Virginia: Medical Malpractice – a Lawyer’s Hearsay

The 2009 landmark Virginia Supreme Court decision of Wynn v. Commonwealth, 277 Va. 92 (2009), severely limited the testimony of expert witnesses who rely on hearsay, particularly facts and opinions from other non-testifying experts. §8.01-401.1 does not allow “the introduction of otherwise inadmissible hearsay evidence during the direct examination of an expert witness merely because the expert relied on the hearsay information in formulating an opinion.” Id. at 100. “The Commonwealth, however, asserts that our holding in McMunn should be limited to ‘hearsay matters of opinion’ upon which an expert relied. We do not agree whether an expert relies upon the opinion of others or allegations of sexual misconduct in formulating an opinion, both constitute hearsay. [T]he trier of fact cannot observe the demeanor of the speaker and the statements cannot be tested by cross-examination. Id. (emphasis added). The trial court properly excluded hearsay facts, in addition to hearsay opinions, of non-testifying experts. Id. at 101 (citations omitted). See, Exhibit 5(attached). “In Wynn, this Court specifically rejected the argument that the details of adjudicated allegations of sexual misconduct offered by an expert on direct examination, supposedly to show the factual basis of an expert’s opinion, are not hearsay.” Lawrence v. Commonwealth, 279 Va. 490, 497 (2010).