PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, Mims, and McClanahan, JJ., and Russell, S.J.
MICHELLE C. HARMAN, ADMINISTRATRIX OF THE ESTATE OF JOSEPH A. GRANA, III, DECEASED, ET AL. OPINION BY JUSTICE WILLIAM C. MIMS v. Record No. 130627 June 5, 2014
HONEYWELL INTERNATIONAL, INC.
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Herbert C. Gill, Jr., Judge
This appeal arises out of two consolidated wrongful death
actions against Honeywell International, Inc. (“Honeywell”). We
consider the admissibility of testimony regarding the contents of
an accident investigation report, as well as the admissibility of
lay witness opinion testimony. We also address statements made
by Honeywell’s counsel during closing argument. Finally, we
consider whether the circuit court erred in striking portions of
a proffered jury instruction defining proximate cause.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
On April 27, 2008, Joseph A. Grana, III (“Grana”) and his
father, Joseph E. Grana, Sr., were killed when the single-engine
airplane Grana was piloting crashed shortly after takeoff from
Chesterfield County Airport. The takeoff was normal.
Approximately ninety seconds into the flight, the plane’s nose
began moving up and down erratically. The plane then spiraled
nose-down to the ground. The Administrators of the Granas’ estates (collectively,
“the Administrators”) filed wrongful death actions in the Circuit
Court of Chesterfield County against Honeywell, the manufacturer
of the plane’s autopilot system. 1 The actions were consolidated
for trial.
The sole claim pursued at trial was for breach of the
warranty of merchantability. The Administrators asserted that
the defective design of the Honeywell autopilot system allowed
microscopic debris to enter into one of the gear systems, jamming
the gears and causing the plane to become uncontrollable.
Specifically, the Administrators claimed that the jammed gears
caused a situation known as “runaway trim,” which occurs when the
autopilot’s auto-trim system repeatedly attempts to increase and
decrease the plane’s pitch, or horizontal incline, in a futile
effort to level the plane. 2 Honeywell denied any defective design
or malfunction of the autopilot system. It maintained that the
crash was simply the tragic result of an inexperienced pilot
becoming disoriented while flying in heavy cloud-cover.
1 The Administrators originally filed wrongful death actions against various other entities and individuals involved in manufacturing components of the plane. The claims against all defendants except Honeywell were dismissed prior to trial. 2 The auto-trim system controls the movement of the plane’s tail and thus the angle of its ascent or descent. Specifically, the auto-trim system causes the horizontal stabilizer in the tail to move up or down, which causes the pitch to change.
2 Grana had begun pilot training just sixteen months prior to
the accident, and he had been licensed for approximately fourteen
months. On the day of the accident, he was flying in instrument
meteorological conditions that require pilots to navigate using
navigational instruments rather than visual cues. He had at most
one hour of solo flight time in such conditions in this
particular plane that was manufactured by Mooney Airplane
Company, Inc. (the “Mooney plane”). His previous experience had
been in a less-powerful, less-complex plane that was manufactured
by Cessna Aircraft Company (the “Cessna plane”). Honeywell’s
theory was that upon entering the cloud-cover, Grana experienced
“spatial disorientation,” a phenomenon that occurs when a pilot
has no visual cues to determine a plane’s pitch and thus flies
erratically without knowing it.
Following a nine-day trial, the jury deliberated for one
hour before returning a verdict in favor of Honeywell. The
Administrators filed a motion to set aside the verdict and for a
new trial, which the circuit court rejected. This appeal
followed.
The Administrators pursue five assignments of error. They
assert that the circuit court erred by (1) admitting into
evidence an accident investigation report and testimony regarding
its contents; (2) allowing William Abel to testify that he had
concerns about Grana’s judgment in taking off in the weather
3 conditions present on the day of the accident; (3) allowing
Robert Norman to testify regarding his subjective feelings and
experiences while flying the Mooney plane and the Cessna plane;
(4) overruling their objection to statements made by Honeywell’s
counsel during closing argument; and (5) striking portions of
their proffered jury instruction on proximate cause.
