‘Dead Man’s Statute’ addressed

In an opinion affecting several cases in active litigation, a circuit court has sought to clarify Va. Code § 8.01-397 — the “Dead Man’s Statute.” 

Virginia is the only state to have such a statute, which provides for the admission of hearsay from a decedent if it is relevant and corroborated. Jurors are permitted to hear evidence the court may later have to strike if it is subsequently determined that it has not been corroborated.

Judge David A. Oblon of the Fairfax Circuit Court issued his decision in response to motions from the various parties seeking to exclude testimony, clarify corroboration requirements and determine the bounds of the statute.

In his ruling, Oblon noted the complexity of the law and that, despite a 2018 decision from the Supreme Court of Virginia, “the lawyers in these several cases — all lawyers with tremendous experience — still disagree on how to apply the statute in practice.”

The decision is Rosenthal/Bavely Cases and Lohman v. Reston Hospital Center, LLC, et al. (VLW 022-8-065).

The cases

The first of the cases before the court involved allegations of medical malpractice. Donna Lee Lohman died after being diagnosed with lung cancer. Her estate claimed that providers at Reston Hospital Center didn’t advise Lohman of the cancer and left it untreated, resulting in her death.

The parties filed cross motions to exclude testimony from medical providers and the decedent.

The plaintiff — Lohman’s personal representative — objected to the doctors’ use of medical records to corroborate testimony about what they told the decedent about her cancer. 

The doctors, meanwhile, sought to block the admission of statements from the decedent, arguing that, if she could not have testified to a particular statement if she was alive, the plaintiff shouldn’t be able to introduce the same statement after Lohman’s death.

The second case was consolidated from seven matters involving Robert Rosenthal, founder and chairman of a car dealership empire. 

Rosenthal’s estate and the president of the company sued each other for breach of contract and improper behavior.  The parties sought clarity about who was an interested or adverse party and how testimony could be corroborated. 

What is ‘capable’?

According to Oblon, the Dead Man’s Statute comes into play in cases involving a survivor and a decedent. Because the survivor has an advantage, the statute permits hearsay statements of the decedent to be admitted, and then requires the survivor to corroborate his or her own testimony.

The doctors in Lohman said the statute applied only to hearsay, pointing to its placement in a section of evidentiary rules limited to hearsay and arguing that the Supreme Court of Virginia had only considered the statute in the hearsay context.

Oblon was unconvinced. He noted a case in which the Supreme Court of Virginia held that the statute superseded a non-hearsay evidentiary rule.

Similarly, the judge wasn’t persuaded by the doctors’ argument that any hearsay statement admitted must be one the decedent would have been “capable” of offering into evidence if she was alive, and the decedent wasn’t “capable” of giving expert testimony on the applicable medical standard of care because she wasn’t a doctor.

“[T]he statutory term ‘capable’ in this statute … is the physical ability of one to testify live, as opposed to one ‘incapable’ of testifying due to death or disability,” Oblon wrote. “There is nothing in the statute related to qualifications of a live and physically able declarant.”

Adverse or interested

Oblon noted that “under the Dead Man’s Statute a judgment cannot be entered for or against the deceased person based on the testimony of either an adverse or interested party, unless the interested or adverse party’s testimony has been corroborated.”

Both cases raised questions about the classification of parties as adverse or interested and how that relates to corroboration.

In Rosenthal, the parties specifically sought clarity about who was an interested party in a case involving over a dozen parties, of which the decedent was just one. Although not all the parties involved were adverse to the decedent, it was possible they were all interested.

The judge concluded that “[a]n ‘interested party’ is not a party of record.” To determine who is an interested party, a court must consider a number of factors, including the property interests at issue, and the party’s liability for debts, costs or reimbursement.

Here, Oblon concluded that the personal representatives for the Lohman and Rosenthal estates were interested parties as well as beneficiaries of the estates, but added there could still be other “interested parties” that were not known to the court. 

Corroboration

The judge next considered what testimony had to be corroborated under the statute. 

“The Statute itself simply says that the judgment in favor of the interested or adverse party cannot be ‘founded on his uncorroborated testimony.’”

Oblon held that “[a] survivor need not corroborate his entire testimony. Rather, ‘testimony is subject to the corroboration requirement if it is offered by an adverse or interested party and if it presents an essential element that, if not corroborated, would be fatal to the adverse party’s case.”

The judge stressed that “an adverse or interested party need not corroborate all material points to satisfy the corroboration requirement of the statute.”

Further, he said there was no “hard and fast rule” about what evidence was sufficient for corroboration, and that “each case must be decided upon its own facts and circumstances.”

Corroboration doesn’t have to be in the form of other testimony, but can rely on circumstantial evidence.

Here Oblon sided with the personal representative in the Lohman case, holding that notes from one of the doctors didn’t alone corroborate her own testimony because they didn’t specifically confirm that she told the decedent about the cancer.

In the Rosenthal case, where one of the parties sought to testify about events and conversations with the decedent to which they were the only witnesses, the judge concluded that corroboration was necessary.

Oblon pointed out two special rules under which Dead Man’s Statute corroboration may be excused or heightened. 

The first occurs when an interested party testifies on behalf of the decedent. In that instance, the survivor is relieved of the corroboration requirement for their own testimony because the deceased party is no longer at a disadvantage in the case. 

Here, the judge held that meant if someone with a pecuniary interest in the case testified on behalf of the Rosenthal estate about an essential element of the case, then the adverse party would be excused from corroborating their own testimony as to that element.

The second rule heightens the corroboration requirement where a surviving adverse or interested party had a confidential relationship with the decedent. 

Oblon concluded that the doctor-patient relationships in Lohman qualified as such a confidential relationship.

‘Accurate analysis’

John Eure, of Johnson Ayers & Matthews in Roanoke, argued about the Dead Man’s Statute before the Virginia Supreme Court in 2018’s Shumate v. Mitchell, a case Oblon cited frequently in his opinion.

Eure represented Mitchell, the personal representative of the estate of a decedent who was liable for an auto accident. The claimant in Shumate unsuccessfully appealed the trial court’s admission of testimony recounting the decedent’s description of the collision.

Eure told Virginia Lawyers Weekly he believed Oblon gave “a very careful, thoughtful, and accurate analysis of the Dead Man’s Statute, the case law interpreting it, and the practical issues that arise in applying this body of law.”

“Quite properly, the judge left most specific rulings for trial, when he can assess the evidence as to who is an ‘interested party’ and the evidence that has been offered as corroboration,” he added.

On the narrow point of his reading of “incapable of testifying,” Eure also agreed with Oblon’s statutory interpretation.