Shadow Boxing Empty Chairs, Superseding Cause and Defendant`s

Transcription

Shadow Boxing Empty Chairs,
Superseding Cause and Defendant’s Burden of Proof?
Saturday, April 2, 2016
Mary Lynn Tate
TateLaw PC
16006 Porterfield Highway
Abingdon, VA 24210
Phone: 877-938-0894
Email: [email protected]
www.tatelaw.com
MARY LYNN TATE is listed in Best Lawyers in America (2008–2014), the most respected referral list of
current attorneys, for medical malpractice and personal injury. She is a fellow of the International
Academy of Trial Lawyers (IATL), an honor bestowed on selected trial lawyers numbering no more than
500 within the United States, and carries the highest AV rating in the Martindale-Hubbell Legal
Directory, a national peer review rating system.
Ms. Tate is co-director of the National Trial Advocacy College at the University of Virginia, former
president of Virginia Trial Lawyers Association (VTLA), a permanent member of the Fourth Circuit
Federal Judicial Conference, and a recipient of the Brennan Award from the University of Virginia
honoring lawyers for excellence in advocacy and professional achievement.
She has served on Virginia's Professionalism Faculty and the National College of Advocacy (NCA), spoken
on numerous national and state programs, including the NCA's Medical Skills College, and appeared as a
guest speaker in more than 20 states. Ms. Tate also served on arbitration and grievance panels for labor
and business, as well as the Board of Governors for the American Association for Justice (formerly ATLA)
and four terms on its Executive Committee.
http://www.tatelaw.com/Law-Firm-About-Ms-Tate-Abingdon-VA.html
Shadow Boxing Empty Chairs:
Superseding Cause and
Defendant’s Burden Of Proof
Virginia Trial Lawyers Association
Annual Convention 2016
The Homestead
Mary Lynn Tate
Tate Law PC
Abingdon, Va 24210
276-628-5185
© Mary Lynn Tate, 2016
Shadow Boxing Empty Chairs: Superseding Cause and
Defendant’s Burden Of Proof*
_________________________________________________
Contents
Context
2
Definition of superseding cause
5
The elements of superseding cause
6
Burden of Proof
6
Joint And Several Liability, Joinder, Contribution
8
Jury Instruction Requirements, Purpose and Review
11
Discovery
13
Case lists
15
Sample discovery
17
Sample briefs
18
_____________________________________________________
Context
When a defendant responds to a complaint, expressly or obliquely, that
others, nonparties, are or may be responsible for a plaintiff’s injury, these

Two briefs that were submitted in a case currently pending at the Supreme Court of Virginia
are provided in the appendix to this outline. Special thanks to William “Will” Harty of Patton,
Wornam, Hatten and Diamonstein for writing the VTLA amicus brief and to Brent Brown for
consulting on that brief.
**© Mary Lynn Tate, 2016
2
alleged wrongdoers become the shadow defendants with whom you are also
fighting and the law of superseding cause is squarely engaged.
If you don’t shine light on and eliminate these shadows, they can become
ever present but ‘empty chairs’ during trial, like a boxing match with
shadows, impossible to hit and impossible to escape.
These shadows are especially troublesome for plaintiffs when there are
multiple defendants at the outset who go out of the case before trial because
of settlement, nonsuit or other reasons.
Identify the oblique reference, the catch-all defense, or the affirmative
defense that another caused the injury and force the finger pointing out in
the open as early as possible. This can be accomplished by focused use of
motion in limine, demurrer, special plea, motion to strike and attention to
jury instructions.
To present prejudice from which a plaintiff cannot likely recover, discover
the issue early, force specific allegations, seek a bill of particulars if
necessary, demur to the affirmative defense, move to strike and always file
a motion in limine to preclude any prejudicial commentary to the jury.
To be entitled to a superseding cause instruction the defendant must make a
prima facie showing that another person or entity is the sole cause without
any contribution from the defendant even in the slightest. This
3
determination is a question of law for the court.
1
In at least one reported
case this determination was made after the court took a motion in limine
under advisement, heard evidence establishing plaintiff’s prima facie case
against the defendant, then granted the motion in limine to exclude
defendant’s evidence against third parties. See Jenkins v. Payne.
Get the issue to the courts attention as early as possible so that the court is
aware of the elements of superseding cause and defendant’s burden of
proof.
1
In Kellerman v. McDonough, 278 Va. 478, 493-494, 684 S.E.2d 786, 794
(2009), the trial court granted the defendant’s demurrer on the duty issue
and dismissed the case. The Kellerman’s appealed the trial court’s decision.
No trial had occurred and no evidence had been admitted. While addressing
the issue of proximate cause, the Supreme Court held “that the acts of the
third party did not constitute, as a matter of law, a superseding act between
Paula's alleged negligence and Jaimee's death.” Kellermann, 278 Va. at 499,
684 S.E.2d at 797. Both Justice Koontz and Justice Kinser agreed with this
part of the majority’s opinion. See id. at 499, 684 S.E.2d at 797 (Koontz, J.,
concurring in part and dissenting in part); id. at 513, 684 S.E.2d at 805
(Kinser, J., concurring in part and dissenting in part). Thus, the Court
unanimously struck the superseding cause claim before any trial occurred or
any evidence was taken, and it never approved the admission of evidence on
this issue on remand.
4
Definition Of Superseding Cause
The Virginia Model Jury Instructions contains this definition of superseding
cause:
A superseding cause is an independent event, not reasonably
foreseeable, that completely breaks the connection between
the defendant's negligent act and the plaintiff’s injury. A
superseding cause breaks the chain of events so that the
defendant's original negligent act is not a proximate cause of
the plaintiff’s injury in the slightest degree.
VMJI, Instruction No. 5.010.
While this definition tracks the language of several reported opinions of the
Supreme Court of Virginia, it is not a jury instruction. It contains some of
the legal terms and concepts relating to superseding cause but omits others.
It is not a clear and complete statement of Virginia law on superseding cons
nor is it the best language from those opinions. Many cases have discussions
of the elements of superseding cause that are more easily understood. See
Ex. B List of Authorities.
This definition also does not include all the requisite elements of superseding
cause. Importantly, it does not include the defendant’s burden of proof.
The Elements of Superseding Cause
5
The VMJI definition of superseding cause, given alone, is an erroneous
instruction. As an instruction that lacks clarity, is confusing, misleading and
devoid of the essential legal concept of superseding cause: defendant’s
burden of proof. It does not clearly and accurately inform the jury of the
elements that superseding cause or the consequences of finding those
elements.
The elements of superseding cause are:
1.
the burden of proof is on defendant;
2.
any intervening act or omission must be the sole cause of injury, i.e.
supersede or sever any relationship between the subject defendant's act and
the injury
3.
an intervening act, event, conduct or omission or series of such;
4.
the superseding act must NOT be foreseeable to the subject
defendant
5.
the superseding act must be completely independent of subject
defendant’s act or omission;
6.
the intervening act or series of acts must NOT be “put in motion” or
“put in operation” or also caused by subject defendant’s wrongful act or
omission.
Burden Of Proof
Superseding clause is an affirmative defense and the burden of proof is on
the defendant.
The burden of proof is on the defendant asserting a superseding cause to
prove that another’s negligence alone caused the injuries and he is free of
6
negligence even “in the slightest degree”. Atkinson v. Scheer, 256 Va.
448 (1998) (emphasis added).
The superseding cause must exonerate the defendant. It does not matter if
other innocent or negligent causes also contributed to the injury or if those
clauses contributed to a greater extent than this defendant. This is true
because Virginia’s common and statutory tort law is built upon the rule of
joint and several liability.
A defendant “can not be exonerated by urging and showing the negligence”
of other parties or nonparties. Von Roy v. Whitescarver, 197 Va. 384, 393,
89 S.E.2d 346, 352 (1955) (citing Yonker v. Williams, 169 Va. 294, 299, 192
S.E. 753, 755 (1937)); School v. Walker, 187 Va. 619, 629, 47 S.E.2d 418,
423 (1948). “Other sufficient causes, whether innocent or arising from
negligence, do not provide a defense.” Boomer, 285 Va. at 158, 736 S.E.2d
at 732; see also Hill, 119 Va. at 421, 89 S.E. at 904 (“‘To show that other
causes concurred in producing, or contributed to the result is no defense to
an action for negligence….”).
And “[i]t is not essential, therefore, for a plaintiff to show that an act,
claimed to have been the proximate cause of a certain result, was the only
cause. It is sufficient if it be established that the defendant's act produced or
set in motion other agencies, which in turn produced or contributed to the
7
final result.” Von Roy, 197 Va. at 393, 89 S.E.2d at 352 (quoting
Chesapeake & O. Ry. Co. v. Wills, 111 Va. 32, 68 S.E. 395, 397 (1910)).
Joint And Several Liability, Joinder, Contribution
The requirement that a defendant may not defend itself by blaming others
unless it is totally exonerated fits squarely within the legal framework of
Virginia’s longstanding tort liability including joint and several liability,
joinder and contribution, etc.
Under joint and several liability, a plaintiff may sue any or all of the putative
tortfeasors who caused his injury and the plaintiff may bring suits against
successive defendants until the plaintiff is either made whole or ultimately
fails to prove that any of them are liable. Va. Code § 8.01-443.
Any one of these defendants may be held liable for a plaintiff’s entire
damages if the defendant’s negligence or defective product was a proximate
cause of the plaintiff’s injury. See Ford Motor Co. v. Boomer, 285 Va. 141,
151, 736 S.E.2d 724, 728 (2013) (“[O]ur law provides a means of holding a
defendant liable if his or her negligence is one of multiple concurrent causes
which proximately caused an injury and when any of the multiple causes
would have each have been a sufficient cause.”); see also Carolina,
Clinchfield & Ohio Railway Co. v. Hill, 119 Va. 416, 421, 89 S.E. 902, 904
(1916) (“Where the negligence of two or more persons acting independently,
concurrently results in an injury to a third, the latter may maintain his action
8
for the entire loss against any one or all of the negligent parties….’”);
Maroulis v. Elliott, 207 Va. 503, 510, 151 S.E.2d 339, 344 (1966) (“In
determining the liability of either of several persons whose concurrent
negligence results in injury, the comparative degrees of negligence are not
to be considered, each being liable for the whole even though the other was
equally culpable, or contributed in a greater degree to the injury.”).
Virginia’s common and statutory tort law is built upon this fundamental rule
of joint and several liability.
It does not matter if other innocent or negligent causes also
contributed to the injury or if those other causes contributed to a
greater extent. What matters in a superseding cause defense is
whether the intervening the sole cause and totally exonerates the
defendant. That determination can almost always be made as a
matter of law.
Virginia’s joinder rules enable a plaintiff to pursue putative tortfeasors in
successive suits unless another defendant is found to be a necessary or
indispensable party. See, e.g., Fox v. Deese, 234 Va. 412, 421, 362 S.E.2d
699, 705 (1987); Va. Code § 8.01-5(A); Va. S. Ct. R. 3:12.
Likewise, Virginia’s contribution statute, cross claim rules, and third party
claim rules are based on the underlying joint and several liability doctrine.
They recognize that a plaintiff need not join all putative tortfeasors in the
9
action but they ameliorate the rule by allowing a defendant to either join
other putative tortfeasors in the case or pursue them in later contribution
actions. See, e.g, Sullivan v. Robertson Drug Co., 273 Va. 84, 91, 639
S.E.2d 250, 255 (2007) (contribution); Va. Code § 8.01-34; Va. R. Sup. Ct.
3:10 & 3:13. When a defendant brings such claims, Virginia law places the
burden of proving the claim squarely on the party bringing it, and it gives
the cross, third-party, or contribution defendant the opportunity to defend
against the claim. Sullivan, 273 Va. at 91, 639 S.E.2d at 255 (“The party
seeking contribution has the burden of proving that the concurring
negligence of the other parties was a proximate cause of the injury for which
damages were paid.”).
But joint and several liability rules still allow a plaintiff to collect the whole
amount of the judgment against either or both defendants if the injury is
indivisible. Maroulis, 207 Va. at 511, 151 S.E.2d at 345 (“It is well settled in
Virginia that ‘. . . (W)here separate and independent acts of negligence of
two parties are the direct cause of a single injury to a third person and it is
impossible to determine in what proportion each contributed to the injury,
either or both are responsible for the whole injury.’
Outside of these rules, Virginia law does not allow defendants to argue
the empty chair.
10
Superseding cause, then, is a caveat to the general rule against nonparty causation evidence: it allows a defendant to prove that another cause
“sever[ed] the link of proximate causation between the initial negligent act
and the resulting harm” of the initial tortfeasor. If the initial tortfeasor is
able to prove superseding cause, it is relieved of liability. Williams v. Joynes,
278 Va. 57, 63, 677 S.E.2d 261, 264 (2009); Jefferson Hosp. v. Van Lear,
186 Va. 74, 82, 41 S.E.2d 441, 444 (1947); Hines v. Garrett, 131 Va. 125,
108 S.E. 690, 694 (1921). The Court has “emphasized that ‘a superseding
cause of an injury “constitutes a new effective cause and operates
independently of any other act, making it and it only the proximate cause of
injury.”’” Kellerman v. McDonough, 278 Va. 478, 493-494, 684 S.E.2d 786,
794 (2009).
Jury Instruction Requirements, Purpose And Review
A 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
instructions correctly state the law. Schlimmer v. Poverty Hunt Club, 268
Va. 74, 78 (2004). A “correct statement of the law… [in a jury instruction]
(is one of the) essentials of a fair trial.” Dowdy v. Com., 220 Va. 114, 116
(1979).
"Instructions should be pertinent to the issues and set out correct legal
principles complete in themselves as far as they go with regard to the
11
specific issues involved. If an instruction may reasonably be regarded as
having a tendency to mislead the jury, it is error to give it." H.W. Miller
Trucking Co. v. Flood, 203 Va. 934, 937, 128 S.E.2d 437, 440 (1962). We
will not find error when a jury was instructed correctly as to the law and the
surrounding circumstances assure us that the jury was not confused about
its obligations. (citations omitted) Castle v. Lester, 636 S.E.2d 342, 272 Va.
591 (2006)
The VMJI definition of superseding cause, given alone, is an erroneous
instruction. As an instruction it lacks clarity, is confusing, misleading and
devoid of the essential legal concept of superseding cause: defendant’s
burden of proof. It does not clearly and accurately inform the
jury of the elements of superseding cause or the consequences of
finding evidence of those elements. For example, who is charged
with ‘reasonably foreseeing’ an intervening act? What happens if
the defendant foresaw the intervening act?
Considering how to apply the concepts contained in the definition to a set of
facts becomes a maze to a lay person.
Whether the content of a jury instruction “is an accurate statement of
the relevant legal principles is a question of law” that the Supreme Court
reviews de novo. Cain v. Lee, ___ Va. ___, 772 S.E.2d 894 (2015). When
12
the Supreme Court reviews the content of jury instructions, its sole
responsibility “is to see that the law has been clearly stated and that the
instructions cover all issues which the evidence fairly raises.” Id. The
court requires that jury instructions be relevant, clear, accurate, complete
and supported by sufficient evidence. Id.
When an instruction has been “erroneously submitted to the jury and
the record does not reflect whether such ... instruction formed the basis of
the jury's verdict, we must presume that the jury relied on such ...
instruction in making its decision." Williams v. Le, 276 Va. 161 (2008).
Object to this definition as a jury instruction. Preserve your objection to
defendant’s entitlement to instruction, to content of the instruction of the
instruction, sufficiency of evidence to support it. State why it is defective but
you have no obligation to provide a correct instruction.
See list of cases on Jury Instructions. Ex. B.
Discovery
To prevent error and prejudice from which a plaintiff cannot likely recover,
discover the issue early, force specific allegations, demur to the affirmative
defense, move to strike, file motion in limine. File a motion in limine to
prevent trial commentary even if you have gotten a ruling excluding a
superseding cause defense. Get the issue to the courts attention as quickly
as possible so that the court is aware of the elements and especially
defendant’s burden of proof.
13
In the circumstances use great caution in crafting expert designations and in
responding to discovery requests. Where your initial investigation reveals
that there may be concurring negligence but additional evidence may
eliminate one or more of the potential tortfeasors, discuss Fact discovery
and expert designations in the framework of evidence and facts available at
the time being careful to reserve the right to modify subject to additional
information.
In cases where defendants are out of the case at the time of trial, remaining
defendants may attempt to use discovery responses or expert designations
implicating those now absent defendants to attack the credibility of your
claims and experts. These attacks are not admissible. See Atkinson v.
Scheer.
Sample Discovery attached.
