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et al.

September 17, 1999

Record No. 982467







Richard S. Blanton, Judge

Present: All the Justices


In this medical negligence case, we consider
whether the trial court erred in admitting "habit"
evidence from medical personnel to prove that a patient did not
complain of pain on a specific occasion, and that the defendant’s
treatment of the patient conformed to his routine practice.

Jane V. Ligon, administrator of the estate of
Pearl V. Vaughan, filed a wrongful death action in the trial
court against Dr. Girish Purohit and his medical practice,
Southside Cardiology Associates, P.C. (collectively, the
defendant). Ligon alleged, among other things, that the defendant
was negligent in failing to provide a proper diagnosis and
treatment of Vaughan’s heart disease.

The following evidence was presented in a jury
trial. In May 1995, Vaughan experienced chest pains and received
three days of treatment at the Southside Community Hospital
(Southside) in Farmville. Five days after her release, she
returned to Southside’s Cardiac Diagnostic Unit (CDU) as an
outpatient to take a Persantine stress test. In this test, the
drug Persantine is administered to place additional stress on the
patient’s heart so that abnormalities can be detected and

Vaughan’s daughter, Audrey Johnson, took
Vaughan to the hospital for the Persantine stress test and
remained there during the course of the procedure. Under the
standard protocol for this test, Vaughan completed a medical
history form in the CDU and an intravenous "saline
lock" was placed in her arm. Vaughan then went to the
hospital’s Nuclear Medicine Department where she received an
injection of a radioactive medicine. A medical technician took
photographic images, commonly referred to as a "nuclear
scan," of Vaughan’s resting heart.

After three hours, Vaughan returned to the CDU
where another medical technician connected her to vital sign
monitors and obtained various electrocardiograms (EKGs). Dr.
Purohit supervised the injection of the Persantine and the
administration of the stress test. The stress test took 14
minutes to complete. During the stress test, Vaughan experienced
tightness and pain in her chest. At Dr. Purohit’s direction,
Vaughan was given nitroglycerin, and her chest pain stopped.
After Vaughan completed the stress test, the heart monitor and
EKG connections were removed and she returned to the Nuclear
Medicine Department where a technician took a second nuclear scan
of her heart.

Vaughan left the hospital with Johnson and went
to Johnson’s home. That night, Vaughan died in her sleep. All
three medical experts who testified at trial agreed that Vaughan
probably died from an arrhythmia that resulted in cardiac arrest.
One of these three witnesses, Dr. James T. Rittelmeyer, a
cardiologist, stated that Vaughan also had experienced a
"heart attack" during the stress test administered by
Dr. Purohit. The other two medical experts disagreed with that

Johnson testified that as she waited in the CDU
reception area while her mother was undergoing the stress test,
she heard Vaughan call her name. Johnson stated that she went to
the area where the test was being administered and found Vaughan
lying on a gurney, dressed in her own clothes and not connected
to any monitors. Johnson said that Vaughan was crying, trembling,
and complaining that she could not breathe and that she had pain
in her chest and arm.

Johnson testified that Dr. Purohit was standing
nearby, along with two female technicians or nurses. Johnson
stated that when she asked Dr. Purohit whether Vaughan’s
condition was normal, he assured her that it was and said that
her mother would be fine once she went home and rested.

Dr. Purohit testified that he had no
independent recollection of Vaughan’s condition in the CDU.
Debora S. Hurt, the CDU technician who cared for Vaughan, also
had no independent recollection of Vaughan. However, Courtney
Gates, the nuclear technologist who obtained the final nuclear
scan of Vaughan’s heart after the stress test, testified that she
remembered Vaughan. Gates stated that Vaughan complained of
indigestion or "stomach upset" at that time, but that
she never complained of chest pain. At trial, all three medical
experts testified that a violation of the standard of care would
occur if a patient, complaining of chest and arm pain under the
circumstances described by Johnson, were released from the
hospital without further evaluation. Thus, a critical factual
issue in the trial was whether Vaughan complained of chest and
arm pain after completing the stress test.

