Lucas v. Riverhill Poultry, Inc.

L
PRESENT: Lemons, C.J., Goodwyn, Mims, Kelsey, McCullough, and Chafin, JJ., and Millette,
S.J.

CRYSTAL LUCAS, ADMINISTRATOR
OF THE ESTATE OF MARK LUCAS
                                                             OPINION BY
v. Record No. 200336                             SENIOR JUSTICE LEROY F. MILLETTE, JR.
                                                              JULY 1, 2021
RIVERHILL POULTRY, INC., ET AL.


                  FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
                                David B. Carson, Judge

       This appeal arises from a defense verdict in a jury trial for an alleged wrongful death

occurring in an unexplained single-vehicle accident in which both occupants perished. The

plaintiff Crystal Lucas is the Administrator of the Estate of Mark Lucas (the “Administrator”) and

the defendants are Riverhill Poultry, Incorporated (“Riverhill”) and Amy B. Goode (“Goode”), the

Administrator of the Estate of Gerald Hilliard. The plaintiff contended that Hilliard fell asleep at

the wheel of his tractor-trailer thereby causing the accident that killed a passenger in the vehicle,

Mark Lucas. The defendants asserted that Lucas was the driver. We consider whether the circuit

court erred (i) in excluding portions of the medical examiner’s autopsy report and the plaintiff’s

experts’ opinions regarding the identity of the driver and Hilliard’s alleged sleep disorder and (ii)

in refusing the plaintiff’s proffered jury instruction on falling asleep at the wheel. For the reasons

explained below, we will affirm the circuit court’s judgment.

                                          BACKGROUND

       Just before 7 a.m. on February 15, 2017, a farm-use tractor-trailer owned by Riverhill left

its lane of travel on Interstate 81 southbound in Rockbridge County and rolled down an

embankment, killing Lucas and Hilliard. Riverhill employed Hilliard as a truck driver to transport
chicken waste fertilizer. Lucas, a friend and neighbor of Hilliard, accompanied Hilliard in the

tractor-trailer on the day in question.

       The Administrator filed a complaint against Riverhill and Goode (collectively

“Defendants”), seeking damages for wrongful death. The Administrator alleged that Lucas was a

passenger in the tractor-trailer and that Hilliard failed to exercise reasonable care in its operation;

failed to keep it under proper control; and fell asleep, due to lack of proper rest, while operating

the vehicle causing it to leave the roadway and roll over. She alleged that Hilliard’s negligence

was a proximate cause of Lucas’s death and the beneficiaries’ losses, including medical, funeral,

and burial expenses; Lucas’s reasonably expected income, services, protection, care, and

assistance; and Lucas’s “society, companionship, comfort, guidance, kindly offices and advice.”

Riverhill disputed that Hilliard was driving the tractor-trailer and contended instead that Lucas was

driving. Alternatively, Riverhill asserted that if Hilliard was driving the tractor-trailer, he was not

negligent.

       Prior to trial, the circuit court granted defense motions to exclude the Administrator’s

proffered expert testimony from the attending medical examiner, Hilliard’s family physician, a

neurologist, and a trucking safety professional as well as portions of the medical examiner’s

autopsy report on Hilliard. At the beginning of trial, the Administrator proffered the excluded

testimony from her experts as well as the medical examiner’s materials. She made no other

motions or arguments related to the excluded evidence during the trial. At the close of the

evidence, the Administrator proffered the following jury instruction: “A person who falls asleep

while driving is negligent.” In support of her proffer, the Administrator argued that “we think that

the evidence could have put the inference forward that the driver fell asleep because there was no




                                                   2
evasive action until it was too late.” 1 The circuit court refused the instruction. The jury returned a

verdict for the defendants.

       We awarded the Administrator this appeal. She assigns the following errors to the circuit

court’s judgment, which we will address in turn.

       1. The trial court erroneously excluded laboratory and manner of death evidence from
       the Commonwealth’s Assistant Chief Medical examiner’s report, as well as
       supportive expert testimony from the Assistant Chief Medical Examiner.

       2. The trial court erroneously excluded all testimony of truck driver Hilliard’s family
       medicine physician about his sleep disorder, and later also refused the ‘falling asleep
       at the wheel’ Virginia model jury instruction.

