SIGNIFICANT CASE SUMMARIES
Virginia Case Summary
Lee v. Manson
2025 Va. App. LEXIS 468
Decided: August 12, 2025
Trial Court’s erroneous instruction invited jury to improperly equate a particular habit with proof of compliance with the standard of care.
Background
Plaintiff alleged that Defendants negligently performed her spinal surgery. She alleged that this negligence caused a tongue laceration. Her surgery involved electrical nerve stimulation, which can cause a patient to bite down involuntarily. As such, doctors typically place bite blocks in the patient’s mouth as a precaution to avoid oral lacerations.
At trial, Defendant testified that while he did not specifically recall Lee’s surgery, he had performed hundreds of similar procedures and had a routine practice of supervising resident physicians in placing bite blocks immediately after intubation. He explained that after placement, he would briefly check the position of the bite blocks using his fingers, a procedure he testified he performed consistently in every case. Lee’s experts challenged this testimony. They argued that Dr. Manson failed to properly place, monitor, or check the bite blocks, and that the nature of her injury indicated a prolonged period of grinding that could have been prevented by more attentive monitoring. The defense experts countered that bite blocks can shift during surgery without negligence, and that mid-surgery checks are often difficult or dangerous.
In what would prove to be a key issue on appeal, the Trial Court gave a jury instruction on habit evidence. The instruction told jurors that Defendant’s habitual practices were “relevant to prove” that he acted in conformity with those habits. Plaintiff argued that this instruction was confusing, misleading, and overly emphasized the habit evidence. Plaintiff argued that this may have led jurors to incorrectly equate habit with compliance with the standard of care during her surgery. The jury returned a defense verdict. Plaintiff appealed.
Holding
On appeal, the Virginia Court of Appeals recognized that habit evidence is generally admissible under Virginia Code § 8.01-397.1, yet it emphasized that admissibility does not guarantee credibility, and the jury must remain free to accept or reject the evidence. The Court found that the instruction – stating habit evidence is “relevant to prove” conformity – could mislead jurors into giving the evidence undue weight, leading them to find that Defendant complied with the standard of care during Plaintiff’s surgery even though he lacked a specific recollection of Plaintiff’s surgery. The Court also noted that while other instructions told the jury they were the judges of credibility, the habit instruction directly undermined this guidance.
Defendant’s defense hinged upon habit evidence. The Court of Appeals held that the confusing and misleading instruction likely influenced the jury’s verdict. By injecting admissibility concepts from the habit evidence statute into a factfinding instruction, the erroneous instruction invited significant confusion as to the weight of the habit testimony. Whether habit evidence is admissible is not the same as its credibility. The confusing instruction stating that Defendant’s habits were “relevant to prove” that he acted in conformity with his habit invited the jury to improperly equate a particular habit with proof of compliance with the standard of care in a particular case. This was reversible error and, accordingly, the Court reversed the Trial Court’s judgment and remanded the case for a new trial.
Questions about this case can be directed to Lily Smith at (571) 470-1906 or lsmith@tthlaw.com.