Shadow Boxing Empty Chairs, Superseding Cause … Boxing Empty Chairs, Superseding Cause and Defendant’s ... Shadow Boxing Empty Chairs: Superseding Cause ... demurrer, special plea,

Shadow Boxing Empty Chairs,

Superseding Cause and Defendant’s Burden of Proof?

Saturday, April 2, 2016

Mary Lynn Tate TateLaw PC

16006 Porterfield Highway Abingdon, VA 24210

Phone: 877-938-0894 Email: [email protected]

www.tatelaw.com

mailto:[email protected]

http://www.tatelaw.com/

MARY LYNN TATE is listed in Best Lawyers in America (2008–2014), the most respected referral list of current attorneys, for medical malpractice and personal injury. She is a fellow of the International Academy of Trial Lawyers (IATL), an honor bestowed on selected trial lawyers numbering no more than 500 within the United States, and carries the highest AV rating in the Martindale-Hubbell Legal Directory, a national peer review rating system. Ms. Tate is co-director of the National Trial Advocacy College at the University of Virginia, former president of Virginia Trial Lawyers Association (VTLA), a permanent member of the Fourth Circuit Federal Judicial Conference, and a recipient of the Brennan Award from the University of Virginia honoring lawyers for excellence in advocacy and professional achievement. She has served on Virginia's Professionalism Faculty and the National College of Advocacy (NCA), spoken on numerous national and state programs, including the NCA's Medical Skills College, and appeared as a guest speaker in more than 20 states. Ms. Tate also served on arbitration and grievance panels for labor and business, as well as the Board of Governors for the American Association for Justice (formerly ATLA) and four terms on its Executive Committee. http://www.tatelaw.com/Law-Firm-About-Ms-Tate-Abingdon-VA.html

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Shadow Boxing Empty Chairs:

Superseding Cause and

Defendant’s Burden Of Proof

Virginia Trial Lawyers Association

Annual Convention 2016

The Homestead

Mary Lynn Tate

Tate Law PC

16006 Porterfield Highway

Abingdon, Va 24210

276-628-5185

© Mary Lynn Tate, 2016

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Shadow Boxing Empty Chairs: Superseding Cause and

Defendant’s Burden Of Proof*

_________________________________________________

Contents

Context 2

Definition of superseding cause 5

The elements of superseding cause 6

Burden of Proof 6

Joint And Several Liability, Joinder, Contribution 8

Jury Instruction Requirements, Purpose and Review 11

Discovery 13

Case lists 15

Sample discovery 17

Sample briefs 18

_____________________________________________________

Context

When a defendant responds to a complaint, expressly or obliquely, that

others, nonparties, are or may be responsible for a plaintiff’s injury, these

Two briefs that were submitted in a case currently pending at the Supreme Court of Virginia are provided in the appendix to this outline. Special thanks to William “Will” Harty of Patton, Wornam, Hatten and Diamonstein for writing the VTLA amicus brief and to Brent Brown for consulting on that brief. **© Mary Lynn Tate, 2016

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alleged wrongdoers become the shadow defendants with whom you are also

fighting and the law of superseding cause is squarely engaged.

If you don’t shine light on and eliminate these shadows, they can become

ever present but ‘empty chairs’ during trial, like a boxing match with

shadows, impossible to hit and impossible to escape.

These shadows are especially troublesome for plaintiffs when there are

multiple defendants at the outset who go out of the case before trial because

of settlement, nonsuit or other reasons.

Identify the oblique reference, the catch-all defense, or the affirmative

defense that another caused the injury and force the finger pointing out in

the open as early as possible. This can be accomplished by focused use of

motion in limine, demurrer, special plea, motion to strike and attention to

jury instructions.

To present prejudice from which a plaintiff cannot likely recover, discover

the issue early, force specific allegations, seek a bill of particulars if

necessary, demur to the affirmative defense, move to strike and always file

a motion in limine to preclude any prejudicial commentary to the jury.

To be entitled to a superseding cause instruction the defendant must make a

prima facie showing that another person or entity is the sole cause without

any contribution from the defendant even in the slightest. This

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determination is a question of law for the court. 1 In at least one reported

case this determination was made after the court took a motion in limine

under advisement, heard evidence establishing plaintiff’s prima facie case

against the defendant, then granted the motion in limine to exclude

defendant’s evidence against third parties. See Jenkins v. Payne.

Get the issue to the courts attention as early as possible so that the court is

aware of the elements of superseding cause and defendant’s burden of

proof.

1 In Kellerman v. McDonough, 278 Va. 478, 493-494, 684 S.E.2d 786, 794

(2009), the trial court granted the defendant’s demurrer on the duty issue

and dismissed the case. The Kellerman’s appealed the trial court’s decision.

No trial had occurred and no evidence had been admitted. While addressing

the issue of proximate cause, the Supreme Court held “that the acts of the

third party did not constitute, as a matter of law, a superseding act between

Paula's alleged negligence and Jaimee's death.” Kellermann, 278 Va. at 499,

684 S.E.2d at 797. Both Justice Koontz and Justice Kinser agreed with this

part of the majority’s opinion. See id. at 499, 684 S.E.2d at 797 (Koontz, J.,

concurring in part and dissenting in part); id. at 513, 684 S.E.2d at 805

(Kinser, J., concurring in part and dissenting in part). Thus, the Court

unanimously struck the superseding cause claim before any trial occurred or

any evidence was taken, and it never approved the admission of evidence on

this issue on remand.

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Definition Of Superseding Cause

The Virginia Model Jury Instructions contains this definition of superseding

cause:

A superseding cause is an independent event, not reasonably

foreseeable, that completely breaks the connection between

the defendant's negligent act and the plaintiff’s injury. A

superseding cause breaks the chain of events so that the

defendant's original negligent act is not a proximate cause of

the plaintiff’s injury in the slightest degree.

VMJI, Instruction No. 5.010.

While this definition tracks the language of several reported opinions of the

Supreme Court of Virginia, it is not a jury instruction. It contains some of

the legal terms and concepts relating to superseding cause but omits others.

It is not a clear and complete statement of Virginia law on superseding cons

nor is it the best language from those opinions. Many cases have discussions

of the elements of superseding cause that are more easily understood. See

Ex. B List of Authorities.

This definition also does not include all the requisite elements of superseding

cause. Importantly, it does not include the defendant’s burden of proof.

The Elements of Superseding Cause

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The VMJI definition of superseding cause, given alone, is an erroneous

instruction. As an instruction that lacks clarity, is confusing, misleading and

devoid of the essential legal concept of superseding cause: defendant’s

burden of proof. It does not clearly and accurately inform the jury of the

elements that superseding cause or the consequences of finding those

elements.

The elements of superseding cause are:

1. the burden of proof is on defendant;

2. any intervening act or omission must be the sole cause of injury, i.e.

supersede or sever any relationship between the subject defendant's act and

the injury

3. an intervening act, event, conduct or omission or series of such;

4. the superseding act must NOT be foreseeable to the subject

defendant

5. the superseding act must be completely independent of subject

defendant’s act or omission;

6. the intervening act or series of acts must NOT be “put in motion” or

“put in operation” or also caused by subject defendant’s wrongful act or

omission.

Burden Of Proof

Superseding clause is an affirmative defense and the burden of proof is on

the defendant.

The burden of proof is on the defendant asserting a superseding cause to

prove that another’s negligence alone caused the injuries and he is free of

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negligence even “in the slightest degree”. Atkinson v. Scheer, 256 Va.

448 (1998) (emphasis added).

The superseding cause must exonerate the defendant. It does not matter if

other innocent or negligent causes also contributed to the injury or if those

clauses contributed to a greater extent than this defendant. This is true

because Virginia’s common and statutory tort law is built upon the rule of

joint and several liability.

A defendant “can not be exonerated by urging and showing the negligence”

of other parties or nonparties. Von Roy v. Whitescarver, 197 Va. 384, 393,

89 S.E.2d 346, 352 (1955) (citing Yonker v. Williams, 169 Va. 294, 299, 192

S.E. 753, 755 (1937)); School v. Walker, 187 Va. 619, 629, 47 S.E.2d 418,

423 (1948). “Other sufficient causes, whether innocent or arising from

negligence, do not provide a defense.” Boomer, 285 Va. at 158, 736 S.E.2d

at 732; see also Hill, 119 Va. at 421, 89 S.E. at 904 (“‘To show that other

causes concurred in producing, or contributed to the result is no defense to

an action for negligence….”).

And “[i]t is not essential, therefore, for a plaintiff to show that an act,

claimed to have been the proximate cause of a certain result, was the only

cause. It is sufficient if it be established that the defendant's act produced or

set in motion other agencies, which in turn produced or contributed to the

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final result.” Von Roy, 197 Va. at 393, 89 S.E.2d at 352 (quoting

Chesapeake & O. Ry. Co. v. Wills, 111 Va. 32, 68 S.E. 395, 397 (1910)).

Joint And Several Liability, Joinder, Contribution

The requirement that a defendant may not defend itself by blaming others

unless it is totally exonerated fits squarely within the legal framework of

Virginia’s longstanding tort liability including joint and several liability,

joinder and contribution, etc.

Under joint and several liability, a plaintiff may sue any or all of the putative

tortfeasors who caused his injury and the plaintiff may bring suits against

successive defendants until the plaintiff is either made whole or ultimately

fails to prove that any of them are liable. Va. Code § 8.01-443.

Any one of these defendants may be held liable for a plaintiff’s entire

damages if the defendant’s negligence or defective product was a proximate

cause of the plaintiff’s injury. See Ford Motor Co. v. Boomer, 285 Va. 141,

151, 736 S.E.2d 724, 728 (2013) (“[O]ur law provides a means of holding a

defendant liable if his or her negligence is one of multiple concurrent causes

which proximately caused an injury and when any of the multiple causes

would have each have been a sufficient cause.”); see also Carolina,

Clinchfield & Ohio Railway Co. v. Hill, 119 Va. 416, 421, 89 S.E. 902, 904

(1916) (“Where the negligence of two or more persons acting independently,

concurrently results in an injury to a third, the latter may maintain his action

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for the entire loss against any one or all of the negligent parties….’”);

Maroulis v. Elliott, 207 Va. 503, 510, 151 S.E.2d 339, 344 (1966) (“In

determining the liability of either of several persons whose concurrent

negligence results in injury, the comparative degrees of negligence are not

to be considered, each being liable for the whole even though the other was

equally culpable, or contributed in a greater degree to the injury.”).

Virginia’s common and statutory tort law is built upon this fundamental rule

of joint and several liability.

It does not matter if other innocent or negligent causes also

contributed to the injury or if those other causes contributed to a

greater extent. What matters in a superseding cause defense is

whether the intervening the sole cause and totally exonerates the

defendant. That determination can almost always be made as a

matter of law.

Virginia’s joinder rules enable a plaintiff to pursue putative tortfeasors in

successive suits unless another defendant is found to be a necessary or

indispensable party. See, e.g., Fox v. Deese, 234 Va. 412, 421, 362 S.E.2d

699, 705 (1987); Va. Code § 8.01-5(A); Va. S. Ct. R. 3:12.

Likewise, Virginia’s contribution statute, cross claim rules, and third party

claim rules are based on the underlying joint and several liability doctrine.

They recognize that a plaintiff need not join all putative tortfeasors in the

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action but they ameliorate the rule by allowing a defendant to either join

other putative tortfeasors in the case or pursue them in later contribution

actions. See, e.g, Sullivan v. Robertson Drug Co., 273 Va. 84, 91, 639

S.E.2d 250, 255 (2007) (contribution); Va. Code § 8.01-34; Va. R. Sup. Ct.

3:10 & 3:13. When a defendant brings such claims, Virginia law places the

burden of proving the claim squarely on the party bringing it, and it gives

the cross, third-party, or contribution defendant the opportunity to defend

against the claim. Sullivan, 273 Va. at 91, 639 S.E.2d at 255 (“The party

seeking contribution has the burden of proving that the concurring

negligence of the other parties was a proximate cause of the injury for which

damages were paid.”).

But joint and several liability rules still allow a plaintiff to collect the whole

amount of the judgment against either or both defendants if the injury is

indivisible. Maroulis, 207 Va. at 511, 151 S.E.2d at 345 (“It is well settled in

Virginia that ‘. . . (W)here separate and independent acts of negligence of

two parties are the direct cause of a single injury to a third person and it is

impossible to determine in what proportion each contributed to the injury,

either or both are responsible for the whole injury.’

Outside of these rules, Virginia law does not allow defendants to argue

the empty chair.

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Superseding cause, then, is a caveat to the general rule against non-

party causation evidence: it allows a defendant to prove that another cause

“sever[ed] the link of proximate causation between the initial negligent act

and the resulting harm” of the initial tortfeasor. If the initial tortfeasor is

able to prove superseding cause, it is relieved of liability. Williams v. Joynes,

278 Va. 57, 63, 677 S.E.2d 261, 264 (2009); Jefferson Hosp. v. Van Lear,

186 Va. 74, 82, 41 S.E.2d 441, 444 (1947); Hines v. Garrett, 131 Va. 125,

108 S.E. 690, 694 (1921). The Court has “emphasized that ‘a superseding

cause of an injury “constitutes a new effective cause and operates

independently of any other act, making it and it only the proximate cause of

injury.”’” Kellerman v. McDonough, 278 Va. 478, 493-494, 684 S.E.2d 786,

794 (2009).

Jury Instruction Requirements, Purpose And Review

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. Schlimmer v. Poverty Hunt Club, 268

Va. 74, 78 (2004). A “correct statement of the law… [in a jury instruction]

(is one of the) essentials of a fair trial.” Dowdy v. Com., 220 Va. 114, 116

(1979).

"Instructions should be pertinent to the issues and set out correct legal

principles complete in themselves as far as they go with regard to the

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specific issues involved. If an instruction may reasonably be regarded as

having a tendency to mislead the jury, it is error to give it." H.W. Miller

Trucking Co. v. Flood, 203 Va. 934, 937, 128 S.E.2d 437, 440 (1962). We

will not find error when a jury was instructed correctly as to the law and the

surrounding circumstances assure us that the jury was not confused about

its obligations. (citations omitted) Castle v. Lester, 636 S.E.2d 342, 272 Va.

591 (2006)

The VMJI definition of superseding cause, given alone, is an erroneous

instruction. As an instruction it lacks clarity, is confusing, misleading and

devoid of the essential legal concept of superseding cause: defendant’s

burden of proof. It does not clearly and accurately inform the

jury of the elements of superseding cause or the consequences of

finding evidence of those elements. For example, who is charged

with ‘reasonably foreseeing’ an intervening act? What happens if

the defendant foresaw the intervening act?

Considering how to apply the concepts contained in the definition to a set of

facts becomes a maze to a lay person.

Whether the content of a jury instruction “is an accurate statement of

the relevant legal principles is a question of law” that the Supreme Court

reviews de novo. Cain v. Lee, ___ Va. ___, 772 S.E.2d 894 (2015). When

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the Supreme Court reviews the content of jury instructions, its sole

responsibility “is to see that the law has been clearly stated and that the

instructions cover all issues which the evidence fairly raises.” Id. The

court requires that jury instructions be relevant, clear, accurate, complete

and supported by sufficient evidence. Id.

When an instruction has been “erroneously submitted to the jury and

the record does not reflect whether such ... instruction formed the basis of

the jury's verdict, we must presume that the jury relied on such ...

instruction in making its decision." Williams v. Le, 276 Va. 161 (2008).

Object to this definition as a jury instruction. Preserve your objection to

defendant’s entitlement to instruction, to content of the instruction of the

instruction, sufficiency of evidence to support it. State why it is defective but

you have no obligation to provide a correct instruction.

See list of cases on Jury Instructions. Ex. B.

Discovery

To prevent error and prejudice from which a plaintiff cannot likely recover,

discover the issue early, force specific allegations, demur to the affirmative

defense, move to strike, file motion in limine. File a motion in limine to

prevent trial commentary even if you have gotten a ruling excluding a

superseding cause defense. Get the issue to the courts attention as quickly

as possible so that the court is aware of the elements and especially

defendant’s burden of proof.

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In the circumstances use great caution in crafting expert designations and in

responding to discovery requests. Where your initial investigation reveals

that there may be concurring negligence but additional evidence may

eliminate one or more of the potential tortfeasors, discuss Fact discovery

and expert designations in the framework of evidence and facts available at

the time being careful to reserve the right to modify subject to additional

information.

In cases where defendants are out of the case at the time of trial, remaining

defendants may attempt to use discovery responses or expert designations

implicating those now absent defendants to attack the credibility of your

claims and experts. These attacks are not admissible. See Atkinson v.

Scheer.

Sample Discovery attached.

