Recently, in Cross v. Spears, CL 12-436, a Martinsville Circuit Court judge set aside a $3 million dollar jury award and ordered a new trial based on a ruling that the plaintiff’s toxicologist’s opinion testimony was “totally lacking in scientific factual foundation.” 

After attending a NASCAR race in Martinsville, Virginia, the plaintiff, Cross, was struck by a vehicle while crossing a four-lane highway.  At trial, the defendant’s expert toxicologist offered a simple opinion, the plaintiff was drunk.  In support of his opinion the expert offered the results of the plaintiff’s blood work taken shortly after the accident.  The plaintiff’s blood alcohol level was .254, more than three times the legal limit for drivers in the Commonwealth of Virginia. 

In response, the plaintiff presented his own expert toxicologist.  The plaintiff’s expert expressed the opinion that the plaintiff was not impaired and the accident was not a proximate cause of the plaintiff’s inebriation, or lack thereof.  The plaintiff’s expert’s opinion was based solely on the recollection and observations of the plaintiff’s companions who witnessed the accident and assured the expert that the plaintiff was not acting like he was intoxicated. 

After hearing all the evidence and the opinions of both experts, the jury returned a $3 million dollar verdict in favor of the plaintiff.  The circuit court judge, however, immediately waived the proverbial black flag and set the verdict aside finding that the law requires expert opinions to be “based on science not speculation void of any scientific basis.”

The judge’s decision in Cross is encouraging for defense counsel because it shows that judges are willing to set aside verdicts that are based on speculative opinions from interested witnesses.  On the other hand, this case is worrisome because it highlights the reality that jurors often ignore facts and science in favor of less reliable (although maybe more impactful) testimony from witnesses.