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Vasquez v. Mabini1/14/2005
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 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 ad
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