eNotes: Liability – December 2019
December 02, 2019
TT&H lawyer Carrie Hyams elected Judge in Cumberland County, Pennsylvania.
Carrie Hyams, a partner in Thomas, Thomas, & Hafer, LLP’s (“TTH”) Harrisburg office, has been elected Judge in the Cumberland County Court of Common Pleas. TTH’s Chief Executive Partner, Ed Jordan, commented, “We are extremely proud of Carrie’s accomplishment. We will miss her greatly, but our loss is Cumberland County’s gain. She will be a terrific jurist.”
Carrie Hyams joins Judge John McNally as the second TTH alumnus elected to the bench in recent years. Judge McNally sits on the bench for the Dauphin County Court of Common Pleas. Mr. Jordan said, “The presence of TTH alumni on the bench speaks volumes about the quality of our attorneys.”
Carrie received her undergraduate degree from Elizabethtown College and her law degree from Widener University School of Law. Carrie worked at TTH for over 14 years in its medical malpractice and workers’ compensation practice groups. Thomas, Thomas & Hafer, LLP is a regional insurance defense firm with over 80 lawyers in nine offices throughout the Mid-Atlantic region.
SIGNIFICANT CASE SUMMARIES
FEDERAL CASE SUMMARIES
Barnhart v. Travelers Home & Marine Ins. Co.
United States District Court for the Western District of Pennsylvania
Decided: October 28, 2019
The U. S. District Court for the Western District of Pennsylvania holds that, the Pennsylvania Supreme Court’s holding in Gallagher v. GEICO, does not extend to invalidate the “regular use exclusion” or to overturn Williams v. GEICO Gov’t Emples. Ins. Co. as controlling precedent. Plaintiff’s argument, against enforceability of the “regular use exclusion,” was not supported as a matter of law.
On July 15, 2015, Plaintiff Barnhart was injured while a passenger on a motorcycle operated by her husband. Mr. Barnhart owned the motorcycle and insured it through Progressive. Plaintiff recovered the liability limits against the tortfeasor’s liability policy and alleges that her injuries and damages exceeded the liability limits of that policy.
Plaintiff submitted a UIM claim under her Travelers policy which covered two automobiles. On March 15, 2019, Travelers denied Barnhart’s claim for UIM based upon the “regular use exclusion” contained within the Plaintiff’s policy. The Travelers’ policy excludes UIM Coverage for bodily injury as follows:[Travelers does] not provide Uninsured Motorists Coverage or Underinsured Motorists Coverage for “bodily injury” sustained:
1. By you while “occupying” or when struck by, any motor vehicle you own or that is furnished or available for your regular use which is not insured for this coverage under this policy. This includes a trailer of any type used with that vehicle.
Defendant filed a Motion to Dismiss citing to the Williams case as controlling precedent that the regular use exclusion was valid. Plaintiff argued that the “regular use exclusion” is unenforceable pursuant to the Pennsylvania Supreme Court’s recent ruling in Gallagher.
The Court held that the Pennsylvania Supreme Court’s decision in Gallagher did not invalidate the regular use exclusion as the Gallagher case is distinguishable. In the instant matter, Plaintiff was seeking UIM coverage for her injuries from a regularly used vehicle for which she paid no additional UM/UIM premiums to the Defendant, and Defendant had no notice that its insured would be operating or occupying a motorcycle. In addition, while Gallagher is alleged to have overturned a line of decisions concerning the validity of the household exclusion, the Pennsylvania Supreme Court did not overturn Williams or any other line of regular use exclusion cases. Therefore, the Gallagher Court’s holding does not extend to invalidate the “regular use exclusion” or to overturn Williams as the controlling precedent. The Defendant’s Motion to Dismiss was granted.
Questions about this case can be directed to Christopher Gallagher, at (215) 564-2928 or email@example.com.
Yarweh v. Greyhound Lines, LLC
United States District Court for the Eastern District of Pennsylvania
2019 U.S. Dist. LEXIS 152620
Decided: September 3, 2019
Court grants Defendant’s Motion for summary judgment, finding that the Plaintiff cannot create an issue of fact with his own conflicting statements of how the accident occurred.
Plaintiff fell while walking down the steps of a Greyhound bus. It had been raining that day, and Plaintiff noticed that the aisle of the bus was wet as he was walking towards the steps. He gave several different accounts as to the condition of the steps throughout the case. In a recorded statement, he stated that he fell because the steps were wet. During his deposition, he testified that as he was walking towards the steps, he noticed water on the ground, so he picked his daughter up so that she would not fall, and then he fell as he took the first step. Later in his deposition, he testified that he could not recall whether he saw the steps before he fell. However, he ultimately admitted that he was able to see the steps before he fell. His medical records reflected that he believed he missed a step, causing him to fall.
