Bahura v. S.E.W. Investors

STEADMAN, Associate Judge,

concurring in part and dissenting in part.

As the majority points out, the plaintiffs’ case in chief relied solely upon the allegation that all the plaintiffs had suffered permanent neurological injury as a result of the defendants’ negligence. All of plaintiffs’ experts focused on that theory alone. All of the defendant’s experts understandably addressed their testimony to that theory of the plaintiffs.

Four of the plaintiffs now attempt to recover not for such actual neurological injury but rather for distinct somatization disorder allegedly caused by the defendants’ negligence. To do so, they rely on snips and pieces of testimony drawn from the massive amount of expert testimony introduced first to propound and then to combat the neurological injury theory of plaintiffs’ case. I do not think this suffices where expert testimony is at issue.

It is undisputed that the negligence, proximate cause, and injury elements of this litigation all depended upon expert testimony. The issues were technical and complex. “[I]n cases presenting medically complicated questions ... we have held that expert testimony is required on the issue of causation.” Williams v. Patterson, 681 A.2d 1147, 1150 (D.C.1996) (quoting Baltimore v. B.F. Goodrich Co., 545 A.2d 1228, 1231 (D.C.1988)) Indeed, the factual issues relevant to plaintiffs’ claims crossed several disciplines and plainly were “so distinctly related to some science, profession, or occupation as to be beyond the ken of the average layperson.” Messina v. District of Columbia, 663 A.2d 535, 538 (D.C.1995) (quoting District of Columbia v. Peters, 527 A.2d 1269, 1273 (D.C.1987)). A jury verdict founded on something other than the opinions of experts would be patently unreasonable. Travers v. District of Columbia, 672 A.2d 566, 568 (D.C.1996) (“The purpose of expert opinion testimony is to avoid jury findings based on mere speculation or conjecture.”) (quoting Washington v. Washington Hosp. Center, 579 A.2d 177, 181 (D.C.1990)).

While ordinarily it is within the province of a jury to pick and choose among the evidence that it hears on the basis of its common sense and experience, I think that given the nature of expert testimony, the same freedom cannot be uncritically admitted. 1 On the contrary, I think that to prevail, the party whose case is dependent *948 upon expert evidence must place before the jury a coherent, logically connected chain of expert testimony to establish the case. It may be that the plaintiff can make his case at least in part through experts tendered by the defense, but the totality of expert testimony must be sufficiently extensive and coherent so that one can reasonably say that there is an expert (or group of experts) who have directly addressed the disputed matters and testified that the elements at issue of plaintiffs case have been established under sound scientific principles. I am unable to conclude that with respect to the claimed so-matization injuries and their cause, this chaotic and spasmodic record in that regard satisfies that standard. 2 Cf. Lasley, supra, 688 A.2d at 1387 (with expert testimony only on a condition, the procedure, and the injury, but not on causation, “a lay jury could not have pinpointed the cause of Lasley’s [injury] without blindly guessing”); Herbert v. District of Columbia, 691 A.2d 1175, 1184 (D.C.1997) (affirming directed verdict because in the absence of expert testimony regarding “a subject with which the average lay person would not be familiar[,] ... the jury was necessarily incapable of determining whether any breach occurred”), vacated in part on other grounds, 716 A.2d 196 (D.C.1998) (en banc).

I agree with my colleagues, however, in sustaining the judgment in favor of Susan Watkins, whose claim of actionable physical injury was supported by cohesive and focused expert testimony.

. Let me venture a crude and perhaps imperfect example. Suppose for example the time is 1620 and the issue is whether the earth is the center of the universe and the sun (like the planets and stars) moves around it in a celestial sphere, rising and setting once each day (the Ptolemaic theory of the universe), or instead the sun is the center of the universe and the earth revolves around the sun, the apparent rising and setting of the sun due to the earth’s rotation on its axis (the Copernican view). It would not do to permit a jury to conclude that the earth was indeed the center of the universe but the apparent rising and setting of the sun was due to the earth’s daily rotation on its axis, a physical state of affairs to which no expert had testified.

I do not question that in general a jury is free to accept or reject expert testimony and give it as much weight as it deserves. But this is a different proposition from that which I address here.

. The majority’s reliance on the sequence of events appears unavailing to me here. Given the extreme complexities and risks of error in distinguishing correlation and temporal sequence from causation, recognized in the majority opinion, I do not think that factor can bolster expert testimony except to the extent that the expert himself or herself testifies to its relevance to the issue at hand.