Shumate v. Mitchell

PRESENT: All the Justices
DEBRA K. SHUMATE
OPINION BY
v. Record No. 180012 JUSTICE WILLIAM C. MIMS
December 20, 2018
TERRI MITCHELL, EXECUTRIX AND
PERSONAL REPRESENTATIVE OF
THE ESTATE OF WILLIAM EARL THOMPSON
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
James R. Swanson, Judge
In this appeal, we consider whether Virginia’s Dead Man’s Statute, Code § 8.01-397,
permits admission of a decedent’s hearsay statements offered by the defense in a personal injury
action brought against the decedent’s estate. We also consider whether the circuit court erred in
refusing to vacate the jury’s verdict of no damages when the estate conceded liability.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
When reviewing a circuit court’s refusal to set aside a jury’s verdict for the defense on
damages, this Court views the evidence in the light most favorable to the defense as the
prevailing party below. See Gilliam v. Immel, 293 Va. 18, 20–21 (2017) (“Because [the
defendant] prevailed on the issue of damages, we review the evidence on that issue in the light
most favorable to him.”). So viewed, the evidence is as follows.
Debra Shumate filed suit seeking damages from an October 18, 2011 automobile
collision with a car driven by William Earl Thompson. She originally sued Thompson, but
amended the complaint to substitute his estate’s personal representative upon learning that he
had passed away from unrelated causes. The estate conceded liability, and the trial was limited
to the issue of damages. Prior to trial, Shumate filed a motion in limine to exclude testimony
regarding Thompson’s description of the collision to his two sons. Shumate argued that because
neither son witnessed the collision, his statements would be inadmissible hearsay not cured by
the Dead Man’s Statute. The circuit court overruled Shumate’s motion.
The evidence presented at trial established that Shumate was stopped at a traffic light
when she observed a sports car driven by Thompson moving toward the rear of her sedan. She
applied the brake in anticipation of the collision and put her arm in front of her son, Joey, who
was riding in the passenger seat. Joey described the impact as a “hard slam” and said he saw
Shumate go forward and hit her head. Shumate testified that the collision was so violent she was
afraid Joey would “go through the windshield” and that Thompson’s “little car had went [sic]
underneath” her sedan. Joey called 911. First responders arrived shortly thereafter and
transported Shumate to the emergency room.
Shumate provided varying estimates of Thompson’s speed. At the emergency room, she
reported that his car rear-ended her at approximately thirty-five miles per hour. She told a
physician she visited two days later that she was struck at forty miles per hour. At trial, she
testified that Thompson’s car was traveling at least twenty miles per hour.
Donald Bowman, who was riding with Thompson, described a milder collision:
Traffic stopped. We stopped. And the traffic started moving and
[Thompson] let the clutch out and I guess he pushed it back in and
he just run five or six miles an hour, and I looked over there and all
of a sudden hit a bump, hit the car. . . . [The impact] didn’t even
move me or hurt me or anything, didn’t jar me or nothing.
Thompson’s son, Billy, testified that his father described the collision as occurring in stop-and-
go traffic. According to Billy, as traffic began moving forward Thompson eased off the brake,
checking his mirrors, but Shumate’s sedan had stopped in front of him. Thompson’s car
“bumped” the sedan at “[f]ive to seven miles an hour.”
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Bowman stepped out of the sports car after the collision and viewed the scene. He
testified that he did not see a dent in the rear of Shumate’s sedan, but that some paint had been
transferred from the sports car’s nose to the sedan’s rear bumper. Billy, who had helped build
Thompson’s sports car, identified the only damage as a small dent in the thin aluminum trim and
some cracking in the car’s fiberglass nose.
Shumate has been injured in three automobile accidents prior to the collision at issue
here. In 1993, a vehicle struck her car at around fifty-five miles per hour, resulting in her losing
consciousness and suffering arm, leg, and lower back pain. She was rear-ended in 2001, causing
injuries to her neck, knee, and right ankle. And in 2007, she was a passenger in a vehicle that ran
off the road causing “immediate pain in [her] neck and back.”