Defendant moved for summary judgment, arguing that Plaintiff had provided several different accounts including that he did not see the steps prior to his fall. Defendant further argued that the circumstantial evidence regarding the wet steps was not sufficient to outweigh any other possible cause of Plaintiff’s fall, such as the fact that he was carrying his daughter and possibly a bag. Lastly, Defendant argued that even if the circumstantial evidence of wet steps was accepted, wet steps during a rainstorm do not establish negligence, and Plaintiff, therefore, failed to prove that Defendant breached any duty.
The Court granted Defendant’s Motion for summary judgment, finding that Plaintiff cannot create a genuine issue of fact simply by contradicting his own statements without explaining the contradiction or attempting to resolve the disparity. The Court further held that the Plaintiff failed to establish causation through circumstantial evidence or otherwise. Finally, the Court held that Plaintiff failed to establish a breach of duty by Defendant, as the record was devoid of any evidence to show the existence of specific protocols or policies that Defendant purportedly failed to follow.
Questions about this case can be directed to Jillian Denicola, at (570) 820-0240 or firstname.lastname@example.org.
PENNSYLVANIA CASE SUMMARIES
Sayles v. Allstate
Pennsylvania Supreme Court
No. 58 MAP 2018
Decided: November 20, 2019
Supreme Court rejects practice of PIP insurers compelling IMEs based upon policy requirements and holds that insurers must follow statutory mandate.
This case concerns whether insurance policy provisions directing an insured seeking first-party medical benefits to submit to an independent medical exam whenever the insurer reasonably requires, and with a doctor selected by the insurer, conflicts with 75 Pa.C.S. § 1796(a) of the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”). Section 1796(a) of the MVFRL states that “[w]henever the mental or physical condition of a person is material to any claim for medical, income loss or catastrophic loss benefits, a court of competent jurisdiction . . . may order the person to submit to a mental or physical examination by a physician. The order may only be made upon motion for good cause shown. The order shall give the person to be examined adequate notice of the time and date of the examination and shall state the manner, conditions and scope of the examination and the physician by whom it is to be performed. If a person fails to comply with an order to be examined, the court or the administrator may order that the person be denied benefits until compliance.” 75 Pa.C.S. § 1796(a).
The two insurers involved in the consolidated appeals each had scheduled insured’s for medical examinations pursuant to policy provisions directing insureds to attend such procedures as often as the insurers reasonably require but without first petitioning for a court order based upon good cause. The insurers’ position was that such an order was not mandated by statute and that the policy’s “reasonably require” language did not violate the MVFRL. Both insurance companies discontinued payment of benefits and the insureds brought suit contending that the process the insurers followed violated the MVFRL.
The Court held that Section 1796(a) and the policy provisions conflict to the extent that an insurer’s contractual language purports to allow it to unilaterally schedule an IME with a physician of its choice without consent, without a court order and with no limits in scope or conduct. Given such a conflict, the statute controls.
Accordingly, insurance companies must either obtain an agreement from the claimant or utilize the procedure outlined in 75 Pa.C.S. § 1796(a) when seeking an IME, i.e., a motion must be filed with a court of competent jurisdiction showing good cause for the examination. In the order for the examination, the court will designate the doctor who will perform the IME and set the manner, conditions, and scope of the examination. Presumably, these issues will be decided after weighing the respective parties’ submissions. If the claimant fails to comply with a duly entered order, it is the duty of the court to suspend or deny benefits.
Yanakos v. UPMC
No. 10 WAP 2018
Pennsylvania Supreme Court
Decided: October 31, 2019
Pennsylvania Supreme Court strikes down MCARE’s seven-year statute of repose as violative of the Pennsylvania Constitution’s guarantee of open access to the courts.
In September 2003, Christopher Yanakos volunteered to donate a lobe of his liver to his mother who suffered from a genetic condition called Alpha-1 Antitrypsin Deficiency (AATD). Mr. Yanakos underwent various pre-surgical tests, one of which demonstrated that his liver was not properly functioning. According to the Yanakoses, they were unaware of the test results until June of 2014, when they each began to suffer from advanced liver disease.
