Evidence 7-4 (A) - Part 2

2013-James v. Owens, Va. Ct. of Appeals, Unpublished, No. 1830-12-1
The Court of Appeals could not address the merits of the father’s contention that expert testimony was improperly excluded because the father failed to proffer the expected testimony of the expert. Where expert testimony is rejected before it is delivered, an appellate court has no basis for adjudication absent a proper proffer of evidence on the record.

2012-Wilson v. Britton, Va. of Ct. Appeals, Unpublished, No. 2344-11-1
Where the trial court allowed an expert for mother to testify to the expert’s conclusions, it was harmless error for the trial court to then refuse to admit the expert’s written report into evidence.

The trial court did not err in admitting a psychologist’s report where the parties agreed to submit to a parental capacity and psychological evaluation, and where the psychologist testified to the same conclusions as were contained in the report. The weight and credibility to be given to the opinion of an expert is a question for the trier of fact. (citing Vissicchio v. Vissicchio, 27 Va. App. 240, 247 (1998)).

2012-Naseer v. Moghal, Va. Ct. of Appeals, Unpublished, No. 2570-11-4
Trial court did not err in accepting testimony of husband’s expert, a Pakistani lawyer, and giving it more weight than the testimony of wife’s expert, who was not a Pakistani lawyer, on matters pertaining to the interpretation of Pakistani divorce law. Where experts offer conflicting testimony, it is within the sound discretion of the trial court to select either opinion. (Citing Rowe v. Rowe, 24 Va. App. 123 (1997)).

2012-Jaouni v. Salah, Va. Ct. of Appeals, Unpublished, No. 0168-11-4
The trial court did not err in permitting a licensed psychologist to testify as to whether he felt alleged incidents of abuse had occurred, despite the fact that the psychologist’s evaluation of the child and parties occurred after the juvenile court had already entered a protective order, and despite the fact that he did not investigate the origin of each and every bruise on the child. The psychologist’s investigation was not limited only to the time frame subsequent to the entry of the protective order, as he performed a detailed and thorough investigation of an extensive range of materials and witnesses. Moreover, the fact that he had not investigated the origin of each and every single bruise did not render his testimony speculative or based on insufficient factual foundation.

2007-John Crane, Inc. v. Jones, 274 Va. 581
A party is not relived from its disclosure obligation under Rule 4:1(b)(4)(A)(i) simply because the other party has some familiarity with the witness or has deposed the witness regarding the substance of his opinions. Such a rule would impermissibly alter a party’s burden to disclose, and instead impose an affirmative burden on the non-disclosing party to ascertain the substance of the expert’s testimony.

Trial court did not err in refusing to allow an expert to testify regarding levels of asbestos in ambient air, where nothing in the Defendant’s expert witness disclosure referenced that particular subject matter. That the Plaintiff questioned the expert at his deposition regarding his opinions on the subject did not matter, as the Defendant still had the duty to disclose those opinions pursuant to Rule 4:1(b)(4)(A)(i).

Trial court did not err in refusing to allow Defendant’s expert to testify where Defendant, despite disclosing the topic on which the expert intended to testify, failed to disclose the substance of the expert’s opinion in the pre-trial disclosures and failed to include in the pre-trial disclosures the report prepared by the expert.

2002-Pritchett v. Commonwealth, 263 Va. 182
Although an expert may testify to a witness’s mental disorder and the hypothetical effect of that disorder on the witness’s situation, an expert witness may not express an opinion as to the veracity of a witness because such testimony improperly invades the province of the factfinder to determine the reliability of a witness. An expert witness’s broad statement that the Defendant “just went along with what [the police officers] said” was inadmissible because it could be construed as an evaluation of the unreliability of the Defendant’s confession and a comment on the truth of the Defendant’s trial testimony contradicting that confession.

2000-Patterson v. Nottoway Co. Dep’t of Social Services, Va. Ct. of Appeals, Unpublished, No. 2528- 99-2
Trial court did not err in allowing a psychologist who had interviewed mother’s children to testify to facts reported to her by the children. Such statements were not inadmissible hearsay, as they were facts, rather than hearsay opinions, considered by the psychologist in forming her opinion as to mother’s perception of reality, and thus fell within the scope of Va. Code §8.01-401.1.