Over Ligon’s objection, the defendant was
permitted to present evidence of the routine or "habit"
of Dr. Purohit, Hurt, and Gates in responding to other patients
who complained of chest pain after completing stress tests. Dr.
Purohit testified that he had administered one or two stress
tests per day over the last ten years, and that at least a dozen
of those patients had complained of chest pain after completing
the test and changing into their own clothes. He stated that
whenever this occurred, he re-evaluated the patient by obtaining
another EKG and performing a physical examination. Dr. Purohit
testified that he had never failed to re-evaluate a patient who
complained of chest pain on completion of a stress test.

Hurt testified that she had worked as a cardiac
diagnostic technician for ten years. When asked how many times
she had observed patients develop complaints similar to those
described by Johnson, Hurt responded that such complaints had
occurred more than ten times. She testified that when these
complaints were brought to her attention, she reconnected the
patients to an EKG monitor and had them re-evaluated by a

Gates testified that during the 30 years she
had worked as a nuclear technologist, patients had complained of
chest pain "more than ten" times. Gates stated that she
immediately responded to those complaints by requesting
assistance from the cardiac unit or the emergency room.

At the conclusion of the evidence, the jury
returned a verdict in favor of the defendant. The trial court
entered judgment in accordance with the jury’s verdict.

On appeal, Ligon argues that the trial court
erred in admitting the defendant’s "habit" evidence.
Ligon asserts that the challenged testimony permitted the jury to
speculate that because Dr. Purohit, Hurt, and Gates provided
proper medical care to other patients, they provided the same
care to Vaughan. Ligon argues that under our holding in Jackson
v. Chesapeake & Ohio Ry. Co.
, 179 Va. 642, 20 S.E.2d 489
(1942), evidence of a defendant’s habitual conduct is
inadmissible to prove that the defendant acted in conformance
with such conduct on a particular occasion.

In response, the defendant argues that the
witnesses’ testimony concerning their responses to other
patients’ complaints of chest pain was not evidence of general
habit such as that addressed in Jackson, but was evidence
of "specific responses to a specific situation." The
defendant asserts that in a medical negligence action, when a
defendant physician has no memory of a patient, evidence of the
physician’s routine or habit is relevant to establish his conduct
with regard to that particular patient. The defendant further
contends that the challenged testimony was not offered to prove
that the defendant was not negligent, but merely was offered to
show that a particular event, Vaughan’s complaint of chest pain,
did not occur. We disagree with the defendant’s arguments.

Our decisions do not draw a distinction between
"general" and "specific" habit evidence.
Instead, the focus of our analysis has been whether the proffered
evidence is relevant to the issues at trial. See Cherry
v. D.S. Nash Constr. Co.
, 252 Va. 241, 244-45, 475 S.E.2d
794, 796-97 (1996); Spurlin v. Richardson, 203 Va. 984,
989-90, 128 S.E.2d 273, 277-78 (1962); Jackson, 179 Va. at
650, 20 S.E.2d at 492.

The reasoning we articulated in Jackson
is persuasive in resolving the issue before us. There, a
plaintiff brought a negligence action for personal injuries he
sustained when the truck in which he was a passenger collided
with a train. The engineer in charge of the train’s engine
testified that on the day of the accident, as well as on the 6th,
7th, 8th, 9th, 22nd, 23rd, and 24th day of every month, he rang
the crossing bell and gave other crossing signals prior to the
train’s traversing the crossing. The plaintiff attempted to
impeach this testimony with proffered testimony from a witness
who would have testified that on the same days in a month other
than that in which the accident occurred, the crossing bell was
not rung before the train crossed the tracks. 179 Va. at 645-46,
20 S.E.2d at 490.

We held that the trial court did not err in
refusing to allow the proffered testimony. We stated that
evidence of a person’s general habits is not admissible for the
purpose of showing the nature of his conduct on a specific
occasion. Id. at 649, 20 S.E.2d at 492. Such evidence of
habitual conduct is inadmissible because it consists only
of collateral facts, from which no fair inferences can be drawn,
and tends to mislead the jury and to divert its attention from
the issues before the court. See id. at 648, 20
S.E.2d at 491; Cherry, 252 Va. at 244-45, 475 S.E.2d at
796; Spurlin, 203 Va. at 990, 128 S.E.2d at 278.

