Multiple Cause Cases and the Hanger Jury Instruction
In April of this year, the Supreme Court of Virginia held that a trial court erred in refusing to grant a special jury instruction (Instruction D) requested by the defense that would have told the jurors that they must find against the plaintiff if the jury was “unable to determine” whether the plaintiff’s injury was caused by the defendant’s alleged malpractice or by some other cause for which the Defendant was not responsible. See Emergency Physicians of Tidewater, PLC v. Hanger, 899 S.E.2d 413, 2024 Va. LEXIS 15 (Va. 2024). In future personal injury cases, defense lawyers may argue that the jury instruction approved in Hanger must be given in any case where there is more than a scintilla of evidence that something other than the defendant’s wrongdoing might have caused the plaintiff’s injuries. For the reasons stated herein, any such argument would be wrong. The effect of the Hanger opinion and the jury instruction language it approved should be limited to the unique situation involved in Hanger.1
In Hanger, the plaintiff’s contended she suffered a seizure, lost consciousness, and fell due to a dangerously low blood sodium level. The plaintiff struck her head when she fell and as a result sustained a traumatic brain injury. The plaintiff contended that if the defendant doctor had properly diagnosed, documented, and treated her low blood sodium level she would not have been injured.
The holding in Hanger, as with any decision, is tied to the specific evidence and arguments involved. The defendant doctor and her medical practice “continuously asserted throughout trial that the fall could have been caused through other means.” 899 S.E.2d at 414, 2024 Va. LEXIS 15, at *1 (emphasis added). The defense pointed to other possible causes of the plaintiff’s injury. One defense expert “identified various possibilities that could have caused Hanger’s fall other than hyponatremia, including a trip and fall, stress-induced fainting, low blood pressure, cardiac arrythmia, a mild stroke, a heart attack, or a pulmonary embolus.” 899 S.E.2d at 417, 2024 Va. LEXIS 15, at *10 (emphasis added). One defense expert said on cross-examination, when he was asked about a picture of an air vent covering on the floor of the room where the plaintiff fell, said “I’m not a crime scene analyst or accident analyst, but if I lookat that, it looks to me like it’s been tripped over.” 899 S.E.2d at 417, 2024 Va. LEXIS 15, at *11. This testimony was also apparently viewed as evidence of another possible cause of the plaintiff’s injury.
Under basic Virginia law, however, the “evidence” of other possible causes that was relied upon by the defense as supporting the jury instruction in Hanger will almost certainly not be admitted in future cases since it concerned possibilities rather than probabilities. The Supreme Court of Virginia has held:
A medical opinion based on a “possibility” is irrelevant, purely speculative and, hence, inadmissible. In order for such testimony to become relevant, it must be brought out of the realm of speculation and into the realm of reasonable probability; the law in this area deals in “probabilities” and not “possibilities.”
Spruill v. Commonwealth, 221 Va. 475, 479, 271 S.E.2d 419, 421 (1980) (emphasis added) (quoted and followed in Fairfax Hosp. Sys. v. Curtis, 249 Va. 531, 535, 457 S.E.2d 66, 69 1995)). “With regard to proximate causation where there is no direct proof, the circumstantial evidence must be sufficient to show that the causation alleged is ‘a probability rather than a mere possibility.’” Bussey v. E.S.C. Rests. Inc., 270 Va. 531, 536, 620 S.E.2d 764, 767 (2005) (emphasis added) (quoting Southern States Coop. v. Doggett, 223 Va. 650, 657, 292 S.E.2d 331, 335 (1982)).
The “evidence” which supported the special jury instruction in Hanger was thus evidence of a type which in most cases will be excluded as inadmissible. If the evidence about other possible causes had been excluded based upon a timely objection, there would have been no basis for the special instruction given in Hanger. The Hanger opinion contains no indication that the plaintiff objected to any of the testimony a out “other possible causes.” The Hanger decision and its holding thus involve a very unusual record, a record that was laden with speculative testimony about “possibilities” that was apparently introduced without objection. It seems highly unlikely that future cases will involve a similar record.
