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Transcript

1

PRESENT Kinser CJ Lemons Goodwyn Millette and Powell JJ and Russell and Lacy SJJ COMMONWEALTH OF VIRGINIA OPINION BY v Record No 121717 JUSTICE CLEO E POWELL October 31 2013 GRAFTON WILLIAM PETERSON ADMINISTRATOR OF THE ESTATE OF ERIN NICOLE PETERSON DECEASED ET AL

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY William N Alexander II Judge Designate

This appeal arises out of wrongful death suits filed

against the Commonwealth by the administrators (hereinafter

ldquoAdministratorsrdquo) of the estates of Erin Nicole Peterson and

Julia Kathleen Pryde two murder victims of the tragic 2007 mass

shooting at Virginia Polytechnic Institute and State University

(hereinafter ldquoVirginia Techrdquo)1 In this case we hold that even

if there was a special relationship between the Commonwealth and

students of Virginia Tech under the facts of this case there

was no duty for the Commonwealth to warn students about the

potential for criminal acts by third parties Therefore we

will reverse the judgment of the circuit court

I FACTS AND PROCEEDINGS

1 In a separate appeal this day decided Record No 121720 the Administrators appeal the trial courtrsquos decision to grant a plea of res judicata and motion to dismiss filed by Charles W Steger the President of Virginia Tech The trial court denied the Commonwealthrsquos same motion and Peterson and Prydersquos wrongful death suits were consolidated and proceeded to a jury trial against the Commonwealth only

2

On the morning of April 16 2007 at approximately 730

am the Virginia Tech Police Department received a call that

an incident had occurred in the West Ambler Johnston Hall

dormitory but the specifics of what had happened were unknown

When officers arrived they found two gunshot victims a female

and a male clad in only his boxer shorts Although officers

from the Virginia Tech Police Department were the first on the

scene the Blacksburg Police Department led the investigation

At least one member of the Virginia State Police also joined the

investigation

During the investigation police came to believe that they

were investigating a domestic homicide because there were no

signs of forced entry or a robbery They believed that a

ldquotargeted shootingrdquo had occurred because the shooting was in a

ldquoless conspicuous area kind of hidden in the backrdquo2 making

it ldquoeasier for the suspect to get in and get out without being

noticedrdquo Police believed that this was an isolated incident

that posed no danger to others and that the shooter had fled the

area They did not believe that a campus lockdown was

necessary

At the crime scene police observed a bloody footprint and

were determined to locate the source of the print Police also

2 The officers described the area as being one that you would not even know was there if you did not live there

3

learned that the femalersquos boyfriend was a gun enthusiast

Once the femalersquos boyfriend was identified as a person of

interest a ldquoBe On The Lookoutrdquo (ldquoBOLOrdquo) went out for him The

police located the boyfriend at approximately 945 am

Officers described him as appearing ldquo[s]hockedrdquo and ldquo[s]caredrdquo

The boyfriend told the police that he was en route to Virginia

Tech from Radford University where he attended school because

while he was in his 9 am class he heard from a friend who

attended Virginia Tech who told him what had happened He

explained that he had dropped his girlfriend off that morning

around 7 am and then headed to Radford University for his 8

am class The boyfriend consented to a search of his vehicle

and shoes He also allowed the police to conduct a gunshot

residue test As police spoke with the boyfriend they received

word that there were ldquoactive shotsrdquo in Norris Hall Officers

quickly took the boyfriendrsquos contact information told him that

they would be in touch and left for the Virginia Tech campus

Police subsequently executed a search warrant of the home

of the boyfriend of the female victim found in West Ambler

Johnston Hall They found nothing

Charles W Steger the President of Virginia Tech

testified that he learned of ldquoa shootingrdquo at approximately 8

am and he called a meeting of a group of administrators tasked

with campus safety called the University Policy Group

4

(hereinafter ldquoPolicy Grouprdquo) to assess the situation and handle

the release of information pertaining thereto Shortly after 8

am President Steger spoke with Wendell Flinchum the Chief of

the Virginia Tech Police Department and learned that a female

and a male student had been shot at least one of whom was dead

that the shootings appeared targeted likely domestic in nature

and that the shooter had likely left the campus

The Policy Group convened around 830 am During this

meeting Steger learned that the police were on the lookout for

the female victimrsquos boyfriend as a person of interest One of

the grouprsquos members Ralph Byers the Executive Director for

Government Relations notified the Governorrsquos Office at

approximately 845 am of what had happened in West Ambler

Johnston Hall but indicated that the information was not

releasable because Virginia Tech was working on a press release

The email to the Governorrsquos office stated ldquoNot releaseable yet

One student dead one wounded Gunman on loose State

police are involved No details available yetrdquo Byers claimed

that he used the phrase ldquo[g]unman on the looserdquo as shorthand for

the ldquoperpetrator has not been apprehendedrdquo Virginia Tech

wanted to notify the next of kin before releasing the

information to the public Steger instructed a Policy Group

member to compose a campus notice and following revisions and a

technical difficulty with the computer system it was sent out

5

by campus-wide ldquoblast e-mailrdquo at 926 am The notice stated

that ldquo[a] shooting incident occurred at West Ambler Johnston

[Hall] earlier this morning Police are on the scene and

investigatingrdquo and advised students to be alert for anything

suspicious At 928 am the Policy Group also sent a message

to the Board of Visitors stating ldquo[t]wo students were shot this

morning one fatally We will be back in touch with more

information as soon as it is known Please do NOT release the

information about the fatalityrdquo

At approximately 945 am the mass shooting at Norris Hall

began At 950 am a second campus-wide ldquoblast e-mailrdquo was

sent stating that ldquo[a] gunman is loose on campus Stay in

buildings until further notice Stay away from all windowsrdquo

Erin Peterson 18 and Julia Pryde 23 were among the victims

murdered in Norris Hall Police later identified Seung-Hui Cho

as the shooter

After the Norris Hall shooting police realized that the

patterns on shoes worn by Cho did not match the prints found in

West Ambler Johnston Hall The day after the shootings police

learned that the gun used to murder the two people in West

Ambler Johnston Hall matched the one Cho used in Norris Hall

Police later found bloody clothing belonging to Cho that had the

DNA from one of the victims of the West Ambler Johnston Hall

shooting on it

6

The Administrators filed wrongful death claims in

Montgomery County Circuit Court against Chorsquos estate the

Commonwealth and eighteen other individuals including Steger

The cases were consolidated but following certain non-suits and

pretrial orders (see companion appeal Peterson v Commonwealth

Record No 121720) the Commonwealth was the sole defendant at

trial The Administrators claimed that the Commonwealth was

liable for the actions of the Commonwealthrsquos employees at the

university pursuant to the Virginia Tort Claims Act (ldquoVTCArdquo)

Code sect 801-1951 et seq They alleged that a special

relationship existed between the Commonwealthrsquos employees at

Virginia Tech and Peterson and Pryde that gave rise to the

Commonwealthrsquos duty to warn Peterson and Pryde of third party

criminal acts and that the Commonwealthrsquos failure to warn them

was the proximate cause of their deaths and the Administratorsrsquo

losses The Commonwealth argued that there was no foreseeable

harm to the students and that the evidence failed to establish

that any alleged breach of a duty of care was the proximate

cause of the deaths

The Commonwealth objected to several jury instructions

including Instruction 3 which provided in summary that

Peterson and Pryde were business invitees of Virginia Tech and

enjoyed a special relationship with the university The

instruction further stated that this status imposed a duty on

7

the university employees to maintain a safe campus Based on

this instruction the jury was told that if they found that the

university employees should have reasonably foreseen that injury

arising from the criminal conduct of a third party might occur

but failed to warn students the Commonwealth should be found

negligent The instruction also stated that the jury should

find in favor of the Administrators if that failure to warn was

the proximate cause of the alleged injuries The jury returned

a verdict in favor of the Administrators awarding $4 million to

each family

Upon the Commonwealthrsquos motion the court reduced each

verdict to $100000 in accordance with the VTCA Code sect 801-

1953 The Commonwealth moved to set aside the jury verdict

arguing it was contrary to well-established Virginia law that a

special relationship does not exist under the circumstances

here citing Burns v Gagnon 283 Va 657 668 727 SE2d 634

641 (2012) which was decided post-trial The Commonwealth

again argued that the verdict should be set aside because the

evidence was insufficient as a matter of law to give rise to a

duty to protect from third party criminal acts Alternatively

the Commonwealth argued that the trial court should order a new

trial due to erroneous jury instructions The trial court

denied these motions This appeal follows

II ANALYSIS

8

On appeal the Commonwealth argues that

1 The circuit court erred in finding that the Commonwealth Virginia Tech andor their employees had a special relationship with Peterson and Pryde that imposed a duty and therefore erred in instructing the jury that there was such a duty in submitting the case to the jury and in entering judgment on the juryrsquos verdict 2 Even assuming that the Commonwealth Virginia Tech or their employees had a relevant special relationship under Virginia law the evidence adduced did not give rise to a duty to warn of third party criminal acts and therefore the circuit court erred in submitting the case to the jury and in entering judgment on the juryrsquos verdict 3 The circuit court erred in finding that there was sufficient evidence regarding causation to raise a jury issue and therefore erred in submitting the case to the jury and in entering judgment on the juryrsquos verdict 4 Even if there were a theory that might have allowed plaintiffs to recover the circuit courtrsquos instructions (2 3 4 10 amp 11) misstated Virginia law regarding the existence of a relevant special relationship the existence and type of duty purportedly owed the standard that triggers a duty to warn of third party criminal acts as well as regarding the reasonable expectation of parents and students at a university and therefore the juryrsquos verdict must be overturned

We hold that the facts in this case do not give rise to a duty

for the Commonwealth to warn students of the potential for third

party criminal acts Therefore we do not reach the

Commonwealthrsquos causation or jury instruction arguments

9

As a general rule a person does not have a duty to warn or

protect another from the criminal acts of a third person

Thompson v Skate America Inc 261 Va 121 128-29 540 SE2d

123 127 (2001) ldquoThis is particularly so when the third person

commits acts of assaultive criminal behavior because such acts

cannot reasonably be foreseenrdquo Burdette v Marks 244 Va 309

311-12 421 SE2d 419 420 (1992) However the general rule

does not apply in all situations ldquolsquoThere are narrow exceptions

to this rulersquo but the application of those exceptions lsquois

always fact specific and thus not amenable to a bright-line

rule for resolutionrsquordquo Taboada v Daly Seven Inc 271 Va

313 322-23 626 SE2d 428 432 (2006) (alteration omitted)

(quoting Yuzefovsky v St Johnrsquos Wood Apartments 261 Va 97

106 540 SE2d 134 139 (2001)) affrsquod on rehrsquog 273 Va 269

270 641 SE2d 68 68 (2007) Before an exception comes into

play the facts must establish the existence of a special

relationship

ldquolsquo[W]hether a legal duty in tort exists is a pure question

of lawrsquordquo to be reviewed de novo Gagnon 283 Va at 668 727

SE2d at 642 (quoting Kellermann v McDonough 278 Va 478

487 684 SE2d 786 790 (2009) To prevail

the plaintiff must establish that there is a special relationship either between the plaintiff and the defendant or between the third party criminal actor and the defendant The necessary special

10

relationship may be one that has been recognized as a matter of law or it may arise from the factual circumstances of a particular case

Yuzefovsky 261 Va at 107 540 SE2d at 139 (citation and

footnote omitted) For the purposes of this opinion we will

assume without deciding that the threshold requirement that such

a special relationship exists is satisfied on these facts

Having assumed without deciding that a special relationship

exists the question becomes whether as a matter of law under

the facts and circumstances of this case the Commonwealth had a

duty to warn students about the potential for third party

criminal acts ldquoThe law determines the duty and the jury upon

the evidence determines whether the duty has been performedrdquo

Acme Markets Inc v Remschel 181 Va 171 178 24 SE2d 430

434 (1943)

A review of our prior cases indicates that in order for a

duty to be imposed upon a defendant the degree of the

foreseeability of harm that the plaintiff must establish depends

on the nature of the special relationship We have recognized

two levels of foreseeable harm known or reasonably foreseeable

harm Taboada 271 Va at 325-26 626 SE2d at 434 and

ldquoimminent probability of harmrdquo the heightened degree of

foreseeability that arises where the defendant ldquoknows that

criminal assaults against persons are occurring or are about to

11

occur on the premisesrdquo based upon ldquonotice of a specific danger

just prior to the assaultrdquo Thompson 261 Va at 128-29 540

SE2d at 127 (citing Wright v Webb 234 Va 527 533 362

SE2d 919 922 (1987)) Certain special relationships such as

that of a common carrierpassenger innkeeperguest and

employeremployee impose a duty to warn when the danger of third

party criminal acts is known or reasonably foreseeable See

Taboada 271 Va at 325-26 626 SE2d at 434 (innkeeperguest)

AH v Rockingham Publishing Co Inc 255 Va 216 221 495

SE2d 482 486 (1998)(employeremployee) Connell v Chesapeake

amp Ohio Ry Co 93 Va 44 62 24 SE 467 470 (1896)(common

carrierpassenger)

In instances however where the special relationship was

that of business ownerinvitee or landlordtenant we have

imposed a duty to warn of third party criminal acts only where

there was ldquoan imminent probability of injuryrdquo from a third party

criminal act Yuzefovsky 261 Va at 109 540 SE2d at 1413

3 In this case the circuit court instructed the jury that there was a business ownerinvitee relationship between the Commonwealth and the students and that there was a duty to warn if the danger was reasonably foreseeable This was error because our case law is clear that when the relationship is that of business ownerinvitee the duty to warn arises only if there is an imminent probability of harm from a third party criminal act However because we conclude that under the facts of this case no duty was established under the more lenient standard of foreseeability this distinction is not dispositive in the resolution of this appeal

12

Thus the duty to warn of danger from third party criminal acts

has remained an exception to the general rule Burdette 244

Va at 312-13 421 SE2d at 421

Where the standard was that the duty to warn or protect was

present when there was ldquoan imminent probability of injuryrdquo from

a third party criminal act this Court has held that the duty to

warn existed as a matter of law in the unusual situation where

an on-duty police officer failed to intervene when he responded

to the scene of a motor vehicle accident and observed one driver

attack a bystander who had stopped to render assistance Id at

310-11 421 SE2d at 419-20 More frequently however this

Court has concluded that facts relied upon in particular cases

fail to establish a duty as a matter of law to protect against

third party criminal acts See eg Dudas v Glenwood Golf

Club Inc 261 Va 133 140 540 SE2d 129 133 (2001)

(holding that two robberies within the month preceding the

attack on plaintiff was not a ldquolevel of criminal activityrdquo that

would ldquohave led a reasonable business owner to conclude that its

invitees were in imminent danger of criminal assaultrdquo)

Yuzefovsky 261 Va at 109 540 SE2d at 141 (concluding as a

matter of law that employee misrepresentations about the safety

of an apartment complex where in one year 656 crimes including

113 against persons had been reported failed to give rise to

the duty to warn or protect from harm because these facts failed

13

to establish ldquoan imminent probability of injury to [the

plaintiff] from ardquo criminal act of a third party) Burns v

Johnson 250 Va 41 42-45 458 SE2d 448 449-52 (1995) (trial

court erred as a matter of law in failing to hold that the

fifteen minutes between an individual making sexual advances to

a store clerk and abducting and raping a store patron did not

give rise to the duty to protect against third party criminal

acts)

In cases where it was alleged that a special relationship

gave rise to the duty to warn because the danger of harm from

third party criminal acts was known or reasonably foreseeable

this Court has similarly frequently concluded that the duty to

warn was not present as a matter of law See AH 255 Va at

221-22 495 SE2d at 486 (stating that an employer has no duty

to protect an employee from third party criminal acts unless the

danger is ldquoknown or reasonably foreseeablerdquo as a matter of law

and concluding that knowledge of similar assaults in the

preceding five years was not sufficient) Connell 93 Va at 58

24 SE at 469 (common carrier ldquocannot be deemed to have

anticipated nor be expected to guard and protect [a passenger]

against a crime so horrid and happily so rare as that of

murderrdquo)

In only rare circumstances has this Court determined that

the duty to protect against harm from third party criminal acts

14

exists See Taboada 271 Va at 325-26 626 SE2d at 434

(concluding that like a common carrier an innkeeper has a

ldquoduty of utmost care and diligencerdquo to protect guests from third

party criminal acts where the danger is known or reasonably

foreseeable and holding that where -- over a three year period

immediately prior to the attack -- hotel employees had called

police 96 times to report criminal conduct including robberies

malicious woundings shootings and other criminally assaultive

acts the hotel knew of the danger and had received a warning

from police that ldquoguests were at a specific imminent risk of

harmrdquo these were sufficient averments to survive a demurrer

and if proven to establish the duty as a matter of law)

Here even if this Court were to apply the less stringent

standard of ldquoknow or have reasonably foreseenrdquo there simply are

not sufficient facts from which this Court could conclude that

the duty to protect students against third party criminal acts

arose as a matter of law In this case the Commonwealth knew

that there had been a shooting in a dormitory in which one

student was critically wounded and one was murdered The

Commonwealth also knew that the shooter had not been

apprehended At that time the Commonwealth did not know who

the shooter was as law enforcement was in the early stages of

its investigation of the crime However based on

representations from three different police departments

15

Virginia Tech officials believed that the shooting was a

domestic incident and that the shooter may have been the

boyfriend of one of the victims Most importantly based on the

information available at that time the defendants believed that

the shooter had fled the area and posed no danger to others

This is markedly different from the situation presented in

Taboada 271 Va at 325-26 626 SE2d at 434 where police had

specifically warned the innkeepers that guests were at risk

prior to the time that the plaintiff in that case was shot by a

trespasser Based on the limited information available to the

Commonwealth prior to the shootings in Norris Hall it cannot be

said that it was known or reasonably foreseeable that students

in Norris Hall would fall victim to criminal harm Thus as a

matter of law the Commonwealth did not have a duty to protect

students against third party criminal acts

III CONCLUSION

Assuming without deciding that a special relationship

existed between the Commonwealth and Virginia Tech students

based on the specific facts of this case as a matter of law no

duty to warn students of harm by a third party criminal arose

Thus we will reverse the trial courtrsquos judgment holding that a

duty arose and enter final judgment in favor of the

Commonwealth

Reversed and final judgment

IN THE

Supreme Court of Virginia

MICHELLE C HARMANAdministratrix of the ESTATE of

JOSEPH A GRANA III Deceasedand

STEPHANIE E GRANA BEMBERISPersonal Representative of the ESTATE OF

JOSEPH E GRANA SR DeceasedAppellants

v

HONEYWELL INTERNATIONAL INCAppellee

RECORD NO 130627

BRIEF AMICUS CURIAEOF VIRGINIA TRIAL LAWYERSrsquo ASSOCIATION

IN SUPPORT OF APPELLANTS

LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond Virginia 23219 (804) 644-0477A Division of Lantagne Duplicating Services

Avery T Waterman Jr Esq (VSB No 27118)Patten Wornom Hatten amp Diamonstein LC12350 Jefferson Avenue Suite 300Newport News Virginia 23602Telephone (757) 223-4567Facsimile (757) 223-4499Awatermanpwhdcom

i

TABLE OF CONTENTS

Table of Authorities v Amicus Statement of Interest 1 Nature of the Case and Material Proceedings Belowhelliphelliphelliphelliphelliphelliphellip 2 Statement of Facts 2 0 CLARIFICATION OF OPINIONShelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 2 1 ASSIGNMENT OF ERROR 1helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 3 2 ASSIGNMENT OF ERROR 2helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 3 3 ASSIGNMENT OF ERROR 3helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 3 4 ASSIGNMENT OF ERROR 4helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 4 5 ASSIGNMENT OF ERROR 5helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 4 Argument 5 A THE TRIAL COURT ADMITTING THE HEARSAY MOONEY REPORT IS PREJUDICIAL ERRORhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 7 1 Public policy opposes the hearsay Mooney Reporthelliphelliphelliphellip 7 2 The Mooney Report is not admissible as ldquoreliable authorityrdquo under sect801-4011helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 11 a Honeywellrsquos expert did not testify he relied on the whole

Mooney Report in forming his opinion helliphelliphelliphelliphelliphelliphelliphellip 12 b Honeywellrsquos expert did not establish any of the Mooney Report is reliable authority helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 13 c The Mooney Report inherently is not reliable authorityhellip 13

ii

d The Mooney Report is not admissible as an exhibithelliphellip 15 3 The Mooney Report is not admissible as ldquofacts circumstances and datardquo under sect801-4011helliphelliphelliphelliphelliphelliphellip 15 4 The Mooney Report being admitted especially by exhibit and emphasized in closing is prejudicialhelliphelliphelliphelliphelliphelliphelliphelliphellip 16 B THE TRIAL COURT CONDONING ldquoABSENCE OF OTHER

INCIDENTSrdquo ARGUMENT IS PREJUDICIAL ERRORhelliphelliphelliphellip 19 1 Public policy opposes Honeywellrsquos absence of other incidents argument helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 19 2 Evidence and argument of Honeywellrsquos ldquosafety historyrdquo properly was excluded at pretrialhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 22 3 Honeywell violating Virginia law and pretrial Order in closing over objection improperly was condoned at trialhellip 22 4 Honeywellrsquos violations and judgersquos condonations were

prejudicialhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 25 C THE TRIAL COURT REFUSING TO GIVE ADMINISTRATORSrsquo

CLEAR COMPLETE CORRECT MULTIPLE PROXIMATE CAUSE INSTRUCTION IS PREJUDICIAL ERRORhelliphelliphellip 26

1 Public policy demands the jury be instructed fullyhelliphelliphelliphellip 26 2 There may be more than one proximate cause and other

proximate causes need not be excluded with certainty and Administratorsrsquo jury instruction so informed the jury but it was refused for not being a Model Jury Instructionhelliphelliphellip 28 3 Administrators are entitled to correct jury instructions supporting their theory regardless whether the scintilla-plus of credible evidence is in their andor Honeywellrsquos casehellip 30

iii

4 Refusal of Administratorsrsquo multiple-cause instruction is prejudicialhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 32 D THE TRIAL COURT ADMITTING ABELrsquoS ldquoCRITICAL WITNESSrdquo

OPINIONS IS PREJUDICIAL ERRORhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 32 1 Public policy opposes Abelrsquos expert opinionshelliphelliphelliphelliphelliphellip 33 2 Abelrsquos opinions are unfounded and improperhelliphelliphelliphelliphelliphellip 34 a They are unfounded as an experthelliphelliphelliphelliphelliphelliphelliphellip 35 b They are improper as a laymanhelliphelliphelliphelliphelliphelliphelliphelliphellip 36 3 Abelrsquos opinions are speculativehelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 36 4 Abelrsquos opinions are hearsayhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 37 5 Abelrsquos opinions are irrelevanthelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 37 6 Abelrsquos opinions invade the juryrsquos provincehelliphelliphelliphelliphelliphelliphellip 38 7 Abelrsquos opinions are prejudicialhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 39 E THE TRIAL COURT ADMITTING NORMANrsquoS LAY OPINIONS AND HEARSAY IS PREJUDICIAL ERRORhelliphelliphelliphelliphelliphelliphelliphelliphellip 40 1 Public policy opposes Normanrsquos lay opinionshelliphelliphelliphelliphellip 41 2 Normanrsquos lay opinions are unfoundedhelliphelliphelliphelliphelliphelliphelliphelliphellip 42 3 Normanrsquos lay opinions are irrelevanthelliphelliphelliphelliphelliphelliphelliphelliphellip 42 4 Normanrsquos lay opinions are speculativehelliphelliphelliphelliphelliphelliphelliphellip 43 5 Normanrsquos testimony is hearsayhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 43 6 Normanrsquos lay opinions and hearsay are prejudicialhelliphelliphellip 43

iv

Conclusion 44 Certificate 45 Addendum 1 (12114) Letter of Roger T Creager Esq [Appellantsrsquo Counsel] 2 (12114) Email of Patrick Hanes Esq [Appelleersquos Co-Counsel] 3 (12114) Email of Austin W Bartlett Esq [Appelleersquos Co-Counsel]

v

TABLE OF AUTHORITIES

CASES

Beavers v Commonwealth 245 Va 268 (1993)helliphelliphelliphelliphelliphelliphelliphelliphellip 24 Bostic v About Women OBGYN PC 275 Va 567 (2008) passim Burns v Gagnon 283 Va 657 (2012)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip15 36 Cheng v Commonwealth 240 Va 26 (1990)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 24 Chesapeake amp Potomac Tel v Sisson amp Ryan 234 Va 492 (1987)hellip 9 Claiborne v Parrish 2 Va (2 Wash) 146 (1795)helliphelliphelliphelliphelliphelliphelliphelliphellip 7 Combs v Norfolk and Western Ry Co 256 Va 490 (1998)helliphelliphelliphellip 35 Commonwealth v Wynn 277 Va 92 (2009)7 16 37 Dandridge v Marshall 267 Va 591 (2004)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 6 Doe v Dewhirst 240 Va 266 (1990)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 36 Ford Motor Co v Boomer 285 Va 141 (2013)helliphelliphelliphelliphelliphelliphelliphelliphelliphellip 29 Goins v Wendys International Inc 242 Va 333 (1991)19 20 25 Hale v Maersk Line Ltd 284 Va 358 (2012)helliphelliphelliphelliphelliphelliphelliphelliphelliphellip 6 Hinkley v Koehler 269 Va 82 (2005)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 6 Holmes v Levine 273 Va 150 (2007)27 30 31 Jones v Ford Motor Co 263 Va 237 (2000)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 20 Keesee v Donigan 259 Va 157 (2000) 35 Lawlor v Commonwealth 285 Va 187 (2013) 30

vi

May v Caruso 264 Va 358 (2002)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 13 McClung v Commonwealth 215 Va 654 (1975)helliphelliphelliphelliphelliphelliphelliphelliphellip 31 McMunn V Tatum 237 Va 558 (1989) 16 Norfolk amp W Railway v Puryear 250 Va 559 (1995) 7 Pettus V Gottfried 269 Va 69 (2005) 37 Reid v Baumgardner 217 Va 769 (1977) 26 Sanitary Grocery Co Inc v Steinbrecher 183 Va 495 (1945)helliphelliphellip 19 Stottlemyer v Ghramm 268 Va 7 (2004)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 24 Virginia Passenger amp Power Co v Fisher 204 Va 121 (1905)helliphelliphellip 24 Velocity Express Mid-Atlantic v Hugen 266 Va 188 (2003) 21 25 26 Weinberg v Given 252 Va 221 (1996)13 16 White Consolidated Industry Inc v Swiney 237 Va 23 (1989) 29 Wood v Woolfolk Properties Inc 258 Va 133 (1999)helliphelliphelliphelliphellip19 25 Wright v Kaye 267 Va 510 (2004)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 43

STATUTES

Virginia Code sect801-3792helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 29 Virginia Code sect801-4011helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip passim

RULES OF EVIDENCE

Va R Evid 2701helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 36

vii

Va R Evid 2706(a)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 9

Va R Evid 2801helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 8

Va R Evid 2802helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 8

RULES OF COURT

Va Sup Ct R 530helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 1

AUTHORITATIVE TREATISES

CHARLES E FRIEND amp KENT SINCLAIR THE LAW OF EVIDENCE IN VIRGINIA (7th ed 2013)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 8 9

1

AMICUS STATEMENT OF INTEREST1 The Virginia Trial Lawyers Association (ldquoVTLArdquo) is an organization of

over 2000 Virginia attorneys dedicated to promoting professionalism within

the trial bar enhancing the competence of trial lawyers protecting and

preserving individual liberties and access to justice and supporting an

efficient and constitutionally sound judicial system Pursuant to Rule 530 of

the Rules of the Supreme Court of Virginia VTLA has obtained the written

consent of all counsel for the filing of this Brief Amicus Curiae See

Addendum (attached)

This appeal presents issues that are important to Virginia law and trial

practice in Virginia courts The appeal concerns not only the rights of the

parties to this case but also the rights of litigants and the nature of trial

practice throughout the Commonwealth

Assignment of Error 1 implicates Virginiarsquos well-settled rule against

hearsay in general and its limited statutory exception for ldquoreliable authorityrdquo

in particular Assignment of Error 2 implicates Virginiarsquos well-settled rule

against ldquoabsence of other incidentsrdquo evidence and by implication Virginiarsquos

1 Amicus affirms that no counsel for a party authored this brief in whole or in part and that no person or entity made a monetary contribution to its preparation or submission

2

mirror-image rule against ldquofact of other incidentsrdquo evidence Assignment of

Error 3 implicates litigant and jury entitlement to clear complete correct

instructions under Virginia law including particularly on the issue of multiple

proximate causes Companion Assignments of Error 4 and 5 implicate

Virginiarsquos longstanding limits of lay and expert opinions and subjective

impressions

NATURE OF THE CASE AND MATERIAL PROCEEDINGS BELOW

VTLA adopts Administratorsrsquo Nature of the Case and Material

Proceedings Below

STATEMENT OF FACTS

VTLA adopts Administratorsrsquo Statement of Facts However it

emphasizes the following testimony exhibits and incidents of trial

0 CLARIFICATION OF OPINIONS

Administratorsrsquo experts agreed with Honeywellrsquos experts that at

takeoff the trim setting was in the normal position JA1074-10752 However

Administratorsrsquo expert (Dr Sommers) opined that during flight the trim

setting got out of normal position and into ldquonose lowrdquo position because of

runaway trim caused by Honeywellrsquos autopilot Id

2 Joint Appendix is ldquoJArdquo Trial Transcript is ldquoTTrdquo Record is ldquoRrdquo

3

1 ASSIGNMENT OF ERROR 1

Among other hearsay fact and hearsay opinion the 5-page hearsay

Mooney Report introduced in evidence by Honeywell as Exhibit 11 under

Virginia Code sect801-4011 marqueed this crucial hearsay expert opinion

Conclusions The IIC Lycoming representative and myself did not find any evidence that the aircraft engine was not capable of producing power or that the aircraft was uncontrollable at the time of accident

JA463 (emphasis added) This ldquoabsent expertrdquo opinion (A) was the core

issue of the case ie defective autopilot and (B) was not part of the

National Transportation Safety Board (ldquoNTSBrdquo) report admitted JA447-458

2 ASSIGNMENT OF ERROR 2

Contrary to pretrial Order five (5) times in closing Honeywell argued

ldquoabsence of other incidentsrdquo as proof of no product defect or causation

JA1584 1591-1592 and 1603 Despite Administrators repeatedly objecting

and requesting a curative instruction JA1584 and 1605-1606 judge

overruled Administrators and condoned Honeywell JA1584 and 1605-

1607

3 ASSIGNMENT OF ERROR 3

Administrators requested Jury Instruction 11 which was clear

complete and correct on the core issue of multiple proximate cause JA352

4

and which was not covered by any other instructions But Honeywell

objected solely on the basis that it was not the Model Jury Instruction and

the judge sustained Honeywellrsquos objection on that ground JA1545-1547

4 ASSIGNMENT OF ERROR 4

Honeywell considered William Abel a ldquopretty critical witnessrdquo for the

defense JA657 But the judge only made a ldquoquasi-determinationrdquo that Abel

was a ldquoquasi-expertrdquo TT 349 yet permitted him over Administratorsrsquo half-

dozen different objections to render multiple critical opinions not based on

personal knowledge and Honeywell highlighted Abelrsquos videotape testimony

five (5) times opening direct witness testimony expert cross-examination

and closing JA792 1352 1354 and 1594-1595

5 ASSIGNMENT OF ERROR 5

Robert Norman is a new inexperienced pilot who as a layman was

permitted over Administratorsrsquo several objections to opine about his

personal ldquofearrdquo of the Mooney plane ldquoa thousand mistakes you can makerdquo

in the Mooney and his limited operation of the Mooney under different

circumstances plus various hearsay JA756-783 1380-1381 and 1383-

1389 Honeywell highlighted his videotape testimony in direct examination

and repeatedly in closing in tandem with Abel JA1363-1411 1593-1594

and 1598

5

ARGUMENT

Re Assignment of Error 1 sound public policy mandates upholding

Virginiarsquos rule against hearsay and concomitantly construing its statutory

ldquoreliable authorityrdquo exception strictly narrowly Yet the trial court construed

Virginia Code sect801-4011 liberally to cover a biased case-related report

and moreover did not even require Honeywell to honor the statutersquos

express requirements in admitting the hearsay Mooney Report in testimony

and its absent expert Conclusions on the core issue as an exhibit

Re Assignment of Error 2 sound public policy mandates upholding

Virginiarsquos rule against ldquoabsence of prior incidentsrdquo Yet the trial court

expressly condoned Honeywell violating not only settled Virginia law but

also its own pretrial Order with repeated closing argument about its

product safety history that in decades of use there allegedly never had

been another incident before

Re Assignment of Error 3 sound public policy mandates upholding

Virginiarsquos rule of litigant and jury entitlement to clear complete instructions

stating the correct law Yet the trial court refused Administratorsrsquo correct

clear complete one on the oft-confusing pivotal issue of multiple proximate

causes

6

Re companion Assignments of Error 4 and 5 sound public policy

mandates upholding Virginiarsquos rules limiting lay and expert testimony and

opinions Yet the trial court admitted numerous subjective opinions by

unqualified witnesses - one that Defendant conceded was a ldquopretty critical

witnessrdquo - that lacked foundation that were speculative hearsay and

irrelevant and that invaded the juryrsquos province

All of these errors were prejudicial in fact and under Virginia law

ldquoWell established principles require that error be presumed prejudicial

unless the record clearly shows that the error could not have affected the

resultrdquo Dandridge v Marshall 267 Va 591 597 (2004)(evidentiary errors

mandated reversal and remand for retrial) An ldquoerroneous admission of

evidence which may have lsquotipped the scalesrsquordquo is presumed prejudicial

Hale v Maersk Line Ltd 284 Va 358 377 (2012)(reversed and

remanded) In particular erroneous admission of defense expert testimony

may be prejudicial even if another defense expert testifies about the

identical topic Hinkley v Koehler 269 Va 82 91-92 (2005)(reversed and

remanded) Individually and certainly collectively the erroneous admission

7

of expert and other evidence in favor of Honeywell presumably ldquotipped the

scalesrdquo impermissibly3

A THE TRIAL COURT ADMITTING THE HEARSAY MOONEY REPORT IS PREJUDICIAL ERROR

The Mooney Report is hearsay4 JA459-463 ldquoEvidence that is

hearsay and does not fall under an exception is clearly inadmissiblerdquo

Commonwealth v Wynn 277 Va 92 98 (2009) regardless whether it is

opinion hearsay andor fact hearsay Id at 100

Honeywell asserted and the judge accepted that the Mooney Report

came within the exception of Va Code Ann sect801-4011 But

Administrators repeatedly objected for hearsay and ldquolack of foundationrdquo

JA1520-1525 as it clearly failed to meet that statutersquos strictures

1 Public policy opposes the hearsay Mooney Report

Since at least 1795 this Court has barred hearsay evidence absent

an exception Claiborne v Parrish 2 Va (2 Wash) 146 (1795) The 3 As a matter of law on the facts of the case each Assignment of Error constitutes manifest error Re Assignment of Error 1 4 and 5 the trial court had ldquono discretion to admit clearly inadmissible evidence because lsquoadmissibility of evidence depends not upon the discretion of the court but upon sound legal principlesrsquordquo Norfolk amp W Ry v Puryear 250 Va 559 563 (1995)

4 ldquoMooney Reportrdquo refers to the whole document and to its individual constituent statements of facts and of opinions that were admitted

8

continuing wisdom and vitality of its bar is evinced by recent Virginia Rules

of Evidence 2801 and 2802

Surveying Virginia law Friend articulates the most common reasons

for this Courtrsquos rule against hearsay evidence

1 ldquoThe out-of-court declarations were not made under oath 2 The use of such declarations denies to the opponent the right to

confront the witness against him 3 The out-of-court declarant cannot be cross-examined 4 The trier of fact has no opportunity to observe the demeanor of

the declarant on the stand 5 Such evidence is inherently weak 6 The jury will tend to give it too much weight 7 The more often a story is repeated the more likely it is to

become distorted 8 There is too much danger of fraud or perjuryrdquo

CHARLES E FRIEND amp SINCLAIR THE LAW OF EVIDENCE IN VIRGINIA sect151[c] at

902-903 (7th ed 2013 supp) Perhaps the strongest justification for the

hearsay rule is ldquolack of opportunity for cross-examination of the absent

declarantrdquo Id at 904

ldquoOur system of justice places great faith in the value of cross-

examination in testing the perception memory narrative ability and

9

veracity of witnesses [and] it is undeniable that cross-examination can be

an effective tool in exposing false testimony putting misleading testimony

into perspective and bringing out omitted material detailsrdquo Id This Court

has underscored the importance of testing trustworthiness in general and of

cross-examination in particular ldquoThe reason hearsay evidence is excluded

is that it is not subject to the tests which help the trier of fact ascertain the

truth of testimonyrdquo ie it ldquolacks any guarantee of trustworthiness and must

be excludedrdquo Chesapeake amp Potomac Tel v Sisson amp Ryan 234 Va 492

499 (1987)(hearsay forecloses its declarant being ldquocross-examinedrdquo)

Va Code sect801-4011 as amended in 1994 is a hearsay exception In

derogation of Virginiarsquos longstanding common law against hearsay it must

be ldquostrictly construedrdquo Bostic v About Women OBGYN PC 275 Va 567

576 (2008)

sect801-4011 features evidentiary preconditions so that the ldquotest of

cross-examinationrdquo is ldquoinsuredrdquo id plus hearsay qualifying under it only

may be read into evidence not introduced as a documentary trial exhibit

so not to give it undue emphasis Otherwise ldquothe opposing party is

subjected to the lsquooverwhelming unfairnessrsquordquo of admitting absent opinion Id

Further the General Assembly recently codified sect801-4011 as

expert witness law Virginia Rule of Evidence 2706(a) Expert opinion

10

warrants greater judicial scrutiny and litigant protection heightening the

courtrsquos function as ldquogatekeeperrdquo

Finally sect801-4011 is commonly referred as the ldquolearned treatiserdquo

exception since it was created ldquoto permit the introduction of authoritative

literature as substantive evidencerdquo Friend sect15-27 at 1063-1064 in lieu of

traditional practice of testing an expert ldquoon cross-examination by reading to

him from scientific articles or treatisesrdquo Id sect13-11[6] at 809-810 That is to

say sect801-4011 does not contemplate just anything that is printed

Well-settled Virginia law and sound public policy demand the hearsay

rule and its sect801-4011 exception be respected and applied to their letter

But admission of the hearsay Mooney Report including its absent expert

Conclusions contravened the rule and the statute in multiple ways

Admission of the hearsay Mooney Report ignored sect801-4011rsquos

safeguarding preconditions allowed printed material not of the character

contemplated and even introduced the document itself instead of only

testimony See A(2-3) infra Predictably it necessarily engendered the

ldquooverwhelming unfairnessrdquo and other prejudice that the rule the statute

and public policy require to be avoided See A(4) infra

11

2 The Mooney Report is not admissible as ldquoreliable authorityrdquo under sect801-4011

The ldquoreliable authorityrdquo exception of sect801-4011 mandates

To the extenthelliprelied upon by the expert witness in direct examination statements contained in published treatises periodicals or pamphlets on a subject of history medicine or other science or art established as a reliable authority by testimonyhellip shall not be excluded as hearsay If admitted the statements may be read into evidence but may not be received as exhibits

ldquoStatutes in derogation of the common law are to be strictly construed and

not to be enlarged in their operation by construction beyond their express

termsrdquo Bostic 275 Va at 576 (emphasis added) As such this ldquo1994

amendment to Code sect801-4011 [is] a relaxation of the common-law rules

against hearsay only to the limited extent provided by the express statutory

termsrdquo Id at 577

Specifically the General Assembly inserted in the 1994 amendment

ldquotwo preconditions to the admission of hearsay expert opinions as

substantive evidence on direct examination First the testifying witness

must have lsquorelied uponrsquo the statements contained in the published treatises

second the statements must be established as lsquoa reliable authorityrsquo by

testimonyhelliprdquo Id at 576 (emphasis added) But Honeywell did not satisfy

either precondition

12

a Honeywellrsquos expert did not testify he relied on the whole Mooney Report in forming his opinion

ldquoThe [first precondition] means that the witness must testify that he

relied on the article in forming his opinion which is consistent with the

views expressed by the absent authorrdquo Id at 577 ldquoThe statutory standard

is not met by an expertrsquos testimony that he relied upon it only to use it lsquoto

talk to this juryrsquordquo Id

Honeywellrsquos expert Dr Clarke testified that he relied upon only two

(2) sentences in the Mooney Report - lines 28-29 and 32 of its page 3

JA1524-1525 But ultimately the whole report including its hearsay expert

Conclusions was admitted as Exhibit 115

5 At Honeywell counselrsquos request Dr Clarke read the so-called ldquolast sentencerdquo pointed out to him lines 28-29 of page 3 of the Mooney Report ldquoThis indicates an approximate takeoff position trim settingrdquo JA1524 at Lines 3-8 Honeywellrsquos counsel requested and received leave to publish ldquowhat he just testifiedrdquo Id at Lines 9-13 and Dr Clarke showed ldquothat pagerdquo as requested and explained ldquothis was the part that I just readrdquo reading it aloud again Id at Lines 15-20 Dr Clarke then continued his answer by correlating and quoting nearby line 32 of page 3 of the Mooney Report ldquoAnd to validate what we just spoke about it says that there were six threads exposed on the jackscrew And itrsquos the same six threads we were talking about from the full nose-down positionrdquo Id at Lines 20-23 Honeywellrsquos counsel then changed to a ldquonew topicrdquo - without having asked Dr Clarke whether he relied on lines 28-29 and 32 of the Mooney Report Id at Line 24 So the Judge interjected inquiring whether Dr Clarke relied

13

b Honeywellrsquos expert did not establish any of the Mooney Report is reliable authority

The second precondition means that the expert witness himself must

attest that the article is accepted as reliable authority by other similarly

situated experts ie is of a type normally relied upon by others in the

particular field of expertise In a sidebar Honeywellrsquos attorney told the

judge the Mooney Report ldquois a document thatrsquos normally relied upon by

expertsrdquo JA1523 but Honeywellrsquos expert Dr Clarke did not offer the

required testimony for any part of the Mooney Report JA1520-1525

c The Mooney Report inherently is not and cannot be reliable authority

More fundamentally sect801-4011 expressly is limited to only

ldquopublished treatises periodicals or pamphletsrdquo This Courtrsquos examples of

such published literature are ldquoperiodicals which are deemed to be reliable

and authoritativerdquo Weinberg v Given 252 Va 221 222 (1996) ldquopublished

and authoritative literaturerdquo May v Caruso 264 Va 358 362 (2002) and

ldquolearned treatisesrdquo Bostic 275 Va at 575

Strictly construed ldquopublished treatises periodicals or pamphletsrdquo

connotes independent authoritative if not scholarly literature It inherently

upon this thereby prompting Honeywellrsquos counsel to ask and Dr Clarke to affirm belatedly JA1524 at Line 25 to JA1525 at Line 5

14

does not connote private disputed contemporaneous biased case-related

material like the Mooney Report by the crashed planersquos manufacturer

Otherwise construed liberally contrary to this Courtrsquos statutory

construction jurisprudence mere ldquopamphletrdquo (as declared summarily by the

judge JA1523) embraces essentially any unbound printing including

biased case-related materials elevated to authoritative literature Such a

liberal construction predictably and inequitably would allow retained experts

like Honeywellrsquos Dr Clarke to anoint disputed self-interested case materials

as ldquoreliable authorityrdquo to read ldquothem into the record as holy writrdquo id at 576

and to shield their (dubious) authors opinions and facts from the crucible

of cross-examination

Parties transmogrifying disputed biased case-related material into

ldquolearned treatiserdquo by hiring an expert to proclaim it so is not the intention of

sect801-4011 That is a perversion and an abuse of the statute with far-

reaching negative implications in all future Virginia litigation contrary to

sound public policy

Upon retrial of this cause Honeywell properly is barred from having

Dr Clarke or any other retained expert offer that the Mooney Report is

ldquoreliable authorityrdquo The Mooney Report author IIC and Lycoming

representative need to justify their own disputed case facts opinions and

15

Conclusions - if they are qualified to do so and if the IIC and Lycoming

representative truly concur with the Conclusions Cf Burns v Gagnon 283

Va 657 678 (2012)(Court addresses objections that ldquomay arise again on

retrialrdquo)

d The Mooney Report is not admissible as an exhibit

sect801-4011 explicitly is a testimonial not a documentary exception

The statute states expressly that ldquothe statements may be read into

evidence but may not be received as exhibitsrdquo (emphasis added)

It could not be any more literal unambiguous plain and clear

Admission of the Mooney Report as a defense trial exhibit is manifest error

particularly since the required foundation for any of it even to be read was

not laid and Administrators consistently maintained their hearsay and ldquolack

of foundationrdquo objections JA1520-1525

3 The Mooney Report is not admissible as ldquofacts circumstances and datardquo under sect801-4011

ldquo[P]ursuant to Code sect801-4011 an expert witness may rely upon

lsquofacts circumstances or data made known tohellipsuch witnessrsquo in formulating

an opinion those lsquofacts circumstances or datahellip if of a type normally

relied upon by others in the particular field of expertise in forming opinions

and drawing inferences need not be admissible in evidencerdquo

16

Commonwealth v Wynn 277 Va 92 100 (2009) However this clause of

sect801-4011 does not allow for the ldquointroduction of otherwise inadmissible

hearsay evidence during direct examination of an expert witness merely

because the expert relied on the hearsay information in formulating an

opinionrdquo Id (emphasis added)

sect801-4011rsquos ldquofacts circumstances or datardquo clause is separate from

the subsequent ldquoreliable authorityrdquo clause so is not read in conjunction with

it Hence the hearsay Mooney Report clearly was inadmissible on direct

examination of Honeywellrsquos expert Dr Clarke JA1520-1525

4 The Mooney Report being admitted especially by exhibit and emphasized in closing is prejudicial

This Court has reiterated the ldquooverwhelming unfairnessrdquo of admitting

absent expert opinion without cross-examination

The admission of hearsay expert opinion without the testing safeguard of cross-examination is fraught with overwhelming unfairness to the opposing party No litigant in our judicial system is required to contend with the opinions of absent lsquoexpertsrsquo whose qualifications have not been established to the satisfaction of the court whose demeanor cannot be observed by the trier of fact and whose pronouncements are immune from cross-examination

Bostic 275 Va at 575 (quoting Weinberg 252 Va at 225 quoting McMunn

v Tatum 237 Va 558 566 (1989)) Moreover the Court observed that the

General Assembly ldquoinsuredrdquo the ldquotest of cross-examinationrdquo by inserting the

17

1994 preconditions in sect801-4011 and that by a proponentrsquos non-

compliance ldquothe opposing party is subjected to the lsquooverwhelming

unfairnessrsquo we discussed in McMunnrdquo Bostic 275 Va at 576

When Defendantrsquos expert in Bostic failed simply to satisfy the first

precondition of sect801-4011 this Court concluded the trial court ldquoerred in

admitting the opinions contained in published medical literature without an

adequate foundation as required by Code sect801-4011rdquo Id at 578 Further

because the Court could not ldquodetermine to what extent the erroneous

admission of hearsay opinions stated in the published articles may have

affected the verdictrdquo for Defendant it reversed the judgment and remanded

for new trial Id

Admission of the Mooney Report was more egregious than in Bostic

Honeywell satisfied the first precondition only re two (2) sentences of five

(5) pages did not satisfy the second precondition at all admitted as an

ostensibly authoritative ldquopamphletrdquo a private disputed contemporaneous

self-interested case-related creation of the crashed plane manufacturer

even introduced all of it including its expert Conclusions on the ultimate

issue as a trial exhibit and emphasized it twice in closing JA1582-1583

The General Assembly in sect801-4011 expressly forbidding even

admissible ldquoreliable authorityrdquo as a trial exhibit acknowledges the extra

18

impact - the undue emphasis - of an exhibit in the jury room atop testimony

in the courtroom The entire 5-page Mooney Report going to the jury for its

deliberations - and its speculations - must be presumed damaging

The Mooney Report went to the pivotal liability issue of the trial -

seemingly with NTSB siding with Honeywell In addition to numerous

inadmissible hearsay facts and other hearsay opinions it marqueed the

following unique hearsay expert opinion ldquoConclusions The IIC

[ldquoNTSBrdquo] Lycoming representative and myself did not find any

evidence that the aircraft engine was not capable of producing power

or that the aircraft was uncontrollable at the time of the accidentrdquo

Honeywell Exhibit 11 JA459-463 at JA463 (emphasis added)

That singular inadmissible hearsay opinion was a highly prejudicial

trial exhibit because (1) it reached the ultimate issue of the case product

defect and cause and (2) it is not in the NTSB report admitted in evidence

Further because it spoke on behalf of ldquoThe IIC [lsquoNTSBrsquo]rdquo it carried the

implied imprimatur of the NTSB the Federal agency responsible for official

investigation even though the NTSB report itself never stated those expert

Conclusions adverse to Administrators JA447-458

The Mooney Report was a unique piece of expert testimonial and

documentary evidence not merely some inconsequential cumulative facts

19

It buttressed Honeywellrsquos defense in general and its experts in particular

while it foreclosed Administratorsrsquo truth-seeking cross-examination of the

Mooney Reportrsquos author the IIC and the Lycoming representative

B THE TRIAL COURT CONDONING ldquoABSENCE OF OTHER INCIDENTSrdquo ARGUMENT IS PREJUDICIAL ERROR

ldquoPlaintiffsrsquo Motion in Limine X the Court GRANTS this Motionrdquo

112112 Order (emphasis in original) JA401 ldquo[A]ny evidence or argument

as to the lsquosafety historyrsquo of Honeywellrsquos autopilot is to be excludedrdquo Id

1 Public policy opposes Honeywellrsquos absence of other incidents argument

This Court long has prohibited all use of ldquoabsence of other incidentsrdquo

evidence ldquoIt is firmly established that evidence of the absence of other

injuries is not admissiblehellipwhen timely objection is maderdquo regardless

ldquowhether the action lies in negligence or implied warrantyrdquo Goins v

Wendyrsquos Intrsquol Inc 242 Va 333 335 (1991)(emphasis in original) Wood v

Woolfolk Properties Inc 258 Va 133 138 (1999) Sanitary Grocery Co

Inc v Steinbrecher 183 Va 495 499-500 (1945)

Virginiarsquos doctrine recognizes that other incidents may go

undiscovered unreported unrecorded misattributed unacknowledged

etc and thereby are problematical irrelevant prejudicial ldquoIndeed a

departure from the rule would interject evidence so problematical due to

20

the potential for lack of reporting and the variables of circumstances and

conditions that such evidence would have slight if any relevancy or

probative valuerdquo Goins 242 Va at 335-336 Wood 258 Va at 138

This Courtrsquos salutary rule against Defendants admitting ldquoabsence of

prior incidentsrdquo is the mirror-image of its rule against Plaintiffs admitting

ldquofact of prior incidentsrdquo as evidence substantively to prove or corroborate

negligence breach of warranty andor causation in a product liability case

Eg Stottlemyer v Ghramm 268 Va 7 12 (2004) Jones v Ford Motor

Co 263 Va 237 255 (2002) Thus the public policy ends of fundamental

fairness and consistency mandate that Defendants like Honeywell cannot

disprove breach andor causation by ldquoabsence of prior incidentsrdquo evidence

since Administrators cannot prove either with ldquofacts of prior incidentsrdquo

In addition to litigation practicalities and equities public policy in the

interest of safety also demands that Plaintiffs not have to disprove defense

claims of ldquoabsence of prior incidentsrdquo and that the public at large not have

to suffer multiple widely-known injuries and deaths under substantially

similar circumstances before a product unreasonably dangerous to normal

use in fact can be found dangerous There always must be a ldquofirst caserdquo

Plaintiffs having to disprove the manufacturersrsquo claimed negatives is too

expensive time-consuming and otherwise burdensome and possibly futile

21

and there is no minimum quantum of public casualties required to reach a

critical evidentiary mass to maintain a product defect case

When Defendants violate the rule against absence of other incidents

evidence Virginia law and public policy hold that the judge must take

corrective action such as a curative instruction instead of increasing the

prejudicial impact by condonation and apparent judicial approval Velocity

Express Mid-Atlantic v Hugen 266 Va 188 201 (2003) It is unsound

inequitable and insufficient that victim Plaintiffs by their mere protests be

expected to overcome or (worse) even be deemed to have waived the

prejudice of Defendants and the weight of judiciary

Although Honeywellrsquos ldquosafety historyrdquo re prior incidents properly was

excluded at pretrial see B(2) infra Honeywell patently violated the pretrial

Order Virginia law and public policy by arguing in closing five (5) times

about the total absence of prior incidents See B(3) infra That obvious

prejudice to Administrators was exacerbated irreparably when the judge

condoned it by overruling Administratorsrsquo objections and their request for

curative instruction and moreover by directing Honeywell to ldquoproceedrdquo -

which it did again and again and again and again See B(4) infra

22

2 Evidence and argument of Honeywellrsquos ldquosafety historyrdquo properly was excluded at pretrial

Pursuant to Virginia law Administrators moved in limine to exclude all

evidence and argument by Honeywell of its purported product safety

history JA56-57 Urging various federal decisions however Honeywell

vigorously opposed exclusion on brief and at pretrial hearing for example

Honeywell argued it ldquodefinitely relevantrdquo that the autopilot ldquohas over a 30-

year history out in the field hundreds of thousands of flight hours not one

incident reported with the type of allegation that theyrsquore claiming here that

debris got in here caused it to jam and caused a runaway trimrdquo JA66

The trial court correctly rejected Honeywellrsquos arguments ruled for

Administrators JA610 issued a letter opinion JA338 and entered

112112 Order JA401 Re ldquoPlaintiffsrsquo Motion in Limine X the Court

GRANTS this Motion and any evidence or argument as to the lsquosafety

historyrsquo of Honeywellrsquos autopilot is to be excludedrdquo Id (underlining added)

3 Honeywell violating Virginia law and pretrial Order in closing over objection improperly was condoned at trial

Despite clear Virginia law and explicit pretrial Order in closing

Honeywell improperly did exactly what it wanted to do anyway and told the

jury as a matter of fact that there was an absence of prior binding or

jamming of the gears in its autopilot due to foreign matter ldquoItrsquos never

23

happened before There is no evidence this has ever happened anywhere

any timerdquo JA1584 (underlining added)

Administrators objected to no avail The trial court ldquoOverruledrdquo and

directed Honeywell ldquoPlease proceedrdquo JA1584 (underlining added)

And proceed Honeywell did - with four (4) more violations of Virginia

law and pretrial Order Honeywell represented to the jury as additional fact

1 ldquoSafe design for 35 years and no complaintsrdquo JA1591 2 ldquoWe submit to you that withhellipthe lack of any prior evidence of a

problem that it was reasonably designed and perfectly safe and not unreasonably dangerous designrdquo JA1591-1592

3 ldquoIt canrsquot do that and has never happened beforerdquo JA1603 and 4 ldquoNo evidence of a prior problem at all everrdquo JA16036 Administrators delayed their rebuttal argument objected a second

time and requested a curative instruction7 JA1605-1607 But the trial court 6 At and after trial Honeywell claimed its closing arguments simply recount Administratorsrsquo experts not knowing of any other incidents First that is not what Honeywell stated in closing any of the five (5) times Its ldquoabsence of other incidentsrdquo arguments simply are not particularized to Administratorsrsquo expert lack of familiarity but rather are general sweeping all-encompassing proclamations Second even if Honeywellrsquos arguments were limited to Administratorsrsquo experts they still are not permissible They still refer to ldquoabsence of other incidentsrdquo in the context ldquoproofrdquo of no defect or causation Third Administratorsrsquo experts personally not being familiar with any ldquoother incidentsrdquo does not prove that there are no other incidents So Honeywell cannot claim the total absence of other incidents that it did

24

again condoned the Honeywellrsquos multiple violations ldquoI had previously told

the jury that what you-all tell them is not evidence and they should not

consider it as such wersquoll leave it at that Overrule the motionrdquo JA1607

(underlining added)

7 Administratorsrsquo timely objections and request for curative instruction preserved the issue Moving for an instruction or for a mistrial suffices Eg Cheng v Commonwealth 240 Va 26 38 (1990) ldquo[J]uries are presumed to follow prompt explicit and curative instructionrdquo Beavers v Commonwealth 245 Va 268 280 (1993) But the trial court refused to grant Administratorsrsquo motion for a curative instruction Moreover since the trial court repeatedly overruled Administratorsrsquo objections and their request for a curative instruction under the circumstances Administrators requesting a mistrial obviously would have been an unnecessary ldquovain and useless undertakingrdquo Virginia Passenger amp Power Co v Fisher 104 Va 121 129 (1905)(ldquosufficient reason we think for not applyinghellipfor action to redress the wrongs complained ofrdquo) The pretrial Motion in Limine X the arguments at 101112 hearing the pretrial Order the repeated trial objections and the request for curative instruction were amply sufficient to raise and preserve the issue Further Administratorsrsquo protests in closing about the falsity of Honeywellrsquos ldquosafety historyrdquo arguments are no substitute for curative instruction particularly not where the trial court ldquooverruledrdquo Administratorsrsquo objections and authorized Honeywell to ldquoproceedrdquo ie approved judicially Inequitably and insufficiently Administratorsrsquo protests simply left the jury to speculate which party was telling the truth about Honeywellrsquos claimed ldquosafety historyrdquo - with its nod likely going to Honeywell (since the judge twice overruled Administratorsrsquo objections refused curative instruction requested by Administrators and had excluded Administratorsrsquo would-be evidence in the first place)

25

Since the judge overruled Administratorsrsquo motion for curative

instruction his phrase ldquowhat you-all tell them is not evidencerdquo is not

curative That ruling is akin a sports referee seeing personal fouls and

instead of calling penalties on the offender simply telling the competitors to

ldquoplay onrdquo - thereby condoning the inappropriate harmful rough play

4 Honeywellrsquos violations and judgersquos condonations were prejudicial

Honeywell arguing its safety history - the absence of other incidents

over 35 years - five (5) distinct times in closing necessarily was prejudicial

ldquoSuch evidence introduces into the trial collateral issues remote to the

issue at trial which would tend to distract mislead and confuse the juryrdquo

Goins 242 Va at 335 Wood 258 Va at 138 (ldquowe are unable to say that it

did not confuse or mislead the juryrdquo)8

Further the ldquoprobably prejudicial impact of this argument is significant

because the improper argument focused on the central disputerdquo Velocity

Express 266 Va at 201 Moreover the judge repeatedly condoning

Honeywellrsquos five (5) violations magnifies the prejudice leading the jury to

8 Technically of course Honeywellrsquos closing argument was not ldquoevidencerdquo However the legal principle and public policy are the same re ldquoargumentrdquo

26

infer judicial approval of its impropriety - ultimate unfairness to

Administrators

ldquoThe circuit court refused to take any corrective action to eliminate the

adverse prejudicial effect on the jury of [Defendantrsquos] improper argument

Based on the record before the Court we conclude that the probability of

prejudice upon the juryhellipwas increased by the apparent approval given by

the circuit court because of that courtrsquos refusal to take corrective actionrdquo Id

(underlining added)(remand for new trial) Reid v Baumgardner 217 Va

769 774 (1977)(same)

C THE TRIAL COURT REFUSING TO GIVE ADMINISTRATORSrsquo CLEAR COMPLETE CORRECT MULTIPLE PROXIMATE CAUSE INSTRUCTION IS PREJUDICIAL ERROR

Virginiarsquos law of proximate cause provides

A proximate cause of an accident injury or damage is a cause which in natural and continuous sequence produces the accident injury or damage It is a cause without which the accident injury or damage would not have occurred There may be one or more proximate causes Proximate cause need not be established with such certainty so as to exclude every other possible condition

That is Administratorsrsquo Instruction 11 that was rejected JA352

1 Public policy demands the jury be instructed fully ldquoA litigant is entitled to jury instructions supporting his or her theory of

the case if sufficient evidence is introduced to support that theory and if the

27

instructions correctly state the lawrdquo Holmes v Levine 273 Va 150 159

Significantly the evidence introduced to support a requested instruction

must only be ldquomore than a scintillardquo and where ldquoa proffered instruction finds

any support in credible evidence its refusal is reversible errorrdquo Id

(emphasis added)

Although Holmes frames correct jury instructions as a litigant

entitlement as a matter of public policy they are a jury entitlement too As

triers of fact juror must understand their charge if they are unclear - even

in part on one pivotal point - then the wrong decision and unnecessary

injustice may result

Proximate cause often is a subtle confusing point among lawyers let

alone jurors Public policy requires that the jury be instructed clearly

completely and correctly on that particularly where as here the theory of

two (2) proximate causes is at the core

Administratorsrsquo Instruction 11 about ldquoone or more proximate causerdquo is

particularly important in light of there being no ldquoconcurrent negligencerdquo

instruction (because it was a ldquobreach of warrantyrdquo product liability case)

which would have indicated one or more proximate causes were possible

Holmes does not indicate whether a concurrent negligence instruction was

used in that case

28

Also Administratorsrsquo multiple-cause instruction is especially important

because contributory negligence assumption of risk superseding cause

and even product misuses were not issuesdefenses in this particular

ldquowarrantyrdquo case Thus even a jury finding there was some pilot error that

was a proximate cause would not require a defense verdict but rather still

would have required the jury to decide whether product defect was a

proximate cause too

Contrary to Virginia law and public policy Administratorsrsquo clear

complete correct jury instruction on proximate cause was rejected solely

because it was not the Model Jury Instruction see C(2) infra despite

there being ample credible evidence in the case as a whole to support two

proximate causes See C(3) infra The resulting prejudice was manifest

See C(4) infra

2 There may be more than one proximate cause and other proximate causes need not be excluded with certainty and Administratorsrsquo jury instruction so informed the jury but it was refused for not being a Model Jury Instruction

Virginia law holds there may be ldquomore than one proximate cause of

an eventrdquo Id9 Further Virginia law also holds it is not necessary to

9 In product liability cases under Virginia law the manufacturer is liable if its product simply is ldquoardquo proximate cause ldquoour law provides a means of holding a defendant liable if his or her negligence is one of multiple

29

establish ldquoproximate cause with such certainty as to exclude every other

possible conclusionrdquo White Consolidated Indus Inc v Swiney 237 Va

23 28 (1989)

Administratorsrsquo Instruction 11 stated re proximate causation

A proximate cause of an accident injury or damage is a cause which in natural and continuous sequence produces the accident injury or damage It is a cause without which the accident injury or damage would not have occurred There may be one or more proximate cause Proximate cause need not be established with such certainty so as to exclude every other possible condition

JA352 (emphasis added) Hence the two sentences underlined to which

Honeywell objected simply state Virginia law correctly

Honeywell objected to Administratorsrsquo multiple-cause instruction

solely on the basis that it was not the ldquoModel Jury Instructionrdquo and the trial

court improperly sustained on that ground JA1545-1547 contrary to

Virginia statute and public policy ldquoA proposed instruction submitted by a

party which constitutes an accurate statement of the law applicable to the

case shall not be withheld from the jury solely for its nonconformance with

the model jury instructionsrdquo Va Code sect801-3792

concurrent causes which proximately caused an injury when any of the multiple causes would have each have been a sufficient causerdquo Ford Motor Co v Boomer 285 Va 141 151 (2013)

30

3 Administrators are entitled to correct jury instructions supporting their theory regardless whether scintilla-plus of credible evidence is in their andor Honeywellrsquos case

In Holmes too there were two potential proximate causes of death Id

at 159 Despite its verdict form specifically stating the jury ldquodid not find that

[Defendantrsquos] failure was a proximate cause of Holmes deathrdquo Holmes

reversed and remanded for the trial court refusing Plaintiffrsquos following

proximate cause instruction which is virtually identical to Administratorsrsquo

first underlined sentence that was rejected ldquoThere may be more than one

proximate cause of an eventrdquo 273 Va at 157-160 (emphasis added)

In Holmes Plaintiffrsquos own evidence happened to show both potential

causes of death Id But it is not necessary that only Plaintiffrsquos case-in-chief

prove all proximate causes and Holmes did not so hold

Instead the jury fairly may find more than one proximate cause

based on the evidence as a whole Plaintiffrsquos evidence Defendantrsquos

evidence or both partiesrsquo evidence Thus although Administrators only

introduced evidence of product defect as proximate cause since Honeywell

introduced evidence of pilot error as proximate cause the jury was entitled

to consider and to find both pilot error and product defect as proximate

causes Lawlor v Commonwealth 285 Va 187 228-229 (2013)(ldquoWhen

reviewing a trial courtrsquos refusal to give a proffered jury instruction we view

31

the evidence in the light most favorable to the proponent of the

instructionrdquo) McClung v Commonwealth 215 Va 654 657 (1975)

In McClung the murder Defendant steadfastly maintained that she

was ldquonot guiltyrdquo by reason of self-defense but was convicted of murder in

the second degree Id at 654 However this Court reversed and remanded

in McClung when the trial court refused Defendantrsquos request for a

ldquovoluntary manslaughterrdquo instruction on the grounds that ldquothe [whole]

evidence was also sufficient to support an instruction on voluntary

manslaughterrdquo (if viewed most favorably to her) even though it concededly

was sufficient to support murder in the second degree (when viewed most

favorably for Commonwealth) Id at 656-657

Correspondingly since ldquomore than a scintillardquo of ldquocredible evidencerdquo

had been admitted to support two proximate causes Holmes 273 Va at

159 Administrators were entitled their requested instruction that ldquothere may

be one or more proximate causerdquo Administrators so argued to the judge in

support JA1545-1547 and addressed multiple causation theory in closing

TT 3222-3223

32

4 Refusal of Administratorsrsquo multiple-cause instruction is prejudicial

The trial court refused Administratorsrsquo multiple-cause instruction

contrary to statute That refusal possibly if not probably left the jury with the

misimpression that it must or at least could weigh and find only one

proximate cause particularly in light of there being no concurrent

negligence instruction The jury reasonably could have found pilot error and

product defect each were a proximate cause especially since contributory

negligence assumption of risk superseding cause and product misuses

were not issuesdefenses and the jury should have understood that

unequivocally by Court instruction (which Administrators could and would

have emphasized in closing)

D THE TRIAL COURT ADMITTING ABELrsquoS EXPERT ldquoCRITICAL WITNESSrdquo OPINIONS IS PREJUDICIAL ERROR

William Abel is a former flight instructor whom Honeywell lionized as

a ldquopretty critical witnessrdquo JA657 (emphasis added) He provided training to

Grana and opined on Honeywellrsquos direct examination

1 ldquoA [T]he fact that [Mr Grana] took off on this day makes - makes me have some concerns about the judgment taking off into conditions on the weather that - that was reported to merdquo JA1350 (emphasis added)

2 ldquoQ So with respect to judgment do you believe that Mr Grana

exercised good judgment based on your understanding of

33

his qualifications and training in departing into 800-foot overcast ceiling on the day of the accident

A Based on the - all the flying Irsquove done with Joe [Grana] and

the conversations that we had I had concerns about why he would take off into those conditions on that dayrdquo JA1351-1352

3 ldquoQ With respect to Mr Granarsquos lack of experience in the

airplane in actual IFR conditions and the judgment that he used in taking off that day in your opinion was that a cause or contributing cause of this accident

A I donrsquot know what happened in that airplane In my opinion

it wasnrsquot the best of judgment to take off in those conditionsrdquo JA1357 (emphasis added)

But Abel had no ldquoperson knowledgerdquo of the crash the takeoff or even the

airport weather conditions JA1334-35 his weather report was from the

internet - 3 days before the crash Id

Administrators objected to Abelrsquos testimony as lacking sufficient

foundation improper opinion testimony speculative based on hearsay

irrelevant and invading the juryrsquos province JA723-741 The trial court

overruled all objections Id

1 Public policy opposes Abelrsquos opinions

Acceptance and rejection of expert testimony is a quintessential

ldquogatekeeperrdquo function of the courts Given the unique elevated status of

34

experts particularly to jurors public policy mandates would-be experts be

scrutinized closely

A witness either is qualified as an expert or not there is no half-

measure There are no ldquoquasi-expertsrdquo under Virginia law

As a corollary courtsrsquo expert ldquogatekeeperrdquo function necessarily

extends to precluding witnesses not deemed to be experts from rendering

opinions that are the province of experts As a matter of public policy a

witness should not be able to introduce de facto expert opinion through the

back door as a layman when unauthorized to admit it through the front door

as an expert

Honeywellrsquos ldquopretty critical witnessrdquo JA657 William Abel never was

qualified as an expert by the judge See D(2) infra Consequently all of his

harmful de facto expert opinions are inadmissible for his lack of

qualification as well as for multiple other independent grounds see D(3-

6) infra and their admission was highly prejudicial to Administrators

particularly as marqueed by Honeywell repeatedly by videotape excerpts

2 Abelrsquos opinions are unfounded and improper

Whether Honeywell claims Abel to be an expert witness or admits

him to be a lay witness his testimony is clearly inadmissible

35

a It is unfounded as an expert

Abel never was accepted by the Court as an expert The judge stated

ldquoAbel is a quasi-expert and wersquove made that quasi-determinationrdquo TT 349

(emphasis added) - a netherworld status and an incomplete acceptance

unrecognized in Virginia law

At pretrial hearing Honeywell conceded that Abel was ldquonot a retained

expertrdquo TT 462 and was a mere ldquopercipientrdquo with ldquopercipient observationsrdquo

of fact ldquobased on his perceptionsrdquo TT467-468 and 478-479 except

possibly for his ldquospatial disorientationrdquo opinions TT 468-470 and that ldquo99

percent of what he says is factualrdquo JA671 Moreover even if Abel arguably

could be qualified as an expert on a matter (which is disputed) an area of

expertise never was identified for him remained open to speculation by the

jury and ultimately would limit the nature topic and scope of his opinions

Combs v Norfolk and Western Ry Co 256 Va 490 496 (1998)

Further there was no showing that Abel did or even could consider

all of the ldquovariablesrdquo as foundation for his opinions Cf Keesee v Donigan

259 Va 157 161-162 (2000)(ldquorequirement that the evidence be based on

an adequate foundationrdquo) Hence Abel could not opine as an expert

On retrial however Honeywell may try to qualify Abel as an expert

and to elicit some of the same testimony from him So alternatively this

36

Court still should scrutinize him and his ldquocredentialsrdquo as an expert under

D(3-5) infra and bar his opinion testimony on retrial Burns supra

b It is improper as a layman

ldquoOpinion 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 witnessrsquo perceptionsrdquo Virginia Rule

of Evidence 2701 (emphasis added) Cf Doe v Dewhirst 240 Va 266

270 (1990)(ldquoIn order to be competent to testify on the subject the witness

must have had a reasonable opportunity to judgerdquo and even ldquomomentary

observationsrdquo at impact and ldquolater glimpserdquo post-impact ldquodid not

demonstrate that he had a reasonable opportunity to form an opinionrdquo)

Since Abel has no ldquopersonal knowledgerdquo of the crash the take-off the

weather or anything as a layman he cannot opine about any of it

including particularly without limitation ldquojudgmentrdquo and ldquocausationrdquo

3 Abelrsquos opinions are speculative

Despite his repeated ldquoconcernsrdquo bottom line is that when Honeywell

asked his opinion about ldquocauserdquo Abel had none JA677 he admitted ldquoI

donrsquot know what happened up thererdquo JA1357 (emphasis added) That core

concession renders all other testimony by Abel speculative and

inadmissible as such even if he were qualified as an expert

37

For example in Pettus v Gottfried 269 Va 69 73 (2005)(reversed

and remanded for retrial) Defendantrsquos expert had ldquonordquo opinion re cause of

death yet gratuitously opined for the defense further ldquothatrsquos the reason why

many times we feel that unless an autopsy is done itrsquos really difficult to

know what may have happenedrdquo This Court held that gratuitous opinion

was ldquospeculative in naturerdquo Id at 78

Further Abel expressing only ldquoconcernsrdquo about Granarsquos ldquojudgmentrdquo is

so indefinite as to be impermissibly speculative too JA1349-1352 And

Abel opining ldquoit wasnrsquot the best judgmentrdquo still is indefinite JA1357

4 Abelrsquos opinions are hearsay

Abel testified based on - indeed testified about - hearsay weather

conditions on Honeywellrsquos direct examination Even an expert attesting

hearsay facts on direct examination is inadmissible and reversible error

Commonwealth v Wynn 277 Va 92 100 (2009)

5 Abelrsquos opinions are irrelevant

Abel only expressed general ldquoconcerns about the judgment taking off

into conditions on the weatherrdquo and that it was not ldquobest judgmentrdquo

JA1349-1352 and 1357 Abel did not opine at all about what if anything

Grana supposedly did or did not do while actually flying to cause or

38

contribute to causing the crash ldquoI donrsquot know what happened in that

airplanerdquo JA1357 (emphasis added)

Whether or not Grana showed ldquogood judgmentrdquo let alone ldquogreat

judgmentrdquo in deciding to fly in weather conditions (never seen by Abel)

however simply is not relevant Re Grana the sole causation issue is

whether once flying any (in)action by Grana proximately caused the crash

- not whether his decision to fly in the first place was ldquogreatrdquo or even ldquogoodrdquo

This Court countenancing Abelrsquos testimony as relevant opens the

floodgates to like testimony in garden variety motor vehicle accident

(ldquoMVArdquo) and other cases In any MVA involving inclement weather - or

latewee hours etc - expert andor lay witnesses could opine ldquoconcernsrdquo

about motoristsrsquo threshold judgment in deciding to drive in the weather at

the hour etc as ostensibly relevant to the actual cause of the MVA literally

minutes and miles down the road

6 Abelrsquos opinions invade the juryrsquos province

Abel summarily opined ldquoconcerns about the judgmentrdquo and ldquoit wasnrsquot

the best judgmentrdquo JA1349-1352 and 1357 While that testimony is

indefinite unto speculative it also conclusorily and impermissibly goes to

the ultimate issue to be decided by the jury alone ie whether Granarsquos

conduct was a cause of the crash

39

7 Abelrsquos opinions are prejudicial

As intended by Honeywell the opinions of its ldquopretty critical witnessrdquo

Abel sullied Grana Abelrsquos repeated ldquoconcernsrdquo about (bad) ldquojudgmentrdquo

bespoke incompetence or at least carelessness if not recklessness -

despite contributory negligence assumption of risk and product misuse not

being issues - indicating predicate ldquofaultrdquo and inviting speculation

assumption andor presumption of Granarsquos (continuing) incompetence

andor wrongdoing while flying

Moreover Honeywell maximized the prejudicial impact of ldquopretty

critical witnessrdquo Abelrsquos repeated ldquoconcernsrdquo about Granarsquos ldquojudgmentrdquo at

four (4) different junctures during trial

1 Opening statement [by videotape] JA792

2 Direct examination [by videotape] JA1352 and 1354

3 Expert cross-examination [by reference] JA1645 and

4 Closing argument [by videotape] JA1594-1595

Since Abel testified by videotape deposition for maximum impact

Honeywell played videotape excerpts focusing on his ldquoconcernsrdquo about

ldquojudgmentrdquo during opening JA792 and replayed in closing JA1594-1595

With synergistic effect Honeywell also coupled its broadcasts of

ldquopretty critical witnessrdquo Abelrsquos testimony with its broadcasts of similar

40

negative opinionfeelings testimony of another plane co-owner Robert

Norman See E infra As intended the reinforcing testimony of its co-

owner duo was very damaging to Administrators

E THE TRIAL COURT ADMITTING NORMANrsquoS LAY OPINIONS AND HEARSAY IS PREJUDICIAL ERROR

Unlike Grana Robert Norman is a Mooney plane co-owner who was

unlicensed unendorsed and inexperienced to fly the Mooney solo in any

conditions let alone under Visual Flight Rules and Instrument

Meteorological Conditions like Grana JA1381-1383 and 1394 Moreover

Norman never used Honeywellrsquos autopilot in question to assist with turning

TT 2364 and the Mooney indisputably was turning after takeoff when

Grana used it JA991-992

Nonetheless on Honeywellrsquos direct examination Norman as layman

repeatedly was allowed to share his subjective opinions about the Mooney

1 ldquoA I still to this day am afraid of that Mooney 2 A I have a healthy fear of [the Mooney] 3 A It was not something that I would ever want to fly solo until I

could do that instantlyhellipThe Mooney there are a thousand different mistakes you could make that would lead you to have something bad happen

4 A I was told yoursquod have to be retarded to crash a [Cessna]

Skyhawk The Mooney totally opposite The Mooney

41

there are a thousand different mistakes you can make that would lead you to have something bad happenrdquo

JA380-382 (emphasis added) Norman also attested his subjective

opinions about his operation of the Mooney under supervision and different

circumstances than Grana including that the autopilot seemed to work

alright JA1383-1389 and attested hearsay about what Abel ldquomeantrdquo and

what other Mooney co-owners wanted re Grana flying JA1405-1409

1 Public policy opposes Normanrsquos lay opinions As indicated regarding William Abel see D(1) supra a classic

ldquogatekeeperrdquo function of the courts is precluding lay witnesses from

foraying into de facto expert opinion Of course lay testimony also is

inadmissible independently for lack of foundation irrelevance

speculativeness and hearsay

The testimony of Robert Norman which dovetailed with that of

William Abel as a matter of content and presentation by Honeywell

suffered from all those unfair ills See E(2-5) infra Their effects were

prejudicial particularly with the repeated combined videotape excerpts of

Abel and Norman see E(6) and public policy dictates such multi-prong

injustice not be countenanced

42

2 Normanrsquos lay opinions are unfounded

Lacking qualifications Norman testified as a layman But his

testimony about fearing the Mooney plane JA1380-1381 about the

ldquothousand different mistakes you can makerdquo with it JA1381-1382 and its

operation were unfounded JA1405-1409

His testimony about operating the Mooney plane under different

circumstances than Grana also was unfounded and impermissible (even for

an expert) because Norman did not know and thereby could not and did

not consider all of the variables JA1334-1335 Administrators repeatedly

objected but were overruled JA756-783

3 Normanrsquos lay opinions were irrelevant

Obviously Normanrsquos lay personal fears about the Mooney including

the ldquothousandrdquo bad mistakes a pilot could make with it are not relevant to

the issues whether Grana andor product defect was a cause of the crash

Likewise Normanrsquos opinions about how Honeywellrsquos autopilot operated

under limited different circumstances about what Abel meant andor about

what other co-owners intended re Grana simply are not relevant either

Administrators objected on grounds of relevance JA756-760 But the

judge overruled Id

43

4 Normanrsquos lay opinions were speculative

Norman opining about how the Mooney plane operated in his limited

experience under circumstances that were not substantially similar also

were speculative JA1383-1389 Administrators so objected and were

overruled JA758-760

5 Normanrsquos testimony is hearsay

Normanrsquos opinions about what Abel meant and what various partners

supposedly stated and agreed about Grana flying are hearsay JA1383-

1389 Wright v Kaye 267 Va 510 530 (2004)(ldquostate of mindrdquo statements

were inadmissible hearsay) Administrators objected and the judge

overruled JA769-773

6 Normanrsquos lay opinions and hearsay are prejudicial

Normanrsquos opinions unfairly indicated there was no defect with

Honeywellrsquos autopilot Yet he lacked sufficient expertise had limited

exposure to the Mooney plane and used it under different circumstances

Normanrsquos opinions repeatedly suggested that pilot mistake was the

cause of something bad happening ie the crash They did so in

heightened unto exaggerated emotional terms ie ldquoafraidrdquo ldquofearrdquo and a

ldquothousand different mistakesrdquo

44

As with Abelrsquos testimony Honeywell maximized the prejudicial impact

of Normanrsquos subjective lay impressions at three (3) trial junctures

1 Direct examination [by videotape] JA1380-1389

2 Closing argument [by videotape] JA1593-1594 and

3 Closing argument [by reference] JA1598

Since Norman too testified by videotape deposition for maximum impact

Honeywell replayed Normanrsquos most inflammatory opinions immediately

before it played Abelrsquos videotape excerpts in closing JA1593-1595

CONCLUSION

For the reasons set forth above consonant with sound public policy

VTLA urges the Court to reaffirm and apply Virginiarsquos longstanding

doctrines on reliable authority prior incidents proximate causation and lay

and expert testimony and opinions and reverse the Circuit Courtrsquos

judgments and remand for new trials on all issues

Respectfully submitted s Avery T Waterman Jr AVERY T WATERMAN JR ESQ

VSB 27118 Patten Wornom Hatten amp Diamonstein LC 12350 Jefferson Avenue Suite 300 Newport News Virginia 23602 Telephone (757) 223-4567 Facsimile (757) 223-4499 Awatermanpwhdcom Counsel for Amicus Curiae

45

CERTIFICATE OF SERVICE

I hereby certify that on January 22 2014 fifteen copies of the above

Brief Amicus Curiae have been filed via USPS Certified Mail to the clerkrsquos

office This same date three copies of the same have been sent via USPS

First Class Mail to the following counsel

Counsel for Appellants

Roger T Creager Esq VSB No 21906 The Creager Law Firm PLLC 1500 Forest Avenue Suite 120 Richmond VA 23229 Telephone (804) 747-6444 Facsimile (804) 747-6477 rcreagercreagerlawfirmcom John C Shea Esq VSB No 17436 Mark S Lindensmith Esq VSB No 20452 Marks amp Harrison PC 1500 Forest Avenue Richmond VA 23229 Telephone (804) 282-0999 Facsimile (804) 288-1853 jsheamarksandharrisoncom mlindensmithmarksandharrisoncom

46

Anita Porte Robb Esq Admitted pro hac vice in trial court Gary C Robb Esq Admitted pro hac vice in trial court Robb amp Robb LLC One Kansas City Place - Suite 3900 1200 Main Street Kansas City MO 64105 Telephone (816) 474-8080 Facsimile (816) 474-8081 arobbrobbrobbcom grobbrobbrobbcom Counsel for Appellee Patrick R Hanes Esq VSB No 38148 Turner A Broughton Esq VSB No 42627 Joseph R Pope Esq VSB No 71371 WF Drewry Gallalee Esq Harold E Johnson Esq VSB No 65591 Williams Mullen Clark amp Dobbins Williams Mullen Center 200 South 10th Street PO Box 1320 Richmond VA 23218-1320 Telephone (804) 420-6939 Facsimile (804) 420-6507 phaneswilliamsmullencom tbroughtonwilliamsmullencom jpopewilliamsmullencom dgallaleewilliamsmullencom hjohnsonwilliamsmullencom

47

Michael McQuillen Esq Admitted pro hac vice Austin W Bartlett Esq Pending pro hac vice admission John M Kelly Esq Admitted pro hac vice Nicole L Simmons Esq Admitted pro hac vice Adler Murphy amp McQuillen LLP 20 S Clark Suite 2500 Chicago IL 60603 Telephone (312) 345-0700 Facsimile (312) 345-5860 mmcquillenamm-lawcom abartlettamm-lawcom jkellyamm-lawcom nsimmonsamm-lawcom This same day an electronic version was also sent via email to the Clerkrsquos Office of the Supreme Court of Virginia and to all counsel listed above s Avery T Waterman Jr Of Counsel

48

ADDENDUM

CREAGER l t I It ~I I Ll (

1500 IORFST AVFNUF bull SUlTf 120 bull itl(IfMUNU VlJltJlNIJi 23229 bull WORK (1104) 74764middot1middot bull FAx (804) 747middot6471 bull WWWCRfJilifRIJiwFIRMCM

January 2 J 2014

Bv E-Mail and Fax Avery T Waterman Jr Esquire Patten Wornom Hatten amp Diamonstein LC Suite 300 12350 Jefferson Avenue Newport News Virginia 23602 (Fax (757) 223-4499)

Re Michelle C Harman Administratrix of the Estate of Joseph A Grana III Deceased et al v Honeywell International Inc Record Number 130627

Dear Mr Waterman

This confirms that I as and on behalf of counsel for the Appellants hereby consent to your filing in the Supreme Court of Virginia of a Brief Amicus Curiae of the Virginia Trial Lawyers Association in the above-styled matter

cc Counsel for Appellees Patrick R llanes Esquire Turner A Broughton Esquire Joseph R Pope Esquire WILLIAMS MULLEN PO Box 1320 200 South 10th Street Suite 1600 (23219) Richmond VA 232 J8-1320 (By Fax 804-420-6507)

Michael G McQuillen Esquire Austin W Bartlett Esquire John M Kelly Esquire Nicole L Simmons Esquire ADLER MUJgtRI-)Y amp McQUILLEN LLP 20 South Clark Street Suite 2500 Chicago I L 60603 (By Fax to 312-345-9860)

WILLIAMS MULLEN

Direct Dial 8044206455 phancswilliarnsrnullencom

January 222014

VIA ELECTRONIC MAIL

Avery T Sandy Waterman Jr Esq Patten Wornom Hatten amp Diamonstcin LC 12350 Jefferson Avenue Suite 300 Newport News VA 23602

Re Michelle C Harman etc v Honeywell International Inc Record No 130627

Dear Sandy

As and on behalf of counsel for Appellee I consent to the filing in the Supreme Court of Virginia ofa Brief Amicus Curiae of the Virginia Trial Lawyers Association in the above-styled matter

Please let me know if you have any questions

~~TYO ( ~u~__V~trvJ Fmiddot v ___

Patrick R Hanes

cc Turner Broughton Esq (via e-mail) Roger T Creager Esq (via e-mail) Michael McQuillen Esq (via e-mail)

NORTH CAROLINA VIRGINIA WASHINGTON DC

200 50mh 1O~ Srrcee Suire 1600 (23219) PO Box 1320 Richmond VA 23218-1320 Tel 8044206000 Fax 8044206507 INWWwilliamsmuJJencom

Jeanne Vareo

From Austin W Bartlett ltabartlettAMM-LAWcomgt Sent Tuesday January 21 2014 506 PM To Jeanne Varco Cc Michael G Mcquillen John M Kelly Broughton Turner

(tbroughtonwilliamsmulencom) Hanes Patrick R (phaneswilliamsmullencom) rcreagercreagerlawfirmcom jsheamarksandharrisoncom arobbrobbrobbcom grobbrobbrobbcom

Subject FW Harman v Honeywell cw Bemberis v Honeywell - 12114 Email to P Hanes and M Mcquillen

Attachments img-121160142-000lpdf

Importance High

Hi Jeanne and Avery

On behalf of Mike McQuillen this will confinn that we consent to your filing of an amicus brief

Best regards Austin

Austin W Bartlett ADLER MCRPHY amp McQUILLEN LLP

20 S Clark Street Suite 2500 Chicago Illinois 60603 Main (312) 345-0700 Direct (312) 422-5798 Facsimile (312) 345-9860

The ilformatioll IXJlltained in thiJ electronic mail message is conjidential illformation intended onlY for the use ofthe individual or enti) named aboIe and may be protected ~Y the attornflY client andor attorney work prodllct pnmiddotvileges Ifthe reader qfthis meJJage iJ not the intended redpient or the emplqyee or agent reJpoflJible to deliver to the itltended redpientyou are hereby notified that atry disJemination diJtriblltioll or copying qthiJ (omtlJlmimtioll is stndIY prohibited f)Oll have meilJed this communication in error pleaJe immediatelY not~jj us and delete the miginal menage

From Jeanne Varco [mailtojeannePWHDcom] Sent Tuesday January 21 2014 305 PM To phaneswilliamsmullenscom Michael G Mcquillen tbroughtonwilliamsmullencom jpopewilliamsmullencom Cc jsheamarksandharrisoncom arobbrobbrobbcom grobbrobbrobbcom rcreagercreagerlawfirmcom Subject Harman v Honeywell cw Bemberis v Honeywell - 12114 Email to P Hanes and M McQuillen Importance High

This email was sent to you on behalf of Avery T Waterman Jr Esq

Jeanne M Varco Legal Assistant to Avery T WatermanJr Esq Patten W ornom Hatten amp Diamonstein LC

1

THE LEX GROUP 1108 East Main Street Suite 1400 Richmond VA 23219 (804) 644-4419 (800) 856-4419 Fax (804) 644-3660 wwwthelexgroupcom

In The

Supreme Court of Virginia

______________________

RECORD NO 130691 ______________________

BYRD THEATRE FOUNDATION (THE)

Appellant

v

DAVID M BARNETT

Appellee

_________________________

BRIEF OF AMICUS CURIAE THE VIRGINIA TRIAL LAWYERS ASSOCIATION

IN SUPPORT OF APPELLEE _________________________

Nathan J D Veldhuis (VSB No 68746) Gobind Sethi (VSB No 72266) CHAIKIN SHERMAN Samantha K Sledd (VSB No 82656) CAMMARATA AND SIEGEL PC HALL amp SETHI PLC 1232 17th Street NW 12120 Sunset Hills Road Suite 150 Washington DC 20036 Reston Virginia 20190 (202) 659-8600 (Telephone) (703) 925-9500 (Telephone) (202) 659-8680 (Facsimile) (703) 925-9166 (Facsimile) nathandc-lawnet gsethihallandsethicom Counsel for Amicus Curiae Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ii A STATEMENT OF AMICUS INTEREST 1

B STATEMENT OF THE CASE AND MATERIAL

PROCEEDINGS 1

C STATEMENT OF FACTS 2

D ASSIGNMENTS OF ERROR 2

E ARGUMENT 2 I The Trial Court Was Correct In Ruling That Barnett

Was Not A Beneficiary Of The Foundation At The Time He Sustained His Injury 2 A Standard of Review 3

B Applicable Law 4

II Knowledge Of The Defective Walkboard Should Be

Imputed To The Foundation Even If Such Knowledge Was First Acquired By An Individual Before He or She Became An Agent Of The Foundation 12

A Standard of Review 12

B Applicable Law 13

F CONCLUSION 20

G CERTIFICATE 23

ii

TABLE OF AUTHORITIES

Page(s)

CASES Bodenheimer v Confederate Memorial Assrsquon

68 F2d 507 (4th Cir 1934) 8 Cabin Branch Min Co v Hutchinsonrsquos Admrsquox

112 Va 37 (1911) 14 15 Diaz v Wash State Migrant Council

265 P3d 956 (Wash Ct App 2011) 17 Egerton v RE Lee Memorial Church

385 F2d 381 (4th Cir 1968) 8 Goodstein v Milmo Realty Corp

8 NYS2d 243 (NY City Ct 1938) 16 Honsinger v Egan

266 Va 269 (2003) 13 Ola v YMCA of S Hampton Rds Inc

270 Va 550 (2005) passim Smith v Kim

277 Va 486 (2009) 13 The Distilled Spirits

78 US 356 (1871) 16 Thrasher v Winand

239 Va 338 (1990) 5 9 Wintergreen Partners Inc v McGuirewoods LLP

280 Va 374 (2010) 13

iii

OTHER AUTHORITIES Restatement (Second) of Agency sect 276 (1958) 16 18 Restatement (Third) of Agency sect 503 (2006) 17 18

1

A STATEMENT OF AMICUS INTEREST1

The Virginia Trial Lawyers (ldquoVTLArdquo) is an organization of

over twenty-five hundred Virginia attorneys dedicated to

promoting professionalism within the trial bar enhancing the

competence of trial lawyers protecting and preserving individual

liberties and access to justice and supporting an efficient and

constitutionally sound judicial system

This appeal presents issues that are important to Virginia

law and trial practice in Virginia Courts It concerns and

implicates not only the rights of the parties to this case but also

the rights of litigants and the nature of trial practice throughout

the Commonwealth

B STATEMENT OF THE CASE AND MATERIAL PROCEEDINGS

The VTLA adopts Appellee David M Barnettrsquos Statement of

the Case

1 The VTLA affirms that no counsel for a party authored this brief in whole or in part and that no person other than amicus its members and its counsel made a monetary contribution to its preparation or submission However counsel for Appellee is a member of the VTLA

2

C STATEMENT OF FACTS

The VTLA adopts Appellee Barnettrsquos Statement of Facts

D ASSIGNMENTS OF ERROR

I The trial court erred in denying the Foundationrsquos Plea of Charitable Immunity (JA 9 13-34 50-62 68-69 351-409 410-413 1458-60 1603 1682-86 1702 1704-1705)

II The trial court erred in refusing to instruct the jury on notice to a corporation (JA 1229-44 1272-98 1399 1461-66 1577-97 1682-86 1702 1704-1705)

E ARGUMENT

I The Trial Court Was Correct In Ruling That Barnett Was Not A Beneficiary Of The Foundation At The Time He Sustained His Injury

The trial court correctly held that Mr Barnett was not a

beneficiary of The Byrd Theatre Foundation (ldquoFoundationrdquo) at the

time of his injury When Mr Barnett was injured falling from a

walkboard he was performing organ repair at the request of

Robert Gulledge an agent of the Foundation At that time the

Foundation did not employ an organ repairperson Mr Barnett

was an organ enthusiast with extensive knowledge of how organs

function Mr Gulledge solicited Mr Barnett a Foundation

volunteer to perform the repairs Mr Barnett agreed

3

When Mr Barnett brought suit against the Foundation the

latter asserted a plea of sovereign immunity In passing on the

plea the trial court held ldquo[t]he fact that plaintiff likes and wanted

to do what he was doing by providing a service of repair to the

charity and received a lsquobenefitrsquo thereby is not the same as or

consistent with the [Foundationrsquos] extending its charitable

beneficence [to Mr Barnett] according to its charitable

undertakingrdquo (JA 411) The trial court denied the Foundationrsquos

plea and the Foundation has appealed that ruling to this Court

(JA 410-413 1682-1686)

The VTLA writes on brief amicus curiae because this case

presents an important opportunity for this Court to articulate the

bounds of the doctrine of charitable immunity

A Standard of Review The VTLA agrees with and incorporates herein by reference

Appellee Barnettrsquos analyses of the standard of review

4

B Applicable Law

In Ola v YMCA of S Hampton Rds Inc this Court set forth

the test assessing the availability of charitable immunity as

follows

To establish charitable immunity as a bar to tort liability an entity must prove at least two distinct elements The absence of either element makes the bar of charitable immunity inapplicable First the entity must show it is organized with a recognized charitable purpose and that it operates in fact in accord with that purpose lsquoIn conducting this inquiry Virginia courts apply a two-part test examining (1) whether the organizationrsquos articles of incorporation have a charitable or eleemosynary purpose and (2) whether the organization is in fact operated consistent with that purpose rsquo

Second assuming the entity has met the foregoing test it must then establish that the tort claimant was a beneficiary of the charitable institution at the time of the alleged injury

270 Va 550 556 (2005) (internal citations omitted) ldquo[Charitable] immunity does not extend however to

invitees or strangers having no beneficial relationship to the

charitable institutionrdquo Id ldquo[S]uits by invitees or strangers for

negligence will not be barred by the doctrine of charitable

immunityrdquo Id at 561

5

In Ola the minor plaintiff was sexually assaulted shortly

after she used the ldquoYMCArsquos swimming pool and was using the

bathroomrdquo Id at 555 This Court held that because she was a

beneficiary of the YMCA a charitable entity any claim against the

YMCA for injuries was barred by the doctrine of charitable

immunity Specifically it held that because she was a beneficiary

of the YMCA at the time of the alleged injury her claims were

barred Id at 565

The central inquiry in this context is ldquowhether the plaintiff

was at the time of his injury accepting the benefits of the

charitable activities of the defendant a charitable organization

thus giving rise to the defense of charitable immunityrdquo Thrasher

v Winand 239 Va 338 339 (1990) (emphasis added)2

Mr Barnett stipulated that the Foundation is a charity The

Foundation therefore must establish that Mr Barnett was

ldquoaccepting the benefits of the charitable activities of the

[Foundation]rdquo at the time of his injury Id In Ola and Thrasher 2 This Court has also cautioned charitable organizations that ldquoit is often prudent and an exercise of fiduciary responsibility for a charitable entity to carry liability insurance for protection in the appropriate circumstancerdquo Ola 270 Va at 561

6

this Court makes it clear that ldquoat the time of the injuryrdquo for

purposes of the case at bar means while Mr Barnett was a

volunteer at the Theatre for the purposes of repairing the organ

on May 23 2009

The analysis of whether Mr Barnett was a beneficiary of the

Foundation at the time he was injured begins with the nature of

the Foundationrsquos charitable purpose The Foundation maintains

the following as its charitable purposes

1 ldquoTo cultivate promote and develop the publicrsquos

knowledge awareness understanding and

appreciation of the performing artsrdquo (JA 249)

2 ldquo[O]wn and [r]estore The Byrd Theatre as a grand

movie palace and community resourcerdquo (JA 251)

3 ldquoRestoration of the 1928 Byrd Theatre to its former

grandeurrdquo including ldquomajor historical renovation of the

organrdquo (JA 266)

4 ldquo[R]estore and preserve the Byrd Theatrerdquo (JA 101)

The Foundation argues that Mr Barnett ldquosquarely fits into

the class of people who benefit from the Foundationrsquos charitable

7

purposerdquo and therefore ldquoit cannot be concluded from all of the

evidence that Mr Barnett received absolutely nothing of value

from the Foundationrsquos charitable workrdquo (Br of Appellant 31-32)

In support of this contention the Foundation points to the

fact that Mr Barnett attends the Theatre twice yearly supports

the Theatre and has a love of theatre organs The Foundation

concludes these facts bring Mr Barnett in alignment with the

Foundationrsquos purpose Ola is instructive in demonstrating why

that is not so at the time Mr Barnett was injured

There is no dispute that Mr Barnett was an organ enthusiast

and a supporter of the Theatre who derived benefits from the

Theatre when he attended events hosted by the Theatre

Similarly the plaintiff in Ola was a beneficiary of the YMCArsquos

charitable purpose when she went swimming in its pool In

support of its holding the Ola Court cited two cases from the

Fourth Circuit Court of Appeals in which individuals entering a

historic church to view stained glass and visiting a charitable

entity for purposes of admiring paintings and other exhibits were

deemed beneficiaries of those charities Ola 270 Va at 564

8

(citing Egerton v RE Lee Memorial Church 385 F2d 381 384

(4th Cir 1968) and Bodenheimer v Confederate Memorial Assrsquon

68 F2d 507 509 (4th Cir 1934))

Applying these principles to the instant case Mr Barnettrsquos

presence at the Theatre on the day he was injured is

distinguishable in a conclusive way Cases like Ola Egerton and

Bodenheimer involve plaintiffs deriving a direct benefit from the

charities they were attending at the time they were injured In

contrast Mr Barnett was not watching one of the Theatrersquos

movies or listening to organ music when he fell Rather he was

there to fix the organ He was volunteering Indeed he had

been asked by Robert Gulledge the Foundationrsquos organ

restoration subcommittee chairman to conduct a one-time repair

that was even outside the scope of Mr Barnettrsquos advisory role on

the same subcommittee Mr Barnett was on the organ

restoration subcommittee and it was in that capacity that Mr

Gulledge asked him to fix the organ

In order for the charitable immunity test in Ola to be met in

the case at bar Mr Barnett must have been deriving some

9

benefit related to the charitable purpose of the Foundation at the

time of his injury 270 Va at 563 The facts in Ola are not

analogous to the facts in the case at bar If the plaintiff in Ola

had been a pool aficionado who at the request of the Director

had volunteered to fix some cracks in the pool at the YMCA at the

time she was injured the case would have presented a scenario

much like the one in this case

The fact that the plaintiff in Ola had swum in the pool at the

YMCA before the day she was injured and intended to swim there

after the day she was injured is not the question The question

is whether she was enjoying the YMCArsquos facilities at the time she

was injured Similarly the inquiry here is not whether Mr

Barnett had ever been a beneficiary of the Foundation or that he

would again at some time in the future it is only for purposes of

this analysis whether he was deriving a benefit from the

Foundation at the time he was injured Any other conclusion

would require speculation about ldquoindirect benefitsrdquo which are ldquotoo

remote and speculativerdquo to give rise to the defense of charitable

immunity Thrasher 239 Va at 342

10

The fact that Mr Barnett is an organ enthusiast and owner

who has access to the Theatre organ by being on the organ

subcommittee and received gratification and ldquoeducationrdquo when

he has worked on the organ does not make him a beneficiary3

Certainly one can imagine that a professional organ repairperson

engaged to work on these types of organs has an affinity for

theater organs and receives satisfaction from their efforts It also

can be presumed they receive the same type of ldquoeducationrdquo each

of us receives daily in our every endeavor in activities of daily

living

Mr Barnett received no benefit of any value from his repair

of the organ in response to Mr Gulledgersquos request He received

no payment from the Foundationrsquos only charitable activity of 3 While in this particular case Mr Barnett was a supporter of the charity the result should be the same even if he were not For example if the Theatrersquos heating system needed to be repaired and Mr Gulledgersquos neighbor worked on heating systems for a living but cared nothing about the Theatre and Mr Gulledge asked his neighbor to work on the Theatrersquos system as a favor the neighbor would be no less entitled than Mr Barnett to the same ability to recover if he were injured by the negligence of the Theatre It would be extraordinarily difficult as a practical matter for trial courts to attempt to draw distinctions between different classes of volunteers at charities for purposes of charitable immunity analyses