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Superseding Cause Selected Cases

Atkinson v. Scheer, 256 Va. 448 (1998)

Brown v. Koulizakis, 229 Va. 524, 531 (1985)

Brown v. Parker, 167 Va. 286 (1937)

City of Radford v. Calhoun, 165 Va. 24 (1935)

Coleman v. Blankenship Oil Corp., 221 Va. 124 (1980)

Ford Motor Company v. Boomer, 285 Va. 141 (2014)

Hadeed v. Medic-24, Ltd., 237 Va. 277 (1989)

Jefferson Hospital, Inc. v. Van Lear, 186 Va. 74 (1947)

Jenkins v. Payne, 251 Va. 448 (1996)

Kellerman v. McDonough, 278 Va. 478 (2009)

Lawlor v. Commonwealth, 285 Va. 187 (2013)

Maroulis v. Elliott, 207 Va. 503 (1966)

Moore v. City of Richmond, 85 Va. 538 (1888)

Panousos v. Allen, 245 Va. 60 (1993)

Tunnel v. Ford Motor Co., 330 F. Supp. 2d 748 (W.D. Va. 2004)

Williams v. Le, 276 Va. 161 (2008)

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Jury Instructions

Selected Cases

1. Cain v. Lee. Record No. 141105 (Va., 2015)

2. Clohessy v. Weiler, 250 Va. 249, 462 (Va., 1995)

3. Feddeman & Co. v. Langan Associates, 260 Va. 35 (Va., 2000)

4. Hale v. Maersk Line Ltd., Record Nos. 111389, 111390 (Va., 2012)

5. Hinkley v. Koehler, 269 Va. 82 (Va., 2005)

6. Monahan v. Obici Medical Management Services, Inc., 271 Va. 621

(Va., 2006)

7. Nelson v. GREAT EASTERN RESORT, INC., 265 Va. 98 (Va., 2003)

8. Online Resources Corp. v. Lawlor, 285 Va. 40 (Va., 2013)

9. Honsinger v. Egan, 266 Va. 269, 585 (Va., 2003)

10. Hawthorne v. VanMarter, 279 Va. 566 (Va., 2010)

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SAMPLE DISCOVERY

INTERROGATORIES

1. If you contend or will contend at trial that another Defendant(s) or

nonparty(s) to this litigation, is/are responsible for causing this incident or Plaintiff’s

injury, identify them and describe in detail how their act(s) or omission(s)

contributed to the incident or injury, stating all the facts on which you base your

contention.

2. If you contend or will contend at trial that another Defendant(s) or

nonparty(s) to this litigation was the sole cause of Plaintiff’s injury identify them

and describe in detail how their act(s) or omission(s) caused the injury, stating all

the facts on which you base your contention.

3. Identify and describe all facts, documents, and persons with knowledge, that

support your claim that other(s) are the sole cause of Plaintiff’s injury.

4. Identify and describe all facts, documents, and persons with knowledge, that

support any affirmative defense you have pled unless waived, moot or previously

ruled on by the Court.

REQUESTS FOR PRODUCTION OF DOCUMENTS

1. All documents which support the facts and allegations in your answer,

defenses and affirmative defenses.

2. All documents that contain or support any facts upon which you rely in

support of your affirmative defenses or in support of your claim that other(s) are

the sole cause of the Plaintiff’s injury.

Superseding Cause Sample Motion in Limine

ARGUMENT AND AUTHORITIES

1) Plaintiff's Motion in Limine to Exclude the "Empty Chair" Defense and Any Related or Derived Improper Testimony by Defendants' Experts, and/or Argument by Counsel.

It is anticipated that Defendants' trial approach will be to improperly blame entities

and individuals who are not named defendants in this case for the Plaintiffs' injuries and/or

damages, namely S.M. Nichols Builders, Inc., the builder of the apartment complex, Robert

Magoon of Magoon and Associates, the architect who designed the complex, a separate

construction architect and/or the installer of the HV AC system and gas water heater. They

may also argue that former defendants CSB L.L.C. III and University Development, Inc.

(UDI) are responsible for Plaintiffs injuries. (The predecessors of former defendant's CSB

and UDI may be in this group.) This is not permissible under Virginia law and will subject

this case to a mistrial. So long as Plaintiffs' have prima facia cases of these defendants'

liability contributing to cause their injuries, Virginia law prohibits claims of fault against

non-parties. Pursuant to this Motion in Limine, Plaintiffs move for an order directing that

no reference be made at trial by any witness, party or during argument by counsel,

(1) regarding any conduct or purported acts of negligence or breaches of any

standards or duties by any individual or entity other than Defendants; and

(2) contending, claiming or arguing that any other nonparty individual or entity is

responsible for or caused the Plaintiffs' injuries and/or damages.

As is well-established under Virginia law, it is impermissible for the defendants to

point to an entity or individual who is not a party to the action -the so-called "empty chair"-

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where there is prima facia proof of the instant Defendants' negligence. See Jenkins v.

Payne, 251 Va. 448, 465 S.E.2d 795 (1996) (trial court's granting of Plaintiffs Motion in

Limine excluding any evidence at trial that a settling physician was negligent was proper

and affirmed); Atkinson v. Scheer, 256 Va. 448, 508 S.E.2d 68 (1998) (it is reversible error to

permit the defendant to elicit testimony from Plaintiff's expert witness regarding a non

Defendant' s negligence because the defendant was also negligent); Williams v. Le, 276 Va.

161,662 S.E.2d 73 (2008) (it was reversible error to instruct the jury on superseding

intervening causation of a non-defendant doctor's negligence). The actions of other

individuals and entities that are not parties in this case are not at issue in this case and

their conduct cannot be characterized as superseding cause that totally absolves any

current Defendant.

In Williams, Atkinson and Jenkins multiple defendants were alleged to have

committed concurrent negligence that resulted in the respective plaintiffs' decedents'

deaths. See Id. At trial, the remaining defendants sought to introduce evidence pointing to

absent parties' negligence in causing the deaths in question. See Atkinson, 256 Va. at 455,

508 S.E.2d at 72. The Supreme Court of Virginia holds that expert opinion as to another

non party's negligence is inadmissible unless the defendant establishes that such

negligence is superseding fault-the sole proximate cause of the injury. "The proximate

cause of an event is that act or omission which, in natural and continuous sequence,

unbroken by an efficient intervening cause, produces the event, and without which that

event would not have occurred." See Williams 276 Va. at 167,662 S.E.2d at 77, (quoting

Coleman v. Blankenship Oil Corp., 221 Va. 124, 131, 267 S.E.2d 143, 147 (1980)). "To be a

superseding cause, whether intelligent or not, it must so entirely supersede the

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operation of the defendant's negligence, that it alone, without the defendant's

contributing negligence thereto in the slightest degree, produces the injury." Id.

At the very least the court should prohibit defendants from blaming nonparties until

after Plaintiffs' case in chief to permit Plaintiffs to prove Defendants' fault contributed to

produce the injury "in the slightest degree". Otherwise Plaintiffs cannot escape the

prejudice of Defendants' improper attribution of fault to nonparties in their openings and

examination of witnesses. If this was error in Atkinson~xamining Plaintiffs expert

regarding non-party fault--permitting it here would also be error. This is especially true

since the Plaintiffs' expert will have just given evidence regarding the Defendants'

concurring negligence.

In Atkinson v. Sheer, supra, during a jury trial, Dr. Scheer was permitted to ask the

Plaintiff's expert witness, over the Plaintiff's objection, whether another physician who had

also treated Atkinson had committed acts of negligence. The trial court permitted Dr.

Scheer to elicit such testimony, and at the conclusion of the trial, the jury returned a

verdict in favor of Dr. Scheer. The plaintiff appealed. The Court held that the burden of

proof is on the Defendant asserting a superseding cause to prove he is free of negligence

even "in the slightest degree'. The Atkinson court explained:

"Dr. Scheer sought to relieve himself of liability for his purported negligent acts because of a claimed superseding intervening cause. Therefore, he was required to prove that Dr. Wampler-Adams' failure to admit Atkinson to the hospital entirely superseded the operation of Dr. Scheer's own alleged negligence so that Dr. Wampler-Adams' negligence alone, without any contributing negligence, even in the slightest degree by Dr. Scheer, caused Atkinson's injuries. Dr. Scheer failed to meet this burden. Id.

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The trial court can make this determination on a Motion in Limine prior to trial

where there is a prima facia case against the defendants. "Issues of negligence and

proximate causation ordinarily are questions of fact for the jury's determination. Brown v.

K.oulizakis. 229 Va. 524, 531, 331 S.E.2d 440. 445 (1985). A court decides these issues only

when reasonable persons could not differ. Hadeed v. Medic-24, Ltd., 237 Va. 277, 285, 377

S.E.2d 589, 593 (1989).

Here it is abundantly clear that Atmos, State and Watts' acts and omissions as

alleged and as established in pretrial motion hearings, concurred and contributed to cause

Plaintiffs' injuries.

In Jenkins, the Supreme Court considered "whether the trial court erred in excluding

from the jury's consideration (1) opinion evi~ence that another physician, who had settled

the Plaintiffs claim against him, was negligent in his treatment of the decedent, and (2) the

Defendants' argument that the settling physician was the sole proximate cause of the

decedent's death." Jenkins, 251 Va. at 124, 465 S.E.2d at 796.

Prior to trial, the plaintiff settled his claim against Dr. Rothman and Dr. Rothman's

professional corporation. Based on this fact, the plaintiff made a Motion in Limine

requesting the trial court to exclude any opinion evidence that Dr. Rothman was negligent

in his treatment of Payne. The defendants objected, arguing that their defense would be

based on the theory that Dr. Rothman's negligence was the sole proximate cause of Payne's

death. The defendants contended that, in order to present this defense to the jury, they

needed to show that Dr. Rothman was negligent. The Jenkins' trial court initially denied

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the motion in Limine, stating, "I don't feel like I can rule as a matter of law ... [on the]

representations from counsel." The court later granted the Motion during trial, ruling that

Dr. Rothman's conduct was "at the very best ... concurrent negligence as opposed to

[superseding]. And that being the case, I don't think Dr. Rothman's negligence is relevant

to the issues that this jury has got to decide." The finding of concurrent fault was affirmed.

Here, there can be no question that these Defendants' conduct necessarily

contributed and concurrently caused the CO exposure else there would have been no gas

connection, no "Hydroheat" system with open heater exhaust vents coupled with an

unstabling air handler and no malfunctioning TPA valve. Under no circumstances can it

reasonably be said that any non-party conduct was the "sole" cause of the carbon monoxide

poisoning.

In Williams on the question of causation, the ·supreme Court found that the evidence

proved without contradiction that the communication problems in the case were begun and

put in motion by Dr. Le's failure to make direct contact with Dr. McClain, a member of his

team, or Williams, and said [A]n intervening cause does not operate to exempt a

defendant from liability if that cause is put into operation by the defendant's

wrongful act or omission." Jefferson Hosp., Inc. v. Van Lear, 186 Va. 74, 81, 41 S.E.2d

441, 444 (1947). (Emphasis added.)

Citing Jenkins, the Supreme Court reaffirmed in Atkinson the following key

principle, without which joint and several liability would have little meaning:

In order to relieve a defendant of liability for his negligent act, the negligence intervening between the defendant's negligent act and the injury must so entirely supersede the operation of the defendant's

6

negligence that it alone, without any contributing negligence by the defendant in the slightest degree, causes the injury. Id.; Coleman v. Blankenship Oil Corp., 221 Va. 124, 131,267 S.E.2d 143, 147 (1980); City of Richmond v. Gay, 103 Va. 320, 324, 49 S.E. 482, 483 (1905). Thus, a superseding cause of an injury 'constitutes a new effective cause and operates independently of any other act, making it and it only the proximate cause of injury.' Maroulis v. Ellioll, 207 Va. 503, 511, 151 S.E.2d 339, 345 (1966). Jenkins, 251 Va. at 128-29, 465 S.E.2d at 799.

Atkinson at 455. (citations in original).

Under this precedent, in cases of concurrent negligence by multiple entities

and individuals, as is the case here, Defendants may not introduce evidence of

negligence on the part of an absent entity or individual. The only time a defendant

may do so is when Plaintiff has not established a prima facia case against Defendant(s) and

the Defendant establishes that the negligence of a non-party is the sole proximate cause of

Plaintiff's injury. See also Kellerman v. McDonough, 278 Va. 478, 684 S.E.2d 786 (2009)

(driver's later recklessness is not the sole proximate cause of minor passenger' s death

where host family initially assumed duty to care for minor).

These principles bar these Defendants from introducing evidence regarding, or even

implying, alleged negligence on the part of others not party to the case. Moreover,

Defendants have failed to designate and to plead their cases in accordance with a theory of

superseding negligence. Defendants did not blame others in their defenses and refused in

discovery to blame any other party or entity for the cause of Plaintiffs' injuries. They should

not be permitted to do so now.

At the very least the Court should prohibit defendants from blaming nonparties until

after Plaintiffs' case in chief to permit Plaintiffs to prove Defendants' fault contributed to

produce the injury even if "in the slightest degree". Otherwise Plaintiffs cannot escape the

7

prejudice of defendants' improper attribution of fault to nonparties in their openings and

examination of witnesses. If this was error in Atkinson-examining Plaintiffs expert

regarding non-party fault -permitting it here would also be error. This is especially true

since the expert will have just given evidence regarding the defendants' concurring .

negligence.

Accordingly, Plaintiff requests that the defense be prohibited from introducing

evidence or soliciting such testimony from any witness or from any of their designated

experts, or during opening/closing at trial.

IN THE

Supreme Court of Virginia

RECORD NO. 151088

CAROLYN A. DORMAN, et al.

Appellants,

v.

STATE INDUSTRIES, INC.

Appellee,

APPELLANTS’ OPENING BRIEF

Mary Lynn Tate, Esq. VSB No. 16085

TATE LAW PC


Abingdon, Virginia 24210 Telephone: (276) 628-5185

Facsimile: (276) 628-5045

[email protected]

Counsel for Appellants

LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond, Virginia 23219 (804) 644-0477

A Division of Lantagne Duplicating Services

i

TABLE OF CONTENTS

Table of Authorities ..............................................................iiii

Preliminary Statement ........................................................... 1

Assignments of Error ............................................................. 2

Nature of the Case and Material Proceedings Below ................... 3

Statement of Facts ................................................................ 5

Argument .......................................................................... 19

A. The trial court erred in admitting State’s evidence and

arguments of the raw numbers of atmospheric gas water

heaters sold, their purported safety record and the absence of

prior injuries, all irrelevant to plaintiffs’ claims as a matter of

law. (AOE 1) ...................................................................... 19

1. Standard of Review .................................................... 19

2. Discussion and Authorities .......................................... 20

a. State's evidence that 60 million open exhaust vent gas

heaters are in use, the heater's safety record and the

absence of prior injuries violated Virginia's long established

rule of exclusion……………………………………………………………………20

b. State's raw numbers of open exhaust vent gas water

heaters in use were not admissible as 'usage' under

Virginia's doctrine of "custom and usage in the industry"…26

B. The trial court erred in granting Instruction No. 22 on superseding cause because it misstated the law and was not

supported by State’s evidence (AOE 2). ................................. 28


2. Discussion and Authorities…………………………………………………29

a. The superseding cause instruction failed to include

defendant's burden of proof and other essential elements to

ii

fully, fairly and clearly inform the jury of the applicable

law…………………………………………………………………………………………29

b. The superseding cause instruction was an erroneous

submission of law to the jury and is presumed to be harmful

error……………...............................................................31

c. State failed to prove that its open exhaust design did

not contribute to plaintiffs' injuries in the slightest and also

failed to prove that any acts or omissions of others were the

sole cause plaintiffs' injuries as a matter of law…………………32

C. The trial court erred in admitting State’s evidence and

arguments that superseding negligence caused Plaintiffs’

injuries because State failed to prove that such negligence did not entirely supplant the operation of State’s negligence, was

not put in operation by State’s negligence and was not

reasonably foreseeable as a matter of law. (AOE 3) ................ 33


2. Discussion and Authorities .......................................... 35

a. State's unsealed open exhaust design was the only

necessary physical antecedent permitting emissions of

carbon monoxide into the living space proximately

contributing to plaintiff's injuries as a matter of law…………35

b. State admitted foreseeability of the air handler

disrupting combustion air for the open vent gas heater by

placement beside the air handler as here………………………....44

c. State's evidence failed to prove that installation,

maintenance or other issue had any causal relationship to

plaintiffs' injuries as a matter of law, certainly not sole

causation………………………………………………………………………………44

Conclusion ......................................................................... 47

Certificate .......................................................................... 48

iii

TABLE OF AUTHORITIES

Atkinson v. Scheer, 256 Va. 448 (1998)……………………….31, 43, 46

Bayliner Marine Corp. v. Crow, 257 Va. 121 (1999)……………27, 28

Brown v. Koulizakis, 229 Va. 524, 531 (1985)…………………….……46

Brown v. Parker, 167 Va. 286 (1937)…………………………………………34

Cain v. Lee, ___ Va. ___, 772 S.E.2d 894 (2015)……………..……..28

City of Radford v. Calhoun, 165 Va. 24 (1935)………………………….24

Dowdy v. Com., 220 Va. 114, 116 (1979)………………………………….31

Ford Motor Company v. Boomer, 285 Va. 141 (2014)……………….33

Goins v. Wendy’s International, Inc., 242 Va. 333 (1991)…passim

Hadeed v. Medic-24, Ltd., 237 Va. 277 (1989)………………………….35

Holley v. Pambianco, 270 Va. 180 (2005)………………………………….21

Holmes v. Levine, 273 Va. 150 (2007)……………………………………….33

Kellerman v. McDonough, 278 Va. 478, 684 (2009)………………….42

Moore v. City of Richmond, 85 Va. 538 (1888)……………………22, 24

Porter v. Commonwealth, 276 Va. 203, 260 (2008)………………….35

Sanitary Grocery Co. v. Steinbrecher, 183 Va. 495 (1945)………23

Sykes v. Norfolk and Western Railway Co., 200 Va. 559

(1959)……………………………………………………………………………………..……24

iv

Turner v. Manning, Maxwell and Moore Inc., 216 Va. 245

(1975)……………………………………………………………………………………………27

Williams v. Le, 276 Va. 161 (2008)……………………………………..32, 33

Wood v. Woolfolk Properties, Inc., 258 Va. 133 (1999)……………22

Rules

Rule of Evidence 2:402(a)……………………………………………………………25

1

Preliminary Statement

In this products liability case, the five plaintiffs suffered near

death experiences and injuries from severe carbon monoxide

poisoning. The source of the carbon monoxide was State’s Apollo

Residential Gas Water Heater which Plaintiffs claim was

defectively designed and unreasonably dangerous for residential

use because of its unsealed atmospheric or open exhaust vent in

the living space. Sealed combustion was state of the art when

this heater was manufactured. State sold 3 sealed models at that

time. The open exhaust heater is susceptible to incomplete

combustion producing carbon monoxide backdrafting into living

space due to wind changes, interior pressure changes and other

air flow disruption.