14
Superseding Cause Selected Cases
Atkinson v. Scheer, 256 Va. 448 (1998)
Brown v. Koulizakis, 229 Va. 524, 531 (1985)
Brown v. Parker, 167 Va. 286 (1937)
City of Radford v. Calhoun, 165 Va. 24 (1935)
Coleman v. Blankenship Oil Corp., 221 Va. 124 (1980)
Ford Motor Company v. Boomer, 285 Va. 141 (2014)
Hadeed v. Medic-24, Ltd., 237 Va. 277 (1989)
Jefferson Hospital, Inc. v. Van Lear, 186 Va. 74 (1947)
Jenkins v. Payne, 251 Va. 448 (1996)
Kellerman v. McDonough, 278 Va. 478 (2009)
Lawlor v. Commonwealth, 285 Va. 187 (2013)
Maroulis v. Elliott, 207 Va. 503 (1966)
Moore v. City of Richmond, 85 Va. 538 (1888)
Panousos v. Allen, 245 Va. 60 (1993)
Tunnel v. Ford Motor Co., 330 F. Supp. 2d 748 (W.D. Va. 2004)
Williams v. Le, 276 Va. 161 (2008)
15
Jury Instructions
Selected Cases
1. Cain v. Lee. Record No. 141105 (Va., 2015)
2. Clohessy v. Weiler, 250 Va. 249, 462 (Va., 1995)
3. Feddeman & Co. v. Langan Associates, 260 Va. 35 (Va., 2000)
4. Hale v. Maersk Line Ltd., Record Nos. 111389, 111390 (Va., 2012)
5. Hinkley v. Koehler, 269 Va. 82 (Va., 2005)
6. Monahan v. Obici Medical Management Services, Inc., 271 Va. 621
(Va., 2006)
7. Nelson v. GREAT EASTERN RESORT, INC., 265 Va. 98 (Va., 2003)
8. Online Resources Corp. v. Lawlor, 285 Va. 40 (Va., 2013)
9. Honsinger v. Egan, 266 Va. 269, 585 (Va., 2003)
10. Hawthorne v. VanMarter, 279 Va. 566 (Va., 2010)
16
SAMPLE DISCOVERY
INTERROGATORIES
1. If you contend or will contend at trial that another Defendant(s) or
nonparty(s) to this litigation, is/are responsible for causing this incident or Plaintiff’s
injury, identify them and describe in detail how their act(s) or omission(s)
contributed to the incident or injury, stating all the facts on which you base your
contention.
2. If you contend or will contend at trial that another Defendant(s) or
nonparty(s) to this litigation was the sole cause of Plaintiff’s injury identify them
and describe in detail how their act(s) or omission(s) caused the injury, stating all
the facts on which you base your contention.
3. Identify and describe all facts, documents, and persons with knowledge, that
support your claim that other(s) are the sole cause of Plaintiff’s injury.
4. Identify and describe all facts, documents, and persons with knowledge, that
support any affirmative defense you have pled unless waived, moot or previously
ruled on by the Court.
REQUESTS FOR PRODUCTION OF DOCUMENTS
1. All documents which support the facts and allegations in your answer,
defenses and affirmative defenses.
2. All documents that contain or support any facts upon which you rely in
support of your affirmative defenses or in support of your claim that other(s) are
the sole cause of the Plaintiff’s injury.
17
Superseding Cause
Sample Motion in Limine
ARGUMENT AND AUTHORITIES
1)
Plaintiff's Motion in Limine to Exclude the "Empty Chair" Defense and Any
Related or Derived Improper Testimony by Defendants' Experts, and/or
Argument by Counsel.
It is anticipated that Defendants' trial approach will be to improperly blame entities
and individuals who are not named defendants in this case for the Plaintiffs' injuries and/or
damages, namely S.M. Nichols Builders, Inc., the builder of the apartment complex, Robert
Magoon of Magoon and Associates, the architect who designed the complex, a separate
construction architect and/or the installer of the HVAC system and gas water heater. They
may also argue that former defendants CSB L.L.C. III and University Development, Inc.
(UDI) are responsible for Plaintiffs injuries. (The predecessors of former defendant's CSB
and UDI may be in this group.) This is not permissible under Virginia law and will subject
this case to a mistrial. So long as Plaintiffs' have prima facia cases of these defendants'
liability contributing to cause their injuries, Virginia law prohibits claims of fault against
non-parties. Pursuant to this Motion in Limine, Plaintiffs move for an order directing that
no reference be made at trial by any witness, party or during argument by counsel,
(1) regarding any conduct or purported acts of negligence or breaches of any
standards or duties by any individual or entity other than Defendants; and
(2) contending, claiming or arguing that any other nonparty individual or entity is
responsible for or caused the Plaintiffs' injuries and/or damages.
As is well-established under Virginia law, it is impermissible for the defendants to
point to an entity or individual who is not a party to the action -the so-called "empty chair"-
2
where there is prima facia proof of the instant Defendants' negligence. See Jenkins v.
Payne, 251 Va. 448, 465 S.E.2d 795 (1996) (trial court's granting of Plaintiffs Motion in
Limine excluding any evidence at trial that a settling physician was negligent was proper
and affirmed); Atkinson v. Scheer, 256 Va. 448, 508 S.E.2d 68 (1998) (it is reversible error to
permit the defendant to elicit testimony from Plaintiff's expert witness regarding a nonDefendant' s negligence because the defendant was also negligent); Williams v. Le, 276 Va.
161,662 S.E.2d 73 (2008) (it was reversible error to instruct the jury on superseding
intervening causation of a non-defendant doctor's negligence). The actions of other
individuals and entities that are not parties in this case are not at issue in this case and
their conduct cannot be characterized as superseding cause that totally absolves any
current Defendant.
In Williams, Atkinson and Jenkins multiple defendants were alleged to have
committed concurrent negligence that resulted in the respective plaintiffs' decedents'
deaths. See Id. At trial, the remaining defendants sought to introduce evidence pointing to
absent parties' negligence in causing the deaths in question. See Atkinson, 256 Va. at 455,
508 S.E.2d at 72. The Supreme Court of Virginia holds that expert opinion as to another
non party's negligence is inadmissible unless the defendant establishes that such
negligence is superseding fault-the sole proximate cause of the injury. "The proximate
cause of an event is that act or omission which, in natural and continuous sequence,
unbroken by an efficient intervening cause, produces the event, and without which that
event would not have occurred." See Williams 276 Va. at 167,662 S.E.2d at 77, (quoting
Coleman v. Blankenship Oil Corp., 221 Va. 124, 131, 267 S.E.2d 143, 147 (1980)). "To be a
superseding cause, whether intelligent or not, it must so entirely supersede the
3
operation of the defendant's negligence, that it alone, without the defendant's
contributing negligence thereto in the slightest degree, produces the injury." Id.
At the very least the court should prohibit defendants from blaming nonparties until
after Plaintiffs' case in chief to permit Plaintiffs to prove Defendants' fault contributed to
produce the injury "in the slightest degree". Otherwise Plaintiffs cannot escape the
prejudice of Defendants' improper attribution of fault to nonparties in their openings and
examination of witnesses. If this was error in
Atkinson~xamining
Plaintiffs expert
regarding non-party fault--permitting it here would also be error. This is especially true
since the Plaintiffs' expert will have just given evidence regarding the Defendants'
concurring negligence.
In Atkinson v. Sheer, supra, during a jury trial, Dr. Scheer was permitted to ask the
Plaintiff's expert witness, over the Plaintiff's objection, whether another physician who had
also treated Atkinson had committed acts of negligence. The trial court permitted Dr.
Scheer to elicit such testimony, and at the conclusion of the trial, the jury returned a
verdict in favor of Dr. Scheer. The plaintiff appealed. The Court held that the burden of
proof is on the Defendant asserting a superseding cause to prove he is free of negligence
even "in the slightest degree'. The Atkinson court explained:
"Dr. Scheer sought to relieve himself of liability for his purported
negligent acts because of a claimed superseding intervening cause.
Therefore, he was required to prove that Dr. Wampler-Adams' failure to
admit Atkinson to the hospital entirely superseded the operation of Dr.
Scheer's own alleged negligence so that Dr. Wampler-Adams' negligence
alone, without any contributing negligence, even in the slightest degree
by Dr. Scheer, caused Atkinson's injuries. Dr. Scheer failed to meet this
burden. Id.
4
The trial court can make this determination on a Motion in Limine prior to trial
where there is a prima facia case against the defendants. "Issues of negligence and
proximate causation ordinarily are questions of fact for the jury's determination. Brown v.
K.oulizakis. 229 Va. 524, 531, 331 S.E.2d 440. 445 (1985). A court decides these issues only
when reasonable persons could not differ. Hadeed v. Medic-24, Ltd., 237 Va. 277, 285, 377
S.E.2d 589, 593 (1989).
Here it is abundantly clear that Atmos, State and Watts' acts and omissions as
alleged and as established in pretrial motion hearings, concurred and contributed to cause
Plaintiffs' injuries.
In Jenkins, the Supreme Court considered "whether the trial court erred in excluding
from the jury's consideration (1) opinion
evi~ence
that another physician, who had settled
the Plaintiffs claim against him, was negligent in his treatment of the decedent, and (2) the
Defendants' argument that the settling physician was the sole proximate cause of the
decedent's death." Jenkins, 251 Va. at 124, 465 S.E.2d at 796.
Prior to trial, the plaintiff settled his claim against Dr. Rothman and Dr. Rothman's
professional corporation. Based on this fact, the plaintiff made a Motion in Limine
requesting the trial court to exclude any opinion evidence that Dr. Rothman was negligent
in his treatment of Payne. The defendants objected, arguing that their defense would be
based on the theory that Dr. Rothman's negligence was the sole proximate cause of Payne's
death. The defendants contended that, in order to present this defense to the jury, they
needed to show that Dr. Rothman was negligent. The Jenkins' trial court initially denied
5
the motion in Limine, stating, "I don't feel like I can rule as a matter of law ... [on the]
representations from counsel." The court later granted the Motion during trial, ruling that
Dr. Rothman's conduct was "at the very best ... concurrent negligence as opposed to
[superseding]. And that being the case, I don't think Dr. Rothman's negligence is relevant
to the issues that this jury has got to decide." The finding of concurrent fault was affirmed.
Here, there can be no question that these Defendants' conduct necessarily
contributed and concurrently caused the CO exposure else there would have been no gas
connection, no "Hydroheat" system with open heater exhaust vents coupled with an
unstabling air handler and no malfunctioning TPA valve. Under no circumstances can it
reasonably be said that any non-party conduct was the "sole" cause of the carbon monoxide
poisoning.
In Williams on the question of causation, the ·supreme Court found that the evidence
proved without contradiction that the communication problems in the case were begun and
put in motion by Dr. Le's failure to make direct contact with Dr. McClain, a member of his
team, or Williams, and said [A]n intervening cause does not operate to exempt a
defendant from liability if that cause is put into operation by the defendant's
wrongful act or omission." Jefferson Hosp., Inc. v. Van Lear, 186 Va. 74, 81, 41 S.E.2d
441, 444 (1947). (Emphasis added.)
Citing Jenkins, the Supreme Court reaffirmed in Atkinson the following key
principle, without which joint and several liability would have little meaning:
In order to relieve a defendant of liability for his negligent act, the
negligence intervening between the defendant's negligent act and the
injury must so entirely supersede the operation of the defendant's
6
negligence that it alone, without any contributing negligence by the
defendant in the slightest degree, causes the injury. Id.; Coleman
v. Blankenship Oil Corp., 221 Va. 124, 131,267 S.E.2d 143, 147 (1980);
City of Richmond v. Gay, 103 Va. 320, 324, 49 S.E. 482, 483 (1905). Thus,
a superseding cause of an injury 'constitutes a new effective cause and
operates independently of any other act, making it and it only the
proximate cause of injury.' Maroulis v. Ellioll, 207 Va. 503, 511, 151
S.E.2d 339, 345 (1966). Jenkins, 251 Va. at 128-29, 465 S.E.2d at 799.
Atkinson at 455. (citations in original).
Under this precedent, in cases of concurrent negligence by multiple entities
and individuals, as is the case here, Defendants may not introduce evidence of
negligence on the part of an absent entity or individual. The only time a defendant
may do so is when Plaintiff has not established a prima facia case against Defendant(s) and
the Defendant establishes that the negligence of a non-party is the sole proximate cause of
Plaintiff's injury. See also Kellerman v. McDonough, 278 Va. 478, 684 S.E.2d 786 (2009)
(driver's later recklessness is not the sole proximate cause of minor passenger' s death
where host family initially assumed duty to care for minor).
These principles bar these Defendants from introducing evidence regarding, or even
implying, alleged negligence on the part of others not party to the case. Moreover,
Defendants have failed to designate and to plead their cases in accordance with a theory of
superseding negligence. Defendants did not blame others in their defenses and refused in
discovery to blame any other party or entity for the cause of Plaintiffs' injuries. They should
not be permitted to do so now.
At the very least the Court should prohibit defendants from blaming nonparties until
after Plaintiffs' case in chief to permit Plaintiffs to prove Defendants' fault contributed to
produce the injury even if "in the slightest degree". Otherwise Plaintiffs cannot escape the
7
prejudice of defendants' improper attribution of fault to nonparties in their openings and
examination of witnesses. If this was error in Atkinson-examining Plaintiffs expert
regarding non-party fault -permitting it here would also be error. This is especially true
since the expert will have just given evidence regarding the defendants' concurring .
negligence.
Accordingly, Plaintiff requests that the defense be prohibited from introducing
evidence or soliciting such testimony from any witness or from any of their designated
experts, or during opening/closing at trial.
IN THE
Supreme Court of Virginia
RECORD NO. 151088
CAROLYN A. DORMAN, et al.
Appellants,
v.
STATE INDUSTRIES, INC.
Appellee,
APPELLANTS’ OPENING BRIEF
Mary Lynn Tate, Esq.
VSB No. 16085
TATE LAW PC
Abingdon, Virginia 24210
Telephone: (276) 628-5185
Facsimile: (276) 628-5045
[email protected]
Counsel for Appellants
LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond, Virginia
23219 (804) 644-0477
A Division of Lantagne Duplicating Services
TABLE OF CONTENTS
Table of Authorities ..............................................................iiii
Preliminary Statement ........................................................... 1
Assignments of Error ............................................................. 2
Nature of the Case and Material Proceedings Below ................... 3
Statement of Facts ................................................................ 5
Argument .......................................................................... 19
A.
The trial court erred in admitting State’s evidence and
arguments of the raw numbers of atmospheric gas water
heaters sold, their purported safety record and the absence of
prior injuries, all irrelevant to plaintiffs’ claims as a matter of
law. (AOE 1) ...................................................................... 19
1. Standard of Review .................................................... 19
2. Discussion and Authorities .......................................... 20
a. State's evidence that 60 million open exhaust vent gas
heaters are in use, the heater's safety record and the
absence of prior injuries violated Virginia's long established
rule of exclusion……………………………………………………………………20
b. State's raw numbers of open exhaust vent gas water
heaters in use were not admissible as 'usage' under
Virginia's doctrine of "custom and usage in the industry"…26
B.
The trial court erred in granting Instruction No. 22 on
superseding cause because it misstated the law and was not
supported by State’s evidence (AOE 2). ................................. 28
2. Discussion and Authorities…………………………………………………29
a. The superseding cause instruction failed to include
defendant's burden of proof and other essential elements to
i
fully, fairly and clearly inform the jury of the applicable
law…………………………………………………………………………………………29
b. The superseding cause instruction was an erroneous
submission of law to the jury and is presumed to be harmful
error……………...............................................................31
c. State failed to prove that its open exhaust design did
not contribute to plaintiffs' injuries in the slightest and also
failed to prove that any acts or omissions of others were the
sole cause plaintiffs' injuries as a matter of law…………………32
C.