11

fundraising The only thing that made Mr Barnett ldquodifferentrdquo is

that his motivation was altruistic because he made a contribution

for the benefit of the Foundation

When Mr Barnett was injured he was not a participant or

attendee at any Foundation sponsored program or event that

(i) cultivated the performing arts (ii) promoted them or

(iii) developed the publicrsquos knowledge awareness understanding

and appreciation of them or of the Byrd Theatre as a movie

palace and community resource (JA 190-191)

The Foundation has never held hosted sponsored or

promoted an activity where volunteers repair the organ (J A

103) Mr Barnett was an invitee permitted access to the organ

for the sole purpose of providing specific volunteer repair work

outside the scope of his subcommittee duties

Since Mr Barnett was not a beneficiary of the Foundationrsquos

charitable purpose when he fell from the walkboard while

volunteering to repair the organ the Foundationrsquos appeal lacks

merit and this Court should affirm the ruling of the trial court and

enter final judgment

12

II Knowledge Of The Defective Walkboard Should Be Imputed To The Foundation Even If Such Knowledge Was First Acquired By An Individual Before He or She Became An Agent Of The Foundation

Should the Court address whether it is relevant for purposes

of imputing notice to the Foundation that its agent first obtained

knowledge of the defective walkboard before becoming an agent

the Court should rule in the negative Rather this Court should

hold that it is irrelevant when the agent learned of the defect or

hazardous condition so long as the agent possessed such

knowledge while having an agency relationship with the principal

Knowledge cannot be compartmentalized Case law from a

number of Courts over the years as well as the Restatements

Second and Third of Agency provide support for this position

A Standard of Review

Where a verdict against a principal exonerating that

principalrsquos agent is supported by instructions providing a basis of

liability independent of the agentrsquos negligence and proffered

agency instruction the principal and agent relationship is

immaterial the judgment against the principal stands and failure

13

to give the agency instruction is harmless error Wintergreen

Partners Inc v McGuirewoods LLP 280 Va 374 379-80

(2010)

Further a litigant is entitled to a jury instruction only if the

instruction is supported by sufficient evidence and correctly states

the law Smith v Kim 277 Va 486 491 (2009) This Courtrsquos

role in reviewing the content of a jury instruction is to determine

de novo if the law has been correctly stated Id If a proffered

instruction is not a correct statement of law ldquothe trial court is not

required to correct or amend the instruction rather than [refuse]

to grant itrdquo Honsinger v Egan 266 Va 269 275 (2003)

B Applicable Law

The Court need not decide whether Instruction G tendered

by the Foundation was an appropriate statement of law in the

Commonwealth (JA 1399) There is an independent basis for

liability against the Foundation that would not require the Court

to address Instruction G There was evidence adduced at trial

that Mr Gulledge while an agent of the Foundation obtained

actual knowledge of the defective walkboard (JA 1116-1117

14

1134) Mr Gulledgersquos knowledge bound the Foundation and

served as the basis for Instruction 14 (JA 1421)

Nevertheless should the Court address whether Instruction

G tendered by the Foundation was a correct statement of the law

of the Commonwealth it should rule in the negative Instruction

G states as follows

A corporation knows a fact only as its officers and agents know it The corporation does not know all that its agents know but only what comes to the agents while acting for the corporation within the scope of their agency when it is the agentsrsquo duty to report their knowledge to the general officer or agents of the company

(JA 1399) By requesting the adoption of Instruction G the Foundation

asks this Court to hold that only knowledge obtained by an agent

during the period of agency and within the scope of that agency

may be imputed to the principal In other words information

secured prior to the agency relationship but known to the agent

during the agency and can be transmitted to the principal may

not be imputed to the principal

The Foundationrsquos position is contrary to the law of our

Commonwealth In Cabin Branch Min Co v Hutchinsonrsquos Admrsquox

15

this Court held that knowledge by a mine pit-boss of an unsafe

condition if present in his memory in the course of the scope of

his job duties must be imputed to the master even if the

knowledge was acquired before his appointment as pit-boss 112

Va 37 41 (1911) The Court stated the following

[T]he correct principle is thus stated in 31 Cyc p 1593 lsquoThe more logical rule however and that which is supported by the greatest weight of recent authority is that knowledge of an agent acquired prior to the existence of the agency will be chargeable to the principal if it be clearly shown that the agent while acting for the principal in a transaction to which the information is material has the information present in his mindrsquo

Id at 40 Virginia is not alone in rejecting the approach proffered by

the Foundation In 1871 the United States Supreme Court

stated

[T]he doctrine now seems to be established that if the agent at the time of effecting a purchase has knowledge of any prior lien trust of fraud affecting the property no matter when he acquired such knowledge his principal is affected thereby If he acquire the knowledge when he effects the purchase no question can arise as to his having it at that time if he acquired it previous to the purchase the presumption that he still retains it and has it present to his mind will depend on the lapse of time and other circumstances Knowledge communicated to the principal himself he is bound to recollect but he is not bound by

16

knowledge communicated to his agent unless it is present to the agentrsquos mind at the time of effecting the purchase Clear and satisfactory proof that it was so present seems to be the only restriction required by the English rule as now understood With the qualification that the agent is at liberty to communicate his knowledge to his principal it appears to us to be a sound view of the subject

The Distilled Spirits 78 US 356 366-367 (1871) (internal

citations omitted)

Similarly in a case involving a dangerous condition on a

premises resulting in injury to an infant a New York Court held

In the law of negligence notice to a previous owner does not run with the land as do certain covenants in the law of real estate Nevertheless notice to an agent who is retained by the new owner is binding on the successor principal provided such a period of time has not elapsed between the receipt of notice and commencement of the new agency as to constitute an unreasonable expectation from human memory

Goodstein v Milmo Realty Corp 8 NYS2d 243 244 (NY City

Ct 1938)

The approach articulated by the United States Supreme

Court in Distilled Spirits and a number of state courts was

memorialized in the Restatement (Second) of Agency sect 276

(1958) which states ldquo[e]xcept for knowledge acquired

confidentially the time place or manner in which knowledge is

17

acquired by a servant or agent is immaterial in determining the

liability of his principal because of itrdquo

More recently the Restatement (Third) of Agency sect 503

(2006) addressed specifically whether knowledge obtained by an

agent before the agentrsquos relationship with the principal should be

imputed to the principal Its legal reasoning was that such

knowledge should be imputed to the principal

[w]hen an agent is aware of a fact at the time of taking authorized action on behalf of a principal and the fact is material to the agentrsquos duties to the principal notice of the fact is imputed to the principal although the agent learned the fact prior to the agentrsquos relationship with the principal whether through formal education prior work or otherwise Likewise notice is imputed to the principal of material facts that an agent learns casually or through experiences in the agentrsquos life separate from work

Restatement (Third) of Agency sect 503 cmt e (2006) Adopting the approach described in the Restatement a

Washington state court noted that ldquoin most instances the time

place or manner in which the agent obtains knowledge is

immaterial in charging it to the principalrdquo Diaz v Wash State

Migrant Council 265 P3d 956 968 (Wash Ct App 2011)

18

The rationale for the decisions cited above is contained in

the commentary to the Restatement (Second) of Agency sect 276 as

follows

Since the mind of the agent cannot be divided into compartments the principal should be bound by whatever knowledge the agent has irrespective of its source or time of acquisition unless it is the kind of knowledge which the agent can properly disregard in the specific case because of having acquired it confidentially

Restatement (Second) of Agency sect 276 cmt a (1958)

It is requested to the extent not previously done so

explicitly that this Court adopt the approach of the Restatement

(Third) of Agency sect 503 cmt e (2006) and reject the

Foundationrsquos position that only knowledge obtained by a

Foundation agent during the time of his relationship with the

principal should be imputed to the Foundation From a policy

perspective the approach proffered by Mr Barnett is the better

one Knowledge cannot be compartmentalized Either it exists or

it does not If there is evidence adduced at trial that the agent

had such knowledge during his agency relationship with the

principal then the principal should be bound by it even if he

received such information prior to the principal-agent

19

relationship The relevant inquiry is therefore centered upon the

agentrsquos knowledge at the time of the agency relationship

irrespective of when that knowledge was first obtained

Additionally a ruling in favor of the Foundation on this issue

would lead to unintended outcomes in premises liability cases

Suppose Mr Gulledge first learned of the defective walkboard

while an agent of the Foundation In this setting there would be

no dispute as to imputation However should Mr Gulledge have

learned of the defect prior to being an agent of the Foundation

then under the Foundationrsquos theory his knowledge cannot be

imputed and the Foundation cannot be held liable This would be

so despite the fact that Mr Gulledgersquos knowledge of the defective

walkboard would have been for a greater period of time thereby

making the Foundation potentially more culpable

Or for example suppose Mr Gulledge while on an

employment interview with the Foundation noticed that the

walkboard was defective If Mr Gulledge was later hired by the

Foundation it would be inequitable to bar imputation of that

knowledge to the Foundation Mr Gulledge had knowledge of the

20

defect while an agent of the Foundation the mere fact that he

first obtained that knowledge before he became an agent should

not preclude recovery for persons injured by hazardous

conditions

The VTLA requests that this Court follow the reasoning of

the Restatements and that supported by over a hundred years of

jurisprudence and hold that knowledge obtained by an agent

prior to the agency-principal relationship and still known by the

agent can be imputed to the principal

F CONCLUSION

For the reasons stated above the VTLA respectfully requests

that this Court affirm the decisions of the trial Court and enter

final judgment in favor of Appellee Barnett

21

Respectfully submitted

THE VIRGINIA TRIAL LAWYERS ASSOCIATION

The Virginia Trial Lawyers Association 700 East Main Street Suite 1400 Richmond Virginia 23219 (804) 343-1143 (804) 343-7124 (fax) By ______________________________ Nathan J D Veldhuis Chaikin Sherman Cammarata and Siegel PC VA Bar No 68746 1232 17th Street NW Washington DC 20036 Tel (202) 659-8600 Fax (202) 659-8680 nathandc-lawnet and

22

______________________________ Gobind Sethi Hall amp Sethi PLC VA Bar No 72266 Samantha K Sledd Hallamp Sethi PLC VA Bar No 82656 12120 Sunset Hills Rd Suite 150 Reston VA 20190 Tel (703) 925-9500 Fax (703) 925-9166 gsethihallandsethicom On behalf of the Virginia Trial Lawyers Association

23

G CERTIFICATE On this 15th day of November 2013 I certify as follows

1 That I have complied with Rule 526(h) of the Rules of

the Supreme Court of Virginia

2 That 15 printed copies of the Brief of Amicus Curiae

with 1 electronic copy on CD have been hand-filed with

the Clerk of the Supreme Court of Virginia

3 That three printed copies of the Brief of Amicus Curiae

with an electronic copy on CD have been served via

UPS Ground Transportation to counsel for Appellant

Lynne Jones Blain Esquire Harmon Claytor Corrigan

amp Wellman 4951 Lake Brook Drive Suite 100 Glen

Allen Virginia 23060 and to counsel for Appellee

Mahlon G Funk Jr Hirschler Fleischer PC 2100 East

Cary Street Post Office Box 500 Richmond Virginia

23218

___________________________ Nathan J D Veldhuis

IN THE

Supreme Court of Virginia

MICHELLE C HARMANAdministratrix of the ESTATE of

JOSEPH A GRANA III Deceasedand

STEPHANIE E GRANA BEMBERISPersonal Representative of the ESTATE OF

JOSEPH E GRANA SR DeceasedAppellants

v

HONEYWELL INTERNATIONAL INCAppellee

RECORD NO 130627

REPLY BRIEF AMICUS CURIAEOF VIRGINIA TRIAL LAWYERSrsquo ASSOCIATION

IN SUPPORT OF APPELLANTS

LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond Virginia 23219 (804) 644-0477A Division of Lantagne Duplicating Services

Avery T Waterman Jr Esq (VSB No 27118)Patten Wornom Hatten amp Diamonstein LC12350 Jefferson Avenue Suite 300Newport News Virginia 23602Telephone (757) 223-4567Facsimile (757) 223-4499Awatermanpwhdcom

i

TABLE OF CONTENTS

Table of Authorities ii Amicus Statement of Interest 1 Argument 4 I RELIABLE AUTHORITY 6 II OTHER INCIDENTS 10 III JURY INSTRUCTION 11 IV ABEL OPINIONS 13 V NORMAN OPINIONS 14 Conclusion 15 Certificate 16 Addendum 1 (3314) Letter of Roger T Creager Esq [Counsel for Appellants]

ii

TABLE OF AUTHORITIES

CASES

Federal

Circuit United States v Martinez 588 F3d 301 (6th Cir 2009) cert denied 131 SCt 538 (2010) 7

District

Tafas v Dudas 511 F Supp2d 652 (EDVa 2007) 1 2

State

Foreign

OrsquoBrien v Angley 63 Ohio St2d 159 407 NE2d 490 (Ohio Sup Ct 1980) 7

Virginia

Agelasto v Frank Atkinson Real Estate 229 Va 59 (1985) 5 Blue Stone Land Co v Neff 259 Va 273 (2000) 4 5 Bostic v About Women OBGYN PC 275 Va 567 (2008) 6 8 Bottoms v Bottoms 249 Va 410 (1995) 1 4 Combs v Norfolk and Western Ry Co 256 Va 490 (1998) 13 Crowson v Swan 164 Va 82 (1935) 3 CSX Transp V Casale 247 Va 180 (1994) 5 Dandridge v Marshall 267 Va 591 (2004) 4 5

iii

Doe v Dewhirst 240 Va 266 (1990) 5 13 Goins v Wendyrsquos Intrsquol 242 Va 333 (1991) 10 Hale v Maersk Line Ltd 284 Va 358 (2012) 4 Hinkley v Koehler 269 Va 82 (2005) 5 Holmes v Levine 273 Va 150 (2007) 12 13 Keesee v Donigan 259 Va 157 (2000) 13 Lawlor v Commonwealth 285 Va 187 (2013) 11 Lawrence v Commonwealth 279 Va 490 (2010) 4 McClung v Commonwealth 215 Va 654 (1975) 11 12 Norfolk amp Western Ry v Puryear 250 Va 559 (1995) 5 Rhoades v Painter 234 Va 20 (1979) 6 Ring v Poelman 240 Va 323 (1990) 5 Tittsworth v Robinson 252 Va 151 (1996) 5 Velocity Express Mid-Atlantic v Hagen 266 Va 188 (2003) 10 11 Venable v Stockner 200 Va 900 (1959) 6 Whitehead v H and C Dev Corp 204 Va 144 (1961) 1 Wood v Woolfolk Properties Inc 258 Va 133 (1999) 10 Wright v Kaye 267 Va 510 (2004) 14

iv

STATUTES

Virginia Code sect801-3792 3 12 Virginia Code sect801-4011 2 6 8

RULES OF COURT

Va Sup Ct R 530(e) 2

AUTHORITATIVE TREATISES

Advisory Committee Notes to Federal Rules of Evidence Fed R Evid 803 Exception 18 56 FRD 183 (1972) 7 BLACKrsquoS LAW DICTIONARY (9TH

ED 2009) 1

2 McCormick on Evidence sect321 (6th ed 2006) 7

5 Wigmore on Evidence sect1692 (Chadbourn rev) 7

1

AMICUS STATEMENT OF INTEREST

Honeywell asserts Brief Amicus Curiae ldquois in substance a second

merits briefrdquo and ldquotransparent ploy to use an amicus brief to expand the

page limits for the Administratorsrsquo arguments not a serious assessment of

the publicrsquos interestrdquo Brief of Appellee (ldquoBArdquo) at 40-41 Honeywell is wrong

First it is not collusion1 Bottoms v Bottoms 249 Va 410 (1995)(four

Appellee amici curiae) Second Honeywell misconstrues amicus status

Amicus is a non-party ldquowho petitions the courthellipto file a brief in the

action because that person has a strong interest in the subject matterrdquo

BLACKrsquoS LAW DICTIONARY (9th ed 2009) at 98 This Court recognizes amicus

ldquoon the ground that ithelliphas a substantial interest in the subject matterrdquo

Whitehead v H and C Dev Corp 204 Va 144 149 (1961)2

1 Amicus affirms no counsel for a party authored this brief in whole or in part and no person or entity made a monetary contribution to its preparation or submission represents it obtained consent of Appellant but not Appellee to file and files Reply Brief with Motion for Leave to File subject to Administratorsrsquo objection BA is untimely improper and invalid

2 Federal law in Virginia is consistent explicit and persuasive authority ldquoAlthough an amicushellipis not a party to the litigation and participates only to assist the court nevertheless by the nature of things an amicus is not normally impartialhellipand there is no rulehellipthat amici must be totally disinterestedrdquo Tafas v Dudas 511 F Supp2d 652 661 (EDVa 2007)

2

Va Sup Ct R 530(e)(emphasis added) states ldquoA brief amicus

curiae shall comply with the rules applicable to the party supportedrdquo This

contemplates amicus reaching the merits Cf Tafas 511 F Supp2d at

652 (ldquomere fact that a non-party seeks to put forth [merits] opinion in the

case does not disqualify it as an amicusrdquo)

Third this appealrsquos five issues will be precedent beyond this case

That implicates public interest and policy

Va Code sect801-4011rsquos ldquoreliable authorityrdquo exception in Assignment

of Error (ldquoAOErdquo) 1 is evidentiary cornerstone of essentially every medical

malpractice case and this Courtrsquos opinions construe it in such cases There

is genuine public interest - plaintiff and defendant - in that limited statutory

exception not being eroded by Honeywell skipping its evidentiary

precondition introducing documentary exhibit and admitting biased case-

specific investigation

Honeywellrsquos ldquoabsence of other incidentsrdquo arguments and their judicial

ratification in AOE 2 cut across product liability medical malpractice

vehicular accidents and other torts There is genuine public interest in this

Courtrsquos prohibitions thereof - and of mirror-image ldquoevidence of other

incidentsrdquo - not being eroded by Honeywellrsquos repeated impermissible

closing arguments and by judicial ratification thereof

3

Administratorsrsquo multiple cause instruction in AOE 3 pervades all tort

litigation There is genuine public interest in a more informative causation

instruction that explicitly fully and fairly informs juries about two or more

possible proximate causes that is based on ldquoanyrdquo evidence introduced

plaintiff andor defendant and that is not rejected contrary to Va Code

sect801-3792 because it is not the ldquoModelrdquo then

Honeywellrsquos introduction of improper multiple lay opinions by Abel

and Norman in AOE 4 and 5 is a specter in any case There is genuine

public interest in litigants not being denied a fair day in court because

admittedly ldquocrucialrdquo fact witnesses wrongfully are allowed to give expert

opinion and otherwise inappropriate testimony

Finally ensuring justice in this case is legitimate public interest Fiscal

hardships of lengthy trials about which Honeywell complains are suffered

disproportionately by private individuals like Administrators versus Goliaths

like Honeywell so it is fundamental that justice not be denied by prejudicial

error Cf Crowson v Swan 162 Va 82 83 (1935)(ldquonever been

contendedhellipthe rights of a litigant should be determined by matters of

expediencyrdquo)

4

ARGUMENT

Honeywell argues ldquoabuse of discretionrdquo review standard BA15-16

but that is red-herring Even assuming that arguendo re AOEs 1 4 and 5

judge has ldquono discretion to admit clearly inadmissible evidencerdquo Lawrence

v Commonwealth 279 Va 490 496 (2010) or re AOEs 2 and 3 to make

errors of law

Honeywell misstates ldquoCourt views the facts in the light most favorable

to the prevailing partyrdquo and ldquopresume[s] that the law was correctly applied

to the factsrdquo citing Bottoms BA16 Bottoms is a custody case reviewing

ldquobest interestsrdquo findings not errors of evidence and law

Honeywell impliedly concedes its misstatement invoking harmless

error BA17 quoting Blue Stone Land Co v Neff 259 Va 273 279 (2000)

And judgment is affirmed only when this Court ldquocan say that the error

complained of could not have affected the resultrdquo Id

Evidentiary error is ldquopresumed prejudicial unless the record clearly

shows that the error could not have affected the resultrdquo Dandridge v

Marshall 267 Va 591 597 (2004) and ldquoerroneous admission of evidence

which may have lsquotipped the scalesrsquordquo is not harmless Hale v Maersk Line

Ltd 284 Va 358 377 (2012) This Court reverses for error on grounds

undercutting Honeywellrsquos arguments Eg Lawrence supra 279 Va at

5

499 (ldquospeculative and unreliablerdquo opinions inadmissible) Hinkley v

Koehler 269 Va 82 91-92 (2005)(ldquodoes not plainly appear from the record

[erroneous expert evidence] could not have affected the juryrsquos verdict

[lsquodespitersquo] that defendants had another expert witnessrdquo) Dandridge supra

267 Va at 597 (ldquonothing in the recordhellipclearly shows [evidentiary]

errorshellipdid not affectrdquo) Blue Stone supra 259 Va at 280 (different

ldquoevidencehellipmight have produced a different resultrdquo) Tittsworth v

Robinson 252 Va 151 155 (1996)(no harmless error because ldquono way of

determining what evidence may have influenced the juryrdquo) Norfolk amp

Western Ry Co v Puryear 250 Va 559 563 (1995) (ldquo[erroneously

admitted exhibit] could have been reviewed during the jury deliberations

and this would have impermissibly emphasized Puryearrsquos version of the

facts to the prejudice of NampWrdquo) 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)(ldquocannot

determine from the record [on what] the jury based its verdict [so] we

cannot say that the error was harmlessrdquo) Agelasto v Frank Atkinson Real

Estate 229 Va 59 65 (1985)(ldquoimproper evidence may have tipped the

scales [so] we cannot sayhelliperror was harmlessrdquo) Doe v Thomas 227 Va

466 473 (1984)(ldquocannot say as a matter of law that the inadmissible

6

evidence did not affect the juryrdquo) Rhoades v Painter 234 Va 20 24

(1979)(ldquocannot say as a matter of law the erroneous instruction could not

have affected the resultrdquo) Venable v Stockner 200 Va 900 905

(1959)(ldquodoes not necessarily show that the admission of this evidence was

harmlessrdquo)

Hence this Court undertakes evenhanded review of all evidence not

one-sided view of Honeywellrsquos evidence Honeywell bears burden of

showing errors of evidence andor law individually and collectively ldquocould

not have affected the resultrdquo may not have ldquotipped the scalesrdquo

I RELIABLE AUTHORITY

Va Code sect801-4011 includes ldquotwo preconditions to the admission of

hearsay First the testifying witness must have relied upon [it] second the

statements must be established as lsquoa reliable authorityrsquo by testimonyrdquo

Bostic v About Women OBGYN PC 275 Va 567 576 (2008)

Honeywell glosses inaccurately ldquoDr Clarke relied on the report and

vouched for its authorityrdquo BA18 Honeywell asserts falsely its expert

satisfying first precondition (ldquorelied uponrdquo) itself satisfied second

precondition (ldquoreliable authorityrdquo) ldquoDr Clarke testified that he relied on the

report and thereby endorsed its authorityrdquo Id (emphasis added)

7

In truth Honeywellrsquos attorney said Mooney Report is ldquodocument thatrsquos

normally relied upon by expertsrdquo JA1523 Thatrsquos not requisite ldquotestimonyrdquo

Consequently judge admitted absent expert opinion that inherently is

not ldquoreliable authorityrdquo biased case-specific investigation That is contrary

to history jurisprudence and commentators

Forerunner federal ldquolearned treatiserdquo exception presumes ldquohigh

standard of accuracy is engendered by various factors the treatise is

written primarily and impartially for professionals subject to scrutiny and

exposure for accuracy with the reputation of the writer at stakerdquo Advisory

Committee Notes to Federal Rules of Evidence Fed R Evid 803

Exception 18 56 FRD 183 316 (1972) ldquo[A]uthors of treatises have no

bias in any particular caserdquo 2 McCormick on Evidence sect321 (6th ed 2006)

United States v Martinez 588 F3d 301 312 (6th Cir 2009) cert

denied 131 SCt 538 (2010) ruled material inadmissible as learned

treatise because it ldquowas prepared forhelliplitigation purposes it was not

subjected to peer review or public scrutiny and it was not lsquowritten primarily

for professionalshellipwith the reputation of the writer at stakersquordquo OrsquoBrien v

Angley 63 Ohio St2d 159 407 NE2d 490 494 (Ohio Sup Ct

1980)(citing 5 Wigmore on Evidence sect1692 at 6 (Chadbourn Rev)) held

admission of JAMA editorial as learned treatise ldquoprejudicially erroneousrdquo

8

because ldquoit was written with a view toward litigation [and] was primarily an

expression of opinion by a physician concerning a controversial subject

which posed a risk of litigation for his colleagues in the medical professionrdquo

By law sect801-4011 is ldquostrictly construed and not to be enlarged in

[its] operation by construction beyond [its] express termsrdquo Bostic 275 Va

at 576 By public policy its ldquosecond preconditionrdquo (ldquoreliable authorityrdquo) is

construed narrowly for ldquolearned treatisesrdquo not enlarged for biased case-

specific investigation (whose creators must testify)

Alternatively Honeywell asserts incorrectly judge erring ldquoby permitting

[Mooney Reportrsquos] introduction into evidencehellipas distinct from the

argument that the report does not qualify as a reliable authority - was never

raised below and the Administrators do not raise it nowrdquo BA19 Honeywell

claims falsely ldquoit is thus waived twice overrdquo Id

In truth Administrators objected to Mooney Report testimony

JA1520-1521 and Mooney Report itself as documentary exhibit id and

JA1525 both for lack of ldquofoundationrdquo (since sect801-4011 provides none) Id

AOE 1 preserves admission of ldquohearsay Mooney Reportrdquo itself as error

Opening Brief of Appellants (ldquoOBrdquo) at 1 Administrators brief judge ldquoerred in

allowing Honeywellrsquos experthellipto introduce the entire hearsay report into

evidencerdquo OB32 That is not waiver

9

Tacitly conceding waiver is meritless Honeywell alternatively argues

Mooney Report admitted as documentary exhibit is harmless BA19-22

Honeywell incorrectly pooh-poohs Mooney Report is ldquoblandrdquo ldquoexpresses no

opinion about the cause of accident [and] makes no comment on whether

Honeywellrsquos autopilot was defectiverdquo BA21-22

Honeywell spins the following Mooney Report excerpt as ldquoneedle-in-

the-haystack statement - which was merely cumulative of other evidence -

could not have affected the outcome of this trialrdquo BA22

Conclusions The IIC [ldquoNTSBrdquo] Lycoming representative and myself [Mooney] did not find any evidence that the aircraft engine was not capable of producing power or that the aircraft was uncontrollable at the time of the accident

Honeywell Exhibit 11 JA463 (emphasis added) Thatrsquos just not so

Indisputably Mooney Report ldquoConclusionrdquo on the ultimate issue is not

bland impliedly expresses opinion about the cause of accident and

essentially comments Honeywellrsquos autopilot was not defective Although

ldquocauserdquo ldquoautopilotrdquo and ldquodefectiverdquo are not used Conclusion the aircraft

was ldquonot uncontrollablerdquo (as Administrators allege) is tantamount to opining

autopilot system was working sufficiently ie not defective and impliedly

that there was pilot error

10

Therefore although NTSB Report as admitted left jury dangling about

crash cause (showing no conclusion re cause) Mooney Report went the

final step and reached the ultimate issue by effectively concluding

Honeywellrsquos autopilot was ldquonot uncontrollablerdquo not defective Because it

opined on behalf of ldquoThe IIC [lsquoNTSBrsquo]rdquo Mooney Report purported to speak

on behalf of NTSB the Federal agency officially responsible for crash

investigation even though NTSB Report admitted did not speak re cause

That is materially prejudicial to Administrators and Honeywell cannot

prove jury did not read and rely on that pivotal Conclusion particularly with

Honeywell calling Mooney Report to juryrsquos attention twice in closing

JA1582-1583 This Court cannot say ldquoerror complained of could not have

affected the resultrdquo thus error was not harmless

II OTHER INCIDENTS

A Honeywell ignores Goins v Wendyrsquos Intrsquol 242 Va 333 (1991)

Wood v Woolfolk Properties Inc 258 Va 133 138 (1999)

and Velocity Express Mid-Atlantic v Hagen 266 Va 188

(2003) They control

B Honeywell conjures waiver claiming several cases hold

Administrators had to move for curative instruction precisely

11

when they objected to closing statements BA23-25 but careful

scrutiny discloses none hold that Velocity Express controls

C Honeywell claims ldquoobvious and crucial differencerdquo between (1)

absence of other incidents and (2) what Administratorsrsquo experts

testified BA26-27 But both are improper plus Honeywell

argued the worst absence of other incidents transcript does

not mention Administratorsrsquo experts in any of the five violations

and judge claiming it so does not make it so

D Honeywellrsquos five ldquoabsence of other incidentsrdquo rule violations is

prejudicial not harmless General instruction at trial outset is

not curative instruction after and for five violations and

Administratorsrsquo pure protest retorts in closing - which unlike

cases cited by Honeywell BA30 did not precipitate

Honeywellrsquos violations - are not curative particularly not given

judgersquos ratification of Honeywellrsquos five violations Velocity

Express

III JURY INSTRUCTION

A Honeywell ignores McClung v Commonwealth 215 Va 654

(1975) and Lawlor v Commonwealth 285 Va 187 (2013) They

control

12

B Honeywell concedes jury had only ldquoeitherorrdquo choice ldquoAt the

end of the day the jury was presented with a clear

choicehellipautopilothellip Orhellippilothelliprdquo BA13 (emphasis added)

C Honeywell misstates Administrators rely ldquoprimarily on a single

case Holmesrdquo BA34 then criticizes Administrators that

Holmes does not reach supporting evidence coming from both

plaintiffrsquos and defendantrsquos evidence BA34-35 In truth

Administrators relied on Holmes and McClung together with

McClung reaching evidence coming from plaintiffrsquos and

defendantrsquos case Brief Amicus Curiae at 30-31 as argued by

Administrators JA1545-1547 and TT3222-3223

D Honeywell objected to Administratorsrsquo multiple-cause instruction

solely because it then was not the ldquoModel Jury Instructionrdquo

JA1545-1547 not on redundancy confusion and inconsistency

grounds it raises on appeal first-time Correspondingly judge

indisputably sustained Honeywellrsquos lone itrsquos-not-the-Model

objection on that ground - clear unjustified indefensible violation

of sect801-3792 - not on Honeywellrsquos new different grounds

E Virginia Model Jury Instruction 5000rsquos post-trial amendment

effective December 2013 added the disputed sentence

13

Administrators requested There may be more than one

proximate cause of an accident injury or damage (emphasis

added) Citing Holmes its ALERTS emphasizes Where the

evidence in a case shows the possibility of more than one

proximate cause of an accident injury or damage the final

[new] sentence of Instruction should be given to fully and fairly

explain the principle of proximate cause to the jury Id

(emphasis added)

IV ABEL OPINIONS

A Honeywell ignores Combs v Norfolk and Western Ry Co 256

Va 490 (1998) Keesee v Donigan 259 Va 157 (2000) and

Doe v Dewhirst 240 Va 266 (1990) They control

B Honeywell admits Abel is ldquopretty critical witnessrdquo JA657 who

ldquoentered the realm of opinionrdquo BA37 and judge treated Abel as

ldquoquasi-expertrdquo TT349 But Abel never was qualified as expert

C Honeywell lists Administratorsrsquo objections to Abelrsquos testimony

irrelevant prejudicial subjective speculative unreliable

unfounded and opinion BA37 Honeywell simply pays lip-

service and does not actually refute each objection

14

D Honeywell focuses mostly on weather particularly visibility

BA37-39 Honeywell inaccurately claims ldquozero visibilityrdquo was

ldquoundisputedrdquo BA38 when in truth it was disputed it actually

was knowable only by pilot and Honeywellrsquos own exemplar

photo shows visibility through cloud covering BA8(Tr Ex 987)

E Abelrsquos opinion testimony about pilotrsquos ldquojudgmentrdquo was unduly

prejudicial Honeywell inundated the jury with it JA792

JA1352 JA1354 JA1645 and JA1594-1595

V NORMAN OPINIONS

A Honeywell ignores Wright v Kaye 267 Va 510 (2004) It

controls

B Honeywell admits Normanrsquos testimony ldquotouched on his opinionrdquo

BA 40 gross understatement Normanrsquos lay subjective opinions

are inflammatory hyperbole couched in exaggerated terms

eg ldquoafraidrdquo ldquohealthy fearrdquo ldquoa thousand different mistakesrdquo

and ldquosomething bad happenrdquo but Honeywell does not address

each of Administratorsrsquo objections re them

C Normanrsquos subjective opinions are unduly prejudicial individually

bespeaking pilot error and collectively screaming it Honeywell

inundated the jury JA1380-1389 JA1593-1594 and JA1598

15

CONCLUSION

This Court should reverse and remand all issues for retrial

Respectfully submitted s Avery T Waterman Jr AVERY T WATERMAN JR ESQ

VSB 27118 Patten Wornom Hatten amp Diamonstein LC 12350 Jefferson Avenue Suite 300 Newport News Virginia 23602 Telephone (757) 223-4567 Facsimile (757) 223-4499 Awatermanpwhdcom

Counsel for Amicus Curiae

16

CERTIFICATE OF SERVICE

I hereby certify that on March 4 2014 fifteen copies of the above

Reply Brief Amicus Curiae have been hand-delivered to the clerkrsquos office

This same date three copies of the same have been sent via first class

postage prepaid mail to the following counsel

Counsel for Appellants

Roger T Creager Esq The Creager Law Firm PLLC 1500 Forest Avenue Suite 120 Richmond VA 23229 Telephone (804) 747-6444 Facsimile (804) 747-6477 rcreagercreagerlawfirmcom John C Shea Esq Mark S Lindensmith Esq Marks amp Harrison PC 1500 Forest Avenue Richmond VA 23229 Telephone (804) 282-0999 Facsimile (804) 288-1853 jsheamarksandharrisoncom mlindensmithmarksandharrisoncom

17

Anita Porte Robb Esq Admitted pro hac vice in trial court Gary C Robb Esq Admitted pro hac vice in trial court Robb amp Robb LLC One Kansas City Place - Suite 3900 1200 Main Street Kansas City MO 64105 Telephone (816) 474-8080 Facsimile (816) 474-8081 arobbrobbrobbcom grobbrobbrobbcom Counsel for Appellee N Thomas Connally III Esq Hogan Lovells US LLP Park Place II 7930 Jones Branch Drive McLean VA 22102 Telephone (703) 610-6100 Facsimile (703) 610-6200 tomconnallyhoganlovellscom Catherine E Stetson Esq Jessica L Ellsworth Esq Hogan Lovells US LLP Columbia Square 555 Thirteenth Street NW Washington DC 20004 Telephone (202) 637-5600 Facsimile (202) 637-5910 catestetsonhoganlovellscom jessicaellsworthhoganlovellscom

18

Turner A Broughton Esq Patrick R Hanes Esq Joseph R Pope Esq WF Drewry Gallalee Esq Harold E Johnson Esq Williams Mullen Clark amp Dobbins Williams Mullen Center 200 South 10th Street PO Box 1320 Richmond VA 23218-1320 Telephone (804) 420-6939 Facsimile (804) 420-6507 tbroughtonwilliamsmullencom phaneswilliamsmullencom jpopewilliamsmullencom dgallaleewilliamsmullencom hjohnsonwilliamsmullencom Michael McQuillen Esq Admitted pro hac vice Austin W Bartlett Esq Pending pro hac vice admission Adler Murphy amp McQuillen LLP 20 S Clark Suite 2500 Chicago IL 60603 Telephone (312) 345-0700 Facsimile (312) 345-5860 mmcquillenamm-lawcom abartlettamm-lawcom s Avery T Waterman Jr Of Counsel

PRESENT All the Justices VICTORIA COALSON OPINION BY v Record No 130837 JUSTICE S BERNARD GOODWYN February 27 2014 VICTOR CANCHOLA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Bruce D White Judge

In this appeal we consider whether the circuit court erred

in remitting a juryrsquos award of punitive damages

Background

On March 1 2011 Victoria Coalson (Coalson) and Michael

Stemke (Stemke) each filed lawsuits in the Circuit Court of

Fairfax County against Victor Canchola (Canchola) seeking

compensatory and punitive damages for personal injuries

sustained in an automobile accident The circuit court

consolidated Coalsonrsquos and Stemkersquos actions

At the conclusion of the trial the jury awarded Coalson

$5600 in compensatory damages and $100000 in punitive damages

against Canchola Stemke received $14000 in compensatory

damages and $100000 in punitive damages The circuit court

entered a final order on January 11 2013 but the court

suspended the order for fourteen days to give the parties an

opportunity to file post-trial motions and submit an amended

final order if they wished Canchola filed a post-trial motion

for remittitur of both punitive damages awards arguing that the

2

awards were excessive under Virginia law and the Due Process

Clause of the Fourteenth Amendment

The circuit court found that Cancholarsquos conduct was

egregious Nevertheless it noted ldquoa significant disparityrdquo

between the plaintiffsrsquo compensatory damages awards although

both punitive damages awards were the same Based on this

disparity it concluded that Coalsonrsquos award was arbitrarily

made The circuit court remitted Coalsonrsquos punitive damages to

$50000 While it recognized that ldquo[t]here is no bright line or

formula to be applied[]rdquo the court reduced the award to ldquoless

than a ten percent ratiordquo

The circuit court entered an order granting Cancholarsquos

motion for remittitur regarding Coalsonrsquos punitive damages award

on February 8 2013 On February 28 2013 the court entered an

amended final order reflecting its remittitur ruling noting

Coalsonrsquos acceptance under protest summarizing the proceedings

denying Coalsonrsquos motion to reconsider and awarding post-

judgment interest Coalson filed a notice of appeal with the

circuit court on March 21 20131

1 Rule 59(a) states that a party must file her notice of

appeal within 30 days of entry of the trial courtrsquos final order Rule 55(b) provides for an extension of time to file a notice of appeal if the trial court ldquomodifie[s]rdquo its final order The rule also states that ldquothe time for filing the notice of appeal shall be computed from the date of final judgment entered following such modificationrdquo Rule 55(b) The circuit courtrsquos February 8 2013 order granting Cancholarsquos motion for remittitur

3

Facts

At approximately 630 pm on February 15 2009 Canchola

was driving and talking on his cellular telephone when he

attempted to turn left at an intersection on Waxpool Road in

Loudoun County He turned in front of a vehicle driven by

Coalson who had the right of way and was unable to stop before

colliding with the passenger door of Cancholarsquos vehicle

Coalson and her passenger Stemke suffered minor injuries

Canchola who was intoxicated at the time of the accident

had an extensive record of driving while intoxicated Between

1991 and 1997 Canchola was convicted six times of driving while

intoxicated and once of driving with a suspended license In

1996 his driverrsquos license was revoked In 2004 he was

convicted yet again of driving while intoxicated in California

The night before the accident Canchola stayed at a hotel

in Ashburn Virginia with his girlfriend Lori Rudegeair

(Rudegeair) who was visiting from Pennsylvania At brunch in

Alexandria on the day of the accident Canchola drank several

modified the original judgment and tolled the thirty-day time limit but it was not a final order because Coalson could still exercise her right to accept remittitur under protest pursuant to Code sect 801-3831 See Ragan v Woodcroft Village Apartments 255 Va 322 327 497 SE2d 740 743 (1998) (defining ldquofinal order or judgmentrdquo as ldquoone that disposes of the whole subject of the case and gives all relief contemplatedrdquo) On February 28 the circuit court entered an amended final judgment noting Coalsonrsquos acceptance under protest and Coalson filed her notice within thirty days of the February 28 order making her notice timely

4

glasses of champagne Afterward Canchola and Rudegeair walked

to a nearby pub and Canchola drank two rounds of his favorite

drink combination a vodka martini and light beer They left

the pub sometime after 330 pm when a police officer called

Canchola to inform him that a vehicle Canchola had reported

missing was located in Leesburg Virginia Because Canchola

slurred his speech while speaking to the police officer the

officer advised Canchola not to drive when he came to pick up

the vehicle

Despite the warning Canchola drove Rudegeairrsquos car to

Leesburg He stopped approximately a block from where he was

supposed to meet the officer and had Rudegeair drive the rest of

the way After Canchola finished speaking to the officer and

claiming the vehicle which was found in good condition and

after having been warned by the officer not to drive Canchola

left the scene as Rudegeairrsquos passenger They drove a short

distance waited for a few minutes and returned to Cancholarsquos

vehicle after the police officer left Canchola then drove his

vehicle to another bar Rudegeair followed in her car There

Canchola drank at least two rounds of the vodka and light beer

combination and three additional shots of liquor within a short

period of time

Canchola and Rudegeair left the bar to return to the hotel

in separate vehicles As Canchola approached the intersection

5

where he was to turn left into the hotel entrance he began a

conversation on his cellular telephone He was engaged in that

conversation when he turned left in front of the vehicle driven

by Coalson According to uncontradicted testimony of an expert

toxicologist Cancholarsquos blood alcohol content was almost twice

the legal limit at the time of the accident

After Coalson collided with Canchola Canchola removed his

vehicle from the scene of the accident parked it and left in

Rudegeairrsquos vehicle He was subsequently arrested upon

returning to the hotel Canchola urged Rudegeair not to tell

anyone that he had been driving his vehicle when the accident

occurred Rudegeair initially lied to police but later told the

truth under oath

Analysis

Coalson argues that the circuit court erred in remitting

her punitive damages award because the circuit courtrsquos decision

was based upon comparing her punitive damages award to Stemkersquos

punitive damages award and upon the proportionality of her

punitive damages award in relation to her compensatory damages

award Coalson asserts that proportionality is not the only

consideration in determining the excessiveness of punitive

damages under Virginia law and that a higher ratio between

compensatory and punitive damages was proper in this case due to

ldquothe egregiousness of [Cancholarsquos] conduct and the potential

6

harm that could have resulted from his actionsrdquo Coalson

emphasizes that neither this Court nor the United States Supreme

Court has created a ldquobright-line testrdquo Although she does not

base her appeal on constitutional grounds Coalson maintains

that Virginiarsquos remittitur analysis for punitive damages is

ldquoframed in and derived fromrdquo federal constitutional law

Consequently she urges the Court to consider ldquopotential harmrdquo

as well as actual harm in reinstating the juryrsquos punitive

damages award

Canchola contends that the circuit court properly

considered and applied all of the remittitur factors and

constitutional guidelines before granting his motion He

disputes Coalsonrsquos assertion that the Court should consider

ldquohypothetical damagesrdquo she could have sustained He argues that

considering what could have happened is not supported by this

Courtrsquos jurisprudence and would require a jury to engage in

improper speculation Canchola claims that in evaluating the

reprehensibility of his actions the proper focus should be on

his conduct at the time of the accident not on ldquoevery unsavory

act [he] committed over timerdquo According to Canchola Coalson

places too much emphasis on punishment and reprehensibility and

ignores proportionality

ldquoThe purpose of punitive damages is to provide lsquoprotection

of the public punishment to [the] defendant and a

7

warning and example to deter him and others from committing like

offensesrsquordquo Huffman v Love 245 Va 311 315 427 SE2d 357

361 (1993) (quoting Baker v Marcus 201 Va 905 909 114

SE2d 617 620 (1960)) This Court has observed that punitive

damages are meant to warn not to compensate the plaintiff Doe

v Isaacs 265 Va 531 539 579 SE2d 174 179 (2003) A

punitive damages award is generally left to the juryrsquos

discretion because there is no set standard for determining the

amount of punitive damages Worrie v Boze 198 Va 533 544

95 SE2d 192 201 (1956)

To justify remittitur a juryrsquos award must be so excessive

that it shocks the conscience of the trial court indicating

that the juryrsquos decision was motivated by ldquopassion corruption

or prejudicerdquo Condominium Servs Inc v First Ownersrsquo Assrsquon

of Forty Six Hundred Condo Inc 281 Va 561 580 709 SE2d

163 175 (2011) (quoting Smithey v Sinclair Refining Co 203

Va 142 146 122 SE2d 872 875-76 (1961)) When a trial

court considers whether to remit a juryrsquos punitive damages

award its review of the punitive damages award should consider

the ldquoreasonableness between the damages sustained and the amount

of the award and the measurement of punishment required whether

the award will amount to a double recovery the proportionality

between the compensatory and punitive damages and the ability

8

of the defendant to payrdquo Poulston v Rock 251 Va 254 263

467 SE2d 479 484 (1996) (citations omitted)

In evaluating whether punitive damages were properly

remitted this Court performs a de novo review examines the

record independently and gives ldquosubstantial weightrdquo to the trial

courtrsquos action Baldwin v McConnell 273 Va 650 657 643

SE2d 703 706 (2007) (quoting Poulston 251 Va at 263 467

SE2d at 484)

The circuit court reduced the amount of Coalsonrsquos punitive

damages award because the jury awarded the same amount in

punitive damages to Coalson as it did to Stemke despite their

different compensatory damages awards Also the circuit court

ruled that the 11786 ratio between Coalsonrsquos compensatory and

punitive damages was too high

We have not previously addressed whether it is proper to

compare punitive damages awards in evaluating excessiveness

However in Allied Concrete Co v Lester 285 Va 295 312 736

SE2d 699 708 (2013) this Court held that a trial court may

not compare verdicts to evaluate the excessiveness of

compensatory damages Likewise in John Crane Inc v Jones

274 Va 581 595 650 SE2d 851 858 (2007) the Court declined

to compare verdicts in determining whether compensatory damages

were excessive

9

We hold that the same rationale stated in John Crane Inc

is true regarding comparing punitive damages awards

ldquo[Comparing verdicts] is not probative of whether a verdict is

excessive rather that determination must be made based on the

facts and circumstances of each caserdquo Id The circuit courtrsquos

consideration of Coalsonrsquos and Stemkersquos relative ratios of

compensatory damages to punitive damages as a basis for granting

remittitur was error See Allied Concrete Co 285 Va at 312

736 SE2d at 7082

We agree with the circuit court that Cancholarsquos conduct was

egregious Canchola was driving while intoxicated and without a

license which had been revoked because of previous instances of

driving while intoxicated Despite having at least seven

convictions for driving while intoxicated on his record

Canchola drove on several occasions on the day of the accident

while drinking alcohol throughout the day He ignored a police

officerrsquos warning not to drive and engaged in deception so that

the officer would not discover he was driving after which he

drank even more and then attempted to drive again After

causing an accident that could have resulted in serious

2 We note that federal courts sometimes compare verdicts to

evaluate whether punitive damages are excessive as a matter of federal constitutional law See eg Saunders v Branch Banking amp Trust Co of Va 526 F3d 142 154 (4th Cir 2008) (comparing punitive damages awards in other Fair Credit Reporting Act cases)

10

injuries Canchola fled the scene and asked his girlfriend to

lie about his involvement

The jury was instructed that it could award Coalson damages

to compensate her for her injuries including bodily injuries

pain and mental anguish inconvenience and medical expenses

The court further instructed the jury that if it awarded Coalson

compensatory damages it could also award punitive damages if it

found that Canchola ldquoacted under circumstances amounting to a

willful and wanton disregard for the plaintiffsrsquo rightsrdquo The

punitive damages instruction clearly stated that the purpose of

punitive damages was to punish Canchola and to ldquoprevent others

from acting in a similar wayrdquo

Coalsonrsquos punitive damages are reasonably related to her

actual damages and to the degree of necessary punishment which

in this case is great See Philip Morris Inc v Emerson 235

Va 380 414 368 SE2d 268 287 (1988) ldquoGiven the clear

determination of the basis for each award and the ample evidence

supporting each award our independent review of the record does

not suggest double recovery in this caserdquo Baldwin 273 Va at

659 643 SE2d at 707 The ratio of Coalsonrsquos compensatory

damages to punitive damages awarded by the jury is 11786

This is high but given the reprehensible and dangerous nature

of Cancholarsquos conduct it is not ldquounreasonable or strikingly out

of proportionrdquo Id Poulston 251 Va at 263 467 SE2d at

11

484 The court expressly stated that the parties did not

present evidence on Cancholarsquos ability to pay3 See Condominium

Servs 281 Va at 581 709 SE2d at 175 (ldquo[A defendant who has

failed to present evidence of his ability to pay at trial]

cannot prevail before this Court on [his] claim that the amount

of punitive damages would be oppressiverdquo)

Cancholarsquos conduct was egregious enough to warrant a

punitive damages award and the amount of punitive damages

awarded by the jury does not shock the Courtrsquos conscience

Virginia precedent indicates that the circuit court should not

have remitted the punitive damages award

It is not clear from the record whether the circuit court

granted Cancholarsquos motion for remittitur on state law or federal

constitutional law grounds Thus we will analyze the award

considering relevant federal constitutional law as well

The United States Supreme Court has prescribed three

guidelines for appellate courts to use in reviewing whether

punitive damages are so excessive as to violate a defendantrsquos

right to due process ldquo(1) the degree of reprehensibility of the

defendantrsquos misconduct (2) the disparity between the actual or

potential harm suffered by the plaintiff and the punitive

damages award and (3) the difference between the punitive

3 Canchola acknowledged the same in his motion for

remittitur and during oral argument before the circuit court

12

damages awarded by the jury and the civil penalties authorized

or imposed in comparable casesrdquo State Farm Mut Auto Ins Co

v Campbell 538 US 408 418 (2003) The Supreme Court has

further provided factors for evaluating the first guideline

which is the most important of the three

[W]hether[] the harm caused was physical as opposed to economic the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others the target of the conduct had financial vulnerability the conduct involved repeated actions or was an isolated incident and the harm was the result of intentional malice trickery or deceit or mere accident

Id at 419

These considerations weigh against remittitur on due

process grounds Virginia certainly has an interest in

promoting public safety through prevention and deterrence of

driving while intoxicated See BMW of North America Inc v

Gore 517 US 559 568 (1996) (ldquo[T]he federal excessiveness

inquiry appropriately begins with an identification of the state

interests that a punitive award is designed to serverdquo)

Although the collision was an accident Canchola deliberately

chose to drive while severely intoxicated which resulted in

physical injury Cancholarsquos determined persistence to drive

while intoxicated and his reckless disregard for the safety of

others is evidenced by his seven prior driving while intoxicated

convictions and by his behavior on the day of the accident See

id at 576-77 (ldquo[E]vidence that a defendant has repeatedly

13

engaged in prohibited conduct while knowing or suspecting that

it was unlawful would provide relevant support for an argument

that strong medicine is required to cure the defendantrsquos

disrespect for the lawrdquo) Furthermore a defendantrsquos conduct

that endangers many is more reprehensible than conduct that only

endangers a few Philip Morris USA v Williams 549 US 346

357 (2007) Canchola puts other drivers at risk every time he

drinks and drives

The Supreme Court has repeatedly stated that ratios between

actual or potential harm and punitive damages should generally

be within single digits to satisfy due process requirements

State Farm 538 US at 425 Nevertheless it has also

recognized that higher ratios may be constitutional where a

defendantrsquos actions are exceptionally reprehensible but result

in small economic damage See id (reaffirming that there are

no ldquorigid benchmarksrdquo and indicating that courts should consider

each case ldquobased upon the facts and circumstances of the

defendantrsquos conduct and the harm to the plaintiffrdquo) see also

Saunders 526 F3d at 154 (citing federal appellate court

decisions upholding higher ratios) Driving while intoxicated

could result in death and it was fortunate that Coalson and

Stemke suffered relatively minor injuries ldquoWhile the circuit

court observed what it took to be a significant disparity

between the punitive award and the compensatory award that

14

contrast lsquodissipates when one considers the potential loss to

[Coalson] rsquordquo TXO Prod Corp v Alliance Res Corp 509

US 443 449-51 462 (1993) (upholding a ratio of 1526)

In upholding a ratio of 180 in Saunders the Fourth

Circuit observed that rigidly adhering to a single digit ratio

in all cases could sometimes prevent punitive damages from

fulfilling their purposes of punishment and deterrence 526

F3d at 154 For this reason the court determined that

remitting the punitive damages award in that case ldquowould leave

little deterrent or punitive effectrdquo Id The 11786 ratio in

this case is not excessive for Canchola has demonstrated a need

for stronger medicine to cure his disrespect for the law

Additionally a comparison of criminal and civil penalties

for habitually driving while intoxicated and for driving with a

revoked license supports the juryrsquos punitive damages award The

Commonwealth punishes repeated instances of driving while

intoxicated by increasing fines and mandatory sentences See

Code sectsect 182-266 and -270 In addition to the statutory scheme

for punishing driving while intoxicated the legislature has

prescribed punishments for habitual offenders in the form of

license revocation mandatory safety courses and increasing

penalties for driving without a license See eg Code sectsect

462-389 (mandatory revocation of license upon conviction of

driving while intoxicated) 462-3551 (mandatory participation

15

in safety course upon second offense of driving with revoked

license) 462-391 (mandatory three-year revocation for multiple

convictions of driving while intoxicated) see also sect 462-357

(minimum one year and maximum five yearsrsquo imprisonment for

felony offense of driving with revoked license while

intoxicated) These penalties demonstrate the seriousness with

which Virginia views the act of driving while intoxicated with a

suspended or revoked license See State Farm 538 US at 428

(noting that criminal penalties are less useful for determining

the precise amount of a punitive damages award) Upon

consideration of the constitutional guidelines provided by the

United States Supreme Court we conclude that the juryrsquos

punitive damages award is not excessive under the Due Process

Clause of the Fourteenth Amendment

Conclusion

Therefore we hold that the circuit court erred in granting

Cancholarsquos motion for remittitur because Coalsonrsquos punitive

damages award was not excessive under Virginia law nor did it

offend Cancholarsquos due process rights Accordingly the judgment

of the circuit court will be reversed the jury verdict awarding

Coalson $100000 in punitive damages will be reinstated and

final judgment will be entered on the verdict

Reversed and final judgment

16

JUSTICE McCLANAHAN dissenting

The jury awarded Coalson $100000 in punitive damages

which was nearly 18 times the amount of her compensatory damage

award of $5600 I would affirm the judgment of the circuit

court ordering remittitur of a portion of the punitive damages

and reducing the award to $50000 still almost 9 times the

amount of compensatory damages

While not expressly overruling this Courtrsquos precedent the

majority opinion makes clear that the ldquoreasonableness between

the damages sustained and the amount of the awardrdquo as well as

ldquothe proportionality between the compensatory and punitive

damagesrdquo Baldwin v McConnell 273 Va 650 658 643 SE2d

703 706 (2007) are hardly relevant to the circuit courtrsquos

consideration of whether to remit a portion of a punitive

damages award What is also clear is that the majority affords

little weight to the circuit courtrsquos action rather than the

ldquosubstantial weightrdquo the circuit court is due Id at 657 643

SE2d at 707 (quoting Poulston v Rock 251 Va 254 263 467

SE2d 479 484 (1996))

Following this Courtrsquos previous directives the circuit

court employed the proper analysis in considering Cancholarsquos

motion for remittitur In reaching its decision the circuit

court explained

17

I did take into consideration the Virginia Supreme Court factors reasonableness between the damages sustained and the amount of the award the measurement of punishment required whether the award will amount to a double recovery the proportionality between the compensatory and punitive damages and the ability of the Defendant to pay such that there is any evidence on those items for me

These are precisely the factors this Court has repeatedly

instructed circuit courts to consider See Baldwin 273 Va at

658 643 SE2d at 707 (judicial review upon motion for

remittitur ldquorequiresrdquo consideration of the following 1

reasonableness between damages sustained and amount of award

2 measurement of punishment required 3 whether award will

amount to double recovery 4 proportionality between the

compensatory and punitive damages and 5 ability of defendant

to pay) see also Condominium Servs Inc v First Ownersrsquo

Assrsquon of Forty Six Hundred Condo Inc 281 Va 561 580 709

SE2d 163 175 (2011) Poulston 251 Va at 263 467 SE2d at

484

Upon consideration of these factors the circuit court

concluded the punitive damages award to Coalson was excessive in

relation to her compensatory damages Finding the award

ldquoarbitraryrdquo the court noted it was ldquotroubling to [it] that

there is a significant disparity between the compensatory damage

award for one Plaintiff and the compensatory damage award for

18

the other Plaintiffrdquo while the ldquopunitive damage award in each

of the cases is one hundred thousand dollarsrdquo Furthermore

ldquoconsidering the proportionality between the compensatory and

the punitive damage award[ ]rdquo to Coalson the circuit court

found the almost 1-to-18 ratio disproportionate and excessive

particularly in light of the 1-to-7 ratio the compensatory

damages bore to the punitive damages in the verdict for Stemke1

The amount of the circuit courtrsquos remittitur was certainly

consistent with prior precedent This Court has found a

proportionality of punitive damages 25 times the compensatory

damages an acceptable ratio Poulston 251 Va at 263 467

SE2d at 484 Condominium Servs Inc 281 Va at 580 709

SE2d at 175 as well as a proportionality of punitive damages

approximately 66 and 67 times the compensatory damages Philip

Morris Inc v Emerson 235 Va 380 414 368 SE2d 268 287

(1988) In Stemkersquos case the punitive damages awarded were

approximately 7 times his compensatory damages which the

circuit court found reasonable In light of the ratios of

punitive to compensatory damage awards previously found

acceptable by this Court and the ratio found acceptable by the

circuit court in Stemkersquos case which involved the same accident

and conduct of the defendant I believe the circuit court

1 While the circuit court found Coalsonrsquos award excessive

it denied the motion for remittitur of Stemkes award

19

properly ordered the remittitur of a portion of Coalsonrsquos

punitive damages and reduction of her award from an amount that

was nearly 18 times her compensatory damages to an amount that

was nearly 9 times her compensatory damages

I disagree that it was error for the circuit court to

consider the punitive and compensatory damages awarded to Stemke

in determining the reasonableness between the damages sustained

by Coalson and the amount of her punitive damage award The

compensatory damages awarded to Stemke were 25 times more than

the compensatory damages awarded to Coalson yet as the circuit

court observed the punitive damages awarded to each were the

same leading the circuit court to conclude the amount of

punitive damages awarded to Coalson was arbitrary rather than

bearing a reasonable relation to the compensatory damages and

the punishment required See Stubbs v Cowden 179 Va 190

201 18 SE2d 275 280 (1942)(ldquoThe damages awarded should bear

some reasonable proportion to the real damages sustained and to

the measure of punishment required otherwise they indicate

prejudice or partialityrdquo)2 As compared to Stemkersquos punitive

damage verdict which was a little over 7 times the compensatory

2 The requirement that the punitive damages bear a

reasonable relationship to the actual damages has led this Court to remand an award of punitive damages to the circuit court for reconsideration when it has reversed a portion of the compensatory damages Little v Cooke 274 Va 697 719 652 SE2d 129 142 (2007)

20

damage verdict the jury verdict for Coalson against the same

defendant for the same conduct amounted to nearly 18 times the

verdict In other words the jury punished Canchola more

severely for the injuries sustained by Coalson than for the

injuries sustained by Stemke arising from the same accident If

not arbitrary the award was based on partiality toward Coalson

or prejudice against Canchola

This Courtrsquos prior holdings that prohibit the comparison of

jury verdicts awarding compensatory damages are not applicable

In John Crane Inc v Jones 274 Va 581 595 650 SE2d 851

858 (2007) and Rose v Jaques 268 Va 137 159 597 SE2d 64

77 (2004) this Court rejected the ldquoaverage verdict rulerdquo which

compares statewide or nationwide jury verdicts to reach an

ldquoaverage verdictrdquo because such a rule is not relevant to the

extent of actual pain and suffering experienced by the

plaintiff In Allied Concrete Co v Lester 285 Va 295 312

736 SE2d 699 708 (2013) the Court relied upon its holdings

in John Crane and Rose to conclude that it was error for the

trial court to compare injuries suffered by the plaintiffs3

However the rationale that a verdict for one personrsquos pain and

suffering is not a reasonable basis on which to judge the

3 As I stated in Allied Concrete 285 Va at 316 n3 736

SE2d at 710 n3 (McClanahan J concurring in part and dissenting in part) I did not agree that the trial court in that case engaged in improper verdict comparison

21

excessiveness of a verdict for another personrsquos pain and

suffering can only apply when the issue involves the

excessiveness of a compensatory damage award Ignoring the

rationale of these holdings the majority has adopted a bright-

line rule forbidding any comparison of verdicts even when such

a comparison is actually probative of the analysis and dictated

by reason

Indeed our own Court compares ratios found acceptable in

other cases that involve not only different plaintiffs but also

different defendants different conduct and different types of

actions entirely See Baldwin 273 Va at 659 643 SE2d at

707 (noting the punitive damage award approved in Poulston was

two and one-half times the compensatory award) Condominium

Servs Inc 281 Va at 581 709 SE2d at 175 (noting the

punitive damage award in Poulston of 25 times the compensatory

award and a punitive damage award in Philip Morris of 66 times

the compensatory award) In this case involving a single

automobile accident and a consolidated trial the circuit court

compared the ratios as between two injured plaintiffs against

one defendant who caused their injuries Arguably then the

circuit courtrsquos comparison of the verdicts in this case was more

probative to the issue of reasonableness and proportionality

than the comparisons this Court has made to ratios in unrelated

cases

22

Presumably we will ldquolsquogive substantial weight to the trial

courtrsquos action and affirm it unless from our view of the

record the trial court acted improperlyrsquordquo Baldwin 273 Va at

657 643 SE2d at 706 (quoting Poulston 251 Va at 263 467

SE2d at 484) Nevertheless despite the circuit courtrsquos

faithful application of the law and the obvious disparity of

ratios of compensatory to punitive damages between the Coalson

and Stemke awards each of which were based on the same conduct

of Canchola the majority finds the circuit courtrsquos action

improper In Allied Concrete 285 Va at 317 736 SE2d at

711 I expressed my belief that ldquofor all practical purposes the

last nail in the coffin of remittitur [of compensatory damages]

has been drivenrdquo It appears that remittitur of punitive

damages has suffered the same fate

PRESENT All the Justices THE BYRD THEATRE FOUNDATION OPINION BY v Record No 130691 JUSTICE ELIZABETH A McCLANAHAN FEBRUARY 27 2014 DAVID M BARNETT

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Melvin R Hughes Jr Judge

In this premises liability action The Byrd Theatre

Foundation (the Foundation) appeals a final judgment entered

against it in favor of David M Barnett (Barnett) The

Foundation argues that the circuit court erred in denying its

plea of charitable immunity and in failing to instruct the jury

on notice to a corporation We will affirm the judgment of the

circuit court

I BACKGROUND

The Foundation a non-profit corporation qualifying as a

tax-exempt organization under 26 USC sect 501(c)(3) owns the

Byrd Theatre a national historic landmark and motion picture

theater in Richmond that was opened in 1928 and houses a

Wurlitzer theater pipe organ installed the same year The

theater is operated by 1928 Limited Inc (1928 Limited) a

non-stock for-profit corporation formed by the Foundation

shortly after its purchase of the Byrd Theatre in 2007

Barnett a member of the Foundations organ restoration

subcommittee was injured in the theaters organ chamber when

2

he was performing repairs to the organ and a wooden plank he

stepped upon gave way causing him to fall four feet to the

floor1 Asserting that the wooden plank was not properly

secured Barnett filed suit against the Foundation and 1928

Limited claiming they failed to maintain the premises in a

reasonably safe condition and warn him of the dangerous

condition of the plank Following a jury trial the jury

rendered a plaintiffrsquos verdict against the Foundation and a

defense verdict in favor of 1928 Limited The circuit court

entered judgment on the jurys verdict after denying various

post-trial motions filed by the Foundation

II CHARITABLE IMMUNITY

Prior to trial the Foundation filed a plea of charitable

immunity Because Barnett stipulated that the Foundation is a

charitable organization operating in accordance with its

charitable purpose the issue presented to the circuit court

was limited to whether Barnett was a beneficiary of the

Foundation at the time of his accident

1 The organ chamber is located three stories above the floor level of the auditorium and houses the ranks of pipes and instruments and other parts of the organ necessary to power the organ and relay signals from the organ console to the music producing parts located in the chamber Wooden walking planks are located approximately four feet above the floor of the chamber to provide access to certain parts of the organ

3

A Evidence and Ruling on Plea

At the hearing on the plea the Foundation presented

evidence that pursuant to its articles of incorporation the

Foundation was formed [t]o cultivate promote and develop the

publics knowledge awareness understanding and appreciation

of the performing arts After its purchase of the Byrd

Theatre the Foundation through an amendment to its bylaws

narrowed its mission to owning and restoring the Byrd Theatre

as a grand movie palace and community resource In

performing this mission the Foundations principal activity is

raising funds to be used in its restoration of the theater

including the organ Because the Foundation does not have any

salaried employees it utilizes independent contractors to

perform any such restoration and repair of the theater and the

organ

Barnett is a long-time theater pipe organ enthusiast who

has held memberships and leadership positions in several organ

enthusiast clubs that are dedicated to the preservation and

appreciation of historic pipe organs He purchased a Wurlitzer

theater pipe organ in 1978 and over a two-year period

dismantled restored reassembled and installed the organ in

his home Although Barnett does not play the organ he is

fascinated with the sound and mechanism of theater organs and

has received visiting organists to play the organ installed in

4

his home He is passionate about the preservation and

restoration of the Byrd Theatre organ and has attended the Byrd

Theatre over the years to hear the organ played

From 1976 to 1990 Barnett consulted on and performed

restoration and repair work to the Byrd Theatre organ either as

an individual volunteer or with a group of volunteers from the

Virginia Theatre Organ Society In 2008 Barnett was asked by

Robert Gulledge Jr the house organist for the Byrd Theatre

to serve on the Foundations organ subcommittee of the theater

restoration committee2 As the steward of the organ the

organ subcommittee arranges for and oversees restoration of the

organ Barnetts duties were of an advisory nature and

included making contacts with organ technicians who might enter

into contracts with the Foundation for long-term restoration or

short-term renovations as well as reviewing the terms and

scope of work included in proposed contracts

During a period in which the subcommittee was without an

organ technician under contract Barnett volunteered to

undertake certain repairs to the organ that were needed to

2 Barnett testified that between 1990 and 2008 he did not perform work on the organ and was not affiliated with the Byrd Theatre though he would occasionally bring out-of-town company to see the theater or its lobby

5

address sound quality issues3 While making repairs to the

organ was not within the scope of his duties as a member of the

organ restoration subcommittee the work needed to be done

and nobody else was available to do it Barnett arranged to

perform the repairs with Linwood Lunde a former house organist

for the Byrd Theatre who was still affiliated with the theater

and obtained a key to the organ chamber from the theater

manager When Barnett fell in the organ chamber Lunde was in

the auditorium working at the organ console

Barnett testified that he volunteered to perform the

repairs since he had a passion to have the organ work properly

as a service to the Byrd Theatre and was happy to do that

because if that organ had not had people take an interest in

it it would have most likely gone silent Barnett further

testified that he gain[ed] satisfaction from knowing that [he]

was helping the theater and getting the work done that needed

to be done According to Barnett he didnt get any other

satisfaction out of it

Based on the evidence presented the Foundation asserted

that Barnett was a beneficiary of the Foundations charitable

3 Although an organ technician had been under contract he was unable to resolve the specific problem being addressed by Barnett and Lunde and the Foundation was in the process of terminating his contract and contracting with a new technician

6

purpose through the work he performed since the sound the

mechanism and the music are all improved which is something

hes interested in and passionate about In permitting him to

perform this work the Foundation argued Barnett was given

access to one of the few original installation theater organs

in the country and provided the unique opportunity to work on

the organ in pursuance of his long-time hobby and passion

Rejecting the Foundations argument the circuit court

concluded that Barnett was not the Foundations beneficiary at

the time of his accident Specifically the circuit court

found that [t]he [Foundations] accepted charitable charge is

to provide a venue for the performing arts and [t]he by-law

provision regarding restoration and preservation is aimed at

facilitating that charge of affording performing arts The

circuit court found no evidence that [the Foundation] was

extending and [Barnett] was receiving services or a charitable

benefit consistent with [the Foundations] charitable aims

Thus according to the circuit court [g]iven the

[Foundations] charitable purpose to provide a facility for the

performing arts and according to its by-laws to preserve and

restore the Byrd Theatre including the organ it cannot be

said that [Barnett] was the object of the charitys bounty at

the time [of his accident]

B Analysis

7

The doctrine of charitable immunity being firmly embedded in

the law of this Commonwealth is grounded in the public policy

that the resources of charitable institutions are better used

to further the institutions charitable purposes than to pay

tort claims lodged by the charitys beneficiaries Ola v

YMCA of S Hampton Roads Inc 270 Va 550 555 621 SE2d

70 72 (2005) Consistent with this policy an entity that is

organized for a recognized charitable purpose and operates in

accord with that purpose is immune from liability based upon

claims of negligence asserted by beneficiaries of the entitys

charitable bounty Ola 270 Va at 556 621 SE2d at 72-73

see also University of Va Health Servs Found v Morris 275

Va 319 331-34 657 SE2d 512 517-20 (2008) Straley v

Urbanna Chamber of Commerce 243 Va 32 35-38 413 SE2d 47

49-51 (1992) Thrasher v Winand 239 Va 338 340-42 389

SE2d 699 701-02 (1990) This is so because [o]ne who

accepts the benefit either of a public or a private charity

enters into a relation which exempts his benefactor from

liability for the negligence of his servants in administering

the charity at any rate if the benefactor has used due care

in selecting those servants Weston v Hospital of St

Vincent 131 Va 587 604 107 SE 785 791 (1921) (quoting

8

Hospital of St Vincent v Thompson 116 Va 101 109 81 SE

13 16 (1914)4 Thus [c]haritable immunity applies only to

claims of negligence asserted by those who accept the

charitable institutions benefits Morris 275 Va at 331

657 SE2d at 517

The dispositive question in this case therefore is whether

Barnett was in a beneficial relationship with the Foundation

at the time of his accident Ola 270 Va at 563 621 SE2d

at 77 As we have explained a beneficiary is a person who

receives something of value which the organization by its

charitable purpose undertakes to provide Id at 564 621

SE2d at 77 (emphasis added) Based on the Foundations

articles of incorporation and amended bylaws its charitable

aim was to cultivate an appreciation for the performing arts

through restoration and preservation of the Byrd Theatre and

the organ The Foundation was neither organized nor operated

for the purpose of providing theater organ enthusiasts an

opportunity to repair or restore the Byrd Theatre organ At

the time of Barnetts accident the Foundation was not

undertaking to provide Barnett with the benefit of an

4 A charity is immune from liability for the negligent acts of its agents and employees provided due care has been exercised in their selection and retention However the shield of immunity does not extend to acts of willful or gross negligence Ola 270 Va at 556 621 SE2d at 72

9

opportunity to repair its organ In short the Foundations

mission was to restore and preserve the theater including its

organ not to provide a venue for individuals such as Barnett

to practice their hobby of restoring organs

To the contrary the Foundation hired contractors to perform

the organ restoration and repairs In contrast to accepting a

service that the Foundation operated to provide Barnett was

providing a service to the Foundation in furtherance of the

Foundations own aim of preserving and restoring the organ

which otherwise would have been performed by a paid contractor

As Barnett testified he had a passion to have the organ work

properly as a service to the Byrd Theatre and was happy to do

that because if that organ had not had people take an interest

in it it would have most likely gone silent According to

Barnett he gained satisfaction from knowing that [he] was

helping the theater and getting the work done that needed to

be done Based on the evidence therefore the circuit court

properly found that Barnett was not receiving the bounty of the

Foundations charitable works at the time of his accident5

5 The Foundation readily acknowledges that Barnett was providing a service to the Foundation but argues that this fact alone should not exclude him from the Foundations class of beneficiaries We agree and therefore our holding does not stand for the proposition that all persons who provide a service or other benefit to the charity cannot be deemed

10

We reject the Foundations position that Barnetts passion for

the preservation and restoration of the Byrd Theatre organ and

receipt of personal satisfaction from contributing to such

restoration established a beneficial relationship with the

Foundation It could be said that most volunteers receive

gratification through their charitable works and that many

likely provide services consistent with their own hobbies or

interests But the receipt of personal satisfaction or

pleasure gained through the donation of ones services to a

charity does not create a beneficial relationship with the

charity for purposes of charitable immunity

In sum we find the [circuit] courts analysis well

reasoned and amply supported by the evidence Ola 270 Va at

559 621 SE2d at 74 Therefore the circuit court did not err

in denying the Foundations plea of charitable immunity

III JURY INSTRUCTIONS

The Foundation also asserts that the circuit court erred in

refusing to instruct the jury regarding imputed actual notice

from agents to corporations

beneficiaries thereof The adoption of any such rule would be inappropriate because the determination is necessarily driven by the specific facts of the case and in particular the activity engaged in by the tort claimant at the time of the accident

11

The evidence at trial proved that 1928 Limited as the

manager of the Byrd Theatre operated the theater and

maintained its premises except with regard to the organ which

was maintained by the Foundation Barnett presented evidence

that an employee of 1928 Limited had knowledge of the condition

of the wooden plank on which Barnett was standing when he fell

and argued that such notice should be imputed to 1928 Limited

and the Foundation The Foundation took the position that this

knowledge could not be imputed to the Foundation since the 1928

Limited employee learned of the condition of the plank many

years prior to his employment and in any event 1928 Limited

was not permitted to work on the organ

The Foundation offered the following jury instruction

which was rejected by the circuit court

A corporation knows a fact only as its officers and agents know it The corporation does not know all that its agents know but only what comes to the agents while acting for the corporation within the scope of their agency when it is the agents duty to report their knowledge to the general officer or agents of the company The Foundation argued that the proposed jury instruction

tracked the language from Rudolph v Farmers Supply Co 131

Va 305 310-11 108 SE 638 639 (1921) and properly

addressed the imputed notice issue raised by Barnett

According to the Foundation [n]otice was a critical issue in

the case and an instruction on imputed actual notice was

12

necessary for the jury to determine whether [the employees]

knowledge from the early 1980s imputed to 1928 [Limited] and

the Foundation6

It is unnecessary for us to determine whether the circuit

court erred in refusing the Foundations proposed jury

instruction on imputed notice The jury found in favor of 1928

Limited and therefore absolved the Foundation from any

liability arising from 1928 Limiteds conduct See Virginia

State Fair Assn v Burton 182 Va 365 372 28 SE2d 716

719 (1944) (verdict in favor of agent and against principal

necessarily exonerated principal of liability arising from

agents alleged negligence) Furthermore the jury was

entitled to find the Foundation liable based on the

Foundations independent negligence without regard to 1928

Limiteds liability or conduct7 See Wintergreen Partners Inc

6 Barnett also offered an instruction on imputed notice that was refused by the circuit court

7 In particular the jury was given the following instruction governing premises liability of owners or occupants

An owner or occupant of premises does not guarantee an invitees safety but has the duty

(1) to use ordinary care to have the premises in a reasonably safe condition for an invitees use consistent with the invitation unless the invitee knows or should have known of the unsafe condition and

(2) to use ordinary care to warn an invitee of any unsafe condition about which the owner or occupant knows or by

13

v McGuireWoods LLP 280 Va 374 379 698 SE2d 913 916

(2010) Therefore because the jury rejected a theory of

liability based on 1928 Limiteds knowledge of the unsafe

condition of the wooden plank but rather based its verdict on

the separate negligence of the Foundation it is immaterial

whether notice by 1928 Limiteds employee could properly be

imputed to 1928 Limited and the Foundation8 Virginia State

Fair Assn 182 Va at 372 28 SE2d at 719 Accordingly any

error by the circuit court in failing to instruct the jury on

imputed notice would be harmless

IV CONCLUSION

the use of ordinary care should know unless the unsafe condition is open and obvious to a person using ordinary care for his own safety If an owner or occupant fails to perform either or both of these duties then it is negligent

8 The Foundation contends that Barnett is precluded from arguing on appeal that the jury could properly find the Foundation independently negligent based on the premises liability instruction because the only theory Barnett argued to the jury was that the Foundation was liable based on knowledge imputed from 1928 Limiteds employee to 1928 Limited and the Foundation This contention cannot be sustained because the Foundation did not object to the premises liability instruction and has not assigned error related to the sufficiency of the evidence to support a verdict based on that instruction See Wintergreen Partners 280 Va at 379 689 SE2d at 916

14

For the foregoing reasons we will affirm the judgment of

the circuit court

Affirmed

  • Commonwealth v Peterson
    • OPINION BY
      • 11-05-13 Ford 130837 Br Amicus
      • 130627 VTLA Amicus Brief of VTLA opening amicus brief
      • 130691 amicus final
        • 130691amicuscovpdf
        • 130691amicustocpdf
        • 130691amicuspdf
          • 3-4-14 Rec No 130627 VTLA Amicus Reply Brief
          • Coalson v Canchola
          • The Byrd Theatre Foundation v Barnett

2

On the morning of April 16 2007 at approximately 730

am the Virginia Tech Police Department received a call that

an incident had occurred in the West Ambler Johnston Hall

dormitory but the specifics of what had happened were unknown

When officers arrived they found two gunshot victims a female

and a male clad in only his boxer shorts Although officers

from the Virginia Tech Police Department were the first on the

scene the Blacksburg Police Department led the investigation

At least one member of the Virginia State Police also joined the

investigation

During the investigation police came to believe that they

were investigating a domestic homicide because there were no

signs of forced entry or a robbery They believed that a

ldquotargeted shootingrdquo had occurred because the shooting was in a

ldquoless conspicuous area kind of hidden in the backrdquo2 making

it ldquoeasier for the suspect to get in and get out without being

noticedrdquo Police believed that this was an isolated incident

that posed no danger to others and that the shooter had fled the

area They did not believe that a campus lockdown was

necessary

At the crime scene police observed a bloody footprint and

were determined to locate the source of the print Police also

2 The officers described the area as being one that you would not even know was there if you did not live there

3

learned that the femalersquos boyfriend was a gun enthusiast

Once the femalersquos boyfriend was identified as a person of

interest a ldquoBe On The Lookoutrdquo (ldquoBOLOrdquo) went out for him The

police located the boyfriend at approximately 945 am

Officers described him as appearing ldquo[s]hockedrdquo and ldquo[s]caredrdquo

The boyfriend told the police that he was en route to Virginia

Tech from Radford University where he attended school because

while he was in his 9 am class he heard from a friend who

attended Virginia Tech who told him what had happened He

explained that he had dropped his girlfriend off that morning

around 7 am and then headed to Radford University for his 8

am class The boyfriend consented to a search of his vehicle

and shoes He also allowed the police to conduct a gunshot

residue test As police spoke with the boyfriend they received

word that there were ldquoactive shotsrdquo in Norris Hall Officers

quickly took the boyfriendrsquos contact information told him that

they would be in touch and left for the Virginia Tech campus

Police subsequently executed a search warrant of the home

of the boyfriend of the female victim found in West Ambler

Johnston Hall They found nothing

Charles W Steger the President of Virginia Tech

testified that he learned of ldquoa shootingrdquo at approximately 8

am and he called a meeting of a group of administrators tasked

with campus safety called the University Policy Group

4

(hereinafter ldquoPolicy Grouprdquo) to assess the situation and handle

the release of information pertaining thereto Shortly after 8

am President Steger spoke with Wendell Flinchum the Chief of

the Virginia Tech Police Department and learned that a female

and a male student had been shot at least one of whom was dead

that the shootings appeared targeted likely domestic in nature

and that the shooter had likely left the campus

The Policy Group convened around 830 am During this

meeting Steger learned that the police were on the lookout for

the female victimrsquos boyfriend as a person of interest One of

the grouprsquos members Ralph Byers the Executive Director for

Government Relations notified the Governorrsquos Office at

approximately 845 am of what had happened in West Ambler

Johnston Hall but indicated that the information was not

releasable because Virginia Tech was working on a press release

The email to the Governorrsquos office stated ldquoNot releaseable yet

One student dead one wounded Gunman on loose State

police are involved No details available yetrdquo Byers claimed

that he used the phrase ldquo[g]unman on the looserdquo as shorthand for

the ldquoperpetrator has not been apprehendedrdquo Virginia Tech

wanted to notify the next of kin before releasing the

information to the public Steger instructed a Policy Group

member to compose a campus notice and following revisions and a

technical difficulty with the computer system it was sent out

5

by campus-wide ldquoblast e-mailrdquo at 926 am The notice stated

that ldquo[a] shooting incident occurred at West Ambler Johnston

[Hall] earlier this morning Police are on the scene and

investigatingrdquo and advised students to be alert for anything

suspicious At 928 am the Policy Group also sent a message

to the Board of Visitors stating ldquo[t]wo students were shot this

morning one fatally We will be back in touch with more

information as soon as it is known Please do NOT release the

information about the fatalityrdquo

At approximately 945 am the mass shooting at Norris Hall

began At 950 am a second campus-wide ldquoblast e-mailrdquo was

sent stating that ldquo[a] gunman is loose on campus Stay in

buildings until further notice Stay away from all windowsrdquo

Erin Peterson 18 and Julia Pryde 23 were among the victims

murdered in Norris Hall Police later identified Seung-Hui Cho

as the shooter

After the Norris Hall shooting police realized that the

patterns on shoes worn by Cho did not match the prints found in

West Ambler Johnston Hall The day after the shootings police

learned that the gun used to murder the two people in West

Ambler Johnston Hall matched the one Cho used in Norris Hall

Police later found bloody clothing belonging to Cho that had the

DNA from one of the victims of the West Ambler Johnston Hall

shooting on it

6

The Administrators filed wrongful death claims in

Montgomery County Circuit Court against Chorsquos estate the

Commonwealth and eighteen other individuals including Steger

The cases were consolidated but following certain non-suits and

pretrial orders (see companion appeal Peterson v Commonwealth

Record No 121720) the Commonwealth was the sole defendant at

trial The Administrators claimed that the Commonwealth was

liable for the actions of the Commonwealthrsquos employees at the

university pursuant to the Virginia Tort Claims Act (ldquoVTCArdquo)

Code sect 801-1951 et seq They alleged that a special

relationship existed between the Commonwealthrsquos employees at

Virginia Tech and Peterson and Pryde that gave rise to the

Commonwealthrsquos duty to warn Peterson and Pryde of third party

criminal acts and that the Commonwealthrsquos failure to warn them

was the proximate cause of their deaths and the Administratorsrsquo

losses The Commonwealth argued that there was no foreseeable

harm to the students and that the evidence failed to establish

that any alleged breach of a duty of care was the proximate

cause of the deaths

The Commonwealth objected to several jury instructions

including Instruction 3 which provided in summary that

Peterson and Pryde were business invitees of Virginia Tech and

enjoyed a special relationship with the university The

instruction further stated that this status imposed a duty on

7

the university employees to maintain a safe campus Based on

this instruction the jury was told that if they found that the

university employees should have reasonably foreseen that injury

arising from the criminal conduct of a third party might occur

but failed to warn students the Commonwealth should be found

negligent The instruction also stated that the jury should

find in favor of the Administrators if that failure to warn was

the proximate cause of the alleged injuries The jury returned

a verdict in favor of the Administrators awarding $4 million to

each family

Upon the Commonwealthrsquos motion the court reduced each

verdict to $100000 in accordance with the VTCA Code sect 801-

1953 The Commonwealth moved to set aside the jury verdict

arguing it was contrary to well-established Virginia law that a

special relationship does not exist under the circumstances

here citing Burns v Gagnon 283 Va 657 668 727 SE2d 634

641 (2012) which was decided post-trial The Commonwealth

again argued that the verdict should be set aside because the

evidence was insufficient as a matter of law to give rise to a

duty to protect from third party criminal acts Alternatively

the Commonwealth argued that the trial court should order a new

trial due to erroneous jury instructions The trial court

denied these motions This appeal follows

II ANALYSIS

8

On appeal the Commonwealth argues that

1 The circuit court erred in finding that the Commonwealth Virginia Tech andor their employees had a special relationship with Peterson and Pryde that imposed a duty and therefore erred in instructing the jury that there was such a duty in submitting the case to the jury and in entering judgment on the juryrsquos verdict 2 Even assuming that the Commonwealth Virginia Tech or their employees had a relevant special relationship under Virginia law the evidence adduced did not give rise to a duty to warn of third party criminal acts and therefore the circuit court erred in submitting the case to the jury and in entering judgment on the juryrsquos verdict 3 The circuit court erred in finding that there was sufficient evidence regarding causation to raise a jury issue and therefore erred in submitting the case to the jury and in entering judgment on the juryrsquos verdict 4 Even if there were a theory that might have allowed plaintiffs to recover the circuit courtrsquos instructions (2 3 4 10 amp 11) misstated Virginia law regarding the existence of a relevant special relationship the existence and type of duty purportedly owed the standard that triggers a duty to warn of third party criminal acts as well as regarding the reasonable expectation of parents and students at a university and therefore the juryrsquos verdict must be overturned

We hold that the facts in this case do not give rise to a duty

for the Commonwealth to warn students of the potential for third

party criminal acts Therefore we do not reach the

Commonwealthrsquos causation or jury instruction arguments

9

As a general rule a person does not have a duty to warn or

protect another from the criminal acts of a third person

Thompson v Skate America Inc 261 Va 121 128-29 540 SE2d

123 127 (2001) ldquoThis is particularly so when the third person

commits acts of assaultive criminal behavior because such acts

cannot reasonably be foreseenrdquo Burdette v Marks 244 Va 309

311-12 421 SE2d 419 420 (1992) However the general rule

does not apply in all situations ldquolsquoThere are narrow exceptions

to this rulersquo but the application of those exceptions lsquois

always fact specific and thus not amenable to a bright-line

rule for resolutionrsquordquo Taboada v Daly Seven Inc 271 Va

313 322-23 626 SE2d 428 432 (2006) (alteration omitted)

(quoting Yuzefovsky v St Johnrsquos Wood Apartments 261 Va 97

106 540 SE2d 134 139 (2001)) affrsquod on rehrsquog 273 Va 269

270 641 SE2d 68 68 (2007) Before an exception comes into

play the facts must establish the existence of a special

relationship

ldquolsquo[W]hether a legal duty in tort exists is a pure question

of lawrsquordquo to be reviewed de novo Gagnon 283 Va at 668 727

SE2d at 642 (quoting Kellermann v McDonough 278 Va 478

487 684 SE2d 786 790 (2009) To prevail

the plaintiff must establish that there is a special relationship either between the plaintiff and the defendant or between the third party criminal actor and the defendant The necessary special

10

relationship may be one that has been recognized as a matter of law or it may arise from the factual circumstances of a particular case

Yuzefovsky 261 Va at 107 540 SE2d at 139 (citation and

footnote omitted) For the purposes of this opinion we will

assume without deciding that the threshold requirement that such

a special relationship exists is satisfied on these facts

Having assumed without deciding that a special relationship

exists the question becomes whether as a matter of law under

the facts and circumstances of this case the Commonwealth had a

duty to warn students about the potential for third party

criminal acts ldquoThe law determines the duty and the jury upon

the evidence determines whether the duty has been performedrdquo

Acme Markets Inc v Remschel 181 Va 171 178 24 SE2d 430

434 (1943)

A review of our prior cases indicates that in order for a

duty to be imposed upon a defendant the degree of the

foreseeability of harm that the plaintiff must establish depends

on the nature of the special relationship We have recognized

two levels of foreseeable harm known or reasonably foreseeable

harm Taboada 271 Va at 325-26 626 SE2d at 434 and

ldquoimminent probability of harmrdquo the heightened degree of

foreseeability that arises where the defendant ldquoknows that

criminal assaults against persons are occurring or are about to

11

occur on the premisesrdquo based upon ldquonotice of a specific danger

just prior to the assaultrdquo Thompson 261 Va at 128-29 540

SE2d at 127 (citing Wright v Webb 234 Va 527 533 362

SE2d 919 922 (1987)) Certain special relationships such as

that of a common carrierpassenger innkeeperguest and

employeremployee impose a duty to warn when the danger of third

party criminal acts is known or reasonably foreseeable See

Taboada 271 Va at 325-26 626 SE2d at 434 (innkeeperguest)

AH v Rockingham Publishing Co Inc 255 Va 216 221 495

SE2d 482 486 (1998)(employeremployee) Connell v Chesapeake

amp Ohio Ry Co 93 Va 44 62 24 SE 467 470 (1896)(common

carrierpassenger)

In instances however where the special relationship was

that of business ownerinvitee or landlordtenant we have

imposed a duty to warn of third party criminal acts only where

there was ldquoan imminent probability of injuryrdquo from a third party

criminal act Yuzefovsky 261 Va at 109 540 SE2d at 1413

3 In this case the circuit court instructed the jury that there was a business ownerinvitee relationship between the Commonwealth and the students and that there was a duty to warn if the danger was reasonably foreseeable This was error because our case law is clear that when the relationship is that of business ownerinvitee the duty to warn arises only if there is an imminent probability of harm from a third party criminal act However because we conclude that under the facts of this case no duty was established under the more lenient standard of foreseeability this distinction is not dispositive in the resolution of this appeal

12

Thus the duty to warn of danger from third party criminal acts

has remained an exception to the general rule Burdette 244

Va at 312-13 421 SE2d at 421

Where the standard was that the duty to warn or protect was

present when there was ldquoan imminent probability of injuryrdquo from

a third party criminal act this Court has held that the duty to

warn existed as a matter of law in the unusual situation where

an on-duty police officer failed to intervene when he responded

to the scene of a motor vehicle accident and observed one driver

attack a bystander who had stopped to render assistance Id at

310-11 421 SE2d at 419-20 More frequently however this

Court has concluded that facts relied upon in particular cases

fail to establish a duty as a matter of law to protect against

third party criminal acts See eg Dudas v Glenwood Golf

Club Inc 261 Va 133 140 540 SE2d 129 133 (2001)

(holding that two robberies within the month preceding the

attack on plaintiff was not a ldquolevel of criminal activityrdquo that

would ldquohave led a reasonable business owner to conclude that its

invitees were in imminent danger of criminal assaultrdquo)

Yuzefovsky 261 Va at 109 540 SE2d at 141 (concluding as a

matter of law that employee misrepresentations about the safety

of an apartment complex where in one year 656 crimes including

113 against persons had been reported failed to give rise to

the duty to warn or protect from harm because these facts failed

13

to establish ldquoan imminent probability of injury to [the

plaintiff] from ardquo criminal act of a third party) Burns v

Johnson 250 Va 41 42-45 458 SE2d 448 449-52 (1995) (trial

court erred as a matter of law in failing to hold that the

fifteen minutes between an individual making sexual advances to

a store clerk and abducting and raping a store patron did not

give rise to the duty to protect against third party criminal

acts)

In cases where it was alleged that a special relationship

gave rise to the duty to warn because the danger of harm from

third party criminal acts was known or reasonably foreseeable

this Court has similarly frequently concluded that the duty to

warn was not present as a matter of law See AH 255 Va at

221-22 495 SE2d at 486 (stating that an employer has no duty

to protect an employee from third party criminal acts unless the

danger is ldquoknown or reasonably foreseeablerdquo as a matter of law

and concluding that knowledge of similar assaults in the

preceding five years was not sufficient) Connell 93 Va at 58

24 SE at 469 (common carrier ldquocannot be deemed to have

anticipated nor be expected to guard and protect [a passenger]

against a crime so horrid and happily so rare as that of

murderrdquo)

In only rare circumstances has this Court determined that

the duty to protect against harm from third party criminal acts

14

exists See Taboada 271 Va at 325-26 626 SE2d at 434

(concluding that like a common carrier an innkeeper has a

ldquoduty of utmost care and diligencerdquo to protect guests from third

party criminal acts where the danger is known or reasonably

foreseeable and holding that where -- over a three year period

immediately prior to the attack -- hotel employees had called

police 96 times to report criminal conduct including robberies

malicious woundings shootings and other criminally assaultive

acts the hotel knew of the danger and had received a warning

from police that ldquoguests were at a specific imminent risk of

harmrdquo these were sufficient averments to survive a demurrer

and if proven to establish the duty as a matter of law)

Here even if this Court were to apply the less stringent

standard of ldquoknow or have reasonably foreseenrdquo there simply are

not sufficient facts from which this Court could conclude that

the duty to protect students against third party criminal acts

arose as a matter of law In this case the Commonwealth knew

that there had been a shooting in a dormitory in which one

student was critically wounded and one was murdered The

Commonwealth also knew that the shooter had not been

apprehended At that time the Commonwealth did not know who

the shooter was as law enforcement was in the early stages of

its investigation of the crime However based on

representations from three different police departments

15

Virginia Tech officials believed that the shooting was a

domestic incident and that the shooter may have been the

boyfriend of one of the victims Most importantly based on the

information available at that time the defendants believed that

the shooter had fled the area and posed no danger to others

This is markedly different from the situation presented in

Taboada 271 Va at 325-26 626 SE2d at 434 where police had

specifically warned the innkeepers that guests were at risk

prior to the time that the plaintiff in that case was shot by a

trespasser Based on the limited information available to the

Commonwealth prior to the shootings in Norris Hall it cannot be

said that it was known or reasonably foreseeable that students

in Norris Hall would fall victim to criminal harm Thus as a

matter of law the Commonwealth did not have a duty to protect

students against third party criminal acts

III CONCLUSION

Assuming without deciding that a special relationship

existed between the Commonwealth and Virginia Tech students

based on the specific facts of this case as a matter of law no

duty to warn students of harm by a third party criminal arose

Thus we will reverse the trial courtrsquos judgment holding that a

duty arose and enter final judgment in favor of the

Commonwealth

Reversed and final judgment

IN THE

Supreme Court of Virginia

MICHELLE C HARMANAdministratrix of the ESTATE of

JOSEPH A GRANA III Deceasedand

STEPHANIE E GRANA BEMBERISPersonal Representative of the ESTATE OF

JOSEPH E GRANA SR DeceasedAppellants

v

HONEYWELL INTERNATIONAL INCAppellee

RECORD NO 130627

BRIEF AMICUS CURIAEOF VIRGINIA TRIAL LAWYERSrsquo ASSOCIATION

IN SUPPORT OF APPELLANTS

LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond Virginia 23219 (804) 644-0477A Division of Lantagne Duplicating Services

Avery T Waterman Jr Esq (VSB No 27118)Patten Wornom Hatten amp Diamonstein LC12350 Jefferson Avenue Suite 300Newport News Virginia 23602Telephone (757) 223-4567Facsimile (757) 223-4499Awatermanpwhdcom

i

TABLE OF CONTENTS

Table of Authorities v Amicus Statement of Interest 1 Nature of the Case and Material Proceedings Belowhelliphelliphelliphelliphelliphelliphellip 2 Statement of Facts 2 0 CLARIFICATION OF OPINIONShelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 2 1 ASSIGNMENT OF ERROR 1helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 3 2 ASSIGNMENT OF ERROR 2helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 3 3 ASSIGNMENT OF ERROR 3helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 3 4 ASSIGNMENT OF ERROR 4helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 4 5 ASSIGNMENT OF ERROR 5helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 4 Argument 5 A THE TRIAL COURT ADMITTING THE HEARSAY MOONEY REPORT IS PREJUDICIAL ERRORhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 7 1 Public policy opposes the hearsay Mooney Reporthelliphelliphelliphellip 7 2 The Mooney Report is not admissible as ldquoreliable authorityrdquo under sect801-4011helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 11 a Honeywellrsquos expert did not testify he relied on the whole

Mooney Report in forming his opinion helliphelliphelliphelliphelliphelliphelliphellip 12 b Honeywellrsquos expert did not establish any of the Mooney Report is reliable authority helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 13 c The Mooney Report inherently is not reliable authorityhellip 13

ii

d The Mooney Report is not admissible as an exhibithelliphellip 15 3 The Mooney Report is not admissible as ldquofacts circumstances and datardquo under sect801-4011helliphelliphelliphelliphelliphelliphellip 15 4 The Mooney Report being admitted especially by exhibit and emphasized in closing is prejudicialhelliphelliphelliphelliphelliphelliphelliphelliphellip 16 B THE TRIAL COURT CONDONING ldquoABSENCE OF OTHER

INCIDENTSrdquo ARGUMENT IS PREJUDICIAL ERRORhelliphelliphelliphellip 19 1 Public policy opposes Honeywellrsquos absence of other incidents argument helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 19 2 Evidence and argument of Honeywellrsquos ldquosafety historyrdquo properly was excluded at pretrialhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 22 3 Honeywell violating Virginia law and pretrial Order in closing over objection improperly was condoned at trialhellip 22 4 Honeywellrsquos violations and judgersquos condonations were

prejudicialhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 25 C THE TRIAL COURT REFUSING TO GIVE ADMINISTRATORSrsquo

CLEAR COMPLETE CORRECT MULTIPLE PROXIMATE CAUSE INSTRUCTION IS PREJUDICIAL ERRORhelliphelliphellip 26

1 Public policy demands the jury be instructed fullyhelliphelliphelliphellip 26 2 There may be more than one proximate cause and other

proximate causes need not be excluded with certainty and Administratorsrsquo jury instruction so informed the jury but it was refused for not being a Model Jury Instructionhelliphelliphellip 28 3 Administrators are entitled to correct jury instructions supporting their theory regardless whether the scintilla-plus of credible evidence is in their andor Honeywellrsquos casehellip 30

iii

4 Refusal of Administratorsrsquo multiple-cause instruction is prejudicialhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 32 D THE TRIAL COURT ADMITTING ABELrsquoS ldquoCRITICAL WITNESSrdquo