State defended by blaming others for installation,

maintenance and code violations but failed to prove any were sole

causes of the poisoning if related at all. The trial court over

Plaintiffs’ objections permitted State to point fingers at multiple

conditions and entities without any threshold showing of liability

ignoring the fact that there could have been no carbon monoxide

2

emission but for the State heater open exhaust. State was

granted a superseding cause instruction that did not include its

burden of proof among other deficiencies.

State was allowed to argue that ‘usage’ includes raw

numbers of heaters sold and told the jury there were 60 million

out there that were safe without incidents such as this, all in

violation of our rule of exclusion of absence of prior incidents and

raw numbers. State was allowed to cross Plaintiffs’ expert on the

negligence of others, the “empty chair”, all in violation of our law

on superseding cause.

State argued that neither of these concepts applied to

products liability cases. We now have circuit court conflicting

rulings regarding admissibility of absence of prior incidents in

products liability cases.

The error here was significant and far reaching. The law

should not suffer such without recognition and redress.

Assignments of Error

1. The trial court erred in admitting State’s evidence and

arguments of the raw numbers of atmospheric gas water heaters

sold, their purported safety record and the absence of prior

injuries, all irrelevant to plaintiffs’ claims as a matter of law. JA

3

346-349, 351-353, 356, 391392, rulings 361, 501. Plaintiffs’

Memorandum in Support of Plaintiffs’ Motions In Limine to

Exclude Erroneous Statements of Law and Argument. JA 170.

2. The trial court erred in granting Instruction No. 22 on superseding cause because it misstated the law and was not

supported by State’s evidence. JA 930-933, 938.

3. The trial court erred in admitting State’s evidence and

arguments that nonparties’ superseding negligence caused

Plaintiffs’ injuries because State failed to prove that such

negligence did not entirely supplant the operation of State’s

negligence, was not put in operation by State’s negligence and

was not reasonably foreseeable as a matter of law. JA 353-356,

358-360, 666-670, 947, ruling 361; Plaintiffs’ Memorandum in Support of Motions In Limine to Exclude Erroneous Statements of

Law and Argument. JA. 170.

Nature of the Case and Material Proceedings Below

On August 17, 2007, plaintiffs Carolyn Dorman, Elizabeth

Burgin, Nichole Howarth, and Kristin Julia, returning sophomores

to Virginia Tech, moved into a four-bedroom off-campus

apartment in Collegiate Suites Apartments on Henry Lane,

Blacksburg Virginia. JA 2, 365. Their second floor apartment, one

of 12 such units in the three-floor building, contained electric

appliances except for a Residential Apollo Hydroheat™

atmospheric gas fired water heater manufactured by State

4

Industries, Inc. (“State”). It provided both hot water and space

heating. JA 2, 371.

State’s Apollo Hydroheat™ open exhaust gas water heater

inside the apartment was the source of the carbon monoxide. JA

618-619.

Ms. Dorman, Burgin, Halik, Howarth and Julia (“plaintiffs” or

collectively “Dorman”) filed separate actions against multiple

defendants including State, in the Circuit Court for the City of

Richmond for their injuries. Following nonsuits of State the five

plaintiffs refiled their separate defective product and warranty

claims against State in 2011. JA 1, 10, 19, 28, 37. All the actions

were consolidated for discovery and later consolidated for trial

under Dorman v. Atmos Energy Corporation, et al. CL09-3699

and consolidated cases CL09-3697, CL09-3700, CL09-3698,

CL09-3696, CL11-2900-7, CL11-2901-8, CL11-2899-6, CL11-

2898-5, CL11-2897-4. JA 56.

Plaintiffs filed motions in limine regarding the issues raised

on this appeal prior to trial. JA 167, 170, 213. They were denied.

5

Plaintiffs also filed post-trial motions regarding these issues.

JA 228, 232. They were denied.

A jury trial against the remaining two defendants, State

Industries, Inc. and Atmos Energy Corporation, began in the

Circuit Court on January 5, 2015. Atmos was nonsuited during

the trial.

At the end of a nine day bifurcated trial (January 5-January

21, 2015) the jury returned a defense verdict for State on the

issue of liability. The trial court entered judgment for State on

April 16, 2015. JA 328. The plaintiffs timely noted their appeal on

May 13, 2015. JA 333. This Court granted assignments of error

on December 17, 2015. JA 336.

Statement of Facts

While the parties disagree regarding the import of the facts,

they are generally undisputed.

Carbon monoxide is a colorless, odorless, tasteless, invisible

gas known to be highly toxic and lethal at least since the late

1700s. Carbon monoxide gas is a by-product of the incomplete

combustion of carbon compounds such as natural gas and is

6

known to be associated with gas fired equipment and

appliances. Carbon monoxide displaces oxygen’s presence in the

blood and can result in a dangerous lack of oxygen to tissues and

vital organs, in particular the brain and the heart. JA 2.

It is measured in parts per million (ppm). Government

regulations limit workers exposure to 50 ppm in a given work

day. JA 2. Serious physical injuries are expected between 50 and

100 ppm. Larger doses can be disabling or fatal. TT 650.

On October 25, 2006, Plaintiffs Carolyn Dorman, Elizabeth

Burgin, Kristin Julia, and Nichole Howarth, all returning

sophomores to Virginia Tech, agreed to lease a four bedroom

furnished apartment on the second floor of a three-floor building

at the Collegiate Suites Apartments at 1306 Henry Lane,

Apartment F, Blacksburg, Virginia. The four women began moving

into the apartment on the afternoon of Friday, August 17, 2007.

JA 2. Apartment F included in its utility room, a clothes washer

and dryer and heating and cooling equipment including a gas

fired hot water heater and air handler for the apartment’s heating

and air conditioning system, both manufactured by State. P.Ex. 5.

7

This room was located just off the entry foyer by the front door.

P. Ex. 11.

The Incident

On Sunday morning August 19, 2007, a gas company

technician responding to a call to plaintiffs’ building from a third

floor apartment measured excessive amounts of carbon monoxide

outside the door at plaintiffs’ apartment. When there was no

response to his knocks the technician obtained entry and found

these four roommates along with guest Kirsten Halik, in their

beds unconscious. They had severe carbon monoxide poisoning.

With the assistance of neighbors, the five women were

carried from their beds to the second floor landing. First

responders from the fire department found them unresponsive

and assisted in carrying them to the lawn where they were met

by emergency personnel and taken to the hospital.

Following extrication of plaintiffs from the apartment, fire

department officials measured lethal amounts of carbon

monoxide inside the apartment even after windows and doors

were opened and it had aired. Levels of at least 525 parts per

8

million (ppm) carbon monoxide were measured with gas

analyzers that could not measure above that amount.

Post incident testing involving the Town of Blacksburg, the

parties and their engineers consistently revealed that excessive

amounts of carbon monoxide were produced within the apartment

when the bedroom doors were closed. Carbon monoxide

consistently increased to dangerous levels when the air handler

was also running.

Because the bedrooms did not communicate directly with

the utility room they were not to be used in the initial volume

calculations consistent with the heater’s instruction manual

installation instructions. Volume was more than sufficient without

including the bedroom space using the manufacturer’s

instructions.

During testing the TP valve opened prematurely causing the

heater to discharge water continuously thereby enhancing the

length of exposure but not the existence or emission of the

carbon monoxide.

State’s Apollo Residential Gas Water Heater

9

State Industries, Inc. manufactured the Residential Apollo

Hydroheat atmospheric gas water heater in 1976 that was

installed in Apartment F in 1999. JA 1081. Plaintiffs’ Exhibit 5. At

the time of this incident, the heater was in the same condition as

when it left the factory. JA 611.

The heater is defined in industry terms as an atmospheric or

open vent water heater, which means its exhaust is not sealed

and it relies on air from the interior of the space in which it is

installed for clean combustion.

The draft necessary for evacuation of exhaust gases is

formed based on convection or the fact that warm air rises. Below

this draft hood is a circular open space called ‘exhaust space’ or

‘relief opening’. When venting properly, the exhaust gases that

are hot from the combustion process rise up through the stack

and out the roof of the building naturally. JA 569-571.

These openings can, under certain conditions, entrain or

pull air in, and under other conditions allow exhaust gases to

enter the living space.” The heater is susceptible to wind, interior

pressure changes and air flow disruptions. JA 571.

10

The heater needs adequate combustion air in order to

operate. JA 582-583. Combustion air is “…the amount of air

required to completely burn all of the gas that's being provided

through the main valve. JA 583. The manufacturer’s instructions

provide an air volume calculation method or approach to

determine the minimum amount of volume required for per btu

rating unit on the heater. JA 584. 586. Regarding installation,

both plaintiffs’ expert Mr. Bicknese and State expert Dr.

Eberhardt testified that the apartment had more than the air

volume required by the State installation manual. p. 8. JA 590-

591; 797-798.

The heater had no cutoff device, sensor or protection of any

type to shut it off in the event of incomplete combustion,

excessive the burn temperature or toxic gases though all were

state of the art. JA 597. It also had no sensors or devices to

detect the presence of carbon monoxide, disruption of the flame

at the burner or the absence of a clean burn though all are state

of the art. 516. Other than the TP valve the only safety devices

“…are related to gas flow.” JA 578-582.

11

The Air Handler

The electric air handler provides air conditioning. Heat for

this apartment was provided by this atmospheric vent heater.

This was accomplished by heating hydronic coils in the air handler

with hot water piped from the gas heater to heat air. A ½

horsepower blower encased in the air handler would then blow it

throughout the apartment vent system. JA 574-575.

The TP valve

A temperature pressure relief valve (TP valve) with a probe

is inserted into the water tank and mounted on the side of the

heater to protect it from excessive pressure and water

temperature. This probe senses the temperature and pressure of

the water in the tank. A spring internal to the valve is designed to

automatically opens and begins discharging water when the

pressure and temperature rated levels are reached the valve will

open to relieve pressure or dump water out a discharge pipe to

prevent explosion of the water tank. This TP valve was specified

and set for a pressure limit of 150 pounds per square inch and a

water temperature limit of 210 degrees Fahrenheit. JA 571-572,

12

546-547. The valve can be manually actuated to open externally

by a lever that pulls on the rod, compresses the spring and opens

the valve.

The instructions for the TP valve provide that it be activated

or manually operated on an annual basis to insure it is not

blocked and that water can discharge. JA 573.

State’s evidence also showed that the TP valve had not been

manually operated as specified on its tag though it obviously was

not blocked for the purpose of discharging water. JA 637. The

only maintenance issue involved the TP valve. While the TP valve

opened at a temperature lower than its rating and began

discharging water into the drain it had no role in carbon

monoxide production or emission from the heater. It increased

water use and the operation of the heater in order to continue to

heat incoming water as designed. There was no dispute that the

premature opening was likely caused by sediment build up in the

valve’s known operating environment. No testimony claimed that

the TP premature opening had any causal effect on carbon

monoxide creation and emission into the living space.

13

The Experts

Plaintiffs’ expert Randy Bicknese testified that the open

exhaust design for a residential gas water heater was

unreasonably dangerous because it permitted exhaust gases

including carbon monoxide to be emitted into the living space. JA

626. This was a known risk because the open vent heater was

susceptible to backdrafting from winds, pressure changes inside

the apartment and disruption of airflow needed for combustion

air. In addition, the state of the art for gas water heaters in 1996

included three safer models that had sealed exhaust and

combustion air sources not dependent upon the surrounding

atmosphere. State manufactured and sold these three models in

1996 including a direct vent, a power vent and direct power vent

gas heaters. These models also had shut off mechanisms in the

event of unclean combustion. JA 603-606.

Initial plan for the complex was for electric water heater.

The apartments were changed with the recommendation of the

gas company, the HVAC engineer and the approval of Town of

Blacksburg. JA 729-730.

14

State’s expert, Eberhardt, conceded that there was a

sufficient volume of combustion air available in the apartment

pursuant to the specifications in State’s Residential Instruction

Manual (JA 797-798. 763-764), but contended there was

insufficient air flow when the air handler was on and the bedroom

doors were shut. Id. According to Eberhardt, this situation arose

because there were no air-return ducts from the bedrooms and

because the carpet in the apartment had recently been replaced

in the apartment, allegedly creating a seal under the bedroom

doors. Id. Eberhardt, gave the opinion that the new carpet

disrupted air pressure within the apartment by eliminating return

air under the bedroom doors stating that was the “straw that

broke the camel’s back”.

The only acknowledged code violation --absence of the 12

inch (rather than 18 inches) ceiling proximity of open-space

between the ceiling and the top of the door in the utility room

door--had no impact on the production of carbon monoxide as

post-incident testing demonstrated the accumulation of carbon

monoxide with that door completely open. JA 543-544. The door

15

configuration complied with the manual’s drawing. P. Ex. 7. p. 7

When asked “would this back drafting occasion or the

emission of carbon monoxide into this apartment have happened

had that gas heater” been one of the safer, non-open-exhaust

models, Dr. Eberhardt answered, “No.” JA 814 . Even State’s

counsel conceded after Eberhardt’s testimony:

[Eberhardt] described the [lack of air flow due to the carpet]

as one of the explanations for what changed between the

eight years prior to today. He did not say it was a cause,

he was asked that question by Miss Tate, and in response

to her question, he said it wasn't a cause,it was an

explanation for everything that happened in that apartment

. . . .

JA 816.

State expert and corporate representative, Adams also

testified that it was foreseeable that the open exhaust water

heater would be installed in proximity to an air handler (JA 847),

and that it was foreseeable that the open exhaust water heater

would be “installed in close proximity to an appliance that’s

competing for air with it,” Id. He said this was “expected” and

“very common”. JA 848, 872, 889.

16

Dr. Eberhardt admitted that plaintiffs’ poisoning would not

have occurred had the gas heater been one of the three sealed

combustion models. JA 814.

Plaintiffs’ expert Randy Bicknese testified that the

installation complied with the manufacturers installation

instructions found in the manual for air volume. Dr. Eberhardt

admitted that the Residential Water Heater Manual provided with

the heater by State showed more than the requisite amount of air

volume. State’s expert corporate representative and former V.P.

of engineering, Adams, also conceded that the combustion air

volume for the apartment was sufficient under State’s

instructions. JA 879. 917.

Dr. Eberhardt was present for post-incident testing testified

that the gas heater operated as expected except when the Apollo

air handler beside it was also operating. Testing found that the

gas heater produced repeatedly produced dangerous amounts of

carbon monoxide similar to that found when the poisoning

occurred, when the air handler was also running. JA 810. State

17

expert Adams admitted that the problem was the air handler

“stealing the air”. JA 885.

Before trial, Dorman filed a motion in limine to prohibit

evidence regarding the absence of prior incidents. On the second

day of trial, State argued that “plaintiffs acknowledge that

evidence of custom and usage may be considered” and that 60

million heaters of the type at issue were in use throughout the

United States and there had been no reported prior incidences of

carbon monoxide exposure. Dorman moved the court to prohibit

State from testifying to the number of water heaters sold and the

absence of prior incidents, arguing that, "while State can talk

about custom and usage in the industry and the knowledge about

the type of heater, we still do not believe they should be able to

talk about a safety history; we do not believe they should be able

to tout the absence of other injuries." JA 352-353.