II. DISCUSSION
A. The Mooney Report
The Administrators assign error to the circuit court’s
admission of testimony regarding an accident investigation report
prepared by Mooney Airplane Company describing its investigation
of the crash (the “Mooney Report”). It describes the plane’s
movements during flight and the condition of the wreckage, and
sets forth the author’s conclusions that there was no evidence
“that the aircraft engine was not capable of producing power or
that the aircraft was uncontrollable at the time of the
accident.” Portions of the Mooney Report related to the position
of the “jackscrew,” a component in the autopilot’s auto-trim
system that corresponds with the position of the horizontal
stabilizer in the plane’s tail.
The central question in the case was whether contaminated
gears in the autopilot system caused the pitch to become erratic,
rendering the plane uncontrollable. Consequently, a critical
issue at trial was the position of the autopilot’s trim setting
4 at the time of impact. The experts for both sides agreed that
the trim setting could be determined by examining the jackscrew.
The experts also agreed that the jackscrew had six threads
exposed at the time of impact. However, they vigorously
disagreed regarding whether this position indicated a nose-down
or normal takeoff trim setting.
Honeywell’s expert in aircraft accidents, Dr. George Clarke,
III, testified that the jackscrew was in a “normal and safe
takeoff position,” and therefore runaway trim could not have been
the cause of the accident. Honeywell’s counsel directed Dr.
Clarke’s attention to the Mooney Report to support that opinion.
The Administrators objected on hearsay grounds. 3 Honeywell
responded that the Mooney Report was admissible pursuant to the
“learned treatise” exception to the hearsay rule set forth in
Code § 8.01-401.1. The circuit court agreed with Honeywell and
overruled the Administrators’ objections, holding that the Mooney
Report was a “pamphlet” admissible under Code § 8.01-401.1.
Dr. Clarke then read and displayed to the jury statements in
the Mooney Report supporting his opinion that the jackscrew was
in a normal takeoff position at the moment of impact:
Q. And what did the Mooney Aircraft Company investigation indicate with respect to that trim position?
3 The record does not indicate why the author of the Mooney Report was not called as a witness to testify regarding its contents.
5 A. It says in the last sentence, “This indicates an approximate takeoff position trim setting.”
. . . .
Q. And again, it is Exhibit 11. And would you show that page from the [Mooney Report]? We’re looking at the [Mooney Report] page 0006.
A. Yes. And this was the part that I just read. This indicates an approximate takeoff position trim setting. And to validate what we just spoke about, it says that there were six threads exposed on the jackscrew. And it’s the same six threads we were talking about from the full nose-down position.
After being prompted by the court, Dr. Clarke stated that he
relied upon the Mooney Report in reaching his conclusions, but he
did not testify that it was a reliable source. Additionally,
Honeywell was permitted to introduce the entire Mooney Report
into evidence as an exhibit.
On appeal, the Administrators argue that the circuit court
erred twice, by allowing testimony regarding the contents of the
Mooney Report and also by admitting it into evidence. The
Administrators claim the report contained inadmissible hearsay
statements and did not satisfy the requirements of the “learned
treatise” exception under Code § 8.01-401.1.
“[W]e review a trial court’s decision to admit or exclude
evidence using an abuse of discretion standard and, on appeal,
will not disturb a trial court’s decision to admit evidence
absent a finding of abuse of that discretion.” John Crane, Inc.
6 v. Jones, 274 Va. 581, 590, 650 S.E.2d 851, 855 (2007). However,
a trial court has no discretion to admit clearly inadmissible
evidence. Id.
Hearsay statements generally are inadmissible. See Va. R.
Evid. 2:802. One exception to the hearsay rule in civil cases,
the “learned treatise” exception in Code § 8.01-401.1, provides:
To the extent . . . relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals or pamphlets on a subject of history, medicine or other science or art, established as a reliable authority by testimony or by stipulation, shall not be excluded as hearsay. If admitted, the statements may be read into evidence but may not be received as exhibits.
See also Va. R. Evid. 2:706(a) (same). Because Code § 8.01-401.1
is in derogation of the common law, we must strictly construe the
statute and be careful not to enlarge it beyond its express
terms. See Bostic v. About Women OB/GYN, P.C., 275 Va. 567, 576-
77, 659 S.E.2d 290, 295 (2008).
