COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judge Friedman and Senior Judge Clements PUBLISHED
Argued at Richmond, Virginia
ANN REYNOLDS LEE OPINION BY v. Record No. 0306-24-2 JUDGE FRANK K. FRIEDMAN AUGUST 12, 2025 WILLIAM MANSON, M.D., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE David M. Barredo, Judge
Christopher L. Spinelli (Howard W.R. Bullock; Emroch & Kilduff, LLP, on briefs), for appellant.
Marc A. Peritz (Andrew G.H. Miller; Flora Pettit PC, on brief), for appellees.
Amicus Curiae: Virginia Trial Lawyers Association (Steven G. Friedman; Michael E. Hollingsworth, Jr.; Marks & Harrison, P.C.; Hollingsworth, PLLC, on brief), for appellant.
This medical malpractice appeal raises a challenge to the granting of a jury instruction on
habit evidence that is closely modeled after language contained in Code § 8.01-397.1—a statute
which addresses the admissibility of habit evidence. A jury verdict was returned in favor of
defendants, Dr. William Manson and University of Virginia Physicians Group. The patient, Ann
Lee, contends that the trial court’s granting of the instruction on habit evidence was reversible
error because the instruction was unnecessary, a misstatement of the law, overly argumentative,
an improper comment on (and emphasis of) the habit evidence, and too confusing. The defense
counters that the case revolved around habit evidence—and that the jurors were, therefore,
entitled to an instruction to aid in their understanding of the evidence. Further, because the instruction is modeled so closely after the statute, the defense reasons it is a proper statement of
the law.
BACKGROUND
This appeal arises from a medical malpractice suit filed by Lee against Dr. Manson, UVA
Physicians Group, and Dr. Troy Davis. In September of 2020, Lee underwent back surgery,
specifically an anterior cervical discectomy and fusion, at UVA Medical Center. Dr. Manson
was Lee’s attending anesthesiologist, and Dr. Davis was a resident physician working under
Dr. Manson’s supervision during the procedure.1
Lee’s procedure involved electrical nerve stimulation, which can cause a patient to
involuntarily bite down while under anesthesia. To address this issue, “bite blocks” are typically
placed in the patient’s mouth. This precaution was taken here. At oral argument, Lee’s counsel
did not dispute that bite blocks were in fact placed in Lee’s mouth prior to surgery. The dispute
at trial was whether Dr. Manson was negligent in monitoring, placing or maintaining the bite
blocks during Lee’s surgery. Lee alleged that, due to Dr. Manson’s negligence, she “suffered
severe and permanent injuries including the severe laceration of her tongue.”
The Motion in Limine on Habit Evidence
Dr. Manson is a highly experienced anesthesiologist with a busy schedule. He lacked, in
many respects, a specific recollection of Lee’s surgery and the placement and maintenance of the
bite blocks. Prior to trial, Lee filed a motion in limine seeking to prevent Dr. Manson and
Dr. Davis from testifying about their habit or routine as it related to placement and monitoring of
bite blocks. The trial court granted the motion in limine in part and denied it in part. The trial
1 Dr. Davis was a surgical resident at UVA. Before trial, Dr. Davis filed a plea in bar raising a sovereign immunity defense. The trial court granted the plea in bar, finding that sovereign immunity applied to Dr. Davis. On appeal, Lee does not challenge this ruling. We will refer to Dr. Manson and UVA Physicians Group collectively as “Dr. Manson.” -2- court agreed with Lee as it related to Dr. Davis, a young resident, finding that any habit or
routine evidence was inadmissible as to him because he lacked experience to establish a fixed
habit in this type of procedure. But the court found that habit or routine evidence was admissible
as it related to Dr. Manson.2 On appeal, Lee does not assign error to the trial court’s admission
of habit evidence related to Dr. Manson who had performed this type of procedure hundreds of
times. She assigns error to the granting of the instruction that told jurors how to interpret the
habit evidence.