In June 2011, four months before the collision, Shumate visited a pain management clinic
complaining of “intense, miserable, and needle[-]like” neck pain that affected her sleep. The
physician’s notes record that Shumate attributed the pain to the 2007 car accident and that she
previously underwent two surgical procedures to alleviate the pain. She visited the same clinic
in August 2011 complaining of the same neck pain symptoms, which she rated as “6 to 7 out of
10” in intensity. Medical records indicate that Shumate was “still tak[ing] morphine” for the
pain on September 27, 2011 and that she underwent a cervical facet nerve block procedure on
October 3, 2011—just five days prior to the collision—in an effort to limit her pain.
Nine days after the collision, on October 27, 2011, Shumate again presented at the pain
management clinic where she reported the nerve block procedure “did not provide her with any
substantial relief” from her pain, which she continued to rate at a “6 to 7 out of 10.” Notably, the
physician’s notes from the October 27 appointment contain no reference to the October 18, 2011
collision.
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Shumate underwent a third spine surgery in March 2012. The surgeon who performed
that procedure testified that Shumate reported the same pain level before and after the 2011
collision at issue in this case and that this pain was the reason for the surgery. The surgeon also
reported that Shumate had preexisting degenerative changes in her neck and spine not
attributable to the 2011 collision. She underwent a fourth spine surgery in March 2017 to revise
one of the pre-2011 surgeries. That surgeon attributed the need for this surgery to the 2011
collision based on Shumate’s report that her pain symptoms originated with it and that “[s]he
was doing very well prior to” it.
The estate called Dr. Sander Leivy, a neurosurgeon, as its medical expert. Leivy did not
personally examine Shumate. After reviewing all of her medical records, he testified that she
was not injured in the 2011 collision. He testified that her pain complaints resulted from
degenerative conditions in her spine predating the collision and that this degeneration, not the
collision, necessitated her subsequent surgeries. Leivy stated that he did not believe any of
Shumate’s medical expenses after the collision were attributable to it “except for going to the ER
the day of the accident to make sure something wasn’t injured” because “that makes sense.”
Shumate ultimately submitted an itemized listing of $197,157.50 in medical expenses in support
of her claim for $500,000 in damages.
At the conclusion of all evidence, the circuit court instructed the jury that because the
estate had conceded liability, “the only issue that you have to decide is the amount of damages, if
any, the plaintiff is entitled to recover. An admission of liability should not influence you in any
way in considering the issue of damages.” It further instructed: “The issue in this case is, if the
plaintiff is entitled to recover, what is the amount of her damages. On this issue the plaintiff has
the burden of proof.” Another instruction stated that “[i]f you find your verdict for the plaintiff,
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then in determining the damages to which she is entitled you shall consider the following which
you believe by the greater weight of the evidence was caused by the negligence of defendant.” It
then listed various factors.
The jury returned a unanimous verdict for the plaintiff and fixed her compensatory
damages “at zero dollars.” Shumate moved to set aside the verdict as contrary to the law and
evidence and received leave to brief the issue. She argued in her brief that uncontradicted
evidence, including Leivy’s testimony that the emergency room visit made sense, established
that a verdict of no damages was inappropriate. She further contended that Billy’s testimony
recounting Thompson’s out-of-court statements was inadmissible hearsay not cured by the Dead
Man’s Statute because that statute did not apply when a live witness—namely Bowman—was
available to testify as an eyewitness. The circuit court overruled Shumate’s motion to reconsider
and entered final judgment over her objection.
We granted Shumate’s appeal.
II. ANALYSIS
Shumate raises two assignments of error: the circuit court misapplied Virginia’s Dead
Man’s Statute and it erred in refusing to set aside the jury’s verdict of no damages.
A. The Dead Man’s Statute
Shumate first contends that the circuit court erred in admitting Billy’s testimony
recounting Thompson’s description of the collision because it constituted hearsay to which the
Dead Man’s Statute does not apply. She further argues that the statute’s language precludes its
application to nonliability issues. Finally, she contends that even if it did apply, Billy’s
testimony was not corroborated as required by a pretrial ruling. Although we review evidentiary
rulings for abuse of discretion, Commissioner of Highways v. Karverly, Inc., 295 Va. 380, 388
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n.7 (2018), this case involves review of the circuit court’s interpretation of the Dead Man’s
Statute. Thus its ruling is subject to de novo review. Lewis v. Commonwealth, 295 Va. 454, 460
(2018).