Code § 8.01-401.1 creates an exception to the hearsay rule
“in certain limited instances.” 4 Weinberg v. Given, 252 Va. 221,
226, 476 S.E.2d 502, 504 (1996). First, when learned material is
4 This Court has long recognized the dangers of admitting hearsay expert opinion testimony. See McMunn v. Tatum, 237 Va. 558, 566, 379 S.E.2d 908, 912 (1989) (“The admission of hearsay expert opinion without the testing safeguard of cross-examination is fraught with overwhelming unfairness to the opposing party.”). In enacting the “learned treatise” exception in 1994, “the General Assembly was clearly aware of those dangers and sought to avoid them by inserting . . . preconditions to the admission of hearsay expert opinions as substantive evidence on direct examination . . . .” Bostic, 275 Va. at 576, 659 S.E.2d at 294.
7 used on direct examination the testifying witness must have
“relied upon” the hearsay statements. Second, the statements
must be (a) contained in a published treatise, periodical or
pamphlet; (b) on a subject of history, medicine or other science
or art; and (c) established as “a reliable authority” by
testimony or by stipulation. Dr. Clarke’s testimony regarding
the Mooney Report failed to satisfy these requirements.
At the outset, we note that the Mooney Report simply is not
the type of authoritative literature contemplated by Code § 8.01-
401.1. Learned treatises have sufficient indicia of
trustworthiness because their authors have no bias in any
particular case and are aware that their work will be read and
evaluated by others in their field. See United States v.
Martinez, 588 F.3d 301, 312 (6th Cir. 2009). However, the Mooney
Report lacks such assurances of trustworthiness. The report is
not a “published treatise[], periodical[] or pamphlet[]” on a
“subject of . . . science.” Code § 8.01-401.1. Rather, it is a
four and one-half page accident investigation report that was
prepared by the plane’s manufacturer. Of even greater
importance, at the time the report was prepared, Mooney had not
yet been dismissed as a defendant in this case. Thus, the Mooney
Report was prepared for litigation purposes and “was not
subjected to peer review or public scrutiny, and it was not
written primarily for professionals with the reputation of the
8 writer at stake.” Martinez, 588 F.3d at 312 (internal quotation
marks omitted). Consequently, the report lacks the reliability
necessary to be a “learned treatise.” See Sommerfield v. City of
Chicago, 254 F.R.D. 317, 323 (N.D. Ill. 2008) (“[D]ocuments
prepared specifically for use in litigation are . . . dripping
with motivations to misrepresent” and “are therefore inadmissible
hearsay.”) (quoting Hoffman v. Palmer, 129 F.2d 976, 991 (2d Cir.
1942)).
Moreover, the Mooney Report was not established as a
reliable source through testimony or stipulation as required
under Code § 8.01-401.1. Honeywell maintains that by stating
that he “relied upon” the report, Dr. Clarke thereby endorsed its
authority. We disagree. Code § 8.01-401.1 expressly requires
that a report used on direct examination by a party’s own expert
be both “relied upon” and “established as a reliable authority by
testimony or by stipulation.” See also Va. R. Evid. 2:706(a)
(same); Bostic, 275 Va. at 576, 659 S.E.2d at 294. Dr. Clarke
only satisfied the first precondition.
Dr. Clarke did not testify that the Mooney Report was a
reliable source typically used by experts in his field. Indeed,
he could not offer such testimony because, as established above,
it was not a “treatise[], periodical[] or pamphlet[]” on a
“subject of . . . science.” Further, the parties did not
stipulate to the Mooney Report’s reliability. Thus, we conclude
9 that the circuit court abused its discretion by permitting Dr.
Clarke to testify regarding the conclusions reached in the Mooney
Report.
Having determined that the hearsay statements in the Mooney
Report were erroneously admitted, we turn to whether their
admission was harmless error, as asserted by Honeywell.
Honeywell argues that the facts asserted in the portion read into
evidence by Dr. Clarke were independently established by other
evidence presented at trial. Thus, it claims that the circuit
court’s admission of the hearsay statements was “merely
cumulative of other competent evidence” and therefore harmless
error. Greenway v. Commonwealth, 254 Va. 147, 154, 487 S.E.2d
224, 228 (1997); see also Schindel v. Commonwealth, 219 Va. 814,
817, 252 S.E.2d 302, 304 (1979) (“Even though testimony is
objectionable as hearsay, its admission is harmless error when
the content of the extra-judicial declaration is clearly
established by other competent evidence.”). We disagree.
