Legal Notices

Supreme Court of Virginia’s Opinion Impacts Trial of Civil Cases

In Centra Health, Inc. v. Mullins, 277 Va. 59 (2009), the Supreme Court of Virginia affirmed the rulings made at trial by Lynchburg City Circuit Judge Leyburn Mosby, Jr.  Several of the Court’s rulings or statements impact how trial attorneys should, or perhaps must, proceed in civil cases.

First, the Court did not require the plaintiff to elect, before submitting the case to the jury for decision, between his survival and wrongful death causes of action.  The defendant contested that its alleged negligence was the cause of any compensable injury for which a survival action could be brought and that its alleged negligence had caused the decedent’s death.  The Court ruled that “compelling an election would put the administrators in the untenable, and manifestly unjust, position of having to elect between two potentially viable claims, which [the defendant] was contesting on separate and independent grounds.”  The Court noted that the Circuit Court was “painstaking in its efforts” to instruct the jury properly on both theories of recovery and to differentiate for the jury the damages recoverable under each theory asserted by the plaintiff.

Second, the Court recognized the significance of the defendant’s contention that, in permitting a plaintiff to present evidence in support of both a survival claim and a wrongful death claim when causation is disputed, a defendant may be subject to potential prejudice by the possibility of jury confusion arising from the differing elements of damages recoverable for each claim.  The Court then expressed its opinion that “a defendant can obviate this potential for prejudice by requesting that the trial be bifurcated into separate proceedings to determine liability and damages.  Indeed, in a case where there is any doubt as to when compelling an election would be proper, bifurcation is the most practical means to assure that each party receives a fair opportunity to present their case to the jury without prejudice to the other.”

Third, in footnote 3 of its opinion, the Court noted that the defendant presented alternative arguments in support of its motion to dismiss the survival action.  The Circuit Court did not address the argument that the survival action should be dismissed based on the plaintiff’s designation of expert testimony.  The Court stated that, because the defendant did not assign error to the Circuit Court’s failure to rule on this issue, “we will not address it further in this opinion.”

The first ruling gives support, in the appropriate case, to plaintiffs who wish to present alternative theories of recovery through the trial stage, thus enabling the plaintiffs’ counsel to argue those alternative theories to the jury.  The second ruling gives support to defendants’ counsel who contend, in various contexts, that a bifurcation of the liability and damages issues is needed to avoid or minimize jury confusion.

The third ruling is troubling, because it seems to put the trial attorney in an awkward position.  The Court did not consider the alternative assertion in support of the motion to dismiss the survival action because the defendant did not assign error to the trial court’s failure to rule on this alternative argument.  But if the defendant had assigned error to the trial court’s failure to rule on that issue, the Court undoubtedly would have concluded that it could not consider that assignment of error, because the attorney almost certainly had not objected during the trial to the trial court’s “failure to rule” on that alternative argument.  This statement by the Court seems to require that a trial attorney who asserts alternative grounds for a motion -- and the trial court grants the motion on one ground and does not address the alternative ground -- must ask the trial judge to rule on the alternative ground; and if the trial judge refuses, the attorney must state into the record his objection to the judge’s “failure to rule.”  If this is an accurate interpretation of footnote 3, this arguably places an unwarranted and unreasonable burden on trial attorneys.