1. Development of Virginia’s Dead Man’s Statute
Virginia’s current Dead Man’s Statute provides, in pertinent part:
In an action by or against a person who, from any cause, is
incapable of testifying, or by or against the committee, trustee,
executor, administrator, heir, or other representative of the person
so incapable of testifying, no judgment or decree shall be rendered
in favor of an adverse or interested party founded on his
uncorroborated testimony. In any such action, whether such
adverse party testifies or not, all entries, memoranda, and
declarations by the party so incapable of testifying made while he
was capable, relevant to the matter in issue, may be received as
evidence in all proceedings including without limitation those to
which a person under a disability is a party.
Code § 8.01-397. It is also codified verbatim as Virginia Rule of Evidence 2:804(b)(5). It has
remained essentially the same since the General Assembly enacted its current form in 1919. An
overview of how the treatment of interested witnesses at common law evolved over time, leading
to the enactment and refinement of dead man’s statutes in many American jurisdictions, is
instructive to the Court’s resolution of this case.
Dead man’s statutes were enacted in response to the common-law rule disqualifying
every witness interested in a case. See Epes v. Hardaway, 135 Va. 80, 84 (1923); 1 McCormick
on Evidence § 65, at 432 (Kenneth S. Broun, ed., 7th ed. 2013). However, uniform
disqualification for interest was not necessarily an immutable common-law principle. The jury
trial began developing into a modern form recognizable to today’s lawyers during the mid-to-late
1400s when witnesses with knowledge of disputed facts began testifying to juries; prior to that
time, juries used their own knowledge and extrajudicial investigation in deciding causes. 2 John
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Henry Wigmore, Wigmore on Evidence § 575, at 800–01 (James H. Chadbourn, ed., rev. ed.
1979). No disqualification for interest existed during this period. Sir John Fortescue, Chief
Justice of the King’s Bench, noted no witness limitations in his influential treatise on English law
written circa 1470, observing that “each of the parties has a liberty to produce before the Court
all such witnesses as they please, or can get to appear on their behalf.” John Fortescue, De
Laudibus Legum Angliae 89 (A. Amos trans., 1775).
By the mid-1600s, disqualification of interested witnesses had become widespread. See
Wigmore, supra, § 575, at 804 & 808 n.38. Commentators offer various explanations for this
shift. The likeliest is that the disqualification of interested nonparties developed organically
from disqualification of the parties themselves, itself a vestige from a time when compurgation 1
and other older modes of trial were being displaced by what would become the modern jury trial.
Id. § 575, at 806–08. Because party oaths were associated with compurgation, parties were
thereby excluded from testifying in early jury trials. See King v. Hopkins, 57 N.H. 334, 367
(1876) (“I have already alluded to the fact in the history of the jury trial, that one great purpose
of its introduction was the exclusion of the parties as witnesses.”). Given this background, the
rule excluding interested nonparty witnesses did not develop out of sound policy concerns, but
rather doctrinal creep as “the rule for a party was extended by analogy to interested persons in
general.” Wigmore, supra, § 575, at 807.
To the extent any reasoning supported disqualifying interested witnesses, it can be stated
in syllogistic form:
1
Under this primitive form of trial also known as a wager of law, a party defending
against allegations could gain acquittal by swearing his innocence along with a certain number of
oath helpers. Compurgation was widely regarded as “easier and safer than the jury” because it
was the only form of trial in which a party could benefit from his own oath. James Bradley
Thayer, Preliminary Treatise on Evidence at the Common Law 24–27 (1898).
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Total exclusion from the stand is the proper safeguard against a
false decision, whenever the persons offered are of a class
specially likely to speak falsely; persons having a pecuniary
interest in the event of the cause are specially likely to speak
falsely; therefore such persons should be totally excluded.