       3. The trial court erroneously excluded all expert neurological testimony on sleep
       disorders and fatigue (Dr. Hansen) and all expert truck safety testimony (Mr.
       Crawford) involving scientific findings and discussion of truck driver-fatigue and
       distracted driving.
                                            DISCUSSION
                                   ASSIGNMENT OF ERROR 1

                         Medical Examiner’s Report and Expert Testimony
       Dr. Sara Ohanessian, the Assistant Chief Medical Examiner at the Roanoke Office of the

Chief Medical Examiner, performed an autopsy on Hilliard. She concluded the cause of Hilliard’s

death was “Blunt Force Trauma of Head” and the manner of death was “Accident.” Her autopsy

report included the following “Summary of Circumstances:”

       This 68-year-old decedent was driving a 2004 Kenworth tractor trailer on I-81 in
       Virginia with a passenger. The vehicle reportedly ran off the road, struck a
       guardrail, struck an embankment, and then overturned. A call to 911 was made for
       assistance and police/rescue responded to the scene where the driver and passenger
       . . . were pronounced dead. It was reported that both decedents were unrestrained.
       The medical examiner’s office was notified, and the decedents were transported to
       WOCME for examination.”
A forensic analysis of Hilliard’s postmortem blood revealed that certain medications were present.


       1
          Two eyewitnesses testified that when the tractor-trailer failed to negotiate the slight curve
in the roadway, the driver did not brake or take any other apparent action to avoid the accident.
The eyewitnesses could not identify the driver.


                                                   3
       In her pre-trial deposition, Dr. Ohanessian testified that some of the medications found in

Hilliard’s blood were drowsiness-inducing medications typically taken as sleep aids. She also

testified that, in addition to her physical examination of Hilliard’s body, she relied on the final

report from the state police to conclude that Hilliard was driving the tractor-trailer at the time of

the crash. She added that the photographs of the accident scene showing Hilliard situated between

the driver and passenger seats in the cab of the tractor-trailer with his left hand on the steering

wheel also informed her conclusion that Hilliard was the driver. Dr. Ohanessian acknowledged on

cross-examination that she had relied on the police report to “tell [her] who . . . was driving in this

case” and that she was neither trained nor expected to recreate automobile accidents or make final

conclusions about what object or mechanism may have caused the blunt force trauma to Hilliard’s

head. She agreed she could only speculate about what occurred. Dr. Ohanessian also

acknowledged that she could only speculate about whether Hilliard suffered any adverse reactions

to any of the medications found in his blood or whether he was awake or asleep at the time the

vehicle left the roadway. She confirmed that once she determined the cause and manner of death,

her duties were complete.

                                I. Statutory Construction of Code § 8.01-390.2

       First, the Administrator contends that the circuit court erred as a matter of law in excluding

the Summary of Circumstances and the toxicology report because it was contrary to Code § 8.01-

390.2. That statute provides:

       Reports of investigations made by the Chief Medical Examiner, his assistants or
       medical examiners, and the records and certified reports of autopsies made under the
       authority of Title 32.1, shall be received as evidence in any court or other
       proceeding, and copies of photographs, laboratory findings and reports in the office
       of the Chief Medical Examiner or any medical examiner, when duly attested by the
       Chief Medical Examiner or an Assistant Chief Medical Examiner, shall be received
       as evidence in any court or other proceeding for any purpose for which the original




                                                   4
       could be received without proof of the official character or the person whose name is
       signed thereto.

       The Administrator argues that the statute plainly provides that a medical examiner’s reports

of investigations and copies of laboratory findings “shall be received as evidence.” She submits

that the lack of any limiting language in the statute relating to hearsay testimony reflects that the

General Assembly understood that a medical examiner’s report by its very nature derives from

hearsay, such as reports from first responders and third-party forensic laboratories. Therefore,

although Dr. Ohanessian based the opinions in her Summary of Circumstances on the police

report, accident photographs and the location of Hilliard’s body in the cab of the tractor-trailer,

rather than her personal knowledge of these facts, the Administrator argues that it did not warrant

the circuit court’s exclusion. Similarly, she contends that the laboratory findings were plainly

admissible under the statute. The Administrator also argues that the laboratory results were

relevant because, along with Dr. Ohanessian’s supporting testimony, they demonstrated that

Hilliard had knowingly ingested drowsiness-inducing medications, which was relevant to her

theory that Hilliard fell asleep at the wheel.

