Watson v. Timberlake
Court of Special Appeals of Maryland
February 10, 2021, Argued; July 2, 2021, Filed
No. 38, September Term, 2020

Reporter
2021 Md. App. LEXIS 537 *
SANDRA WATSON v. RODNEY W. TIMBERLAKE, ET AL.
Prior History: [*1] Circuit Court for Prince George’s County. Case No. CAL18-19998.
Disposition: JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

Opinion by Albright, J.
On November 4, 2015, at an intersection in Prince George’s County, the car driven by Appellant Sandra Watson (“Watson” and plaintiff below) hit a trash truck. Appellee Bates Trucking Company, Inc. (“Bates” and defendant below) leased the truck, and at the time of the collision, Bates’s employee, Appellee Rodney W. Timberlake (“Timberlake” and defendant below), was driving the truck.1 Watson filed a negligence action in the Circuit Court for Prince George’s County. Four months before trial, Timberlake and Bates identified an accident reconstructionist as an expert trial witness, but did not supply his actual opinion. Three days before trial, Timberlake and Bates told Watson that the reconstructionist would describe what Watson should have been able to see as she neared the intersection. On the first day of trial, Watson orally asked Judge Judy L. Woodall to exclude the reconstructionist’s opinion as late. Judge Woodall denied Watson’s motion, concluding that the issue was a [*3] discovery dispute that Watson should have raised earlier. Watson’s motion to strike the opinion also failed. Following the jury’s verdict for Timberlake and Bates and the denial of Watson’s new trial motion, Watson noted this appeal. She presents three questions for our review,2 which we consolidate as follows:
I. Whether the trial court abused its discretion in declining to exclude or strike the expert testimony of Timberlake’s and Bates’s accident reconstructionist because their disclosure of his opinion violated the Scheduling Order; and
II. Whether the trial court abused its discretion in denying Watson’s motion for new trial.
Finding no abuse of discretion, we affirm.

BACKGROUND
On November 4, 2015, Watson was driving her grandson to elementary school, traveling northbound on Route 202 toward Dunloring Drive, at approximately 45 miles per hour, five miles per hour below the posted speed limit. At nearly the same time, Timberlake, travelling southbound, was attempting to cross northbound Route 202 to Dunloring Drive. Watson testified at trial that Timberlake never yielded to her and turned into her path of travel. Watson said she tried to swerve but was unable to avoid hitting the truck. Timberlake testified that he stopped to allow a group of cars to pass, crossed Route 202 at a break in the traffic, and turned onto Dunloring Drive. He saw Watson approximately a quarter mile away, far enough, he thought, to allow the turn. As he turned, though, Timberlake said he thought [*5] Watson was driving at an excessive rate of speed and appeared distracted. Timberlake accelerated through the intersection but not before Watson hit the back right end of the truck. Claiming substantial injuries and damages, Watson filed suit on July 2, 2018, and requested a two-day jury trial. The case was assigned case number “CAL18-19998.”
On March 28, 2019, the circuit court issued a Scheduling Order that was ” . . . not [to] be modified except by order of court upon a showing of good cause.” For defense expert witnesses, the court ordered that 30 days before the pretrial conference, “Defense Experts, if any, [be] identified per Maryland Rule 2-402(g) or 2-504.2(g)(9).” All discovery was to completed 60 days prior to trial.3 For “discovery disputes,” the Scheduling Order assigned Judge Tiffany H. Anderson, as this was a case ending in “8.” Judge Anderson would set hearings “. . . where appropriate, no later than thirty (30) days after the motion and response have been filed.” Failures to comply with the Scheduling Order could “result in the imposition of appropriate sanctions.” For disputes over ” . . . any provision of the [Scheduling] Order[,]” the court assigned Civil Coordinating Judge John P. Davey.
On July 25, [*6] 2019, in answer to Watson’s request for production of documents, Timberlake provided the fee schedule and curriculum vitae for David Plant, an accident reconstructionist that Timberlake intended to call as an expert witness at trial.4
On August 6, 2019,5 the Scheduling Order’s first deadline for disclosure of defense experts, Timberlake and Bates again identified Plant. Specifically, Timberlake and Bates said:
David E. Plant, P.E., D.P Plant & Associates, 3800 Argyle Terrace, N.W., Washington, D.C. 20011. Mr. Plant is an accident reconstructionist and a registered professional engineer. Mr. Plant is expected to proffer opinions to a reasonable degree of scientific and engineering probability. Mr. Plant’s opinions will be based on his education, training, and experience, and a review of the case materials, including, but not limited to, police reports, photographs, deposition testimony, the opinions or reports of any other expert, and other records produced in discovery. It is anticipated that Mr. Plant may visit the scene of the accident. He may issue a report, setting forth his professional opinions to a reasonable degree of probability within his [*7] field of expertise and setting forth the bases for each such opinion. Mr. Plant may also testify in rebuttal to Plaintiff’s expert’s opinions and testimonies. A copy of Mr. Plant’s curriculum vitae is attached hereto.
On August 9, 2019, Timberlake served a response to Watson’s interrogatories.6 To Watson’s Interrogatory No. 10, which asked Timberlake to identify any expert he intended to call, and, as to each, “state a) the subject matter on which the expert is expected to testify; b) the qualifications of each such expert; and c) the substance of the facts and opinions to which the expert is expected to testify[,]” Timberlake told Watson that “[s]ubject to the foregoing General Objections, Defendant states that he will identify . . . experts in accordance with the Maryland Rules and the Scheduling Order entered in this matter.”
On August 30, 2019, the parties filed Pretrial Statements. Watson “reserved the right” to call the “[d]efendant’s [sic]” expert witnesses as her own, but did not mention the fact of Plant’s missing opinion.7 Timberlake and Bates again identified Plant and added two other expert witnesses. As to Plant, Timberlake and Bates said
David Plant, P.E., Plant & Associates, [*8] 3800 Argyle Terrace, N.W., Washington, D.C. 20011. Mr. Plant is an accident reconstructionist and a registered professional engineer. Mr. Plant is expected to proffer opinions to a reasonable degree of scientific and engineering probability. Mr. Plant’s opinions will be based upon his education, training, and experience, and a review of the case materials, including, but not limited to, police reports, photographs, deposition testimony, the opinions or reports of any other expert, and other records produced in discovery. It is expected that Mr. Plant will issue a report setting forth his professional opinions to a reasonable degree of probability.
On September 5, 2019, at a telephonic pretrial conference, Judge Anderson determined that liability was “seriously in dispute.” As to the number of expert witnesses, Timberlake and Bates repeated three. The parties mentioned challenges in deposing one of Watson’s experts and a second pretrial conference was scheduled with Judge Davey for October 4, 2019.
