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Vasquez v. Mabini1/14/2005
tic 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.
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) . . . shall be provided" and that objections to witnesses were to be filed 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 have to deal with those on an individual bas s. . . . " 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.
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