Experienced Personal Injury Law attorney Michael Avery comments on Shumate v. Mitchell, a recent Virginia Supreme Court decision

Michael Avery, Esq., Fairfax, Virginia

In a recent case, the Supreme Court of Virginia reviewed the modern criticism of the Dead Man’s statute and the expansive version adopted by the Virginia legislature.

Plaintiff Debra Shumate was involved in an automobile accident with William Earl Thompson. The lawsuit was originally against Thompson, but later substituted his estate as the defendant when Thompson passed away due to reasons not related to the accident.  Estate agreed that Thompson was at fault and conceded the issue of liability and went to trial over the issue of damages alone.  

Shumate described the accident as one with significant collision.  “The evidence presented at trial established that Shumate was stopped at a traffic light when she observed a sports car driven by Thompson moving toward the rear of her sedan. She applied the brake in anticipation of the collision and put her arm in front of her son, Joey, who was riding in the passenger seat. Joey described the impact as a ‘hard slam’ and said he saw Shumate go forward and hit her head.”  Shumate estimated the speed of the collision at somewhere between 25 to 35 miles per hour.
Thompson’s estate asserted that the collision was a low speed affair.  Thompson’s passenger estimated the speed at 5 to 6 miles per hour.  Thompson told his son that the speed was 5 to 7 miles per hour, a hearsay statement which was introduced pursuant to Dead Man’s statute.

Evidence also showed that Shumate had three automobile accidents prior to the most recent accident in 2011.  “In 1993, a vehicle struck her car at around fifty-five miles per hour, resulting in her losing consciousness and suffering arm, leg, and lower back pain. She was rear-ended in 2001, causing injuries to her neck, knee, and right ankle. And in 2007, she was a passenger in a vehicle that ran off the road causing ‘immediate pain in [her] neck and back.’”  Evidence showed that Shumate visited a pain clinic several months prior to the accident and also nine days after the accident on October 27, 2011, but “[n]otably, the physician’s notes from the October 27 appointment contain no reference to the October 18, 2011 collision.”

“Shumate underwent a third spine surgery in March 2012. The surgeon who performed that procedure testified that Shumate reported the same pain level before and after the 2011 collision at issue in this case and that this pain was the reason for the surgery. The surgeon also reported that Shumate had preexisting degenerative changes in her neck and spine not attributable to the 2011 collision.”  The estate’s expert also opined that while the emergency room visit was a reasonable precautionary measure, he was of the opinion that the surgery was unrelated to the 2011 accident.

Jury returned a verdict of zero dollars on damages and Shumate moved for set aside the jury verdict.  She argued that even the defense expert conceded that at least the emergency room visit made sense.  The motion was denied and Shumate eventually appealed and raised two assignments of error: (1) misapplication of the Dead Man’s statute allowing the deceased’s hearsay statements and (2) trial erred in refusing to set aside the jury verdict.

The Virginia Supreme Court navigated the long history of the Dead Man’s statute in Virginia and what led to the 1919 legislative adoption of the rule.  The Court also noted the modern criticism of the Dead Man’s statute and the expansive version adopted by the Virginia legislature, but noted that such is the province of the legislature and not the court.  Thus, Plaintiff’s argument “that unless [the Court] adopt[s] her interpretation of the statute, ‘the party asserting the Dead Man’s Rule could bring in a plethora of out of court, unreliable hearsay of what the decedent said to others to bolster unfairly the decedent’s case’—is actually an accurate statement of the statute.”  But still, the decedent’s description of the accident to his son was properly admitted.

The Court also rejected the second assignment of error.  With respect to the argument that at least the emergency room bill was a damage that should have been awarded, the Court explained that “[t]his contention misconstrues Leivy’s [defense expert’s] testimony. This statement did not contradict Leivy’s opinion that Shumate suffered no injury from the collision; instead, it simply acknowledged that it was not irrational for someone with Shumate’s medical history to visit the emergency room after any automobile accident to make sure she was not injured.”  Therefore, the judgment of the trial court was affirmed.

The case is Shumate v. Mitchell, Record No. 180012.

