Dead Man’s statute corroboration requirements

Where eight consolidated cases present opportunities to apply Virginia’s Dead Man’s statute, the court clarifies the statute’s corroboration requirements.

Overview

Estate of Lohman has been consolidated with Rosenthal/Bavely. The common thread is application of the Dead Man’s statute.

“In Lohman, … Ms. Lohman [the decedent’s personal representative] seeks to exclude certain testimony of her medical providers[.] …

“Specifically, Ms. Lohman wants the Court to exclude conversations Dr. Mehta and Dr. Murakonda say they had with the decedent prior to her death wherein they claim they each informed the decedent of an x-ray showing an opacity on her lung and advised of the need to seek follow-up care.

“Ms. Lohman points to the corroboration requirement of the Dead Man’s Statute and asserts that discovery shows the doctors cannot corroborate their statements. She objects as insufficient the doctors’ proffered corroboration — their notes in the medical chart. The notes indicate the opacity and, in the notes of Dr. Murakonda, the need for a follow-up CT scan.

“However, the notes do not contain any reference that the doctors told the decedent of the opacity and the need for a follow-up scan.

“As to Dr. Rao, Ms. Lohman wants to exclude testimony that the doctor has a pattern of telling patients of a new opacity. She objects to Dr. Rao’s proffered corroboration — an allegedly vague statement in the medical records that she counseled the decedent about test results that do not expressly reference the opacity.

“In turn, … the doctors argue that if the deceased witness could not have testified to a certain statement if alive, she should not be able to effectively introduce the same statement after her death simply because of the hearsay exception within the Dead Man’s Statute.

“In Rosenthal/Bavely, … Mr. Bavely wants to make clear he is relieved of corroborating his own testimony if an interested party testifies on behalf of Mr. Rosenthal’s estate. …

“The parties also want clarity as to what exactly a surviving adverse or interested party must corroborate[.] … The decedent’s estate in Rosenthal/Bavely argues that corroboration is necessary for events that only the survivor and the decedent witnessed unless the decedent’s hearsay statements of the event are admitted.

“Relatedly, the parties in Rosenthal/Bavely want clarity on what can be used to corroborate a survivor’s testimony. The decedent’s estate objects to anything depending upon the survivor’s credibility, such as a memorandum he wrote, even if the writing was years before the dispute.”

Hearsay

“[T]he Dead Man’s Statute … is easy to understand. In a simple case involving a survivor and a decedent who witnessed a single event, the survivor has a tremendous advantage.

“The survivor can testify as to a key fact without easy rebuttal. So, to offset the disadvantage, the Dead Man’s Statute permits the hearsay statements of the decedent to be admitted over the normal evidentiary hearsay rules, and then mandates that the survivor corroborate his or her own testimony. …

“Under the hearsay prong of the Dead Man’s Statute … all statements of the deceased are admissible if relevant. …

“The doctors in Lohman raise two arguments. First, they argue that the Dead Man’s Statute applies only to hearsay. Second, the doctors argue that any hearsay statement admitted must be one the decedent could have offered into evidence if alive. …

“Fatal to the doctor’s [first] argument that the Dead Man’s Statute only affects the hearsay rule is the fact that ‘relevance’ is not a hearsay rule yet is expressly included as the one exception to the Dead Man’s Statute. …

“Second, the doctors argue that any hearsay statement admitted must be one the decedent could have offered into evidence if alive. …

“The doctors try to use the statutory text to bolster their argument that a decedent’s hearsay testimony must be limited to that which the decedent could testify if alive. They highlight the term ‘capable’ in the clause ‘all … declarations by the party so incapable of testifying made while he was capable, relevant to the matter in issue … may be received as evidence’ as an exception other than relevance to the broad hearsay grant.

“They reason that if the decedent tried to give expert testimony on the applicable medical standard of care, she should be deemed ‘incapable’ of doing so because she is not a doctor.

However, the statutory term ‘capable’ in this statute, in proper context, is the physical ability of one to testify live, as opposed to one ‘incapable’ of testifying due to death or disability.”

Corroboration

“[U]nder 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. …

“[T]he parties in Rosenthal/Bavely seek clarity regarding how much of the testimony of the adverse or interested party must be corroborated. The Statute itself simply says that the judgment in favor of the interested or adverse party cannot be ‘founded on his uncorroborated testimony.’ …

“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.’ … (emphasis supplied). …

“Further, and importantly, an adverse or interested party need not corroborate all material points to satisfy the corroboration requirement of the statute. …

“[T]he Dead Man’s Statute corroboration requirement is not a ‘hearsay statement-by-hearsay statement’ corroboration requirement. … An adverse or interested party need only corroborate essential elements of the claim, not all hearsay statements of the decedent. …

“[T]he required corroboration of a surviving adverse or interested party does not have to be in the form of other testimony. Instead, testimony can be corroborated from the evidence and circumstances.” This evidence must come from a source other than the surviving witness.

Special rules

“Corroboration is excused if a survivor testifies for the decedent. … Where a living witness can testify about a transaction on the side of the decedent, the deceased party is no longer at a disadvantage in the case. …

“Corroboration is ‘heightened’ for certain survivors, such as doctors. Where parties to a dispute have a confidential relationship, the surviving adverse or interested party has a heightened corroboration requirement. …

“[T]he heightened requirement for corroboration for confidential relationships means more than a scintilla of evidence.”

Lohman v. Reston Hospital Center, et al., Record No. CL-2017-14850, Sept. 21, 2022. Fairfax County Circuit Court (Oblon). Robert R. Veith, Mihir V. Elchuri, Thomas J. Dillon, III, Andrew Clark, Emily Scott, Edward W. Cameron, Matthew H. Sorensen, Richard G. Cole, Nicholas D. SanFilippo, Daniel C. Masakayan, Timothy C. Bass, J. Brandon Seig, David D. Hudgins, Debra R. Stafford, Steven M. Garver, Deborah E. Mayer, Susan L. Mitchell, Matthew D. Banks for the parties. VLW 022-8-065, 20 pp.