       Alleged errors involving statutory interpretation or application present questions of law that

we review de novo on appeal. Conyers v. Martial Arts World of Richmond, Inc., 

273 Va. 96

, 104

(2007). We are bound by “the plain language of a statute unless the terms are ambiguous or

applying the plain language would lead to an absurd result.” Boynton v. Kilgore, 

271 Va. 220

, 227

(2006) (internal citations and quotation marks omitted).

       Although this is the first occasion on which we consider Code § 8.01-390.2, we have on

several occasions construed and applied Code § 19.2-188, which is the materially identical




                                                   5
criminal counterpart of Code § 8.01-390.2. 2 A review of those cases reveals that we have

consistently rejected the statutory construction and application that the Administrator promotes

here. Her attempts to distinguish these cases do not persuade us to depart from this precedent for

purposes of our interpretation and application of Code § 8.01-390.2.

       In Bond v. Commonwealth, 

226 Va. 534

 (1984), the decedent died after falling from a

fourth-floor balcony. The medical examiner based his conclusions that the decedent was thrown to

her death, thereby making the death homicidal, upon the police investigation and report, witness

statements, photographs from the scene, and a postmortem blood analysis devoid of any

substances. The circuit court overruled the defendant’s objection to the admission of that portion

of the medical examiner’s autopsy report as opinion based on hearsay, reasoning that the statute

provided an exception to the hearsay rule and because it “clearly says [the report] shall be

admissible in evidence.” 

Id. at 536-37

. On appeal, we held that the circuit court erred, holding

that “since only statements of fact are within the purview of the statutory exception” the medical




       2
         In 2003, the General Assembly made slight, non-substantive amendments to Code
§ 19.2-188 and simultaneously enacted the identical Code § 8.01-390.2 as recited above.
See Acts 2003, ch. 459. At all relevant times prior to 2003, Code § 19.2-18 provided:

       Reports of investigations made by the Chief Medical Examiner or his assistants or by
       medical examiners, and the records and reports of autopsies made under the authority
       of Title 32.1 of this Code, shall be received as evidence in any court or other
       proceeding, and copies of records, photographs, laboratory findings and records in the
       office of the Chief Medical Examiner or any medical examiner, when duly attested by
       the Chief Medical Examiner or one of his Assistant Chief Medical Examiners, or the
       medical examiner in whose office the same are, shall be received as evidence in any
       court or other proceeding for any purpose for which the original could be received
       without proof of the official character or the person whose name is signed thereto.



                                                  6
examiner’s expression of opinion that the decedent died as a result of homicide was incompetent.

Id. at 537 (quoting Ward v. Commonwealth, 

216 Va. 177

, 178 (1975)). 3 We reasoned that

       [w]here the facts and circumstances shown in evidence are such that [jurors] of
       ordinary intelligence are capable of comprehending them, forming an intelligent
       opinion about them, and drawing their own conclusions therefrom, the opinion of an
       expert based upon such facts and circumstances is inadmissible.

Id.

 (quoting Coppola v. Commonwealth, 

220 Va. 243

, 252 (1979)). We further explained that

although an expert witness may be permitted to express an opinion relative to the existence or

nonexistence of facts not within common knowledge, the expert cannot give an opinion upon the

precise or ultimate fact in issue, which must be left to the factfinder. 

Id.

 (citing Webb v.

Commonwealth, 

204 Va. 24

, 33 (1963)).

                 Does Amendment to Code § 19.2-188 Limit Application of Bond?

       The Administrator attempts to distinguish Bond and limit its application here, arguing that

the medical examiner’s opinion was impermissible there only because it bore on an ultimate fact in

issue, which she contends is now permissible under the amendment to Code § 19.2-188. It

provides:

       B. Any statement of fact or of opinion in such reports and records concerning the
       physical or medical cause of death and not alleging any conduct by the accused shall
       be admissible as competent evidence of the cause of death in any preliminary hearing.