The circuit court’s error “‘is presumed to be prejudicial
unless it plainly appears that it could not have affected the
result.’” Hinkley v. Koehler, 269 Va. 82, 92, 606 S.E.2d 803,
808 (2005) (quoting Spence v. Miller, 197 Va. 477, 482, 90 S.E.2d
131, 135 (1955)). The Mooney Report contains conclusions that go
to the very heart of the case. For instance, it concludes that
the position of the jackscrew indicates an “approximate takeoff
10 position trim setting.” Honeywell insinuates that other experts
provided this same testimony; however, this is not accurate. Dr.
Clarke was the only witness to testify that the autopilot’s trim
setting was in the takeoff position at the time of impact. The
Administrators’ experts agreed with Dr. Clarke that the jackscrew
had six threads exposed, but testified that this represented a
nose-down trim position, not a normal takeoff trim position.
Likewise, it was the only investigation report to categorically
conclude that the plane was not “uncontrollable at the time of
the accident.”
Moreover, the Mooney Report repeatedly was brought to the
jury’s attention by Honeywell. Its counsel had Dr. Clarke read
from and display parts of the report to the jury. Honeywell also
referred to it twice during closing argument. Further, the
entire Mooney Report was admitted into evidence as an exhibit and
taken into the jury room during deliberations. This exacerbates
the prejudice in this case. 5 See, e.g., Norfolk & W. Ry. v.
Puryear, 250 Va. 559, 562-63, 463 S.E.2d 442, 444 (1995) (finding
that the error was not harmless when an erroneously admitted
exhibit could have been reviewed during deliberations).
5 Honeywell argues that the Administrators did not clearly object to the Mooney Report itself being received as an exhibit. Because we find that it was error for it to be used at all, we need not address Honeywell’s argument. However, we note that Code § 8.01-401.1 clearly forbids such action: “[i]f admitted, the statements may be read into evidence but may not be received as exhibits.” See also Va. R. Evid. 2:706(a) (same).
11 Accordingly, we reject Honeywell’s argument that the error
by the circuit court was harmless. It does not plainly appear
from the record that the erroneous admission of the hearsay
statements could not have affected the jury’s verdict.
Therefore, we will reverse the judgment appealed from and remand
the case for a new trial. See Bostic, 275 Va. at 578, 659 S.E.2d
at 296. While this error alone requires reversal of the circuit
court’s judgment, we will address the Administrators’ remaining
arguments because they involve issues that are likely to arise in
the retrial of the case. See, e.g., Velocity Express Mid-
Atlantic, Inc. v. Hugen, 266 Va. 188, 203, 585 S.E.2d 557, 566
(2003) (the Court “must consider certain issues that probably
will arise upon remand”).
B. Lay Witness Opinion Testimony
The Administrators also assign error to the circuit court’s
admission of certain opinion testimony by William Abel and Robert
Norman. 6 We address these two assignments of error concurrently.
(1) William Abel’s Testimony
William Abel was Grana’s friend and flight instructor. He
had extensive experience flying with Grana in the Mooney plane
and the Cessna plane, including in poor weather conditions
requiring the use of navigational instruments.
6 Abel and Norman were deposed by Honeywell prior to trial. The depositions were videotaped, and the portions determined to be admissible by the circuit court were played for the jury.
12 At trial, the jury heard testimony from Abel that he and
Grana had agreed that Grana would not fly the Mooney plane in
instrument meteorological conditions without an instructor. Abel
testified that he monitored the weather forecast a few days prior
to the crash, and that he and Grana discussed the weather
forecast via email. Abel testified that he was not at
Chesterfield County Airport on the day of the crash, but that he
checked the weather report as soon as he learned of it. Over the
Administrators’ objection, Abel testified that he had concerns
about Grana’s judgment in deciding to fly on that day:
A. While [Grana] exercised safe judgment during almost all of our flying, the fact that he took off on this day makes –- makes me have some concerns about the judgment, taking off into conditions based on the weather that –- that was reported to me.