On October 4, 2019, at the second telephonic pretrial conference, Judge Davey scheduled a three-day jury trial for December 3-5, 2019. As to expert witnesses, Timberlake and Bates continued [*9] to indicate three. Judge Davey ordered a November 15, 2019 deadline for expert depositions and warned counsel that failure to follow that deadline could mean experts would not be able to testify.8
On November 29, 2019, Timberlake and Bates filed an Amended Pre-Trial Statement again identifying Plant. Specifically, they said
David Plant, P.E., D.P. Plant & Associates, 3800 Argyle Terrace, N.W., Washington, D.C. 20011. Mr. Plant is an accident reconstructionist and a registered professional engineer. Mr. Plant is expected to proffer opinions to a reasonable degree of scientific and engineering probability. Mr. Plant’s opinions will be based upon his education, training, and experience, and a review of the case materials, including, but not limited to, police reports, photographs, deposition testimony, the opinions and reports of any other expert, and other records produced in discovery, as well as his investigation pertaining to the location of the accident. Mr. Plant is expected to testify regarding the details of the accident, the location of Plaintiff’s vehicle at the time the truck turned across the northbound lanes of Route 202/Largo Road, and what Plaintiff should have been able to [*10] view when approaching the intersection of Route 202/Largo Road and Dunloring Drive.
At the start of trial on December 3, 2019, Watson moved orally to preclude Plant from testifying, a motion on which Judge Woodall reserved until December 4, 2019. Having received and reviewed Timberlake’s and Bates’s written opposition overnight, Judge Woodall asked Watson why she had failed to bring the matter to the court’s attention pretrial. Watson indicated she was “taken by surprise here,” that she thought Timberlake and Bates had abandoned Plant as a witness, and that it was not her duty to force Timberlake and Bates ” . . . to fulfill their duties of disclosure.” After showing Judge Woodall a copy of Timberlake’s and Bates’s expert designation,9 Watson pointed out that in it, they had failed to provide Plant’s opinion or the factual basis for it. Calling the failure to provide Plant’s opinion a “discovery violation” also,10 Watson drew Judge Woodall’s attention to the “Taliaferro factors,”11 and outlined how they applied. Timberlake and Bates countered that expert witnesses cannot be excluded on the basis of discovery violations brought up for the first time at trial, citing Food Lion, Inc. v. McNeill, 393 Md. 715, 904 A.2d 464 (2006).
After doubting Watson’s [*11] claim that she was surprised, Judge Woodall denied Watson’s motion. Judge Woodall said:
Counsel, I’m denying your request to keep out the expert. I do believe that it is a discovery issue. One that should have been, you know, dealt with prior to this hearing. I have reviewed the memorandum and cases provided by both sides. I have looked at the discovery rule as well as those two, last two, exhibits you provided for the Court. I have one. I’ll bring it in. And so, you know, again, I’m denying it as to admissibility. You can cross-examine and if, you know, the foundation is not there, we’ll cross that bridge when we get to it.
Thereafter, Timberlake and Bates called Plant, who corroborated their theory that had Watson been paying attention, she would have had “ample” time to see the trash truck and avoid the collision. He related that on November 14, 2019, he had observed an “exemplar” truck that Timberlake drove at the accident site, and, among other things, explained that “between 8 and 8.5 seconds” elapsed between the exemplar’s having stopped and the place of the collision. According to Plant, “between 3.2 and 4.7 seconds” elapsed between the front of the exemplar’s “encroaching into [*12] the left northbound lane of Route 202” and the collision. And “4.9 to 6.4 seconds” elapsed between the exemplar’s “encroaching into the left turn lane . . . to the area of impact.”
Thereafter, through Plant, Timberlake and Bates introduced three photographs Plant caused to be taken on November 30, 2019, each depicting what Watson would have been able to see as she traveled her admitted speed of 45 miles per hour toward the truck. Thus, when the truck stopped, Watson would have been 525 feet away. When the front of the truck was encroaching into the left turn lane, Watson would have been 350 feet away.12 When the truck was encroaching into the left northbound turn lane of Route 202, Watson would have been 241 feet away.
After Plant’s testimony, Watson moved to strike it. To her previous reasons, she added that because Plant formed no opinion until at least November 14, 2019, Timberlake and Bates had no opinion to disclose when they identified Plant, and that she was not obliged to “chase down” Plant’s opinion. Judge Woodall denied Watson’s motion.
At the close of trial, the jury returned a verdict in favor of Timberlake and Bates.
On January 13, 2020, Watson moved for a new trial, claiming [*13] she was denied a fair trial. She argued that Timberlake and Bates violated the Scheduling Order by failing to disclose Plant’s opinions ” . . . until three days before trial.” As a consequence, Watson said, the jury was left with a “unilateral pronouncement” of the accident’s cause. She wanted a new trial with an “even expert playing field.” On February 6, 2020, following the filing of Timberlake’s and Bates’s opposition, Judge Woodall denied Watson’s new trial motion.
This timely appeal followed.

STANDARD OF REVIEW
HN1[ ] We review a circuit court’s decision not to sanction a scheduling order violation for abuse of discretion. Butler v. S&S P’ship, 435 Md. 635, 80 A.3d 298 (2013); Admiral Mortgage v. Cooper, 357 Md. 533, 545, 745 A.2d 1026 (2000)(“[T]he appropriate sanction for a discovery or scheduling order violation is largely discretionary with the trial court.”); Livingstone v. Greater Washington Anesthesiology & Pain Consultants, P.C., 187 Md. App. 346, 388, 978 A.2d 852 (2009)(“A trial court’s discretionary rulings will be disturbed only upon a finding of an abuse of discretion.”). A new trial motion is committed to the sound discretion of the circuit court; its discretionary decision is “rarely, if ever, disturbed on appeal.” Buck v. Cam’s Broadloom Rugs, 328 Md. 51, 59, 612 A.2d 1294 (1992)(cleaned up).

DISCUSSION
Watson argues that Timberlake’s and Bates’s late disclosure of Plant’s opinion amounted to a violation of the court’s Scheduling Order, and that the circuit court’s failure [*14] to exclude it was an abuse of discretion. In concluding that the dispute should have been handled before the trial date, the circuit court failed to address the Taliaferro factors, along with Timberlake’s and Bates’s apparent lack of good faith. These failures, Watson claims, amount to the kind of abuse of discretion that warrants reversal.
To be sure, Timberlake and Bates did not provide Plant’s opinion when they designated him as an expert witness. And, Judge Woodall did not analyze the Taliaferro factors or Timberlake’s and Bates’s good faith (or lack thereof) before declining to exclude Plant’s testimony or grant a new trial. But, given what happened (and did not happen) here, Judge Woodall’s decision was not an abuse of discretion. We explain.
HN2[ ] Scheduling orders are critical13 to the circuit court’s assignment of actions for trial and the efficient management of its case load. Rule 16-302 requires the County Administrative Judge in each county to ” . . . supervise the assignment of actions for trial in a manner that maximizes the efficient use of available judicial personnel, brings pending actions to trial, and disposes of them as expeditiously as feasible.” Rule 16-302(a). To do this, each County Administrative [*15] Judge must develop, and subject to the approval of the Chief Judge of the Court of Appeals, implement a ” . . . system of differentiated case management14 in which actions are classified according to complexity and priority and are assigned to a scheduling category [“track”] based on that classification. . .” Rule 16-302(b). Case management plans must include procedures to ” . . . establish trial and motion calendars and other appropriate systems under which actions ready for trial will be assigned for trial and tried, after proper notice to parties, without necessity of a request for assignment from any party; . . .” and ” . . . establish systems of regular reports that will show the status of all pending actions with respect to their readiness for trial, the disposition of actions, and the availability of judges for trial work[,]” among other features. Rules 16-302(c)(7) and (c)(8), respectively.