The trial court erred in admitting State’s evidence and
arguments that superseding negligence caused Plaintiffs’
injuries because State failed to prove that such negligence did
not entirely supplant the operation of State’s negligence, was
not put in operation by State’s negligence and was not
reasonably foreseeable as a matter of law. (AOE 3) ................ 33
2. Discussion and Authorities .......................................... 35
a. State's unsealed open exhaust design was the only
necessary physical antecedent permitting emissions of
carbon monoxide into the living space proximately
contributing to plaintiff's injuries as a matter of law…………35
b. State admitted foreseeability of the air handler
disrupting combustion air for the open vent gas heater by
placement beside the air handler as here………………………....44
c. State's evidence failed to prove that installation,
maintenance or other issue had any causal relationship to
plaintiffs' injuries as a matter of law, certainly not sole
causation………………………………………………………………………………44
Conclusion ......................................................................... 47
Certificate .......................................................................... 48
ii
TABLE OF AUTHORITIES
Atkinson v. Scheer, 256 Va. 448 (1998)……………………….31, 43, 46
Bayliner Marine Corp. v. Crow, 257 Va. 121 (1999)……………27, 28
Brown v. Koulizakis, 229 Va. 524, 531 (1985)…………………….……46
Brown v. Parker, 167 Va. 286 (1937)…………………………………………34
Cain v. Lee, ___ Va. ___, 772 S.E.2d 894 (2015)……………..……..28
City of Radford v. Calhoun, 165 Va. 24 (1935)………………………….24
Dowdy v. Com., 220 Va. 114, 116 (1979)………………………………….31
Ford Motor Company v. Boomer, 285 Va. 141 (2014)……………….33
Goins v. Wendy’s International, Inc., 242 Va. 333 (1991)…passim
Hadeed v. Medic-24, Ltd., 237 Va. 277 (1989)………………………….35
Holley v. Pambianco, 270 Va. 180 (2005)………………………………….21
Holmes v. Levine, 273 Va. 150 (2007)……………………………………….33
Kellerman v. McDonough, 278 Va. 478, 684 (2009)………………….42
Moore v. City of Richmond, 85 Va. 538 (1888)……………………22, 24
Porter v. Commonwealth, 276 Va. 203, 260 (2008)………………….35
Sanitary Grocery Co. v. Steinbrecher, 183 Va. 495 (1945)………23
Sykes v. Norfolk and Western Railway Co., 200 Va. 559
(1959)……………………………………………………………………………………..……24
iii
Turner v. Manning, Maxwell and Moore Inc., 216 Va. 245
(1975)……………………………………………………………………………………………27
Williams v. Le, 276 Va. 161 (2008)……………………………………..32, 33
Wood v. Woolfolk Properties, Inc., 258 Va. 133 (1999)……………22
Rules
Rule of Evidence 2:402(a)……………………………………………………………25
iv
Preliminary Statement
In this products liability case, the five plaintiffs suffered near
death experiences and injuries from severe carbon monoxide
poisoning. The source of the carbon monoxide was State’s Apollo
Residential Gas Water Heater which Plaintiffs claim was
defectively designed and unreasonably dangerous for residential
use because of its unsealed atmospheric or open exhaust vent in
the living space. Sealed combustion was state of the art when
this heater was manufactured. State sold 3 sealed models at that
time. The open exhaust heater is susceptible to incomplete
combustion producing carbon monoxide backdrafting into living
space due to wind changes, interior pressure changes and other
air flow disruption.
State defended by blaming others for installation,
maintenance and code violations but failed to prove any were sole
causes of the poisoning if related at all. The trial court over
Plaintiffs’ objections permitted State to point fingers at multiple
conditions and entities without any threshold showing of liability
ignoring the fact that there could have been no carbon monoxide
1
emission but for the State heater open exhaust. State was
granted a superseding cause instruction that did not include its
burden of proof among other deficiencies.
State was allowed to argue that ‘usage’ includes raw
numbers of heaters sold and told the jury there were 60 million
out there that were safe without incidents such as this, all in
violation of our rule of exclusion of absence of prior incidents and
raw numbers. State was allowed to cross Plaintiffs’ expert on the
negligence of others, the “empty chair”, all in violation of our law
on superseding cause.
State argued that neither of these concepts applied to
products liability cases. We now have circuit court conflicting
rulings regarding admissibility of absence of prior incidents in
products liability cases.
The error here was significant and far reaching. The law
should not suffer such without recognition and redress.
Assignments of Error
1. The trial court erred in admitting State’s evidence and
arguments of the raw numbers of atmospheric gas water heaters
sold, their purported safety record and the absence of prior
injuries, all irrelevant to plaintiffs’ claims as a matter of law. JA
2
346-349, 351-353, 356, 391392, rulings 361, 501. Plaintiffs’
Memorandum in Support of Plaintiffs’ Motions In Limine to
Exclude Erroneous Statements of Law and Argument. JA 170.
2. The trial court erred in granting Instruction No. 22 on
superseding cause because it misstated the law and was not
supported by State’s evidence. JA 930-933, 938.
3. The trial court erred in admitting State’s evidence and
arguments that nonparties’ superseding negligence caused
Plaintiffs’ injuries because State failed to prove that such
negligence did not entirely supplant the operation of State’s
negligence, was not put in operation by State’s negligence and
was not reasonably foreseeable as a matter of law. JA 353-356,
358-360, 666-670, 947, ruling 361; Plaintiffs’ Memorandum in
Support of Motions In Limine to Exclude Erroneous Statements of
Law and Argument. JA. 170.
Nature of the Case and Material Proceedings Below
On August 17, 2007, plaintiffs Carolyn Dorman, Elizabeth
Burgin, Nichole Howarth, and Kristin Julia, returning sophomores
to Virginia Tech, moved into a four-bedroom off-campus
apartment in Collegiate Suites Apartments on Henry Lane,
Blacksburg Virginia. JA 2, 365. Their second floor apartment, one
of 12 such units in the three-floor building, contained electric
appliances except for a Residential Apollo Hydroheat™
atmospheric gas fired water heater manufactured by State
3
Industries, Inc. (“State”). It provided both hot water and space
heating. JA 2, 371.
State’s Apollo Hydroheat™ open exhaust gas water heater
inside the apartment was the source of the carbon monoxide. JA
618-619.
Ms. Dorman, Burgin, Halik, Howarth and Julia (“plaintiffs” or
collectively “Dorman”) filed separate actions against multiple
defendants including State, in the Circuit Court for the City of
Richmond for their injuries. Following nonsuits of State the five
plaintiffs refiled their separate defective product and warranty
claims against State in 2011. JA 1, 10, 19, 28, 37. All the actions
were consolidated for discovery and later consolidated for trial
under Dorman v. Atmos Energy Corporation, et al. CL09-3699
and consolidated cases CL09-3697, CL09-3700, CL09-3698,
CL09-3696, CL11-2900-7, CL11-2901-8, CL11-2899-6, CL112898-5, CL11-2897-4. JA 56.
Plaintiffs filed motions in limine regarding the issues raised
on this appeal prior to trial. JA 167, 170, 213. They were denied.
4
Plaintiffs also filed post-trial motions regarding these issues.
JA 228, 232. They were denied.
A jury trial against the remaining two defendants, State
Industries, Inc. and Atmos Energy Corporation, began in the
Circuit Court on January 5, 2015. Atmos was nonsuited during
the trial.
At the end of a nine day bifurcated trial (January 5-January
21, 2015) the jury returned a defense verdict for State on the
issue of liability. The trial court entered judgment for State on
April 16, 2015. JA 328. The plaintiffs timely noted their appeal on
May 13, 2015. JA 333. This Court granted assignments of error
on December 17, 2015. JA 336.
Statement of Facts
While the parties disagree regarding the import of the facts,
they are generally undisputed.
Carbon monoxide is a colorless, odorless, tasteless, invisible
gas known to be highly toxic and lethal at least since the late
1700s. Carbon monoxide gas is a by-product of the incomplete
combustion of carbon compounds such as natural gas and is
5
known to be associated with gas fired equipment and
appliances. Carbon monoxide displaces oxygen’s presence in the
blood and can result in a dangerous lack of oxygen to tissues and
vital organs, in particular the brain and the heart. JA 2.
It is measured in parts per million (ppm). Government
regulations limit workers exposure to 50 ppm in a given work
day. JA 2. Serious physical injuries are expected between 50 and
100 ppm. Larger doses can be disabling or fatal. TT 650.
On October 25, 2006, Plaintiffs Carolyn Dorman, Elizabeth
Burgin, Kristin Julia, and Nichole Howarth, all returning
sophomores to Virginia Tech, agreed to lease a four bedroom
furnished apartment on the second floor of a three-floor building
at the Collegiate Suites Apartments at 1306 Henry Lane,
Apartment F, Blacksburg, Virginia. The four women began moving
into the apartment on the afternoon of Friday, August 17, 2007.
JA 2. Apartment F included in its utility room, a clothes washer
and dryer and heating and cooling equipment including a gas
fired hot water heater and air handler for the apartment’s heating
and air conditioning system, both manufactured by State. P.Ex. 5.
6
This room was located just off the entry foyer by the front door.
P. Ex. 11.
The Incident
On Sunday morning August 19, 2007, a gas company
technician responding to a call to plaintiffs’ building from a third
floor apartment measured excessive amounts of carbon monoxide
outside the door at plaintiffs’ apartment. When there was no
response to his knocks the technician obtained entry and found
these four roommates along with guest Kirsten Halik, in their
beds unconscious. They had severe carbon monoxide poisoning.
With the assistance of neighbors, the five women were
carried from their beds to the second floor landing. First
responders from the fire department found them unresponsive
and assisted in carrying them to the lawn where they were met
by emergency personnel and taken to the hospital.
Following extrication of plaintiffs from the apartment, fire
department officials measured lethal amounts of carbon
monoxide inside the apartment even after windows and doors
were opened and it had aired. Levels of at least 525 parts per
7
million (ppm) carbon monoxide were measured with gas
analyzers that could not measure above that amount.
Post incident testing involving the Town of Blacksburg, the
parties and their engineers consistently revealed that excessive
amounts of carbon monoxide were produced within the apartment
when the bedroom doors were closed. Carbon monoxide
consistently increased to dangerous levels when the air handler
was also running.
Because the bedrooms did not communicate directly with
the utility room they were not to be used in the initial volume
calculations consistent with the heater’s instruction manual
installation instructions. Volume was more than sufficient without
including the bedroom space using the manufacturer’s
instructions.
During testing the TP valve opened prematurely causing the
heater to discharge water continuously thereby enhancing the
length of exposure but not the existence or emission of the
carbon monoxide.
State’s Apollo Residential Gas Water Heater
8
State Industries, Inc. manufactured the Residential Apollo
Hydroheat atmospheric gas water heater in 1976 that was
installed in Apartment F in 1999. JA 1081. Plaintiffs’ Exhibit 5. At
the time of this incident, the heater was in the same condition as
when it left the factory. JA 611.
The heater is defined in industry terms as an atmospheric or
open vent water heater, which means its exhaust is not sealed
and it relies on air from the interior of the space in which it is
installed for clean combustion.
The draft necessary for evacuation of exhaust gases is
formed based on convection or the fact that warm air rises. Below
this draft hood is a circular open space called ‘exhaust space’ or
‘relief opening’. When venting properly, the exhaust gases that
are hot from the combustion process rise up through the stack
and out the roof of the building naturally. JA 569-571.
These openings can, under certain conditions, entrain or
pull air in, and under other conditions allow exhaust gases to
enter the living space.” The heater is susceptible to wind, interior
pressure changes and air flow disruptions. JA 571.
9
The heater needs adequate combustion air in order to
operate. JA 582-583. Combustion air is “…the amount of air
required to completely burn all of the gas that's being provided
through the main valve. JA 583. The manufacturer’s instructions
provide an air volume calculation method or approach to
determine the minimum amount of volume required for per btu
rating unit on the heater.
JA 584. 586. Regarding installation,
both plaintiffs’ expert Mr. Bicknese and State expert Dr.
Eberhardt testified that the apartment had more than the air
volume required by the State installation manual. p. 8. JA 590591; 797-798.
The heater had no cutoff device, sensor or protection of any
type to shut it off in the event of incomplete combustion,
excessive the burn temperature or toxic gases though all were
state of the art. JA 597. It also had no sensors or devices to
detect the presence of carbon monoxide, disruption of the flame
at the burner or the absence of a clean burn though all are state
of the art. 516. Other than the TP valve the only safety devices
“…are related to gas flow.” JA 578-582.
10
The Air Handler
The electric air handler provides air conditioning. Heat for
this apartment was provided by this atmospheric vent heater.
This was accomplished by heating hydronic coils in the air handler
with hot water piped from the gas heater to heat air. A ½
horsepower blower encased in the air handler would then blow it
throughout the apartment vent system. JA 574-575.
The TP valve
A temperature pressure relief valve (TP valve) with a probe
is inserted into the water tank and mounted on the side of the
heater to protect it from excessive pressure and water
temperature. This probe senses the temperature and pressure of
the water in the tank. A spring internal to the valve is designed to
automatically opens and begins discharging water when the
pressure and temperature rated levels are reached the valve will
open to relieve pressure or dump water out a discharge pipe to
prevent explosion of the water tank. This TP valve was specified
and set for a pressure limit of 150 pounds per square inch and a
water temperature limit of 210 degrees Fahrenheit. JA 571-572,
11
546-547. The valve can be manually actuated to open externally
by a lever that pulls on the rod, compresses the spring and opens
the valve.
The instructions for the TP valve provide that it be activated
or manually operated on an annual basis to insure it is not
blocked and that water can discharge. JA 573.
State’s evidence also showed that the TP valve had not been
manually operated as specified on its tag though it obviously was
not blocked for the purpose of discharging water. JA 637. The
only maintenance issue involved the TP valve. While the TP valve
opened at a temperature lower than its rating and began
discharging water into the drain it had no role in carbon
monoxide production or emission from the heater. It increased
water use and the operation of the heater in order to continue to
heat incoming water as designed. There was no dispute that the
premature opening was likely caused by sediment build up in the
valve’s known operating environment. No testimony claimed that
the TP premature opening had any causal effect on carbon
monoxide creation and emission into the living space.
12
The Experts
Plaintiffs’ expert Randy Bicknese testified that the open
exhaust design for a residential gas water heater was
unreasonably dangerous because it permitted exhaust gases
including carbon monoxide to be emitted into the living space. JA
626. This was a known risk because the open vent heater was
susceptible to backdrafting from winds, pressure changes inside
the apartment and disruption of airflow needed for combustion
air. In addition, the state of the art for gas water heaters in 1996
included three safer models that had sealed exhaust and
combustion air sources not dependent upon the surrounding
atmosphere. State manufactured and sold these three models in
1996 including a direct vent, a power vent and direct power vent
gas heaters. These models also had shut off mechanisms in the
event of unclean combustion. JA 603-606.
Initial plan for the complex was for electric water heater.
The apartments were changed with the recommendation of the
gas company, the HVAC engineer and the approval of Town of
Blacksburg. JA 729-730.
13
State’s expert, Eberhardt, conceded that there was a
sufficient volume of combustion air available in the apartment
pursuant to the specifications in State’s Residential Instruction
Manual (JA 797-798. 763-764), but contended there was
insufficient air flow when the air handler was on and the bedroom
doors were shut. Id. According to Eberhardt, this situation arose
because there were no air-return ducts from the bedrooms and
because the carpet in the apartment had recently been replaced
in the apartment, allegedly creating a seal under the bedroom
doors. Id. Eberhardt, gave the opinion that the new carpet
disrupted air pressure within the apartment by eliminating return
air under the bedroom doors stating that was the “straw that
broke the camel’s back”.
The only acknowledged code violation --absence of the 12
inch (rather than 18 inches) ceiling proximity of open-space
between the ceiling and the top of the door in the utility room
door--had no impact on the production of carbon monoxide as
post-incident testing demonstrated the accumulation of carbon
monoxide with that door completely open. JA 543-544. The door
14
configuration complied with the manual’s drawing. P. Ex. 7. p. 7
When asked “would this back drafting occasion or the
emission of carbon monoxide into this apartment have happened
had that gas heater” been one of the safer, non-open-exhaust
models, Dr. Eberhardt answered, “No.” JA 814 . Even State’s
counsel conceded after Eberhardt’s testimony:
[Eberhardt] described the [lack of air flow due to the carpet]
as one of the explanations for what changed between the
eight years prior to today. He did not say it was a cause,
he was asked that question by Miss Tate, and in response
to her question, he said it wasn't a cause,it was an
explanation for everything that happened in that apartment
....
JA 816.
State expert and corporate representative, Adams also
testified that it was foreseeable that the open exhaust water
heater would be installed in proximity to an air handler (JA 847),
and that it was foreseeable that the open exhaust water heater
would be “installed in close proximity to an appliance that’s
competing for air with it,” Id. He said this was “expected” and
“very common”. JA 848, 872, 889.
15
Dr. Eberhardt admitted that plaintiffs’ poisoning would not
have occurred had the gas heater been one of the three sealed
combustion models. JA 814.
Plaintiffs’ expert Randy Bicknese testified that the
installation complied with the manufacturers installation
instructions found in the manual for air volume. Dr. Eberhardt
admitted that the Residential Water Heater Manual provided with
the heater by State showed more than the requisite amount of air
volume. State’s expert corporate representative and former V.P.
of engineering, Adams, also conceded that the combustion air
volume for the apartment was sufficient under State’s
instructions. JA 879. 917.
Dr. Eberhardt was present for post-incident testing testified
that the gas heater operated as expected except when the Apollo
air handler beside it was also operating. Testing found that the
gas heater produced repeatedly produced dangerous amounts of
carbon monoxide similar to that found when the poisoning
occurred, when the air handler was also running. JA 810. State
16
expert Adams admitted that the problem was the air handler
“stealing the air”. JA 885.
