(Posted July 1, 2021) The Robes by the James hand down two published rulings this morning. The first, Merid v. Commonwealth, comes down in a short order that affirms a CAV decision without any independent reasoning. It’s probably published solely because of a footnote that observes, “The Supreme Court of the United States decided Caniglia v. Strom, 593 U.S. ___, 141 S. Ct. 1596 (2021), after the Court heard oral argument in this case. The Court finds that the judgment of the Court of Appeals is consistent with Caniglia.”

The other decision comes in a wrongful-death appeal. Lucas v. Riverhill Poultry, Inc. generates mainly evidentiary issues and one thermonuclear waiver ruling.

This litigation relates to a single-vehicle, double-fatality crash. The two victims occupied the cab of a tractor-trailer that ran off the roadway on Interstate 81 and crashed in the median. One victim, named Hilliard, was found dead in the cab, his body between the driver’s and passenger’s seats and his left hand on the steering wheel. The other victim, Lucas, was found outside the truck.

The passenger’s personal rep filed suit, claiming that Hilliard had fallen asleep at the wheel. One of the primary issues at trial was which one of the two was driving the truck. Hilliard was employed as a truck driver by Riverhill Poultry, the truck’s owner; Lucas was Hilliard’s “friend and neighbor.” Despite this, the defense contended at trial that Lucas was driving at the time of the crash.

The State Police investigative report and the medical examiner’s report seemed helpful to the plaintiff here. The examiner reported that Hilliard had been driving the truck, and that his blood indicated the presence of drowsiness-inducing medications. But in discovery, she acknowledged that she was relying on the State Police report to tell her who was driving. She acknowledged that “she could only speculate about what occurred” and about whether the medications affected Hilliard that fateful morning.

Ah; the S-word. Where expert opinion is concerned, any acknowledgement of speculation in the opinion-formulating process is usually deadly. But the plaintiff had an answer for any such objection: By statute, medical examiner’s reports “shall be received as evidence in any court or other proceeding ….”

The trial judge didn’t bite; he excluded the medical report on hearsay grounds. He also excluded other expert testimony from the plaintiff and refused to instruct the jury on the fact that falling asleep at the wheel is negligence. That jury returned a defense verdict. The personal rep got a writ.

Today, in a unanimous opinion from the pen of Senior Justice Millette, the Supreme Court affirms. As for the statute, the court rules that it only applies to factual statements in the report, and even then, only those that were within the observation of the preparer. The purpose of the statute is to avoid having the subpoena a public official to authenticate an official document; not to throw out the hearsay rule entirely. In reaching this conclusion, the court cites decisions interpreting the criminal-procedure parallel statute, all of which had come down this way.

The court also affirms the exclusion of the plaintiff’s other two experts, finding that the trial court acted within its discretion in so ruling. For one of those experts, the plaintiff falls victim to a deadly waiver trap that looks brand-new to me. I believe that this one deserves extensive discussion.

The plaintiff offered testimony from Hilliard’s family doctor. That evidence looked pretty damning: abnormal results from a sleep study just two months before the crash. The doctor urged Hilliard to follow up with a sleep specialist to evaluate sleep apnea, but he never did that.

In a pretrial hearing, the circuit court found that this evidence was “too attenuated.” It ruled that the testimony was inadmissible at trial, “without prejudice to [the plaintiff], by counsel, moving the court to reconsider its ruling based on developments at trial.”

Now, what does that mean? Is the evidence excluded, or not? Suppose nothing does change at trial; has the plaintiff preserved the issue for review without making that motion to reconsider?

This landmine explodes today. The personal rep didn’t renew the motion at trial, and today the justices rule that that waives the issue for review.

I believe that this waiver ruling is incorrect. By definition, a trial judge makes an interlocutory ruling whenever he enters any order except one that enters final judgment. The court can’t convert an interlocutory ruling into a final one by, for example, titling it, “Final Order,” or by stating that the ruling is final. The court always has the power to revisit interlocutory rulings until 21 days after entry of final judgment. This is true no matter how loud a thunderbolt accompanied his honor’s ruling before trial.

