Vasquez v. Mabini

• Decision Date: 14 January 2005
• Docket Number: Record No. 040913.
• Citation: Vasquez v. Mabini, 269 Va. 155, 606 S.E.2d 809 (2005)
• Court: Virginia Supreme Court
• Parties: Rogelio VASQUEZ, et al. v. Apolinario MABINI, as Joint Heir and Administrator of the Estate of Tamara Jane Mabini.

606 S.E.2d 809

269 Va. 155

Rogelio VASQUEZ, et al. v. Apolinario MABINI, as Joint Heir and Administrator of the Estate of Tamara Jane Mabini.

Record No. 040913.

Supreme Court of Virginia.

January 14, 2005.

E. Duncan Getchell, Jr (William H. Baxter, II; Amy M. Pocklington; Francis J. Prior; McGuire/Woods; Siciliano, Ellis, Dyer & Boccarosse, on briefs), Richmond, for appellants.

Thomas K. Plofchan, Jr. (Plofchan & Associates, on brief), Sterling, for appellee.

Present: LACY, KEENAN, KOONTZ, KINSER, LEMONS and AGEE, JJ., and RUSSELL, S.J.

RUSSELL, Senior Justice.

This appeal presents questions whether expert testimony was erroneously admitted in the trial of a wrongful death case and whether objections to the testimony were waived.

Facts and Proceedings

The facts will be summarized in the light most favorable to the plaintiff, the prevailing party at trial. On January 29, 2002, at about 12:45 p.m., while Tamara Mabini was standing at the intersection of Routes 6363 and 602 in Reston, she was struck from behind and killed by a Fairfax County Connector bus. The bus was driven by Rogelio Vasquez, an employee of First Transit, Inc., which operated the bus service under a contract with Fairfax County.

At the time of her death, Mrs. Mabini was 53 years old. She had been employed as a part-time clerical worker earning $8.00 per hour for the preceding three months but was seeking full-time clerical employment. She was living with her husband, Apolinario Mabini, and her adult son by a former marriage, Matt Pomeroy, who was in his late twenties. Pomeroy was bipolar and had emotional and psychological problems. He had worked only sporadically and was dependent upon Mrs. Mabini for most of his care. Pomeroy died on June 2, 2002, less than six months after his mother's death. In addition to her part-time employment, Mrs. Mabini had devoted some 36 hours per week to caring for her household.

Three months before the accident, the Mabinis had moved to Virginia from Texas. Mrs. Mabini had worked there for over a year as a clerical worker and earlier had worked as a hairdresser for 27 years. A primary motivation for the family's move to Virginia had been Mrs. Mabini's desire to be near her married daughter and three-year-old grandchild, who lived in Falls Church. She had an "extremely close" relationship with them and gave them considerable household assistance.

Apolinario Mabini brought this action for wrongful death as administrator and representative of the beneficiaries of Mrs. Mabini's estate, against Vasquez and First Transit, Inc. A three-day jury trial ended January 15, 2004, with a verdict of $1,999,872.00 for the plaintiff, upon which the trial court entered final judgment. We granted the defendants an appeal limited to a single assignment of error: that the trial court abused its discretion in permitting plaintiff's expert witness to present opinion testimony that was "speculative, counterfactual, and unsupported by the evidence in the case."

At trial, the plaintiff presented the testimony of Richard B. Edelman, a Professor Emeritus of Finance at The American University, as an expert witness with regard to the decedent's expected loss of income and the economic value of the loss of her services, protection, care and assistance. No objection was made to his qualifications. He testified that Mrs. Mabini's lost income and benefits would have amounted to $121,533 if she had worked until age 60 and $203,145 if she had worked until age 66. He gave the value of her lost household services as $343,287 and reasonable funeral expenses as $12,403. His calculation of the total economic loss to the beneficiaries was thus $477,223 based on retirement at 60 and $558,835 based on retirement at 66. These conclusions were necessarily dependent upon certain assumptions to which the defendants objected: that the decedent would have found full-time employment the day after the accident at a wage of $8.00 per hour ($16,000 per year) and would have remained so employed until retirement; that her employer would have provided additional contributions amounting to 3.7% of her income in the form of a "401(k)" or similar retirement benefit; that her income would increase by 4.25% per year, and that Pomeroy, her dependent adult son, would have continued to live 24 years into the future even though the witness knew that he had died before trial. The defendants also objected to the witness' failure to consider the life expectancy of the decedent's husband in arriving at the economic value of her lost household services.

Discussion

A. Expert Testimony

Code § 8.01-401.1 provides that an expert witness in a civil case may testify and render an opinion "from facts, circumstances or data made known to or perceived by such witness at or before the hearing or trial," and that such data need not be such as to be admissible in evidence "if of a type normally relied upon by others in the particular field of expertise...." We have never, however, construed that section to permit the admission of expert testimony that lacks evidentiary support. Lawson v. Doe, 239 Va. 477, 483, 391 S.E.2d 333, 336 (1990). Estimates of damages based entirely on statistics and assumptions are too remote and speculative to permit "an intelligent and probable estimate of damages." Bulala v. Boyd, 239 Va. 218, 233, 389 S.E.2d 670, 677 (1990).

In order to form a reliable basis for a calculation of lost future income or loss of earning capacity, such evidence must be grounded upon facts specific to the individual whose loss is being calculated.

Id. (emphasis added).

Expert 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. Virginia Financial Assoc. v. ITT Hartford Group, 266 Va. 177, 183, 585 S.E.2d 789, 792 (2003). Failure of the trial court to strike such testimony upon a motion timely made is error subject to reversal on appeal. Countryside Corporation v. Taylor, 263 Va. 549, 553, 561 S.E.2d 680, 682 (2002); Gilbert v. Summers, 240 Va. 155, 159-61, 393 S.E.2d 213, 215-16 (1990). Furthermore, expert testimony is inadmissible if the expert fails to consider all the variables that bear upon the inferences to be deduced from the facts observed. Countryside, 263 Va. at 553, 561 S.E.2d at 682.

Here, the Edelman testimony was inadmissible for all the foregoing reasons. The economic value of the decedent's lost income was projected from a base of $16,000 per year, beginning the day after the accident and continuing until retirement, based upon an assumption of full-time clerical work with added annual increases and fringe benefits. On cross-examination, however, the expert admitted that Mrs. Mabini had little experience as a clerical worker, had earned less than $1000 the previous year and that her annual earnings for the preceding several years had never exceeded $7000. She had been seeking full-time clerical employment since moving to Virginia, but had been unable to find anything but part-time work. The record does not show that she had ever held full-time employment or received any fringe benefits. She was not seeking employment as a hairdresser, despite her experience in that occupation, but the expert's opinion was that her potential earnings would be approximately the same in either field. On similar facts, we have previously held that such projections lack the required grounding in the applicable facts, and hence are inadmissible. See Greater Richmond Transit Co. v. Wilkerson, 242 Va. 65, 71-72, 406 S.E.2d 28, 33 (1991).

The expert's assumption that the decedent would have received a 3.7% retirement benefit in addition to her salary was premised on his further assumption that she would have found full-time clerical employment the day after the accident. He testified: "most full-time employees get that." His conclusion, however, was based only upon a statistic applied to facts entirely unrelated to the personal circumstances of the decedent. Similarly, his assumption that her income would have increased 4.25% each year until...