Based on the –- all the flying I’ve done with [Grana] and the conversations that we had, I had concerns about why he would take off into those conditions on that day.
Q. With respect to Mr. Grana’s lack of experience in this airplane in actual [instrument meteorological] conditions and the judgment that he used in taking off that day, in your opinion, was that a cause or contributing cause of this accident?
A. I don’t know what happened in that airplane. In my opinion, it wasn’t the best of judgment to take off in those conditions.
13 On appeal, the Administrators argue that Abel’s testimony
regarding Grana’s judgment lacked sufficient foundation and was
improper opinion testimony by a lay witness that invaded the
province of the jury.
(2) Robert Norman’s Testimony
Robert Norman was a co-owner of the Mooney plane along with
Grana. He obtained his pilot’s license around the same time as
Grana, and both men transitioned from flying the Cessna plane to
the Mooney plane. At the time of the crash, Norman had not been
endorsed to fly the Mooney plane solo. He had five to ten hours
less flight time in it than Grana.
Over the Administrators’ objection, the jury heard testimony
from Norman regarding his personal experiences flying the Mooney
and Cessna planes. Norman compared them, opining that the Mooney
plane was faster, more powerful, more complex, and more difficult
to maneuver than the Cessna plane. Norman testified that he had
a “healthy fear” of the Mooney plane and that he did not feel
prepared to fly it solo because of its complexity. He also
stated that he had never perceived problems with the flight
controls in the Mooney plane.
On appeal, the Administrators challenge Norman’s testimony
regarding his subjective feelings and experiences flying the
Mooney and Cessna planes. The Administrators argue that such
14 testimony was improper opinion testimony by a lay witness,
irrelevant, and prejudicial.
(3) Analysis
As stated previously, we review a trial court’s decision to
admit or exclude testimony using an abuse of discretion standard.
See John Crane, Inc., 274 Va. at 590, 650 S.E.2d at 855.
Neither Abel nor Norman was qualified by the court as an
expert. Thus, we review their testimony in light of Rule 2:701,
which states:
Opinion testimony by a lay witness is admissible if it is reasonably based upon the personal experience or observations of the witness and will aid the trier of fact in understanding the witness’ perceptions. Lay opinion may relate to any matter, such as –- but not limited to –- sanity, capacity, physical condition or disability, speed of a vehicle, the value of property, identity, causation, time, the meaning of words, similarity of objects, handwriting, visibility or the general physical situation at a particular location. However, lay witness testimony that amounts only to an opinion of law is inadmissible.
To summarize, Rule 2:701 permits lay witness opinion testimony if
(1) “it is reasonably based upon the personal experience or
observations of the witness;” and (2) it “will aid the trier of
fact in understanding the witness’ perceptions.”
The first prong of Rule 2:701 requires personal knowledge.
Clearly, both Abel’s and Norman’s testimony satisfied this
requirement. Abel was Grana’s flight instructor and had flown
with Grana in various weather conditions. He had extensive
15 personal knowledge of Grana’s flying abilities and was well-
positioned to testify regarding whether Grana should have been
flying in instrument meteorological conditions. Likewise,
Norman’s testimony was based on his personal experiences flying
the Mooney and Cessna planes. He was an appropriate witness to
explain the difference between the two planes because he had
owned both planes and had experience flying them.
The second prong of Rule 2:701 speaks to the necessity of
lay opinion testimony. Generally, lay opinion testimony is only
admitted when “the witness’s information for some reason cannot
be adequately conveyed to the court by a detailed recital of the
specific facts upon which the opinion is based.” Charles E.
Friend & Kent Sinclair, The Law of Evidence in Virginia § 13-
3[a], at 731 (7th ed. 2012). For instance, this may be because
the witness’s impression is one that cannot by its very nature be
broken down into constituent parts. See Richards v.
Commonwealth, 107 Va. 881, 889, 59 S.E. 1104, 1107 (1908)
(holding that a lay witness’s opinion that a substance was oil or
grease was admissible because the subject matter could not be
fully described to the jury as it appeared to the witness).