Plaintiffs filed suit against UPMC and two physicians in December of 2015 alleging that testing demonstrated that Christopher Yanakos had liver disease which should have disqualified him as a donor. The lawsuit maintained a claim for professional negligence and lack of informed consent.
In Answer to the Yanakoses’ Complaint, Defendants raised the affirmative defense that the statute of repose in the Medical Care and Reduction Error (MCARE) Act barred the Yanakoses’ claim. See 40 P.S. § 1303.513(a) (providing that “no cause of action asserting a medical professional liability claim may be commenced after seven years from the date of the alleged tort or breach of contract”). Defendants filed a Motion for Judgment on the Pleadings based on the MCARE Act’s repose period. The Trial Court granted the motion citing the plain language of the MCARE Act and noting that the Yanakoses’ claim did not fall within any exception to the Act.
The Pennsylvania Supreme Court held that the MCARE Act’s statute of repose was not substantially or closely related to an important government interest. The Court reasoned that MCARE’s statute of repose conflicted with the “Open Courts” provision in the Pennsylvania Constitution, which guarantees that “all courts shall be open; and every man for any injury done to him in his lands, goods, person or reputation shall remedy due course of law.” Because the statute potentially impaired this “important” constitutional right, it had to pass the intermediate scrutiny standard. Under this standard, a statute must be “substantially related to achieving an important governmental interest.” Ultimately, following a lengthy analysis, the Court held that MCARE’s statute of repose did not pass this constitutional standard. In sum, the Court reasoned that the seven-year statute of repose, with exceptions for foreign objects cases and minors, is not substantially related to controlling the cost of malpractice insurance rates by providing actuarial predictability to insurer.
Questions about this case can be directed to John Lucy, at (717) 441-7067 or email@example.com.
Farese v. Robinson
Pennsylvania Superior Court
No. 145 EDA 2018
Decided: November 8, 2019
Superior Court holds cost of future medical bills are not reduced pursuant to the cost containment provision of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1797 (“Act 6”).
The case arose out a rear-end motor vehicle accident. The case proceeded to trial and a jury entered a verdict in excess of $2.5 million dollars in favor of the Plaintiff, including $900,000 for future medical bills. With respect to Plaintiff’s claims for future medical expenses, the defense asserted that a new trial on damages was necessary given that Plaintiffs introduced evidence concerning future medical costs without reducing these costs in accordance with the cost containment provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”), or Act 6.
After review, the Court found that the caps placed by 75 Pa.C.S. § 1797, on the amount a person or institution providing treatment to an injured person for an injury covered by insurance may charge for such treatment, do not apply to future medical expenses.
Future medical expenses need not be reduced pursuant to 75 Pa.C.S. § 1797.
Questions about this case can be directed to Jolee Bovender, at (717) 255-7626 or firstname.lastname@example.org.
Burrell v. Streamlight, Inc.
Pennsylvania Superior Court
2019 Pa. Super. 335
Decided: November 7, 2019
Entry of summary judgement in favor of Defendant was upheld where Plaintiff qualified as a borrowed servant and Defendant was therefore entitled to immunity under the Workers’ Compensation Act.
Plaintiff` Burrell was placed by Aerotek, a recruiting agency, as a temporary worker with Streamlight, a flashlight manufacturer in Eagleville, PA. A Personnel Agreement between Aerotek and Streamlight specified that all work performed by individuals placed with Streamlight, by Aerotek, was to be performed at Streamlight’s premises, under the supervision of Streamlight. Notwithstanding said provision, the agreement directed that all such “Personnel” were employees of Aerotek and not of Streamlight and would be paid solely by Aerotek.
Mr. Burrell was interviewed by Streamlight and was offered a position, directly by Streamlight. He worked under the supervision of Streamlight employees, who explained to him what his duties would be and answered questions he had regarding his work, which consisted primarily of assembling flashlights. Streamlight determined what hours Mr. Burrell would work, and he was directed to contact his Streamlight supervisors if he expected to miss work. Mr. Burrell sustained injuries as a result of a slip and fall on ice while disposing of trash, in the course of his work day with Streamlight. Subsequent to sustaining those injuries, he applied for and received workers’ compensation benefits from Aerotek’s insurer. He then brought suit against Streamlight. Summary judgment was entered in favor of Streamlight on the basis that, because Mr. Burrrell qualified as a “borrowed servant,” it was immune under the Workers’ Compensation Act. Mr. Burrell appealed, conceding that Streamlight would be entitled to immunity, had he been injured in the course of assembling flashlights, but argued that because he was not hired for the purpose of taking out the trash, he was not a Streamlight employee for said purpose.
