Virginia: Special Cases – a Lawyer’s CO

Virginia: Special Cases – a Lawyer’s CO

On June 16, 2016, the Virginia Supreme Court issued Dorman v. State Indus., Inc., No. 151088, a special case of product liability for personal injuries.  Defendant manufacturer’s atmospheric heater emitted carbon monoxide (“CO”) that rendered plaintiff apartment dwellers unconscious.

First, Dorman held that “absence of other injuries evidence” actually was not offered at trial; and that testimony about the number of atmospheric heaters in use nationwide related to breach of implied warranty of merchantability and unreasonable danger to normal use, was not objected by plaintiff, and was not an abuse of discretion to admit.  Id. at 8-9.  Second, Dorman held that admission at trial of “superseding cause evidence” likewise was not an abuse of discretion because there was sufficient evidence for a jury to find superseding causation if it found negligence.  Id. at 13.

Third, Dorman held that the superseding cause instruction given was a correct statement of the law, consistent with Williams v. Cong Le, 276 Va. 161, 166-67 (2008) and Virginia Model Jury Instructions – Civil, No. 5010 (2014); and that plaintiffs failed to raise at trial what else the instruction should have contained, plus did not qualify for the “ends of justice exception” on appeal.  Dorman held further that plaintiffs were barred on appeal from arguing the court failed to instruct that defendant bore the burden of proving superseding cause, because plaintiffs failed to proffer such an instruction at trial.  Id. at 13-14.

Chief Justice Lemons and Senior Justice Millette dissented to the superseding cause instruction being given in Dorman, and supported reversal and remand.  Id. at 15-21.  Notably, also on June 16, 2016, plaintiffs filed with the Virginia Supreme Court a Notice of Intent to seek rehearing.