VASQUEZ V. MABINI, 269 VA. 155, 606 S.E.2D 809, 2005 VA. LEXIS 10 (VA. 2005)
Appellee, the husband, joint heir, and administrator of the estate of his wife, sued appellants, who included the driver of a bus and others, for wrongful death. The Circuit Court of Fairfax County, Virginia, after a jury trial which included expert testimony on the issue of damages, found appellants liable and found damages of $ 1,999,872. Appellants requested review.
The wife was killed when her car was struck from behind by a bus driven by the employee, whose employer operated the bus under a contract with a county. The highest court decided that the qualified expert’s damage opinion was based upon facts that were not supported by the evidence and should not have been admitted under Va. Code Ann. § 8.01-401.1 and Va. Sup. Ct. R. 5:25. The opinion estimated the wife’s lost income and benefits, lost household service value to the family, and reasonable family expenses totaling $ 477,223 at her age 60 and $ 558,835 at her age 65. However, there were insufficient facts to support that the wife could earn eight dollars per hour as a clerical worker, that her employer would contribute 3.7 percent for her retirement, and that her son would live for 24 years (since he died after she died), and her husband’s life expectancy. Since the husband did not disclose the extent of the expert’s testimony under Va. Sup. Ct. R. 4:1(b)4(A)(1), appellants could not be considered to have waived their objection to his testimony before trial and did not waive it at trial. The trial court should not have let the jury decide if the facts supported the expert’s opinion.
The highest court affirmed that part of the judgment that found appellants liable, but reversed that part of the judgment related to damages and remanded the case to the trial court for a new trial limited to the issue of damages.
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