07 Jun Virginia: Car Accident – A Lawyer’s Punitives
In Cain v. Lee, No. 141105, on June 4, 2015, the Virginia Supreme Court reversed and remanded for retrial three personal injury lawsuits arising out of the same two-car collision in Stafford County, which had been consolidated for jury trial. Id. at 1-2, 11. Each victorious plaintiff appealed the same evidentiary exclusion and damages instruction. Id. at 3-4.
The punitive damages instruction in Cain engrafted the following onto the statutory elements under Va. Code § 8.01-44.5: “Punitive damages are generally not favored and should be awarded only in cases involving egregious conduct.” Id. at 4. The Virginia Supreme Court agreed that the jury instruction as modified “does not properly state the law, improperly incorporates appellate standard of review, and is prejudicial,” Id. at 5; and cannot be said to be harmless. Id. at 8.
Cain explained that the modified instruction erroneously required proof of “an additional element not included in the statute”. Id. at 6. It also indiscriminately contained “argumentation language” from prior Court opinion about punitive damages being disfavored, which served “only to confuse or mislead the jury.” Id. at 6-7.
Additionally, Cain noted that it involved statutory punitive damages, not common law ones like prior opinion relied upon by the defense. “Unlike common law punitive damages, statutory punitive damages have been explicitly approved by the General Assembly,” and as such are favored. Id. at 7.
Re excluding highly-prejudicial non-probative evidence of post-accident misconduct i.e., subsequent DUI conviction and VASAP dismissal for continued intoxication, however, Cain found no abuse of the trial judge’s discretion “in an action under Code § 8.01-44.5”. Id. at 8-9, 10-11. “Thus, for the purpose of determining whether to award punitive damages, Code § 8.01-44.5 limits a finder of fact to considering evidence of the defendant’s knowledge and physical condition leading up to and directly related to the defendant’s act,” not “post-accident evidence that is not directly related to the act in question”. Id. at 10.
But Cain did not reach the trial court’s exclusion of “impeachment evidence”. The Virginia Supreme Court could not say it was likely that Defendant’s “peculiar” and “idiosyncratic” testimony about him (not) being “drunk at the time of the collision” would arise again on remand. Id. at 8 n.l.