Id. § 576, at 810. Both premises are suspect: pecuniary interest does not necessarily imply a
tendency toward dishonesty, and even assuming it did, barring interested testimony does not
preclude, and may actually lead to, false decisions. This indiscriminate rule and its shaky
foundations invited widespread criticism, leading England to abolish the common-law
prohibition of interested witnesses by statute in 1851. Supreme Court of Judicature Act, 1851,
14 & 15 Vict., ch. 99 (Eng.). A parallel movement, spearheaded by David Dudley Field’s
procedural reform efforts in New York, resulted in most American jurisdictions similarly
abolishing interest as a disqualification by the turn of the twentieth century. Wigmore, supra,
§ 576, at 817.
Whereas the English abolition was total, American reformers ultimately allowed the
disqualification rule to persist in cases where one party to a transaction had died but the other
survived. The argument was that an estate might be subjected to fabricated claims against which
it could not defend if surviving parties or similarly interested persons could testify about a
transaction with one whose lips had been sealed by death. Nearly every state legislature found
this position persuasive, codifying an exception for cases involving transactions with persons
since deceased in statutes that otherwise abolished the common-law rule disqualifying interested
witnesses. McCormick, supra, § 65, at 432. Thus did dead man’s statutes proliferate.
Virginia retained the common-law disqualification until the General Assembly abolished
it in 1866. See Epes, 135 Va. at 84. As amended during the next legislative session, that act
contained the earliest form of Virginia’s Dead Man’s Statute:
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[W]here one of the original parties to the contract or other
transaction which is the subject of the investigation, is dead, or
insane, or incompetent to testify by reason of infamy, or any other
legal cause, the other party shall not be admitted to testify in his
own favor, or in favor of any other party having an interest adverse
to that of the party so incapable of testifying, unless he shall be
first called to testify on behalf of such last mentioned party.
Id. at 84–85, n.† (quoting 1866–67 Acts, ch. 170). This early Dead Man’s Statute simply
excluded testimony from a survivor to a transaction with a decedent or otherwise incapacitated
person. Id. at 84. The statute proved to be “far from perfect” and required amendment “to meet
the hardships of different cases as developed by the decisions of this [C]ourt.” Id. at 85. One
case proved so inequitable that in 1904 the legislature grafted an additional exception onto the
statute, permitting the survivor to testify when “some person, having an interest in or under such
contract or transaction, derived from the party so incapable of testifying, has testified in behalf of
the latter or of himself, as to such contract or transaction.” Id. at 86 (quoting Code § 3346
(1904)).
Even with this exception, the strict prohibition of survivor testimony proved overbroad,
prompting the General Assembly to enact a new version of the Dead Man’s Statute when it
recodified Virginia’s statutory law in 1919:
In an action by or against a person who, from any cause, is
incapable of testifying, or by or against the committee, trustee,
executor, administrator, heir, or other representative of the person
so incapable of testifying, no judgment or decree shall be rendered
in favor of an adverse or interested party founded on his
uncorroborated testimony; and in any such action or suit, if such
adverse party testifies, all entries, memoranda, and declarations by
the party so incapable of testifying made while he was capable,
relevant to the matter in issue, may be received as evidence.
Code § 6209 (1919). As this Court observed shortly after the revisions, “[t]his section of the
Code is new and was intended to remove all disqualifications affecting the competency of
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witnesses in suits by or against the estates of persons laboring under disability or who are from
any cause incapable of testifying.” Arwood v. Hill, 135 Va. 235, 241 (1923). The revisors
believed that the new corroboration requirement, combined with the right of cross-examination,
would provide adequate protection for the incapacitated person or decedent’s estate. Id.; see also
Code § 6209 (1919) revisors’ note.
2. The Current Dead Man’s Statute
With minimal amendments, the 1919 statute remains in effect. The current statute’s first
sentence is identical to the independent clause before the semicolon in the 1919 statute,
preserving the corroboration requirement. 2 The current statute’s second sentence modifies the
latter part of the 1919 statute, changing the conditional phrase “if such adverse party testifies”
into a broad hearsay exception admitting all “entries, memoranda, and declarations” of a
decedent or incapacitated person regardless of whether the survivor testifies. Code § 8.01-397.