This pretrial ruling was interlocutory, too. The judge didn’t have to add the “without prejudice” baggage train to make it so. But if he hadn’t added that, can we all agree that the exclusion of the expert before trial would be fully reviewable on appeal?

Absolutely, it would. Now, if some major development at trial makes the calculus suddenly and dispositively different, I can see a waiver. For example, if a trial court sustains a motion in limine in a criminal case to exclude certain exculpatory evidence based on a lack of foundation, and the prosecution’s evidence at trial later provides that foundation, then the defendant has to raise the issue at trial; he can’t rest on his pretrial argument.

But that’s not what happened here. Nothing changed. Today’s opinion doesn’t identify anything like that, anyway. This ruling essentially converts the trial court’s pretrial ruling into a non-ruling – the functional equivalent of declining to rule. It also means that a litigant must move at trial to reconsider every adverse pretrial ruling, on pain of losing the issue for appellate review. (Remember, all pretrial rulings are interlocutory, whether the judge describes them as such or not.) That may not have been what the Supreme Court had in mind today, but it’s unmistakable from pages 13-14 of today’s slip opinion.

In the past several minutes, as I’ve been composing this essay, I’ve heard from several of my appellate pals, thoroughly professional and highly experienced practitioners all, who are puzzled by this holding. They agree that it does more than break new ground in waiver jurisprudence, already a dangerous labyrinth. It arguably makes all pretrial rulings subject to a mandatory requirement of reasserting them at trial, on pain of waiver. That’s never been the rule here in Virginia. It looks like it is now. (My pals also had other pertinent observations. Rather than steal their ideas for my essay, I’ll let them wade in separately.) (Update July 9: My pal Jay O’Keeffe has now done just that, in this essay.)

Because one of my goals on this site is to protect you, my dear reader, from falling into hidden traps, I here offer you the following advice: At trial, you must formally move the circuit court to reconsider any adverse pretrial rulings, and ask the court to change those to rulings in your favor.

I note that this advice can have impractical consequences. This case provides an easy example. Let’s suppose that the plaintiff here had moved the trial court to reconsider the exclusion of the primary-care doctor. Suppose that the court thinks better of its pretrial ruling and decides to allow the testimony after all. That means that the plaintiff now has to get the doctor into court on a few hours’ notice (unless the plaintiff had gone to the expense of subpoenaing him and holding him on a very expensive standby pending a ruling on the reconsideration motion). Now the defense lawyer is hollering, complaining that she hadn’t prepared a cross-examination for this witness. She also insists that if she’d known that the family doctor would testify, she’d have brought in a counter-expert. Now it’s too late to do that; she wants a continuance of the trial. You see where this is going?

This ruling is wrong. It will lead to confusion and mischief in the future. The Supreme Court should at least have evaluated the issue on the merits instead of interposing an inadvisable waiver holding that will dramatically affect an enormous number of future lawsuits and appeals.

One other ruling sticks out in my mind from today’s opinion. The justices find that the trial court acted within its discretion in refusing an asleep-at-the-wheel instruction: “A person who falls asleep at the wheel is negligent.” The court first rules that there’s insufficient evidence to make out a jury issue on whether Hilliard fell asleep while driving. At least in the absence of the excluded expert testimony on this issue, that’s a reasonably close call and I won’t fuss.

But the court unfortunately adds a belt to the suspenders by ruling that another jury instruction adequately covered the issue – the familiar duty-of-lookout instruction. The court then cites a 1943 SCV holding that “To fall asleep at the steering wheel is a clear violation of the duty to keep a proper lookout.”

I wholeheartedly agree; but the point is that the jury doesn’t read SCV opinions from 1943, or any other year. The plaintiff’s proposed instruction would have told the jury what the law is. That’s an instruction’s job. This isn’t as glaring an issue as the waiver ruling discussed above, but I believe that today’s opinion would have been better without the second line of reasoning on the instruction.