Butler Williams & Skilling Blog

Excluding Dr. Gordon: Part 3

Dr. Gordon categorizes most injuries as soft tissue injuries, and has testified for many years that such injuries heal within six weeks.  I believe this opinion is inadmissible for two reasons.  First, a true summary of the grounds for such opinion is typically not provided in defendant's Rule 4:1 (b) (4) (A) (i) expert disclosure.  Such disclosure will typically list by provider the medical records that Dr. Gordon reviewed.  This is a false summary because Dr. Gordon's opinion that all soft tissue injuries heal within six weeks was reached long before he reviewed the plaintiff's records.   The defect in most disclosures of Dr. Gordon's opinions is they fail to provide a summary of the grounds for the magic six week opinion. 

When pressed by counsel to disclose the grounds for the six week opinion, Dr. Gordon has testified for at least 15 years that he bases this opinion on what he's always told his hip replacement patients and upon studies that he vaguely recalls reading long ago.  He may drop the name, "Mayo Clinic" for good measure.  In John Crane, Inc. v. Jones, 374 Va. 581 (2007), the Virginia Supreme Court made it clear that Rule 4:1 places the burden on the disclosing party to provide the grounds for the expert's opinion.  Requiring plaintiff's counsel to search for the phantom studies cited by Dr. Gordon would shift the burden to the non-disclosing party, an approach the Court explicity rejected in John Crane.  Dr. Gordon should be excluded based upon the insufficiency of the expert disclosure.  Even if the trial court grants leave for defendant to sufficiently set forth the grounds for Dr. Gordon's opinions, the supplemental disclosure is likely to be limited to the records reviewed.  Part 3 of this series discusses the recent Virginia Supreme Court decision, Wynn v. Commonwealth, which prevents Dr. Gordon from repeating ANY hearsay from the plaintiff's records.

The second reason the magic six week opinion is inadmissible is that it violates the rule against applying general principles or averages to an individual  in the absence of foundation evidence that would place the individual within the alleged "average" range.  In Keesee v. Donigan, 259 Va. 157 (2000), an accident reconstructionist opined that all drivers require an average of 1.5 seconds to perceive and then react to a hazard in the road.  The expert then attempted to apply this so-called industry standard average to the individual defendant.  The Court held that, in the absence of foundation evidence plaicing the defendant within the "average," the expert's testimony was inadmissible.