The Superior Court rejected Mr. Burrell’s argument, noting that he had failed to cite authority, showing that “the ‘borrowed servant’ doctrine is to be selectively applied depending on the type of work being performed by the employee at the time of his injury,” and holding that “the Workers’ Compensation Act applies to injuries sustained during work hours at the employer’s premises, even if the employee was performing no work at the time. The Court held further that the Personnel Agreement, which stipulated that Mr. Burrell was an employee of Aerotek, was insufficient to show that he was not, in fact, an employee of Streamlight. That finding was made on the basis that the test to be applied when attempting to make such a determination is “whether Defendant had the right to direct and control Plaintiff’s work and the manner of its performance, not the nomenclature used by the parties.” On these bases, the Superior Court affirmed the judgment.
Questions about this case can be directed to Sam Dunlop, at (412) 926-1432 or email@example.com.
Phillips v. Triple G. Farms, Inc.
Pennsylvania Superior Court
514 MDA 2019 (unpublished)
Decided: October 22, 2019
Dismissal was appropriate where Plaintiff’s counsel did not take affirmative steps to ensure writ was timely served following expiration of statute of limitations.
Plaintiff was struck by a golf ball while at Defendants’ golf course on May 8, 2015. Shortly thereafter, on May 21, 2015, Plaintiff’s counsel sent a letter to the Defendants, advising them to communicate with their insurance carrier regarding his client’s May 8, 2015 injury. Defendant’s insurer sent a letter of acknowledgement to Plaintiff’s counsel. Prior to the expiration of the statute of limitations, on April 27, 2017, Plaintiff filed a writ of summons and contends that he requested the writ to be forwarded to the sheriff for service. The statute of limitations expired on May 8, 2017. There was no additional docket activity until December 4, 2017 when Plaintiff filed a praecipe to reissue writ of summons. The sheriff filed a return of service on December 27, 2018. Following the filing of Plaintiff’s Complaint, Defendants filed preliminary objections on the basis that the Complaint were untimely served. The Trial Court sustained Defendants’ preliminary objections and dismissed Plaintiff’s Complaint with prejudice. Plaintiff appealed the Trial Court’s dismissal and argued that he made a good faith effort to serve the Defendants because he did not “demonstrate intent to stall the judicial machinery.”
The Superior Court, relying on the Pennsylvania Supreme Court cases of McCreesh v. City of Phila. and Lamp v. Heyman, affirmed the Trial Court’s dismissal. The Superior Court noted that the burden is on Plaintiff to make a “good faith” effort to effectuate service. The Court also noted that simple neglect from the plaintiff in ensuring proper service may be sufficient to establish that plaintiff did not make a “good faith” effort. Referencing Pa.R.C.P. No. 405, which requires the sheriff to file a return of service or of no-service, the Court noted that the plaintiff should have made follow up attempts with the sheriff after not receiving a return of service or no-service after 30 days. Instead, the plaintiff waited seven (7) months to reissue the writ and did not provide any explanation for the lapse in time.
Questions about this case can be directed to Brook Dirlam, at (412) 926-1438 or firstname.lastname@example.org.
Meyers et al v. Certified Guar. Co.
Pennsylvania Superior Court
No. 2019 Pa. Super. 316
Decided: October 18, 2019
Claims for defamation and false light arising out of posts on comic book on-line message board enough to avoid summary judgment.
Plaintiffs, who professionally restored comic books by color touch, piece replacement, tear seals, cleaning and replacing staple, re-glossing and cover cleaning, brought suit over alleged disparaging statements posted on a comic book on-line message board by Defendants. Defendants CGC, and its owner, grade and certify comic books by overall condition, quality of restoration, and quantity of restoration work, graded much of Plaintiffs’ work until a disagreement arose between the parties over CGC’s low grades for Plaintiffs’ work on “Batman #1” and “Action Comics #7. Thereafter, Plaintiffs turned to a competitor grader of CGC and an on-line debate on an on-line message board owned by CGC ensued concerning why CGC stopped accepting Plaintiffs’ work.