HN4[ ] Rule 2-504 requires scheduling orders in every civil case unless the County Administrative Judge orders otherwise in one or more specific kinds of cases. In scheduling orders, some provisions are “required” while others are “permitted.” Thus, scheduling orders must assign civil cases to “tracks” and establish deadlines to designate expert witnesses, notify of the intent to use computer-generated evidence, complete discovery, and file dispositive motions. Rule 2-504(b)(1). Scheduling orders may contain limitations on discovery, provisions pertaining to “the resolution of any disputes existing between the parties relating to discovery[,]” direction to pursue alternative dispute resolution mechanisms, and scheduling and pretrial conference dates. Rule 2-504(b)(2).
HN5[ ] Although Rule 2-504 provides no particular sanctions for the violation of a scheduling order, ” . . . the case law of Maryland makes the imposition of sanctions for the violation of a scheduling order appropriate.” Dorsey v. Nold, 362 Md. 241, 256, 765 A.2d 79 (2001). See also [*17] Rules 1-201(a) and 2-504(c). To this end, we have seen scheduling order violations asserted, and sometimes sanctioned, in a variety of circumstances. These include failure to timely amend a complaint (Berry v. Department of Human Resources, 88 Md. App. 461, 594 A.2d 1258 (1991)); failure to appear at a mediation conference (Tobin v. Marriott Hotels, 111 Md. App. 566, 683 A.2d 784 (1996)); failure to timely provide a pretrial statement to the court and opposing counsel (Betz v. State, 99 Md. App. 60, 635 A.2d 77 (1994)); failure of a party’s insurer’s to appear at a settlement conference (Station Maintenance Solutions, Inc. v. Two Farms, Inc., 209 Md. App. 464, 60 A.3d 72 (2013)); failure to answer interrogatories timely (Faith v. Keefer, 127 Md. App. 706, 736 A.2d 422 (1999)); and failure to timely designate expert witnesses (Lowery v. Smithsburg Emergency Med. Serv., 173 Md. App. 662, 920 A.2d 546 (2007)).
HN6[ ] Where the asserted scheduling order violation involves a discovery failure, the trial court has wide discretion to determine what sanction, if any, is appropriate. Admiral Mortgage, Inc. v. Cooper, supra, at 545. In determining whether the trial court abused its discretion or not, we look to the “Taliaferro factors.” Butler v. S&S P’ship, supra, at 307. These factors are (1) whether the disclosure violation was technical or substantial; (2) the timing of the ultimate disclosure; (3) the reason, if any, for the violation; (4) the degree of prejudice to the parties respectively offering and opposing the evidence; (5) whether any resulting prejudice might be cured by a postponement; (6) and, if so, the overall desirability of a continuance. Taliaferro v. State, 295 Md. at 390-391. Whether to exclude late-disclosed evidence is tantamount to deciding whether to modify a scheduling order’s discovery deadlines to accommodate the late disclosure. Accordingly, in analyzing the Taliaferro factors or the “substantial compliance” and “good faith” necessary to support a scheduling order modification, trial courts often walk the same factual ground. Asmussen v. CSX Transportation, Inc., 247 Md. App. 529, 548-49, 237 A.3d 908 (2020).
HN7[ ] But just as we require substantial compliance (and good faith in complying) with a Scheduling Order’s discovery deadlines, we also expect parties to resolve their known [*18] discovery disputes promptly, either informally or by using the mechanisms available under the Scheduling Order and discovery rules. Food Lion, Inc. v. McNeil, 393 Md. at 733-35 (2006) and Dackman v. Robinson, 464 Md. 189, 233-37, 211 A.3d 307 (2019). See, e.g., Asmussen v. CSX Transportation, Inc., 247 Md. App. 529, 237 A.3d 908 (2020) and Lowery v. Smithburg Emergency Medical Service, 173 Md. App. 662, 920 A.2d 546 (2007).
In Food Lion, Inc. v. McNeill, a request for judicial review of a Worker’s Compensation Commission’s (“WCC”) decision, the late-disclosed opinion of Mr. McNeill’s (“Claimant’s”) identified medical causation expert was not excluded after Food Lion failed to challenge the adequacy of Claimant’s discovery responses during the discovery period or file a timely motion in limine to exclude the opinion. 393 Md. at 735. In answer to interrogatories, Claimant timely identified the expert and the subject matter of his testimony. Roughly one month after the court’s deadline for designation of expert witnesses, Claimant disclosed the witness’s opinion: “[it] is my opinion that [Claimant’s] carpal tunnel and ulnar cubital tunnel problems are directly and causily [sic] related from his repetitive work as a meat cutter at Food Lion.” Id. at 724-25. On the day of trial, and 20 days after the pretrial order’s deadline for the filing of motions in limine, Food Lion moved to exclude the expert’s opinion, a motion the trial court granted. The circuit court, sitting [*19] en banc, reversed, and the Court of Appeals affirmed, explaining that
[d]iscovery violations are cognizable by the trial court during the discovery process and, of course, are sanctionable when they are found. And, as we have seen, there are mechanisms in place for that to happen. It follows thatHN8[ ] discovery issues are best handled during the discovery period; that serves the interest of efficient trial administration. If, therefore, as the appellant maintains, the appellee’s expert’s report was a violation of discovery, and a substantial one, at that, it should have been, and could have been, addressed during the discovery process and, if determined to have been one, sanctioned as such.
Id. at 735.
In Dackman v. Robinson, a lead-paint case, the late-disclosed opinion of a timely-named economic expert was not excluded when the opponent did not take earlier steps to depose the expert or otherwise resolve the discovery dispute. 464 Md. at 233-37. Plaintiffs identified an expert witness before the scheduling order’s deadline, including the subject matter of the expected testimony, but did not provide that expert’s actual opinion until approximately six weeks15 before trial. In declining to sanction plaintiffs, the trial [*20] court explained that defendants had taken no action to resolve the discovery dispute or timely seek a postponement of the trial date, and that the case was not one wherein defendants ” . . . ‘did not know where it was going.'” Dackman, 464 Md. at 235.
In Asmussen v. CSX Transportation, Inc., the opinions of two of plaintiff’s experts were excluded after defendant, who had received plaintiff’s “vague” designation of four placeholder experts, made numerous attempts to secure their actual opinions during the discovery period. Thus, defendant requested more information from plaintiff; filed a motion to compel that failed; deposed one expert only to learn that he was unqualified and that the studies on which he relied did not support plaintiff’s causation theory; and attempted to depose a second on dates plaintiff offered but were actually bad for the expert. When plaintiff asked for a scheduling order modification to permit the late re-designation of an expert he had previously withdrawn, and to secure more time for the deposition, defendant moved to strike both experts. After examining what happened, particularly defendant’s efforts in deposing the unqualifed expert, the court concluded that a “last-minute expert [*21] swap would prejudice CSX[.]” Accordingly, the court denied modification and struck the experts.16 Asmussen, 247 Md. App. at 537-543.
In Lowery v. Smithburg Emergency Medical Service, a case involving claims of defamation and intentional interference with economic relations, the late-disclosed opinion of plaintiff’s identified expert was excluded after defendant made a timely motion in limine seeking same. Lowery, 173 Md. App. at 678. The scheduling order set a deadline for the designation of expert witnesses. Plaintiff timely identified an expert witness and provided the subject matter on which he would testify. After the discovery deadline, and 12 days before the trial date, plaintiff provided defendant a letter outlining the expert’s actual opinion. Defendant filed a timely motion in limine to exclude the expert’s opinion as having been disclosed after the discovery deadline—a motion the court granted four calendar days before trial was to start. Id.
