Holmes v. Levine

Present: All the Justices

PAUL HOLMES, ADMINISTRATOR OF THE
ESTATE OF ELLA HOLMES

v. Record No. 060682 OPINION BY JUSTICE CYNTHIA D. KINSER
January 12, 2007
JAY M. LEVINE, M.D., ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Ernest P. Gates, Sr., Judge Designate

In this wrongful-death action based on the alleged

medical malpractice of a radiologist, the plaintiff asserts

that the trial court erred by refusing to give the

plaintiff’s requested jury instruction on the issue of

proximate causation. We agree and, for that reason, will

reverse the trial court’s judgment in favor of the

defendant-radiologist. With regard to two other issues

that may arise during a retrial, we conclude that the trial

court did not err either in overruling the plaintiff’s

objection that certain testimony of a treating physician

did not satisfy the requirements of Code § 8.01-399(B) or

in sustaining an objection to testimony elicited on cross-

examination of a medical expert witness concerning the

cause of death listed in a death certificate.

I. FACTS AND PROCEEDINGS

Ella F. Holmes presented at a hospital emergency room

on February 19, 2003, complaining of pain in her left flank
and back. Medical personnel performed a computed

tomography (CT scan) of Holmes’ abdomen, which Dr. Jay M.

Levine, a radiologist employed by Commonwealth Radiology,

P.C., interpreted the same day. Dr. Levine reported that

the CT scan revealed Holmes’ bladder was distended, she was

experiencing bilateral hydronephrosis and hydroureter, and

she had a 1–2 mm calculus, or “stone,” near the point where

her right ureter emptied into her bladder. Dr. Levine did

not make any differential diagnosis as to the cause of

Holmes’ distended bladder or raise any suspicion of bladder

cancer. In March 2004, however, Holmes was diagnosed with

metastatic transitional cell carcinoma of the bladder, from

which she died in March 2005.

In an amended motion for judgment filed against Dr.

Levine and Commonwealth Radiology, P.C., Paul A. Holmes,

the spouse of the decedent and administrator of her estate

(the Administrator), alleged Dr. Levine deviated from the

standard of care as a radiologist by failing to recognize

the markers of transitional cell carcinoma in Holmes’

bladder, to recommend further studies, and to report an

asymmetrical thickening of her bladder wall. At the heart

of the allegations was the contention that Dr. Levine

breached his duty of care to Holmes by failing to interpret

and report a gray-white area appearing on the February 2003

2
CT scan as a focal thickening of her bladder wall

consistent with a mass, thereby depriving Holmes’ other

health care providers of vital information that would have

enabled them to detect bladder cancer at an earlier stage

and, in turn, to increase significantly her chance of

survival.

At trial, the Administrator presented expert testimony

from several witnesses to support his allegations regarding

Dr. Levine. Dr. Lawrence M. Cohen, an expert in the field

of radiology, testified that Dr. Levine, in interpreting

the February 2003 CT scan, breached the standard of care by

failing to recognize and report the thickening of Holmes’

bladder wall, by failing to include that information in his

report, and by failing to make a diagnosis of possible

transitional cell cancer of the bladder.

Dr. David M. Pfeffer, an expert witness qualified in

the field of urology, testified that a reasonably prudent

urologist in 2003 who received a radiologist’s report

identifying a focal thickening of a patient’s bladder wall

suggestive of a tumor would have performed a biopsy. But,

according to Dr. Pfeffer, a reasonably prudent urologist in

2003 would not, based on Dr. Levine’s report of the

February 2003 CT scan, have performed a biopsy on Holmes’

bladder. Dr. Pfeffer opined that if a biopsy had been

3
performed in 2003 on the thickened wall of Holmes’ bladder,

that biopsy would have shown transitional cell carcinoma of

the bladder. He stated to a reasonable degree of medical

probability that Holmes had bladder cancer in February 2003

and that the delay in diagnosis until 2004 deprived her of

a substantial possibility of survival.

Dr. Samuel Denmeade, who testified on behalf of the

Administrator as an expert in the field of oncology,

corroborated much of Dr. Pfeffer’s testimony. Dr. Denmeade

agreed that Holmes had bladder cancer in February 2003 and

further stated that, based on a biopsy performed in 2004,

the type of cancer was “transitional cell cancer, which is

a very specific cell type that’s really only found in the

genito-urinary tract.” He opined that Holmes’ cancer in

2003 was at the Stage II level of progression but that,

when it was finally diagnosed 13 months later, it had

progressed to Stage IV. According to Dr. Denmeade, 60 to

70 percent of patients whose cancers are discovered at the

Stage II level will live for five to ten years, whereas

patients whose tumors remain undetected until they reach

Stage IV, as occurred with Holmes, have only a 10 to 15

percent survival rate over similar periods.

