Butler Williams & Skilling Blog

Excluding Dr. Gordon: Part 5

The final part of this series focuses on preventing Dr. Gordon from regurgitating at trial every salacious fact he can dig up from the plaintiff's medical, employment, educational, and other records.  He is particularly fond of following up his "functional component" opinion with a list of all references in the records to depression, anxiety, illicity drug use, prescriptions for anti-depressants, anti-anxiety medications, or any other reference to psychological or psychiatric issues.  He, of course, is typically doing this in cases where the plaintiff's mental health is not even in issue.  Dr. Gordon feels free to put her mental health in issue.

Counsel must slam shut the door on Dr. Gordon's efforts to interject inadmissilbe hearsay into the trial. On January 16, 2009, the Virginia Supreme court clarified that hearsay matters of opinion and fact are to be treated the same. In Wynn v. Commonwealth, 277 Va. 92, 99-101 (2009), the Court ruled that inadmissible hearsay does not become admissible simply because it is a hearsay matter of fact routinely relied upon by experts in the field.  The Court reasoned that no litigant should be required to contend with hearsay information from her medical records because the jury cannot observe the demeanor of the speaker and the statements cannot be tested by cross-examination. Id. at 100.

Many Virginia trial courts allowed defense counsel and their experts to repeat hearsay from the plaintiff's medical records as long as they deemed the hearsay to not be hearsay matters of opinion.  Counsel should bring the Wynn decision to the trial judge's attention long before Dr. Gordon testifies. 

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