 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Vasquez v. Mabini1/14/2005
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 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 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.
|