OPINIONS IS PREJUDICIAL ERRORhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 32 1 Public policy opposes Abelrsquos expert opinionshelliphelliphelliphelliphelliphellip 33 2 Abelrsquos opinions are unfounded and improperhelliphelliphelliphelliphelliphellip 34 a They are unfounded as an experthelliphelliphelliphelliphelliphelliphelliphellip 35 b They are improper as a laymanhelliphelliphelliphelliphelliphelliphelliphelliphellip 36 3 Abelrsquos opinions are speculativehelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 36 4 Abelrsquos opinions are hearsayhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 37 5 Abelrsquos opinions are irrelevanthelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 37 6 Abelrsquos opinions invade the juryrsquos provincehelliphelliphelliphelliphelliphelliphellip 38 7 Abelrsquos opinions are prejudicialhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 39 E THE TRIAL COURT ADMITTING NORMANrsquoS LAY OPINIONS AND HEARSAY IS PREJUDICIAL ERRORhelliphelliphelliphelliphelliphelliphelliphelliphellip 40 1 Public policy opposes Normanrsquos lay opinionshelliphelliphelliphelliphellip 41 2 Normanrsquos lay opinions are unfoundedhelliphelliphelliphelliphelliphelliphelliphelliphellip 42 3 Normanrsquos lay opinions are irrelevanthelliphelliphelliphelliphelliphelliphelliphelliphellip 42 4 Normanrsquos lay opinions are speculativehelliphelliphelliphelliphelliphelliphelliphellip 43 5 Normanrsquos testimony is hearsayhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 43 6 Normanrsquos lay opinions and hearsay are prejudicialhelliphelliphellip 43

iv

Conclusion 44 Certificate 45 Addendum 1 (12114) Letter of Roger T Creager Esq [Appellantsrsquo Counsel] 2 (12114) Email of Patrick Hanes Esq [Appelleersquos Co-Counsel] 3 (12114) Email of Austin W Bartlett Esq [Appelleersquos Co-Counsel]

v

TABLE OF AUTHORITIES

CASES

Beavers v Commonwealth 245 Va 268 (1993)helliphelliphelliphelliphelliphelliphelliphelliphellip 24 Bostic v About Women OBGYN PC 275 Va 567 (2008) passim Burns v Gagnon 283 Va 657 (2012)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip15 36 Cheng v Commonwealth 240 Va 26 (1990)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 24 Chesapeake amp Potomac Tel v Sisson amp Ryan 234 Va 492 (1987)hellip 9 Claiborne v Parrish 2 Va (2 Wash) 146 (1795)helliphelliphelliphelliphelliphelliphelliphelliphellip 7 Combs v Norfolk and Western Ry Co 256 Va 490 (1998)helliphelliphelliphellip 35 Commonwealth v Wynn 277 Va 92 (2009)7 16 37 Dandridge v Marshall 267 Va 591 (2004)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 6 Doe v Dewhirst 240 Va 266 (1990)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 36 Ford Motor Co v Boomer 285 Va 141 (2013)helliphelliphelliphelliphelliphelliphelliphelliphelliphellip 29 Goins v Wendys International Inc 242 Va 333 (1991)19 20 25 Hale v Maersk Line Ltd 284 Va 358 (2012)helliphelliphelliphelliphelliphelliphelliphelliphelliphellip 6 Hinkley v Koehler 269 Va 82 (2005)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 6 Holmes v Levine 273 Va 150 (2007)27 30 31 Jones v Ford Motor Co 263 Va 237 (2000)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 20 Keesee v Donigan 259 Va 157 (2000) 35 Lawlor v Commonwealth 285 Va 187 (2013) 30

vi

May v Caruso 264 Va 358 (2002)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 13 McClung v Commonwealth 215 Va 654 (1975)helliphelliphelliphelliphelliphelliphelliphelliphellip 31 McMunn V Tatum 237 Va 558 (1989) 16 Norfolk amp W Railway v Puryear 250 Va 559 (1995) 7 Pettus V Gottfried 269 Va 69 (2005) 37 Reid v Baumgardner 217 Va 769 (1977) 26 Sanitary Grocery Co Inc v Steinbrecher 183 Va 495 (1945)helliphelliphellip 19 Stottlemyer v Ghramm 268 Va 7 (2004)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 24 Virginia Passenger amp Power Co v Fisher 204 Va 121 (1905)helliphelliphellip 24 Velocity Express Mid-Atlantic v Hugen 266 Va 188 (2003) 21 25 26 Weinberg v Given 252 Va 221 (1996)13 16 White Consolidated Industry Inc v Swiney 237 Va 23 (1989) 29 Wood v Woolfolk Properties Inc 258 Va 133 (1999)helliphelliphelliphelliphellip19 25 Wright v Kaye 267 Va 510 (2004)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 43

STATUTES

Virginia Code sect801-3792helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 29 Virginia Code sect801-4011helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip passim

RULES OF EVIDENCE

Va R Evid 2701helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 36

vii

Va R Evid 2706(a)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 9

Va R Evid 2801helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 8

Va R Evid 2802helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 8

RULES OF COURT

Va Sup Ct R 530helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 1

AUTHORITATIVE TREATISES

CHARLES E FRIEND amp KENT SINCLAIR THE LAW OF EVIDENCE IN VIRGINIA (7th ed 2013)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 8 9

1

AMICUS STATEMENT OF INTEREST1 The Virginia Trial Lawyers Association (ldquoVTLArdquo) is an organization of

over 2000 Virginia attorneys dedicated to promoting professionalism within

the trial bar enhancing the competence of trial lawyers protecting and

preserving individual liberties and access to justice and supporting an

efficient and constitutionally sound judicial system Pursuant to Rule 530 of

the Rules of the Supreme Court of Virginia VTLA has obtained the written

consent of all counsel for the filing of this Brief Amicus Curiae See

Addendum (attached)

This appeal presents issues that are important to Virginia law and trial

practice in Virginia courts The appeal concerns not only the rights of the

parties to this case but also the rights of litigants and the nature of trial

practice throughout the Commonwealth

Assignment of Error 1 implicates Virginiarsquos well-settled rule against

hearsay in general and its limited statutory exception for ldquoreliable authorityrdquo

in particular Assignment of Error 2 implicates Virginiarsquos well-settled rule

against ldquoabsence of other incidentsrdquo evidence and by implication Virginiarsquos

1 Amicus affirms that no counsel for a party authored this brief in whole or in part and that no person or entity made a monetary contribution to its preparation or submission

2

mirror-image rule against ldquofact of other incidentsrdquo evidence Assignment of

Error 3 implicates litigant and jury entitlement to clear complete correct

instructions under Virginia law including particularly on the issue of multiple

proximate causes Companion Assignments of Error 4 and 5 implicate

Virginiarsquos longstanding limits of lay and expert opinions and subjective

impressions

NATURE OF THE CASE AND MATERIAL PROCEEDINGS BELOW

VTLA adopts Administratorsrsquo Nature of the Case and Material

Proceedings Below

STATEMENT OF FACTS

VTLA adopts Administratorsrsquo Statement of Facts However it

emphasizes the following testimony exhibits and incidents of trial

0 CLARIFICATION OF OPINIONS

Administratorsrsquo experts agreed with Honeywellrsquos experts that at

takeoff the trim setting was in the normal position JA1074-10752 However

Administratorsrsquo expert (Dr Sommers) opined that during flight the trim

setting got out of normal position and into ldquonose lowrdquo position because of

runaway trim caused by Honeywellrsquos autopilot Id

2 Joint Appendix is ldquoJArdquo Trial Transcript is ldquoTTrdquo Record is ldquoRrdquo

3

1 ASSIGNMENT OF ERROR 1

Among other hearsay fact and hearsay opinion the 5-page hearsay

Mooney Report introduced in evidence by Honeywell as Exhibit 11 under

Virginia Code sect801-4011 marqueed this crucial hearsay expert opinion

Conclusions The IIC Lycoming representative and myself did not find any evidence that the aircraft engine was not capable of producing power or that the aircraft was uncontrollable at the time of accident

JA463 (emphasis added) This ldquoabsent expertrdquo opinion (A) was the core

issue of the case ie defective autopilot and (B) was not part of the

National Transportation Safety Board (ldquoNTSBrdquo) report admitted JA447-458

2 ASSIGNMENT OF ERROR 2

Contrary to pretrial Order five (5) times in closing Honeywell argued

ldquoabsence of other incidentsrdquo as proof of no product defect or causation

JA1584 1591-1592 and 1603 Despite Administrators repeatedly objecting

and requesting a curative instruction JA1584 and 1605-1606 judge

overruled Administrators and condoned Honeywell JA1584 and 1605-

1607

3 ASSIGNMENT OF ERROR 3

Administrators requested Jury Instruction 11 which was clear

complete and correct on the core issue of multiple proximate cause JA352

4

and which was not covered by any other instructions But Honeywell

objected solely on the basis that it was not the Model Jury Instruction and

the judge sustained Honeywellrsquos objection on that ground JA1545-1547

4 ASSIGNMENT OF ERROR 4

Honeywell considered William Abel a ldquopretty critical witnessrdquo for the

defense JA657 But the judge only made a ldquoquasi-determinationrdquo that Abel

was a ldquoquasi-expertrdquo TT 349 yet permitted him over Administratorsrsquo half-

dozen different objections to render multiple critical opinions not based on

personal knowledge and Honeywell highlighted Abelrsquos videotape testimony

five (5) times opening direct witness testimony expert cross-examination

and closing JA792 1352 1354 and 1594-1595

5 ASSIGNMENT OF ERROR 5

Robert Norman is a new inexperienced pilot who as a layman was

permitted over Administratorsrsquo several objections to opine about his

personal ldquofearrdquo of the Mooney plane ldquoa thousand mistakes you can makerdquo

in the Mooney and his limited operation of the Mooney under different

circumstances plus various hearsay JA756-783 1380-1381 and 1383-

1389 Honeywell highlighted his videotape testimony in direct examination

and repeatedly in closing in tandem with Abel JA1363-1411 1593-1594

and 1598

5

ARGUMENT

Re Assignment of Error 1 sound public policy mandates upholding

Virginiarsquos rule against hearsay and concomitantly construing its statutory

ldquoreliable authorityrdquo exception strictly narrowly Yet the trial court construed

Virginia Code sect801-4011 liberally to cover a biased case-related report

and moreover did not even require Honeywell to honor the statutersquos

express requirements in admitting the hearsay Mooney Report in testimony

and its absent expert Conclusions on the core issue as an exhibit

Re Assignment of Error 2 sound public policy mandates upholding

Virginiarsquos rule against ldquoabsence of prior incidentsrdquo Yet the trial court

expressly condoned Honeywell violating not only settled Virginia law but

also its own pretrial Order with repeated closing argument about its

product safety history that in decades of use there allegedly never had

been another incident before

Re Assignment of Error 3 sound public policy mandates upholding

Virginiarsquos rule of litigant and jury entitlement to clear complete instructions

stating the correct law Yet the trial court refused Administratorsrsquo correct

clear complete one on the oft-confusing pivotal issue of multiple proximate

causes

6

Re companion Assignments of Error 4 and 5 sound public policy

mandates upholding Virginiarsquos rules limiting lay and expert testimony and

opinions Yet the trial court admitted numerous subjective opinions by

unqualified witnesses - one that Defendant conceded was a ldquopretty critical

witnessrdquo - that lacked foundation that were speculative hearsay and

irrelevant and that invaded the juryrsquos province

All of these errors were prejudicial in fact and under Virginia law

ldquoWell established principles require that error be presumed prejudicial

unless the record clearly shows that the error could not have affected the

resultrdquo Dandridge v Marshall 267 Va 591 597 (2004)(evidentiary errors

mandated reversal and remand for retrial) An ldquoerroneous admission of

evidence which may have lsquotipped the scalesrsquordquo is presumed prejudicial

Hale v Maersk Line Ltd 284 Va 358 377 (2012)(reversed and

remanded) In particular erroneous admission of defense expert testimony

may be prejudicial even if another defense expert testifies about the

identical topic Hinkley v Koehler 269 Va 82 91-92 (2005)(reversed and

remanded) Individually and certainly collectively the erroneous admission

7

of expert and other evidence in favor of Honeywell presumably ldquotipped the

scalesrdquo impermissibly3

A THE TRIAL COURT ADMITTING THE HEARSAY MOONEY REPORT IS PREJUDICIAL ERROR

The Mooney Report is hearsay4 JA459-463 ldquoEvidence that is

hearsay and does not fall under an exception is clearly inadmissiblerdquo

Commonwealth v Wynn 277 Va 92 98 (2009) regardless whether it is

opinion hearsay andor fact hearsay Id at 100

Honeywell asserted and the judge accepted that the Mooney Report

came within the exception of Va Code Ann sect801-4011 But

Administrators repeatedly objected for hearsay and ldquolack of foundationrdquo

JA1520-1525 as it clearly failed to meet that statutersquos strictures

1 Public policy opposes the hearsay Mooney Report

Since at least 1795 this Court has barred hearsay evidence absent

an exception Claiborne v Parrish 2 Va (2 Wash) 146 (1795) The 3 As a matter of law on the facts of the case each Assignment of Error constitutes manifest error Re Assignment of Error 1 4 and 5 the trial court had ldquono discretion to admit clearly inadmissible evidence because lsquoadmissibility of evidence depends not upon the discretion of the court but upon sound legal principlesrsquordquo Norfolk amp W Ry v Puryear 250 Va 559 563 (1995)

4 ldquoMooney Reportrdquo refers to the whole document and to its individual constituent statements of facts and of opinions that were admitted

8

continuing wisdom and vitality of its bar is evinced by recent Virginia Rules

of Evidence 2801 and 2802

Surveying Virginia law Friend articulates the most common reasons

for this Courtrsquos rule against hearsay evidence

1 ldquoThe out-of-court declarations were not made under oath 2 The use of such declarations denies to the opponent the right to

confront the witness against him 3 The out-of-court declarant cannot be cross-examined 4 The trier of fact has no opportunity to observe the demeanor of

the declarant on the stand 5 Such evidence is inherently weak 6 The jury will tend to give it too much weight 7 The more often a story is repeated the more likely it is to

become distorted 8 There is too much danger of fraud or perjuryrdquo

CHARLES E FRIEND amp SINCLAIR THE LAW OF EVIDENCE IN VIRGINIA sect151[c] at

902-903 (7th ed 2013 supp) Perhaps the strongest justification for the

hearsay rule is ldquolack of opportunity for cross-examination of the absent

declarantrdquo Id at 904

ldquoOur system of justice places great faith in the value of cross-

examination in testing the perception memory narrative ability and

9

veracity of witnesses [and] it is undeniable that cross-examination can be

an effective tool in exposing false testimony putting misleading testimony

into perspective and bringing out omitted material detailsrdquo Id This Court

has underscored the importance of testing trustworthiness in general and of

cross-examination in particular ldquoThe reason hearsay evidence is excluded

is that it is not subject to the tests which help the trier of fact ascertain the

truth of testimonyrdquo ie it ldquolacks any guarantee of trustworthiness and must

be excludedrdquo Chesapeake amp Potomac Tel v Sisson amp Ryan 234 Va 492

499 (1987)(hearsay forecloses its declarant being ldquocross-examinedrdquo)

Va Code sect801-4011 as amended in 1994 is a hearsay exception In

derogation of Virginiarsquos longstanding common law against hearsay it must

be ldquostrictly construedrdquo Bostic v About Women OBGYN PC 275 Va 567

576 (2008)

sect801-4011 features evidentiary preconditions so that the ldquotest of

cross-examinationrdquo is ldquoinsuredrdquo id plus hearsay qualifying under it only

may be read into evidence not introduced as a documentary trial exhibit

so not to give it undue emphasis Otherwise ldquothe opposing party is

subjected to the lsquooverwhelming unfairnessrsquordquo of admitting absent opinion Id

Further the General Assembly recently codified sect801-4011 as

expert witness law Virginia Rule of Evidence 2706(a) Expert opinion

10

warrants greater judicial scrutiny and litigant protection heightening the

courtrsquos function as ldquogatekeeperrdquo

Finally sect801-4011 is commonly referred as the ldquolearned treatiserdquo

exception since it was created ldquoto permit the introduction of authoritative

literature as substantive evidencerdquo Friend sect15-27 at 1063-1064 in lieu of

traditional practice of testing an expert ldquoon cross-examination by reading to

him from scientific articles or treatisesrdquo Id sect13-11[6] at 809-810 That is to

say sect801-4011 does not contemplate just anything that is printed

Well-settled Virginia law and sound public policy demand the hearsay

rule and its sect801-4011 exception be respected and applied to their letter

But admission of the hearsay Mooney Report including its absent expert

Conclusions contravened the rule and the statute in multiple ways

Admission of the hearsay Mooney Report ignored sect801-4011rsquos

safeguarding preconditions allowed printed material not of the character

contemplated and even introduced the document itself instead of only

testimony See A(2-3) infra Predictably it necessarily engendered the

ldquooverwhelming unfairnessrdquo and other prejudice that the rule the statute

and public policy require to be avoided See A(4) infra

11

2 The Mooney Report is not admissible as ldquoreliable authorityrdquo under sect801-4011

The ldquoreliable authorityrdquo exception of sect801-4011 mandates

To the extenthelliprelied upon by the expert witness in direct examination statements contained in published treatises periodicals or pamphlets on a subject of history medicine or other science or art established as a reliable authority by testimonyhellip shall not be excluded as hearsay If admitted the statements may be read into evidence but may not be received as exhibits

ldquoStatutes in derogation of the common law are to be strictly construed and

not to be enlarged in their operation by construction beyond their express

termsrdquo Bostic 275 Va at 576 (emphasis added) As such this ldquo1994

amendment to Code sect801-4011 [is] a relaxation of the common-law rules

against hearsay only to the limited extent provided by the express statutory

termsrdquo Id at 577

Specifically the General Assembly inserted in the 1994 amendment

ldquotwo preconditions to the admission of hearsay expert opinions as

substantive evidence on direct examination First the testifying witness

must have lsquorelied uponrsquo the statements contained in the published treatises

second the statements must be established as lsquoa reliable authorityrsquo by

testimonyhelliprdquo Id at 576 (emphasis added) But Honeywell did not satisfy

either precondition

12

a Honeywellrsquos expert did not testify he relied on the whole Mooney Report in forming his opinion

ldquoThe [first precondition] means that the witness must testify that he

relied on the article in forming his opinion which is consistent with the

views expressed by the absent authorrdquo Id at 577 ldquoThe statutory standard

is not met by an expertrsquos testimony that he relied upon it only to use it lsquoto

talk to this juryrsquordquo Id

Honeywellrsquos expert Dr Clarke testified that he relied upon only two

(2) sentences in the Mooney Report - lines 28-29 and 32 of its page 3

JA1524-1525 But ultimately the whole report including its hearsay expert

Conclusions was admitted as Exhibit 115

5 At Honeywell counselrsquos request Dr Clarke read the so-called ldquolast sentencerdquo pointed out to him lines 28-29 of page 3 of the Mooney Report ldquoThis indicates an approximate takeoff position trim settingrdquo JA1524 at Lines 3-8 Honeywellrsquos counsel requested and received leave to publish ldquowhat he just testifiedrdquo Id at Lines 9-13 and Dr Clarke showed ldquothat pagerdquo as requested and explained ldquothis was the part that I just readrdquo reading it aloud again Id at Lines 15-20 Dr Clarke then continued his answer by correlating and quoting nearby line 32 of page 3 of the Mooney Report ldquoAnd to validate what we just spoke about it says that there were six threads exposed on the jackscrew And itrsquos the same six threads we were talking about from the full nose-down positionrdquo Id at Lines 20-23 Honeywellrsquos counsel then changed to a ldquonew topicrdquo - without having asked Dr Clarke whether he relied on lines 28-29 and 32 of the Mooney Report Id at Line 24 So the Judge interjected inquiring whether Dr Clarke relied

13

b Honeywellrsquos expert did not establish any of the Mooney Report is reliable authority

The second precondition means that the expert witness himself must

attest that the article is accepted as reliable authority by other similarly

situated experts ie is of a type normally relied upon by others in the

particular field of expertise In a sidebar Honeywellrsquos attorney told the

judge the Mooney Report ldquois a document thatrsquos normally relied upon by

expertsrdquo JA1523 but Honeywellrsquos expert Dr Clarke did not offer the

required testimony for any part of the Mooney Report JA1520-1525

c The Mooney Report inherently is not and cannot be reliable authority

More fundamentally sect801-4011 expressly is limited to only

ldquopublished treatises periodicals or pamphletsrdquo This Courtrsquos examples of

such published literature are ldquoperiodicals which are deemed to be reliable

and authoritativerdquo Weinberg v Given 252 Va 221 222 (1996) ldquopublished

and authoritative literaturerdquo May v Caruso 264 Va 358 362 (2002) and

ldquolearned treatisesrdquo Bostic 275 Va at 575

Strictly construed ldquopublished treatises periodicals or pamphletsrdquo

connotes independent authoritative if not scholarly literature It inherently

upon this thereby prompting Honeywellrsquos counsel to ask and Dr Clarke to affirm belatedly JA1524 at Line 25 to JA1525 at Line 5

14

does not connote private disputed contemporaneous biased case-related

material like the Mooney Report by the crashed planersquos manufacturer

Otherwise construed liberally contrary to this Courtrsquos statutory

construction jurisprudence mere ldquopamphletrdquo (as declared summarily by the

judge JA1523) embraces essentially any unbound printing including

biased case-related materials elevated to authoritative literature Such a

liberal construction predictably and inequitably would allow retained experts

like Honeywellrsquos Dr Clarke to anoint disputed self-interested case materials

as ldquoreliable authorityrdquo to read ldquothem into the record as holy writrdquo id at 576

and to shield their (dubious) authors opinions and facts from the crucible

of cross-examination

Parties transmogrifying disputed biased case-related material into

ldquolearned treatiserdquo by hiring an expert to proclaim it so is not the intention of

sect801-4011 That is a perversion and an abuse of the statute with far-

reaching negative implications in all future Virginia litigation contrary to

sound public policy

Upon retrial of this cause Honeywell properly is barred from having

Dr Clarke or any other retained expert offer that the Mooney Report is

ldquoreliable authorityrdquo The Mooney Report author IIC and Lycoming

representative need to justify their own disputed case facts opinions and

15

Conclusions - if they are qualified to do so and if the IIC and Lycoming

representative truly concur with the Conclusions Cf Burns v Gagnon 283

Va 657 678 (2012)(Court addresses objections that ldquomay arise again on

retrialrdquo)

d The Mooney Report is not admissible as an exhibit

sect801-4011 explicitly is a testimonial not a documentary exception

The statute states expressly that ldquothe statements may be read into

evidence but may not be received as exhibitsrdquo (emphasis added)

It could not be any more literal unambiguous plain and clear

Admission of the Mooney Report as a defense trial exhibit is manifest error

particularly since the required foundation for any of it even to be read was

not laid and Administrators consistently maintained their hearsay and ldquolack

of foundationrdquo objections JA1520-1525

3 The Mooney Report is not admissible as ldquofacts circumstances and datardquo under sect801-4011

ldquo[P]ursuant to Code sect801-4011 an expert witness may rely upon

lsquofacts circumstances or data made known tohellipsuch witnessrsquo in formulating

an opinion those lsquofacts circumstances or datahellip if of a type normally

relied upon by others in the particular field of expertise in forming opinions

and drawing inferences need not be admissible in evidencerdquo

16

Commonwealth v Wynn 277 Va 92 100 (2009) However this clause of

sect801-4011 does not allow for the ldquointroduction of otherwise inadmissible

hearsay evidence during direct examination of an expert witness merely

because the expert relied on the hearsay information in formulating an

opinionrdquo Id (emphasis added)

sect801-4011rsquos ldquofacts circumstances or datardquo clause is separate from

the subsequent ldquoreliable authorityrdquo clause so is not read in conjunction with

it Hence the hearsay Mooney Report clearly was inadmissible on direct

examination of Honeywellrsquos expert Dr Clarke JA1520-1525

4 The Mooney Report being admitted especially by exhibit and emphasized in closing is prejudicial

This Court has reiterated the ldquooverwhelming unfairnessrdquo of admitting

absent expert opinion without cross-examination

The admission of hearsay expert opinion without the testing safeguard of cross-examination is fraught with overwhelming unfairness to the opposing party No litigant in our judicial system is required to contend with the opinions of absent lsquoexpertsrsquo whose qualifications have not been established to the satisfaction of the court whose demeanor cannot be observed by the trier of fact and whose pronouncements are immune from cross-examination

Bostic 275 Va at 575 (quoting Weinberg 252 Va at 225 quoting McMunn

v Tatum 237 Va 558 566 (1989)) Moreover the Court observed that the

General Assembly ldquoinsuredrdquo the ldquotest of cross-examinationrdquo by inserting the

17

1994 preconditions in sect801-4011 and that by a proponentrsquos non-

compliance ldquothe opposing party is subjected to the lsquooverwhelming

unfairnessrsquo we discussed in McMunnrdquo Bostic 275 Va at 576

When Defendantrsquos expert in Bostic failed simply to satisfy the first

precondition of sect801-4011 this Court concluded the trial court ldquoerred in

admitting the opinions contained in published medical literature without an

adequate foundation as required by Code sect801-4011rdquo Id at 578 Further

because the Court could not ldquodetermine to what extent the erroneous

admission of hearsay opinions stated in the published articles may have

affected the verdictrdquo for Defendant it reversed the judgment and remanded

for new trial Id

Admission of the Mooney Report was more egregious than in Bostic

Honeywell satisfied the first precondition only re two (2) sentences of five

(5) pages did not satisfy the second precondition at all admitted as an

ostensibly authoritative ldquopamphletrdquo a private disputed contemporaneous

self-interested case-related creation of the crashed plane manufacturer

even introduced all of it including its expert Conclusions on the ultimate

issue as a trial exhibit and emphasized it twice in closing JA1582-1583

The General Assembly in sect801-4011 expressly forbidding even

admissible ldquoreliable authorityrdquo as a trial exhibit acknowledges the extra

18

impact - the undue emphasis - of an exhibit in the jury room atop testimony

in the courtroom The entire 5-page Mooney Report going to the jury for its

deliberations - and its speculations - must be presumed damaging

The Mooney Report went to the pivotal liability issue of the trial -

seemingly with NTSB siding with Honeywell In addition to numerous

inadmissible hearsay facts and other hearsay opinions it marqueed the

following unique hearsay expert opinion ldquoConclusions The IIC

[ldquoNTSBrdquo] Lycoming representative and myself did not find any

evidence that the aircraft engine was not capable of producing power

or that the aircraft was uncontrollable at the time of the accidentrdquo

Honeywell Exhibit 11 JA459-463 at JA463 (emphasis added)

That singular inadmissible hearsay opinion was a highly prejudicial

trial exhibit because (1) it reached the ultimate issue of the case product

defect and cause and (2) it is not in the NTSB report admitted in evidence

Further because it spoke on behalf of ldquoThe IIC [lsquoNTSBrsquo]rdquo it carried the

implied imprimatur of the NTSB the Federal agency responsible for official

investigation even though the NTSB report itself never stated those expert

Conclusions adverse to Administrators JA447-458

The Mooney Report was a unique piece of expert testimonial and

documentary evidence not merely some inconsequential cumulative facts

19

It buttressed Honeywellrsquos defense in general and its experts in particular

while it foreclosed Administratorsrsquo truth-seeking cross-examination of the

Mooney Reportrsquos author the IIC and the Lycoming representative

B THE TRIAL COURT CONDONING ldquoABSENCE OF OTHER INCIDENTSrdquo ARGUMENT IS PREJUDICIAL ERROR

ldquoPlaintiffsrsquo Motion in Limine X the Court GRANTS this Motionrdquo

112112 Order (emphasis in original) JA401 ldquo[A]ny evidence or argument

as to the lsquosafety historyrsquo of Honeywellrsquos autopilot is to be excludedrdquo Id

1 Public policy opposes Honeywellrsquos absence of other incidents argument

This Court long has prohibited all use of ldquoabsence of other incidentsrdquo

evidence ldquoIt is firmly established that evidence of the absence of other

injuries is not admissiblehellipwhen timely objection is maderdquo regardless

ldquowhether the action lies in negligence or implied warrantyrdquo Goins v

Wendyrsquos Intrsquol Inc 242 Va 333 335 (1991)(emphasis in original) Wood v

Woolfolk Properties Inc 258 Va 133 138 (1999) Sanitary Grocery Co

Inc v Steinbrecher 183 Va 495 499-500 (1945)

Virginiarsquos doctrine recognizes that other incidents may go

undiscovered unreported unrecorded misattributed unacknowledged

etc and thereby are problematical irrelevant prejudicial ldquoIndeed a

departure from the rule would interject evidence so problematical due to

20

the potential for lack of reporting and the variables of circumstances and

conditions that such evidence would have slight if any relevancy or

probative valuerdquo Goins 242 Va at 335-336 Wood 258 Va at 138

This Courtrsquos salutary rule against Defendants admitting ldquoabsence of

prior incidentsrdquo is the mirror-image of its rule against Plaintiffs admitting

ldquofact of prior incidentsrdquo as evidence substantively to prove or corroborate

negligence breach of warranty andor causation in a product liability case

Eg Stottlemyer v Ghramm 268 Va 7 12 (2004) Jones v Ford Motor

Co 263 Va 237 255 (2002) Thus the public policy ends of fundamental

fairness and consistency mandate that Defendants like Honeywell cannot

disprove breach andor causation by ldquoabsence of prior incidentsrdquo evidence

since Administrators cannot prove either with ldquofacts of prior incidentsrdquo

In addition to litigation practicalities and equities public policy in the

interest of safety also demands that Plaintiffs not have to disprove defense

claims of ldquoabsence of prior incidentsrdquo and that the public at large not have

to suffer multiple widely-known injuries and deaths under substantially

similar circumstances before a product unreasonably dangerous to normal

use in fact can be found dangerous There always must be a ldquofirst caserdquo

Plaintiffs having to disprove the manufacturersrsquo claimed negatives is too

expensive time-consuming and otherwise burdensome and possibly futile

21

and there is no minimum quantum of public casualties required to reach a

critical evidentiary mass to maintain a product defect case

When Defendants violate the rule against absence of other incidents

evidence Virginia law and public policy hold that the judge must take

corrective action such as a curative instruction instead of increasing the

prejudicial impact by condonation and apparent judicial approval Velocity

Express Mid-Atlantic v Hugen 266 Va 188 201 (2003) It is unsound

inequitable and insufficient that victim Plaintiffs by their mere protests be

expected to overcome or (worse) even be deemed to have waived the

prejudice of Defendants and the weight of judiciary

Although Honeywellrsquos ldquosafety historyrdquo re prior incidents properly was

excluded at pretrial see B(2) infra Honeywell patently violated the pretrial

Order Virginia law and public policy by arguing in closing five (5) times

about the total absence of prior incidents See B(3) infra That obvious

prejudice to Administrators was exacerbated irreparably when the judge

condoned it by overruling Administratorsrsquo objections and their request for

curative instruction and moreover by directing Honeywell to ldquoproceedrdquo -

which it did again and again and again and again See B(4) infra

22

2 Evidence and argument of Honeywellrsquos ldquosafety historyrdquo properly was excluded at pretrial

Pursuant to Virginia law Administrators moved in limine to exclude all

evidence and argument by Honeywell of its purported product safety

history JA56-57 Urging various federal decisions however Honeywell

vigorously opposed exclusion on brief and at pretrial hearing for example

Honeywell argued it ldquodefinitely relevantrdquo that the autopilot ldquohas over a 30-

year history out in the field hundreds of thousands of flight hours not one

incident reported with the type of allegation that theyrsquore claiming here that

debris got in here caused it to jam and caused a runaway trimrdquo JA66

The trial court correctly rejected Honeywellrsquos arguments ruled for

Administrators JA610 issued a letter opinion JA338 and entered

112112 Order JA401 Re ldquoPlaintiffsrsquo Motion in Limine X the Court

GRANTS this Motion and any evidence or argument as to the lsquosafety

historyrsquo of Honeywellrsquos autopilot is to be excludedrdquo Id (underlining added)

3 Honeywell violating Virginia law and pretrial Order in closing over objection improperly was condoned at trial

Despite clear Virginia law and explicit pretrial Order in closing

Honeywell improperly did exactly what it wanted to do anyway and told the

jury as a matter of fact that there was an absence of prior binding or

jamming of the gears in its autopilot due to foreign matter ldquoItrsquos never

23

happened before There is no evidence this has ever happened anywhere

any timerdquo JA1584 (underlining added)

Administrators objected to no avail The trial court ldquoOverruledrdquo and

directed Honeywell ldquoPlease proceedrdquo JA1584 (underlining added)

And proceed Honeywell did - with four (4) more violations of Virginia

law and pretrial Order Honeywell represented to the jury as additional fact

1 ldquoSafe design for 35 years and no complaintsrdquo JA1591 2 ldquoWe submit to you that withhellipthe lack of any prior evidence of a

problem that it was reasonably designed and perfectly safe and not unreasonably dangerous designrdquo JA1591-1592

3 ldquoIt canrsquot do that and has never happened beforerdquo JA1603 and 4 ldquoNo evidence of a prior problem at all everrdquo JA16036 Administrators delayed their rebuttal argument objected a second

time and requested a curative instruction7 JA1605-1607 But the trial court 6 At and after trial Honeywell claimed its closing arguments simply recount Administratorsrsquo experts not knowing of any other incidents First that is not what Honeywell stated in closing any of the five (5) times Its ldquoabsence of other incidentsrdquo arguments simply are not particularized to Administratorsrsquo expert lack of familiarity but rather are general sweeping all-encompassing proclamations Second even if Honeywellrsquos arguments were limited to Administratorsrsquo experts they still are not permissible They still refer to ldquoabsence of other incidentsrdquo in the context ldquoproofrdquo of no defect or causation Third Administratorsrsquo experts personally not being familiar with any ldquoother incidentsrdquo does not prove that there are no other incidents So Honeywell cannot claim the total absence of other incidents that it did

24

again condoned the Honeywellrsquos multiple violations ldquoI had previously told

the jury that what you-all tell them is not evidence and they should not

consider it as such wersquoll leave it at that Overrule the motionrdquo JA1607

(underlining added)

7 Administratorsrsquo timely objections and request for curative instruction preserved the issue Moving for an instruction or for a mistrial suffices Eg Cheng v Commonwealth 240 Va 26 38 (1990) ldquo[J]uries are presumed to follow prompt explicit and curative instructionrdquo Beavers v Commonwealth 245 Va 268 280 (1993) But the trial court refused to grant Administratorsrsquo motion for a curative instruction Moreover since the trial court repeatedly overruled Administratorsrsquo objections and their request for a curative instruction under the circumstances Administrators requesting a mistrial obviously would have been an unnecessary ldquovain and useless undertakingrdquo Virginia Passenger amp Power Co v Fisher 104 Va 121 129 (1905)(ldquosufficient reason we think for not applyinghellipfor action to redress the wrongs complained ofrdquo) The pretrial Motion in Limine X the arguments at 101112 hearing the pretrial Order the repeated trial objections and the request for curative instruction were amply sufficient to raise and preserve the issue Further Administratorsrsquo protests in closing about the falsity of Honeywellrsquos ldquosafety historyrdquo arguments are no substitute for curative instruction particularly not where the trial court ldquooverruledrdquo Administratorsrsquo objections and authorized Honeywell to ldquoproceedrdquo ie approved judicially Inequitably and insufficiently Administratorsrsquo protests simply left the jury to speculate which party was telling the truth about Honeywellrsquos claimed ldquosafety historyrdquo - with its nod likely going to Honeywell (since the judge twice overruled Administratorsrsquo objections refused curative instruction requested by Administrators and had excluded Administratorsrsquo would-be evidence in the first place)

25

Since the judge overruled Administratorsrsquo motion for curative

instruction his phrase ldquowhat you-all tell them is not evidencerdquo is not

curative That ruling is akin a sports referee seeing personal fouls and

instead of calling penalties on the offender simply telling the competitors to

ldquoplay onrdquo - thereby condoning the inappropriate harmful rough play

4 Honeywellrsquos violations and judgersquos condonations were prejudicial

Honeywell arguing its safety history - the absence of other incidents

over 35 years - five (5) distinct times in closing necessarily was prejudicial

ldquoSuch evidence introduces into the trial collateral issues remote to the

issue at trial which would tend to distract mislead and confuse the juryrdquo

Goins 242 Va at 335 Wood 258 Va at 138 (ldquowe are unable to say that it

did not confuse or mislead the juryrdquo)8

Further the ldquoprobably prejudicial impact of this argument is significant

because the improper argument focused on the central disputerdquo Velocity

Express 266 Va at 201 Moreover the judge repeatedly condoning

Honeywellrsquos five (5) violations magnifies the prejudice leading the jury to

8 Technically of course Honeywellrsquos closing argument was not ldquoevidencerdquo However the legal principle and public policy are the same re ldquoargumentrdquo

26

infer judicial approval of its impropriety - ultimate unfairness to

Administrators

ldquoThe circuit court refused to take any corrective action to eliminate the

adverse prejudicial effect on the jury of [Defendantrsquos] improper argument

Based on the record before the Court we conclude that the probability of

prejudice upon the juryhellipwas increased by the apparent approval given by

the circuit court because of that courtrsquos refusal to take corrective actionrdquo Id

(underlining added)(remand for new trial) Reid v Baumgardner 217 Va

769 774 (1977)(same)

C THE TRIAL COURT REFUSING TO GIVE ADMINISTRATORSrsquo CLEAR COMPLETE CORRECT MULTIPLE PROXIMATE CAUSE INSTRUCTION IS PREJUDICIAL ERROR

Virginiarsquos law of proximate cause provides

A proximate cause of an accident injury or damage is a cause which in natural and continuous sequence produces the accident injury or damage It is a cause without which the accident injury or damage would not have occurred There may be one or more proximate causes Proximate cause need not be established with such certainty so as to exclude every other possible condition

That is Administratorsrsquo Instruction 11 that was rejected JA352

1 Public policy demands the jury be instructed fully ldquoA litigant is entitled to jury instructions supporting his or her theory of

the case if sufficient evidence is introduced to support that theory and if the

27

instructions correctly state the lawrdquo Holmes v Levine 273 Va 150 159

Significantly the evidence introduced to support a requested instruction

must only be ldquomore than a scintillardquo and where ldquoa proffered instruction finds

any support in credible evidence its refusal is reversible errorrdquo Id

(emphasis added)

Although Holmes frames correct jury instructions as a litigant

entitlement as a matter of public policy they are a jury entitlement too As

triers of fact juror must understand their charge if they are unclear - even

in part on one pivotal point - then the wrong decision and unnecessary

injustice may result

Proximate cause often is a subtle confusing point among lawyers let

alone jurors Public policy requires that the jury be instructed clearly

completely and correctly on that particularly where as here the theory of

two (2) proximate causes is at the core

Administratorsrsquo Instruction 11 about ldquoone or more proximate causerdquo is

particularly important in light of there being no ldquoconcurrent negligencerdquo

instruction (because it was a ldquobreach of warrantyrdquo product liability case)

which would have indicated one or more proximate causes were possible

Holmes does not indicate whether a concurrent negligence instruction was

used in that case

28

Also Administratorsrsquo multiple-cause instruction is especially important

because contributory negligence assumption of risk superseding cause

and even product misuses were not issuesdefenses in this particular

ldquowarrantyrdquo case Thus even a jury finding there was some pilot error that

was a proximate cause would not require a defense verdict but rather still

would have required the jury to decide whether product defect was a

proximate cause too

Contrary to Virginia law and public policy Administratorsrsquo clear

complete correct jury instruction on proximate cause was rejected solely

because it was not the Model Jury Instruction see C(2) infra despite

there being ample credible evidence in the case as a whole to support two

proximate causes See C(3) infra The resulting prejudice was manifest

See C(4) infra

2 There may be more than one proximate cause and other proximate causes need not be excluded with certainty and Administratorsrsquo jury instruction so informed the jury but it was refused for not being a Model Jury Instruction

Virginia law holds there may be ldquomore than one proximate cause of

an eventrdquo Id9 Further Virginia law also holds it is not necessary to

9 In product liability cases under Virginia law the manufacturer is liable if its product simply is ldquoardquo proximate cause ldquoour law provides a means of holding a defendant liable if his or her negligence is one of multiple

29

establish ldquoproximate cause with such certainty as to exclude every other

possible conclusionrdquo White Consolidated Indus Inc v Swiney 237 Va

23 28 (1989)

Administratorsrsquo Instruction 11 stated re proximate causation

A proximate cause of an accident injury or damage is a cause which in natural and continuous sequence produces the accident injury or damage It is a cause without which the accident injury or damage would not have occurred There may be one or more proximate cause Proximate cause need not be established with such certainty so as to exclude every other possible condition

JA352 (emphasis added) Hence the two sentences underlined to which

Honeywell objected simply state Virginia law correctly

Honeywell objected to Administratorsrsquo multiple-cause instruction

solely on the basis that it was not the ldquoModel Jury Instructionrdquo and the trial

court improperly sustained on that ground JA1545-1547 contrary to

Virginia statute and public policy ldquoA proposed instruction submitted by a

party which constitutes an accurate statement of the law applicable to the

case shall not be withheld from the jury solely for its nonconformance with

the model jury instructionsrdquo Va Code sect801-3792

concurrent causes which proximately caused an injury when any of the multiple causes would have each have been a sufficient causerdquo Ford Motor Co v Boomer 285 Va 141 151 (2013)

30

3 Administrators are entitled to correct jury instructions supporting their theory regardless whether scintilla-plus of credible evidence is in their andor Honeywellrsquos case

In Holmes too there were two potential proximate causes of death Id

at 159 Despite its verdict form specifically stating the jury ldquodid not find that

[Defendantrsquos] failure was a proximate cause of Holmes deathrdquo Holmes

reversed and remanded for the trial court refusing Plaintiffrsquos following

proximate cause instruction which is virtually identical to Administratorsrsquo

first underlined sentence that was rejected ldquoThere may be more than one

proximate cause of an eventrdquo 273 Va at 157-160 (emphasis added)

In Holmes Plaintiffrsquos own evidence happened to show both potential

causes of death Id But it is not necessary that only Plaintiffrsquos case-in-chief

prove all proximate causes and Holmes did not so hold

Instead the jury fairly may find more than one proximate cause

based on the evidence as a whole Plaintiffrsquos evidence Defendantrsquos

evidence or both partiesrsquo evidence Thus although Administrators only

introduced evidence of product defect as proximate cause since Honeywell

introduced evidence of pilot error as proximate cause the jury was entitled

to consider and to find both pilot error and product defect as proximate

causes Lawlor v Commonwealth 285 Va 187 228-229 (2013)(ldquoWhen

reviewing a trial courtrsquos refusal to give a proffered jury instruction we view

31

the evidence in the light most favorable to the proponent of the

instructionrdquo) McClung v Commonwealth 215 Va 654 657 (1975)

In McClung the murder Defendant steadfastly maintained that she

was ldquonot guiltyrdquo by reason of self-defense but was convicted of murder in

the second degree Id at 654 However this Court reversed and remanded

in McClung when the trial court refused Defendantrsquos request for a

ldquovoluntary manslaughterrdquo instruction on the grounds that ldquothe [whole]

evidence was also sufficient to support an instruction on voluntary

manslaughterrdquo (if viewed most favorably to her) even though it concededly

was sufficient to support murder in the second degree (when viewed most

favorably for Commonwealth) Id at 656-657

Correspondingly since ldquomore than a scintillardquo of ldquocredible evidencerdquo

had been admitted to support two proximate causes Holmes 273 Va at

159 Administrators were entitled their requested instruction that ldquothere may

be one or more proximate causerdquo Administrators so argued to the judge in

support JA1545-1547 and addressed multiple causation theory in closing

TT 3222-3223

32

4 Refusal of Administratorsrsquo multiple-cause instruction is prejudicial

The trial court refused Administratorsrsquo multiple-cause instruction

contrary to statute That refusal possibly if not probably left the jury with the

misimpression that it must or at least could weigh and find only one

proximate cause particularly in light of there being no concurrent

negligence instruction The jury reasonably could have found pilot error and

product defect each were a proximate cause especially since contributory

negligence assumption of risk superseding cause and product misuses

were not issuesdefenses and the jury should have understood that

unequivocally by Court instruction (which Administrators could and would

have emphasized in closing)

D THE TRIAL COURT ADMITTING ABELrsquoS EXPERT ldquoCRITICAL WITNESSrdquo OPINIONS IS PREJUDICIAL ERROR

William Abel is a former flight instructor whom Honeywell lionized as

a ldquopretty critical witnessrdquo JA657 (emphasis added) He provided training to

Grana and opined on Honeywellrsquos direct examination

1 ldquoA [T]he fact that [Mr Grana] took off on this day makes - makes me have some concerns about the judgment taking off into conditions on the weather that - that was reported to merdquo JA1350 (emphasis added)

2 ldquoQ So with respect to judgment do you believe that Mr Grana

exercised good judgment based on your understanding of

33

his qualifications and training in departing into 800-foot overcast ceiling on the day of the accident

A Based on the - all the flying Irsquove done with Joe [Grana] and

the conversations that we had I had concerns about why he would take off into those conditions on that dayrdquo JA1351-1352

3 ldquoQ With respect to Mr Granarsquos lack of experience in the

airplane in actual IFR conditions and the judgment that he used in taking off that day in your opinion was that a cause or contributing cause of this accident

A I donrsquot know what happened in that airplane In my opinion

it wasnrsquot the best of judgment to take off in those conditionsrdquo JA1357 (emphasis added)

But Abel had no ldquoperson knowledgerdquo of the crash the takeoff or even the

airport weather conditions JA1334-35 his weather report was from the

internet - 3 days before the crash Id

Administrators objected to Abelrsquos testimony as lacking sufficient

foundation improper opinion testimony speculative based on hearsay

irrelevant and invading the juryrsquos province JA723-741 The trial court

overruled all objections Id

1 Public policy opposes Abelrsquos opinions

Acceptance and rejection of expert testimony is a quintessential

ldquogatekeeperrdquo function of the courts Given the unique elevated status of

34

experts particularly to jurors public policy mandates would-be experts be

scrutinized closely

A witness either is qualified as an expert or not there is no half-

measure There are no ldquoquasi-expertsrdquo under Virginia law

As a corollary courtsrsquo expert ldquogatekeeperrdquo function necessarily

extends to precluding witnesses not deemed to be experts from rendering

opinions that are the province of experts As a matter of public policy a

witness should not be able to introduce de facto expert opinion through the

back door as a layman when unauthorized to admit it through the front door

as an expert

Honeywellrsquos ldquopretty critical witnessrdquo JA657 William Abel never was

qualified as an expert by the judge See D(2) infra Consequently all of his

harmful de facto expert opinions are inadmissible for his lack of

qualification as well as for multiple other independent grounds see D(3-

6) infra and their admission was highly prejudicial to Administrators

particularly as marqueed by Honeywell repeatedly by videotape excerpts

2 Abelrsquos opinions are unfounded and improper

Whether Honeywell claims Abel to be an expert witness or admits

him to be a lay witness his testimony is clearly inadmissible

35

a It is unfounded as an expert

Abel never was accepted by the Court as an expert The judge stated

ldquoAbel is a quasi-expert and wersquove made that quasi-determinationrdquo TT 349

(emphasis added) - a netherworld status and an incomplete acceptance

unrecognized in Virginia law

At pretrial hearing Honeywell conceded that Abel was ldquonot a retained

expertrdquo TT 462 and was a mere ldquopercipientrdquo with ldquopercipient observationsrdquo

of fact ldquobased on his perceptionsrdquo TT467-468 and 478-479 except

possibly for his ldquospatial disorientationrdquo opinions TT 468-470 and that ldquo99

percent of what he says is factualrdquo JA671 Moreover even if Abel arguably

could be qualified as an expert on a matter (which is disputed) an area of

expertise never was identified for him remained open to speculation by the

jury and ultimately would limit the nature topic and scope of his opinions

Combs v Norfolk and Western Ry Co 256 Va 490 496 (1998)

Further there was no showing that Abel did or even could consider

all of the ldquovariablesrdquo as foundation for his opinions Cf Keesee v Donigan

259 Va 157 161-162 (2000)(ldquorequirement that the evidence be based on

an adequate foundationrdquo) Hence Abel could not opine as an expert

On retrial however Honeywell may try to qualify Abel as an expert

and to elicit some of the same testimony from him So alternatively this

36

Court still should scrutinize him and his ldquocredentialsrdquo as an expert under

D(3-5) infra and bar his opinion testimony on retrial Burns supra

b It is improper as a layman

ldquoOpinion 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 witnessrsquo perceptionsrdquo Virginia Rule

of Evidence 2701 (emphasis added) Cf Doe v Dewhirst 240 Va 266

270 (1990)(ldquoIn order to be competent to testify on the subject the witness

must have had a reasonable opportunity to judgerdquo and even ldquomomentary

observationsrdquo at impact and ldquolater glimpserdquo post-impact ldquodid not

demonstrate that he had a reasonable opportunity to form an opinionrdquo)

Since Abel has no ldquopersonal knowledgerdquo of the crash the take-off the

weather or anything as a layman he cannot opine about any of it

including particularly without limitation ldquojudgmentrdquo and ldquocausationrdquo

3 Abelrsquos opinions are speculative

Despite his repeated ldquoconcernsrdquo bottom line is that when Honeywell

asked his opinion about ldquocauserdquo Abel had none JA677 he admitted ldquoI

donrsquot know what happened up thererdquo JA1357 (emphasis added) That core

concession renders all other testimony by Abel speculative and

inadmissible as such even if he were qualified as an expert

37

For example in Pettus v Gottfried 269 Va 69 73 (2005)(reversed

and remanded for retrial) Defendantrsquos expert had ldquonordquo opinion re cause of

death yet gratuitously opined for the defense further ldquothatrsquos the reason why

many times we feel that unless an autopsy is done itrsquos really difficult to

know what may have happenedrdquo This Court held that gratuitous opinion

was ldquospeculative in naturerdquo Id at 78

Further Abel expressing only ldquoconcernsrdquo about Granarsquos ldquojudgmentrdquo is

so indefinite as to be impermissibly speculative too JA1349-1352 And

Abel opining ldquoit wasnrsquot the best judgmentrdquo still is indefinite JA1357

4 Abelrsquos opinions are hearsay

Abel testified based on - indeed testified about - hearsay weather

conditions on Honeywellrsquos direct examination Even an expert attesting

hearsay facts on direct examination is inadmissible and reversible error

Commonwealth v Wynn 277 Va 92 100 (2009)

5 Abelrsquos opinions are irrelevant

Abel only expressed general ldquoconcerns about the judgment taking off

into conditions on the weatherrdquo and that it was not ldquobest judgmentrdquo

JA1349-1352 and 1357 Abel did not opine at all about what if anything

Grana supposedly did or did not do while actually flying to cause or

38

contribute to causing the crash ldquoI donrsquot know what happened in that

airplanerdquo JA1357 (emphasis added)

Whether or not Grana showed ldquogood judgmentrdquo let alone ldquogreat

judgmentrdquo in deciding to fly in weather conditions (never seen by Abel)

however simply is not relevant Re Grana the sole causation issue is

whether once flying any (in)action by Grana proximately caused the crash

- not whether his decision to fly in the first place was ldquogreatrdquo or even ldquogoodrdquo

This Court countenancing Abelrsquos testimony as relevant opens the

floodgates to like testimony in garden variety motor vehicle accident

(ldquoMVArdquo) and other cases In any MVA involving inclement weather - or

latewee hours etc - expert andor lay witnesses could opine ldquoconcernsrdquo

about motoristsrsquo threshold judgment in deciding to drive in the weather at

the hour etc as ostensibly relevant to the actual cause of the MVA literally

minutes and miles down the road

6 Abelrsquos opinions invade the juryrsquos province

Abel summarily opined ldquoconcerns about the judgmentrdquo and ldquoit wasnrsquot

the best judgmentrdquo JA1349-1352 and 1357 While that testimony is

indefinite unto speculative it also conclusorily and impermissibly goes to

the ultimate issue to be decided by the jury alone ie whether Granarsquos

conduct was a cause of the crash

39

7 Abelrsquos opinions are prejudicial

As intended by Honeywell the opinions of its ldquopretty critical witnessrdquo

Abel sullied Grana Abelrsquos repeated ldquoconcernsrdquo about (bad) ldquojudgmentrdquo

bespoke incompetence or at least carelessness if not recklessness -

despite contributory negligence assumption of risk and product misuse not

being issues - indicating predicate ldquofaultrdquo and inviting speculation

assumption andor presumption of Granarsquos (continuing) incompetence

andor wrongdoing while flying

Moreover Honeywell maximized the prejudicial impact of ldquopretty

critical witnessrdquo Abelrsquos repeated ldquoconcernsrdquo about Granarsquos ldquojudgmentrdquo at

four (4) different junctures during trial

1 Opening statement [by videotape] JA792

2 Direct examination [by videotape] JA1352 and 1354

3 Expert cross-examination [by reference] JA1645 and

4 Closing argument [by videotape] JA1594-1595

Since Abel testified by videotape deposition for maximum impact

Honeywell played videotape excerpts focusing on his ldquoconcernsrdquo about

ldquojudgmentrdquo during opening JA792 and replayed in closing JA1594-1595

With synergistic effect Honeywell also coupled its broadcasts of

ldquopretty critical witnessrdquo Abelrsquos testimony with its broadcasts of similar

40

negative opinionfeelings testimony of another plane co-owner Robert

Norman See E infra As intended the reinforcing testimony of its co-

owner duo was very damaging to Administrators

E THE TRIAL COURT ADMITTING NORMANrsquoS LAY OPINIONS AND HEARSAY IS PREJUDICIAL ERROR

Unlike Grana Robert Norman is a Mooney plane co-owner who was

unlicensed unendorsed and inexperienced to fly the Mooney solo in any

conditions let alone under Visual Flight Rules and Instrument

Meteorological Conditions like Grana JA1381-1383 and 1394 Moreover

Norman never used Honeywellrsquos autopilot in question to assist with turning

TT 2364 and the Mooney indisputably was turning after takeoff when

Grana used it JA991-992

Nonetheless on Honeywellrsquos direct examination Norman as layman

repeatedly was allowed to share his subjective opinions about the Mooney

1 ldquoA I still to this day am afraid of that Mooney 2 A I have a healthy fear of [the Mooney] 3 A It was not something that I would ever want to fly solo until I

could do that instantlyhellipThe Mooney there are a thousand different mistakes you could make that would lead you to have something bad happen

4 A I was told yoursquod have to be retarded to crash a [Cessna]

Skyhawk The Mooney totally opposite The Mooney

41

there are a thousand different mistakes you can make that would lead you to have something bad happenrdquo

JA380-382 (emphasis added) Norman also attested his subjective

opinions about his operation of the Mooney under supervision and different

circumstances than Grana including that the autopilot seemed to work

alright JA1383-1389 and attested hearsay about what Abel ldquomeantrdquo and

what other Mooney co-owners wanted re Grana flying JA1405-1409

1 Public policy opposes Normanrsquos lay opinions As indicated regarding William Abel see D(1) supra a classic

ldquogatekeeperrdquo function of the courts is precluding lay witnesses from

foraying into de facto expert opinion Of course lay testimony also is

inadmissible independently for lack of foundation irrelevance

speculativeness and hearsay

The testimony of Robert Norman which dovetailed with that of

William Abel as a matter of content and presentation by Honeywell

suffered from all those unfair ills See E(2-5) infra Their effects were

prejudicial particularly with the repeated combined videotape excerpts of

Abel and Norman see E(6) and public policy dictates such multi-prong

injustice not be countenanced

42

2 Normanrsquos lay opinions are unfounded

Lacking qualifications Norman testified as a layman But his

testimony about fearing the Mooney plane JA1380-1381 about the

ldquothousand different mistakes you can makerdquo with it JA1381-1382 and its

operation were unfounded JA1405-1409

His testimony about operating the Mooney plane under different

circumstances than Grana also was unfounded and impermissible (even for

an expert) because Norman did not know and thereby could not and did

not consider all of the variables JA1334-1335 Administrators repeatedly

objected but were overruled JA756-783

3 Normanrsquos lay opinions were irrelevant

Obviously Normanrsquos lay personal fears about the Mooney including

the ldquothousandrdquo bad mistakes a pilot could make with it are not relevant to

the issues whether Grana andor product defect was a cause of the crash

Likewise Normanrsquos opinions about how Honeywellrsquos autopilot operated

under limited different circumstances about what Abel meant andor about

what other co-owners intended re Grana simply are not relevant either

Administrators objected on grounds of relevance JA756-760 But the

judge overruled Id

43

4 Normanrsquos lay opinions were speculative

Norman opining about how the Mooney plane operated in his limited

experience under circumstances that were not substantially similar also

were speculative JA1383-1389 Administrators so objected and were

overruled JA758-760

5 Normanrsquos testimony is hearsay

Normanrsquos opinions about what Abel meant and what various partners

supposedly stated and agreed about Grana flying are hearsay JA1383-

1389 Wright v Kaye 267 Va 510 530 (2004)(ldquostate of mindrdquo statements

were inadmissible hearsay) Administrators objected and the judge

overruled JA769-773

6 Normanrsquos lay opinions and hearsay are prejudicial

Normanrsquos opinions unfairly indicated there was no defect with

Honeywellrsquos autopilot Yet he lacked sufficient expertise had limited

exposure to the Mooney plane and used it under different circumstances

Normanrsquos opinions repeatedly suggested that pilot mistake was the

cause of something bad happening ie the crash They did so in

heightened unto exaggerated emotional terms ie ldquoafraidrdquo ldquofearrdquo and a

ldquothousand different mistakesrdquo

44

As with Abelrsquos testimony Honeywell maximized the prejudicial impact

of Normanrsquos subjective lay impressions at three (3) trial junctures

1 Direct examination [by videotape] JA1380-1389

2 Closing argument [by videotape] JA1593-1594 and

3 Closing argument [by reference] JA1598

Since Norman too testified by videotape deposition for maximum impact

Honeywell replayed Normanrsquos most inflammatory opinions immediately

before it played Abelrsquos videotape excerpts in closing JA1593-1595

CONCLUSION

For the reasons set forth above consonant with sound public policy

VTLA urges the Court to reaffirm and apply Virginiarsquos longstanding

doctrines on reliable authority prior incidents proximate causation and lay

and expert testimony and opinions and reverse the Circuit Courtrsquos

judgments and remand for new trials on all issues

Respectfully submitted s Avery T Waterman Jr AVERY T WATERMAN JR ESQ

VSB 27118 Patten Wornom Hatten amp Diamonstein LC 12350 Jefferson Avenue Suite 300 Newport News Virginia 23602 Telephone (757) 223-4567 Facsimile (757) 223-4499 Awatermanpwhdcom Counsel for Amicus Curiae

45

CERTIFICATE OF SERVICE

I hereby certify that on January 22 2014 fifteen copies of the above

Brief Amicus Curiae have been filed via USPS Certified Mail to the clerkrsquos

office This same date three copies of the same have been sent via USPS

First Class Mail to the following counsel

Counsel for Appellants

Roger T Creager Esq VSB No 21906 The Creager Law Firm PLLC 1500 Forest Avenue Suite 120 Richmond VA 23229 Telephone (804) 747-6444 Facsimile (804) 747-6477 rcreagercreagerlawfirmcom John C Shea Esq VSB No 17436 Mark S Lindensmith Esq VSB No 20452 Marks amp Harrison PC 1500 Forest Avenue Richmond VA 23229 Telephone (804) 282-0999 Facsimile (804) 288-1853 jsheamarksandharrisoncom mlindensmithmarksandharrisoncom

46

Anita Porte Robb Esq Admitted pro hac vice in trial court Gary C Robb Esq Admitted pro hac vice in trial court Robb amp Robb LLC One Kansas City Place - Suite 3900 1200 Main Street Kansas City MO 64105 Telephone (816) 474-8080 Facsimile (816) 474-8081 arobbrobbrobbcom grobbrobbrobbcom Counsel for Appellee Patrick R Hanes Esq VSB No 38148 Turner A Broughton Esq VSB No 42627 Joseph R Pope Esq VSB No 71371 WF Drewry Gallalee Esq Harold E Johnson Esq VSB No 65591 Williams Mullen Clark amp Dobbins Williams Mullen Center 200 South 10th Street PO Box 1320 Richmond VA 23218-1320 Telephone (804) 420-6939 Facsimile (804) 420-6507 phaneswilliamsmullencom tbroughtonwilliamsmullencom jpopewilliamsmullencom dgallaleewilliamsmullencom hjohnsonwilliamsmullencom

47

Michael McQuillen Esq Admitted pro hac vice Austin W Bartlett Esq Pending pro hac vice admission John M Kelly Esq Admitted pro hac vice Nicole L Simmons Esq Admitted pro hac vice Adler Murphy amp McQuillen LLP 20 S Clark Suite 2500 Chicago IL 60603 Telephone (312) 345-0700 Facsimile (312) 345-5860 mmcquillenamm-lawcom abartlettamm-lawcom jkellyamm-lawcom nsimmonsamm-lawcom This same day an electronic version was also sent via email to the Clerkrsquos Office of the Supreme Court of Virginia and to all counsel listed above s Avery T Waterman Jr Of Counsel

48

ADDENDUM

CREAGER l t I It ~I I Ll (

1500 IORFST AVFNUF bull SUlTf 120 bull itl(IfMUNU VlJltJlNIJi 23229 bull WORK (1104) 74764middot1middot bull FAx (804) 747middot6471 bull WWWCRfJilifRIJiwFIRMCM

January 2 J 2014

Bv E-Mail and Fax Avery T Waterman Jr Esquire Patten Wornom Hatten amp Diamonstein LC Suite 300 12350 Jefferson Avenue Newport News Virginia 23602 (Fax (757) 223-4499)

Re Michelle C Harman Administratrix of the Estate of Joseph A Grana III Deceased et al v Honeywell International Inc Record Number 130627

Dear Mr Waterman

This confirms that I as and on behalf of counsel for the Appellants hereby consent to your filing in the Supreme Court of Virginia of a Brief Amicus Curiae of the Virginia Trial Lawyers Association in the above-styled matter

cc Counsel for Appellees Patrick R llanes Esquire Turner A Broughton Esquire Joseph R Pope Esquire WILLIAMS MULLEN PO Box 1320 200 South 10th Street Suite 1600 (23219) Richmond VA 232 J8-1320 (By Fax 804-420-6507)

Michael G McQuillen Esquire Austin W Bartlett Esquire John M Kelly Esquire Nicole L Simmons Esquire ADLER MUJgtRI-)Y amp McQUILLEN LLP 20 South Clark Street Suite 2500 Chicago I L 60603 (By Fax to 312-345-9860)

WILLIAMS MULLEN

Direct Dial 8044206455 phancswilliarnsrnullencom

January 222014

VIA ELECTRONIC MAIL

Avery T Sandy Waterman Jr Esq Patten Wornom Hatten amp Diamonstcin LC 12350 Jefferson Avenue Suite 300 Newport News VA 23602

Re Michelle C Harman etc v Honeywell International Inc Record No 130627

Dear Sandy

As and on behalf of counsel for Appellee I consent to the filing in the Supreme Court of Virginia ofa Brief Amicus Curiae of the Virginia Trial Lawyers Association in the above-styled matter

Please let me know if you have any questions

~~TYO ( ~u~__V~trvJ Fmiddot v ___

Patrick R Hanes

cc Turner Broughton Esq (via e-mail) Roger T Creager Esq (via e-mail) Michael McQuillen Esq (via e-mail)

NORTH CAROLINA VIRGINIA WASHINGTON DC

200 50mh 1O~ Srrcee Suire 1600 (23219) PO Box 1320 Richmond VA 23218-1320 Tel 8044206000 Fax 8044206507 INWWwilliamsmuJJencom

Jeanne Vareo

From Austin W Bartlett ltabartlettAMM-LAWcomgt Sent Tuesday January 21 2014 506 PM To Jeanne Varco Cc Michael G Mcquillen John M Kelly Broughton Turner

(tbroughtonwilliamsmulencom) Hanes Patrick R (phaneswilliamsmullencom) rcreagercreagerlawfirmcom jsheamarksandharrisoncom arobbrobbrobbcom grobbrobbrobbcom

Subject FW Harman v Honeywell cw Bemberis v Honeywell - 12114 Email to P Hanes and M Mcquillen

Attachments img-121160142-000lpdf

Importance High

Hi Jeanne and Avery

On behalf of Mike McQuillen this will confinn that we consent to your filing of an amicus brief

Best regards Austin

Austin W Bartlett ADLER MCRPHY amp McQUILLEN LLP

20 S Clark Street Suite 2500 Chicago Illinois 60603 Main (312) 345-0700 Direct (312) 422-5798 Facsimile (312) 345-9860

The ilformatioll IXJlltained in thiJ electronic mail message is conjidential illformation intended onlY for the use ofthe individual or enti) named aboIe and may be protected ~Y the attornflY client andor attorney work prodllct pnmiddotvileges Ifthe reader qfthis meJJage iJ not the intended redpient or the emplqyee or agent reJpoflJible to deliver to the itltended redpientyou are hereby notified that atry disJemination diJtriblltioll or copying qthiJ (omtlJlmimtioll is stndIY prohibited f)Oll have meilJed this communication in error pleaJe immediatelY not~jj us and delete the miginal menage

From Jeanne Varco [mailtojeannePWHDcom] Sent Tuesday January 21 2014 305 PM To phaneswilliamsmullenscom Michael G Mcquillen tbroughtonwilliamsmullencom jpopewilliamsmullencom Cc jsheamarksandharrisoncom arobbrobbrobbcom grobbrobbrobbcom rcreagercreagerlawfirmcom Subject Harman v Honeywell cw Bemberis v Honeywell - 12114 Email to P Hanes and M McQuillen Importance High

This email was sent to you on behalf of Avery T Waterman Jr Esq

Jeanne M Varco Legal Assistant to Avery T WatermanJr Esq Patten W ornom Hatten amp Diamonstein LC

1

THE LEX GROUP 1108 East Main Street Suite 1400 Richmond VA 23219 (804) 644-4419 (800) 856-4419 Fax (804) 644-3660 wwwthelexgroupcom

In The

Supreme Court of Virginia

______________________

RECORD NO 130691 ______________________

BYRD THEATRE FOUNDATION (THE)

Appellant

v

DAVID M BARNETT

Appellee

_________________________

BRIEF OF AMICUS CURIAE THE VIRGINIA TRIAL LAWYERS ASSOCIATION

IN SUPPORT OF APPELLEE _________________________

Nathan J D Veldhuis (VSB No 68746) Gobind Sethi (VSB No 72266) CHAIKIN SHERMAN Samantha K Sledd (VSB No 82656) CAMMARATA AND SIEGEL PC HALL amp SETHI PLC 1232 17th Street NW 12120 Sunset Hills Road Suite 150 Washington DC 20036 Reston Virginia 20190 (202) 659-8600 (Telephone) (703) 925-9500 (Telephone) (202) 659-8680 (Facsimile) (703) 925-9166 (Facsimile) nathandc-lawnet gsethihallandsethicom Counsel for Amicus Curiae Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ii A STATEMENT OF AMICUS INTEREST 1

B STATEMENT OF THE CASE AND MATERIAL

PROCEEDINGS 1

C STATEMENT OF FACTS 2

D ASSIGNMENTS OF ERROR 2

E ARGUMENT 2 I The Trial Court Was Correct In Ruling That Barnett

Was Not A Beneficiary Of The Foundation At The Time He Sustained His Injury 2 A Standard of Review 3

B Applicable Law 4

II Knowledge Of The Defective Walkboard Should Be

Imputed To The Foundation Even If Such Knowledge Was First Acquired By An Individual Before He or She Became An Agent Of The Foundation 12

A Standard of Review 12

B Applicable Law 13

F CONCLUSION 20

G CERTIFICATE 23

ii

TABLE OF AUTHORITIES

Page(s)

CASES Bodenheimer v Confederate Memorial Assrsquon

68 F2d 507 (4th Cir 1934) 8 Cabin Branch Min Co v Hutchinsonrsquos Admrsquox

112 Va 37 (1911) 14 15 Diaz v Wash State Migrant Council

265 P3d 956 (Wash Ct App 2011) 17 Egerton v RE Lee Memorial Church

385 F2d 381 (4th Cir 1968) 8 Goodstein v Milmo Realty Corp

8 NYS2d 243 (NY City Ct 1938) 16 Honsinger v Egan

266 Va 269 (2003) 13 Ola v YMCA of S Hampton Rds Inc

270 Va 550 (2005) passim Smith v Kim

277 Va 486 (2009) 13 The Distilled Spirits

78 US 356 (1871) 16 Thrasher v Winand

239 Va 338 (1990) 5 9 Wintergreen Partners Inc v McGuirewoods LLP

280 Va 374 (2010) 13

iii

OTHER AUTHORITIES Restatement (Second) of Agency sect 276 (1958) 16 18 Restatement (Third) of Agency sect 503 (2006) 17 18

1

A STATEMENT OF AMICUS INTEREST1

The Virginia Trial Lawyers (ldquoVTLArdquo) is an organization of

over twenty-five hundred Virginia attorneys dedicated to

promoting professionalism within the trial bar enhancing the

competence of trial lawyers protecting and preserving individual

liberties and access to justice and supporting an efficient and

constitutionally sound judicial system

This appeal presents issues that are important to Virginia

law and trial practice in Virginia Courts It concerns and

implicates not only the rights of the parties to this case but also

the rights of litigants and the nature of trial practice throughout

the Commonwealth

B STATEMENT OF THE CASE AND MATERIAL PROCEEDINGS

The VTLA adopts Appellee David M Barnettrsquos Statement of

the Case

1 The VTLA affirms that no counsel for a party authored this brief in whole or in part and that no person other than amicus its members and its counsel made a monetary contribution to its preparation or submission However counsel for Appellee is a member of the VTLA

2

C STATEMENT OF FACTS

The VTLA adopts Appellee Barnettrsquos Statement of Facts

D ASSIGNMENTS OF ERROR

I The trial court erred in denying the Foundationrsquos Plea of Charitable Immunity (JA 9 13-34 50-62 68-69 351-409 410-413 1458-60 1603 1682-86 1702 1704-1705)

II The trial court erred in refusing to instruct the jury on notice to a corporation (JA 1229-44 1272-98 1399 1461-66 1577-97 1682-86 1702 1704-1705)

E ARGUMENT

I The Trial Court Was Correct In Ruling That Barnett Was Not A Beneficiary Of The Foundation At The Time He Sustained His Injury

The trial court correctly held that Mr Barnett was not a

beneficiary of The Byrd Theatre Foundation (ldquoFoundationrdquo) at the

time of his injury When Mr Barnett was injured falling from a

walkboard he was performing organ repair at the request of

Robert Gulledge an agent of the Foundation At that time the

Foundation did not employ an organ repairperson Mr Barnett

was an organ enthusiast with extensive knowledge of how organs

function Mr Gulledge solicited Mr Barnett a Foundation

volunteer to perform the repairs Mr Barnett agreed

3

When Mr Barnett brought suit against the Foundation the

latter asserted a plea of sovereign immunity In passing on the

plea the trial court held ldquo[t]he fact that plaintiff likes and wanted

to do what he was doing by providing a service of repair to the

charity and received a lsquobenefitrsquo thereby is not the same as or

consistent with the [Foundationrsquos] extending its charitable

beneficence [to Mr Barnett] according to its charitable

undertakingrdquo (JA 411) The trial court denied the Foundationrsquos

plea and the Foundation has appealed that ruling to this Court

(JA 410-413 1682-1686)

The VTLA writes on brief amicus curiae because this case

presents an important opportunity for this Court to articulate the

bounds of the doctrine of charitable immunity

A Standard of Review The VTLA agrees with and incorporates herein by reference

Appellee Barnettrsquos analyses of the standard of review

4

B Applicable Law

In Ola v YMCA of S Hampton Rds Inc this Court set forth

the test assessing the availability of charitable immunity as

follows

To establish charitable immunity as a bar to tort liability an entity must prove at least two distinct elements The absence of either element makes the bar of charitable immunity inapplicable First the entity must show it is organized with a recognized charitable purpose and that it operates in fact in accord with that purpose lsquoIn conducting this inquiry Virginia courts apply a two-part test examining (1) whether the organizationrsquos articles of incorporation have a charitable or eleemosynary purpose and (2) whether the organization is in fact operated consistent with that purpose rsquo

Second assuming the entity has met the foregoing test it must then establish that the tort claimant was a beneficiary of the charitable institution at the time of the alleged injury

270 Va 550 556 (2005) (internal citations omitted) ldquo[Charitable] immunity does not extend however to

invitees or strangers having no beneficial relationship to the

charitable institutionrdquo Id ldquo[S]uits by invitees or strangers for

negligence will not be barred by the doctrine of charitable

immunityrdquo Id at 561

5

In Ola the minor plaintiff was sexually assaulted shortly

after she used the ldquoYMCArsquos swimming pool and was using the

bathroomrdquo Id at 555 This Court held that because she was a

beneficiary of the YMCA a charitable entity any claim against the

YMCA for injuries was barred by the doctrine of charitable

immunity Specifically it held that because she was a beneficiary

of the YMCA at the time of the alleged injury her claims were

barred Id at 565

The central inquiry in this context is ldquowhether the plaintiff

was at the time of his injury accepting the benefits of the

charitable activities of the defendant a charitable organization

thus giving rise to the defense of charitable immunityrdquo Thrasher

v Winand 239 Va 338 339 (1990) (emphasis added)2

Mr Barnett stipulated that the Foundation is a charity The

Foundation therefore must establish that Mr Barnett was

ldquoaccepting the benefits of the charitable activities of the

[Foundation]rdquo at the time of his injury Id In Ola and Thrasher 2 This Court has also cautioned charitable organizations that ldquoit is often prudent and an exercise of fiduciary responsibility for a charitable entity to carry liability insurance for protection in the appropriate circumstancerdquo Ola 270 Va at 561

6

this Court makes it clear that ldquoat the time of the injuryrdquo for

purposes of the case at bar means while Mr Barnett was a

volunteer at the Theatre for the purposes of repairing the organ

on May 23 2009

The analysis of whether Mr Barnett was a beneficiary of the

Foundation at the time he was injured begins with the nature of

the Foundationrsquos charitable purpose The Foundation maintains

the following as its charitable purposes

1 ldquoTo cultivate promote and develop the publicrsquos

knowledge awareness understanding and

appreciation of the performing artsrdquo (JA 249)

2 ldquo[O]wn and [r]estore The Byrd Theatre as a grand

movie palace and community resourcerdquo (JA 251)

3 ldquoRestoration of the 1928 Byrd Theatre to its former

grandeurrdquo including ldquomajor historical renovation of the

organrdquo (JA 266)

4 ldquo[R]estore and preserve the Byrd Theatrerdquo (JA 101)

The Foundation argues that Mr Barnett ldquosquarely fits into

the class of people who benefit from the Foundationrsquos charitable

7

purposerdquo and therefore ldquoit cannot be concluded from all of the

evidence that Mr Barnett received absolutely nothing of value

from the Foundationrsquos charitable workrdquo (Br of Appellant 31-32)

In support of this contention the Foundation points to the

fact that Mr Barnett attends the Theatre twice yearly supports

the Theatre and has a love of theatre organs The Foundation

concludes these facts bring Mr Barnett in alignment with the

Foundationrsquos purpose Ola is instructive in demonstrating why

that is not so at the time Mr Barnett was injured

There is no dispute that Mr Barnett was an organ enthusiast

and a supporter of the Theatre who derived benefits from the

Theatre when he attended events hosted by the Theatre

Similarly the plaintiff in Ola was a beneficiary of the YMCArsquos

charitable purpose when she went swimming in its pool In

support of its holding the Ola Court cited two cases from the

Fourth Circuit Court of Appeals in which individuals entering a

historic church to view stained glass and visiting a charitable

entity for purposes of admiring paintings and other exhibits were

deemed beneficiaries of those charities Ola 270 Va at 564

8

(citing Egerton v RE Lee Memorial Church 385 F2d 381 384

(4th Cir 1968) and Bodenheimer v Confederate Memorial Assrsquon

68 F2d 507 509 (4th Cir 1934))

Applying these principles to the instant case Mr Barnettrsquos

presence at the Theatre on the day he was injured is

distinguishable in a conclusive way Cases like Ola Egerton and

Bodenheimer involve plaintiffs deriving a direct benefit from the

charities they were attending at the time they were injured In

contrast Mr Barnett was not watching one of the Theatrersquos

movies or listening to organ music when he fell Rather he was

there to fix the organ He was volunteering Indeed he had

been asked by Robert Gulledge the Foundationrsquos organ

restoration subcommittee chairman to conduct a one-time repair

that was even outside the scope of Mr Barnettrsquos advisory role on

the same subcommittee Mr Barnett was on the organ

restoration subcommittee and it was in that capacity that Mr

Gulledge asked him to fix the organ

In order for the charitable immunity test in Ola to be met in

the case at bar Mr Barnett must have been deriving some

9

benefit related to the charitable purpose of the Foundation at the

time of his injury 270 Va at 563 The facts in Ola are not

analogous to the facts in the case at bar If the plaintiff in Ola

had been a pool aficionado who at the request of the Director

had volunteered to fix some cracks in the pool at the YMCA at the

time she was injured the case would have presented a scenario

much like the one in this case

The fact that the plaintiff in Ola had swum in the pool at the

YMCA before the day she was injured and intended to swim there

after the day she was injured is not the question The question

is whether she was enjoying the YMCArsquos facilities at the time she

was injured Similarly the inquiry here is not whether Mr

Barnett had ever been a beneficiary of the Foundation or that he

would again at some time in the future it is only for purposes of

this analysis whether he was deriving a benefit from the

Foundation at the time he was injured Any other conclusion

would require speculation about ldquoindirect benefitsrdquo which are ldquotoo

remote and speculativerdquo to give rise to the defense of charitable

immunity Thrasher 239 Va at 342

10

The fact that Mr Barnett is an organ enthusiast and owner

who has access to the Theatre organ by being on the organ

subcommittee and received gratification and ldquoeducationrdquo when

he has worked on the organ does not make him a beneficiary3

Certainly one can imagine that a professional organ repairperson

engaged to work on these types of organs has an affinity for

theater organs and receives satisfaction from their efforts It also

can be presumed they receive the same type of ldquoeducationrdquo each

of us receives daily in our every endeavor in activities of daily

living

Mr Barnett received no benefit of any value from his repair

of the organ in response to Mr Gulledgersquos request He received

no payment from the Foundationrsquos only charitable activity of 3 While in this particular case Mr Barnett was a supporter of the charity the result should be the same even if he were not For example if the Theatrersquos heating system needed to be repaired and Mr Gulledgersquos neighbor worked on heating systems for a living but cared nothing about the Theatre and Mr Gulledge asked his neighbor to work on the Theatrersquos system as a favor the neighbor would be no less entitled than Mr Barnett to the same ability to recover if he were injured by the negligence of the Theatre It would be extraordinarily difficult as a practical matter for trial courts to attempt to draw distinctions between different classes of volunteers at charities for purposes of charitable immunity analyses

11

fundraising The only thing that made Mr Barnett ldquodifferentrdquo is

that his motivation was altruistic because he made a contribution

for the benefit of the Foundation

When Mr Barnett was injured he was not a participant or

attendee at any Foundation sponsored program or event that

(i) cultivated the performing arts (ii) promoted them or

(iii) developed the publicrsquos knowledge awareness understanding

and appreciation of them or of the Byrd Theatre as a movie

palace and community resource (JA 190-191)

The Foundation has never held hosted sponsored or

promoted an activity where volunteers repair the organ (J A

103) Mr Barnett was an invitee permitted access to the organ

for the sole purpose of providing specific volunteer repair work

outside the scope of his subcommittee duties

Since Mr Barnett was not a beneficiary of the Foundationrsquos

charitable purpose when he fell from the walkboard while

volunteering to repair the organ the Foundationrsquos appeal lacks

merit and this Court should affirm the ruling of the trial court and

enter final judgment

12

II Knowledge Of The Defective Walkboard Should Be Imputed To The Foundation Even If Such Knowledge Was First Acquired By An Individual Before He or She Became An Agent Of The Foundation

Should the Court address whether it is relevant for purposes

of imputing notice to the Foundation that its agent first obtained

knowledge of the defective walkboard before becoming an agent

the Court should rule in the negative Rather this Court should

hold that it is irrelevant when the agent learned of the defect or

hazardous condition so long as the agent possessed such

knowledge while having an agency relationship with the principal

Knowledge cannot be compartmentalized Case law from a

number of Courts over the years as well as the Restatements

Second and Third of Agency provide support for this position

A Standard of Review

Where a verdict against a principal exonerating that

principalrsquos agent is supported by instructions providing a basis of

liability independent of the agentrsquos negligence and proffered

agency instruction the principal and agent relationship is

immaterial the judgment against the principal stands and failure

13

to give the agency instruction is harmless error Wintergreen

Partners Inc v McGuirewoods LLP 280 Va 374 379-80

(2010)

Further a litigant is entitled to a jury instruction only if the

instruction is supported by sufficient evidence and correctly states

the law Smith v Kim 277 Va 486 491 (2009) This Courtrsquos

role in reviewing the content of a jury instruction is to determine

de novo if the law has been correctly stated Id If a proffered

instruction is not a correct statement of law ldquothe trial court is not

required to correct or amend the instruction rather than [refuse]

to grant itrdquo Honsinger v Egan 266 Va 269 275 (2003)

B Applicable Law

The Court need not decide whether Instruction G tendered

by the Foundation was an appropriate statement of law in the

Commonwealth (JA 1399) There is an independent basis for

liability against the Foundation that would not require the Court

to address Instruction G There was evidence adduced at trial

that Mr Gulledge while an agent of the Foundation obtained

actual knowledge of the defective walkboard (JA 1116-1117

14

1134) Mr Gulledgersquos knowledge bound the Foundation and

served as the basis for Instruction 14 (JA 1421)

Nevertheless should the Court address whether Instruction

G tendered by the Foundation was a correct statement of the law

of the Commonwealth it should rule in the negative Instruction

G states as follows

A corporation knows a fact only as its officers and agents know it The corporation does not know all that its agents know but only what comes to the agents while acting for the corporation within the scope of their agency when it is the agentsrsquo duty to report their knowledge to the general officer or agents of the company

(JA 1399) By requesting the adoption of Instruction G the Foundation

asks this Court to hold that only knowledge obtained by an agent

during the period of agency and within the scope of that agency

may be imputed to the principal In other words information

secured prior to the agency relationship but known to the agent

during the agency and can be transmitted to the principal may

not be imputed to the principal

The Foundationrsquos position is contrary to the law of our

Commonwealth In Cabin Branch Min Co v Hutchinsonrsquos Admrsquox

15

this Court held that knowledge by a mine pit-boss of an unsafe

condition if present in his memory in the course of the scope of

his job duties must be imputed to the master even if the

knowledge was acquired before his appointment as pit-boss 112

Va 37 41 (1911) The Court stated the following

[T]he correct principle is thus stated in 31 Cyc p 1593 lsquoThe more logical rule however and that which is supported by the greatest weight of recent authority is that knowledge of an agent acquired prior to the existence of the agency will be chargeable to the principal if it be clearly shown that the agent while acting for the principal in a transaction to which the information is material has the information present in his mindrsquo

Id at 40 Virginia is not alone in rejecting the approach proffered by

the Foundation In 1871 the United States Supreme Court

stated

[T]he doctrine now seems to be established that if the agent at the time of effecting a purchase has knowledge of any prior lien trust of fraud affecting the property no matter when he acquired such knowledge his principal is affected thereby If he acquire the knowledge when he effects the purchase no question can arise as to his having it at that time if he acquired it previous to the purchase the presumption that he still retains it and has it present to his mind will depend on the lapse of time and other circumstances Knowledge communicated to the principal himself he is bound to recollect but he is not bound by

16

knowledge communicated to his agent unless it is present to the agentrsquos mind at the time of effecting the purchase Clear and satisfactory proof that it was so present seems to be the only restriction required by the English rule as now understood With the qualification that the agent is at liberty to communicate his knowledge to his principal it appears to us to be a sound view of the subject

The Distilled Spirits 78 US 356 366-367 (1871) (internal

citations omitted)

Similarly in a case involving a dangerous condition on a

premises resulting in injury to an infant a New York Court held

In the law of negligence notice to a previous owner does not run with the land as do certain covenants in the law of real estate Nevertheless notice to an agent who is retained by the new owner is binding on the successor principal provided such a period of time has not elapsed between the receipt of notice and commencement of the new agency as to constitute an unreasonable expectation from human memory

Goodstein v Milmo Realty Corp 8 NYS2d 243 244 (NY City

Ct 1938)

The approach articulated by the United States Supreme

Court in Distilled Spirits and a number of state courts was

memorialized in the Restatement (Second) of Agency sect 276

(1958) which states ldquo[e]xcept for knowledge acquired

confidentially the time place or manner in which knowledge is

17

acquired by a servant or agent is immaterial in determining the

liability of his principal because of itrdquo

More recently the Restatement (Third) of Agency sect 503

(2006) addressed specifically whether knowledge obtained by an

agent before the agentrsquos relationship with the principal should be

imputed to the principal Its legal reasoning was that such

knowledge should be imputed to the principal

[w]hen an agent is aware of a fact at the time of taking authorized action on behalf of a principal and the fact is material to the agentrsquos duties to the principal notice of the fact is imputed to the principal although the agent learned the fact prior to the agentrsquos relationship with the principal whether through formal education prior work or otherwise Likewise notice is imputed to the principal of material facts that an agent learns casually or through experiences in the agentrsquos life separate from work

Restatement (Third) of Agency sect 503 cmt e (2006) Adopting the approach described in the Restatement a

Washington state court noted that ldquoin most instances the time

place or manner in which the agent obtains knowledge is

immaterial in charging it to the principalrdquo Diaz v Wash State

Migrant Council 265 P3d 956 968 (Wash Ct App 2011)

18

The rationale for the decisions cited above is contained in

the commentary to the Restatement (Second) of Agency sect 276 as

follows

Since the mind of the agent cannot be divided into compartments the principal should be bound by whatever knowledge the agent has irrespective of its source or time of acquisition unless it is the kind of knowledge which the agent can properly disregard in the specific case because of having acquired it confidentially

Restatement (Second) of Agency sect 276 cmt a (1958)

It is requested to the extent not previously done so

explicitly that this Court adopt the approach of the Restatement

(Third) of Agency sect 503 cmt e (2006) and reject the

Foundationrsquos position that only knowledge obtained by a

Foundation agent during the time of his relationship with the

principal should be imputed to the Foundation From a policy

perspective the approach proffered by Mr Barnett is the better

one Knowledge cannot be compartmentalized Either it exists or

it does not If there is evidence adduced at trial that the agent

had such knowledge during his agency relationship with the

principal then the principal should be bound by it even if he

received such information prior to the principal-agent

19

relationship The relevant inquiry is therefore centered upon the

agentrsquos knowledge at the time of the agency relationship

irrespective of when that knowledge was first obtained

Additionally a ruling in favor of the Foundation on this issue

would lead to unintended outcomes in premises liability cases

Suppose Mr Gulledge first learned of the defective walkboard

while an agent of the Foundation In this setting there would be

no dispute as to imputation However should Mr Gulledge have

learned of the defect prior to being an agent of the Foundation

then under the Foundationrsquos theory his knowledge cannot be

imputed and the Foundation cannot be held liable This would be

so despite the fact that Mr Gulledgersquos knowledge of the defective

walkboard would have been for a greater period of time thereby

making the Foundation potentially more culpable

Or for example suppose Mr Gulledge while on an

employment interview with the Foundation noticed that the

walkboard was defective If Mr Gulledge was later hired by the

Foundation it would be inequitable to bar imputation of that

knowledge to the Foundation Mr Gulledge had knowledge of the

20

defect while an agent of the Foundation the mere fact that he

first obtained that knowledge before he became an agent should

not preclude recovery for persons injured by hazardous

conditions

The VTLA requests that this Court follow the reasoning of

the Restatements and that supported by over a hundred years of

jurisprudence and hold that knowledge obtained by an agent

prior to the agency-principal relationship and still known by the

agent can be imputed to the principal

F CONCLUSION

For the reasons stated above the VTLA respectfully requests

that this Court affirm the decisions of the trial Court and enter

final judgment in favor of Appellee Barnett

21

Respectfully submitted

THE VIRGINIA TRIAL LAWYERS ASSOCIATION

The Virginia Trial Lawyers Association 700 East Main Street Suite 1400 Richmond Virginia 23219 (804) 343-1143 (804) 343-7124 (fax) By ______________________________ Nathan J D Veldhuis Chaikin Sherman Cammarata and Siegel PC VA Bar No 68746 1232 17th Street NW Washington DC 20036 Tel (202) 659-8600 Fax (202) 659-8680 nathandc-lawnet and

22

______________________________ Gobind Sethi Hall amp Sethi PLC VA Bar No 72266 Samantha K Sledd Hallamp Sethi PLC VA Bar No 82656 12120 Sunset Hills Rd Suite 150 Reston VA 20190 Tel (703) 925-9500 Fax (703) 925-9166 gsethihallandsethicom On behalf of the Virginia Trial Lawyers Association

23

G CERTIFICATE On this 15th day of November 2013 I certify as follows

1 That I have complied with Rule 526(h) of the Rules of

the Supreme Court of Virginia

2 That 15 printed copies of the Brief of Amicus Curiae

with 1 electronic copy on CD have been hand-filed with

the Clerk of the Supreme Court of Virginia

3 That three printed copies of the Brief of Amicus Curiae

with an electronic copy on CD have been served via

UPS Ground Transportation to counsel for Appellant

Lynne Jones Blain Esquire Harmon Claytor Corrigan

amp Wellman 4951 Lake Brook Drive Suite 100 Glen

Allen Virginia 23060 and to counsel for Appellee

Mahlon G Funk Jr Hirschler Fleischer PC 2100 East

Cary Street Post Office Box 500 Richmond Virginia

23218

___________________________ Nathan J D Veldhuis

IN THE

Supreme Court of Virginia

MICHELLE C HARMANAdministratrix of the ESTATE of

JOSEPH A GRANA III Deceasedand

STEPHANIE E GRANA BEMBERISPersonal Representative of the ESTATE OF

JOSEPH E GRANA SR DeceasedAppellants

v

HONEYWELL INTERNATIONAL INCAppellee

RECORD NO 130627

REPLY BRIEF AMICUS CURIAEOF VIRGINIA TRIAL LAWYERSrsquo ASSOCIATION

IN SUPPORT OF APPELLANTS

LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond Virginia 23219 (804) 644-0477A Division of Lantagne Duplicating Services

Avery T Waterman Jr Esq (VSB No 27118)Patten Wornom Hatten amp Diamonstein LC12350 Jefferson Avenue Suite 300Newport News Virginia 23602Telephone (757) 223-4567Facsimile (757) 223-4499Awatermanpwhdcom

i

TABLE OF CONTENTS

Table of Authorities ii Amicus Statement of Interest 1 Argument 4 I RELIABLE AUTHORITY 6 II OTHER INCIDENTS 10 III JURY INSTRUCTION 11 IV ABEL OPINIONS 13 V NORMAN OPINIONS 14 Conclusion 15 Certificate 16 Addendum 1 (3314) Letter of Roger T Creager Esq [Counsel for Appellants]

ii

TABLE OF AUTHORITIES

CASES

Federal

Circuit United States v Martinez 588 F3d 301 (6th Cir 2009) cert denied 131 SCt 538 (2010) 7

District

Tafas v Dudas 511 F Supp2d 652 (EDVa 2007) 1 2

State

Foreign

OrsquoBrien v Angley 63 Ohio St2d 159 407 NE2d 490 (Ohio Sup Ct 1980) 7

Virginia

Agelasto v Frank Atkinson Real Estate 229 Va 59 (1985) 5 Blue Stone Land Co v Neff 259 Va 273 (2000) 4 5 Bostic v About Women OBGYN PC 275 Va 567 (2008) 6 8 Bottoms v Bottoms 249 Va 410 (1995) 1 4 Combs v Norfolk and Western Ry Co 256 Va 490 (1998) 13 Crowson v Swan 164 Va 82 (1935) 3 CSX Transp V Casale 247 Va 180 (1994) 5 Dandridge v Marshall 267 Va 591 (2004) 4 5

iii

Doe v Dewhirst 240 Va 266 (1990) 5 13 Goins v Wendyrsquos Intrsquol 242 Va 333 (1991) 10 Hale v Maersk Line Ltd 284 Va 358 (2012) 4 Hinkley v Koehler 269 Va 82 (2005) 5 Holmes v Levine 273 Va 150 (2007) 12 13 Keesee v Donigan 259 Va 157 (2000) 13 Lawlor v Commonwealth 285 Va 187 (2013) 11 Lawrence v Commonwealth 279 Va 490 (2010) 4 McClung v Commonwealth 215 Va 654 (1975) 11 12 Norfolk amp Western Ry v Puryear 250 Va 559 (1995) 5 Rhoades v Painter 234 Va 20 (1979) 6 Ring v Poelman 240 Va 323 (1990) 5 Tittsworth v Robinson 252 Va 151 (1996) 5 Velocity Express Mid-Atlantic v Hagen 266 Va 188 (2003) 10 11 Venable v Stockner 200 Va 900 (1959) 6 Whitehead v H and C Dev Corp 204 Va 144 (1961) 1 Wood v Woolfolk Properties Inc 258 Va 133 (1999) 10 Wright v Kaye 267 Va 510 (2004) 14

iv

STATUTES

Virginia Code sect801-3792 3 12 Virginia Code sect801-4011 2 6 8

RULES OF COURT

Va Sup Ct R 530(e) 2

AUTHORITATIVE TREATISES

Advisory Committee Notes to Federal Rules of Evidence Fed R Evid 803 Exception 18 56 FRD 183 (1972) 7 BLACKrsquoS LAW DICTIONARY (9TH

ED 2009) 1

2 McCormick on Evidence sect321 (6th ed 2006) 7

5 Wigmore on Evidence sect1692 (Chadbourn rev) 7

1

AMICUS STATEMENT OF INTEREST

Honeywell asserts Brief Amicus Curiae ldquois in substance a second

merits briefrdquo and ldquotransparent ploy to use an amicus brief to expand the

page limits for the Administratorsrsquo arguments not a serious assessment of

the publicrsquos interestrdquo Brief of Appellee (ldquoBArdquo) at 40-41 Honeywell is wrong

First it is not collusion1 Bottoms v Bottoms 249 Va 410 (1995)(four

Appellee amici curiae) Second Honeywell misconstrues amicus status

Amicus is a non-party ldquowho petitions the courthellipto file a brief in the

action because that person has a strong interest in the subject matterrdquo

BLACKrsquoS LAW DICTIONARY (9th ed 2009) at 98 This Court recognizes amicus

ldquoon the ground that ithelliphas a substantial interest in the subject matterrdquo

Whitehead v H and C Dev Corp 204 Va 144 149 (1961)2

1 Amicus affirms no counsel for a party authored this brief in whole or in part and no person or entity made a monetary contribution to its preparation or submission represents it obtained consent of Appellant but not Appellee to file and files Reply Brief with Motion for Leave to File subject to Administratorsrsquo objection BA is untimely improper and invalid

2 Federal law in Virginia is consistent explicit and persuasive authority ldquoAlthough an amicushellipis not a party to the litigation and participates only to assist the court nevertheless by the nature of things an amicus is not normally impartialhellipand there is no rulehellipthat amici must be totally disinterestedrdquo Tafas v Dudas 511 F Supp2d 652 661 (EDVa 2007)

2

Va Sup Ct R 530(e)(emphasis added) states ldquoA brief amicus

curiae shall comply with the rules applicable to the party supportedrdquo This

contemplates amicus reaching the merits Cf Tafas 511 F Supp2d at

652 (ldquomere fact that a non-party seeks to put forth [merits] opinion in the

case does not disqualify it as an amicusrdquo)

Third this appealrsquos five issues will be precedent beyond this case

That implicates public interest and policy

Va Code sect801-4011rsquos ldquoreliable authorityrdquo exception in Assignment

of Error (ldquoAOErdquo) 1 is evidentiary cornerstone of essentially every medical

malpractice case and this Courtrsquos opinions construe it in such cases There

is genuine public interest - plaintiff and defendant - in that limited statutory

exception not being eroded by Honeywell skipping its evidentiary

precondition introducing documentary exhibit and admitting biased case-

specific investigation

Honeywellrsquos ldquoabsence of other incidentsrdquo arguments and their judicial

ratification in AOE 2 cut across product liability medical malpractice

vehicular accidents and other torts There is genuine public interest in this

Courtrsquos prohibitions thereof - and of mirror-image ldquoevidence of other

incidentsrdquo - not being eroded by Honeywellrsquos repeated impermissible

closing arguments and by judicial ratification thereof

3

Administratorsrsquo multiple cause instruction in AOE 3 pervades all tort

litigation There is genuine public interest in a more informative causation

instruction that explicitly fully and fairly informs juries about two or more

possible proximate causes that is based on ldquoanyrdquo evidence introduced

plaintiff andor defendant and that is not rejected contrary to Va Code

sect801-3792 because it is not the ldquoModelrdquo then

Honeywellrsquos introduction of improper multiple lay opinions by Abel

and Norman in AOE 4 and 5 is a specter in any case There is genuine

public interest in litigants not being denied a fair day in court because

admittedly ldquocrucialrdquo fact witnesses wrongfully are allowed to give expert

opinion and otherwise inappropriate testimony

Finally ensuring justice in this case is legitimate public interest Fiscal

hardships of lengthy trials about which Honeywell complains are suffered

disproportionately by private individuals like Administrators versus Goliaths

like Honeywell so it is fundamental that justice not be denied by prejudicial

error Cf Crowson v Swan 162 Va 82 83 (1935)(ldquonever been

contendedhellipthe rights of a litigant should be determined by matters of

expediencyrdquo)

4

ARGUMENT

Honeywell argues ldquoabuse of discretionrdquo review standard BA15-16

but that is red-herring Even assuming that arguendo re AOEs 1 4 and 5

judge has ldquono discretion to admit clearly inadmissible evidencerdquo Lawrence

v Commonwealth 279 Va 490 496 (2010) or re AOEs 2 and 3 to make

errors of law

Honeywell misstates ldquoCourt views the facts in the light most favorable

to the prevailing partyrdquo and ldquopresume[s] that the law was correctly applied

to the factsrdquo citing Bottoms BA16 Bottoms is a custody case reviewing

ldquobest interestsrdquo findings not errors of evidence and law

Honeywell impliedly concedes its misstatement invoking harmless

error BA17 quoting Blue Stone Land Co v Neff 259 Va 273 279 (2000)

And judgment is affirmed only when this Court ldquocan say that the error

complained of could not have affected the resultrdquo Id

Evidentiary error is ldquopresumed prejudicial unless the record clearly

shows that the error could not have affected the resultrdquo Dandridge v

Marshall 267 Va 591 597 (2004) and ldquoerroneous admission of evidence

which may have lsquotipped the scalesrsquordquo is not harmless Hale v Maersk Line

Ltd 284 Va 358 377 (2012) This Court reverses for error on grounds

undercutting Honeywellrsquos arguments Eg Lawrence supra 279 Va at

5

499 (ldquospeculative and unreliablerdquo opinions inadmissible) Hinkley v

Koehler 269 Va 82 91-92 (2005)(ldquodoes not plainly appear from the record

[erroneous expert evidence] could not have affected the juryrsquos verdict

[lsquodespitersquo] that defendants had another expert witnessrdquo) Dandridge supra

267 Va at 597 (ldquonothing in the recordhellipclearly shows [evidentiary]

errorshellipdid not affectrdquo) Blue Stone supra 259 Va at 280 (different

ldquoevidencehellipmight have produced a different resultrdquo) Tittsworth v

Robinson 252 Va 151 155 (1996)(no harmless error because ldquono way of

determining what evidence may have influenced the juryrdquo) Norfolk amp

Western Ry Co v Puryear 250 Va 559 563 (1995) (ldquo[erroneously

admitted exhibit] could have been reviewed during the jury deliberations

and this would have impermissibly emphasized Puryearrsquos version of the

facts to the prejudice of NampWrdquo) 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)(ldquocannot

determine from the record [on what] the jury based its verdict [so] we

cannot say that the error was harmlessrdquo) Agelasto v Frank Atkinson Real

Estate 229 Va 59 65 (1985)(ldquoimproper evidence may have tipped the

scales [so] we cannot sayhelliperror was harmlessrdquo) Doe v Thomas 227 Va

466 473 (1984)(ldquocannot say as a matter of law that the inadmissible

6

evidence did not affect the juryrdquo) Rhoades v Painter 234 Va 20 24

(1979)(ldquocannot say as a matter of law the erroneous instruction could not

have affected the resultrdquo) Venable v Stockner 200 Va 900 905

(1959)(ldquodoes not necessarily show that the admission of this evidence was

harmlessrdquo)

Hence this Court undertakes evenhanded review of all evidence not

one-sided view of Honeywellrsquos evidence Honeywell bears burden of

showing errors of evidence andor law individually and collectively ldquocould

not have affected the resultrdquo may not have ldquotipped the scalesrdquo

I RELIABLE AUTHORITY

Va Code sect801-4011 includes ldquotwo preconditions to the admission of

hearsay First the testifying witness must have relied upon [it] second the

statements must be established as lsquoa reliable authorityrsquo by testimonyrdquo

Bostic v About Women OBGYN PC 275 Va 567 576 (2008)