The reasoning we employed in Jackson was
a departure from our prior decisions in Alexandria &
F.R.R. Co. v. Herndon
, 87 Va. 193, 12 S.E. 289 (1890) and Washington,
A. and Mt. V. Ry. Co v. Trimyer
, 110 Va. 856, 67 S.E. 531
(1910), in which we approved the admission of evidence that a
defendant had acted in an habitually negligent manner prior to
the accident at issue. In Herndon, we held that evidence
of the habitual stopping place of a train at a location where its
rear car had no landing place for exiting passengers was
admissible to prove that the train was stopped, rather than in
motion, at this location when the plaintiff left the rear car and
was injured. 87 Va. at 199, 12 S.E. at 291. In Trimyer, we
approved the trial court’s admission of evidence that the
defendant railroad company, in violation of its alleged duty,
previously had failed to stop its train at the same intersection
where the plaintiff allegedly was injured by the defendant’s
moving train. 110 Va. at 858-59, 67 S.E. at 532.

After Trimyer, however, we repeatedly
have stated that evidence of prior negligent habit is
inadmissible to prove the acts of negligence alleged at trial. See
Cherry, 252 Va. at 244-45, 475 S.E.2d at 796-97; Jackson,
179 Va. at 649, 20 S.E.2d at 492; Southern Ry. Co. v. Rice’s
, 115 Va. 235, 248-49, 78 S.E. 592, 595 (1913).
Moreover, in these negligence cases, we have rejected the
admission of habit evidence offered to prove the issues at trial
for the primary reason that such evidence is collateral to the
proof of those issues.* See id.

In a negligence action, evidence of habitual
conduct is inadmissible to prove conduct at the time of the
incident complained of because such evidence is collateral to the
issues at trial. Thus, the evidence in question before us was
inadmissible because it was collateral to the issues whether this
decedent complained of chest pains after her stress test, whether
the defendant was negligent in treating this patient at the time
of the incident complained of, and whether the alleged acts of
negligence were a proximate cause of the decedent’s death.
See Cherry, 252 Va. at 244, 475 S.E.2d at 796; Jackson,
179 Va. at 648, 20 S.E.2d at 492.

Acceptance of the contrary position urged by
the defendant would result in the admission of irrelevant
evidence in a variety of actions. For example, a defendant in an
automobile negligence action would be permitted to prove that he
obeyed a certain traffic signal at an accident scene by
testifying that he complies with that signal on a daily basis
when driving at that location. We decline to adopt such a rule
because the relevant inquiry in a negligence action is not
whether a defendant has a habit of compliance with the type of
duty at issue, but whether the defendant breached a specific duty
owed to the plaintiff at a particular time.

By our holding in this case, we also decline
the defendant’s request that we follow the decisions of other
jurisdictions that permit evidence of the habitual conduct of
medical personnel for the purpose of proving that the defendant’s
conduct on a specific occasion conformed to their routine
practice. See, e.g., Bloskas v. Murray, 646 P.2d
907, 911 (Colo. 1982); Crawford v. Fayez, 435 S.E.2d 545,
549-50 (N.C.App. 1993). Those decisions represent a departure
from our jurisprudence, and we perceive no benefit from the
admission of such evidence to warrant a reversal or curtailment
of the basic principles articulated in Jackson.

We also disagree with the defendant’s
contention that admission of this type of evidence is necessary
to counter a plaintiff’s expert testimony on the applicable
standard of care, which is based partly on actions taken by other
health care providers under the same circumstances. Both factual
and expert testimony in a medical negligence action must be
relevant to the incident at issue. The testimony of fact
witnesses is relevant to show what actually happened on a
particular occasion. The testimony of expert witnesses relates to
the same specific incident by establishing a standard of care
applicable to the defendant’s actions on that particular occasion
and by assessing whether those actions conformed to the
established standard of care. In contrast, the evidence
improperly admitted by the trial court was relevant only to prove
events that occurred on other occasions.

For these reasons, we will reverse the trial
court’s judgment and remand the case for a new trial in
accordance with the principles expressed in this opinion.

Reversed and remanded.

JUSTICE KINSER, concurring.