Dr. Manson’s Trial Testimony3
Dr. Manson testified at trial. He stated that typically the resident, here, Dr. Davis,
“places the bite blocks and that’s our convention at UVA.” Dr. Manson acknowledged that he
did not “specifically recall the bite block placement in [Lee’s] case.” Dr. Manson explained that,
as a general practice, he did not document placement of the bite blocks because “the bite block is
a routine thing that we do on every one of these cases.”
2 The trial court explained its decision to permit Dr. Manson to testify about his habit and routine:
With regards to Dr. Manson, he’s a very experienced doctor, multiple years practicing. I would imagine that this would have been along the lines of routine for him, placing bite blocks, having been elevated to professor and training other doctors in these types of procedures. The Code of Virginia regarding habit evidence states that it’s a regular response to repeated specific situations. So with respect to Dr. Manson, it’s a factual issue, but with the years of experience he’s had, number of procedures similar to this that he’s encountered, I think that he certainly is one that has established habits and routines. 3 Dr. Davis did not testify at trial, but portions of his deposition were admitted at trial, including his testimony that he could not recall who placed the bite blocks during Lee’s procedure; however, based on applicable procedures, he believed that he “would have been the person to place the bite blocks.” Dr. Davis could not recall whether Dr. Manson directly supervised the placement of the bite blocks. -3- Dr. Manson testified that it was his habit and routine to direct and supervise the resident
physician’s placement of bite blocks in the patient’s mouth. Dr. Manson confirmed that he had
done 400 to 500 cases involving bite blocks in his career. He explained that the bite blocks were
“[a]lways” placed immediately after intubation. He further testified that “when you do a
procedure four or 500 times you learn and develop that habit and practice of doing it the exact
same way every single time and so you know that the moment the intubation is done you’ve got
to, you know, supervise the resident performing the bite blocks the same way every single time.”
Dr. Manson also explained his habit and routine after the bite blocks were placed in the
patient’s mouth: “So after the bite blocks go in, my personal preference is I will insert my gloved
finger into the mouth and what I’m attempting to do is feel along the lingual surface of the
teeth[,]” and “[t]hen once that’s done I insert my finger on this side and do the exact same thing
and this takes seconds to perform.” Dr. Manson stated that his routine never changed when
placing bite blocks.
On cross-examination, Dr. Manson reconfirmed that he did “not have a distinct
recollection of” Dr. Davis placing the bite blocks in Lee’s case, nor did he recall checking and
monitoring the bite blocks. When asked whether he monitored Lee’s procedure, he testified that
“[w]e were continuously monitoring the case.” Dr. Manson reiterated that placement of bite
blocks is not typically documented. His experts agreed that declining to document bite block
placement was a common practice.
Dr. Manson testified that he discovered Lee’s tongue injury at the conclusion of her
surgery. Dr. Manson stated that is it uncommon at UVA to check bite blocks mid-surgery: “That
is not a common practice at UVA to routinely go under the drapes and check bite blocks
throughout the case . . . where there is an MEP [motor-evoked potentials]” procedure being
-4- conducted. Again, Dr. Manson’s expert witnesses confirmed that checking bite blocks under the
drapes during spinal surgery can be problematic and introduce risks to the patient.
The Habit Instruction
Dr. Manson asked the trial court to provide an instruction on habit evidence. He argued
that an instruction on habit evidence was appropriate because habit evidence was before the jury,
and it played a significant role in the case. The proffered instruction was nearly identical to the
text of Code § 8.01-397.1, which governs the admissibility of habit evidence. The proposed
instruction stated:
A “habit” is a person’s regular response to repeated specific situations. A “routine practice” is a regular course of conduct of a group of persons or an organization in response to repeated specific situations. Evidence of the “habit” of a person or the “routine practice” of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the “habit” or “routine practice.”