Honeywell glosses inaccurately ldquoDr Clarke relied on the report and

vouched for its authorityrdquo BA18 Honeywell asserts falsely its expert

satisfying first precondition (ldquorelied uponrdquo) itself satisfied second

precondition (ldquoreliable authorityrdquo) ldquoDr Clarke testified that he relied on the

report and thereby endorsed its authorityrdquo Id (emphasis added)

7

In truth Honeywellrsquos attorney said Mooney Report is ldquodocument thatrsquos

normally relied upon by expertsrdquo JA1523 Thatrsquos not requisite ldquotestimonyrdquo

Consequently judge admitted absent expert opinion that inherently is

not ldquoreliable authorityrdquo biased case-specific investigation That is contrary

to history jurisprudence and commentators

Forerunner federal ldquolearned treatiserdquo exception presumes ldquohigh

standard of accuracy is engendered by various factors the treatise is

written primarily and impartially for professionals subject to scrutiny and

exposure for accuracy with the reputation of the writer at stakerdquo Advisory

Committee Notes to Federal Rules of Evidence Fed R Evid 803

Exception 18 56 FRD 183 316 (1972) ldquo[A]uthors of treatises have no

bias in any particular caserdquo 2 McCormick on Evidence sect321 (6th ed 2006)

United States v Martinez 588 F3d 301 312 (6th Cir 2009) cert

denied 131 SCt 538 (2010) ruled material inadmissible as learned

treatise because it ldquowas prepared forhelliplitigation purposes it was not

subjected to peer review or public scrutiny and it was not lsquowritten primarily

for professionalshellipwith the reputation of the writer at stakersquordquo OrsquoBrien v

Angley 63 Ohio St2d 159 407 NE2d 490 494 (Ohio Sup Ct

1980)(citing 5 Wigmore on Evidence sect1692 at 6 (Chadbourn Rev)) held

admission of JAMA editorial as learned treatise ldquoprejudicially erroneousrdquo

8

because ldquoit was written with a view toward litigation [and] was primarily an

expression of opinion by a physician concerning a controversial subject

which posed a risk of litigation for his colleagues in the medical professionrdquo

By law sect801-4011 is ldquostrictly construed and not to be enlarged in

[its] operation by construction beyond [its] express termsrdquo Bostic 275 Va

at 576 By public policy its ldquosecond preconditionrdquo (ldquoreliable authorityrdquo) is

construed narrowly for ldquolearned treatisesrdquo not enlarged for biased case-

specific investigation (whose creators must testify)

Alternatively Honeywell asserts incorrectly judge erring ldquoby permitting

[Mooney Reportrsquos] introduction into evidencehellipas distinct from the

argument that the report does not qualify as a reliable authority - was never

raised below and the Administrators do not raise it nowrdquo BA19 Honeywell

claims falsely ldquoit is thus waived twice overrdquo Id

In truth Administrators objected to Mooney Report testimony

JA1520-1521 and Mooney Report itself as documentary exhibit id and

JA1525 both for lack of ldquofoundationrdquo (since sect801-4011 provides none) Id

AOE 1 preserves admission of ldquohearsay Mooney Reportrdquo itself as error

Opening Brief of Appellants (ldquoOBrdquo) at 1 Administrators brief judge ldquoerred in

allowing Honeywellrsquos experthellipto introduce the entire hearsay report into

evidencerdquo OB32 That is not waiver

9

Tacitly conceding waiver is meritless Honeywell alternatively argues

Mooney Report admitted as documentary exhibit is harmless BA19-22

Honeywell incorrectly pooh-poohs Mooney Report is ldquoblandrdquo ldquoexpresses no

opinion about the cause of accident [and] makes no comment on whether

Honeywellrsquos autopilot was defectiverdquo BA21-22

Honeywell spins the following Mooney Report excerpt as ldquoneedle-in-

the-haystack statement - which was merely cumulative of other evidence -

could not have affected the outcome of this trialrdquo BA22

Conclusions The IIC [ldquoNTSBrdquo] Lycoming representative and myself [Mooney] did not find any evidence that the aircraft engine was not capable of producing power or that the aircraft was uncontrollable at the time of the accident

Honeywell Exhibit 11 JA463 (emphasis added) Thatrsquos just not so

Indisputably Mooney Report ldquoConclusionrdquo on the ultimate issue is not

bland impliedly expresses opinion about the cause of accident and

essentially comments Honeywellrsquos autopilot was not defective Although

ldquocauserdquo ldquoautopilotrdquo and ldquodefectiverdquo are not used Conclusion the aircraft

was ldquonot uncontrollablerdquo (as Administrators allege) is tantamount to opining

autopilot system was working sufficiently ie not defective and impliedly

that there was pilot error

10

Therefore although NTSB Report as admitted left jury dangling about

crash cause (showing no conclusion re cause) Mooney Report went the

final step and reached the ultimate issue by effectively concluding

Honeywellrsquos autopilot was ldquonot uncontrollablerdquo not defective Because it

opined on behalf of ldquoThe IIC [lsquoNTSBrsquo]rdquo Mooney Report purported to speak

on behalf of NTSB the Federal agency officially responsible for crash

investigation even though NTSB Report admitted did not speak re cause

That is materially prejudicial to Administrators and Honeywell cannot

prove jury did not read and rely on that pivotal Conclusion particularly with

Honeywell calling Mooney Report to juryrsquos attention twice in closing

JA1582-1583 This Court cannot say ldquoerror complained of could not have

affected the resultrdquo thus error was not harmless

II OTHER INCIDENTS

A Honeywell ignores Goins v Wendyrsquos Intrsquol 242 Va 333 (1991)

Wood v Woolfolk Properties Inc 258 Va 133 138 (1999)

and Velocity Express Mid-Atlantic v Hagen 266 Va 188

(2003) They control

B Honeywell conjures waiver claiming several cases hold

Administrators had to move for curative instruction precisely

11

when they objected to closing statements BA23-25 but careful

scrutiny discloses none hold that Velocity Express controls

C Honeywell claims ldquoobvious and crucial differencerdquo between (1)

absence of other incidents and (2) what Administratorsrsquo experts

testified BA26-27 But both are improper plus Honeywell

argued the worst absence of other incidents transcript does

not mention Administratorsrsquo experts in any of the five violations

and judge claiming it so does not make it so

D Honeywellrsquos five ldquoabsence of other incidentsrdquo rule violations is

prejudicial not harmless General instruction at trial outset is

not curative instruction after and for five violations and

Administratorsrsquo pure protest retorts in closing - which unlike

cases cited by Honeywell BA30 did not precipitate

Honeywellrsquos violations - are not curative particularly not given

judgersquos ratification of Honeywellrsquos five violations Velocity

Express

III JURY INSTRUCTION

A Honeywell ignores McClung v Commonwealth 215 Va 654

(1975) and Lawlor v Commonwealth 285 Va 187 (2013) They

control

12

B Honeywell concedes jury had only ldquoeitherorrdquo choice ldquoAt the

end of the day the jury was presented with a clear

choicehellipautopilothellip Orhellippilothelliprdquo BA13 (emphasis added)

C Honeywell misstates Administrators rely ldquoprimarily on a single

case Holmesrdquo BA34 then criticizes Administrators that

Holmes does not reach supporting evidence coming from both

plaintiffrsquos and defendantrsquos evidence BA34-35 In truth

Administrators relied on Holmes and McClung together with

McClung reaching evidence coming from plaintiffrsquos and

defendantrsquos case Brief Amicus Curiae at 30-31 as argued by

Administrators JA1545-1547 and TT3222-3223

D Honeywell objected to Administratorsrsquo multiple-cause instruction

solely because it then was not the ldquoModel Jury Instructionrdquo

JA1545-1547 not on redundancy confusion and inconsistency

grounds it raises on appeal first-time Correspondingly judge

indisputably sustained Honeywellrsquos lone itrsquos-not-the-Model

objection on that ground - clear unjustified indefensible violation

of sect801-3792 - not on Honeywellrsquos new different grounds

E Virginia Model Jury Instruction 5000rsquos post-trial amendment

effective December 2013 added the disputed sentence

13

Administrators requested There may be more than one

proximate cause of an accident injury or damage (emphasis

added) Citing Holmes its ALERTS emphasizes Where the

evidence in a case shows the possibility of more than one

proximate cause of an accident injury or damage the final

[new] sentence of Instruction should be given to fully and fairly

explain the principle of proximate cause to the jury Id

(emphasis added)

IV ABEL OPINIONS

A Honeywell ignores Combs v Norfolk and Western Ry Co 256

Va 490 (1998) Keesee v Donigan 259 Va 157 (2000) and

Doe v Dewhirst 240 Va 266 (1990) They control

B Honeywell admits Abel is ldquopretty critical witnessrdquo JA657 who

ldquoentered the realm of opinionrdquo BA37 and judge treated Abel as

ldquoquasi-expertrdquo TT349 But Abel never was qualified as expert

C Honeywell lists Administratorsrsquo objections to Abelrsquos testimony

irrelevant prejudicial subjective speculative unreliable

unfounded and opinion BA37 Honeywell simply pays lip-

service and does not actually refute each objection

14

D Honeywell focuses mostly on weather particularly visibility

BA37-39 Honeywell inaccurately claims ldquozero visibilityrdquo was

ldquoundisputedrdquo BA38 when in truth it was disputed it actually

was knowable only by pilot and Honeywellrsquos own exemplar

photo shows visibility through cloud covering BA8(Tr Ex 987)

E Abelrsquos opinion testimony about pilotrsquos ldquojudgmentrdquo was unduly

prejudicial Honeywell inundated the jury with it JA792

JA1352 JA1354 JA1645 and JA1594-1595

V NORMAN OPINIONS

A Honeywell ignores Wright v Kaye 267 Va 510 (2004) It

controls

B Honeywell admits Normanrsquos testimony ldquotouched on his opinionrdquo

BA 40 gross understatement Normanrsquos lay subjective opinions

are inflammatory hyperbole couched in exaggerated terms

eg ldquoafraidrdquo ldquohealthy fearrdquo ldquoa thousand different mistakesrdquo

and ldquosomething bad happenrdquo but Honeywell does not address

each of Administratorsrsquo objections re them

C Normanrsquos subjective opinions are unduly prejudicial individually

bespeaking pilot error and collectively screaming it Honeywell

inundated the jury JA1380-1389 JA1593-1594 and JA1598

15

CONCLUSION

This Court should reverse and remand all issues for retrial

Respectfully submitted s Avery T Waterman Jr AVERY T WATERMAN JR ESQ

VSB 27118 Patten Wornom Hatten amp Diamonstein LC 12350 Jefferson Avenue Suite 300 Newport News Virginia 23602 Telephone (757) 223-4567 Facsimile (757) 223-4499 Awatermanpwhdcom

Counsel for Amicus Curiae

16

CERTIFICATE OF SERVICE

I hereby certify that on March 4 2014 fifteen copies of the above

Reply Brief Amicus Curiae have been hand-delivered to the clerkrsquos office

This same date three copies of the same have been sent via first class

postage prepaid mail to the following counsel

Counsel for Appellants

Roger T Creager Esq The Creager Law Firm PLLC 1500 Forest Avenue Suite 120 Richmond VA 23229 Telephone (804) 747-6444 Facsimile (804) 747-6477 rcreagercreagerlawfirmcom John C Shea Esq Mark S Lindensmith Esq Marks amp Harrison PC 1500 Forest Avenue Richmond VA 23229 Telephone (804) 282-0999 Facsimile (804) 288-1853 jsheamarksandharrisoncom mlindensmithmarksandharrisoncom

17

Anita Porte Robb Esq Admitted pro hac vice in trial court Gary C Robb Esq Admitted pro hac vice in trial court Robb amp Robb LLC One Kansas City Place - Suite 3900 1200 Main Street Kansas City MO 64105 Telephone (816) 474-8080 Facsimile (816) 474-8081 arobbrobbrobbcom grobbrobbrobbcom Counsel for Appellee N Thomas Connally III Esq Hogan Lovells US LLP Park Place II 7930 Jones Branch Drive McLean VA 22102 Telephone (703) 610-6100 Facsimile (703) 610-6200 tomconnallyhoganlovellscom Catherine E Stetson Esq Jessica L Ellsworth Esq Hogan Lovells US LLP Columbia Square 555 Thirteenth Street NW Washington DC 20004 Telephone (202) 637-5600 Facsimile (202) 637-5910 catestetsonhoganlovellscom jessicaellsworthhoganlovellscom

18

Turner A Broughton Esq Patrick R Hanes Esq Joseph R Pope Esq WF Drewry Gallalee Esq Harold E Johnson Esq Williams Mullen Clark amp Dobbins Williams Mullen Center 200 South 10th Street PO Box 1320 Richmond VA 23218-1320 Telephone (804) 420-6939 Facsimile (804) 420-6507 tbroughtonwilliamsmullencom phaneswilliamsmullencom jpopewilliamsmullencom dgallaleewilliamsmullencom hjohnsonwilliamsmullencom Michael McQuillen Esq Admitted pro hac vice Austin W Bartlett Esq Pending pro hac vice admission Adler Murphy amp McQuillen LLP 20 S Clark Suite 2500 Chicago IL 60603 Telephone (312) 345-0700 Facsimile (312) 345-5860 mmcquillenamm-lawcom abartlettamm-lawcom s Avery T Waterman Jr Of Counsel

PRESENT All the Justices VICTORIA COALSON OPINION BY v Record No 130837 JUSTICE S BERNARD GOODWYN February 27 2014 VICTOR CANCHOLA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Bruce D White Judge

In this appeal we consider whether the circuit court erred

in remitting a juryrsquos award of punitive damages

Background

On March 1 2011 Victoria Coalson (Coalson) and Michael

Stemke (Stemke) each filed lawsuits in the Circuit Court of

Fairfax County against Victor Canchola (Canchola) seeking

compensatory and punitive damages for personal injuries

sustained in an automobile accident The circuit court

consolidated Coalsonrsquos and Stemkersquos actions

At the conclusion of the trial the jury awarded Coalson

$5600 in compensatory damages and $100000 in punitive damages

against Canchola Stemke received $14000 in compensatory

damages and $100000 in punitive damages The circuit court

entered a final order on January 11 2013 but the court

suspended the order for fourteen days to give the parties an

opportunity to file post-trial motions and submit an amended

final order if they wished Canchola filed a post-trial motion

for remittitur of both punitive damages awards arguing that the

2

awards were excessive under Virginia law and the Due Process

Clause of the Fourteenth Amendment

The circuit court found that Cancholarsquos conduct was

egregious Nevertheless it noted ldquoa significant disparityrdquo

between the plaintiffsrsquo compensatory damages awards although

both punitive damages awards were the same Based on this

disparity it concluded that Coalsonrsquos award was arbitrarily

made The circuit court remitted Coalsonrsquos punitive damages to

$50000 While it recognized that ldquo[t]here is no bright line or

formula to be applied[]rdquo the court reduced the award to ldquoless

than a ten percent ratiordquo

The circuit court entered an order granting Cancholarsquos

motion for remittitur regarding Coalsonrsquos punitive damages award

on February 8 2013 On February 28 2013 the court entered an

amended final order reflecting its remittitur ruling noting

Coalsonrsquos acceptance under protest summarizing the proceedings

denying Coalsonrsquos motion to reconsider and awarding post-

judgment interest Coalson filed a notice of appeal with the

circuit court on March 21 20131

1 Rule 59(a) states that a party must file her notice of

appeal within 30 days of entry of the trial courtrsquos final order Rule 55(b) provides for an extension of time to file a notice of appeal if the trial court ldquomodifie[s]rdquo its final order The rule also states that ldquothe time for filing the notice of appeal shall be computed from the date of final judgment entered following such modificationrdquo Rule 55(b) The circuit courtrsquos February 8 2013 order granting Cancholarsquos motion for remittitur

3

Facts

At approximately 630 pm on February 15 2009 Canchola

was driving and talking on his cellular telephone when he

attempted to turn left at an intersection on Waxpool Road in

Loudoun County He turned in front of a vehicle driven by

Coalson who had the right of way and was unable to stop before

colliding with the passenger door of Cancholarsquos vehicle

Coalson and her passenger Stemke suffered minor injuries

Canchola who was intoxicated at the time of the accident

had an extensive record of driving while intoxicated Between

1991 and 1997 Canchola was convicted six times of driving while

intoxicated and once of driving with a suspended license In

1996 his driverrsquos license was revoked In 2004 he was

convicted yet again of driving while intoxicated in California

The night before the accident Canchola stayed at a hotel

in Ashburn Virginia with his girlfriend Lori Rudegeair

(Rudegeair) who was visiting from Pennsylvania At brunch in

Alexandria on the day of the accident Canchola drank several

modified the original judgment and tolled the thirty-day time limit but it was not a final order because Coalson could still exercise her right to accept remittitur under protest pursuant to Code sect 801-3831 See Ragan v Woodcroft Village Apartments 255 Va 322 327 497 SE2d 740 743 (1998) (defining ldquofinal order or judgmentrdquo as ldquoone that disposes of the whole subject of the case and gives all relief contemplatedrdquo) On February 28 the circuit court entered an amended final judgment noting Coalsonrsquos acceptance under protest and Coalson filed her notice within thirty days of the February 28 order making her notice timely

4

glasses of champagne Afterward Canchola and Rudegeair walked

to a nearby pub and Canchola drank two rounds of his favorite

drink combination a vodka martini and light beer They left

the pub sometime after 330 pm when a police officer called

Canchola to inform him that a vehicle Canchola had reported

missing was located in Leesburg Virginia Because Canchola

slurred his speech while speaking to the police officer the

officer advised Canchola not to drive when he came to pick up

the vehicle

Despite the warning Canchola drove Rudegeairrsquos car to

Leesburg He stopped approximately a block from where he was

supposed to meet the officer and had Rudegeair drive the rest of

the way After Canchola finished speaking to the officer and

claiming the vehicle which was found in good condition and

after having been warned by the officer not to drive Canchola

left the scene as Rudegeairrsquos passenger They drove a short

distance waited for a few minutes and returned to Cancholarsquos

vehicle after the police officer left Canchola then drove his

vehicle to another bar Rudegeair followed in her car There

Canchola drank at least two rounds of the vodka and light beer

combination and three additional shots of liquor within a short

period of time

Canchola and Rudegeair left the bar to return to the hotel

in separate vehicles As Canchola approached the intersection

5

where he was to turn left into the hotel entrance he began a

conversation on his cellular telephone He was engaged in that

conversation when he turned left in front of the vehicle driven

by Coalson According to uncontradicted testimony of an expert

toxicologist Cancholarsquos blood alcohol content was almost twice

the legal limit at the time of the accident

After Coalson collided with Canchola Canchola removed his

vehicle from the scene of the accident parked it and left in

Rudegeairrsquos vehicle He was subsequently arrested upon

returning to the hotel Canchola urged Rudegeair not to tell

anyone that he had been driving his vehicle when the accident

occurred Rudegeair initially lied to police but later told the

truth under oath

Analysis

Coalson argues that the circuit court erred in remitting

her punitive damages award because the circuit courtrsquos decision

was based upon comparing her punitive damages award to Stemkersquos

punitive damages award and upon the proportionality of her

punitive damages award in relation to her compensatory damages

award Coalson asserts that proportionality is not the only

consideration in determining the excessiveness of punitive

damages under Virginia law and that a higher ratio between

compensatory and punitive damages was proper in this case due to

ldquothe egregiousness of [Cancholarsquos] conduct and the potential

6

harm that could have resulted from his actionsrdquo Coalson

emphasizes that neither this Court nor the United States Supreme

Court has created a ldquobright-line testrdquo Although she does not

base her appeal on constitutional grounds Coalson maintains

that Virginiarsquos remittitur analysis for punitive damages is

ldquoframed in and derived fromrdquo federal constitutional law

Consequently she urges the Court to consider ldquopotential harmrdquo

as well as actual harm in reinstating the juryrsquos punitive

damages award

Canchola contends that the circuit court properly

considered and applied all of the remittitur factors and

constitutional guidelines before granting his motion He

disputes Coalsonrsquos assertion that the Court should consider

ldquohypothetical damagesrdquo she could have sustained He argues that

considering what could have happened is not supported by this

Courtrsquos jurisprudence and would require a jury to engage in

improper speculation Canchola claims that in evaluating the

reprehensibility of his actions the proper focus should be on

his conduct at the time of the accident not on ldquoevery unsavory

act [he] committed over timerdquo According to Canchola Coalson

places too much emphasis on punishment and reprehensibility and

ignores proportionality

ldquoThe purpose of punitive damages is to provide lsquoprotection

of the public punishment to [the] defendant and a

7

warning and example to deter him and others from committing like

offensesrsquordquo Huffman v Love 245 Va 311 315 427 SE2d 357

361 (1993) (quoting Baker v Marcus 201 Va 905 909 114

SE2d 617 620 (1960)) This Court has observed that punitive

damages are meant to warn not to compensate the plaintiff Doe

v Isaacs 265 Va 531 539 579 SE2d 174 179 (2003) A

punitive damages award is generally left to the juryrsquos

discretion because there is no set standard for determining the

amount of punitive damages Worrie v Boze 198 Va 533 544

95 SE2d 192 201 (1956)

To justify remittitur a juryrsquos award must be so excessive

that it shocks the conscience of the trial court indicating

that the juryrsquos decision was motivated by ldquopassion corruption

or prejudicerdquo Condominium Servs Inc v First Ownersrsquo Assrsquon

of Forty Six Hundred Condo Inc 281 Va 561 580 709 SE2d

163 175 (2011) (quoting Smithey v Sinclair Refining Co 203

Va 142 146 122 SE2d 872 875-76 (1961)) When a trial

court considers whether to remit a juryrsquos punitive damages

award its review of the punitive damages award should consider

the ldquoreasonableness between the damages sustained and the amount

of the award and the measurement of punishment required whether

the award will amount to a double recovery the proportionality

between the compensatory and punitive damages and the ability

8

of the defendant to payrdquo Poulston v Rock 251 Va 254 263

467 SE2d 479 484 (1996) (citations omitted)

In evaluating whether punitive damages were properly

remitted this Court performs a de novo review examines the

record independently and gives ldquosubstantial weightrdquo to the trial

courtrsquos action Baldwin v McConnell 273 Va 650 657 643

SE2d 703 706 (2007) (quoting Poulston 251 Va at 263 467

SE2d at 484)

The circuit court reduced the amount of Coalsonrsquos punitive

damages award because the jury awarded the same amount in

punitive damages to Coalson as it did to Stemke despite their

different compensatory damages awards Also the circuit court

ruled that the 11786 ratio between Coalsonrsquos compensatory and

punitive damages was too high

We have not previously addressed whether it is proper to

compare punitive damages awards in evaluating excessiveness

However in Allied Concrete Co v Lester 285 Va 295 312 736

SE2d 699 708 (2013) this Court held that a trial court may

not compare verdicts to evaluate the excessiveness of

compensatory damages Likewise in John Crane Inc v Jones

274 Va 581 595 650 SE2d 851 858 (2007) the Court declined

to compare verdicts in determining whether compensatory damages

were excessive

9

We hold that the same rationale stated in John Crane Inc

is true regarding comparing punitive damages awards

ldquo[Comparing verdicts] is not probative of whether a verdict is

excessive rather that determination must be made based on the

facts and circumstances of each caserdquo Id The circuit courtrsquos

consideration of Coalsonrsquos and Stemkersquos relative ratios of

compensatory damages to punitive damages as a basis for granting

remittitur was error See Allied Concrete Co 285 Va at 312

736 SE2d at 7082

We agree with the circuit court that Cancholarsquos conduct was

egregious Canchola was driving while intoxicated and without a

license which had been revoked because of previous instances of

driving while intoxicated Despite having at least seven

convictions for driving while intoxicated on his record

Canchola drove on several occasions on the day of the accident

while drinking alcohol throughout the day He ignored a police

officerrsquos warning not to drive and engaged in deception so that

the officer would not discover he was driving after which he

drank even more and then attempted to drive again After

causing an accident that could have resulted in serious

2 We note that federal courts sometimes compare verdicts to

evaluate whether punitive damages are excessive as a matter of federal constitutional law See eg Saunders v Branch Banking amp Trust Co of Va 526 F3d 142 154 (4th Cir 2008) (comparing punitive damages awards in other Fair Credit Reporting Act cases)

10

injuries Canchola fled the scene and asked his girlfriend to

lie about his involvement

The jury was instructed that it could award Coalson damages

to compensate her for her injuries including bodily injuries

pain and mental anguish inconvenience and medical expenses

The court further instructed the jury that if it awarded Coalson

compensatory damages it could also award punitive damages if it

found that Canchola ldquoacted under circumstances amounting to a

willful and wanton disregard for the plaintiffsrsquo rightsrdquo The

punitive damages instruction clearly stated that the purpose of

punitive damages was to punish Canchola and to ldquoprevent others

from acting in a similar wayrdquo

Coalsonrsquos punitive damages are reasonably related to her

actual damages and to the degree of necessary punishment which

in this case is great See Philip Morris Inc v Emerson 235

Va 380 414 368 SE2d 268 287 (1988) ldquoGiven the clear

determination of the basis for each award and the ample evidence

supporting each award our independent review of the record does

not suggest double recovery in this caserdquo Baldwin 273 Va at

659 643 SE2d at 707 The ratio of Coalsonrsquos compensatory

damages to punitive damages awarded by the jury is 11786

This is high but given the reprehensible and dangerous nature

of Cancholarsquos conduct it is not ldquounreasonable or strikingly out

of proportionrdquo Id Poulston 251 Va at 263 467 SE2d at

11

484 The court expressly stated that the parties did not

present evidence on Cancholarsquos ability to pay3 See Condominium

Servs 281 Va at 581 709 SE2d at 175 (ldquo[A defendant who has

failed to present evidence of his ability to pay at trial]

cannot prevail before this Court on [his] claim that the amount

of punitive damages would be oppressiverdquo)

Cancholarsquos conduct was egregious enough to warrant a

punitive damages award and the amount of punitive damages

awarded by the jury does not shock the Courtrsquos conscience

Virginia precedent indicates that the circuit court should not

have remitted the punitive damages award

It is not clear from the record whether the circuit court

granted Cancholarsquos motion for remittitur on state law or federal

constitutional law grounds Thus we will analyze the award

considering relevant federal constitutional law as well

The United States Supreme Court has prescribed three

guidelines for appellate courts to use in reviewing whether

punitive damages are so excessive as to violate a defendantrsquos

right to due process ldquo(1) the degree of reprehensibility of the

defendantrsquos misconduct (2) the disparity between the actual or

potential harm suffered by the plaintiff and the punitive

damages award and (3) the difference between the punitive

3 Canchola acknowledged the same in his motion for

remittitur and during oral argument before the circuit court

12

damages awarded by the jury and the civil penalties authorized

or imposed in comparable casesrdquo State Farm Mut Auto Ins Co

v Campbell 538 US 408 418 (2003) The Supreme Court has

further provided factors for evaluating the first guideline

which is the most important of the three

[W]hether[] the harm caused was physical as opposed to economic the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others the target of the conduct had financial vulnerability the conduct involved repeated actions or was an isolated incident and the harm was the result of intentional malice trickery or deceit or mere accident

Id at 419

These considerations weigh against remittitur on due

process grounds Virginia certainly has an interest in

promoting public safety through prevention and deterrence of

driving while intoxicated See BMW of North America Inc v

Gore 517 US 559 568 (1996) (ldquo[T]he federal excessiveness

inquiry appropriately begins with an identification of the state

interests that a punitive award is designed to serverdquo)

Although the collision was an accident Canchola deliberately

chose to drive while severely intoxicated which resulted in

physical injury Cancholarsquos determined persistence to drive

while intoxicated and his reckless disregard for the safety of

others is evidenced by his seven prior driving while intoxicated

convictions and by his behavior on the day of the accident See

id at 576-77 (ldquo[E]vidence that a defendant has repeatedly

13

engaged in prohibited conduct while knowing or suspecting that

it was unlawful would provide relevant support for an argument

that strong medicine is required to cure the defendantrsquos

disrespect for the lawrdquo) Furthermore a defendantrsquos conduct

that endangers many is more reprehensible than conduct that only

endangers a few Philip Morris USA v Williams 549 US 346

357 (2007) Canchola puts other drivers at risk every time he

drinks and drives

The Supreme Court has repeatedly stated that ratios between

actual or potential harm and punitive damages should generally

be within single digits to satisfy due process requirements

State Farm 538 US at 425 Nevertheless it has also

recognized that higher ratios may be constitutional where a

defendantrsquos actions are exceptionally reprehensible but result

in small economic damage See id (reaffirming that there are

no ldquorigid benchmarksrdquo and indicating that courts should consider

each case ldquobased upon the facts and circumstances of the

defendantrsquos conduct and the harm to the plaintiffrdquo) see also

Saunders 526 F3d at 154 (citing federal appellate court

decisions upholding higher ratios) Driving while intoxicated

could result in death and it was fortunate that Coalson and

Stemke suffered relatively minor injuries ldquoWhile the circuit

court observed what it took to be a significant disparity

between the punitive award and the compensatory award that

14

contrast lsquodissipates when one considers the potential loss to

[Coalson] rsquordquo TXO Prod Corp v Alliance Res Corp 509

US 443 449-51 462 (1993) (upholding a ratio of 1526)

In upholding a ratio of 180 in Saunders the Fourth

Circuit observed that rigidly adhering to a single digit ratio

in all cases could sometimes prevent punitive damages from

fulfilling their purposes of punishment and deterrence 526

F3d at 154 For this reason the court determined that

remitting the punitive damages award in that case ldquowould leave

little deterrent or punitive effectrdquo Id The 11786 ratio in

this case is not excessive for Canchola has demonstrated a need

for stronger medicine to cure his disrespect for the law

Additionally a comparison of criminal and civil penalties

for habitually driving while intoxicated and for driving with a

revoked license supports the juryrsquos punitive damages award The

Commonwealth punishes repeated instances of driving while

intoxicated by increasing fines and mandatory sentences See

Code sectsect 182-266 and -270 In addition to the statutory scheme

for punishing driving while intoxicated the legislature has

prescribed punishments for habitual offenders in the form of

license revocation mandatory safety courses and increasing

penalties for driving without a license See eg Code sectsect

462-389 (mandatory revocation of license upon conviction of

driving while intoxicated) 462-3551 (mandatory participation

15

in safety course upon second offense of driving with revoked

license) 462-391 (mandatory three-year revocation for multiple

convictions of driving while intoxicated) see also sect 462-357

(minimum one year and maximum five yearsrsquo imprisonment for

felony offense of driving with revoked license while

intoxicated) These penalties demonstrate the seriousness with

which Virginia views the act of driving while intoxicated with a

suspended or revoked license See State Farm 538 US at 428

(noting that criminal penalties are less useful for determining

the precise amount of a punitive damages award) Upon

consideration of the constitutional guidelines provided by the

United States Supreme Court we conclude that the juryrsquos

punitive damages award is not excessive under the Due Process

Clause of the Fourteenth Amendment

Conclusion

Therefore we hold that the circuit court erred in granting

Cancholarsquos motion for remittitur because Coalsonrsquos punitive

damages award was not excessive under Virginia law nor did it

offend Cancholarsquos due process rights Accordingly the judgment

of the circuit court will be reversed the jury verdict awarding

Coalson $100000 in punitive damages will be reinstated and

final judgment will be entered on the verdict

Reversed and final judgment

16

JUSTICE McCLANAHAN dissenting

The jury awarded Coalson $100000 in punitive damages

which was nearly 18 times the amount of her compensatory damage

award of $5600 I would affirm the judgment of the circuit

court ordering remittitur of a portion of the punitive damages

and reducing the award to $50000 still almost 9 times the

amount of compensatory damages

While not expressly overruling this Courtrsquos precedent the

majority opinion makes clear that the ldquoreasonableness between

the damages sustained and the amount of the awardrdquo as well as

ldquothe proportionality between the compensatory and punitive

damagesrdquo Baldwin v McConnell 273 Va 650 658 643 SE2d

703 706 (2007) are hardly relevant to the circuit courtrsquos

consideration of whether to remit a portion of a punitive

damages award What is also clear is that the majority affords

little weight to the circuit courtrsquos action rather than the

ldquosubstantial weightrdquo the circuit court is due Id at 657 643

SE2d at 707 (quoting Poulston v Rock 251 Va 254 263 467

SE2d 479 484 (1996))

Following this Courtrsquos previous directives the circuit

court employed the proper analysis in considering Cancholarsquos

motion for remittitur In reaching its decision the circuit

court explained

17

I did take into consideration the Virginia Supreme Court factors reasonableness between the damages sustained and the amount of the award the measurement of punishment required whether the award will amount to a double recovery the proportionality between the compensatory and punitive damages and the ability of the Defendant to pay such that there is any evidence on those items for me

These are precisely the factors this Court has repeatedly

instructed circuit courts to consider See Baldwin 273 Va at

658 643 SE2d at 707 (judicial review upon motion for

remittitur ldquorequiresrdquo consideration of the following 1

reasonableness between damages sustained and amount of award

2 measurement of punishment required 3 whether award will

amount to double recovery 4 proportionality between the

compensatory and punitive damages and 5 ability of defendant

to pay) see also Condominium Servs Inc v First Ownersrsquo

Assrsquon of Forty Six Hundred Condo Inc 281 Va 561 580 709

SE2d 163 175 (2011) Poulston 251 Va at 263 467 SE2d at

484

Upon consideration of these factors the circuit court

concluded the punitive damages award to Coalson was excessive in

relation to her compensatory damages Finding the award

ldquoarbitraryrdquo the court noted it was ldquotroubling to [it] that

there is a significant disparity between the compensatory damage

award for one Plaintiff and the compensatory damage award for

18

the other Plaintiffrdquo while the ldquopunitive damage award in each

of the cases is one hundred thousand dollarsrdquo Furthermore

ldquoconsidering the proportionality between the compensatory and

the punitive damage award[ ]rdquo to Coalson the circuit court

found the almost 1-to-18 ratio disproportionate and excessive

particularly in light of the 1-to-7 ratio the compensatory

damages bore to the punitive damages in the verdict for Stemke1

The amount of the circuit courtrsquos remittitur was certainly

consistent with prior precedent This Court has found a

proportionality of punitive damages 25 times the compensatory

damages an acceptable ratio Poulston 251 Va at 263 467

SE2d at 484 Condominium Servs Inc 281 Va at 580 709

SE2d at 175 as well as a proportionality of punitive damages

approximately 66 and 67 times the compensatory damages Philip

Morris Inc v Emerson 235 Va 380 414 368 SE2d 268 287

(1988) In Stemkersquos case the punitive damages awarded were

approximately 7 times his compensatory damages which the

circuit court found reasonable In light of the ratios of

punitive to compensatory damage awards previously found

acceptable by this Court and the ratio found acceptable by the

circuit court in Stemkersquos case which involved the same accident

and conduct of the defendant I believe the circuit court

1 While the circuit court found Coalsonrsquos award excessive

it denied the motion for remittitur of Stemkes award

19

properly ordered the remittitur of a portion of Coalsonrsquos

punitive damages and reduction of her award from an amount that

was nearly 18 times her compensatory damages to an amount that

was nearly 9 times her compensatory damages

I disagree that it was error for the circuit court to

consider the punitive and compensatory damages awarded to Stemke

in determining the reasonableness between the damages sustained

by Coalson and the amount of her punitive damage award The

compensatory damages awarded to Stemke were 25 times more than

the compensatory damages awarded to Coalson yet as the circuit

court observed the punitive damages awarded to each were the

same leading the circuit court to conclude the amount of

punitive damages awarded to Coalson was arbitrary rather than

bearing a reasonable relation to the compensatory damages and

the punishment required See Stubbs v Cowden 179 Va 190

201 18 SE2d 275 280 (1942)(ldquoThe damages awarded should bear

some reasonable proportion to the real damages sustained and to

the measure of punishment required otherwise they indicate

prejudice or partialityrdquo)2 As compared to Stemkersquos punitive

damage verdict which was a little over 7 times the compensatory

2 The requirement that the punitive damages bear a

reasonable relationship to the actual damages has led this Court to remand an award of punitive damages to the circuit court for reconsideration when it has reversed a portion of the compensatory damages Little v Cooke 274 Va 697 719 652 SE2d 129 142 (2007)

20

damage verdict the jury verdict for Coalson against the same

defendant for the same conduct amounted to nearly 18 times the

verdict In other words the jury punished Canchola more

severely for the injuries sustained by Coalson than for the

injuries sustained by Stemke arising from the same accident If

not arbitrary the award was based on partiality toward Coalson

or prejudice against Canchola

This Courtrsquos prior holdings that prohibit the comparison of

jury verdicts awarding compensatory damages are not applicable

In John Crane Inc v Jones 274 Va 581 595 650 SE2d 851

858 (2007) and Rose v Jaques 268 Va 137 159 597 SE2d 64

77 (2004) this Court rejected the ldquoaverage verdict rulerdquo which

compares statewide or nationwide jury verdicts to reach an

ldquoaverage verdictrdquo because such a rule is not relevant to the

extent of actual pain and suffering experienced by the

plaintiff In Allied Concrete Co v Lester 285 Va 295 312

736 SE2d 699 708 (2013) the Court relied upon its holdings

in John Crane and Rose to conclude that it was error for the

trial court to compare injuries suffered by the plaintiffs3

However the rationale that a verdict for one personrsquos pain and

suffering is not a reasonable basis on which to judge the

3 As I stated in Allied Concrete 285 Va at 316 n3 736

SE2d at 710 n3 (McClanahan J concurring in part and dissenting in part) I did not agree that the trial court in that case engaged in improper verdict comparison

21

excessiveness of a verdict for another personrsquos pain and

suffering can only apply when the issue involves the

excessiveness of a compensatory damage award Ignoring the

rationale of these holdings the majority has adopted a bright-

line rule forbidding any comparison of verdicts even when such

a comparison is actually probative of the analysis and dictated

by reason

Indeed our own Court compares ratios found acceptable in

other cases that involve not only different plaintiffs but also

different defendants different conduct and different types of

actions entirely See Baldwin 273 Va at 659 643 SE2d at

707 (noting the punitive damage award approved in Poulston was

two and one-half times the compensatory award) Condominium

Servs Inc 281 Va at 581 709 SE2d at 175 (noting the

punitive damage award in Poulston of 25 times the compensatory

award and a punitive damage award in Philip Morris of 66 times

the compensatory award) In this case involving a single

automobile accident and a consolidated trial the circuit court

compared the ratios as between two injured plaintiffs against

one defendant who caused their injuries Arguably then the

circuit courtrsquos comparison of the verdicts in this case was more

probative to the issue of reasonableness and proportionality

than the comparisons this Court has made to ratios in unrelated

cases

22

Presumably we will ldquolsquogive substantial weight to the trial

courtrsquos action and affirm it unless from our view of the

record the trial court acted improperlyrsquordquo Baldwin 273 Va at

657 643 SE2d at 706 (quoting Poulston 251 Va at 263 467

SE2d at 484) Nevertheless despite the circuit courtrsquos

faithful application of the law and the obvious disparity of

ratios of compensatory to punitive damages between the Coalson

and Stemke awards each of which were based on the same conduct

of Canchola the majority finds the circuit courtrsquos action

improper In Allied Concrete 285 Va at 317 736 SE2d at

711 I expressed my belief that ldquofor all practical purposes the

last nail in the coffin of remittitur [of compensatory damages]

has been drivenrdquo It appears that remittitur of punitive

damages has suffered the same fate

PRESENT All the Justices THE BYRD THEATRE FOUNDATION OPINION BY v Record No 130691 JUSTICE ELIZABETH A McCLANAHAN FEBRUARY 27 2014 DAVID M BARNETT

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Melvin R Hughes Jr Judge

In this premises liability action The Byrd Theatre

Foundation (the Foundation) appeals a final judgment entered

against it in favor of David M Barnett (Barnett) The

Foundation argues that the circuit court erred in denying its

plea of charitable immunity and in failing to instruct the jury

on notice to a corporation We will affirm the judgment of the

circuit court

I BACKGROUND

The Foundation a non-profit corporation qualifying as a

tax-exempt organization under 26 USC sect 501(c)(3) owns the

Byrd Theatre a national historic landmark and motion picture

theater in Richmond that was opened in 1928 and houses a

Wurlitzer theater pipe organ installed the same year The

theater is operated by 1928 Limited Inc (1928 Limited) a

non-stock for-profit corporation formed by the Foundation

shortly after its purchase of the Byrd Theatre in 2007

Barnett a member of the Foundations organ restoration

subcommittee was injured in the theaters organ chamber when

2

he was performing repairs to the organ and a wooden plank he

stepped upon gave way causing him to fall four feet to the

floor1 Asserting that the wooden plank was not properly

secured Barnett filed suit against the Foundation and 1928

Limited claiming they failed to maintain the premises in a

reasonably safe condition and warn him of the dangerous

condition of the plank Following a jury trial the jury

rendered a plaintiffrsquos verdict against the Foundation and a

defense verdict in favor of 1928 Limited The circuit court

entered judgment on the jurys verdict after denying various

post-trial motions filed by the Foundation

II CHARITABLE IMMUNITY

Prior to trial the Foundation filed a plea of charitable

immunity Because Barnett stipulated that the Foundation is a

charitable organization operating in accordance with its

charitable purpose the issue presented to the circuit court

was limited to whether Barnett was a beneficiary of the

Foundation at the time of his accident

1 The organ chamber is located three stories above the floor level of the auditorium and houses the ranks of pipes and instruments and other parts of the organ necessary to power the organ and relay signals from the organ console to the music producing parts located in the chamber Wooden walking planks are located approximately four feet above the floor of the chamber to provide access to certain parts of the organ

3

A Evidence and Ruling on Plea

At the hearing on the plea the Foundation presented

evidence that pursuant to its articles of incorporation the

Foundation was formed [t]o cultivate promote and develop the

publics knowledge awareness understanding and appreciation

of the performing arts After its purchase of the Byrd

Theatre the Foundation through an amendment to its bylaws

narrowed its mission to owning and restoring the Byrd Theatre

as a grand movie palace and community resource In

performing this mission the Foundations principal activity is

raising funds to be used in its restoration of the theater

including the organ Because the Foundation does not have any

salaried employees it utilizes independent contractors to

perform any such restoration and repair of the theater and the

organ

Barnett is a long-time theater pipe organ enthusiast who

has held memberships and leadership positions in several organ

enthusiast clubs that are dedicated to the preservation and

appreciation of historic pipe organs He purchased a Wurlitzer

theater pipe organ in 1978 and over a two-year period

dismantled restored reassembled and installed the organ in

his home Although Barnett does not play the organ he is

fascinated with the sound and mechanism of theater organs and

has received visiting organists to play the organ installed in

4

his home He is passionate about the preservation and

restoration of the Byrd Theatre organ and has attended the Byrd

Theatre over the years to hear the organ played

From 1976 to 1990 Barnett consulted on and performed

restoration and repair work to the Byrd Theatre organ either as

an individual volunteer or with a group of volunteers from the

Virginia Theatre Organ Society In 2008 Barnett was asked by

Robert Gulledge Jr the house organist for the Byrd Theatre

to serve on the Foundations organ subcommittee of the theater

restoration committee2 As the steward of the organ the

organ subcommittee arranges for and oversees restoration of the

organ Barnetts duties were of an advisory nature and

included making contacts with organ technicians who might enter

into contracts with the Foundation for long-term restoration or

short-term renovations as well as reviewing the terms and

scope of work included in proposed contracts

During a period in which the subcommittee was without an

organ technician under contract Barnett volunteered to

undertake certain repairs to the organ that were needed to

2 Barnett testified that between 1990 and 2008 he did not perform work on the organ and was not affiliated with the Byrd Theatre though he would occasionally bring out-of-town company to see the theater or its lobby

5

address sound quality issues3 While making repairs to the

organ was not within the scope of his duties as a member of the

organ restoration subcommittee the work needed to be done

and nobody else was available to do it Barnett arranged to

perform the repairs with Linwood Lunde a former house organist

for the Byrd Theatre who was still affiliated with the theater

and obtained a key to the organ chamber from the theater

manager When Barnett fell in the organ chamber Lunde was in

the auditorium working at the organ console

Barnett testified that he volunteered to perform the

repairs since he had a passion to have the organ work properly

as a service to the Byrd Theatre and was happy to do that

because if that organ had not had people take an interest in

it it would have most likely gone silent Barnett further

testified that he gain[ed] satisfaction from knowing that [he]

was helping the theater and getting the work done that needed

to be done According to Barnett he didnt get any other

satisfaction out of it

Based on the evidence presented the Foundation asserted

that Barnett was a beneficiary of the Foundations charitable

3 Although an organ technician had been under contract he was unable to resolve the specific problem being addressed by Barnett and Lunde and the Foundation was in the process of terminating his contract and contracting with a new technician

6

purpose through the work he performed since the sound the

mechanism and the music are all improved which is something

hes interested in and passionate about In permitting him to

perform this work the Foundation argued Barnett was given

access to one of the few original installation theater organs

in the country and provided the unique opportunity to work on

the organ in pursuance of his long-time hobby and passion

Rejecting the Foundations argument the circuit court

concluded that Barnett was not the Foundations beneficiary at

the time of his accident Specifically the circuit court

found that [t]he [Foundations] accepted charitable charge is

to provide a venue for the performing arts and [t]he by-law

provision regarding restoration and preservation is aimed at

facilitating that charge of affording performing arts The

circuit court found no evidence that [the Foundation] was

extending and [Barnett] was receiving services or a charitable

benefit consistent with [the Foundations] charitable aims

Thus according to the circuit court [g]iven the

[Foundations] charitable purpose to provide a facility for the

performing arts and according to its by-laws to preserve and

restore the Byrd Theatre including the organ it cannot be

said that [Barnett] was the object of the charitys bounty at

the time [of his accident]

B Analysis

7

The doctrine of charitable immunity being firmly embedded in

the law of this Commonwealth is grounded in the public policy

that the resources of charitable institutions are better used

to further the institutions charitable purposes than to pay

tort claims lodged by the charitys beneficiaries Ola v

YMCA of S Hampton Roads Inc 270 Va 550 555 621 SE2d

70 72 (2005) Consistent with this policy an entity that is

organized for a recognized charitable purpose and operates in

accord with that purpose is immune from liability based upon

claims of negligence asserted by beneficiaries of the entitys

charitable bounty Ola 270 Va at 556 621 SE2d at 72-73

see also University of Va Health Servs Found v Morris 275

Va 319 331-34 657 SE2d 512 517-20 (2008) Straley v

Urbanna Chamber of Commerce 243 Va 32 35-38 413 SE2d 47

49-51 (1992) Thrasher v Winand 239 Va 338 340-42 389

SE2d 699 701-02 (1990) This is so because [o]ne who

accepts the benefit either of a public or a private charity

enters into a relation which exempts his benefactor from

liability for the negligence of his servants in administering

the charity at any rate if the benefactor has used due care

in selecting those servants Weston v Hospital of St

Vincent 131 Va 587 604 107 SE 785 791 (1921) (quoting

8

Hospital of St Vincent v Thompson 116 Va 101 109 81 SE

13 16 (1914)4 Thus [c]haritable immunity applies only to

claims of negligence asserted by those who accept the

charitable institutions benefits Morris 275 Va at 331

657 SE2d at 517

The dispositive question in this case therefore is whether

Barnett was in a beneficial relationship with the Foundation

at the time of his accident Ola 270 Va at 563 621 SE2d

at 77 As we have explained a beneficiary is a person who

receives something of value which the organization by its

charitable purpose undertakes to provide Id at 564 621

SE2d at 77 (emphasis added) Based on the Foundations

articles of incorporation and amended bylaws its charitable

aim was to cultivate an appreciation for the performing arts

through restoration and preservation of the Byrd Theatre and

the organ The Foundation was neither organized nor operated

for the purpose of providing theater organ enthusiasts an

opportunity to repair or restore the Byrd Theatre organ At

the time of Barnetts accident the Foundation was not

undertaking to provide Barnett with the benefit of an

4 A charity is immune from liability for the negligent acts of its agents and employees provided due care has been exercised in their selection and retention However the shield of immunity does not extend to acts of willful or gross negligence Ola 270 Va at 556 621 SE2d at 72

9

opportunity to repair its organ In short the Foundations

mission was to restore and preserve the theater including its

organ not to provide a venue for individuals such as Barnett

to practice their hobby of restoring organs

To the contrary the Foundation hired contractors to perform

the organ restoration and repairs In contrast to accepting a

service that the Foundation operated to provide Barnett was

providing a service to the Foundation in furtherance of the

Foundations own aim of preserving and restoring the organ

which otherwise would have been performed by a paid contractor

As Barnett testified he had a passion to have the organ work

properly as a service to the Byrd Theatre and was happy to do

that because if that organ had not had people take an interest

in it it would have most likely gone silent According to

Barnett he gained satisfaction from knowing that [he] was

helping the theater and getting the work done that needed to

be done Based on the evidence therefore the circuit court

properly found that Barnett was not receiving the bounty of the

Foundations charitable works at the time of his accident5

5 The Foundation readily acknowledges that Barnett was providing a service to the Foundation but argues that this fact alone should not exclude him from the Foundations class of beneficiaries We agree and therefore our holding does not stand for the proposition that all persons who provide a service or other benefit to the charity cannot be deemed

10

We reject the Foundations position that Barnetts passion for

the preservation and restoration of the Byrd Theatre organ and

receipt of personal satisfaction from contributing to such

restoration established a beneficial relationship with the

Foundation It could be said that most volunteers receive

gratification through their charitable works and that many

likely provide services consistent with their own hobbies or

interests But the receipt of personal satisfaction or

pleasure gained through the donation of ones services to a

charity does not create a beneficial relationship with the

charity for purposes of charitable immunity

In sum we find the [circuit] courts analysis well

reasoned and amply supported by the evidence Ola 270 Va at

559 621 SE2d at 74 Therefore the circuit court did not err

in denying the Foundations plea of charitable immunity

III JURY INSTRUCTIONS

The Foundation also asserts that the circuit court erred in

refusing to instruct the jury regarding imputed actual notice

from agents to corporations

beneficiaries thereof The adoption of any such rule would be inappropriate because the determination is necessarily driven by the specific facts of the case and in particular the activity engaged in by the tort claimant at the time of the accident

11

The evidence at trial proved that 1928 Limited as the

manager of the Byrd Theatre operated the theater and

maintained its premises except with regard to the organ which

was maintained by the Foundation Barnett presented evidence

that an employee of 1928 Limited had knowledge of the condition

of the wooden plank on which Barnett was standing when he fell

and argued that such notice should be imputed to 1928 Limited

and the Foundation The Foundation took the position that this

knowledge could not be imputed to the Foundation since the 1928

Limited employee learned of the condition of the plank many

years prior to his employment and in any event 1928 Limited

was not permitted to work on the organ

The Foundation offered the following jury instruction

which was rejected by the circuit court

A corporation knows a fact only as its officers and agents know it The corporation does not know all that its agents know but only what comes to the agents while acting for the corporation within the scope of their agency when it is the agents duty to report their knowledge to the general officer or agents of the company The Foundation argued that the proposed jury instruction

tracked the language from Rudolph v Farmers Supply Co 131

Va 305 310-11 108 SE 638 639 (1921) and properly

addressed the imputed notice issue raised by Barnett

According to the Foundation [n]otice was a critical issue in

the case and an instruction on imputed actual notice was

12

necessary for the jury to determine whether [the employees]

knowledge from the early 1980s imputed to 1928 [Limited] and

the Foundation6

It is unnecessary for us to determine whether the circuit

court erred in refusing the Foundations proposed jury

instruction on imputed notice The jury found in favor of 1928

Limited and therefore absolved the Foundation from any

liability arising from 1928 Limiteds conduct See Virginia

State Fair Assn v Burton 182 Va 365 372 28 SE2d 716

719 (1944) (verdict in favor of agent and against principal

necessarily exonerated principal of liability arising from

agents alleged negligence) Furthermore the jury was

entitled to find the Foundation liable based on the

Foundations independent negligence without regard to 1928

Limiteds liability or conduct7 See Wintergreen Partners Inc

6 Barnett also offered an instruction on imputed notice that was refused by the circuit court

7 In particular the jury was given the following instruction governing premises liability of owners or occupants

An owner or occupant of premises does not guarantee an invitees safety but has the duty

(1) to use ordinary care to have the premises in a reasonably safe condition for an invitees use consistent with the invitation unless the invitee knows or should have known of the unsafe condition and

(2) to use ordinary care to warn an invitee of any unsafe condition about which the owner or occupant knows or by

13

v McGuireWoods LLP 280 Va 374 379 698 SE2d 913 916

(2010) Therefore because the jury rejected a theory of

liability based on 1928 Limiteds knowledge of the unsafe

condition of the wooden plank but rather based its verdict on

the separate negligence of the Foundation it is immaterial

whether notice by 1928 Limiteds employee could properly be

imputed to 1928 Limited and the Foundation8 Virginia State

Fair Assn 182 Va at 372 28 SE2d at 719 Accordingly any

error by the circuit court in failing to instruct the jury on

imputed notice would be harmless

IV CONCLUSION

the use of ordinary care should know unless the unsafe condition is open and obvious to a person using ordinary care for his own safety If an owner or occupant fails to perform either or both of these duties then it is negligent

8 The Foundation contends that Barnett is precluded from arguing on appeal that the jury could properly find the Foundation independently negligent based on the premises liability instruction because the only theory Barnett argued to the jury was that the Foundation was liable based on knowledge imputed from 1928 Limiteds employee to 1928 Limited and the Foundation This contention cannot be sustained because the Foundation did not object to the premises liability instruction and has not assigned error related to the sufficiency of the evidence to support a verdict based on that instruction See Wintergreen Partners 280 Va at 379 689 SE2d at 916

14

For the foregoing reasons we will affirm the judgment of

the circuit court

Affirmed

  • Commonwealth v Peterson
    • OPINION BY
      • 11-05-13 Ford 130837 Br Amicus
      • 130627 VTLA Amicus Brief of VTLA opening amicus brief
      • 130691 amicus final
        • 130691amicuscovpdf
        • 130691amicustocpdf
        • 130691amicuspdf
          • 3-4-14 Rec No 130627 VTLA Amicus Reply Brief
          • Coalson v Canchola
          • The Byrd Theatre Foundation v Barnett

3

learned that the femalersquos boyfriend was a gun enthusiast

Once the femalersquos boyfriend was identified as a person of

interest a ldquoBe On The Lookoutrdquo (ldquoBOLOrdquo) went out for him The

police located the boyfriend at approximately 945 am

Officers described him as appearing ldquo[s]hockedrdquo and ldquo[s]caredrdquo

The boyfriend told the police that he was en route to Virginia

Tech from Radford University where he attended school because

while he was in his 9 am class he heard from a friend who

attended Virginia Tech who told him what had happened He

explained that he had dropped his girlfriend off that morning

around 7 am and then headed to Radford University for his 8

am class The boyfriend consented to a search of his vehicle

and shoes He also allowed the police to conduct a gunshot

residue test As police spoke with the boyfriend they received

word that there were ldquoactive shotsrdquo in Norris Hall Officers

quickly took the boyfriendrsquos contact information told him that

they would be in touch and left for the Virginia Tech campus

Police subsequently executed a search warrant of the home

of the boyfriend of the female victim found in West Ambler

Johnston Hall They found nothing

Charles W Steger the President of Virginia Tech

testified that he learned of ldquoa shootingrdquo at approximately 8

am and he called a meeting of a group of administrators tasked

with campus safety called the University Policy Group

4

(hereinafter ldquoPolicy Grouprdquo) to assess the situation and handle

the release of information pertaining thereto Shortly after 8

am President Steger spoke with Wendell Flinchum the Chief of

the Virginia Tech Police Department and learned that a female

and a male student had been shot at least one of whom was dead

that the shootings appeared targeted likely domestic in nature

and that the shooter had likely left the campus

The Policy Group convened around 830 am During this

meeting Steger learned that the police were on the lookout for

the female victimrsquos boyfriend as a person of interest One of

the grouprsquos members Ralph Byers the Executive Director for

Government Relations notified the Governorrsquos Office at

approximately 845 am of what had happened in West Ambler

Johnston Hall but indicated that the information was not

releasable because Virginia Tech was working on a press release

The email to the Governorrsquos office stated ldquoNot releaseable yet

One student dead one wounded Gunman on loose State

police are involved No details available yetrdquo Byers claimed

that he used the phrase ldquo[g]unman on the looserdquo as shorthand for

the ldquoperpetrator has not been apprehendedrdquo Virginia Tech

wanted to notify the next of kin before releasing the

information to the public Steger instructed a Policy Group

member to compose a campus notice and following revisions and a

technical difficulty with the computer system it was sent out

5

by campus-wide ldquoblast e-mailrdquo at 926 am The notice stated

that ldquo[a] shooting incident occurred at West Ambler Johnston

[Hall] earlier this morning Police are on the scene and

investigatingrdquo and advised students to be alert for anything

suspicious At 928 am the Policy Group also sent a message

to the Board of Visitors stating ldquo[t]wo students were shot this

morning one fatally We will be back in touch with more

information as soon as it is known Please do NOT release the

information about the fatalityrdquo

At approximately 945 am the mass shooting at Norris Hall

began At 950 am a second campus-wide ldquoblast e-mailrdquo was

sent stating that ldquo[a] gunman is loose on campus Stay in

buildings until further notice Stay away from all windowsrdquo

Erin Peterson 18 and Julia Pryde 23 were among the victims

murdered in Norris Hall Police later identified Seung-Hui Cho

as the shooter

After the Norris Hall shooting police realized that the

patterns on shoes worn by Cho did not match the prints found in

West Ambler Johnston Hall The day after the shootings police

learned that the gun used to murder the two people in West

Ambler Johnston Hall matched the one Cho used in Norris Hall

Police later found bloody clothing belonging to Cho that had the

DNA from one of the victims of the West Ambler Johnston Hall

shooting on it

6

The Administrators filed wrongful death claims in

Montgomery County Circuit Court against Chorsquos estate the

Commonwealth and eighteen other individuals including Steger

The cases were consolidated but following certain non-suits and

pretrial orders (see companion appeal Peterson v Commonwealth

Record No 121720) the Commonwealth was the sole defendant at

trial The Administrators claimed that the Commonwealth was

liable for the actions of the Commonwealthrsquos employees at the

university pursuant to the Virginia Tort Claims Act (ldquoVTCArdquo)

Code sect 801-1951 et seq They alleged that a special

relationship existed between the Commonwealthrsquos employees at

Virginia Tech and Peterson and Pryde that gave rise to the

Commonwealthrsquos duty to warn Peterson and Pryde of third party

criminal acts and that the Commonwealthrsquos failure to warn them

was the proximate cause of their deaths and the Administratorsrsquo

losses The Commonwealth argued that there was no foreseeable

harm to the students and that the evidence failed to establish

that any alleged breach of a duty of care was the proximate

cause of the deaths

The Commonwealth objected to several jury instructions

including Instruction 3 which provided in summary that

Peterson and Pryde were business invitees of Virginia Tech and

enjoyed a special relationship with the university The

instruction further stated that this status imposed a duty on

7

the university employees to maintain a safe campus Based on

this instruction the jury was told that if they found that the

university employees should have reasonably foreseen that injury

arising from the criminal conduct of a third party might occur

but failed to warn students the Commonwealth should be found

negligent The instruction also stated that the jury should

find in favor of the Administrators if that failure to warn was

the proximate cause of the alleged injuries The jury returned

a verdict in favor of the Administrators awarding $4 million to

each family

Upon the Commonwealthrsquos motion the court reduced each

verdict to $100000 in accordance with the VTCA Code sect 801-

1953 The Commonwealth moved to set aside the jury verdict

arguing it was contrary to well-established Virginia law that a

special relationship does not exist under the circumstances

here citing Burns v Gagnon 283 Va 657 668 727 SE2d 634

641 (2012) which was decided post-trial The Commonwealth

again argued that the verdict should be set aside because the

evidence was insufficient as a matter of law to give rise to a

duty to protect from third party criminal acts Alternatively

the Commonwealth argued that the trial court should order a new

trial due to erroneous jury instructions The trial court

denied these motions This appeal follows

II ANALYSIS

8

On appeal the Commonwealth argues that

1 The circuit court erred in finding that the Commonwealth Virginia Tech andor their employees had a special relationship with Peterson and Pryde that imposed a duty and therefore erred in instructing the jury that there was such a duty in submitting the case to the jury and in entering judgment on the juryrsquos verdict 2 Even assuming that the Commonwealth Virginia Tech or their employees had a relevant special relationship under Virginia law the evidence adduced did not give rise to a duty to warn of third party criminal acts and therefore the circuit court erred in submitting the case to the jury and in entering judgment on the juryrsquos verdict 3 The circuit court erred in finding that there was sufficient evidence regarding causation to raise a jury issue and therefore erred in submitting the case to the jury and in entering judgment on the juryrsquos verdict 4 Even if there were a theory that might have allowed plaintiffs to recover the circuit courtrsquos instructions (2 3 4 10 amp 11) misstated Virginia law regarding the existence of a relevant special relationship the existence and type of duty purportedly owed the standard that triggers a duty to warn of third party criminal acts as well as regarding the reasonable expectation of parents and students at a university and therefore the juryrsquos verdict must be overturned

We hold that the facts in this case do not give rise to a duty

for the Commonwealth to warn students of the potential for third

party criminal acts Therefore we do not reach the

Commonwealthrsquos causation or jury instruction arguments

9

As a general rule a person does not have a duty to warn or

protect another from the criminal acts of a third person

Thompson v Skate America Inc 261 Va 121 128-29 540 SE2d

123 127 (2001) ldquoThis is particularly so when the third person

commits acts of assaultive criminal behavior because such acts

cannot reasonably be foreseenrdquo Burdette v Marks 244 Va 309

311-12 421 SE2d 419 420 (1992) However the general rule

does not apply in all situations ldquolsquoThere are narrow exceptions

to this rulersquo but the application of those exceptions lsquois

always fact specific and thus not amenable to a bright-line

rule for resolutionrsquordquo Taboada v Daly Seven Inc 271 Va

313 322-23 626 SE2d 428 432 (2006) (alteration omitted)

(quoting Yuzefovsky v St Johnrsquos Wood Apartments 261 Va 97

106 540 SE2d 134 139 (2001)) affrsquod on rehrsquog 273 Va 269

270 641 SE2d 68 68 (2007) Before an exception comes into

play the facts must establish the existence of a special

relationship

ldquolsquo[W]hether a legal duty in tort exists is a pure question

of lawrsquordquo to be reviewed de novo Gagnon 283 Va at 668 727

SE2d at 642 (quoting Kellermann v McDonough 278 Va 478

487 684 SE2d 786 790 (2009) To prevail

the plaintiff must establish that there is a special relationship either between the plaintiff and the defendant or between the third party criminal actor and the defendant The necessary special

10

relationship may be one that has been recognized as a matter of law or it may arise from the factual circumstances of a particular case

Yuzefovsky 261 Va at 107 540 SE2d at 139 (citation and

footnote omitted) For the purposes of this opinion we will

assume without deciding that the threshold requirement that such

a special relationship exists is satisfied on these facts

Having assumed without deciding that a special relationship

exists the question becomes whether as a matter of law under

the facts and circumstances of this case the Commonwealth had a

duty to warn students about the potential for third party

criminal acts ldquoThe law determines the duty and the jury upon

the evidence determines whether the duty has been performedrdquo

Acme Markets Inc v Remschel 181 Va 171 178 24 SE2d 430

434 (1943)

A review of our prior cases indicates that in order for a

duty to be imposed upon a defendant the degree of the

foreseeability of harm that the plaintiff must establish depends

on the nature of the special relationship We have recognized

two levels of foreseeable harm known or reasonably foreseeable

harm Taboada 271 Va at 325-26 626 SE2d at 434 and

ldquoimminent probability of harmrdquo the heightened degree of

foreseeability that arises where the defendant ldquoknows that

criminal assaults against persons are occurring or are about to

11

occur on the premisesrdquo based upon ldquonotice of a specific danger

just prior to the assaultrdquo Thompson 261 Va at 128-29 540

SE2d at 127 (citing Wright v Webb 234 Va 527 533 362

SE2d 919 922 (1987)) Certain special relationships such as

that of a common carrierpassenger innkeeperguest and

employeremployee impose a duty to warn when the danger of third

party criminal acts is known or reasonably foreseeable See

Taboada 271 Va at 325-26 626 SE2d at 434 (innkeeperguest)

AH v Rockingham Publishing Co Inc 255 Va 216 221 495

SE2d 482 486 (1998)(employeremployee) Connell v Chesapeake

amp Ohio Ry Co 93 Va 44 62 24 SE 467 470 (1896)(common

carrierpassenger)

In instances however where the special relationship was

that of business ownerinvitee or landlordtenant we have

imposed a duty to warn of third party criminal acts only where

there was ldquoan imminent probability of injuryrdquo from a third party

criminal act Yuzefovsky 261 Va at 109 540 SE2d at 1413

3 In this case the circuit court instructed the jury that there was a business ownerinvitee relationship between the Commonwealth and the students and that there was a duty to warn if the danger was reasonably foreseeable This was error because our case law is clear that when the relationship is that of business ownerinvitee the duty to warn arises only if there is an imminent probability of harm from a third party criminal act However because we conclude that under the facts of this case no duty was established under the more lenient standard of foreseeability this distinction is not dispositive in the resolution of this appeal

12

Thus the duty to warn of danger from third party criminal acts

has remained an exception to the general rule Burdette 244

Va at 312-13 421 SE2d at 421

Where the standard was that the duty to warn or protect was

present when there was ldquoan imminent probability of injuryrdquo from

a third party criminal act this Court has held that the duty to

warn existed as a matter of law in the unusual situation where

an on-duty police officer failed to intervene when he responded

to the scene of a motor vehicle accident and observed one driver

attack a bystander who had stopped to render assistance Id at

310-11 421 SE2d at 419-20 More frequently however this

Court has concluded that facts relied upon in particular cases

fail to establish a duty as a matter of law to protect against

third party criminal acts See eg Dudas v Glenwood Golf

Club Inc 261 Va 133 140 540 SE2d 129 133 (2001)

(holding that two robberies within the month preceding the

attack on plaintiff was not a ldquolevel of criminal activityrdquo that

would ldquohave led a reasonable business owner to conclude that its

invitees were in imminent danger of criminal assaultrdquo)

Yuzefovsky 261 Va at 109 540 SE2d at 141 (concluding as a

matter of law that employee misrepresentations about the safety

of an apartment complex where in one year 656 crimes including

113 against persons had been reported failed to give rise to

the duty to warn or protect from harm because these facts failed

13

to establish ldquoan imminent probability of injury to [the

plaintiff] from ardquo criminal act of a third party) Burns v

Johnson 250 Va 41 42-45 458 SE2d 448 449-52 (1995) (trial

court erred as a matter of law in failing to hold that the

fifteen minutes between an individual making sexual advances to

a store clerk and abducting and raping a store patron did not

give rise to the duty to protect against third party criminal

acts)

In cases where it was alleged that a special relationship

gave rise to the duty to warn because the danger of harm from

third party criminal acts was known or reasonably foreseeable

this Court has similarly frequently concluded that the duty to

warn was not present as a matter of law See AH 255 Va at

221-22 495 SE2d at 486 (stating that an employer has no duty

to protect an employee from third party criminal acts unless the

danger is ldquoknown or reasonably foreseeablerdquo as a matter of law

and concluding that knowledge of similar assaults in the

preceding five years was not sufficient) Connell 93 Va at 58

24 SE at 469 (common carrier ldquocannot be deemed to have

anticipated nor be expected to guard and protect [a passenger]

against a crime so horrid and happily so rare as that of

murderrdquo)

In only rare circumstances has this Court determined that

the duty to protect against harm from third party criminal acts

14

exists See Taboada 271 Va at 325-26 626 SE2d at 434

(concluding that like a common carrier an innkeeper has a

ldquoduty of utmost care and diligencerdquo to protect guests from third

party criminal acts where the danger is known or reasonably

foreseeable and holding that where -- over a three year period

immediately prior to the attack -- hotel employees had called

police 96 times to report criminal conduct including robberies

malicious woundings shootings and other criminally assaultive

acts the hotel knew of the danger and had received a warning

from police that ldquoguests were at a specific imminent risk of

harmrdquo these were sufficient averments to survive a demurrer

and if proven to establish the duty as a matter of law)

Here even if this Court were to apply the less stringent

standard of ldquoknow or have reasonably foreseenrdquo there simply are

not sufficient facts from which this Court could conclude that

the duty to protect students against third party criminal acts

arose as a matter of law In this case the Commonwealth knew

that there had been a shooting in a dormitory in which one

student was critically wounded and one was murdered The

Commonwealth also knew that the shooter had not been

apprehended At that time the Commonwealth did not know who

the shooter was as law enforcement was in the early stages of

its investigation of the crime However based on

representations from three different police departments

15

Virginia Tech officials believed that the shooting was a

domestic incident and that the shooter may have been the

boyfriend of one of the victims Most importantly based on the

information available at that time the defendants believed that

the shooter had fled the area and posed no danger to others

This is markedly different from the situation presented in

Taboada 271 Va at 325-26 626 SE2d at 434 where police had

specifically warned the innkeepers that guests were at risk

prior to the time that the plaintiff in that case was shot by a

trespasser Based on the limited information available to the

Commonwealth prior to the shootings in Norris Hall it cannot be

said that it was known or reasonably foreseeable that students

in Norris Hall would fall victim to criminal harm Thus as a

matter of law the Commonwealth did not have a duty to protect

students against third party criminal acts

III CONCLUSION

Assuming without deciding that a special relationship

existed between the Commonwealth and Virginia Tech students

based on the specific facts of this case as a matter of law no

duty to warn students of harm by a third party criminal arose

Thus we will reverse the trial courtrsquos judgment holding that a

duty arose and enter final judgment in favor of the

Commonwealth

Reversed and final judgment

IN THE

Supreme Court of Virginia

MICHELLE C HARMANAdministratrix of the ESTATE of

JOSEPH A GRANA III Deceasedand

STEPHANIE E GRANA BEMBERISPersonal Representative of the ESTATE OF

JOSEPH E GRANA SR DeceasedAppellants

v

HONEYWELL INTERNATIONAL INCAppellee

RECORD NO 130627

BRIEF AMICUS CURIAEOF VIRGINIA TRIAL LAWYERSrsquo ASSOCIATION

IN SUPPORT OF APPELLANTS

LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond Virginia 23219 (804) 644-0477A Division of Lantagne Duplicating Services

Avery T Waterman Jr Esq (VSB No 27118)Patten Wornom Hatten amp Diamonstein LC12350 Jefferson Avenue Suite 300Newport News Virginia 23602Telephone (757) 223-4567Facsimile (757) 223-4499Awatermanpwhdcom

i

TABLE OF CONTENTS

Table of Authorities v Amicus Statement of Interest 1 Nature of the Case and Material Proceedings Belowhelliphelliphelliphelliphelliphelliphellip 2 Statement of Facts 2 0 CLARIFICATION OF OPINIONShelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 2 1 ASSIGNMENT OF ERROR 1helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 3 2 ASSIGNMENT OF ERROR 2helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 3 3 ASSIGNMENT OF ERROR 3helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 3 4 ASSIGNMENT OF ERROR 4helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 4 5 ASSIGNMENT OF ERROR 5helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 4 Argument 5 A THE TRIAL COURT ADMITTING THE HEARSAY MOONEY REPORT IS PREJUDICIAL ERRORhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 7 1 Public policy opposes the hearsay Mooney Reporthelliphelliphelliphellip 7 2 The Mooney Report is not admissible as ldquoreliable authorityrdquo under sect801-4011helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 11 a Honeywellrsquos expert did not testify he relied on the whole

Mooney Report in forming his opinion helliphelliphelliphelliphelliphelliphelliphellip 12 b Honeywellrsquos expert did not establish any of the Mooney Report is reliable authority helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 13 c The Mooney Report inherently is not reliable authorityhellip 13

ii

d The Mooney Report is not admissible as an exhibithelliphellip 15 3 The Mooney Report is not admissible as ldquofacts circumstances and datardquo under sect801-4011helliphelliphelliphelliphelliphelliphellip 15 4 The Mooney Report being admitted especially by exhibit and emphasized in closing is prejudicialhelliphelliphelliphelliphelliphelliphelliphelliphellip 16 B THE TRIAL COURT CONDONING ldquoABSENCE OF OTHER

INCIDENTSrdquo ARGUMENT IS PREJUDICIAL ERRORhelliphelliphelliphellip 19 1 Public policy opposes Honeywellrsquos absence of other incidents argument helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 19 2 Evidence and argument of Honeywellrsquos ldquosafety historyrdquo properly was excluded at pretrialhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 22 3 Honeywell violating Virginia law and pretrial Order in closing over objection improperly was condoned at trialhellip 22 4 Honeywellrsquos violations and judgersquos condonations were

prejudicialhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 25 C THE TRIAL COURT REFUSING TO GIVE ADMINISTRATORSrsquo

CLEAR COMPLETE CORRECT MULTIPLE PROXIMATE CAUSE INSTRUCTION IS PREJUDICIAL ERRORhelliphelliphellip 26

1 Public policy demands the jury be instructed fullyhelliphelliphelliphellip 26 2 There may be more than one proximate cause and other

proximate causes need not be excluded with certainty and Administratorsrsquo jury instruction so informed the jury but it was refused for not being a Model Jury Instructionhelliphelliphellip 28 3 Administrators are entitled to correct jury instructions supporting their theory regardless whether the scintilla-plus of credible evidence is in their andor Honeywellrsquos casehellip 30

iii

4 Refusal of Administratorsrsquo multiple-cause instruction is prejudicialhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 32 D THE TRIAL COURT ADMITTING ABELrsquoS ldquoCRITICAL WITNESSrdquo

OPINIONS IS PREJUDICIAL ERRORhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 32 1 Public policy opposes Abelrsquos expert opinionshelliphelliphelliphelliphelliphellip 33 2 Abelrsquos opinions are unfounded and improperhelliphelliphelliphelliphelliphellip 34 a They are unfounded as an experthelliphelliphelliphelliphelliphelliphelliphellip 35 b They are improper as a laymanhelliphelliphelliphelliphelliphelliphelliphelliphellip 36 3 Abelrsquos opinions are speculativehelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 36 4 Abelrsquos opinions are hearsayhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 37 5 Abelrsquos opinions are irrelevanthelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 37 6 Abelrsquos opinions invade the juryrsquos provincehelliphelliphelliphelliphelliphelliphellip 38 7 Abelrsquos opinions are prejudicialhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 39 E THE TRIAL COURT ADMITTING NORMANrsquoS LAY OPINIONS AND HEARSAY IS PREJUDICIAL ERRORhelliphelliphelliphelliphelliphelliphelliphelliphellip 40 1 Public policy opposes Normanrsquos lay opinionshelliphelliphelliphelliphellip 41 2 Normanrsquos lay opinions are unfoundedhelliphelliphelliphelliphelliphelliphelliphelliphellip 42 3 Normanrsquos lay opinions are irrelevanthelliphelliphelliphelliphelliphelliphelliphelliphellip 42 4 Normanrsquos lay opinions are speculativehelliphelliphelliphelliphelliphelliphelliphellip 43 5 Normanrsquos testimony is hearsayhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 43 6 Normanrsquos lay opinions and hearsay are prejudicialhelliphelliphellip 43

iv

Conclusion 44 Certificate 45 Addendum 1 (12114) Letter of Roger T Creager Esq [Appellantsrsquo Counsel] 2 (12114) Email of Patrick Hanes Esq [Appelleersquos Co-Counsel] 3 (12114) Email of Austin W Bartlett Esq [Appelleersquos Co-Counsel]

v

TABLE OF AUTHORITIES

CASES

Beavers v Commonwealth 245 Va 268 (1993)helliphelliphelliphelliphelliphelliphelliphelliphellip 24 Bostic v About Women OBGYN PC 275 Va 567 (2008) passim Burns v Gagnon 283 Va 657 (2012)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip15 36 Cheng v Commonwealth 240 Va 26 (1990)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 24 Chesapeake amp Potomac Tel v Sisson amp Ryan 234 Va 492 (1987)hellip 9 Claiborne v Parrish 2 Va (2 Wash) 146 (1795)helliphelliphelliphelliphelliphelliphelliphelliphellip 7 Combs v Norfolk and Western Ry Co 256 Va 490 (1998)helliphelliphelliphellip 35 Commonwealth v Wynn 277 Va 92 (2009)7 16 37 Dandridge v Marshall 267 Va 591 (2004)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 6 Doe v Dewhirst 240 Va 266 (1990)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 36 Ford Motor Co v Boomer 285 Va 141 (2013)helliphelliphelliphelliphelliphelliphelliphelliphelliphellip 29 Goins v Wendys International Inc 242 Va 333 (1991)19 20 25 Hale v Maersk Line Ltd 284 Va 358 (2012)helliphelliphelliphelliphelliphelliphelliphelliphelliphellip 6 Hinkley v Koehler 269 Va 82 (2005)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 6 Holmes v Levine 273 Va 150 (2007)27 30 31 Jones v Ford Motor Co 263 Va 237 (2000)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 20 Keesee v Donigan 259 Va 157 (2000) 35 Lawlor v Commonwealth 285 Va 187 (2013) 30

vi

May v Caruso 264 Va 358 (2002)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 13 McClung v Commonwealth 215 Va 654 (1975)helliphelliphelliphelliphelliphelliphelliphelliphellip 31 McMunn V Tatum 237 Va 558 (1989) 16 Norfolk amp W Railway v Puryear 250 Va 559 (1995) 7 Pettus V Gottfried 269 Va 69 (2005) 37 Reid v Baumgardner 217 Va 769 (1977) 26 Sanitary Grocery Co Inc v Steinbrecher 183 Va 495 (1945)helliphelliphellip 19 Stottlemyer v Ghramm 268 Va 7 (2004)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 24 Virginia Passenger amp Power Co v Fisher 204 Va 121 (1905)helliphelliphellip 24 Velocity Express Mid-Atlantic v Hugen 266 Va 188 (2003) 21 25 26 Weinberg v Given 252 Va 221 (1996)13 16 White Consolidated Industry Inc v Swiney 237 Va 23 (1989) 29 Wood v Woolfolk Properties Inc 258 Va 133 (1999)helliphelliphelliphelliphellip19 25 Wright v Kaye 267 Va 510 (2004)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 43

STATUTES

Virginia Code sect801-3792helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 29 Virginia Code sect801-4011helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip passim

RULES OF EVIDENCE

Va R Evid 2701helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 36

vii

Va R Evid 2706(a)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 9

Va R Evid 2801helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 8

Va R Evid 2802helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 8

RULES OF COURT

Va Sup Ct R 530helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 1

AUTHORITATIVE TREATISES

CHARLES E FRIEND amp KENT SINCLAIR THE LAW OF EVIDENCE IN VIRGINIA (7th ed 2013)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 8 9

1

AMICUS STATEMENT OF INTEREST1 The Virginia Trial Lawyers Association (ldquoVTLArdquo) is an organization of

over 2000 Virginia attorneys dedicated to promoting professionalism within

the trial bar enhancing the competence of trial lawyers protecting and

preserving individual liberties and access to justice and supporting an

efficient and constitutionally sound judicial system Pursuant to Rule 530 of

the Rules of the Supreme Court of Virginia VTLA has obtained the written

consent of all counsel for the filing of this Brief Amicus Curiae See

Addendum (attached)

This appeal presents issues that are important to Virginia law and trial

practice in Virginia courts The appeal concerns not only the rights of the

parties to this case but also the rights of litigants and the nature of trial

practice throughout the Commonwealth

Assignment of Error 1 implicates Virginiarsquos well-settled rule against

hearsay in general and its limited statutory exception for ldquoreliable authorityrdquo

in particular Assignment of Error 2 implicates Virginiarsquos well-settled rule

against ldquoabsence of other incidentsrdquo evidence and by implication Virginiarsquos

1 Amicus affirms that no counsel for a party authored this brief in whole or in part and that no person or entity made a monetary contribution to its preparation or submission

2

mirror-image rule against ldquofact of other incidentsrdquo evidence Assignment of

Error 3 implicates litigant and jury entitlement to clear complete correct

instructions under Virginia law including particularly on the issue of multiple

proximate causes Companion Assignments of Error 4 and 5 implicate

Virginiarsquos longstanding limits of lay and expert opinions and subjective

impressions

NATURE OF THE CASE AND MATERIAL PROCEEDINGS BELOW

VTLA adopts Administratorsrsquo Nature of the Case and Material

Proceedings Below

STATEMENT OF FACTS

VTLA adopts Administratorsrsquo Statement of Facts However it

emphasizes the following testimony exhibits and incidents of trial

0 CLARIFICATION OF OPINIONS

Administratorsrsquo experts agreed with Honeywellrsquos experts that at

takeoff the trim setting was in the normal position JA1074-10752 However

Administratorsrsquo expert (Dr Sommers) opined that during flight the trim

setting got out of normal position and into ldquonose lowrdquo position because of

runaway trim caused by Honeywellrsquos autopilot Id

2 Joint Appendix is ldquoJArdquo Trial Transcript is ldquoTTrdquo Record is ldquoRrdquo

3

1 ASSIGNMENT OF ERROR 1

Among other hearsay fact and hearsay opinion the 5-page hearsay

Mooney Report introduced in evidence by Honeywell as Exhibit 11 under

Virginia Code sect801-4011 marqueed this crucial hearsay expert opinion

Conclusions The IIC Lycoming representative and myself did not find any evidence that the aircraft engine was not capable of producing power or that the aircraft was uncontrollable at the time of accident

JA463 (emphasis added) This ldquoabsent expertrdquo opinion (A) was the core

issue of the case ie defective autopilot and (B) was not part of the

National Transportation Safety Board (ldquoNTSBrdquo) report admitted JA447-458

2 ASSIGNMENT OF ERROR 2

Contrary to pretrial Order five (5) times in closing Honeywell argued

ldquoabsence of other incidentsrdquo as proof of no product defect or causation

JA1584 1591-1592 and 1603 Despite Administrators repeatedly objecting

and requesting a curative instruction JA1584 and 1605-1606 judge

overruled Administrators and condoned Honeywell JA1584 and 1605-

1607

3 ASSIGNMENT OF ERROR 3

Administrators requested Jury Instruction 11 which was clear

complete and correct on the core issue of multiple proximate cause JA352

4

and which was not covered by any other instructions But Honeywell

objected solely on the basis that it was not the Model Jury Instruction and

the judge sustained Honeywellrsquos objection on that ground JA1545-1547

4 ASSIGNMENT OF ERROR 4

Honeywell considered William Abel a ldquopretty critical witnessrdquo for the

defense JA657 But the judge only made a ldquoquasi-determinationrdquo that Abel

was a ldquoquasi-expertrdquo TT 349 yet permitted him over Administratorsrsquo half-

dozen different objections to render multiple critical opinions not based on

personal knowledge and Honeywell highlighted Abelrsquos videotape testimony

five (5) times opening direct witness testimony expert cross-examination

and closing JA792 1352 1354 and 1594-1595

5 ASSIGNMENT OF ERROR 5

Robert Norman is a new inexperienced pilot who as a layman was

permitted over Administratorsrsquo several objections to opine about his

personal ldquofearrdquo of the Mooney plane ldquoa thousand mistakes you can makerdquo

in the Mooney and his limited operation of the Mooney under different

circumstances plus various hearsay JA756-783 1380-1381 and 1383-

1389 Honeywell highlighted his videotape testimony in direct examination

and repeatedly in closing in tandem with Abel JA1363-1411 1593-1594

and 1598

5

ARGUMENT

Re Assignment of Error 1 sound public policy mandates upholding

Virginiarsquos rule against hearsay and concomitantly construing its statutory

ldquoreliable authorityrdquo exception strictly narrowly Yet the trial court construed

Virginia Code sect801-4011 liberally to cover a biased case-related report

and moreover did not even require Honeywell to honor the statutersquos

express requirements in admitting the hearsay Mooney Report in testimony

and its absent expert Conclusions on the core issue as an exhibit

Re Assignment of Error 2 sound public policy mandates upholding

Virginiarsquos rule against ldquoabsence of prior incidentsrdquo Yet the trial court

expressly condoned Honeywell violating not only settled Virginia law but

also its own pretrial Order with repeated closing argument about its

product safety history that in decades of use there allegedly never had

been another incident before

Re Assignment of Error 3 sound public policy mandates upholding

Virginiarsquos rule of litigant and jury entitlement to clear complete instructions

stating the correct law Yet the trial court refused Administratorsrsquo correct

clear complete one on the oft-confusing pivotal issue of multiple proximate

causes

6

Re companion Assignments of Error 4 and 5 sound public policy

mandates upholding Virginiarsquos rules limiting lay and expert testimony and

opinions Yet the trial court admitted numerous subjective opinions by

unqualified witnesses - one that Defendant conceded was a ldquopretty critical

witnessrdquo - that lacked foundation that were speculative hearsay and

irrelevant and that invaded the juryrsquos province

All of these errors were prejudicial in fact and under Virginia law

ldquoWell established principles require that error be presumed prejudicial

unless the record clearly shows that the error could not have affected the

resultrdquo Dandridge v Marshall 267 Va 591 597 (2004)(evidentiary errors

mandated reversal and remand for retrial) An ldquoerroneous admission of

evidence which may have lsquotipped the scalesrsquordquo is presumed prejudicial

Hale v Maersk Line Ltd 284 Va 358 377 (2012)(reversed and

remanded) In particular erroneous admission of defense expert testimony

may be prejudicial even if another defense expert testifies about the

identical topic Hinkley v Koehler 269 Va 82 91-92 (2005)(reversed and

remanded) Individually and certainly collectively the erroneous admission

7

of expert and other evidence in favor of Honeywell presumably ldquotipped the

scalesrdquo impermissibly3

A THE TRIAL COURT ADMITTING THE HEARSAY MOONEY REPORT IS PREJUDICIAL ERROR

The Mooney Report is hearsay4 JA459-463 ldquoEvidence that is

hearsay and does not fall under an exception is clearly inadmissiblerdquo

Commonwealth v Wynn 277 Va 92 98 (2009) regardless whether it is

opinion hearsay andor fact hearsay Id at 100

Honeywell asserted and the judge accepted that the Mooney Report

came within the exception of Va Code Ann sect801-4011 But

Administrators repeatedly objected for hearsay and ldquolack of foundationrdquo

JA1520-1525 as it clearly failed to meet that statutersquos strictures

1 Public policy opposes the hearsay Mooney Report

Since at least 1795 this Court has barred hearsay evidence absent

an exception Claiborne v Parrish 2 Va (2 Wash) 146 (1795) The 3 As a matter of law on the facts of the case each Assignment of Error constitutes manifest error Re Assignment of Error 1 4 and 5 the trial court had ldquono discretion to admit clearly inadmissible evidence because lsquoadmissibility of evidence depends not upon the discretion of the court but upon sound legal principlesrsquordquo Norfolk amp W Ry v Puryear 250 Va 559 563 (1995)

4 ldquoMooney Reportrdquo refers to the whole document and to its individual constituent statements of facts and of opinions that were admitted

8

continuing wisdom and vitality of its bar is evinced by recent Virginia Rules

of Evidence 2801 and 2802

Surveying Virginia law Friend articulates the most common reasons

for this Courtrsquos rule against hearsay evidence

1 ldquoThe out-of-court declarations were not made under oath 2 The use of such declarations denies to the opponent the right to

confront the witness against him 3 The out-of-court declarant cannot be cross-examined 4 The trier of fact has no opportunity to observe the demeanor of

the declarant on the stand 5 Such evidence is inherently weak 6 The jury will tend to give it too much weight 7 The more often a story is repeated the more likely it is to

become distorted 8 There is too much danger of fraud or perjuryrdquo

CHARLES E FRIEND amp SINCLAIR THE LAW OF EVIDENCE IN VIRGINIA sect151[c] at

902-903 (7th ed 2013 supp) Perhaps the strongest justification for the

hearsay rule is ldquolack of opportunity for cross-examination of the absent

declarantrdquo Id at 904

ldquoOur system of justice places great faith in the value of cross-

examination in testing the perception memory narrative ability and

9

veracity of witnesses [and] it is undeniable that cross-examination can be

an effective tool in exposing false testimony putting misleading testimony

into perspective and bringing out omitted material detailsrdquo Id This Court

has underscored the importance of testing trustworthiness in general and of

cross-examination in particular ldquoThe reason hearsay evidence is excluded

is that it is not subject to the tests which help the trier of fact ascertain the

truth of testimonyrdquo ie it ldquolacks any guarantee of trustworthiness and must

be excludedrdquo Chesapeake amp Potomac Tel v Sisson amp Ryan 234 Va 492

499 (1987)(hearsay forecloses its declarant being ldquocross-examinedrdquo)

Va Code sect801-4011 as amended in 1994 is a hearsay exception In

derogation of Virginiarsquos longstanding common law against hearsay it must

be ldquostrictly construedrdquo Bostic v About Women OBGYN PC 275 Va 567

576 (2008)

sect801-4011 features evidentiary preconditions so that the ldquotest of

cross-examinationrdquo is ldquoinsuredrdquo id plus hearsay qualifying under it only

may be read into evidence not introduced as a documentary trial exhibit

so not to give it undue emphasis Otherwise ldquothe opposing party is

subjected to the lsquooverwhelming unfairnessrsquordquo of admitting absent opinion Id

Further the General Assembly recently codified sect801-4011 as

expert witness law Virginia Rule of Evidence 2706(a) Expert opinion

10

warrants greater judicial scrutiny and litigant protection heightening the

courtrsquos function as ldquogatekeeperrdquo

Finally sect801-4011 is commonly referred as the ldquolearned treatiserdquo

exception since it was created ldquoto permit the introduction of authoritative

literature as substantive evidencerdquo Friend sect15-27 at 1063-1064 in lieu of

traditional practice of testing an expert ldquoon cross-examination by reading to

him from scientific articles or treatisesrdquo Id sect13-11[6] at 809-810 That is to

say sect801-4011 does not contemplate just anything that is printed

Well-settled Virginia law and sound public policy demand the hearsay

rule and its sect801-4011 exception be respected and applied to their letter

But admission of the hearsay Mooney Report including its absent expert

Conclusions contravened the rule and the statute in multiple ways

Admission of the hearsay Mooney Report ignored sect801-4011rsquos

safeguarding preconditions allowed printed material not of the character

contemplated and even introduced the document itself instead of only

testimony See A(2-3) infra Predictably it necessarily engendered the

ldquooverwhelming unfairnessrdquo and other prejudice that the rule the statute

and public policy require to be avoided See A(4) infra

11

2 The Mooney Report is not admissible as ldquoreliable authorityrdquo under sect801-4011

The ldquoreliable authorityrdquo exception of sect801-4011 mandates

To the extenthelliprelied upon by the expert witness in direct examination statements contained in published treatises periodicals or pamphlets on a subject of history medicine or other science or art established as a reliable authority by testimonyhellip shall not be excluded as hearsay If admitted the statements may be read into evidence but may not be received as exhibits

ldquoStatutes in derogation of the common law are to be strictly construed and

not to be enlarged in their operation by construction beyond their express

termsrdquo Bostic 275 Va at 576 (emphasis added) As such this ldquo1994

amendment to Code sect801-4011 [is] a relaxation of the common-law rules

against hearsay only to the limited extent provided by the express statutory

termsrdquo Id at 577

Specifically the General Assembly inserted in the 1994 amendment

ldquotwo preconditions to the admission of hearsay expert opinions as

substantive evidence on direct examination First the testifying witness

must have lsquorelied uponrsquo the statements contained in the published treatises

second the statements must be established as lsquoa reliable authorityrsquo by

testimonyhelliprdquo Id at 576 (emphasis added) But Honeywell did not satisfy

either precondition

12

a Honeywellrsquos expert did not testify he relied on the whole Mooney Report in forming his opinion

ldquoThe [first precondition] means that the witness must testify that he

relied on the article in forming his opinion which is consistent with the

views expressed by the absent authorrdquo Id at 577 ldquoThe statutory standard

is not met by an expertrsquos testimony that he relied upon it only to use it lsquoto

talk to this juryrsquordquo Id

Honeywellrsquos expert Dr Clarke testified that he relied upon only two

(2) sentences in the Mooney Report - lines 28-29 and 32 of its page 3

JA1524-1525 But ultimately the whole report including its hearsay expert

Conclusions was admitted as Exhibit 115

5 At Honeywell counselrsquos request Dr Clarke read the so-called ldquolast sentencerdquo pointed out to him lines 28-29 of page 3 of the Mooney Report ldquoThis indicates an approximate takeoff position trim settingrdquo JA1524 at Lines 3-8 Honeywellrsquos counsel requested and received leave to publish ldquowhat he just testifiedrdquo Id at Lines 9-13 and Dr Clarke showed ldquothat pagerdquo as requested and explained ldquothis was the part that I just readrdquo reading it aloud again Id at Lines 15-20 Dr Clarke then continued his answer by correlating and quoting nearby line 32 of page 3 of the Mooney Report ldquoAnd to validate what we just spoke about it says that there were six threads exposed on the jackscrew And itrsquos the same six threads we were talking about from the full nose-down positionrdquo Id at Lines 20-23 Honeywellrsquos counsel then changed to a ldquonew topicrdquo - without having asked Dr Clarke whether he relied on lines 28-29 and 32 of the Mooney Report Id at Line 24 So the Judge interjected inquiring whether Dr Clarke relied

13

b Honeywellrsquos expert did not establish any of the Mooney Report is reliable authority

The second precondition means that the expert witness himself must

attest that the article is accepted as reliable authority by other similarly

situated experts ie is of a type normally relied upon by others in the

particular field of expertise In a sidebar Honeywellrsquos attorney told the

judge the Mooney Report ldquois a document thatrsquos normally relied upon by

expertsrdquo JA1523 but Honeywellrsquos expert Dr Clarke did not offer the

required testimony for any part of the Mooney Report JA1520-1525

c The Mooney Report inherently is not and cannot be reliable authority

More fundamentally sect801-4011 expressly is limited to only

ldquopublished treatises periodicals or pamphletsrdquo This Courtrsquos examples of

such published literature are ldquoperiodicals which are deemed to be reliable

and authoritativerdquo Weinberg v Given 252 Va 221 222 (1996) ldquopublished

and authoritative literaturerdquo May v Caruso 264 Va 358 362 (2002) and

ldquolearned treatisesrdquo Bostic 275 Va at 575

Strictly construed ldquopublished treatises periodicals or pamphletsrdquo

connotes independent authoritative if not scholarly literature It inherently

upon this thereby prompting Honeywellrsquos counsel to ask and Dr Clarke to affirm belatedly JA1524 at Line 25 to JA1525 at Line 5

14

does not connote private disputed contemporaneous biased case-related

material like the Mooney Report by the crashed planersquos manufacturer

Otherwise construed liberally contrary to this Courtrsquos statutory

construction jurisprudence mere ldquopamphletrdquo (as declared summarily by the

judge JA1523) embraces essentially any unbound printing including

biased case-related materials elevated to authoritative literature Such a

liberal construction predictably and inequitably would allow retained experts

like Honeywellrsquos Dr Clarke to anoint disputed self-interested case materials

as ldquoreliable authorityrdquo to read ldquothem into the record as holy writrdquo id at 576

and to shield their (dubious) authors opinions and facts from the crucible

of cross-examination

Parties transmogrifying disputed biased case-related material into

ldquolearned treatiserdquo by hiring an expert to proclaim it so is not the intention of

sect801-4011 That is a perversion and an abuse of the statute with far-

reaching negative implications in all future Virginia litigation contrary to

sound public policy

Upon retrial of this cause Honeywell properly is barred from having

Dr Clarke or any other retained expert offer that the Mooney Report is

ldquoreliable authorityrdquo The Mooney Report author IIC and Lycoming

representative need to justify their own disputed case facts opinions and

15

Conclusions - if they are qualified to do so and if the IIC and Lycoming

representative truly concur with the Conclusions Cf Burns v Gagnon 283

Va 657 678 (2012)(Court addresses objections that ldquomay arise again on

retrialrdquo)

d The Mooney Report is not admissible as an exhibit

sect801-4011 explicitly is a testimonial not a documentary exception

The statute states expressly that ldquothe statements may be read into

evidence but may not be received as exhibitsrdquo (emphasis added)

It could not be any more literal unambiguous plain and clear

Admission of the Mooney Report as a defense trial exhibit is manifest error

particularly since the required foundation for any of it even to be read was

not laid and Administrators consistently maintained their hearsay and ldquolack

of foundationrdquo objections JA1520-1525

3 The Mooney Report is not admissible as ldquofacts circumstances and datardquo under sect801-4011

ldquo[P]ursuant to Code sect801-4011 an expert witness may rely upon

lsquofacts circumstances or data made known tohellipsuch witnessrsquo in formulating

an opinion those lsquofacts circumstances or datahellip if of a type normally

relied upon by others in the particular field of expertise in forming opinions

and drawing inferences need not be admissible in evidencerdquo

16

Commonwealth v Wynn 277 Va 92 100 (2009) However this clause of

sect801-4011 does not allow for the ldquointroduction of otherwise inadmissible

hearsay evidence during direct examination of an expert witness merely

because the expert relied on the hearsay information in formulating an

opinionrdquo Id (emphasis added)

sect801-4011rsquos ldquofacts circumstances or datardquo clause is separate from

the subsequent ldquoreliable authorityrdquo clause so is not read in conjunction with

it Hence the hearsay Mooney Report clearly was inadmissible on direct

examination of Honeywellrsquos expert Dr Clarke JA1520-1525

4 The Mooney Report being admitted especially by exhibit and emphasized in closing is prejudicial

This Court has reiterated the ldquooverwhelming unfairnessrdquo of admitting

absent expert opinion without cross-examination

The admission of hearsay expert opinion without the testing safeguard of cross-examination is fraught with overwhelming unfairness to the opposing party No litigant in our judicial system is required to contend with the opinions of absent lsquoexpertsrsquo whose qualifications have not been established to the satisfaction of the court whose demeanor cannot be observed by the trier of fact and whose pronouncements are immune from cross-examination

Bostic 275 Va at 575 (quoting Weinberg 252 Va at 225 quoting McMunn

v Tatum 237 Va 558 566 (1989)) Moreover the Court observed that the

General Assembly ldquoinsuredrdquo the ldquotest of cross-examinationrdquo by inserting the

17

1994 preconditions in sect801-4011 and that by a proponentrsquos non-

compliance ldquothe opposing party is subjected to the lsquooverwhelming

unfairnessrsquo we discussed in McMunnrdquo Bostic 275 Va at 576

When Defendantrsquos expert in Bostic failed simply to satisfy the first

precondition of sect801-4011 this Court concluded the trial court ldquoerred in

admitting the opinions contained in published medical literature without an

adequate foundation as required by Code sect801-4011rdquo Id at 578 Further

because the Court could not ldquodetermine to what extent the erroneous

admission of hearsay opinions stated in the published articles may have

affected the verdictrdquo for Defendant it reversed the judgment and remanded

for new trial Id

Admission of the Mooney Report was more egregious than in Bostic

Honeywell satisfied the first precondition only re two (2) sentences of five

(5) pages did not satisfy the second precondition at all admitted as an

ostensibly authoritative ldquopamphletrdquo a private disputed contemporaneous

self-interested case-related creation of the crashed plane manufacturer

even introduced all of it including its expert Conclusions on the ultimate

issue as a trial exhibit and emphasized it twice in closing JA1582-1583

The General Assembly in sect801-4011 expressly forbidding even

admissible ldquoreliable authorityrdquo as a trial exhibit acknowledges the extra

18

impact - the undue emphasis - of an exhibit in the jury room atop testimony

in the courtroom The entire 5-page Mooney Report going to the jury for its

deliberations - and its speculations - must be presumed damaging

The Mooney Report went to the pivotal liability issue of the trial -

seemingly with NTSB siding with Honeywell In addition to numerous

inadmissible hearsay facts and other hearsay opinions it marqueed the

following unique hearsay expert opinion ldquoConclusions The IIC

[ldquoNTSBrdquo] Lycoming representative and myself did not find any

evidence that the aircraft engine was not capable of producing power

or that the aircraft was uncontrollable at the time of the accidentrdquo

Honeywell Exhibit 11 JA459-463 at JA463 (emphasis added)