I concur in the result reached by the majority
but for different reasons. In prior cases, this Court has not
clearly articulated a distinction between "general" and
"specific" habit evidence, or discussed whether
different rules apply when determining the admissibility of each
type of habit evidence. However, we have, on occasions, upheld
the admissibility of "specific" habit evidence. See
Washington, A. and Mt. V. Ry. Co. v. Trimyer, 110 Va. 856,
67 S.E. 531 (1910); Alexandria & F.R. Co. v. Herndon,
87 Va. 193, 12 S.E. 289 (1890).

The majority states that this Court’s
reasoning in Jackson v. Chesapeake & Ohio Ry. Co., 179
Va. 642, 20 S.E.2d 489 (1942), represented a departure from the
decisions in Trimyer and Herndon. But in Jackson,
we concluded that the facts of that case did "not bring it
within any of the exceptions to the general rule" that
evidence of an individual’s general habits is not admissible
for the purpose of establishing that individual’s conduct on
a specific occasion. Id. at 649, 20 S.E.2d at 492. I
believe this Court’s decisions in Trimyer, Herndon,
Norfolk & W. Ry. Co. v. Thomas, 110 Va. 622, 66 S.E.
817 (1910), and Kimball v. Borden, 95 Va. 203, 28 S.E. 207
(1897), all of which were discussed in Jackson, represent
the "exceptions to the general rule." Jackson,
179 Va. at 649, 20 S.E.2d at 492. Thus, I do not agree that the
decision in Jackson signified a shift from the
Court’s earlier rulings. Rather, Jackson re-stated
the rule regarding "general" habit evidence. Id.
It did not overrule Trimyer or Herndon, nor does
the majority decision today do so.

Additionally, the more recent case of Cherry
v. D.S. Nash Constr. Co.
, 252 Va. 241, 475 S.E.2d 794 (1996),
involved only "general" habit evidence although the
Court did not classify the challenged evidence as
"general" or "specific." Instead, the Court
merely concluded that "Nash Construction’s overall
performance record, as well as the fact that it had not been
cited . . . for safety violations on the job, had no
probative value regarding" what action Nash Construction
took or should have taken on the day of the accident. Id.
at 245, 475 S.E.2d at 797.

Regardless of the status of the
Commonwealth’s jurisprudence regarding "specific"
and "general" habit evidence and the import of the
decision in Jackson, I believe that the trial court erred
by admitting the evidence at issue in this appeal because the
defendants did not establish a proper foundation. According to
the testimony of Dr. Girish Purohit, Debora S. Hurt, and Courtney
Gates, they occasionally had patients who experienced chest pain
after completing all the cardiac tests and changing into their
own clothes. However, Dr. Purohit, Hurt, and Gates admitted that
such occurrences were infrequent. In other words, episodes, like
the one allegedly experienced by Pearl V. Vaughan, were not
numerous or regular events. Thus, I conclude that the defendants
failed to prove a routine practice or procedure regularly
utilized in response to a repeated specific situation from which
an inference of habitual conduct could be drawn.

For these reasons, I respectfully concur.

JUSTICE LACY, dissenting.

Until today, Virginia, like virtually all other
jurisdictions, recognized a distinction between evidence of one’s
general habits and evidence of one’s specific habits and
considered specific habit evidence relevant and admissible under
certain conditions. 1 McCormick on Evidence ? 195 (John
William Strong ed., 4th ed. 1992); 1A Wigmore, Evidence
? 93 (Tillers rev. 1983). Compare Cherry v. D.S.
Nash Construction Co.
, 252 Va. 241, 475 S.E.2d 794 (1996), with
Jackson v. Chesapeake & Ohio Ry. Co., 179 Va. 642, 20
S.E.2d 489 (1942), Graham v. Commonwealth, 127 Va. 808,
103 S.E. 965 (1920), Washington, A. and Mt. V. Ry. Co. v.
, 110 Va. 856, 67 S.E. 531 (1910), and Alexandria
& F.R.R. Co. v. Herndon
, 87 Va. 193, 12 S.E. 289 (1890).

Following existing Virginia precedent, the
trial court in this case determined that the evidence at issue
was specific habit evidence and considered its admissibility on
that basis. In reversing the trial court, the majority recites
the rule applicable to general habit evidence, and applies it to
the facts of this case. Because I believe the trial court
analyzed the evidence correctly and in accordance with our prior
cases in ruling on its admissibility, I respectfully dissent.

