September - December 2007 Virginia Supreme Court Decisions

Digests of Recent Virginia Supreme Court Decisions

• Vahdat v. Holland
• Crane v. Jones
• Collins v. Shepard
• King v. Colley
• Craig v. Heron
• Billups v. Commonwealth of Virginia
• Dagner v. Anderson
• Commonwealth of Virginia v. Juares
• Perez v. Commonwealth
• Judicial Inquiry and Review Commission of Virginia v. Shull

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Vahdat v. Holland - Virginia Supreme Court - September 14, 2007

In this automobile case the vehicle driven by the defendant was following the plaintiff's vehicle when the defendant's vehicle went to the left, apparently attempting to pass, lost control, hit a telephone pole, knocked the telephone pole down which then fell across the plaintiff’s car causing damage. The defendant testified that he was driving normally when he suddenly blacked out. He was diabetic, but stated that he had never blacked out before and had checked his blood frequently the morning of the accident and his blood sugar was fine. At trial at the conclusion of all the evidence each side offered a "sudden emergency" instruction.

The defendant offered the standard book instruction. The plaintiff modified the instruction by adding language to the effect that the defendant bore the burden of proving the defense of diabetic blackout. The trial court granted the defendant's instruction, the jury returned a verdict for the defendant, and the plaintiff appealed.

The Virginia Supreme Court noted that whether a sudden emergency instruction was appropriate here was not at issue, and reiterated in a footnote its previous holdings that such instructions are rarely appropriate. The Court said that the issue in this case was whether the instruction given was properly phrased, or whether the jury should have been instructed that the defendant bore the burden of proof of the sudden emergency.

The Court held that the burden of proof in such a negligence action always resides with the plaintiff. The defendant in a sudden emergency case has, after the plaintiff has proven a prima facia case, the burden of going forward with enough evidence to get to the jury the issue of sudden emergency, but once the burden of going forward has been met the burden of proof still resides with the plaintiff. The jury here was properly instructed so the trial judge and the jury below are affirmed. Note also that the jury need never be told of the burden of going forward because if the defendant does not meet that burden the defense will never be presented to the jury, and if the burden is met then the facts go to the jury with no need to tell the jury that the defendant had to meet the burden of going forward since they already met it.

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Crane v. Jones - Virginia Supreme Court - September 14, 2007

This case involves a wrongful death verdict as the result of mesothelioma due to asbestos fibers. The verdict, $10.4 million (reduced to the ad damnum of $10 million) was apportioned by the jury almost equally among the three defendants. The trial court sustained the verdict and it was appealed on several grounds.

The first ground was that the case was tried under general maritime law rather than Virginia Law. The plaintiff was an outside machinist at Newport News Shipbuilding & Dry Dock Company. He was alleged to have encountered asbestos containing products while building and repairing various vessels. The trial judge held that maritime law applied. The Virginia Supreme Court affirmed. Basically maritime law is applied first on a location test, which here was satisfied by the location being the shipyard, and secondly by a maritime connection test. The connection test must be satisfied by proving that the incident had a potentially disruptive impact on maritime commerce and that the incident showed a substantial relationship to traditional maritime activity. The Court, citing other jurisdictions, held that injury to a repair worker could potentially slow the repair of the vessel thus potentially disrupting maritime activity. The court also held that the defendant's activity, providing gaskets and packing material designed and marketed to the maritime industry proved a substantial relationship to traditional maritime activity. Thus maritime law was correctly applied.

The Court also sustained the trial court in its allowing the testimony of a witness for impeachment and, more importantly, excluding some of the testimony of two of the defendant's experts. The first expert hadn't, according to the plaintiff and the trial judge
agreed, fully stated one of the opinions he was going to give at trial. Significantly, the Supreme Court did agree with the trial judge that this omission was not cured at the deposition of the expert when the plaintiff’s attorney elicited those opinions and examined the expert on those opinions. "A party is not relieved from its disclosure obligation under the Rule simply because the other party has some familiarity with the expert witness or the opportunity to depose the expert." The second expert had performed some tests and the opinions and results were stated to have been given in an attached report, which was never sent. The trial court excluded the testimony, and the Virginia Supreme Court agreed.
The key point is that the Virginia Supreme Court is quite serious about expert disclosures. See also King v. Cooley. If you play with expert disclosures and try to game the system you might very well get burned.

Of great importance is the last ruling. The verdict was above the ad damnum and well above average verdicts for that type of injury (death). The Virginia Supreme Court firmly rejected the average verdict rule as a test. It reviewed the evidence, including the trial judge's affirmation of the verdict, and held that the trial judge did not abuse its discretion in affirming the verdict.