HN9[ ] Ultimately, discovery sanctions are not to operate as a windfall, but instead are intended to relieve the surprise or prejudice a party suffers when his opponent fails to abide by the discovery rules. Morton v. State, 200 Md. App. 529, 543, 28 A.3d 98 (2011)(citing Ross v. State, 78 Md. App. 275, 286, 552 A.2d 1345 (1989)). Cf. Thomas v. State, 397 Md. 557, 571, 919 A.2d 49 (“[t]he most accepted view of discovery sanctions is that in fashioning a sanction, [*22] the court should impose the least severe sanction that is consistent with the purpose of the discovery rules . . . (citing cases)”). For discovery violations (or scheduling order violations based on discovery requirements), therefore, ” . . . ‘the more draconian sanctions, of dismissing a claim or precluding the evidence necessary to support a claim, are normally reserved for persistent and deliberate violations that actually cause some prejudice, either to a party or to the court.'” Butler v. S&S P’ship, supra, at 650 (quoting Admiral Mortgage, Inc. v. Cooper, 357 Md. 533, 545, 745 A.2d 1026 (2000)). A party that delays in addressing an opponent’s known discovery or scheduling order violation limits the court’s ability to address the problem with a lesser sanction. In short, though the party may not intend it, by delaying, the party seeks an impermissible windfall.
Here, the Scheduling Order offered Watson ample chance to bring the fact of Plant’s missing opinion to the court’s attention before trial. After establishing a deadline for the designation of defendants’ expert witnesses, and delineating what information was required in that designation, and setting a discovery deadline,17 the Scheduling Order assigned Judge Anderson for the resolution of discovery disputes, and Judge Davey for [*23] disputes about “any provision” of the Order. The Scheduling Order also required the filing of pretrial statements and attendance at a pretrial conference.
That Plant’s opinion was indeed missing was apparent as early as August 6, 2019 (if not earlier) when Timberlake and Bates named Plant, listed his qualifications, and described the subject matter of his expected testimony (accident reconstruction), but provided no actual opinion. The problem continued on August 30, 2019 when, in their pretrial statement, Timberlake and Bates listed Plant as one of three expert witnesses they would call; to the September 5, 2019 pretrial conference, when Timberlake and Bates confirmed they would call three expert witnesses at trial; to the October 4, 2019 pretrial conference, when Timberlake and Bates again indicated they would call three expert witnesses; and past November 15, 2019, when, despite the deadline for expert witness depositions, Timberlake and Bates still failed to provide Plant’s opinion. Nonetheless, Watson never filed an appropriate discovery motion, or flagged the problem in her pretrial statement, or mentioned it to either pretrial conference Judge.
Against this background, we find [*24] no abuse of discretion in Judge Woodall’s decision both to analyze the situation as a discovery dispute that, under Food Lion, should have been raised earlier by Watson, and to decline a last-minute sanction for a scheduling order violation. On October 4, 2019, without resolving the fact of Plant’s missing opinion, Watson agreed to a three-day jury trial starting 60 days later. The case then came to Judge Woodall on the scheduled trial date. The parties were ready to call the witnesses and introduce the exhibits they mentioned in their pretrial statements. By then, Watson was well past the discovery deadline and the multiple opportunities she had to address Timberlake’s and Bates’s failure to supply Plant’s missing opinion by the August 6 or September 4, 2019 deadlines.
To avoid this result, Watson claims that it was not her burden to assure that Timberlake and Bates complied with their disclosure obligations under the Scheduling Order. Watson adds that until Timberlake and Bates provided Plant’s actual opinion, Plant was merely a “placeholder” expert designated as one of several that Timberlake and Bates might have called. As a consequence, she was not aware that they would call Plant [*25] as a witness, and was prejudiced by not having an opportunity to evaluate Plant’s opinion or designate an accident reconstructionist of her own.
To Watson, Plant may indeed have appeared to be a “placeholder,” that is an expert designated merely to “hold place” until he or she forms an opinion, or until Timberlake and Bates decided which of several “placeholder” experts to call at trial. But the Scheduling Order here did not call for the designation of “placeholder” experts. Instead, by incorporating Rule 2-402(g), the Scheduling Order required Timberlake and Bates to state ” . . . the substance of the findings and the opinions to which . . . [Plant] is expected to testify and a summary of the grounds for each opinion[.]” If Watson was dissatisfied with Timberlake’s and Bates’s disclosure, and could not resolve the issue with good faith efforts, she was required to seek relief with reasonable promptness, Rule 2-432(d).
Had Watson sought relief, the court may have been able to address the prejudice Timberlake and Bates caused Watson18 with a sanction less severe than exclusion.19 Watson received Timberlake’s and Bates’s deficient designation on August 6, 2019. Had Watson moved to compel Plant’s opinion, Judge Anderson [*26] may have compelled Timberlake and Bates to supply it. Or, because Plant expected to review deposition testimony in forming his opinion, and the deposition of Watson’s eyewitness, Kimberly Brooks, had not yet occurred,20 Judge Anderson may have hastened Ms. Brooks’ deposition, and extended the designation and discovery deadlines.21 Or, Judge Anderson could have required that Plant appear for deposition at Bates’s and Timberlake’s expense, Rule 2-402(g)(3). And, Judge Anderson could have awarded Watson her attorney’s fees in having to chase Timberlake and Bates for Plant’s opinion, Rule 2-433(d). By delaying her request for relief to the first day of trial — when these options were no longer feasible –Watson took them off the table, and in so doing, sought what amounted to a windfall.
Watson further argues that when she declined Watson’s request to exclude Plant, Judge Woodall abused her discretion by failing to consider the Taliaferro factors, particularly the prejudice Watson suffered by the jury’s hearing Plant’s unchallenged expert opinion. HN10[ ] But a detailed analysis of the Taliaferro factors is not required, particularly where the court declines to consider sanctions. Muffoletto v. Towers, 244 Md. App. 510, 542, 223 A.3d 1169 (2020). Having heard Watson’s argument about the Taliaferro [*27] factors, Judge Woodall did not abuse her discretion in declining to take up the discovery dispute, or sanction Timberlake and Bates.
For the same reasons, we also affirm Judge Woodall’s denial of Watson’s new trial motion. Judge Woodall acted well within her discretion in allowing Plant’s testimony. Accordingly, we see no basis for a new trial.
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

Neutral As of: July 25, 2021 6:29 PM Z
Lucas v. Riverhill Poultry, Inc.
Supreme Court of Virginia
July 1, 2021, Decided
Record No. 200336

Reporter
2021 Va. LEXIS 74 *; 2021 WL 2692440
CRYSTAL LUCAS, ADMINISTRATOR OF THE ESTATE OF MARK LUCAS v. RIVERHILL POULTRY, INC., ET AL.
Prior History: [*1] FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY. David B. Carson, Judge.
Disposition: Affirmed.