The trial court denied the motion, ruling that testimony of

"prior incidences by State and Atmos as to the custom and usage

based on design" was admissible. JA 362-363. The Court allowed

State’s witnesses to tell the jury, over Dorman’s objection, that

18

there were “about 60 million atmospheric gas water heaters

operating in the United States as we sit in this courtroom today,”

(JA 850-851),and that the exhaust opening in the relief hood

through which carbon monoxide was released “does not” lead to

“an expected risk of carbon monoxide exposure in the 60 million

residences where this type of product is currently in use,” JA

852.

Adams admitted that he did not, in fact, know the exact

amount of similar water heaters that were in use in the United

States, and that he couldn't "tell the jury how many of the water

heaters out there — the gas water heaters out there are

atmospheric vent compared to the other three models." JA 585.

And in closing argument, State told the jury that there are

more or less 60 million atmospheric water heaters being used

"out in the field today as they have been since the 1880s" and

that the "only individual who argues that they are not fit, that

they are unreasonably dangerous" is the Plaintiffs’ expert. JA

1003.

19

State argued that ”… in order to defend the design of the

subject water heater, State must be permitted to explain how it

was installed improperly, in violation of numerous building codes

and industry standards, and not maintained for over seven years”

. Defendant State Industries, Inc.’s Opposition to Plaintiffs’ Motion

In Limine to Exclude the “Empty Chair” Defense.” JA 208.

These motions were renewed after the evidence, at the

instruction conference and post-trial, all denied.

Argument

A. The trial court erred in admitting State’s evidence and

arguments of the raw numbers of atmospheric gas water

heaters sold, their purported safety record and the

absence of prior injuries, all irrelevant to plaintiffs’ claims

as a matter of law. (AOE 1)

1. Standard of Review

Because the inadmissibility of evidence of the absence of

prior injuries is an “established rule of evidence” under Virginia

law, the trial court’s ruling is not entitled to deference and must

be reviewed de novo. Goins v. Wendy’s Intern., Inc., 242 Va.

333, 335 (1991). This Court has said “[i]t is firmly established

that evidence of the absence of other injuries is not admissible in

20

a negligence action when timely objection to it is made.” Id.

While the admission or exclusion of evidence based on

relevance is generally left to the sound discretion of the trial

court, Goins admonished that this established rule of evidence

may not “be modified or nullified by a trial court's exercise of

discretion.” Id. Whether this evidence violated an established rule

of evidence raises a question of law and must be reviewed de

novo.

2. Discussion and Authorities

a. State's evidence that 60 million open exhaust

vent gas heaters are in use, the heater's safety record and

the absence of prior injuries violated Virginia's long

established rule of exclusion.

State’s claim that 60 million open exhaust vent gas heaters

are in use was not probative of any issue related to plaintiffs'

design defect and breach of warranty of merchantability causes.

The open exhaust design of this State Apollo Residential Gas

Water Heater was unreasonably dangerous because its open

exhaust design (as opposed to sealed exhaust) emitted carbon

monoxide into the living space. State breached its warranty of

merchantability because the open exhaust heater was

21

unreasonably dangerous for the purpose for which it was

designed and sold.

In Goins the Court held it was error to admit evidence that

the defendant received no other complaints about the food on the

day plaintiff became ill after eating at a Wendy’s restaurant. Id.

There is nothing in the present case that would justify departure

from the long-established rule restated in Goins.

Raw numbers of events or products are equally irrelevant to

the issues here. In Holley v. Pambianco, 270 Va. 180 (2005), this

Court reversed the trial court’s admission of statistics regarding

raw numbers of certain medical procedures (colonoscopies having

adverse events) because it was “not probative of any issue in the

case.” Id.

Over Plaintiffs’ objection State’s expert Adams testified that

there were 60 million of this gas water heater in use. JA 851.

Confronted, he admitted that the 60 million comprised gas water

heaters and did include the three other models of gas water

heater having sealed combustion. He did not provide a

breakdown. JA 858.

22

State’s expert Eberhardt volunteered the open exhaust vent

heater was common, the most common. All these representations

were repeated in State’s closing and repeated testimony that this

heater had no incidents for 8 years prior to the poisoning. JA 800.

Such evidence was highly prejudicial to plaintiffs. It could

only foster speculation about the event and mislead the jury. It

did not have any probative value regarding any issue in the case.

Proof of raw numbers and the absence of accidents

shows only that none have been reported or discovered, not

that they did not occur. Wood v. Woolfolk Properties, Inc.,

258 Va. 133, 138, 515 S.E. 2d 304, 306 (Va. 1999) (quoting

Goins, 242 Va. at 335-336, 410 S.E.2d at 636).

For more than a century, the Supreme Court of Virginia has

held that the absence of prior incidents is not admissible in an

injury case. Moore v. City of Richmond, 85 Va. 538, 539 (1888).

The trial court erred in permitting State to argue and

present evidence of the absence of prior incidents of carbon

monoxide poisoning caused by its atmospheric vent type gas

water heaters by, among other things, telling the jury that there

23

were “more than 60 million” atmospheric vent gas water heaters

in use in the country, they were “safe”, more than “500

engineers” worked every day to make them “safe”, intimating

stellar safety records having no risk of injury or prior incidents of

hazardous back drafting. JA 1003-1005.

In Sanitary Grocery Co. v. Steinbrecher, 183 Va. 495

(1945), this Court applied the doctrine. Evidence was offered that

100 customers per day visit the grocery store without injury. A

customer was injured on a protruding structure located near the

checkout counter. Evidence of the absence of prior incidents was

held inadmissible as misleading and not probative of the facts at

issue. In Sanitary Grocery this Court said; ‘In Virginia, we are

committed to the proposition that evidence of the absence

of other injuries is not admissible when timely objection is

interposed to it.” Id.

In applying this evidence rule of exclusion, this Court has

consistently spoken in it most emphatic form with the goal of

focusing the issue at hand and protecting jury consideration from

collateral issues. It is ‘firmly established’ that evidence of the

24

absence of other injuries is not admissible in a negligence action

when timely objection to it is made. Sykes, Adm'r v. Railway

Company, 200 Va. 559, 564-65 (1959). Such evidence introduces

into the trial collateral issues, remote to the issue at trial, which

would tend to distract, mislead, and confuse the jury. See City of

Radford v. Calhoun, 165 Va. 24, 36 (1935), Moore v. City of

Richmond, 85 Va. 538, 539, 8 S.E. 387, 388 (1888). The

rationale for not admitting evidence of the absence of other

injuries is the same, whether the opposing party's case is based

upon direct evidence, circumstantial evidence, or a combination

thereof, and whether the action lies in negligence or implied

warranty. Id.

State, having succeeded in convincing the Court of the

admissibility of these raw numbers, compounded the error by

arguing that all of State’s and its parent company’s 500 engineers

“work hard every day to make the heaters safe” and “are of the

opinion” that the State Apollo gas heater was safe and not

unreasonably dangerous. State thus improperly used the

inadmissible hearsay opinions of its biased, self-interested,

25

unidentified engineers and their numbers to validate State’s

contentions over plaintiffs’ objection. JA 1003-1005. State then

improperly argued and accused Plaintiffs’ expert of being the only

person who believed they were dangerous, over Plaintiffs’

objection. JA 1003.

Not only was there no evidence of that, it was untrue,

because there was evidence of previous problems with State's

Apollo open exhaust heaters. Plaintiffs’ Exhibit 1 represents a gas

company “red tag” or shut-off of the same model State Apollo

gas heater in a Collegiate Suites apartment building showing

>200 ppm of carbon monoxide measured at the heater

backdrafting into the living space due to ‘heavy wind’. JA 424. JA

1076. Ex. 1.

Because such evidence is not relevant its admission violates

Rule of Evidence 2:402(a): “Evidence that is not relevant is not

admissible.”

The pervasive prejudice such huge numbers obviously have

on a jury is devastating to a plaintiff who is largely at the mercy

of a defendant’s recordkeeping and discovery; and even if

26

perfect, can never account for unreported incidents.

While this Court has not directly addressed the admissibility

of evidence of the absence of prior similar accidents in a

consumer products liability context (except in Goins regarding

food) there is no reason to conclude that rule of exclusion is not

applicable here. Plaintiffs believe the settled rule of law in Virginia

that the absence of prior accidents/injuries and raw numbers are

not admissible when a timely objection is made is controlling

here. Because the objection is being made that for reason of

omission or extension this rule does not control in a products

liability context, Plaintiffs request that the Court take this

opportunity to resolve the now conflicting circuit court decisions

and confirm that this rule of exclusion applies in products liability

cases and all personal injury cases.

b. State's raw numbers of open exhaust vent gas

water heaters in use were not admissible as evidence of

'usage' under Virginia's doctrine of "custom and usage in

the industry".

In response to Plaintiffs’ motion in limine regarding this

evidence, State argued that it must be able to offer this evidence

27

to prove its defense of “custom and usage”. The court agreed.

Both misperceived Virginia’s doctrine of “custom and usage in the

industry” or “trade usage”. This doctrine addresses practices and

customs within the industry or business, not raw numbers of

consumer purchases and the absence of consumer complaints,

accidents and injuries. Evidence regarding industry standards,

practices and customs are admissible but not conclusive to

establish absence of a defect. See Turner v. Manning, Maxwell

and Moore Inc., 216 Va. 245 (1975) (finding evidence

established it was industry custom to sell hoists without safety

latches.)

The admission of raw numbers and absence of prior

accidents as support for defense of a product based on industry

“custom and usage” is error as a matter of law.

State argues it has support in this Court’s decision in

Bayliner Marine Corporation v. Crow, 257 Va. 121, (1999). It is

wrong. Bayliner did not involve a personal injury. Bayliner did

not involve a design defect claim. Mr. Crow was a commercial

purchaser in direct privity with Bayliner. After speaking with a

28

salesperson he tested and purchased a fishing boat. After

purchasing additional equipment and rigging fixtures for his boat,

he complained that the speed of the boat was insufficient to

timely reach prime fishing waters for his use and pleasure. He

sued based on breach of express warranties regarding the boats

speed. Id.

This commercial expectations case has no application here.

State attempts to use Bayliner to connect its claim of

millions of gas heaters in use by presumed satisfied customers

who, State would have us believe, have made no complaints and

continue to purchase the open exhaust gas water heater knowing

fully that they are safe from carbon monoxide emissions. This

contortion of Virginia law also does not work.

B. The trial court erred in granting Instruction No. 22 on

superseding cause because it misstated the law and was

not supported by State’s evidence. (AOE 2)


Whether the content of a jury instruction “is an accurate

statement of the relevant legal principles is a question of law”

that this Court reviews de novo. Cain v. Lee, ___ Va. ___, 772

29

S.E.2d 894 (2015). When this Court reviews the content of jury

instructions, its sole responsibility “is to see that the law has been

clearly stated and that the instructions cover all issues which the

evidence fairly raises.” Id.


a. The superseding cause instruction was an

erroneous submission of law to the jury and is presumed

to be harmful error.

This court requires that jury instructions be relevant, clear,

accurate, complete and supported by sufficient evidence. Id. Over

Plaintiffs’ objection, the trial court gave State’s proffered

instruction on superseding cause which consisted of the definition

of superseding cause as contained in the Virginia Model Jury

Instructions:

A superseding cause is an independent event, not

reasonably foreseeable, that completely breaks the

connection between the defendant's negligent act

and the plaintiff’s injury. A superseding cause breaks

the chain of events so that the defendant's original

negligent act is not a proximate cause of the plaintiff’s

injury in the slightest degree.

VMJI, Instruction No. 5.010, Definition of Superseding Cause.

JA 962-963.

30

This ‘definition’ in two laborious sentences contains multiple

legal terms and concepts relating to superseding cause but omits

others. As an instruction it lacks clarity, is confusing, misleading

and devoid of the essential legal concept of superseding cause:

defendant’s burden of proof. It did not clearly and accurately

inform the jury of the elements of superseding cause or the

consequences of finding evidence of those elements including:

1. the burden of proof is on defendant;

2. a clear and coherent definition of an intervening act,

event, conduct or omission and series of acts;

3. the scope of causation--the defendant must prove that any

intervening act or omission is the sole cause of injury;

4. a definition of foreseeable

5. the identity of the party charged with foreseeability of

intervening acts or omissions (defendant/State);

6. the consequence of finding evidence of reasonable

foreseeability of an intervening act;

7. the intervening act or omission must be completely

independent of defendant’s act or omission;

31

8. the intervening act or series of acts is not superseding if

“put in motion” or “put in operation” or also caused by

defendant’s wrongful act or omission.

A “correct statement of the law… (is one of the) essentials of a

fair trial.” Dowdy v. Com., 220 Va. 114, 116 (1979). Instruction

22 fails all these criteria as a matter of law.

b. The absence of burden of proof in the

superseding cause instruction was erroneous and harmful

error.

The burden of proof is on the defendant asserting a

superseding cause to prove that another’s negligence alone

caused the injuries and he is free of negligence even “in the

slightest degree”. Atkinson v. Scheer, 256 Va. 448 (1998)

(emphasis added).

In Atkinson v. Scheer, 256 Va. 448 (1998), during a jury

trial, Dr. Scheer was permitted to ask the plaintiff's expert

witness, over the plaintiff's objection, whether another physician

who had also treated Atkinson had committed acts of negligence.

The trial court permitted Dr. Scheer to elicit such testimony, and

at the conclusion of the trial, the jury returned a verdict in favor

32

of Dr. Scheer. The plaintiff appealed. This Court held that the

burden of proof is on the defendant asserting a superseding

cause to prove he is free of negligence even “in the slightest

degree’. Id.

When an instruction has been “erroneously submitted to the

jury and the record does not reflect whether such ... instruction

formed the basis of the jury's verdict, we must presume that the

jury relied on such ... instruction in making its decision." Williams

v. Le, 276 Va. 161(2008).

Here, the jury gave a general verdict for State. Under these

circumstances, it cannot reasonably be contended that the

erroneous omission of State’s burden of proof from Instruction 22

was harmless as a matter of law. It was error and harmful as a

matter of law.

c. State failed to prove that its open exhaust

design did not contribute to plaintiffs' injuries in the

slightest as a matter of law and State failed to prove that

any acts or omissions of others were the sole cause

plaintiffs' injuries as a matter of law and therefore failed

to support a superseding cause instruction.

A party is entitled to jury instructions supporting his or her

theory of the case “if sufficient evidence is introduced to support

33

that theory and if the instructions correctly state the law. The

evidence introduced in support of a requested instruction must

amount to more than a scintilla." (citations omitted). Williams v.

Le, at 76.

For the reasons contained in Argument C. below in support

of Assignment of Error #3, State’s evidence was not sufficient to

support a superseding cause instruction as a matter of law.

C. The trial court erred in admitting State’s evidence and arguments that superseding negligence caused Plaintiffs’

injuries because State failed to prove that such negligence

did not entirely supplant the operation of State’s

negligence, was not put in operation by State’s negligence

and was not reasonably foreseeable as a matter of law.

(AOE 3)


In Ford Motor Company v. Boomer, 285 Va. 141, 151(2014),

this Court revisited Virginia’s causation standards. Boomer

repeated the standard test for proximate causation called the

“but for” or sine qua non rule. Ford Motor Co. v. Boomer, 285 Va.

141, 150 (2013). There may be more than one proximate cause

of an event. Holmes v. Levine, 273 Va. 150, 159 (2007). As

restated in Boomer, to meet the “but for” rule, the first element

34

of causation or causation in fact, or “to impose liability upon one

person for damages incurred by another, it must be shown that

the negligent conduct was a necessary physical antecedent

of the damages. Id.

Equally important here is the basic rule that showing that

“other causes concurred in producing, or contributed to the result

is no defense to an action for negligence.” Where the negligence

of two or more persons acting independently, concurrently results

in an injury to a third, the latter may maintain his action for the

entire loss against any one or all of the negligent parties. Id.

Here, the unsealed exhaust of State’s atmospheric vent

heater is the only necessary physical antecedent of plaintiffs’

carbon monoxide exposure as a matter of law. Without the open

exhaust there could have been no exposure. Consequently State

could not meet its burden of proof that it was not negligent “even

in the slightest.”

"Issues of negligence and proximate causation

ordinarily are questions of fact for the jury's

determination. Brown v. Koulizakis, 229 Va. 524, 531

(1985). A court decides these issues only when

https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=i7FqUlRz%252fMUR84QJcNo10JExAkRTuxwcnAo%252bhD8xXtfrPUhEtKl3Idz3THxH%252fAKBvy3d7ZznK0fZG3j8XTOi6r5SN2CKNrodIJWri7qid84%252fa7It8FEbsqSD%252bpvbxjetemNBpAfM3Go5OAuJWSr0DEN9rmnx%252f67GTO1mxROYRcE%253d&ECF=Brown+v.+Koulizakis%252c++229+Va.+524

35

reasonable persons could not differ. Hadeed v.

