court
to strike such testimony upon a motion timely made is error
subject to reversal on appeal. Countryside Corporation v.
Taylor, 263 Va. 549, 553, 561 S.E.2d 680, 682 (2002); Gilbert
v. Summers, 240 Va. 155, 159-61, 393 S.E.2d 213, 215-16
(1990). 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.
Countryside, 263 Va. at 553, 561 S.E.2d at 682.
Here, the Edelman testimony was inadmissible for all the
foregoing reasons. The economic value of the decedent’s lost
income was projected from a base of $16,000 per year,
beginning the day after the accident and continuing until
retirement, based upon an assumption of full-time clerical
work with added annual increases and fringe benefits. On
cross-examination, however, the expert admitted that Mrs.
Mabini had little experience as a clerical worker, had earned
less than $1000 the previous year and that her annual earnings
for the preceding several years had never exceeded $7000. She
had been seeking full-time clerical employment since moving to
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Virginia, but had been unable to find anything but part-time
work. The record does not show that she had ever held full-
time employment or received any fringe benefits. She was not
seeking employment as a hairdresser, despite her experience in
that occupation, but the expert’s opinion was that her
potential earnings would be approximately the same in either
field. On similar facts, we have previously held that such
projections lack the required grounding in the applicable
facts, and hence are inadmissible. See Greater Richmond
Transit Co. v. Wilkerson, 242 Va. 65, 71-72, 406 S.E.2d 28, 33
(1991).
The expert’s assumption that the decedent would have
received a 3.7% retirement benefit in addition to her salary
was premised on his further assumption that she would have
found full-time clerical employment the day after the
accident. He testified: “most full-time employees get that.”
His conclusion, however, was based only upon a statistic
applied to facts entirely unrelated to the personal
circumstances of the decedent. Similarly, his assumption that
her income would have increased 4.25% each year until
retirement was based upon a statistical projection of wage
rate increases applied to the unfounded assumption of full-
time employment.
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In calculating the value of Mrs. Mabini’s lost services,
protection, care and assistance, the expert made the
assumption that her son, Pomeroy, would have lived throughout
his mother’s remaining life expectancy, an additional 24
years, and that he would continue as an adult dependent
throughout that time. In fact, the expert was aware that
Pomeroy had died before trial, less than six months after his
mother’s death. In this respect, the present case is similar
to Countryside, where an expert “assumed a fiction and based
his opinion of damages upon that fiction.” We held that
testimony to be “speculative and unreliable as a matter of
law.” Countryside, 263 Va. at 553, 561 S.E.2d at 682.
B. Waiver
The plaintiff contends that the defendants waived any
objection they might have had to the Edelman testimony by
failing to make a contemporaneous objection in the trial
court. Seven months before trial, the court entered a
scheduling order requiring the parties to identify expert
witnesses at least 90 days before trial. Pursuant to that
order and an interrogatory request, the plaintiff designated
Edelman as his expert and filed a summary of the nature of his
expected testimony. The scheduling order provided that “all
information discoverable under Rule 4:1(b)4(A)[i] . . . shall
be provided” and that objections to witnesses were to be filed
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five days before trial or would be considered waived. The
cited rule requires disclosure of “the substance of the facts
and opinions to which the expert is expected to testify and a
summary of the grounds for each opinion.” The defendants
filed no pretrial objection to Edelman’s proposed testimony
and the plaintiff points to that failure as a waiver. An
examination of the summary filed by the plaintiff, however,
would have given the defendants no reason to object to the
proposed testimony. It contained no figures, recited no work
history and revealed none of the assumptions upon which the
witness intended to rely, particularly those of full-time
employment and ongoing care for Pomeroy despite his death. It
failed to put the defendants on notice of any of the fallacies
in the opinion that would become apparent at trial, and their
failure to make a pretrial objection did not, therefore,
constitute a waiver.
At trial, after the opening statements of counsel and in
the absence of the jury, defense counsel advised the court
that he believed that some of the plaintiff’s expert testimony
might be inadmissible in that “many of the assumptions and
facts that form the basis of his opinion aren’t in accordance
with the evidence of the case” and that “there will be
objection to various of his opinions . . . as assumptions with
no evidentiary support.” The trial court responded: “I’ll
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have to deal with those on an individual bas[i]s. . . .
“[W]e’ll deal with it as he testifies.” The trial court
informed counsel that such objections could be heard at a
bench conference or in the absence of the jury.
The plaintiff’s direct examination of Edelman did not
reveal his reliance upon the unsupported assumptions that
underlay his opinion, and the defendants made no objections at
that stage. Cross-examination was necessary to bring these
matters to light. After a brief redirect, the defendants
moved to strike the Edelman testimony as “founded on
assumptions that have no basis in fact,” citing Tarmac Mid-
Atlantic, Inc. v. Smiley Block Co., 250 Va. 161, 458 S.E.2d
462 (1995). The plaintiff argued that it was premature to
rule on a lack of factual foundation for the expert testimony
because he had not yet completed his case in chief and that he
intended to call further witnesses. The court stated: “I’ll
wait till the evidence comes out,” but further observed: “I’m
not concerned about his arguments on methodology. I think
that becomes an issue for the jury.”
The plaintiff then called four more witnesses, none of
whom gave evidence that would provide any factual support for
the expert’s assumptions to which the defendants had objected.
The plaintiff rested and the defendants renewed their motion
to strike the Edelman testimony. The court overruled the
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motion on the ground that the question of factual support for
the expert’s assumptions created an issue for the jury.
In these circumstances, we cannot say that the defendants
waived their objections to the Edelman testimony. The trial
court was advised, before any evidence had been presented, of
the probability of an objection and the grounds for it. The
trial court deferred a ruling until the evidence was
presented. At the first opportunity, after the flaws in the
expert testimony had become apparent on cross-examination, the
defendants moved to strike it. The trial court postponed a
ruling until the plaintiff had rested, at which time the
defendants renewed their motion.
One of the salutary purposes of our contemporaneous
objection rule, now set forth in Rule 5:25, is to afford the
trial judge a fair opportunity to rule intelligently on
objections while there is still an opportunity to correct
errors in the trial court, see State Hwy. Comm’r. v. Easley,
215 Va. 197, 201, 207 S.E.2d 870, 873 (1974), and to protect
the trial court from litigants asserting error on appeal that
had not been raised at trial. Shocket v. Silberman, 209 Va.
490, 494, 165 S.E.2d 414, 418 (1969). Here, as in
Countryside, the party objecting to flawed expert testimony
made no objection while the testimony was being given, but
moved to strike at its conclusion, after the flaws had become
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apparent, thus giving the trial court a proper opportunity to
correct the error of admitting it. See 263 Va. at 552 & n.2,
561 S.E.2d at 682 & n.2.
Conclusion
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. Because the defendants made a timely motion to
strike the evidence and did not waive their objections to it,
the trial court erred in denying their motion. Because the
jury found for the plaintiff on the issue of negligence and no
error is assigned to that finding, and because there was
evidence, other than the expert testimony, to support an award
of damages, we will reverse the judgment and remand the case
to the trial court for a new trial, limited to the issue of
damages.
Reversed and remanded.
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