Limiting the Hanger Jury Instruction in Future Cases
By Roger T. Creager and Steven G. Friedman
The Marks & Harrison Points of Law previously published an article regarding the decision of the Supreme Court of Virginia in Emergency Physicians of Tidewater, PLC v. Hanger, 303 Va. 77, 899 S.E.2d 413 (2024). See Roger T. Creager, “Multiple Cause Cases and the Hanger Jury Instruction,” Marks & Harrison Points of Law Vol. 2 No. 2 (Summer 2024). The article can be viewed and downloaded on the Marks & Harrison website
The two above-named Marks & Harrison attorneys recently published another article regarding the Hanger opinion.
See Roger T. Creager & Steven G. Friedman, “The Effect of the Hanger Jury Instruction Should Be Limited in Future Cases,” The Journal of the Virginia Trial Lawyers Association, Vol. 31 No. 1, pp. 2-7 (2025).
The new article discusses numerous reasons why the jury instruction (“Instruction D”) involved in Hanger should be used rarely (if at all) in future cases and, if given, should be modified or given with a companion instruction.
The Journal article identifies numerous problems with Instruction D that can be raised in future cases.
None of those problems were raised in the Hanger case.
Thus, none of those problems were before the Supreme Court and none of them were considered or addressed in its Hanger opinion. Notably, the stare decisis effect of a judicial opinion is limited to the issues raised by the parties and addressed by the court. See Forest Lakes Cmty. Ass’n v. United Land Corp. of Am., 293 Va. 113, 123, 795 S.E.2d 875, 880 (2017).
As discussed in the Journal article, only two narrow issues were raised by the parties and addressed by the Supreme Court in its Hanger opinion:
- Whether the defense arguments regarding the evidence that supported
Instruction D were preserved for appeal and not abandoned; and - Whether the trial court should have given Instruction D under the particular
circumstances of that case.
Accordingly, the stare decisis effect of the Supreme Court’s opinion in Hanger is limited to those two issues, meaning that other issues may be raised in future cases.
In Hanger, no issues or concerns were raised or addressed regarding the particular language used in Instruction D. The problems with the particular language used in Instruction D that will likely be raised if that instruction is requested verbatim in future cases include:
- Instruction D could potentially cause jurors to misunderstand the law of multiple proximate causes.
The language of Instruction D told jurors that “if you are unable to determine which of
the two causes occasioned the injury complained of, then the plaintiff cannot recover.” 303 Va. at
86, 899 S.E.2d at 418 (emphasis added). Apparently, both parties were satisfied with the unusual
language of Instruction D which structured the case as involving an “either-or” choice on
causation. In fact, however, in many cases the plaintiff can and should prevail even though the
jury is ultimately “unable to determine” “which” of two possible causes (or which of several
possible causes) caused the injury. See 1 Virginia Model Jury Instructions – Civil Instruction No.
5.005 (2025) (“There may be more than one proximate cause of [a collision; an injury; damages;
death]”).
- Instruction D could confuse the jurors regarding the applicable proof standards.
The language used in Instruction D also could potentially cause jurors to believe that a
plaintiff cannot recover unless the jurors are able to “determine” “which” cause “occasioned the
injury.” The language and structure of Instruction D, combined with its lack of any reference to
the standard of proof, could cause the jurors to erroneously think that the plaintiff cannot recover
unless the evidence enables them to decide with a high level of confidence what was “the cause”
of the plaintiff’s injury. The very first definition of “determine” in a dictionary regularly relied
upon by the Supreme Court of Virginia defines “determine” as “to fix conclusively or
authoritatively.” Webster’s Third New International Dictionary at 616 (2002) (definition 1a of
“determine”). But the applicable standard of proof does not require the jurors to definitely,
conclusively, or authoritatively “determine” the causation issues in the case. There are many
cases where a plaintiff can and should recover even if the jurors are unable to authoritatively
determine “the cause” of an injury. All that is required is proof establishing that it is probable
that the defendant’s negligence was a proximate cause.
- Instruction D could cause the jurors to give undue emphasis to possibilities.
The language used in Instruction D directed the jurors’ attention to things that “might”
have caused the plaintiff’s injury. Under the law, however, what matters is not possibilities
concerning what “might” have caused the injury but instead what cause or causes of the injury
are proved by the greater weight of the evidence. Unsupported speculations regarding possible
causes of an injury, condition, or death are inadmissible as evidence and, even if admitted
without objection, they clearly should not control the jury’s deliberations. See, e.g., Fairfax
Hosp. Sys. v. Curtis, 249 Va. 531, 536, 457 S.E.2d 66, 69 (1995) (“[T]he law in this area deals
with probabilities, not possibilities.”). As a result, the type of evidence that supported Instruction
D in Hanger was unusual and consisted of evidence which, if objected to, should be excluded as
inadmissible in future cases.
- Instruction D gives compulsory direction in favor of only one party.
The hallmark of a good jury instruction is one that is “simple, impartial, clear, [and] concise.” Bryant v. Commonwealth, 216 Va. 390, 392, 219 S.E.2d 669, 671 (1975) (emphasis
added). The most impartial and fair manner of providing compulsory directions in a jury
instruction is to do so is in a balanced way. See Virginia Model Jury Instructions.–Civil
Instruction No. 3.050 (the instruction includes a compulsory direction in favor of the plaintiff
and a compulsory direction in favor of the defendant). Instruction D given in the Hanger case
gave a compulsory direction only in favor of the defendant. If a version of Instruction D is given
in a future case, the court should also give a compulsory direction in favor of the plaintiff.
- Instruction D emphasizes a particular view of the evidence.
A jury instruction which emphasizes a particular view of the case is objectionable. See
10A Michie’s Jurisprudence of Virginia and West Virginia, “Instructions,” §25 (2024). The
“either-or” structure and language of Instruction D addressed only one view of the evidence
under which the jurors had to determine whether Dr. Raines’ negligence was “the cause” of the
injury or some other cause (for which he was not responsible) was “the cause.” But that was only
one way that the jurors could view the case. Under the law of proximate cause (set forth in the
other jury instructions), the jury could have found that the defendant’s negligence was “a”
proximate cause of Hanger’s injuries and, as a result, the jury had no need to “determine”
whether there was also another cause.
Even if an instruction similar to Instruction D is deemed necessary, the language of
Instruction D should be modified. Immediately below is a suggested modified version of
Instruction D that the authors contend eliminates all of the problems that would be posed by
reusing the language of Instruction D verbatim:
If you believe the plaintiff’s injury might have resulted from a cause for
which the defendant might have been responsible and if you also believe the
plaintiff’s injury might have resulted from some other cause or causes for
which the defendant was not responsible, you will need to decide whether
the plaintiff has proved by the greater weight of the evidence that a
negligent act or omission of the defendant was a proximate cause of the
plaintiff’s injury. If you find that has been proved, then the plaintiff can
recover even if you believe there were also other causes that might have
constituted or did constitute a proximate cause of the plaintiff’s injury. If
you find that the plaintiff has failed to prove by the greater weight of the
evidence that a negligent act or omission of the defendant was a proximate
cause of the plaintiff’s injuries, then the plaintiff cannot recover.
Alternatively, if a court deems it necessary and appropriate to reuse the language of
Instruction D verbatim, here is an additional instruction which should also be given to address
the problems posed by the language of Instruction D:
If you find that the greater weight of the evidence proves that
negligence of the defendant was a proximate cause of the plaintiff’s injuries
then the plaintiff can recover even if you believe that there might have been
or were also other causes of the plaintiff’s injury.
The entire Marks & Harrison Spring 2025 Points of Law newsletter is available for download