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Collins v. Shepard - Virginia Supreme Court - September 14, 2007

This is a case that involves the Circuit Court's dismissal of a case for failure to serve within one year. The Norfolk Circuit Courts apparently had a local rule that stated that once a case had been on the docket for more than one year the case would be dismissed with prejudice. notice would be sent to plaintiff’s counsel before the actual entry of the order allowing plaintiff’s counsel either to prove due diligence or to take a nonsuit. In this case the underlying case languished on the docket for more than one year without service on the defendant and the court sent a notice to plaintiff s counsel stating that the case would be dismissed with prejudice on a certain date in the future unless the counsel appeared and made the appropriate showings. The plaintiff’s counsel never appeared or objected and in due course an order was entered dismissing the case with prejudice. A copy of this order was sent to plaintiff’s counsel, who made no objection for six months. Plaintiffs counsel told the court that there was a fraudulent behavior in his office which kept him from receiving the order and being able to respond. He asked that the order be set aside and the case be returned to the docket. The Circuit Court judge granted this order, and the plaintiff immediately nonsuited the case. The defense lawyer somehow found out about this and promptly moved the Circuit Court to reinstate the order of dismissal on the grounds that the 2l day rule had long expired, and thus the Circuit Court did not have the authority to vacate that order. The plaintiff argued that the original order dismissing the case was invalid because the Circuit Court rule under which it was granted exceeded the authority of the Circuit Court. The Circuit Court vacated the nonsuit order and ruled that its order dismissing the case with prejudice was a valid order. Plaintiff appealed.

The Virginia Supreme Court reversed. The Justices agreed that the Circuit Court did not, at that time, have the authority to craft a rule dismissing cases under those circumstances. Four of the Justices felt that the order dismissing the case was therefore invalid and void and of no effect and therefore the plaintiffs case was still on the docket. Three, in dissent, felt that the order was voidable and therefore the 2l day rule applied and thus the order dismissing the case had become final. Note that this issue has become somewhat moot because a statute has been recently enacted which gives the Circuit Court the authority that the Supreme Court said it lacked.

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King v. Colley - Virginia Supreme Court - September 14, 2007

This is a medical malpractice case. The plaintiff sued, alleging that the doctor negligently followed up on the patient after performing a gastric bypass surgery leading to severe injury including permanent brain injury. The plaintiff’s experts claimed that the brain injury and associated damage was caused by Adult Respiratory Syndrome and sepsis which were caused by the defendant's failure to diagnose promptly and treat a leak left over from the surgery. The defense experts stated the brain and associated injury were caused when the plaintiff, while being prepared for the second reparative surgery, aspirated during the intubation process. The plaintiff obtained a verdict of $3,500,000 which was reduced to the cap by the trial judge, which was then $1,650,000.

The defendant appealed. There were two main issues. The defendant attempted to call one of the plaintiff’s treating physicians, the surgeon who assisted at the second surgery, as a witness. The plaintiff objected, stating that the defendant had not detailed, per the pretrial order, the opinions and the grounds for the opinions of this expert. The trial judge agreed and excluded the testimony of that witness. On appeal the defendant claimed that this was not really an expert witness but rather a fact witness. However, upon examining the proffered evidence testimony, the Virginia Supreme Court agreed with the trial judge that the evidence that the plaintiff suffered from aspiration pneumonia was expert opinion evidence rather than factual evidence. However the Supreme Court did not decide whether the testimony was properly excluded under the pretrial order because even if it should have been admitted it was harmless error because it was merely cumulative, defendant's three other expert witnesses having given the same opinion. The second point on appeal was that the defendant's claimed they were not allowed to fully cross examine one of the plaintiff’s experts. However, the Virginia Supreme Court refused to consider this issue because a sufficient proffer of what evidence they expected to elicit was not made.

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Craig v. Heron - Virginia Supreme Court - September 14, 2007

This case involves an interpretation of a policy provision required by the Federal Motor Carrier Safety Administration of vehicles involved in interstate commerce. The insured motor carrier’s primary business was in Florida but its vehicles hauled mulch resulting from the taking down of trees as the result of hurricanes in many states. The vehicle involved allegedly caused an accident on Route 64 in Tidewater. However, at the time the vehicle was involved in a trip which was purely intrastate. The policy provisions excluded coverage for the driver because he had a terrible driving record. Therefore the parties stipulated that there was coverage only if the FMCSA endorsement, called MCS-90 required it.

