Appeals Court reverses, remands $5M verdict for retrial on damages

The Court of Appeals of Virginia has reversed and remanded a woman’s $5 million jury award for a new trial on damages because the trial court erroneously excluded evidence of her termination from employment when calculating lost future income and earning capacity.

The plaintiff introduced evidence of her previous salary and experience for the jury to consider when awarding damages for malicious prosecution that resulted in her termination from employment. The trial court refused to admit evidence about why she had been terminated.

Judge Steven C. Frucci said the court erred by excluding probative evidence of the plaintiff’s future lost income of future lost earning capacity.

“When contemplating an award of damages, it would be impossible for a jury, after hearing testimony about one’s loss of employment, to make an accurate decision on that person’s earning capacity as it relates to salaries, qualifications, education, and background, without also considering reasons as to why they lost their job.”

Senior Judge Rosemarie Annunziata and Judge Vernida R. Chaney joined Frucci in the unpublished opinion in Roque v. Winters (VLW 024-7-372).

Representing the appellants, James O’Herron and Peter Askin of Thompson McMullan in Richmond did not respond to a request for comment. Neither Thomas Plofchan Jr. nor Jacqueline Kramer of Westlake Legal Group responded with comments by press time.

Jury verdict

After receiving a report that a high school teacher for Loudoun County Public Schools, or LCPS, engaged in a sexual relationship with her student, known as S.A., Loudon County sheriff’s Detective Peter Roque, arrested Kimberly Winters under Code § 18.2-370.01.

Although the charges were eventually nolle prossed, LCPS terminated Winters for violating school board policy. Winters sued Roque for malicious prosecution, and sued Michael Chapman, the sheriff of Loudoun County, under a theory of respondeat superior.

During a five-day jury trial, Roque and Chapman sought to impeach Winters with statements she allegedly made in a deposition admitting to a sexual relationship with S.A.

The circuit court ruled that the proposed statements were “not relevant,” “too prejudicial” and were an attempt to enter evidence that the court had already ruled on as inadmissible. The court also prevented the defendants from cross-examining Winters about why she left LCPS.

Seeking compensatory damages for her loss of earning capacity, Winters presented a wide range of evidence, including her past and present employment status, and testified that she couldn’t get a job equivalent to what she made as a teacher at LCPS.

The jury returned a verdict in favor of Winters for $4.65 million in compensatory damages and $350,000 in punitive damages. Roque and Chapman appealed.

Prior statements

Roque and Chapman argued that the circuit court erred in preventing them from questioning Winters about her alleged prior statements regarding her relationship with S.A. during cross-examination.

The appeals court held in Simpson v. Commonwealth that a witness may not be cross-examined with facts irrelevant to the issues on trial for the mere purpose of impeaching their credibility by contradicting them.

“‘The test as to whether a matter is material or collateral, in the matter of impeachment of a witness, is whether or not the cross-examining party would be entitled to prove it in support of his case,’” Frucci explained, citing Williams v. Commonwealth.

“Even assuming that Roque and Chapman are correct, statements made by Winters regarding whether she had a sexual relationship with S.A. after he turned 18 are irrelevant to the actions taken by Roque and Chapman at the time Winters was arrested and how they relate to the elements of malicious prosecution,” the judge wrote.

Thus, the circuit court did not abuse its discretion in preventing the use of Winters’ statements during cross-examination.

Harmless error

Frucci agreed with Roque and Chapman that the circuit court erred in refusing to grant their proffered jury instruction.

“The jury instruction contained Code § 18.2-370.1, and, therefore, listed not only the elements of the crime that Roque arrested Winters for, but also included the other ways individuals can violate that code section,” he said.

Looking to King v. Commonwealth, Frucci said a court’s “‘sole responsibility in reviewing [jury instructions] is to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises.’”

But even if the circuit court erred, that error was harmless because it didn’t implicate the trial court’s subject matter jurisdiction.

“Under the harmless error doctrine, the judgment of the court below will be affirmed whenever we can say that the error complained of could not have affected the result,” the Supreme Court of Virginia held in Rhoades v. Painter. “The doctrine is never applied, however, when it appears that the jury has been misinstructed and, had it been properly instructed, that it might have returned a different result.”

To determine whether Roque had probable cause to arrest Winters, the jury was given several instructions on probable cause, as well as the arrest warrant.

“In addition to the specific violation, which the warrant stated, the proposed jury instruction contained criminal actions that Winters was not charged with,” Frucci pointed out.

“Instructing the jury on the entirety of Code § 18.2-370.1 was unnecessary because they were already given the language of the elements of Code § 18.2-370.1 that Winters was charged with violating and had several instructions on probable cause,” he said.

Because the jury had what it needed to determine whether Roque had probable cause to arrest Winters, Frucci said including the proffered jury instruction wouldn’t have changed the verdict, thus the circuit court’s error was harmless.

Reasons for termination

According to Roque and Chapman, the circuit court erred by excluding evidence related to Winters’s termination from LCPS.

Frucci cited Egan v. Butler, where the Supreme Court found it was an abuse of discretion to exclude evidence of a plaintiff’s work history, including their reasons for leaving the job. Such evidence is probative of future lost income of future lost earning capacity.

“Like the Supreme Court stated in Egan, ‘[t]his is the very type of [the appellants] sought to introduce but which the circuit court excluded as irrelevant,’” the judge said.

Here, the circuit court essentially ruled that the reasons for termination from previous jobs were irrelevant to a plaintiff’s employability.

“It would be an absurdity to have the jury consider her previous salary and experience as a teacher when determining her earning capacity without also considering that she was fired for ‘engag[ing] in an inappropriate social relationship with a student in violation’ of a school board policy,” Frucci wrote.

Finding the totality of Winters’s evidence opened the door for Roque and Chapman to introduce evidence of her work history, Frucci reversed and remanded for a new trial on damages.