That singular inadmissible hearsay opinion was a highly prejudicial

trial exhibit because (1) it reached the ultimate issue of the case product

defect and cause and (2) it is not in the NTSB report admitted in evidence

Further because it spoke on behalf of ldquoThe IIC [lsquoNTSBrsquo]rdquo it carried the

implied imprimatur of the NTSB the Federal agency responsible for official

investigation even though the NTSB report itself never stated those expert

Conclusions adverse to Administrators JA447-458

The Mooney Report was a unique piece of expert testimonial and

documentary evidence not merely some inconsequential cumulative facts

19

It buttressed Honeywellrsquos defense in general and its experts in particular

while it foreclosed Administratorsrsquo truth-seeking cross-examination of the

Mooney Reportrsquos author the IIC and the Lycoming representative

B THE TRIAL COURT CONDONING ldquoABSENCE OF OTHER INCIDENTSrdquo ARGUMENT IS PREJUDICIAL ERROR

ldquoPlaintiffsrsquo Motion in Limine X the Court GRANTS this Motionrdquo

112112 Order (emphasis in original) JA401 ldquo[A]ny evidence or argument

as to the lsquosafety historyrsquo of Honeywellrsquos autopilot is to be excludedrdquo Id

1 Public policy opposes Honeywellrsquos absence of other incidents argument

This Court long has prohibited all use of ldquoabsence of other incidentsrdquo

evidence ldquoIt is firmly established that evidence of the absence of other

injuries is not admissiblehellipwhen timely objection is maderdquo regardless

ldquowhether the action lies in negligence or implied warrantyrdquo Goins v

Wendyrsquos Intrsquol Inc 242 Va 333 335 (1991)(emphasis in original) Wood v

Woolfolk Properties Inc 258 Va 133 138 (1999) Sanitary Grocery Co

Inc v Steinbrecher 183 Va 495 499-500 (1945)

Virginiarsquos doctrine recognizes that other incidents may go

undiscovered unreported unrecorded misattributed unacknowledged

etc and thereby are problematical irrelevant prejudicial ldquoIndeed a

departure from the rule would interject evidence so problematical due to

20

the potential for lack of reporting and the variables of circumstances and

conditions that such evidence would have slight if any relevancy or

probative valuerdquo Goins 242 Va at 335-336 Wood 258 Va at 138

This Courtrsquos salutary rule against Defendants admitting ldquoabsence of

prior incidentsrdquo is the mirror-image of its rule against Plaintiffs admitting

ldquofact of prior incidentsrdquo as evidence substantively to prove or corroborate

negligence breach of warranty andor causation in a product liability case

Eg Stottlemyer v Ghramm 268 Va 7 12 (2004) Jones v Ford Motor

Co 263 Va 237 255 (2002) Thus the public policy ends of fundamental

fairness and consistency mandate that Defendants like Honeywell cannot

disprove breach andor causation by ldquoabsence of prior incidentsrdquo evidence

since Administrators cannot prove either with ldquofacts of prior incidentsrdquo

In addition to litigation practicalities and equities public policy in the

interest of safety also demands that Plaintiffs not have to disprove defense

claims of ldquoabsence of prior incidentsrdquo and that the public at large not have

to suffer multiple widely-known injuries and deaths under substantially

similar circumstances before a product unreasonably dangerous to normal

use in fact can be found dangerous There always must be a ldquofirst caserdquo

Plaintiffs having to disprove the manufacturersrsquo claimed negatives is too

expensive time-consuming and otherwise burdensome and possibly futile

21

and there is no minimum quantum of public casualties required to reach a

critical evidentiary mass to maintain a product defect case

When Defendants violate the rule against absence of other incidents

evidence Virginia law and public policy hold that the judge must take

corrective action such as a curative instruction instead of increasing the

prejudicial impact by condonation and apparent judicial approval Velocity

Express Mid-Atlantic v Hugen 266 Va 188 201 (2003) It is unsound

inequitable and insufficient that victim Plaintiffs by their mere protests be

expected to overcome or (worse) even be deemed to have waived the

prejudice of Defendants and the weight of judiciary

Although Honeywellrsquos ldquosafety historyrdquo re prior incidents properly was

excluded at pretrial see B(2) infra Honeywell patently violated the pretrial

Order Virginia law and public policy by arguing in closing five (5) times

about the total absence of prior incidents See B(3) infra That obvious

prejudice to Administrators was exacerbated irreparably when the judge

condoned it by overruling Administratorsrsquo objections and their request for

curative instruction and moreover by directing Honeywell to ldquoproceedrdquo -

which it did again and again and again and again See B(4) infra

22

2 Evidence and argument of Honeywellrsquos ldquosafety historyrdquo properly was excluded at pretrial

Pursuant to Virginia law Administrators moved in limine to exclude all

evidence and argument by Honeywell of its purported product safety

history JA56-57 Urging various federal decisions however Honeywell

vigorously opposed exclusion on brief and at pretrial hearing for example

Honeywell argued it ldquodefinitely relevantrdquo that the autopilot ldquohas over a 30-

year history out in the field hundreds of thousands of flight hours not one

incident reported with the type of allegation that theyrsquore claiming here that

debris got in here caused it to jam and caused a runaway trimrdquo JA66

The trial court correctly rejected Honeywellrsquos arguments ruled for

Administrators JA610 issued a letter opinion JA338 and entered

112112 Order JA401 Re ldquoPlaintiffsrsquo Motion in Limine X the Court

GRANTS this Motion and any evidence or argument as to the lsquosafety

historyrsquo of Honeywellrsquos autopilot is to be excludedrdquo Id (underlining added)

3 Honeywell violating Virginia law and pretrial Order in closing over objection improperly was condoned at trial

Despite clear Virginia law and explicit pretrial Order in closing

Honeywell improperly did exactly what it wanted to do anyway and told the

jury as a matter of fact that there was an absence of prior binding or

jamming of the gears in its autopilot due to foreign matter ldquoItrsquos never

23

happened before There is no evidence this has ever happened anywhere

any timerdquo JA1584 (underlining added)

Administrators objected to no avail The trial court ldquoOverruledrdquo and

directed Honeywell ldquoPlease proceedrdquo JA1584 (underlining added)

And proceed Honeywell did - with four (4) more violations of Virginia

law and pretrial Order Honeywell represented to the jury as additional fact

1 ldquoSafe design for 35 years and no complaintsrdquo JA1591 2 ldquoWe submit to you that withhellipthe lack of any prior evidence of a

problem that it was reasonably designed and perfectly safe and not unreasonably dangerous designrdquo JA1591-1592

3 ldquoIt canrsquot do that and has never happened beforerdquo JA1603 and 4 ldquoNo evidence of a prior problem at all everrdquo JA16036 Administrators delayed their rebuttal argument objected a second

time and requested a curative instruction7 JA1605-1607 But the trial court 6 At and after trial Honeywell claimed its closing arguments simply recount Administratorsrsquo experts not knowing of any other incidents First that is not what Honeywell stated in closing any of the five (5) times Its ldquoabsence of other incidentsrdquo arguments simply are not particularized to Administratorsrsquo expert lack of familiarity but rather are general sweeping all-encompassing proclamations Second even if Honeywellrsquos arguments were limited to Administratorsrsquo experts they still are not permissible They still refer to ldquoabsence of other incidentsrdquo in the context ldquoproofrdquo of no defect or causation Third Administratorsrsquo experts personally not being familiar with any ldquoother incidentsrdquo does not prove that there are no other incidents So Honeywell cannot claim the total absence of other incidents that it did

24

again condoned the Honeywellrsquos multiple violations ldquoI had previously told

the jury that what you-all tell them is not evidence and they should not

consider it as such wersquoll leave it at that Overrule the motionrdquo JA1607

(underlining added)

7 Administratorsrsquo timely objections and request for curative instruction preserved the issue Moving for an instruction or for a mistrial suffices Eg Cheng v Commonwealth 240 Va 26 38 (1990) ldquo[J]uries are presumed to follow prompt explicit and curative instructionrdquo Beavers v Commonwealth 245 Va 268 280 (1993) But the trial court refused to grant Administratorsrsquo motion for a curative instruction Moreover since the trial court repeatedly overruled Administratorsrsquo objections and their request for a curative instruction under the circumstances Administrators requesting a mistrial obviously would have been an unnecessary ldquovain and useless undertakingrdquo Virginia Passenger amp Power Co v Fisher 104 Va 121 129 (1905)(ldquosufficient reason we think for not applyinghellipfor action to redress the wrongs complained ofrdquo) The pretrial Motion in Limine X the arguments at 101112 hearing the pretrial Order the repeated trial objections and the request for curative instruction were amply sufficient to raise and preserve the issue Further Administratorsrsquo protests in closing about the falsity of Honeywellrsquos ldquosafety historyrdquo arguments are no substitute for curative instruction particularly not where the trial court ldquooverruledrdquo Administratorsrsquo objections and authorized Honeywell to ldquoproceedrdquo ie approved judicially Inequitably and insufficiently Administratorsrsquo protests simply left the jury to speculate which party was telling the truth about Honeywellrsquos claimed ldquosafety historyrdquo - with its nod likely going to Honeywell (since the judge twice overruled Administratorsrsquo objections refused curative instruction requested by Administrators and had excluded Administratorsrsquo would-be evidence in the first place)

25

Since the judge overruled Administratorsrsquo motion for curative

instruction his phrase ldquowhat you-all tell them is not evidencerdquo is not

curative That ruling is akin a sports referee seeing personal fouls and

instead of calling penalties on the offender simply telling the competitors to

ldquoplay onrdquo - thereby condoning the inappropriate harmful rough play

4 Honeywellrsquos violations and judgersquos condonations were prejudicial

Honeywell arguing its safety history - the absence of other incidents

over 35 years - five (5) distinct times in closing necessarily was prejudicial

ldquoSuch evidence introduces into the trial collateral issues remote to the

issue at trial which would tend to distract mislead and confuse the juryrdquo

Goins 242 Va at 335 Wood 258 Va at 138 (ldquowe are unable to say that it

did not confuse or mislead the juryrdquo)8

Further the ldquoprobably prejudicial impact of this argument is significant

because the improper argument focused on the central disputerdquo Velocity

Express 266 Va at 201 Moreover the judge repeatedly condoning

Honeywellrsquos five (5) violations magnifies the prejudice leading the jury to

8 Technically of course Honeywellrsquos closing argument was not ldquoevidencerdquo However the legal principle and public policy are the same re ldquoargumentrdquo

26

infer judicial approval of its impropriety - ultimate unfairness to

Administrators

ldquoThe circuit court refused to take any corrective action to eliminate the

adverse prejudicial effect on the jury of [Defendantrsquos] improper argument

Based on the record before the Court we conclude that the probability of

prejudice upon the juryhellipwas increased by the apparent approval given by

the circuit court because of that courtrsquos refusal to take corrective actionrdquo Id

(underlining added)(remand for new trial) Reid v Baumgardner 217 Va

769 774 (1977)(same)

C THE TRIAL COURT REFUSING TO GIVE ADMINISTRATORSrsquo CLEAR COMPLETE CORRECT MULTIPLE PROXIMATE CAUSE INSTRUCTION IS PREJUDICIAL ERROR

Virginiarsquos law of proximate cause provides

A proximate cause of an accident injury or damage is a cause which in natural and continuous sequence produces the accident injury or damage It is a cause without which the accident injury or damage would not have occurred There may be one or more proximate causes Proximate cause need not be established with such certainty so as to exclude every other possible condition

That is Administratorsrsquo Instruction 11 that was rejected JA352

1 Public policy demands the jury be instructed fully ldquoA litigant is entitled to jury instructions supporting his or her theory of

the case if sufficient evidence is introduced to support that theory and if the

27

instructions correctly state the lawrdquo Holmes v Levine 273 Va 150 159

Significantly the evidence introduced to support a requested instruction

must only be ldquomore than a scintillardquo and where ldquoa proffered instruction finds

any support in credible evidence its refusal is reversible errorrdquo Id

(emphasis added)

Although Holmes frames correct jury instructions as a litigant

entitlement as a matter of public policy they are a jury entitlement too As

triers of fact juror must understand their charge if they are unclear - even

in part on one pivotal point - then the wrong decision and unnecessary

injustice may result

Proximate cause often is a subtle confusing point among lawyers let

alone jurors Public policy requires that the jury be instructed clearly

completely and correctly on that particularly where as here the theory of

two (2) proximate causes is at the core

Administratorsrsquo Instruction 11 about ldquoone or more proximate causerdquo is

particularly important in light of there being no ldquoconcurrent negligencerdquo

instruction (because it was a ldquobreach of warrantyrdquo product liability case)

which would have indicated one or more proximate causes were possible

Holmes does not indicate whether a concurrent negligence instruction was

used in that case

28

Also Administratorsrsquo multiple-cause instruction is especially important

because contributory negligence assumption of risk superseding cause

and even product misuses were not issuesdefenses in this particular

ldquowarrantyrdquo case Thus even a jury finding there was some pilot error that

was a proximate cause would not require a defense verdict but rather still

would have required the jury to decide whether product defect was a

proximate cause too

Contrary to Virginia law and public policy Administratorsrsquo clear

complete correct jury instruction on proximate cause was rejected solely

because it was not the Model Jury Instruction see C(2) infra despite

there being ample credible evidence in the case as a whole to support two

proximate causes See C(3) infra The resulting prejudice was manifest

See C(4) infra

2 There may be more than one proximate cause and other proximate causes need not be excluded with certainty and Administratorsrsquo jury instruction so informed the jury but it was refused for not being a Model Jury Instruction

Virginia law holds there may be ldquomore than one proximate cause of

an eventrdquo Id9 Further Virginia law also holds it is not necessary to

9 In product liability cases under Virginia law the manufacturer is liable if its product simply is ldquoardquo proximate cause ldquoour law provides a means of holding a defendant liable if his or her negligence is one of multiple

29

establish ldquoproximate cause with such certainty as to exclude every other

possible conclusionrdquo White Consolidated Indus Inc v Swiney 237 Va

23 28 (1989)

Administratorsrsquo Instruction 11 stated re proximate causation

A proximate cause of an accident injury or damage is a cause which in natural and continuous sequence produces the accident injury or damage It is a cause without which the accident injury or damage would not have occurred There may be one or more proximate cause Proximate cause need not be established with such certainty so as to exclude every other possible condition

JA352 (emphasis added) Hence the two sentences underlined to which

Honeywell objected simply state Virginia law correctly

Honeywell objected to Administratorsrsquo multiple-cause instruction

solely on the basis that it was not the ldquoModel Jury Instructionrdquo and the trial

court improperly sustained on that ground JA1545-1547 contrary to

Virginia statute and public policy ldquoA proposed instruction submitted by a

party which constitutes an accurate statement of the law applicable to the

case shall not be withheld from the jury solely for its nonconformance with

the model jury instructionsrdquo Va Code sect801-3792

concurrent causes which proximately caused an injury when any of the multiple causes would have each have been a sufficient causerdquo Ford Motor Co v Boomer 285 Va 141 151 (2013)

30

3 Administrators are entitled to correct jury instructions supporting their theory regardless whether scintilla-plus of credible evidence is in their andor Honeywellrsquos case

In Holmes too there were two potential proximate causes of death Id

at 159 Despite its verdict form specifically stating the jury ldquodid not find that

[Defendantrsquos] failure was a proximate cause of Holmes deathrdquo Holmes

reversed and remanded for the trial court refusing Plaintiffrsquos following

proximate cause instruction which is virtually identical to Administratorsrsquo

first underlined sentence that was rejected ldquoThere may be more than one

proximate cause of an eventrdquo 273 Va at 157-160 (emphasis added)

In Holmes Plaintiffrsquos own evidence happened to show both potential

causes of death Id But it is not necessary that only Plaintiffrsquos case-in-chief

prove all proximate causes and Holmes did not so hold

Instead the jury fairly may find more than one proximate cause

based on the evidence as a whole Plaintiffrsquos evidence Defendantrsquos

evidence or both partiesrsquo evidence Thus although Administrators only

introduced evidence of product defect as proximate cause since Honeywell

introduced evidence of pilot error as proximate cause the jury was entitled

to consider and to find both pilot error and product defect as proximate

causes Lawlor v Commonwealth 285 Va 187 228-229 (2013)(ldquoWhen

reviewing a trial courtrsquos refusal to give a proffered jury instruction we view

31

the evidence in the light most favorable to the proponent of the

instructionrdquo) McClung v Commonwealth 215 Va 654 657 (1975)

In McClung the murder Defendant steadfastly maintained that she

was ldquonot guiltyrdquo by reason of self-defense but was convicted of murder in

the second degree Id at 654 However this Court reversed and remanded

in McClung when the trial court refused Defendantrsquos request for a

ldquovoluntary manslaughterrdquo instruction on the grounds that ldquothe [whole]

evidence was also sufficient to support an instruction on voluntary

manslaughterrdquo (if viewed most favorably to her) even though it concededly

was sufficient to support murder in the second degree (when viewed most

favorably for Commonwealth) Id at 656-657

Correspondingly since ldquomore than a scintillardquo of ldquocredible evidencerdquo

had been admitted to support two proximate causes Holmes 273 Va at

159 Administrators were entitled their requested instruction that ldquothere may

be one or more proximate causerdquo Administrators so argued to the judge in

support JA1545-1547 and addressed multiple causation theory in closing

TT 3222-3223

32

4 Refusal of Administratorsrsquo multiple-cause instruction is prejudicial

The trial court refused Administratorsrsquo multiple-cause instruction

contrary to statute That refusal possibly if not probably left the jury with the

misimpression that it must or at least could weigh and find only one

proximate cause particularly in light of there being no concurrent

negligence instruction The jury reasonably could have found pilot error and

product defect each were a proximate cause especially since contributory

negligence assumption of risk superseding cause and product misuses

were not issuesdefenses and the jury should have understood that

unequivocally by Court instruction (which Administrators could and would

have emphasized in closing)

D THE TRIAL COURT ADMITTING ABELrsquoS EXPERT ldquoCRITICAL WITNESSrdquo OPINIONS IS PREJUDICIAL ERROR

William Abel is a former flight instructor whom Honeywell lionized as

a ldquopretty critical witnessrdquo JA657 (emphasis added) He provided training to

Grana and opined on Honeywellrsquos direct examination

1 ldquoA [T]he fact that [Mr Grana] took off on this day makes - makes me have some concerns about the judgment taking off into conditions on the weather that - that was reported to merdquo JA1350 (emphasis added)

2 ldquoQ So with respect to judgment do you believe that Mr Grana

exercised good judgment based on your understanding of

33

his qualifications and training in departing into 800-foot overcast ceiling on the day of the accident

A Based on the - all the flying Irsquove done with Joe [Grana] and

the conversations that we had I had concerns about why he would take off into those conditions on that dayrdquo JA1351-1352

3 ldquoQ With respect to Mr Granarsquos lack of experience in the

airplane in actual IFR conditions and the judgment that he used in taking off that day in your opinion was that a cause or contributing cause of this accident

A I donrsquot know what happened in that airplane In my opinion

it wasnrsquot the best of judgment to take off in those conditionsrdquo JA1357 (emphasis added)

But Abel had no ldquoperson knowledgerdquo of the crash the takeoff or even the

airport weather conditions JA1334-35 his weather report was from the

internet - 3 days before the crash Id

Administrators objected to Abelrsquos testimony as lacking sufficient

foundation improper opinion testimony speculative based on hearsay

irrelevant and invading the juryrsquos province JA723-741 The trial court

overruled all objections Id

1 Public policy opposes Abelrsquos opinions

Acceptance and rejection of expert testimony is a quintessential

ldquogatekeeperrdquo function of the courts Given the unique elevated status of

34

experts particularly to jurors public policy mandates would-be experts be

scrutinized closely

A witness either is qualified as an expert or not there is no half-

measure There are no ldquoquasi-expertsrdquo under Virginia law

As a corollary courtsrsquo expert ldquogatekeeperrdquo function necessarily

extends to precluding witnesses not deemed to be experts from rendering

opinions that are the province of experts As a matter of public policy a

witness should not be able to introduce de facto expert opinion through the

back door as a layman when unauthorized to admit it through the front door

as an expert

Honeywellrsquos ldquopretty critical witnessrdquo JA657 William Abel never was

qualified as an expert by the judge See D(2) infra Consequently all of his

harmful de facto expert opinions are inadmissible for his lack of

qualification as well as for multiple other independent grounds see D(3-

6) infra and their admission was highly prejudicial to Administrators

particularly as marqueed by Honeywell repeatedly by videotape excerpts

2 Abelrsquos opinions are unfounded and improper

Whether Honeywell claims Abel to be an expert witness or admits

him to be a lay witness his testimony is clearly inadmissible

35

a It is unfounded as an expert

Abel never was accepted by the Court as an expert The judge stated

ldquoAbel is a quasi-expert and wersquove made that quasi-determinationrdquo TT 349

(emphasis added) - a netherworld status and an incomplete acceptance

unrecognized in Virginia law

At pretrial hearing Honeywell conceded that Abel was ldquonot a retained

expertrdquo TT 462 and was a mere ldquopercipientrdquo with ldquopercipient observationsrdquo

of fact ldquobased on his perceptionsrdquo TT467-468 and 478-479 except

possibly for his ldquospatial disorientationrdquo opinions TT 468-470 and that ldquo99

percent of what he says is factualrdquo JA671 Moreover even if Abel arguably

could be qualified as an expert on a matter (which is disputed) an area of

expertise never was identified for him remained open to speculation by the

jury and ultimately would limit the nature topic and scope of his opinions

Combs v Norfolk and Western Ry Co 256 Va 490 496 (1998)

Further there was no showing that Abel did or even could consider

all of the ldquovariablesrdquo as foundation for his opinions Cf Keesee v Donigan

259 Va 157 161-162 (2000)(ldquorequirement that the evidence be based on

an adequate foundationrdquo) Hence Abel could not opine as an expert

On retrial however Honeywell may try to qualify Abel as an expert

and to elicit some of the same testimony from him So alternatively this

36

Court still should scrutinize him and his ldquocredentialsrdquo as an expert under

D(3-5) infra and bar his opinion testimony on retrial Burns supra

b It is improper as a layman

ldquoOpinion 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 witnessrsquo perceptionsrdquo Virginia Rule

of Evidence 2701 (emphasis added) Cf Doe v Dewhirst 240 Va 266

270 (1990)(ldquoIn order to be competent to testify on the subject the witness

must have had a reasonable opportunity to judgerdquo and even ldquomomentary

observationsrdquo at impact and ldquolater glimpserdquo post-impact ldquodid not

demonstrate that he had a reasonable opportunity to form an opinionrdquo)

Since Abel has no ldquopersonal knowledgerdquo of the crash the take-off the

weather or anything as a layman he cannot opine about any of it

including particularly without limitation ldquojudgmentrdquo and ldquocausationrdquo

3 Abelrsquos opinions are speculative

Despite his repeated ldquoconcernsrdquo bottom line is that when Honeywell

asked his opinion about ldquocauserdquo Abel had none JA677 he admitted ldquoI

donrsquot know what happened up thererdquo JA1357 (emphasis added) That core

concession renders all other testimony by Abel speculative and

inadmissible as such even if he were qualified as an expert

37

For example in Pettus v Gottfried 269 Va 69 73 (2005)(reversed

and remanded for retrial) Defendantrsquos expert had ldquonordquo opinion re cause of

death yet gratuitously opined for the defense further ldquothatrsquos the reason why

many times we feel that unless an autopsy is done itrsquos really difficult to

know what may have happenedrdquo This Court held that gratuitous opinion

was ldquospeculative in naturerdquo Id at 78

Further Abel expressing only ldquoconcernsrdquo about Granarsquos ldquojudgmentrdquo is

so indefinite as to be impermissibly speculative too JA1349-1352 And

Abel opining ldquoit wasnrsquot the best judgmentrdquo still is indefinite JA1357

4 Abelrsquos opinions are hearsay

Abel testified based on - indeed testified about - hearsay weather

conditions on Honeywellrsquos direct examination Even an expert attesting

hearsay facts on direct examination is inadmissible and reversible error

Commonwealth v Wynn 277 Va 92 100 (2009)

5 Abelrsquos opinions are irrelevant

Abel only expressed general ldquoconcerns about the judgment taking off

into conditions on the weatherrdquo and that it was not ldquobest judgmentrdquo

JA1349-1352 and 1357 Abel did not opine at all about what if anything

Grana supposedly did or did not do while actually flying to cause or

38

contribute to causing the crash ldquoI donrsquot know what happened in that

airplanerdquo JA1357 (emphasis added)

Whether or not Grana showed ldquogood judgmentrdquo let alone ldquogreat

judgmentrdquo in deciding to fly in weather conditions (never seen by Abel)

however simply is not relevant Re Grana the sole causation issue is

whether once flying any (in)action by Grana proximately caused the crash

- not whether his decision to fly in the first place was ldquogreatrdquo or even ldquogoodrdquo

This Court countenancing Abelrsquos testimony as relevant opens the

floodgates to like testimony in garden variety motor vehicle accident

(ldquoMVArdquo) and other cases In any MVA involving inclement weather - or

latewee hours etc - expert andor lay witnesses could opine ldquoconcernsrdquo

about motoristsrsquo threshold judgment in deciding to drive in the weather at

the hour etc as ostensibly relevant to the actual cause of the MVA literally

minutes and miles down the road

6 Abelrsquos opinions invade the juryrsquos province

Abel summarily opined ldquoconcerns about the judgmentrdquo and ldquoit wasnrsquot

the best judgmentrdquo JA1349-1352 and 1357 While that testimony is

indefinite unto speculative it also conclusorily and impermissibly goes to

the ultimate issue to be decided by the jury alone ie whether Granarsquos

conduct was a cause of the crash

39

7 Abelrsquos opinions are prejudicial

As intended by Honeywell the opinions of its ldquopretty critical witnessrdquo

Abel sullied Grana Abelrsquos repeated ldquoconcernsrdquo about (bad) ldquojudgmentrdquo

bespoke incompetence or at least carelessness if not recklessness -

despite contributory negligence assumption of risk and product misuse not

being issues - indicating predicate ldquofaultrdquo and inviting speculation

assumption andor presumption of Granarsquos (continuing) incompetence

andor wrongdoing while flying

Moreover Honeywell maximized the prejudicial impact of ldquopretty

critical witnessrdquo Abelrsquos repeated ldquoconcernsrdquo about Granarsquos ldquojudgmentrdquo at

four (4) different junctures during trial

1 Opening statement [by videotape] JA792

2 Direct examination [by videotape] JA1352 and 1354

3 Expert cross-examination [by reference] JA1645 and

4 Closing argument [by videotape] JA1594-1595

Since Abel testified by videotape deposition for maximum impact

Honeywell played videotape excerpts focusing on his ldquoconcernsrdquo about

ldquojudgmentrdquo during opening JA792 and replayed in closing JA1594-1595

With synergistic effect Honeywell also coupled its broadcasts of

ldquopretty critical witnessrdquo Abelrsquos testimony with its broadcasts of similar

40

negative opinionfeelings testimony of another plane co-owner Robert

Norman See E infra As intended the reinforcing testimony of its co-

owner duo was very damaging to Administrators

E THE TRIAL COURT ADMITTING NORMANrsquoS LAY OPINIONS AND HEARSAY IS PREJUDICIAL ERROR

Unlike Grana Robert Norman is a Mooney plane co-owner who was

unlicensed unendorsed and inexperienced to fly the Mooney solo in any

conditions let alone under Visual Flight Rules and Instrument

Meteorological Conditions like Grana JA1381-1383 and 1394 Moreover

Norman never used Honeywellrsquos autopilot in question to assist with turning

TT 2364 and the Mooney indisputably was turning after takeoff when

Grana used it JA991-992

Nonetheless on Honeywellrsquos direct examination Norman as layman

repeatedly was allowed to share his subjective opinions about the Mooney

1 ldquoA I still to this day am afraid of that Mooney 2 A I have a healthy fear of [the Mooney] 3 A It was not something that I would ever want to fly solo until I

could do that instantlyhellipThe Mooney there are a thousand different mistakes you could make that would lead you to have something bad happen

4 A I was told yoursquod have to be retarded to crash a [Cessna]

Skyhawk The Mooney totally opposite The Mooney

41

there are a thousand different mistakes you can make that would lead you to have something bad happenrdquo

JA380-382 (emphasis added) Norman also attested his subjective

opinions about his operation of the Mooney under supervision and different

circumstances than Grana including that the autopilot seemed to work

alright JA1383-1389 and attested hearsay about what Abel ldquomeantrdquo and

what other Mooney co-owners wanted re Grana flying JA1405-1409

1 Public policy opposes Normanrsquos lay opinions As indicated regarding William Abel see D(1) supra a classic

ldquogatekeeperrdquo function of the courts is precluding lay witnesses from

foraying into de facto expert opinion Of course lay testimony also is

inadmissible independently for lack of foundation irrelevance

speculativeness and hearsay

The testimony of Robert Norman which dovetailed with that of

William Abel as a matter of content and presentation by Honeywell

suffered from all those unfair ills See E(2-5) infra Their effects were

prejudicial particularly with the repeated combined videotape excerpts of

Abel and Norman see E(6) and public policy dictates such multi-prong

injustice not be countenanced

42

2 Normanrsquos lay opinions are unfounded

Lacking qualifications Norman testified as a layman But his

testimony about fearing the Mooney plane JA1380-1381 about the

ldquothousand different mistakes you can makerdquo with it JA1381-1382 and its

operation were unfounded JA1405-1409

His testimony about operating the Mooney plane under different

circumstances than Grana also was unfounded and impermissible (even for

an expert) because Norman did not know and thereby could not and did

not consider all of the variables JA1334-1335 Administrators repeatedly

objected but were overruled JA756-783

3 Normanrsquos lay opinions were irrelevant

Obviously Normanrsquos lay personal fears about the Mooney including

the ldquothousandrdquo bad mistakes a pilot could make with it are not relevant to

the issues whether Grana andor product defect was a cause of the crash

Likewise Normanrsquos opinions about how Honeywellrsquos autopilot operated

under limited different circumstances about what Abel meant andor about

what other co-owners intended re Grana simply are not relevant either

Administrators objected on grounds of relevance JA756-760 But the

judge overruled Id

43

4 Normanrsquos lay opinions were speculative

Norman opining about how the Mooney plane operated in his limited

experience under circumstances that were not substantially similar also

were speculative JA1383-1389 Administrators so objected and were

overruled JA758-760

5 Normanrsquos testimony is hearsay

Normanrsquos opinions about what Abel meant and what various partners

supposedly stated and agreed about Grana flying are hearsay JA1383-

1389 Wright v Kaye 267 Va 510 530 (2004)(ldquostate of mindrdquo statements

were inadmissible hearsay) Administrators objected and the judge

overruled JA769-773

6 Normanrsquos lay opinions and hearsay are prejudicial

Normanrsquos opinions unfairly indicated there was no defect with

Honeywellrsquos autopilot Yet he lacked sufficient expertise had limited

exposure to the Mooney plane and used it under different circumstances

Normanrsquos opinions repeatedly suggested that pilot mistake was the

cause of something bad happening ie the crash They did so in

heightened unto exaggerated emotional terms ie ldquoafraidrdquo ldquofearrdquo and a

ldquothousand different mistakesrdquo

44

As with Abelrsquos testimony Honeywell maximized the prejudicial impact

of Normanrsquos subjective lay impressions at three (3) trial junctures

1 Direct examination [by videotape] JA1380-1389

2 Closing argument [by videotape] JA1593-1594 and

3 Closing argument [by reference] JA1598

Since Norman too testified by videotape deposition for maximum impact

Honeywell replayed Normanrsquos most inflammatory opinions immediately

before it played Abelrsquos videotape excerpts in closing JA1593-1595

CONCLUSION

For the reasons set forth above consonant with sound public policy

VTLA urges the Court to reaffirm and apply Virginiarsquos longstanding

doctrines on reliable authority prior incidents proximate causation and lay

and expert testimony and opinions and reverse the Circuit Courtrsquos

judgments and remand for new trials on all issues

Respectfully submitted s Avery T Waterman Jr AVERY T WATERMAN JR ESQ

VSB 27118 Patten Wornom Hatten amp Diamonstein LC 12350 Jefferson Avenue Suite 300 Newport News Virginia 23602 Telephone (757) 223-4567 Facsimile (757) 223-4499 Awatermanpwhdcom Counsel for Amicus Curiae

45

CERTIFICATE OF SERVICE

I hereby certify that on January 22 2014 fifteen copies of the above

Brief Amicus Curiae have been filed via USPS Certified Mail to the clerkrsquos

office This same date three copies of the same have been sent via USPS

First Class Mail to the following counsel

Counsel for Appellants

Roger T Creager Esq VSB No 21906 The Creager Law Firm PLLC 1500 Forest Avenue Suite 120 Richmond VA 23229 Telephone (804) 747-6444 Facsimile (804) 747-6477 rcreagercreagerlawfirmcom John C Shea Esq VSB No 17436 Mark S Lindensmith Esq VSB No 20452 Marks amp Harrison PC 1500 Forest Avenue Richmond VA 23229 Telephone (804) 282-0999 Facsimile (804) 288-1853 jsheamarksandharrisoncom mlindensmithmarksandharrisoncom

46

Anita Porte Robb Esq Admitted pro hac vice in trial court Gary C Robb Esq Admitted pro hac vice in trial court Robb amp Robb LLC One Kansas City Place - Suite 3900 1200 Main Street Kansas City MO 64105 Telephone (816) 474-8080 Facsimile (816) 474-8081 arobbrobbrobbcom grobbrobbrobbcom Counsel for Appellee Patrick R Hanes Esq VSB No 38148 Turner A Broughton Esq VSB No 42627 Joseph R Pope Esq VSB No 71371 WF Drewry Gallalee Esq Harold E Johnson Esq VSB No 65591 Williams Mullen Clark amp Dobbins Williams Mullen Center 200 South 10th Street PO Box 1320 Richmond VA 23218-1320 Telephone (804) 420-6939 Facsimile (804) 420-6507 phaneswilliamsmullencom tbroughtonwilliamsmullencom jpopewilliamsmullencom dgallaleewilliamsmullencom hjohnsonwilliamsmullencom

47

Michael McQuillen Esq Admitted pro hac vice Austin W Bartlett Esq Pending pro hac vice admission John M Kelly Esq Admitted pro hac vice Nicole L Simmons Esq Admitted pro hac vice Adler Murphy amp McQuillen LLP 20 S Clark Suite 2500 Chicago IL 60603 Telephone (312) 345-0700 Facsimile (312) 345-5860 mmcquillenamm-lawcom abartlettamm-lawcom jkellyamm-lawcom nsimmonsamm-lawcom This same day an electronic version was also sent via email to the Clerkrsquos Office of the Supreme Court of Virginia and to all counsel listed above s Avery T Waterman Jr Of Counsel

48

ADDENDUM

CREAGER l t I It ~I I Ll (

1500 IORFST AVFNUF bull SUlTf 120 bull itl(IfMUNU VlJltJlNIJi 23229 bull WORK (1104) 74764middot1middot bull FAx (804) 747middot6471 bull WWWCRfJilifRIJiwFIRMCM

January 2 J 2014

Bv E-Mail and Fax Avery T Waterman Jr Esquire Patten Wornom Hatten amp Diamonstein LC Suite 300 12350 Jefferson Avenue Newport News Virginia 23602 (Fax (757) 223-4499)

Re Michelle C Harman Administratrix of the Estate of Joseph A Grana III Deceased et al v Honeywell International Inc Record Number 130627

Dear Mr Waterman

This confirms that I as and on behalf of counsel for the Appellants hereby consent to your filing in the Supreme Court of Virginia of a Brief Amicus Curiae of the Virginia Trial Lawyers Association in the above-styled matter

cc Counsel for Appellees Patrick R llanes Esquire Turner A Broughton Esquire Joseph R Pope Esquire WILLIAMS MULLEN PO Box 1320 200 South 10th Street Suite 1600 (23219) Richmond VA 232 J8-1320 (By Fax 804-420-6507)

Michael G McQuillen Esquire Austin W Bartlett Esquire John M Kelly Esquire Nicole L Simmons Esquire ADLER MUJgtRI-)Y amp McQUILLEN LLP 20 South Clark Street Suite 2500 Chicago I L 60603 (By Fax to 312-345-9860)

WILLIAMS MULLEN

Direct Dial 8044206455 phancswilliarnsrnullencom

January 222014

VIA ELECTRONIC MAIL

Avery T Sandy Waterman Jr Esq Patten Wornom Hatten amp Diamonstcin LC 12350 Jefferson Avenue Suite 300 Newport News VA 23602

Re Michelle C Harman etc v Honeywell International Inc Record No 130627

Dear Sandy

As and on behalf of counsel for Appellee I consent to the filing in the Supreme Court of Virginia ofa Brief Amicus Curiae of the Virginia Trial Lawyers Association in the above-styled matter

Please let me know if you have any questions

~~TYO ( ~u~__V~trvJ Fmiddot v ___

Patrick R Hanes

cc Turner Broughton Esq (via e-mail) Roger T Creager Esq (via e-mail) Michael McQuillen Esq (via e-mail)

NORTH CAROLINA VIRGINIA WASHINGTON DC

200 50mh 1O~ Srrcee Suire 1600 (23219) PO Box 1320 Richmond VA 23218-1320 Tel 8044206000 Fax 8044206507 INWWwilliamsmuJJencom

Jeanne Vareo

From Austin W Bartlett ltabartlettAMM-LAWcomgt Sent Tuesday January 21 2014 506 PM To Jeanne Varco Cc Michael G Mcquillen John M Kelly Broughton Turner

(tbroughtonwilliamsmulencom) Hanes Patrick R (phaneswilliamsmullencom) rcreagercreagerlawfirmcom jsheamarksandharrisoncom arobbrobbrobbcom grobbrobbrobbcom

Subject FW Harman v Honeywell cw Bemberis v Honeywell - 12114 Email to P Hanes and M Mcquillen

Attachments img-121160142-000lpdf

Importance High

Hi Jeanne and Avery

On behalf of Mike McQuillen this will confinn that we consent to your filing of an amicus brief

Best regards Austin

Austin W Bartlett ADLER MCRPHY amp McQUILLEN LLP

20 S Clark Street Suite 2500 Chicago Illinois 60603 Main (312) 345-0700 Direct (312) 422-5798 Facsimile (312) 345-9860

The ilformatioll IXJlltained in thiJ electronic mail message is conjidential illformation intended onlY for the use ofthe individual or enti) named aboIe and may be protected ~Y the attornflY client andor attorney work prodllct pnmiddotvileges Ifthe reader qfthis meJJage iJ not the intended redpient or the emplqyee or agent reJpoflJible to deliver to the itltended redpientyou are hereby notified that atry disJemination diJtriblltioll or copying qthiJ (omtlJlmimtioll is stndIY prohibited f)Oll have meilJed this communication in error pleaJe immediatelY not~jj us and delete the miginal menage

From Jeanne Varco [mailtojeannePWHDcom] Sent Tuesday January 21 2014 305 PM To phaneswilliamsmullenscom Michael G Mcquillen tbroughtonwilliamsmullencom jpopewilliamsmullencom Cc jsheamarksandharrisoncom arobbrobbrobbcom grobbrobbrobbcom rcreagercreagerlawfirmcom Subject Harman v Honeywell cw Bemberis v Honeywell - 12114 Email to P Hanes and M McQuillen Importance High

This email was sent to you on behalf of Avery T Waterman Jr Esq

Jeanne M Varco Legal Assistant to Avery T WatermanJr Esq Patten W ornom Hatten amp Diamonstein LC

1

THE LEX GROUP 1108 East Main Street Suite 1400 Richmond VA 23219 (804) 644-4419 (800) 856-4419 Fax (804) 644-3660 wwwthelexgroupcom

In The

Supreme Court of Virginia

______________________

RECORD NO 130691 ______________________

BYRD THEATRE FOUNDATION (THE)

Appellant

v

DAVID M BARNETT

Appellee

_________________________

BRIEF OF AMICUS CURIAE THE VIRGINIA TRIAL LAWYERS ASSOCIATION

IN SUPPORT OF APPELLEE _________________________

Nathan J D Veldhuis (VSB No 68746) Gobind Sethi (VSB No 72266) CHAIKIN SHERMAN Samantha K Sledd (VSB No 82656) CAMMARATA AND SIEGEL PC HALL amp SETHI PLC 1232 17th Street NW 12120 Sunset Hills Road Suite 150 Washington DC 20036 Reston Virginia 20190 (202) 659-8600 (Telephone) (703) 925-9500 (Telephone) (202) 659-8680 (Facsimile) (703) 925-9166 (Facsimile) nathandc-lawnet gsethihallandsethicom Counsel for Amicus Curiae Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ii A STATEMENT OF AMICUS INTEREST 1

B STATEMENT OF THE CASE AND MATERIAL

PROCEEDINGS 1

C STATEMENT OF FACTS 2

D ASSIGNMENTS OF ERROR 2

E ARGUMENT 2 I The Trial Court Was Correct In Ruling That Barnett

Was Not A Beneficiary Of The Foundation At The Time He Sustained His Injury 2 A Standard of Review 3

B Applicable Law 4

II Knowledge Of The Defective Walkboard Should Be

Imputed To The Foundation Even If Such Knowledge Was First Acquired By An Individual Before He or She Became An Agent Of The Foundation 12

A Standard of Review 12

B Applicable Law 13

F CONCLUSION 20

G CERTIFICATE 23

ii

TABLE OF AUTHORITIES

Page(s)

CASES Bodenheimer v Confederate Memorial Assrsquon

68 F2d 507 (4th Cir 1934) 8 Cabin Branch Min Co v Hutchinsonrsquos Admrsquox

112 Va 37 (1911) 14 15 Diaz v Wash State Migrant Council

265 P3d 956 (Wash Ct App 2011) 17 Egerton v RE Lee Memorial Church

385 F2d 381 (4th Cir 1968) 8 Goodstein v Milmo Realty Corp

8 NYS2d 243 (NY City Ct 1938) 16 Honsinger v Egan

266 Va 269 (2003) 13 Ola v YMCA of S Hampton Rds Inc

270 Va 550 (2005) passim Smith v Kim

277 Va 486 (2009) 13 The Distilled Spirits

78 US 356 (1871) 16 Thrasher v Winand

239 Va 338 (1990) 5 9 Wintergreen Partners Inc v McGuirewoods LLP

280 Va 374 (2010) 13

iii

OTHER AUTHORITIES Restatement (Second) of Agency sect 276 (1958) 16 18 Restatement (Third) of Agency sect 503 (2006) 17 18

1

A STATEMENT OF AMICUS INTEREST1

The Virginia Trial Lawyers (ldquoVTLArdquo) is an organization of

over twenty-five hundred Virginia attorneys dedicated to

promoting professionalism within the trial bar enhancing the

competence of trial lawyers protecting and preserving individual

liberties and access to justice and supporting an efficient and

constitutionally sound judicial system

This appeal presents issues that are important to Virginia

law and trial practice in Virginia Courts It concerns and

implicates not only the rights of the parties to this case but also

the rights of litigants and the nature of trial practice throughout

the Commonwealth

B STATEMENT OF THE CASE AND MATERIAL PROCEEDINGS

The VTLA adopts Appellee David M Barnettrsquos Statement of

the Case

1 The VTLA affirms that no counsel for a party authored this brief in whole or in part and that no person other than amicus its members and its counsel made a monetary contribution to its preparation or submission However counsel for Appellee is a member of the VTLA

2

C STATEMENT OF FACTS

The VTLA adopts Appellee Barnettrsquos Statement of Facts

D ASSIGNMENTS OF ERROR

I The trial court erred in denying the Foundationrsquos Plea of Charitable Immunity (JA 9 13-34 50-62 68-69 351-409 410-413 1458-60 1603 1682-86 1702 1704-1705)

II The trial court erred in refusing to instruct the jury on notice to a corporation (JA 1229-44 1272-98 1399 1461-66 1577-97 1682-86 1702 1704-1705)

E ARGUMENT

I The Trial Court Was Correct In Ruling That Barnett Was Not A Beneficiary Of The Foundation At The Time He Sustained His Injury

The trial court correctly held that Mr Barnett was not a

beneficiary of The Byrd Theatre Foundation (ldquoFoundationrdquo) at the

time of his injury When Mr Barnett was injured falling from a

walkboard he was performing organ repair at the request of

Robert Gulledge an agent of the Foundation At that time the

Foundation did not employ an organ repairperson Mr Barnett

was an organ enthusiast with extensive knowledge of how organs

function Mr Gulledge solicited Mr Barnett a Foundation

volunteer to perform the repairs Mr Barnett agreed

3

When Mr Barnett brought suit against the Foundation the

latter asserted a plea of sovereign immunity In passing on the

plea the trial court held ldquo[t]he fact that plaintiff likes and wanted

to do what he was doing by providing a service of repair to the

charity and received a lsquobenefitrsquo thereby is not the same as or

consistent with the [Foundationrsquos] extending its charitable

beneficence [to Mr Barnett] according to its charitable

undertakingrdquo (JA 411) The trial court denied the Foundationrsquos

plea and the Foundation has appealed that ruling to this Court

(JA 410-413 1682-1686)

The VTLA writes on brief amicus curiae because this case

presents an important opportunity for this Court to articulate the

bounds of the doctrine of charitable immunity

A Standard of Review The VTLA agrees with and incorporates herein by reference

Appellee Barnettrsquos analyses of the standard of review

4

B Applicable Law

In Ola v YMCA of S Hampton Rds Inc this Court set forth

the test assessing the availability of charitable immunity as

follows

To establish charitable immunity as a bar to tort liability an entity must prove at least two distinct elements The absence of either element makes the bar of charitable immunity inapplicable First the entity must show it is organized with a recognized charitable purpose and that it operates in fact in accord with that purpose lsquoIn conducting this inquiry Virginia courts apply a two-part test examining (1) whether the organizationrsquos articles of incorporation have a charitable or eleemosynary purpose and (2) whether the organization is in fact operated consistent with that purpose rsquo

Second assuming the entity has met the foregoing test it must then establish that the tort claimant was a beneficiary of the charitable institution at the time of the alleged injury

270 Va 550 556 (2005) (internal citations omitted) ldquo[Charitable] immunity does not extend however to

invitees or strangers having no beneficial relationship to the

charitable institutionrdquo Id ldquo[S]uits by invitees or strangers for

negligence will not be barred by the doctrine of charitable

immunityrdquo Id at 561

5

In Ola the minor plaintiff was sexually assaulted shortly

after she used the ldquoYMCArsquos swimming pool and was using the

bathroomrdquo Id at 555 This Court held that because she was a

beneficiary of the YMCA a charitable entity any claim against the

YMCA for injuries was barred by the doctrine of charitable

immunity Specifically it held that because she was a beneficiary

of the YMCA at the time of the alleged injury her claims were

barred Id at 565

The central inquiry in this context is ldquowhether the plaintiff

was at the time of his injury accepting the benefits of the

charitable activities of the defendant a charitable organization

thus giving rise to the defense of charitable immunityrdquo Thrasher

v Winand 239 Va 338 339 (1990) (emphasis added)2

Mr Barnett stipulated that the Foundation is a charity The

Foundation therefore must establish that Mr Barnett was

ldquoaccepting the benefits of the charitable activities of the

[Foundation]rdquo at the time of his injury Id In Ola and Thrasher 2 This Court has also cautioned charitable organizations that ldquoit is often prudent and an exercise of fiduciary responsibility for a charitable entity to carry liability insurance for protection in the appropriate circumstancerdquo Ola 270 Va at 561

6

this Court makes it clear that ldquoat the time of the injuryrdquo for

purposes of the case at bar means while Mr Barnett was a

volunteer at the Theatre for the purposes of repairing the organ

on May 23 2009

The analysis of whether Mr Barnett was a beneficiary of the

Foundation at the time he was injured begins with the nature of

the Foundationrsquos charitable purpose The Foundation maintains

the following as its charitable purposes

1 ldquoTo cultivate promote and develop the publicrsquos

knowledge awareness understanding and

appreciation of the performing artsrdquo (JA 249)

2 ldquo[O]wn and [r]estore The Byrd Theatre as a grand

movie palace and community resourcerdquo (JA 251)

3 ldquoRestoration of the 1928 Byrd Theatre to its former

grandeurrdquo including ldquomajor historical renovation of the

organrdquo (JA 266)

4 ldquo[R]estore and preserve the Byrd Theatrerdquo (JA 101)

The Foundation argues that Mr Barnett ldquosquarely fits into

the class of people who benefit from the Foundationrsquos charitable

7

purposerdquo and therefore ldquoit cannot be concluded from all of the

evidence that Mr Barnett received absolutely nothing of value

from the Foundationrsquos charitable workrdquo (Br of Appellant 31-32)

In support of this contention the Foundation points to the

fact that Mr Barnett attends the Theatre twice yearly supports

the Theatre and has a love of theatre organs The Foundation

concludes these facts bring Mr Barnett in alignment with the

Foundationrsquos purpose Ola is instructive in demonstrating why

that is not so at the time Mr Barnett was injured

There is no dispute that Mr Barnett was an organ enthusiast

and a supporter of the Theatre who derived benefits from the

Theatre when he attended events hosted by the Theatre

Similarly the plaintiff in Ola was a beneficiary of the YMCArsquos

charitable purpose when she went swimming in its pool In

support of its holding the Ola Court cited two cases from the

Fourth Circuit Court of Appeals in which individuals entering a

historic church to view stained glass and visiting a charitable

entity for purposes of admiring paintings and other exhibits were

deemed beneficiaries of those charities Ola 270 Va at 564

8

(citing Egerton v RE Lee Memorial Church 385 F2d 381 384

(4th Cir 1968) and Bodenheimer v Confederate Memorial Assrsquon

68 F2d 507 509 (4th Cir 1934))

Applying these principles to the instant case Mr Barnettrsquos

presence at the Theatre on the day he was injured is

distinguishable in a conclusive way Cases like Ola Egerton and

Bodenheimer involve plaintiffs deriving a direct benefit from the

charities they were attending at the time they were injured In

contrast Mr Barnett was not watching one of the Theatrersquos

movies or listening to organ music when he fell Rather he was

there to fix the organ He was volunteering Indeed he had

been asked by Robert Gulledge the Foundationrsquos organ

restoration subcommittee chairman to conduct a one-time repair

that was even outside the scope of Mr Barnettrsquos advisory role on

the same subcommittee Mr Barnett was on the organ

restoration subcommittee and it was in that capacity that Mr

Gulledge asked him to fix the organ

In order for the charitable immunity test in Ola to be met in

the case at bar Mr Barnett must have been deriving some

9

benefit related to the charitable purpose of the Foundation at the

time of his injury 270 Va at 563 The facts in Ola are not

analogous to the facts in the case at bar If the plaintiff in Ola

had been a pool aficionado who at the request of the Director

had volunteered to fix some cracks in the pool at the YMCA at the

time she was injured the case would have presented a scenario

much like the one in this case

The fact that the plaintiff in Ola had swum in the pool at the

YMCA before the day she was injured and intended to swim there

after the day she was injured is not the question The question

is whether she was enjoying the YMCArsquos facilities at the time she

was injured Similarly the inquiry here is not whether Mr

Barnett had ever been a beneficiary of the Foundation or that he

would again at some time in the future it is only for purposes of

this analysis whether he was deriving a benefit from the

Foundation at the time he was injured Any other conclusion

would require speculation about ldquoindirect benefitsrdquo which are ldquotoo

remote and speculativerdquo to give rise to the defense of charitable

immunity Thrasher 239 Va at 342

10

The fact that Mr Barnett is an organ enthusiast and owner

who has access to the Theatre organ by being on the organ

subcommittee and received gratification and ldquoeducationrdquo when

he has worked on the organ does not make him a beneficiary3

Certainly one can imagine that a professional organ repairperson

engaged to work on these types of organs has an affinity for

theater organs and receives satisfaction from their efforts It also

can be presumed they receive the same type of ldquoeducationrdquo each

of us receives daily in our every endeavor in activities of daily

living

Mr Barnett received no benefit of any value from his repair

of the organ in response to Mr Gulledgersquos request He received

no payment from the Foundationrsquos only charitable activity of 3 While in this particular case Mr Barnett was a supporter of the charity the result should be the same even if he were not For example if the Theatrersquos heating system needed to be repaired and Mr Gulledgersquos neighbor worked on heating systems for a living but cared nothing about the Theatre and Mr Gulledge asked his neighbor to work on the Theatrersquos system as a favor the neighbor would be no less entitled than Mr Barnett to the same ability to recover if he were injured by the negligence of the Theatre It would be extraordinarily difficult as a practical matter for trial courts to attempt to draw distinctions between different classes of volunteers at charities for purposes of charitable immunity analyses

11

fundraising The only thing that made Mr Barnett ldquodifferentrdquo is

that his motivation was altruistic because he made a contribution

for the benefit of the Foundation

When Mr Barnett was injured he was not a participant or

attendee at any Foundation sponsored program or event that

(i) cultivated the performing arts (ii) promoted them or

(iii) developed the publicrsquos knowledge awareness understanding

and appreciation of them or of the Byrd Theatre as a movie

palace and community resource (JA 190-191)

The Foundation has never held hosted sponsored or

promoted an activity where volunteers repair the organ (J A

103) Mr Barnett was an invitee permitted access to the organ

for the sole purpose of providing specific volunteer repair work

outside the scope of his subcommittee duties

Since Mr Barnett was not a beneficiary of the Foundationrsquos

charitable purpose when he fell from the walkboard while

volunteering to repair the organ the Foundationrsquos appeal lacks

merit and this Court should affirm the ruling of the trial court and

enter final judgment

12

II Knowledge Of The Defective Walkboard Should Be Imputed To The Foundation Even If Such Knowledge Was First Acquired By An Individual Before He or She Became An Agent Of The Foundation

Should the Court address whether it is relevant for purposes

of imputing notice to the Foundation that its agent first obtained

knowledge of the defective walkboard before becoming an agent

the Court should rule in the negative Rather this Court should

hold that it is irrelevant when the agent learned of the defect or

hazardous condition so long as the agent possessed such

knowledge while having an agency relationship with the principal

Knowledge cannot be compartmentalized Case law from a

number of Courts over the years as well as the Restatements

Second and Third of Agency provide support for this position

A Standard of Review

Where a verdict against a principal exonerating that

principalrsquos agent is supported by instructions providing a basis of

liability independent of the agentrsquos negligence and proffered

agency instruction the principal and agent relationship is

immaterial the judgment against the principal stands and failure

13

to give the agency instruction is harmless error Wintergreen

Partners Inc v McGuirewoods LLP 280 Va 374 379-80

(2010)

Further a litigant is entitled to a jury instruction only if the

instruction is supported by sufficient evidence and correctly states

the law Smith v Kim 277 Va 486 491 (2009) This Courtrsquos

role in reviewing the content of a jury instruction is to determine

de novo if the law has been correctly stated Id If a proffered

instruction is not a correct statement of law ldquothe trial court is not

required to correct or amend the instruction rather than [refuse]

to grant itrdquo Honsinger v Egan 266 Va 269 275 (2003)

B Applicable Law

The Court need not decide whether Instruction G tendered

by the Foundation was an appropriate statement of law in the

Commonwealth (JA 1399) There is an independent basis for

liability against the Foundation that would not require the Court

to address Instruction G There was evidence adduced at trial

that Mr Gulledge while an agent of the Foundation obtained

actual knowledge of the defective walkboard (JA 1116-1117

14

1134) Mr Gulledgersquos knowledge bound the Foundation and

served as the basis for Instruction 14 (JA 1421)

Nevertheless should the Court address whether Instruction

G tendered by the Foundation was a correct statement of the law

of the Commonwealth it should rule in the negative Instruction

G states as follows

A corporation knows a fact only as its officers and agents know it The corporation does not know all that its agents know but only what comes to the agents while acting for the corporation within the scope of their agency when it is the agentsrsquo duty to report their knowledge to the general officer or agents of the company

(JA 1399) By requesting the adoption of Instruction G the Foundation

asks this Court to hold that only knowledge obtained by an agent

during the period of agency and within the scope of that agency

may be imputed to the principal In other words information

secured prior to the agency relationship but known to the agent

during the agency and can be transmitted to the principal may

not be imputed to the principal

The Foundationrsquos position is contrary to the law of our

Commonwealth In Cabin Branch Min Co v Hutchinsonrsquos Admrsquox

15

this Court held that knowledge by a mine pit-boss of an unsafe

condition if present in his memory in the course of the scope of

his job duties must be imputed to the master even if the

knowledge was acquired before his appointment as pit-boss 112

Va 37 41 (1911) The Court stated the following

[T]he correct principle is thus stated in 31 Cyc p 1593 lsquoThe more logical rule however and that which is supported by the greatest weight of recent authority is that knowledge of an agent acquired prior to the existence of the agency will be chargeable to the principal if it be clearly shown that the agent while acting for the principal in a transaction to which the information is material has the information present in his mindrsquo

Id at 40 Virginia is not alone in rejecting the approach proffered by

the Foundation In 1871 the United States Supreme Court

stated

[T]he doctrine now seems to be established that if the agent at the time of effecting a purchase has knowledge of any prior lien trust of fraud affecting the property no matter when he acquired such knowledge his principal is affected thereby If he acquire the knowledge when he effects the purchase no question can arise as to his having it at that time if he acquired it previous to the purchase the presumption that he still retains it and has it present to his mind will depend on the lapse of time and other circumstances Knowledge communicated to the principal himself he is bound to recollect but he is not bound by

16

knowledge communicated to his agent unless it is present to the agentrsquos mind at the time of effecting the purchase Clear and satisfactory proof that it was so present seems to be the only restriction required by the English rule as now understood With the qualification that the agent is at liberty to communicate his knowledge to his principal it appears to us to be a sound view of the subject

The Distilled Spirits 78 US 356 366-367 (1871) (internal

citations omitted)

Similarly in a case involving a dangerous condition on a

premises resulting in injury to an infant a New York Court held

In the law of negligence notice to a previous owner does not run with the land as do certain covenants in the law of real estate Nevertheless notice to an agent who is retained by the new owner is binding on the successor principal provided such a period of time has not elapsed between the receipt of notice and commencement of the new agency as to constitute an unreasonable expectation from human memory

Goodstein v Milmo Realty Corp 8 NYS2d 243 244 (NY City

Ct 1938)

The approach articulated by the United States Supreme

Court in Distilled Spirits and a number of state courts was

memorialized in the Restatement (Second) of Agency sect 276

(1958) which states ldquo[e]xcept for knowledge acquired

confidentially the time place or manner in which knowledge is

17

acquired by a servant or agent is immaterial in determining the

liability of his principal because of itrdquo

More recently the Restatement (Third) of Agency sect 503

(2006) addressed specifically whether knowledge obtained by an

agent before the agentrsquos relationship with the principal should be

imputed to the principal Its legal reasoning was that such

knowledge should be imputed to the principal

[w]hen an agent is aware of a fact at the time of taking authorized action on behalf of a principal and the fact is material to the agentrsquos duties to the principal notice of the fact is imputed to the principal although the agent learned the fact prior to the agentrsquos relationship with the principal whether through formal education prior work or otherwise Likewise notice is imputed to the principal of material facts that an agent learns casually or through experiences in the agentrsquos life separate from work

Restatement (Third) of Agency sect 503 cmt e (2006) Adopting the approach described in the Restatement a

Washington state court noted that ldquoin most instances the time

place or manner in which the agent obtains knowledge is

immaterial in charging it to the principalrdquo Diaz v Wash State

Migrant Council 265 P3d 956 968 (Wash Ct App 2011)

18

The rationale for the decisions cited above is contained in

the commentary to the Restatement (Second) of Agency sect 276 as

follows

Since the mind of the agent cannot be divided into compartments the principal should be bound by whatever knowledge the agent has irrespective of its source or time of acquisition unless it is the kind of knowledge which the agent can properly disregard in the specific case because of having acquired it confidentially

Restatement (Second) of Agency sect 276 cmt a (1958)

It is requested to the extent not previously done so

explicitly that this Court adopt the approach of the Restatement

(Third) of Agency sect 503 cmt e (2006) and reject the

Foundationrsquos position that only knowledge obtained by a

Foundation agent during the time of his relationship with the

principal should be imputed to the Foundation From a policy

perspective the approach proffered by Mr Barnett is the better

one Knowledge cannot be compartmentalized Either it exists or

it does not If there is evidence adduced at trial that the agent

had such knowledge during his agency relationship with the

principal then the principal should be bound by it even if he

received such information prior to the principal-agent

19

relationship The relevant inquiry is therefore centered upon the

agentrsquos knowledge at the time of the agency relationship

irrespective of when that knowledge was first obtained

Additionally a ruling in favor of the Foundation on this issue

would lead to unintended outcomes in premises liability cases

Suppose Mr Gulledge first learned of the defective walkboard

while an agent of the Foundation In this setting there would be

no dispute as to imputation However should Mr Gulledge have

learned of the defect prior to being an agent of the Foundation

then under the Foundationrsquos theory his knowledge cannot be

imputed and the Foundation cannot be held liable This would be

so despite the fact that Mr Gulledgersquos knowledge of the defective

walkboard would have been for a greater period of time thereby

making the Foundation potentially more culpable

Or for example suppose Mr Gulledge while on an

employment interview with the Foundation noticed that the

walkboard was defective If Mr Gulledge was later hired by the

Foundation it would be inequitable to bar imputation of that

knowledge to the Foundation Mr Gulledge had knowledge of the

20

defect while an agent of the Foundation the mere fact that he

first obtained that knowledge before he became an agent should

not preclude recovery for persons injured by hazardous

conditions

The VTLA requests that this Court follow the reasoning of

the Restatements and that supported by over a hundred years of

jurisprudence and hold that knowledge obtained by an agent

prior to the agency-principal relationship and still known by the

agent can be imputed to the principal

F CONCLUSION

For the reasons stated above the VTLA respectfully requests

that this Court affirm the decisions of the trial Court and enter

final judgment in favor of Appellee Barnett

21

Respectfully submitted

THE VIRGINIA TRIAL LAWYERS ASSOCIATION

The Virginia Trial Lawyers Association 700 East Main Street Suite 1400 Richmond Virginia 23219 (804) 343-1143 (804) 343-7124 (fax) By ______________________________ Nathan J D Veldhuis Chaikin Sherman Cammarata and Siegel PC VA Bar No 68746 1232 17th Street NW Washington DC 20036 Tel (202) 659-8600 Fax (202) 659-8680 nathandc-lawnet and

22

______________________________ Gobind Sethi Hall amp Sethi PLC VA Bar No 72266 Samantha K Sledd Hallamp Sethi PLC VA Bar No 82656 12120 Sunset Hills Rd Suite 150 Reston VA 20190 Tel (703) 925-9500 Fax (703) 925-9166 gsethihallandsethicom On behalf of the Virginia Trial Lawyers Association

23

G CERTIFICATE On this 15th day of November 2013 I certify as follows

1 That I have complied with Rule 526(h) of the Rules of

the Supreme Court of Virginia

2 That 15 printed copies of the Brief of Amicus Curiae

with 1 electronic copy on CD have been hand-filed with

the Clerk of the Supreme Court of Virginia

3 That three printed copies of the Brief of Amicus Curiae

with an electronic copy on CD have been served via

UPS Ground Transportation to counsel for Appellant

Lynne Jones Blain Esquire Harmon Claytor Corrigan

amp Wellman 4951 Lake Brook Drive Suite 100 Glen

Allen Virginia 23060 and to counsel for Appellee

Mahlon G Funk Jr Hirschler Fleischer PC 2100 East

Cary Street Post Office Box 500 Richmond Virginia

23218

___________________________ Nathan J D Veldhuis

IN THE

Supreme Court of Virginia

MICHELLE C HARMANAdministratrix of the ESTATE of

JOSEPH A GRANA III Deceasedand

STEPHANIE E GRANA BEMBERISPersonal Representative of the ESTATE OF

JOSEPH E GRANA SR DeceasedAppellants

v

HONEYWELL INTERNATIONAL INCAppellee

RECORD NO 130627

REPLY BRIEF AMICUS CURIAEOF VIRGINIA TRIAL LAWYERSrsquo ASSOCIATION

IN SUPPORT OF APPELLANTS

LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond Virginia 23219 (804) 644-0477A Division of Lantagne Duplicating Services

Avery T Waterman Jr Esq (VSB No 27118)Patten Wornom Hatten amp Diamonstein LC12350 Jefferson Avenue Suite 300Newport News Virginia 23602Telephone (757) 223-4567Facsimile (757) 223-4499Awatermanpwhdcom

i

TABLE OF CONTENTS

Table of Authorities ii Amicus Statement of Interest 1 Argument 4 I RELIABLE AUTHORITY 6 II OTHER INCIDENTS 10 III JURY INSTRUCTION 11 IV ABEL OPINIONS 13 V NORMAN OPINIONS 14 Conclusion 15 Certificate 16 Addendum 1 (3314) Letter of Roger T Creager Esq [Counsel for Appellants]

ii

TABLE OF AUTHORITIES

CASES

Federal

Circuit United States v Martinez 588 F3d 301 (6th Cir 2009) cert denied 131 SCt 538 (2010) 7

District

Tafas v Dudas 511 F Supp2d 652 (EDVa 2007) 1 2

State

Foreign

OrsquoBrien v Angley 63 Ohio St2d 159 407 NE2d 490 (Ohio Sup Ct 1980) 7

Virginia

Agelasto v Frank Atkinson Real Estate 229 Va 59 (1985) 5 Blue Stone Land Co v Neff 259 Va 273 (2000) 4 5 Bostic v About Women OBGYN PC 275 Va 567 (2008) 6 8 Bottoms v Bottoms 249 Va 410 (1995) 1 4 Combs v Norfolk and Western Ry Co 256 Va 490 (1998) 13 Crowson v Swan 164 Va 82 (1935) 3 CSX Transp V Casale 247 Va 180 (1994) 5 Dandridge v Marshall 267 Va 591 (2004) 4 5

iii

Doe v Dewhirst 240 Va 266 (1990) 5 13 Goins v Wendyrsquos Intrsquol 242 Va 333 (1991) 10 Hale v Maersk Line Ltd 284 Va 358 (2012) 4 Hinkley v Koehler 269 Va 82 (2005) 5 Holmes v Levine 273 Va 150 (2007) 12 13 Keesee v Donigan 259 Va 157 (2000) 13 Lawlor v Commonwealth 285 Va 187 (2013) 11 Lawrence v Commonwealth 279 Va 490 (2010) 4 McClung v Commonwealth 215 Va 654 (1975) 11 12 Norfolk amp Western Ry v Puryear 250 Va 559 (1995) 5 Rhoades v Painter 234 Va 20 (1979) 6 Ring v Poelman 240 Va 323 (1990) 5 Tittsworth v Robinson 252 Va 151 (1996) 5 Velocity Express Mid-Atlantic v Hagen 266 Va 188 (2003) 10 11 Venable v Stockner 200 Va 900 (1959) 6 Whitehead v H and C Dev Corp 204 Va 144 (1961) 1 Wood v Woolfolk Properties Inc 258 Va 133 (1999) 10 Wright v Kaye 267 Va 510 (2004) 14

iv

STATUTES

Virginia Code sect801-3792 3 12 Virginia Code sect801-4011 2 6 8

RULES OF COURT

Va Sup Ct R 530(e) 2

AUTHORITATIVE TREATISES

Advisory Committee Notes to Federal Rules of Evidence Fed R Evid 803 Exception 18 56 FRD 183 (1972) 7 BLACKrsquoS LAW DICTIONARY (9TH

ED 2009) 1

2 McCormick on Evidence sect321 (6th ed 2006) 7

5 Wigmore on Evidence sect1692 (Chadbourn rev) 7

1

AMICUS STATEMENT OF INTEREST

Honeywell asserts Brief Amicus Curiae ldquois in substance a second

merits briefrdquo and ldquotransparent ploy to use an amicus brief to expand the

page limits for the Administratorsrsquo arguments not a serious assessment of

the publicrsquos interestrdquo Brief of Appellee (ldquoBArdquo) at 40-41 Honeywell is wrong

First it is not collusion1 Bottoms v Bottoms 249 Va 410 (1995)(four

Appellee amici curiae) Second Honeywell misconstrues amicus status

Amicus is a non-party ldquowho petitions the courthellipto file a brief in the

action because that person has a strong interest in the subject matterrdquo

BLACKrsquoS LAW DICTIONARY (9th ed 2009) at 98 This Court recognizes amicus

ldquoon the ground that ithelliphas a substantial interest in the subject matterrdquo

Whitehead v H and C Dev Corp 204 Va 144 149 (1961)2

1 Amicus affirms no counsel for a party authored this brief in whole or in part and no person or entity made a monetary contribution to its preparation or submission represents it obtained consent of Appellant but not Appellee to file and files Reply Brief with Motion for Leave to File subject to Administratorsrsquo objection BA is untimely improper and invalid

2 Federal law in Virginia is consistent explicit and persuasive authority ldquoAlthough an amicushellipis not a party to the litigation and participates only to assist the court nevertheless by the nature of things an amicus is not normally impartialhellipand there is no rulehellipthat amici must be totally disinterestedrdquo Tafas v Dudas 511 F Supp2d 652 661 (EDVa 2007)

2

Va Sup Ct R 530(e)(emphasis added) states ldquoA brief amicus

curiae shall comply with the rules applicable to the party supportedrdquo This

contemplates amicus reaching the merits Cf Tafas 511 F Supp2d at

652 (ldquomere fact that a non-party seeks to put forth [merits] opinion in the

case does not disqualify it as an amicusrdquo)

Third this appealrsquos five issues will be precedent beyond this case

That implicates public interest and policy

Va Code sect801-4011rsquos ldquoreliable authorityrdquo exception in Assignment

of Error (ldquoAOErdquo) 1 is evidentiary cornerstone of essentially every medical

malpractice case and this Courtrsquos opinions construe it in such cases There

is genuine public interest - plaintiff and defendant - in that limited statutory

exception not being eroded by Honeywell skipping its evidentiary

precondition introducing documentary exhibit and admitting biased case-

specific investigation

Honeywellrsquos ldquoabsence of other incidentsrdquo arguments and their judicial

ratification in AOE 2 cut across product liability medical malpractice

vehicular accidents and other torts There is genuine public interest in this

Courtrsquos prohibitions thereof - and of mirror-image ldquoevidence of other

incidentsrdquo - not being eroded by Honeywellrsquos repeated impermissible

closing arguments and by judicial ratification thereof

3

Administratorsrsquo multiple cause instruction in AOE 3 pervades all tort

litigation There is genuine public interest in a more informative causation

instruction that explicitly fully and fairly informs juries about two or more

possible proximate causes that is based on ldquoanyrdquo evidence introduced

plaintiff andor defendant and that is not rejected contrary to Va Code

sect801-3792 because it is not the ldquoModelrdquo then

Honeywellrsquos introduction of improper multiple lay opinions by Abel

and Norman in AOE 4 and 5 is a specter in any case There is genuine

public interest in litigants not being denied a fair day in court because

admittedly ldquocrucialrdquo fact witnesses wrongfully are allowed to give expert

opinion and otherwise inappropriate testimony

Finally ensuring justice in this case is legitimate public interest Fiscal

hardships of lengthy trials about which Honeywell complains are suffered

disproportionately by private individuals like Administrators versus Goliaths

like Honeywell so it is fundamental that justice not be denied by prejudicial

error Cf Crowson v Swan 162 Va 82 83 (1935)(ldquonever been

contendedhellipthe rights of a litigant should be determined by matters of

expediencyrdquo)

4

ARGUMENT

Honeywell argues ldquoabuse of discretionrdquo review standard BA15-16

but that is red-herring Even assuming that arguendo re AOEs 1 4 and 5

judge has ldquono discretion to admit clearly inadmissible evidencerdquo Lawrence

v Commonwealth 279 Va 490 496 (2010) or re AOEs 2 and 3 to make

errors of law

Honeywell misstates ldquoCourt views the facts in the light most favorable

to the prevailing partyrdquo and ldquopresume[s] that the law was correctly applied

to the factsrdquo citing Bottoms BA16 Bottoms is a custody case reviewing

ldquobest interestsrdquo findings not errors of evidence and law

Honeywell impliedly concedes its misstatement invoking harmless

error BA17 quoting Blue Stone Land Co v Neff 259 Va 273 279 (2000)

And judgment is affirmed only when this Court ldquocan say that the error

complained of could not have affected the resultrdquo Id

Evidentiary error is ldquopresumed prejudicial unless the record clearly

shows that the error could not have affected the resultrdquo Dandridge v

Marshall 267 Va 591 597 (2004) and ldquoerroneous admission of evidence

which may have lsquotipped the scalesrsquordquo is not harmless Hale v Maersk Line

Ltd 284 Va 358 377 (2012) This Court reverses for error on grounds

undercutting Honeywellrsquos arguments Eg Lawrence supra 279 Va at

5

499 (ldquospeculative and unreliablerdquo opinions inadmissible) Hinkley v

Koehler 269 Va 82 91-92 (2005)(ldquodoes not plainly appear from the record

[erroneous expert evidence] could not have affected the juryrsquos verdict

[lsquodespitersquo] that defendants had another expert witnessrdquo) Dandridge supra

267 Va at 597 (ldquonothing in the recordhellipclearly shows [evidentiary]

errorshellipdid not affectrdquo) Blue Stone supra 259 Va at 280 (different

ldquoevidencehellipmight have produced a different resultrdquo) Tittsworth v

Robinson 252 Va 151 155 (1996)(no harmless error because ldquono way of

determining what evidence may have influenced the juryrdquo) Norfolk amp

Western Ry Co v Puryear 250 Va 559 563 (1995) (ldquo[erroneously

admitted exhibit] could have been reviewed during the jury deliberations

and this would have impermissibly emphasized Puryearrsquos version of the

facts to the prejudice of NampWrdquo) 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)(ldquocannot

determine from the record [on what] the jury based its verdict [so] we

cannot say that the error was harmlessrdquo) Agelasto v Frank Atkinson Real

Estate 229 Va 59 65 (1985)(ldquoimproper evidence may have tipped the

scales [so] we cannot sayhelliperror was harmlessrdquo) Doe v Thomas 227 Va

466 473 (1984)(ldquocannot say as a matter of law that the inadmissible

6

evidence did not affect the juryrdquo) Rhoades v Painter 234 Va 20 24

(1979)(ldquocannot say as a matter of law the erroneous instruction could not

have affected the resultrdquo) Venable v Stockner 200 Va 900 905

(1959)(ldquodoes not necessarily show that the admission of this evidence was

harmlessrdquo)

Hence this Court undertakes evenhanded review of all evidence not

one-sided view of Honeywellrsquos evidence Honeywell bears burden of

showing errors of evidence andor law individually and collectively ldquocould

not have affected the resultrdquo may not have ldquotipped the scalesrdquo

I RELIABLE AUTHORITY

Va Code sect801-4011 includes ldquotwo preconditions to the admission of

hearsay First the testifying witness must have relied upon [it] second the

statements must be established as lsquoa reliable authorityrsquo by testimonyrdquo

Bostic v About Women OBGYN PC 275 Va 567 576 (2008)

Honeywell glosses inaccurately ldquoDr Clarke relied on the report and

vouched for its authorityrdquo BA18 Honeywell asserts falsely its expert

satisfying first precondition (ldquorelied uponrdquo) itself satisfied second

precondition (ldquoreliable authorityrdquo) ldquoDr Clarke testified that he relied on the

report and thereby endorsed its authorityrdquo Id (emphasis added)

7

In truth Honeywellrsquos attorney said Mooney Report is ldquodocument thatrsquos

normally relied upon by expertsrdquo JA1523 Thatrsquos not requisite ldquotestimonyrdquo

Consequently judge admitted absent expert opinion that inherently is

not ldquoreliable authorityrdquo biased case-specific investigation That is contrary

to history jurisprudence and commentators

Forerunner federal ldquolearned treatiserdquo exception presumes ldquohigh

standard of accuracy is engendered by various factors the treatise is

written primarily and impartially for professionals subject to scrutiny and

exposure for accuracy with the reputation of the writer at stakerdquo Advisory

Committee Notes to Federal Rules of Evidence Fed R Evid 803

Exception 18 56 FRD 183 316 (1972) ldquo[A]uthors of treatises have no

bias in any particular caserdquo 2 McCormick on Evidence sect321 (6th ed 2006)

United States v Martinez 588 F3d 301 312 (6th Cir 2009) cert

denied 131 SCt 538 (2010) ruled material inadmissible as learned

treatise because it ldquowas prepared forhelliplitigation purposes it was not

subjected to peer review or public scrutiny and it was not lsquowritten primarily

for professionalshellipwith the reputation of the writer at stakersquordquo OrsquoBrien v

Angley 63 Ohio St2d 159 407 NE2d 490 494 (Ohio Sup Ct

1980)(citing 5 Wigmore on Evidence sect1692 at 6 (Chadbourn Rev)) held

admission of JAMA editorial as learned treatise ldquoprejudicially erroneousrdquo

8

because ldquoit was written with a view toward litigation [and] was primarily an

expression of opinion by a physician concerning a controversial subject

which posed a risk of litigation for his colleagues in the medical professionrdquo

By law sect801-4011 is ldquostrictly construed and not to be enlarged in

[its] operation by construction beyond [its] express termsrdquo Bostic 275 Va

at 576 By public policy its ldquosecond preconditionrdquo (ldquoreliable authorityrdquo) is

construed narrowly for ldquolearned treatisesrdquo not enlarged for biased case-

specific investigation (whose creators must testify)

Alternatively Honeywell asserts incorrectly judge erring ldquoby permitting

[Mooney Reportrsquos] introduction into evidencehellipas distinct from the

argument that the report does not qualify as a reliable authority - was never

raised below and the Administrators do not raise it nowrdquo BA19 Honeywell

claims falsely ldquoit is thus waived twice overrdquo Id

In truth Administrators objected to Mooney Report testimony

JA1520-1521 and Mooney Report itself as documentary exhibit id and

JA1525 both for lack of ldquofoundationrdquo (since sect801-4011 provides none) Id

AOE 1 preserves admission of ldquohearsay Mooney Reportrdquo itself as error

Opening Brief of Appellants (ldquoOBrdquo) at 1 Administrators brief judge ldquoerred in

allowing Honeywellrsquos experthellipto introduce the entire hearsay report into

evidencerdquo OB32 That is not waiver

9

Tacitly conceding waiver is meritless Honeywell alternatively argues

Mooney Report admitted as documentary exhibit is harmless BA19-22

Honeywell incorrectly pooh-poohs Mooney Report is ldquoblandrdquo ldquoexpresses no

opinion about the cause of accident [and] makes no comment on whether

Honeywellrsquos autopilot was defectiverdquo BA21-22

Honeywell spins the following Mooney Report excerpt as ldquoneedle-in-

the-haystack statement - which was merely cumulative of other evidence -

could not have affected the outcome of this trialrdquo BA22

Conclusions The IIC [ldquoNTSBrdquo] Lycoming representative and myself [Mooney] did not find any evidence that the aircraft engine was not capable of producing power or that the aircraft was uncontrollable at the time of the accident

Honeywell Exhibit 11 JA463 (emphasis added) Thatrsquos just not so

Indisputably Mooney Report ldquoConclusionrdquo on the ultimate issue is not

bland impliedly expresses opinion about the cause of accident and

essentially comments Honeywellrsquos autopilot was not defective Although

ldquocauserdquo ldquoautopilotrdquo and ldquodefectiverdquo are not used Conclusion the aircraft

was ldquonot uncontrollablerdquo (as Administrators allege) is tantamount to opining

autopilot system was working sufficiently ie not defective and impliedly

that there was pilot error

10

Therefore although NTSB Report as admitted left jury dangling about

crash cause (showing no conclusion re cause) Mooney Report went the

final step and reached the ultimate issue by effectively concluding

Honeywellrsquos autopilot was ldquonot uncontrollablerdquo not defective Because it

opined on behalf of ldquoThe IIC [lsquoNTSBrsquo]rdquo Mooney Report purported to speak

on behalf of NTSB the Federal agency officially responsible for crash

investigation even though NTSB Report admitted did not speak re cause

That is materially prejudicial to Administrators and Honeywell cannot

prove jury did not read and rely on that pivotal Conclusion particularly with

Honeywell calling Mooney Report to juryrsquos attention twice in closing

JA1582-1583 This Court cannot say ldquoerror complained of could not have

affected the resultrdquo thus error was not harmless

II OTHER INCIDENTS

A Honeywell ignores Goins v Wendyrsquos Intrsquol 242 Va 333 (1991)

Wood v Woolfolk Properties Inc 258 Va 133 138 (1999)

and Velocity Express Mid-Atlantic v Hagen 266 Va 188

(2003) They control

B Honeywell conjures waiver claiming several cases hold

Administrators had to move for curative instruction precisely

11

when they objected to closing statements BA23-25 but careful

scrutiny discloses none hold that Velocity Express controls

C Honeywell claims ldquoobvious and crucial differencerdquo between (1)

absence of other incidents and (2) what Administratorsrsquo experts

testified BA26-27 But both are improper plus Honeywell

argued the worst absence of other incidents transcript does

not mention Administratorsrsquo experts in any of the five violations

and judge claiming it so does not make it so

D Honeywellrsquos five ldquoabsence of other incidentsrdquo rule violations is

prejudicial not harmless General instruction at trial outset is

not curative instruction after and for five violations and

Administratorsrsquo pure protest retorts in closing - which unlike

cases cited by Honeywell BA30 did not precipitate

Honeywellrsquos violations - are not curative particularly not given

judgersquos ratification of Honeywellrsquos five violations Velocity

Express

III JURY INSTRUCTION

A Honeywell ignores McClung v Commonwealth 215 Va 654

(1975) and Lawlor v Commonwealth 285 Va 187 (2013) They

control

12

B Honeywell concedes jury had only ldquoeitherorrdquo choice ldquoAt the

end of the day the jury was presented with a clear

choicehellipautopilothellip Orhellippilothelliprdquo BA13 (emphasis added)

C Honeywell misstates Administrators rely ldquoprimarily on a single

case Holmesrdquo BA34 then criticizes Administrators that

Holmes does not reach supporting evidence coming from both

plaintiffrsquos and defendantrsquos evidence BA34-35 In truth

Administrators relied on Holmes and McClung together with

McClung reaching evidence coming from plaintiffrsquos and

defendantrsquos case Brief Amicus Curiae at 30-31 as argued by

Administrators JA1545-1547 and TT3222-3223

D Honeywell objected to Administratorsrsquo multiple-cause instruction

solely because it then was not the ldquoModel Jury Instructionrdquo

JA1545-1547 not on redundancy confusion and inconsistency

grounds it raises on appeal first-time Correspondingly judge

indisputably sustained Honeywellrsquos lone itrsquos-not-the-Model

objection on that ground - clear unjustified indefensible violation

of sect801-3792 - not on Honeywellrsquos new different grounds

E Virginia Model Jury Instruction 5000rsquos post-trial amendment

effective December 2013 added the disputed sentence

13

Administrators requested There may be more than one

proximate cause of an accident injury or damage (emphasis

added) Citing Holmes its ALERTS emphasizes Where the

evidence in a case shows the possibility of more than one

proximate cause of an accident injury or damage the final

[new] sentence of Instruction should be given to fully and fairly

explain the principle of proximate cause to the jury Id

(emphasis added)

IV ABEL OPINIONS

A Honeywell ignores Combs v Norfolk and Western Ry Co 256

Va 490 (1998) Keesee v Donigan 259 Va 157 (2000) and

Doe v Dewhirst 240 Va 266 (1990) They control

B Honeywell admits Abel is ldquopretty critical witnessrdquo JA657 who

ldquoentered the realm of opinionrdquo BA37 and judge treated Abel as

ldquoquasi-expertrdquo TT349 But Abel never was qualified as expert

C Honeywell lists Administratorsrsquo objections to Abelrsquos testimony

irrelevant prejudicial subjective speculative unreliable

unfounded and opinion BA37 Honeywell simply pays lip-

service and does not actually refute each objection

14

D Honeywell focuses mostly on weather particularly visibility

BA37-39 Honeywell inaccurately claims ldquozero visibilityrdquo was

ldquoundisputedrdquo BA38 when in truth it was disputed it actually

was knowable only by pilot and Honeywellrsquos own exemplar

photo shows visibility through cloud covering BA8(Tr Ex 987)

E Abelrsquos opinion testimony about pilotrsquos ldquojudgmentrdquo was unduly

prejudicial Honeywell inundated the jury with it JA792

JA1352 JA1354 JA1645 and JA1594-1595

V NORMAN OPINIONS

A Honeywell ignores Wright v Kaye 267 Va 510 (2004) It

controls

B Honeywell admits Normanrsquos testimony ldquotouched on his opinionrdquo

BA 40 gross understatement Normanrsquos lay subjective opinions

are inflammatory hyperbole couched in exaggerated terms

eg ldquoafraidrdquo ldquohealthy fearrdquo ldquoa thousand different mistakesrdquo

and ldquosomething bad happenrdquo but Honeywell does not address

each of Administratorsrsquo objections re them

C Normanrsquos subjective opinions are unduly prejudicial individually

bespeaking pilot error and collectively screaming it Honeywell

inundated the jury JA1380-1389 JA1593-1594 and JA1598

15

CONCLUSION

This Court should reverse and remand all issues for retrial

Respectfully submitted s Avery T Waterman Jr AVERY T WATERMAN JR ESQ

VSB 27118 Patten Wornom Hatten amp Diamonstein LC 12350 Jefferson Avenue Suite 300 Newport News Virginia 23602 Telephone (757) 223-4567 Facsimile (757) 223-4499 Awatermanpwhdcom

Counsel for Amicus Curiae

16

CERTIFICATE OF SERVICE

I hereby certify that on March 4 2014 fifteen copies of the above

Reply Brief Amicus Curiae have been hand-delivered to the clerkrsquos office

This same date three copies of the same have been sent via first class

postage prepaid mail to the following counsel

Counsel for Appellants

Roger T Creager Esq The Creager Law Firm PLLC 1500 Forest Avenue Suite 120 Richmond VA 23229 Telephone (804) 747-6444 Facsimile (804) 747-6477 rcreagercreagerlawfirmcom John C Shea Esq Mark S Lindensmith Esq Marks amp Harrison PC 1500 Forest Avenue Richmond VA 23229 Telephone (804) 282-0999 Facsimile (804) 288-1853 jsheamarksandharrisoncom mlindensmithmarksandharrisoncom

17

Anita Porte Robb Esq Admitted pro hac vice in trial court Gary C Robb Esq Admitted pro hac vice in trial court Robb amp Robb LLC One Kansas City Place - Suite 3900 1200 Main Street Kansas City MO 64105 Telephone (816) 474-8080 Facsimile (816) 474-8081 arobbrobbrobbcom grobbrobbrobbcom Counsel for Appellee N Thomas Connally III Esq Hogan Lovells US LLP Park Place II 7930 Jones Branch Drive McLean VA 22102 Telephone (703) 610-6100 Facsimile (703) 610-6200 tomconnallyhoganlovellscom Catherine E Stetson Esq Jessica L Ellsworth Esq Hogan Lovells US LLP Columbia Square 555 Thirteenth Street NW Washington DC 20004 Telephone (202) 637-5600 Facsimile (202) 637-5910 catestetsonhoganlovellscom jessicaellsworthhoganlovellscom

18

Turner A Broughton Esq Patrick R Hanes Esq Joseph R Pope Esq WF Drewry Gallalee Esq Harold E Johnson Esq Williams Mullen Clark amp Dobbins Williams Mullen Center 200 South 10th Street PO Box 1320 Richmond VA 23218-1320 Telephone (804) 420-6939 Facsimile (804) 420-6507 tbroughtonwilliamsmullencom phaneswilliamsmullencom jpopewilliamsmullencom dgallaleewilliamsmullencom hjohnsonwilliamsmullencom Michael McQuillen Esq Admitted pro hac vice Austin W Bartlett Esq Pending pro hac vice admission Adler Murphy amp McQuillen LLP 20 S Clark Suite 2500 Chicago IL 60603 Telephone (312) 345-0700 Facsimile (312) 345-5860 mmcquillenamm-lawcom abartlettamm-lawcom s Avery T Waterman Jr Of Counsel

PRESENT All the Justices VICTORIA COALSON OPINION BY v Record No 130837 JUSTICE S BERNARD GOODWYN February 27 2014 VICTOR CANCHOLA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Bruce D White Judge

In this appeal we consider whether the circuit court erred

in remitting a juryrsquos award of punitive damages

Background

On March 1 2011 Victoria Coalson (Coalson) and Michael

Stemke (Stemke) each filed lawsuits in the Circuit Court of

Fairfax County against Victor Canchola (Canchola) seeking

compensatory and punitive damages for personal injuries

sustained in an automobile accident The circuit court

consolidated Coalsonrsquos and Stemkersquos actions

At the conclusion of the trial the jury awarded Coalson

$5600 in compensatory damages and $100000 in punitive damages

against Canchola Stemke received $14000 in compensatory

damages and $100000 in punitive damages The circuit court

entered a final order on January 11 2013 but the court

suspended the order for fourteen days to give the parties an

opportunity to file post-trial motions and submit an amended

final order if they wished Canchola filed a post-trial motion

for remittitur of both punitive damages awards arguing that the

2

awards were excessive under Virginia law and the Due Process

Clause of the Fourteenth Amendment

The circuit court found that Cancholarsquos conduct was

egregious Nevertheless it noted ldquoa significant disparityrdquo

between the plaintiffsrsquo compensatory damages awards although

both punitive damages awards were the same Based on this

disparity it concluded that Coalsonrsquos award was arbitrarily

made The circuit court remitted Coalsonrsquos punitive damages to

$50000 While it recognized that ldquo[t]here is no bright line or

formula to be applied[]rdquo the court reduced the award to ldquoless

than a ten percent ratiordquo

The circuit court entered an order granting Cancholarsquos

motion for remittitur regarding Coalsonrsquos punitive damages award

on February 8 2013 On February 28 2013 the court entered an

amended final order reflecting its remittitur ruling noting

Coalsonrsquos acceptance under protest summarizing the proceedings

denying Coalsonrsquos motion to reconsider and awarding post-

judgment interest Coalson filed a notice of appeal with the

circuit court on March 21 20131

1 Rule 59(a) states that a party must file her notice of

appeal within 30 days of entry of the trial courtrsquos final order Rule 55(b) provides for an extension of time to file a notice of appeal if the trial court ldquomodifie[s]rdquo its final order The rule also states that ldquothe time for filing the notice of appeal shall be computed from the date of final judgment entered following such modificationrdquo Rule 55(b) The circuit courtrsquos February 8 2013 order granting Cancholarsquos motion for remittitur

3

Facts

At approximately 630 pm on February 15 2009 Canchola

was driving and talking on his cellular telephone when he

attempted to turn left at an intersection on Waxpool Road in

Loudoun County He turned in front of a vehicle driven by

Coalson who had the right of way and was unable to stop before

colliding with the passenger door of Cancholarsquos vehicle

Coalson and her passenger Stemke suffered minor injuries

Canchola who was intoxicated at the time of the accident

had an extensive record of driving while intoxicated Between

1991 and 1997 Canchola was convicted six times of driving while

intoxicated and once of driving with a suspended license In

1996 his driverrsquos license was revoked In 2004 he was

convicted yet again of driving while intoxicated in California

The night before the accident Canchola stayed at a hotel

in Ashburn Virginia with his girlfriend Lori Rudegeair

(Rudegeair) who was visiting from Pennsylvania At brunch in

Alexandria on the day of the accident Canchola drank several

modified the original judgment and tolled the thirty-day time limit but it was not a final order because Coalson could still exercise her right to accept remittitur under protest pursuant to Code sect 801-3831 See Ragan v Woodcroft Village Apartments 255 Va 322 327 497 SE2d 740 743 (1998) (defining ldquofinal order or judgmentrdquo as ldquoone that disposes of the whole subject of the case and gives all relief contemplatedrdquo) On February 28 the circuit court entered an amended final judgment noting Coalsonrsquos acceptance under protest and Coalson filed her notice within thirty days of the February 28 order making her notice timely

4

glasses of champagne Afterward Canchola and Rudegeair walked

to a nearby pub and Canchola drank two rounds of his favorite

drink combination a vodka martini and light beer They left

the pub sometime after 330 pm when a police officer called

Canchola to inform him that a vehicle Canchola had reported

missing was located in Leesburg Virginia Because Canchola

slurred his speech while speaking to the police officer the

officer advised Canchola not to drive when he came to pick up

the vehicle

Despite the warning Canchola drove Rudegeairrsquos car to

Leesburg He stopped approximately a block from where he was

supposed to meet the officer and had Rudegeair drive the rest of

the way After Canchola finished speaking to the officer and

claiming the vehicle which was found in good condition and

after having been warned by the officer not to drive Canchola

left the scene as Rudegeairrsquos passenger They drove a short

distance waited for a few minutes and returned to Cancholarsquos

vehicle after the police officer left Canchola then drove his

vehicle to another bar Rudegeair followed in her car There

Canchola drank at least two rounds of the vodka and light beer

combination and three additional shots of liquor within a short

period of time

Canchola and Rudegeair left the bar to return to the hotel

in separate vehicles As Canchola approached the intersection

5

where he was to turn left into the hotel entrance he began a

conversation on his cellular telephone He was engaged in that

conversation when he turned left in front of the vehicle driven

by Coalson According to uncontradicted testimony of an expert

toxicologist Cancholarsquos blood alcohol content was almost twice

the legal limit at the time of the accident

After Coalson collided with Canchola Canchola removed his

vehicle from the scene of the accident parked it and left in

Rudegeairrsquos vehicle He was subsequently arrested upon

returning to the hotel Canchola urged Rudegeair not to tell

anyone that he had been driving his vehicle when the accident

occurred Rudegeair initially lied to police but later told the

truth under oath

Analysis

Coalson argues that the circuit court erred in remitting

her punitive damages award because the circuit courtrsquos decision

was based upon comparing her punitive damages award to Stemkersquos

punitive damages award and upon the proportionality of her

punitive damages award in relation to her compensatory damages

award Coalson asserts that proportionality is not the only

consideration in determining the excessiveness of punitive

damages under Virginia law and that a higher ratio between

compensatory and punitive damages was proper in this case due to

ldquothe egregiousness of [Cancholarsquos] conduct and the potential

6

harm that could have resulted from his actionsrdquo Coalson

emphasizes that neither this Court nor the United States Supreme

Court has created a ldquobright-line testrdquo Although she does not

base her appeal on constitutional grounds Coalson maintains

that Virginiarsquos remittitur analysis for punitive damages is

ldquoframed in and derived fromrdquo federal constitutional law

Consequently she urges the Court to consider ldquopotential harmrdquo

as well as actual harm in reinstating the juryrsquos punitive

damages award

Canchola contends that the circuit court properly

considered and applied all of the remittitur factors and

constitutional guidelines before granting his motion He

disputes Coalsonrsquos assertion that the Court should consider

ldquohypothetical damagesrdquo she could have sustained He argues that

considering what could have happened is not supported by this

Courtrsquos jurisprudence and would require a jury to engage in

improper speculation Canchola claims that in evaluating the

reprehensibility of his actions the proper focus should be on

his conduct at the time of the accident not on ldquoevery unsavory

act [he] committed over timerdquo According to Canchola Coalson

places too much emphasis on punishment and reprehensibility and

ignores proportionality

ldquoThe purpose of punitive damages is to provide lsquoprotection

of the public punishment to [the] defendant and a

7

warning and example to deter him and others from committing like

offensesrsquordquo Huffman v Love 245 Va 311 315 427 SE2d 357

361 (1993) (quoting Baker v Marcus 201 Va 905 909 114

SE2d 617 620 (1960)) This Court has observed that punitive

damages are meant to warn not to compensate the plaintiff Doe

v Isaacs 265 Va 531 539 579 SE2d 174 179 (2003) A

punitive damages award is generally left to the juryrsquos

discretion because there is no set standard for determining the

amount of punitive damages Worrie v Boze 198 Va 533 544

95 SE2d 192 201 (1956)

To justify remittitur a juryrsquos award must be so excessive

that it shocks the conscience of the trial court indicating

that the juryrsquos decision was motivated by ldquopassion corruption

or prejudicerdquo Condominium Servs Inc v First Ownersrsquo Assrsquon

of Forty Six Hundred Condo Inc 281 Va 561 580 709 SE2d

163 175 (2011) (quoting Smithey v Sinclair Refining Co 203

Va 142 146 122 SE2d 872 875-76 (1961)) When a trial

court considers whether to remit a juryrsquos punitive damages

award its review of the punitive damages award should consider

the ldquoreasonableness between the damages sustained and the amount

of the award and the measurement of punishment required whether

the award will amount to a double recovery the proportionality

between the compensatory and punitive damages and the ability

8

of the defendant to payrdquo Poulston v Rock 251 Va 254 263

467 SE2d 479 484 (1996) (citations omitted)

In evaluating whether punitive damages were properly

remitted this Court performs a de novo review examines the

record independently and gives ldquosubstantial weightrdquo to the trial

courtrsquos action Baldwin v McConnell 273 Va 650 657 643

SE2d 703 706 (2007) (quoting Poulston 251 Va at 263 467

SE2d at 484)

The circuit court reduced the amount of Coalsonrsquos punitive

damages award because the jury awarded the same amount in

punitive damages to Coalson as it did to Stemke despite their

different compensatory damages awards Also the circuit court

ruled that the 11786 ratio between Coalsonrsquos compensatory and

punitive damages was too high

We have not previously addressed whether it is proper to

compare punitive damages awards in evaluating excessiveness

However in Allied Concrete Co v Lester 285 Va 295 312 736

SE2d 699 708 (2013) this Court held that a trial court may

not compare verdicts to evaluate the excessiveness of

compensatory damages Likewise in John Crane Inc v Jones

274 Va 581 595 650 SE2d 851 858 (2007) the Court declined

to compare verdicts in determining whether compensatory damages

were excessive

9

We hold that the same rationale stated in John Crane Inc

is true regarding comparing punitive damages awards

ldquo[Comparing verdicts] is not probative of whether a verdict is

excessive rather that determination must be made based on the

facts and circumstances of each caserdquo Id The circuit courtrsquos

consideration of Coalsonrsquos and Stemkersquos relative ratios of

compensatory damages to punitive damages as a basis for granting

remittitur was error See Allied Concrete Co 285 Va at 312

736 SE2d at 7082

We agree with the circuit court that Cancholarsquos conduct was

egregious Canchola was driving while intoxicated and without a

license which had been revoked because of previous instances of

driving while intoxicated Despite having at least seven

convictions for driving while intoxicated on his record

Canchola drove on several occasions on the day of the accident

while drinking alcohol throughout the day He ignored a police

officerrsquos warning not to drive and engaged in deception so that

the officer would not discover he was driving after which he

drank even more and then attempted to drive again After

causing an accident that could have resulted in serious

2 We note that federal courts sometimes compare verdicts to

evaluate whether punitive damages are excessive as a matter of federal constitutional law See eg Saunders v Branch Banking amp Trust Co of Va 526 F3d 142 154 (4th Cir 2008) (comparing punitive damages awards in other Fair Credit Reporting Act cases)

