DEBRA K. SHUMATE
TERRI MITCHELL, EXECUTRIX AND PERSONAL REPRESENTATIVE OF THE ESTATE OF WILLIAM EARL THOMPSON
THE CIRCUIT COURT OF ROANOKE COUNTY James R. Swanson, Judge.
All the Justices
WILLIAM C. MIMS JUSTICE.
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.
BACKGROUND AND MATERIAL PROCEEDINGS BELOW
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.
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.
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
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
Bowman, who was riding with Thompson, described a milder
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.
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."
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
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."
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.
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.
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.
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.
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
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.