Another aspect of the Hanger decision which should limit its application in future cases is that the plaintiff apparently did not argue, either in the trial court or on appeal, that the particular language of Instruction D was likely to confuse and mislead the jury and was written in a biased manner. Instruction D read as follows:
If you believe from the evidence that the injury to Patricia Hanger might have resulted from either of two causes, for one of which Dr. Raines might have been responsible and for the other of which Dr. Raines was not responsible, and if you are unable to determine which of the two causes occasioned the injury complained of, then the plaintiff cannot recover.
899 S.E.2d at 417-418, 2024 Va. LEXIS 15, at *12. Because the language of the instruction was not challenged as misleading, confusing, or biased, the Supreme Court’s opinion obviously did not consider those issues.
In future cases, however, plaintiff’s counsel should point out that the instruction is not balanced and even-handed but instead operates only in favor of a defense verdict. The instruction ends with “then the plaintiff cannot recover.” It contains no corresponding language instructing the jury that if they conclude that a cause for which Dr. Raines was responsible was “a proximate cause” of the plaintiff’s injury, then the plaintiff can recover. The defense may argue that other instructions already address this point. But if the standard jury instructions on causation are deemed insufficient and an additional instruction is deemed necessary, then obviously any additional jury instruction language that is used certainly should be written in a balanced and fair manner.
Another defect in the special instruction involved in Hanger is that it uses language which might cause the jurors to conclude that the plaintiff must prove the elements of the plaintiff’s case by more than a preponderance of the evidence. For example, the instruction tells the jury “if you are unable to determine” the cause of the injury “then the plaintiff cannot recover.” This language is not connected in any way to the preponderance of the evidence standard. Under this language, jurors may believe that they can find for the plaintiff only if they are able to confidently “determine” the cause without any significant doubt. That would be wrong. Under the preponderance of the evidence standard, the jury must find for the plaintiff if they believe that the defendant’s wrongdoing was probably (more likely than not) the cause of the injury, and this is sufficient proof even if the jury also believes that there is a substantial chance (any probability less than 50 percent) that something else caused the injury.
Perhaps the most serious problem with the instruction is that it tells the jury that they must find against the plaintiff “if you are unable to determine which of the two causes occasioned the injury complained of.” But the jury does not need to determine “which” cause was the cause of the injury. Rather, the jury must find for the plaintiff even if both causes were a proximate cause and the defendant is liable as long as his wrongdoing is a proximate cause of the injury. See Williams v. Le, 276 Va. 161, 167, 662 S.E.2d 73, 77 (2008) (“There may be more than one proximate cause of an event.”); Sullivan v. Robertson Drug Co., 273 Va. 84, 92, 639 S.E.2d 250, 255 (2007) (“If separate and independent acts of negligence of two parties directly cause a single indivisible injury to a third person, either or both wrongdoers are responsible for the whole injury . . . irrespective whether one may have contributed in a greater degree to the injury.”).
These issues were not raised by the parties in the Hanger case and as a result none of these problems with the particular language of Instruction D were addressed in Hanger. Furthermore, for the reasons noted above, most if not all of the “possibility” testimony which was the basis for the instruction in Hanger will not be admitted in future cases if timely objection is made, and thus future cases are unlikely to involve the type of testimony involved in Hanger.
The fact that the jury instruction the Supreme Court approved in Hanger should not necessarily be given in other cases in the future is most compellingly shown by the fact that Supreme Court did not even hold that the instruction it approved in Hanger had to be given on the retrial of the Hanger case itself. Instead, the Supreme Court held that (as usual) the exact nature of the jury instructions to be given at the trial of the case on remand would depend upon numerous factors specific to the retrial:
The Court of Appeals will ultimately remand this matter to the trial court, but it is uncertain how the proceedings will unfold. The approach and strategy to the litigation may change, and unexpected factors inherent to any case might emerge. Consequently, the evidence that is eventually presented to the jury will determine whether Instruction D, if proposed, should be given upon any retrial in line with this opinion. Accordingly, this matter is reversed and remanded to the Court of Appeals to enter a mandate to the trial court consistent with the opinion herein.