Evidence of general habits, such as evidence
that a person generally is a careful driver offered to show that
he did not act negligently at the time in question, regardless of
any probative value it may have, has been held inadmissible per
se. Thus, in Jackson, we said:

[A]ccording to the weight of authority,
evidence of the general habits of a person is not
admissible for the purpose of showing the nature of his
conduct upon a specific occasion. Accordingly, in actions
for negligence the courts generally deny the
admissibility of evidence of the reputation of the
defendant for negligence, his habits of negligence, his
habitual negligent conduct, etc., upon the issue of his
negligence at the time of the injury complained of.

179 Va. at 649, 20 S.E.2d at 492; see also
Cherry, 252 Va. at 244, 475 S.E.2d at 796.

However, this blanket rejection of general
habit evidence has not been extended to evidence of specific
habitual conduct, that is, evidence that a person regularly
reacts to a specific set of circumstances in the same manner. We
concluded long ago that such specific habit evidence is probative
of, and thus relevant to, such person’s actions on a particular
occasion under similar circumstances. "Of the probative
value of a present habit, or custom, as showing the doing on a
specific occasion of the act which is the subject of the habit or
custom, there can be no doubt."
Graham, 127 Va. at 823, 103 S.E. at 570 (emphasis added).
Such evidence is not automatically admissible under the prior
cases decided by this Court, but neither is it automatically
inadmissible under those cases or under the rule recited in Jackson.
Rather, as Jackson pointedly observed, "[t]he
admissibility, as well as the probative value, of this class of
[specific habit] evidence depends in a large measure upon the
circumstances in which it is offered." Jackson, 179
Va. at 647, 20 S.E. at 491.

Thus, this Court has affirmed the admission of
evidence showing that the railroad company’s trains had
habitually stopped at a particular place on arriving at the
station because such evidence "did tend to prove"
whether the train was stopped or in motion at the place plaintiff
was injured. Herndon, 87 Va. at 199, 12 S.E. at 290.
Likewise, testimony that a train did not stop at an intersection
on other prior occasions tended to prove that it did not do so on
the day of the accident in issue, and was thus properly admitted.
Trimyer, 110 Va. at 858-59, 67 S.E. at 532-33.

The evidence at issue in this case was the
habit of recording complaints of chest pains in a patient’s
record and re-evaluating the patient in response to the patient’s
complaint of chest pains following the completion of a stress
test. The appellee argued that the evidence was not evidence of
general habits and was not offered to show a general disposition
toward non-negligent acts. According to the appellee,
"[w]hile the challenged evidence admittedly has a bearing on
the question whether Dr. Purohit was negligent, the primary
purpose for which it was offered was to prove that the event (the
alleged complaints of chest pain after the Persantine Stress Test
had ended) upon which the plaintiff relies as giving rise to the
duty to re-evaluate and hospitalize Mrs. Vaughan did not occur,
. . . ."

The trial court agreed with the appellee,
stating that the evidence was not general habit evidence offered
for the purpose of showing that the defendants "conducted
themselves in a safe and careful manner," but evidence
"of a specific response to a particular factual
situation." Before admitting the evidence, the trial court
further required that the evidence offered meet the test of
regularity, that is, in the words of the trial court, that the
actions were "numerous enough to base an inference of
systematic conduct or . . . regular response to a
repeated specific situation."

The admissibility of evidence is within the
discretion of the trial court. Roll ‘R’ Way Rinks, Inc. v.
, 218 Va. 321, 326, 237 S.E.2d 157, 161 (1977). The
evidence in this case was specific, not general, habit evidence;
it was relevant to and probative of a fact in issue —
whether the patient complained of chest pains following the
stress test; there was no assertion that admission of the
evidence would unduly lengthen the trial or confuse the jury.
There is nothing in this record to support a finding by this
Court that the trial court abused its discretion in admitting
this evidence in this case. Accordingly, I find no basis to
reverse the judgment of the trial court.