This provision, as Professor Sinclair observes, is a “sweeping abolition of hearsay principles” for
which neither the General Assembly nor this Court has ever offered an explanation. Kent
Sinclair, The Law of Evidence in Virginia § 10-7[f], at 605 (8th ed. 2018).
2
In 1923, this Court in Epes held that the corroboration exception enacted by the General
Assembly in 1904 remained in effect even though it did not appear in the text of the 1919
recodification. See Epes, 135 Va. at 87–91. Thus, survivor testimony was permitted when
another interested party—that is, someone with a “pecuniary interest in the outcome of the
litigation” whose interest derives from the decedent or incapacitated person—testified on behalf
of the incapacitated party. See Johnson v. Raviotta, 264 Va. 27, 34 (2002). In Johnson, we cited
the holding in Epes to hold that the 1904 statutory exception continues to operate as an exception
to the corroboration requirement under the current Dead Man’s Statute because that requirement
“applied ‘only to that class of witnesses who were made competent for the first time by the Code
of 1919, and that, no corroboration is required of those witnesses who were competent before the
Code of 1919 became operative, and who did not then require corroboration.’” Id. at 34 (quoting
Epes, 135 Va. at 92–93).
10
In the decades following enactment of dead man’s statutes, courts and commentators
alike debated the effectiveness of dead man’s statutes generally and questioned whether such
legislation was actually an improvement on the common-law prohibition against interested
witnesses. See, e.g., Cockley Milling Co. v. Bunn, 79 N.E. 478, 479 (Ohio 1906) (noting that
“the exceptions are equally indefensible with the original rule” barring interested witness
testimony); St. John v. Lofland, 64 N.W. 930, 931 (N.D. 1895) (“Statutes which exclude
testimony on this ground are of doubtful expediency. There are more honest claims defeated by
them by destroying the evidence to prove such claim than there would be fictitious claims
established if all such enactments were swept away, and all persons rendered competent
witnesses.”); Dwight G. McCarty, Psychology for the Lawyer 300 (1929) (“It is quite generally
recognized that the statute is very conducive to perjury and fraudulent collusion. People resent
being prevented from proving the facts by such an artificial device, and feel justified in getting
around it if they can.”); Wigmore, supra, § 578, at 822–23 (“As a matter of policy, this survival
of a part of the now discarded interest qualification is deplorable in every respect; for it is based
on a fallacious and exploded principle, it leads to as much or more false decision than it prevents,
and it encumbers the profession with a profuse mass of barren quibbles over the interpretation of
mere words.”). Virginia’s statutory revisors were aware of the general disapproval of dead
man’s statutes when they drafted the 1919 statute, as indicated by the revisors’ note’s citation to
Wigmore’s treatise at § 578. Code § 6209 (1919) revisors’ note.
These critiques led many influential organizations, including the American Law Institute
and the American Bar Association, to recommend abolishing dead man’s statutes or enacting
revisions making the rule fairer. See Edmund M. Morgan, Basic Problems of Evidence 85
(1954). The ABA proposed a new statutory scheme under which if a survivor chose to testify,
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his or her testimony would be counterbalanced by admission of the decedent’s or incapacitated
person’s hearsay declarations, provided that those declarations were honest reflections of that
person’s own knowledge. See McCormick, supra, § 65, at 436 n.15. The ABA intended this
rule to replace those, such as the one in Virginia’s first sentence, requiring corroboration and
rendering a survivor’s bare testimony legally insufficient to support a judgment. Id.
Rather than adopting any one proposal entirely, the General Assembly in 1919 and
through subsequent amendments fashioned a statute combining the incremental improvements
made prior to 1919 in Virginia with other suggestions borrowed from the various proposals,
including the hearsay exception. The resulting statute, as Professor Sinclair observes,
is much less balanced than the ABA proposal of 1938: it allows
use of any and all hearsay, regardless of circumstances or whether
the declarant had personal knowledge of the topics opined upon,
and it applies whether or not the survivor offers live testimony
about the disputed events or transactions. . . . [T]he hearsay
exemption is available to the decedent/disabled person’s side,
whether or not the surviving witness testifies. No other state in the
United States permits the unrestricted freedom [to] offer hearsay
currently found in the Virginia deadman’s statute.