10

injuries Canchola fled the scene and asked his girlfriend to

lie about his involvement

The jury was instructed that it could award Coalson damages

to compensate her for her injuries including bodily injuries

pain and mental anguish inconvenience and medical expenses

The court further instructed the jury that if it awarded Coalson

compensatory damages it could also award punitive damages if it

found that Canchola ldquoacted under circumstances amounting to a

willful and wanton disregard for the plaintiffsrsquo rightsrdquo The

punitive damages instruction clearly stated that the purpose of

punitive damages was to punish Canchola and to ldquoprevent others

from acting in a similar wayrdquo

Coalsonrsquos punitive damages are reasonably related to her

actual damages and to the degree of necessary punishment which

in this case is great See Philip Morris Inc v Emerson 235

Va 380 414 368 SE2d 268 287 (1988) ldquoGiven the clear

determination of the basis for each award and the ample evidence

supporting each award our independent review of the record does

not suggest double recovery in this caserdquo Baldwin 273 Va at

659 643 SE2d at 707 The ratio of Coalsonrsquos compensatory

damages to punitive damages awarded by the jury is 11786

This is high but given the reprehensible and dangerous nature

of Cancholarsquos conduct it is not ldquounreasonable or strikingly out

of proportionrdquo Id Poulston 251 Va at 263 467 SE2d at

11

484 The court expressly stated that the parties did not

present evidence on Cancholarsquos ability to pay3 See Condominium

Servs 281 Va at 581 709 SE2d at 175 (ldquo[A defendant who has

failed to present evidence of his ability to pay at trial]

cannot prevail before this Court on [his] claim that the amount

of punitive damages would be oppressiverdquo)

Cancholarsquos conduct was egregious enough to warrant a

punitive damages award and the amount of punitive damages

awarded by the jury does not shock the Courtrsquos conscience

Virginia precedent indicates that the circuit court should not

have remitted the punitive damages award

It is not clear from the record whether the circuit court

granted Cancholarsquos motion for remittitur on state law or federal

constitutional law grounds Thus we will analyze the award

considering relevant federal constitutional law as well

The United States Supreme Court has prescribed three

guidelines for appellate courts to use in reviewing whether

punitive damages are so excessive as to violate a defendantrsquos

right to due process ldquo(1) the degree of reprehensibility of the

defendantrsquos misconduct (2) the disparity between the actual or

potential harm suffered by the plaintiff and the punitive

damages award and (3) the difference between the punitive

3 Canchola acknowledged the same in his motion for

remittitur and during oral argument before the circuit court

12

damages awarded by the jury and the civil penalties authorized

or imposed in comparable casesrdquo State Farm Mut Auto Ins Co

v Campbell 538 US 408 418 (2003) The Supreme Court has

further provided factors for evaluating the first guideline

which is the most important of the three

[W]hether[] the harm caused was physical as opposed to economic the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others the target of the conduct had financial vulnerability the conduct involved repeated actions or was an isolated incident and the harm was the result of intentional malice trickery or deceit or mere accident

Id at 419

These considerations weigh against remittitur on due

process grounds Virginia certainly has an interest in

promoting public safety through prevention and deterrence of

driving while intoxicated See BMW of North America Inc v

Gore 517 US 559 568 (1996) (ldquo[T]he federal excessiveness

inquiry appropriately begins with an identification of the state

interests that a punitive award is designed to serverdquo)

Although the collision was an accident Canchola deliberately

chose to drive while severely intoxicated which resulted in

physical injury Cancholarsquos determined persistence to drive

while intoxicated and his reckless disregard for the safety of

others is evidenced by his seven prior driving while intoxicated

convictions and by his behavior on the day of the accident See

id at 576-77 (ldquo[E]vidence that a defendant has repeatedly

13

engaged in prohibited conduct while knowing or suspecting that

it was unlawful would provide relevant support for an argument

that strong medicine is required to cure the defendantrsquos

disrespect for the lawrdquo) Furthermore a defendantrsquos conduct

that endangers many is more reprehensible than conduct that only

endangers a few Philip Morris USA v Williams 549 US 346

357 (2007) Canchola puts other drivers at risk every time he

drinks and drives

The Supreme Court has repeatedly stated that ratios between

actual or potential harm and punitive damages should generally

be within single digits to satisfy due process requirements

State Farm 538 US at 425 Nevertheless it has also

recognized that higher ratios may be constitutional where a

defendantrsquos actions are exceptionally reprehensible but result

in small economic damage See id (reaffirming that there are

no ldquorigid benchmarksrdquo and indicating that courts should consider

each case ldquobased upon the facts and circumstances of the

defendantrsquos conduct and the harm to the plaintiffrdquo) see also

Saunders 526 F3d at 154 (citing federal appellate court

decisions upholding higher ratios) Driving while intoxicated

could result in death and it was fortunate that Coalson and

Stemke suffered relatively minor injuries ldquoWhile the circuit

court observed what it took to be a significant disparity

between the punitive award and the compensatory award that

14

contrast lsquodissipates when one considers the potential loss to

[Coalson] rsquordquo TXO Prod Corp v Alliance Res Corp 509

US 443 449-51 462 (1993) (upholding a ratio of 1526)

In upholding a ratio of 180 in Saunders the Fourth

Circuit observed that rigidly adhering to a single digit ratio

in all cases could sometimes prevent punitive damages from

fulfilling their purposes of punishment and deterrence 526

F3d at 154 For this reason the court determined that

remitting the punitive damages award in that case ldquowould leave

little deterrent or punitive effectrdquo Id The 11786 ratio in

this case is not excessive for Canchola has demonstrated a need

for stronger medicine to cure his disrespect for the law

Additionally a comparison of criminal and civil penalties

for habitually driving while intoxicated and for driving with a

revoked license supports the juryrsquos punitive damages award The

Commonwealth punishes repeated instances of driving while

intoxicated by increasing fines and mandatory sentences See

Code sectsect 182-266 and -270 In addition to the statutory scheme

for punishing driving while intoxicated the legislature has

prescribed punishments for habitual offenders in the form of

license revocation mandatory safety courses and increasing

penalties for driving without a license See eg Code sectsect

462-389 (mandatory revocation of license upon conviction of

driving while intoxicated) 462-3551 (mandatory participation

15

in safety course upon second offense of driving with revoked

license) 462-391 (mandatory three-year revocation for multiple

convictions of driving while intoxicated) see also sect 462-357

(minimum one year and maximum five yearsrsquo imprisonment for

felony offense of driving with revoked license while

intoxicated) These penalties demonstrate the seriousness with

which Virginia views the act of driving while intoxicated with a

suspended or revoked license See State Farm 538 US at 428

(noting that criminal penalties are less useful for determining

the precise amount of a punitive damages award) Upon

consideration of the constitutional guidelines provided by the

United States Supreme Court we conclude that the juryrsquos

punitive damages award is not excessive under the Due Process

Clause of the Fourteenth Amendment

Conclusion

Therefore we hold that the circuit court erred in granting

Cancholarsquos motion for remittitur because Coalsonrsquos punitive

damages award was not excessive under Virginia law nor did it

offend Cancholarsquos due process rights Accordingly the judgment

of the circuit court will be reversed the jury verdict awarding

Coalson $100000 in punitive damages will be reinstated and

final judgment will be entered on the verdict

Reversed and final judgment

16

JUSTICE McCLANAHAN dissenting

The jury awarded Coalson $100000 in punitive damages

which was nearly 18 times the amount of her compensatory damage

award of $5600 I would affirm the judgment of the circuit

court ordering remittitur of a portion of the punitive damages

and reducing the award to $50000 still almost 9 times the

amount of compensatory damages

While not expressly overruling this Courtrsquos precedent the

majority opinion makes clear that the ldquoreasonableness between

the damages sustained and the amount of the awardrdquo as well as

ldquothe proportionality between the compensatory and punitive

damagesrdquo Baldwin v McConnell 273 Va 650 658 643 SE2d

703 706 (2007) are hardly relevant to the circuit courtrsquos

consideration of whether to remit a portion of a punitive

damages award What is also clear is that the majority affords

little weight to the circuit courtrsquos action rather than the

ldquosubstantial weightrdquo the circuit court is due Id at 657 643

SE2d at 707 (quoting Poulston v Rock 251 Va 254 263 467

SE2d 479 484 (1996))

Following this Courtrsquos previous directives the circuit

court employed the proper analysis in considering Cancholarsquos

motion for remittitur In reaching its decision the circuit

court explained

17

I did take into consideration the Virginia Supreme Court factors reasonableness between the damages sustained and the amount of the award the measurement of punishment required whether the award will amount to a double recovery the proportionality between the compensatory and punitive damages and the ability of the Defendant to pay such that there is any evidence on those items for me

These are precisely the factors this Court has repeatedly

instructed circuit courts to consider See Baldwin 273 Va at

658 643 SE2d at 707 (judicial review upon motion for

remittitur ldquorequiresrdquo consideration of the following 1

reasonableness between damages sustained and amount of award

2 measurement of punishment required 3 whether award will

amount to double recovery 4 proportionality between the

compensatory and punitive damages and 5 ability of defendant

to pay) see also Condominium Servs Inc v First Ownersrsquo

Assrsquon of Forty Six Hundred Condo Inc 281 Va 561 580 709

SE2d 163 175 (2011) Poulston 251 Va at 263 467 SE2d at

484

Upon consideration of these factors the circuit court

concluded the punitive damages award to Coalson was excessive in

relation to her compensatory damages Finding the award

ldquoarbitraryrdquo the court noted it was ldquotroubling to [it] that

there is a significant disparity between the compensatory damage

award for one Plaintiff and the compensatory damage award for

18

the other Plaintiffrdquo while the ldquopunitive damage award in each

of the cases is one hundred thousand dollarsrdquo Furthermore

ldquoconsidering the proportionality between the compensatory and

the punitive damage award[ ]rdquo to Coalson the circuit court

found the almost 1-to-18 ratio disproportionate and excessive

particularly in light of the 1-to-7 ratio the compensatory

damages bore to the punitive damages in the verdict for Stemke1

The amount of the circuit courtrsquos remittitur was certainly

consistent with prior precedent This Court has found a

proportionality of punitive damages 25 times the compensatory

damages an acceptable ratio Poulston 251 Va at 263 467

SE2d at 484 Condominium Servs Inc 281 Va at 580 709

SE2d at 175 as well as a proportionality of punitive damages

approximately 66 and 67 times the compensatory damages Philip

Morris Inc v Emerson 235 Va 380 414 368 SE2d 268 287

(1988) In Stemkersquos case the punitive damages awarded were

approximately 7 times his compensatory damages which the

circuit court found reasonable In light of the ratios of

punitive to compensatory damage awards previously found

acceptable by this Court and the ratio found acceptable by the

circuit court in Stemkersquos case which involved the same accident

and conduct of the defendant I believe the circuit court

1 While the circuit court found Coalsonrsquos award excessive

it denied the motion for remittitur of Stemkes award

19

properly ordered the remittitur of a portion of Coalsonrsquos

punitive damages and reduction of her award from an amount that

was nearly 18 times her compensatory damages to an amount that

was nearly 9 times her compensatory damages

I disagree that it was error for the circuit court to

consider the punitive and compensatory damages awarded to Stemke

in determining the reasonableness between the damages sustained

by Coalson and the amount of her punitive damage award The

compensatory damages awarded to Stemke were 25 times more than

the compensatory damages awarded to Coalson yet as the circuit

court observed the punitive damages awarded to each were the

same leading the circuit court to conclude the amount of

punitive damages awarded to Coalson was arbitrary rather than

bearing a reasonable relation to the compensatory damages and

the punishment required See Stubbs v Cowden 179 Va 190

201 18 SE2d 275 280 (1942)(ldquoThe damages awarded should bear

some reasonable proportion to the real damages sustained and to

the measure of punishment required otherwise they indicate

prejudice or partialityrdquo)2 As compared to Stemkersquos punitive

damage verdict which was a little over 7 times the compensatory

2 The requirement that the punitive damages bear a

reasonable relationship to the actual damages has led this Court to remand an award of punitive damages to the circuit court for reconsideration when it has reversed a portion of the compensatory damages Little v Cooke 274 Va 697 719 652 SE2d 129 142 (2007)

20

damage verdict the jury verdict for Coalson against the same

defendant for the same conduct amounted to nearly 18 times the

verdict In other words the jury punished Canchola more

severely for the injuries sustained by Coalson than for the

injuries sustained by Stemke arising from the same accident If

not arbitrary the award was based on partiality toward Coalson

or prejudice against Canchola

This Courtrsquos prior holdings that prohibit the comparison of

jury verdicts awarding compensatory damages are not applicable

In John Crane Inc v Jones 274 Va 581 595 650 SE2d 851

858 (2007) and Rose v Jaques 268 Va 137 159 597 SE2d 64

77 (2004) this Court rejected the ldquoaverage verdict rulerdquo which

compares statewide or nationwide jury verdicts to reach an

ldquoaverage verdictrdquo because such a rule is not relevant to the

extent of actual pain and suffering experienced by the

plaintiff In Allied Concrete Co v Lester 285 Va 295 312

736 SE2d 699 708 (2013) the Court relied upon its holdings

in John Crane and Rose to conclude that it was error for the

trial court to compare injuries suffered by the plaintiffs3

However the rationale that a verdict for one personrsquos pain and

suffering is not a reasonable basis on which to judge the

3 As I stated in Allied Concrete 285 Va at 316 n3 736

SE2d at 710 n3 (McClanahan J concurring in part and dissenting in part) I did not agree that the trial court in that case engaged in improper verdict comparison

21

excessiveness of a verdict for another personrsquos pain and

suffering can only apply when the issue involves the

excessiveness of a compensatory damage award Ignoring the

rationale of these holdings the majority has adopted a bright-

line rule forbidding any comparison of verdicts even when such

a comparison is actually probative of the analysis and dictated

by reason

Indeed our own Court compares ratios found acceptable in

other cases that involve not only different plaintiffs but also

different defendants different conduct and different types of

actions entirely See Baldwin 273 Va at 659 643 SE2d at

707 (noting the punitive damage award approved in Poulston was

two and one-half times the compensatory award) Condominium

Servs Inc 281 Va at 581 709 SE2d at 175 (noting the

punitive damage award in Poulston of 25 times the compensatory

award and a punitive damage award in Philip Morris of 66 times

the compensatory award) In this case involving a single

automobile accident and a consolidated trial the circuit court

compared the ratios as between two injured plaintiffs against

one defendant who caused their injuries Arguably then the

circuit courtrsquos comparison of the verdicts in this case was more

probative to the issue of reasonableness and proportionality

than the comparisons this Court has made to ratios in unrelated

cases

22

Presumably we will ldquolsquogive substantial weight to the trial

courtrsquos action and affirm it unless from our view of the

record the trial court acted improperlyrsquordquo Baldwin 273 Va at

657 643 SE2d at 706 (quoting Poulston 251 Va at 263 467

SE2d at 484) Nevertheless despite the circuit courtrsquos

faithful application of the law and the obvious disparity of

ratios of compensatory to punitive damages between the Coalson

and Stemke awards each of which were based on the same conduct

of Canchola the majority finds the circuit courtrsquos action

improper In Allied Concrete 285 Va at 317 736 SE2d at

711 I expressed my belief that ldquofor all practical purposes the

last nail in the coffin of remittitur [of compensatory damages]

has been drivenrdquo It appears that remittitur of punitive

damages has suffered the same fate

PRESENT All the Justices THE BYRD THEATRE FOUNDATION OPINION BY v Record No 130691 JUSTICE ELIZABETH A McCLANAHAN FEBRUARY 27 2014 DAVID M BARNETT

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Melvin R Hughes Jr Judge

In this premises liability action The Byrd Theatre

Foundation (the Foundation) appeals a final judgment entered

against it in favor of David M Barnett (Barnett) The

Foundation argues that the circuit court erred in denying its

plea of charitable immunity and in failing to instruct the jury

on notice to a corporation We will affirm the judgment of the

circuit court

I BACKGROUND

The Foundation a non-profit corporation qualifying as a

tax-exempt organization under 26 USC sect 501(c)(3) owns the

Byrd Theatre a national historic landmark and motion picture

theater in Richmond that was opened in 1928 and houses a

Wurlitzer theater pipe organ installed the same year The

theater is operated by 1928 Limited Inc (1928 Limited) a

non-stock for-profit corporation formed by the Foundation

shortly after its purchase of the Byrd Theatre in 2007

Barnett a member of the Foundations organ restoration

subcommittee was injured in the theaters organ chamber when

2

he was performing repairs to the organ and a wooden plank he

stepped upon gave way causing him to fall four feet to the

floor1 Asserting that the wooden plank was not properly

secured Barnett filed suit against the Foundation and 1928

Limited claiming they failed to maintain the premises in a

reasonably safe condition and warn him of the dangerous

condition of the plank Following a jury trial the jury

rendered a plaintiffrsquos verdict against the Foundation and a

defense verdict in favor of 1928 Limited The circuit court

entered judgment on the jurys verdict after denying various

post-trial motions filed by the Foundation

II CHARITABLE IMMUNITY

Prior to trial the Foundation filed a plea of charitable

immunity Because Barnett stipulated that the Foundation is a

charitable organization operating in accordance with its

charitable purpose the issue presented to the circuit court

was limited to whether Barnett was a beneficiary of the

Foundation at the time of his accident

1 The organ chamber is located three stories above the floor level of the auditorium and houses the ranks of pipes and instruments and other parts of the organ necessary to power the organ and relay signals from the organ console to the music producing parts located in the chamber Wooden walking planks are located approximately four feet above the floor of the chamber to provide access to certain parts of the organ

3

A Evidence and Ruling on Plea

At the hearing on the plea the Foundation presented

evidence that pursuant to its articles of incorporation the

Foundation was formed [t]o cultivate promote and develop the

publics knowledge awareness understanding and appreciation

of the performing arts After its purchase of the Byrd

Theatre the Foundation through an amendment to its bylaws

narrowed its mission to owning and restoring the Byrd Theatre

as a grand movie palace and community resource In

performing this mission the Foundations principal activity is

raising funds to be used in its restoration of the theater

including the organ Because the Foundation does not have any

salaried employees it utilizes independent contractors to

perform any such restoration and repair of the theater and the

organ

Barnett is a long-time theater pipe organ enthusiast who

has held memberships and leadership positions in several organ

enthusiast clubs that are dedicated to the preservation and

appreciation of historic pipe organs He purchased a Wurlitzer

theater pipe organ in 1978 and over a two-year period

dismantled restored reassembled and installed the organ in

his home Although Barnett does not play the organ he is

fascinated with the sound and mechanism of theater organs and

has received visiting organists to play the organ installed in

4

his home He is passionate about the preservation and

restoration of the Byrd Theatre organ and has attended the Byrd

Theatre over the years to hear the organ played

From 1976 to 1990 Barnett consulted on and performed

restoration and repair work to the Byrd Theatre organ either as

an individual volunteer or with a group of volunteers from the

Virginia Theatre Organ Society In 2008 Barnett was asked by

Robert Gulledge Jr the house organist for the Byrd Theatre

to serve on the Foundations organ subcommittee of the theater

restoration committee2 As the steward of the organ the

organ subcommittee arranges for and oversees restoration of the

organ Barnetts duties were of an advisory nature and

included making contacts with organ technicians who might enter

into contracts with the Foundation for long-term restoration or

short-term renovations as well as reviewing the terms and

scope of work included in proposed contracts

During a period in which the subcommittee was without an

organ technician under contract Barnett volunteered to

undertake certain repairs to the organ that were needed to

2 Barnett testified that between 1990 and 2008 he did not perform work on the organ and was not affiliated with the Byrd Theatre though he would occasionally bring out-of-town company to see the theater or its lobby

5

address sound quality issues3 While making repairs to the

organ was not within the scope of his duties as a member of the

organ restoration subcommittee the work needed to be done

and nobody else was available to do it Barnett arranged to

perform the repairs with Linwood Lunde a former house organist

for the Byrd Theatre who was still affiliated with the theater

and obtained a key to the organ chamber from the theater

manager When Barnett fell in the organ chamber Lunde was in

the auditorium working at the organ console

Barnett testified that he volunteered to perform the

repairs since he had a passion to have the organ work properly

as a service to the Byrd Theatre and was happy to do that

because if that organ had not had people take an interest in

it it would have most likely gone silent Barnett further

testified that he gain[ed] satisfaction from knowing that [he]

was helping the theater and getting the work done that needed

to be done According to Barnett he didnt get any other

satisfaction out of it

Based on the evidence presented the Foundation asserted

that Barnett was a beneficiary of the Foundations charitable

3 Although an organ technician had been under contract he was unable to resolve the specific problem being addressed by Barnett and Lunde and the Foundation was in the process of terminating his contract and contracting with a new technician

6

purpose through the work he performed since the sound the

mechanism and the music are all improved which is something

hes interested in and passionate about In permitting him to

perform this work the Foundation argued Barnett was given

access to one of the few original installation theater organs

in the country and provided the unique opportunity to work on

the organ in pursuance of his long-time hobby and passion

Rejecting the Foundations argument the circuit court

concluded that Barnett was not the Foundations beneficiary at

the time of his accident Specifically the circuit court

found that [t]he [Foundations] accepted charitable charge is

to provide a venue for the performing arts and [t]he by-law

provision regarding restoration and preservation is aimed at

facilitating that charge of affording performing arts The

circuit court found no evidence that [the Foundation] was

extending and [Barnett] was receiving services or a charitable

benefit consistent with [the Foundations] charitable aims

Thus according to the circuit court [g]iven the

[Foundations] charitable purpose to provide a facility for the

performing arts and according to its by-laws to preserve and

restore the Byrd Theatre including the organ it cannot be

said that [Barnett] was the object of the charitys bounty at

the time [of his accident]

B Analysis

7

The doctrine of charitable immunity being firmly embedded in

the law of this Commonwealth is grounded in the public policy

that the resources of charitable institutions are better used

to further the institutions charitable purposes than to pay

tort claims lodged by the charitys beneficiaries Ola v

YMCA of S Hampton Roads Inc 270 Va 550 555 621 SE2d

70 72 (2005) Consistent with this policy an entity that is

organized for a recognized charitable purpose and operates in

accord with that purpose is immune from liability based upon

claims of negligence asserted by beneficiaries of the entitys

charitable bounty Ola 270 Va at 556 621 SE2d at 72-73

see also University of Va Health Servs Found v Morris 275

Va 319 331-34 657 SE2d 512 517-20 (2008) Straley v

Urbanna Chamber of Commerce 243 Va 32 35-38 413 SE2d 47

49-51 (1992) Thrasher v Winand 239 Va 338 340-42 389

SE2d 699 701-02 (1990) This is so because [o]ne who

accepts the benefit either of a public or a private charity

enters into a relation which exempts his benefactor from

liability for the negligence of his servants in administering

the charity at any rate if the benefactor has used due care

in selecting those servants Weston v Hospital of St

Vincent 131 Va 587 604 107 SE 785 791 (1921) (quoting

8

Hospital of St Vincent v Thompson 116 Va 101 109 81 SE

13 16 (1914)4 Thus [c]haritable immunity applies only to

claims of negligence asserted by those who accept the

charitable institutions benefits Morris 275 Va at 331

657 SE2d at 517

The dispositive question in this case therefore is whether

Barnett was in a beneficial relationship with the Foundation

at the time of his accident Ola 270 Va at 563 621 SE2d

at 77 As we have explained a beneficiary is a person who

receives something of value which the organization by its

charitable purpose undertakes to provide Id at 564 621

SE2d at 77 (emphasis added) Based on the Foundations

articles of incorporation and amended bylaws its charitable

aim was to cultivate an appreciation for the performing arts

through restoration and preservation of the Byrd Theatre and

the organ The Foundation was neither organized nor operated

for the purpose of providing theater organ enthusiasts an

opportunity to repair or restore the Byrd Theatre organ At

the time of Barnetts accident the Foundation was not

undertaking to provide Barnett with the benefit of an

4 A charity is immune from liability for the negligent acts of its agents and employees provided due care has been exercised in their selection and retention However the shield of immunity does not extend to acts of willful or gross negligence Ola 270 Va at 556 621 SE2d at 72

9

opportunity to repair its organ In short the Foundations

mission was to restore and preserve the theater including its

organ not to provide a venue for individuals such as Barnett

to practice their hobby of restoring organs

To the contrary the Foundation hired contractors to perform

the organ restoration and repairs In contrast to accepting a

service that the Foundation operated to provide Barnett was

providing a service to the Foundation in furtherance of the

Foundations own aim of preserving and restoring the organ

which otherwise would have been performed by a paid contractor

As Barnett testified he had a passion to have the organ work

properly as a service to the Byrd Theatre and was happy to do

that because if that organ had not had people take an interest

in it it would have most likely gone silent According to

Barnett he gained satisfaction from knowing that [he] was

helping the theater and getting the work done that needed to

be done Based on the evidence therefore the circuit court

properly found that Barnett was not receiving the bounty of the

Foundations charitable works at the time of his accident5

5 The Foundation readily acknowledges that Barnett was providing a service to the Foundation but argues that this fact alone should not exclude him from the Foundations class of beneficiaries We agree and therefore our holding does not stand for the proposition that all persons who provide a service or other benefit to the charity cannot be deemed

10

We reject the Foundations position that Barnetts passion for

the preservation and restoration of the Byrd Theatre organ and

receipt of personal satisfaction from contributing to such

restoration established a beneficial relationship with the

Foundation It could be said that most volunteers receive

gratification through their charitable works and that many

likely provide services consistent with their own hobbies or

interests But the receipt of personal satisfaction or

pleasure gained through the donation of ones services to a

charity does not create a beneficial relationship with the

charity for purposes of charitable immunity

In sum we find the [circuit] courts analysis well

reasoned and amply supported by the evidence Ola 270 Va at

559 621 SE2d at 74 Therefore the circuit court did not err

in denying the Foundations plea of charitable immunity

III JURY INSTRUCTIONS

The Foundation also asserts that the circuit court erred in

refusing to instruct the jury regarding imputed actual notice

from agents to corporations

beneficiaries thereof The adoption of any such rule would be inappropriate because the determination is necessarily driven by the specific facts of the case and in particular the activity engaged in by the tort claimant at the time of the accident

11

The evidence at trial proved that 1928 Limited as the

manager of the Byrd Theatre operated the theater and

maintained its premises except with regard to the organ which

was maintained by the Foundation Barnett presented evidence

that an employee of 1928 Limited had knowledge of the condition

of the wooden plank on which Barnett was standing when he fell

and argued that such notice should be imputed to 1928 Limited

and the Foundation The Foundation took the position that this

knowledge could not be imputed to the Foundation since the 1928

Limited employee learned of the condition of the plank many

years prior to his employment and in any event 1928 Limited

was not permitted to work on the organ

The Foundation offered the following jury instruction

which was rejected by the circuit court

A corporation knows a fact only as its officers and agents know it The corporation does not know all that its agents know but only what comes to the agents while acting for the corporation within the scope of their agency when it is the agents duty to report their knowledge to the general officer or agents of the company The Foundation argued that the proposed jury instruction

tracked the language from Rudolph v Farmers Supply Co 131

Va 305 310-11 108 SE 638 639 (1921) and properly

addressed the imputed notice issue raised by Barnett

According to the Foundation [n]otice was a critical issue in

the case and an instruction on imputed actual notice was

12

necessary for the jury to determine whether [the employees]

knowledge from the early 1980s imputed to 1928 [Limited] and

the Foundation6

It is unnecessary for us to determine whether the circuit

court erred in refusing the Foundations proposed jury

instruction on imputed notice The jury found in favor of 1928

Limited and therefore absolved the Foundation from any

liability arising from 1928 Limiteds conduct See Virginia

State Fair Assn v Burton 182 Va 365 372 28 SE2d 716

719 (1944) (verdict in favor of agent and against principal

necessarily exonerated principal of liability arising from

agents alleged negligence) Furthermore the jury was

entitled to find the Foundation liable based on the

Foundations independent negligence without regard to 1928

Limiteds liability or conduct7 See Wintergreen Partners Inc

6 Barnett also offered an instruction on imputed notice that was refused by the circuit court

7 In particular the jury was given the following instruction governing premises liability of owners or occupants

An owner or occupant of premises does not guarantee an invitees safety but has the duty

(1) to use ordinary care to have the premises in a reasonably safe condition for an invitees use consistent with the invitation unless the invitee knows or should have known of the unsafe condition and

(2) to use ordinary care to warn an invitee of any unsafe condition about which the owner or occupant knows or by

13

v McGuireWoods LLP 280 Va 374 379 698 SE2d 913 916

(2010) Therefore because the jury rejected a theory of

liability based on 1928 Limiteds knowledge of the unsafe

condition of the wooden plank but rather based its verdict on

the separate negligence of the Foundation it is immaterial

whether notice by 1928 Limiteds employee could properly be

imputed to 1928 Limited and the Foundation8 Virginia State

Fair Assn 182 Va at 372 28 SE2d at 719 Accordingly any

error by the circuit court in failing to instruct the jury on

imputed notice would be harmless

IV CONCLUSION

the use of ordinary care should know unless the unsafe condition is open and obvious to a person using ordinary care for his own safety If an owner or occupant fails to perform either or both of these duties then it is negligent

8 The Foundation contends that Barnett is precluded from arguing on appeal that the jury could properly find the Foundation independently negligent based on the premises liability instruction because the only theory Barnett argued to the jury was that the Foundation was liable based on knowledge imputed from 1928 Limiteds employee to 1928 Limited and the Foundation This contention cannot be sustained because the Foundation did not object to the premises liability instruction and has not assigned error related to the sufficiency of the evidence to support a verdict based on that instruction See Wintergreen Partners 280 Va at 379 689 SE2d at 916

14

For the foregoing reasons we will affirm the judgment of

the circuit court

Affirmed

  • Commonwealth v Peterson
    • OPINION BY
      • 11-05-13 Ford 130837 Br Amicus
      • 130627 VTLA Amicus Brief of VTLA opening amicus brief
      • 130691 amicus final
        • 130691amicuscovpdf
        • 130691amicustocpdf
        • 130691amicuspdf
          • 3-4-14 Rec No 130627 VTLA Amicus Reply Brief
          • Coalson v Canchola
          • The Byrd Theatre Foundation v Barnett

4

(hereinafter ldquoPolicy Grouprdquo) to assess the situation and handle

the release of information pertaining thereto Shortly after 8

am President Steger spoke with Wendell Flinchum the Chief of

the Virginia Tech Police Department and learned that a female

and a male student had been shot at least one of whom was dead

that the shootings appeared targeted likely domestic in nature

and that the shooter had likely left the campus

The Policy Group convened around 830 am During this

meeting Steger learned that the police were on the lookout for

the female victimrsquos boyfriend as a person of interest One of

the grouprsquos members Ralph Byers the Executive Director for

Government Relations notified the Governorrsquos Office at

approximately 845 am of what had happened in West Ambler

Johnston Hall but indicated that the information was not

releasable because Virginia Tech was working on a press release

The email to the Governorrsquos office stated ldquoNot releaseable yet

One student dead one wounded Gunman on loose State

police are involved No details available yetrdquo Byers claimed

that he used the phrase ldquo[g]unman on the looserdquo as shorthand for

the ldquoperpetrator has not been apprehendedrdquo Virginia Tech

wanted to notify the next of kin before releasing the

information to the public Steger instructed a Policy Group

member to compose a campus notice and following revisions and a

technical difficulty with the computer system it was sent out

5

by campus-wide ldquoblast e-mailrdquo at 926 am The notice stated

that ldquo[a] shooting incident occurred at West Ambler Johnston

[Hall] earlier this morning Police are on the scene and

investigatingrdquo and advised students to be alert for anything

suspicious At 928 am the Policy Group also sent a message

to the Board of Visitors stating ldquo[t]wo students were shot this

morning one fatally We will be back in touch with more

information as soon as it is known Please do NOT release the

information about the fatalityrdquo

At approximately 945 am the mass shooting at Norris Hall

began At 950 am a second campus-wide ldquoblast e-mailrdquo was

sent stating that ldquo[a] gunman is loose on campus Stay in

buildings until further notice Stay away from all windowsrdquo

Erin Peterson 18 and Julia Pryde 23 were among the victims

murdered in Norris Hall Police later identified Seung-Hui Cho

as the shooter

After the Norris Hall shooting police realized that the

patterns on shoes worn by Cho did not match the prints found in

West Ambler Johnston Hall The day after the shootings police

learned that the gun used to murder the two people in West

Ambler Johnston Hall matched the one Cho used in Norris Hall

Police later found bloody clothing belonging to Cho that had the

DNA from one of the victims of the West Ambler Johnston Hall

shooting on it

6

The Administrators filed wrongful death claims in

Montgomery County Circuit Court against Chorsquos estate the

Commonwealth and eighteen other individuals including Steger

The cases were consolidated but following certain non-suits and

pretrial orders (see companion appeal Peterson v Commonwealth

Record No 121720) the Commonwealth was the sole defendant at

trial The Administrators claimed that the Commonwealth was

liable for the actions of the Commonwealthrsquos employees at the

university pursuant to the Virginia Tort Claims Act (ldquoVTCArdquo)

Code sect 801-1951 et seq They alleged that a special

relationship existed between the Commonwealthrsquos employees at

Virginia Tech and Peterson and Pryde that gave rise to the

Commonwealthrsquos duty to warn Peterson and Pryde of third party

criminal acts and that the Commonwealthrsquos failure to warn them

was the proximate cause of their deaths and the Administratorsrsquo

losses The Commonwealth argued that there was no foreseeable

harm to the students and that the evidence failed to establish

that any alleged breach of a duty of care was the proximate

cause of the deaths

The Commonwealth objected to several jury instructions

including Instruction 3 which provided in summary that

Peterson and Pryde were business invitees of Virginia Tech and

enjoyed a special relationship with the university The

instruction further stated that this status imposed a duty on

7

the university employees to maintain a safe campus Based on

this instruction the jury was told that if they found that the

university employees should have reasonably foreseen that injury

arising from the criminal conduct of a third party might occur

but failed to warn students the Commonwealth should be found

negligent The instruction also stated that the jury should

find in favor of the Administrators if that failure to warn was

the proximate cause of the alleged injuries The jury returned

a verdict in favor of the Administrators awarding $4 million to

each family

Upon the Commonwealthrsquos motion the court reduced each

verdict to $100000 in accordance with the VTCA Code sect 801-

1953 The Commonwealth moved to set aside the jury verdict

arguing it was contrary to well-established Virginia law that a

special relationship does not exist under the circumstances

here citing Burns v Gagnon 283 Va 657 668 727 SE2d 634

641 (2012) which was decided post-trial The Commonwealth

again argued that the verdict should be set aside because the

evidence was insufficient as a matter of law to give rise to a

duty to protect from third party criminal acts Alternatively

the Commonwealth argued that the trial court should order a new

trial due to erroneous jury instructions The trial court

denied these motions This appeal follows

II ANALYSIS

8

On appeal the Commonwealth argues that

1 The circuit court erred in finding that the Commonwealth Virginia Tech andor their employees had a special relationship with Peterson and Pryde that imposed a duty and therefore erred in instructing the jury that there was such a duty in submitting the case to the jury and in entering judgment on the juryrsquos verdict 2 Even assuming that the Commonwealth Virginia Tech or their employees had a relevant special relationship under Virginia law the evidence adduced did not give rise to a duty to warn of third party criminal acts and therefore the circuit court erred in submitting the case to the jury and in entering judgment on the juryrsquos verdict 3 The circuit court erred in finding that there was sufficient evidence regarding causation to raise a jury issue and therefore erred in submitting the case to the jury and in entering judgment on the juryrsquos verdict 4 Even if there were a theory that might have allowed plaintiffs to recover the circuit courtrsquos instructions (2 3 4 10 amp 11) misstated Virginia law regarding the existence of a relevant special relationship the existence and type of duty purportedly owed the standard that triggers a duty to warn of third party criminal acts as well as regarding the reasonable expectation of parents and students at a university and therefore the juryrsquos verdict must be overturned

We hold that the facts in this case do not give rise to a duty

for the Commonwealth to warn students of the potential for third

party criminal acts Therefore we do not reach the

Commonwealthrsquos causation or jury instruction arguments

9

As a general rule a person does not have a duty to warn or

protect another from the criminal acts of a third person

Thompson v Skate America Inc 261 Va 121 128-29 540 SE2d

123 127 (2001) ldquoThis is particularly so when the third person

commits acts of assaultive criminal behavior because such acts

cannot reasonably be foreseenrdquo Burdette v Marks 244 Va 309

311-12 421 SE2d 419 420 (1992) However the general rule

does not apply in all situations ldquolsquoThere are narrow exceptions

to this rulersquo but the application of those exceptions lsquois

always fact specific and thus not amenable to a bright-line

rule for resolutionrsquordquo Taboada v Daly Seven Inc 271 Va

313 322-23 626 SE2d 428 432 (2006) (alteration omitted)

(quoting Yuzefovsky v St Johnrsquos Wood Apartments 261 Va 97

106 540 SE2d 134 139 (2001)) affrsquod on rehrsquog 273 Va 269

270 641 SE2d 68 68 (2007) Before an exception comes into

play the facts must establish the existence of a special

relationship

ldquolsquo[W]hether a legal duty in tort exists is a pure question

of lawrsquordquo to be reviewed de novo Gagnon 283 Va at 668 727

SE2d at 642 (quoting Kellermann v McDonough 278 Va 478

487 684 SE2d 786 790 (2009) To prevail

the plaintiff must establish that there is a special relationship either between the plaintiff and the defendant or between the third party criminal actor and the defendant The necessary special

10

relationship may be one that has been recognized as a matter of law or it may arise from the factual circumstances of a particular case

Yuzefovsky 261 Va at 107 540 SE2d at 139 (citation and

footnote omitted) For the purposes of this opinion we will

assume without deciding that the threshold requirement that such

a special relationship exists is satisfied on these facts

Having assumed without deciding that a special relationship

exists the question becomes whether as a matter of law under

the facts and circumstances of this case the Commonwealth had a

duty to warn students about the potential for third party

criminal acts ldquoThe law determines the duty and the jury upon

the evidence determines whether the duty has been performedrdquo

Acme Markets Inc v Remschel 181 Va 171 178 24 SE2d 430

434 (1943)

A review of our prior cases indicates that in order for a

duty to be imposed upon a defendant the degree of the

foreseeability of harm that the plaintiff must establish depends

on the nature of the special relationship We have recognized

two levels of foreseeable harm known or reasonably foreseeable

harm Taboada 271 Va at 325-26 626 SE2d at 434 and

ldquoimminent probability of harmrdquo the heightened degree of

foreseeability that arises where the defendant ldquoknows that

criminal assaults against persons are occurring or are about to

11

occur on the premisesrdquo based upon ldquonotice of a specific danger

just prior to the assaultrdquo Thompson 261 Va at 128-29 540

SE2d at 127 (citing Wright v Webb 234 Va 527 533 362

SE2d 919 922 (1987)) Certain special relationships such as

that of a common carrierpassenger innkeeperguest and

employeremployee impose a duty to warn when the danger of third

party criminal acts is known or reasonably foreseeable See

Taboada 271 Va at 325-26 626 SE2d at 434 (innkeeperguest)

AH v Rockingham Publishing Co Inc 255 Va 216 221 495

SE2d 482 486 (1998)(employeremployee) Connell v Chesapeake

amp Ohio Ry Co 93 Va 44 62 24 SE 467 470 (1896)(common

carrierpassenger)

In instances however where the special relationship was

that of business ownerinvitee or landlordtenant we have

imposed a duty to warn of third party criminal acts only where

there was ldquoan imminent probability of injuryrdquo from a third party

criminal act Yuzefovsky 261 Va at 109 540 SE2d at 1413

3 In this case the circuit court instructed the jury that there was a business ownerinvitee relationship between the Commonwealth and the students and that there was a duty to warn if the danger was reasonably foreseeable This was error because our case law is clear that when the relationship is that of business ownerinvitee the duty to warn arises only if there is an imminent probability of harm from a third party criminal act However because we conclude that under the facts of this case no duty was established under the more lenient standard of foreseeability this distinction is not dispositive in the resolution of this appeal

12

Thus the duty to warn of danger from third party criminal acts

has remained an exception to the general rule Burdette 244

Va at 312-13 421 SE2d at 421

Where the standard was that the duty to warn or protect was

present when there was ldquoan imminent probability of injuryrdquo from

a third party criminal act this Court has held that the duty to

warn existed as a matter of law in the unusual situation where

an on-duty police officer failed to intervene when he responded

to the scene of a motor vehicle accident and observed one driver

attack a bystander who had stopped to render assistance Id at

310-11 421 SE2d at 419-20 More frequently however this

Court has concluded that facts relied upon in particular cases

fail to establish a duty as a matter of law to protect against

third party criminal acts See eg Dudas v Glenwood Golf

Club Inc 261 Va 133 140 540 SE2d 129 133 (2001)

(holding that two robberies within the month preceding the

attack on plaintiff was not a ldquolevel of criminal activityrdquo that

would ldquohave led a reasonable business owner to conclude that its

invitees were in imminent danger of criminal assaultrdquo)

Yuzefovsky 261 Va at 109 540 SE2d at 141 (concluding as a

matter of law that employee misrepresentations about the safety

of an apartment complex where in one year 656 crimes including

113 against persons had been reported failed to give rise to

the duty to warn or protect from harm because these facts failed

13

to establish ldquoan imminent probability of injury to [the

plaintiff] from ardquo criminal act of a third party) Burns v

Johnson 250 Va 41 42-45 458 SE2d 448 449-52 (1995) (trial

court erred as a matter of law in failing to hold that the

fifteen minutes between an individual making sexual advances to

a store clerk and abducting and raping a store patron did not

give rise to the duty to protect against third party criminal

acts)

In cases where it was alleged that a special relationship

gave rise to the duty to warn because the danger of harm from

third party criminal acts was known or reasonably foreseeable

this Court has similarly frequently concluded that the duty to

warn was not present as a matter of law See AH 255 Va at

221-22 495 SE2d at 486 (stating that an employer has no duty

to protect an employee from third party criminal acts unless the

danger is ldquoknown or reasonably foreseeablerdquo as a matter of law

and concluding that knowledge of similar assaults in the

preceding five years was not sufficient) Connell 93 Va at 58

24 SE at 469 (common carrier ldquocannot be deemed to have

anticipated nor be expected to guard and protect [a passenger]

against a crime so horrid and happily so rare as that of

murderrdquo)

In only rare circumstances has this Court determined that

the duty to protect against harm from third party criminal acts

14

exists See Taboada 271 Va at 325-26 626 SE2d at 434

(concluding that like a common carrier an innkeeper has a

ldquoduty of utmost care and diligencerdquo to protect guests from third

party criminal acts where the danger is known or reasonably

foreseeable and holding that where -- over a three year period

immediately prior to the attack -- hotel employees had called

police 96 times to report criminal conduct including robberies

malicious woundings shootings and other criminally assaultive

acts the hotel knew of the danger and had received a warning

from police that ldquoguests were at a specific imminent risk of

harmrdquo these were sufficient averments to survive a demurrer

and if proven to establish the duty as a matter of law)

Here even if this Court were to apply the less stringent

standard of ldquoknow or have reasonably foreseenrdquo there simply are

not sufficient facts from which this Court could conclude that

the duty to protect students against third party criminal acts

arose as a matter of law In this case the Commonwealth knew

that there had been a shooting in a dormitory in which one

student was critically wounded and one was murdered The

Commonwealth also knew that the shooter had not been

apprehended At that time the Commonwealth did not know who

the shooter was as law enforcement was in the early stages of

its investigation of the crime However based on

representations from three different police departments

15

Virginia Tech officials believed that the shooting was a

domestic incident and that the shooter may have been the

boyfriend of one of the victims Most importantly based on the

information available at that time the defendants believed that

the shooter had fled the area and posed no danger to others

This is markedly different from the situation presented in

Taboada 271 Va at 325-26 626 SE2d at 434 where police had

specifically warned the innkeepers that guests were at risk

prior to the time that the plaintiff in that case was shot by a

trespasser Based on the limited information available to the

Commonwealth prior to the shootings in Norris Hall it cannot be

said that it was known or reasonably foreseeable that students

in Norris Hall would fall victim to criminal harm Thus as a

matter of law the Commonwealth did not have a duty to protect

students against third party criminal acts

III CONCLUSION

Assuming without deciding that a special relationship

existed between the Commonwealth and Virginia Tech students

based on the specific facts of this case as a matter of law no

duty to warn students of harm by a third party criminal arose

Thus we will reverse the trial courtrsquos judgment holding that a

duty arose and enter final judgment in favor of the

Commonwealth

Reversed and final judgment

IN THE

Supreme Court of Virginia

MICHELLE C HARMANAdministratrix of the ESTATE of

JOSEPH A GRANA III Deceasedand

STEPHANIE E GRANA BEMBERISPersonal Representative of the ESTATE OF

JOSEPH E GRANA SR DeceasedAppellants

v

HONEYWELL INTERNATIONAL INCAppellee

RECORD NO 130627

BRIEF AMICUS CURIAEOF VIRGINIA TRIAL LAWYERSrsquo ASSOCIATION

IN SUPPORT OF APPELLANTS

LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond Virginia 23219 (804) 644-0477A Division of Lantagne Duplicating Services

Avery T Waterman Jr Esq (VSB No 27118)Patten Wornom Hatten amp Diamonstein LC12350 Jefferson Avenue Suite 300Newport News Virginia 23602Telephone (757) 223-4567Facsimile (757) 223-4499Awatermanpwhdcom

i

TABLE OF CONTENTS

Table of Authorities v Amicus Statement of Interest 1 Nature of the Case and Material Proceedings Belowhelliphelliphelliphelliphelliphelliphellip 2 Statement of Facts 2 0 CLARIFICATION OF OPINIONShelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 2 1 ASSIGNMENT OF ERROR 1helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 3 2 ASSIGNMENT OF ERROR 2helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 3 3 ASSIGNMENT OF ERROR 3helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 3 4 ASSIGNMENT OF ERROR 4helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 4 5 ASSIGNMENT OF ERROR 5helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 4 Argument 5 A THE TRIAL COURT ADMITTING THE HEARSAY MOONEY REPORT IS PREJUDICIAL ERRORhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 7 1 Public policy opposes the hearsay Mooney Reporthelliphelliphelliphellip 7 2 The Mooney Report is not admissible as ldquoreliable authorityrdquo under sect801-4011helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 11 a Honeywellrsquos expert did not testify he relied on the whole

Mooney Report in forming his opinion helliphelliphelliphelliphelliphelliphelliphellip 12 b Honeywellrsquos expert did not establish any of the Mooney Report is reliable authority helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 13 c The Mooney Report inherently is not reliable authorityhellip 13

ii

d The Mooney Report is not admissible as an exhibithelliphellip 15 3 The Mooney Report is not admissible as ldquofacts circumstances and datardquo under sect801-4011helliphelliphelliphelliphelliphelliphellip 15 4 The Mooney Report being admitted especially by exhibit and emphasized in closing is prejudicialhelliphelliphelliphelliphelliphelliphelliphelliphellip 16 B THE TRIAL COURT CONDONING ldquoABSENCE OF OTHER

INCIDENTSrdquo ARGUMENT IS PREJUDICIAL ERRORhelliphelliphelliphellip 19 1 Public policy opposes Honeywellrsquos absence of other incidents argument helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 19 2 Evidence and argument of Honeywellrsquos ldquosafety historyrdquo properly was excluded at pretrialhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 22 3 Honeywell violating Virginia law and pretrial Order in closing over objection improperly was condoned at trialhellip 22 4 Honeywellrsquos violations and judgersquos condonations were

prejudicialhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 25 C THE TRIAL COURT REFUSING TO GIVE ADMINISTRATORSrsquo

CLEAR COMPLETE CORRECT MULTIPLE PROXIMATE CAUSE INSTRUCTION IS PREJUDICIAL ERRORhelliphelliphellip 26

1 Public policy demands the jury be instructed fullyhelliphelliphelliphellip 26 2 There may be more than one proximate cause and other

proximate causes need not be excluded with certainty and Administratorsrsquo jury instruction so informed the jury but it was refused for not being a Model Jury Instructionhelliphelliphellip 28 3 Administrators are entitled to correct jury instructions supporting their theory regardless whether the scintilla-plus of credible evidence is in their andor Honeywellrsquos casehellip 30

iii

4 Refusal of Administratorsrsquo multiple-cause instruction is prejudicialhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 32 D THE TRIAL COURT ADMITTING ABELrsquoS ldquoCRITICAL WITNESSrdquo

OPINIONS IS PREJUDICIAL ERRORhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 32 1 Public policy opposes Abelrsquos expert opinionshelliphelliphelliphelliphelliphellip 33 2 Abelrsquos opinions are unfounded and improperhelliphelliphelliphelliphelliphellip 34 a They are unfounded as an experthelliphelliphelliphelliphelliphelliphelliphellip 35 b They are improper as a laymanhelliphelliphelliphelliphelliphelliphelliphelliphellip 36 3 Abelrsquos opinions are speculativehelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 36 4 Abelrsquos opinions are hearsayhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 37 5 Abelrsquos opinions are irrelevanthelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 37 6 Abelrsquos opinions invade the juryrsquos provincehelliphelliphelliphelliphelliphelliphellip 38 7 Abelrsquos opinions are prejudicialhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 39 E THE TRIAL COURT ADMITTING NORMANrsquoS LAY OPINIONS AND HEARSAY IS PREJUDICIAL ERRORhelliphelliphelliphelliphelliphelliphelliphelliphellip 40 1 Public policy opposes Normanrsquos lay opinionshelliphelliphelliphelliphellip 41 2 Normanrsquos lay opinions are unfoundedhelliphelliphelliphelliphelliphelliphelliphelliphellip 42 3 Normanrsquos lay opinions are irrelevanthelliphelliphelliphelliphelliphelliphelliphelliphellip 42 4 Normanrsquos lay opinions are speculativehelliphelliphelliphelliphelliphelliphelliphellip 43 5 Normanrsquos testimony is hearsayhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 43 6 Normanrsquos lay opinions and hearsay are prejudicialhelliphelliphellip 43

iv

Conclusion 44 Certificate 45 Addendum 1 (12114) Letter of Roger T Creager Esq [Appellantsrsquo Counsel] 2 (12114) Email of Patrick Hanes Esq [Appelleersquos Co-Counsel] 3 (12114) Email of Austin W Bartlett Esq [Appelleersquos Co-Counsel]

v

TABLE OF AUTHORITIES

CASES

Beavers v Commonwealth 245 Va 268 (1993)helliphelliphelliphelliphelliphelliphelliphelliphellip 24 Bostic v About Women OBGYN PC 275 Va 567 (2008) passim Burns v Gagnon 283 Va 657 (2012)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip15 36 Cheng v Commonwealth 240 Va 26 (1990)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 24 Chesapeake amp Potomac Tel v Sisson amp Ryan 234 Va 492 (1987)hellip 9 Claiborne v Parrish 2 Va (2 Wash) 146 (1795)helliphelliphelliphelliphelliphelliphelliphelliphellip 7 Combs v Norfolk and Western Ry Co 256 Va 490 (1998)helliphelliphelliphellip 35 Commonwealth v Wynn 277 Va 92 (2009)7 16 37 Dandridge v Marshall 267 Va 591 (2004)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 6 Doe v Dewhirst 240 Va 266 (1990)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 36 Ford Motor Co v Boomer 285 Va 141 (2013)helliphelliphelliphelliphelliphelliphelliphelliphelliphellip 29 Goins v Wendys International Inc 242 Va 333 (1991)19 20 25 Hale v Maersk Line Ltd 284 Va 358 (2012)helliphelliphelliphelliphelliphelliphelliphelliphelliphellip 6 Hinkley v Koehler 269 Va 82 (2005)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 6 Holmes v Levine 273 Va 150 (2007)27 30 31 Jones v Ford Motor Co 263 Va 237 (2000)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 20 Keesee v Donigan 259 Va 157 (2000) 35 Lawlor v Commonwealth 285 Va 187 (2013) 30

vi

May v Caruso 264 Va 358 (2002)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 13 McClung v Commonwealth 215 Va 654 (1975)helliphelliphelliphelliphelliphelliphelliphelliphellip 31 McMunn V Tatum 237 Va 558 (1989) 16 Norfolk amp W Railway v Puryear 250 Va 559 (1995) 7 Pettus V Gottfried 269 Va 69 (2005) 37 Reid v Baumgardner 217 Va 769 (1977) 26 Sanitary Grocery Co Inc v Steinbrecher 183 Va 495 (1945)helliphelliphellip 19 Stottlemyer v Ghramm 268 Va 7 (2004)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 24 Virginia Passenger amp Power Co v Fisher 204 Va 121 (1905)helliphelliphellip 24 Velocity Express Mid-Atlantic v Hugen 266 Va 188 (2003) 21 25 26 Weinberg v Given 252 Va 221 (1996)13 16 White Consolidated Industry Inc v Swiney 237 Va 23 (1989) 29 Wood v Woolfolk Properties Inc 258 Va 133 (1999)helliphelliphelliphelliphellip19 25 Wright v Kaye 267 Va 510 (2004)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 43

STATUTES

Virginia Code sect801-3792helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 29 Virginia Code sect801-4011helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip passim

RULES OF EVIDENCE

Va R Evid 2701helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 36

vii

Va R Evid 2706(a)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 9

Va R Evid 2801helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 8

Va R Evid 2802helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 8

RULES OF COURT

Va Sup Ct R 530helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 1

AUTHORITATIVE TREATISES

CHARLES E FRIEND amp KENT SINCLAIR THE LAW OF EVIDENCE IN VIRGINIA (7th ed 2013)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 8 9

1

AMICUS STATEMENT OF INTEREST1 The Virginia Trial Lawyers Association (ldquoVTLArdquo) is an organization of

over 2000 Virginia attorneys dedicated to promoting professionalism within

the trial bar enhancing the competence of trial lawyers protecting and

preserving individual liberties and access to justice and supporting an

efficient and constitutionally sound judicial system Pursuant to Rule 530 of

the Rules of the Supreme Court of Virginia VTLA has obtained the written

consent of all counsel for the filing of this Brief Amicus Curiae See

Addendum (attached)

This appeal presents issues that are important to Virginia law and trial

practice in Virginia courts The appeal concerns not only the rights of the

parties to this case but also the rights of litigants and the nature of trial

practice throughout the Commonwealth

Assignment of Error 1 implicates Virginiarsquos well-settled rule against

hearsay in general and its limited statutory exception for ldquoreliable authorityrdquo

in particular Assignment of Error 2 implicates Virginiarsquos well-settled rule

against ldquoabsence of other incidentsrdquo evidence and by implication Virginiarsquos

1 Amicus affirms that no counsel for a party authored this brief in whole or in part and that no person or entity made a monetary contribution to its preparation or submission

2

mirror-image rule against ldquofact of other incidentsrdquo evidence Assignment of

Error 3 implicates litigant and jury entitlement to clear complete correct

instructions under Virginia law including particularly on the issue of multiple

proximate causes Companion Assignments of Error 4 and 5 implicate

Virginiarsquos longstanding limits of lay and expert opinions and subjective

impressions

NATURE OF THE CASE AND MATERIAL PROCEEDINGS BELOW

VTLA adopts Administratorsrsquo Nature of the Case and Material

Proceedings Below

STATEMENT OF FACTS

VTLA adopts Administratorsrsquo Statement of Facts However it

emphasizes the following testimony exhibits and incidents of trial

0 CLARIFICATION OF OPINIONS

Administratorsrsquo experts agreed with Honeywellrsquos experts that at

takeoff the trim setting was in the normal position JA1074-10752 However

Administratorsrsquo expert (Dr Sommers) opined that during flight the trim

setting got out of normal position and into ldquonose lowrdquo position because of

runaway trim caused by Honeywellrsquos autopilot Id

2 Joint Appendix is ldquoJArdquo Trial Transcript is ldquoTTrdquo Record is ldquoRrdquo

3

1 ASSIGNMENT OF ERROR 1

Among other hearsay fact and hearsay opinion the 5-page hearsay

Mooney Report introduced in evidence by Honeywell as Exhibit 11 under

Virginia Code sect801-4011 marqueed this crucial hearsay expert opinion

Conclusions The IIC Lycoming representative and myself did not find any evidence that the aircraft engine was not capable of producing power or that the aircraft was uncontrollable at the time of accident

JA463 (emphasis added) This ldquoabsent expertrdquo opinion (A) was the core

issue of the case ie defective autopilot and (B) was not part of the

National Transportation Safety Board (ldquoNTSBrdquo) report admitted JA447-458

2 ASSIGNMENT OF ERROR 2

Contrary to pretrial Order five (5) times in closing Honeywell argued

ldquoabsence of other incidentsrdquo as proof of no product defect or causation

JA1584 1591-1592 and 1603 Despite Administrators repeatedly objecting

and requesting a curative instruction JA1584 and 1605-1606 judge

overruled Administrators and condoned Honeywell JA1584 and 1605-

1607

3 ASSIGNMENT OF ERROR 3

Administrators requested Jury Instruction 11 which was clear

complete and correct on the core issue of multiple proximate cause JA352

4

and which was not covered by any other instructions But Honeywell

objected solely on the basis that it was not the Model Jury Instruction and

the judge sustained Honeywellrsquos objection on that ground JA1545-1547

4 ASSIGNMENT OF ERROR 4

Honeywell considered William Abel a ldquopretty critical witnessrdquo for the

defense JA657 But the judge only made a ldquoquasi-determinationrdquo that Abel

was a ldquoquasi-expertrdquo TT 349 yet permitted him over Administratorsrsquo half-

dozen different objections to render multiple critical opinions not based on

personal knowledge and Honeywell highlighted Abelrsquos videotape testimony

five (5) times opening direct witness testimony expert cross-examination

and closing JA792 1352 1354 and 1594-1595

5 ASSIGNMENT OF ERROR 5

Robert Norman is a new inexperienced pilot who as a layman was

permitted over Administratorsrsquo several objections to opine about his

personal ldquofearrdquo of the Mooney plane ldquoa thousand mistakes you can makerdquo

in the Mooney and his limited operation of the Mooney under different

circumstances plus various hearsay JA756-783 1380-1381 and 1383-

1389 Honeywell highlighted his videotape testimony in direct examination

and repeatedly in closing in tandem with Abel JA1363-1411 1593-1594

and 1598

5

ARGUMENT

Re Assignment of Error 1 sound public policy mandates upholding

Virginiarsquos rule against hearsay and concomitantly construing its statutory

ldquoreliable authorityrdquo exception strictly narrowly Yet the trial court construed

Virginia Code sect801-4011 liberally to cover a biased case-related report

and moreover did not even require Honeywell to honor the statutersquos

express requirements in admitting the hearsay Mooney Report in testimony

and its absent expert Conclusions on the core issue as an exhibit

Re Assignment of Error 2 sound public policy mandates upholding

Virginiarsquos rule against ldquoabsence of prior incidentsrdquo Yet the trial court

expressly condoned Honeywell violating not only settled Virginia law but

also its own pretrial Order with repeated closing argument about its

product safety history that in decades of use there allegedly never had

been another incident before

Re Assignment of Error 3 sound public policy mandates upholding

Virginiarsquos rule of litigant and jury entitlement to clear complete instructions

stating the correct law Yet the trial court refused Administratorsrsquo correct

clear complete one on the oft-confusing pivotal issue of multiple proximate

causes

6

Re companion Assignments of Error 4 and 5 sound public policy

mandates upholding Virginiarsquos rules limiting lay and expert testimony and

opinions Yet the trial court admitted numerous subjective opinions by

unqualified witnesses - one that Defendant conceded was a ldquopretty critical

witnessrdquo - that lacked foundation that were speculative hearsay and

irrelevant and that invaded the juryrsquos province

All of these errors were prejudicial in fact and under Virginia law

ldquoWell established principles require that error be presumed prejudicial

unless the record clearly shows that the error could not have affected the

resultrdquo Dandridge v Marshall 267 Va 591 597 (2004)(evidentiary errors

mandated reversal and remand for retrial) An ldquoerroneous admission of

evidence which may have lsquotipped the scalesrsquordquo is presumed prejudicial

Hale v Maersk Line Ltd 284 Va 358 377 (2012)(reversed and

remanded) In particular erroneous admission of defense expert testimony

may be prejudicial even if another defense expert testifies about the

identical topic Hinkley v Koehler 269 Va 82 91-92 (2005)(reversed and

remanded) Individually and certainly collectively the erroneous admission

7

of expert and other evidence in favor of Honeywell presumably ldquotipped the

scalesrdquo impermissibly3

A THE TRIAL COURT ADMITTING THE HEARSAY MOONEY REPORT IS PREJUDICIAL ERROR

The Mooney Report is hearsay4 JA459-463 ldquoEvidence that is

hearsay and does not fall under an exception is clearly inadmissiblerdquo

Commonwealth v Wynn 277 Va 92 98 (2009) regardless whether it is

opinion hearsay andor fact hearsay Id at 100

Honeywell asserted and the judge accepted that the Mooney Report

came within the exception of Va Code Ann sect801-4011 But

Administrators repeatedly objected for hearsay and ldquolack of foundationrdquo

JA1520-1525 as it clearly failed to meet that statutersquos strictures

1 Public policy opposes the hearsay Mooney Report

Since at least 1795 this Court has barred hearsay evidence absent

an exception Claiborne v Parrish 2 Va (2 Wash) 146 (1795) The 3 As a matter of law on the facts of the case each Assignment of Error constitutes manifest error Re Assignment of Error 1 4 and 5 the trial court had ldquono discretion to admit clearly inadmissible evidence because lsquoadmissibility of evidence depends not upon the discretion of the court but upon sound legal principlesrsquordquo Norfolk amp W Ry v Puryear 250 Va 559 563 (1995)

4 ldquoMooney Reportrdquo refers to the whole document and to its individual constituent statements of facts and of opinions that were admitted

8

continuing wisdom and vitality of its bar is evinced by recent Virginia Rules

of Evidence 2801 and 2802

Surveying Virginia law Friend articulates the most common reasons

for this Courtrsquos rule against hearsay evidence

1 ldquoThe out-of-court declarations were not made under oath 2 The use of such declarations denies to the opponent the right to

confront the witness against him 3 The out-of-court declarant cannot be cross-examined 4 The trier of fact has no opportunity to observe the demeanor of

the declarant on the stand 5 Such evidence is inherently weak 6 The jury will tend to give it too much weight 7 The more often a story is repeated the more likely it is to

become distorted 8 There is too much danger of fraud or perjuryrdquo

CHARLES E FRIEND amp SINCLAIR THE LAW OF EVIDENCE IN VIRGINIA sect151[c] at

902-903 (7th ed 2013 supp) Perhaps the strongest justification for the

hearsay rule is ldquolack of opportunity for cross-examination of the absent

declarantrdquo Id at 904

ldquoOur system of justice places great faith in the value of cross-

examination in testing the perception memory narrative ability and

9

veracity of witnesses [and] it is undeniable that cross-examination can be

an effective tool in exposing false testimony putting misleading testimony

into perspective and bringing out omitted material detailsrdquo Id This Court

has underscored the importance of testing trustworthiness in general and of

cross-examination in particular ldquoThe reason hearsay evidence is excluded

is that it is not subject to the tests which help the trier of fact ascertain the

truth of testimonyrdquo ie it ldquolacks any guarantee of trustworthiness and must

be excludedrdquo Chesapeake amp Potomac Tel v Sisson amp Ryan 234 Va 492

499 (1987)(hearsay forecloses its declarant being ldquocross-examinedrdquo)

Va Code sect801-4011 as amended in 1994 is a hearsay exception In

derogation of Virginiarsquos longstanding common law against hearsay it must

be ldquostrictly construedrdquo Bostic v About Women OBGYN PC 275 Va 567

576 (2008)

sect801-4011 features evidentiary preconditions so that the ldquotest of

cross-examinationrdquo is ldquoinsuredrdquo id plus hearsay qualifying under it only

may be read into evidence not introduced as a documentary trial exhibit

so not to give it undue emphasis Otherwise ldquothe opposing party is

subjected to the lsquooverwhelming unfairnessrsquordquo of admitting absent opinion Id

Further the General Assembly recently codified sect801-4011 as

expert witness law Virginia Rule of Evidence 2706(a) Expert opinion

10

warrants greater judicial scrutiny and litigant protection heightening the

courtrsquos function as ldquogatekeeperrdquo

Finally sect801-4011 is commonly referred as the ldquolearned treatiserdquo

exception since it was created ldquoto permit the introduction of authoritative

literature as substantive evidencerdquo Friend sect15-27 at 1063-1064 in lieu of

traditional practice of testing an expert ldquoon cross-examination by reading to

him from scientific articles or treatisesrdquo Id sect13-11[6] at 809-810 That is to

say sect801-4011 does not contemplate just anything that is printed

Well-settled Virginia law and sound public policy demand the hearsay

rule and its sect801-4011 exception be respected and applied to their letter

But admission of the hearsay Mooney Report including its absent expert

Conclusions contravened the rule and the statute in multiple ways

Admission of the hearsay Mooney Report ignored sect801-4011rsquos

safeguarding preconditions allowed printed material not of the character

contemplated and even introduced the document itself instead of only

testimony See A(2-3) infra Predictably it necessarily engendered the

ldquooverwhelming unfairnessrdquo and other prejudice that the rule the statute

and public policy require to be avoided See A(4) infra

11

2 The Mooney Report is not admissible as ldquoreliable authorityrdquo under sect801-4011

The ldquoreliable authorityrdquo exception of sect801-4011 mandates

To the extenthelliprelied upon by the expert witness in direct examination statements contained in published treatises periodicals or pamphlets on a subject of history medicine or other science or art established as a reliable authority by testimonyhellip shall not be excluded as hearsay If admitted the statements may be read into evidence but may not be received as exhibits

ldquoStatutes in derogation of the common law are to be strictly construed and

not to be enlarged in their operation by construction beyond their express

termsrdquo Bostic 275 Va at 576 (emphasis added) As such this ldquo1994

amendment to Code sect801-4011 [is] a relaxation of the common-law rules

against hearsay only to the limited extent provided by the express statutory

termsrdquo Id at 577

Specifically the General Assembly inserted in the 1994 amendment

ldquotwo preconditions to the admission of hearsay expert opinions as

substantive evidence on direct examination First the testifying witness

must have lsquorelied uponrsquo the statements contained in the published treatises

second the statements must be established as lsquoa reliable authorityrsquo by

testimonyhelliprdquo Id at 576 (emphasis added) But Honeywell did not satisfy

either precondition

12

a Honeywellrsquos expert did not testify he relied on the whole Mooney Report in forming his opinion

ldquoThe [first precondition] means that the witness must testify that he

relied on the article in forming his opinion which is consistent with the

views expressed by the absent authorrdquo Id at 577 ldquoThe statutory standard

is not met by an expertrsquos testimony that he relied upon it only to use it lsquoto

talk to this juryrsquordquo Id

Honeywellrsquos expert Dr Clarke testified that he relied upon only two

(2) sentences in the Mooney Report - lines 28-29 and 32 of its page 3

JA1524-1525 But ultimately the whole report including its hearsay expert

Conclusions was admitted as Exhibit 115

5 At Honeywell counselrsquos request Dr Clarke read the so-called ldquolast sentencerdquo pointed out to him lines 28-29 of page 3 of the Mooney Report ldquoThis indicates an approximate takeoff position trim settingrdquo JA1524 at Lines 3-8 Honeywellrsquos counsel requested and received leave to publish ldquowhat he just testifiedrdquo Id at Lines 9-13 and Dr Clarke showed ldquothat pagerdquo as requested and explained ldquothis was the part that I just readrdquo reading it aloud again Id at Lines 15-20 Dr Clarke then continued his answer by correlating and quoting nearby line 32 of page 3 of the Mooney Report ldquoAnd to validate what we just spoke about it says that there were six threads exposed on the jackscrew And itrsquos the same six threads we were talking about from the full nose-down positionrdquo Id at Lines 20-23 Honeywellrsquos counsel then changed to a ldquonew topicrdquo - without having asked Dr Clarke whether he relied on lines 28-29 and 32 of the Mooney Report Id at Line 24 So the Judge interjected inquiring whether Dr Clarke relied

13

b Honeywellrsquos expert did not establish any of the Mooney Report is reliable authority

The second precondition means that the expert witness himself must

attest that the article is accepted as reliable authority by other similarly

situated experts ie is of a type normally relied upon by others in the

particular field of expertise In a sidebar Honeywellrsquos attorney told the

judge the Mooney Report ldquois a document thatrsquos normally relied upon by

expertsrdquo JA1523 but Honeywellrsquos expert Dr Clarke did not offer the

required testimony for any part of the Mooney Report JA1520-1525

c The Mooney Report inherently is not and cannot be reliable authority

More fundamentally sect801-4011 expressly is limited to only

ldquopublished treatises periodicals or pamphletsrdquo This Courtrsquos examples of

such published literature are ldquoperiodicals which are deemed to be reliable

and authoritativerdquo Weinberg v Given 252 Va 221 222 (1996) ldquopublished

and authoritative literaturerdquo May v Caruso 264 Va 358 362 (2002) and

ldquolearned treatisesrdquo Bostic 275 Va at 575

Strictly construed ldquopublished treatises periodicals or pamphletsrdquo

connotes independent authoritative if not scholarly literature It inherently

upon this thereby prompting Honeywellrsquos counsel to ask and Dr Clarke to affirm belatedly JA1524 at Line 25 to JA1525 at Line 5

14

does not connote private disputed contemporaneous biased case-related

material like the Mooney Report by the crashed planersquos manufacturer

Otherwise construed liberally contrary to this Courtrsquos statutory

construction jurisprudence mere ldquopamphletrdquo (as declared summarily by the

judge JA1523) embraces essentially any unbound printing including

biased case-related materials elevated to authoritative literature Such a

liberal construction predictably and inequitably would allow retained experts

like Honeywellrsquos Dr Clarke to anoint disputed self-interested case materials

as ldquoreliable authorityrdquo to read ldquothem into the record as holy writrdquo id at 576

and to shield their (dubious) authors opinions and facts from the crucible

of cross-examination

Parties transmogrifying disputed biased case-related material into

ldquolearned treatiserdquo by hiring an expert to proclaim it so is not the intention of

sect801-4011 That is a perversion and an abuse of the statute with far-

reaching negative implications in all future Virginia litigation contrary to

sound public policy

Upon retrial of this cause Honeywell properly is barred from having

Dr Clarke or any other retained expert offer that the Mooney Report is

ldquoreliable authorityrdquo The Mooney Report author IIC and Lycoming

representative need to justify their own disputed case facts opinions and

15

Conclusions - if they are qualified to do so and if the IIC and Lycoming

representative truly concur with the Conclusions Cf Burns v Gagnon 283

Va 657 678 (2012)(Court addresses objections that ldquomay arise again on

retrialrdquo)

d The Mooney Report is not admissible as an exhibit

sect801-4011 explicitly is a testimonial not a documentary exception

The statute states expressly that ldquothe statements may be read into

evidence but may not be received as exhibitsrdquo (emphasis added)

It could not be any more literal unambiguous plain and clear

Admission of the Mooney Report as a defense trial exhibit is manifest error

particularly since the required foundation for any of it even to be read was

not laid and Administrators consistently maintained their hearsay and ldquolack

of foundationrdquo objections JA1520-1525

3 The Mooney Report is not admissible as ldquofacts circumstances and datardquo under sect801-4011

ldquo[P]ursuant to Code sect801-4011 an expert witness may rely upon

lsquofacts circumstances or data made known tohellipsuch witnessrsquo in formulating

an opinion those lsquofacts circumstances or datahellip if of a type normally

relied upon by others in the particular field of expertise in forming opinions

and drawing inferences need not be admissible in evidencerdquo

16

Commonwealth v Wynn 277 Va 92 100 (2009) However this clause of

sect801-4011 does not allow for the ldquointroduction of otherwise inadmissible

hearsay evidence during direct examination of an expert witness merely

because the expert relied on the hearsay information in formulating an

opinionrdquo Id (emphasis added)

sect801-4011rsquos ldquofacts circumstances or datardquo clause is separate from

the subsequent ldquoreliable authorityrdquo clause so is not read in conjunction with

it Hence the hearsay Mooney Report clearly was inadmissible on direct

examination of Honeywellrsquos expert Dr Clarke JA1520-1525

4 The Mooney Report being admitted especially by exhibit and emphasized in closing is prejudicial

This Court has reiterated the ldquooverwhelming unfairnessrdquo of admitting

absent expert opinion without cross-examination

The admission of hearsay expert opinion without the testing safeguard of cross-examination is fraught with overwhelming unfairness to the opposing party No litigant in our judicial system is required to contend with the opinions of absent lsquoexpertsrsquo whose qualifications have not been established to the satisfaction of the court whose demeanor cannot be observed by the trier of fact and whose pronouncements are immune from cross-examination

Bostic 275 Va at 575 (quoting Weinberg 252 Va at 225 quoting McMunn

v Tatum 237 Va 558 566 (1989)) Moreover the Court observed that the

General Assembly ldquoinsuredrdquo the ldquotest of cross-examinationrdquo by inserting the

17

1994 preconditions in sect801-4011 and that by a proponentrsquos non-

compliance ldquothe opposing party is subjected to the lsquooverwhelming

unfairnessrsquo we discussed in McMunnrdquo Bostic 275 Va at 576

When Defendantrsquos expert in Bostic failed simply to satisfy the first

precondition of sect801-4011 this Court concluded the trial court ldquoerred in

admitting the opinions contained in published medical literature without an

adequate foundation as required by Code sect801-4011rdquo Id at 578 Further

because the Court could not ldquodetermine to what extent the erroneous

admission of hearsay opinions stated in the published articles may have

affected the verdictrdquo for Defendant it reversed the judgment and remanded

for new trial Id

Admission of the Mooney Report was more egregious than in Bostic

Honeywell satisfied the first precondition only re two (2) sentences of five

(5) pages did not satisfy the second precondition at all admitted as an

ostensibly authoritative ldquopamphletrdquo a private disputed contemporaneous

self-interested case-related creation of the crashed plane manufacturer

even introduced all of it including its expert Conclusions on the ultimate

issue as a trial exhibit and emphasized it twice in closing JA1582-1583

The General Assembly in sect801-4011 expressly forbidding even

admissible ldquoreliable authorityrdquo as a trial exhibit acknowledges the extra

18

impact - the undue emphasis - of an exhibit in the jury room atop testimony

in the courtroom The entire 5-page Mooney Report going to the jury for its

deliberations - and its speculations - must be presumed damaging

The Mooney Report went to the pivotal liability issue of the trial -

seemingly with NTSB siding with Honeywell In addition to numerous

inadmissible hearsay facts and other hearsay opinions it marqueed the

following unique hearsay expert opinion ldquoConclusions The IIC

[ldquoNTSBrdquo] Lycoming representative and myself did not find any

evidence that the aircraft engine was not capable of producing power

or that the aircraft was uncontrollable at the time of the accidentrdquo

Honeywell Exhibit 11 JA459-463 at JA463 (emphasis added)

That singular inadmissible hearsay opinion was a highly prejudicial

trial exhibit because (1) it reached the ultimate issue of the case product

defect and cause and (2) it is not in the NTSB report admitted in evidence

Further because it spoke on behalf of ldquoThe IIC [lsquoNTSBrsquo]rdquo it carried the

implied imprimatur of the NTSB the Federal agency responsible for official

investigation even though the NTSB report itself never stated those expert

Conclusions adverse to Administrators JA447-458

The Mooney Report was a unique piece of expert testimonial and

documentary evidence not merely some inconsequential cumulative facts

19

It buttressed Honeywellrsquos defense in general and its experts in particular

while it foreclosed Administratorsrsquo truth-seeking cross-examination of the

Mooney Reportrsquos author the IIC and the Lycoming representative

B THE TRIAL COURT CONDONING ldquoABSENCE OF OTHER INCIDENTSrdquo ARGUMENT IS PREJUDICIAL ERROR

ldquoPlaintiffsrsquo Motion in Limine X the Court GRANTS this Motionrdquo

112112 Order (emphasis in original) JA401 ldquo[A]ny evidence or argument

as to the lsquosafety historyrsquo of Honeywellrsquos autopilot is to be excludedrdquo Id

1 Public policy opposes Honeywellrsquos absence of other incidents argument

This Court long has prohibited all use of ldquoabsence of other incidentsrdquo

evidence ldquoIt is firmly established that evidence of the absence of other

injuries is not admissiblehellipwhen timely objection is maderdquo regardless

ldquowhether the action lies in negligence or implied warrantyrdquo Goins v

Wendyrsquos Intrsquol Inc 242 Va 333 335 (1991)(emphasis in original) Wood v

Woolfolk Properties Inc 258 Va 133 138 (1999) Sanitary Grocery Co

Inc v Steinbrecher 183 Va 495 499-500 (1945)

Virginiarsquos doctrine recognizes that other incidents may go

undiscovered unreported unrecorded misattributed unacknowledged

etc and thereby are problematical irrelevant prejudicial ldquoIndeed a

departure from the rule would interject evidence so problematical due to

20

the potential for lack of reporting and the variables of circumstances and

conditions that such evidence would have slight if any relevancy or

probative valuerdquo Goins 242 Va at 335-336 Wood 258 Va at 138

This Courtrsquos salutary rule against Defendants admitting ldquoabsence of

prior incidentsrdquo is the mirror-image of its rule against Plaintiffs admitting

ldquofact of prior incidentsrdquo as evidence substantively to prove or corroborate

negligence breach of warranty andor causation in a product liability case

Eg Stottlemyer v Ghramm 268 Va 7 12 (2004) Jones v Ford Motor

Co 263 Va 237 255 (2002) Thus the public policy ends of fundamental

fairness and consistency mandate that Defendants like Honeywell cannot

disprove breach andor causation by ldquoabsence of prior incidentsrdquo evidence

since Administrators cannot prove either with ldquofacts of prior incidentsrdquo

In addition to litigation practicalities and equities public policy in the

interest of safety also demands that Plaintiffs not have to disprove defense

claims of ldquoabsence of prior incidentsrdquo and that the public at large not have

to suffer multiple widely-known injuries and deaths under substantially

similar circumstances before a product unreasonably dangerous to normal

use in fact can be found dangerous There always must be a ldquofirst caserdquo

Plaintiffs having to disprove the manufacturersrsquo claimed negatives is too

expensive time-consuming and otherwise burdensome and possibly futile

21

and there is no minimum quantum of public casualties required to reach a

critical evidentiary mass to maintain a product defect case

When Defendants violate the rule against absence of other incidents

evidence Virginia law and public policy hold that the judge must take

corrective action such as a curative instruction instead of increasing the

prejudicial impact by condonation and apparent judicial approval Velocity

Express Mid-Atlantic v Hugen 266 Va 188 201 (2003) It is unsound

inequitable and insufficient that victim Plaintiffs by their mere protests be

expected to overcome or (worse) even be deemed to have waived the

prejudice of Defendants and the weight of judiciary

Although Honeywellrsquos ldquosafety historyrdquo re prior incidents properly was

excluded at pretrial see B(2) infra Honeywell patently violated the pretrial

Order Virginia law and public policy by arguing in closing five (5) times

about the total absence of prior incidents See B(3) infra That obvious

prejudice to Administrators was exacerbated irreparably when the judge

condoned it by overruling Administratorsrsquo objections and their request for

curative instruction and moreover by directing Honeywell to ldquoproceedrdquo -

which it did again and again and again and again See B(4) infra

22

2 Evidence and argument of Honeywellrsquos ldquosafety historyrdquo properly was excluded at pretrial

Pursuant to Virginia law Administrators moved in limine to exclude all

evidence and argument by Honeywell of its purported product safety

history JA56-57 Urging various federal decisions however Honeywell

vigorously opposed exclusion on brief and at pretrial hearing for example

Honeywell argued it ldquodefinitely relevantrdquo that the autopilot ldquohas over a 30-

year history out in the field hundreds of thousands of flight hours not one

incident reported with the type of allegation that theyrsquore claiming here that

debris got in here caused it to jam and caused a runaway trimrdquo JA66

The trial court correctly rejected Honeywellrsquos arguments ruled for

Administrators JA610 issued a letter opinion JA338 and entered

112112 Order JA401 Re ldquoPlaintiffsrsquo Motion in Limine X the Court

GRANTS this Motion and any evidence or argument as to the lsquosafety

historyrsquo of Honeywellrsquos autopilot is to be excludedrdquo Id (underlining added)

3 Honeywell violating Virginia law and pretrial Order in closing over objection improperly was condoned at trial

Despite clear Virginia law and explicit pretrial Order in closing

Honeywell improperly did exactly what it wanted to do anyway and told the

jury as a matter of fact that there was an absence of prior binding or

jamming of the gears in its autopilot due to foreign matter ldquoItrsquos never

23

happened before There is no evidence this has ever happened anywhere

any timerdquo JA1584 (underlining added)

Administrators objected to no avail The trial court ldquoOverruledrdquo and

directed Honeywell ldquoPlease proceedrdquo JA1584 (underlining added)

And proceed Honeywell did - with four (4) more violations of Virginia

law and pretrial Order Honeywell represented to the jury as additional fact

1 ldquoSafe design for 35 years and no complaintsrdquo JA1591 2 ldquoWe submit to you that withhellipthe lack of any prior evidence of a

problem that it was reasonably designed and perfectly safe and not unreasonably dangerous designrdquo JA1591-1592

3 ldquoIt canrsquot do that and has never happened beforerdquo JA1603 and 4 ldquoNo evidence of a prior problem at all everrdquo JA16036 Administrators delayed their rebuttal argument objected a second

time and requested a curative instruction7 JA1605-1607 But the trial court 6 At and after trial Honeywell claimed its closing arguments simply recount Administratorsrsquo experts not knowing of any other incidents First that is not what Honeywell stated in closing any of the five (5) times Its ldquoabsence of other incidentsrdquo arguments simply are not particularized to Administratorsrsquo expert lack of familiarity but rather are general sweeping all-encompassing proclamations Second even if Honeywellrsquos arguments were limited to Administratorsrsquo experts they still are not permissible They still refer to ldquoabsence of other incidentsrdquo in the context ldquoproofrdquo of no defect or causation Third Administratorsrsquo experts personally not being familiar with any ldquoother incidentsrdquo does not prove that there are no other incidents So Honeywell cannot claim the total absence of other incidents that it did

24

again condoned the Honeywellrsquos multiple violations ldquoI had previously told

the jury that what you-all tell them is not evidence and they should not

consider it as such wersquoll leave it at that Overrule the motionrdquo JA1607

(underlining added)

7 Administratorsrsquo timely objections and request for curative instruction preserved the issue Moving for an instruction or for a mistrial suffices Eg Cheng v Commonwealth 240 Va 26 38 (1990) ldquo[J]uries are presumed to follow prompt explicit and curative instructionrdquo Beavers v Commonwealth 245 Va 268 280 (1993) But the trial court refused to grant Administratorsrsquo motion for a curative instruction Moreover since the trial court repeatedly overruled Administratorsrsquo objections and their request for a curative instruction under the circumstances Administrators requesting a mistrial obviously would have been an unnecessary ldquovain and useless undertakingrdquo Virginia Passenger amp Power Co v Fisher 104 Va 121 129 (1905)(ldquosufficient reason we think for not applyinghellipfor action to redress the wrongs complained ofrdquo) The pretrial Motion in Limine X the arguments at 101112 hearing the pretrial Order the repeated trial objections and the request for curative instruction were amply sufficient to raise and preserve the issue Further Administratorsrsquo protests in closing about the falsity of Honeywellrsquos ldquosafety historyrdquo arguments are no substitute for curative instruction particularly not where the trial court ldquooverruledrdquo Administratorsrsquo objections and authorized Honeywell to ldquoproceedrdquo ie approved judicially Inequitably and insufficiently Administratorsrsquo protests simply left the jury to speculate which party was telling the truth about Honeywellrsquos claimed ldquosafety historyrdquo - with its nod likely going to Honeywell (since the judge twice overruled Administratorsrsquo objections refused curative instruction requested by Administrators and had excluded Administratorsrsquo would-be evidence in the first place)

25

Since the judge overruled Administratorsrsquo motion for curative

instruction his phrase ldquowhat you-all tell them is not evidencerdquo is not

curative That ruling is akin a sports referee seeing personal fouls and

instead of calling penalties on the offender simply telling the competitors to

ldquoplay onrdquo - thereby condoning the inappropriate harmful rough play

4 Honeywellrsquos violations and judgersquos condonations were prejudicial

Honeywell arguing its safety history - the absence of other incidents

over 35 years - five (5) distinct times in closing necessarily was prejudicial

ldquoSuch evidence introduces into the trial collateral issues remote to the

issue at trial which would tend to distract mislead and confuse the juryrdquo

Goins 242 Va at 335 Wood 258 Va at 138 (ldquowe are unable to say that it

did not confuse or mislead the juryrdquo)8

Further the ldquoprobably prejudicial impact of this argument is significant

because the improper argument focused on the central disputerdquo Velocity

Express 266 Va at 201 Moreover the judge repeatedly condoning

Honeywellrsquos five (5) violations magnifies the prejudice leading the jury to

8 Technically of course Honeywellrsquos closing argument was not ldquoevidencerdquo However the legal principle and public policy are the same re ldquoargumentrdquo

26

infer judicial approval of its impropriety - ultimate unfairness to

Administrators

ldquoThe circuit court refused to take any corrective action to eliminate the

adverse prejudicial effect on the jury of [Defendantrsquos] improper argument

Based on the record before the Court we conclude that the probability of

prejudice upon the juryhellipwas increased by the apparent approval given by

the circuit court because of that courtrsquos refusal to take corrective actionrdquo Id

(underlining added)(remand for new trial) Reid v Baumgardner 217 Va

769 774 (1977)(same)

C THE TRIAL COURT REFUSING TO GIVE ADMINISTRATORSrsquo CLEAR COMPLETE CORRECT MULTIPLE PROXIMATE CAUSE INSTRUCTION IS PREJUDICIAL ERROR

Virginiarsquos law of proximate cause provides

A proximate cause of an accident injury or damage is a cause which in natural and continuous sequence produces the accident injury or damage It is a cause without which the accident injury or damage would not have occurred There may be one or more proximate causes Proximate cause need not be established with such certainty so as to exclude every other possible condition

That is Administratorsrsquo Instruction 11 that was rejected JA352

1 Public policy demands the jury be instructed fully ldquoA litigant is entitled to jury instructions supporting his or her theory of

the case if sufficient evidence is introduced to support that theory and if the

27

instructions correctly state the lawrdquo Holmes v Levine 273 Va 150 159

Significantly the evidence introduced to support a requested instruction

must only be ldquomore than a scintillardquo and where ldquoa proffered instruction finds

any support in credible evidence its refusal is reversible errorrdquo Id

(emphasis added)

Although Holmes frames correct jury instructions as a litigant

entitlement as a matter of public policy they are a jury entitlement too As

triers of fact juror must understand their charge if they are unclear - even

in part on one pivotal point - then the wrong decision and unnecessary

injustice may result

Proximate cause often is a subtle confusing point among lawyers let

alone jurors Public policy requires that the jury be instructed clearly

completely and correctly on that particularly where as here the theory of

two (2) proximate causes is at the core

Administratorsrsquo Instruction 11 about ldquoone or more proximate causerdquo is

particularly important in light of there being no ldquoconcurrent negligencerdquo

instruction (because it was a ldquobreach of warrantyrdquo product liability case)

which would have indicated one or more proximate causes were possible

Holmes does not indicate whether a concurrent negligence instruction was

used in that case

28

Also Administratorsrsquo multiple-cause instruction is especially important

because contributory negligence assumption of risk superseding cause

and even product misuses were not issuesdefenses in this particular

ldquowarrantyrdquo case Thus even a jury finding there was some pilot error that

was a proximate cause would not require a defense verdict but rather still

would have required the jury to decide whether product defect was a

proximate cause too

Contrary to Virginia law and public policy Administratorsrsquo clear

complete correct jury instruction on proximate cause was rejected solely

because it was not the Model Jury Instruction see C(2) infra despite

there being ample credible evidence in the case as a whole to support two

proximate causes See C(3) infra The resulting prejudice was manifest

See C(4) infra

2 There may be more than one proximate cause and other proximate causes need not be excluded with certainty and Administratorsrsquo jury instruction so informed the jury but it was refused for not being a Model Jury Instruction

Virginia law holds there may be ldquomore than one proximate cause of

an eventrdquo Id9 Further Virginia law also holds it is not necessary to

9 In product liability cases under Virginia law the manufacturer is liable if its product simply is ldquoardquo proximate cause ldquoour law provides a means of holding a defendant liable if his or her negligence is one of multiple

29

establish ldquoproximate cause with such certainty as to exclude every other

possible conclusionrdquo White Consolidated Indus Inc v Swiney 237 Va

23 28 (1989)

Administratorsrsquo Instruction 11 stated re proximate causation

A proximate cause of an accident injury or damage is a cause which in natural and continuous sequence produces the accident injury or damage It is a cause without which the accident injury or damage would not have occurred There may be one or more proximate cause Proximate cause need not be established with such certainty so as to exclude every other possible condition

JA352 (emphasis added) Hence the two sentences underlined to which

Honeywell objected simply state Virginia law correctly

Honeywell objected to Administratorsrsquo multiple-cause instruction

solely on the basis that it was not the ldquoModel Jury Instructionrdquo and the trial

court improperly sustained on that ground JA1545-1547 contrary to

Virginia statute and public policy ldquoA proposed instruction submitted by a

party which constitutes an accurate statement of the law applicable to the

case shall not be withheld from the jury solely for its nonconformance with

the model jury instructionsrdquo Va Code sect801-3792

concurrent causes which proximately caused an injury when any of the multiple causes would have each have been a sufficient causerdquo Ford Motor Co v Boomer 285 Va 141 151 (2013)

30

3 Administrators are entitled to correct jury instructions supporting their theory regardless whether scintilla-plus of credible evidence is in their andor Honeywellrsquos case

In Holmes too there were two potential proximate causes of death Id

at 159 Despite its verdict form specifically stating the jury ldquodid not find that

[Defendantrsquos] failure was a proximate cause of Holmes deathrdquo Holmes

reversed and remanded for the trial court refusing Plaintiffrsquos following

proximate cause instruction which is virtually identical to Administratorsrsquo

first underlined sentence that was rejected ldquoThere may be more than one

proximate cause of an eventrdquo 273 Va at 157-160 (emphasis added)

In Holmes Plaintiffrsquos own evidence happened to show both potential

causes of death Id But it is not necessary that only Plaintiffrsquos case-in-chief

prove all proximate causes and Holmes did not so hold

Instead the jury fairly may find more than one proximate cause

based on the evidence as a whole Plaintiffrsquos evidence Defendantrsquos

evidence or both partiesrsquo evidence Thus although Administrators only

introduced evidence of product defect as proximate cause since Honeywell

introduced evidence of pilot error as proximate cause the jury was entitled

to consider and to find both pilot error and product defect as proximate

causes Lawlor v Commonwealth 285 Va 187 228-229 (2013)(ldquoWhen

reviewing a trial courtrsquos refusal to give a proffered jury instruction we view

31

the evidence in the light most favorable to the proponent of the

instructionrdquo) McClung v Commonwealth 215 Va 654 657 (1975)

In McClung the murder Defendant steadfastly maintained that she

was ldquonot guiltyrdquo by reason of self-defense but was convicted of murder in

the second degree Id at 654 However this Court reversed and remanded

in McClung when the trial court refused Defendantrsquos request for a

ldquovoluntary manslaughterrdquo instruction on the grounds that ldquothe [whole]

evidence was also sufficient to support an instruction on voluntary

manslaughterrdquo (if viewed most favorably to her) even though it concededly

was sufficient to support murder in the second degree (when viewed most

favorably for Commonwealth) Id at 656-657

Correspondingly since ldquomore than a scintillardquo of ldquocredible evidencerdquo

had been admitted to support two proximate causes Holmes 273 Va at

159 Administrators were entitled their requested instruction that ldquothere may

be one or more proximate causerdquo Administrators so argued to the judge in

support JA1545-1547 and addressed multiple causation theory in closing

TT 3222-3223

32

4 Refusal of Administratorsrsquo multiple-cause instruction is prejudicial

The trial court refused Administratorsrsquo multiple-cause instruction

contrary to statute That refusal possibly if not probably left the jury with the

misimpression that it must or at least could weigh and find only one

proximate cause particularly in light of there being no concurrent

negligence instruction The jury reasonably could have found pilot error and

product defect each were a proximate cause especially since contributory

negligence assumption of risk superseding cause and product misuses

were not issuesdefenses and the jury should have understood that

unequivocally by Court instruction (which Administrators could and would

have emphasized in closing)

D THE TRIAL COURT ADMITTING ABELrsquoS EXPERT ldquoCRITICAL WITNESSrdquo OPINIONS IS PREJUDICIAL ERROR

William Abel is a former flight instructor whom Honeywell lionized as

a ldquopretty critical witnessrdquo JA657 (emphasis added) He provided training to

Grana and opined on Honeywellrsquos direct examination

1 ldquoA [T]he fact that [Mr Grana] took off on this day makes - makes me have some concerns about the judgment taking off into conditions on the weather that - that was reported to merdquo JA1350 (emphasis added)

2 ldquoQ So with respect to judgment do you believe that Mr Grana

exercised good judgment based on your understanding of

33

his qualifications and training in departing into 800-foot overcast ceiling on the day of the accident

A Based on the - all the flying Irsquove done with Joe [Grana] and

the conversations that we had I had concerns about why he would take off into those conditions on that dayrdquo JA1351-1352

3 ldquoQ With respect to Mr Granarsquos lack of experience in the

airplane in actual IFR conditions and the judgment that he used in taking off that day in your opinion was that a cause or contributing cause of this accident

A I donrsquot know what happened in that airplane In my opinion

it wasnrsquot the best of judgment to take off in those conditionsrdquo JA1357 (emphasis added)

But Abel had no ldquoperson knowledgerdquo of the crash the takeoff or even the

airport weather conditions JA1334-35 his weather report was from the

internet - 3 days before the crash Id

Administrators objected to Abelrsquos testimony as lacking sufficient

foundation improper opinion testimony speculative based on hearsay

irrelevant and invading the juryrsquos province JA723-741 The trial court

overruled all objections Id

1 Public policy opposes Abelrsquos opinions

Acceptance and rejection of expert testimony is a quintessential

ldquogatekeeperrdquo function of the courts Given the unique elevated status of

34

experts particularly to jurors public policy mandates would-be experts be

scrutinized closely

A witness either is qualified as an expert or not there is no half-

measure There are no ldquoquasi-expertsrdquo under Virginia law

As a corollary courtsrsquo expert ldquogatekeeperrdquo function necessarily

extends to precluding witnesses not deemed to be experts from rendering

opinions that are the province of experts As a matter of public policy a

witness should not be able to introduce de facto expert opinion through the

back door as a layman when unauthorized to admit it through the front door

as an expert

Honeywellrsquos ldquopretty critical witnessrdquo JA657 William Abel never was

qualified as an expert by the judge See D(2) infra Consequently all of his

harmful de facto expert opinions are inadmissible for his lack of

qualification as well as for multiple other independent grounds see D(3-

6) infra and their admission was highly prejudicial to Administrators

particularly as marqueed by Honeywell repeatedly by videotape excerpts

2 Abelrsquos opinions are unfounded and improper

Whether Honeywell claims Abel to be an expert witness or admits

him to be a lay witness his testimony is clearly inadmissible

35

a It is unfounded as an expert

Abel never was accepted by the Court as an expert The judge stated

ldquoAbel is a quasi-expert and wersquove made that quasi-determinationrdquo TT 349

(emphasis added) - a netherworld status and an incomplete acceptance

unrecognized in Virginia law

At pretrial hearing Honeywell conceded that Abel was ldquonot a retained

expertrdquo TT 462 and was a mere ldquopercipientrdquo with ldquopercipient observationsrdquo

of fact ldquobased on his perceptionsrdquo TT467-468 and 478-479 except

possibly for his ldquospatial disorientationrdquo opinions TT 468-470 and that ldquo99

percent of what he says is factualrdquo JA671 Moreover even if Abel arguably

could be qualified as an expert on a matter (which is disputed) an area of

expertise never was identified for him remained open to speculation by the

jury and ultimately would limit the nature topic and scope of his opinions

Combs v Norfolk and Western Ry Co 256 Va 490 496 (1998)

Further there was no showing that Abel did or even could consider

all of the ldquovariablesrdquo as foundation for his opinions Cf Keesee v Donigan

259 Va 157 161-162 (2000)(ldquorequirement that the evidence be based on

an adequate foundationrdquo) Hence Abel could not opine as an expert

On retrial however Honeywell may try to qualify Abel as an expert

and to elicit some of the same testimony from him So alternatively this

36

Court still should scrutinize him and his ldquocredentialsrdquo as an expert under

D(3-5) infra and bar his opinion testimony on retrial Burns supra

b It is improper as a layman

ldquoOpinion 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 witnessrsquo perceptionsrdquo Virginia Rule

of Evidence 2701 (emphasis added) Cf Doe v Dewhirst 240 Va 266

270 (1990)(ldquoIn order to be competent to testify on the subject the witness

must have had a reasonable opportunity to judgerdquo and even ldquomomentary

observationsrdquo at impact and ldquolater glimpserdquo post-impact ldquodid not

demonstrate that he had a reasonable opportunity to form an opinionrdquo)

Since Abel has no ldquopersonal knowledgerdquo of the crash the take-off the

weather or anything as a layman he cannot opine about any of it

including particularly without limitation ldquojudgmentrdquo and ldquocausationrdquo

3 Abelrsquos opinions are speculative

Despite his repeated ldquoconcernsrdquo bottom line is that when Honeywell

asked his opinion about ldquocauserdquo Abel had none JA677 he admitted ldquoI

donrsquot know what happened up thererdquo JA1357 (emphasis added) That core

concession renders all other testimony by Abel speculative and

inadmissible as such even if he were qualified as an expert

37

For example in Pettus v Gottfried 269 Va 69 73 (2005)(reversed

and remanded for retrial) Defendantrsquos expert had ldquonordquo opinion re cause of

death yet gratuitously opined for the defense further ldquothatrsquos the reason why

many times we feel that unless an autopsy is done itrsquos really difficult to

know what may have happenedrdquo This Court held that gratuitous opinion

was ldquospeculative in naturerdquo Id at 78

Further Abel expressing only ldquoconcernsrdquo about Granarsquos ldquojudgmentrdquo is

so indefinite as to be impermissibly speculative too JA1349-1352 And

Abel opining ldquoit wasnrsquot the best judgmentrdquo still is indefinite JA1357

4 Abelrsquos opinions are hearsay

Abel testified based on - indeed testified about - hearsay weather

conditions on Honeywellrsquos direct examination Even an expert attesting

hearsay facts on direct examination is inadmissible and reversible error

Commonwealth v Wynn 277 Va 92 100 (2009)

5 Abelrsquos opinions are irrelevant

Abel only expressed general ldquoconcerns about the judgment taking off

into conditions on the weatherrdquo and that it was not ldquobest judgmentrdquo

JA1349-1352 and 1357 Abel did not opine at all about what if anything

Grana supposedly did or did not do while actually flying to cause or

38

contribute to causing the crash ldquoI donrsquot know what happened in that

airplanerdquo JA1357 (emphasis added)

Whether or not Grana showed ldquogood judgmentrdquo let alone ldquogreat

judgmentrdquo in deciding to fly in weather conditions (never seen by Abel)

however simply is not relevant Re Grana the sole causation issue is

whether once flying any (in)action by Grana proximately caused the crash

- not whether his decision to fly in the first place was ldquogreatrdquo or even ldquogoodrdquo

