Virginia: Wrongful Death – a Lawyer’s Error

Virginia: Wrongful Death – a Lawyer’s Error

In Harman v. Honeywell Int’l, Inc., No. 130627 in the Virginia Supreme Court, writ of certiorari was granted inter alai on two assignments of error re defendant introducing opinion testifying of two lay witnesses. Mr. Waterman addressed those issues for plaintiffs in Reply Brief Amicus Curiae of Virginia Trial Lawyers Association in Support of Appellants.

Evidentiary error is “presumed prejudicial unless the record clearly shows that the error could not have affected the result,” Dandridge v. Marshall, 267 Va. 591, 597 (2004); and “erroneous admission of evidence, which may have ‘tipped the scales’,” is not harmless. Hale v. Maersk Line, Ltd., 284 Va. 358, 377 (2012). The Virginia Supreme Court reverses and remands for material evidentiary error. E.g., Lawrence, supra, 279 Va. at 499 (“speculative and unreliable” opinions inadmissible); Hinkley v. Koehler, 269 Va. 82, 91-92 (2005)(“does not plainly appear from the record [erroneous expert evidence] could not have affected the jury’s verdict [‘despite’] that defendants had another expert witness”); Dandridge, supra, 267 Va. at 597 (“nothing in the record…clearly shows [evidentiary] errors…did not affect”); Blue Stone Land Co. v. Neff,, 259 Va. 273, 280 (2000)(different “evidence…might have produced a different result”); Tittsworth v. Robinson, 252 Va. 151, 155 (1996)(no harmless error because “no way of determining what evidence may have influenced the jury”); Norfolk & Western Ry. Co. v. Puryear, 250 Va. 559, 563 (1995) (“[erroneously admitted exhibit] could have been reviewed during the jury deliberations and this would have impermissibly emphasized Puryear’s version of the facts to the prejudice of N&W”); CSX Transp. v. Casale, 247 Va. 180, 183 (1994)(erroneously admitted expert testimony not harmless despite other expert testimony); Ring v. Poelman, 240 Va. 323, 328 (1990)(“cannot determine from the record [on what] the jury based its verdict [so] we cannot say that the error was harmless”); Agelasto v. Frank Atkinson Real Estate, 229 Va. 59, 65 (1985)(“improper evidence may have tipped the scales [so] we cannot say…error was harmless”); Doe v. Thomas, 227 Va. 466, 473 (1984)(“cannot say as a matter of law that the inadmissible evidence did not affect the jury”); Rhoades v. Painter, 234 Va. 20, 24 (1979)(“cannot say as a matter of law the erroneous instruction could not have affected the result”); Venable v. Stockner, 200 Va. 900, 905 (1959)(“does not necessarily show that the admission of this evidence was harmless”).

“Opinion testimony by a lay witness is admissible if it is reasonably based upon the personal experience or observations of the witness and will aid the trier of fact in understanding the witness’ perceptions.” Virginia Rule of Evidence 2:701 (emphasis added). “In order to be competent to testify on the subject the witness must have had a reasonable opportunity to judge,” and even “momentary observations” at impact and “later glimpse” post-impact “did not demonstrate that he had a reasonable opportunity to form an opinion”. Doe v. Dewhirst, 240 Va. 266, 270 (1990).

Moreover, even if a layman arguably could be qualified as an expert on a matter, the area of expertise would limit the nature, topic and scope of his opinions. Combs v. Norfolk and Western Ry. Co., 256 Va. 490, 496 (1998). Also, even an expert must consider all of the “variables” as foundation for his opinions. Cf., Keesee v. Donigan, 259 Va. 157, 161-162 (2000)(“requirement that the evidence be based on an adequate foundation”). Additionally, even an expert attesting hearsay facts on direct examination is inadmissible and reversible error, Commonwealth v. Wynn, 277 Va. 92, 100 (2009). Further, “state of mind” statements are inadmissible hearsay even for an expert. E.g., Wright v. Kaye, 267 Va. 510, 530 (2004). Finally, even an expert cannot opine gratuitously if re causation generally if he has “no” predicate opinion re cause. E.g., Pettus v. Gottfried, 269 Va. 69, 73 (2005).