Medic-24, Ltd., 237 Va. 277, 285 (1989).

A circuit court by definition abuses its discretion when it makes

an error of law” and, therefore, the “abuse-of-discretion standard

includes review to determine that the discretion was not guided

by erroneous legal conclusions.” Porter v. Commonwealth, 276

Va. 203, 260 (2008).

Under these circumstances, State was a negligent actor and

not entitled to a superseding cause instruction as a matter of law.


a. State's unsealed open exhaust design was

the only necessary physical antecedent permitting

emissions of carbon monoxide into the living space

proximately contributing to plaintiff's injuries as a matter

of law.

The unsealed exhaust of State’s atmospheric vent heater is

the only necessary physical antecedent of plaintiffs’ carbon

monoxide exposure. The 3 safer gas heater models had sealed

exhaust each of which would have prevented this poisoning

according to State’s own expert, Dr. Eberhardt. JA 814. Without

the open exhaust there could have been no exposure.

https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=i7FqUlRz%252fMUR84QJcNo10JExAkRTuxwcnAo%252bhD8xXtfrPUhEtKl3Idz3THxH%252fAKBvy3d7ZznK0fZG3j8XTOi6r5SN2CKNrodIJWri7qid84%252fa7It8FEbsqSD%252bpvbxjetemNBpAfM3Go5OAuJWSr0DEN9rmnx%252f67GTO1mxROYRcE%253d&ECF=Hadeed+v.+Medic-24%252c+Ltd.%252c++237+Va.+277

https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=i7FqUlRz%252fMUR84QJcNo10JExAkRTuxwcnAo%252bhD8xXtfrPUhEtKl3Idz3THxH%252fAKBvy3d7ZznK0fZG3j8XTOi6r5SN2CKNrodIJWri7qid84%252fa7It8FEbsqSD%252bpvbxjetemNBpAfM3Go5OAuJWSr0DEN9rmnx%252f67GTO1mxROYRcE%253d&ECF=Hadeed+v.+Medic-24%252c+Ltd.%252c++237+Va.+277

36

State argued that ”… in order to defend the design of the

subject water heater, State must be permitted to explain how it

was installed improperly, in violation of numerous building code

and industry standards, and not maintained for over seven years”

. Defendant State Industries, Inc.’s Opposition to Plaintiffs’

Motion In Limine to Exclude the “Empty Chair” Defense”, JA 208.

Crediting all of State’s evidence regarding installation, codes and

standards and maintenance as the court must at this stage, still

leaves State without exoneration of liability for three reasons.

First, the three factors relied on by State: installation, code

violations and maintenance had no causal relationship to the

creation or emission of the carbon monoxide into the living space.

Second, there could be no emission into the living space

under any of the circumstances alleged by State but for the

heater’s open exhaust into the living space.

Third, State freely admits the foreseeability of the gas

heater’s primary combustion air disruption: the air handler

connected to the water heater for space heating with its .5

horsepower motor, referred to by State expert Dr. Eberhardt as

37

the “big blower”, …many times is going to win.” JA 768.

Significantly, State has decades of knowledge of the dangers of

carbon monoxide and knows the risk created by its open exhaust

gas heater.

These alleged superseding causes are discussed in turn.

1. TP valve maintenance

The maintenance issue involved the TP valve. The TP

valve opened at a temperature lower than its rating and began

discharging water into the drain. There was no dispute that the

premature opening was likely caused by sediment build-up on the

spring or probe in the valve’s known operating environment. It

increased the operation of the heater in order to continue to heat

incoming water as designed. The TP valve has no function or

contact with the burner, gas or other role in the operation of the

heater. It was not disputed that TP had no role in creating carbon

monoxide or emissions. The TP premature opening obviously

resulted in greater water use but it had no causal effect on

carbon monoxide creation and emission into the living space.

Not a single witness or other evidence attributed causation

38

of the poisoning to the TP valve.

2. Installation and code-- Discharge pipe configuration

The TP valve discharge pipe located on the exterior side of

the heater was not vertically pitched to the drain. It had two

elbows terminating in a hub drain close to the rear wall between

the heater and air handler. Plaintiff’s expert acknowledged that

this configuration deviated from the Manual and industry

standard. It was observed discharging water as intended. No

evidence or witness attributed causation of the poisoning to the

TP discharge pipe.

3. Installation, code violation--Utility/Laundry room door

The only acknowledged code violation: absence of the 12

inch ceiling proximity of open-space between the top of the

door and the ceiling. (It was 18 inches or a difference of 6

inches.) When the owner decided to install gas water heaters in

Phase 4 of the apartments including Apt. F, the engineer ( he

does not recall consulting an architect) he consulted required a

louvered door to be installed on the utility room to ensure

39

adequate combustion air volume for the unit, in accordance with

State’s Residential Instruction Manual. JA 1087.

The door configuration complied with the State manual’s

drawing, an apparent misinterpretation of the code provision.

JA 1087. P. Ex. 7 p. 7. The location, installation and height of

the utility room door was shown in testing to have no impact

on the production of carbon monoxide as post-incident

testing demonstrated the accumulation of carbon monoxide

with that door completely open. JA 543-544. No evidence

showed that this apparent code violation had any causal

connection to the carbon monoxide poisoning.

4. Architect’s plans for electric; changed to gas

The change was made with the recommendation of the gas

company, the HVAC engineer and the approval of Town of

Blacksburg. While State suggested that the owner had not

consulted the architect about switching from electric to gas, no

particular architectural feature or structure was identified as

causing the emission of carbon monoxide.

5. No free air circulation - Volume – new carpet

40

Both plaintiffs’ expert Mr. Bicknese and state expert

Mr. Eberhardt testified that the apartment had more than the air

volume required by the State installation manual. p. 8. JA 590-

591; 797-798. Eberhardt agreed with Bicknese calculations

based on the formula in the Manual that the apartment had 4140

cubic feet of air volume not including the bed rooms or closets

since they did not communicate directly with the location of the

heater as provided in the Manual. The Town of Blacksburg issued

a certificate of occupancy approving the apartments, with the

changes, for occupancy, indicating it had been inspected and

there was adequate combustion air in the apartment. JA 551.

State’s expert argued that the issue was not sufficient air

volume but “free circulation of air”. He contended the absence of

in-bedroom air returns was an installation omission. He admitted

that the 20x20 air return called for in State’s Manual was installed

in the foyer against the utility room wall. JA 802. He could not

point to any installation requirement in the Manual addressing

this alleged omission. JA 802-803. He premised this need on his

view that the new carpet—after 8 years—had created a pressure

41

differential sufficient to explain—but not cause—the carbon

monoxide poisoning. He could not provide or calculate “air flow

through the carpet” under the doors. JA 790. He measured the

pressure differential between the living are and the bedrooms

with the doors which revealed a difference of 0.1 inches of water

column. Despite commenting on this result, he ultimately

admitted he was NOT basing any opinions on that pressure

differential. JA 795-796. He gave no specific source for his claim

that “free circulation” was required in some way. With State

counsel’s prompting, he made a reference to “NFPA 54 9 B”

(apparently referring to the National Fire Protection Association,

publisher of the National Fuel Gas Code). He did not read or

quote a code provision or requirement from any document

documenting any industry code violation.

Ultimately he declined to give any foundation for his initial

conclusory opinion that “installation” was the cause of the

poisoning. All Eberhardt could say was that the new carpet was a

“contributor” to the incident. He expressly refused to say it was

a cause. Realizing how preposterous it sounded that a home with

42

an open exhaust gas heater could not safely replace the carpet,

State Counsel objected to the examination on the issue conceding

it was offered as an “explanation”, not a “cause”. JA 803-804.

Not a single installation, maintenance or code issue was

supported by fact or expert opinion as having any causal effect on

the creation or emission of carbon monoxide.

Even if contributing in some way, none of them was a “‘new

effective cause” that “operate[d] independently of” the heater

“making it and it only the proximate cause of injury,’” without the

contribution of State’s heater “even in the slightest degree.”

Kellerman v. McDonough, 278, 684 Va. at 493-494 (2009).

As Boomer made clear, in a products liability setting

involving potential concurring causes, Virginia law “provides a

means of holding a defendant liable if his or her negligence is one

of multiple concurrent causes which proximately caused an

injury.” Id.

On this record, it cannot be said that State’s alleged

defectively designed open exhaust did not contribute "in the

slightest degree" to the Plaintiffs’ injuries because no carbon

43

monoxide emission would have occurred but for the heater’s open

exhaust into in the living space—as a matter of law.

Without dispute, State’s atmospheric vent heater left the

factory with unsealed open exhaust for residential installation and

under all the circumstances, the unsealed open exhaust

continued to operate as designed and alone permitted the

emission of carbon monoxide into the living space causing the

toxic exposure.

State’s evidence and arguments were inadmissible “empty

chair” arguments and irrelevant as a matter of law.

The dearth of evidence was overshadowed by repetition of

the irrelevant as State attacked Plaintiffs’ expert on rebuttal cross

examination over Plaintiffs’ objection, repeating over and over

that he had also identified the other claimed deficiencies, but

found no causation, despite the fact State had no causation

evidence for any of those claims. All in violation of the law

outlined in Atkinson prohibiting cross examination on the

negligence of nonparties when there is no prima facie case

against them.

44

b. State admitted foreseeability of disruption of

combustion air for the open vent gas heater by placement

beside its Apollo air handler as here and knew its

consequences.

Adams, State’s corporate representative and for VP of

Engineering admitted it was foreseeable that the open exhaust

water heater would be installed in proximity to an air handler, JA

847, and that it was foreseeable that the open exhaust water

heater would be “installed in close proximity to an appliance

that’s competing for air with it,” Id. He said this was “expected”

and “very common”. JA 848, 872, 889.

Adams also admitted the air handler was the problem,

“stealing air” from the gas heater. JA 885.

This evidence of foreseeability forfeits any entitlement State

might otherwise have had to a superseding cause instruction as a

matter of law.

c. State's evidence failed to prove that any acts

or omissions of others had a causal relationship to

plaintiffs' injuries as a matter of law.

Prior to trial, Plaintiffs filed their motion in limine seeking to

exclude any evidence or argument regarding purported

superseding or intervening cause and allegations of fault against

45

nonparties. The Court erred in failing to sustain this Motion.

No expert on behalf of State offered an opinion that a

specific person or entity was negligent and that negligence was

the sole cause of Plaintiffs’ injuries. No expert on behalf of State

offered an opinion that any unknown actor or force committed an

act or omission that was the sole cause of Plaintiffs’ injuries. Both

of State’s experts, Adams and Eberhardt concurred that the

culprit disrupting or stealing the combustion air in the Apartment

was State’s air handler sitting beside the gas heater to supply

space heat. Both agree this was foreseeable. Both agree the

apartment as constructed had more than sufficient air volume as

required by State’s residential instruction manual. Eberhardt

agrees with Bicknese that the poisoning would not have occurred

with use of State’s 3 gas heaters that have sealed combustion

and shut off mechanisms.

The list of installation maintenance and code issues alleged

by State and dealt with above have no evidentiary support for

causing Plaintiffs’ injuries.

Under Virginia law, any person or entity whose

46

wrongdoing proximately contributes to cause harm is fully

liable for the entire harm. See Brown v. Parker, 167 Va. 286

(1937). This is the fundamental rule of joint and several liability.

A corollary of this rule is that the fact a wrongdoer cannot

avoid or reduce his liability by showing that there was also

another cause of the injury or death. A defendant cannot

escape liability for his own negligence merely by showing that

another person was also negligent.

The Court erred in denying Plaintiffs' Motion in limine on

these defenses. JA 912; 913 ruling 917. The Court's failure to

sustain Plaintiffs' Motion before, during and after trial and instruct

accordingly on these issues was error. Granting State’s requested

jury instruction on this issue was error.

Consistent with this ruling the trial court permitted State’s

Counsel to cross-examine Plaintiffs’ expert regarding fault by

nonparties This erroneous cross examination of Plaintiffs’ expert

regarding potential fault by non-parties over Plaintiffs’ objection

was specifically disallowed in Atkinson v. Scheer, 256 Va. 448

(1998) (holding it is reversible error to permit the defendant to

47

elicit testimony from plaintiff's expert witness regarding a non-

defendant’s negligence because the defendant was also

negligent).

The absence of a causal relationship of any alleged fault by

the referenced nonparties precludes a superseding cause as a

matter of law. This error deviates from longstanding Virginia law

and was powerfully prejudicial to Plaintiffs.

Under no circumstances can it reasonably be said that any

nonparty conduct was the "sole" cause of the carbon monoxide

poisoning. These principles barred State from introducing the

evidence of alleged negligence on the part of others as a matter

of law.

Conclusion

Because the errors identified here are profound errors of

law and the issues of fact are those on which reasonable persons

could not differ, plaintiffs respectfully move for entry of judgment

on State’s liability as a matter of law, alternatively for remand

with directions to the trial court to enter judgment on State’s

liability as a matter of law and trial on damages only.

48

Otherwise, Plaintiffs respectfully request reversal of the

judgment in favor of defendant and a new trial.

Respectfully submitted,

Mary Lynn Tate, Esq. (VSB # 16085)

TATE LAW PC


Abingdon, Virginia 24210

Telephone: (276) 628-5185

Facsimile: (276) 628-5045

[email protected]

Counsel for Petitioners – Appellants

Certificate

Pursuant to Rule 5:17(i) of the Supreme Court of Virginia, I

hereby certify the following:

1. The Appellants are: Elizabeth A. Burgin; Carolyn A. Dorman;

Kirsten W. Halik; Nichole M. Howarth; and Kristin L. Julia.

Counsel for the Appellants is:

Mary Lynn Tate, Esq.

VSB No. 16085

TATE LAW PC

16006 Porterfield Highway Abingdon, Virginia 24210

Telephone: (276) 628-5185

Facsimile: (276) 628-5045

[email protected]

49

2. The Appellee is State Industries, Inc. Counsel for the

Appellee are:

James H. Keale, Esq.

Timothy Freeman, Esq.

SEDGWICK LLP

One Newark Center

1085 Raymond Boulevard

16th Floor

Newark, NJ 07102

David M. Sturm, Esq.

TADDEO STURM, PLC 3 West Cary Street

Richmond, Virginia 23220

3. A digital copy of the foregoing Opening Brief was filed with

the Clerk of the Supreme Court of Virginia on this 4th Day of

February, 2016 and upon counsel via email. Seven copies of the

foregoing Brief will be filed by hand with the Clerk of the Supreme

Court of Virginia on the 5th Day of February, 2016.

4. Counsel for Appellant desire to state orally and in person to

a panel of this court the reasons why this appeal should be

granted.

Mary Lynn Tate

THE LEX GROUP � 1108 East Main Street � Suite 1400 � Richmond, VA 23219

(804) 644-4419 � (800) 856-4419 � Fax: (804) 644-3660 � www.thelexgroup.com

In The

Supreme Court of Virginia ______________________

RECORD NO. 151088 ______________________

CAROLYN A. DORMAN, et al.,Appellants,

v.

STATE INDUSTRIES, INC.,

Appellee.

_________________________

BRIEF OF AMICUS CURIAEVIRGINIA TRIAL LAWYERS ASSOCIATION

_________________________

William W.C. Harty (VSB No. 45447)

Rachel Swyers (VSB No. 85972)

PATTEN, WORNOM, HATTEN & DIAMONSTEIN, L.C.