This Court countenancing Abelrsquos testimony as relevant opens the

floodgates to like testimony in garden variety motor vehicle accident

(ldquoMVArdquo) and other cases In any MVA involving inclement weather - or

latewee hours etc - expert andor lay witnesses could opine ldquoconcernsrdquo

about motoristsrsquo threshold judgment in deciding to drive in the weather at

the hour etc as ostensibly relevant to the actual cause of the MVA literally

minutes and miles down the road

6 Abelrsquos opinions invade the juryrsquos province

Abel summarily opined ldquoconcerns about the judgmentrdquo and ldquoit wasnrsquot

the best judgmentrdquo JA1349-1352 and 1357 While that testimony is

indefinite unto speculative it also conclusorily and impermissibly goes to

the ultimate issue to be decided by the jury alone ie whether Granarsquos

conduct was a cause of the crash

39

7 Abelrsquos opinions are prejudicial

As intended by Honeywell the opinions of its ldquopretty critical witnessrdquo

Abel sullied Grana Abelrsquos repeated ldquoconcernsrdquo about (bad) ldquojudgmentrdquo

bespoke incompetence or at least carelessness if not recklessness -

despite contributory negligence assumption of risk and product misuse not

being issues - indicating predicate ldquofaultrdquo and inviting speculation

assumption andor presumption of Granarsquos (continuing) incompetence

andor wrongdoing while flying

Moreover Honeywell maximized the prejudicial impact of ldquopretty

critical witnessrdquo Abelrsquos repeated ldquoconcernsrdquo about Granarsquos ldquojudgmentrdquo at

four (4) different junctures during trial

1 Opening statement [by videotape] JA792

2 Direct examination [by videotape] JA1352 and 1354

3 Expert cross-examination [by reference] JA1645 and

4 Closing argument [by videotape] JA1594-1595

Since Abel testified by videotape deposition for maximum impact

Honeywell played videotape excerpts focusing on his ldquoconcernsrdquo about

ldquojudgmentrdquo during opening JA792 and replayed in closing JA1594-1595

With synergistic effect Honeywell also coupled its broadcasts of

ldquopretty critical witnessrdquo Abelrsquos testimony with its broadcasts of similar

40

negative opinionfeelings testimony of another plane co-owner Robert

Norman See E infra As intended the reinforcing testimony of its co-

owner duo was very damaging to Administrators

E THE TRIAL COURT ADMITTING NORMANrsquoS LAY OPINIONS AND HEARSAY IS PREJUDICIAL ERROR

Unlike Grana Robert Norman is a Mooney plane co-owner who was

unlicensed unendorsed and inexperienced to fly the Mooney solo in any

conditions let alone under Visual Flight Rules and Instrument

Meteorological Conditions like Grana JA1381-1383 and 1394 Moreover

Norman never used Honeywellrsquos autopilot in question to assist with turning

TT 2364 and the Mooney indisputably was turning after takeoff when

Grana used it JA991-992

Nonetheless on Honeywellrsquos direct examination Norman as layman

repeatedly was allowed to share his subjective opinions about the Mooney

1 ldquoA I still to this day am afraid of that Mooney 2 A I have a healthy fear of [the Mooney] 3 A It was not something that I would ever want to fly solo until I

could do that instantlyhellipThe Mooney there are a thousand different mistakes you could make that would lead you to have something bad happen

4 A I was told yoursquod have to be retarded to crash a [Cessna]

Skyhawk The Mooney totally opposite The Mooney

41

there are a thousand different mistakes you can make that would lead you to have something bad happenrdquo

JA380-382 (emphasis added) Norman also attested his subjective

opinions about his operation of the Mooney under supervision and different

circumstances than Grana including that the autopilot seemed to work

alright JA1383-1389 and attested hearsay about what Abel ldquomeantrdquo and

what other Mooney co-owners wanted re Grana flying JA1405-1409

1 Public policy opposes Normanrsquos lay opinions As indicated regarding William Abel see D(1) supra a classic

ldquogatekeeperrdquo function of the courts is precluding lay witnesses from

foraying into de facto expert opinion Of course lay testimony also is

inadmissible independently for lack of foundation irrelevance

speculativeness and hearsay

The testimony of Robert Norman which dovetailed with that of

William Abel as a matter of content and presentation by Honeywell

suffered from all those unfair ills See E(2-5) infra Their effects were

prejudicial particularly with the repeated combined videotape excerpts of

Abel and Norman see E(6) and public policy dictates such multi-prong

injustice not be countenanced

42

2 Normanrsquos lay opinions are unfounded

Lacking qualifications Norman testified as a layman But his

testimony about fearing the Mooney plane JA1380-1381 about the

ldquothousand different mistakes you can makerdquo with it JA1381-1382 and its

operation were unfounded JA1405-1409

His testimony about operating the Mooney plane under different

circumstances than Grana also was unfounded and impermissible (even for

an expert) because Norman did not know and thereby could not and did

not consider all of the variables JA1334-1335 Administrators repeatedly

objected but were overruled JA756-783

3 Normanrsquos lay opinions were irrelevant

Obviously Normanrsquos lay personal fears about the Mooney including

the ldquothousandrdquo bad mistakes a pilot could make with it are not relevant to

the issues whether Grana andor product defect was a cause of the crash

Likewise Normanrsquos opinions about how Honeywellrsquos autopilot operated

under limited different circumstances about what Abel meant andor about

what other co-owners intended re Grana simply are not relevant either

Administrators objected on grounds of relevance JA756-760 But the

judge overruled Id

43

4 Normanrsquos lay opinions were speculative

Norman opining about how the Mooney plane operated in his limited

experience under circumstances that were not substantially similar also

were speculative JA1383-1389 Administrators so objected and were

overruled JA758-760

5 Normanrsquos testimony is hearsay

Normanrsquos opinions about what Abel meant and what various partners

supposedly stated and agreed about Grana flying are hearsay JA1383-

1389 Wright v Kaye 267 Va 510 530 (2004)(ldquostate of mindrdquo statements

were inadmissible hearsay) Administrators objected and the judge

overruled JA769-773

6 Normanrsquos lay opinions and hearsay are prejudicial

Normanrsquos opinions unfairly indicated there was no defect with

Honeywellrsquos autopilot Yet he lacked sufficient expertise had limited

exposure to the Mooney plane and used it under different circumstances

Normanrsquos opinions repeatedly suggested that pilot mistake was the

cause of something bad happening ie the crash They did so in

heightened unto exaggerated emotional terms ie ldquoafraidrdquo ldquofearrdquo and a

ldquothousand different mistakesrdquo

44

As with Abelrsquos testimony Honeywell maximized the prejudicial impact

of Normanrsquos subjective lay impressions at three (3) trial junctures

1 Direct examination [by videotape] JA1380-1389

2 Closing argument [by videotape] JA1593-1594 and

3 Closing argument [by reference] JA1598

Since Norman too testified by videotape deposition for maximum impact

Honeywell replayed Normanrsquos most inflammatory opinions immediately

before it played Abelrsquos videotape excerpts in closing JA1593-1595

CONCLUSION

For the reasons set forth above consonant with sound public policy

VTLA urges the Court to reaffirm and apply Virginiarsquos longstanding

doctrines on reliable authority prior incidents proximate causation and lay

and expert testimony and opinions and reverse the Circuit Courtrsquos

judgments and remand for new trials on all issues

Respectfully submitted s Avery T Waterman Jr AVERY T WATERMAN JR ESQ

VSB 27118 Patten Wornom Hatten amp Diamonstein LC 12350 Jefferson Avenue Suite 300 Newport News Virginia 23602 Telephone (757) 223-4567 Facsimile (757) 223-4499 Awatermanpwhdcom Counsel for Amicus Curiae

45

CERTIFICATE OF SERVICE

I hereby certify that on January 22 2014 fifteen copies of the above

Brief Amicus Curiae have been filed via USPS Certified Mail to the clerkrsquos

office This same date three copies of the same have been sent via USPS

First Class Mail to the following counsel

Counsel for Appellants

Roger T Creager Esq VSB No 21906 The Creager Law Firm PLLC 1500 Forest Avenue Suite 120 Richmond VA 23229 Telephone (804) 747-6444 Facsimile (804) 747-6477 rcreagercreagerlawfirmcom John C Shea Esq VSB No 17436 Mark S Lindensmith Esq VSB No 20452 Marks amp Harrison PC 1500 Forest Avenue Richmond VA 23229 Telephone (804) 282-0999 Facsimile (804) 288-1853 jsheamarksandharrisoncom mlindensmithmarksandharrisoncom

46

Anita Porte Robb Esq Admitted pro hac vice in trial court Gary C Robb Esq Admitted pro hac vice in trial court Robb amp Robb LLC One Kansas City Place - Suite 3900 1200 Main Street Kansas City MO 64105 Telephone (816) 474-8080 Facsimile (816) 474-8081 arobbrobbrobbcom grobbrobbrobbcom Counsel for Appellee Patrick R Hanes Esq VSB No 38148 Turner A Broughton Esq VSB No 42627 Joseph R Pope Esq VSB No 71371 WF Drewry Gallalee Esq Harold E Johnson Esq VSB No 65591 Williams Mullen Clark amp Dobbins Williams Mullen Center 200 South 10th Street PO Box 1320 Richmond VA 23218-1320 Telephone (804) 420-6939 Facsimile (804) 420-6507 phaneswilliamsmullencom tbroughtonwilliamsmullencom jpopewilliamsmullencom dgallaleewilliamsmullencom hjohnsonwilliamsmullencom

47

Michael McQuillen Esq Admitted pro hac vice Austin W Bartlett Esq Pending pro hac vice admission John M Kelly Esq Admitted pro hac vice Nicole L Simmons Esq Admitted pro hac vice Adler Murphy amp McQuillen LLP 20 S Clark Suite 2500 Chicago IL 60603 Telephone (312) 345-0700 Facsimile (312) 345-5860 mmcquillenamm-lawcom abartlettamm-lawcom jkellyamm-lawcom nsimmonsamm-lawcom This same day an electronic version was also sent via email to the Clerkrsquos Office of the Supreme Court of Virginia and to all counsel listed above s Avery T Waterman Jr Of Counsel

48

ADDENDUM

CREAGER l t I It ~I I Ll (

1500 IORFST AVFNUF bull SUlTf 120 bull itl(IfMUNU VlJltJlNIJi 23229 bull WORK (1104) 74764middot1middot bull FAx (804) 747middot6471 bull WWWCRfJilifRIJiwFIRMCM

January 2 J 2014

Bv E-Mail and Fax Avery T Waterman Jr Esquire Patten Wornom Hatten amp Diamonstein LC Suite 300 12350 Jefferson Avenue Newport News Virginia 23602 (Fax (757) 223-4499)

Re Michelle C Harman Administratrix of the Estate of Joseph A Grana III Deceased et al v Honeywell International Inc Record Number 130627

Dear Mr Waterman

This confirms that I as and on behalf of counsel for the Appellants hereby consent to your filing in the Supreme Court of Virginia of a Brief Amicus Curiae of the Virginia Trial Lawyers Association in the above-styled matter

cc Counsel for Appellees Patrick R llanes Esquire Turner A Broughton Esquire Joseph R Pope Esquire WILLIAMS MULLEN PO Box 1320 200 South 10th Street Suite 1600 (23219) Richmond VA 232 J8-1320 (By Fax 804-420-6507)

Michael G McQuillen Esquire Austin W Bartlett Esquire John M Kelly Esquire Nicole L Simmons Esquire ADLER MUJgtRI-)Y amp McQUILLEN LLP 20 South Clark Street Suite 2500 Chicago I L 60603 (By Fax to 312-345-9860)

WILLIAMS MULLEN

Direct Dial 8044206455 phancswilliarnsrnullencom

January 222014

VIA ELECTRONIC MAIL

Avery T Sandy Waterman Jr Esq Patten Wornom Hatten amp Diamonstcin LC 12350 Jefferson Avenue Suite 300 Newport News VA 23602

Re Michelle C Harman etc v Honeywell International Inc Record No 130627

Dear Sandy

As and on behalf of counsel for Appellee I consent to the filing in the Supreme Court of Virginia ofa Brief Amicus Curiae of the Virginia Trial Lawyers Association in the above-styled matter

Please let me know if you have any questions

~~TYO ( ~u~__V~trvJ Fmiddot v ___

Patrick R Hanes

cc Turner Broughton Esq (via e-mail) Roger T Creager Esq (via e-mail) Michael McQuillen Esq (via e-mail)

NORTH CAROLINA VIRGINIA WASHINGTON DC

200 50mh 1O~ Srrcee Suire 1600 (23219) PO Box 1320 Richmond VA 23218-1320 Tel 8044206000 Fax 8044206507 INWWwilliamsmuJJencom

Jeanne Vareo

From Austin W Bartlett ltabartlettAMM-LAWcomgt Sent Tuesday January 21 2014 506 PM To Jeanne Varco Cc Michael G Mcquillen John M Kelly Broughton Turner

(tbroughtonwilliamsmulencom) Hanes Patrick R (phaneswilliamsmullencom) rcreagercreagerlawfirmcom jsheamarksandharrisoncom arobbrobbrobbcom grobbrobbrobbcom

Subject FW Harman v Honeywell cw Bemberis v Honeywell - 12114 Email to P Hanes and M Mcquillen

Attachments img-121160142-000lpdf

Importance High

Hi Jeanne and Avery

On behalf of Mike McQuillen this will confinn that we consent to your filing of an amicus brief

Best regards Austin

Austin W Bartlett ADLER MCRPHY amp McQUILLEN LLP

20 S Clark Street Suite 2500 Chicago Illinois 60603 Main (312) 345-0700 Direct (312) 422-5798 Facsimile (312) 345-9860

The ilformatioll IXJlltained in thiJ electronic mail message is conjidential illformation intended onlY for the use ofthe individual or enti) named aboIe and may be protected ~Y the attornflY client andor attorney work prodllct pnmiddotvileges Ifthe reader qfthis meJJage iJ not the intended redpient or the emplqyee or agent reJpoflJible to deliver to the itltended redpientyou are hereby notified that atry disJemination diJtriblltioll or copying qthiJ (omtlJlmimtioll is stndIY prohibited f)Oll have meilJed this communication in error pleaJe immediatelY not~jj us and delete the miginal menage

From Jeanne Varco [mailtojeannePWHDcom] Sent Tuesday January 21 2014 305 PM To phaneswilliamsmullenscom Michael G Mcquillen tbroughtonwilliamsmullencom jpopewilliamsmullencom Cc jsheamarksandharrisoncom arobbrobbrobbcom grobbrobbrobbcom rcreagercreagerlawfirmcom Subject Harman v Honeywell cw Bemberis v Honeywell - 12114 Email to P Hanes and M McQuillen Importance High

This email was sent to you on behalf of Avery T Waterman Jr Esq

Jeanne M Varco Legal Assistant to Avery T WatermanJr Esq Patten W ornom Hatten amp Diamonstein LC

1

THE LEX GROUP 1108 East Main Street Suite 1400 Richmond VA 23219 (804) 644-4419 (800) 856-4419 Fax (804) 644-3660 wwwthelexgroupcom

In The

Supreme Court of Virginia

______________________

RECORD NO 130691 ______________________

BYRD THEATRE FOUNDATION (THE)

Appellant

v

DAVID M BARNETT

Appellee

_________________________

BRIEF OF AMICUS CURIAE THE VIRGINIA TRIAL LAWYERS ASSOCIATION

IN SUPPORT OF APPELLEE _________________________

Nathan J D Veldhuis (VSB No 68746) Gobind Sethi (VSB No 72266) CHAIKIN SHERMAN Samantha K Sledd (VSB No 82656) CAMMARATA AND SIEGEL PC HALL amp SETHI PLC 1232 17th Street NW 12120 Sunset Hills Road Suite 150 Washington DC 20036 Reston Virginia 20190 (202) 659-8600 (Telephone) (703) 925-9500 (Telephone) (202) 659-8680 (Facsimile) (703) 925-9166 (Facsimile) nathandc-lawnet gsethihallandsethicom Counsel for Amicus Curiae Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ii A STATEMENT OF AMICUS INTEREST 1

B STATEMENT OF THE CASE AND MATERIAL

PROCEEDINGS 1

C STATEMENT OF FACTS 2

D ASSIGNMENTS OF ERROR 2

E ARGUMENT 2 I The Trial Court Was Correct In Ruling That Barnett

Was Not A Beneficiary Of The Foundation At The Time He Sustained His Injury 2 A Standard of Review 3

B Applicable Law 4

II Knowledge Of The Defective Walkboard Should Be

Imputed To The Foundation Even If Such Knowledge Was First Acquired By An Individual Before He or She Became An Agent Of The Foundation 12

A Standard of Review 12

B Applicable Law 13

F CONCLUSION 20

G CERTIFICATE 23

ii

TABLE OF AUTHORITIES

Page(s)

CASES Bodenheimer v Confederate Memorial Assrsquon

68 F2d 507 (4th Cir 1934) 8 Cabin Branch Min Co v Hutchinsonrsquos Admrsquox

112 Va 37 (1911) 14 15 Diaz v Wash State Migrant Council

265 P3d 956 (Wash Ct App 2011) 17 Egerton v RE Lee Memorial Church

385 F2d 381 (4th Cir 1968) 8 Goodstein v Milmo Realty Corp

8 NYS2d 243 (NY City Ct 1938) 16 Honsinger v Egan

266 Va 269 (2003) 13 Ola v YMCA of S Hampton Rds Inc

270 Va 550 (2005) passim Smith v Kim

277 Va 486 (2009) 13 The Distilled Spirits

78 US 356 (1871) 16 Thrasher v Winand

239 Va 338 (1990) 5 9 Wintergreen Partners Inc v McGuirewoods LLP

280 Va 374 (2010) 13

iii

OTHER AUTHORITIES Restatement (Second) of Agency sect 276 (1958) 16 18 Restatement (Third) of Agency sect 503 (2006) 17 18

1

A STATEMENT OF AMICUS INTEREST1

The Virginia Trial Lawyers (ldquoVTLArdquo) is an organization of

over twenty-five hundred Virginia attorneys dedicated to

promoting professionalism within the trial bar enhancing the

competence of trial lawyers protecting and preserving individual

liberties and access to justice and supporting an efficient and

constitutionally sound judicial system

This appeal presents issues that are important to Virginia

law and trial practice in Virginia Courts It concerns and

implicates not only the rights of the parties to this case but also

the rights of litigants and the nature of trial practice throughout

the Commonwealth

B STATEMENT OF THE CASE AND MATERIAL PROCEEDINGS

The VTLA adopts Appellee David M Barnettrsquos Statement of

the Case

1 The VTLA affirms that no counsel for a party authored this brief in whole or in part and that no person other than amicus its members and its counsel made a monetary contribution to its preparation or submission However counsel for Appellee is a member of the VTLA

2

C STATEMENT OF FACTS

The VTLA adopts Appellee Barnettrsquos Statement of Facts

D ASSIGNMENTS OF ERROR

I The trial court erred in denying the Foundationrsquos Plea of Charitable Immunity (JA 9 13-34 50-62 68-69 351-409 410-413 1458-60 1603 1682-86 1702 1704-1705)

II The trial court erred in refusing to instruct the jury on notice to a corporation (JA 1229-44 1272-98 1399 1461-66 1577-97 1682-86 1702 1704-1705)

E ARGUMENT

I The Trial Court Was Correct In Ruling That Barnett Was Not A Beneficiary Of The Foundation At The Time He Sustained His Injury

The trial court correctly held that Mr Barnett was not a

beneficiary of The Byrd Theatre Foundation (ldquoFoundationrdquo) at the

time of his injury When Mr Barnett was injured falling from a

walkboard he was performing organ repair at the request of

Robert Gulledge an agent of the Foundation At that time the

Foundation did not employ an organ repairperson Mr Barnett

was an organ enthusiast with extensive knowledge of how organs

function Mr Gulledge solicited Mr Barnett a Foundation

volunteer to perform the repairs Mr Barnett agreed

3

When Mr Barnett brought suit against the Foundation the

latter asserted a plea of sovereign immunity In passing on the

plea the trial court held ldquo[t]he fact that plaintiff likes and wanted

to do what he was doing by providing a service of repair to the

charity and received a lsquobenefitrsquo thereby is not the same as or

consistent with the [Foundationrsquos] extending its charitable

beneficence [to Mr Barnett] according to its charitable

undertakingrdquo (JA 411) The trial court denied the Foundationrsquos

plea and the Foundation has appealed that ruling to this Court

(JA 410-413 1682-1686)

The VTLA writes on brief amicus curiae because this case

presents an important opportunity for this Court to articulate the

bounds of the doctrine of charitable immunity

A Standard of Review The VTLA agrees with and incorporates herein by reference

Appellee Barnettrsquos analyses of the standard of review

4

B Applicable Law

In Ola v YMCA of S Hampton Rds Inc this Court set forth

the test assessing the availability of charitable immunity as

follows

To establish charitable immunity as a bar to tort liability an entity must prove at least two distinct elements The absence of either element makes the bar of charitable immunity inapplicable First the entity must show it is organized with a recognized charitable purpose and that it operates in fact in accord with that purpose lsquoIn conducting this inquiry Virginia courts apply a two-part test examining (1) whether the organizationrsquos articles of incorporation have a charitable or eleemosynary purpose and (2) whether the organization is in fact operated consistent with that purpose rsquo

Second assuming the entity has met the foregoing test it must then establish that the tort claimant was a beneficiary of the charitable institution at the time of the alleged injury

270 Va 550 556 (2005) (internal citations omitted) ldquo[Charitable] immunity does not extend however to

invitees or strangers having no beneficial relationship to the

charitable institutionrdquo Id ldquo[S]uits by invitees or strangers for

negligence will not be barred by the doctrine of charitable

immunityrdquo Id at 561

5

In Ola the minor plaintiff was sexually assaulted shortly

after she used the ldquoYMCArsquos swimming pool and was using the

bathroomrdquo Id at 555 This Court held that because she was a

beneficiary of the YMCA a charitable entity any claim against the

YMCA for injuries was barred by the doctrine of charitable

immunity Specifically it held that because she was a beneficiary

of the YMCA at the time of the alleged injury her claims were

barred Id at 565

The central inquiry in this context is ldquowhether the plaintiff

was at the time of his injury accepting the benefits of the

charitable activities of the defendant a charitable organization

thus giving rise to the defense of charitable immunityrdquo Thrasher

v Winand 239 Va 338 339 (1990) (emphasis added)2

Mr Barnett stipulated that the Foundation is a charity The

Foundation therefore must establish that Mr Barnett was

ldquoaccepting the benefits of the charitable activities of the

[Foundation]rdquo at the time of his injury Id In Ola and Thrasher 2 This Court has also cautioned charitable organizations that ldquoit is often prudent and an exercise of fiduciary responsibility for a charitable entity to carry liability insurance for protection in the appropriate circumstancerdquo Ola 270 Va at 561

6

this Court makes it clear that ldquoat the time of the injuryrdquo for

purposes of the case at bar means while Mr Barnett was a

volunteer at the Theatre for the purposes of repairing the organ

on May 23 2009

The analysis of whether Mr Barnett was a beneficiary of the

Foundation at the time he was injured begins with the nature of

the Foundationrsquos charitable purpose The Foundation maintains

the following as its charitable purposes

1 ldquoTo cultivate promote and develop the publicrsquos

knowledge awareness understanding and

appreciation of the performing artsrdquo (JA 249)

2 ldquo[O]wn and [r]estore The Byrd Theatre as a grand

movie palace and community resourcerdquo (JA 251)

3 ldquoRestoration of the 1928 Byrd Theatre to its former

grandeurrdquo including ldquomajor historical renovation of the

organrdquo (JA 266)

4 ldquo[R]estore and preserve the Byrd Theatrerdquo (JA 101)

The Foundation argues that Mr Barnett ldquosquarely fits into

the class of people who benefit from the Foundationrsquos charitable

7

purposerdquo and therefore ldquoit cannot be concluded from all of the

evidence that Mr Barnett received absolutely nothing of value

from the Foundationrsquos charitable workrdquo (Br of Appellant 31-32)

In support of this contention the Foundation points to the

fact that Mr Barnett attends the Theatre twice yearly supports

the Theatre and has a love of theatre organs The Foundation

concludes these facts bring Mr Barnett in alignment with the

Foundationrsquos purpose Ola is instructive in demonstrating why

that is not so at the time Mr Barnett was injured

There is no dispute that Mr Barnett was an organ enthusiast

and a supporter of the Theatre who derived benefits from the

Theatre when he attended events hosted by the Theatre

Similarly the plaintiff in Ola was a beneficiary of the YMCArsquos

charitable purpose when she went swimming in its pool In

support of its holding the Ola Court cited two cases from the

Fourth Circuit Court of Appeals in which individuals entering a

historic church to view stained glass and visiting a charitable

entity for purposes of admiring paintings and other exhibits were

deemed beneficiaries of those charities Ola 270 Va at 564

8

(citing Egerton v RE Lee Memorial Church 385 F2d 381 384

(4th Cir 1968) and Bodenheimer v Confederate Memorial Assrsquon

68 F2d 507 509 (4th Cir 1934))

Applying these principles to the instant case Mr Barnettrsquos

presence at the Theatre on the day he was injured is

distinguishable in a conclusive way Cases like Ola Egerton and

Bodenheimer involve plaintiffs deriving a direct benefit from the

charities they were attending at the time they were injured In

contrast Mr Barnett was not watching one of the Theatrersquos

movies or listening to organ music when he fell Rather he was

there to fix the organ He was volunteering Indeed he had

been asked by Robert Gulledge the Foundationrsquos organ

restoration subcommittee chairman to conduct a one-time repair

that was even outside the scope of Mr Barnettrsquos advisory role on

the same subcommittee Mr Barnett was on the organ

restoration subcommittee and it was in that capacity that Mr

Gulledge asked him to fix the organ

In order for the charitable immunity test in Ola to be met in

the case at bar Mr Barnett must have been deriving some

9

benefit related to the charitable purpose of the Foundation at the

time of his injury 270 Va at 563 The facts in Ola are not

analogous to the facts in the case at bar If the plaintiff in Ola

had been a pool aficionado who at the request of the Director

had volunteered to fix some cracks in the pool at the YMCA at the

time she was injured the case would have presented a scenario

much like the one in this case

The fact that the plaintiff in Ola had swum in the pool at the

YMCA before the day she was injured and intended to swim there

after the day she was injured is not the question The question

is whether she was enjoying the YMCArsquos facilities at the time she

was injured Similarly the inquiry here is not whether Mr

Barnett had ever been a beneficiary of the Foundation or that he

would again at some time in the future it is only for purposes of

this analysis whether he was deriving a benefit from the

Foundation at the time he was injured Any other conclusion

would require speculation about ldquoindirect benefitsrdquo which are ldquotoo

remote and speculativerdquo to give rise to the defense of charitable

immunity Thrasher 239 Va at 342

10

The fact that Mr Barnett is an organ enthusiast and owner

who has access to the Theatre organ by being on the organ

subcommittee and received gratification and ldquoeducationrdquo when

he has worked on the organ does not make him a beneficiary3

Certainly one can imagine that a professional organ repairperson

engaged to work on these types of organs has an affinity for

theater organs and receives satisfaction from their efforts It also

can be presumed they receive the same type of ldquoeducationrdquo each

of us receives daily in our every endeavor in activities of daily

living

Mr Barnett received no benefit of any value from his repair

of the organ in response to Mr Gulledgersquos request He received

no payment from the Foundationrsquos only charitable activity of 3 While in this particular case Mr Barnett was a supporter of the charity the result should be the same even if he were not For example if the Theatrersquos heating system needed to be repaired and Mr Gulledgersquos neighbor worked on heating systems for a living but cared nothing about the Theatre and Mr Gulledge asked his neighbor to work on the Theatrersquos system as a favor the neighbor would be no less entitled than Mr Barnett to the same ability to recover if he were injured by the negligence of the Theatre It would be extraordinarily difficult as a practical matter for trial courts to attempt to draw distinctions between different classes of volunteers at charities for purposes of charitable immunity analyses

11

fundraising The only thing that made Mr Barnett ldquodifferentrdquo is

that his motivation was altruistic because he made a contribution

for the benefit of the Foundation

When Mr Barnett was injured he was not a participant or

attendee at any Foundation sponsored program or event that

(i) cultivated the performing arts (ii) promoted them or

(iii) developed the publicrsquos knowledge awareness understanding

and appreciation of them or of the Byrd Theatre as a movie

palace and community resource (JA 190-191)

The Foundation has never held hosted sponsored or

promoted an activity where volunteers repair the organ (J A

103) Mr Barnett was an invitee permitted access to the organ

for the sole purpose of providing specific volunteer repair work

outside the scope of his subcommittee duties

Since Mr Barnett was not a beneficiary of the Foundationrsquos

charitable purpose when he fell from the walkboard while

volunteering to repair the organ the Foundationrsquos appeal lacks

merit and this Court should affirm the ruling of the trial court and

enter final judgment

12

II Knowledge Of The Defective Walkboard Should Be Imputed To The Foundation Even If Such Knowledge Was First Acquired By An Individual Before He or She Became An Agent Of The Foundation

Should the Court address whether it is relevant for purposes

of imputing notice to the Foundation that its agent first obtained

knowledge of the defective walkboard before becoming an agent

the Court should rule in the negative Rather this Court should

hold that it is irrelevant when the agent learned of the defect or

hazardous condition so long as the agent possessed such

knowledge while having an agency relationship with the principal

Knowledge cannot be compartmentalized Case law from a

number of Courts over the years as well as the Restatements

Second and Third of Agency provide support for this position

A Standard of Review

Where a verdict against a principal exonerating that

principalrsquos agent is supported by instructions providing a basis of

liability independent of the agentrsquos negligence and proffered

agency instruction the principal and agent relationship is

immaterial the judgment against the principal stands and failure

13

to give the agency instruction is harmless error Wintergreen

Partners Inc v McGuirewoods LLP 280 Va 374 379-80

(2010)

Further a litigant is entitled to a jury instruction only if the

instruction is supported by sufficient evidence and correctly states

the law Smith v Kim 277 Va 486 491 (2009) This Courtrsquos

role in reviewing the content of a jury instruction is to determine

de novo if the law has been correctly stated Id If a proffered

instruction is not a correct statement of law ldquothe trial court is not

required to correct or amend the instruction rather than [refuse]

to grant itrdquo Honsinger v Egan 266 Va 269 275 (2003)

B Applicable Law

The Court need not decide whether Instruction G tendered

by the Foundation was an appropriate statement of law in the

Commonwealth (JA 1399) There is an independent basis for

liability against the Foundation that would not require the Court

to address Instruction G There was evidence adduced at trial

that Mr Gulledge while an agent of the Foundation obtained

actual knowledge of the defective walkboard (JA 1116-1117

14

1134) Mr Gulledgersquos knowledge bound the Foundation and

served as the basis for Instruction 14 (JA 1421)

Nevertheless should the Court address whether Instruction

G tendered by the Foundation was a correct statement of the law

of the Commonwealth it should rule in the negative Instruction

G states as follows

A corporation knows a fact only as its officers and agents know it The corporation does not know all that its agents know but only what comes to the agents while acting for the corporation within the scope of their agency when it is the agentsrsquo duty to report their knowledge to the general officer or agents of the company

(JA 1399) By requesting the adoption of Instruction G the Foundation

asks this Court to hold that only knowledge obtained by an agent

during the period of agency and within the scope of that agency

may be imputed to the principal In other words information

secured prior to the agency relationship but known to the agent

during the agency and can be transmitted to the principal may

not be imputed to the principal

The Foundationrsquos position is contrary to the law of our

Commonwealth In Cabin Branch Min Co v Hutchinsonrsquos Admrsquox

15

this Court held that knowledge by a mine pit-boss of an unsafe

condition if present in his memory in the course of the scope of

his job duties must be imputed to the master even if the

knowledge was acquired before his appointment as pit-boss 112

Va 37 41 (1911) The Court stated the following

[T]he correct principle is thus stated in 31 Cyc p 1593 lsquoThe more logical rule however and that which is supported by the greatest weight of recent authority is that knowledge of an agent acquired prior to the existence of the agency will be chargeable to the principal if it be clearly shown that the agent while acting for the principal in a transaction to which the information is material has the information present in his mindrsquo

Id at 40 Virginia is not alone in rejecting the approach proffered by

the Foundation In 1871 the United States Supreme Court

stated

[T]he doctrine now seems to be established that if the agent at the time of effecting a purchase has knowledge of any prior lien trust of fraud affecting the property no matter when he acquired such knowledge his principal is affected thereby If he acquire the knowledge when he effects the purchase no question can arise as to his having it at that time if he acquired it previous to the purchase the presumption that he still retains it and has it present to his mind will depend on the lapse of time and other circumstances Knowledge communicated to the principal himself he is bound to recollect but he is not bound by

16

knowledge communicated to his agent unless it is present to the agentrsquos mind at the time of effecting the purchase Clear and satisfactory proof that it was so present seems to be the only restriction required by the English rule as now understood With the qualification that the agent is at liberty to communicate his knowledge to his principal it appears to us to be a sound view of the subject

The Distilled Spirits 78 US 356 366-367 (1871) (internal

citations omitted)

Similarly in a case involving a dangerous condition on a

premises resulting in injury to an infant a New York Court held

In the law of negligence notice to a previous owner does not run with the land as do certain covenants in the law of real estate Nevertheless notice to an agent who is retained by the new owner is binding on the successor principal provided such a period of time has not elapsed between the receipt of notice and commencement of the new agency as to constitute an unreasonable expectation from human memory

Goodstein v Milmo Realty Corp 8 NYS2d 243 244 (NY City

Ct 1938)

The approach articulated by the United States Supreme

Court in Distilled Spirits and a number of state courts was

memorialized in the Restatement (Second) of Agency sect 276

(1958) which states ldquo[e]xcept for knowledge acquired

confidentially the time place or manner in which knowledge is

17

acquired by a servant or agent is immaterial in determining the

liability of his principal because of itrdquo

More recently the Restatement (Third) of Agency sect 503

(2006) addressed specifically whether knowledge obtained by an

agent before the agentrsquos relationship with the principal should be

imputed to the principal Its legal reasoning was that such

knowledge should be imputed to the principal

[w]hen an agent is aware of a fact at the time of taking authorized action on behalf of a principal and the fact is material to the agentrsquos duties to the principal notice of the fact is imputed to the principal although the agent learned the fact prior to the agentrsquos relationship with the principal whether through formal education prior work or otherwise Likewise notice is imputed to the principal of material facts that an agent learns casually or through experiences in the agentrsquos life separate from work

Restatement (Third) of Agency sect 503 cmt e (2006) Adopting the approach described in the Restatement a

Washington state court noted that ldquoin most instances the time

place or manner in which the agent obtains knowledge is

immaterial in charging it to the principalrdquo Diaz v Wash State

Migrant Council 265 P3d 956 968 (Wash Ct App 2011)

18

The rationale for the decisions cited above is contained in

the commentary to the Restatement (Second) of Agency sect 276 as

follows

Since the mind of the agent cannot be divided into compartments the principal should be bound by whatever knowledge the agent has irrespective of its source or time of acquisition unless it is the kind of knowledge which the agent can properly disregard in the specific case because of having acquired it confidentially

Restatement (Second) of Agency sect 276 cmt a (1958)

It is requested to the extent not previously done so

explicitly that this Court adopt the approach of the Restatement

(Third) of Agency sect 503 cmt e (2006) and reject the

Foundationrsquos position that only knowledge obtained by a

Foundation agent during the time of his relationship with the

principal should be imputed to the Foundation From a policy

perspective the approach proffered by Mr Barnett is the better

one Knowledge cannot be compartmentalized Either it exists or

it does not If there is evidence adduced at trial that the agent

had such knowledge during his agency relationship with the

principal then the principal should be bound by it even if he

received such information prior to the principal-agent

19

relationship The relevant inquiry is therefore centered upon the

agentrsquos knowledge at the time of the agency relationship

irrespective of when that knowledge was first obtained

Additionally a ruling in favor of the Foundation on this issue

would lead to unintended outcomes in premises liability cases

Suppose Mr Gulledge first learned of the defective walkboard

while an agent of the Foundation In this setting there would be

no dispute as to imputation However should Mr Gulledge have

learned of the defect prior to being an agent of the Foundation

then under the Foundationrsquos theory his knowledge cannot be

imputed and the Foundation cannot be held liable This would be

so despite the fact that Mr Gulledgersquos knowledge of the defective

walkboard would have been for a greater period of time thereby

making the Foundation potentially more culpable

Or for example suppose Mr Gulledge while on an

employment interview with the Foundation noticed that the

walkboard was defective If Mr Gulledge was later hired by the

Foundation it would be inequitable to bar imputation of that

knowledge to the Foundation Mr Gulledge had knowledge of the

20

defect while an agent of the Foundation the mere fact that he

first obtained that knowledge before he became an agent should

not preclude recovery for persons injured by hazardous

conditions

The VTLA requests that this Court follow the reasoning of

the Restatements and that supported by over a hundred years of

jurisprudence and hold that knowledge obtained by an agent

prior to the agency-principal relationship and still known by the

agent can be imputed to the principal

F CONCLUSION

For the reasons stated above the VTLA respectfully requests

that this Court affirm the decisions of the trial Court and enter

final judgment in favor of Appellee Barnett

21

Respectfully submitted

THE VIRGINIA TRIAL LAWYERS ASSOCIATION

The Virginia Trial Lawyers Association 700 East Main Street Suite 1400 Richmond Virginia 23219 (804) 343-1143 (804) 343-7124 (fax) By ______________________________ Nathan J D Veldhuis Chaikin Sherman Cammarata and Siegel PC VA Bar No 68746 1232 17th Street NW Washington DC 20036 Tel (202) 659-8600 Fax (202) 659-8680 nathandc-lawnet and

22

______________________________ Gobind Sethi Hall amp Sethi PLC VA Bar No 72266 Samantha K Sledd Hallamp Sethi PLC VA Bar No 82656 12120 Sunset Hills Rd Suite 150 Reston VA 20190 Tel (703) 925-9500 Fax (703) 925-9166 gsethihallandsethicom On behalf of the Virginia Trial Lawyers Association

23

G CERTIFICATE On this 15th day of November 2013 I certify as follows

1 That I have complied with Rule 526(h) of the Rules of

the Supreme Court of Virginia

2 That 15 printed copies of the Brief of Amicus Curiae

with 1 electronic copy on CD have been hand-filed with

the Clerk of the Supreme Court of Virginia

3 That three printed copies of the Brief of Amicus Curiae

with an electronic copy on CD have been served via

UPS Ground Transportation to counsel for Appellant

Lynne Jones Blain Esquire Harmon Claytor Corrigan

amp Wellman 4951 Lake Brook Drive Suite 100 Glen

Allen Virginia 23060 and to counsel for Appellee

Mahlon G Funk Jr Hirschler Fleischer PC 2100 East

Cary Street Post Office Box 500 Richmond Virginia

23218

___________________________ Nathan J D Veldhuis

IN THE

Supreme Court of Virginia

MICHELLE C HARMANAdministratrix of the ESTATE of

JOSEPH A GRANA III Deceasedand

STEPHANIE E GRANA BEMBERISPersonal Representative of the ESTATE OF

JOSEPH E GRANA SR DeceasedAppellants

v

HONEYWELL INTERNATIONAL INCAppellee

RECORD NO 130627

REPLY BRIEF AMICUS CURIAEOF VIRGINIA TRIAL LAWYERSrsquo ASSOCIATION

IN SUPPORT OF APPELLANTS

LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond Virginia 23219 (804) 644-0477A Division of Lantagne Duplicating Services

Avery T Waterman Jr Esq (VSB No 27118)Patten Wornom Hatten amp Diamonstein LC12350 Jefferson Avenue Suite 300Newport News Virginia 23602Telephone (757) 223-4567Facsimile (757) 223-4499Awatermanpwhdcom

i

TABLE OF CONTENTS

Table of Authorities ii Amicus Statement of Interest 1 Argument 4 I RELIABLE AUTHORITY 6 II OTHER INCIDENTS 10 III JURY INSTRUCTION 11 IV ABEL OPINIONS 13 V NORMAN OPINIONS 14 Conclusion 15 Certificate 16 Addendum 1 (3314) Letter of Roger T Creager Esq [Counsel for Appellants]

ii

TABLE OF AUTHORITIES

CASES

Federal

Circuit United States v Martinez 588 F3d 301 (6th Cir 2009) cert denied 131 SCt 538 (2010) 7

District

Tafas v Dudas 511 F Supp2d 652 (EDVa 2007) 1 2

State

Foreign

OrsquoBrien v Angley 63 Ohio St2d 159 407 NE2d 490 (Ohio Sup Ct 1980) 7

Virginia

Agelasto v Frank Atkinson Real Estate 229 Va 59 (1985) 5 Blue Stone Land Co v Neff 259 Va 273 (2000) 4 5 Bostic v About Women OBGYN PC 275 Va 567 (2008) 6 8 Bottoms v Bottoms 249 Va 410 (1995) 1 4 Combs v Norfolk and Western Ry Co 256 Va 490 (1998) 13 Crowson v Swan 164 Va 82 (1935) 3 CSX Transp V Casale 247 Va 180 (1994) 5 Dandridge v Marshall 267 Va 591 (2004) 4 5

iii

Doe v Dewhirst 240 Va 266 (1990) 5 13 Goins v Wendyrsquos Intrsquol 242 Va 333 (1991) 10 Hale v Maersk Line Ltd 284 Va 358 (2012) 4 Hinkley v Koehler 269 Va 82 (2005) 5 Holmes v Levine 273 Va 150 (2007) 12 13 Keesee v Donigan 259 Va 157 (2000) 13 Lawlor v Commonwealth 285 Va 187 (2013) 11 Lawrence v Commonwealth 279 Va 490 (2010) 4 McClung v Commonwealth 215 Va 654 (1975) 11 12 Norfolk amp Western Ry v Puryear 250 Va 559 (1995) 5 Rhoades v Painter 234 Va 20 (1979) 6 Ring v Poelman 240 Va 323 (1990) 5 Tittsworth v Robinson 252 Va 151 (1996) 5 Velocity Express Mid-Atlantic v Hagen 266 Va 188 (2003) 10 11 Venable v Stockner 200 Va 900 (1959) 6 Whitehead v H and C Dev Corp 204 Va 144 (1961) 1 Wood v Woolfolk Properties Inc 258 Va 133 (1999) 10 Wright v Kaye 267 Va 510 (2004) 14

iv

STATUTES

Virginia Code sect801-3792 3 12 Virginia Code sect801-4011 2 6 8

RULES OF COURT

Va Sup Ct R 530(e) 2

AUTHORITATIVE TREATISES

Advisory Committee Notes to Federal Rules of Evidence Fed R Evid 803 Exception 18 56 FRD 183 (1972) 7 BLACKrsquoS LAW DICTIONARY (9TH

ED 2009) 1

2 McCormick on Evidence sect321 (6th ed 2006) 7

5 Wigmore on Evidence sect1692 (Chadbourn rev) 7

1

AMICUS STATEMENT OF INTEREST

Honeywell asserts Brief Amicus Curiae ldquois in substance a second

merits briefrdquo and ldquotransparent ploy to use an amicus brief to expand the

page limits for the Administratorsrsquo arguments not a serious assessment of

the publicrsquos interestrdquo Brief of Appellee (ldquoBArdquo) at 40-41 Honeywell is wrong

First it is not collusion1 Bottoms v Bottoms 249 Va 410 (1995)(four

Appellee amici curiae) Second Honeywell misconstrues amicus status

Amicus is a non-party ldquowho petitions the courthellipto file a brief in the

action because that person has a strong interest in the subject matterrdquo

BLACKrsquoS LAW DICTIONARY (9th ed 2009) at 98 This Court recognizes amicus

ldquoon the ground that ithelliphas a substantial interest in the subject matterrdquo

Whitehead v H and C Dev Corp 204 Va 144 149 (1961)2

1 Amicus affirms no counsel for a party authored this brief in whole or in part and no person or entity made a monetary contribution to its preparation or submission represents it obtained consent of Appellant but not Appellee to file and files Reply Brief with Motion for Leave to File subject to Administratorsrsquo objection BA is untimely improper and invalid

2 Federal law in Virginia is consistent explicit and persuasive authority ldquoAlthough an amicushellipis not a party to the litigation and participates only to assist the court nevertheless by the nature of things an amicus is not normally impartialhellipand there is no rulehellipthat amici must be totally disinterestedrdquo Tafas v Dudas 511 F Supp2d 652 661 (EDVa 2007)

2

Va Sup Ct R 530(e)(emphasis added) states ldquoA brief amicus

curiae shall comply with the rules applicable to the party supportedrdquo This

contemplates amicus reaching the merits Cf Tafas 511 F Supp2d at

652 (ldquomere fact that a non-party seeks to put forth [merits] opinion in the

case does not disqualify it as an amicusrdquo)

Third this appealrsquos five issues will be precedent beyond this case

That implicates public interest and policy

Va Code sect801-4011rsquos ldquoreliable authorityrdquo exception in Assignment

of Error (ldquoAOErdquo) 1 is evidentiary cornerstone of essentially every medical

malpractice case and this Courtrsquos opinions construe it in such cases There

is genuine public interest - plaintiff and defendant - in that limited statutory

exception not being eroded by Honeywell skipping its evidentiary

precondition introducing documentary exhibit and admitting biased case-

specific investigation

Honeywellrsquos ldquoabsence of other incidentsrdquo arguments and their judicial

ratification in AOE 2 cut across product liability medical malpractice

vehicular accidents and other torts There is genuine public interest in this

Courtrsquos prohibitions thereof - and of mirror-image ldquoevidence of other

incidentsrdquo - not being eroded by Honeywellrsquos repeated impermissible

closing arguments and by judicial ratification thereof

3

Administratorsrsquo multiple cause instruction in AOE 3 pervades all tort

litigation There is genuine public interest in a more informative causation

instruction that explicitly fully and fairly informs juries about two or more

possible proximate causes that is based on ldquoanyrdquo evidence introduced

plaintiff andor defendant and that is not rejected contrary to Va Code

sect801-3792 because it is not the ldquoModelrdquo then

Honeywellrsquos introduction of improper multiple lay opinions by Abel

and Norman in AOE 4 and 5 is a specter in any case There is genuine

public interest in litigants not being denied a fair day in court because

admittedly ldquocrucialrdquo fact witnesses wrongfully are allowed to give expert

opinion and otherwise inappropriate testimony

Finally ensuring justice in this case is legitimate public interest Fiscal

hardships of lengthy trials about which Honeywell complains are suffered

disproportionately by private individuals like Administrators versus Goliaths

like Honeywell so it is fundamental that justice not be denied by prejudicial

error Cf Crowson v Swan 162 Va 82 83 (1935)(ldquonever been

contendedhellipthe rights of a litigant should be determined by matters of

expediencyrdquo)

4

ARGUMENT

Honeywell argues ldquoabuse of discretionrdquo review standard BA15-16

but that is red-herring Even assuming that arguendo re AOEs 1 4 and 5

judge has ldquono discretion to admit clearly inadmissible evidencerdquo Lawrence

v Commonwealth 279 Va 490 496 (2010) or re AOEs 2 and 3 to make

errors of law

Honeywell misstates ldquoCourt views the facts in the light most favorable

to the prevailing partyrdquo and ldquopresume[s] that the law was correctly applied

to the factsrdquo citing Bottoms BA16 Bottoms is a custody case reviewing

ldquobest interestsrdquo findings not errors of evidence and law

Honeywell impliedly concedes its misstatement invoking harmless

error BA17 quoting Blue Stone Land Co v Neff 259 Va 273 279 (2000)

And judgment is affirmed only when this Court ldquocan say that the error

complained of could not have affected the resultrdquo Id

Evidentiary error is ldquopresumed prejudicial unless the record clearly

shows that the error could not have affected the resultrdquo Dandridge v

Marshall 267 Va 591 597 (2004) and ldquoerroneous admission of evidence

which may have lsquotipped the scalesrsquordquo is not harmless Hale v Maersk Line

Ltd 284 Va 358 377 (2012) This Court reverses for error on grounds

undercutting Honeywellrsquos arguments Eg Lawrence supra 279 Va at

5

499 (ldquospeculative and unreliablerdquo opinions inadmissible) Hinkley v

Koehler 269 Va 82 91-92 (2005)(ldquodoes not plainly appear from the record

[erroneous expert evidence] could not have affected the juryrsquos verdict

[lsquodespitersquo] that defendants had another expert witnessrdquo) Dandridge supra

267 Va at 597 (ldquonothing in the recordhellipclearly shows [evidentiary]

errorshellipdid not affectrdquo) Blue Stone supra 259 Va at 280 (different

ldquoevidencehellipmight have produced a different resultrdquo) Tittsworth v

Robinson 252 Va 151 155 (1996)(no harmless error because ldquono way of

determining what evidence may have influenced the juryrdquo) Norfolk amp

Western Ry Co v Puryear 250 Va 559 563 (1995) (ldquo[erroneously

admitted exhibit] could have been reviewed during the jury deliberations

and this would have impermissibly emphasized Puryearrsquos version of the

facts to the prejudice of NampWrdquo) 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)(ldquocannot

determine from the record [on what] the jury based its verdict [so] we

cannot say that the error was harmlessrdquo) Agelasto v Frank Atkinson Real

Estate 229 Va 59 65 (1985)(ldquoimproper evidence may have tipped the

scales [so] we cannot sayhelliperror was harmlessrdquo) Doe v Thomas 227 Va

466 473 (1984)(ldquocannot say as a matter of law that the inadmissible

6

evidence did not affect the juryrdquo) Rhoades v Painter 234 Va 20 24

(1979)(ldquocannot say as a matter of law the erroneous instruction could not

have affected the resultrdquo) Venable v Stockner 200 Va 900 905

(1959)(ldquodoes not necessarily show that the admission of this evidence was

harmlessrdquo)

Hence this Court undertakes evenhanded review of all evidence not

one-sided view of Honeywellrsquos evidence Honeywell bears burden of

showing errors of evidence andor law individually and collectively ldquocould

not have affected the resultrdquo may not have ldquotipped the scalesrdquo

I RELIABLE AUTHORITY

Va Code sect801-4011 includes ldquotwo preconditions to the admission of

hearsay First the testifying witness must have relied upon [it] second the

statements must be established as lsquoa reliable authorityrsquo by testimonyrdquo

Bostic v About Women OBGYN PC 275 Va 567 576 (2008)

Honeywell glosses inaccurately ldquoDr Clarke relied on the report and

vouched for its authorityrdquo BA18 Honeywell asserts falsely its expert

satisfying first precondition (ldquorelied uponrdquo) itself satisfied second

precondition (ldquoreliable authorityrdquo) ldquoDr Clarke testified that he relied on the

report and thereby endorsed its authorityrdquo Id (emphasis added)

7

In truth Honeywellrsquos attorney said Mooney Report is ldquodocument thatrsquos

normally relied upon by expertsrdquo JA1523 Thatrsquos not requisite ldquotestimonyrdquo

Consequently judge admitted absent expert opinion that inherently is

not ldquoreliable authorityrdquo biased case-specific investigation That is contrary

to history jurisprudence and commentators

Forerunner federal ldquolearned treatiserdquo exception presumes ldquohigh

standard of accuracy is engendered by various factors the treatise is

written primarily and impartially for professionals subject to scrutiny and

exposure for accuracy with the reputation of the writer at stakerdquo Advisory

Committee Notes to Federal Rules of Evidence Fed R Evid 803

Exception 18 56 FRD 183 316 (1972) ldquo[A]uthors of treatises have no

bias in any particular caserdquo 2 McCormick on Evidence sect321 (6th ed 2006)

United States v Martinez 588 F3d 301 312 (6th Cir 2009) cert

denied 131 SCt 538 (2010) ruled material inadmissible as learned

treatise because it ldquowas prepared forhelliplitigation purposes it was not

subjected to peer review or public scrutiny and it was not lsquowritten primarily

for professionalshellipwith the reputation of the writer at stakersquordquo OrsquoBrien v

Angley 63 Ohio St2d 159 407 NE2d 490 494 (Ohio Sup Ct

1980)(citing 5 Wigmore on Evidence sect1692 at 6 (Chadbourn Rev)) held

admission of JAMA editorial as learned treatise ldquoprejudicially erroneousrdquo

8

because ldquoit was written with a view toward litigation [and] was primarily an

expression of opinion by a physician concerning a controversial subject

which posed a risk of litigation for his colleagues in the medical professionrdquo

By law sect801-4011 is ldquostrictly construed and not to be enlarged in

[its] operation by construction beyond [its] express termsrdquo Bostic 275 Va

at 576 By public policy its ldquosecond preconditionrdquo (ldquoreliable authorityrdquo) is

construed narrowly for ldquolearned treatisesrdquo not enlarged for biased case-

specific investigation (whose creators must testify)

Alternatively Honeywell asserts incorrectly judge erring ldquoby permitting

[Mooney Reportrsquos] introduction into evidencehellipas distinct from the

argument that the report does not qualify as a reliable authority - was never

raised below and the Administrators do not raise it nowrdquo BA19 Honeywell

claims falsely ldquoit is thus waived twice overrdquo Id

In truth Administrators objected to Mooney Report testimony

JA1520-1521 and Mooney Report itself as documentary exhibit id and

JA1525 both for lack of ldquofoundationrdquo (since sect801-4011 provides none) Id

AOE 1 preserves admission of ldquohearsay Mooney Reportrdquo itself as error

Opening Brief of Appellants (ldquoOBrdquo) at 1 Administrators brief judge ldquoerred in

allowing Honeywellrsquos experthellipto introduce the entire hearsay report into

evidencerdquo OB32 That is not waiver

9

Tacitly conceding waiver is meritless Honeywell alternatively argues

Mooney Report admitted as documentary exhibit is harmless BA19-22

Honeywell incorrectly pooh-poohs Mooney Report is ldquoblandrdquo ldquoexpresses no

opinion about the cause of accident [and] makes no comment on whether

Honeywellrsquos autopilot was defectiverdquo BA21-22

Honeywell spins the following Mooney Report excerpt as ldquoneedle-in-

the-haystack statement - which was merely cumulative of other evidence -

could not have affected the outcome of this trialrdquo BA22

Conclusions The IIC [ldquoNTSBrdquo] Lycoming representative and myself [Mooney] did not find any evidence that the aircraft engine was not capable of producing power or that the aircraft was uncontrollable at the time of the accident

Honeywell Exhibit 11 JA463 (emphasis added) Thatrsquos just not so

Indisputably Mooney Report ldquoConclusionrdquo on the ultimate issue is not

bland impliedly expresses opinion about the cause of accident and

essentially comments Honeywellrsquos autopilot was not defective Although

ldquocauserdquo ldquoautopilotrdquo and ldquodefectiverdquo are not used Conclusion the aircraft

was ldquonot uncontrollablerdquo (as Administrators allege) is tantamount to opining

autopilot system was working sufficiently ie not defective and impliedly

that there was pilot error

10

Therefore although NTSB Report as admitted left jury dangling about

crash cause (showing no conclusion re cause) Mooney Report went the

final step and reached the ultimate issue by effectively concluding

Honeywellrsquos autopilot was ldquonot uncontrollablerdquo not defective Because it

opined on behalf of ldquoThe IIC [lsquoNTSBrsquo]rdquo Mooney Report purported to speak

on behalf of NTSB the Federal agency officially responsible for crash

investigation even though NTSB Report admitted did not speak re cause

That is materially prejudicial to Administrators and Honeywell cannot

prove jury did not read and rely on that pivotal Conclusion particularly with

Honeywell calling Mooney Report to juryrsquos attention twice in closing

JA1582-1583 This Court cannot say ldquoerror complained of could not have

affected the resultrdquo thus error was not harmless

II OTHER INCIDENTS

A Honeywell ignores Goins v Wendyrsquos Intrsquol 242 Va 333 (1991)

Wood v Woolfolk Properties Inc 258 Va 133 138 (1999)

and Velocity Express Mid-Atlantic v Hagen 266 Va 188

(2003) They control

B Honeywell conjures waiver claiming several cases hold

Administrators had to move for curative instruction precisely

11

when they objected to closing statements BA23-25 but careful

scrutiny discloses none hold that Velocity Express controls

C Honeywell claims ldquoobvious and crucial differencerdquo between (1)

absence of other incidents and (2) what Administratorsrsquo experts

testified BA26-27 But both are improper plus Honeywell

argued the worst absence of other incidents transcript does

not mention Administratorsrsquo experts in any of the five violations

and judge claiming it so does not make it so

D Honeywellrsquos five ldquoabsence of other incidentsrdquo rule violations is

prejudicial not harmless General instruction at trial outset is

not curative instruction after and for five violations and

Administratorsrsquo pure protest retorts in closing - which unlike

cases cited by Honeywell BA30 did not precipitate

Honeywellrsquos violations - are not curative particularly not given

judgersquos ratification of Honeywellrsquos five violations Velocity

Express

III JURY INSTRUCTION

A Honeywell ignores McClung v Commonwealth 215 Va 654

(1975) and Lawlor v Commonwealth 285 Va 187 (2013) They

control

12

B Honeywell concedes jury had only ldquoeitherorrdquo choice ldquoAt the

end of the day the jury was presented with a clear

choicehellipautopilothellip Orhellippilothelliprdquo BA13 (emphasis added)

C Honeywell misstates Administrators rely ldquoprimarily on a single

case Holmesrdquo BA34 then criticizes Administrators that

Holmes does not reach supporting evidence coming from both

plaintiffrsquos and defendantrsquos evidence BA34-35 In truth

Administrators relied on Holmes and McClung together with

McClung reaching evidence coming from plaintiffrsquos and

defendantrsquos case Brief Amicus Curiae at 30-31 as argued by

Administrators JA1545-1547 and TT3222-3223

D Honeywell objected to Administratorsrsquo multiple-cause instruction

solely because it then was not the ldquoModel Jury Instructionrdquo

JA1545-1547 not on redundancy confusion and inconsistency

grounds it raises on appeal first-time Correspondingly judge

indisputably sustained Honeywellrsquos lone itrsquos-not-the-Model

objection on that ground - clear unjustified indefensible violation

of sect801-3792 - not on Honeywellrsquos new different grounds

E Virginia Model Jury Instruction 5000rsquos post-trial amendment

effective December 2013 added the disputed sentence

13

Administrators requested There may be more than one

proximate cause of an accident injury or damage (emphasis

added) Citing Holmes its ALERTS emphasizes Where the

evidence in a case shows the possibility of more than one

proximate cause of an accident injury or damage the final

[new] sentence of Instruction should be given to fully and fairly

explain the principle of proximate cause to the jury Id

(emphasis added)

IV ABEL OPINIONS

A Honeywell ignores Combs v Norfolk and Western Ry Co 256

Va 490 (1998) Keesee v Donigan 259 Va 157 (2000) and

Doe v Dewhirst 240 Va 266 (1990) They control

B Honeywell admits Abel is ldquopretty critical witnessrdquo JA657 who

ldquoentered the realm of opinionrdquo BA37 and judge treated Abel as

ldquoquasi-expertrdquo TT349 But Abel never was qualified as expert

C Honeywell lists Administratorsrsquo objections to Abelrsquos testimony

irrelevant prejudicial subjective speculative unreliable

unfounded and opinion BA37 Honeywell simply pays lip-

service and does not actually refute each objection

14

D Honeywell focuses mostly on weather particularly visibility

BA37-39 Honeywell inaccurately claims ldquozero visibilityrdquo was

ldquoundisputedrdquo BA38 when in truth it was disputed it actually

was knowable only by pilot and Honeywellrsquos own exemplar

photo shows visibility through cloud covering BA8(Tr Ex 987)

E Abelrsquos opinion testimony about pilotrsquos ldquojudgmentrdquo was unduly

prejudicial Honeywell inundated the jury with it JA792

JA1352 JA1354 JA1645 and JA1594-1595

V NORMAN OPINIONS

A Honeywell ignores Wright v Kaye 267 Va 510 (2004) It

controls

B Honeywell admits Normanrsquos testimony ldquotouched on his opinionrdquo

BA 40 gross understatement Normanrsquos lay subjective opinions

are inflammatory hyperbole couched in exaggerated terms

eg ldquoafraidrdquo ldquohealthy fearrdquo ldquoa thousand different mistakesrdquo

and ldquosomething bad happenrdquo but Honeywell does not address

each of Administratorsrsquo objections re them

C Normanrsquos subjective opinions are unduly prejudicial individually

bespeaking pilot error and collectively screaming it Honeywell

inundated the jury JA1380-1389 JA1593-1594 and JA1598

15

CONCLUSION

This Court should reverse and remand all issues for retrial

Respectfully submitted s Avery T Waterman Jr AVERY T WATERMAN JR ESQ

VSB 27118 Patten Wornom Hatten amp Diamonstein LC 12350 Jefferson Avenue Suite 300 Newport News Virginia 23602 Telephone (757) 223-4567 Facsimile (757) 223-4499 Awatermanpwhdcom

Counsel for Amicus Curiae

16

CERTIFICATE OF SERVICE

I hereby certify that on March 4 2014 fifteen copies of the above

Reply Brief Amicus Curiae have been hand-delivered to the clerkrsquos office

This same date three copies of the same have been sent via first class

postage prepaid mail to the following counsel

Counsel for Appellants

Roger T Creager Esq The Creager Law Firm PLLC 1500 Forest Avenue Suite 120 Richmond VA 23229 Telephone (804) 747-6444 Facsimile (804) 747-6477 rcreagercreagerlawfirmcom John C Shea Esq Mark S Lindensmith Esq Marks amp Harrison PC 1500 Forest Avenue Richmond VA 23229 Telephone (804) 282-0999 Facsimile (804) 288-1853 jsheamarksandharrisoncom mlindensmithmarksandharrisoncom

17

Anita Porte Robb Esq Admitted pro hac vice in trial court Gary C Robb Esq Admitted pro hac vice in trial court Robb amp Robb LLC One Kansas City Place - Suite 3900 1200 Main Street Kansas City MO 64105 Telephone (816) 474-8080 Facsimile (816) 474-8081 arobbrobbrobbcom grobbrobbrobbcom Counsel for Appellee N Thomas Connally III Esq Hogan Lovells US LLP Park Place II 7930 Jones Branch Drive McLean VA 22102 Telephone (703) 610-6100 Facsimile (703) 610-6200 tomconnallyhoganlovellscom Catherine E Stetson Esq Jessica L Ellsworth Esq Hogan Lovells US LLP Columbia Square 555 Thirteenth Street NW Washington DC 20004 Telephone (202) 637-5600 Facsimile (202) 637-5910 catestetsonhoganlovellscom jessicaellsworthhoganlovellscom

18

Turner A Broughton Esq Patrick R Hanes Esq Joseph R Pope Esq WF Drewry Gallalee Esq Harold E Johnson Esq Williams Mullen Clark amp Dobbins Williams Mullen Center 200 South 10th Street PO Box 1320 Richmond VA 23218-1320 Telephone (804) 420-6939 Facsimile (804) 420-6507 tbroughtonwilliamsmullencom phaneswilliamsmullencom jpopewilliamsmullencom dgallaleewilliamsmullencom hjohnsonwilliamsmullencom Michael McQuillen Esq Admitted pro hac vice Austin W Bartlett Esq Pending pro hac vice admission Adler Murphy amp McQuillen LLP 20 S Clark Suite 2500 Chicago IL 60603 Telephone (312) 345-0700 Facsimile (312) 345-5860 mmcquillenamm-lawcom abartlettamm-lawcom s Avery T Waterman Jr Of Counsel

PRESENT All the Justices VICTORIA COALSON OPINION BY v Record No 130837 JUSTICE S BERNARD GOODWYN February 27 2014 VICTOR CANCHOLA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Bruce D White Judge

In this appeal we consider whether the circuit court erred

in remitting a juryrsquos award of punitive damages

Background

On March 1 2011 Victoria Coalson (Coalson) and Michael

Stemke (Stemke) each filed lawsuits in the Circuit Court of

Fairfax County against Victor Canchola (Canchola) seeking

compensatory and punitive damages for personal injuries

sustained in an automobile accident The circuit court

consolidated Coalsonrsquos and Stemkersquos actions

At the conclusion of the trial the jury awarded Coalson

$5600 in compensatory damages and $100000 in punitive damages

against Canchola Stemke received $14000 in compensatory

damages and $100000 in punitive damages The circuit court

entered a final order on January 11 2013 but the court

suspended the order for fourteen days to give the parties an

opportunity to file post-trial motions and submit an amended

final order if they wished Canchola filed a post-trial motion

for remittitur of both punitive damages awards arguing that the

2

awards were excessive under Virginia law and the Due Process

Clause of the Fourteenth Amendment

The circuit court found that Cancholarsquos conduct was

egregious Nevertheless it noted ldquoa significant disparityrdquo

between the plaintiffsrsquo compensatory damages awards although

both punitive damages awards were the same Based on this

disparity it concluded that Coalsonrsquos award was arbitrarily

made The circuit court remitted Coalsonrsquos punitive damages to

$50000 While it recognized that ldquo[t]here is no bright line or

formula to be applied[]rdquo the court reduced the award to ldquoless

than a ten percent ratiordquo

The circuit court entered an order granting Cancholarsquos

motion for remittitur regarding Coalsonrsquos punitive damages award

on February 8 2013 On February 28 2013 the court entered an

amended final order reflecting its remittitur ruling noting

Coalsonrsquos acceptance under protest summarizing the proceedings

denying Coalsonrsquos motion to reconsider and awarding post-

judgment interest Coalson filed a notice of appeal with the

circuit court on March 21 20131

1 Rule 59(a) states that a party must file her notice of

appeal within 30 days of entry of the trial courtrsquos final order Rule 55(b) provides for an extension of time to file a notice of appeal if the trial court ldquomodifie[s]rdquo its final order The rule also states that ldquothe time for filing the notice of appeal shall be computed from the date of final judgment entered following such modificationrdquo Rule 55(b) The circuit courtrsquos February 8 2013 order granting Cancholarsquos motion for remittitur

3

Facts

At approximately 630 pm on February 15 2009 Canchola

was driving and talking on his cellular telephone when he

attempted to turn left at an intersection on Waxpool Road in

Loudoun County He turned in front of a vehicle driven by

Coalson who had the right of way and was unable to stop before

colliding with the passenger door of Cancholarsquos vehicle

Coalson and her passenger Stemke suffered minor injuries

Canchola who was intoxicated at the time of the accident

had an extensive record of driving while intoxicated Between

1991 and 1997 Canchola was convicted six times of driving while

intoxicated and once of driving with a suspended license In

1996 his driverrsquos license was revoked In 2004 he was

convicted yet again of driving while intoxicated in California

The night before the accident Canchola stayed at a hotel

in Ashburn Virginia with his girlfriend Lori Rudegeair

(Rudegeair) who was visiting from Pennsylvania At brunch in

Alexandria on the day of the accident Canchola drank several

modified the original judgment and tolled the thirty-day time limit but it was not a final order because Coalson could still exercise her right to accept remittitur under protest pursuant to Code sect 801-3831 See Ragan v Woodcroft Village Apartments 255 Va 322 327 497 SE2d 740 743 (1998) (defining ldquofinal order or judgmentrdquo as ldquoone that disposes of the whole subject of the case and gives all relief contemplatedrdquo) On February 28 the circuit court entered an amended final judgment noting Coalsonrsquos acceptance under protest and Coalson filed her notice within thirty days of the February 28 order making her notice timely

4

glasses of champagne Afterward Canchola and Rudegeair walked

to a nearby pub and Canchola drank two rounds of his favorite

drink combination a vodka martini and light beer They left

the pub sometime after 330 pm when a police officer called

Canchola to inform him that a vehicle Canchola had reported

missing was located in Leesburg Virginia Because Canchola

slurred his speech while speaking to the police officer the

officer advised Canchola not to drive when he came to pick up

the vehicle

Despite the warning Canchola drove Rudegeairrsquos car to

Leesburg He stopped approximately a block from where he was

supposed to meet the officer and had Rudegeair drive the rest of

the way After Canchola finished speaking to the officer and

claiming the vehicle which was found in good condition and

after having been warned by the officer not to drive Canchola

left the scene as Rudegeairrsquos passenger They drove a short

distance waited for a few minutes and returned to Cancholarsquos

vehicle after the police officer left Canchola then drove his

vehicle to another bar Rudegeair followed in her car There

Canchola drank at least two rounds of the vodka and light beer

combination and three additional shots of liquor within a short

period of time

Canchola and Rudegeair left the bar to return to the hotel

in separate vehicles As Canchola approached the intersection

5

where he was to turn left into the hotel entrance he began a

conversation on his cellular telephone He was engaged in that

conversation when he turned left in front of the vehicle driven

by Coalson According to uncontradicted testimony of an expert

toxicologist Cancholarsquos blood alcohol content was almost twice

the legal limit at the time of the accident

After Coalson collided with Canchola Canchola removed his

vehicle from the scene of the accident parked it and left in

Rudegeairrsquos vehicle He was subsequently arrested upon

returning to the hotel Canchola urged Rudegeair not to tell

anyone that he had been driving his vehicle when the accident

occurred Rudegeair initially lied to police but later told the

truth under oath

Analysis

Coalson argues that the circuit court erred in remitting

her punitive damages award because the circuit courtrsquos decision

was based upon comparing her punitive damages award to Stemkersquos

punitive damages award and upon the proportionality of her

punitive damages award in relation to her compensatory damages

award Coalson asserts that proportionality is not the only

consideration in determining the excessiveness of punitive

damages under Virginia law and that a higher ratio between

compensatory and punitive damages was proper in this case due to

ldquothe egregiousness of [Cancholarsquos] conduct and the potential

6

harm that could have resulted from his actionsrdquo Coalson

emphasizes that neither this Court nor the United States Supreme

Court has created a ldquobright-line testrdquo Although she does not

base her appeal on constitutional grounds Coalson maintains

that Virginiarsquos remittitur analysis for punitive damages is

ldquoframed in and derived fromrdquo federal constitutional law

Consequently she urges the Court to consider ldquopotential harmrdquo

as well as actual harm in reinstating the juryrsquos punitive

damages award

Canchola contends that the circuit court properly

considered and applied all of the remittitur factors and

constitutional guidelines before granting his motion He

disputes Coalsonrsquos assertion that the Court should consider

ldquohypothetical damagesrdquo she could have sustained He argues that

considering what could have happened is not supported by this

Courtrsquos jurisprudence and would require a jury to engage in

improper speculation Canchola claims that in evaluating the

reprehensibility of his actions the proper focus should be on

his conduct at the time of the accident not on ldquoevery unsavory

act [he] committed over timerdquo According to Canchola Coalson

places too much emphasis on punishment and reprehensibility and

ignores proportionality

ldquoThe purpose of punitive damages is to provide lsquoprotection

of the public punishment to [the] defendant and a

7

warning and example to deter him and others from committing like

offensesrsquordquo Huffman v Love 245 Va 311 315 427 SE2d 357

361 (1993) (quoting Baker v Marcus 201 Va 905 909 114

SE2d 617 620 (1960)) This Court has observed that punitive

damages are meant to warn not to compensate the plaintiff Doe

v Isaacs 265 Va 531 539 579 SE2d 174 179 (2003) A

punitive damages award is generally left to the juryrsquos

discretion because there is no set standard for determining the

amount of punitive damages Worrie v Boze 198 Va 533 544

95 SE2d 192 201 (1956)

To justify remittitur a juryrsquos award must be so excessive

that it shocks the conscience of the trial court indicating

that the juryrsquos decision was motivated by ldquopassion corruption

or prejudicerdquo Condominium Servs Inc v First Ownersrsquo Assrsquon

of Forty Six Hundred Condo Inc 281 Va 561 580 709 SE2d

163 175 (2011) (quoting Smithey v Sinclair Refining Co 203

Va 142 146 122 SE2d 872 875-76 (1961)) When a trial

court considers whether to remit a juryrsquos punitive damages

award its review of the punitive damages award should consider

the ldquoreasonableness between the damages sustained and the amount

of the award and the measurement of punishment required whether

the award will amount to a double recovery the proportionality

between the compensatory and punitive damages and the ability

8

of the defendant to payrdquo Poulston v Rock 251 Va 254 263

467 SE2d 479 484 (1996) (citations omitted)

In evaluating whether punitive damages were properly

remitted this Court performs a de novo review examines the

record independently and gives ldquosubstantial weightrdquo to the trial

courtrsquos action Baldwin v McConnell 273 Va 650 657 643

SE2d 703 706 (2007) (quoting Poulston 251 Va at 263 467

SE2d at 484)

The circuit court reduced the amount of Coalsonrsquos punitive

damages award because the jury awarded the same amount in

punitive damages to Coalson as it did to Stemke despite their

different compensatory damages awards Also the circuit court

ruled that the 11786 ratio between Coalsonrsquos compensatory and

punitive damages was too high

We have not previously addressed whether it is proper to

compare punitive damages awards in evaluating excessiveness

However in Allied Concrete Co v Lester 285 Va 295 312 736

SE2d 699 708 (2013) this Court held that a trial court may

not compare verdicts to evaluate the excessiveness of

compensatory damages Likewise in John Crane Inc v Jones

274 Va 581 595 650 SE2d 851 858 (2007) the Court declined

to compare verdicts in determining whether compensatory damages

were excessive

9

We hold that the same rationale stated in John Crane Inc

is true regarding comparing punitive damages awards

ldquo[Comparing verdicts] is not probative of whether a verdict is

excessive rather that determination must be made based on the

facts and circumstances of each caserdquo Id The circuit courtrsquos

consideration of Coalsonrsquos and Stemkersquos relative ratios of

compensatory damages to punitive damages as a basis for granting

remittitur was error See Allied Concrete Co 285 Va at 312

736 SE2d at 7082

We agree with the circuit court that Cancholarsquos conduct was

egregious Canchola was driving while intoxicated and without a

license which had been revoked because of previous instances of

driving while intoxicated Despite having at least seven

convictions for driving while intoxicated on his record

Canchola drove on several occasions on the day of the accident

while drinking alcohol throughout the day He ignored a police

officerrsquos warning not to drive and engaged in deception so that

the officer would not discover he was driving after which he

drank even more and then attempted to drive again After

causing an accident that could have resulted in serious

2 We note that federal courts sometimes compare verdicts to

evaluate whether punitive damages are excessive as a matter of federal constitutional law See eg Saunders v Branch Banking amp Trust Co of Va 526 F3d 142 154 (4th Cir 2008) (comparing punitive damages awards in other Fair Credit Reporting Act cases)

10

injuries Canchola fled the scene and asked his girlfriend to

lie about his involvement

The jury was instructed that it could award Coalson damages

to compensate her for her injuries including bodily injuries

pain and mental anguish inconvenience and medical expenses

The court further instructed the jury that if it awarded Coalson

compensatory damages it could also award punitive damages if it

found that Canchola ldquoacted under circumstances amounting to a

willful and wanton disregard for the plaintiffsrsquo rightsrdquo The

punitive damages instruction clearly stated that the purpose of

punitive damages was to punish Canchola and to ldquoprevent others

from acting in a similar wayrdquo

Coalsonrsquos punitive damages are reasonably related to her

actual damages and to the degree of necessary punishment which

in this case is great See Philip Morris Inc v Emerson 235

Va 380 414 368 SE2d 268 287 (1988) ldquoGiven the clear

determination of the basis for each award and the ample evidence

supporting each award our independent review of the record does

not suggest double recovery in this caserdquo Baldwin 273 Va at

659 643 SE2d at 707 The ratio of Coalsonrsquos compensatory

damages to punitive damages awarded by the jury is 11786

This is high but given the reprehensible and dangerous nature

of Cancholarsquos conduct it is not ldquounreasonable or strikingly out

of proportionrdquo Id Poulston 251 Va at 263 467 SE2d at

11

484 The court expressly stated that the parties did not

present evidence on Cancholarsquos ability to pay3 See Condominium

Servs 281 Va at 581 709 SE2d at 175 (ldquo[A defendant who has

failed to present evidence of his ability to pay at trial]

cannot prevail before this Court on [his] claim that the amount

of punitive damages would be oppressiverdquo)

Cancholarsquos conduct was egregious enough to warrant a

punitive damages award and the amount of punitive damages

awarded by the jury does not shock the Courtrsquos conscience

Virginia precedent indicates that the circuit court should not

have remitted the punitive damages award

It is not clear from the record whether the circuit court

granted Cancholarsquos motion for remittitur on state law or federal

constitutional law grounds Thus we will analyze the award

considering relevant federal constitutional law as well

The United States Supreme Court has prescribed three

guidelines for appellate courts to use in reviewing whether

punitive damages are so excessive as to violate a defendantrsquos

right to due process ldquo(1) the degree of reprehensibility of the

defendantrsquos misconduct (2) the disparity between the actual or

potential harm suffered by the plaintiff and the punitive

damages award and (3) the difference between the punitive

3 Canchola acknowledged the same in his motion for

remittitur and during oral argument before the circuit court

12

damages awarded by the jury and the civil penalties authorized

or imposed in comparable casesrdquo State Farm Mut Auto Ins Co

v Campbell 538 US 408 418 (2003) The Supreme Court has

further provided factors for evaluating the first guideline

which is the most important of the three

[W]hether[] the harm caused was physical as opposed to economic the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others the target of the conduct had financial vulnerability the conduct involved repeated actions or was an isolated incident and the harm was the result of intentional malice trickery or deceit or mere accident

Id at 419

These considerations weigh against remittitur on due

process grounds Virginia certainly has an interest in

promoting public safety through prevention and deterrence of

driving while intoxicated See BMW of North America Inc v

Gore 517 US 559 568 (1996) (ldquo[T]he federal excessiveness

inquiry appropriately begins with an identification of the state

interests that a punitive award is designed to serverdquo)

Although the collision was an accident Canchola deliberately

chose to drive while severely intoxicated which resulted in

physical injury Cancholarsquos determined persistence to drive

while intoxicated and his reckless disregard for the safety of

others is evidenced by his seven prior driving while intoxicated

convictions and by his behavior on the day of the accident See

id at 576-77 (ldquo[E]vidence that a defendant has repeatedly

13

engaged in prohibited conduct while knowing or suspecting that

it was unlawful would provide relevant support for an argument

that strong medicine is required to cure the defendantrsquos

disrespect for the lawrdquo) Furthermore a defendantrsquos conduct

that endangers many is more reprehensible than conduct that only

endangers a few Philip Morris USA v Williams 549 US 346

357 (2007) Canchola puts other drivers at risk every time he

drinks and drives

The Supreme Court has repeatedly stated that ratios between

actual or potential harm and punitive damages should generally

be within single digits to satisfy due process requirements

State Farm 538 US at 425 Nevertheless it has also

recognized that higher ratios may be constitutional where a

defendantrsquos actions are exceptionally reprehensible but result

in small economic damage See id (reaffirming that there are

no ldquorigid benchmarksrdquo and indicating that courts should consider

each case ldquobased upon the facts and circumstances of the

defendantrsquos conduct and the harm to the plaintiffrdquo) see also

Saunders 526 F3d at 154 (citing federal appellate court

decisions upholding higher ratios) Driving while intoxicated

could result in death and it was fortunate that Coalson and

Stemke suffered relatively minor injuries ldquoWhile the circuit

court observed what it took to be a significant disparity

between the punitive award and the compensatory award that

14

contrast lsquodissipates when one considers the potential loss to

[Coalson] rsquordquo TXO Prod Corp v Alliance Res Corp 509

US 443 449-51 462 (1993) (upholding a ratio of 1526)

In upholding a ratio of 180 in Saunders the Fourth

Circuit observed that rigidly adhering to a single digit ratio

in all cases could sometimes prevent punitive damages from

fulfilling their purposes of punishment and deterrence 526

F3d at 154 For this reason the court determined that

remitting the punitive damages award in that case ldquowould leave

little deterrent or punitive effectrdquo Id The 11786 ratio in

this case is not excessive for Canchola has demonstrated a need

for stronger medicine to cure his disrespect for the law

Additionally a comparison of criminal and civil penalties

for habitually driving while intoxicated and for driving with a

revoked license supports the juryrsquos punitive damages award The

Commonwealth punishes repeated instances of driving while

intoxicated by increasing fines and mandatory sentences See

Code sectsect 182-266 and -270 In addition to the statutory scheme

for punishing driving while intoxicated the legislature has

prescribed punishments for habitual offenders in the form of

license revocation mandatory safety courses and increasing

penalties for driving without a license See eg Code sectsect

462-389 (mandatory revocation of license upon conviction of

driving while intoxicated) 462-3551 (mandatory participation

15

in safety course upon second offense of driving with revoked

license) 462-391 (mandatory three-year revocation for multiple

convictions of driving while intoxicated) see also sect 462-357

(minimum one year and maximum five yearsrsquo imprisonment for

felony offense of driving with revoked license while

intoxicated) These penalties demonstrate the seriousness with

which Virginia views the act of driving while intoxicated with a

suspended or revoked license See State Farm 538 US at 428

(noting that criminal penalties are less useful for determining

the precise amount of a punitive damages award) Upon

consideration of the constitutional guidelines provided by the

United States Supreme Court we conclude that the juryrsquos

punitive damages award is not excessive under the Due Process

Clause of the Fourteenth Amendment

Conclusion

Therefore we hold that the circuit court erred in granting

Cancholarsquos motion for remittitur because Coalsonrsquos punitive

damages award was not excessive under Virginia law nor did it

offend Cancholarsquos due process rights Accordingly the judgment

of the circuit court will be reversed the jury verdict awarding

Coalson $100000 in punitive damages will be reinstated and

final judgment will be entered on the verdict

Reversed and final judgment

16

JUSTICE McCLANAHAN dissenting

The jury awarded Coalson $100000 in punitive damages

which was nearly 18 times the amount of her compensatory damage

award of $5600 I would affirm the judgment of the circuit

court ordering remittitur of a portion of the punitive damages

and reducing the award to $50000 still almost 9 times the

amount of compensatory damages

While not expressly overruling this Courtrsquos precedent the

majority opinion makes clear that the ldquoreasonableness between

the damages sustained and the amount of the awardrdquo as well as

ldquothe proportionality between the compensatory and punitive

damagesrdquo Baldwin v McConnell 273 Va 650 658 643 SE2d

703 706 (2007) are hardly relevant to the circuit courtrsquos

consideration of whether to remit a portion of a punitive

damages award What is also clear is that the majority affords

little weight to the circuit courtrsquos action rather than the

ldquosubstantial weightrdquo the circuit court is due Id at 657 643

SE2d at 707 (quoting Poulston v Rock 251 Va 254 263 467

SE2d 479 484 (1996))

Following this Courtrsquos previous directives the circuit

court employed the proper analysis in considering Cancholarsquos

motion for remittitur In reaching its decision the circuit

court explained

17

I did take into consideration the Virginia Supreme Court factors reasonableness between the damages sustained and the amount of the award the measurement of punishment required whether the award will amount to a double recovery the proportionality between the compensatory and punitive damages and the ability of the Defendant to pay such that there is any evidence on those items for me

These are precisely the factors this Court has repeatedly

instructed circuit courts to consider See Baldwin 273 Va at

658 643 SE2d at 707 (judicial review upon motion for

remittitur ldquorequiresrdquo consideration of the following 1

reasonableness between damages sustained and amount of award

2 measurement of punishment required 3 whether award will

amount to double recovery 4 proportionality between the

compensatory and punitive damages and 5 ability of defendant

to pay) see also Condominium Servs Inc v First Ownersrsquo

Assrsquon of Forty Six Hundred Condo Inc 281 Va 561 580 709

SE2d 163 175 (2011) Poulston 251 Va at 263 467 SE2d at

484

Upon consideration of these factors the circuit court

concluded the punitive damages award to Coalson was excessive in

relation to her compensatory damages Finding the award

ldquoarbitraryrdquo the court noted it was ldquotroubling to [it] that

there is a significant disparity between the compensatory damage

award for one Plaintiff and the compensatory damage award for

18

the other Plaintiffrdquo while the ldquopunitive damage award in each

of the cases is one hundred thousand dollarsrdquo Furthermore

ldquoconsidering the proportionality between the compensatory and

the punitive damage award[ ]rdquo to Coalson the circuit court

found the almost 1-to-18 ratio disproportionate and excessive

particularly in light of the 1-to-7 ratio the compensatory

damages bore to the punitive damages in the verdict for Stemke1

The amount of the circuit courtrsquos remittitur was certainly

consistent with prior precedent This Court has found a

proportionality of punitive damages 25 times the compensatory

damages an acceptable ratio Poulston 251 Va at 263 467

SE2d at 484 Condominium Servs Inc 281 Va at 580 709

SE2d at 175 as well as a proportionality of punitive damages

approximately 66 and 67 times the compensatory damages Philip

Morris Inc v Emerson 235 Va 380 414 368 SE2d 268 287

(1988) In Stemkersquos case the punitive damages awarded were

approximately 7 times his compensatory damages which the

circuit court found reasonable In light of the ratios of

punitive to compensatory damage awards previously found

acceptable by this Court and the ratio found acceptable by the

circuit court in Stemkersquos case which involved the same accident

and conduct of the defendant I believe the circuit court

1 While the circuit court found Coalsonrsquos award excessive

it denied the motion for remittitur of Stemkes award

19

properly ordered the remittitur of a portion of Coalsonrsquos

punitive damages and reduction of her award from an amount that

was nearly 18 times her compensatory damages to an amount that

was nearly 9 times her compensatory damages

I disagree that it was error for the circuit court to

consider the punitive and compensatory damages awarded to Stemke

in determining the reasonableness between the damages sustained

by Coalson and the amount of her punitive damage award The

compensatory damages awarded to Stemke were 25 times more than

the compensatory damages awarded to Coalson yet as the circuit

court observed the punitive damages awarded to each were the

same leading the circuit court to conclude the amount of

punitive damages awarded to Coalson was arbitrary rather than

bearing a reasonable relation to the compensatory damages and

the punishment required See Stubbs v Cowden 179 Va 190

201 18 SE2d 275 280 (1942)(ldquoThe damages awarded should bear

some reasonable proportion to the real damages sustained and to

the measure of punishment required otherwise they indicate

prejudice or partialityrdquo)2 As compared to Stemkersquos punitive

damage verdict which was a little over 7 times the compensatory

2 The requirement that the punitive damages bear a

reasonable relationship to the actual damages has led this Court to remand an award of punitive damages to the circuit court for reconsideration when it has reversed a portion of the compensatory damages Little v Cooke 274 Va 697 719 652 SE2d 129 142 (2007)

20

damage verdict the jury verdict for Coalson against the same

defendant for the same conduct amounted to nearly 18 times the

verdict In other words the jury punished Canchola more

severely for the injuries sustained by Coalson than for the

injuries sustained by Stemke arising from the same accident If

not arbitrary the award was based on partiality toward Coalson

or prejudice against Canchola

This Courtrsquos prior holdings that prohibit the comparison of

jury verdicts awarding compensatory damages are not applicable

In John Crane Inc v Jones 274 Va 581 595 650 SE2d 851

858 (2007) and Rose v Jaques 268 Va 137 159 597 SE2d 64

77 (2004) this Court rejected the ldquoaverage verdict rulerdquo which

compares statewide or nationwide jury verdicts to reach an

ldquoaverage verdictrdquo because such a rule is not relevant to the

extent of actual pain and suffering experienced by the

plaintiff In Allied Concrete Co v Lester 285 Va 295 312

736 SE2d 699 708 (2013) the Court relied upon its holdings

in John Crane and Rose to conclude that it was error for the

trial court to compare injuries suffered by the plaintiffs3

However the rationale that a verdict for one personrsquos pain and

suffering is not a reasonable basis on which to judge the

3 As I stated in Allied Concrete 285 Va at 316 n3 736

SE2d at 710 n3 (McClanahan J concurring in part and dissenting in part) I did not agree that the trial court in that case engaged in improper verdict comparison

21

excessiveness of a verdict for another personrsquos pain and

suffering can only apply when the issue involves the

excessiveness of a compensatory damage award Ignoring the

rationale of these holdings the majority has adopted a bright-

line rule forbidding any comparison of verdicts even when such

a comparison is actually probative of the analysis and dictated

by reason

Indeed our own Court compares ratios found acceptable in

other cases that involve not only different plaintiffs but also

different defendants different conduct and different types of

actions entirely See Baldwin 273 Va at 659 643 SE2d at

707 (noting the punitive damage award approved in Poulston was

two and one-half times the compensatory award) Condominium

Servs Inc 281 Va at 581 709 SE2d at 175 (noting the

punitive damage award in Poulston of 25 times the compensatory

award and a punitive damage award in Philip Morris of 66 times

the compensatory award) In this case involving a single

automobile accident and a consolidated trial the circuit court

compared the ratios as between two injured plaintiffs against

one defendant who caused their injuries Arguably then the

circuit courtrsquos comparison of the verdicts in this case was more

probative to the issue of reasonableness and proportionality

than the comparisons this Court has made to ratios in unrelated

cases

22

Presumably we will ldquolsquogive substantial weight to the trial

courtrsquos action and affirm it unless from our view of the

record the trial court acted improperlyrsquordquo Baldwin 273 Va at

657 643 SE2d at 706 (quoting Poulston 251 Va at 263 467

SE2d at 484) Nevertheless despite the circuit courtrsquos

faithful application of the law and the obvious disparity of

ratios of compensatory to punitive damages between the Coalson

and Stemke awards each of which were based on the same conduct

of Canchola the majority finds the circuit courtrsquos action

improper In Allied Concrete 285 Va at 317 736 SE2d at

711 I expressed my belief that ldquofor all practical purposes the

last nail in the coffin of remittitur [of compensatory damages]

has been drivenrdquo It appears that remittitur of punitive

damages has suffered the same fate

PRESENT All the Justices THE BYRD THEATRE FOUNDATION OPINION BY v Record No 130691 JUSTICE ELIZABETH A McCLANAHAN FEBRUARY 27 2014 DAVID M BARNETT

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Melvin R Hughes Jr Judge

In this premises liability action The Byrd Theatre

Foundation (the Foundation) appeals a final judgment entered

against it in favor of David M Barnett (Barnett) The

Foundation argues that the circuit court erred in denying its

plea of charitable immunity and in failing to instruct the jury

on notice to a corporation We will affirm the judgment of the

circuit court

I BACKGROUND

The Foundation a non-profit corporation qualifying as a

tax-exempt organization under 26 USC sect 501(c)(3) owns the

Byrd Theatre a national historic landmark and motion picture

theater in Richmond that was opened in 1928 and houses a

Wurlitzer theater pipe organ installed the same year The

theater is operated by 1928 Limited Inc (1928 Limited) a

non-stock for-profit corporation formed by the Foundation

shortly after its purchase of the Byrd Theatre in 2007

Barnett a member of the Foundations organ restoration

subcommittee was injured in the theaters organ chamber when

2

he was performing repairs to the organ and a wooden plank he

stepped upon gave way causing him to fall four feet to the

floor1 Asserting that the wooden plank was not properly

secured Barnett filed suit against the Foundation and 1928

Limited claiming they failed to maintain the premises in a

reasonably safe condition and warn him of the dangerous

condition of the plank Following a jury trial the jury

rendered a plaintiffrsquos verdict against the Foundation and a

defense verdict in favor of 1928 Limited The circuit court

entered judgment on the jurys verdict after denying various

post-trial motions filed by the Foundation

II CHARITABLE IMMUNITY

Prior to trial the Foundation filed a plea of charitable

immunity Because Barnett stipulated that the Foundation is a

charitable organization operating in accordance with its

charitable purpose the issue presented to the circuit court

was limited to whether Barnett was a beneficiary of the

Foundation at the time of his accident

1 The organ chamber is located three stories above the floor level of the auditorium and houses the ranks of pipes and instruments and other parts of the organ necessary to power the organ and relay signals from the organ console to the music producing parts located in the chamber Wooden walking planks are located approximately four feet above the floor of the chamber to provide access to certain parts of the organ

3

A Evidence and Ruling on Plea

At the hearing on the plea the Foundation presented

evidence that pursuant to its articles of incorporation the

Foundation was formed [t]o cultivate promote and develop the

publics knowledge awareness understanding and appreciation

of the performing arts After its purchase of the Byrd

Theatre the Foundation through an amendment to its bylaws

narrowed its mission to owning and restoring the Byrd Theatre

as a grand movie palace and community resource In

performing this mission the Foundations principal activity is

raising funds to be used in its restoration of the theater

including the organ Because the Foundation does not have any

salaried employees it utilizes independent contractors to

perform any such restoration and repair of the theater and the

organ

Barnett is a long-time theater pipe organ enthusiast who

has held memberships and leadership positions in several organ

enthusiast clubs that are dedicated to the preservation and

appreciation of historic pipe organs He purchased a Wurlitzer

theater pipe organ in 1978 and over a two-year period

dismantled restored reassembled and installed the organ in

his home Although Barnett does not play the organ he is

fascinated with the sound and mechanism of theater organs and

has received visiting organists to play the organ installed in

4

his home He is passionate about the preservation and

restoration of the Byrd Theatre organ and has attended the Byrd

Theatre over the years to hear the organ played

From 1976 to 1990 Barnett consulted on and performed

restoration and repair work to the Byrd Theatre organ either as

an individual volunteer or with a group of volunteers from the

Virginia Theatre Organ Society In 2008 Barnett was asked by

Robert Gulledge Jr the house organist for the Byrd Theatre

to serve on the Foundations organ subcommittee of the theater

restoration committee2 As the steward of the organ the

organ subcommittee arranges for and oversees restoration of the

organ Barnetts duties were of an advisory nature and

included making contacts with organ technicians who might enter

into contracts with the Foundation for long-term restoration or

short-term renovations as well as reviewing the terms and

scope of work included in proposed contracts

During a period in which the subcommittee was without an

organ technician under contract Barnett volunteered to

undertake certain repairs to the organ that were needed to

2 Barnett testified that between 1990 and 2008 he did not perform work on the organ and was not affiliated with the Byrd Theatre though he would occasionally bring out-of-town company to see the theater or its lobby

5

address sound quality issues3 While making repairs to the

organ was not within the scope of his duties as a member of the

organ restoration subcommittee the work needed to be done

and nobody else was available to do it Barnett arranged to

perform the repairs with Linwood Lunde a former house organist

for the Byrd Theatre who was still affiliated with the theater

and obtained a key to the organ chamber from the theater

manager When Barnett fell in the organ chamber Lunde was in

the auditorium working at the organ console

Barnett testified that he volunteered to perform the

repairs since he had a passion to have the organ work properly

as a service to the Byrd Theatre and was happy to do that

because if that organ had not had people take an interest in

it it would have most likely gone silent Barnett further

testified that he gain[ed] satisfaction from knowing that [he]

was helping the theater and getting the work done that needed

to be done According to Barnett he didnt get any other

satisfaction out of it

Based on the evidence presented the Foundation asserted

that Barnett was a beneficiary of the Foundations charitable

3 Although an organ technician had been under contract he was unable to resolve the specific problem being addressed by Barnett and Lunde and the Foundation was in the process of terminating his contract and contracting with a new technician

6

purpose through the work he performed since the sound the

mechanism and the music are all improved which is something

hes interested in and passionate about In permitting him to

perform this work the Foundation argued Barnett was given

access to one of the few original installation theater organs

in the country and provided the unique opportunity to work on

the organ in pursuance of his long-time hobby and passion

Rejecting the Foundations argument the circuit court

concluded that Barnett was not the Foundations beneficiary at

the time of his accident Specifically the circuit court

found that [t]he [Foundations] accepted charitable charge is

to provide a venue for the performing arts and [t]he by-law

provision regarding restoration and preservation is aimed at

facilitating that charge of affording performing arts The

circuit court found no evidence that [the Foundation] was

extending and [Barnett] was receiving services or a charitable

benefit consistent with [the Foundations] charitable aims

Thus according to the circuit court [g]iven the

[Foundations] charitable purpose to provide a facility for the

performing arts and according to its by-laws to preserve and

restore the Byrd Theatre including the organ it cannot be

said that [Barnett] was the object of the charitys bounty at

the time [of his accident]

B Analysis

7

The doctrine of charitable immunity being firmly embedded in

the law of this Commonwealth is grounded in the public policy

that the resources of charitable institutions are better used

to further the institutions charitable purposes than to pay

tort claims lodged by the charitys beneficiaries Ola v

YMCA of S Hampton Roads Inc 270 Va 550 555 621 SE2d

70 72 (2005) Consistent with this policy an entity that is

organized for a recognized charitable purpose and operates in

accord with that purpose is immune from liability based upon

claims of negligence asserted by beneficiaries of the entitys

charitable bounty Ola 270 Va at 556 621 SE2d at 72-73

see also University of Va Health Servs Found v Morris 275

Va 319 331-34 657 SE2d 512 517-20 (2008) Straley v

Urbanna Chamber of Commerce 243 Va 32 35-38 413 SE2d 47

49-51 (1992) Thrasher v Winand 239 Va 338 340-42 389

SE2d 699 701-02 (1990) This is so because [o]ne who

accepts the benefit either of a public or a private charity

enters into a relation which exempts his benefactor from

liability for the negligence of his servants in administering

the charity at any rate if the benefactor has used due care

in selecting those servants Weston v Hospital of St

Vincent 131 Va 587 604 107 SE 785 791 (1921) (quoting

8

Hospital of St Vincent v Thompson 116 Va 101 109 81 SE

13 16 (1914)4 Thus [c]haritable immunity applies only to

claims of negligence asserted by those who accept the

charitable institutions benefits Morris 275 Va at 331

657 SE2d at 517

The dispositive question in this case therefore is whether

Barnett was in a beneficial relationship with the Foundation

at the time of his accident Ola 270 Va at 563 621 SE2d

at 77 As we have explained a beneficiary is a person who

receives something of value which the organization by its

charitable purpose undertakes to provide Id at 564 621

SE2d at 77 (emphasis added) Based on the Foundations

articles of incorporation and amended bylaws its charitable

aim was to cultivate an appreciation for the performing arts

through restoration and preservation of the Byrd Theatre and

the organ The Foundation was neither organized nor operated

for the purpose of providing theater organ enthusiasts an

opportunity to repair or restore the Byrd Theatre organ At

the time of Barnetts accident the Foundation was not

undertaking to provide Barnett with the benefit of an

4 A charity is immune from liability for the negligent acts of its agents and employees provided due care has been exercised in their selection and retention However the shield of immunity does not extend to acts of willful or gross negligence Ola 270 Va at 556 621 SE2d at 72

9

opportunity to repair its organ In short the Foundations

mission was to restore and preserve the theater including its

organ not to provide a venue for individuals such as Barnett

to practice their hobby of restoring organs

To the contrary the Foundation hired contractors to perform

the organ restoration and repairs In contrast to accepting a

service that the Foundation operated to provide Barnett was

providing a service to the Foundation in furtherance of the

Foundations own aim of preserving and restoring the organ

which otherwise would have been performed by a paid contractor

As Barnett testified he had a passion to have the organ work

properly as a service to the Byrd Theatre and was happy to do

that because if that organ had not had people take an interest

in it it would have most likely gone silent According to

Barnett he gained satisfaction from knowing that [he] was

helping the theater and getting the work done that needed to

be done Based on the evidence therefore the circuit court

properly found that Barnett was not receiving the bounty of the

Foundations charitable works at the time of his accident5

5 The Foundation readily acknowledges that Barnett was providing a service to the Foundation but argues that this fact alone should not exclude him from the Foundations class of beneficiaries We agree and therefore our holding does not stand for the proposition that all persons who provide a service or other benefit to the charity cannot be deemed

10

We reject the Foundations position that Barnetts passion for

the preservation and restoration of the Byrd Theatre organ and

receipt of personal satisfaction from contributing to such

restoration established a beneficial relationship with the

Foundation It could be said that most volunteers receive

gratification through their charitable works and that many

likely provide services consistent with their own hobbies or

interests But the receipt of personal satisfaction or

pleasure gained through the donation of ones services to a

charity does not create a beneficial relationship with the

charity for purposes of charitable immunity

In sum we find the [circuit] courts analysis well

reasoned and amply supported by the evidence Ola 270 Va at

559 621 SE2d at 74 Therefore the circuit court did not err

in denying the Foundations plea of charitable immunity

III JURY INSTRUCTIONS

The Foundation also asserts that the circuit court erred in

refusing to instruct the jury regarding imputed actual notice

from agents to corporations

beneficiaries thereof The adoption of any such rule would be inappropriate because the determination is necessarily driven by the specific facts of the case and in particular the activity engaged in by the tort claimant at the time of the accident