In pertinent part MCS-90 reads- “The insurer agrees to pay...any final judgment recovered against the insured for...liability resulting from negligence in the operation...of motor vehicles...subject to the financial responsibility requirement of . . .the Motor Carrier Act. . .regardless of whether or not each motor vehicle is specifically described in the policy...”

The trial court held in a declaratory judgment action that this language meant that only vehicles in interstate commerce were covered. The Virginia Supreme Court, Justice Lacy before she retired, held that there was no language in the contract limiting the coverage to the use or operation of the vehicle in interstate commerce and the courts in Virginia would not read such a provision into the contract. Therefore this case was reversed for coverage.

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Billups v. Commonwealth of Virginia - Virginia Supreme Court - November 2, 2007

This case involves the use of new scientific tests.  The defendant, a juvenile at the time of his offenses, was convicted of several crimes regarding the molestation of children.  The case was certified to the Circuit Court and he was tried as an adult.  Indeed, he reached the age of majority shortly before the actual trial.  After the convictions the trial judge ordered a pre-sentence report which was to contain a psychosexual evaluation pursuant to statute.  Defense counsel objected to the final report because it contained conclusions based on both polygraph tests and “plethysmograph” testing.  The trial judge granted the defense motion in part and ordered a new report without any of the polygraph testing results allowed.  However, the trial judge did allow the conclusions of the plethysmograph testing to be used.  A plethysmograph is “an instrument for determining and registering variations in the size of an organ or limb and in the amount of blood present or passing through it.”  Apparently the test consists of the person being tested being exposed to various auditory and visual stimuli and the device then measures the arousal of the test taker to the various stimuli.  The tests results showed that the convicted person was highly likely to commit offenses in the future. 

The defense specifically objected to the inclusion of the test results of the plethysmograph on the grounds that there was no showing that it was a reliable scientific test.  The trial judge overruled the objections and sentenced the defendant to life plus.  On appeal the Court of Appeals upheld the trial judge noting that there was a reduced standard of proof in sentencing hearings.  However the Virginia Supreme Court reversed and held that before results of a scientific test may be used that there must be a threshold determination that the test is scientifically reliable and the proponent of the evidence must bring that evidence forward. This is true even under the reduced standards of a pre-sentence report.   Here this was not done so the sentence is reversed. 

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Dagner v. Anderson - Virginia Supreme Court - November 2, 2007

This case is an appeal from a verdict for the defense in a medical malpractice case.  Briefly the plaintiff’s decedent was found in her apartment unconscious and was transported to the ER.  She was a diabetic, and apparently had taken her daily dose of insulin but not had the recommended meal but instead had ingested significant quantities of alcohol. Alcohol can significantly compromise someone who is a diabetic. This caused the coma.  The rescue squad personnel gave her medication in the ambulance and she awakened and was doing fairly well when she got to the ER.  There the defendant ER doctor examined and treated her.  He gave her additional medication, had her eat a meal, instructed her not to ever drink alcohol again, and discharged her.  At the time he discharged the patient, the lab results showed a BAL of .24.  However, when a nurse called a relative to give her a ride home the response was that I am working and cannot be there for eight hours.  Therefore the plaintiff’s decedent spent the time in the ER waiting room, where she was found in a coma with extremely low blood sugar, and was admitted but later died. 

The defendant called one doctor as an expert witness.  That doctor was an ER doctor also and testified that not only did the defendant not violate the standard of care, but that the cause of death, the brain damage, was from seizures due to AWS (alcohol withdrawal syndrome) rather than the diabetes and the very low blood sugar problems, and that a reasonable ER doctor could not have anticipated this problem.

The jury found for the defendant, and the plaintiff appealed.

The Virginia Supreme Court reversed.  The defendant’s expert witness was clearly qualified to testify as to the standard of care, but, in the opinion of the Virginia Supreme Court, not sufficiently qualified to testify as to causation of the brain damage and death, and the trial court erred is so qualifying him. 
Therefore the case is reversed and sent back for a new trial.

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Commonwealth of Virginia v. Juares - Virginia Supreme Court - November 2, 2007

This is a criminal case involving jury misconduct but with applications for all trials.

The defendant was arrested and charged with aggravated sexual battery.  After his arrest he was interviewed by an investigator who taped part of the interview.  Since the defendant spoke little English, a deputy who was fluent in Spanish interpreted.  Part of this tape recording was played at trial, the deputy stating that his translation was 90-95% word for word and accurate.  The defendant objected and asked for a Spanish interpreter and one was provided who translated the portions of the tape that were in Spanish to the jury.