Most significant, numerous “posters” remarked that Plaintiffs were destroying the value of the comic books they restored, and were doing “re-creation” rather than “restoration” of original works. “Re-creation” in comic book restoration is often synonymous with a “fake” or a “counterfeit.” The post then generated dozens of lengthy comments on several threads, many of which were unfavorable to Plaintiffs and which Plaintiffs assert casted them in a false light. In addition, CGC allegedly made oral statements about Plaintiffs to third parties that were also alleged to defame Plaintiffs. In an attempt to rectify the negative comments, CGC posted complimentary statements about Plaintiffs. Despite the attempt, rumors allegedly continued to spread about the reasons for the falling out between Plaintiffs and CGC. The kerfuffle continued during a comic book convention in Chicago.
The Lower Court granted Defendants’ motion for summary judgment, in part, because the statements were based upon proven facts “not capable of defamatory meaning” or not published to a third party, and Plaintiffs failed to prove “reputational harm,” a necessary element of defamation. Plaintiffs appealed.
The Superior Court reversed on the main claims for defamation and false light. The Court discussed the differences between what can be determined to be an “opinion” versus a true “fact.” Although initially this is a question of law for the court, once a court determines that the statement can be construed as potentially defamatory; the jury then resolves whether the plaintiffs can prove the elements of defamation and whether the defendants can prove the truth of the statements. Accordingly, a jury should resolve the genuine questions of facts presented here.
Questions about this case can be directed to Joe Holko, at (610) 332-7005 or email@example.com.
MARYLAND CASE SUMMARY
Choudhry v. Fowlkes
Maryland Court of Special Appeals
September Term, 2017, No. 1148
Decided: November 1, 2019
Plaintiffs may recover for loss of household services in a wrongful death action by proving (1) the market value of the services; (2) a reasonable expectation that the services would be performed; and (3) the expected duration of the services.
Dr. Choudhry was found liable in a wrongful death action for the death of twenty-two year old Yenita Owens. Owens’ mother, Plaintiff Fowlkes, was awarded $500,000 in economic damages for the loss of her daughter’s services to their home. At trial, Ms. Fowlkes testified that she had lived with her daughter and expected to continue to live with her daughter forever. Further, her daughter had completed about two hours of household chores per day and drove Ms. Fowlkes throughout the area. At the conclusion of the Plaintiff’s case, Defendant moved for judgment pursuant to Maryland Rule 2-519 arguing that the Plaintiff had presented insufficient evidence for her economic damages claim for the loss of her daughter’s household services. The Trial Court denied the Defendant’s motion and permitted the issue to go before the jury.
Specifically during her testimony in support of her claim, Ms. Fowlkes generally identified the household services her daughter had provided. The services included acts like cleaning, washing, vacuuming, and driving Ms. Fowlkes to run errands. As to proving the value of these services, Ms. Fowlkes attempted three strategies. First, she attempted to admit an expert report in which an expert had calculated the value of Ms. Owens’ services. This report was excluded at trial due to a discovery violation. Second, Ms. Fowlkes asked the trial court to take judicial notice of Maryland’s minimum wage. The Trial Court declined. Third, Ms. Fowlkes argued that the jury could, without more, assign a value to the household services. Ms. Fowlkes failed to provide testimony as to the past duration of her daughter’s services or any evidence to support that her daughter was going to continue to provide these services forever.
The Court of Special Appeals held that household services similar to the ones Owens provided for her mother are recoverable as a pecuniary loss. However, the Plaintiff here presented insufficient evidence to submit her damages claim to the jury. The Court developed a three-part rule for when a beneficiary may recover for loss of household services in a wrongful death action. The rule states that the beneficiary must: (1) identify the market value of the domestic services provided; (2) show that the decedent was reasonably expected to provide the identified domestic services, typically by evidence that the decedent was regularly providing those services in the past; and (3) present some evidence showing the duration that the beneficiary expected the decedent’s services to last. In this case, the Court of Special Appeals determined that the Plaintiff had presented some evidence of the first part of the test, failed to present some evidence of the third part of the test, and declined to determine whether there was sufficient evidence presented for the second part of the test. Due to the failure to prove the third part of the test, Court of Special Appeals reversed the jury’s award for economic damages.
Questions about this case can be directed to Lauren Mistretta Upton, at (410) 653-0460 or firstname.lastname@example.org.
DC CASE SUMMARY
Capitol Servs. Mgmt, Inc. v. Vesta Corp.
United States Court of Appeals for the District of Columbia Circuit
Decided: August 13, 2019
D.C. Circuit reverses dismissal on statute of limitations grounds and holds that question of inquiry notice is not appropriately decided by a preliminary motion unless the claim is conclusively time-barred on the face of the Complaint.