This appeal arises from a defense verdict in a jury trial for an alleged wrongful death occurring in an unexplained single-vehicle accident in which both occupants perished. The plaintiff Crystal Lucas is the Administrator of the Estate of Mark Lucas (the “Administrator”) and the defendants are Riverhill Poultry, Incorporated (“Riverhill”) and Amy B. Goode (“Goode”), the Administrator of the Estate of Gerald Hilliard. The plaintiff contended that Hilliard fell asleep at the wheel of his tractor-trailer thereby causing the accident that killed a passenger in the vehicle, Mark Lucas. The defendants asserted that Lucas was the driver. We consider whether the circuit court erred (i) in excluding portions of the medical examiner’s autopsy report and the plaintiff’s experts’ opinions regarding the identity of the driver and Hilliard’s alleged sleep disorder and (ii) in refusing the plaintiff’s proffered jury instruction on falling asleep at the wheel. [*2] For the reasons explained below, we will affirm the circuit court’s judgment.
BACKGROUND
Just before 7 a.m. on February 15, 2017, a farm-use tractor-trailer owned by Riverhill left its lane of travel on Interstate 81 southbound in Rockbridge County and rolled down an embankment, killing Lucas and Hilliard. Riverhill employed Hilliard as a truck driver to transport chicken waste fertilizer. Lucas, a friend and neighbor of Hilliard, accompanied Hilliard in the tractor-trailer on the day in question.
The Administrator filed a complaint against Riverhill and Goode (collectively “Defendants”), seeking damages for wrongful death. The Administrator alleged that Lucas was a passenger in the tractor-trailer and that Hilliard failed to exercise reasonable care in its operation; failed to keep it under proper control; and fell asleep, due to lack of proper rest, while operating the vehicle causing it to leave the roadway and roll over. She alleged that Hilliard’s negligence was a proximate cause of Lucas’s death and the beneficiaries’ losses, including medical, funeral, and burial expenses; Lucas’s reasonably expected income, services, protection, care, and assistance; and Lucas’s “society, companionship, [*3] comfort, guidance, kindly offices and advice.” Riverhill disputed that Hilliard was driving the tractor-trailer and contended instead that Lucas was driving. Alternatively, Riverhill asserted that if Hilliard was driving the tractor-trailer, he was not negligent.
Prior to trial, the circuit court granted defense motions to exclude the Administrator’s proffered expert testimony from the attending medical examiner, Hilliard’s family physician, a neurologist, and a trucking safety professional as well as portions of the medical examiner’s autopsy report on Hilliard. At the beginning of trial, the Administrator proffered the excluded testimony from her experts as well as the medical examiner’s materials. She made no other motions or arguments related to the excluded evidence during the trial. At the close of the evidence, the Administrator proffered the following jury instruction: “A person who falls asleep while driving is negligent.” In support of her proffer, the Administrator argued that “we think that the evidence could have put the inference forward that the driver fell asleep because there was no evasive action until it was too late.”1 The circuit court refused the instruction. The [*4] jury returned a verdict for the defendants.
We awarded the Administrator this appeal. She assigns the following errors to the circuit court’s judgment, which we will address in turn.
1. The trial court erroneously excluded laboratory and manner of death evidence from the Commonwealth’s Assistant Chief Medical examiner’s report, as well as supportive expert testimony from the Assistant Chief Medical Examiner.
2. The trial court erroneously excluded all testimony of truck driver Hilliard’s family medicine physician about his sleep disorder, and later also refused the ‘falling asleep at the wheel’ Virginia model jury instruction.
3. The trial court erroneously excluded all expert neurological testimony on sleep disorders and fatigue (Dr. Hansen) and all expert truck safety testimony (Mr. Crawford) involving scientific findings and discussion of truck driver-fatigue and distracted driving.
DISCUSSION ASSIGNMENT OF ERROR 1
Medical Examiner’s Report and Expert Testimony
Dr. Sara Ohanessian, the Assistant Chief Medical Examiner at the Roanoke Office of the Chief Medical Examiner, performed an autopsy on Hilliard. She concluded the cause of Hilliard’s death was “Blunt Force Trauma of Head” and the [*5] manner of death was “Accident.” Her autopsy report included the following “Summary of Circumstances:”
This 68-year-old decedent was driving a 2004 Kenworth tractor trailer on I-81 in Virginia with a passenger. The vehicle reportedly ran off the road, struck a guardrail, struck an embankment, and then overturned. A call to 911 was made for assistance and police/rescue responded to the scene where the driver and passenger . . . were pronounced dead. It was reported that both decedents were unrestrained. The medical examiner’s office was notified, and the decedents were transported to WOCME for examination.”
A forensic analysis of Hilliard’s postmortem blood revealed that certain medications were present.
In her pre-trial deposition, Dr. Ohanessian testified that some of the medications found in Hilliard’s blood were drowsiness-inducing medications typically taken as sleep aids. She also testified that, in addition to her physical examination of Hilliard’s body, she relied on the final report from the state police to conclude that Hilliard was driving the tractor-trailer at the time of the crash. She added that the photographs of the accident scene showing Hilliard situated between the driver [*6] and passenger seats in the cab of the tractor-trailer with his left hand on the steering wheel also informed her conclusion that Hilliard was the driver. Dr. Ohanessian acknowledged on cross-examination that she had relied on the police report to “tell [her] who . . . was driving in this case” and that she was neither trained nor expected to recreate automobile accidents or make final conclusions about what object or mechanism may have caused the blunt force trauma to Hilliard’s head. She agreed she could only speculate about what occurred. Dr. Ohanessian also acknowledged that she could only speculate about whether Hilliard suffered any adverse reactions to any of the medications found in his blood or whether he was awake or asleep at the time the vehicle left the roadway. She confirmed that once she determined the cause and manner of death, her duties were complete.
I. Statutory Construction of Code § 8.01-390.2
First, the Administrator contends that the circuit court erred as a matter of law in excluding the Summary of Circumstances and the toxicology report because it was contrary to Code § 8.01-390.2. That statute provides:
Reports of investigations made by the Chief Medical Examiner, his assistants [*7] or medical examiners, and the records and certified reports of autopsies made under the authority of Title 32.1, shall be received as evidence in any court or other proceeding, and copies of photographs, laboratory findings and reports in the office of the Chief Medical Examiner or any medical examiner, when duly attested by the Chief Medical Examiner or an Assistant Chief Medical Examiner, shall be received as evidence in any court or other proceeding for any purpose for which the original could be received without proof of the official character or the person whose name is signed thereto.
The Administrator argues that the statute plainly provides that a medical examiner’s reports of investigations and copies of laboratory findings “shall be received as evidence.” She submits that the lack of any limiting language in the statute relating to hearsay testimony reflects that the General Assembly understood that a medical examiner’s report by its very nature derives from hearsay, such as reports from first responders and third-party forensic laboratories. Therefore, although Dr. Ohanessian based the opinions in her Summary of Circumstances on the police report, accident photographs and [*8] the location of Hilliard’s body in the cab of the tractor-trailer, rather than her personal knowledge of these facts, the Administrator argues that it did not warrant the circuit court’s exclusion. Similarly, she contends that the laboratory findings were plainly admissible under the statute. The Administrator also argues that the laboratory results were relevant because, along with Dr. Ohanessian’s supporting testimony, they demonstrated that Hilliard had knowingly ingested drowsiness-inducing medications, which was relevant to her theory that Hilliard fell asleep at the wheel.
