Thursday, February 19, 2009

Toxicology Testimony "Trend"

Peter Vieth published an article in the latest issue of Virginia Lawyers Weekly addressing a contentious evidentiary issue surfacing in actions for personal injury in which the defendant’s blood alcohol content (BAC) is an issue. Specifically, the issue in these cases is whether or not judges will allow toxicologists to testify as to the defendant’s BAC.

As Vieth correctly points out, VA Code Sec. 8.01-44.5 permits the award of punitive damages in an action for personal injury “if the evidence proves that the defendant acted with malice toward the plaintiff or the defendant's conduct was so willful or wanton as to show a conscious disregard for the rights of others.” This showing can be made by proving that the defendant’s BAC exceeded .15.

Vieth’s article follows Judge Rockwell’s evidentiary ruling in a Chesterfield Circuit Court case, Dimmick v. Pike, CL 08-289, Jan 13, 2009. In that ruling, Judge Rockwell allowed the plaintiffs to offer testimony from a toxicologist about the defendant’s BAC. In Dimmick, Judge Rockwell justifies the ruling because the toxicologist’s testimony 1) used standard absorption rates in a way most favorable to the defendant, and 2) accounted for data unique to the defendant. Vieth reports that defendants in other cases have successfully suppressed the testimony of toxicologists when that testimony relied on averages and data not unique to the individual defendants.

Vieth’s article raises a great issue for us to think about—it’s important, though, to add just a bit more substance to what is otherwise an insightful piece. Vieth implies that the result in Dimmick builds off of a “2000 Virginia Supreme Court opinion” that rejected a toxicologist’s testimony when it relied on averages only. Vieth is surely talking about Groggins v. Commonwealth, 537 S.E.2d 605 (Va.App. 2000). Practitioners should continue to view “trends” with some suspicion and persist in their rigorous case prep. Groggins is, after all, a criminal—not a civil—case using toxicology testimony relative to Title 18.2 of the Virginia Code, a wholly different statute.

As one attorney that Vieth interviews correctly observes, statutes - whether civil or criminal - require proof in every case. Litigators should expect toxicology testimony to continue to be tested in each and every case.