Lee objected to the habit instruction, noting that the instruction was not a model jury
instruction and arguing that “[t]his [instruction] invites the jury to confuse the standard of care
with habit[,]” and “[i]t will allow the defense to argue that by Dr. Manson following his habit,
he’s complying with the standard of care.” Relatedly, Lee argued that the instruction “invites
confusion as to what the—to substitute standard of care with habit.” Lee also objected on the
ground that “habit [evidence] itself has a complicated set of proofs, foundational proofs, and
issues that are addressed in the statute itself,” and so the instruction “runs the risk of . . .
substituting the entirety of the evidence with just testimony about some[one]’s habit.”
Dr. Manson disagreed and argued that the instruction was not “any substitute for standard
of care” and that the instruction “isn’t going into standard of care.” Dr. Manson further argued
that the instruction is not “any different than” telling jurors to “disregard sympathy or bias.” -5- Finally, Dr. Manson argued that the instruction was supported by the evidence: “[I]t’s well-
established that Dr. Manson has established his own habit and practice, which is, you know, a
paramount issue in this case. So I think they do need an instruction on this issue.” While
objecting vociferously to the instruction, Lee did not offer any alternative rewording of the
tendered instruction. The trial court granted the habit instruction as submitted by the defense.
As relevant to this appeal, the trial court also instructed the jury that they “are the judges
of the facts, the credibility of the witnesses, and the weight of the evidence.” Further, the trial
court informed the jurors that they “may not arbitrarily disregard believable testimony of a
witness[;] [h]owever, after [the jury] ha[s] considered all the evidence in the case, then you may
accept or discard all or part of the testimony of a witness as you think proper.”
The Conflicting Theories on Whether Negligence Occurred
Lee’s experts testified that Dr. Manson breached the standard of care in failing to protect
Lee’s tongue during a surgery where the patient was receiving shocks that could cause her to bite
down on her tongue. They suggested that the initial setting of the bite blocks was faulty and that
Dr. Manson failed to detect the problem and ensure that the tongue was protected; they also
contended that he failed to monitor the bite blocks during the two-hour surgery. They asserted
that the nature of the injury showed a long, gradual process of grinding by the patient’s teeth
which caused damage to her tongue. Lee’s experts further contended that simple checks on the
bite blocks during the surgery would have prevented or greatly lessened the damage. The
experts opined that Dr. Manson breached the standard of care.
The defense experts countered that bite blocks can move during the course of a surgery
without negligence by the anesthesiologist and that it is difficult (and sometimes dangerous) to
-6- check bite blocks during a spinal surgery where the patient is draped.4 The experts further
opined that, in the absence of physical movements suggesting a bite-down, often only visual
inspection is appropriate, and it is sometimes “impossible to inspect” the patient’s bite blocks
during the surgery due to the possibility of infection and other dangers. They further disputed
Lee’s claims that the nature of the wound established a long period of grinding, explaining that
the “incision of the tongue . . . looks like a very sort of almost neat incision of the tongue length-
wise front to back so I don’t think the tongue was mashed repeatedly over time, otherwise the
wound would be more [grisly].” The defense experts concluded that Dr. Manson fully met the
standard of care in all respects.
The Defense Verdict and Post-Trial Motions
The jury ultimately returned a verdict for the defendants. Lee filed a motion to set aside
the verdict, arguing that the habit instruction constituted reversible error. In her post-trial
motion, Lee claimed that, because the habit evidence statute governs the admissibility of
evidence, it was error to use it as an instruction. Lee asserted that the instruction’s “language ‘is
relevant to prove’ confuses the jury” because “a jury could easily misconstrue those words to be
‘habit = proof.’” Lee further argued that the language in the instruction about the routine
practice of an organization was not supported by any evidence in the case. Last, Lee asserted
that the habit instruction “place[d] undue weight on the defendants’ habit testimony.” Lee did
not argue that the instruction was a misstatement of the law in her post-trial motion.
Dr. Manson opposed the motion, arguing that the habit instruction was an accurate
statement of the law and supported by the evidence.
