The Supreme Court of Virginia’s recent opinion in Harman v. Honeywell International, Inc., Case No. 130627 (June 5, 2014) contains a wealth of analysis on a number of evidentiary rules that every trial lawyer will likely encounter in his or her career. This legal alert summarizes each of the Court’s rulings on those issues and discusses the potential impact this may have on insurance defense clients across a variety of industries.
This case arises out of a single-engine airplane accident involving a father and son that occurred just outside of Chesterfield, Virginia. The two estates filed suit against Honeywell International, Inc. alleging a single claim for breach of the warranty. The estates claimed that the defective design of the Honeywell autopilot system allowed microscopic debris to enter the gear systems causing the plane to become uncontrollable. Honeywell argued that the pilot’s inexperience caused him to experience “spatial disorientation” once he entered cloud cover.
To support its defense, Honeywell introduced a crash investigation report prepared by Mooney Airplane Company after the accident into evidence at trial. Mooney manufactured the plane involved in the
accident. In addition, Honeywell introduced testimony from two lay witnesses, William Abel and Thomas Norman, who were Mr. Grana’s flight instructor and co-owner of the Mooney plane, respectively. Essentially, their testimony was used to support Honeywell’s theory that Mr. Grana lacked sufficient experience and proper judgment to fly the Mooney plane in poor weather conditions.
First, the Court’s opinion addressed the Mooney crash investigation report which was admitted as a “pamphlet” under the hearsay exception codified in Va. Code § 8.01-401.1. The report focused on the position of a “jackscrew,” a component in the autopilot system, which the plaintiffs alleged caused the plane to take off in a nose down take-off trim setting. Virginia Code § 8.01-401.1 allows experts to rely upon during direct examination “statements contained in published treatises, periodicals or pamphlets on a subject of history, medicine or other science or art, established as reliable authority by testimony or stipulation.” The Court held that the Mooney report was erroneously admitted into evidence because it was not the type of authoritative literature contemplated by Va. Code § 8.01-401.1. First, the report lacked trustworthiness because it was prepared in anticipation of litigation by a party who, at the time it was created, was a defendant in the case. Second, it was not “established as reliable authority” by Honeywell’s expert because he could not say that similar investigation reports are typically used by experts in the field.
Next, the Court addressed the lay witness testimony offered by Mr. Abel and Mr. Norman. Mr. Abel testified that the pilot’s decision to fly in the weather conditions that existed made Mr. Abel seriously question the pilot’s judgment. The estates argued that this testimony lacked sufficient foundation and invaded the province of the jury. Mr. Norman testified that he had a “healthy fear” of flying the Mooney plane because it was so powerful and that he had never perceived problems with its controls. The estates argued that Mr. Norman’s subjective feelings and experiences were improper because they were irrelevant and prejudicial.
Citing Rule 2:701 of the Rules of the Supreme Court of Virginia, the Court explained that lay witness testimony is admissible if “it is reasonably based upon the personal experience or observations of the witness and will aid the trier of fact in understanding the witness’s perceptions.” However, the Court cautioned that lay witness opinion testimony is only admissible when the “witnesses information for some reason cannot be adequately conveyed to the court by a detailed recital of the specific facts upon which the opinion is based.” Ultimately, the Court held that Mr. Abel’s opinion about the pilot’s judgment was inadmissible because Mr. Abel’s recitation of the facts was sufficient by itself to convey the idea that the pilot should not have been flying that day. In addition, the Court held that Mr. Abel’s opinion that the pilot lacked judgment was essentially an impermissible assessment of the pilot’s culpability.
On the other hand, the Court held that Mr. Norman’s testimony was admissible because it did not address the pilot’s judgment or flying abilities. Second, Mr. Norman’s testimony regarding the difference between the Mooney plane and a Cesna plane used by the pilot during training was necessary to inform the jury about the difference in speed, power and complexity between the two planes. This testimony was especially relevant because it bore on the pilot’s ability to handle the Mooney plane on the day of the accident.
In short, the Court’s opinion in Honeywell is an excellent resource for attorneys looking for guidance on some of the subtle nuances of evidentiary law. This is especially true for defense counsel seeking to admit post-accident investigation reports to support their defense. In the insurance industry, these reports are commonly prepared after accidents. Attorneys and their clients should be aware that the Supreme Court has held that these reports do not fall under the “learned treatise” exception of Va. Code § 8.01-401.1 to the hearsay rule because they are self-interested, untrustworthy and generally not relied upon by experts.