12350 Jefferson Avenue, Suite 300

Newport News, Virginia 23602

(757) 223-4500 (Telephone)

(757) 249-3242 (Facsimile)

[email protected]

[email protected]

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...........................................................................iii

AMICUS STATEMENT OF INTEREST ........................................................ 1

ASSIGNMENTS OF ERROR ....................................................................... 1

NATURE OF THE CASE AND MATERIAL PROCEEDINGS IN CIRCUIT COURT ......................................................................................... 1

STATEMENT OF FACTS ............................................................................. 1

PRINCIPLES OF LAW, ARGUMENT AND AUTHORITIES ......................... 2

I. The Trial Court Erred by Instructing the Jury on Superseding Cause ................................................................... 2

A. Standard of Review .......................................................... 2

B. Joint and Several Liability Ordinarily Precludes Evidence of Non-Party Tortfeasors .................................. 3

C. The Evidence was Not Sufficient, As A Matter of Law, to Support a Superseding Cause Instruction ......... 10

II. Industry Custom and Usage is defined as Current Industry Standards and Practices, not as the Absence of Prior Incidents .......................................................................... 23

A. Standard of Review ........................................................ 23

B. The Trial Court Erroneously Conflated “Custom and Usage” Evidence with Absence of Prior Incidents Evidence......................................................................... 23

C. Virginia Law has Consistently Held that Evidence of the Absence of Prior Incidents is Inadmissible ............... 27

ii

III. Because the Jury Issued a General Verdict, This Court Should Reverse and Remand the Case for Retrial .................. 31

CONCLUSION ........................................................................................... 32

CERTIFICATE ............................................................................................ 34

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Andrews v. Appalachian Elec. Power Co., 192 Va. 150, 63 S.E.2d 750 (1951) ............................................ 25, 26

Atkinson v. Scheer, 256 Va. 448, 508 S.E.2d 68 (1998) ............................................ 10, 11

Bly v. S. Ry. Co., 183 Va. 162, 31 S.E.2d 564 (1944) .................................................. 27

C. & M. Promotions v. Ryland, 208 Va. 365, 158 S.E.2d 132 (1967) ................................................ 26

Carolina, Clinchfield & Ohio Railway Co. v. Hill, 119 Va. 416, 89 S.E. 902 (1916) .................................................... 4, 7

Chesapeake & O. Ry. Co. v. Wills,111 Va. 32, 68 S.E. 395 (1910) .......................................................... 7

Clozza v. Commonwealth, 228 Va. 124, 321 S.E.2d 273 (1984) ................................................ 23

Coe v. Commonwealth, 231 Va. 83, 340 S.E.2d 820 (1986) .................................................. 10

Coleman v. Blankenship Oil Corp., 221 Va. 124, 267 S.E.2d 143 (1980) .......................................... 10, 11

Exxon Mobil Corp. v. Minton,285 Va. 115, 737 S.E.2d 16 (2013) .................................................. 31

Ford Motor Co. v. Boomer, 285 Va. 141, 736 S.E.2d 724 (2013) .............................................. 4, 7

iv

Ford Motor Co. v. Phelps, 239 Va. 272, 276 S.E.2d 454 (1990) ................................................ 28

Fox v. Deese, 234 Va. 412, 362 S.E.2d 699 (1987) .................................................. 5

Funkhouser v. Ford Motor Co., 284 Va. 214, 726 S.E.2d 302 (2012), on reh’g en banc, 285 Va. 272, 736 S.E.2d 309 (2013) ................................................ 29

Goins v. Wendy’s Int’l, Inc., 242 Va. 333, 410 S.E.2d 635 (1991) .......................................... 28, 30

Harmon v. Honeywell Int’l, Inc., 288 Va. 84, 758 S.E.2d 515 (2014) .................................................. 28

Hatcher v. Commonwealth, 218 Va. 811, 241 S.E.2d 756 (1978) .................................................. 3

Healey v. Trodd, 7 A.2d 640 (N.J. Sup. Ct. 1939), aff’d, 11 A.2d 88 (1940) ............................................................................. 28

Herr v. Wheeler,272 Va. 310, 634 S.E.2d 317 (2006) .................................................. 3

Hines v. Garrett, 131 Va. 125, 108 S.E. 690 (1921) ...................................................... 8

Jefferson Hosp. v. Van Lear, 186 Va. 74, 41 S.E.2d 441 (1947) ................................................ 8, 11

Jenkins v. Payne, 251 Va. 122, 465 S.E.2d 795 (1996) ...................................... 9, 11, 20

John Crane, Inc. v. Jones, 274 Va. 581, 650 S.E.2d 851 (2007) ................................................ 23

Johnson v. Raviotta, 264 Va. 27, 563 S.E.2d 727 (2002) .................................................. 31

v

Jones v. Pak-Mor Mfg. Co., 700 P.2d 819 (Ariz. 1985) ................................................................. 28

Kellerman v. McDonough,278 Va. 478, 684 S.E.2d 786 (2009) ...................................... 8, 11, 20

Klonowski v. Int’l Armament Corp., 17 F.3d 992 (7th Cir. 1994) ............................................................... 28

Maroulis v. Elliott, 207 Va. 503, 151 S.E.2d 339 (1966) .................................. 4, 6, 11, 20

Mawyer v. Thomas, 199 Va. 897, 103 S.E.2d 217 (1958) .................................................. 3

Monahan v. Obici Med. Mgmt. Servs., Inc., 271 Va. 621, 628 S.E.2d 330 (2006) ................................................ 31

Moore v. City of Richmond, 85 Va. 538, 8 S.E. 387 (1888) .......................................................... 10

Norfolk & Western Ry. Co. v. Puryear, 250 Va. 559, 463 S.E.2d 442 (1995) ................................................ 23

Panousos v. Allen, 245 Va. 60, 425 S.E.2d 496 (1993) .............................................. 3, 11

Porter v. Commonwealth, 276 Va. 203, 661 S.E.2d 415 (2008) ................................................ 23

Riverside Hosp. v. Johnson, 272 Va. 518, 636 S.E.2d 416 (2006) ................................................ 23

Sanitary Gro. Co. v. Steinbrecher, 183 Va. 495, 32 S.E.2d 685 (1945) .................................................. 28

Schlimmer v. Poverty Hunt Club, 268 Va. 74, 597 S.E.2d 43 (2004) ................................................... 2-3

vi

School v. Walker, 187 Va. 619, 47 S.E.2d 418 (1948) .................................................... 7

Scott v. Simms, 188 Va. 808, 51 S.E.2d 250 (1949) .................................................. 11

Standard Oil Co. v. Wakefield’s Adm’r, 102 Va. 824, 47 S.E. 830 (1904) ...................................................... 11

Stottlemyer v. Ghramm, 268 Va. 7, 597 S.E.2d 191 (2004) ................................................. 9-10

Sullivan v. Robertson Drug Co., 273 Va. 84, 639 S.E.2d 250 (2007) ................................................ 5, 6

Sykes, Adm’r v. Railway Co., 200 Va. 559, 106 S.E.2d 746 (1959) ................................................ 28

Tunnell v. Ford Motor Co., 330 F. Supp. 2d 748 (W.D. Va. 2004) ................................... 20, 21, 22

Turner v. Manning, Maxwell & Moore, Inc., 216 Va. 245, 217 S.E.2d 863 (1975) ................................................ 26

Va. Stage Lines v. Newcomb, 187 Va. 677, 47 S.E.2d 446 (1948) .................................................. 26

Von Roy v. Whitescarver, 197 Va. 384, 89 S.E.2d 346 (1955) .................................................... 7

Williams v. Joynes, 278 Va. 57, 677 S.E.2d 261 (2009) ........................................ 8, 11, 20

Williams v. Le,276 Va. 161, 662 S.E.2d 73 (2008) ...................................... 10, 11, 31

vii

Wood v. Woolfolk Props., Inc., 258 Va. 133, 515 S.E.2d 304 (1999) ................................................ 28

Yonker v. Williams, 169 Va. 294, 192 S.E. 753 (1937) ...................................................... 7

STATUTES

Va. Code § 1-200 ......................................................................................... 3

Va. Code § 8.01-5(A) ................................................................................... 5

Va. Code § 8.01-34 ...................................................................................... 5

Va. Code § 8.01-379.3 ................................................................................. 6

Va. Code § 8.01-443 ............................................................................ 3, 4, 5

RULES

Va. Sup. Ct. R. 1:6(a) ................................................................................... 5

Va. Sup. Ct. R. 3:10 ..................................................................................... 5

Va. Sup. Ct. R. 3:12 ..................................................................................... 5

Va. Sup. Ct. R. 3:13 ..................................................................................... 5

OTHER AUTHORITIES

Black’s Law Dictionary (10th ed. 2014) ...................................................... 26

Charles E. Friend & Kent Sinclair, The Law of Evidence in Virginia (7th ed. 2012) ............................................................................................. 30

Merriam-Webster’s Dictionary (10th ed.) ................................................... 26

1

AMICUS STATEMENT OF INTEREST

The Virginia Trial Lawyers’ Association (VTLA) is an organization of

over twenty-five hundred Virginia attorneys dedicated to promoting

professionalism within the trial bar, enhancing the competence of trial

lawyers, protecting and preserving individual liberties and rights, and

supporting an efficient and constitutionally sound judicial system.

This appeal presents an important issue of Virginia law and trial

practice in Virginia courts. The appeal concerns and implicates not only

the rights of the parties in this case but also the rights of product liability

litigants throughout the Commonwealth.

ASSIGNMENTS OF ERROR

VTLA adopts the Assignments of Error in Appellant’s Opening Brief.

NATURE OF THE CASE AND MATERIAL PROCEEDINGS IN CIRCUIT COURT

VTLA adopts the Nature of the Case and Material Proceedings in the

Circuit Court in Appellant’s Opening Brief.

STATEMENT OF FACTS

VTLA adopts the Statement of Facts in Appellant’s Opening Brief

except to the extent additional facts are developed in VTLA’s argument.

2

PRINCIPLES OF LAW, ARGUMENT AND AUTHORITIES

I. The Trial Court Erred by Instructing the Jury on Superseding Cause.

There appears to be confusion among courts and litigants regarding

the proper standard to use when reviewing the admissibility of intervening

causation evidence and the robustness of the evidence required to support

a superseding cause instruction. This case is a prime example. This Court

should take the opportunity here to give trial courts guidance on the proper

analysis of intervening cause evidence so that trial courts will be equipped

analyze this issue and reject improper admission of such evidence, or an

improper instruction on superseding cause, when the evidence in the case

has no potential to exonerate the defendant. Giving a superseding cause

instruction when the evidence is insufficient to support such an instruction

results in unnecessary delay, expense and burden on litigants and courts

as a result of avoidable appeals, remands and retrials.1

A. Standard of Review.

“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.” Schlimmer v. Poverty Hunt Club, 268

1 This brief will refer to Appellants, collectively, as Dorman, and to Appellees as “State” unless otherwise indicated.

3

Va. 74, 78, 597 S.E.2d 43, 45 (2004). However, “[t]he evidence presented

in support of a particular instruction ‘must amount to more than a scintilla.’”

Id. “Although an instruction correctly states the law, if it is not applicable to

the facts and circumstances of the case, it should not be given.” Hatcher v.

Commonwealth, 218 Va. 811, 813-14, 241 S.E.2d 756, 758 (1978). Jury

instructions regarding unavoidable accidents, sudden emergencies, or

other doctrines involving an “unexpected and unforeseen happening or

condition” should be given rarely because they afford “the jury an easy way

of avoiding instead of deciding the issue made by the evidence in the

case.” Mawyer v. Thomas, 199 Va. 897, 901, 103 S.E.2d 217, 220 (1958);

see also Herr v. Wheeler, 272 Va. 310, 315, 634 S.E.2d 317, 320 (2006).

Superseding cause instructions, likewise, should be given rarely. See

Panousos v. Allen, 245 Va. 60, 66, 425 S.E.2d 496, 500 (1993).

B. Joint and Several Liability Ordinarily Precludes Evidence of Non-Party Tortfeasors.

Virginia is, and has always been, a joint and several liability state.

This longstanding rule proceeds from Virginia’s adoption of English

common law, see Va. Code § 1-200, and has been codified by the General

Assembly, see Va. Code § 8.01-443.

Under joint and several liability, a plaintiff may sue any or all of the

putative tortfeasors who caused his injury and the plaintiff may bring suits

4

against successive defendants until the plaintiff is either made whole or

ultimately fails to prove that any of them are liable. Va. Code § 8.01-443.

Any one of these defendants may be held liable for a plaintiff’s entire

damages if the defendant’s negligence or defective product was a

proximate cause of the plaintiff’s injury. See Ford Motor Co. v. Boomer, 285

Va. 141, 151, 736 S.E.2d 724, 728 (2013) (“[O]ur law provides a means of

holding a defendant liable if his or her negligence is one of multiple

concurrent causes which proximately caused an injury”); see also

Carolina, Clinchfield & Ohio Railway Co. v. Hill, 119 Va. 416, 421, 89 S.E.

902, 904 (1916) (“Where the negligence of two or more persons acting

independently, concurrently results in an injury to a third, the latter may

maintain his action for the entire loss against any one or all of the negligent

parties….’”); Maroulis v. Elliott, 207 Va. 503, 510, 151 S.E.2d 339, 344

(1966) (“In determining the liability of either of several persons whose

concurrent negligence results in injury, the comparative degrees of

negligence are not to be considered, each being liable for the whole even

though the other was equally culpable, or contributed in a greater degree to

the injury.”). It does not matter if other innocent or negligent causes also

contributed to the injury or if those other causes contributed to a greater

extent.

5

Virginia’s common and statutory tort law is built upon this

fundamental rule of joint and several liability. For instance, Virginia’s joinder

rules enable a plaintiff to pursue putative tortfeasors in successive suits

unless another defendant is found to be a necessary or indispensable

party. See, e.g., Fox v. Deese, 234 Va. 412, 421, 362 S.E.2d 699, 705

(1987); Va. Code § 8.01-5(A); Va. S. Ct. R. 3:12. And Virginia law specifies

that a plaintiff will not be barred from his joint and several right to pursue

other putative tortfeasors in successive suits in the event he is unable to

obtain full relief against the initial defendant. See Va. Code § 8.01-443

(stating that “no bar shall arise as to any of them by reason of a judgment

against another, or others, until the judgment has been satisfied.”); Va. S.

Ct. R. 1:6(a).

Likewise, Virginia’s contribution statute, cross claim rules, and third

party claim rules are based on the underlying joint and several liability

doctrine. They recognize that a plaintiff need not join all putative tortfeasors

in the action, but they ameliorate the rule by allowing a defendant to either

join other putative tortfeasors in the case or pursue them in later

contribution actions. See, e.g, Sullivan v. Robertson Drug Co., 273 Va. 84,

91, 639 S.E.2d 250, 255 (2007) (contribution); Va. Code § 8.01-34; Va. R.

Sup. Ct. 3:10 & 3:13. When a defendant brings such claims, Virginia law

6

places the burden of proving the claim squarely on the party bringing it (the

defendant/cross claim, third party, or contribution plaintiff), and it gives the

cross, third-party, or contribution defendant the opportunity to defend

against the claim. Sullivan, 273 Va. at 91, 639 S.E.2d at 255 (“The party

seeking contribution has the burden of proving that the concurring

negligence of the other parties was a proximate cause of the injury for

which damages were paid.”). But joint and several liability rules still allow a

plaintiff to collect the whole amount of the judgment against any or all

defendants if the injury is indivisible. Maroulis, 207 Va. at 511, 151 S.E.2d

at 345 (“It is well settled in Virginia that ‘. . . (W)here separate and

independent acts of negligence of two parties are the direct cause of a

single injury to a third person and it is impossible to determine in what

proportion each contributed to the injury, either or both are responsible for

the whole injury.’” (citations omitted)); see also Va. Code § 8.01-379.3

(commanding that in negligence and wrongful death actions, a trial court

may only submit a general verdict form unless the substantive law requires

apportionment of fault for comparative negligence or if all parties to the

action agree that interrogatories may be submitted to the jury).

Outside of these rules, Virginia law does not ordinarily allow

defendants to argue the empty chair. This Court has repeatedly cautioned

7

that a defendant “can not be exonerated by urging and showing the

negligence” of other parties or nonparties. Von Roy v. Whitescarver, 197

Va. 384, 393, 89 S.E.2d 346, 352 (1955) (citing Yonker v. Williams, 169 Va.

294, 299, 192 S.E. 753, 755 (1937)); School v. Walker, 187 Va. 619, 629,

47 S.E.2d 418, 423 (1948). “Other sufficient causes, whether innocent or

arising from negligence, do not provide a defense.” Boomer, 285 Va. at

158, 736 S.E.2d at 732; see also Hill, 119 Va. at 421, 89 S.E. at 904 (“‘To

show that other causes concurred in producing, or contributed to the result

is no defense to an action for negligence….”). And “[i]t is not essential,

therefore, for a plaintiff to show that an act, claimed to have been the

proximate cause of a certain result, was the only cause. It is sufficient if it

be established that the defendant’s act produced or set in motion other

agencies, which in turn produced or contributed to the final result.” Von

Roy, 197 Va. at 393, 89 S.E.2d at 352 (quoting Chesapeake & O. Ry. Co.

v. Wills, 111 Va. 32, 68 S.E. 395, 397 (1910)).

Superseding cause — a rarely proved caveat to the general rule

against non-party causation evidence — allows a defendant to prove that

another cause “sever[ed] the link of proximate causation between the initial

negligent act and the resulting harm” of the initial tortfeasor. If the initial

tortfeasor is able to prove superseding cause, it is relieved of liability.

8

Williams v. Joynes, 278 Va. 57, 63, 677 S.E.2d 261, 264 (2009); Jefferson

Hosp. v. Van Lear, 186 Va. 74, 82, 41 S.E.2d 441, 444 (1947); Hines v.

Garrett, 131 Va. 125, 108 S.E. 690, 694 (1921).

This Court has “emphasized that ‘a superseding cause of an injury

“constitutes a new effective cause and operates independently of any other

act, making it and it only the proximate cause of injury.”’” Kellerman v.

McDonough, 278 Va. 478, 493-494, 684 S.E.2d 786, 794 (2009)2 (quoting

2 In its Opposition to Dorman’s Petition for Appeal, State argued that “the Kellerman decision stands for the proposition that evidence regarding the negligence of non-parties is admissible even if it does not rise to the level of a superseding cause.” (Opposition to Petition for Appeal, at 17). This is misleading, at best.

