New Court of Special Appeals Decision: Yiallouros v. Tolson
The Court of Special Appeals recently issued an interesting opinion regarding the basis of expert witness testimony. The full opinion is available here: Yiallouros v. Tolson. In that case, Yiannis Yiallouros (plaintiff) filed suit in the Circuit Court for Montgomery County against John Tolson (defendant) seeking damages for injuries he sustained as a result of an automobile collision. Mr. Yiallouros sustained a transverse fracture of the left patella with displacement and require serious surgery as well as rehabilitation. The 61-year-old Mr. Yiallouros did not fully recover from his injuries. A functional capacity evaluation determined that Mr. Yiallouros:
was restricted to occasional lifting up to sixty-seven pounds and carrying up to forty-five pounds for one hundred feet, frequent lifting of up to forty-five pounds and carrying forty pounds, continuous walking for no more than fifteen minutes, “limited” stair climbing, no ladder climbing, and no kneeling or crawling without knee pads.
Testimony was provided by Dr. Phillips, an orthopedic specialist, which indicated that Mr. Yiallouros could not work at his previous job as a maintenance mechanic, but that he was not completely unemployable from an orthopedic standpoint. Dr. Phillips did not, and could not, opine as to what effect Mr. Yiallouros’ “training” would have had on his employability as this was outside of Dr. Phillips’ expertise.
At this point, Plaintiff introduced testimony of Lianne Friedman, an expert in vocational rehabilitation, to opine as to Mr. Yiallouros’ future earning capacity. Ms. Friedman testified that she interviewed Mr. Yiallouros, reviewed his medical records, reviewed his capability assessments, and reviewed the labor market as it relates to Mr. Yiallouros. Based on Ms. Friedman’s review of this information, she testified that Mr. Yiallouros would be unable to find future employment. Ms. Friedman reasoned that Mr. Yiallouros could no longer perform the physically demanding labor that he was able to perform prior to his injury and the labor market would not hire someone his age with his skill set. Moreover, Ms. Friedman testified that Mr. Yiallouros could potentially learn new skills, “at this age it’s not worth the time or the expense because at his age he is not going to be hired for the types of jobs that he can physically do.” This inability to obtain employment created a loss of future earning capacity, which was valued to approximately $400,000.00 in today’s dollars by Mr. Yiallouros’ expert economist.
The jury returned a verdict in favor of Mr. Yiallouros and awarded, among other damages, $409,787.00 for loss of future wages. However, the trial judge decided that he erroneously allowed Ms. Friedman to testify because she did not have sufficient factual foundation for her opinions and the jury was improperly influenced by her opinions. To correct the error, the trial judge granted a new trial and stated:
While it is certainly true that the plaintiff suffered an injury and suffered a serious injury, by all accounts of this competent medical evidence, he has recovered from his injury. And while it very well may be he may not return to his former line of work, he is a highly skilled individual. He ran a restaurant. He’s done all manner of gainful employment since immigrating to this country for which he is to be commended. The notion that he is simply incapable or unemployable is, to be blunt, nonsensical.
At the second trial, Mr. Yiallouros was found contributorily negligent, and therefore could not recover. He timely filed an appeal raising the issue of whether the trial court properly granted a new trial. Fortunately for Mr. Yiallouros, the Court of Special Appeals held that the trial court erred by granting a new trial.
The appellate court explained that the defendant (appellee) grounded his argument “on the substantive falsity of [Ms. Friedman’s] ‘factual basis,’ taking as proof that her testimony contradicted several medical assessments of [Mr. Yiallouros’] ‘capabilities.’” Appellee correctly stated that Mr. Yiallouros was physically capable of performing alternative employment and he was medically capable of performing alternative employment. However,
Ms. Friedman plainly opined that while appellant was physically capable of performing many jobs, he was otherwise incapable because he lacked the skill, training, and experience that those positions demanded. Although [Mr. Yiallouros] had considerable work experience, his expert testified that from her experience and knowledge of the labor market as well as various professional assessments of his physical limitations, [Mr. Yiallouros] could no longer be employed in physically demanding jobs and he was not equipped with the requisite skills for sedentary employment.
Therefore, there was no real contradiction with Ms. Friedman’s testimony and the medical records available. One of the lessons in this case is that the mere hypothetical that Mr. Yiallouros could physically work in a particular job does not end the inquiry in the real world. An expert’s opinion is valuable to help the jury decide whether or not a plaintiff can work based on various factors. It makes sense to review the labor market to determine if a hypothetical work arrangement is feasible in the real world for the plaintiff. By granting a new trial for lack of factual foundation, the trial court confused the weight of the evidence with its admissibility.