The Virginia Supreme of Virginia decided companion cases of defamation and malicious prosecution on June 4, 2015, in Egan v. Butler, No. 141365, and Abilene Motor Express Co. v. Butler, No. 141372. Id. at 1. A jury awarded plaintiff $50,000.00 compensatory damages against both Defendants, $50,000.00 punitive damages against Egan, and $200,000.00 punitive damages against Abilene for malicious prosecution; and $200,000.00 compensatory damages, $50,000.00 punitive damages against Egan, and $150,000.00 punitive damages against Abilene for defamation. Id. at 2.
Egan/Abilene found Richmond Circuit Court “erred in excluding evidence probative of Butler’s future lost income,” i.e., his past employment history and the quality of his job performance; and “erred in denying Abilene’s motion to strike Butler’s punitive damages claim”. Id. at 25. Therefore, Egan/Abilene affirmed the jury finding liability against defendants and punitive damages against Egan; reversed and entered final judgment on punitive damages against Abilene; and reversed and remanded for retrial on compensatory damages against both Defendants. Id. at 25.
Egan/Abilene held “a plaintiff’s work history and quality of past performance is admissible evidence probative of the plaintiff’s claimed damages in form of future loss income or future lost earning capacity.” Id. at 4-5. Its exclusion was an abuse of discretion and not harmless error, i.e., “could have affected the verdict”. Id. at 5-6.
Egan/Abilene elaborates that “a jury award for future lost income damages must be predicated upon evidence sufficiently establishing the plaintiff’s work history and continuing ability to work absent the wrongful actions of the defendant”. Egin/Abilene continues, “the degree of evidence required to remove the award from the realm of impermissible speculating corresponds to the amount of the time the future lost income damages cover,” i.e., “the longer the timeframe of future lost income claimed, the more significant the evidentiary basis required to support such an award”. Id. at 7
“Virginia Rule of Evidence 2:403(a) only authorizes the trial court to exclude relevant evidence when the probative value is substantially outweighed by the danger of unfair prejudice.” Id. at 9 (emphasis in original). Also, Virginia Rule of Evidence 2:403(b) only bars evidence that is “needlessly cumulative,” not evidence that is “sufficiently different in kind and degree with such admitted evidence”. Id. (emphasis in original).
Egan/Abilene reaffirms “punitive damages may be awarded against a corporate employer only if either (1) that employer participated in the wrongful acts giving rise to the punitive damages, or (2) that employer authorized or ratified the wrongful acts giving rise to the punitive damages.” Id. at 12. Proof of any employee acting within the scope of employment establishes employer various liability for compensatory damages, but not punitive damages. Id. at 12
n.2.
Egin/Abilene delineates that “to subject a corporate employer to punitive damages liability on the basis that the corporate employer itself committed the wrongful acts, the employee who committed the wrongful acts must be in a sufficiently high position in the employer’s structure.” Declining to create a “bright-line rule,” Egan/Abilene embraces a case-by-case analysis of this “fact-sensitive question, dependent upon power, role, and independence of the employee relative to the nature and structure of the corporate employer.” Id. at 13-15 (weighing “authority,” “discretion,” and independent “managerial capacity”).
Lastly, Egan/Abilene rejects that exclusion of future income loss evidence required reversal and remand on the core issue of liability. Although Defendants argued on appeal that such evidence related to plaintiff’s core credibility, it “was never argued before the circuit court as a basis to allow admissibility of the evidence”; so was waived. Id. at 22-24.
