Shumate v. Mitchell, a recent Virginia Supreme Court decision, reviewed by Michael Avery, Esq

The Supreme Court of Virginia pondered the modern criticism of the Dead Man's statute and the expansive version adopted by the Virginia legislature. Attorney Michael Avery summarized the relevant points in a new article.
By: The Avery Law Firm
Michael Avery, attorney in Fairfax, Virginia
Michael Avery, attorney in Fairfax, Virginia
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Michael L Avery


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FAIRFAX, Va. - March 18, 2019 - PRLog -- The Supreme Court of Virginia has reviewed the so-called Dead Man's statute and the expansive version adopted by the Virginia legislature. Michael Avery, Esq. summarizes the relevant issues on his blog,

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. – The complete article is available on Mr. Avery's blog at

*** Michael Leon Avery, Sr., personal injury attorney in Fairfax, Virginia.  News:

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