Michael L. Avery, Sr.

Michael Leon Avery, Sr., personal injury attorney in Fairfax, Virginia. Michael Avery has over 20 years of experience in advocating for clients who have been injured in a wide array of accidents—from car and truck accidents to bicycle crashes to accidents caused by drunk drivers.

He became a lawyer after a distinguished career in the U.S. Marine Corps. Former Captain Michael L. Avery, Sr. was born in Long Beach, California on January 5, 1959, but grew up in Natick Massachusetts. After graduating from Ohio Wesleyan University with a B.A. degree in History and Politics and Government, Michael Avery attended Officer Candidate School and was commissioned a Second Lieutenant on December 18, 1981. Upon completion of The Basic School, he was selected for assignment as an infantry officer and attended Infantry Officers Course in Quantico, Virginia. After graduation from IOC he was assigned to 2nd Battalion, 7th Marines at Camp Pendleton as a Rifle Platoon Commander in Golf Company. While assigned to Golf 2/7, Second Lieutenant Avery participated in Operation Colonel Potlatch in the Aleutian Islands as a Rifle Platoon Commander and Team Spirit as a Weapons Platoon Commander. During the battalion’s overseas deployment to Okinawa in 1983, then First Lieutenant Avery attended and successfully completed Naval Gunfire School in the Philippines. Following the 2/7’s overseas deployment, 1st Lt. Avery was assigned as the 81mm Platoon Commander for 2/7.
First Lieutenant Avery was augmented as a regular officer in August of 1983 and selected for assignment to recruiting duty at 12th Marine Corps District on Treasure Island, San Francisco, California. His initial duties were as a Contact Team Officer and serving as a “floating” Operations Officer for various Recruiting Stations including RS Portland and RS Seattle. Then First Lieutenant Avery was reassigned as the Executive Officer of Recruiting Station San Francisco where he completed his assignment on recruiting duty in August of 1987. Promoted to Captain, he was assigned to 3rd Landing Support Battalion in Okinawa Japan as the S-3A. At 3rd LSB he was detailed as augment S-4 for 35th MAU only five weeks prior to deployment for Exercise Balikatan. Working outside his MOS, he successfully completed the planning and coordination of combined ship and air embarkation and Combat Service Support plans for a MAU sized operation. Upon his return to 3rd LSB, he was reassigned to 9th Marines for Team Spirt as part of the regimental staff. Following Team Spirt, then Captain Avery served as the S-3 for 3rd LSB prior to his selection to attend Amphibious Warfare School. Upon his successful graduation from AWS, Captain Avery resigned his commission to attend law school at the American University Washington College of Law.

Michael L. Avery, Sr., Esq. is proud to have served as an Infantry Officer and a Captain in the United States Marine Corps. He lives by the motto: Semper Fidelis, or Semper Fi, which means “always faithful”. He believes deeply in the justice clients deserve and works hard to achieve it case after case.

Michael L. Avery, Sr., Esquire
The Avery Law Firm
10382 Democracy Lane
Fairfax, Virginia 22030
P: 703-462-5050 F: 703-462-5053
Website: https://semperfilawyer.com

Practice Areas

* Auto Crashes
* Vehicle Rollovers
* Motor Vehicle Fatal Injuries
* Commercial Vehicle Accidents
* Uninsured / Underinsured Motorist
* Claims
* Distracted Driver Accidents
* Road Rage
* Truck Accidents
* Hit-and-Run Accidents
* DUI Accidents
* Passenger Injuries
* Motorcycle Accidents
* Bicycle Accidents
* Pedestrian Accidents
* Slip and Fall
* Personal Injury

Since 1998, Michael Avery has been the principal attorney of The Avery Law Firm in Virginia. Previously, from 1981 to 1992, Mr. Avery served in the U.S. Marine Corps, and achieved the rank of Captain.

Mr. Avery received his Juris Doctor (J.D.) from the American University, Washington College of Law, in Washington, DC in 1994. Prior to his law studies, he graduated from Ohio Wesleyan University with a B.A. in History & Politics in 1981.

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