11

The evidence at trial proved that 1928 Limited as the

manager of the Byrd Theatre operated the theater and

maintained its premises except with regard to the organ which

was maintained by the Foundation Barnett presented evidence

that an employee of 1928 Limited had knowledge of the condition

of the wooden plank on which Barnett was standing when he fell

and argued that such notice should be imputed to 1928 Limited

and the Foundation The Foundation took the position that this

knowledge could not be imputed to the Foundation since the 1928

Limited employee learned of the condition of the plank many

years prior to his employment and in any event 1928 Limited

was not permitted to work on the organ

The Foundation offered the following jury instruction

which was rejected by the circuit court

A corporation knows a fact only as its officers and agents know it The corporation does not know all that its agents know but only what comes to the agents while acting for the corporation within the scope of their agency when it is the agents duty to report their knowledge to the general officer or agents of the company The Foundation argued that the proposed jury instruction

tracked the language from Rudolph v Farmers Supply Co 131

Va 305 310-11 108 SE 638 639 (1921) and properly

addressed the imputed notice issue raised by Barnett

According to the Foundation [n]otice was a critical issue in

the case and an instruction on imputed actual notice was

12

necessary for the jury to determine whether [the employees]

knowledge from the early 1980s imputed to 1928 [Limited] and

the Foundation6

It is unnecessary for us to determine whether the circuit

court erred in refusing the Foundations proposed jury

instruction on imputed notice The jury found in favor of 1928

Limited and therefore absolved the Foundation from any

liability arising from 1928 Limiteds conduct See Virginia

State Fair Assn v Burton 182 Va 365 372 28 SE2d 716

719 (1944) (verdict in favor of agent and against principal

necessarily exonerated principal of liability arising from

agents alleged negligence) Furthermore the jury was

entitled to find the Foundation liable based on the

Foundations independent negligence without regard to 1928

Limiteds liability or conduct7 See Wintergreen Partners Inc

6 Barnett also offered an instruction on imputed notice that was refused by the circuit court

7 In particular the jury was given the following instruction governing premises liability of owners or occupants

An owner or occupant of premises does not guarantee an invitees safety but has the duty

(1) to use ordinary care to have the premises in a reasonably safe condition for an invitees use consistent with the invitation unless the invitee knows or should have known of the unsafe condition and

(2) to use ordinary care to warn an invitee of any unsafe condition about which the owner or occupant knows or by

13

v McGuireWoods LLP 280 Va 374 379 698 SE2d 913 916

(2010) Therefore because the jury rejected a theory of

liability based on 1928 Limiteds knowledge of the unsafe

condition of the wooden plank but rather based its verdict on

the separate negligence of the Foundation it is immaterial

whether notice by 1928 Limiteds employee could properly be

imputed to 1928 Limited and the Foundation8 Virginia State

Fair Assn 182 Va at 372 28 SE2d at 719 Accordingly any

error by the circuit court in failing to instruct the jury on

imputed notice would be harmless

IV CONCLUSION

the use of ordinary care should know unless the unsafe condition is open and obvious to a person using ordinary care for his own safety If an owner or occupant fails to perform either or both of these duties then it is negligent

8 The Foundation contends that Barnett is precluded from arguing on appeal that the jury could properly find the Foundation independently negligent based on the premises liability instruction because the only theory Barnett argued to the jury was that the Foundation was liable based on knowledge imputed from 1928 Limiteds employee to 1928 Limited and the Foundation This contention cannot be sustained because the Foundation did not object to the premises liability instruction and has not assigned error related to the sufficiency of the evidence to support a verdict based on that instruction See Wintergreen Partners 280 Va at 379 689 SE2d at 916

14

For the foregoing reasons we will affirm the judgment of

the circuit court

Affirmed

  • Commonwealth v Peterson
    • OPINION BY
      • 11-05-13 Ford 130837 Br Amicus
      • 130627 VTLA Amicus Brief of VTLA opening amicus brief
      • 130691 amicus final
        • 130691amicuscovpdf
        • 130691amicustocpdf
        • 130691amicuspdf
          • 3-4-14 Rec No 130627 VTLA Amicus Reply Brief
          • Coalson v Canchola
          • The Byrd Theatre Foundation v Barnett

5

by campus-wide ldquoblast e-mailrdquo at 926 am The notice stated

that ldquo[a] shooting incident occurred at West Ambler Johnston

[Hall] earlier this morning Police are on the scene and

investigatingrdquo and advised students to be alert for anything

suspicious At 928 am the Policy Group also sent a message

to the Board of Visitors stating ldquo[t]wo students were shot this

morning one fatally We will be back in touch with more

information as soon as it is known Please do NOT release the

information about the fatalityrdquo

At approximately 945 am the mass shooting at Norris Hall

began At 950 am a second campus-wide ldquoblast e-mailrdquo was

sent stating that ldquo[a] gunman is loose on campus Stay in

buildings until further notice Stay away from all windowsrdquo

Erin Peterson 18 and Julia Pryde 23 were among the victims

murdered in Norris Hall Police later identified Seung-Hui Cho

as the shooter

After the Norris Hall shooting police realized that the

patterns on shoes worn by Cho did not match the prints found in

West Ambler Johnston Hall The day after the shootings police

learned that the gun used to murder the two people in West

Ambler Johnston Hall matched the one Cho used in Norris Hall

Police later found bloody clothing belonging to Cho that had the

DNA from one of the victims of the West Ambler Johnston Hall

shooting on it

6

The Administrators filed wrongful death claims in

Montgomery County Circuit Court against Chorsquos estate the

Commonwealth and eighteen other individuals including Steger

The cases were consolidated but following certain non-suits and

pretrial orders (see companion appeal Peterson v Commonwealth

Record No 121720) the Commonwealth was the sole defendant at

trial The Administrators claimed that the Commonwealth was

liable for the actions of the Commonwealthrsquos employees at the

university pursuant to the Virginia Tort Claims Act (ldquoVTCArdquo)

Code sect 801-1951 et seq They alleged that a special

relationship existed between the Commonwealthrsquos employees at

Virginia Tech and Peterson and Pryde that gave rise to the

Commonwealthrsquos duty to warn Peterson and Pryde of third party

criminal acts and that the Commonwealthrsquos failure to warn them

was the proximate cause of their deaths and the Administratorsrsquo

losses The Commonwealth argued that there was no foreseeable

harm to the students and that the evidence failed to establish

that any alleged breach of a duty of care was the proximate

cause of the deaths

The Commonwealth objected to several jury instructions

including Instruction 3 which provided in summary that

Peterson and Pryde were business invitees of Virginia Tech and

enjoyed a special relationship with the university The

instruction further stated that this status imposed a duty on

7

the university employees to maintain a safe campus Based on

this instruction the jury was told that if they found that the

university employees should have reasonably foreseen that injury

arising from the criminal conduct of a third party might occur

but failed to warn students the Commonwealth should be found

negligent The instruction also stated that the jury should

find in favor of the Administrators if that failure to warn was

the proximate cause of the alleged injuries The jury returned

a verdict in favor of the Administrators awarding $4 million to

each family

Upon the Commonwealthrsquos motion the court reduced each

verdict to $100000 in accordance with the VTCA Code sect 801-

1953 The Commonwealth moved to set aside the jury verdict

arguing it was contrary to well-established Virginia law that a

special relationship does not exist under the circumstances

here citing Burns v Gagnon 283 Va 657 668 727 SE2d 634

641 (2012) which was decided post-trial The Commonwealth

again argued that the verdict should be set aside because the

evidence was insufficient as a matter of law to give rise to a

duty to protect from third party criminal acts Alternatively

the Commonwealth argued that the trial court should order a new

trial due to erroneous jury instructions The trial court

denied these motions This appeal follows

II ANALYSIS

8

On appeal the Commonwealth argues that

1 The circuit court erred in finding that the Commonwealth Virginia Tech andor their employees had a special relationship with Peterson and Pryde that imposed a duty and therefore erred in instructing the jury that there was such a duty in submitting the case to the jury and in entering judgment on the juryrsquos verdict 2 Even assuming that the Commonwealth Virginia Tech or their employees had a relevant special relationship under Virginia law the evidence adduced did not give rise to a duty to warn of third party criminal acts and therefore the circuit court erred in submitting the case to the jury and in entering judgment on the juryrsquos verdict 3 The circuit court erred in finding that there was sufficient evidence regarding causation to raise a jury issue and therefore erred in submitting the case to the jury and in entering judgment on the juryrsquos verdict 4 Even if there were a theory that might have allowed plaintiffs to recover the circuit courtrsquos instructions (2 3 4 10 amp 11) misstated Virginia law regarding the existence of a relevant special relationship the existence and type of duty purportedly owed the standard that triggers a duty to warn of third party criminal acts as well as regarding the reasonable expectation of parents and students at a university and therefore the juryrsquos verdict must be overturned

We hold that the facts in this case do not give rise to a duty

for the Commonwealth to warn students of the potential for third

party criminal acts Therefore we do not reach the

Commonwealthrsquos causation or jury instruction arguments

9

As a general rule a person does not have a duty to warn or

protect another from the criminal acts of a third person

Thompson v Skate America Inc 261 Va 121 128-29 540 SE2d

123 127 (2001) ldquoThis is particularly so when the third person

commits acts of assaultive criminal behavior because such acts

cannot reasonably be foreseenrdquo Burdette v Marks 244 Va 309

311-12 421 SE2d 419 420 (1992) However the general rule

does not apply in all situations ldquolsquoThere are narrow exceptions

to this rulersquo but the application of those exceptions lsquois

always fact specific and thus not amenable to a bright-line

rule for resolutionrsquordquo Taboada v Daly Seven Inc 271 Va

313 322-23 626 SE2d 428 432 (2006) (alteration omitted)

(quoting Yuzefovsky v St Johnrsquos Wood Apartments 261 Va 97

106 540 SE2d 134 139 (2001)) affrsquod on rehrsquog 273 Va 269

270 641 SE2d 68 68 (2007) Before an exception comes into

play the facts must establish the existence of a special

relationship

ldquolsquo[W]hether a legal duty in tort exists is a pure question

of lawrsquordquo to be reviewed de novo Gagnon 283 Va at 668 727

SE2d at 642 (quoting Kellermann v McDonough 278 Va 478

487 684 SE2d 786 790 (2009) To prevail

the plaintiff must establish that there is a special relationship either between the plaintiff and the defendant or between the third party criminal actor and the defendant The necessary special

10

relationship may be one that has been recognized as a matter of law or it may arise from the factual circumstances of a particular case

Yuzefovsky 261 Va at 107 540 SE2d at 139 (citation and

footnote omitted) For the purposes of this opinion we will

assume without deciding that the threshold requirement that such

a special relationship exists is satisfied on these facts

Having assumed without deciding that a special relationship

exists the question becomes whether as a matter of law under

the facts and circumstances of this case the Commonwealth had a

duty to warn students about the potential for third party

criminal acts ldquoThe law determines the duty and the jury upon

the evidence determines whether the duty has been performedrdquo

Acme Markets Inc v Remschel 181 Va 171 178 24 SE2d 430

434 (1943)

A review of our prior cases indicates that in order for a

duty to be imposed upon a defendant the degree of the

foreseeability of harm that the plaintiff must establish depends

on the nature of the special relationship We have recognized

two levels of foreseeable harm known or reasonably foreseeable

harm Taboada 271 Va at 325-26 626 SE2d at 434 and

ldquoimminent probability of harmrdquo the heightened degree of

foreseeability that arises where the defendant ldquoknows that

criminal assaults against persons are occurring or are about to

11

occur on the premisesrdquo based upon ldquonotice of a specific danger

just prior to the assaultrdquo Thompson 261 Va at 128-29 540

SE2d at 127 (citing Wright v Webb 234 Va 527 533 362

SE2d 919 922 (1987)) Certain special relationships such as

that of a common carrierpassenger innkeeperguest and

employeremployee impose a duty to warn when the danger of third

party criminal acts is known or reasonably foreseeable See

Taboada 271 Va at 325-26 626 SE2d at 434 (innkeeperguest)

AH v Rockingham Publishing Co Inc 255 Va 216 221 495

SE2d 482 486 (1998)(employeremployee) Connell v Chesapeake

amp Ohio Ry Co 93 Va 44 62 24 SE 467 470 (1896)(common

carrierpassenger)

In instances however where the special relationship was

that of business ownerinvitee or landlordtenant we have

imposed a duty to warn of third party criminal acts only where

there was ldquoan imminent probability of injuryrdquo from a third party

criminal act Yuzefovsky 261 Va at 109 540 SE2d at 1413

3 In this case the circuit court instructed the jury that there was a business ownerinvitee relationship between the Commonwealth and the students and that there was a duty to warn if the danger was reasonably foreseeable This was error because our case law is clear that when the relationship is that of business ownerinvitee the duty to warn arises only if there is an imminent probability of harm from a third party criminal act However because we conclude that under the facts of this case no duty was established under the more lenient standard of foreseeability this distinction is not dispositive in the resolution of this appeal

12

Thus the duty to warn of danger from third party criminal acts

has remained an exception to the general rule Burdette 244

Va at 312-13 421 SE2d at 421

Where the standard was that the duty to warn or protect was

present when there was ldquoan imminent probability of injuryrdquo from

a third party criminal act this Court has held that the duty to

warn existed as a matter of law in the unusual situation where

an on-duty police officer failed to intervene when he responded

to the scene of a motor vehicle accident and observed one driver

attack a bystander who had stopped to render assistance Id at

310-11 421 SE2d at 419-20 More frequently however this

Court has concluded that facts relied upon in particular cases

fail to establish a duty as a matter of law to protect against

third party criminal acts See eg Dudas v Glenwood Golf

Club Inc 261 Va 133 140 540 SE2d 129 133 (2001)

(holding that two robberies within the month preceding the

attack on plaintiff was not a ldquolevel of criminal activityrdquo that

would ldquohave led a reasonable business owner to conclude that its

invitees were in imminent danger of criminal assaultrdquo)

Yuzefovsky 261 Va at 109 540 SE2d at 141 (concluding as a

matter of law that employee misrepresentations about the safety

of an apartment complex where in one year 656 crimes including

113 against persons had been reported failed to give rise to

the duty to warn or protect from harm because these facts failed

13

to establish ldquoan imminent probability of injury to [the

plaintiff] from ardquo criminal act of a third party) Burns v

Johnson 250 Va 41 42-45 458 SE2d 448 449-52 (1995) (trial

court erred as a matter of law in failing to hold that the

fifteen minutes between an individual making sexual advances to

a store clerk and abducting and raping a store patron did not

give rise to the duty to protect against third party criminal

acts)

In cases where it was alleged that a special relationship

gave rise to the duty to warn because the danger of harm from

third party criminal acts was known or reasonably foreseeable

this Court has similarly frequently concluded that the duty to

warn was not present as a matter of law See AH 255 Va at

221-22 495 SE2d at 486 (stating that an employer has no duty

to protect an employee from third party criminal acts unless the

danger is ldquoknown or reasonably foreseeablerdquo as a matter of law

and concluding that knowledge of similar assaults in the

preceding five years was not sufficient) Connell 93 Va at 58

24 SE at 469 (common carrier ldquocannot be deemed to have

anticipated nor be expected to guard and protect [a passenger]

against a crime so horrid and happily so rare as that of

murderrdquo)

In only rare circumstances has this Court determined that

the duty to protect against harm from third party criminal acts

14

exists See Taboada 271 Va at 325-26 626 SE2d at 434

(concluding that like a common carrier an innkeeper has a

ldquoduty of utmost care and diligencerdquo to protect guests from third

party criminal acts where the danger is known or reasonably

foreseeable and holding that where -- over a three year period

immediately prior to the attack -- hotel employees had called

police 96 times to report criminal conduct including robberies

malicious woundings shootings and other criminally assaultive

acts the hotel knew of the danger and had received a warning

from police that ldquoguests were at a specific imminent risk of

harmrdquo these were sufficient averments to survive a demurrer

and if proven to establish the duty as a matter of law)

Here even if this Court were to apply the less stringent

standard of ldquoknow or have reasonably foreseenrdquo there simply are

not sufficient facts from which this Court could conclude that

the duty to protect students against third party criminal acts

arose as a matter of law In this case the Commonwealth knew

that there had been a shooting in a dormitory in which one

student was critically wounded and one was murdered The

Commonwealth also knew that the shooter had not been

apprehended At that time the Commonwealth did not know who

the shooter was as law enforcement was in the early stages of

its investigation of the crime However based on

representations from three different police departments

15

Virginia Tech officials believed that the shooting was a

domestic incident and that the shooter may have been the

boyfriend of one of the victims Most importantly based on the

information available at that time the defendants believed that

the shooter had fled the area and posed no danger to others

This is markedly different from the situation presented in

Taboada 271 Va at 325-26 626 SE2d at 434 where police had

specifically warned the innkeepers that guests were at risk

prior to the time that the plaintiff in that case was shot by a

trespasser Based on the limited information available to the

Commonwealth prior to the shootings in Norris Hall it cannot be

said that it was known or reasonably foreseeable that students

in Norris Hall would fall victim to criminal harm Thus as a

matter of law the Commonwealth did not have a duty to protect

students against third party criminal acts

III CONCLUSION

Assuming without deciding that a special relationship

existed between the Commonwealth and Virginia Tech students

based on the specific facts of this case as a matter of law no

duty to warn students of harm by a third party criminal arose

Thus we will reverse the trial courtrsquos judgment holding that a

duty arose and enter final judgment in favor of the

Commonwealth

Reversed and final judgment

IN THE

Supreme Court of Virginia

MICHELLE C HARMANAdministratrix of the ESTATE of

JOSEPH A GRANA III Deceasedand

STEPHANIE E GRANA BEMBERISPersonal Representative of the ESTATE OF

JOSEPH E GRANA SR DeceasedAppellants

v

HONEYWELL INTERNATIONAL INCAppellee

RECORD NO 130627

BRIEF AMICUS CURIAEOF VIRGINIA TRIAL LAWYERSrsquo ASSOCIATION

IN SUPPORT OF APPELLANTS

LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond Virginia 23219 (804) 644-0477A Division of Lantagne Duplicating Services

Avery T Waterman Jr Esq (VSB No 27118)Patten Wornom Hatten amp Diamonstein LC12350 Jefferson Avenue Suite 300Newport News Virginia 23602Telephone (757) 223-4567Facsimile (757) 223-4499Awatermanpwhdcom

i

TABLE OF CONTENTS

Table of Authorities v Amicus Statement of Interest 1 Nature of the Case and Material Proceedings Belowhelliphelliphelliphelliphelliphelliphellip 2 Statement of Facts 2 0 CLARIFICATION OF OPINIONShelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 2 1 ASSIGNMENT OF ERROR 1helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 3 2 ASSIGNMENT OF ERROR 2helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 3 3 ASSIGNMENT OF ERROR 3helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 3 4 ASSIGNMENT OF ERROR 4helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 4 5 ASSIGNMENT OF ERROR 5helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 4 Argument 5 A THE TRIAL COURT ADMITTING THE HEARSAY MOONEY REPORT IS PREJUDICIAL ERRORhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 7 1 Public policy opposes the hearsay Mooney Reporthelliphelliphelliphellip 7 2 The Mooney Report is not admissible as ldquoreliable authorityrdquo under sect801-4011helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 11 a Honeywellrsquos expert did not testify he relied on the whole

Mooney Report in forming his opinion helliphelliphelliphelliphelliphelliphelliphellip 12 b Honeywellrsquos expert did not establish any of the Mooney Report is reliable authority helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 13 c The Mooney Report inherently is not reliable authorityhellip 13

ii

d The Mooney Report is not admissible as an exhibithelliphellip 15 3 The Mooney Report is not admissible as ldquofacts circumstances and datardquo under sect801-4011helliphelliphelliphelliphelliphelliphellip 15 4 The Mooney Report being admitted especially by exhibit and emphasized in closing is prejudicialhelliphelliphelliphelliphelliphelliphelliphelliphellip 16 B THE TRIAL COURT CONDONING ldquoABSENCE OF OTHER

INCIDENTSrdquo ARGUMENT IS PREJUDICIAL ERRORhelliphelliphelliphellip 19 1 Public policy opposes Honeywellrsquos absence of other incidents argument helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 19 2 Evidence and argument of Honeywellrsquos ldquosafety historyrdquo properly was excluded at pretrialhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 22 3 Honeywell violating Virginia law and pretrial Order in closing over objection improperly was condoned at trialhellip 22 4 Honeywellrsquos violations and judgersquos condonations were

prejudicialhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 25 C THE TRIAL COURT REFUSING TO GIVE ADMINISTRATORSrsquo

CLEAR COMPLETE CORRECT MULTIPLE PROXIMATE CAUSE INSTRUCTION IS PREJUDICIAL ERRORhelliphelliphellip 26

1 Public policy demands the jury be instructed fullyhelliphelliphelliphellip 26 2 There may be more than one proximate cause and other

proximate causes need not be excluded with certainty and Administratorsrsquo jury instruction so informed the jury but it was refused for not being a Model Jury Instructionhelliphelliphellip 28 3 Administrators are entitled to correct jury instructions supporting their theory regardless whether the scintilla-plus of credible evidence is in their andor Honeywellrsquos casehellip 30

iii

4 Refusal of Administratorsrsquo multiple-cause instruction is prejudicialhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 32 D THE TRIAL COURT ADMITTING ABELrsquoS ldquoCRITICAL WITNESSrdquo

OPINIONS IS PREJUDICIAL ERRORhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 32 1 Public policy opposes Abelrsquos expert opinionshelliphelliphelliphelliphelliphellip 33 2 Abelrsquos opinions are unfounded and improperhelliphelliphelliphelliphelliphellip 34 a They are unfounded as an experthelliphelliphelliphelliphelliphelliphelliphellip 35 b They are improper as a laymanhelliphelliphelliphelliphelliphelliphelliphelliphellip 36 3 Abelrsquos opinions are speculativehelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 36 4 Abelrsquos opinions are hearsayhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 37 5 Abelrsquos opinions are irrelevanthelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 37 6 Abelrsquos opinions invade the juryrsquos provincehelliphelliphelliphelliphelliphelliphellip 38 7 Abelrsquos opinions are prejudicialhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 39 E THE TRIAL COURT ADMITTING NORMANrsquoS LAY OPINIONS AND HEARSAY IS PREJUDICIAL ERRORhelliphelliphelliphelliphelliphelliphelliphelliphellip 40 1 Public policy opposes Normanrsquos lay opinionshelliphelliphelliphelliphellip 41 2 Normanrsquos lay opinions are unfoundedhelliphelliphelliphelliphelliphelliphelliphelliphellip 42 3 Normanrsquos lay opinions are irrelevanthelliphelliphelliphelliphelliphelliphelliphelliphellip 42 4 Normanrsquos lay opinions are speculativehelliphelliphelliphelliphelliphelliphelliphellip 43 5 Normanrsquos testimony is hearsayhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 43 6 Normanrsquos lay opinions and hearsay are prejudicialhelliphelliphellip 43

iv

Conclusion 44 Certificate 45 Addendum 1 (12114) Letter of Roger T Creager Esq [Appellantsrsquo Counsel] 2 (12114) Email of Patrick Hanes Esq [Appelleersquos Co-Counsel] 3 (12114) Email of Austin W Bartlett Esq [Appelleersquos Co-Counsel]

v

TABLE OF AUTHORITIES

CASES

Beavers v Commonwealth 245 Va 268 (1993)helliphelliphelliphelliphelliphelliphelliphelliphellip 24 Bostic v About Women OBGYN PC 275 Va 567 (2008) passim Burns v Gagnon 283 Va 657 (2012)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip15 36 Cheng v Commonwealth 240 Va 26 (1990)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 24 Chesapeake amp Potomac Tel v Sisson amp Ryan 234 Va 492 (1987)hellip 9 Claiborne v Parrish 2 Va (2 Wash) 146 (1795)helliphelliphelliphelliphelliphelliphelliphelliphellip 7 Combs v Norfolk and Western Ry Co 256 Va 490 (1998)helliphelliphelliphellip 35 Commonwealth v Wynn 277 Va 92 (2009)7 16 37 Dandridge v Marshall 267 Va 591 (2004)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 6 Doe v Dewhirst 240 Va 266 (1990)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 36 Ford Motor Co v Boomer 285 Va 141 (2013)helliphelliphelliphelliphelliphelliphelliphelliphelliphellip 29 Goins v Wendys International Inc 242 Va 333 (1991)19 20 25 Hale v Maersk Line Ltd 284 Va 358 (2012)helliphelliphelliphelliphelliphelliphelliphelliphelliphellip 6 Hinkley v Koehler 269 Va 82 (2005)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 6 Holmes v Levine 273 Va 150 (2007)27 30 31 Jones v Ford Motor Co 263 Va 237 (2000)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 20 Keesee v Donigan 259 Va 157 (2000) 35 Lawlor v Commonwealth 285 Va 187 (2013) 30

vi

May v Caruso 264 Va 358 (2002)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 13 McClung v Commonwealth 215 Va 654 (1975)helliphelliphelliphelliphelliphelliphelliphelliphellip 31 McMunn V Tatum 237 Va 558 (1989) 16 Norfolk amp W Railway v Puryear 250 Va 559 (1995) 7 Pettus V Gottfried 269 Va 69 (2005) 37 Reid v Baumgardner 217 Va 769 (1977) 26 Sanitary Grocery Co Inc v Steinbrecher 183 Va 495 (1945)helliphelliphellip 19 Stottlemyer v Ghramm 268 Va 7 (2004)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 24 Virginia Passenger amp Power Co v Fisher 204 Va 121 (1905)helliphelliphellip 24 Velocity Express Mid-Atlantic v Hugen 266 Va 188 (2003) 21 25 26 Weinberg v Given 252 Va 221 (1996)13 16 White Consolidated Industry Inc v Swiney 237 Va 23 (1989) 29 Wood v Woolfolk Properties Inc 258 Va 133 (1999)helliphelliphelliphelliphellip19 25 Wright v Kaye 267 Va 510 (2004)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 43

STATUTES

Virginia Code sect801-3792helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 29 Virginia Code sect801-4011helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip passim

RULES OF EVIDENCE

Va R Evid 2701helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 36

vii

Va R Evid 2706(a)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 9

Va R Evid 2801helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 8

Va R Evid 2802helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 8

RULES OF COURT

Va Sup Ct R 530helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 1

AUTHORITATIVE TREATISES

CHARLES E FRIEND amp KENT SINCLAIR THE LAW OF EVIDENCE IN VIRGINIA (7th ed 2013)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 8 9

1

AMICUS STATEMENT OF INTEREST1 The Virginia Trial Lawyers Association (ldquoVTLArdquo) is an organization of

over 2000 Virginia attorneys dedicated to promoting professionalism within

the trial bar enhancing the competence of trial lawyers protecting and

preserving individual liberties and access to justice and supporting an

efficient and constitutionally sound judicial system Pursuant to Rule 530 of

the Rules of the Supreme Court of Virginia VTLA has obtained the written

consent of all counsel for the filing of this Brief Amicus Curiae See

Addendum (attached)

This appeal presents issues that are important to Virginia law and trial

practice in Virginia courts The appeal concerns not only the rights of the

parties to this case but also the rights of litigants and the nature of trial

practice throughout the Commonwealth

Assignment of Error 1 implicates Virginiarsquos well-settled rule against

hearsay in general and its limited statutory exception for ldquoreliable authorityrdquo

in particular Assignment of Error 2 implicates Virginiarsquos well-settled rule

against ldquoabsence of other incidentsrdquo evidence and by implication Virginiarsquos

1 Amicus affirms that no counsel for a party authored this brief in whole or in part and that no person or entity made a monetary contribution to its preparation or submission

2

mirror-image rule against ldquofact of other incidentsrdquo evidence Assignment of

Error 3 implicates litigant and jury entitlement to clear complete correct

instructions under Virginia law including particularly on the issue of multiple

proximate causes Companion Assignments of Error 4 and 5 implicate

Virginiarsquos longstanding limits of lay and expert opinions and subjective

impressions

NATURE OF THE CASE AND MATERIAL PROCEEDINGS BELOW

VTLA adopts Administratorsrsquo Nature of the Case and Material

Proceedings Below

STATEMENT OF FACTS

VTLA adopts Administratorsrsquo Statement of Facts However it

emphasizes the following testimony exhibits and incidents of trial

0 CLARIFICATION OF OPINIONS

Administratorsrsquo experts agreed with Honeywellrsquos experts that at

takeoff the trim setting was in the normal position JA1074-10752 However

Administratorsrsquo expert (Dr Sommers) opined that during flight the trim

setting got out of normal position and into ldquonose lowrdquo position because of

runaway trim caused by Honeywellrsquos autopilot Id

2 Joint Appendix is ldquoJArdquo Trial Transcript is ldquoTTrdquo Record is ldquoRrdquo

3

1 ASSIGNMENT OF ERROR 1

Among other hearsay fact and hearsay opinion the 5-page hearsay

Mooney Report introduced in evidence by Honeywell as Exhibit 11 under

Virginia Code sect801-4011 marqueed this crucial hearsay expert opinion

Conclusions The IIC Lycoming representative and myself did not find any evidence that the aircraft engine was not capable of producing power or that the aircraft was uncontrollable at the time of accident

JA463 (emphasis added) This ldquoabsent expertrdquo opinion (A) was the core

issue of the case ie defective autopilot and (B) was not part of the

National Transportation Safety Board (ldquoNTSBrdquo) report admitted JA447-458

2 ASSIGNMENT OF ERROR 2

Contrary to pretrial Order five (5) times in closing Honeywell argued

ldquoabsence of other incidentsrdquo as proof of no product defect or causation

JA1584 1591-1592 and 1603 Despite Administrators repeatedly objecting

and requesting a curative instruction JA1584 and 1605-1606 judge

overruled Administrators and condoned Honeywell JA1584 and 1605-

1607

3 ASSIGNMENT OF ERROR 3

Administrators requested Jury Instruction 11 which was clear

complete and correct on the core issue of multiple proximate cause JA352

4

and which was not covered by any other instructions But Honeywell

objected solely on the basis that it was not the Model Jury Instruction and

the judge sustained Honeywellrsquos objection on that ground JA1545-1547

4 ASSIGNMENT OF ERROR 4

Honeywell considered William Abel a ldquopretty critical witnessrdquo for the

defense JA657 But the judge only made a ldquoquasi-determinationrdquo that Abel

was a ldquoquasi-expertrdquo TT 349 yet permitted him over Administratorsrsquo half-

dozen different objections to render multiple critical opinions not based on

personal knowledge and Honeywell highlighted Abelrsquos videotape testimony

five (5) times opening direct witness testimony expert cross-examination

and closing JA792 1352 1354 and 1594-1595

5 ASSIGNMENT OF ERROR 5

Robert Norman is a new inexperienced pilot who as a layman was

permitted over Administratorsrsquo several objections to opine about his

personal ldquofearrdquo of the Mooney plane ldquoa thousand mistakes you can makerdquo

in the Mooney and his limited operation of the Mooney under different

circumstances plus various hearsay JA756-783 1380-1381 and 1383-

1389 Honeywell highlighted his videotape testimony in direct examination

and repeatedly in closing in tandem with Abel JA1363-1411 1593-1594

and 1598

5

ARGUMENT

Re Assignment of Error 1 sound public policy mandates upholding

Virginiarsquos rule against hearsay and concomitantly construing its statutory

ldquoreliable authorityrdquo exception strictly narrowly Yet the trial court construed

Virginia Code sect801-4011 liberally to cover a biased case-related report

and moreover did not even require Honeywell to honor the statutersquos

express requirements in admitting the hearsay Mooney Report in testimony

and its absent expert Conclusions on the core issue as an exhibit

Re Assignment of Error 2 sound public policy mandates upholding

Virginiarsquos rule against ldquoabsence of prior incidentsrdquo Yet the trial court

expressly condoned Honeywell violating not only settled Virginia law but

also its own pretrial Order with repeated closing argument about its

product safety history that in decades of use there allegedly never had

been another incident before

Re Assignment of Error 3 sound public policy mandates upholding

Virginiarsquos rule of litigant and jury entitlement to clear complete instructions

stating the correct law Yet the trial court refused Administratorsrsquo correct

clear complete one on the oft-confusing pivotal issue of multiple proximate

causes

6

Re companion Assignments of Error 4 and 5 sound public policy

mandates upholding Virginiarsquos rules limiting lay and expert testimony and

opinions Yet the trial court admitted numerous subjective opinions by

unqualified witnesses - one that Defendant conceded was a ldquopretty critical

witnessrdquo - that lacked foundation that were speculative hearsay and

irrelevant and that invaded the juryrsquos province

All of these errors were prejudicial in fact and under Virginia law

ldquoWell established principles require that error be presumed prejudicial

unless the record clearly shows that the error could not have affected the

resultrdquo Dandridge v Marshall 267 Va 591 597 (2004)(evidentiary errors

mandated reversal and remand for retrial) An ldquoerroneous admission of

evidence which may have lsquotipped the scalesrsquordquo is presumed prejudicial

Hale v Maersk Line Ltd 284 Va 358 377 (2012)(reversed and

remanded) In particular erroneous admission of defense expert testimony

may be prejudicial even if another defense expert testifies about the

identical topic Hinkley v Koehler 269 Va 82 91-92 (2005)(reversed and

remanded) Individually and certainly collectively the erroneous admission

7

of expert and other evidence in favor of Honeywell presumably ldquotipped the

scalesrdquo impermissibly3

A THE TRIAL COURT ADMITTING THE HEARSAY MOONEY REPORT IS PREJUDICIAL ERROR

The Mooney Report is hearsay4 JA459-463 ldquoEvidence that is

hearsay and does not fall under an exception is clearly inadmissiblerdquo

Commonwealth v Wynn 277 Va 92 98 (2009) regardless whether it is

opinion hearsay andor fact hearsay Id at 100

Honeywell asserted and the judge accepted that the Mooney Report

came within the exception of Va Code Ann sect801-4011 But

Administrators repeatedly objected for hearsay and ldquolack of foundationrdquo

JA1520-1525 as it clearly failed to meet that statutersquos strictures

1 Public policy opposes the hearsay Mooney Report

Since at least 1795 this Court has barred hearsay evidence absent

an exception Claiborne v Parrish 2 Va (2 Wash) 146 (1795) The 3 As a matter of law on the facts of the case each Assignment of Error constitutes manifest error Re Assignment of Error 1 4 and 5 the trial court had ldquono discretion to admit clearly inadmissible evidence because lsquoadmissibility of evidence depends not upon the discretion of the court but upon sound legal principlesrsquordquo Norfolk amp W Ry v Puryear 250 Va 559 563 (1995)

4 ldquoMooney Reportrdquo refers to the whole document and to its individual constituent statements of facts and of opinions that were admitted

8

continuing wisdom and vitality of its bar is evinced by recent Virginia Rules

of Evidence 2801 and 2802

Surveying Virginia law Friend articulates the most common reasons

for this Courtrsquos rule against hearsay evidence

1 ldquoThe out-of-court declarations were not made under oath 2 The use of such declarations denies to the opponent the right to

confront the witness against him 3 The out-of-court declarant cannot be cross-examined 4 The trier of fact has no opportunity to observe the demeanor of

the declarant on the stand 5 Such evidence is inherently weak 6 The jury will tend to give it too much weight 7 The more often a story is repeated the more likely it is to

become distorted 8 There is too much danger of fraud or perjuryrdquo

CHARLES E FRIEND amp SINCLAIR THE LAW OF EVIDENCE IN VIRGINIA sect151[c] at

902-903 (7th ed 2013 supp) Perhaps the strongest justification for the

hearsay rule is ldquolack of opportunity for cross-examination of the absent

declarantrdquo Id at 904

ldquoOur system of justice places great faith in the value of cross-

examination in testing the perception memory narrative ability and

9

veracity of witnesses [and] it is undeniable that cross-examination can be

an effective tool in exposing false testimony putting misleading testimony

into perspective and bringing out omitted material detailsrdquo Id This Court

has underscored the importance of testing trustworthiness in general and of

cross-examination in particular ldquoThe reason hearsay evidence is excluded

is that it is not subject to the tests which help the trier of fact ascertain the

truth of testimonyrdquo ie it ldquolacks any guarantee of trustworthiness and must

be excludedrdquo Chesapeake amp Potomac Tel v Sisson amp Ryan 234 Va 492

499 (1987)(hearsay forecloses its declarant being ldquocross-examinedrdquo)

Va Code sect801-4011 as amended in 1994 is a hearsay exception In

derogation of Virginiarsquos longstanding common law against hearsay it must

be ldquostrictly construedrdquo Bostic v About Women OBGYN PC 275 Va 567

576 (2008)

sect801-4011 features evidentiary preconditions so that the ldquotest of

cross-examinationrdquo is ldquoinsuredrdquo id plus hearsay qualifying under it only

may be read into evidence not introduced as a documentary trial exhibit

so not to give it undue emphasis Otherwise ldquothe opposing party is

subjected to the lsquooverwhelming unfairnessrsquordquo of admitting absent opinion Id

Further the General Assembly recently codified sect801-4011 as

expert witness law Virginia Rule of Evidence 2706(a) Expert opinion

10

warrants greater judicial scrutiny and litigant protection heightening the

courtrsquos function as ldquogatekeeperrdquo

Finally sect801-4011 is commonly referred as the ldquolearned treatiserdquo

exception since it was created ldquoto permit the introduction of authoritative

literature as substantive evidencerdquo Friend sect15-27 at 1063-1064 in lieu of

traditional practice of testing an expert ldquoon cross-examination by reading to

him from scientific articles or treatisesrdquo Id sect13-11[6] at 809-810 That is to

say sect801-4011 does not contemplate just anything that is printed

Well-settled Virginia law and sound public policy demand the hearsay

rule and its sect801-4011 exception be respected and applied to their letter

But admission of the hearsay Mooney Report including its absent expert

Conclusions contravened the rule and the statute in multiple ways

Admission of the hearsay Mooney Report ignored sect801-4011rsquos

safeguarding preconditions allowed printed material not of the character

contemplated and even introduced the document itself instead of only

testimony See A(2-3) infra Predictably it necessarily engendered the

ldquooverwhelming unfairnessrdquo and other prejudice that the rule the statute

and public policy require to be avoided See A(4) infra

11

2 The Mooney Report is not admissible as ldquoreliable authorityrdquo under sect801-4011

The ldquoreliable authorityrdquo exception of sect801-4011 mandates

To the extenthelliprelied upon by the expert witness in direct examination statements contained in published treatises periodicals or pamphlets on a subject of history medicine or other science or art established as a reliable authority by testimonyhellip shall not be excluded as hearsay If admitted the statements may be read into evidence but may not be received as exhibits

ldquoStatutes in derogation of the common law are to be strictly construed and

not to be enlarged in their operation by construction beyond their express

termsrdquo Bostic 275 Va at 576 (emphasis added) As such this ldquo1994

amendment to Code sect801-4011 [is] a relaxation of the common-law rules

against hearsay only to the limited extent provided by the express statutory

termsrdquo Id at 577

Specifically the General Assembly inserted in the 1994 amendment

ldquotwo preconditions to the admission of hearsay expert opinions as

substantive evidence on direct examination First the testifying witness

must have lsquorelied uponrsquo the statements contained in the published treatises

second the statements must be established as lsquoa reliable authorityrsquo by

testimonyhelliprdquo Id at 576 (emphasis added) But Honeywell did not satisfy

either precondition

12

a Honeywellrsquos expert did not testify he relied on the whole Mooney Report in forming his opinion

ldquoThe [first precondition] means that the witness must testify that he

relied on the article in forming his opinion which is consistent with the

views expressed by the absent authorrdquo Id at 577 ldquoThe statutory standard

is not met by an expertrsquos testimony that he relied upon it only to use it lsquoto

talk to this juryrsquordquo Id

Honeywellrsquos expert Dr Clarke testified that he relied upon only two

(2) sentences in the Mooney Report - lines 28-29 and 32 of its page 3

JA1524-1525 But ultimately the whole report including its hearsay expert

Conclusions was admitted as Exhibit 115

5 At Honeywell counselrsquos request Dr Clarke read the so-called ldquolast sentencerdquo pointed out to him lines 28-29 of page 3 of the Mooney Report ldquoThis indicates an approximate takeoff position trim settingrdquo JA1524 at Lines 3-8 Honeywellrsquos counsel requested and received leave to publish ldquowhat he just testifiedrdquo Id at Lines 9-13 and Dr Clarke showed ldquothat pagerdquo as requested and explained ldquothis was the part that I just readrdquo reading it aloud again Id at Lines 15-20 Dr Clarke then continued his answer by correlating and quoting nearby line 32 of page 3 of the Mooney Report ldquoAnd to validate what we just spoke about it says that there were six threads exposed on the jackscrew And itrsquos the same six threads we were talking about from the full nose-down positionrdquo Id at Lines 20-23 Honeywellrsquos counsel then changed to a ldquonew topicrdquo - without having asked Dr Clarke whether he relied on lines 28-29 and 32 of the Mooney Report Id at Line 24 So the Judge interjected inquiring whether Dr Clarke relied

13

b Honeywellrsquos expert did not establish any of the Mooney Report is reliable authority

The second precondition means that the expert witness himself must

attest that the article is accepted as reliable authority by other similarly

situated experts ie is of a type normally relied upon by others in the

particular field of expertise In a sidebar Honeywellrsquos attorney told the

judge the Mooney Report ldquois a document thatrsquos normally relied upon by

expertsrdquo JA1523 but Honeywellrsquos expert Dr Clarke did not offer the

required testimony for any part of the Mooney Report JA1520-1525

c The Mooney Report inherently is not and cannot be reliable authority

More fundamentally sect801-4011 expressly is limited to only

ldquopublished treatises periodicals or pamphletsrdquo This Courtrsquos examples of

such published literature are ldquoperiodicals which are deemed to be reliable

and authoritativerdquo Weinberg v Given 252 Va 221 222 (1996) ldquopublished

and authoritative literaturerdquo May v Caruso 264 Va 358 362 (2002) and

ldquolearned treatisesrdquo Bostic 275 Va at 575

Strictly construed ldquopublished treatises periodicals or pamphletsrdquo

connotes independent authoritative if not scholarly literature It inherently

upon this thereby prompting Honeywellrsquos counsel to ask and Dr Clarke to affirm belatedly JA1524 at Line 25 to JA1525 at Line 5

14

does not connote private disputed contemporaneous biased case-related

material like the Mooney Report by the crashed planersquos manufacturer

Otherwise construed liberally contrary to this Courtrsquos statutory

construction jurisprudence mere ldquopamphletrdquo (as declared summarily by the

judge JA1523) embraces essentially any unbound printing including

biased case-related materials elevated to authoritative literature Such a

liberal construction predictably and inequitably would allow retained experts

like Honeywellrsquos Dr Clarke to anoint disputed self-interested case materials

as ldquoreliable authorityrdquo to read ldquothem into the record as holy writrdquo id at 576

and to shield their (dubious) authors opinions and facts from the crucible

of cross-examination

Parties transmogrifying disputed biased case-related material into

ldquolearned treatiserdquo by hiring an expert to proclaim it so is not the intention of

sect801-4011 That is a perversion and an abuse of the statute with far-

reaching negative implications in all future Virginia litigation contrary to

sound public policy

Upon retrial of this cause Honeywell properly is barred from having

Dr Clarke or any other retained expert offer that the Mooney Report is

ldquoreliable authorityrdquo The Mooney Report author IIC and Lycoming

representative need to justify their own disputed case facts opinions and

15

Conclusions - if they are qualified to do so and if the IIC and Lycoming

representative truly concur with the Conclusions Cf Burns v Gagnon 283

Va 657 678 (2012)(Court addresses objections that ldquomay arise again on

retrialrdquo)

d The Mooney Report is not admissible as an exhibit

sect801-4011 explicitly is a testimonial not a documentary exception

The statute states expressly that ldquothe statements may be read into

evidence but may not be received as exhibitsrdquo (emphasis added)

It could not be any more literal unambiguous plain and clear

Admission of the Mooney Report as a defense trial exhibit is manifest error

particularly since the required foundation for any of it even to be read was

not laid and Administrators consistently maintained their hearsay and ldquolack

of foundationrdquo objections JA1520-1525

3 The Mooney Report is not admissible as ldquofacts circumstances and datardquo under sect801-4011

ldquo[P]ursuant to Code sect801-4011 an expert witness may rely upon

lsquofacts circumstances or data made known tohellipsuch witnessrsquo in formulating

an opinion those lsquofacts circumstances or datahellip if of a type normally

relied upon by others in the particular field of expertise in forming opinions

and drawing inferences need not be admissible in evidencerdquo

16

Commonwealth v Wynn 277 Va 92 100 (2009) However this clause of

sect801-4011 does not allow for the ldquointroduction of otherwise inadmissible

hearsay evidence during direct examination of an expert witness merely

because the expert relied on the hearsay information in formulating an

opinionrdquo Id (emphasis added)

sect801-4011rsquos ldquofacts circumstances or datardquo clause is separate from

the subsequent ldquoreliable authorityrdquo clause so is not read in conjunction with

it Hence the hearsay Mooney Report clearly was inadmissible on direct

examination of Honeywellrsquos expert Dr Clarke JA1520-1525

4 The Mooney Report being admitted especially by exhibit and emphasized in closing is prejudicial

This Court has reiterated the ldquooverwhelming unfairnessrdquo of admitting

absent expert opinion without cross-examination

The admission of hearsay expert opinion without the testing safeguard of cross-examination is fraught with overwhelming unfairness to the opposing party No litigant in our judicial system is required to contend with the opinions of absent lsquoexpertsrsquo whose qualifications have not been established to the satisfaction of the court whose demeanor cannot be observed by the trier of fact and whose pronouncements are immune from cross-examination

Bostic 275 Va at 575 (quoting Weinberg 252 Va at 225 quoting McMunn

v Tatum 237 Va 558 566 (1989)) Moreover the Court observed that the

General Assembly ldquoinsuredrdquo the ldquotest of cross-examinationrdquo by inserting the

17

1994 preconditions in sect801-4011 and that by a proponentrsquos non-

compliance ldquothe opposing party is subjected to the lsquooverwhelming

unfairnessrsquo we discussed in McMunnrdquo Bostic 275 Va at 576

When Defendantrsquos expert in Bostic failed simply to satisfy the first

precondition of sect801-4011 this Court concluded the trial court ldquoerred in

admitting the opinions contained in published medical literature without an

adequate foundation as required by Code sect801-4011rdquo Id at 578 Further

because the Court could not ldquodetermine to what extent the erroneous

admission of hearsay opinions stated in the published articles may have

affected the verdictrdquo for Defendant it reversed the judgment and remanded

for new trial Id

Admission of the Mooney Report was more egregious than in Bostic

Honeywell satisfied the first precondition only re two (2) sentences of five

(5) pages did not satisfy the second precondition at all admitted as an

ostensibly authoritative ldquopamphletrdquo a private disputed contemporaneous

self-interested case-related creation of the crashed plane manufacturer

even introduced all of it including its expert Conclusions on the ultimate

issue as a trial exhibit and emphasized it twice in closing JA1582-1583

The General Assembly in sect801-4011 expressly forbidding even

admissible ldquoreliable authorityrdquo as a trial exhibit acknowledges the extra

18

impact - the undue emphasis - of an exhibit in the jury room atop testimony

in the courtroom The entire 5-page Mooney Report going to the jury for its

deliberations - and its speculations - must be presumed damaging

The Mooney Report went to the pivotal liability issue of the trial -

seemingly with NTSB siding with Honeywell In addition to numerous

inadmissible hearsay facts and other hearsay opinions it marqueed the

following unique hearsay expert opinion ldquoConclusions The IIC

[ldquoNTSBrdquo] Lycoming representative and myself did not find any

evidence that the aircraft engine was not capable of producing power

or that the aircraft was uncontrollable at the time of the accidentrdquo

Honeywell Exhibit 11 JA459-463 at JA463 (emphasis added)

That singular inadmissible hearsay opinion was a highly prejudicial

trial exhibit because (1) it reached the ultimate issue of the case product

defect and cause and (2) it is not in the NTSB report admitted in evidence

Further because it spoke on behalf of ldquoThe IIC [lsquoNTSBrsquo]rdquo it carried the

implied imprimatur of the NTSB the Federal agency responsible for official

investigation even though the NTSB report itself never stated those expert

Conclusions adverse to Administrators JA447-458

The Mooney Report was a unique piece of expert testimonial and

documentary evidence not merely some inconsequential cumulative facts

19

It buttressed Honeywellrsquos defense in general and its experts in particular

while it foreclosed Administratorsrsquo truth-seeking cross-examination of the

Mooney Reportrsquos author the IIC and the Lycoming representative

B THE TRIAL COURT CONDONING ldquoABSENCE OF OTHER INCIDENTSrdquo ARGUMENT IS PREJUDICIAL ERROR

ldquoPlaintiffsrsquo Motion in Limine X the Court GRANTS this Motionrdquo

112112 Order (emphasis in original) JA401 ldquo[A]ny evidence or argument

as to the lsquosafety historyrsquo of Honeywellrsquos autopilot is to be excludedrdquo Id

1 Public policy opposes Honeywellrsquos absence of other incidents argument

This Court long has prohibited all use of ldquoabsence of other incidentsrdquo

evidence ldquoIt is firmly established that evidence of the absence of other

injuries is not admissiblehellipwhen timely objection is maderdquo regardless

ldquowhether the action lies in negligence or implied warrantyrdquo Goins v

Wendyrsquos Intrsquol Inc 242 Va 333 335 (1991)(emphasis in original) Wood v

Woolfolk Properties Inc 258 Va 133 138 (1999) Sanitary Grocery Co

Inc v Steinbrecher 183 Va 495 499-500 (1945)

Virginiarsquos doctrine recognizes that other incidents may go

undiscovered unreported unrecorded misattributed unacknowledged

etc and thereby are problematical irrelevant prejudicial ldquoIndeed a

departure from the rule would interject evidence so problematical due to

20

the potential for lack of reporting and the variables of circumstances and

conditions that such evidence would have slight if any relevancy or

probative valuerdquo Goins 242 Va at 335-336 Wood 258 Va at 138

This Courtrsquos salutary rule against Defendants admitting ldquoabsence of

prior incidentsrdquo is the mirror-image of its rule against Plaintiffs admitting

ldquofact of prior incidentsrdquo as evidence substantively to prove or corroborate

negligence breach of warranty andor causation in a product liability case

Eg Stottlemyer v Ghramm 268 Va 7 12 (2004) Jones v Ford Motor

Co 263 Va 237 255 (2002) Thus the public policy ends of fundamental

fairness and consistency mandate that Defendants like Honeywell cannot

disprove breach andor causation by ldquoabsence of prior incidentsrdquo evidence

since Administrators cannot prove either with ldquofacts of prior incidentsrdquo

In addition to litigation practicalities and equities public policy in the

interest of safety also demands that Plaintiffs not have to disprove defense

claims of ldquoabsence of prior incidentsrdquo and that the public at large not have

to suffer multiple widely-known injuries and deaths under substantially

similar circumstances before a product unreasonably dangerous to normal

use in fact can be found dangerous There always must be a ldquofirst caserdquo

Plaintiffs having to disprove the manufacturersrsquo claimed negatives is too

expensive time-consuming and otherwise burdensome and possibly futile

21

and there is no minimum quantum of public casualties required to reach a

critical evidentiary mass to maintain a product defect case

When Defendants violate the rule against absence of other incidents

evidence Virginia law and public policy hold that the judge must take

corrective action such as a curative instruction instead of increasing the

prejudicial impact by condonation and apparent judicial approval Velocity

Express Mid-Atlantic v Hugen 266 Va 188 201 (2003) It is unsound

inequitable and insufficient that victim Plaintiffs by their mere protests be

expected to overcome or (worse) even be deemed to have waived the

prejudice of Defendants and the weight of judiciary

Although Honeywellrsquos ldquosafety historyrdquo re prior incidents properly was

excluded at pretrial see B(2) infra Honeywell patently violated the pretrial

Order Virginia law and public policy by arguing in closing five (5) times

about the total absence of prior incidents See B(3) infra That obvious

prejudice to Administrators was exacerbated irreparably when the judge

condoned it by overruling Administratorsrsquo objections and their request for

curative instruction and moreover by directing Honeywell to ldquoproceedrdquo -

which it did again and again and again and again See B(4) infra

22

2 Evidence and argument of Honeywellrsquos ldquosafety historyrdquo properly was excluded at pretrial

Pursuant to Virginia law Administrators moved in limine to exclude all

evidence and argument by Honeywell of its purported product safety

history JA56-57 Urging various federal decisions however Honeywell

vigorously opposed exclusion on brief and at pretrial hearing for example

Honeywell argued it ldquodefinitely relevantrdquo that the autopilot ldquohas over a 30-

year history out in the field hundreds of thousands of flight hours not one

incident reported with the type of allegation that theyrsquore claiming here that

debris got in here caused it to jam and caused a runaway trimrdquo JA66

The trial court correctly rejected Honeywellrsquos arguments ruled for

Administrators JA610 issued a letter opinion JA338 and entered

112112 Order JA401 Re ldquoPlaintiffsrsquo Motion in Limine X the Court

GRANTS this Motion and any evidence or argument as to the lsquosafety

historyrsquo of Honeywellrsquos autopilot is to be excludedrdquo Id (underlining added)

3 Honeywell violating Virginia law and pretrial Order in closing over objection improperly was condoned at trial

Despite clear Virginia law and explicit pretrial Order in closing

Honeywell improperly did exactly what it wanted to do anyway and told the

jury as a matter of fact that there was an absence of prior binding or

jamming of the gears in its autopilot due to foreign matter ldquoItrsquos never

23

happened before There is no evidence this has ever happened anywhere

any timerdquo JA1584 (underlining added)

Administrators objected to no avail The trial court ldquoOverruledrdquo and

directed Honeywell ldquoPlease proceedrdquo JA1584 (underlining added)

And proceed Honeywell did - with four (4) more violations of Virginia

law and pretrial Order Honeywell represented to the jury as additional fact

1 ldquoSafe design for 35 years and no complaintsrdquo JA1591 2 ldquoWe submit to you that withhellipthe lack of any prior evidence of a

problem that it was reasonably designed and perfectly safe and not unreasonably dangerous designrdquo JA1591-1592

3 ldquoIt canrsquot do that and has never happened beforerdquo JA1603 and 4 ldquoNo evidence of a prior problem at all everrdquo JA16036 Administrators delayed their rebuttal argument objected a second

time and requested a curative instruction7 JA1605-1607 But the trial court 6 At and after trial Honeywell claimed its closing arguments simply recount Administratorsrsquo experts not knowing of any other incidents First that is not what Honeywell stated in closing any of the five (5) times Its ldquoabsence of other incidentsrdquo arguments simply are not particularized to Administratorsrsquo expert lack of familiarity but rather are general sweeping all-encompassing proclamations Second even if Honeywellrsquos arguments were limited to Administratorsrsquo experts they still are not permissible They still refer to ldquoabsence of other incidentsrdquo in the context ldquoproofrdquo of no defect or causation Third Administratorsrsquo experts personally not being familiar with any ldquoother incidentsrdquo does not prove that there are no other incidents So Honeywell cannot claim the total absence of other incidents that it did

24

again condoned the Honeywellrsquos multiple violations ldquoI had previously told

the jury that what you-all tell them is not evidence and they should not

consider it as such wersquoll leave it at that Overrule the motionrdquo JA1607

(underlining added)

7 Administratorsrsquo timely objections and request for curative instruction preserved the issue Moving for an instruction or for a mistrial suffices Eg Cheng v Commonwealth 240 Va 26 38 (1990) ldquo[J]uries are presumed to follow prompt explicit and curative instructionrdquo Beavers v Commonwealth 245 Va 268 280 (1993) But the trial court refused to grant Administratorsrsquo motion for a curative instruction Moreover since the trial court repeatedly overruled Administratorsrsquo objections and their request for a curative instruction under the circumstances Administrators requesting a mistrial obviously would have been an unnecessary ldquovain and useless undertakingrdquo Virginia Passenger amp Power Co v Fisher 104 Va 121 129 (1905)(ldquosufficient reason we think for not applyinghellipfor action to redress the wrongs complained ofrdquo) The pretrial Motion in Limine X the arguments at 101112 hearing the pretrial Order the repeated trial objections and the request for curative instruction were amply sufficient to raise and preserve the issue Further Administratorsrsquo protests in closing about the falsity of Honeywellrsquos ldquosafety historyrdquo arguments are no substitute for curative instruction particularly not where the trial court ldquooverruledrdquo Administratorsrsquo objections and authorized Honeywell to ldquoproceedrdquo ie approved judicially Inequitably and insufficiently Administratorsrsquo protests simply left the jury to speculate which party was telling the truth about Honeywellrsquos claimed ldquosafety historyrdquo - with its nod likely going to Honeywell (since the judge twice overruled Administratorsrsquo objections refused curative instruction requested by Administrators and had excluded Administratorsrsquo would-be evidence in the first place)

25

Since the judge overruled Administratorsrsquo motion for curative

instruction his phrase ldquowhat you-all tell them is not evidencerdquo is not

curative That ruling is akin a sports referee seeing personal fouls and

instead of calling penalties on the offender simply telling the competitors to

ldquoplay onrdquo - thereby condoning the inappropriate harmful rough play

4 Honeywellrsquos violations and judgersquos condonations were prejudicial

Honeywell arguing its safety history - the absence of other incidents

over 35 years - five (5) distinct times in closing necessarily was prejudicial

ldquoSuch evidence introduces into the trial collateral issues remote to the

issue at trial which would tend to distract mislead and confuse the juryrdquo

Goins 242 Va at 335 Wood 258 Va at 138 (ldquowe are unable to say that it

did not confuse or mislead the juryrdquo)8

Further the ldquoprobably prejudicial impact of this argument is significant

because the improper argument focused on the central disputerdquo Velocity

Express 266 Va at 201 Moreover the judge repeatedly condoning

Honeywellrsquos five (5) violations magnifies the prejudice leading the jury to

8 Technically of course Honeywellrsquos closing argument was not ldquoevidencerdquo However the legal principle and public policy are the same re ldquoargumentrdquo

26

infer judicial approval of its impropriety - ultimate unfairness to

Administrators

ldquoThe circuit court refused to take any corrective action to eliminate the

adverse prejudicial effect on the jury of [Defendantrsquos] improper argument

Based on the record before the Court we conclude that the probability of

prejudice upon the juryhellipwas increased by the apparent approval given by

the circuit court because of that courtrsquos refusal to take corrective actionrdquo Id

(underlining added)(remand for new trial) Reid v Baumgardner 217 Va

769 774 (1977)(same)

C THE TRIAL COURT REFUSING TO GIVE ADMINISTRATORSrsquo CLEAR COMPLETE CORRECT MULTIPLE PROXIMATE CAUSE INSTRUCTION IS PREJUDICIAL ERROR

Virginiarsquos law of proximate cause provides

A proximate cause of an accident injury or damage is a cause which in natural and continuous sequence produces the accident injury or damage It is a cause without which the accident injury or damage would not have occurred There may be one or more proximate causes Proximate cause need not be established with such certainty so as to exclude every other possible condition

That is Administratorsrsquo Instruction 11 that was rejected JA352

1 Public policy demands the jury be instructed fully ldquoA litigant is entitled to jury instructions supporting his or her theory of

the case if sufficient evidence is introduced to support that theory and if the

27

instructions correctly state the lawrdquo Holmes v Levine 273 Va 150 159

Significantly the evidence introduced to support a requested instruction

must only be ldquomore than a scintillardquo and where ldquoa proffered instruction finds

any support in credible evidence its refusal is reversible errorrdquo Id

(emphasis added)

Although Holmes frames correct jury instructions as a litigant

entitlement as a matter of public policy they are a jury entitlement too As

triers of fact juror must understand their charge if they are unclear - even

in part on one pivotal point - then the wrong decision and unnecessary

injustice may result

Proximate cause often is a subtle confusing point among lawyers let

alone jurors Public policy requires that the jury be instructed clearly

completely and correctly on that particularly where as here the theory of

two (2) proximate causes is at the core

Administratorsrsquo Instruction 11 about ldquoone or more proximate causerdquo is

particularly important in light of there being no ldquoconcurrent negligencerdquo

instruction (because it was a ldquobreach of warrantyrdquo product liability case)

which would have indicated one or more proximate causes were possible

Holmes does not indicate whether a concurrent negligence instruction was

used in that case

28

Also Administratorsrsquo multiple-cause instruction is especially important

because contributory negligence assumption of risk superseding cause

and even product misuses were not issuesdefenses in this particular

ldquowarrantyrdquo case Thus even a jury finding there was some pilot error that

was a proximate cause would not require a defense verdict but rather still

would have required the jury to decide whether product defect was a

proximate cause too

Contrary to Virginia law and public policy Administratorsrsquo clear

complete correct jury instruction on proximate cause was rejected solely

because it was not the Model Jury Instruction see C(2) infra despite

there being ample credible evidence in the case as a whole to support two

proximate causes See C(3) infra The resulting prejudice was manifest

See C(4) infra

2 There may be more than one proximate cause and other proximate causes need not be excluded with certainty and Administratorsrsquo jury instruction so informed the jury but it was refused for not being a Model Jury Instruction

Virginia law holds there may be ldquomore than one proximate cause of

an eventrdquo Id9 Further Virginia law also holds it is not necessary to

9 In product liability cases under Virginia law the manufacturer is liable if its product simply is ldquoardquo proximate cause ldquoour law provides a means of holding a defendant liable if his or her negligence is one of multiple

29

establish ldquoproximate cause with such certainty as to exclude every other

possible conclusionrdquo White Consolidated Indus Inc v Swiney 237 Va

23 28 (1989)

Administratorsrsquo Instruction 11 stated re proximate causation

A proximate cause of an accident injury or damage is a cause which in natural and continuous sequence produces the accident injury or damage It is a cause without which the accident injury or damage would not have occurred There may be one or more proximate cause Proximate cause need not be established with such certainty so as to exclude every other possible condition

JA352 (emphasis added) Hence the two sentences underlined to which

Honeywell objected simply state Virginia law correctly

Honeywell objected to Administratorsrsquo multiple-cause instruction

solely on the basis that it was not the ldquoModel Jury Instructionrdquo and the trial

court improperly sustained on that ground JA1545-1547 contrary to

Virginia statute and public policy ldquoA proposed instruction submitted by a

party which constitutes an accurate statement of the law applicable to the

case shall not be withheld from the jury solely for its nonconformance with

the model jury instructionsrdquo Va Code sect801-3792

concurrent causes which proximately caused an injury when any of the multiple causes would have each have been a sufficient causerdquo Ford Motor Co v Boomer 285 Va 141 151 (2013)

30

3 Administrators are entitled to correct jury instructions supporting their theory regardless whether scintilla-plus of credible evidence is in their andor Honeywellrsquos case

In Holmes too there were two potential proximate causes of death Id

at 159 Despite its verdict form specifically stating the jury ldquodid not find that

[Defendantrsquos] failure was a proximate cause of Holmes deathrdquo Holmes

reversed and remanded for the trial court refusing Plaintiffrsquos following

proximate cause instruction which is virtually identical to Administratorsrsquo

first underlined sentence that was rejected ldquoThere may be more than one

proximate cause of an eventrdquo 273 Va at 157-160 (emphasis added)

In Holmes Plaintiffrsquos own evidence happened to show both potential

causes of death Id But it is not necessary that only Plaintiffrsquos case-in-chief

prove all proximate causes and Holmes did not so hold

Instead the jury fairly may find more than one proximate cause

based on the evidence as a whole Plaintiffrsquos evidence Defendantrsquos

evidence or both partiesrsquo evidence Thus although Administrators only

introduced evidence of product defect as proximate cause since Honeywell

introduced evidence of pilot error as proximate cause the jury was entitled

to consider and to find both pilot error and product defect as proximate

causes Lawlor v Commonwealth 285 Va 187 228-229 (2013)(ldquoWhen

reviewing a trial courtrsquos refusal to give a proffered jury instruction we view

31

the evidence in the light most favorable to the proponent of the

instructionrdquo) McClung v Commonwealth 215 Va 654 657 (1975)

In McClung the murder Defendant steadfastly maintained that she

was ldquonot guiltyrdquo by reason of self-defense but was convicted of murder in

the second degree Id at 654 However this Court reversed and remanded

in McClung when the trial court refused Defendantrsquos request for a

ldquovoluntary manslaughterrdquo instruction on the grounds that ldquothe [whole]

evidence was also sufficient to support an instruction on voluntary

manslaughterrdquo (if viewed most favorably to her) even though it concededly

was sufficient to support murder in the second degree (when viewed most

favorably for Commonwealth) Id at 656-657

Correspondingly since ldquomore than a scintillardquo of ldquocredible evidencerdquo

had been admitted to support two proximate causes Holmes 273 Va at

159 Administrators were entitled their requested instruction that ldquothere may

be one or more proximate causerdquo Administrators so argued to the judge in

support JA1545-1547 and addressed multiple causation theory in closing

TT 3222-3223

32

4 Refusal of Administratorsrsquo multiple-cause instruction is prejudicial

The trial court refused Administratorsrsquo multiple-cause instruction

contrary to statute That refusal possibly if not probably left the jury with the

misimpression that it must or at least could weigh and find only one

proximate cause particularly in light of there being no concurrent

negligence instruction The jury reasonably could have found pilot error and

product defect each were a proximate cause especially since contributory

negligence assumption of risk superseding cause and product misuses

were not issuesdefenses and the jury should have understood that

unequivocally by Court instruction (which Administrators could and would

have emphasized in closing)

D THE TRIAL COURT ADMITTING ABELrsquoS EXPERT ldquoCRITICAL WITNESSrdquo OPINIONS IS PREJUDICIAL ERROR

William Abel is a former flight instructor whom Honeywell lionized as

a ldquopretty critical witnessrdquo JA657 (emphasis added) He provided training to

Grana and opined on Honeywellrsquos direct examination

1 ldquoA [T]he fact that [Mr Grana] took off on this day makes - makes me have some concerns about the judgment taking off into conditions on the weather that - that was reported to merdquo JA1350 (emphasis added)

2 ldquoQ So with respect to judgment do you believe that Mr Grana

exercised good judgment based on your understanding of

33

his qualifications and training in departing into 800-foot overcast ceiling on the day of the accident

A Based on the - all the flying Irsquove done with Joe [Grana] and

the conversations that we had I had concerns about why he would take off into those conditions on that dayrdquo JA1351-1352

3 ldquoQ With respect to Mr Granarsquos lack of experience in the

airplane in actual IFR conditions and the judgment that he used in taking off that day in your opinion was that a cause or contributing cause of this accident

A I donrsquot know what happened in that airplane In my opinion

it wasnrsquot the best of judgment to take off in those conditionsrdquo JA1357 (emphasis added)

But Abel had no ldquoperson knowledgerdquo of the crash the takeoff or even the

airport weather conditions JA1334-35 his weather report was from the

internet - 3 days before the crash Id

Administrators objected to Abelrsquos testimony as lacking sufficient

foundation improper opinion testimony speculative based on hearsay

irrelevant and invading the juryrsquos province JA723-741 The trial court

overruled all objections Id

1 Public policy opposes Abelrsquos opinions

Acceptance and rejection of expert testimony is a quintessential

ldquogatekeeperrdquo function of the courts Given the unique elevated status of

34

experts particularly to jurors public policy mandates would-be experts be

scrutinized closely

A witness either is qualified as an expert or not there is no half-

measure There are no ldquoquasi-expertsrdquo under Virginia law

As a corollary courtsrsquo expert ldquogatekeeperrdquo function necessarily

extends to precluding witnesses not deemed to be experts from rendering

opinions that are the province of experts As a matter of public policy a

witness should not be able to introduce de facto expert opinion through the

back door as a layman when unauthorized to admit it through the front door

as an expert

Honeywellrsquos ldquopretty critical witnessrdquo JA657 William Abel never was

qualified as an expert by the judge See D(2) infra Consequently all of his

harmful de facto expert opinions are inadmissible for his lack of

qualification as well as for multiple other independent grounds see D(3-

6) infra and their admission was highly prejudicial to Administrators

particularly as marqueed by Honeywell repeatedly by videotape excerpts

2 Abelrsquos opinions are unfounded and improper

Whether Honeywell claims Abel to be an expert witness or admits

him to be a lay witness his testimony is clearly inadmissible

35

a It is unfounded as an expert

Abel never was accepted by the Court as an expert The judge stated

ldquoAbel is a quasi-expert and wersquove made that quasi-determinationrdquo TT 349

(emphasis added) - a netherworld status and an incomplete acceptance

unrecognized in Virginia law

At pretrial hearing Honeywell conceded that Abel was ldquonot a retained

expertrdquo TT 462 and was a mere ldquopercipientrdquo with ldquopercipient observationsrdquo

of fact ldquobased on his perceptionsrdquo TT467-468 and 478-479 except

possibly for his ldquospatial disorientationrdquo opinions TT 468-470 and that ldquo99

percent of what he says is factualrdquo JA671 Moreover even if Abel arguably

could be qualified as an expert on a matter (which is disputed) an area of

expertise never was identified for him remained open to speculation by the

jury and ultimately would limit the nature topic and scope of his opinions

Combs v Norfolk and Western Ry Co 256 Va 490 496 (1998)

Further there was no showing that Abel did or even could consider

all of the ldquovariablesrdquo as foundation for his opinions Cf Keesee v Donigan

259 Va 157 161-162 (2000)(ldquorequirement that the evidence be based on

an adequate foundationrdquo) Hence Abel could not opine as an expert

On retrial however Honeywell may try to qualify Abel as an expert

and to elicit some of the same testimony from him So alternatively this

36

Court still should scrutinize him and his ldquocredentialsrdquo as an expert under

D(3-5) infra and bar his opinion testimony on retrial Burns supra

b It is improper as a layman

ldquoOpinion 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 witnessrsquo perceptionsrdquo Virginia Rule

of Evidence 2701 (emphasis added) Cf Doe v Dewhirst 240 Va 266

270 (1990)(ldquoIn order to be competent to testify on the subject the witness

must have had a reasonable opportunity to judgerdquo and even ldquomomentary

observationsrdquo at impact and ldquolater glimpserdquo post-impact ldquodid not

demonstrate that he had a reasonable opportunity to form an opinionrdquo)

Since Abel has no ldquopersonal knowledgerdquo of the crash the take-off the

weather or anything as a layman he cannot opine about any of it

including particularly without limitation ldquojudgmentrdquo and ldquocausationrdquo

3 Abelrsquos opinions are speculative

Despite his repeated ldquoconcernsrdquo bottom line is that when Honeywell

asked his opinion about ldquocauserdquo Abel had none JA677 he admitted ldquoI

donrsquot know what happened up thererdquo JA1357 (emphasis added) That core

concession renders all other testimony by Abel speculative and

inadmissible as such even if he were qualified as an expert

37

For example in Pettus v Gottfried 269 Va 69 73 (2005)(reversed

and remanded for retrial) Defendantrsquos expert had ldquonordquo opinion re cause of

death yet gratuitously opined for the defense further ldquothatrsquos the reason why

many times we feel that unless an autopsy is done itrsquos really difficult to

know what may have happenedrdquo This Court held that gratuitous opinion

was ldquospeculative in naturerdquo Id at 78

Further Abel expressing only ldquoconcernsrdquo about Granarsquos ldquojudgmentrdquo is

so indefinite as to be impermissibly speculative too JA1349-1352 And

Abel opining ldquoit wasnrsquot the best judgmentrdquo still is indefinite JA1357

4 Abelrsquos opinions are hearsay

Abel testified based on - indeed testified about - hearsay weather

conditions on Honeywellrsquos direct examination Even an expert attesting

hearsay facts on direct examination is inadmissible and reversible error

Commonwealth v Wynn 277 Va 92 100 (2009)

5 Abelrsquos opinions are irrelevant

Abel only expressed general ldquoconcerns about the judgment taking off

into conditions on the weatherrdquo and that it was not ldquobest judgmentrdquo

JA1349-1352 and 1357 Abel did not opine at all about what if anything

Grana supposedly did or did not do while actually flying to cause or

38

contribute to causing the crash ldquoI donrsquot know what happened in that

airplanerdquo JA1357 (emphasis added)

Whether or not Grana showed ldquogood judgmentrdquo let alone ldquogreat

judgmentrdquo in deciding to fly in weather conditions (never seen by Abel)

however simply is not relevant Re Grana the sole causation issue is

whether once flying any (in)action by Grana proximately caused the crash

- not whether his decision to fly in the first place was ldquogreatrdquo or even ldquogoodrdquo

This Court countenancing Abelrsquos testimony as relevant opens the

floodgates to like testimony in garden variety motor vehicle accident

(ldquoMVArdquo) and other cases In any MVA involving inclement weather - or

latewee hours etc - expert andor lay witnesses could opine ldquoconcernsrdquo

about motoristsrsquo threshold judgment in deciding to drive in the weather at

the hour etc as ostensibly relevant to the actual cause of the MVA literally

minutes and miles down the road

6 Abelrsquos opinions invade the juryrsquos province

Abel summarily opined ldquoconcerns about the judgmentrdquo and ldquoit wasnrsquot

the best judgmentrdquo JA1349-1352 and 1357 While that testimony is

indefinite unto speculative it also conclusorily and impermissibly goes to

the ultimate issue to be decided by the jury alone ie whether Granarsquos

conduct was a cause of the crash

39

7 Abelrsquos opinions are prejudicial

As intended by Honeywell the opinions of its ldquopretty critical witnessrdquo

Abel sullied Grana Abelrsquos repeated ldquoconcernsrdquo about (bad) ldquojudgmentrdquo

bespoke incompetence or at least carelessness if not recklessness -

despite contributory negligence assumption of risk and product misuse not

being issues - indicating predicate ldquofaultrdquo and inviting speculation

assumption andor presumption of Granarsquos (continuing) incompetence

andor wrongdoing while flying

Moreover Honeywell maximized the prejudicial impact of ldquopretty

critical witnessrdquo Abelrsquos repeated ldquoconcernsrdquo about Granarsquos ldquojudgmentrdquo at

four (4) different junctures during trial

1 Opening statement [by videotape] JA792

2 Direct examination [by videotape] JA1352 and 1354

3 Expert cross-examination [by reference] JA1645 and

4 Closing argument [by videotape] JA1594-1595

Since Abel testified by videotape deposition for maximum impact

Honeywell played videotape excerpts focusing on his ldquoconcernsrdquo about

ldquojudgmentrdquo during opening JA792 and replayed in closing JA1594-1595

With synergistic effect Honeywell also coupled its broadcasts of

ldquopretty critical witnessrdquo Abelrsquos testimony with its broadcasts of similar

40

negative opinionfeelings testimony of another plane co-owner Robert

Norman See E infra As intended the reinforcing testimony of its co-

owner duo was very damaging to Administrators

E THE TRIAL COURT ADMITTING NORMANrsquoS LAY OPINIONS AND HEARSAY IS PREJUDICIAL ERROR

Unlike Grana Robert Norman is a Mooney plane co-owner who was

unlicensed unendorsed and inexperienced to fly the Mooney solo in any

conditions let alone under Visual Flight Rules and Instrument

Meteorological Conditions like Grana JA1381-1383 and 1394 Moreover

Norman never used Honeywellrsquos autopilot in question to assist with turning

TT 2364 and the Mooney indisputably was turning after takeoff when

Grana used it JA991-992

Nonetheless on Honeywellrsquos direct examination Norman as layman

repeatedly was allowed to share his subjective opinions about the Mooney

1 ldquoA I still to this day am afraid of that Mooney 2 A I have a healthy fear of [the Mooney] 3 A It was not something that I would ever want to fly solo until I

could do that instantlyhellipThe Mooney there are a thousand different mistakes you could make that would lead you to have something bad happen

4 A I was told yoursquod have to be retarded to crash a [Cessna]

Skyhawk The Mooney totally opposite The Mooney

41

there are a thousand different mistakes you can make that would lead you to have something bad happenrdquo

JA380-382 (emphasis added) Norman also attested his subjective

opinions about his operation of the Mooney under supervision and different

circumstances than Grana including that the autopilot seemed to work

alright JA1383-1389 and attested hearsay about what Abel ldquomeantrdquo and

what other Mooney co-owners wanted re Grana flying JA1405-1409

1 Public policy opposes Normanrsquos lay opinions As indicated regarding William Abel see D(1) supra a classic

ldquogatekeeperrdquo function of the courts is precluding lay witnesses from

foraying into de facto expert opinion Of course lay testimony also is

inadmissible independently for lack of foundation irrelevance

speculativeness and hearsay

The testimony of Robert Norman which dovetailed with that of

William Abel as a matter of content and presentation by Honeywell

suffered from all those unfair ills See E(2-5) infra Their effects were

prejudicial particularly with the repeated combined videotape excerpts of

Abel and Norman see E(6) and public policy dictates such multi-prong

injustice not be countenanced

42

2 Normanrsquos lay opinions are unfounded

Lacking qualifications Norman testified as a layman But his

testimony about fearing the Mooney plane JA1380-1381 about the

ldquothousand different mistakes you can makerdquo with it JA1381-1382 and its

operation were unfounded JA1405-1409

His testimony about operating the Mooney plane under different

circumstances than Grana also was unfounded and impermissible (even for

an expert) because Norman did not know and thereby could not and did

not consider all of the variables JA1334-1335 Administrators repeatedly

objected but were overruled JA756-783

3 Normanrsquos lay opinions were irrelevant

Obviously Normanrsquos lay personal fears about the Mooney including

the ldquothousandrdquo bad mistakes a pilot could make with it are not relevant to

the issues whether Grana andor product defect was a cause of the crash

Likewise Normanrsquos opinions about how Honeywellrsquos autopilot operated

under limited different circumstances about what Abel meant andor about

what other co-owners intended re Grana simply are not relevant either

Administrators objected on grounds of relevance JA756-760 But the

judge overruled Id

43

4 Normanrsquos lay opinions were speculative

Norman opining about how the Mooney plane operated in his limited

experience under circumstances that were not substantially similar also

were speculative JA1383-1389 Administrators so objected and were

overruled JA758-760

5 Normanrsquos testimony is hearsay

Normanrsquos opinions about what Abel meant and what various partners

supposedly stated and agreed about Grana flying are hearsay JA1383-

1389 Wright v Kaye 267 Va 510 530 (2004)(ldquostate of mindrdquo statements

were inadmissible hearsay) Administrators objected and the judge

overruled JA769-773

6 Normanrsquos lay opinions and hearsay are prejudicial

Normanrsquos opinions unfairly indicated there was no defect with

Honeywellrsquos autopilot Yet he lacked sufficient expertise had limited

exposure to the Mooney plane and used it under different circumstances

Normanrsquos opinions repeatedly suggested that pilot mistake was the

cause of something bad happening ie the crash They did so in

heightened unto exaggerated emotional terms ie ldquoafraidrdquo ldquofearrdquo and a

ldquothousand different mistakesrdquo

44

As with Abelrsquos testimony Honeywell maximized the prejudicial impact

of Normanrsquos subjective lay impressions at three (3) trial junctures

1 Direct examination [by videotape] JA1380-1389

2 Closing argument [by videotape] JA1593-1594 and

3 Closing argument [by reference] JA1598

Since Norman too testified by videotape deposition for maximum impact

Honeywell replayed Normanrsquos most inflammatory opinions immediately

before it played Abelrsquos videotape excerpts in closing JA1593-1595

CONCLUSION

For the reasons set forth above consonant with sound public policy

VTLA urges the Court to reaffirm and apply Virginiarsquos longstanding

doctrines on reliable authority prior incidents proximate causation and lay

and expert testimony and opinions and reverse the Circuit Courtrsquos

judgments and remand for new trials on all issues

Respectfully submitted s Avery T Waterman Jr AVERY T WATERMAN JR ESQ

VSB 27118 Patten Wornom Hatten amp Diamonstein LC 12350 Jefferson Avenue Suite 300 Newport News Virginia 23602 Telephone (757) 223-4567 Facsimile (757) 223-4499 Awatermanpwhdcom Counsel for Amicus Curiae

45

CERTIFICATE OF SERVICE

I hereby certify that on January 22 2014 fifteen copies of the above

Brief Amicus Curiae have been filed via USPS Certified Mail to the clerkrsquos

office This same date three copies of the same have been sent via USPS

First Class Mail to the following counsel

Counsel for Appellants

Roger T Creager Esq VSB No 21906 The Creager Law Firm PLLC 1500 Forest Avenue Suite 120 Richmond VA 23229 Telephone (804) 747-6444 Facsimile (804) 747-6477 rcreagercreagerlawfirmcom John C Shea Esq VSB No 17436 Mark S Lindensmith Esq VSB No 20452 Marks amp Harrison PC 1500 Forest Avenue Richmond VA 23229 Telephone (804) 282-0999 Facsimile (804) 288-1853 jsheamarksandharrisoncom mlindensmithmarksandharrisoncom

46

Anita Porte Robb Esq Admitted pro hac vice in trial court Gary C Robb Esq Admitted pro hac vice in trial court Robb amp Robb LLC One Kansas City Place - Suite 3900 1200 Main Street Kansas City MO 64105 Telephone (816) 474-8080 Facsimile (816) 474-8081 arobbrobbrobbcom grobbrobbrobbcom Counsel for Appellee Patrick R Hanes Esq VSB No 38148 Turner A Broughton Esq VSB No 42627 Joseph R Pope Esq VSB No 71371 WF Drewry Gallalee Esq Harold E Johnson Esq VSB No 65591 Williams Mullen Clark amp Dobbins Williams Mullen Center 200 South 10th Street PO Box 1320 Richmond VA 23218-1320 Telephone (804) 420-6939 Facsimile (804) 420-6507 phaneswilliamsmullencom tbroughtonwilliamsmullencom jpopewilliamsmullencom dgallaleewilliamsmullencom hjohnsonwilliamsmullencom

47

Michael McQuillen Esq Admitted pro hac vice Austin W Bartlett Esq Pending pro hac vice admission John M Kelly Esq Admitted pro hac vice Nicole L Simmons Esq Admitted pro hac vice Adler Murphy amp McQuillen LLP 20 S Clark Suite 2500 Chicago IL 60603 Telephone (312) 345-0700 Facsimile (312) 345-5860 mmcquillenamm-lawcom abartlettamm-lawcom jkellyamm-lawcom nsimmonsamm-lawcom This same day an electronic version was also sent via email to the Clerkrsquos Office of the Supreme Court of Virginia and to all counsel listed above s Avery T Waterman Jr Of Counsel

48

ADDENDUM

CREAGER l t I It ~I I Ll (

1500 IORFST AVFNUF bull SUlTf 120 bull itl(IfMUNU VlJltJlNIJi 23229 bull WORK (1104) 74764middot1middot bull FAx (804) 747middot6471 bull WWWCRfJilifRIJiwFIRMCM

January 2 J 2014

Bv E-Mail and Fax Avery T Waterman Jr Esquire Patten Wornom Hatten amp Diamonstein LC Suite 300 12350 Jefferson Avenue Newport News Virginia 23602 (Fax (757) 223-4499)

Re Michelle C Harman Administratrix of the Estate of Joseph A Grana III Deceased et al v Honeywell International Inc Record Number 130627

Dear Mr Waterman

This confirms that I as and on behalf of counsel for the Appellants hereby consent to your filing in the Supreme Court of Virginia of a Brief Amicus Curiae of the Virginia Trial Lawyers Association in the above-styled matter

cc Counsel for Appellees Patrick R llanes Esquire Turner A Broughton Esquire Joseph R Pope Esquire WILLIAMS MULLEN PO Box 1320 200 South 10th Street Suite 1600 (23219) Richmond VA 232 J8-1320 (By Fax 804-420-6507)

Michael G McQuillen Esquire Austin W Bartlett Esquire John M Kelly Esquire Nicole L Simmons Esquire ADLER MUJgtRI-)Y amp McQUILLEN LLP 20 South Clark Street Suite 2500 Chicago I L 60603 (By Fax to 312-345-9860)

WILLIAMS MULLEN

Direct Dial 8044206455 phancswilliarnsrnullencom

January 222014

VIA ELECTRONIC MAIL

Avery T Sandy Waterman Jr Esq Patten Wornom Hatten amp Diamonstcin LC 12350 Jefferson Avenue Suite 300 Newport News VA 23602

Re Michelle C Harman etc v Honeywell International Inc Record No 130627

Dear Sandy

As and on behalf of counsel for Appellee I consent to the filing in the Supreme Court of Virginia ofa Brief Amicus Curiae of the Virginia Trial Lawyers Association in the above-styled matter

Please let me know if you have any questions

~~TYO ( ~u~__V~trvJ Fmiddot v ___

Patrick R Hanes

cc Turner Broughton Esq (via e-mail) Roger T Creager Esq (via e-mail) Michael McQuillen Esq (via e-mail)

NORTH CAROLINA VIRGINIA WASHINGTON DC

200 50mh 1O~ Srrcee Suire 1600 (23219) PO Box 1320 Richmond VA 23218-1320 Tel 8044206000 Fax 8044206507 INWWwilliamsmuJJencom

Jeanne Vareo

From Austin W Bartlett ltabartlettAMM-LAWcomgt Sent Tuesday January 21 2014 506 PM To Jeanne Varco Cc Michael G Mcquillen John M Kelly Broughton Turner

(tbroughtonwilliamsmulencom) Hanes Patrick R (phaneswilliamsmullencom) rcreagercreagerlawfirmcom jsheamarksandharrisoncom arobbrobbrobbcom grobbrobbrobbcom

Subject FW Harman v Honeywell cw Bemberis v Honeywell - 12114 Email to P Hanes and M Mcquillen

Attachments img-121160142-000lpdf

Importance High

Hi Jeanne and Avery

On behalf of Mike McQuillen this will confinn that we consent to your filing of an amicus brief

Best regards Austin

Austin W Bartlett ADLER MCRPHY amp McQUILLEN LLP

20 S Clark Street Suite 2500 Chicago Illinois 60603 Main (312) 345-0700 Direct (312) 422-5798 Facsimile (312) 345-9860

The ilformatioll IXJlltained in thiJ electronic mail message is conjidential illformation intended onlY for the use ofthe individual or enti) named aboIe and may be protected ~Y the attornflY client andor attorney work prodllct pnmiddotvileges Ifthe reader qfthis meJJage iJ not the intended redpient or the emplqyee or agent reJpoflJible to deliver to the itltended redpientyou are hereby notified that atry disJemination diJtriblltioll or copying qthiJ (omtlJlmimtioll is stndIY prohibited f)Oll have meilJed this communication in error pleaJe immediatelY not~jj us and delete the miginal menage

From Jeanne Varco [mailtojeannePWHDcom] Sent Tuesday January 21 2014 305 PM To phaneswilliamsmullenscom Michael G Mcquillen tbroughtonwilliamsmullencom jpopewilliamsmullencom Cc jsheamarksandharrisoncom arobbrobbrobbcom grobbrobbrobbcom rcreagercreagerlawfirmcom Subject Harman v Honeywell cw Bemberis v Honeywell - 12114 Email to P Hanes and M McQuillen Importance High

This email was sent to you on behalf of Avery T Waterman Jr Esq

Jeanne M Varco Legal Assistant to Avery T WatermanJr Esq Patten W ornom Hatten amp Diamonstein LC

1

THE LEX GROUP 1108 East Main Street Suite 1400 Richmond VA 23219 (804) 644-4419 (800) 856-4419 Fax (804) 644-3660 wwwthelexgroupcom

In The

Supreme Court of Virginia

______________________

RECORD NO 130691 ______________________

BYRD THEATRE FOUNDATION (THE)

Appellant

v

DAVID M BARNETT

Appellee

_________________________

BRIEF OF AMICUS CURIAE THE VIRGINIA TRIAL LAWYERS ASSOCIATION

IN SUPPORT OF APPELLEE _________________________

Nathan J D Veldhuis (VSB No 68746) Gobind Sethi (VSB No 72266) CHAIKIN SHERMAN Samantha K Sledd (VSB No 82656) CAMMARATA AND SIEGEL PC HALL amp SETHI PLC 1232 17th Street NW 12120 Sunset Hills Road Suite 150 Washington DC 20036 Reston Virginia 20190 (202) 659-8600 (Telephone) (703) 925-9500 (Telephone) (202) 659-8680 (Facsimile) (703) 925-9166 (Facsimile) nathandc-lawnet gsethihallandsethicom Counsel for Amicus Curiae Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ii A STATEMENT OF AMICUS INTEREST 1

B STATEMENT OF THE CASE AND MATERIAL

PROCEEDINGS 1

C STATEMENT OF FACTS 2

D ASSIGNMENTS OF ERROR 2

E ARGUMENT 2 I The Trial Court Was Correct In Ruling That Barnett

Was Not A Beneficiary Of The Foundation At The Time He Sustained His Injury 2 A Standard of Review 3

B Applicable Law 4

II Knowledge Of The Defective Walkboard Should Be

Imputed To The Foundation Even If Such Knowledge Was First Acquired By An Individual Before He or She Became An Agent Of The Foundation 12

A Standard of Review 12

B Applicable Law 13

F CONCLUSION 20

G CERTIFICATE 23

ii

TABLE OF AUTHORITIES

Page(s)

CASES Bodenheimer v Confederate Memorial Assrsquon

68 F2d 507 (4th Cir 1934) 8 Cabin Branch Min Co v Hutchinsonrsquos Admrsquox

112 Va 37 (1911) 14 15 Diaz v Wash State Migrant Council

265 P3d 956 (Wash Ct App 2011) 17 Egerton v RE Lee Memorial Church

385 F2d 381 (4th Cir 1968) 8 Goodstein v Milmo Realty Corp

8 NYS2d 243 (NY City Ct 1938) 16 Honsinger v Egan

266 Va 269 (2003) 13 Ola v YMCA of S Hampton Rds Inc

270 Va 550 (2005) passim Smith v Kim

277 Va 486 (2009) 13 The Distilled Spirits

78 US 356 (1871) 16 Thrasher v Winand

239 Va 338 (1990) 5 9 Wintergreen Partners Inc v McGuirewoods LLP

280 Va 374 (2010) 13

iii

OTHER AUTHORITIES Restatement (Second) of Agency sect 276 (1958) 16 18 Restatement (Third) of Agency sect 503 (2006) 17 18

1

A STATEMENT OF AMICUS INTEREST1

The Virginia Trial Lawyers (ldquoVTLArdquo) is an organization of

over twenty-five hundred Virginia attorneys dedicated to

promoting professionalism within the trial bar enhancing the

competence of trial lawyers protecting and preserving individual

liberties and access to justice and supporting an efficient and

constitutionally sound judicial system

This appeal presents issues that are important to Virginia

law and trial practice in Virginia Courts It concerns and

implicates not only the rights of the parties to this case but also

the rights of litigants and the nature of trial practice throughout

the Commonwealth

B STATEMENT OF THE CASE AND MATERIAL PROCEEDINGS

The VTLA adopts Appellee David M Barnettrsquos Statement of

the Case

1 The VTLA affirms that no counsel for a party authored this brief in whole or in part and that no person other than amicus its members and its counsel made a monetary contribution to its preparation or submission However counsel for Appellee is a member of the VTLA

2

C STATEMENT OF FACTS

The VTLA adopts Appellee Barnettrsquos Statement of Facts

D ASSIGNMENTS OF ERROR

I The trial court erred in denying the Foundationrsquos Plea of Charitable Immunity (JA 9 13-34 50-62 68-69 351-409 410-413 1458-60 1603 1682-86 1702 1704-1705)

II The trial court erred in refusing to instruct the jury on notice to a corporation (JA 1229-44 1272-98 1399 1461-66 1577-97 1682-86 1702 1704-1705)

E ARGUMENT

I The Trial Court Was Correct In Ruling That Barnett Was Not A Beneficiary Of The Foundation At The Time He Sustained His Injury

The trial court correctly held that Mr Barnett was not a

beneficiary of The Byrd Theatre Foundation (ldquoFoundationrdquo) at the

time of his injury When Mr Barnett was injured falling from a

walkboard he was performing organ repair at the request of

Robert Gulledge an agent of the Foundation At that time the

Foundation did not employ an organ repairperson Mr Barnett

was an organ enthusiast with extensive knowledge of how organs

function Mr Gulledge solicited Mr Barnett a Foundation

volunteer to perform the repairs Mr Barnett agreed

3

When Mr Barnett brought suit against the Foundation the

latter asserted a plea of sovereign immunity In passing on the

plea the trial court held ldquo[t]he fact that plaintiff likes and wanted

to do what he was doing by providing a service of repair to the

charity and received a lsquobenefitrsquo thereby is not the same as or

consistent with the [Foundationrsquos] extending its charitable

beneficence [to Mr Barnett] according to its charitable

undertakingrdquo (JA 411) The trial court denied the Foundationrsquos

plea and the Foundation has appealed that ruling to this Court

(JA 410-413 1682-1686)

The VTLA writes on brief amicus curiae because this case

presents an important opportunity for this Court to articulate the

bounds of the doctrine of charitable immunity

A Standard of Review The VTLA agrees with and incorporates herein by reference

Appellee Barnettrsquos analyses of the standard of review

4

B Applicable Law

In Ola v YMCA of S Hampton Rds Inc this Court set forth

the test assessing the availability of charitable immunity as

follows

To establish charitable immunity as a bar to tort liability an entity must prove at least two distinct elements The absence of either element makes the bar of charitable immunity inapplicable First the entity must show it is organized with a recognized charitable purpose and that it operates in fact in accord with that purpose lsquoIn conducting this inquiry Virginia courts apply a two-part test examining (1) whether the organizationrsquos articles of incorporation have a charitable or eleemosynary purpose and (2) whether the organization is in fact operated consistent with that purpose rsquo

Second assuming the entity has met the foregoing test it must then establish that the tort claimant was a beneficiary of the charitable institution at the time of the alleged injury

270 Va 550 556 (2005) (internal citations omitted) ldquo[Charitable] immunity does not extend however to

invitees or strangers having no beneficial relationship to the

charitable institutionrdquo Id ldquo[S]uits by invitees or strangers for

negligence will not be barred by the doctrine of charitable

immunityrdquo Id at 561

5

In Ola the minor plaintiff was sexually assaulted shortly

after she used the ldquoYMCArsquos swimming pool and was using the

bathroomrdquo Id at 555 This Court held that because she was a

beneficiary of the YMCA a charitable entity any claim against the

YMCA for injuries was barred by the doctrine of charitable

immunity Specifically it held that because she was a beneficiary

of the YMCA at the time of the alleged injury her claims were

barred Id at 565

The central inquiry in this context is ldquowhether the plaintiff

was at the time of his injury accepting the benefits of the

charitable activities of the defendant a charitable organization

thus giving rise to the defense of charitable immunityrdquo Thrasher

v Winand 239 Va 338 339 (1990) (emphasis added)2

Mr Barnett stipulated that the Foundation is a charity The

Foundation therefore must establish that Mr Barnett was

ldquoaccepting the benefits of the charitable activities of the

[Foundation]rdquo at the time of his injury Id In Ola and Thrasher 2 This Court has also cautioned charitable organizations that ldquoit is often prudent and an exercise of fiduciary responsibility for a charitable entity to carry liability insurance for protection in the appropriate circumstancerdquo Ola 270 Va at 561

6

this Court makes it clear that ldquoat the time of the injuryrdquo for

purposes of the case at bar means while Mr Barnett was a

volunteer at the Theatre for the purposes of repairing the organ

on May 23 2009

The analysis of whether Mr Barnett was a beneficiary of the

Foundation at the time he was injured begins with the nature of

the Foundationrsquos charitable purpose The Foundation maintains

the following as its charitable purposes

1 ldquoTo cultivate promote and develop the publicrsquos

knowledge awareness understanding and

appreciation of the performing artsrdquo (JA 249)

2 ldquo[O]wn and [r]estore The Byrd Theatre as a grand

movie palace and community resourcerdquo (JA 251)

3 ldquoRestoration of the 1928 Byrd Theatre to its former

grandeurrdquo including ldquomajor historical renovation of the

organrdquo (JA 266)

4 ldquo[R]estore and preserve the Byrd Theatrerdquo (JA 101)

The Foundation argues that Mr Barnett ldquosquarely fits into

the class of people who benefit from the Foundationrsquos charitable

7

purposerdquo and therefore ldquoit cannot be concluded from all of the

evidence that Mr Barnett received absolutely nothing of value

from the Foundationrsquos charitable workrdquo (Br of Appellant 31-32)

In support of this contention the Foundation points to the

fact that Mr Barnett attends the Theatre twice yearly supports

the Theatre and has a love of theatre organs The Foundation

concludes these facts bring Mr Barnett in alignment with the

Foundationrsquos purpose Ola is instructive in demonstrating why

that is not so at the time Mr Barnett was injured

There is no dispute that Mr Barnett was an organ enthusiast

and a supporter of the Theatre who derived benefits from the

Theatre when he attended events hosted by the Theatre

Similarly the plaintiff in Ola was a beneficiary of the YMCArsquos

charitable purpose when she went swimming in its pool In

support of its holding the Ola Court cited two cases from the

Fourth Circuit Court of Appeals in which individuals entering a

historic church to view stained glass and visiting a charitable

entity for purposes of admiring paintings and other exhibits were

deemed beneficiaries of those charities Ola 270 Va at 564

8

(citing Egerton v RE Lee Memorial Church 385 F2d 381 384

(4th Cir 1968) and Bodenheimer v Confederate Memorial Assrsquon

68 F2d 507 509 (4th Cir 1934))

Applying these principles to the instant case Mr Barnettrsquos

presence at the Theatre on the day he was injured is

distinguishable in a conclusive way Cases like Ola Egerton and

Bodenheimer involve plaintiffs deriving a direct benefit from the

charities they were attending at the time they were injured In

contrast Mr Barnett was not watching one of the Theatrersquos

movies or listening to organ music when he fell Rather he was

there to fix the organ He was volunteering Indeed he had

been asked by Robert Gulledge the Foundationrsquos organ

restoration subcommittee chairman to conduct a one-time repair

that was even outside the scope of Mr Barnettrsquos advisory role on

the same subcommittee Mr Barnett was on the organ

restoration subcommittee and it was in that capacity that Mr

Gulledge asked him to fix the organ

In order for the charitable immunity test in Ola to be met in

the case at bar Mr Barnett must have been deriving some

9

benefit related to the charitable purpose of the Foundation at the

time of his injury 270 Va at 563 The facts in Ola are not

analogous to the facts in the case at bar If the plaintiff in Ola

had been a pool aficionado who at the request of the Director

had volunteered to fix some cracks in the pool at the YMCA at the

time she was injured the case would have presented a scenario

much like the one in this case

The fact that the plaintiff in Ola had swum in the pool at the

YMCA before the day she was injured and intended to swim there

after the day she was injured is not the question The question

is whether she was enjoying the YMCArsquos facilities at the time she

was injured Similarly the inquiry here is not whether Mr

Barnett had ever been a beneficiary of the Foundation or that he

would again at some time in the future it is only for purposes of

this analysis whether he was deriving a benefit from the

Foundation at the time he was injured Any other conclusion

would require speculation about ldquoindirect benefitsrdquo which are ldquotoo

remote and speculativerdquo to give rise to the defense of charitable

immunity Thrasher 239 Va at 342

10

The fact that Mr Barnett is an organ enthusiast and owner

who has access to the Theatre organ by being on the organ

subcommittee and received gratification and ldquoeducationrdquo when

he has worked on the organ does not make him a beneficiary3

Certainly one can imagine that a professional organ repairperson

engaged to work on these types of organs has an affinity for

theater organs and receives satisfaction from their efforts It also

can be presumed they receive the same type of ldquoeducationrdquo each

of us receives daily in our every endeavor in activities of daily

living

Mr Barnett received no benefit of any value from his repair

of the organ in response to Mr Gulledgersquos request He received

no payment from the Foundationrsquos only charitable activity of 3 While in this particular case Mr Barnett was a supporter of the charity the result should be the same even if he were not For example if the Theatrersquos heating system needed to be repaired and Mr Gulledgersquos neighbor worked on heating systems for a living but cared nothing about the Theatre and Mr Gulledge asked his neighbor to work on the Theatrersquos system as a favor the neighbor would be no less entitled than Mr Barnett to the same ability to recover if he were injured by the negligence of the Theatre It would be extraordinarily difficult as a practical matter for trial courts to attempt to draw distinctions between different classes of volunteers at charities for purposes of charitable immunity analyses

11

fundraising The only thing that made Mr Barnett ldquodifferentrdquo is

that his motivation was altruistic because