2000-Thompson v. Thompson, Va. Ct. of Appeals, Unpublished, No. 1779-99-2
Nothing in Va. Code §8.01-401.3(B) bars introduction by one party of expert witness testimony designed to impeach the testimony of the other party’s expert witness.

1997-Street v. Street, 25 Va. App. 380
Trial court was justified in finding Husband’s conduct suspect, and was not required to give any weight to uncontradicted expert opinion regarding Husband’s mental condition.

1996-Cole v. Cole, Va. Ct. of Appeals, Unpublished, No. 1570-95-1

Trial court did not err in rejecting opinion of mother’s expert where the expert admitted that she had not met the father, that she had little information about the child’s life with the father, and that she based most of her conclusions about father on information received solely from the mother.

1996-Jenkins v. Commonwealth, 22 Va. App. 508
Trial court did not err in admitting statement made by child to psychologist that the child had “been sexed,” over the hearsay objection by the defendant. The child’s statement assisted the expert in identifying the stressor underlying the child’s mental condition. The expert did not recite the details of a specifically identified offense, nor did he offer any description of the abuser. The statement was not offered for the truth of the matter asserted, but to demonstrate the information forming the basis for the psychologist’s diagnosis of the child’s adjustment disorder.

1996-David A. Parker Enterprises, Inc. v. Templeton, 251 Va. 235
An expert’s opinion is admissible in evidence if it will assist the fact finder about a matter that is not within the range of common knowledge. An expert’s opinion is inadmissible, however, if it relates to matters about which the fact finder is equally as capable as the expert of reaching an intelligent and informed opinion.

1995-Lee Gardens v. Arlington County Board, 250 Va. 534
An individual unqualified to obtain a real-estate appraiser’s license is not qualified to testify as an expert witness as to the value of real estate. Va. Code §54.1-2011 prohibits, subject to specifically enumerated exceptions, anyone, including a licensed real estate broker who does not have a real estate appraiser’s license, from testify for compensation about the value of real estate in any court proceeding.

1995- Snyder v. Snyder, Va. Ct. of Appeals, Unpublished, No. 2147-94-4
Trial court did not err in accepting husband’s valuation of property and rejecting the expert opinion of a real estate appraiser who testified on wife’s behalf, where cross-examination of the expert established the expert’s unfamiliarity with the subject property and errors in the expert’s report. Although expert testimony may be the preferable method for valuing marital property, the finder of fact is not required to accept as conclusive the opinion of an expert. (Citing Lassen v. Lassen, 8 Va. App. 502 (1989))

1993-Stratton v. Stratton, 16 Va. App. 878
Trial court did not err in refusing to accept husband’s expert’s valuation of a business. While expert testimony is preferable for valuing marital property, it’s not necessarily dispositive. Though husband’s expert testified that the business had no value, wife presented contrary lay evidence regarding the value of the business, demonstrated the financial history of the business, and demonstrated that the business had generated the primary source of income for the parties during the marriage.

1986-M.E.D. v. J.P.M., 3 Va. App. 391
Trial court erred in refusing to admit statements made by a child to a psychiatrist and psychologist describing sexual abuse by the child’s father. The statements formed the basis for the doctors’ expert opinions, and were of the type normally relied upon by psychiatrists and psychologists as a basis for expert opinions as to whether sexual abuse occurred. Va. Code 8.01-401.1 excepts from hearsay such statements. Furthermore, statements and assertive actions by the child were admissible to prove the child’s state of mind, based upon the testimony of both experts that, regardless of whether the father actually abused the child, the child believed that the father abused her.

1980-Spruill v. Commonwealth, 221 Va. 475 (1980)
A medical opinion based on a "possibility" is irrelevant, purely speculative and, hence, inadmissible. In order for such testimony to become relevant, it must be brought out of the realm of speculation and into the realm of reasonable probability; the law in this area deals in "probabilities" and not "possibilities."

1956-Haynes v. Glenn, 197 Va. 746
It is universally recognized that opinion testimony of non-experts who have sufficient knowledge of the value of the property in question or have had ample opportunity for forming a correct opinion as to it is admissible. Moreover, it is generally recognized that the opinion testimony of the owner of property, because of his relationship as owner, is competent and admissible on the question of the value of such property, regardless of his knowledge of property values. It is not necessary to show that he was acquainted with the market value of such property or that he is an expert on values. He is deemed qualified by reason of his relationship as owner to give estimates of the value of what he owns. The weight of such testimony is, of course, affected by his knowledge of value.