09 Feb Virginia: Wrongful Death – a Lawyer’s Mortality
Plaintiff is not required to introduce a mortality table to prove life expectancy in support of general damages for wrongful death. Eisenhower v. Jeter, 205 Va. 159, 164 (1964). By statute and jurisprudence, however, Plaintiff clearly is entitled to do so.
Per Va. Code §8.01-419, Virginia’s Table of Life Expectancy “shall be received [‘as evidence’] in all courts,” whether Plaintiff “be living at the time or not”. §8.01-419 (emphasis added). Construing the plain language of §8.01-419, the Virginia Supreme Court repeatedly has declared that it is this Court’s “duty” to introduce and instruct on Virginia’s Life Expectancy Table when requested in a wrongful death action: “it is the duty of the court, when so requested in an action for wrongful death, to tell the jury that a mortality table introduced into evidence is to be considered”. Poliquin v. Daniels, 254 Va. 51, 58-59 (1997)(plaintiff’s life expectancy table instruction upheld)(emphasis added); Edwards v. Syrkes, 211 Va. 600, 602 (1971)(predecessor statute Va. Code §8-263.1).
“Under the language of the statute the [life expectancy] table is to be considered ‘as evidence’,” and “the duty of the court” to instruct the jury “has been universally recognized”. Id. at 602 (single-quotation marks original)(underlining added). Hence the “table of life expectancy was introduced into evidence” in Edwards, though the misleading jury instruction offered by that plaintiff was properly refused. Id.
In 1987, the Virginia Supreme Court delineated that the 1974 amendment to Va. Code §8.01-52’s predecessor legislatively overruled Budziniski v. Harris, 213 Va. 107, 112 (1972), and rendered Virginia’s Life Expectancy Table admissible “as evidence” in wrongful death actions for various general damages:
“Following apparently conflicting decisions of this Court on the question whether the life expectancy table properly may be admitted in evidence in a wrongful death action where a minor has been killed, compare Edwards v. Syrkes, 211 Va. 600, 602, 179 S.E.2d 902, 903 (1971), with Budzinski v. Harris, 213 Va. 107, 112, 189 S.E.2d 372, 376-77 (1972), the General Assembly enacted in 1974 the predecessor to § 8.01-52. Acts 1974, ch. 444. As we already have noted, the statute now permits recovery for the beneficiaries’ loss of society, companionship, comfort, guidance, advice, services, protection, care, and assistance provided by the decedent. These statutory elements contemplate assignment of a dollar value to these losses and recovery therefor whether or not the beneficiaries can establish their dependency on the decedent. Accordingly, the expectancy of continued life of the decedent is relevant and necessary to establish the extent of loss for those items. The expectancy table, therefore, is admissible if such items of loss are supported by the evidence.”
Graddy v. Hatchett, 233 Va. 65, 71 (1987)(emphasis added). Hence “we hold that the trial court did not err in permitting the jury to consider the life expectancy table.” Id. (emphasis added). Cf., Owens-Corning Fiberglas Corp v. Watson, 243 Va. 128, 139 (1982)(“administratrix introduced in evidence the table of life expectancy contained in Code §8.01-419”).
No expert is required to introduce Virginia’s Table of Life Expectancy: it suffices that “evidence in this case supports recovery for [§8.01-52] items”. Graddy, 233 Va. at 71. Indeed, even Plaintiff counsel reading the life expectancy table in evidence, an “unusual and not an approved procedure,” is not reversible error. State Farm Mut. Auto. Ins. Co. v. Futrell, 209 Va. 266, 272 (1968).
Therefore, once a Statutory Beneficiary attests the Deceased’s dates of birth and death, his or her date of birth, and his or her wrongful death general damages, Virginia’s Life Expectancy Table can be admitted as a Plaintiff Exhibit. Further, under Wakole v. Barber, 283 Va. 488 (2012), Plaintiff can use “Wakole boards” referring to §8.01-419 life expectancy in opening statement and closing argument.
Likewise, §8.01-419 life expectancy table evidence properly is introduced in personal injury cases. “There being evidence that the injury [was] permanent in nature . . . it was proper for the court to have permitted evidence of plaintiff’s life expectancy. Code §8.01-419.” Exxon Corp. v. Fulgham, 224 Va. 235, 243 (1982)(emphasis added). See, In re FELA Asbestos Litigation [Wingo v. Norfolk & W. Ry. Co.], 638 F.Supp. 107, 115 (W.D.Va. 1986)(Virginia law)(Plaintiff had “sixteen-year life expectancy at the time of trial, Va. Code §8.01-419”) (emphasis added).