Before trial, Dorman filed a motion in limine to prohibit
evidence regarding the absence of prior incidents. On the second
day of trial, State argued that “plaintiffs acknowledge that
evidence of custom and usage may be considered” and that 60
million heaters of the type at issue were in use throughout the
United States and there had been no reported prior incidences of
carbon monoxide exposure. Dorman moved the court to prohibit
State from testifying to the number of water heaters sold and the
absence of prior incidents, arguing that, "while State can talk
about custom and usage in the industry and the knowledge about
the type of heater, we still do not believe they should be able to
talk about a safety history; we do not believe they should be able
to tout the absence of other injuries." JA 352-353.
The trial court denied the motion, ruling that testimony of
"prior incidences by State and Atmos as to the custom and usage
based on design" was admissible. JA 362-363. The Court allowed
State’s witnesses to tell the jury, over Dorman’s objection, that
17
there were “about 60 million atmospheric gas water heaters
operating in the United States as we sit in this courtroom today,”
(JA 850-851),and that the exhaust opening in the relief hood
through which carbon monoxide was released “does not” lead to
“an expected risk of carbon monoxide exposure in the 60 million
residences where this type of product is currently in use,” JA
852.
Adams admitted that he did not, in fact, know the exact
amount of similar water heaters that were in use in the United
States, and that he couldn't "tell the jury how many of the water
heaters out there — the gas water heaters out there are
atmospheric vent compared to the other three models." JA 585.
And in closing argument, State told the jury that there are
more or less 60 million atmospheric water heaters being used
"out in the field today as they have been since the 1880s" and
that the "only individual who argues that they are not fit, that
they are unreasonably dangerous" is the Plaintiffs’ expert. JA
1003.
18
State argued that ”… in order to defend the design of the
subject water heater, State must be permitted to explain how it
was installed improperly, in violation of numerous building codes
and industry standards, and not maintained for over seven years”
. Defendant State Industries, Inc.’s Opposition to Plaintiffs’ Motion
In Limine to Exclude the “Empty Chair” Defense.” JA 208.
These motions were renewed after the evidence, at the
instruction conference and post-trial, all denied.
Argument
A. The trial court erred in admitting State’s evidence and
arguments of the raw numbers of atmospheric gas water
heaters sold, their purported safety record and the
absence of prior injuries, all irrelevant to plaintiffs’ claims
as a matter of law. (AOE 1)
1. Standard of Review
Because the inadmissibility of evidence of the absence of
prior injuries is an “established rule of evidence” under Virginia
law, the trial court’s ruling is not entitled to deference and must
be reviewed de novo. Goins v. Wendy’s Intern., Inc., 242 Va.
333, 335 (1991). This Court has said “[i]t is firmly established
that evidence of the absence of other injuries is not admissible in
19
a negligence action when timely objection to it is made.” Id.
While the admission or exclusion of evidence based on
relevance is generally left to the sound discretion of the trial
court, Goins admonished that this established rule of evidence
may not “be modified or nullified by a trial court's exercise of
discretion.” Id. Whether this evidence violated an established rule
of evidence raises a question of law and must be reviewed de
novo.
2. Discussion and Authorities
a.
State's evidence that 60 million open exhaust
vent gas heaters are in use, the heater's safety record and
the absence of prior injuries violated Virginia's long
established rule of exclusion.
State’s claim that 60 million open exhaust vent gas heaters
are in use was not probative of any issue related to plaintiffs'
design defect and breach of warranty of merchantability causes.
The open exhaust design of this State Apollo Residential Gas
Water Heater was unreasonably dangerous because its open
exhaust design (as opposed to sealed exhaust) emitted carbon
monoxide into the living space. State breached its warranty of
merchantability because the open exhaust heater was
20
unreasonably dangerous for the purpose for which it was
designed and sold.
In Goins the Court held it was error to admit evidence that
the defendant received no other complaints about the food on the
day plaintiff became ill after eating at a Wendy’s restaurant. Id.
There is nothing in the present case that would justify departure
from the long-established rule restated in Goins.
Raw numbers of events or products are equally irrelevant to
the issues here. In Holley v. Pambianco, 270 Va. 180 (2005), this
Court reversed the trial court’s admission of statistics regarding
raw numbers of certain medical procedures (colonoscopies having
adverse events) because it was “not probative of any issue in the
case.” Id.
Over Plaintiffs’ objection State’s expert Adams testified that
there were 60 million of this gas water heater in use. JA 851.
Confronted, he admitted that the 60 million comprised gas water
heaters and did include the three other models of gas water
heater having sealed combustion. He did not provide a
breakdown. JA 858.
21
State’s expert Eberhardt volunteered the open exhaust vent
heater was common, the most common. All these representations
were repeated in State’s closing and repeated testimony that this
heater had no incidents for 8 years prior to the poisoning. JA 800.
Such evidence was highly prejudicial to plaintiffs. It could
only foster speculation about the event and mislead the jury. It
did not have any probative value regarding any issue in the case.
Proof of raw numbers and the absence of accidents
shows only that none have been reported or discovered, not
that they did not occur. Wood v. Woolfolk Properties, Inc.,
258 Va. 133, 138, 515 S.E. 2d 304, 306 (Va. 1999) (quoting
Goins, 242 Va. at 335-336, 410 S.E.2d at 636).
For more than a century, the Supreme Court of Virginia has
held that the absence of prior incidents is not admissible in an
injury case. Moore v. City of Richmond, 85 Va. 538, 539 (1888).
The trial court erred in permitting State to argue and
present evidence of the absence of prior incidents of carbon
monoxide poisoning caused by its atmospheric vent type gas
water heaters by, among other things, telling the jury that there
22
were “more than 60 million” atmospheric vent gas water heaters
in use in the country, they were “safe”, more than “500
engineers” worked every day to make them “safe”, intimating
stellar safety records having no risk of injury or prior incidents of
hazardous back drafting. JA 1003-1005.
In Sanitary Grocery Co. v. Steinbrecher, 183 Va. 495
(1945), this Court applied the doctrine. Evidence was offered that
100 customers per day visit the grocery store without injury. A
customer was injured on a protruding structure located near the
checkout counter. Evidence of the absence of prior incidents was
held inadmissible as misleading and not probative of the facts at
issue. In Sanitary Grocery this Court said; ‘In Virginia, we are
committed to the proposition that evidence of the absence
of other injuries is not admissible when timely objection is
interposed to it.” Id.
In applying this evidence rule of exclusion, this Court has
consistently spoken in it most emphatic form with the goal of
focusing the issue at hand and protecting jury consideration from
collateral issues. It is ‘firmly established’ that evidence of the
23
absence of other injuries is not admissible in a negligence action
when timely objection to it is made. Sykes, Adm'r v. Railway
Company, 200 Va. 559, 564-65 (1959). Such evidence introduces
into the trial collateral issues, remote to the issue at trial, which
would tend to distract, mislead, and confuse the jury. See City of
Radford v. Calhoun, 165 Va. 24, 36 (1935), Moore v. City of
Richmond, 85 Va. 538, 539, 8 S.E. 387, 388 (1888). The
rationale for not admitting evidence of the absence of other
injuries is the same, whether the opposing party's case is based
upon direct evidence, circumstantial evidence, or a combination
thereof, and whether the action lies in negligence or implied
warranty. Id.
State, having succeeded in convincing the Court of the
admissibility of these raw numbers, compounded the error by
arguing that all of State’s and its parent company’s 500 engineers
“work hard every day to make the heaters safe” and “are of the
opinion” that the State Apollo gas heater was safe and not
unreasonably dangerous. State thus improperly used the
inadmissible hearsay opinions of its biased, self-interested,
24
unidentified engineers and their numbers to validate State’s
contentions over plaintiffs’ objection. JA 1003-1005. State then
improperly argued and accused Plaintiffs’ expert of being the only
person who believed they were dangerous, over Plaintiffs’
objection. JA 1003.
Not only was there no evidence of that, it was untrue,
because there was evidence of previous problems with State's
Apollo open exhaust heaters. Plaintiffs’ Exhibit 1 represents a gas
company “red tag” or shut-off of the same model State Apollo
gas heater in a Collegiate Suites apartment building showing
>200 ppm of carbon monoxide measured at the heater
backdrafting into the living space due to ‘heavy wind’. JA 424. JA
1076. Ex. 1.
Because such evidence is not relevant its admission violates
Rule of Evidence 2:402(a): “Evidence that is not relevant is not
admissible.”
The pervasive prejudice such huge numbers obviously have
on a jury is devastating to a plaintiff who is largely at the mercy
of a defendant’s recordkeeping and discovery; and even if
25
perfect, can never account for unreported incidents.
While this Court has not directly addressed the admissibility
of evidence of the absence of prior similar accidents in a
consumer products liability context (except in Goins regarding
food) there is no reason to conclude that rule of exclusion is not
applicable here. Plaintiffs believe the settled rule of law in Virginia
that the absence of prior accidents/injuries and raw numbers are
not admissible when a timely objection is made is controlling
here. Because the objection is being made that for reason of
omission or extension this rule does not control in a products
liability context, Plaintiffs request that the Court take this
opportunity to resolve the now conflicting circuit court decisions
and confirm that this rule of exclusion applies in products liability
cases and all personal injury cases.
b. State's raw numbers of open exhaust vent gas
water heaters in use were not admissible as evidence of
'usage' under Virginia's doctrine of "custom and usage in
the industry".
In response to Plaintiffs’ motion in limine regarding this
evidence, State argued that it must be able to offer this evidence
26
to prove its defense of “custom and usage”. The court agreed.
Both misperceived Virginia’s doctrine of “custom and usage in the
industry” or “trade usage”. This doctrine addresses practices and
customs within the industry or business, not raw numbers of
consumer purchases and the absence of consumer complaints,
accidents and injuries. Evidence regarding industry standards,
practices and customs are admissible but not conclusive to
establish absence of a defect. See Turner v. Manning, Maxwell
and Moore Inc., 216 Va. 245 (1975) (finding evidence
established it was industry custom to sell hoists without safety
latches.)
The admission of raw numbers and absence of prior
accidents as support for defense of a product based on industry
“custom and usage” is error as a matter of law.
State argues it has support in this Court’s decision in
Bayliner Marine Corporation v. Crow, 257 Va. 121, (1999). It is
wrong. Bayliner did not involve a personal injury. Bayliner did
not involve a design defect claim. Mr. Crow was a commercial
purchaser in direct privity with Bayliner. After speaking with a
27
salesperson he tested and purchased a fishing boat. After
purchasing additional equipment and rigging fixtures for his boat,
he complained that the speed of the boat was insufficient to
timely reach prime fishing waters for his use and pleasure. He
sued based on breach of express warranties regarding the boats
speed. Id.
This commercial expectations case has no application here.
State attempts to use Bayliner to connect its claim of
millions of gas heaters in use by presumed satisfied customers
who, State would have us believe, have made no complaints and
continue to purchase the open exhaust gas water heater knowing
fully that they are safe from carbon monoxide emissions. This
contortion of Virginia law also does not work.
B. The trial court erred in granting Instruction No. 22 on
superseding cause because it misstated the law and was
not supported by State’s evidence. (AOE 2)
1.
Standard of Review
Whether the content of a jury instruction “is an accurate
statement of the relevant legal principles is a question of law”
that this Court reviews de novo. Cain v. Lee, ___ Va. ___, 772
28
S.E.2d 894 (2015). When this Court reviews the content of jury
instructions, its sole responsibility “is to see that the law has been
clearly stated and that the instructions cover all issues which the
evidence fairly raises.” Id.
2.
Discussion and Authorities
a.
The superseding cause instruction was an
erroneous submission of law to the jury and is presumed
to be harmful error.
This court requires that jury instructions be relevant, clear,
accurate, complete and supported by sufficient evidence. Id. Over
Plaintiffs’ objection, the trial court gave State’s proffered
instruction on superseding cause which consisted of the definition
of superseding cause as contained in the Virginia Model Jury
Instructions:
A superseding cause is an independent event, not
reasonably foreseeable, that completely breaks the
connection between the defendant's negligent act
and the plaintiff’s injury. A superseding cause breaks
the chain of events so that the defendant's original
negligent act is not a proximate cause of the plaintiff’s
injury in the slightest degree.
VMJI, Instruction No. 5.010, Definition of Superseding Cause.
JA 962-963.
29
This ‘definition’ in two laborious sentences contains multiple
legal terms and concepts relating to superseding cause but omits
others. As an instruction it lacks clarity, is confusing, misleading
and devoid of the essential legal concept of superseding cause:
defendant’s burden of proof. It did not clearly and accurately
inform the jury of the elements of superseding cause or the
consequences of finding evidence of those elements including:
1. the burden of proof is on defendant;
2. a clear and coherent definition of an intervening act,
event, conduct or omission and series of acts;
3. the scope of causation--the defendant must prove that any
intervening act or omission is the sole cause of injury;
4. a definition of foreseeable
5. the identity of the party charged with foreseeability of
intervening acts or omissions (defendant/State);
6. the consequence of finding evidence of reasonable
foreseeability of an intervening act;
7. the intervening act or omission must be completely
independent of defendant’s act or omission;
30
8. the intervening act or series of acts is not superseding if
“put in motion” or “put in operation” or also caused by
defendant’s wrongful act or omission.
A “correct statement of the law… (is one of the) essentials of a
fair trial.” Dowdy v. Com., 220 Va. 114, 116 (1979). Instruction
22 fails all these criteria as a matter of law.
b.
The absence of burden of proof in the
superseding cause instruction was erroneous and harmful
error.
The burden of proof is on the defendant asserting a
superseding cause to prove that another’s negligence alone
caused the injuries and he is free of negligence even “in the
slightest degree”. Atkinson v. Scheer, 256 Va. 448 (1998)
(emphasis added).
In Atkinson v. Scheer, 256 Va. 448 (1998), during a jury
trial, Dr. Scheer was permitted to ask the plaintiff's expert
witness, over the plaintiff's objection, whether another physician
who had also treated Atkinson had committed acts of negligence.
The trial court permitted Dr. Scheer to elicit such testimony, and
at the conclusion of the trial, the jury returned a verdict in favor
31
of Dr. Scheer. The plaintiff appealed. This Court held that the
burden of proof is on the defendant asserting a superseding
cause to prove he is free of negligence even “in the slightest
degree’. Id.
When an instruction has been “erroneously submitted to the
jury and the record does not reflect whether such ... instruction
formed the basis of the jury's verdict, we must presume that the
jury relied on such ... instruction in making its decision." Williams
v. Le, 276 Va. 161(2008).
Here, the jury gave a general verdict for State. Under these
circumstances, it cannot reasonably be contended that the
erroneous omission of State’s burden of proof from Instruction 22
was harmless as a matter of law. It was error and harmful as a
matter of law.
c.
State failed to prove that its open exhaust
design did not contribute to plaintiffs' injuries in the
slightest as a matter of law and State failed to prove that
any acts or omissions of others were the sole cause
plaintiffs' injuries as a matter of law and therefore failed
to support a superseding cause instruction.
A party is entitled to jury instructions supporting his or her
theory of the case “if sufficient evidence is introduced to support
32
that theory and if the instructions correctly state the law. The
evidence introduced in support of a requested instruction must
amount to more than a scintilla." (citations omitted). Williams v.
Le, at 76.
For the reasons contained in Argument C. below in support
of Assignment of Error #3, State’s evidence was not sufficient to
support a superseding cause instruction as a matter of law.
C. The trial court erred in admitting State’s evidence and
arguments that superseding negligence caused Plaintiffs’
injuries because State failed to prove that such negligence
did not entirely supplant the operation of State’s
negligence, was not put in operation by State’s negligence
and was not reasonably foreseeable as a matter of law.
(AOE 3)
1.
Standard of Review
In Ford Motor Company v. Boomer, 285 Va. 141, 151(2014),
this Court revisited Virginia’s causation standards. Boomer
repeated the standard test for proximate causation called the
“but for” or sine qua non rule. Ford Motor Co. v. Boomer, 285 Va.
141, 150 (2013). There may be more than one proximate cause
of an event. Holmes v. Levine, 273 Va. 150, 159 (2007). As
restated in Boomer, to meet the “but for” rule, the first element
33
of causation or causation in fact, or “to impose liability upon one
person for damages incurred by another, it must be shown that
the negligent conduct was a necessary physical antecedent
of the damages. Id.
Equally important here is the basic rule that showing that
“other causes concurred in producing, or contributed to the result
is no defense to an action for negligence.” Where the negligence
of two or more persons acting independently, concurrently results
in an injury to a third, the latter may maintain his action for the
entire loss against any one or all of the negligent parties. Id.
Here, the unsealed exhaust of State’s atmospheric vent
heater is the only necessary physical antecedent of plaintiffs’
carbon monoxide exposure as a matter of law. Without the open
exhaust there could have been no exposure. Consequently State
could not meet its burden of proof that it was not negligent “even
in the slightest.”