In 2006, Park Southern acquired an apartment building from the District of Columbia under a Deed of Trust, which allowed the District to resume control of the Property if Park Southern defaulted. Park Southern contracted with Vesta to manage the Property but terminated the contract in 2014. Park Southern then contracted with Capitol Services to replace Vesta. Shortly after Park Southern contracted with Capitol Services, District officials began considering a takeover of the Property under the terms of the Deed, and Milton Bailey, a District employee, emailed the Mayor’s Chief of Staff to suggest issuing a default notice and initiating foreclosure proceedings. Bailey also spoke with Vesta regarding Vesta’s intent to continue managing the Property. Vesta and District officials exchanged private emails and held several conference calls regarding Vesta’s interests and “management issues” with the Property.
Thereafter, On May 2, 2014, the District took over the property and entered into an “emergency contract” with Vesta to resume management services the following day without notice to Capitol Services. Capitol Services then sued the District in D.C. Superior Court in July 2014 and filed an amended complaint in October 2014 asserting claims for tortious interference with contract and with business opportunity. In July 2016, Capitol Services deposed Bailey, whose testimony Capitol Services contends revealed evidence of Vesta’s tortious interference. In May 2017, the Superior Court entered judgment for the District based on the District’s sovereign immunity. On August 28, 2017, Capitol Services sued Vesta in the U.S. District Court for the District of Columbia. Vesta moved to dismiss the case on statute of limitations grounds. Capitol Services argued that the District’s discovery rule tolled the statute of limitations until Bailey’s deposition in July 2016. The District Court dismissed the case and Capitol Services appealed.
The D.C. Circuit reversed and remanded for further proceedings, holding that the issue of inquiry notice was a factual question not appropriate for a Motion to Dismiss because the complaint was not conclusively time-barred on its face. The Court found that both parties were incorrect concerning when Capitol Services had inquiry notice of its claims against Vesta, and that Capitol Services was on inquiry notice sometime in the three months between July 2014, when it filed its initial lawsuit against the District, and October 2014, when it filed its amended complaint specifically referencing wrongdoing on Vesta’s part. Regardless, the factual determination should not have been made at the motion to dismiss stage. The opinion is also notable for its discussion of the “some evidence of wrongdoing” test and the “all elements” test, both of which have been applied by the D.C. Court of Appeals to determine when a party has inquiry notice of a claim under the discovery rule. Here, the Complaint would have been timely under either test, but the Court cautioned that inquiry notice “does not wait until a plaintiff has actually assembled the evidence in deposition form.”
Questions about this case can be directed to Peter Biberstein, at (202) 945-9506 or email@example.com.
VIRGINIA CASE SUMMARY
Spruill v. Garcia
Virginia Supreme Court
2019 Va. LEXIS 146; 2019 WL 5792908
Decided: November 7, 2019
It was error to admit medical records; however, the error was harmless and so the Plaintiff’s verdict for $0 was upheld.
Plaintiff was a passenger in a vehicle involved in an accident. Defendant was the operator of the other vehicle. Liability was disputed. The police officer described the vehicle damage as minimal, which was confirmed by photographs. Defendant and Plaintiff’s driver described the impact as relatively minor. Plaintiff did not report injuries at the scene, but did go to the emergency room later that night. During trial, Plaintiff admitted that she had experienced back problems, including numbness in her feet, prior to the accident, and had received a disability rating for these prior back problems.
At the conclusion of all the evidence, Defendant sought to introduce records from the prior back treatment by affirmation. The affirmation was not sworn to under oath or the penalty of perjury, and Plaintiff objected on these grounds. The Trial Court admitted the records, allowing them to be used as substantive evidence. The jury returned a verdict in favor of Plaintiff on liability and awarded $0 in damages. Plaintiff appealed, arguing that the medical records were improperly admitted.
The Virginia Supreme Court agreed that the medical records should not have been admitted into evidence for two reasons. First, because the statement was not under oath, it failed to satisfy the statutory authentication requirements. Second, the records lacked the requisite foundation to satisfy the business records exception to the hearsay rule. However, the error in admitting the records was harmless because every page of the admitted medical records contained information that came into evidence either through Plaintiff or her expert, or had only a slight effect on the verdict. Despite the evidentiary errors made by the Court, it plainly appeared from the record and the evidence given that the parties had a fair trial on the merits and substantial justice had been reached. Therefore, the verdict was affirmed.
Questions about this case can be directed to Lacey Conn, at (202) 945-9502 or firstname.lastname@example.org.