Toraish v. Lee

• Decision Date: 13 April 2017
• Docket Number: Record No. 160495
• Citation: Toraish v. Lee, 797 S.E.2d 760 (2017)
• Court: Virginia Supreme Court
• Parties: Mariam TORAISH, Administrator of the Estate of Adam Traish, deceased v. James Jay LEE

797 S.E.2d 760

Mariam TORAISH, Administrator of the Estate of Adam Traish, deceased

v.James Jay LEE

Record No. 160495

Supreme Court of Virginia.

April 13, 2017

L. Steven Emmert, Virginia Beach (Robert T. Hall ; Gobind S. Sethi ; Samantha K. Sledd ; Juli M. Porto ; Sykes, Bourdon, Ahern & Levy; Hall & Sethi, Reston; Carluzzo Rochkind & Smith, Manassas, on briefs), for appellant.

Michael E. Olszewski (Benjamin M. Wengerd ; Richard L. Nagle ; James N. Knaack ; Hancock, Daniel, Johnson & Nagle, on brief), Fairfax, for appellee.

PRESENT: All the Justices

OPINION BY JUSTICE WILLIAM C. MIMS

In this appeal, the Court considers whether expert testimony was based upon an adequate foundation. The Court also considers whether the circuit court abused its discretion by permitting a defendant physician to offer an opinion as a lay witness.

I. Background and Procedural History

James J. Lee, M.D. is a board certified otolaryngologist. In May 2012, he began treating five-year-old Adam Traish for severe obstructive sleep apnea. Following a sleep study, Dr. Lee recommended that Adam undergo tonsillectomy and adenoidectomy surgery. He scheduled the procedure on an outpatient basis so that Adam could go home following surgery.

Dr. Lee performed the surgery without complications. He transferred Adam to the post-anesthesia care unit where he was monitored by nurses and anesthesiologists. After awakening, he was discharged from the hospital with instructions to take prescribed pain medication every four hours. That afternoon his mother, Mariam Toraish, administered his medication and laid him down for a nap. Thirty minutes later, she found him unresponsive. He was rushed to the hospital where he was pronounced dead.

Jocelyn Posthumus, M.D., performed an autopsy. She concluded that the cause of death was "cardiac arrhythmia of unknown etiology." Her report noted that "[a]lthough nothing of significance was identified microscopically in the heart, an underlying cardiac channelopathy or cardiac conduction system disorder cannot be ruled out especially given that the child was the product of a consanguineous marriage."¹

Toraish, as the administrator of Adam's estate, instituted a medical malpractice action against Dr. Lee and his practice. Her complaint alleged that Adam was at a high risk for postoperative "respiratory compromise" due to his severe obstructive sleep apnea, and that Dr. Lee violated the applicable standard of care by failing to order that he be monitored overnight following surgery. In the subsequent jury trial, Dr. Lee, who was not offered or qualified as an expert witness, testified that he was not informed prior to surgery that Adam's parents are first cousins. He also testified that he was not aware that Adam had two siblings who predeceased him. Dr. Lee was then asked,

Had you been aware of either the consanguineous marriage or the fact that two siblings had died of genetic problems, would you have recommended a [tonsillectomy and adenoidectomy surgery] on an outpatient basis ...?

Dr. Lee responded, "I would not—knowing that there could be a genetic defect, there would be no way that I could recommend any surgery at that time." Toraish objected, arguing that this testimony was "in the nature of expert testimony." The circuit court overruled the objection.

Dr. Lee sought to offer the testimony of Simeon Boyd, M.D., a board certified pediatric geneticist, as an expert witness on genetics and on Adam's cause of death. Dr. Boyd investigated Adam's case with the goal of providing a "differential diagnosis," whereby he would narrow down the possible causes of death until only one remained. His investigation began with the parents' consanguineous marriage and two predeceased siblings. He also found evidence of developmental delay and "dysmorphic facial features," symptoms of an underlying genetic disorder. After reviewing Adam's medical records, toxicology reports, and Dr. Posthumus's autopsy report, he ordered targeted gene testing on a sample of Adam's DNA. The testing revealed a variant in one of Adam's genes that allowed Dr. Boyd to opine with a "high" degree of medical certainty that Adam died of "cardiac arrest due to Brugada syndrome."²

On cross-examination, Dr. Boyd acknowledged that he was not a forensic pathologist, toxicologist, cardiologist, or otolaryngologist. When asked whether postoperative respiratory compromise could have caused Adam's death, Dr. Boyd answered that he is "not qualified to judge that ... because it's out of the area of [his] expertise." He explained that to provide his differential diagnosis he either excluded all likely causes of death himself or "relied on the expertise of people who are qualified to exclude them."