"Issues of negligence and proximate causation
ordinarily are questions of fact for the jury's
determination. Brown v. Koulizakis, 229 Va. 524, 531
(1985). A court decides these issues only when
34
reasonable persons could not differ. Hadeed v.
Medic-24, Ltd., 237 Va. 277, 285 (1989).
A circuit court by definition abuses its discretion when it makes
an error of law” and, therefore, the “abuse-of-discretion standard
includes review to determine that the discretion was not guided
by erroneous legal conclusions.” Porter v. Commonwealth, 276
Va. 203, 260 (2008).
Under these circumstances, State was a negligent actor and
not entitled to a superseding cause instruction as a matter of law.
2.
Discussion and Authorities
a.
State's unsealed open exhaust design was
the only necessary physical antecedent permitting
emissions of carbon monoxide into the living space
proximately contributing to plaintiff's injuries as a matter
of law.
The unsealed exhaust of State’s atmospheric vent heater is
the only necessary physical antecedent of plaintiffs’ carbon
monoxide exposure. The 3 safer gas heater models had sealed
exhaust each of which would have prevented this poisoning
according to State’s own expert, Dr. Eberhardt. JA 814. Without
the open exhaust there could have been no exposure.
35
State argued that ”… in order to defend the design of the
subject water heater, State must be permitted to explain how it
was installed improperly, in violation of numerous building code
and industry standards, and not maintained for over seven years”
. Defendant State Industries, Inc.’s Opposition to Plaintiffs’
Motion In Limine to Exclude the “Empty Chair” Defense”, JA 208.
Crediting all of State’s evidence regarding installation, codes and
standards and maintenance as the court must at this stage, still
leaves State without exoneration of liability for three reasons.
First, the three factors relied on by State: installation, code
violations and maintenance had no causal relationship to the
creation or emission of the carbon monoxide into the living space.
Second, there could be no emission into the living space
under any of the circumstances alleged by State but for the
heater’s open exhaust into the living space.
Third, State freely admits the foreseeability of the gas
heater’s primary combustion air disruption: the air handler
connected to the water heater for space heating with its .5
horsepower motor, referred to by State expert Dr. Eberhardt as
36
the “big blower”, …many times is going to win.” JA 768.
Significantly, State has decades of knowledge of the dangers of
carbon monoxide and knows the risk created by its open exhaust
gas heater.
These alleged superseding causes are discussed in turn.
1. TP valve maintenance
The maintenance issue involved the TP valve. The TP
valve opened at a temperature lower than its rating and began
discharging water into the drain. There was no dispute that the
premature opening was likely caused by sediment build-up on the
spring or probe in the valve’s known operating environment. It
increased the operation of the heater in order to continue to heat
incoming water as designed. The TP valve has no function or
contact with the burner, gas or other role in the operation of the
heater. It was not disputed that TP had no role in creating carbon
monoxide or emissions. The TP premature opening obviously
resulted in greater water use but it had no causal effect on
carbon monoxide creation and emission into the living space.
Not a single witness or other evidence attributed causation
37
of the poisoning to the TP valve.
2. Installation and code-- Discharge pipe configuration
The TP valve discharge pipe located on the exterior side of
the heater was not vertically pitched to the drain. It had two
elbows terminating in a hub drain close to the rear wall between
the heater and air handler. Plaintiff’s expert acknowledged that
this configuration deviated from the Manual and industry
standard. It was observed discharging water as intended. No
evidence or witness attributed causation of the poisoning to the
TP discharge pipe.
3. Installation, code violation--Utility/Laundry room door
The only acknowledged code violation: absence of the 12
inch ceiling proximity of open-space between the top of the
door and the ceiling. (It was 18 inches or a difference of 6
inches.) When the owner decided to install gas water heaters in
Phase 4 of the apartments including Apt. F, the engineer ( he
does not recall consulting an architect) he consulted required a
louvered door to be installed on the utility room to ensure
38
adequate combustion air volume for the unit, in accordance with
State’s Residential Instruction Manual. JA 1087.
The door configuration complied with the State manual’s
drawing, an apparent misinterpretation of the code provision.
JA 1087. P. Ex. 7 p. 7. The location, installation and height of
the utility room door was shown in testing to have no impact
on the production of carbon monoxide as post-incident
testing demonstrated the accumulation of carbon monoxide
with that door completely open. JA 543 -544. No evidence
showed that this apparent code violation had any causal
connection to the carbon monoxide poisoning.
4. Architect’s plans for electric; changed to gas
The change was made with the recommendation of the gas
company, the HVAC engineer and the approval of Town of
Blacksburg. While State suggested that the owner had not
consulted the architect about switching from electric to gas, no
particular architectural feature or structure was identified as
causing the emission of carbon monoxide.
5. No free air circulation - Volume – new carpet
39
Both plaintiffs’ expert Mr. Bicknese and state expert
Mr. Eberhardt testified that the apartment had more than the air
volume required by the State installation manual. p. 8. JA 590591; 797-798. Eberhardt agreed with Bicknese calculations
based on the formula in the Manual that the apartment had 4140
cubic feet of air volume not including the bed rooms or closets
since they did not communicate directly with the location of the
heater as provided in the Manual. The Town of Blacksburg issued
a certificate of occupancy approving the apartments, with the
changes, for occupancy, indicating it had been inspected and
there was adequate combustion air in the apartment. JA 551.
State’s expert argued that the issue was not sufficient air
volume but “free circulation of air”. He contended the absence of
in-bedroom air returns was an installation omission. He admitted
that the 20x20 air return called for in State’s Manual was installed
in the foyer against the utility room wall. JA 802. He could not
point to any installation requirement in the Manual addressing
this alleged omission. JA 802-803. He premised this need on his
view that the new carpet—after 8 years—had created a pressure
40
differential sufficient to explain—but not cause—the carbon
monoxide poisoning. He could not provide or calculate “air flow
through the carpet” under the doors. JA 790. He measured the
pressure differential between the living are and the bedrooms
with the doors which revealed a difference of 0.1 inches of water
column. Despite commenting on this result, he ultimately
admitted he was NOT basing any opinions on that pressure
differential. JA 795-796. He gave no specific source for his claim
that “free circulation” was required in some way. With State
counsel’s prompting, he made a reference to “NFPA 54 9 B”
(apparently referring to the National Fire Protection Association,
publisher of the National Fuel Gas Code). He did not read or
quote a code provision or requirement from any document
documenting any industry code violation.
Ultimately he declined to give any foundation for his initial
conclusory opinion that “installation” was the cause of the
poisoning. All Eberhardt could say was that the new carpet was a
“contributor” to the incident. He expressly refused to say it was
a cause. Realizing how preposterous it sounded that a home with
41
an open exhaust gas heater could not safely replace the carpet,
State Counsel objected to the examination on the issue conceding
it was offered as an “explanation”, not a “cause”. JA 803-804.
Not a single installation, maintenance or code issue was
supported by fact or expert opinion as having any causal effect on
the creation or emission of carbon monoxide.
Even if contributing in some way, none of them was a “‘new
effective cause” that “operate[d] independently of” the heater
“making it and it only the proximate cause of injury,’” without the
contribution of State’s heater “even in the slightest degree.”
Kellerman v. McDonough, 278, 684 Va. at 493-494 (2009).
As Boomer made clear, in a products liability setting
involving potential concurring causes, Virginia law “provides a
means of holding a defendant liable if his or her negligence is one
of multiple concurrent causes which proximately caused an
injury.” Id.
On this record, it cannot be said that State’s alleged
defectively designed open exhaust did not contribute "in the
slightest degree" to the Plaintiffs’ injuries because no carbon
42
monoxide emission would have occurred but for the heater’s open
exhaust into in the living space—as a matter of law.
Without dispute, State’s atmospheric vent heater left the
factory with unsealed open exhaust for residential installation and
under all the circumstances, the unsealed open exhaust
continued to operate as designed and alone permitted the
emission of carbon monoxide into the living space causing the
toxic exposure.
State’s evidence and arguments were inadmissible “empty
chair” arguments and irrelevant as a matter of law.
The dearth of evidence was overshadowed by repetition of
the irrelevant as State attacked Plaintiffs’ expert on rebuttal cross
examination over Plaintiffs’ objection, repeating over and over
that he had also identified the other claimed deficiencies, but
found no causation, despite the fact State had no causation
evidence for any of those claims. All in violation of the law
outlined in Atkinson prohibiting cross examination on the
negligence of nonparties when there is no prima facie case
against them.
43
b.
State admitted foreseeability of disruption of
combustion air for the open vent gas heater by placement
beside its Apollo air handler as here and knew its
consequences.
Adams, State’s corporate representative and for VP of
Engineering admitted it was foreseeable that the open exhaust
water heater would be installed in proximity to an air handler, JA
847, and that it was foreseeable that the open exhaust water
heater would be “installed in close proximity to an appliance
that’s competing for air with it,” Id. He said this was “expected”
and “very common”. JA 848, 872, 889.
Adams also admitted the air handler was the problem,
“stealing air” from the gas heater. JA 885.
This evidence of foreseeability forfeits any entitlement State
might otherwise have had to a superseding cause instruction as a
matter of law.
c.
State's evidence failed to prove that any acts
or omissions of others had a causal relationship to
plaintiffs' injuries as a matter of law.
Prior to trial, Plaintiffs filed their motion in limine seeking to
exclude any evidence or argument regarding purported
superseding or intervening cause and allegations of fault against
44
nonparties. The Court erred in failing to sustain this Motion.
No expert on behalf of State offered an opinion that a
specific person or entity was negligent and that negligence was
the sole cause of Plaintiffs’ injuries. No expert on behalf of State
offered an opinion that any unknown actor or force committed an
act or omission that was the sole cause of Plaintiffs’ injuries. Both
of State’s experts, Adams and Eberhardt concurred that the
culprit disrupting or stealing the combustion air in the Apartment
was State’s air handler sitting beside the gas heater to supply
space heat. Both agree this was foreseeable. Both agree the
apartment as constructed had more than sufficient air volume as
required by State’s residential instruction manual. Eberhardt
agrees with Bicknese that the poisoning would not have occurred
with use of State’s 3 gas heaters that have sealed combustion
and shut off mechanisms.
The list of installation maintenance and code issues alleged
by State and dealt with above have no evidentiary support for
causing Plaintiffs’ injuries.
Under Virginia law, any person or entity whose
45
wrongdoing proximately contributes to cause harm is fully
liable for the entire harm. See Brown v. Parker, 167 Va. 286
(1937). This is the fundamental rule of joint and several liability.
A corollary of this rule is that the fact a wrongdoer cannot
avoid or reduce his liability by showing that there was also
another cause of the injury or death. A defendant cannot
escape liability for his own negligence merely by showing that
another person was also negligent.
The Court erred in denying Plaintiffs' Motion in limine on
these defenses. JA 912; 913 ruling 917. The Court's failure to
sustain Plaintiffs' Motion before, during and after trial and instruct
accordingly on these issues was error. Granting State’s requested
jury instruction on this issue was error.
Consistent with this ruling the trial court permitted State’s
Counsel to cross-examine Plaintiffs’ expert regarding fault by
nonparties This erroneous cross examination of Plaintiffs’ expert
regarding potential fault by non-parties over Plaintiffs’ objection
was specifically disallowed in Atkinson v. Scheer, 256 Va. 448
(1998) (holding it is reversible error to permit the defendant to
46
elicit testimony from plaintiff's expert witness regarding a nondefendant’s negligence because the defendant was also
negligent).
The absence of a causal relationship of any alleged fault by
the referenced nonparties precludes a superseding cause as a
matter of law. This error deviates from longstanding Virginia law
and was powerfully prejudicial to Plaintiffs.
Under no circumstances can it reasonably be said that any
nonparty conduct was the "sole" cause of the carbon monoxide
poisoning. These principles barred State from introducing the
evidence of alleged negligence on the part of others as a matter
of law.
Conclusion
Because the errors identified here are profound errors of
law and the issues of fact are those on which reasonable persons
could not differ, plaintiffs respectfully move for entry of judgment
on State’s liability as a matter of law, alternatively for remand
with directions to the trial court to enter judgment on State’s
liability as a matter of law and trial on damages only.
47
Otherwise, Plaintiffs respectfully request reversal of the
judgment in favor of defendant and a new trial.
Respectfully submitted,
Mary Lynn Tate, Esq. (VSB # 16085)
TATE LAW PC
Telephone: (276) 628-5185
Facsimile: (276) 628-5045
[email protected]
Counsel for Petitioners – Appellants
Certificate
Pursuant to Rule 5:17(i) of the Supreme Court of Virginia, I
hereby certify the following:
1. The Appellants are: Elizabeth A. Burgin; Carolyn A. Dorman;
Kirsten W. Halik; Nichole M. Howarth; and Kristin L. Julia.
Counsel for the Appellants is:
VSB No. 16085
TATE LAW PC
Telephone: (276) 628-5185
Facsimile: (276) 628-5045
[email protected]
48
2. The Appellee is State Industries, Inc. Counsel for the
Appellee are:
James H. Keale, Esq.
Timothy Freeman, Esq.
SEDGWICK LLP
One Newark Center
1085 Raymond Boulevard
16th Floor
Newark, NJ 07102
David M. Sturm, Esq.
TADDEO STURM, PLC
3 West Cary Street
Richmond, Virginia 23220
3. A digital copy of the foregoing Opening Brief was filed with
the Clerk of the Supreme Court of Virginia on this 4 th Day of
February, 2016 and upon counsel via email. Seven copies of the
foregoing Brief will be filed by hand with the Clerk of the Supreme
Court of Virginia on the 5th Day of February, 2016.
4. Counsel for Appellant desire to state orally and in person to
a panel of this court the reasons why this appeal should be
granted.
Mary Lynn Tate
49
In The
Supreme Court of Virginia
______________________
RECORD NO. 151088
______________________
CAROLYN A. DORMAN, et al.,
Appellants,
v.
STATE INDUSTRIES, INC.,
Appellee.
_________________________
BRIEF OF AMICUS CURIAE
VIRGINIA TRIAL LAWYERS ASSOCIATION
_________________________
William W.C. Harty (VSB No. 45447)
Rachel Swyers (VSB No. 85972)
PATTEN, WORNOM, HATTEN & DIAMONSTEIN, L.C.
12350 Jefferson Avenue, Suite 300
Newport News, Virginia 23602
(757) 223-4500 (Telephone)
(757) 249-3242 (Facsimile)
[email protected]
[email protected]
Counsel for Amicus Curiae
THE LEX GROUP i 1108 East Main Street i Suite 1400 i Richmond, VA 23219
(804) 644-4419 i (800) 856-4419 i Fax: (804) 644-3660 i www.thelexgroup.com
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES...........................................................................iii
AMICUS STATEMENT OF INTEREST ........................................................ 1
ASSIGNMENTS OF ERROR ....................................................................... 1
NATURE OF THE CASE AND MATERIAL PROCEEDINGS IN
CIRCUIT COURT ......................................................................................... 1
STATEMENT OF FACTS............................................................................. 1
PRINCIPLES OF LAW, ARGUMENT AND AUTHORITIES ......................... 2
I.
II.
The Trial Court Erred by Instructing the Jury on
Superseding Cause ................................................................... 2
A.
Standard of Review .......................................................... 2
B.
Joint and Several Liability Ordinarily Precludes
Evidence of Non-Party Tortfeasors .................................. 3
C.
The Evidence was Not Sufficient, As A Matter of
Law, to Support a Superseding Cause Instruction ......... 10
Industry Custom and Usage is defined as Current
Industry Standards and Practices, not as the Absence of
Prior Incidents .......................................................................... 23
A.
Standard of Review ........................................................ 23
B.
The Trial Court Erroneously Conflated “Custom and
Usage” Evidence with Absence of Prior Incidents
Evidence......................................................................... 23
C.
Virginia Law has Consistently Held that Evidence of
the Absence of Prior Incidents is Inadmissible ............... 27
i
III.