In reversing the trial court, the majority
relies heavily on the Jackson case, a negligence action
against a railroad company for injuries suffered when a train hit
a vehicle occupied by the plaintiff at a railroad crossing. The
decision in Jackson was not based on a finding that the
proffered evidence was inadmissible habit evidence, but rather
that the evidence was inadmissible impeachment evidence,
the ground asserted by the plaintiff in his objection to the
trial court’s ruling. 179 Va. at 650-51, 20 S.E.2d at 492-93. As
such, the Court’s discussion of habit evidence in Jackson,
which the majority finds so persuasive, is merely dicta.
Nevertheless, because I believe the majority misinterprets the dicta
in Jackson, a full discussion of the case is warranted.

An issue described by the Court in Jackson
as "vital" to establishing the railroad’s negligence in
that case was whether the railroad crossing signals required by
statute were given on the day of the accident. The statutory
signal requirements were "two sharp sounds of the whistle
and a continuous ringing of the bell, or the whistle sounded
continuously or alternatively with the bell from a point at least
300 yards, and not more than 600 yards, from the crossing." Id.
at 645, 20 S.E.2d at 490. The failure to give a proper signal
constituted negligence per se. Thirty-four
eyewitnesses testified on this issue, the majority of which
testified that the crossing signals were given. Id.

The evidence in dispute was offered by the
plaintiff and consisted of notations made by a person stationed
at a nearby business regarding the crossing signals given on
seven days seven months after the accident. The notations
were that "different crossing signals were given;"
"the whistle was blown on each day mentioned" but that
"the number of blasts varied," and that the bell was
not rung on any of the days. Id. at 646, 20 S.E.2d at 489.
The trial court refused to admit this evidence.

On appeal, the Court in Jackson, as
noted above, acknowledged the rule against the admission of
general habit evidence but also acknowledged that the rule did
not apply to all habit evidence, citing other Virginia cases in
which habit evidence was admitted. Id. at 647, 20 S.E.2d
at 491. The Court in Jackson, like the majority here, did
not specifically classify the proffered evidence as evidence of
general or specific habit. However, the Jackson Court did
not reject the proffered specific evidence under the rule that
evidence of general habits is inadmissible per se
as the majority states. This much is clear from the fact that the
court engaged in a lengthy analysis of the reliability,
relevancy, and prejudicial effect of the proffered evidence,
which analysis would have been unnecessary for application of a per
se rule against admissibility.

Recognizing that proffered specific habit
evidence "may not in fact have sufficient regularity
to make it probable that it would be carried out in every
instance . . . ," and that "[w]hether or
not such sufficient regularity exists must depend largely on the
circumstances of each case," 179 Va. at 650, 20
S.E.2d at 492 (emphasis added)(citing Wigmore), the Court in Jackson
affirmed the trial court’s refusal to admit the plaintiff’s
proffered evidence, reasoning that the evidence offered involved
incidents "too remote in time and too indefinite in
substance to be relevant to the question,
. . . ." Id.

The Court’s conclusion in Jackson that
the proffered habit evidence in that case did not qualify as
admissible specific habit evidence did not represent a departure
from previous cases. The proffered evidence in Jackson
differed significantly in quality from the specific habit
evidence admitted in previous cases. See Trimyer,
110 Va. 856, 67 S.E. 531; Herndon, 87 Va. 193, 12 S.E.
289. The purportedly habitual act at issue in Jackson
— giving the signal crossings in the manner required by
statute — was not a simple, single act. It included
alternative formulas for sounding the signals which had to be
performed at certain distances. The proffered evidence only
established that different crossing signals were given, some of
which may have been in compliance with the statutory
requirements, such as the continuing blast of the signal. Also in
contrast to prior cases, the evidence offered pertained solely to
actions after the accident, rather than prior to the accident,
and consisted of only seven occasions. Under these circumstances,
it is not surprising that the proffered evidence of a specific
habit was determined to be inadmissible. The reasons stated by
the Court in Jackson for rejecting the evidence at issue
in that case reflected the analysis which must be applied by a
trial court each time a party seeks to introduce evidence of a
specific habit.

As indicated above, the trial court in the
instant case engaged in just such an analysis and concluded that
the evidence was relevant and admissible and unlikely to cause
prejudice or undue delay. The majority concludes that this
evidence offered and admitted by the trial court was inadmissible
because it was evidence of "collateral" matters. This
conclusion rests on a legal principle announced by the majority
that, "evidence of habitual conduct is inadmissible because
it consists only of collateral facts, from which no fair
inferences can be drawn, and tends to mislead the jury and to
divert its attention from the issues before the court."