See Acts 2009, ch. 640. We disagree with the Administrator’s contention that the amendment

would dictate a different result in Bond and therefore limits its relevance here to support the

exclusion of Dr. Ohanessian’s Summary of Circumstances. Nothing in the plain language of Code

§ 19.2-188 provides that a medical examiner is authorized to opine on an ultimate fact in issue, nor



       3
        Code § 19.1-45, the predecessor to Code § 19.2-188, was in effect when we decided Ward
v. Commonwealth, 

216 Va. 177

 (1975) and Bass v. Commonwealth, 

212 Va. 699

 (1972), but it also
contained language materially identical to Code §§ 19.2-188 and 8.01-390.2. See, e.g., Robertson
v. Commonwealth, 

211 Va. 62

, 65 (1970).


                                                   7
does it permit her to base an opinion on facts and circumstances shown by the testimony of lay

witnesses that are sufficient to enable a jury to draw its own conclusion. Further, the medical

examiner in Bond opined on conduct by the accused (that he threw the victim off the balcony),

which the amendment plainly prohibits.

                Does Enactment of Code § 8.01-401.3 Limit Application of Bond?

       We also disagree with the Administrator’s assertion that Bond has limited relevance to this

civil case in light of Code § 8.01-401.3, which provides:

       No expert or lay witness while testifying in a civil proceeding shall be prohibited
       from expressing an otherwise admissible opinion or conclusion as to any matter of
       fact solely because that fact is the ultimate issue or critical to the resolution of the
       case. However, in no event shall such witness be permitted to express any opinion
       which constitutes a conclusion of law.

The circuit court excluded Dr. Ohanessian’s testimony that Hilliard was driving and had ingested

sleep aids at some time prior to the accident for lack of a proper foundation. The court concluded

that the proffered testimony would invade the province of the jury to draw its own conclusions

from the same evidence the doctor considered. Therefore, Dr. Ohanessian’s expert testimony was

not “otherwise admissible” as required by Code § 8.01-401.3. Hence, application of this statute

also would not permit the medical examiner’s excluded expert testimony. See Countryside Corp.

v. Taylor, 

263 Va. 549

, 553 (2002) (internal citations omitted) (explaining that although Code

§ 8.01-401.3 has liberalized the admission of expert testimony, it nevertheless must meet the

fundamental evidentiary requirements, such as an adequate foundation). Accordingly, our

construction and application of Code § 19.2-188 in Bond applies here without limitation.

               Additional Cases that Inform our Construction of Code § 8.01-390.2

       We likewise adopt and apply our reasoning in Bass v. Commonwealth, 

212 Va. 699

, 700

(1972). There, we rejected the Commonwealth’s argument, similar to the Administrator’s




                                                   8
arguments here, that admission of the medical examiner’s report was mandatory because of the

statutory language providing that a medical examiner’s report “shall be received into evidence.”

We explained that the effect of the statute was to make reports of investigations of the medical

examiner “admissible as prima facie evidence of the facts stated therein, thus obviating the

necessity of summoning as witnesses those persons” performing the particular tests or

investigations at issue. See also, Robertson v. Commonwealth, 

211 Va. 62

, 67-68 (1970)

(construing the statute to mean that facts, not opinions, in a medical examiner’s report are accorded

the dignity of prima facie evidence).

       Similarly, in Hopkins v. Commonwealth, 

230 Va. 280

, 286-287 (1985), the circuit court

ruled, over defense objection, that Code § 19.2-188 permitted the admission of the victim’s dental

identification through the medical examiner’s testimony or the autopsy report. On appeal, we held

that the circuit court erred, explaining that “expressions of opinion . . . are not admissible merely

because they are included in a medical examiner’s report; only statements of fact are admissible

under this statutory exception to the rule excluding hearsay evidence.” See also Quintana v.

Commonwealth, 

224 Va. 127

, 141 (1982) (holding the medical examiner’s report was prima facie

evidence of the stated facts but that an opinion in the report was not competent evidence).

Accordingly, we reject the Administrator’s similar arguments on these points as well.

       Our reasoning in the foregoing cases is also consistent with our holdings that it is error to

admit into evidence a death certificate, which is governed by Code § 32.1-272, to show cause or

manner of death if it contains any expressions of opinions or conclusions by a person who has no

personal knowledge of the facts. See Edwards v. Jackson, 

210 Va. 450

, 452-453 (1970)

(construing Code § 32-353.27, the predecessor to Code § 32.1-272); see also Bailey v. C. V.