HN1[ ] Alleged errors involving statutory interpretation or application present questions of law that we review de novo on appeal. Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174 (2007). We are bound by “the plain language of a statute unless the terms are ambiguous or applying the plain language would lead to an absurd result.” Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922 (2006) (internal citations and quotation marks omitted).
Although this is the first occasion on which we consider Code § 8.01-390.2, we have on several occasions construed and applied Code § 19.2-188, which is the materially identical criminal counterpart of Code § 8.01-390.2.2 A review of those cases reveals that we have consistently rejected the statutory construction and application that the Administrator [*9] promotes here. Her attempts to distinguish these cases do not persuade us to depart from this precedent for purposes of our interpretation and application of Code § 8.01-390.2.
In Bond v. Commonwealth, 226 Va. 534, 311 S.E.2d 769 (1984), the decedent died after falling from a fourth-floor balcony. The medical examiner based his conclusions that the decedent was thrown to her death, thereby making the death homicidal, upon the police investigation and report, witness statements, photographs from the scene, and a [*10] postmortem blood analysis devoid of any substances. The circuit court overruled the defendant’s objection to the admission of that portion of the medical examiner’s autopsy report as opinion based on hearsay, reasoning that the statute provided an exception to the hearsay rule and because it “clearly says [the report] shall be admissible in evidence.” Id. at 536-37. On appeal, we held that the circuit court erred, holding that “since only statements of fact are within the purview of the statutory exception” the medical examiner’s expression of opinion that the decedent died as a result of homicide was incompetent. Id. at 537 (quoting Ward v. Commonwealth, 216 Va. 177, 178, 217 S.E.2d 810 (1975)).3 HN2[ ] We reasoned that
[w]here the facts and circumstances shown in evidence are such that [jurors] of ordinary intelligence are capable of comprehending them, forming an intelligent opinion about them, and drawing their own conclusions therefrom, the opinion of an expert based upon such facts and circumstances is inadmissible.
Id. (quoting Coppola v. Commonwealth, 220 Va. 243, 252, 257 S.E.2d 797 (1979)). We further explained that although an expert witness may be permitted to express an opinion relative to the existence or nonexistence of facts not within common knowledge, the expert cannot give an opinion upon the precise or ultimate fact [*11] in issue, which must be left to the factfinder. Id. (citing Webb v. Commonwealth, 204 Va. 24, 33, 129 S.E.2d 22 (1963)).
Does Amendment to Code § 19.2-188 Limit Application of Bond?
The Administrator attempts to distinguish Bond and limit its application here, arguing that the medical examiner’s opinion was impermissible there only because it bore on an ultimate fact in issue, which she contends is now permissible under the amendment to Code § 19.2-188. It provides:
B. Any statement of fact or of opinion in such reports and records concerning the physical or medical cause of death and not alleging any conduct by the accused shall be admissible as competent evidence of the cause of death in any preliminary hearing.
See Acts 2009, ch. 640. We disagree with the Administrator’s contention that the amendment would dictate a different result in Bond and therefore limits its relevance here to support the exclusion of Dr. Ohanessian’s Summary of Circumstances. HN3[ ] Nothing in the plain language of Code § 19.2-188 provides that a medical examiner is authorized to opine on an ultimate fact in issue, nor does it permit her to base an opinion on facts and circumstances shown by the testimony of lay witnesses that are sufficient to enable a jury to draw its own conclusion. Further, [*12] the medical examiner in Bond opined on conduct by the accused (that he threw the victim off the balcony), which the amendment plainly prohibits.
Does Enactment of Code § 8.01-401.3 Limit Application of Bond?
We also disagree with the Administrator’s assertion that Bond has limited relevance to this civil case in light of Code § 8.01-401.3, which provides:
No expert or lay witness while testifying in a civil proceeding shall be prohibited from expressing an otherwise admissible opinion or conclusion as to any matter of fact solely because that fact is the ultimate issue or critical to the resolution of the case. However, in no event shall such witness be permitted to express any opinion which constitutes a conclusion of law.
The circuit court excluded Dr. Ohanessian’s testimony that Hilliard was driving and had ingested sleep aids at some time prior to the accident for lack of a proper foundation. The court concluded that the proffered testimony would invade the province of the jury to draw its own conclusions from the same evidence the doctor considered. Therefore, Dr. Ohanessian’s expert testimony was not “otherwise admissible” as required by Code § 8.01-401.3. Hence, application of this statute also would not permit [*13] the medical examiner’s excluded expert testimony. See Countryside Corp. v. Taylor, 263 Va. 549, 553, 561 S.E.2d 680 (2002) (internal citations omitted) (explaining that HN4[ ] although Code § 8.01-401.3 has liberalized the admission of expert testimony, it nevertheless must meet the fundamental evidentiary requirements, such as an adequate foundation). Accordingly, our construction and application of Code § 19.2-188 in Bond applies here without limitation.
Additional Cases that Inform our Construction of Code § 8.01-390.2
We likewise adopt and apply our reasoning in Bass v. Commonwealth, 212 Va. 699, 700, 187 S.E.2d 188 (1972). There, we rejected the Commonwealth’s argument, similar to the Administrator’s arguments here, that admission of the medical examiner’s report was mandatory because of the statutory language providing that a medical examiner’s report “shall be received into evidence.” We explained that HN5[ ] the effect of the statute was to make reports of investigations of the medical examiner “admissible as prima facie evidence of the facts stated therein, thus obviating the necessity of summoning as witnesses those persons” performing the particular tests or investigations at issue. See also, Robertson v. Commonwealth, 211 Va. 62, 67-68, 175 S.E.2d 260 (1970) (construing the statute to mean that facts, not opinions, in a medical examiner’s report are accorded the dignity of prima facie evidence).
Similarly, in [*14] Hopkins v. Commonwealth, 230 Va. 280, 286-287, 337 S.E.2d 264 (1985), the circuit court ruled, over defense objection, that Code § 19.2-188 permitted the admission of the victim’s dental identification through the medical examiner’s testimony or the autopsy report. On appeal, we held that the circuit court erred, explaining that HN6[ ] “expressions of opinion . . . are not admissible merely because they are included in a medical examiner’s report; only statements of fact are admissible under this statutory exception to the rule excluding hearsay evidence.” See also Quintana v. Commonwealth, 224 Va. 127, 141, 295 S.E.2d 643 (1982) (holding the medical examiner’s report was prima facie evidence of the stated facts but that an opinion in the report was not competent evidence). Accordingly, we reject the Administrator’s similar arguments on these points as well.
HN7[ ] Our reasoning in the foregoing cases is also consistent with our holdings that it is error to admit into evidence a death certificate, which is governed by Code § 32.1-272, to show cause or manner of death if it contains any expressions of opinions or conclusions by a person who has no personal knowledge of the facts. See Edwards v. Jackson, 210 Va. 450, 452-453, 171 S.E.2d 854 (1970) (construing Code § 32-353.27, the predecessor to Code § 32.1-272); see also Bailey v. C. V. Hunter, Inc., 207 Va. 123, 148 S.E.2d 826 (1966) (same); and K. Sinclair, The Law of Evidence in Virginia § 13-12[d] (8th ed. 2018) (same).