In Kellerman, the trial court granted the defendant’s demurrer on the duty issue and dismissed the case. The Kellerman’s appealed the trial court’s decision. No trial had occurred and no evidence had been admitted. While addressing the issue of proximate cause, this Court held “that the acts of the third party did not constitute, as a matter of law, a superseding act between Paula’s alleged negligence and Jaimee’s death.” Kellermann, 278 Va. at 499, 684 S.E.2d at 797. Both Justice Koontz and Justice Kinser agreed with this part of the majority’s opinion. See id. at 499, 684 S.E.2d at 797 (Koontz, J., concurring in part and dissenting in part); id. at 513, 684 S.E.2d at 805 (Kinser, J., concurring in part and dissenting in part). Thus, this Court unanimously struck the superseding cause claim before any trial occurred or any evidence was taken, and it never approved the admission of evidence on this issue on remand.

9

Jenkins v. Payne, 251 Va. 122, 129, 465 S.E.2d 795, 799 (1996))3.

Granting an instruction on superseding cause when, as here, there is no

chance the intervening or concurring cause may rise to the level of a

superseding cause is unfairly prejudicial, draws the jury’s mind away from

the point in issue, excites prejudice and misleads them. See Stottlemyer v.

3 Similarly, in States’ Opposition to Dorman’s Petition for Appeal, State claims that “in Jenkins the Virginia Supreme Court explicitly ruled that a defendant physician could introduce evidence regarding an absent physician’s treatment of the patient.” (States’ Opposition to Petition for Appeal, at 18). But there is nothing on the cited page, or anywhere else in the opinion, making this “explicit[]” pronouncement. Rather, this Court stated:

Since there was no evidence from which the jury could conclude that Dr. Rothman was the sole proximate cause of Payne’s death, therejected opinion evidence was irrelevant to the issue whether the defendants also were negligent in their treatment of Payne. Id.Further, since the defendants produced no evidence tending to prove the facts on which their theory of sole proximate causation rested, they were not entitled to place that issue before the jury and have thejury instructed on it.

Jenkins, 251 Va. at 129, 465 S.E.2d 799 (emphasis added). Indeed one of the issues on appeal in Jenkins was “whether the trial court erred in excluding from the jury’s consideration (1) opinion evidence that another physician, who had settled the plaintiff’s claim against him, was negligent in his treatment of the decedent . . . .” Id. at 122, 128, 465 S.E.2d at 796, 799. Though the trial court initially denied the plaintiff’s motion in limine to preclude this intervening cause evidence, the court later changed its mind and precluded the evidence because it could not, as a matter of law, rise to the level of a superseding cause. Id. This Court affirmed that decision. Thus, once again, State blatantly mischaracterizes a case in an effort to support its argument.

10

Ghramm, 268 Va. 7, 12, 597 S.E.2d 191, 193 (2004) (quoting Moore v. City

of Richmond, 85 Va. 538, 8 S.E. 387, 388 (1888)).

C. The Evidence was Not Sufficient, As A Matter of Law, to Support a Superseding Cause Instruction.

This Court should instruct trial courts to conduct an in depth review of

any concurring cause evidence before granting a superseding cause

instruction.4 Trial court confusion over the quality of evidence required for

such an instruction has been demonstrated in case after case where a trial

court allows the evidence and grants the instruction only to have its

decision reversed by this Court because the evidence never rose to the

level of a superseding cause. See, e.g., Williams v. Le, 276 Va. 161, 168,

662 S.E.2d 73, 77 (2008); Atkinson v. Scheer, 256 Va. 448, 455, 508

S.E.2d 68, 72 (1998); Coleman v. Blankenship Oil Corp., 221 Va. 124, 132,

267 S.E.2d 143, 148 (1980).

To find a prima facie case of superseding cause, a trial court must

require that the evidence demonstrate (a) that the intervening cause was

4 Such insufficient evidence risks burdening this Court with an appeal and burdening the trial court with potential retrial. See generally Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986) (noting that admission of “irrelevant evidence tends to draw the jurors' attention toward immaterial matters”)

11

not set in motion by the tortfeasor’s negligence or defective product,5

(b) that the cause could not have been foreseen by the defendant,6 (c) that

the cause was a “‘new effective cause and operates independently of any

other act, making it and it only the proximate cause of injury,’”7 and (d) that

the defendant’s negligence or defective product did not contribute “even in

the slightest degree” to the plaintiff’s injury.8 The defendant bears the

burden of proving this affirmative defense. Panousos, 245 Va. at 64, 425

S.E.2d at 499 (“Defendants recognize that they have the burden of going

forward with evidence of superseding cause.”).9

5 See, e.g., Le, 276 Va. at 167, 662 S.E.2d at 77; Coleman, 221 Va. at 132, 267 S.E.2d at 148; Jefferson Hosp., 186 Va. at 81, 41 S.E.2d at 444.

6 See, e.g., Jefferson Hosp., 186 Va. at 82, 41 S.E.2d at 444 (“An intervening cause will not be deemed to have broken the causal connection if the intervening cause was foreseen or reasonably might have been foreseen by the wrongdoer.”); Scott v. Simms, 188 Va. 808, 817, 51 S.E.2d 250, 253 (1949); Standard Oil Co. v. Wakefield’s Adm’r, 102 Va. 824, 47 S.E. 830, 833 (1904).

7 See, e.g., Kellerman, 278 Va. at 493-494, 684 S.E.2d at 794; Williams,278 Va. at 63, 677 S.E.2d at 264; Jenkins, 251 Va. at 129, 465 S.E.2d at 799; Maroulis, 207 Va. at 510-11, 151 S.E.2d at 345.

8 See, e.g., Le, 276 Va. at 167, 662 S.E.2d at 77; Atkinson, 256 Va. at 455, 508 S.E.2d at 72; Scott, 188 Va. at 817, 51 S.E.2d 253-54.

9 In addition to erroneously giving a superseding cause instruction in this case, the trial court also erred by failing to give any instructions telling the jury that it was State’s burden to prove this defense.

12

Here, the plaintiff moved in limine to prohibit evidence of nonparty,

intervening causes because they could not rise to the level of superseding

causes.10 (JA at 214, Plaintiffs’ Motion in Limine). During arguments on the

motion, Dorman’s attorney correctly pointed out that “it would be error to

permit them to blame empty chairs, nonparties. If they want to point the

finger at Atmos [which was still a party at the time], great. . . . But the law

says they cannot blame a nonparty unless it’s a superseding cause that

totally cuts off their involvement.” (JA at 356, Day 2 at 56). In response,

State offered only the general argument that the “jury has to hear about

installation, maintenance, and what went on in that apartment. That is

critical to the determination as to whether or not there was even proximate

cause, let alone superseding.” (JA at 357). The trial court denied Dorman’s

motion without a proffer of the evidence State intended to offer at trial.

10 When a trial court reviews this issue, it should start from the presumption that the plaintiff will present a prima facie case of liability against the defendant because it is only at that point that the superseding cause defense becomes relevant. If the plaintiff is unable to prove a prima facie case against the defendant, then the plaintiff’s own proof fails and the court never reaches the issue of superseding cause. This is not a premature finding of liability against the defendant — it is a standard of review, similar to that of a demurrer, that presumes that the plaintiffs’ allegations are true and looks at whether, assuming this is so, the defendant’s intervening cause evidence is sufficiently robust to go to the jury and warrant a superseding cause instruction.

13

This case involved five female college students who were overcome

by carbon monoxide poisoning while they were sleeping. The carbon

monoxide was created by, and leaked from, the open exhaust water heater

installed in the utility room of their apartment. Carbon monoxide is insidious

because it has no onion properties — you can’t see it, smell it or taste it.

(See generally, Trial Trans.(“TT”), Day Six, 01/14/15 at 643-651). Dorman’s

theory was that it was unreasonably dangerous for State to specify the use

of the open exhaust water heater for interior dwellings such as the

apartment at issue here. According to Dorman, it was foreseeable that

even atmospheric conditions such as wind had the potential of causing a

backdraft in the heater’s flue, causing carbon monoxide to be forced back

down the flue and released through the heater’s open exhaust vents into

the interior living space of the dwelling. (See, e.g., TT, Day 4, 01/12/15 at

343-345, 354). This danger was unreasonable because State had three

alternative models at the time this unit was sold, which were safer for use in

a dwelling than the open exhaust water heater at issue here. (JA at 599 –

603; see also TT, Day 7, 01/15/15 at 883-884) (State’s corporate

representative, Adams, testifying that the alternative models do not have an

open exhaust at the relief hood). Dorman contended that the unreasonably

dangerous nature of the open exhaust heater at issue was compounded by

14

State’s failure to include a carbon monoxide sensor or a cutoff switch in this

heater, both of which, Dorman’s expert testified, were technologically

feasible and available at the time the unit was sold. (JA at 596 - 598)

State contended that its open exhaust heater was improperly

maintained and installed by non-parties and that this improper maintenance

and installation contributed or superseded their own negligence or product

defect.11 The only evidence regarding allegedly improper maintenance

involved a temperature and pressure valve (TP valve), which opened at a

temperature (126 degrees) lower than its rated temperature (210 degrees).

(See, e.g., JA at 546 -547). The evidence showed that the TP valve was

not maintained pursuant to the manufacturers’ instructions, which required

the TP valve to be periodically opened to remove sediment. (JA at 625-626,

634-637). However, it was clear that the valve was, in fact, opening and

discharging water prior to and after the incident without any sediment

obstruction — albeit at a lower temperature than rated. (See, e.g., JA at

637). Importantly, not one witness indicated that the failure to periodically

11 State also defended on the grounds that industry standards provided for the use of vented heaters in residential dwellings and that a carbon monoxide sensor and cutoff were not technologically feasible at the time the unit was sold. These arguments challenged Dorman’s core negligence and breach of warranty case, did not point the finger at non-parties, and were appropriate, though not conclusive, defenses in this case.

15

maintain the valve in this manner created carbon monoxide or was a

superseding cause of the release of carbon monoxide from the open

exhaust heater into the dwelling. To the contrary, when asked whether

components including the TP valve had “anything to do with carbon

monoxide,” Dorman’s expert, Bicknese, responded, “No. These are related

to, more or less, gas flow or unintended gas flow.” (JA at 577-578, 615).

With regard to installation, State pointed out that the original drawings

specified an electrical system instead of a gas system. However, the

uncontradicted testimony was (a) that the owners changed to gas during

phase 2 of the development, and this apartment was part of phase 4 (JA at

718-719, 725); (b) that the change was made in consultation with the gas

company, the HVAC engineer,12 and the Township of Blacksburg, (JA at

720-7212), (c) that, in addition to the atmospheric gas-fired heaters, the

engineer required a louver door to be installed on the utility room to ensure

adequate combustion air volume for the unit, in accordance with State’s

12 In closing argument, State attempted to blame the owner for not running the changes by the architect. However, the owner, Mr. Nichols, testified that he was not sure whether the architect was consulted or not, (JA at 721), and he stated that originally the architect “just generalized a heating and air conditioning plan on the plans . . . but there was no specific plans. They’re not required — were not required at that time in the state of Virginia.” (JA at 722).

16

Residential Instruction Manual, (JA at 551, JA at 724-725);13 (d) that the

apartment had 4140 cubic feet of combustion air volume — not including

the bed rooms or closets — which is almost a 1000 cubic feet more than

the 3,250 cubic feet minimum required by State’s Residential Instruction

Manual (JA at 590-591); and (d) that Blacksburg ultimately issued a

certificate of occupancy approving the apartments, with the changes, for

occupancy, indicating it had been inspected and there was adequate

combustion air in the apartment (TT, Day 4, 01/12/15, at 307-308).

State’s expert, Eberhardt, conceded that there was a sufficient

volume of combustion air available in the apartment pursuant to the

specifications in State’s Residential Instruction Manual (JA at 763-764), but

contended there was insufficient air flow when the air handler was on and

the bedroom doors were shut (Id.). According to Eberhardt, this situation

arose because there were no air-return ducts from the bedrooms and

because the carpet in the apartment had recently been replaced in the

apartment, allegedly creating a seal under the bedroom doors (JA at 748-

756). Significantly, Eberhardt conceded that he had “no real means of

calculating air flow through the carpet” under the doors to prove his opinion.

13 State claims that the louver door technically violated the building code; however, not one person testified that this technical violation affected the outcome.

17

(JA at 790). Instead, Eberhardt testified that he tested the pressure

differential between the inside and outside of the bedrooms when the bed

room door was closed and the air handler was on and it showed a

difference in pressure of 0.1 inches of water column. He contended that

this contributed to a backdraft of carbon monoxide, which was generated

as a byproduct of the heater’s combustion process and released through

the heater’s vents into the apartment. However, he then stated that he was

not “basing any of [his] conclusions” on his 0.1 inch water column pressure

readings. (JA at 795-796). So it is unclear what testing or data supported

his conclusion.

Even so, the most Eberhardt would say was that the change in the

carpet was a “contributor” to the incident.

Q. . . . Are you telling us that the change in the carpet caused this carbon monoxide exposure?

A I’m -- That’s not how I would phrase it. I would tell you that the change in the carpet is essentially the straw that broke the camel’s back. . . .

. . . .

A The culmination of those things clearly points to the carpet as being a contributor and, in this case, it is pretty inescapable that that change in carpet is actually what tipped the balance.

(JA at 803-804 (emphasis added)).

18

Moreover, when asked “would this back drafting occasion or the

emission of carbon monoxide into this apartment have happened had that

gas heater” been one of the safer, non-open-exhaust models, Dr.

Eberhardt answered, “No.” (JA at 814). Even State’s own attorneys

conceded after Eberhardt’s testimony:

[Eberhardt] described the [lack of air flow due to the carpet] as one of the explanations for what changed between the eight years prior to today. He did not say it was a cause, he was asked that question by Miss Tate, and in response to her question, he said it wasn’t a cause,it was an explanation for everything that happened in that apartment . . . .

(JA at 816 (emphasis added)).

Finally, State’s corporate representative and former V.P. of

engineering, Adams, conceded that it was foreseeable that the open

exhaust water heater would be “installed in close proximity to an appliance

that’s competing for air with it,” (JA at 848), that it was foreseeable that the

open exhaust water heater would be installed in proximity to an air handler,

as in this case, (JA at 847), and that State had produced the “Apollo” open

exhaust gas heater and the “Apollo air handler” that were present in the

apartment “contemplating that they would operate in the same application

together . . . .” (JA at 872). Adams, however, gave the previously

undisclosed opinion on cross examination that the Apollo air handler next

to the open exhaust heater was installed defectively because a photograph

19

showed that there was a gap between the intake duct and the air handler.

(JA at 894-895). On further questioning, he admitted that he did not know

whether that condition was a result of post incident testing and inspection,

(Id.), prompting the trial judge to comment that “since he made the

statement that he did not know whether it occurred — he doesn’t know if it

was before or after. To me that leaves it that nobody knew whether it was

after when it started or not.” (JA at 897).

The trouble with each of these theories is that, even assuming they

are true, the only thing in that apartment that created, and released, the

carbon monoxide that caused the plaintiffs’ injuries was State’s open

exhaust heater. The heater created carbon monoxide as a byproduct of

combustion, and it released carbon monoxide through its open exhaust.

Without the heater, there is no carbon monoxide — not from the carpet, not

from the TP valve, not from the louver door, and not from the supposed gap

between the duct and the air handler. Thus, though each of these other

conditions, arguendo, may have contributed to the injury, none of them was

a “‘new effective cause” that “operate[d] independently of” the heater

“making it and it only the proximate cause of injury,’” without the

20

contribution of State’s heater “even in the slightest degree.”14 Remove the

heater from the equation and there, quite simply, is no carbon monoxide.

Indeed, even State’s attorneys seemed to concede this point in their

Opposition to Plaintiffs’ Petition for Appeal, stating, “State introduced

evidence as to how the carbon monoxide accident occurred not to break a

causal link but rather to explain to the jury how the accident happened.”

(State’s Opposition to Petition for Appeal, at 7 (emphasis added)). Because

none of this could have amounted to a superseding cause, as a matter of

law, the trial court erred by giving the jury a superseding cause instruction.

Finally, State relies heavily on the federal magistrate’s report and

recommendations in Tunnell v. Ford Motor Co., 330 F. Supp. 2d 748 (W.D.

Va. 2004), but this case only serves to further demonstrate the confusion in

the bar on the distinction between a plaintiff’s proof of proximate cause, in

the first instance, and a defendant’s proof of superseding cause as an

exoneration defense.

Tunnell was a passenger in a car driven by Athey when they collided

with a pole. Tunnell sought to prove that a design defect — the absence of

a battery disconnect devise — in Ford’s electrical system was the

14 Kellerman, 278 Va. at 493-494, 684 S.E.2d at 794; Williams, 278 Va. at 63, 677 S.E.2d at 264; Jenkins, 251 Va. at 129, 465 S.E.2d at 799; Maroulis, 207 Va. at 510-11, 151 S.E.2d at 345.