Because the Jury Issued a General Verdict, This Court
Should Reverse and Remand the Case for Retrial.................. 31
CONCLUSION ........................................................................................... 32
CERTIFICATE............................................................................................ 34
ii
TABLE OF AUTHORITIES
Page(s)
CASES
Andrews v. Appalachian Elec. Power Co.,
192 Va. 150, 63 S.E.2d 750 (1951) ............................................ 25, 26
Atkinson v. Scheer,
256 Va. 448, 508 S.E.2d 68 (1998) ............................................ 10, 11
Bly v. S. Ry. Co.,
183 Va. 162, 31 S.E.2d 564 (1944) .................................................. 27
C. & M. Promotions v. Ryland,
208 Va. 365, 158 S.E.2d 132 (1967) ................................................ 26
Carolina, Clinchfield & Ohio Railway Co. v. Hill,
119 Va. 416, 89 S.E. 902 (1916) .................................................... 4, 7
Chesapeake & O. Ry. Co. v. Wills,
111 Va. 32, 68 S.E. 395 (1910) .......................................................... 7
Clozza v. Commonwealth,
228 Va. 124, 321 S.E.2d 273 (1984) ................................................ 23
Coe v. Commonwealth,
231 Va. 83, 340 S.E.2d 820 (1986) .................................................. 10
Coleman v. Blankenship Oil Corp.,
221 Va. 124, 267 S.E.2d 143 (1980) .......................................... 10, 11
Exxon Mobil Corp. v. Minton,
285 Va. 115, 737 S.E.2d 16 (2013) .................................................. 31
Ford Motor Co. v. Boomer,
285 Va. 141, 736 S.E.2d 724 (2013) .............................................. 4, 7
iii
Ford Motor Co. v. Phelps,
239 Va. 272, 276 S.E.2d 454 (1990) ................................................ 28
Fox v. Deese,
234 Va. 412, 362 S.E.2d 699 (1987) .................................................. 5
Funkhouser v. Ford Motor Co.,
284 Va. 214, 726 S.E.2d 302 (2012), on reh’g en banc,
285 Va. 272, 736 S.E.2d 309 (2013) ................................................ 29
Goins v. Wendy’s Int’l, Inc.,
242 Va. 333, 410 S.E.2d 635 (1991) .......................................... 28, 30
Harmon v. Honeywell Int’l, Inc.,
288 Va. 84, 758 S.E.2d 515 (2014) .................................................. 28
Hatcher v. Commonwealth,
218 Va. 811, 241 S.E.2d 756 (1978) .................................................. 3
Healey v. Trodd,
7 A.2d 640 (N.J. Sup. Ct. 1939), aff’d,
11 A.2d 88 (1940) ............................................................................. 28
Herr v. Wheeler,
272 Va. 310, 634 S.E.2d 317 (2006) .................................................. 3
Hines v. Garrett,
131 Va. 125, 108 S.E. 690 (1921) ...................................................... 8
Jefferson Hosp. v. Van Lear,
186 Va. 74, 41 S.E.2d 441 (1947) ................................................ 8, 11
Jenkins v. Payne,
251 Va. 122, 465 S.E.2d 795 (1996) ...................................... 9, 11, 20
John Crane, Inc. v. Jones,
274 Va. 581, 650 S.E.2d 851 (2007) ................................................ 23
Johnson v. Raviotta,
264 Va. 27, 563 S.E.2d 727 (2002) .................................................. 31
iv
Jones v. Pak-Mor Mfg. Co.,
700 P.2d 819 (Ariz. 1985) ................................................................. 28
Kellerman v. McDonough,
278 Va. 478, 684 S.E.2d 786 (2009) ...................................... 8, 11, 20
Klonowski v. Int’l Armament Corp.,
17 F.3d 992 (7th Cir. 1994) ............................................................... 28
Maroulis v. Elliott,
207 Va. 503, 151 S.E.2d 339 (1966) .................................. 4, 6, 11, 20
Mawyer v. Thomas,
199 Va. 897, 103 S.E.2d 217 (1958) .................................................. 3
Monahan v. Obici Med. Mgmt. Servs., Inc.,
271 Va. 621, 628 S.E.2d 330 (2006) ................................................ 31
Moore v. City of Richmond,
85 Va. 538, 8 S.E. 387 (1888) .......................................................... 10
Norfolk & Western Ry. Co. v. Puryear,
250 Va. 559, 463 S.E.2d 442 (1995) ................................................ 23
Panousos v. Allen,
245 Va. 60, 425 S.E.2d 496 (1993) .............................................. 3, 11
Porter v. Commonwealth,
276 Va. 203, 661 S.E.2d 415 (2008) ................................................ 23
Riverside Hosp. v. Johnson,
272 Va. 518, 636 S.E.2d 416 (2006) ................................................ 23
Sanitary Gro. Co. v. Steinbrecher,
183 Va. 495, 32 S.E.2d 685 (1945) .................................................. 28
Schlimmer v. Poverty Hunt Club,
268 Va. 74, 597 S.E.2d 43 (2004) ................................................... 2-3
v
School v. Walker,
187 Va. 619, 47 S.E.2d 418 (1948) .................................................... 7
Scott v. Simms,
188 Va. 808, 51 S.E.2d 250 (1949) .................................................. 11
Standard Oil Co. v. Wakefield’s Adm’r,
102 Va. 824, 47 S.E. 830 (1904) ...................................................... 11
Stottlemyer v. Ghramm,
268 Va. 7, 597 S.E.2d 191 (2004) ................................................. 9-10
Sullivan v. Robertson Drug Co.,
273 Va. 84, 639 S.E.2d 250 (2007) ................................................ 5, 6
Sykes, Adm’r v. Railway Co.,
200 Va. 559, 106 S.E.2d 746 (1959) ................................................ 28
Tunnell v. Ford Motor Co.,
330 F. Supp. 2d 748 (W.D. Va. 2004)................................... 20, 21, 22
Turner v. Manning, Maxwell & Moore, Inc.,
216 Va. 245, 217 S.E.2d 863 (1975) ................................................ 26
Va. Stage Lines v. Newcomb,
187 Va. 677, 47 S.E.2d 446 (1948) .................................................. 26
Von Roy v. Whitescarver,
197 Va. 384, 89 S.E.2d 346 (1955) .................................................... 7
Williams v. Joynes,
278 Va. 57, 677 S.E.2d 261 (2009) ........................................ 8, 11, 20
Williams v. Le,
276 Va. 161, 662 S.E.2d 73 (2008) ...................................... 10, 11, 31
vi
Wood v. Woolfolk Props., Inc.,
258 Va. 133, 515 S.E.2d 304 (1999) ................................................ 28
Yonker v. Williams,
169 Va. 294, 192 S.E. 753 (1937) ...................................................... 7
STATUTES
Va. Code § 1-200 ......................................................................................... 3
Va. Code § 8.01-5(A) ................................................................................... 5
Va. Code § 8.01-34 ...................................................................................... 5
Va. Code § 8.01-379.3 ................................................................................. 6
Va. Code § 8.01-443 ............................................................................ 3, 4, 5
RULES
Va. Sup. Ct. R. 1:6(a) ................................................................................... 5
Va. Sup. Ct. R. 3:10 ..................................................................................... 5
Va. Sup. Ct. R. 3:12 ..................................................................................... 5
Va. Sup. Ct. R. 3:13 ..................................................................................... 5
OTHER AUTHORITIES
Black’s Law Dictionary (10th ed. 2014) ...................................................... 26
Charles E. Friend & Kent Sinclair, The Law of Evidence in Virginia
(7th ed. 2012) ............................................................................................. 30
Merriam-Webster’s Dictionary (10th ed.) ................................................... 26
vii
AMICUS STATEMENT OF INTEREST
The Virginia Trial Lawyers’ Association (VTLA) 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 rights, and
supporting an efficient and constitutionally sound judicial system.
This appeal presents an important issue of Virginia law and trial
practice in Virginia courts. The appeal concerns and implicates not only
the rights of the parties in this case but also the rights of product liability
litigants throughout the Commonwealth.
ASSIGNMENTS OF ERROR
VTLA adopts the Assignments of Error in Appellant’s Opening Brief.
NATURE OF THE CASE AND MATERIAL PROCEEDINGS IN
CIRCUIT COURT
VTLA adopts the Nature of the Case and Material Proceedings in the
Circuit Court in Appellant’s Opening Brief.
STATEMENT OF FACTS
VTLA adopts the Statement of Facts in Appellant’s Opening Brief
except to the extent additional facts are developed in VTLA’s argument.
1
PRINCIPLES OF LAW, ARGUMENT AND AUTHORITIES
I.
The Trial Court Erred by Instructing the Jury on Superseding
Cause.
There appears to be confusion among courts and litigants regarding
the proper standard to use when reviewing the admissibility of intervening
causation evidence and the robustness of the evidence required to support
a superseding cause instruction. This case is a prime example. This Court
should take the opportunity here to give trial courts guidance on the proper
analysis of intervening cause evidence so that trial courts will be equipped
analyze this issue and reject improper admission of such evidence, or an
improper instruction on superseding cause, when the evidence in the case
has no potential to exonerate the defendant. Giving a superseding cause
instruction when the evidence is insufficient to support such an instruction
results in unnecessary delay, expense and burden on litigants and courts
as a result of avoidable appeals, remands and retrials.1
A.
Standard of Review.
“A 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
instructions correctly state the law.” Schlimmer v. Poverty Hunt Club, 268
1
This brief will refer to Appellants, collectively, as Dorman, and to
Appellees as “State” unless otherwise indicated.
2
Va. 74, 78, 597 S.E.2d 43, 45 (2004). However, “[t]he evidence presented
in support of a particular instruction ‘must amount to more than a scintilla.’”
Id. “Although an instruction correctly states the law, if it is not applicable to
the facts and circumstances of the case, it should not be given.” Hatcher v.
Commonwealth, 218 Va. 811, 813-14, 241 S.E.2d 756, 758 (1978). Jury
instructions regarding unavoidable accidents, sudden emergencies, or
other doctrines involving an “unexpected and unforeseen happening or
condition” should be given rarely because they afford “the jury an easy way
of avoiding instead of deciding the issue made by the evidence in the
case.” Mawyer v. Thomas, 199 Va. 897, 901, 103 S.E.2d 217, 220 (1958);
see also Herr v. Wheeler, 272 Va. 310, 315, 634 S.E.2d 317, 320 (2006).
Superseding cause instructions, likewise, should be given rarely. See
Panousos v. Allen, 245 Va. 60, 66, 425 S.E.2d 496, 500 (1993).
B.
Joint and Several Liability Ordinarily Precludes Evidence
of Non-Party Tortfeasors.
Virginia is, and has always been, a joint and several liability state.
This longstanding rule proceeds from Virginia’s adoption of English
common law, see Va. Code § 1-200, and has been codified by the General
Assembly, see Va. Code § 8.01-443.
Under joint and several liability, a plaintiff may sue any or all of the
putative tortfeasors who caused his injury and the plaintiff may bring suits
3
against successive defendants until the plaintiff is either made whole or
ultimately fails to prove that any of them are liable. Va. Code § 8.01-443.
Any one of these defendants may be held liable for a plaintiff’s entire
damages if the defendant’s negligence or defective product was a
proximate cause of the plaintiff’s injury. See Ford Motor Co. v. Boomer, 285
Va. 141, 151, 736 S.E.2d 724, 728 (2013) (“[O]ur law provides a means of
holding a defendant liable if his or her negligence is one of multiple
concurrent causes which proximately caused an injury”); see also
Carolina, Clinchfield & Ohio Railway Co. v. Hill, 119 Va. 416, 421, 89 S.E.
902, 904 (1916) (“Where the negligence of two or more persons acting
independently, concurrently results in an injury to a third, the latter may
maintain his action for the entire loss against any one or all of the negligent
parties….’”); Maroulis v. Elliott, 207 Va. 503, 510, 151 S.E.2d 339, 344
(1966) (“In determining the liability of either of several persons whose
concurrent negligence results in injury, the comparative degrees of
negligence are not to be considered, each being liable for the whole even
though the other was equally culpable, or contributed in a greater degree to
the injury.”). It does not matter if other innocent or negligent causes also
contributed to the injury or if those other causes contributed to a greater
extent.
4
Virginia’s common and statutory tort law is built upon this
fundamental rule of joint and several liability. For instance, Virginia’s joinder
rules enable a plaintiff to pursue putative tortfeasors in successive suits
unless another defendant is found to be a necessary or indispensable
party. See, e.g., Fox v. Deese, 234 Va. 412, 421, 362 S.E.2d 699, 705
(1987); Va. Code § 8.01-5(A); Va. S. Ct. R. 3:12. And Virginia law specifies
that a plaintiff will not be barred from his joint and several right to pursue
other putative tortfeasors in successive suits in the event he is unable to
obtain full relief against the initial defendant. See Va. Code § 8.01-443
(stating that “no bar shall arise as to any of them by reason of a judgment
against another, or others, until the judgment has been satisfied.”); Va. S.
Ct. R. 1:6(a).
Likewise, Virginia’s contribution statute, cross claim rules, and third
party claim rules are based on the underlying joint and several liability
doctrine. They recognize that a plaintiff need not join all putative tortfeasors
in the action, but they ameliorate the rule by allowing a defendant to either
join other putative tortfeasors in the case or pursue them in later
contribution actions. See, e.g, Sullivan v. Robertson Drug Co., 273 Va. 84,
91, 639 S.E.2d 250, 255 (2007) (contribution); Va. Code § 8.01-34; Va. R.
Sup. Ct. 3:10 & 3:13. When a defendant brings such claims, Virginia law
5
places the burden of proving the claim squarely on the party bringing it (the
defendant/cross claim, third party, or contribution plaintiff), and it gives the
cross, third-party, or contribution defendant the opportunity to defend
against the claim. Sullivan, 273 Va. at 91, 639 S.E.2d at 255 (“The party
seeking contribution has the burden of proving that the concurring
negligence of the other parties was a proximate cause of the injury for
which damages were paid.”). But joint and several liability rules still allow a
plaintiff to collect the whole amount of the judgment against any or all
defendants if the injury is indivisible. Maroulis, 207 Va. at 511, 151 S.E.2d
at 345 (“It is well settled in Virginia that ‘. . . (W)here separate and
independent acts of negligence of two parties are the direct cause of a
single injury to a third person and it is impossible to determine in what
proportion each contributed to the injury, either or both are responsible for
the whole injury.’” (citations omitted)); see also Va. Code § 8.01-379.3
(commanding that in negligence and wrongful death actions, a trial court
may only submit a general verdict form unless the substantive law requires
apportionment of fault for comparative negligence or if all parties to the
action agree that interrogatories may be submitted to the jury).
Outside of these rules, Virginia law does not ordinarily allow
defendants to argue the empty chair. This Court has repeatedly cautioned
6
that a defendant “can not be exonerated by urging and showing the
negligence” of other parties or nonparties. Von Roy v. Whitescarver, 197
Va. 384, 393, 89 S.E.2d 346, 352 (1955) (citing Yonker v. Williams, 169 Va.
294, 299, 192 S.E. 753, 755 (1937)); School v. Walker, 187 Va. 619, 629,
47 S.E.2d 418, 423 (1948). “Other sufficient causes, whether innocent or
arising from negligence, do not provide a defense.” Boomer, 285 Va. at
158, 736 S.E.2d at 732; see also Hill, 119 Va. at 421, 89 S.E. at 904 (“‘To
show that other causes concurred in producing, or contributed to the result
is no defense to an action for negligence….”). And “[i]t is not essential,
therefore, for a plaintiff to show that an act, claimed to have been the
proximate cause of a certain result, was the only cause. It is sufficient if it
be established that the defendant’s act produced or set in motion other
agencies, which in turn produced or contributed to the final result.” Von
Roy, 197 Va. at 393, 89 S.E.2d at 352 (quoting Chesapeake & O. Ry. Co.
v. Wills, 111 Va. 32, 68 S.E. 395, 397 (1910)).
Superseding cause — a rarely proved caveat to the general rule
against non-party causation evidence — allows a defendant to prove that
another cause “sever[ed] the link of proximate causation between the initial
negligent act and the resulting harm” of the initial tortfeasor. If the initial
tortfeasor is able to prove superseding cause, it is relieved of liability.
7
Williams v. Joynes, 278 Va. 57, 63, 677 S.E.2d 261, 264 (2009); Jefferson
Hosp. v. Van Lear, 186 Va. 74, 82, 41 S.E.2d 441, 444 (1947); Hines v.
Garrett, 131 Va. 125, 108 S.E. 690, 694 (1921).
This Court has “emphasized that ‘a superseding cause of an injury
“constitutes a new effective cause and operates independently of any other
act, making it and it only the proximate cause of injury.”’” Kellerman v.
McDonough, 278 Va. 478, 493-494, 684 S.E.2d 786, 794 (2009)2 (quoting
2
In its Opposition to Dorman’s Petition for Appeal, State argued that “the
Kellerman decision stands for the proposition that evidence regarding the
negligence of non-parties is admissible even if it does not rise to the level
of a superseding cause.” (Opposition to Petition for Appeal, at 17). This is
misleading, at best.
In Kellerman, the trial court granted the defendant’s demurrer on the duty
issue and dismissed the case. The Kellerman’s appealed the trial court’s
decision. No trial had occurred and no evidence had been admitted. While
addressing the issue of proximate cause, this Court held “that the acts of
the third party did not constitute, as a matter of law, a superseding act
between Paula’s alleged negligence and Jaimee’s death.” Kellermann, 278
Va. at 499, 684 S.E.2d at 797. Both Justice Koontz and Justice Kinser
agreed with this part of the majority’s opinion. See id. at 499, 684 S.E.2d at
797 (Koontz, J., concurring in part and dissenting in part); id. at 513, 684
S.E.2d at 805 (Kinser, J., concurring in part and dissenting in part). Thus,
this Court unanimously struck the superseding cause claim before any trial
occurred or any evidence was taken, and it never approved the admission
of evidence on this issue on remand.