4 Surgical draping is a procedure used in preparing certain patients for surgery, and the main purpose is “to keep the field sterile” and “to ensure that there is no infection that gets into the site where the surgeon is operating.” Lee’s procedure, which was on her back, required draping. -7- The trial court ultimately denied the motion and entered final judgment for defendants.
Lee appeals.
ANALYSIS
A. Standard of Review
“An appellate court ‘review[s] jury instructions to see that the law has been clearly stated
and that the instructions cover all issues which the evidence fairly raises.’” Nottingham v.
Commonwealth, 73 Va. App. 221, 228 (2021) (quoting Watson v. Commonwealth, 298 Va. 197,
207 (2019)); see also Molina v. Commonwealth, 272 Va. 666, 671 (2006) (same). “An
instruction must be supported by ‘more than a scintilla’ of evidence, viewed in the light most
favorable to the proponent[.]” Nottingham, 73 Va. App. at 228 (internal citations omitted).
“Whether to give or deny jury instructions ‘rest[s] in the sound discretion of the trial court.’” Id.
(alteration in original) (quoting Hilton v. Commonwealth, 293 Va. 293, 302 (2017)). “However,
this Court reviews de novo whether an instruction ‘accurately states the relevant law.’” Id.
(quoting Ducharme v. Commonwealth, 70 Va. App. 668, 674 (2019)). When a decision is
discretionary, the trial court “has a range of choice, and . . . its decision will not be disturbed as
long as it stays within that range and is not influenced by any mistake of law.” Landrum v.
Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352 (2011).
“Instructions are meant to aid the jury in its deliberations, not to make such deliberations
more difficult.” Gaalaas v. Morrison, 233 Va. 148, 156 (1987). “[N]o instruction should be
given that . . . would be confusing or misleading to the jury.” Chavez v. Commonwealth, 69
Va. App. 149, 156 (2018) (first alteration in original) (quoting Bryant v. Commonwealth, 67
Va. App. 569, 582 (2017)); see also H.W. Miller Trucking Co. v. Flood, 203 Va. 934, 937 (1962)
(“An instruction which is confusing, argumentative, long, and merely an attempt on [the party’s]
part to have the court apparently agree with his theory of the case should be refused.”); King v.
-8- Commonwealth, 2 Va. App. 708, 711 (1986) (“Instructions must be tailored to the evidence and
should exclude language that might confuse or distract the jury.”).
B. The Background Behind Code § 8.01-397.1 and the Role of Habit Evidence
The question of how habit and custom evidence should be utilized in medical malpractice
actions has proven to be complex and somewhat controversial. In Ligon v. Southside Cardiology
Associates, 258 Va. 306 (1999), our Supreme Court wrestled with the “habit” question in the
context of a patient who claimed that she had complained of chest pain after a stress test at a
doctor’s office and was negligently released without further observation. The medical providers
did not have any recollection of the patient’s chest pain complaint and tendered habit testimony
that every time a patient conveyed the existence of a chest pain to the medical staff after a stress
test, the patient was re-evaluated and given an EKG procedure. Id. at 309-10. The circuit court
permitted the “habit” evidence—and this enabled the defense to use it to suggest that the patient
did not report any chest pain to them. Id. A defense verdict ensued.
On appeal, our Supreme Court reversed. Id. at 313. The medical providers argued
unsuccessfully “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.” Id. at 311. The Supreme Court rejected this logic, observing
that:
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 . . . .
Id. at 312.
The Supreme Court’s ruling that habit evidence was “collateral” to the underlying
incident meant that it was not relevant—and therefore not admissible. Id.; see also Stottlemyer v. -9- Ghramm, 268 Va. 7, 12 (2004) (“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 can be
drawn tending to throw light upon the fact under investigation, is excluded[.]” (quoting Jackson
v. Chesapeake & Ohio Ry. Co., 179 Va. 642, 648 (1942))); Seilheimer v. Melville, 224 Va. 323,
327 (1982) (same). However, during its next legislative session, Virginia’s General Assembly
enacted Code § 8.01-397.1 which flatly rejected the Ligon reasoning, stating:
A. Admissibility. Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eye witnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. Evidence of prior conduct may be relevant to rebut evidence of habit or routine practice.