However, if the witness can conveniently relate the facts in
a manner that will provide the jury with an adequate
understanding of the issue, the witness’s opinion based on those
facts is unnecessary and therefore inadmissible. See Friend &
16 Sinclair, supra, § 13-1[b], at 726; see also Denis v.
Commonwealth, 144 Va. 559, 574, 131 S.E. 131, 135 (1926) (“The
test of admissibility of a conclusion of fact of a nonexpert
witness is this: Is it clear that the jurors would or could have
been fully and as exactly furnished with the data which formed
the basis for the conclusion of the witness as the latter was?
If so, the conclusion is inadmissible in evidence.”) (internal
quotation marks omitted).
We find that Abel’s testimony regarding Grana’s judgment was
unnecessary and therefore should have been excluded pursuant to
Rule 2:701. Abel testified at length regarding Grana’s
inexperience flying the Mooney plane in instrument meteorological
conditions. He testified that he and Grana agreed that Grana
would not fly it in such conditions without an instructor, and
that Grana specifically assured him that he would not fly on the
day of the crash if such conditions were present. That Abel
believed Grana exercised bad judgment in deciding to fly on the
day of the crash was implicit in the rest of his testimony.
Expressing this opinion did nothing further to “aid the trier of
fact in understanding [Abel]’s perceptions.” Va. R. Evid. 2:701.
Rather, it was superfluous. The jury was fully capable of
listening to the specific facts recited by Abel and reaching its
own conclusion based on those facts.
17 Moreover, Abel’s testimony was an impermissible assessment
of Grana’s culpability for the accident. While the passage of
Code § 8.01-401.3 in 1993 expanded the ability of expert and lay
witnesses to express opinions on ultimate issues of fact, “mere
assessments of liability or its constituent findings are not
admissible.” Friend & Sinclair, supra, § 13-5[a], at 742. This
Court has held that witnesses are precluded from “characterizing
acts or conduct as careful, careless, cautious, dangerous, good
management, in the line of duty, necessary, negligent, omitting
anything possible, practicable, proper, prudent, reasonably safe,
skillful, usual or unusual.” Davis v. Souder, 134 Va. 356, 362,
114 S.E. 605, 607 (1922) (internal quotation marks omitted).
Abel’s testimony that “it wasn’t the best of judgment [for Grana]
to take off” characterized Grana’s actions as careless or unsafe.
This was improper lay opinion testimony directed at Grana’s
culpability or blameworthiness for the crash.
The circuit court did not abuse its discretion in admitting
Norman’s testimony. Norman did not address Grana’s judgment or
flying abilities. Rather, his testimony focused solely on his
own experiences flying the Mooney and Cessna planes. Further,
Norman’s opinion testimony as to the differences between the two
planes was not unnecessary. It was impossible for Norman to
adequately convey the differences between them without couching
these differences in comparative terms. Norman’s statements that
18 the Mooney plane was faster, more powerful, more complex, and
more difficult to maneuver than the Cessna plane aided the jury
in understanding Norman’s experiences and therefore qualified as
proper lay opinion testimony pursuant to Rule 2:701.
Finally, Norman’s testimony was relevant and not unfairly
prejudicial. It helped the jury understand Grana’s transition
between the Mooney and Cessna planes. This was relevant because
it bore on Grana’s ability to handle the Mooney plane on the day
of the crash and demonstrated some of the problems he may have
encountered. We cannot say that the probative value of this
testimony was substantially outweighed by the danger of unfair
prejudice. Va. R. Evid. 2:403(a). Thus, Norman’s testimony was
properly admitted. See Gamache v. Allen, 268 Va. 222, 227-28,
601 S.E.2d 598, 601 (2004) (“Evidence that is factually relevant
may be excluded from the jury’s consideration if the probative
value of that evidence is substantially outweighed by the danger
of unfair prejudice.”).
Accordingly, we find that the circuit court abused its
discretion in admitting Abel’s opinion testimony regarding
Grana’s judgment. However, it did not abuse its discretion in
admitting Norman’s testimony.
C. Statements During Closing Argument
The Administrators next challenge certain statements made by
Honeywell’s counsel during closing argument as violating a
19 pretrial order and Virginia law. Prior to trial, the
Administrators filed a motion in limine to exclude any evidence
or argument “as to the number of [Honeywell] autopilots sold or
as to the so-called ‘safety history’ of [the Honeywell]
autopilots.” The circuit court granted the motion.
