Supreme Court tosses $1.6M jury verdict after jury instruction wrongly refused

The Supreme Court of Virginia has reversed a $1.6 million plaintiff’s verdict after finding error in the trial court’s refusal to give the jury an instruction proffered by the defendants regarding alternative causes of a fall that injured the plaintiff.

Justice Thomas P. Mann said the trial court’s failure to issue the jury instruction — and the Court of Appeals’ decision not to rule on the matter — was reversible error.

“During the jury instruction phase of trial, counsel is not required to supply the trial court with specific facts in support of proffered instructions when the trial court is already aware of a party’s legal position and the applicable facts in evidence,” the justice wrote.

Mann reversed the matter and remanded for retrial.

The case is Emergency Physicians of Tidewater, PLC v. Hanger (VLW 024-6-011).

Hanger’s attorneys, including Richard Shapiro of Shapiro, Washburn & Sharp, told Virginia Lawyers Weekly they were disappointed in the decision given that the appeals court ruled in Hanger’s favor on all other substantive issues the defendants raised.

“The Supreme Court accepted the appeal solely as to this single jury instruction and, even though we argued this instruction was repetitive and redundant of other proximate cause instructions also given, the court did not agree,” Shapiro said.

He was optimistic that another jury will award Hanger substantial damages as it was uncontested that she suffered traumatic brain injuries.

“The effect of today’s ruling will be to delay the ultimate adjudication of her claims; but those claims aren’t going away, and this ruling doesn’t diminish them,” Shapiro said.

C. Thea Pitzen of Goodman Allen Donnelly, who represented the defendants, shared that they were pleased with the court’s decision.

Affirmed judgment

Patricia Hanger was treated for abdominal pain and nausea at Sentara Leigh Hospital. Dr. Allison L. Raines of Emergency Physicians of Tidewater ordered tests that showed Hanger had low blood sodium, a condition known as hyponatremia.

Hanger disputed whether Raines informed her of the hyponatremia diagnosis. Rather than address the condition during a follow-up with another Sentara doctor two months later, Hanger complained of depression and anxiety; she was prescribed Celexa.

Within a week of her follow-up visit, Hanger’s husband found her unresponsive sitting on the floor and leaning against the wall of their kitchen. A wound bled over Hanger’s open eyes; three blood stains were visible nearby.

Hanger’s husband saw nothing that could have caused her to fall. He later testified he didn’t know of Hanger ever fainting, falling, passing out or having a seizure.

After the fall, Sentara Norfolk General Hospital treated Hanger for hyponatremia and a doctor opined that she suffered a traumatic brain injury, or TBI.

In her medical malpractice action against Raines and Emergency Physicians of Tidewater, Hanger alleged that their failure to treat her hyponatremia caused her to have a seizure, fall, strike her head and suffer TBI.

During the trial, the defendants proffered Instruction D, which stated that Hanger can’t recover if the jury was unable to determine which of two causes resulted in her injuries. The defendants argued there were plenty of potential causes that had nothing to do with Raines’ actions.

Hanger objected that Instruction D wasn’t the law. The trial court found that it “may be the law, but it’s not the law applicable in this context” and refused to give it to the jury.

The jury awarded Hanger $1.6 million, which the Court of Appeals of Virginia affirmed in an unpublished opinion.

Although the court found that Instruction D articulated the correct law, Judge Clifford L. Athey Jr. said the only question on appeal was the sufficiency of evidence showing other causes. The court found that the defendants had waived both their argument that the injury was caused by a mechanical trip-and-fall by raising it first on appeal, as well as their argument in support of Instruction D.

The defendants appealed.

Preserved argument

“The Court of Appeals ruling is premised on the idea that the proponent of a jury instruction must argue the specific grounds and relevant facts for the instruction at the time it is proffered in order to preserve the challenge for an appeal,” Mann wrote. “That is not so.”

The justice cited Commonwealth v. Cary, which held that “‘[w]hen a trial court refuses to give an instruction proffered by a party that is a correct statement of law and which is supported by adequate evidence in the record, this action, without more, is sufficient to preserve for appeal the issue of whether the trial court erred in refusing the instruction.’”

The Cary court didn’t require the proponent of an instruction to “‘expressly articulate’ the evidentiary basis for the instruction because the trial court has already heard the evidence and can evaluate its application to the instruction.

Mann said that, while Cary is applicable to criminal cases, its logic applies in this context, too.

Looking to Brown v. Commonwealth, the justice said the court “has emphasized in prior holdings concerning preservation of arguments that, so long as ‘a trial court is aware of a litigant’s legal position and the litigant did not expressly waive such arguments, the arguments remain preserved for appeal.’”

Mann said that, during the jury instruction phase, counsel wasn’t required to provide the trial court with specific facts in support of proffered instructions when the court was already aware of a party’s legal position and the relevant facts in evidence.

Here, the appellants’ objection to the trial court’s refusal to issue Instruction D was preserved. All parties admitted evidence as to their theories and the record demonstrated the trial court’s awareness of all legal arguments made and the supporting evidence.

That alone was sufficient to preserve the issue for appeal, but Mann added that the appellants adequately briefed the matter during the appellate process.

Instruction D

Here, the appellants’ evidence challenging Hanger’s theory of causation was properly before the jury.

“Not only was Instruction D a correct statement of law, as noted by the trial court in refusing the proffered instruction, but it was applicable to the facts presented during trial,” the justice wrote. “There was more than a scintilla of evidence presented that another cause could have led to Hanger’s injury ….”

Mann held that the given instructions — Instructions 20 and 21 — didn’t remedy the error of refusing Instruction D.

“Instruction D provided the jury with a compulsory direction as to the appropriate verdict where the cause cannot be determined,” the justice explained. “Instruction D was not merely cumulative of the law provided in Instructions 20 and 21; rather, it provided an affirmative statement of the law relating to causation.”

The court reversed and remanded the case for a retrial.