Further, we observe that HN8[ ] when the General Assembly enacted [*15] Code § 8.01-390.2 with language identical to Code § 19.2-188, it did so with the knowledge of our aforementioned jurisprudence. See Acts 2003, ch. 459; see also Townes v. Virginia State Bd. of Elections, 299 Va. 34, 49, 843 S.E.2d 737 (2020) (explaining that when the legislature acts in an area in which an appellate court has spoken, it is presumed to know the law as the court has stated it and therefore to acquiesce in it, and if the legislature intends to countermand such appellate decision it must do so explicitly) (quoting Weathers v. Commonwealth, 262 Va. 803, 805, 553 S.E.2d 729 (2001) and citing Lambert v. Sea Oats Condominium Ass’n, Inc., 293 Va. 245, 254, 798 S.E.2d 177 (2017)).
Therefore, in keeping with the reviewed precedent, we reject the Administrator’s argument that Code § 8.01-390.2 should be construed as a mandate to admit expressions of opinion merely because they are included in a medical examiner’s report regardless of any other rule of evidence. HN9[ ] The statute provides an exception only to the evidentiary rule excluding hearsay evidence.4 Its effect is to make reports of investigations of the medical examiner “admissible as prima facie evidence of the facts stated therein, thus obviating the necessity of summoning as witnesses those persons performing the particular tests or investigations at issue.” Bass, 212 Va. at 700. It does not, as we explained in Bond, provide an exception authorizing admission of expressions of opinion in a report that are derived from [*16] evidence, such as here, that the jury is just as well-equipped as the medical examiner to consider and draw its own conclusions. However, if the evidence was such that the jurors were not capable of comprehending and forming an intelligent opinion about it, and drawing their own conclusions, the opinion testimony of an expert based upon such facts and circumstances would be admissible, assuming it met all other evidentiary requirements. That simply is not the case here.
As Dr. Ohanessian [*17] acknowledged, the only investigation she was tasked with was to determine the cause and manner of Hilliard’s death, which, respectively, she reported as “Blunt Force Trauma of Head” and “Accident.” See Code § 32.1-183(B). The circuit court properly permitted those portions of Dr. Ohanessian’s report as prima facie evidence of those facts without the need for her appearance or testimony, thereby effectuating the purpose of Code § 8.01-390.2.
II. Medical Examiner’s Expert Testimony
Next, the Administrator contends that the circuit court abused its discretion in excluding Dr. Ohanessian’s designated expert testimony.
HN10[ ] It is well-established that the admission or exclusion of expert testimony is a matter within the sound discretion of the circuit court, and we will reverse the circuit court’s judgment only when the court has abused this discretion. Keesee v. Donigan, 259 Va. 157, 161, 524 S.E.2d 645 (2000). When we say that a circuit court has discretion, we do not mean that the court is free to simply act in any way it may deem desirable under the circumstances. See, e.g., Harris v. Citizens Bank & Tr. Co., 172 Va. 111, 144, 200 S.E. 652 (1939) (observing that a matter that is committed to the discretion of a trial court does not involve “arbitrary or capricious discretion, dependent upon the mere pleasure of the judge, but of that sound and reasonable [*18] discretion which governs itself, as far as it may, by general [legal and equitable] rules and principles”). Rather, we mean that the circuit court “has a range of choice, and that its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law.” Landrum v. Chippenham and Johnston-Willis Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134 (2011) (internal citations omitted).
As we have already recognized, the record reveals that Dr. Ohanessian based her opinion upon the facts and circumstances shown from the police report, photographs of the accident, roadway marks, debris, Hilliard’s post-mortem blood analysis, and eyewitness testimony. These facts and circumstances are such that the jurors could comprehend them, form an intelligent opinion about them, and draw their own conclusions. Bond, 226 Va. at 537; see also Lopez v. Dobson, 240 Va. 421, 423, 397 S.E.2d 863, 7 Va. Law Rep. 849 (1990) (holding that HN11[ ] a “witness may describe the marks that he has observed near the place of an accident . . .[but] [t]he inference to be drawn from the testimony regarding such tire marks, skid marks, or scratches is solely the province of the jury”). Not only did Dr. Ohanessian rely on the police report to “tell [her] who . . . was driving in this case” she acknowledged that she was neither trained nor expected to recreate automobile accidents [*19] or make final conclusions about what caused the accident or the blunt force trauma to Hilliard’s head. The record also shows that Dr. Ohanessian could not say whether Hilliard suffered any adverse reactions to any of the medications found in his blood or if he was awake or asleep at the time the vehicle left the roadway.
HN12[ ] Accordingly, we cannot say that the circuit court exceeded its range of discretion or that it was influenced by any mistake of law in excluding Dr. Ohanessian’s testimony. See Countryside Corp., 263 Va. at 553 (holding that expert testimony is inadmissible if it is speculative or without a proper foundation).
ASSIGNMENT OF ERROR 2
I. Family Medicine Physician’s Expert Testimony
Dr. Rosa King, Hilliard’s family medicine physician, testified that in November 2016, Hilliard complained of insomnia, sleep disturbances, depression, and fatigue. She ordered an at-home overnight sleep study, which Hilliard underwent on December 7 and 8, 2016. Dr. King explained that Hilliard’s results were abnormal and she instructed her nurse to inform Hilliard, by telephone and mail, that “his oxygen did drop during the sleep test . . . enough to qualify . . . to have oxygen at nighttime.” Dr. King stated that the test “was [*20] not a daytime test, so we can’t — extrapolate to that. But for the overnight, [Hilliard] could have benefited from oxygen.” Dr. King testified that she wanted Hilliard to see a sleep specialist right away for a formal evaluation of sleep apnea. Dr. King believed that Hilliard had been informed of his sleep test results and her recommendation for a follow-up, but the medical records indicated that Hilliard did not follow up.
The circuit court ruled that Dr. King’s testimony was inadmissible at the time of the pre-trial hearing because it was “too attenuated,” but its ruling was “without prejudice to [Lucas], by counsel, moving the Court to reconsider its ruling based on developments at trial.”
Although the Administrator contends that the circuit court abused its discretion in excluding Dr. King’s testimony, we conclude that she has waived this argument. Rule 5:25. The circuit court’s ruling to exclude Dr. King’s testimony was without prejudice to a motion for reconsideration based on developments at trial. The Administrator proffered Dr. King’s testimony at the outset of the trial; however, she did not move the court for reconsideration during the trial in accordance with the court’s preliminary [*21] ruling. See, e.g., Wal-Mart Stores E., LP v. State Corp. Comm’n, 299 Va. 57, 76, 844 S.E.2d 676 (2020) (observing that HN13[ ] “[a] motion to reconsider ordinarily asks a court to reconsider a holding because, in the opinion of the movant, the holding was erroneous”). Therefore, the Administrator deprived the circuit court of an opportunity to make a final ruling on the admissibility of Dr. King’s testimony in light of the evidence presented at trial and we will not consider the challenged ruling as a basis for reversal on appeal. See Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 526, 636 S.E.2d 416 (2006) (finding that HN14[ ] if the circuit court is not afforded the opportunity to address an issue there is no ruling on that issue and, thus, no basis for review or action by this Court); Wal-Mart Stores, 299 Va. at 76-77 (concluding that a motion for reconsideration “may . . . challenge a tribunal’s failure to rule on an issue properly presented to it, particularly a timely but unadjudicated lesser-included claim,” but that it may not “request to consider for the first time something the movant had never before specifically sought”).
