Chapter 7 - 7.1 Objections To Or Attacks On Experts

• Jurisdiction: Virginia

7.1 OBJECTIONS TO OR ATTACKS ON EXPERTS

7.101 In General. The general types of objections or attacks that can be raised to either expert witnesses or to expert testimony are:

• The matter is within the common knowledge of the fact-finder. If it is, there is no need for an expert. Therefore, a lay person should be able to testify to this issue. For instance, if the issue is whether or not the person is in pain, that does not require expert knowledge. This opens up many possibilities allowing the testimony of lay persons;¹

• Daubert objection;²

• Lack of qualifications;³

• Lack of foundation;⁴

• The expert testimony has not been adequately identified;⁵

• Designation not timely;⁶

• Bias or lack of independence;⁷

• Improper hearsay;⁸

• Ultimate issue;⁹

• Number of witnesses;¹⁰

• Form of questions;¹¹ and

• Use of hypothetical.¹²

7.102 Common Knowledge. Section 8.01-401.3(A) and Rule 2:702 state that, in a civil matter, a qualified expert is permitted to testify to assist the trier of fact if the specialized nature of the subject matter requires it. Put another way, the inquiry is: (i) is the matter beyond the knowledge of the average lay person, and (ii) will the expert aid the fact-finder in understanding the issues in the case. Expert testimony, therefore, may be objectionable if the subject matter is within the common knowledge of the fact-finder and does not require special knowledge or training to draw conclusions.

In criminal proceedings, the same standards apply as those stated in Rule 2:702(a)(i).¹³ For example, the use of expert testimony when cases involve eyewitness identification has been the subject of several Virginia cases when experts are being offered because of the unreliability of identification after situations "involving stress, poor lighting, or delay" that are often found to be topics within the knowledge of jurors.¹⁴

A. Malingering. Expert testimony is permitted on the issue of witness competency,¹⁵ but experts are not permitted to testify concerning the veracity of witnesses.¹⁶ This may also extend to the issue of malingering by the plaintiff in that this determination is within the province of the jury.¹⁷ This type of testimony may rear its head in the guise of "secondary gain" or "somatoform disorder" or in other ways.

B. Expert on Expert. In Brown v. Corbin,¹⁸ the Virginia Supreme Court said the testimony of one expert that another expert's investigation was not adequate or not credible is objectionable as this is a fact that is in the province of the jury and not appropriate for comment by the expert.

7.103 Reliability of the Science (Daubert Objection). Expert testimony is subject to objection when it is founded on speculation or on assumptions that do not have an adequate factual basis.¹⁹ Unlike the federal courts, the Virginia supreme Court has left open the question whether the Daubert rule²⁰ applies,²¹ so the trial courts have a great deal of discretion over the admissibility of this type of evidence. In Billips v. Commonwealth,²² the court held that the use of a...