Statement of Dead Defendant Properly Admitted Into Evidence

Debra Shumate was the driver of a vehicle that was rear-ended by a car driven by William Thompson.  Thompson died of unrelated causes before the complaint was filed.  In the subsequent lawsuit, Thompson’s estate admitted liability, and the trial was limited to the issue of damages.  The trial court permitted Thompson’s son to testify that William Thompson described the collision in question as occurring in stop-and-go traffic and that he had bumped plaintiff’s car at a speed of 5 to 7 miles per hour.  The jury subsequently returned a verdict for plaintiff but awarded her zero dollars.

On appeal, the plaintiff argued that Thompson’s son’s testimony recounting Thompson’s out-of-court description of the accident was inadmissible hearsay.  The Virginia Supreme Court in Shumate v. Estate of William Earl Thompson (decided Dec. 20, 2018) reviewed the history of Virginia’s dead man’s statute, now codified at Va. Code § 8.01-397.  It found that, pursuant to the dead man’s statute,  any relevant hearsay declaration by a decedent or incapacitated person is admissible even if the surviving adverse party does not testify.  While the Supreme Court agreed that this rule could unfairly bolster a decedent’s case, any change in the statute would need to be made by the General Assembly. Accordingly, the Court found no error in admitting the statement.

The Supreme Court also rejected plaintiff’s contention that the Circuit Court erred in refusing to set aside the jury’s verdict of no damages as contrary to the law and evidence.  It noted that there was substantial evidence that the collision was minor, that plaintiff had preexisting conditions that were unchanged after the collision, and that defendant’s medical expert testified that plaintiff suffered no injury in the accident.

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