Posted On: April 3, 2012 by Andrew G. Slutkin

Expert Witness Testimony in Catastrophic Injury Cases

In recent appellate opinion, a catastrophic injury case, Yiallouro v. Tolson, was reviewed for error concerning expert testimony. Yiallouro was severely injured in a car accident while in the scope of his employment, causing him to ultimately lose his job because he could no longer perform his previous tasks and there was no “light duty” work available. When Yiallouro brought suit against Tolson, the driver of the other vehicle, the Montgomery County jury who heard the case awarded Yiallouro $925,000.00 in damages: $32,000.88 for past medical expenses, $35,191.80 for past lost wages, $409,787.00 for loss of future wages, $224,010.16 for pain and suffering, and $224,010.16 for loss of consortium. However, after the verdict, the judge determined that the he had erroneously permitted one of plaintiff’s experts to testify because the testimony was too speculative and lacked an adequate factual basis for opinion under Maryland Rules 5-702 and 5-703. The expert in question was a vocational rehabilitation expert who testified that Yiallouro’s future lost wages were over $400,000.00. A copy of the Court of Special Appeals opinion, filed on March 2, 2012, can be found here.

As a result of the judge’s belief that he had erroneously permitted the expert testimony, and the jury had awarded excessive damages in the wake of hearing that testimony, the case was retried. Interestingly, the vocational rehabilitation expert was permitted to testify in the second case, having met the standard for expert qualifications as set forth in the Frye/Reed test. However, defense counsel presented their own experts in the second trial, and the jury trial found contributory negligence, barring Yiallouru from recovering damages.

Yiallouro appealed, alleging the trial judge should not have excluded the expert’s testimony at the end of the first trial and ordered a re-trial. The Court of Special Appeals reversed the decision in part, finding that the expert had been appropriately qualified in the first case, and holding that only the issue of non-economic damages should have been retried in the second case – not liability. The appellate court found that when the trial court granted the motion for new trial, it confused the weight of the evidence with its admissibility. The expert’s experience, knowledge and skill qualified her to testify before the jury, and it was up to the jury to evaluate the weight of that testimony in reaching their verdict.

Maryland law draws a fine line when it comes to future lost wage claims. Such testimony is permitted as long as the factual basis underlying the expert’s calculation is based on sufficient foundation. As an experienced Baltimore, Maryland medical malpractice lawyer, I have handled a number of catastrophic injury cases involving expert witnesses. Since many of these cases involve future lost wages, they are extremely complicated and require expertise that most general personal injury attorneys do not have. To see some of the cases I have handled, click here.

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