                                                   9
Hunter, Inc., 

207 Va. 123

 (1966) (same); and K. Sinclair, The Law of Evidence in Virginia § 13-

12[d] (8th ed. 2018) (same).

       Further, we observe that when the General Assembly enacted Code § 8.01-390.2 with

language identical to Code § 19.2-188, it did so with the knowledge of our aforementioned

jurisprudence. See Acts 2003, ch. 459; see also Townes v. Virginia State Bd. of Elections, 

299 Va.

34

, 49 (2020) (explaining that when the legislature acts in an area in which an appellate court has

spoken, it is presumed to know the law as the court has stated it and therefore to acquiesce in it,

and if the legislature intends to countermand such appellate decision it must do so explicitly)

(quoting Weathers v. Commonwealth, 

262 Va. 803

, 805 (2001) and citing Lambert v. Sea Oats

Condominium Ass’n, Inc., 

293 Va. 245

, 254 (2017)).

       Therefore, in keeping with the reviewed precedent, we reject the Administrator’s argument

that Code § 8.01-390.2 should be construed as a mandate to admit expressions of opinion merely

because they are included in a medical examiner’s report regardless of any other rule of evidence.

The statute provides an exception only to the evidentiary rule excluding hearsay evidence. 4 Its



       4
         We also reject Lucas’s additional argument that we should construe Code § 8.01-390.2
more liberally in light of the hearsay exception provided by Rule 2:803(8) of the Virginia Rules of
Evidence, which provides in relevant part that:

       The following are not excluded by the hearsay rule, even though the declarant is
       available as a witness:
                                               ...

       (8) Public Records and Reports. – In addition to categories of government records
       made admissible by statute, records, reports, statements, or data compilations, in any
       form, prepared by public offices or agencies, setting forth (A) the activities of the
       office or agency, or (B) matters observed within the scope of the office or agency’s
       duties, as to which the source of the recorded information could testify if called as a
       witness; generally excluding, however, in criminal cases matters observed by police
       officers and other law enforcement personnel when offered against a criminal
       defendant.



                                                  10
effect is to make reports of investigations of the medical examiner “admissible as prima facie

evidence of the facts stated therein, thus obviating the necessity of summoning as witnesses those

persons performing the particular tests or investigations at issue.” Bass, 

212 Va. at 700

. It does

not, as we explained in Bond, provide an exception authorizing admission of expressions of

opinion in a report that are derived from evidence, such as here, that the jury is just as well-

equipped as the medical examiner to consider and draw its own conclusions. However, if the

evidence was such that the jurors were not capable of comprehending and forming an intelligent

opinion about it, and drawing their own conclusions, the opinion testimony of an expert based

upon such facts and circumstances would be admissible, assuming it met all other evidentiary

requirements. That simply is not the case here.

       As Dr. Ohanessian acknowledged, the only investigation she was tasked with was to

determine the cause and manner of Hilliard’s death, which, respectively, she reported as “Blunt

Force Trauma of Head” and “Accident.” See Code § 32.1-183(B). The circuit court properly

permitted those portions of Dr. Ohanessian’s report as prima facie evidence of those facts without

the need for her appearance or testimony, thereby effectuating the purpose of Code § 8.01-390.2.

                             II.   Medical Examiner’s Expert Testimony

       Next, the Administrator contends that the circuit court abused its discretion in excluding

Dr. Ohanessian’s designated expert testimony.




Assuming, arguendo, that the Rule permits the admission of a broader range of evidence than Code
§ 8.01-390.2, it is irrelevant under the facts here. To be excepted from the hearsay rule and be
admissible, the Rule would require that Dr. Ohanessian’s autopsy report contain “matters observed
within the scope of the office or agency’s duties, as to which the source of the recorded
information could testify if called as a witness.” As previously explained, Dr. Ohanessian testified
that the challenged opinions were not matters she observed within the scope of her duties.
Therefore, her testimony would not satisfy the requirements of the Rule in any event.



