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  • Norman A. Thomas

Expert Testimony Revisited: Adequate Foundation and Virginia Courts’ Gatekeeper Role

On April 13, 2017, the Virginia Supreme Court issued a decision reemphasizing the “adequate foundation” requirement for expert testimony in Virginia. Toraish v. Lee, 2017 Va. LEXIS 61 (Va. 2017). Justice William C. Mims authored the opinion for an unanimous Court. I observed the March 1st oral arguments in this appeal.

The underlying medical malpractice case resulted from the tragic death of a five-year old boy. His death followed outpatient surgery for a sleep apnea condition. The surgeon, Dr. Lee, successfully performed the planned tonsillectomy and adenoidectomy. Post-surgery, nurses and anesthesiologists monitored the child for a time, and the hospital discharged him. His mother, Ms. Toraish, took him home, administered prescribed medication, and “laid him down for a nap. Thirty minutes later, she found him unresponsive. He was rushed to the hospital where he was pronounced dead.”

A pathologist conducted an autopsy, and concluded that the child died from a “cardiac arrhythmia of unknown etiology.” The autopsy report noted the existence of “nothing of significance” from the heart’s microscopic examination. But it noted that “an underlying cardiac channelopathy or cardiac conduction system disorder cannot be ruled out especially given that the child was the product” of a marriage between first cousins. Indeed, the couple previously experienced the loss of two other children born of their union.

Toraish, her son’s administrator, filed suit against Dr. Lee and his medical practice. She alleged that her son “was at a high risk for postoperative ‘respiratory compromise’ due to his severe obstructive sleep apnea” condition. She contended that Dr. Lee violated the standard of care “by failing to order that he be monitored overnight following surgery.”

Dr. Lee, a Board-certified otolaryngologist, testified that he did not know of the consanguineous marriage, “or the fact that two siblings had died of genetic problems.” Defense counsel inquired whether he would have recommended the surgery if he’d known these facts. Over Toraish’s objection, Dr. Lee answered that he “would not – knowing that there could be a genetic defect, there would be no way that I could recommend any surgery at that time.” Toraish asserted the inadmissibility of the testimony as “in the nature of expert testimony.”

That testimony provided one appellate issue. Another arose from the testimony of Dr. Simeon Boyd, a defense expert. Dr. Boyd, a Board-certified pediatric geneticist, testified “as an expert in genetics and on the cause” of the child’s death. He provided a purported “differential diagnosis,” that is, one whereby he “would narrow down the possible causes of death until only one remained.” Following genetic testing of a DNA sample and other investigation, Dr. Boyd testified that the child died from “cardiac arrest due to Brugada syndrome.” That genetic disease predisposes its sufferers to an increased risk of sudden cardiac death.

Toraish objected to Dr. Boyd’s conclusion that her son died from Brugada syndrome. She asserted that Dr. Boyd lacked qualification to exclude postoperative respiratory compromise as the cause, and thus his opinion lacked an “adequate factual foundation.” The trial court overruled the objection.

Following a defense jury verdict, Toraish appealed. In its decision, the Court annotated numerous established legal principles pertaining to admission of expert testimony. For example, it stated the admission of expert testimony lies in the sound discretion of the trial court. On review, the Court will not reverse the trial court unless it abuses that discretion. It went on to state that expert testimony “is generally admissible if it will aid the trier of fact in understanding the evidence.” But, that admissibility hinges on “certain fundamental requirements, including…that the evidence be based on an adequate foundation.”

Turning to a discussion of Va. Code §8.01-401.1, the Court noted that the statute provides for expert opinion testimony in civil cases. Such testimony must derive “from facts, circumstances or data made known to or perceived by” the witness, or from “information normally considered by” experts in the field. The Court cautioned that while the statute “liberalized the admissibility of expert testimony,” it did not sanction such testimony “based on mere assumption” that lacks evidentiary support.

The Court here identified the gatekeeper function of Virginia’s trial courts regarding expert testimony. In sum: “Expert testimony founded upon assumptions” that (1) have no basis in fact, or (2) is founded on an “insufficient” factual basis, may not be admitted. The most difficult category for trial judge discernment, opinion testimony founded on an alleged insufficient factual basis, presents the greatest risk of reversible error.

As to Dr. Boyd’s differential diagnosis, the Court stated that “to opine that [the child] died from Brugada syndrome, he needed to exclude postoperative respiratory compromise as a cause of death.” Upon reviewing the record, the Court ruled that Dr. Boyd failed to do so. Thus, the trial court reversibly erred in admitting the opinion testimony.

In so ruling, the Court examined the pathologist’s report, and concluded that her speculative comment about a genetic cause did not exclude respiratory compromise as the cause of death. This finding wholly undermined Dr. Boyd’s opinion, as it was “founded upon an assumption that was not established during the trial.”

During oral argument before the Court, Dr. Lee offered an alternative ground in support of Dr. Boyd’s testimony. Another defense expert, Dr. Mario A. Casolaro, a Board-certified pulmonologist, opined “to a reasonable degree of medical certainty that [the child] did not die from respiratory compromise.” Dr. Casolaro, however, testified by de bene esse deposition taken months after Dr. Boyd formed his causation opinion. The Court ruled that “[i]t is therefore impossible for Dr. Boyd to have relied upon [Dr. Casolaro’s] deposition testimony when forming his differential diagnosis.” Moreover, in recounting the sources of his opinion, Dr. Boyd did not testify that he relied on Dr. Casolaro’s conclusions.

Because it intended to reverse and remand for a new trial, the Court also reviewed the admissibility of Dr. Lee’s contested testimony. The Court first noted that with proper disclosure, a medical malpractice defendant may serve as an expert in his or her own defense. Dr. Lee’s testimony, however, constituted lay testimony. The Court analyzed it as such.

The Court ruled that the trial court correctly admitted Dr. Lee’s testimony. “As a lay witness, he was permitted to testify as to any matter within his “personal knowledge,” or to opine on matters “reasonably based upon [his] personal experience or observations.” On that basis, Dr. Lee properly could testify as to his actions and the reasons for taking them.

The Court further held that Dr. Lee’s testimony that he would not have recommended surgery had he known the child’s background, “was not an expert opinion.” Dr. Lee did not thereby address the standard of care, nor did he provide the jury with medical opinion in an effort to assist it “to understand the evidence or determine a fact in issue.” Instead, the Court held that Dr. Lee “simply stated, from his personal knowledge and experience, that he would not have done so.” The Court then concluded that Dr. Lee, as the defendant, “was entitled to give such factual testimony regarding the circumstances that…would have impacted his decision to perform surgery.”


In Toraish, the Court revisited issues of expert testimony admissibility.

In the context of medical malpractice litigation, the Court made clear that the defendant may testify with latitude as a lay witness on what he did, why he did it, and, based on his “personal knowledge and experience,” what he would have done if provided with additional patient information. This was a significant holding. No doubt, trial judges in future med-mal and other professional liability cases will be required to resolve admissibility questions on whether proffered testimony crosses the line from lay to expert testimony.

The Court also re-solidified the trial court’s gatekeeper role as to evidentiary foundation. Expert testimony based on assumptions with a sufficient factual basis is admissible. Proffered expert testimony based upon an insufficient factual basis is inadmissible. Sounds so simple, yet amidst the complexity of a given case, med-mal or otherwise, trial judges will face difficult differentiation issues between the two.

In either situation, a mistake constitutes reversible error. With the time and expense of civil trial preparation and presentation, and of appellate litigation, these admissibility questions take on critical importance.

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