Virginia: Wrongful Death – a Lawyer’s Reversal

Virginia: Wrongful Death – a Lawyer’s Reversal

On June 5, 2014, the Virginia Supreme Court issued its opinion in the wrongful death appeal of Harman v. Honeywell Int’l, Inc., No. 130627. It reversed and remanded in favor of Plaintiffs/Appellants, in whose support Mr. Waterman had authored Brief and Reply Brief Amicus Curiae on behalf of Virginia Trial Lawyers Association (“VTLA”). Id. at 12, 26.

Harman held that the defense’s Mooney Report, an accident investigation report by the plane manufacturer (when it still was a Defendant), “simply is not the type of authoritative literature contemplated by Code §8.01-401.1,” id. at 8-9; and, moreover, was not and could not be established as a “reliable source though [expert] testimony…as required under Code §8.01-401.1”. Id. at 9-10.

Harman rejected that admission of the Mooney Report was “harmless error”. Id. at 12. The hearsay Mooney Report was “presumed to be prejudicial,” plus contained “conclusions that go to the very heart of the case,” “repeatedly was brought to the Jury’s attention” and, contrary to statute, was “admitted into evidence as an exhibit and taken into the jury room during deliberations;” hence, it did not “plainly appear from the record that the erroneous admission of the hearsay statements could not have affected the jury’s verdict”. Id. at 10-12.

Harman also reviewed the admissibility of lay witness opinion testimony under Va. Sup. Ct. Rule 2:701, particularly the second prong requirement that it “aid the trier of the fact in understanding the witness perceptions”. Id. at 15-17. The Court found Abel’s conclusory opinions about the deceased pilot exercising bad judgment were inadmissible for being “unnecessary” and “impermissible assessment [of] capability or blameworthiness”. Id. at 17-18. But the Court found Norman’s testimony about his own experiences flying the planes at issue was not unnecessary, was relevant, and was not unfairly prejudicial. Id. at 18-19.

Additionally, Harman held that because Honeywell’s closing argument to the jury violated the unappealed pretrial order excluding the plane’s “safety history,” it was erroneous. Id. at 22. Appellants had argued too that those defense arguments also contravened underlying Virginia law that absence of prior incidents was inadmissible, though the Court did not reach that point. Id. at 21.

Finally, Harman disagreed that Plaintiffs were entitled a “multiple cause” jury instruction, instead of the then-model proximate cause instruction given, since they only argued sole causation at trial. Id. at 22-26. Fortunately, at retrial on remand, Plaintiffs will be entitled the new model “multiple” proximate cause instruction if they simply argue in the alternative in this special case of product liability that there was dual causation, i.e., plane and pilot.