II. Refusal of Jury Instruction
The Administrator also assigns error to the circuit court’s refusal of an instruction that would have informed the jury that “[a] person who falls asleep while driving is negligent.” She contends that even without the excluded [*22] expert testimony, the eyewitnesses’ testimony that the driver of the tractor-trailer did not apply the brakes, swerve or take any other evasive maneuvers as the vehicle left the roadway, along with the police officer’s corroborating testimony that his investigation of the accident site and vehicle damage showed no skid marks, tire blowouts or other mechanical explanations, was more than sufficient to permit the jury to infer that the driver may have fallen asleep at the wheel.
HN15[ ] The credible evidence introduced in support of a requested jury instruction “must amount to more than a scintilla.” Hancock-Underwood v. Knight, 277 Va. 127, 130-31, 670 S.E.2d 720 (2009). On appeal, we view that evidence in the light most favorable to the proponent of the instruction. Id. at 130. So viewed, the evidence that there were no equipment or mechanical failures perhaps lends itself to reasonable inferences about what did not cause the tractor-trailer to leave the roadway, but it does not reasonably follow that the only remaining reason would be because the driver may have fallen asleep. Likewise, the lack of evasive maneuvers is insufficient to permit jurors to infer, without improper speculation, that the driver may have fallen asleep. HN16[ ] “It is incumbent on the plaintiff who alleges [*23] negligence to show why and how the accident happened, and if that is left to conjecture, guess or random judgment, he cannot recover.” McFadden v. Garrett, 211 Va. 680, 683, 179 S.E.2d 482 (1971) (internal citations omitted).
HN17[ ] Further, “[w]here the jury has been sufficiently and correctly instructed on any point, it is not error to refuse further instructions on that point, however correct a tendered instruction may be.” Harman v. Honeywell Intern., Inc., 288 Va. 84, 104, 758 S.E.2d 515 (2014) (internal citations omitted). The jury in the instant case was instructed that “the driver of a vehicle has a duty to use ordinary care: to keep a proper lookout; to keep his vehicle under control; and to operate his vehicle at a reasonable speed under the existing conditions. If a driver fails to perform any one or more of these duties, then he is negligent.” HN18[ ] We have said that “[t]o fall asleep at the steering wheel is a clear violation of the duty to keep a proper lookout.” Lipscomb v. O’Brien, 181 Va. 471, 475, 25 S.E.2d 261 (1943). Thus, the principle set forth in the refused instruction was fully and fairly covered in the granted instruction.
ASSIGNMENT OF ERROR 3
I. Neurologist’s Expert Testimony
The Administrator argues that the circuit court erred by excluding the proffered testimony of Dr. Robert Hansen, a neurologist, as an expert in sleep disorders. He opined to a reasonable [*24] degree of medical probability, based on a differential diagnosis, that Hilliard fell asleep while operating the tractor-trailer due to daytime sleepiness and fatigue from sleep apnea. Dr. Hansen testified that Hilliard’s underlying untreated sleep problem was compounded by his use of sedating medications as seen in the toxicology report. He explained that there was no evidence for loss of consciousness from other medical causes, such as diabetes or a heart arrythmia, as there had been no problems with Hilliard’s pacemaker. Dr. Hansen stated that although there are a number of things that can happen to people, such as an aneurysm or heart attack, when, as in this case, the person has known sleep problems and apparently falls asleep, the cause is sleep apnea.
On cross-examination, Dr. Hansen conceded that he would need to know, but did not know, how long a person had been taking a medication, whether he had developed a tolerance to it, the person’s weight and whether it had changed. Dr. Hansen also admitted he did not know if Hilliard had taken any measures to address his sleep issues, such as losing weight or changing medications, and he conceded that the medications that were in Hilliard’s [*25] blood had a long half-life, which meant he did not know the effect of the medications on Hilliard at the time of the accident. Likewise, Dr. Hansen did not know Hilliard’s genetic ability to metabolize the medications on the day in question, which would be dependent on his hydration and how his kidneys were functioning that day.
The Administrator argues that Dr. Hansen’s testimony was competent, probative medical evidence that would tend to make her theory of liability more likely. She adds that the defendants’ arguments against admission of this evidence go to the weight of Dr. Hansen’s testimony, not its admissibility, and therefore the circuit court abused its discretion in excluding the testimony.
HN19[ ] We do not agree. “Generally, when an expert examines facts and circumstances leading to an injury, his opinion as to the cause of the injury is not rendered factually unsupported by the possibility of another cause.” Toraish v. Lee 293 Va. 262, 269, 797 S.E.2d 760 (2017). However, that is not so when, as here, an expert purports to eliminate all possible causes of the accident until only one remains. Id. When Dr. Hansen conceded that there was information he needed to know, but did not know, it rendered his differential diagnosis invalid and [*26] inadmissible because it was founded on assumptions that were not established. Id. at 270. HN20[ ] Further, “[e]xpert testimony founded upon assumptions that have no basis in fact is not merely subject to refutation by cross-examination or by counter-experts; it is inadmissible.” Id. at 269. Accordingly, we cannot say the circuit court abused its discretion in excluding the contested portions of Dr. Hansen’s proffered testimony.
II. Trucking Safety Professional’s Expert Testimony
The Administrator also argues that the circuit court erred in excluding the proffered testimony of James Crawford from Introtech Inc., an accident reconstruction service, who had been retained as an expert regarding regulations and industry standards of safety for the operation of commercial trucks, including issues of drowsiness and sleep deprivation and how those issues relate to the circumstances of the crash and deaths at issue. In sum, Crawford opined that there were no adverse causative factors associated with the vehicle, roadway or environment. He presented diagrams deduced from his review of the evidence to depict how he believed that the tractor-trailer left the roadway and concluded that it demonstrated how the driver failed [*27] to keep a proper lookout and drive safely. In his opinion, the accident was caused by a driver who was not normally alert due to being fatigued or because he fell asleep at the time of the crash. Crawford further opined that the damage to the passenger door was caused by Lucas’s ejection as the truck rolled over and that the location of Hilliard’s body was consistent with him being the driver because he was able to hold on to the steering wheel while the tractor-trailer rolled over.
However, Crawford admitted that he did not take any measurements or conduct any tests to determine whether Lucas’s body would fit through the window opening in the damaged door. Similarly, he conceded that whether Hilliard moved his arms after the tractor-trailer came to rest was indeterminate and that there was no data regarding what Hilliard may or may not have been doing inside the vehicle before anyone arrived on the scene.
HN21[ ] As we explained above, when the facts and circumstances are such that jurors could comprehend them, form an intelligent opinion about them, and draw their own conclusions, the opinion of an expert based upon such facts and circumstances is inadmissible. Bond, 226 Va. at 537; see also Lopez, 240 Va. at 423 (holding that a [*28] “witness may describe the marks that he has observed near the place of an accident . . .[but] [t]he inference to be drawn from the testimony regarding such tire marks, skid marks, or scratches is solely the province of the jury”); and Countryside Corp., 263 Va. at 553 (holding that expert testimony is inadmissible if it is speculative or without a proper foundation). Therefore, the circuit court did not abuse its discretion in excluding Crawford’s opinions.
CONCLUSION
For the foregoing reasons we find no abuse of discretion in the circuit court’s evidentiary rulings and will affirm its judgment entered on the jury’s verdict.
Affirmed.