                                                  11
       It is well-established that the admission or exclusion of expert testimony is a matter within

the sound discretion of the circuit court, and we will reverse the circuit court’s judgment only when

the court has abused this discretion. Keesee v. Donigan, 

259 Va. 157

, 161 (2000). When we say

that a circuit court has discretion, we do not mean that the court is free to simply act in any way it

may deem desirable under the circumstances. See, e.g., Harris v. Citizens Bank & Tr. Co., 

172 Va.

111

, 144 (1939) (observing that a matter that is committed to the discretion of a trial court does not

involve “arbitrary or capricious discretion, dependent upon the mere pleasure of the judge, but of

that sound and reasonable discretion which governs itself, as far as it may, by general [legal and

equitable] rules and principles”). Rather, we mean that the circuit court “has a range of choice, and

that its decision will not be disturbed as long as it stays within that range and is not influenced by

any mistake of law.” Landrum v. Chippenham and Johnston-Willis Hosps., Inc., 

282 Va. 346

, 352

(2011) (internal citations omitted).

       As we have already recognized, the record reveals that Dr. Ohanessian based her opinion

upon the facts and circumstances shown from the police report, photographs of the accident,

roadway marks, debris, Hilliard’s post-mortem blood analysis, and eyewitness testimony. These

facts and circumstances are such that the jurors could comprehend them, form an intelligent

opinion about them, and draw their own conclusions. Bond, 226 Va. at 537; see also Lopez v.

Dobson, 

240 Va. 421

, 423 (1990) (holding that a “witness may describe the marks that he has

observed near the place of an accident . . .[but] [t]he inference to be drawn from the testimony

regarding such tire marks, skid marks, or scratches is solely the province of the jury”). Not only

did Dr. Ohanessian rely on the police report to “tell [her] who . . . was driving in this case” she

acknowledged that she was neither trained nor expected to recreate automobile accidents or make

final conclusions about what caused the accident or the blunt force trauma to Hilliard’s head. The




                                                  12
record also shows that Dr. Ohanessian could not say whether Hilliard suffered any adverse

reactions to any of the medications found in his blood or if he was awake or asleep at the time the

vehicle left the roadway.

       Accordingly, we cannot say that the circuit court exceeded its range of discretion or that it

was influenced by any mistake of law in excluding Dr. Ohanessian’s testimony. See Countryside

Corp., 

263 Va. at 553

 (holding that expert testimony is inadmissible if it is speculative or without a

proper foundation).

                                    ASSIGNMENT OF ERROR 2
                            I. Family Medicine Physician’s Expert Testimony

       Dr. Rosa King, Hilliard’s family medicine physician, testified that in November 2016,

Hilliard complained of insomnia, sleep disturbances, depression, and fatigue. She ordered an at-

home overnight sleep study, which Hilliard underwent on December 7 and 8, 2016. Dr. King

explained that Hilliard’s results were abnormal and she instructed her nurse to inform Hilliard, by

telephone and mail, that “his oxygen did drop during the sleep test . . . enough to qualify . . . to

have oxygen at nighttime.” Dr. King stated that the test “was not a daytime test, so we can’t –

extrapolate to that. But for the overnight, [Hilliard] could have benefited from oxygen.” Dr. King

testified that she wanted Hilliard to see a sleep specialist right away for a formal evaluation of

sleep apnea. Dr. King believed that Hilliard had been informed of his sleep test results and her

recommendation for a follow-up, but the medical records indicated that Hilliard did not follow up.

       The circuit court ruled that Dr. King’s testimony was inadmissible at the time of the pre-

trial hearing because it was “too attenuated,” but its ruling was “without prejudice to [Lucas], by

counsel, moving the Court to reconsider its ruling based on developments at trial.”

       Although the Administrator contends that the circuit court abused its discretion in

excluding Dr. King’s testimony, we conclude that she has waived this argument. Rule 5:25. The


                                                   13
circuit court’s ruling to exclude Dr. King’s testimony was without prejudice to a motion for

reconsideration based on developments at trial. The Administrator proffered Dr. King’s testimony

at the outset of the trial; however, she did not move the court for reconsideration during the trial in

accordance with the court’s preliminary ruling. See, e.g., Wal-Mart Stores E., LP v. State Corp.