B. Habit and routine practice defined. A “habit” is a person’s regular response to repeated specific situations. A “routine practice” is a regular course of conduct of a group of persons or an organization in response to repeated specific situations.
C. The provisions of this section are applicable only in civil proceedings.
This enactment plainly instructs our judiciary that such evidence is relevant for purposes of
admissibility. In other words, “habit” testimony is no longer considered “collateral” as the
Supreme Court concluded in Ligon. Thus, the legislature essentially sided with the defense in
Ligon that habit evidence, once established, may be admissible in civil cases as evidence that a
person acted in conformity with their “routine practice.”
The problem in this case is that there is a significant difference between the admissibility
of such evidence (which was the object of the statute) and its believability. While admissibility
falls within the aegis of the trial judge, credibility is the domain of the factfinder—and the
admissibility of such evidence, obviously, does not automatically make it believable. This
- 10 - tension between admissibility and credibility is at the forefront of Lee’s challenge here because
direct language from an admissibility statute was used to tell jurors how to weigh the evidence.
C. Whether the Habit Instruction in this Case was so Confusing and Misleading as to Require a New Trial
Because Dr. Manson treats many patients and, understandably, does not remember the
minute details of each individual “bite block” placement, the defense sought to employ habit
evidence to suggest that he acted in conformance with his habit when treating Lee. His habit,
according to defense experts, meets the standard of care. The complication, of course, is that
most patients do not end up with serious tongue lacerations as Lee did.
While the legislature, via Code § 8.01-397.1, has made clear that Dr. Manson’s habit
evidence is generally admissible—“whether corroborated or not and regardless of the presence of
eye witnesses”—Lee asserts there is a danger, here, that habit evidence was permitted to
overwhelm other tangible evidence for credibility purposes under the instruction granted in this
case.5 At a minimum, she posits that the instruction is very confusing. We agree.6
5 For example, Lee argued the instruction “runs the risk of . . . substituting the entirety of the evidence with just testimony about [someone’s] habit” and that the instruction “will allow the defense to argue that by Dr. Manson following his habit, he’s complying with the standard of care.” 6 While Dr. Manson has not argued that Lee failed to preserve any of her assignments of error, several of the arguments raised by Lee on appeal were not presented to the trial court at the time the instructions were tendered. A trial court must be given a fair opportunity to rule on an argument for it to be preserved on appeal. See Moison v. Commonwealth, 302 Va. 417, 419 (2023) (“No ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling.” (alteration in original) (quoting Rule 5A:18)); see also Morgen Indus. v. Vaughan, 252 Va. 60, 67-68 (1996) (“Generally, the reasons for objecting to the grant or refusal of a jury instruction must be presented to the trial court before such objection will be considered on appeal.”). Thus, we do not reach claims involving instructions that are raised for the first time either in a post-trial motion or on appeal. The objection that the instruction was confusing and misleading was plainly raised and preserved below, and it is this objection upon which we will focus. - 11 - The habit instruction told jurors that even if Dr. Manson’s habits were uncorroborated or
unsupported by eyewitnesses, they were “relevant to prove that [his] conduct . . . was in
conformity with [his] habit . . . .” Yet Lee observes that her theory of the case was that
Dr. Manson did not appropriately place, check or monitor the bite blocks or act consistently with
his routine practice; in support of these claims, Lee pointed to—among other things—the
doctor’s lack of memory, and the lack of documentation of any such placement or monitoring.
She further argued that the grinding nature of Lee’s injury (per her experts’ testimony) meant
that the problem had persisted, undetected, for a lengthy period. Moreover, she asserted that,
where the defense claims the bite blocks could move without negligence by the doctors, it made
no sense not to periodically check the status of the bite blocks over the course of a two-hour
surgery involving electrical nerve stimulation. In short, Lee counted on the jury to reject
Dr. Manson’s habit evidence for credibility and accuracy purposes—even though it was
admissible.
