28 Jan Virginia: Wrongful Death – a Lawyer’s Deadman
Wrongful death cases potentially present a unique evidentiary exclusion issue at trial. Uncorroborated evidence basically is inadmissible against the deceased or his representative.
Virginia’s Deadman’s Statute, Va. Code §8.01-397, is entitled: “Corroboration required and evidence receivable when one party incapable of testifying” (emphasis original). §8.01-397 mandates: “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.” (emphasis added)
The deadman’s “statute was designed to prevent . . . an opportunity for the survivor to prevail by relying on his own unsupported credibility, while his opponent, who alone might have contradicted him, is silenced by death.” Hereford v. Pates, 226 Va. 605, 610 (1984)(ambivalent circumstantial evidence is insufficient corroboration). “[O]ne essential requirement is implicit in all our cases: evidence, to be corroborative, must be independent of the surviving witness. It must not depend on his credibility or circumstances under his control.” Va. Home for Boys & Girls v. Phillips, 279 Va. 279, 286 (2010)(insufficient corroboration).
Significantly, claimed “habit” or “routine” is not corroboration: “Dr. Raviotta asserts that when the corroborating evidence is evidence of a habit or routine practice, Code §8.01-397.1 eliminates the corroboration requirement of the dead man’s statute. We disagree.” Johnson v. Raviotta, 264 Va. 27, 36, 37-39 (2002)(emphasis added)(doctor’s uncharted uncorroborated claim of taking blood pressure is inadmissible and nurse’s non-specific chart entries about care is insufficient corroboration of specific testimony at issue).
Indeed, physicians must prove a “higher degree of corroboration”: “Without question, the patient and physician relationship that existed between [plaintiff] and [defendant] was a confidential relationship. Thus, when, as here, a confidential relationship existed between the parties at the time of the transaction which gave rise to the cause of action, a higher degree of corroboration is necessary to satisfy the requirements of Code §8.01-397.” Diehl v. Butts, 255 Va. 482, 489 (1998)(emphasis added)(testimony by deceased patient’s brother and by his neighbor “is simply not sufficient to provide the higher degree of corroboration required by Code §8.01-397 and our precedent” for doctor’s uncharted claimed statements to patient).
As evidentiary gatekeeper, the Court must not admit any uncharted claims of physicians that are not corroborated “to the higher degree required”; such physician’s testimony is not to be considered by the jury at all. “Accordingly, because Dr. Raviotta’s testimony was not corroborated, we conclude that the trial court erred in allowing the jury to consider this evidence.” Johnson, 264 Va. at 37 (emphasis added)(uncharted claims of patient care insufficient). “Upon remand, the trial court shall not admit any testimony of Dr. Butts concerning conversations he had with Mr. Dunlap unless Dr. Butts corroborates the conversations to the higher degree required by their confidential relationship.” Diehl, 255 Va. at 491 (emphasis added)(testimony by deceased patient’s brother and by his neighbor “is simply not sufficient to provide the higher degree of corroboration required by Code §8.01-397 and our precedent” for doctor’s uncharted claimed statements to patient).
Importantly, insufficient corroboration of physician’s claims “to the higher degree specified” also excludes all expert testimony and other evidence about the same: “Nor shall the trial court admit any opinion testimony of Dr. Butts’ expert witnesses that rely on conversations that Dr. Butts had with Mr. Dunlap unless the conversations have been corroborated to the higher degree specified above.” Id.