Comm’n, 

299 Va. 57

, 76 (2020) (observing that “[a] motion to reconsider ordinarily asks a court to

reconsider a holding because, in the opinion of the movant, the holding was erroneous”).

Therefore, the Administrator deprived the circuit court of an opportunity to make a final ruling on

the admissibility of Dr. King’s testimony in light of the evidence presented at trial and we will not

consider the challenged ruling as a basis for reversal on appeal. See Riverside Hosp., Inc. v.

Johnson, 

272 Va. 518

, 526 (2006) (finding that if the circuit court is not afforded the opportunity

to address an issue there is no ruling on that issue and, thus, no basis for review or action by this

Court); Wal-Mart Stores, 299 Va. at 76-77 (concluding that a motion for reconsideration “may . . .

challenge a tribunal’s failure to rule on an issue properly presented to it, particularly a timely but

unadjudicated lesser-included claim,” but that it may not “request to consider for the first time

something the movant had never before specifically sought”).

                                     II. Refusal of Jury Instruction

       The Administrator also assigns error to the circuit court’s refusal of an instruction that

would have informed the jury that “[a] person who falls asleep while driving is negligent.” She

contends that even without the excluded expert testimony, the eyewitnesses’ testimony that the

driver of the tractor-trailer did not apply the brakes, swerve or take any other evasive maneuvers as

the vehicle left the roadway, along with the police officer’s corroborating testimony that his

investigation of the accident site and vehicle damage showed no skid marks, tire blowouts or other




                                                   14
mechanical explanations, was more than sufficient to permit the jury to infer that the driver may

have fallen asleep at the wheel.

       The credible evidence introduced in support of a requested jury instruction “must amount

to more than a scintilla.” Hancock-Underwood v. Knight, 

277 Va. 127

, 130-31 (2009). On appeal,

we view that evidence in the light most favorable to the proponent of the instruction. 

Id. at 130

.

So viewed, the evidence that there were no equipment or mechanical failures perhaps lends itself

to reasonable inferences about what did not cause the tractor-trailer to leave the roadway, but it

does not reasonably follow that the only remaining reason would be because the driver may have

fallen asleep. Likewise, the lack of evasive maneuvers is insufficient to permit jurors to infer,

without improper speculation, that the driver may have fallen asleep. “It is incumbent on the

plaintiff who alleges negligence to show why and how the accident happened, and if that is left to

conjecture, guess or random judgment, he cannot recover.” McFadden v. Garrett, 

211 Va. 680

,

683 (1971) (internal citations omitted).

       Further, “[w]here the jury has been sufficiently and correctly instructed on any point, it is

not error to refuse further instructions on that point, however correct a tendered instruction may

be.” Harman v. Honeywell Intern., Inc., 

288 Va. 84

, 104 (2014) (internal citations omitted). The

jury in the instant case was instructed that “the driver of a vehicle has a duty to use ordinary care:

to keep a proper lookout; to keep his vehicle under control; and to operate his vehicle at a

reasonable speed under the existing conditions. If a driver fails to perform any one or more of

these duties, then he is negligent.” We have said that “[t]o fall asleep at the steering wheel is a

clear violation of the duty to keep a proper lookout.” Lipscomb v. O’Brien, 

181 Va. 471

, 475

(1943). Thus, the principle set forth in the refused instruction was fully and fairly covered in the

granted instruction.




                                                  15
                                   ASSIGNMENT OF ERROR 3
                                  I. Neurologist’s Expert Testimony

       The Administrator argues that the circuit court erred by excluding the proffered testimony

of Dr. Robert Hansen, a neurologist, as an expert in sleep disorders. He opined to a reasonable

degree of medical probability, based on a differential diagnosis, that Hilliard fell asleep while

operating the tractor-trailer due to daytime sleepiness and fatigue from sleep apnea. Dr. Hansen

testified that Hilliard’s underlying untreated sleep problem was compounded by his use of sedating

medications as seen in the toxicology report. He explained that there was no evidence for loss of

consciousness from other medical causes, such as diabetes or a heart arrythmia, as there had been

no problems with Hilliard’s pacemaker. Dr. Hansen stated that although there are a number of

things that can happen to people, such as an aneurysm or heart attack, when, as in this case, the

person has known sleep problems and apparently falls asleep, the cause is sleep apnea.