The standard of care was fixed by expert testimony. See Raines v. Lutz, 231 Va. 110, 113
(1986). Lee’s expert witnesses indicated that Dr. Manson deviated from the standard of care in
placing and monitoring the bite blocks. By contrast, Dr. Manson’s experts presented extensive
explanations for why he did not deviate from the standard of care based on his habit and routine.
In this setting, an instruction on how to view the habit evidence became the focal point of the
case.
Lee contends that the habit instruction granted below confused the jury—and unfairly
hampered her efforts to persuade the jury to disbelieve Dr. Manson’s habit testimony. For
example, she urged the jurors to find that the doctor failed to do an initial sweep to check the bite
blocks. Yet the instruction told the jurors that habit evidence (that Dr. Manson always did an
initial sweep) was “relevant to prove” that he had done so in this instance. The statute tells the
- 12 - trial court that the habit testimony is “relevant to prove” adherence to routine and is, therefore,
admissible at trial; but telling the jury the habit testimony is “relevant to prove” conformity with
routine practices for factfinding purposes is problematic because the evidence is not relevant to
prove anything from a credibility standpoint if it is not believed. This becomes an even bigger
problem where Lee’s credibility argument hinges, in part, on a lack of documentation of setting
or monitoring the bite blocks, but the instruction tells the jury the habit evidence is “relevant to
prove” (in a credibility context) adherence to routine practice whether corroborated or not. The
habit evidence statute simply was not written as a legal principle to be applied by a lay jury in
weighing evidence. By injecting admissibility concepts from the statute into a factfinding
instruction, significant confusion was invited as to the weight of the habit testimony and the role
of corroboration to support that evidence.
Dr. Manson correctly contends that the jury instructions must be viewed together—and
he suggests that when this occurs the habit instruction is not confusing, but part of a coherent
whole. See SuperValu, Inc. v. Johnson, 276 Va. 356, 366 (2008) (“When reviewing jury
instructions on appeal, we read the instructions together and consider them as a whole.”). To be
sure, another instruction did tell the jurors that they “are the judges of the facts, the credibility of
the witnesses, and the weight of the evidence.” The jurors were also instructed that they could
reject all or portions of a witness’ testimony. But this guidance is directly undercut by the habit
instruction which tells the factfinder that habit testimony is “relevant to prove” conformity with
routine practice whether corroborated or not.7
7 Dr. Manson also argues that “relevant to prove” does not mean the same thing as “proves.” Again, relevance relates to admissibility—a term whose legal significance may not be obvious to laypersons. In a perfect trial, a jury will only hear relevant evidence—but this does not lessen the confusion emanating from the instruction granted here. - 13 - Because there is currently no model jury instruction on habit evidence in Virginia, we are
sympathetic to Dr. Manson’s efforts to craft one from the related admissibility statute. See Code
§ 19.2-263.2 (“A proposed jury instruction submitted by a party, which constitutes an accurate
statement of the law applicable to the case, shall not be withheld from the jury solely for its
nonconformance with model jury instructions.”). Habit evidence was central to this case, and we
agree with the trial court that Dr. Manson was entitled to a proper instruction on this issue. See
Emergency Physicians of Tidewater, PLC v. Hanger, 303 Va. 77, 88 (2024) (“A litigant is
entitled to jury instructions supporting his or her theory of the case if sufficient evidence is
introduced to support that theory and if the instructions correctly state the law.” (quoting
Schlimmer v. Poverty Hunt Club, 268 Va. 74, 78 (2004))). However, “the duty to properly
instruct the jury is not always ‘discharged . . . by reading the applicable statute to the jury.’”
Ascher v. Commonwealth, 12 Va. App. 1105, 1121 (1991) (alteration in original) (quoting
Dowdy v. Commonwealth, 220 Va. 114, 116 (1979)); see Oliver v. Forsyth, 190 Va. 710, 715
(1950) (instructions relying on the words of a statute may require qualification).
