Chapter 7 - 7.2 Other Expert Considerations

• Jurisdiction: Virginia

7.2 OTHER EXPERT CONSIDERATIONS

7.201 Using the Expert Against the Proponent. If the opposing party has identified an expert whose views will help your client's case, then consideration should be given to identifying this expert as a witness on the theory that the designation or statement of the witness then constitutes an admission.

7.202 Learned Treatises (Rule 2:803(18)).⁵⁶ When expert witnesses are being questioned, they often allude to statements contained in learned treatises. the admission of these statements is controlled by section 8.01-401.1 of the Virginia Code. the statute creates an exception to the hearsay objection to the extent that the treatise is either relied on by the expert or used by an opposing party in cross-examination of the expert. If a party intends to introduce these statements on direct examination through an expert, copies of the statements must be provided to opposing parties 30 days before trial or within the time ordered by the court. If the standard scheduling order has been entered, it may be advisable to make these statements identifiable 90 or 60 days pretrial. The requirement of having "relied upon" the published treatise was eliminated in Virginia in 2013.⁵⁷

The rules governing the use of learned treatises are as follows:

1. The statement must have been published in a treatise, periodical, or pamphlet.⁵⁸ it is questionable whether a website qualifies.

2. On direct examination the statement may be read into evidence, provided that:

• It has been established as being authoritative; and

• It has been identified with specificity 30 days before trial.

3. To be used in cross-examination:

• It must have been established as being reliable authority through either that witness or some other witness; or

• It must have been relied upon by the expert in direct examination or brought to the expert's attention on cross; and

• It must have been provided and identified with specificity 30 days before trial.

The statement may be inadmissible for other reasons, for example, because it contains evidence of similar experiments that are inadmissible. The statement need not have been relied upon by the expert at the time of forming an opinion to be admissible.

Comment: It is unlikely that the opposing expert is going to agree that the statement is a reliable authority, but it may be that, through reference to the treatise, counsel can convey the message that learned people disagree on the issue at hand.

7.203 Use of Treating Doctor as Expert Witness.

A. In General. Designation of a treating doctor must be specific and should not simply rely upon the doctor's chart. Under section 8.01-399 of the Virginia Code, anything not in the chart may not be admissible. As a defendant in a malpractice action, the treating physician is entitled to give factual testimony regarding the circumstances of treatment that affected or would have affected his or her treatment decisions.⁵⁹

B. Potential Issues.Testimony Is Factual and Not Diagnostic. In a medical...