       On cross-examination, Dr. Hansen conceded that he would need to know, but did not

know, how long a person had been taking a medication, whether he had developed a tolerance to it,

the person’s weight and whether it had changed. Dr. Hansen also admitted he did not know if

Hilliard had taken any measures to address his sleep issues, such as losing weight or changing

medications, and he conceded that the medications that were in Hilliard’s blood had a long half-

life, which meant he did not know the effect of the medications on Hilliard at the time of the

accident. Likewise, Dr. Hansen did not know Hilliard’s genetic ability to metabolize the

medications on the day in question, which would be dependent on his hydration and how his

kidneys were functioning that day.

       The Administrator argues that Dr. Hansen’s testimony was competent, probative medical

evidence that would tend to make her theory of liability more likely. She adds that the defendants’




                                                  16
arguments against admission of this evidence go to the weight of Dr. Hansen’s testimony, not its

admissibility, and therefore the circuit court abused its discretion in excluding the testimony.

       We do not agree. “Generally, when an expert examines facts and circumstances leading to

an injury, his opinion as to the cause of the injury is not rendered factually unsupported by the

possibility of another cause.” Toraish v. Lee 

293 Va. 262

, 269 (2017). However, that is not so

when, as here, an expert purports to eliminate all possible causes of the accident until only one

remains. 

Id.

 When Dr. Hansen conceded that there was information he needed to know, but did

not know, it rendered his differential diagnosis invalid and inadmissible because it was founded on

assumptions that were not established. 

Id. at 270

. Further, “[e]xpert testimony founded upon

assumptions that have no basis in fact is not merely subject to refutation by cross-examination or

by counter-experts; it is inadmissible.” 

Id. at 269

. Accordingly, we cannot say the circuit court

abused its discretion in excluding the contested portions of Dr. Hansen’s proffered testimony.

                         II. Trucking Safety Professional’s Expert Testimony

       The Administrator also argues that the circuit court erred in excluding the proffered

testimony of James Crawford from Introtech Inc., an accident reconstruction service, who had

been retained as an expert regarding regulations and industry standards of safety for the operation

of commercial trucks, including issues of drowsiness and sleep deprivation and how those issues

relate to the circumstances of the crash and deaths at issue. In sum, Crawford opined that there

were no adverse causative factors associated with the vehicle, roadway or environment. He

presented diagrams deduced from his review of the evidence to depict how he believed that the

tractor-trailer left the roadway and concluded that it demonstrated how the driver failed to keep a

proper lookout and drive safely. In his opinion, the accident was caused by a driver who was not

normally alert due to being fatigued or because he fell asleep at the time of the crash. Crawford




                                                  17
further opined that the damage to the passenger door was caused by Lucas’s ejection as the truck

rolled over and that the location of Hilliard’s body was consistent with him being the driver

because he was able to hold on to the steering wheel while the tractor-trailer rolled over.

       However, Crawford admitted that he did not take any measurements or conduct any tests to

determine whether Lucas’s body would fit through the window opening in the damaged door.

Similarly, he conceded that whether Hilliard moved his arms after the tractor-trailer came to rest

was indeterminate and that there was no data regarding what Hilliard may or may not have been

doing inside the vehicle before anyone arrived on the scene.

       As we explained above, when the facts and circumstances are such that jurors could

comprehend them, form an intelligent opinion about them, and draw their own conclusions, the

opinion of an expert based upon such facts and circumstances is inadmissible. Bond, 226 Va. at

537; see also Lopez, 240 Va. at 423 (holding that a “witness may describe the marks that he has

observed near the place of an accident . . .[but] [t]he inference to be drawn from the testimony

regarding such tire marks, skid marks, or scratches is solely the province of the jury”); and

Countryside Corp., 

263 Va. at 553

 (holding that expert testimony is inadmissible if it is speculative

or without a proper foundation). Therefore, the circuit court did not abuse its discretion in

excluding Crawford’s opinions.

                                          CONCLUSION

       For the foregoing reasons we find no abuse of discretion in the circuit court’s evidentiary

rulings and will affirm its judgment entered on the jury’s verdict.

                                                                                              Affirmed.




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