8
Jenkins v. Payne, 251 Va. 122, 129, 465 S.E.2d 795, 799 (1996))3.
Granting an instruction on superseding cause when, as here, there is no
chance the intervening or concurring cause may rise to the level of a
superseding cause is unfairly prejudicial, draws the jury’s mind away from
the point in issue, excites prejudice and misleads them. See Stottlemyer v.
3
Similarly, in States’ Opposition to Dorman’s Petition for Appeal, State
claims that “in Jenkins the Virginia Supreme Court explicitly ruled that a
defendant physician could introduce evidence regarding an absent
physician’s treatment of the patient.” (States’ Opposition to Petition for
Appeal, at 18). But there is nothing on the cited page, or anywhere else in
the opinion, making this “explicit[]” pronouncement. Rather, this Court
stated:
Since there was no evidence from which the jury could conclude that
Dr. Rothman was the sole proximate cause of Payne’s death, the
rejected opinion evidence was irrelevant to the issue whether the
defendants also were negligent in their treatment of Payne. Id.
Further, since the defendants produced no evidence tending to prove
the facts on which their theory of sole proximate causation rested,
they were not entitled to place that issue before the jury and have the
jury instructed on it.
Jenkins, 251 Va. at 129, 465 S.E.2d 799 (emphasis added). Indeed one of
the issues on appeal in Jenkins was “whether the trial court erred in
excluding from the jury’s consideration (1) opinion evidence that another
physician, who had settled the plaintiff’s claim against him, was negligent in
his treatment of the decedent . . . .” Id. at 122, 128, 465 S.E.2d at 796, 799.
Though the trial court initially denied the plaintiff’s motion in limine to
preclude this intervening cause evidence, the court later changed its mind
and precluded the evidence because it could not, as a matter of law, rise to
the level of a superseding cause. Id. This Court affirmed that decision.
Thus, once again, State blatantly mischaracterizes a case in an effort to
support its argument.
9
Ghramm, 268 Va. 7, 12, 597 S.E.2d 191, 193 (2004) (quoting Moore v. City
of Richmond, 85 Va. 538, 8 S.E. 387, 388 (1888)).
C.
The Evidence was Not Sufficient, As A Matter of Law, to
Support a Superseding Cause Instruction.
This Court should instruct trial courts to conduct an in depth review of
any concurring cause evidence before granting a superseding cause
instruction.4 Trial court confusion over the quality of evidence required for
such an instruction has been demonstrated in case after case where a trial
court allows the evidence and grants the instruction only to have its
decision reversed by this Court because the evidence never rose to the
level of a superseding cause. See, e.g., Williams v. Le, 276 Va. 161, 168,
662 S.E.2d 73, 77 (2008); Atkinson v. Scheer, 256 Va. 448, 455, 508
S.E.2d 68, 72 (1998); Coleman v. Blankenship Oil Corp., 221 Va. 124, 132,
267 S.E.2d 143, 148 (1980).
To find a prima facie case of superseding cause, a trial court must
require that the evidence demonstrate (a) that the intervening cause was
4
Such insufficient evidence risks burdening this Court with an appeal and
burdening the trial court with potential retrial. See generally Coe v.
Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986) (noting that
admission of “irrelevant evidence tends to draw the jurors' attention toward
immaterial matters”)
10
not set in motion by the tortfeasor’s negligence or defective product,5
(b) that the cause could not have been foreseen by the defendant,6 (c) that
the cause was a “‘new effective cause and operates independently of any
other act, making it and it only the proximate cause of injury,’”7 and (d) that
the defendant’s negligence or defective product did not contribute “even in
the slightest degree” to the plaintiff’s injury.8 The defendant bears the
burden of proving this affirmative defense. Panousos, 245 Va. at 64, 425
S.E.2d at 499 (“Defendants recognize that they have the burden of going
forward with evidence of superseding cause.”).9
5
See, e.g., Le, 276 Va. at 167, 662 S.E.2d at 77; Coleman, 221 Va. at 132,
267 S.E.2d at 148; Jefferson Hosp., 186 Va. at 81, 41 S.E.2d at 444.
6
See, e.g., Jefferson Hosp., 186 Va. at 82, 41 S.E.2d at 444 (“An
intervening cause will not be deemed to have broken the causal connection
if the intervening cause was foreseen or reasonably might have been
foreseen by the wrongdoer.”); Scott v. Simms, 188 Va. 808, 817, 51 S.E.2d
250, 253 (1949); Standard Oil Co. v. Wakefield’s Adm’r, 102 Va. 824, 47
S.E. 830, 833 (1904).
7
See, e.g., Kellerman, 278 Va. at 493-494, 684 S.E.2d at 794; Williams,
278 Va. at 63, 677 S.E.2d at 264; Jenkins, 251 Va. at 129, 465 S.E.2d at
799; Maroulis, 207 Va. at 510-11, 151 S.E.2d at 345.
8
See, e.g., Le, 276 Va. at 167, 662 S.E.2d at 77; Atkinson, 256 Va. at 455,
508 S.E.2d at 72; Scott, 188 Va. at 817, 51 S.E.2d 253-54.
9
In addition to erroneously giving a superseding cause instruction in this
case, the trial court also erred by failing to give any instructions telling the
jury that it was State’s burden to prove this defense.
11
Here, the plaintiff moved in limine to prohibit evidence of nonparty,
intervening causes because they could not rise to the level of superseding
causes.10 (JA at 214, Plaintiffs’ Motion in Limine). During arguments on the
motion, Dorman’s attorney correctly pointed out that “it would be error to
permit them to blame empty chairs, nonparties. If they want to point the
finger at Atmos [which was still a party at the time], great. . . . But the law
says they cannot blame a nonparty unless it’s a superseding cause that
totally cuts off their involvement.” (JA at 356, Day 2 at 56). In response,
State offered only the general argument that the “jury has to hear about
installation, maintenance, and what went on in that apartment. That is
critical to the determination as to whether or not there was even proximate
cause, let alone superseding.” (JA at 357). The trial court denied Dorman’s
motion without a proffer of the evidence State intended to offer at trial.
10
When a trial court reviews this issue, it should start from the presumption
that the plaintiff will present a prima facie case of liability against the
defendant because it is only at that point that the superseding cause
defense becomes relevant. If the plaintiff is unable to prove a prima facie
case against the defendant, then the plaintiff’s own proof fails and the court
never reaches the issue of superseding cause. This is not a premature
finding of liability against the defendant — it is a standard of review, similar
to that of a demurrer, that presumes that the plaintiffs’ allegations are true
and looks at whether, assuming this is so, the defendant’s intervening
cause evidence is sufficiently robust to go to the jury and warrant a
superseding cause instruction.
12
This case involved five female college students who were overcome
by carbon monoxide poisoning while they were sleeping. The carbon
monoxide was created by, and leaked from, the open exhaust water heater
installed in the utility room of their apartment. Carbon monoxide is insidious
because it has no onion properties — you can’t see it, smell it or taste it.
(See generally, Trial Trans.(“TT”), Day Six, 01/14/15 at 643-651). Dorman’s
theory was that it was unreasonably dangerous for State to specify the use
of the open exhaust water heater for interior dwellings such as the
apartment at issue here. According to Dorman, it was foreseeable that
even atmospheric conditions such as wind had the potential of causing a
backdraft in the heater’s flue, causing carbon monoxide to be forced back
down the flue and released through the heater’s open exhaust vents into
the interior living space of the dwelling. (See, e.g., TT, Day 4, 01/12/15 at
343-345, 354). This danger was unreasonable because State had three
alternative models at the time this unit was sold, which were safer for use in
a dwelling than the open exhaust water heater at issue here. (JA at 599 –
603; see also TT, Day 7, 01/15/15 at 883-884) (State’s corporate
representative, Adams, testifying that the alternative models do not have an
open exhaust at the relief hood). Dorman contended that the unreasonably
dangerous nature of the open exhaust heater at issue was compounded by
13
State’s failure to include a carbon monoxide sensor or a cutoff switch in this
heater, both of which, Dorman’s expert testified, were technologically
feasible and available at the time the unit was sold. (JA at 596 - 598)
State contended that its open exhaust heater was improperly
maintained and installed by non-parties and that this improper maintenance
and installation contributed or superseded their own negligence or product
defect.11 The only evidence regarding allegedly improper maintenance
involved a temperature and pressure valve (TP valve), which opened at a
temperature (126 degrees) lower than its rated temperature (210 degrees).
(See, e.g., JA at 546 -547). The evidence showed that the TP valve was
not maintained pursuant to the manufacturers’ instructions, which required
the TP valve to be periodically opened to remove sediment. (JA at 625-626,
634-637). However, it was clear that the valve was, in fact, opening and
discharging water prior to and after the incident without any sediment
obstruction — albeit at a lower temperature than rated. (See, e.g., JA at
637). Importantly, not one witness indicated that the failure to periodically
11
State also defended on the grounds that industry standards provided for
the use of vented heaters in residential dwellings and that a carbon
monoxide sensor and cutoff were not technologically feasible at the time
the unit was sold. These arguments challenged Dorman’s core negligence
and breach of warranty case, did not point the finger at non-parties, and
were appropriate, though not conclusive, defenses in this case.
14
maintain the valve in this manner created carbon monoxide or was a
superseding cause of the release of carbon monoxide from the open
exhaust heater into the dwelling. To the contrary, when asked whether
components including the TP valve had “anything to do with carbon
monoxide,” Dorman’s expert, Bicknese, responded, “No. These are related
to, more or less, gas flow or unintended gas flow.” (JA at 577-578, 615).
With regard to installation, State pointed out that the original drawings
specified an electrical system instead of a gas system. However, the
uncontradicted testimony was (a) that the owners changed to gas during
phase 2 of the development, and this apartment was part of phase 4 (JA at
718-719, 725); (b) that the change was made in consultation with the gas
company, the HVAC engineer,12 and the Township of Blacksburg, (JA at
720-7212), (c) that, in addition to the atmospheric gas-fired heaters, the
engineer required a louver door to be installed on the utility room to ensure
adequate combustion air volume for the unit, in accordance with State’s
12
In closing argument, State attempted to blame the owner for not running
the changes by the architect. However, the owner, Mr. Nichols, testified
that he was not sure whether the architect was consulted or not, (JA at
721), and he stated that originally the architect “just generalized a heating
and air conditioning plan on the plans . . . but there was no specific plans.
They’re not required — were not required at that time in the state of
Virginia.” (JA at 722).
15
Residential Instruction Manual, (JA at 551, JA at 724-725);13 (d) that the
apartment had 4140 cubic feet of combustion air volume — not including
the bed rooms or closets — which is almost a 1000 cubic feet more than
the 3,250 cubic feet minimum required by State’s Residential Instruction
Manual (JA at 590-591); and (d) that Blacksburg ultimately issued a
certificate of occupancy approving the apartments, with the changes, for
occupancy, indicating it had been inspected and there was adequate
combustion air in the apartment (TT, Day 4, 01/12/15, at 307-308).
State’s expert, Eberhardt, conceded that there was a sufficient
volume of combustion air available in the apartment pursuant to the
specifications in State’s Residential Instruction Manual (JA at 763-764), but
contended there was insufficient air flow when the air handler was on and
the bedroom doors were shut (Id.). According to Eberhardt, this situation
arose because there were no air-return ducts from the bedrooms and
because the carpet in the apartment had recently been replaced in the
apartment, allegedly creating a seal under the bedroom doors (JA at 748756). Significantly, Eberhardt conceded that he had “no real means of
calculating air flow through the carpet” under the doors to prove his opinion.
13
State claims that the louver door technically violated the building code;
however, not one person testified that this technical violation affected the
outcome.
16
(JA at 790). Instead, Eberhardt testified that he tested the pressure
differential between the inside and outside of the bedrooms when the bed
room door was closed and the air handler was on and it showed a
difference in pressure of 0.1 inches of water column. He contended that
this contributed to a backdraft of carbon monoxide, which was generated
as a byproduct of the heater’s combustion process and released through
the heater’s vents into the apartment. However, he then stated that he was
not “basing any of [his] conclusions” on his 0.1 inch water column pressure
readings. (JA at 795-796). So it is unclear what testing or data supported
his conclusion.
Even so, the most Eberhardt would say was that the change in the
carpet was a “contributor” to the incident.
Q. . . . Are you telling us that the change in the carpet caused this
carbon monoxide exposure?
A I’m -- That’s not how I would phrase it. I would tell you that the
change in the carpet is essentially the straw that broke the camel’s
back. . . .
....
A The culmination of those things clearly points to the carpet as
being a contributor and, in this case, it is pretty inescapable that
that change in carpet is actually what tipped the balance.
(JA at 803-804 (emphasis added)).
17
Moreover, when asked “would this back drafting occasion or the
emission of carbon monoxide into this apartment have happened had that
gas heater” been one of the safer, non-open-exhaust models, Dr.
Eberhardt answered, “No.” (JA at 814). Even State’s own attorneys
conceded after Eberhardt’s testimony:
[Eberhardt] described the [lack of air flow due to the carpet] as one of
the explanations for what changed between the eight years prior to
today. He did not say it was a cause, he was asked that question by
Miss Tate, and in response to her question, he said it wasn’t a
cause,it was an explanation for everything that happened in that
apartment . . . .
(JA at 816 (emphasis added)).
Finally, State’s corporate representative and former V.P. of
engineering, Adams, conceded that it was foreseeable that the open
exhaust water heater would be “installed in close proximity to an appliance
that’s competing for air with it,” (JA at 848), that it was foreseeable that the
open exhaust water heater would be installed in proximity to an air handler,
as in this case, (JA at 847), and that State had produced the “Apollo” open
exhaust gas heater and the “Apollo air handler” that were present in the
apartment “contemplating that they would operate in the same application
together . . . .” (JA at 872). Adams, however, gave the previously
undisclosed opinion on cross examination that the Apollo air handler next
to the open exhaust heater was installed defectively because a photograph
18
showed that there was a gap between the intake duct and the air handler.
(JA at 894-895). On further questioning, he admitted that he did not know
whether that condition was a result of post incident testing and inspection,
(Id.), prompting the trial judge to comment that “since he made the
statement that he did not know whether it occurred — he doesn’t know if it
was before or after. To me that leaves it that nobody knew whether it was
after when it started or not.” (JA at 897).
The trouble with each of these theories is that, even assuming they
are true, the only thing in that apartment that created, and released, the
carbon monoxide that caused the plaintiffs’ injuries was State’s open
exhaust heater. The heater created carbon monoxide as a byproduct of
combustion, and it released carbon monoxide through its open exhaust.
Without the heater, there is no carbon monoxide — not from the carpet, not
from the TP valve, not from the louver door, and not from the supposed gap
between the duct and the air handler. Thus, though each of these other
conditions, arguendo, may have contributed to the injury, none of them was
a “‘new effective cause” that “operate[d] independently of” the heater
“making it and it only the proximate cause of injury,’” without the
19
contribution of State’s heater “even in the slightest degree.”14 Remove the
heater from the equation and there, quite simply, is no carbon monoxide.
Indeed, even State’s attorneys seemed to concede this point in their
Opposition to Plaintiffs’ Petition for Appeal, stating, “State introduced
evidence as to how the carbon monoxide accident occurred not to break a
causal link but rather to explain to the jury how the accident happened.”
(State’s Opposition to Petition for Appeal, at 7 (emphasis added)). Because
none of this could have amounted to a superseding cause, as a matter of
law, the trial court erred by giving the jury a superseding cause instruction.
Finally, State relies heavily on the federal magistrate’s report and
recommendations in Tunnell v. Ford Motor Co., 330 F. Supp. 2d 748 (W.D.
Va. 2004), but this case only serves to further demonstrate the confusion in
the bar on the distinction between a plaintiff’s proof of proximate cause, in
the first instance, and a defendant’s proof of superseding cause as an
exoneration defense.
Tunnell was a passenger in a car driven by Athey when they collided
with a pole. Tunnell sought to prove that a design defect — the absence of
a battery disconnect devise — in Ford’s electrical system was the
14
Kellerman, 278 Va. at 493-494, 684 S.E.2d at 794; Williams, 278 Va. at
63, 677 S.E.2d at 264; Jenkins, 251 Va. at 129, 465 S.E.2d at 799;
Maroulis, 207 Va. at 510-11, 151 S.E.2d at 345.
20
proximate cause of a fire that erupted after the accident and caused his
burn injuries. Ford sought to introduce evidence of Athey’s drinking
activities earlier in the night, which Ford claimed caused the initial crash.