Sinclair, supra, § 10-7[d], at 605.
In sum, Virginia’s Dead Man’s Statute contains two distinct, but related, evidentiary rules
applicable in actions by or against persons incapable of testifying or their representatives. First,
no judgment may be rendered for a testifying survivor unless his or her testimony is
corroborated. This corroboration requirement is inapplicable when another interested party
whose interest derives from the decedent or incapacitated person testifies on that person’s behalf.
And second, any relevant hearsay declaration of the decedent or incapacitated person is
admissible even if the survivor does not testify. With these principles in mind, we now turn to
Shumate’s arguments.
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3. Applicability of Statute and Admissibility of Thompson’s Statements
Shumate’s first argument regarding admission of Thompson’s hearsay statements is that
the Dead Man’s Statute does not apply because Bowman testified as an interested eyewitness to
the accident on behalf of the estate. She relies on Paul v. Gomez, 118 F. Supp. 2d 694 (W.D. Va.
2000), for the proposition that the Dead Man’s Statute is inapplicable when a live eyewitness
testifies for the decedent or incapacitated person.
Paul was a medical malpractice case in which the plaintiff estate sought to exclude the
defendant doctor’s testimony related to his conversations with the decedent and the decedent’s
wife. Id. at 695. The estate argued that the statute barred the doctor’s uncorroborated testimony
because it concerned a transaction with a deceased individual, notwithstanding that the
decedent’s wife was a live, interested witness who intended to testify for the plaintiff. Id. After
reviewing the historical development of Virginia’s statute, the district court relied upon Epes to
hold that the 1904 statutory exception permitting uncorroborated survivor testimony in cases
where an interested party whose interest derives from the decedent testifies was still in effect and
controlled the case. Id. at 696 (citing Epes, 135 Va. at 87–89). It therefore ruled that the
corroboration requirement in the statute’s first sentence could not exclude the defendant doctor’s
testimony, which was competent to counter the decedent’s wife’s testimony because she was an
interested witness present for the conversations. Id. In Johnson, this Court approved the district
court’s analysis. 264 Va. at 34–39 (holding that Paul “accurately states Virginia law”).
Although Paul properly applies the exception to the corroboration requirement, that
exception is inapplicable to the case at bar. As an initial matter, Bowman is not an interested
party. He lacks a pecuniary interest in the outcome of the litigation because he does not
represent or otherwise have a stake in the estate—regardless of the result, Bowman will remain
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financially indifferent. Despite Shumate’s protestations on brief that “[w]hether the decedent’s
live eye witness has a ‘pecuniary interest’ in the case is not relevant to whether the Rule applies
or to the purpose of the Dead Man’s Rule,” every case interpreting the exception has relied on
the interested-noninterested distinction. See, e.g., Johnson, 264 Va. at 35 (holding corroboration
requirement applicable to certain testimony but inapplicable to other testimony based on whether
the witness was interested). Even if Bowman were somehow deemed to be “interested” for these
purposes, application of the rule to this case would mean only that Shumate’s testimony would
not need corroboration—it has no bearing on the admissibility of Thompson’s hearsay
statements.
More broadly, Shumate’s position misunderstands the statute’s purpose, which is “to
prevent a litigant from having the benefit of his own testimony when, because of death or
incapacity, the personal representative of another litigant has been deprived of the testimony of
the decedent or incapacitated person.” Diehl v. Butts, 255 Va. 482, 488 (1998). The statute’s
first sentence precludes entry of judgment “in favor of an adverse or interested party founded on
his uncorroborated testimony” in cases “against the . . . representative of the person” incapable of
testifying. Code § 8.01-397. The first sentence’s concern with corroboration is irrelevant to
whether the decedent’s hearsay statements are admissible, which is addressed in the statute’s
second sentence.
