Chapter 7 - 7.105 Lack Of Or Inadequacy Of Foundation.

• Jurisdiction: Virginia

7.105 Lack of or Inadequacy of Foundation.³⁰

A. Lack of Foundation. This objection is based on lack of facts on which to base the opinion or the failure to properly define the term "standard of care."

Objection: The facts presented are not adequate to support the opinion, namely, evidence that fails the substantial similarity test,³¹ or the facts are simply unknown.³²

Reply: The testimony is founded on the following facts: . . . .

The objection goes simply to the weight.

May the evidence be admitted on a conditional basis pending further foundation?

Discussion: Keep in mind that opinions must be based on facts. Opinions cannot be based on other opinions. If the facts are simply lacking, that may be a basis for excluding expert testimony. This can lead to a situation where one party proposes that expert evidence of the facts is lacking to preclude the other expert from testifying. If there are competing positions as to the sufficiency of the factual predicate, the court must decide the foundational issue.³³

If a defendant's doctor testifies in an injury case that the plaintiff should have healed within six to eight weeks of the injury:

Objection: Lack of foundation. If the defendant has not set forth the facts supporting this opinion, then it should be stricken.

B. Lack of Similarity of Conditions as to Test or Experimental Data.³⁴ When an expert witness is relying on data generated by tests, admissibility is predicated on proof that the conditions at the time of the test were substantially similar to conditions at the time relevant to the facts at issue.

Objection: There has been no showing that the tests relied on by the expert were conducted under the same conditions as those in this case.

Reply: Permit me to lay a foundation describing the way in which the tests were conducted and how they relate to the facts.³⁵

C. No Foundation as to Meaning of Standard of Care.

Objection: The witness has not testified as to what the term "standard of care" means.

Discussion: In professional liability cases the expert frequently does not understand what the term "standard of care" means. Many of them think it means what they do as the quintessential expert of their profession. That is not what it means. It means what the reasonably prudent practitioner in that field does.

D. Inadequacy of Foundation. This may be slightly different than the lack of foundation objection and may be best highlighted by contrasting the facts your expert relied on versus the facts the opposing expert relied on. Inadequacy of foundation may be best developed through cross-examination and then argument to the jury that the opinions are different because the facts or the level of knowledge are different.

For instance, in an injury case, the defendant's expert said the foundation for the plaintiff's expert testimony on causation was inadequate because the plaintiff's expert had not accounted for a number of unknowns or factors that could have had a bearing on causation. This conflicting evidence is not a basis for dismissal due to inadequate foundation of causation.³⁶

7.106 Inadequate Identification. Failure to properly identify the proposed expert testimony in compliance with the rules is a basis for exclusion.³⁷ A party is not relieved of the duty to disclose the expert's anticipated testimony because the opposing party may have some familiarity with the expert or the opportunity to depose him or her.³⁸ In civil cases, an expert may testify to an opinion or inference and the reasoning that surrounds this without prior disclosure of the underlying facts or data unless the court requires otherwise.³⁹ It is suggested that the designation be framed as follows:

1. subject matter;

2. Facts;

3. Opinions; and

4. summary of grounds for opinions.

Practice Pointer: Counsel frequently tries to pit one expert witness against the other, asking the witness to comment on testimony. This is objectionable on the grounds of lack of identification and other reasons as stated above.

In criminal cases, the facts on which the expert may give an opinion must be disclosed in the expert's testimony or set forth in a hypothetical question.⁴⁰

7.107 Designation Not Timely. The timing for the designation of experts is normally governed by the scheduling order. The uniform order, however, contains the language "[t]he foregoing deadlines will not relieve a party of the obligation to respond to discovery requests within the time periods set forth in the Rules...