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Shumate v. Mitchell

Supreme Court of Virginia

December 20, 2018



         PRESENT: All the Justices



         In this appeal, we consider whether Virginia's Dead Man's Statute, Code § 8.01-397, permits admission of a decedent's hearsay statements offered by the defense in a personal injury action brought against the decedent's estate. We also consider whether the circuit court erred in refusing to vacate the jury's verdict of no damages when the estate conceded liability.


         When reviewing a circuit court's refusal to set aside a jury's verdict for the defense on damages, this Court views the evidence in the light most favorable to the defense as the prevailing party below. See Gilliam v. Immel, 293 Va. 18, 20-21 (2017) ("Because [the defendant] prevailed on the issue of damages, we review the evidence on that issue in the light most favorable to him."). So viewed, the evidence is as follows.

         Debra Shumate filed suit seeking damages from an October 18, 2011 automobile collision with a car driven by William Earl Thompson. She originally sued Thompson, but amended the complaint to substitute his estate's personal representative upon learning that he had passed away from unrelated causes. The estate conceded liability, and the trial was limited to the issue of damages. Prior to trial, Shumate filed a motion in limine to exclude testimony regarding Thompson's description of the collision to his two sons. Shumate argued that because neither son witnessed the collision, his statements would be inadmissible hearsay not cured by the Dead Man's Statute. The circuit court overruled Shumate's motion.

         The evidence presented at trial established that Shumate was stopped at a traffic light when she observed a sports car driven by Thompson moving toward the rear of her sedan. She applied the brake in anticipation of the collision and put her arm in front of her son, Joey, who was riding in the passenger seat. Joey described the impact as a "hard slam" and said he saw Shumate go forward and hit her head. Shumate testified that the collision was so violent she was afraid Joey would "go through the windshield" and that Thompson's "little car had went [sic] underneath" her sedan. Joey called 911. First responders arrived shortly thereafter and transported Shumate to the emergency room.

         Shumate provided varying estimates of Thompson's speed. At the emergency room, she reported that his car rear-ended her at approximately thirty-five miles per hour. She told a physician she visited two days later that she was struck at forty miles per hour. At trial, she testified that Thompson's car was traveling at least twenty miles per hour.

         Donald Bowman, who was riding with Thompson, described a milder collision:

Traffic stopped. We stopped. And the traffic started moving and [Thompson] let the clutch out and I guess he pushed it back in and he just run five or six miles an hour, and I looked over there and all of a sudden hit a bump, hit the car. . . . [The impact] didn't even move me or hurt me or anything, didn't jar me or nothing.

         Thompson's son, Billy, testified that his father described the collision as occurring in stop-and-go traffic. According to Billy, as traffic began moving forward Thompson eased off the brake, checking his mirrors, but Shumate's sedan had stopped in front of him. Thompson's car "bumped" the sedan at "[f]ive to seven miles an hour."

         Bowman stepped out of the sports car after the collision and viewed the scene. He testified that he did not see a dent in the rear of Shumate's sedan, but that some paint had been transferred from the sports car's nose to the sedan's rear bumper. Billy, who had helped build Thompson's sports car, identified the only damage as a small dent in the thin aluminum trim and some cracking in the car's fiberglass nose.

         Shumate has been injured in three automobile accidents prior to the collision at issue here. In 1993, a vehicle struck her car at around fifty-five miles per hour, resulting in her losing consciousness and suffering arm, leg, and lower back pain. She was rear-ended in 2001, causing injuries to her neck, knee, and right ankle. And in 2007, she was a passenger in a vehicle that ran off the road causing "immediate pain in [her] neck and back."

         In June 2011, four months before the collision, Shumate visited a pain management clinic complaining of "intense, miserable, and needle[-]like" neck pain that affected her sleep. The physician's notes record that Shumate attributed the pain to the 2007 car accident and that she previously underwent two surgical procedures to alleviate the pain. She visited the same clinic in August 2011 complaining of the same neck pain symptoms, which she rated as "6 to 7 out of 10" in intensity. Medical records indicate that Shumate was "still tak[ing] morphine" for the pain on September 27, 2011 and that she underwent a cervical facet nerve block procedure on October 3, 2011-just five days prior to the collision-in an effort to limit her pain.

         Nine days after the collision, on October 27, 2011, Shumate again presented at the pain management clinic where she reported the nerve block procedure "did not provide her with any substantial relief" from her pain, which she continued to rate at a "6 to 7 out of 10." Notably, the physician's notes from the October 27 appointment contain no reference to the October 18, 2011 collision.

         Shumate underwent a third spine surgery in March 2012. The surgeon who performed that procedure testified that Shumate reported the same pain level before and after the 2011 collision at issue in this case and that this pain was the reason for the surgery. The surgeon also reported that Shumate had preexisting degenerative changes in her neck and spine not attributable to the 2011 collision. She underwent a fourth spine surgery in March 2017 to revise one of the pre-2011 surgeries. That surgeon attributed the need for this surgery to the 2011 collision based on Shumate's report that her pain symptoms originated with it and that "[s]he was doing very well prior to" it.

         The estate called Dr. Sander Leivy, a neurosurgeon, as its medical expert. Leivy did not personally examine Shumate. After reviewing all of her medical records, he testified that she was not injured in the 2011 collision. He testified that her pain complaints resulted from degenerative conditions in her spine predating the collision and that this degeneration, not the collision, necessitated her subsequent surgeries. Leivy stated that he did not believe any of Shumate's medical expenses after the collision were attributable to it "except for going to the ER the day of the accident to make sure something wasn't injured" because "that makes sense." Shumate ultimately submitted an itemized listing of $197, 157.50 in medical expenses in support of her claim for $500, 000 in damages.

         At the conclusion of all evidence, the circuit court instructed the jury that because the estate had conceded liability, "the only issue that you have to decide is the amount of damages, if any, the plaintiff is entitled to recover. An admission of liability should not influence you in any way in considering the issue of damages." It further instructed: "The issue in this case is, if the plaintiff is entitled to recover, what is the amount of her damages. On this issue the plaintiff has the burden of proof." Another instruction stated that "[i]f you find your verdict for the plaintiff, then in determining the damages to which she is entitled you shall consider the following which you believe by the greater weight of the evidence was caused by the negligence of defendant." It then listed various factors.

         The jury returned a unanimous verdict for the plaintiff and fixed her compensatory damages "at zero dollars." Shumate moved to set aside the verdict as contrary to the law and evidence and received leave to brief the issue. She argued in her brief that uncontradicted evidence, including Leivy's testimony that the emergency room visit made sense, established that a verdict of no damages was inappropriate. She further contended that Billy's testimony recounting Thompson's out-of-court statements was inadmissible hearsay not cured by the Dead Man's Statute because that statute did not apply when a live witness-namely Bowman-was available to testify as an eyewitness. The circuit court overruled Shumate's motion to reconsider and entered final judgment over her objection.

         We granted ...

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