United States District Court, W.D. Virginia, Roanoke Division
CLARENCE EDWARD WHITAKER, on behalf of himself and as Administrator of the Estate of Shannon Marie Whitaker, deceased, Plaintiff,
HYUNDAI MOTOR COMPANY, et al., Defendants.
Michael F. Urbanski Chief United States District Judge.
Hyundai Motor Company and Hyundai Motor America, Inc.
("Defendants") filed their Motion in Limine to
Exclude Evidence and Argument Regarding Certain Types of
Damages on January 25, 2019. ECF No. 155. Plaintiff Clarence
Edward Whitaker ("Whitaker") responded on February
1, 2019. ECF No. 187. For the reasons stated below,
Defendants' motion is DENIED as moot.
claim that Whitaker intends to seek damages for: (1) Mrs.
Whitaker's own pain and suffering; (2) bystander damages
incurred by the Whitaker boys for having found their mother
after the incident; and (3) damages for what Mrs. Whitaker
would have earned had she lived. Defendants argue that
Whitaker cannot recover for Mrs. Whitaker's own pain and
suffering because Virginia law permits recovery only for the
beneficiaries' losses. The Virginia Wrongful Death Act
states that a beneficiary may recover for his or her sorrow,
mental anguish, and solace which may include society,
companionship, comfort, guidance, kindly offices and advice
of the decedent. Va. Code Ann. §8.01-52(1). All courts
that have considered this question have determined that this
refers only to the beneficiaries' anguish, not that of
the decedent. Defendants cite to El-Meswari v. Wash. Gas
Light Co., 785 F.2d 483, 491 (4th Cir. 1986) in support
of their motion.
also expect Whitaker to argue that Mrs. Whitaker's
children should recover damages for their own distress in
finding their mother. They argue this is not permissible-Mrs.
Whitaker's children did not suffer physical injuries of
their own and were not in the zone of danger so as to be
frightened for themselves. Hughes v. Moore, 214 Va.
27, 197 S.E.2d 214, 219-20 (1973). Finally, Defendants expect
Whitaker to argue he should recover an amount equal to his
wife's projected earnings (salary and benefits) had she
lived. §8.01-52(2) of the Virginia Code permits wrongful
death beneficiaries to recover for their "reasonably
expected loss of income of the decedent," meaning what
the beneficiaries reasonably expected and lost, not what the
decedent would have earned. Wilson v. United States,
637 F.Supp 669, 672 (E.D. Va. 1986). Furthermore,
Defendants' argue that Whitaker has no right to recover
any pecuniary losses the beneficiaries may have suffered
because he has not disclosed any. Fed.R.Civ.P.
26(a)(1)(A)(iii) requires parries disclose computation of
damages. Whitaker, however, did not do so. Defendants claim
that during discovery, Whitaker said many times he was going
to hire an economist yet never did. When explicitly asked
what damages he would claim for the beneficiaries in an
interrogatory, Whitaker did not answer the question. ECF No.
155-1, at 9. Because this is not a harmless error and is not
substantially justified, Whitaker cannot now claim any
reasonably expected losses.
responds that he has no intention of asking for damages for
Mrs. Whitaker's own pain and suffering or for bystander
damages for the Whitaker boys. All the same, Whitaker argues
that "the circumstances surrounding Mrs. Whitaker's
death and the emotional shock the Whitaker boys suffered upon
seeing their mother pinned between the house and her car and
Clarence Whitaker coming upon the scene are part and parcel
of their right to recover mental anguish under the wrongful
death act." Virginia Iron, Coal & Coke Co. v.
Odle's Admr., 128 Va. 280, 280105 S.E. 107, 116
(1970) (abrogated on other grounds). As for pecuniary loss,
Whitaker says he plans to present evidence of Mrs.
Whitaker's employment and the income she contributed to
die family, testify to the reasonably expected loss of income
suffered by the beneficiaries, and offer Mrs. Whitaker's
life expectancy into evidence. Whitaker argues this will
permit a jury to determine the value of the reasonably
expected loss of income to Mrs. Whitaker's beneficiaries.
The jury does not require expert testimony to make this
determination. Whitaker claims that he has been deposed on
the issue of economic loss and Mrs. Whitaker's
contribution to the family's living expenses. He also
claims that Defendants have Mrs. Whitaker's employment
and payroll records. Thus, there is no unfair surprise.
law bars recovery for the decedent's pain and suffering
in a wrongful death case and has never recognized bystander
damages in circumstances such as these. See
El-Meswari, 785 F.2d at 488 (citing Hughes, 214
Va. at 34, 197 S.E.2d at 219-20) ("Virginia law does not
as an independent goal try to restore mental tranquility
shaken by witnessing or contemplating negligendy inflicted
injury). The Virginia Wrongful Death Statute does permit
recovery for the beneficiaries' mental anguish, however,
and while El-Meswari noted that this claim
"addressed itself only to the reaction provoked *by
reason of the death' of [the decedent]," not how
this anguish might have been heightened by an awareness of
the circumstances of death, Id. at 488, other cases
have permitted the introduction of evidence regarding
decedent's pain and suffering to enable the jury to
estimate the mental anguish of die beneficiaries.
Sciortino v. Piccioni, 88 Va. Cir. 106, at *2 (2014)
(discussing Virginia Iron, Coal, and Coke Co., 128
Va. at 280, 105 S.E. at 116). There is nothing in Virginia
law that bars evidence of the circumstances of a
decedent's deadi in a wrongful death action, and Whitaker
claims no intention to request damages for Mrs.
Whitaker's pain and suffering or bystander damages for
the Whitaker children. The court DENIES
Defendants' motion in limine to prohibit evidence and
argument regarding either source of damages as moot.
as Whitaker claims to have turned over employment and payroll
records to Defendants and been deposed on the issue of
reasonably expected loss of income, Whitaker may testify
consistent with deposition testimony and documents produced
in discovery. The court DENIES
Defendants' motion to exclude evidence and argument of
reasonably expected loss of income of Mrs. Whitaker. The
court will ...