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Vasquez v. Mabini1/14/2005
ult son, would have continued to 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 ยง 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).
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 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 statis
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