21

proximate cause of a fire that erupted after the accident and caused his

burn injuries. Ford sought to introduce evidence of Athey’s drinking

activities earlier in the night, which Ford claimed caused the initial crash.

Tunnell sought to exclude this evidence because, even if it was conceded

that Athey’s alleged intoxication caused the initial crash, it had no tendency

to show that Athey’s alleged intoxication superseded Ford’s design defect

in causing the fire after the crash.

Rejecting Tunnell’s argument, the magistrate stated that the plaintiff’s

argument “is entirely dependent on the jury’s adoption of [the plaintiff’s]

theory of the case. In essence, Tunnell asks the court to assume the

correctness of [plaintiff’s] legal and factual theory and disallow evidence of

misuse inconsistent with his theory.” Id. at 758. According to the

magistrate, “What Tunnell’s argument does not contemplate is that the jury

may reject his theory that the absence of a battery disconnect device

caused the fire.” Id.

Respectfully, the magistrate conflated the plaintiff’s burden of proving

proximate cause with the defendant’s burden of proving superseding

cause. If the jury rejected Tunnell’s theory of the case — that the absence

of a battery disconnect device caused the fire, as the magistrate

suggested — then the plaintiff would have failed in his initial proof of

22

causation regarding the defect causing the fire, and no superseding cause

evidence or instruction would be necessary at all.15 Thus whether the initial

crash was caused by the driver’s intoxication did not resolve the question at

issue — whether a defect in Ford’s electrical system caused the fire after

the initial crash. Stated differently, the drivers’ intoxication was, at best, a

concurring cause. Even assuming the driver was intoxicated and caused

the initial crash, if the plaintiff successfully proved his theory, Ford’s

defect caused the fire after the crash, which in turn caused Tunnell’s

burns — burns that would not have occurred but for the concurrence of

both the crash and the defect. If, on the other hand, the plaintiff failed to

prove his theory that the defect was the cause of the fire, then the plaintiff

would have failed in his own proof of causation against Ford, regardless

whether the driver was also at fault or not.

In sum, there is confusion in the bar not only regarding what

constitutes a superseding cause, but the standard of review for analyzing

intervening cause evidence to determine whether, as a matter of law, it

15 Significantly, nothing in the opinion indicated that the plaintiff sought to preclude Ford from defending that the fire was not caused by a design defect. In fact, the court observed that Ford intended to prove that the fire “started in the passenger compartment and was ignited either by the butane lighter Tunnell had in his pocket, smoking materials and/or alcohol.” Id. at 751. Though this defense to the fire was relevant and plausible, it had nothing to do with the driver’s intoxication at the time of the initial crash.

23

could amount to a superseding cause. VTLA urges this Court to take the

opportunity to clarify these matters in this case.

II. Industry Custom and Usage is defined as Current Industry Standards and Practices, not as the Absence of Prior Incidents.

A. Standard of Review.

This Court reviews a trial court’s admission of evidence under an

abuse of discretion standard. John Crane, Inc. v. Jones, 274 Va. 581, 590,

650 S.E.2d 851, 855 (2007); Riverside Hosp. v. Johnson, 272 Va. 518,

529, 636 S.E.2d 416, 421 (2006); Clozza v. Commonwealth, 228 Va. 124,

135, 321 S.E.2d 273, 280 (1984). A trial court has no discretion to admit

clearly inadmissible evidence. Id.; Norfolk & Western Ry. Co. v. Puryear,

250 Va. 559, 563, 463 S.E.2d 442, 444 (1995). Moreover, “[a circuit] court

by definition abuses its discretion when it makes an error of law” and,

therefore, the “abuse-of-discretion standard includes review to determine

that the discretion was not guided by erroneous legal conclusions.” Porter

v. Commonwealth, 276 Va. 203, 260, 661 S.E.2d 415, 445 (2008) (internal

quotations omitted).

B. The Trial Court Erroneously Conflated “Custom and Usage” Evidence with Absence of Prior IncidentsEvidence.

Before trial, Dorman filed a motion in limine to prohibit evidence

regarding the absence of prior incidents. On the second day of trial, State

24

argued that “plaintiffs acknowledge that evidence of custom and usage may

be considered” and that 60 million heaters of the type at issue were in use

throughout the United States and there had been no reported prior

incidences of carbon monoxide exposure. Dorman moved the court to

prohibit State from testifying to the number of water heaters sold and the

absence of prior incidents, arguing that, “while State can talk about custom

and usage in the industry and the knowledge about the type of heater, we

still do not believe they should be able to talk about a safety history; we do

not believe they should be able to tout the absence of other injuries.” (JA at

352-353).

The trial court denied the motion, ruling that testimony of “prior

incidences by State and Atmos as to the custom and usage based on

design” was admissible. (JA at 362-363). Accordingly, the Court allowed

State’s witnesses to tell the jury, over Dorman’s objection, that there were

“about 60 million atmospheric gas water heaters operating in the United

States as we sit in this courtroom today,” (JA at 850-851), and that the

exhaust opening in the relief hood through which carbon monoxide was

released “does not” lead to “an expected risk of carbon monoxide exposure

in the 60 million residences where this type of product is currently in use,”

(JA at 852). And in closing argument, State told the jury that there are more

25

or less 60 million atmospheric water heaters being used “out in the field

today as they have been since the 1880s” and that the “only individual who

argues that they are not fit, that they are unreasonably dangerous” is the

Plaintiffs’ expert. (JA at 1003).16

State urged the trial court to accept evidence of the absence of prior

incidents as part of industry “custom and usage,” but absence of prior

injuries and custom and usage are two entirely separate issues. The trial

court’s admission of this evidence over Dorman’s timely objection was the

direct result of the trial court’s erroneous legal conclusion that absence of

prior incidents was the same as custom and usage.

It is undisputed that the trial court has the discretion to admit

evidence of industry custom and usage in a product liability case; however,

industry custom and usage are industry standards and practices, not the

use of products by member or of the general public or the absence of prior

incidents. See Andrews v. Appalachian Elec. Power Co., 192 Va. 150, 154-

55, 63 S.E.2d 750, 753 (1951). “Custom and usage” as defined by the

16 Compounding this unfairly prejudicial argument, State added that it employed “over 500 engineers . . . who do nothing other than make sure the products they manufacture are safe” and that State has “no interest, in putting unsafe products out in the field.” (JA at 1004). This highly improper statement forced Dorman contend with the hearsay opinions of 500 experts without any opportunity to cross examine them.

26

Merriam Webster Dictionary, in pertinent part, is “a usage or practice

common to many or to a particular place or class or habitual with an

individual” and a “firmly established and generally accepted practice or

procedure.” Merriam-Webster’s Dictionary (10th ed.); see also Black’s Law

Dictionary “Custom and Usage,” (10th ed. 2014) (defining “custom and

usage” as “general rules and practices that have become the norm through

unvarying habit and common use.”).

This language accords with Virginia cases, which contemplate the

term “custom and usage” to address common practices and standards

within the industry, not the number of consumer purchases of a product or

absence of prior incidents. See, e.g., Turner v. Manning, Maxwell & Moore,

Inc., 216 Va. 245, 217 S.E.2d 863 (1975) (noting that “the custom of the

hoist industry was to offer hoists without safety hooks”); C. & M.

Promotions v. Ryland, 208 Va. 365, 158 S.E.2d 132 (1967) (finding that the

wrestling match promoter followed the general custom and usage of the

wrestling industry in the practice of seating arrangements and the barrier);

Andrews, 192 Va. at 157, 63 S.E.2d at 755 (allowing defense expert to

testify to the general custom and usage of the electric industry of

maintaining, inspecting, and constructing transmission lines); Va. Stage

Lines v. Newcomb, 187 Va. 677, 677, 47 S.E.2d 446 (1948) (ruling that no

27

finding of negligence could be predicated upon the failure to provide guard

rails since it was the custom and usage of operators of bus industry not to

use guard rails for passengers along the sides of loading platforms); Bly v.

S. Ry. Co., 183 Va. 162, 172, 31 S.E.2d 564, 568 (1944) (finding that the

bridge where plaintiff’s decedent was injured was constructed in

accordance with the general custom and usage of the railway industry

generally throughout the United States). In each case, the term of art

relates to the accepted standards and practices in the applicable

industry — not self-serving statements about consumer usage of products

or anecdotal testimony about the lack of prior reported incidents.

Because the trial court made an error of law by defining industry

custom and usage to include the absence of prior incident reports by

consumers, it abused its discretion by admitting absence of prior incident

evidence based on this erroneous legal conclusion. VTLA urges the Court

to preserve Virginia’s long-standing doctrine that industry custom and

usage is defined as the industry standards and practices.

C. Virginia Law has Consistently Held that Evidence of the Absence of Prior Incidents is Inadmissible.

Absence of prior incidents “evidence introduces into the trial collateral

issues, remote to the issue at trial, which would tend to distract, mislead,

and confuse the jury,” and a departure from this Court’s consistent rule

28

prohibiting such evidence “would interject evidence so problematical, due

to the potential for a lack of reporting and the variables of circumstances

and conditions, that such evidence would have slight, if any, relevancy or

probative value.” Goins v. Wendy’s Int’l, Inc., 242 Va. 333, 335, 410 S.E.2d

635, 636 (1991). That is why it is “firmly established that evidence of the

absence of other injuries is not admissible in a negligence action when

timely objection to it is made.” Id. (citing Sykes, Adm’r v. Railway Co., 200

Va. 559, 564–65, 106 S.E.2d 746, 751 (1959)); Sanitary Gro. Co. v.

Steinbrecher, 183 Va. 495, 500, 32 S.E.2d 685, 687 (1945); see also Wood

v. Woolfolk Props., Inc., 258 Va. 133, 515 S.E.2d 304 (1999); Ford Motor

Co. v. Phelps, 239 Va. 272, 276 S.E.2d 454 (1990).17

17 See also Harmon v. Honeywell Int’l, Inc., 288 Va. 84, 758 S.E.2d 515 (2014) (holding that defendant’s closing arguments regarding the absence of prior incidents violated the trial court’s pretrial order excluding such evidence and argument and that the pretrial order was the law of the case since the defendants did not file a cross-appeal). Courts in other jurisdictions have routinely held that absence of prior accidents is generally inadmissible evidence, as well. See Healey v. Trodd, 7 A.2d 640 (N.J. Sup. Ct. 1939) aff’d, 11 A.2d 88 (1940) (finding that the absence of similar happenings in the past is inadmissible involving the explosion of a can of spaghetti); Klonowski v. Int’l Armament Corp., 17 F.3d 992 (7th Cir. 1994) (holding that evidence of lack of prior accidents was inadmissible in a products liability action involving a shotgun that misfired and injured plaintiff); Jones v. Pak-Mor Mfg. Co., 700 P.2d 819 (Ariz. 1985) (recognizing that evidence of the absence of prior accidents involving other similar products is inadmissible in manufacturing flaw cases).

29

What is particularly troubling here is that this evidence was offered to

prove lack of defect. Even where this Court has held that evidence of other

similar occurrences is admissible, it is usually only to establish that a

defendant had notice and actual knowledge of a potential defect — not to

prove that the product, in fact, was or was not defective. Additionally, such

information may be offered only after the proponent demonstrates that “the

prior incident occurred under substantially the same circumstances” and

was “caused by the same or similar defects and dangers as those in issue.”

Funkhouser v. Ford Motor Co., 284 Va. 214, 224, 726 S.E.2d 302, 308

(2012) on reh’g en banc, 285 Va. 272, 736 S.E.2d 309 (2013) (citations

omitted). Here, however, there was no evidence — indeed there could be

none — that each of the 60 million other heaters were being used under

substantially the same conditions as the one in this case.18 For example,

there is no testimony, proffer or even argument in the record that any of

these 60 million other heaters were installed indoors, were used in an

18 In fact, State’s corporate representative admitted that he did not, in fact, know the exact amount of similar water heaters that were in use in the United States, and that he couldn’t “tell the jury how many of the water heaters out there — the gas water heaters out there are atmospheric vent compared to the other three models.” (JA at 585). Accordingly, State’s witness could not even confirm the number of open exhaust heaters in use, much less the substantial similarity of the use.

30

apartment setting, were set up the same way this heater was set up, or any

other foundational evidence of substantial similarity.

Indeed, the trial court refused to allow Dorman to offer evidence that

inspections of other apartments in the same building with identical heaters

in the same configuration also emitted carbon monoxide in substantially the

same conditions. (JA at 501, 510-511). In stark contrast, the Court allowed

the defense to testify, without any foundation of substantially similar

conditions, that there had been no prior incidents with 60 million similar

heaters in use in the United States. By allowing this testimony, the trial

court introduced evidence of “collateral issues, remote to the issue at trial,

which would tend to distract, mislead, and confuse the jury” Goins, 242 Va.

at 335. It is for these very reasons that “evidence of the absence of other

accidents is not usually admitted in Virginia.” Charles E. Friend & Kent

Sinclair, The Law of Evidence in Virginia, 386 (7th ed. 2012).

In light of the facts and Virginia legal precedent, the trial court erred in

allowing State to testify to the purported safety record and sale of heaters

in the United States. Affirming this expansive redefinition of custom and

usage to include the absence of prior incidents will effectively reverse 80

years of Virginia law holding that such evidence is inadmissible. For the

aforementioned reasons, VTLA urges this Court to reaffirm Virginia’s

31

longstanding doctrine on custom and usage and the inadmissibility of the

absence of prior incidents, reverse the trial court, and remand this case for

a new trial.

III. Because the Jury Issued a General Verdict, This Court Should Reverse and Remand the Case for Retrial.

The jury issued a general verdict and, therefore, because this Court

cannot say that the erroneous superseding cause instruction or the

erroneous admission of evidence did not influence the jury’s verdict, this

Court must reverse the trial court. Le, 276 Va. at 168, 662 S.E.2d at 77

(quoting Monahan v. Obici Med. Mgmt. Servs., Inc., 271 Va. 621, 635, 628

S.E.2d 330, 338 (2006), and Johnson v. Raviotta, 264 Va. 27, 39, 563

S.E.2d 727, 735 (2002)) (“‘[W]here ... an instruction [has] been erroneously

submitted to the jury and the record does not reflect whether such ...

instruction formed the basis of the jury’s verdict, we must presume that the

jury relied on such ... instruction in making its decision.’”); accord Exxon

Mobil Corp. v. Minton, 285 Va. 115, 133, 737 S.E.2d 16, 28 (2013)

(“Because we cannot determine from the record whether the jury found in

favor of Minton based upon the duty to intervene without the opportunity to

consider the excluded evidence, or because of Exxon’s violation of the

active control duty, we will reverse the judgment of the circuit court.”).

Accordingly, if this Court finds the trial court erred by instructing the jury on

32

superseding cause or by admitting evidence of superseding cause or the

absence of prior incidents, it should reverse the trial court and remand the

case.

CONCLUSION

For the foregoing reasons, this Court should clarify Virginia law as to

the standard for reviewing intervening cause evidence and granting a

superseding cause instruction. Additionally, this Court should reaffirm its

longstanding prohibition of the absence of prior incidents evidence and

clarify that such evidence is not part of “custom and usage.” Finally, this

Court should reverse the trial court and remand this case for new trial with

instructions that the superseding cause defense does not apply as a matter

of law in this case.

33

Respectfully Submitted,

VIRGINIA TRIAL LAWYERS ASSOCIATION

BY: _______________________________ Of Counsel

William W.C. Harty, Esq. (VSB # 45447) Rachel Swyers, Esq. (VSB # 85972) PATTEN, WORNOM, HATTEN & DIAMONSTEIN, L.C. 12350 Jefferson Avenue, Suite 300 Newport News, VA 23602 757.223.4500 Telephone 757.249.3242 Fax [email protected]@pwhd.comCounsel for Amicus VTLA

34

CERTIFICATE

Pursuant to Rule 5:26(h) of the Rules of the Supreme Court of Virginia, I hereby certify that a pdf copy of this Brief of Amicus Curiae was filed electronically, via VACES, with this court. I further certify that ten bound copies of the same were hand delivered to the Office of the Clerk and an electronic copy was served, via email, upon the following counsel of record this 4th day of February, 2016.

Mary Lynn Tate, Esq. VSB No. 16085 TATE LAW PC 16006 Porterfield Highway Abingdon, Virginia 24210 Telephone: (276) 628-5185 Facsimile: (276) 628-5045 [email protected] for Appellants

James H. Keale, Esq.Timothy Freeman, Esq.SEDGWICK LLP One Newark Center 1085 Raymond Boulevard 16th Floor Newark, New Jersey [email protected] [email protected]

David M. Sturm, Esq. Matthew D. Joss, Esq. TADDEO STURM, PLC 3 West Cary Street Richmond, Virginia 23220 [email protected]@taddeosturm.comCounsel for Appellees State Industries, Inc.

35

___________________________ William W.C. Harty

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