As the second sentence makes apparent, regardless of whether the survivor testifies, any
and all relevant “entries, memoranda, and declarations” made by the decedent or incapacitated
person while he or she was capable of testifying are admissible. As such, Shumate’s collection
of misgivings on brief—that unless we adopt her interpretation of the statute, “the party asserting
the Dead Man’s Rule could bring in a plethora of out of court, unreliable hearsay of what the
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decedent said to others to bolster unfairly the decedent’s case”—is actually an accurate statement
of the statute.
We recently considered the statute’s second sentence in Gelber v. Glock, 293 Va. 497,
509–12 (2017), where we held that the circuit court erred in excluding hearsay statements made
by a decedent because they were not contemporaneous with the disputed transaction. We noted
that since the 1919 version of the statute created the general hearsay exception, relevance is the
only statutory limit on what declarations are admissible. Id. Regardless whether the rule is just
or even justified, “we have long concluded that it is the role of the General Assembly, not the
courts, to change a rule of law that has been relied upon by the bench and bar for many years.”
Van Dam v. Gay, 280 Va. 457, 463 (2010). In this case, “many years” is a century.
Shumate alternatively argues that the Dead Man’s Statute is inapplicable to cases in
which liability is not at issue because it only applies to “proof of elements of ‘any cause.’” She
relies on the phrase “from any cause” in the statute’s first sentence and Armada, Inc. v. Lucas, 2
Va. App. 414 (1986), in which the Court of Appeals held the statute inapplicable to workers’
compensation cases. This argument also fails because it relies on an unsupportable reading of
the statute.
The phrase “from any cause” does not refer to the scope of issues before the tribunal, but
rather to the cause of a party’s incapacity to testify. The third sentence of the statute eliminates
any confusion on this point: “The phrase ‘from any cause’ as used in this section shall not
include situations in which the party who is incapable of testifying has rendered himself unable
to testify by an intentional self-inflicted injury.” Code § 8.01-397. Similarly, Armada’s ruling
relies on the Workers’ Compensation Commission’s exemption from statutory or common-law
15
rules of evidence, not the fact that workers’ compensation benefits are awarded on a no-fault
basis. Id. at 417.
Shumate’s final evidentiary argument is that even if the Dead Man’s Statute applies,
Billy’s testimony was not corroborated by testimony from Thompson’s other son as required by
a pretrial ruling. This argument is likewise unpersuasive because the circuit court’s denial of her
motion in limine imposed no such requirement. It simply stated: “The plaintiff’s motion under
the Dead Man’s Act to exclude from evidence any relevant testimony of statements made by the
decedent William Earl Thompson is overruled, over plaintiff’s objections.” For the reasons
discussed above, the statute did not require corroboration of Billy’s testimony recounting
Thompson’s hearsay statements, which were expressly admissible under the statute’s second
sentence.
Accordingly, the Dead Man’s Statute applies and Thompson’s hearsay statements were
admissible. The circuit court did not err in admitting the hearsay testimony.
B. Damages Verdict
In her second assignment of error, Shumate contends that the circuit court erred in
refusing to set aside the jury’s verdict of no damages as contrary to the law and evidence
presented. “When a jury has returned a zero[-]dollar verdict, the issue is whether plaintiff
‘produced sufficient evidence to require the jury to award her damages.’” Gilliam, 293 Va. at 24
(2017) (quoting Mastin v. Theirjung, 238 Va. 434, 437 (1989)). “We will not set aside a trial
court’s judgment sustaining a jury verdict unless it is ‘plainly wrong or without evidence to
support it.’” Fruiterman v. Granata, 276 Va. 629, 637 (2008) (quoting Code § 8.01-680).
If there is conflict of testimony on a material point, or if reasonably
fairminded men may differ as to the conclusions of fact to be
drawn from the evidence, or if the conclusion is dependent upon
the weight to be given the testimony, in all such cases the verdict
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of the jury is final and conclusive and cannot be disturbed either by
the trial court or by this [C]ourt.
Gilliam, 293 Va. at 24 (quoting Hall v. Hall, 240 Va. 360, 363 (1990)). As in Gilliam, the
evidence regarding the nature and extent of Shumate’s injuries, and their connection to the
collision, was both conflicting and highly dependent on the credibility and weight accorded by
the jury to witness testimony. Id.