899 S.E.2d at 420, 2024 Va. LEXIS 15, at *17-18.
In short, there is no basis for an assertion that the instruction approved in Hanger must be given in other cases involving multiple cause arguments. Instead, whether the instruction involved in Hanger should be given in other cases must be decided by trial courts by reviewing factors that include the particular evidence, arguments, issues, and litigation strategy involved in each case. A critically important issue will be whether the defendant can point to properly admitted evidence which would allow a rational jury to find that there was some other cause or causes (other than the defendant’s negligence) of the injury. If timely objection is made to evidence concerning other possible causes (the type of possibility speculations involved in Hanger), that evidence should not be found sufficient to justify the Hanger instruction and the holding in Hanger would be inapplicable.
Furthermore, in future cases even if admissible evidence of “other causes” is introduced, the plaintiff can and should argue that the particular language used in the Hanger jury instruction is not necessary (if other jury instructions cover the point). Moreover, even if additional jury instruction language appears to the trial court to be necessary, the plaintiff should argue that the particular language of Instruction D used in the Hanger case should not be used because it is potentially misleading and confusing. In response, defense counsel may point out that in Hanger the Supreme Court said that “Instruction D correctly stated the law.” 899 S.E.2d at 419, 2024 Va. LEXIS 15, at *17. But even if instruction D, properly interpreted and understood, is a correct statement of law, it is clear from the comments previously made in this article that a jury could be misled or confused by the particular language used in Instruction D. As a result, even if a trial court concludes that some additional language is necessary, Instruction D should not be given verbatim but should be redrafted so that it is more balanced and less misleading and confusing. And an even better course would be not to give an additional separate instruction but instead to amend one of the other causation instructions to make the point that Instruction D attempted to address (and to do so in a less misleading and more balanced manner). For example, Virginia Model Jury Instruction Civil Instruction Number 5.005 regarding multiple proximate causes could be given with the added language underlined below:
There may be more than one proximate cause of an injury. If the negligence of a defendant proximately caused injury to the plaintiff then the negligence of that defendant is a proximate cause of the plaintiff’s injury even if there were other acts or omissions that caused the plaintiff’s injury. The plaintiff can recover, however, only if the plaintiff proves by a preponderance of the evidence that the negligence of the defendant was a proximate cause of the plaintiff’s injury.
1 Virginia Model Jury Instructions – Civil Instruction No. 5.005 (2024) (modified by adding the last sentence). The added sentence makes the point that Instruction D made – if there is evidence of some other proximate cause, the plaintiff can recover if and only if there is sufficient evidence to prove by a preponderance of the evidence that the defendant’s negligence was a proximate cause. Adding this sentence to Civil Instruction Number 5.005 would be better than using the confusing language of Instruction D. Moreover, in most cases (cases which do not involve the unique testimony and record presented in Hanger) plaintiff’s counsel can point out that no additional jury instruction language is needed since the other standard jury instructions already make it sufficiently clear to the jury that the plaintiff cannot recover unless the plaintiff proves by a preponderance of the evidence that the defendant’s wrongdoing was a proximate cause of the injury.
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1The opinion also should be given limited effect for the additional reason that it conflicts with pre-existing principles of Virginia law.
The Supreme Court of Virginia held in Hanger, for example, that a litigant can preserve an appeal of a trial court’s refusal to grant a
jury instruction even though the litigant failed to identify to the trial court the particular evidence and reasons the litigant believes
support the instruction. This holding places upon trial courts the burden of independently discerning each item of evidence from an
entire trial that could possibly support a jury instruction. This ruling is unworkable and unreasonable. The litigant, rather than the trial
court, can and should reasonably and properly be expected to identify each item of evidence that supports a proffered instruction. The
Supreme Court also erred in concluding that the proximate causation principle in Instruction D was not covered by other instructions.
In fact, the trial court had already given Instructions 12, 13, 14 and 15 which told the jury in clear terms that the plaintiff could not
recover unless she proved that the defendant’s wrongdoing was a proximate cause of her injuries. Record No. 230199, Joint Appendix
at 1972-1975