Tunnell sought to exclude this evidence because, even if it was conceded
that Athey’s alleged intoxication caused the initial crash, it had no tendency
to show that Athey’s alleged intoxication superseded Ford’s design defect
in causing the fire after the crash.
Rejecting Tunnell’s argument, the magistrate stated that the plaintiff’s
argument “is entirely dependent on the jury’s adoption of [the plaintiff’s]
theory of the case. In essence, Tunnell asks the court to assume the
correctness of [plaintiff’s] legal and factual theory and disallow evidence of
misuse inconsistent with his theory.” Id. at 758. According to the
magistrate, “What Tunnell’s argument does not contemplate is that the jury
may reject his theory that the absence of a battery disconnect device
caused the fire.” Id.
Respectfully, the magistrate conflated the plaintiff’s burden of proving
proximate cause with the defendant’s burden of proving superseding
cause. If the jury rejected Tunnell’s theory of the case — that the absence
of a battery disconnect device caused the fire, as the magistrate
suggested — then the plaintiff would have failed in his initial proof of
21
causation regarding the defect causing the fire, and no superseding cause
evidence or instruction would be necessary at all.15 Thus whether the initial
crash was caused by the driver’s intoxication did not resolve the question at
issue — whether a defect in Ford’s electrical system caused the fire after
the initial crash. Stated differently, the drivers’ intoxication was, at best, a
concurring cause. Even assuming the driver was intoxicated and caused
the initial crash, if the plaintiff successfully proved his theory, Ford’s
defect caused the fire after the crash, which in turn caused Tunnell’s
burns — burns that would not have occurred but for the concurrence of
both the crash and the defect. If, on the other hand, the plaintiff failed to
prove his theory that the defect was the cause of the fire, then the plaintiff
would have failed in his own proof of causation against Ford, regardless
whether the driver was also at fault or not.
In sum, there is confusion in the bar not only regarding what
constitutes a superseding cause, but the standard of review for analyzing
intervening cause evidence to determine whether, as a matter of law, it
15
Significantly, nothing in the opinion indicated that the plaintiff sought to
preclude Ford from defending that the fire was not caused by a design
defect. In fact, the court observed that Ford intended to prove that the fire
“started in the passenger compartment and was ignited either by the
butane lighter Tunnell had in his pocket, smoking materials and/or alcohol.”
Id. at 751. Though this defense to the fire was relevant and plausible, it had
nothing to do with the driver’s intoxication at the time of the initial crash.
22
could amount to a superseding cause. VTLA urges this Court to take the
opportunity to clarify these matters in this case.
II.
Industry Custom and Usage is defined as Current Industry
Standards and Practices, not as the Absence of Prior Incidents.
A.
Standard of Review.
This Court reviews a trial court’s admission of evidence under an
abuse of discretion standard. John Crane, Inc. v. Jones, 274 Va. 581, 590,
650 S.E.2d 851, 855 (2007); Riverside Hosp. v. Johnson, 272 Va. 518,
529, 636 S.E.2d 416, 421 (2006); Clozza v. Commonwealth, 228 Va. 124,
135, 321 S.E.2d 273, 280 (1984). A trial court has no discretion to admit
clearly inadmissible evidence. Id.; Norfolk & Western Ry. Co. v. Puryear,
250 Va. 559, 563, 463 S.E.2d 442, 444 (1995). Moreover, “[a circuit] court
by definition abuses its discretion when it makes an error of law” and,
therefore, the “abuse-of-discretion standard includes review to determine
that the discretion was not guided by erroneous legal conclusions.” Porter
v. Commonwealth, 276 Va. 203, 260, 661 S.E.2d 415, 445 (2008) (internal
quotations omitted).
B.
The Trial Court Erroneously Conflated “Custom and
Usage” Evidence with Absence of Prior Incidents
Evidence.
Before trial, Dorman filed a motion in limine to prohibit evidence
regarding the absence of prior incidents. On the second day of trial, State
23
argued that “plaintiffs acknowledge that evidence of custom and usage may
be considered” and that 60 million heaters of the type at issue were in use
throughout the United States and there had been no reported prior
incidences of carbon monoxide exposure. Dorman moved the court to
prohibit State from testifying to the number of water heaters sold and the
absence of prior incidents, arguing that, “while State can talk about custom
and usage in the industry and the knowledge about the type of heater, we
still do not believe they should be able to talk about a safety history; we do
not believe they should be able to tout the absence of other injuries.” (JA at
352-353).
The trial court denied the motion, ruling that testimony of “prior
incidences by State and Atmos as to the custom and usage based on
design” was admissible. (JA at 362-363). Accordingly, the Court allowed
State’s witnesses to tell the jury, over Dorman’s objection, that there were
“about 60 million atmospheric gas water heaters operating in the United
States as we sit in this courtroom today,” (JA at 850-851), and that the
exhaust opening in the relief hood through which carbon monoxide was
released “does not” lead to “an expected risk of carbon monoxide exposure
in the 60 million residences where this type of product is currently in use,”
(JA at 852). And in closing argument, State told the jury that there are more
24
or less 60 million atmospheric water heaters being used “out in the field
today as they have been since the 1880s” and that the “only individual who
argues that they are not fit, that they are unreasonably dangerous” is the
Plaintiffs’ expert. (JA at 1003).16
State urged the trial court to accept evidence of the absence of prior
incidents as part of industry “custom and usage,” but absence of prior
injuries and custom and usage are two entirely separate issues. The trial
court’s admission of this evidence over Dorman’s timely objection was the
direct result of the trial court’s erroneous legal conclusion that absence of
prior incidents was the same as custom and usage.
It is undisputed that the trial court has the discretion to admit
evidence of industry custom and usage in a product liability case; however,
industry custom and usage are industry standards and practices, not the
use of products by member or of the general public or the absence of prior
incidents. See Andrews v. Appalachian Elec. Power Co., 192 Va. 150, 15455, 63 S.E.2d 750, 753 (1951). “Custom and usage” as defined by the
16
Compounding this unfairly prejudicial argument, State added that it
employed “over 500 engineers . . . who do nothing other than make sure
the products they manufacture are safe” and that State has “no interest, in
putting unsafe products out in the field.” (JA at 1004). This highly improper
statement forced Dorman contend with the hearsay opinions of 500 experts
without any opportunity to cross examine them.
25
Merriam Webster Dictionary, in pertinent part, is “a usage or practice
common to many or to a particular place or class or habitual with an
individual” and a “firmly established and generally accepted practice or
procedure.” Merriam-Webster’s Dictionary (10th ed.); see also Black’s Law
Dictionary “Custom and Usage,” (10th ed. 2014) (defining “custom and
usage” as “general rules and practices that have become the norm through
unvarying habit and common use.”).
This language accords with Virginia cases, which contemplate the
term “custom and usage” to address common practices and standards
within the industry, not the number of consumer purchases of a product or
absence of prior incidents. See, e.g., Turner v. Manning, Maxwell & Moore,
Inc., 216 Va. 245, 217 S.E.2d 863 (1975) (noting that “the custom of the
hoist industry was to offer hoists without safety hooks”); C. & M.
Promotions v. Ryland, 208 Va. 365, 158 S.E.2d 132 (1967) (finding that the
wrestling match promoter followed the general custom and usage of the
wrestling industry in the practice of seating arrangements and the barrier);
Andrews, 192 Va. at 157, 63 S.E.2d at 755 (allowing defense expert to
testify to the general custom and usage of the electric industry of
maintaining, inspecting, and constructing transmission lines); Va. Stage
Lines v. Newcomb, 187 Va. 677, 677, 47 S.E.2d 446 (1948) (ruling that no
26
finding of negligence could be predicated upon the failure to provide guard
rails since it was the custom and usage of operators of bus industry not to
use guard rails for passengers along the sides of loading platforms); Bly v.
S. Ry. Co., 183 Va. 162, 172, 31 S.E.2d 564, 568 (1944) (finding that the
bridge where plaintiff’s decedent was injured was constructed in
accordance with the general custom and usage of the railway industry
generally throughout the United States). In each case, the term of art
relates to the accepted standards and practices in the applicable
industry — not self-serving statements about consumer usage of products
or anecdotal testimony about the lack of prior reported incidents.
Because the trial court made an error of law by defining industry
custom and usage to include the absence of prior incident reports by
consumers, it abused its discretion by admitting absence of prior incident
evidence based on this erroneous legal conclusion. VTLA urges the Court
to preserve Virginia’s long-standing doctrine that industry custom and
usage is defined as the industry standards and practices.
C.
Virginia Law has Consistently Held that Evidence of the
Absence of Prior Incidents is Inadmissible.
Absence of prior incidents “evidence introduces into the trial collateral
issues, remote to the issue at trial, which would tend to distract, mislead,
and confuse the jury,” and a departure from this Court’s consistent rule
27
prohibiting such evidence “would interject evidence so problematical, due
to the potential for a lack of reporting and the variables of circumstances
and conditions, that such evidence would have slight, if any, relevancy or
probative value.” Goins v. Wendy’s Int’l, Inc., 242 Va. 333, 335, 410 S.E.2d
635, 636 (1991). That is why it is “firmly established that evidence of the
absence of other injuries is not admissible in a negligence action when
timely objection to it is made.” Id. (citing Sykes, Adm’r v. Railway Co., 200
Va. 559, 564–65, 106 S.E.2d 746, 751 (1959)); Sanitary Gro. Co. v.
Steinbrecher, 183 Va. 495, 500, 32 S.E.2d 685, 687 (1945); see also Wood
v. Woolfolk Props., Inc., 258 Va. 133, 515 S.E.2d 304 (1999); Ford Motor
Co. v. Phelps, 239 Va. 272, 276 S.E.2d 454 (1990).17
17
See also Harmon v. Honeywell Int’l, Inc., 288 Va. 84, 758 S.E.2d 515
(2014) (holding that defendant’s closing arguments regarding the absence
of prior incidents violated the trial court’s pretrial order excluding such
evidence and argument and that the pretrial order was the law of the case
since the defendants did not file a cross-appeal). Courts in other
jurisdictions have routinely held that absence of prior accidents is generally
inadmissible evidence, as well. See Healey v. Trodd, 7 A.2d 640 (N.J. Sup.
Ct. 1939) aff’d, 11 A.2d 88 (1940) (finding that the absence of similar
happenings in the past is inadmissible involving the explosion of a can of
spaghetti); Klonowski v. Int’l Armament Corp., 17 F.3d 992 (7th Cir. 1994)
(holding that evidence of lack of prior accidents was inadmissible in a
products liability action involving a shotgun that misfired and injured
plaintiff); Jones v. Pak-Mor Mfg. Co., 700 P.2d 819 (Ariz. 1985)
(recognizing that evidence of the absence of prior accidents involving other
similar products is inadmissible in manufacturing flaw cases).
28
What is particularly troubling here is that this evidence was offered to
prove lack of defect. Even where this Court has held that evidence of other
similar occurrences is admissible, it is usually only to establish that a
defendant had notice and actual knowledge of a potential defect — not to
prove that the product, in fact, was or was not defective. Additionally, such
information may be offered only after the proponent demonstrates that “the
prior incident occurred under substantially the same circumstances” and
was “caused by the same or similar defects and dangers as those in issue.”
Funkhouser v. Ford Motor Co., 284 Va. 214, 224, 726 S.E.2d 302, 308
(2012) on reh’g en banc, 285 Va. 272, 736 S.E.2d 309 (2013) (citations
omitted). Here, however, there was no evidence — indeed there could be
none — that each of the 60 million other heaters were being used under
substantially the same conditions as the one in this case.18 For example,
there is no testimony, proffer or even argument in the record that any of
these 60 million other heaters were installed indoors, were used in an
18
In fact, State’s corporate representative admitted that he did not, in fact,
know the exact amount of similar water heaters that were in use in the
United States, and that he couldn’t “tell the jury how many of the water
heaters out there — the gas water heaters out there are atmospheric vent
compared to the other three models.” (JA at 585). Accordingly, State’s
witness could not even confirm the number of open exhaust heaters in use,
much less the substantial similarity of the use.
29
apartment setting, were set up the same way this heater was set up, or any
other foundational evidence of substantial similarity.
Indeed, the trial court refused to allow Dorman to offer evidence that
inspections of other apartments in the same building with identical heaters
in the same configuration also emitted carbon monoxide in substantially the
same conditions. (JA at 501, 510-511). In stark contrast, the Court allowed
the defense to testify, without any foundation of substantially similar
conditions, that there had been no prior incidents with 60 million similar
heaters in use in the United States. By allowing this testimony, the trial
court introduced evidence of “collateral issues, remote to the issue at trial,
which would tend to distract, mislead, and confuse the jury” Goins, 242 Va.
at 335. It is for these very reasons that “evidence of the absence of other
accidents is not usually admitted in Virginia.” Charles E. Friend & Kent
Sinclair, The Law of Evidence in Virginia, 386 (7th ed. 2012).
In light of the facts and Virginia legal precedent, the trial court erred in
allowing State to testify to the purported safety record and sale of heaters
in the United States. Affirming this expansive redefinition of custom and
usage to include the absence of prior incidents will effectively reverse 80
years of Virginia law holding that such evidence is inadmissible. For the
aforementioned reasons, VTLA urges this Court to reaffirm Virginia’s
30
longstanding doctrine on custom and usage and the inadmissibility of the
absence of prior incidents, reverse the trial court, and remand this case for
a new trial.
III.
Because the Jury Issued a General Verdict, This Court Should
Reverse and Remand the Case for Retrial.
The jury issued a general verdict and, therefore, because this Court
cannot say that the erroneous superseding cause instruction or the
erroneous admission of evidence did not influence the jury’s verdict, this
Court must reverse the trial court. Le, 276 Va. at 168, 662 S.E.2d at 77
(quoting Monahan v. Obici Med. Mgmt. Servs., Inc., 271 Va. 621, 635, 628
S.E.2d 330, 338 (2006), and Johnson v. Raviotta, 264 Va. 27, 39, 563
S.E.2d 727, 735 (2002)) (“‘[W]here ... an instruction [has] been erroneously
submitted to the jury and the record does not reflect whether such ...
instruction formed the basis of the jury’s verdict, we must presume that the
jury relied on such ... instruction in making its decision.’”); accord Exxon
Mobil Corp. v. Minton, 285 Va. 115, 133, 737 S.E.2d 16, 28 (2013)
(“Because we cannot determine from the record whether the jury found in
favor of Minton based upon the duty to intervene without the opportunity to
consider the excluded evidence, or because of Exxon’s violation of the
active control duty, we will reverse the judgment of the circuit court.”).
Accordingly, if this Court finds the trial court erred by instructing the jury on
31
superseding cause or by admitting evidence of superseding cause or the
absence of prior incidents, it should reverse the trial court and remand the
case.
CONCLUSION
For the foregoing reasons, this Court should clarify Virginia law as to
the standard for reviewing intervening cause evidence and granting a
superseding cause instruction. Additionally, this Court should reaffirm its
longstanding prohibition of the absence of prior incidents evidence and
clarify that such evidence is not part of “custom and usage.” Finally, this
Court should reverse the trial court and remand this case for new trial with
instructions that the superseding cause defense does not apply as a matter
of law in this case.
32
Respectfully Submitted,
VIRGINIA TRIAL LAWYERS ASSOCIATION
BY: _______________________________
Of Counsel
William W.C. Harty, Esq. (VSB # 45447)
Rachel Swyers, Esq. (VSB # 85972)
PATTEN, WORNOM, HATTEN & DIAMONSTEIN, L.C.
12350 Jefferson Avenue, Suite 300
Newport News, VA 23602
757.223.4500
Telephone
757.249.3242
Fax
[email protected]
[email protected]
Counsel for Amicus VTLA
33
CERTIFICATE
Pursuant to Rule 5:26(h) of the Rules of the Supreme Court of
Virginia, I hereby certify that a pdf copy of this Brief of Amicus Curiae was
filed electronically, via VACES, with this court. I further certify that ten
bound copies of the same were hand delivered to the Office of the Clerk
and an electronic copy was served, via email, upon the following counsel of
record this 4th day of February, 2016.
VSB No. 16085
TATE LAW PC
Telephone: (276) 628-5185
Facsimile: (276) 628-5045
[email protected]
Counsel for Appellants
James H. Keale, Esq.
Timothy Freeman, Esq.
SEDGWICK LLP
One Newark Center
1085 Raymond Boulevard
16th Floor
Newark, New Jersey 07102
[email protected]
[email protected]
David M. Sturm, Esq.
Matthew D. Joss, Esq.
TADDEO STURM, PLC
3 West Cary Street
Richmond, Virginia 23220
[email protected]
[email protected]
Counsel for Appellees State Industries, Inc.
34
___________________________
William W.C. Harty
35

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