During deliberations the jury asked for a translator and court personnel, not otherwise identified, and told the jury they couldn’t have one.  The jury returned a guilty verdict.  Note that the trial judge was not apprised of the jury request at the time it was made.  The defendant learned of the ex parte contact with court personnel and moved to set aside the verdict and for a mistrial based on the ex parte contact between the jury and court personnel.  The trial judge overruled the motions noting that he had previously instructed the jury that although they might take notes that they would not get a written transcript and that nothing would be read back to them.  The trial judge felt that under no circumstances would an interpreter have been sent back to the jury, and so no harm was done in the communication. 

On Appeal the Court of Appeals noted the rule that any ex parte contact was presumptively prejudicial and the Commonwealth did not carry its burden to show that such contact was harmless, and so reversed. 

The Virginia Supreme Court reversed the Court of Appeals and sustained the trial judge, affirming the verdict of guilty.  It did note the general rule that any ex parte contact with a juror is presumed prejudicial.  However, that rule applies only when the contact conveys some information regarding the case.  Here the contact did not convey any information about the facts of the case, about guilt or innocence, or about the law.  It was merely a request for an interpreter.  Therefore the defendant was required to show prejudice, and he did not carry this burden. 

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Perez v. Commonwealth - Supreme Court of Virginia - November 2, 2007

Briefly, the defendant was stopped for a traffic offense.  The officer noted a gun under the front seat, and, after finding out the defendant’s real name, charged him with possession of a firearm after having been convicted of a felony.  The question arose at trial on the question of proof of whether the defendant had been convicted of a felony before the new charge.  The Commonwealth produced two orders as evidence.  The first came from the “Woodbridge Juvenile and Domestic Relations District Court” which, of course, is a misnomer, that court not existing.  The case was apparently transferred to the Fairfax Juvenile and Domestic Relations District Court.  The orders show that the defendant was charged with Grand Larceny and Burglary, and that he was convicted of two counts, and lists the case as a “felony” case.  The order was signed by a Judge, but not dated. 

The Court of Appeals, after stating that two of the convictions were for the same crime, affirmed the trial court and the Virginia Supreme Court granted an appeal limited solely to the issue of whether an undated order purporting to be a predicate juvenile adjudication is sufficient to support felony possession of a firearm. 

The Virginia Supreme Court affirmed.  Although there was no date, it was clear that the defendant had been convicted of a felony.  From the date of the earlier offense and the fact that the defendant was charged as a juvenile and sentenced as a juvenile that the date of conviction, even though left blank, had to be before the date of the felony possession of a firearm offense, which occurred after the defendant had reached the age of majority.  Therefore, in the opinion of the majority there was proof  beyond a reasonable doubt that the defendant had been convicted of a felony prior to the event for which he was charged with felony possession of a firearm. 

There was a dissent by Justice Koontz who pointed out that the “Woodbridge” court did not exist at the time of the conviction, and holding that an undated order is not an effective order. 

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Judicial Inquiry and Review Commission of Virginia v. Shull - Virginia Supreme Court - November 2, 2007

Judge Shull was charged with several violations of the Canons of Judicial Conduct and was suspended by the Judicial Inquiry and Review Commission.  The Commission then filed a formal complaint with the Virginia Supreme Court which requires the Court to hold an open hearing to decide whether the Judge in question has engaged in conduct prejudicial to the proper administration of justice.

Here in the hearing the Virginia Supreme Court found that Judge Shull had, in custody and visitation hearing, twice in open court ordered a female party to lower her pants in order for him to view a wound on her thigh.  There was some question as to whether the wound was from the husband of the female or whether it was self inflicted.  The female tried to show the Judge the wound by raising her pants leg but was unsuccessful, and so, the Virginia Supreme Court found, at the Judge’s insistence, lowered her pants exposing her underwear and buttocks to others in the courtroom.  The Virginia Supreme Court also found that Judge Shull had initiated an ex parte conversation with hospital authorities to discuss with them the wound.  Note that the female was not represented by counsel at the hearing and had a history of mental problems, which the Judge knew.  The Virginia Supreme Court also found that Judge Shull had, on at least two occasions, decided matters before him by flipping a coin in the open courtroom.  Finally the Judge had a prior history of improper behavior and had been disciplined once previously.

Taking this into account the Virginia Supreme Court removed Judge Shull from the bench.