Rule 2:702. Testimony by Experts (rule 2:702(a)(i) Derived from Code § 8.01-401.3(a)

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Rule 2:702. TESTIMONY BY EXPERTS (Rule 2:702(a)(i) derived from Code § 8.01-401.3( A)

(a) Use of Expert Testimony.

(i) In a civil proceeding, if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

(ii) In a criminal proceeding, expert testimony is admissible if the standards set forth in subdivision (a)(i) of this Rule are met and, in addition, the court finds that the subject matter is beyond the knowledge and experience of ordinary persons, such that the jury needs expert opinion in order to comprehend the subject matter, form an intelligent opinion, and draw its conclusions.

(b) Form of opinion. Expert testimony may include opinions of the witness established with a reasonable degree of probability, or it may address empirical data from which such probability may be established in the mind of the finder of fact. Testimony that is speculative, or which opines on the credibility of another witness, is not admissible.

NOTES

Subdivision (a)(i). Expert testimony is admissible not only when scientific knowledge is required, but when experience and observation in a special calling give the expert knowledge of a subject beyond that of persons of common knowledge and ordinary experience. Online Res. Corp. v. Lawlor, 285 Va. 40 (2013) (expert tendered for testimony on executive compensation based on stock prices need not be expert in stock valuation).

The Virginia Code provision implemented in this Rule of Evidence governs in civil cases. The Virginia Code section and Rule authorize expert testimony in any situation where it would be helpful to the trier of fact. See Keesee v. Donigan, 259 Va. 157 (2000); Breeden v. Roberts, 258 Va. 411 (1999); Holmes v. Doe, 257 Va. 573 (1999) (testimony on general principles); see also Norfolk S. Ry. v.

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Bowles, 261 Va. 21 (2001); Hoar v. Great E. Resort Mgmt., Inc., 256 Va. 374 (1998).

Medical-related testimony. On the issue of whether expert testimony is required in a case involving bodily injury or condition and medical care, compare Summers v. Syptak, 293 Va. 606 (2017) (causal connection between alleged malpractice and exacerbation of pre-existing conditions is a complicated medical question not within the understanding of a lay person), with two cases holding that an expert was not required: Webb v. Smith, 276 Va. 305 (2008) (causation by failure to perform one of two agreed-upon procedures) and Coston v. Bio-Medical Applications of Virginia, Inc., 275 Va. 1 (2008) (defective treatment chair). See Holt v. Chalmeta, 295 Va. 22 (2018) (proof of the standard of care); Norfolk & W. Ry. v. Keeling, 265 Va. 228 (2003) (biomechanical testimony about conditions of the inner ear); John v. Im, 263 Va. 315 (2002) (brain injury); Phillips v. Southeast 4-H Educ. Ctr., Inc., 257 Va. 209 (1999) (testimony by EMT); Nichols v. Kaiser Found. Health Plan, Inc., 257 Va. 491 (1999) (causation proof in prescription negligence case); Combs v. Norfolk & W. Ry., 256 Va. 490 (1998) (biomechanical engineer testimony). But see Fitzgerald v. Commonwealth, 273 Va. 596 (2007) (testimony of licensed professional counselor); Conley v. Commonwealth, 273 Va. 554 (2007) (testimony by licensed clinical social worker). An expert need not be licensed to practice the discipline in the Commonwealth unless subject-specific statutes so provide. See Commonwealth v. Allen, 269 Va. 262 (2005) (sexual predator expert proof statute changed after trial). Compare Dagner v. Anderson, 274 Va. 678 (2007) (emergency doctor's testimony on causation of seizures).

Standard of care in medical malpractice actions. Several decisions bear on the requirements for admissible testimony on the standard of care in medical malpractice cases. See Holt v. Chalmeta, 295 Va. 22 (2018) (addressing the statutory presumption regarding standard of care, the "knowledge requirement," the "active clinical practice," and "actual performance of the procedures at issue" requirements in context of proffered expert pediatrician testimony); Sami v. Varn, 260 Va. 280 (2000) (witness qualified in different discipline). On testimony by a nursing home administrator concerning the standard of care for professional services in nursing homes, see Our Lady of Peace v. Morgan, 297 Va. 832 (2019). See also Christian v. Surgical Specialists of Richmond, Ltd., 268 Va. 60 (2004) (qualification of out-of-state expert under Code § 8.01-581.20) .

Chiropractors, podiatrists, physician assistants, and nurses. Regarding testimony by chiropractors and podiatrists on medical issues, see Virginia Code § 54.1-2900 (including "diagnosis" of physical conditions), § 8.01-401.2:1 (precluding testimony of podiatrists as expert witnesses in medical malpractice proceedings against a doctor of medicine or osteopathic medicine), and § 8.01-401.2 (authorizing a doctor of chiropractic, or a physician assistant or nurse practitioner, when properly qualified, to testify as an expert as to etiology, diagnosis, prognosis...