Digests of Recent Virginia Supreme Court Decisions
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.
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.
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.
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.
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.