The majority cites three cases for support of
this principle: Jackson, Cherry, 252 Va. at 244-45,
475 S.E.2d at 796; and Spurlin v. Richardson, 203 Va. 984,
990, 128 S.E.2d 273, 278 (1962). However, of these cases only Jackson
involves any discussion of specific habit evidence, and the
referenced passage in each case is nothing more than a recitation
of the unremarkable proposition that irrelevant, collateral
evidence is inadmissible. In fact, all three cases refer to Moore
v. City of Richmond
, 85 Va. 538, 539, 8 S.E. 387, 388 (1888),
as the source of the statement. "It is an elementary rule
that the evidence must be confined to the point in issue, and
hence evidence of collateral facts, from which no fair inferences
may be drawn tending to throw light upon the fact under
investigation, is excluded." Id. Moore did not
involve habit evidence at all, but rather involved evidence
offered by the plaintiff "for the purpose of proving the
defective condition of the sidewalk at the place where the
accident occurred" that another person "on the same
night, fell into the same hole" as plaintiff. Id.
Therefore, I believe the majority has misinterpreted Jackson,
as well as Cherry and Spurlin, as support for a
legal principle that all habit evidence is evidence of collateral
facts. While the legal principle enunciated by the majority may
arguably be valid with regard to general habit evidence, its
applicability to evidence of specific habits must be determined
on a case by case basis.

Of equal concern to me is the majority’s
statement that the disputed evidence in this case was
"collateral to the issue of [the defendants'] conduct and
the decedent’s condition at the time of the incident in
question" and, therefore, was not relevant to "the
issues at trial, namely, whether this decedent complained of
chest pains after her stress test." This conclusion ignores
a crucial factual issue in this case — whether the plaintiff
complained of chest pains following the stress test.

The evidence of the defendant’s habit of
recording chest pain complaints and re-evaluating the patient
whenever a patient complains of chest pain tends to show that
they would have done the same had decedent complained of chest
pain at the time in question. This evidence, combined with the
fact that decedent’s records reveal no chest-pain complaints or
re-evaluation, tends to prove that decedent did not, in fact,
complain of chest pain. The disputed evidence is thus
demonstrably probative of a crucial factual issue in the trial;
it simply is not collateral to "the issues at trial." See
Herndon, 87 Va. at 199, 12 S.E. at 291 ("It is a
settled rule of evidence that, whatever tends to prove the issue,
or constitutes a link in the chain of proof, is relevant and

Finally, the majority’s conclusion that the
evidence at issue is inadmissible is not supported by any
discussion of why no reasonable inferences can be drawn from the
evidence, why the evidence misleads and diverts the attention of
the jury in this case, or how this evidence differs from the
specific habit evidence directly addressed and held admissible in
Trimyer and Herndon, cases which have not been
overruled and which were specifically acknowledged by this Court
in Jackson.

I recognize the majority’s valid concern that
this type of evidence poses the danger of confusing the jury and
causing mini-trials. However, that danger is greater in some
cases than in others and is non-existent in still other cases.
Thus, the trial court must consider this danger, in relation to
the probative value of the proffered evidence, in determining
whether to admit specific habit evidence in any particular case
— the type of determination made daily by trial courts in
ruling on the admission of evidence. Because I believe the trial
court made this determination correctly in this case, I would


*We also note that Graham v.
, 127 Va. 808, 103 S.E. 565 (1920), cited by the
defendant, is inapposite to the present case. There, we held that
since the defendant on trial for murder had asserted a
self-defense claim, alleging that the deceased had used violent,
profane language and advanced toward him with a gun, the
Commonwealth was entitled to introduce rebuttal evidence that the
deceased did not have a habit of swearing. 127 Va. at 824, 103
S.E. at 570. We stated that this evidence was admissible under
the same principle that allows the admission of character
evidence. Id. Thus, our holding in Graham was
limited to the use of a narrow category of rebuttal testimony to
a claim of self-defense in a criminal prosecution, and is
unrelated to the present issue of the admissibility of habit
evidence in a negligence action.


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