Toraish did not object to Dr. Boyd's qualifications as an expert in genetics or to his diagnosis of Brugada syndrome. She did object, however, to his opinion that Adam died from Brugada syndrome. She contended that because Dr. Boyd was not qualified to exclude postoperative respiratory compromise as a cause of death, his differential diagnosis was not based upon an "adequate factual foundation." Dr. Lee argued that Dr. Boyd's testimony should be admitted because he relied upon the genetic testing, autopsy report, toxicology report, medical records, and medical research when forming his opinion. Over Toraish's objection, the circuit court qualified Dr. Boyd "to testify not only of the conclusion that the boy suffers from Brugada syndrome, but also ... that manifestations of that syndrome were the cause of death in this case."

The jury returned a verdict in favor of Dr. Lee and his practice. We granted Toraish this appeal.

II. Analysis

A. Dr. Boyd's Testimony

On appeal, Toraish argues that Dr. Boyd's expert testimony should have been excluded because it lacked an adequate factual foundation. "The admission of expert testimony is a matter within the sound discretion of the trial court, and we will reverse the trial court's judgment only when the court has abused this discretion." Keesee v. Donigan , 259 Va. 157, 161, 524 S.E.2d 645, 647 (2000) (citing Tarmac Mid–Atlantic, Inc. v. Smiley Block Co. , 250 Va. 161, 166, 458 S.E.2d 462, 465 (1995) ). The three principal ways a court abuses its discretion are "when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment." Manchester Oaks Homeowners Ass'n v. Batt , 284 Va. 409, 429, 732 S.E.2d 690, 702 (2012) (quoting Landrum v. Chippenham & Johnston–Willis Hosps., Inc. , 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011) ).

Expert testimony is generally admissible if it will aid the trier of fact in understanding the evidence. Commonwealth v. Allen , 269 Va. 262, 274, 609 S.E.2d 4, 12 (2005) ; Va. R. Evid. 2:702(a)(1). "However, the admission of expert testimony is subject to certain fundamental requirements, including the requirement that the evidence be based on an adequate foundation." Keesee , 259 Va. at 161, 524 S.E.2d at 647 (citing Tittsworth v. Robinson , 252 Va. 151, 154, 475 S.E.2d 261, 263 (1996) ).

Code § 8.01–401.1 permits an expert in civil cases to render an opinion "from facts, circumstances or data made known to or perceived by such witness." It also permits an expert's opinion to be based on any information normally considered by experts practicing in the expert's discipline, even if that information would be inadmissible in evidence. Id. ; see also McMunn v. Tatum , 237 Va. 558, 565, 379 S.E.2d 908, 912 (1989) (an expert may rely upon hearsay when forming his opinion); Charles E. Friend & Kent Sinclair, The Law of Evidence in Virginia § 13–8[d], at 777–78 (7th ed. 2012).

While Code § 8.01–401.1 has "liberalized the admissibility of expert testimony," Tittsworth , 252 Va. at 155, 475 S.E.2d at 263, it does not "sanction[ ] the admission of expert testimony based upon a mere assumption which ... has no evidentiary support." Lawson v. Doe , 239 Va. 477, 483, 391 S.E.2d 333, 336 (1990). Indeed, "[e]xpert testimony founded upon assumptions that have no basis in fact is not merely subject to refutation by cross-examination or by counter-experts; it is inadmissible." Norfolk S. Ry. v. Rogers , 270 Va. 468, 479, 621 S.E.2d 59, 65 (2005) (quoting Vasquez v. Mabini , 269 Va. 155, 160, 606 S.E.2d 809, 811 (2005) ); Tarmac , 250 Va. at 166, 458 S.E.2d at 466 (holding that expert testimony cannot be speculative or founded upon assumptions that have an insufficient factual basis). Thus, a trial court's decision to admit such unsupported testimony is "subject to reversal on appeal." Vasquez , 269 Va. at 160, 606 S.E.2d at 811.

1. Dr. Posthumus's Autopsy Report

Generally, when an expert examines facts and circumstances leading to an injury, his opinion as to the cause of the injury is not rendered factually unsupported by the possibility of another cause. See generally Ford Motor Co. v. Bartholomew , 224 Va. 421, 429–30, 297 S.E.2d 675, 679–80 (1982). Dr. Boyd, however, purported to give a differential diagnosis, whereby he eliminated all possible causes of death until only one remained. Accordingly, to opine that Adam died from Brugada syndrome, he needed to exclude postoperative respiratory compromise as a cause of death. While he acknowledged that as a geneticist he was not qualified to do this, he explained that he excluded all potential causes of death outside his area of expertise by "rel[ying] upon the expertise of people who are qualified to exclude them." At trial and on appeal, Dr. Lee has consistently maintained that Dr. Boyd relied on Dr. Posthumus's autopsy report to exclude respiratory compromise as a cause of death.

Dr. Boyd explained that geneticists employ a collaborative approach, wherein they form a "multidisciplinary team" of medical professionals to establish a diagnosis. Dr. Boyd's...