Yet, during closing argument Honeywell’s counsel stated:
They walk you into this courtroom and try to convince you of this theory. Don’t have one test. Didn’t sprinkle any debris in it to show does this happen. How can it run away? Don’t you expect that out of them? If they have the burden of proof here to prove this happened, why didn’t they show you this stuff? Why didn’t they prove it? It’s never happened before. There is no evidence this has ever happened anywhere any time.
(Emphasis added.) The Administrators promptly objected, arguing
that Honeywell’s counsel’s statements violated the order granting
the motion in limine. The court overruled the objection and
directed Honeywell to “proceed.” A few minutes later,
Honeywell’s counsel again argued that the autopilot system had a
“[s]afe design for 35 years, and no complaints,” and that there
was “[n]o evidence of a prior problem at all ever.”
Immediately following Honeywell’s closing argument, the
Administrators requested a conference outside the jury’s
presence. The Administrators restated their objection and asked
the court to issue a cautionary instruction directing the jury to
disregard the improper statements. The court declined, stating:
“I had previously told the jury that what [the attorneys] tell
20 them is not evidence, and they should not consider it as such,
we’ll leave it at that. Overrule the motion.”
The Administrators again contested the court’s ruling in
their motion to set aside the verdict and for a new trial. The
court denied the motion, finding that the statements were proper
because they “were made in reference to the testimony of the
parties’ experts. No expert, for either side, testified that the
alleged cause of this crash was the cause of another crash that
he had investigated, and [Honeywell] was entitled to make that
argument.”
On appeal, the Administrators assert that the court’s
pretrial order properly excluded any argument regarding the
safety history of the autopilot system, see Goins v. Wendy’s
Int’l, Inc., 242 Va. 333, 335-36, 410 S.E.2d 635, 636 (1991)
(holding that evidence of the absence of other incidents is
inadmissible). They argue that Honeywell violated this ruling by
repeatedly telling the jury that there was an absence of other
incidents. Honeywell responds that its counsel’s statements
merely summarized the testimony of the Administrators’ experts,
who testified without objection that they had not investigated
any other crash caused by debris in the gears of an autopilot
system. We disagree.
Honeywell’s counsel’s statements went beyond summarizing the
experts’ testimony. He did not place his remarks in the context
21 of any particular expert’s testimony. Rather, he made sweeping
proclamations that the autopilot system had a “[s]afe design for
35 years, and no complaints;” that the alleged debris-in-the-
gears problem had “[n]ever happened anywhere any time;” and that
there was “[n]o evidence of a prior problem at all ever.” These
statements violated the court’s pretrial order excluding argument
regarding the safety history of the autopilot system. Because
Honeywell did not assign cross-error to the court’s pretrial
order, it is the law of the case. See Little v. Cooke, 274 Va.
697, 722, 652 S.E.2d 129, 144 (2007) (holdings uncontested on
appeal become “the law of the case”); Board of Supervisors v.
Stickley, 263 Va. 1, 6, 556 S.E.2d 748, 751 (2002).
Consequently, it was error for the circuit court to allow
Honeywell’s counsel to make statements in contravention of its
own order.
D. Jury Instruction on Proximate Cause
The Administrators finally contend that the circuit court
erred in striking portions of their proposed jury instruction on
proximate cause. We disagree.
At trial, the Administrators proffered the following jury
instruction defining proximate cause:
A proximate cause of an accident, injury, or damage is a cause which in natural and continuous sequence produces the accident, injury, or damage. It is a cause without which the accident, injury, or damage would not have occurred. There may be more than one
22 proximate cause[]. Proximate cause need not be established with such certainty so as to exclude every other possible conclusion.
(Emphasis added.) Honeywell objected to the last two sentences.
It noted that, at the time of trial, these sentences were not
included in the Virginia model jury instruction defining
proximate cause. See 1 Virginia Model Jury Instructions – Civil,
No. 5.000 (2012). The circuit court struck the last two
sentences of the proposed instruction over the Administrators’
objection.
On appeal, the Administrators argue that the court erred in
striking those sentences. They claim that the proposed
instruction accurately stated Virginia law, and that the last two
sentences were necessary to dispel any erroneous impression that
there could only be one proximate cause of the accident.
Our 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.”
Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185, 187
(2009) (internal quotation marks omitted). We review de novo
whether an instruction correctly states the law and whether it
finds support in credible evidence. See Lawlor v. Commonwealth,
285 Va. 187, 228-29, 738 S.E.2d 847, 870 (2013). “When reviewing
a trial court’s refusal to give a proffered jury instruction, we
view the evidence in the light most favorable to the proponent of
23 the instruction.” Id. at 228-29, 738 S.E.2d at 871 (internal
The Administrators primarily rely on Holmes v. Levine, 273
Va. 150, 159, 639 S.E.2d 235, 239 (2007), in which we reversed a
jury verdict where the circuit court refused to instruct
regarding multiple potential proximate causes. This reliance is
misplaced. In Holmes, we narrowly held that the circuit court
erred in refusing the instruction “[i]n light of the
Administrator’s theory of the case and the evidence in support of
that theory.” Id. at 160, 639 S.E.2d at 240. In that case,
there were two possible proximate causes of the decedent’s death:
cancer itself and the defendant physician’s negligent delay in
diagnosing the cancer. The Administrator in Holmes put on
considerable evidence regarding both causes. Id. at 159, 639
S.E.2d at 239. Here, however, the Administrators’ position was
that the autopilot system was the sole cause of the accident.
The Administrators’ experts opined that other possible causes of
the accident had been considered and rejected. The experts
explicitly refuted the argument that Grana’s own error could have
contributed to the crash.
In light of the Administrators’ theory, the granted
instruction fully and fairly covered the principle of proximate
24 causation. 7 It “refers to ‘a proximate cause’ instead of ‘the
proximate cause’” precisely because “there may be more than one
proximate cause of an injury.” See 1 Virginia Model Jury
Instructions – Civil, No. 5.000 (2012) (commentary). The jury
repeatedly was instructed that it could find Honeywell liable if
it concluded that Honeywell’s alleged breach of warranty was “a
proximate cause” of the crash. 8 Thus, the first additional
sentence proposed by the Administrators added nothing that was
not already encompassed by the given instructions. While an
instruction may not be withheld from the jury solely because it
varies from the model instruction, see Code § 8.01-379.2, it is
not error for a court to reject proposed additions to a model
instruction that are redundant. See Stockton v. Commonwealth,
227 Va. 124, 145, 314 S.E.2d 371, 384 (1984); Wilson v. Brown,
7 The definition of proximate cause provided to the jury was identical to the corresponding Virginia model jury instruction at the time of trial. We note that the model jury instruction was amended post-trial to add the following sentence: “There may be more than one proximate cause of an accident, injury, or damage.” 1 Virginia Model Jury Instructions – Civil, No. 5.000 (2014). However, the commentary clarifies that this sentence should only be included in cases “[w]here the evidence . . . shows the possibility of more than one proximate cause of an accident.” Id. As discussed, that was not the case here. 8 The given proximate cause instruction used the phrase “a cause” three times. It never referred to “the cause” of the accident. Likewise, the rest of the given instructions consistently referred to “a proximate cause” and never referenced “the proximate cause” of the accident. By contrast, in Holmes we emphasized that the circuit court improperly used the definite article “the” when instructing the jury since concurrent causes were alleged. 273 Va. at 160, 639 S.E.2d at 240.
25 136 Va. 634, 637-38, 118 S.E. 88, 89 (1923) (“Where the jury has
been sufficiently and correctly instructed on any point, it is
not error to refuse further instructions on that point, however
correct a tendered instruction may be.”).
Finally, the second proposed additional sentence could have
confused the jury regarding the burden of proof. The jury was
separately instructed to find for the Administrators if they
“proved by the greater weight of the evidence” that, among other
things, the autopilot system was a proximate cause of the
accident. It also was specifically instructed as to the meaning
of the phrase “greater weight of all the evidence.” These
instructions were clear and consistent. Adding words such as
“certainty” could have heightened the potential for confusion.
Accordingly, we find that the circuit court did not err in
striking the last two sentences of the Administrators’ proposed
instruction on proximate cause.
III. CONCLUSION
For the reasons stated, we will reverse the judgment of the
circuit court and remand for further proceedings consistent with
this opinion.
Reversed and remanded.