We note that various other jurisdictions that employ pattern instructions for habit
evidence use language that is very careful to make clear that the factfinder remains free to reject
habit testimony if it does not find it credible or persuasive.8 Virginia relies upon similar
8 The federal model jury instruction on habit evidence provides:
There has been evidence introduced in this case concerning the habits of plaintiff (or defendant or other persons and/or the routine practices of organization). This evidence may be considered by you in determining whether the plaintiff acted in conformity with that habit (or routine practice) on the occasion in question. The weight you give to habit evidence, if any, is entirely up to you, since you are the sole judges of the facts.
4 Modern Federal Jury Instructions—Civil P 74.03 (2024).
- 14 - guardrails in other instruction contexts. See Nottingham, 73 Va. App. at 230 (upholding
challenged instruction reflecting “the well-established rule of law that a victim’s testimony, if
believed, is sufficient to convict[,]” but does not compel “a particular finding” (emphasis
added)).9 Such qualifying language is entirely absent here—and, in fact, the opposite message is
suggested: the jury is told habit testimony is relevant to prove conformance whether corroborated
or not.
We conclude that the habit instruction relied upon in this case is confusing and
misleading. See Redd v. Ingram, 207 Va. 939, 942 (1967) (the giving of “inconsistent
instructions is error, unless it plainly appears from the record that the jury could not have been
misled by them”); Gaalaas, 233 Va. at 156 (“precisely because it was such a well-fought jury
case, ‘the instructions should have been most carefully drawn’” (citation omitted)). Given the
pivotal role of habit evidence in this case, and the confusing nature of the habit instruction
utilized below, we conclude that there is a substantial likelihood that the granting of the disputed
New York’s pattern jury instruction on habit evidence in civil cases states:
The (plaintiff, defendant) has introduced evidence to show that it was AB’s habit [here describe conduct.] Habit means a person’s regular practice to act or behave in the same way in the same or similar circumstances. Experience teaches, however, that for one reason or another, a person may not always follow his or her habit. If you find that it was AB’s habit to (act or behave in a particular way), then you may, but are not required to, conclude that AB (acted or behaved) in accordance with that habit at the time in question.
New York Civil Pattern Jury Instructions (PJI), 1:71 (General Instruction—Circumstantial Evidence—Habit).
Cf. Virginia Model Jury Instructions—Criminal No. 2.300 (2024) (Flight “creates no 9
presumption that the person is guilty of having committed a crime” but “it is a circumstance which you may consider along with the other evidence.”). - 15 - instruction significantly harmed Lee’s case before the jury.10 See State Highway & Transp.
Comm’r v. Allmond, 220 Va. 235, 241-42 (1979) (“We have frequently held that the giving of
instructions which are confusing or which tend to mislead the jury . . . is reversible error.”);
Flood, 203 Va. at 937 (reversing judgment where the Court cannot say that the flawed
instruction did not influence the jurors’ verdict). Accordingly, we remand for a new trial.
CONCLUSION
For the foregoing reasons we conclude that the habit instruction granted in this case was
confusing and misleading, necessitating a retrial consistent with the principles set out above.
Reversed and remanded.
10 We are cognizant of decisions noting that a trial court need not correct or amend a flawed instruction rather than simply refusing to grant it. See Bon Secours-DePaul Med. Ctr., Inc. v. Rogakos-Russell, ___ Va. ___, ___ (Jan. 2, 2025); Under Wild Skies, Inc. v. Nat’l Rifle Ass’n of Am., ___ Va. ___ (May 29, 2025). Here, however, the flawed instruction was not refused—and granting it was not harmless error given that Dr. Manson’s defense relied so heavily upon his habit and routine. We think the habit instruction was a significant factor in the defense verdict considering that there was very little evidence presented to the jury regarding Dr. Manson’s conduct with respect to Lee’s procedure aside from the habit evidence. See Blue Stone Land Co. v. Neff, 259 Va. 273, 279 (2000) (“The [harmless error] 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 verdict.”). - 16 -