Shumate had the burden of proving her damages by a preponderance of the evidence. Id.
at 26. The estate’s admission of liability did nothing to relieve her of that burden because
damages are not presumed in a negligence action. Id. at 26 n.7 (“An admission of liability is
only an admission of negligence and causation. Therefore, in the context of an automobile
accident case, an admission of liability relieves the plaintiff of the burden of proving that the
defendant was negligent and that defendant’s negligence was a proximate cause of the accident.
An admission of liability, however, does not admit compensable damage. Even a finding of
liability does not require a finding of some compensable damage.”).
The jury had before it evidence demonstrating that, contrary to Shumate’s account and
her report to her physicians, the collision at issue was minor. Multiple witnesses testified that it
occurred as the vehicles edged forward at a stoplight. Photographs from the scene and witness
testimony established that both vehicles had minimal damage. Bowman testified that he did not
see a dent on the rear of Shumate’s car. The record is devoid of evidence regarding repair
expenses.
The medical evidence showed that Shumate had a lengthy history of back and neck pain
resulting from prior automobile accidents and degenerative changes to her spine, the symptoms
of which were unchanged after the 2011 collision. At a pain clinic appointment just nine days
after the collision, Shumate apparently did not even mention it. Although one surgeon testified
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that Shumate’s March 2017 surgery was attributable to the 2011 collision, he based that
conclusion solely on Shumate’s self-report that the 2011 collision caused her pain symptoms and
that “[s]he was doing very well prior to” it. Moreover, Leivy affirmatively testified that Shumate
suffered no injury in the accident. “The jury, as the sole judge of [Shumate’s] credibility, was
entitled to reject her testimony and conclude that she was feigning or exaggerating her injuries.”
Gilliam, 293 Va. at 25. The jury was similarly the sole judge of the weight to be given to the
medical evidence and physician reports. Id.
Shumate argues that regardless of how the jury interpreted the evidence, the estate
conceded at least some damages through Leivy’s acknowledgement that it made sense for
Shumate to go to the emergency room. This contention misconstrues Leivy’s testimony. This
statement did not contradict Leivy’s opinion that Shumate suffered no injury from the collision;
instead, it simply acknowledged that it was not irrational for someone with Shumate’s medical
history to visit the emergency room after any automobile accident to make sure she was not
injured.
Shumate also argues that the jury instruction enumerating factors the jury “shall
consider” in determining damages if it entered a verdict for the plaintiff required the jury to
conclude that she suffered some damages because several of the listed conditions occurred in this
case. This contention is also unpersuasive. Nothing in the instruction required the jury to find
that Shumate suffered damages. As the other instructions given make apparent, the only issue in
the case was “the amount of damages, if any, the plaintiff is entitled to recover.” (Emphasis
added.) Adopting Shumate’s reading of the instruction—which was Civil Model Jury Instruction
9.000, “General Personal Injury and Property Damage,” lightly edited to fit the specific facts of
this case—as mandating that the jury find at least some damages would put it in conflict with this
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Court’s precedent approving plaintiff liability verdicts with zero damages. See, e.g., Gilliam,
293 Va. at 27; Vilseck v. Campbell, 242 Va. 10, 15 (1991); Mastin, 238 Va. at 438–39.
Based on the evidence before it, the jury was entitled to find that Shumate failed to prove
by a preponderance of the evidence that she suffered any damages from the collision.
Accordingly, because the circuit court’s ruling sustaining the jury’s verdict was not plainly
wrong and was supported by the evidence, we affirm.
III. CONCLUSION
Virginia’s Dead Man’s Statute applies to this case, and under its broad suspension of
ordinary hearsay principles, the circuit court did not err in admitting Billy’s testimony recounting
Thompson’s description of the collision. The jury appropriately exercised its fact-finding
function by weighing the evidence and credibility of the witnesses to conclude that although
Thompson was liable, Shumate suffered no compensable damages. Accordingly, we will affirm
the judgment of the circuit court.
Affirmed.
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