In contrast, Dr. Levine claimed that the gray-white

area on the February 2003 CT scan was merely normal anatomy

4
for a woman who, like Holmes, had previously undergone a

hysterectomy. Specifically, he presented expert testimony

that the alleged focal thickening of the bladder wall was

actually Holmes’ vaginal cuff, which was a normal finding

that did not need to be reported by Dr. Levine in his

report of the February 2003 CT scan. Moreover, Dr. Levine

challenged the Administrator’s evidence that Holmes had

cancer in her bladder in February 2003.

In support of the latter position, Dr. Levine

presented testimony from Dr. Baruch M. Grob, an expert in

the field of urology and in the diagnosis and treatment of

cancer involving the urinary tract. Dr. Grob opined that,

based on his review of Holmes’ medical records, her cancer

began in her periurethral space and that in February 2003

she did not have bladder cancer. On cross-examination, the

Administrator challenged Dr. Grob’s conclusion by asking

about the cause of death listed on Holmes’ death

certificate.1 The following exchange occurred:

Q Doctor, Mrs. Holmes died of bladder cancer,
true?

A Not in my opinion, no.

1
Dr. Levine had objected to the death certificate’s
introduction into evidence before trial on the basis that
it lacked probative value, prejudiced his defense, and
contained hearsay. The record on appeal does not reflect
the trial court’s ruling on this pre-trial objection.

5
 Q You have looked at the medical records?

A Yes.

Q What is the cause of death on the death
certificate signed by the physician?

A Well, death certificates can only use the
information they have available.

Q What does it say, Doctor?

Dr. Levine objected to the last question, arguing that it

called for hearsay and that a death certificate is not a

medical record. The trial court overruled the objection.

Dr. Grob then read the cause of death listed in Holmes’

death certificate: “Bladder cancer, metastatic.”

At the conclusion of his evidence, Dr. Levine renewed

his objection to Dr. Grob’s testimony recounting the cause

of death stated in the death certificate and moved the

trial court to strike that testimony because it was

hearsay. The trial court granted the motion and instructed

the jury not to consider that particular testimony.

Dr. Levine also presented portions of a videotaped

deposition of Dr. Nancy A. Huff, Holmes’ treating urologist

from November 2002 through April 2003. Holmes initially

complained to Dr. Huff about unusual urinary frequency.

Dr. Huff said she obtained a urinalysis, which did not

6
reveal the presence of blood in Holmes’ urine.2 Dr. Huff

testified that another urinalysis performed during Holmes’

emergency room visit in February 2003 showed “an occasional

red blood cell per high-powered field.”

Dr. Levine agreed to redact certain portions of Dr.

Huff’s videotaped deposition. As relevant to this appeal,

Dr. Levine redacted a question asking Dr. Huff, during

direct examination, whether she considered the red blood

cells in Holmes’ urine to be hematuria, as well as Dr.

Huff’s answer: “I did not consider this to be significant

hematuria. She only had an occasional red blood cell per

high-powered field.” However, Dr. Levine did not agree to

redact the following exchange that occurred during the

Administrator’s cross-examination of Dr. Huff:

Q The question that was originally asked of you
was whether or not at the time you considered the
presence of red blood cells in the urine to be
hematuria. Your answer was you did not believe it to
be significant hematuria.

And my question is: Was it hematuria?

. . .

A I did not think that an occasional red blood
cell would qualify for microscopic hematuria.

2
Evidence presented by both parties established that
the presence of blood in a patient’s urine is correlative
with the presence of bladder cancer in the patient.

7
 In a motion in limine, the Administrator argued this

exchange was inadmissible because Dr. Huff’s testimony

amounted to a medical diagnosis not documented in Holmes’

medical records and not stated to a reasonable degree of

medical probability. He also asserted that, since the

question had been asked on cross-examination only as a

follow-up to the earlier, redacted question by Dr. Levine,

it likewise should have been redacted. In opposing the

motion, Dr. Levine argued that Dr. Huff was, for the most

part, reading from her records concerning Holmes and was

not rendering a medical diagnosis; rather, she was

testifying to observations, signs, and symptoms documented

in the record, as allowed under Code § 8.01-399(B). The

trial court denied the motion and admitted that portion of

Dr. Huff’s testimony.

After the close of all the evidence, the parties

proffered jury instructions. As pertinent to this appeal,

they presented differing instructions on the issue of

proximate cause. The Administrator’s requested

instruction, identified as Instruction No. 9, read, “A

proximate cause of an injury or damage is a cause which in

natural and continuous sequence produces the injury or

damage. It is a cause without which the injury would not

have occurred. There may be more than one proximate cause

8
of an event.” In nearly identical terms, save the last

sentence, Dr. Levine proffered Instruction No. F, which

stated, “A proximate cause of a death is a cause that in

natural and continuous sequence produces the death. It is

a cause without which the death would not have occurred.”

The trial court gave the jury Dr. Levine’s instruction and

the administrator objected to the failure to give

Instruction No. 9.3

The issue of proximate cause was the subject of a

question from the jury during the course of its

deliberations. Specifically, the written question read, “A

jury member is deadlocked on Instruction B, Issue 2 that

all other jury members are in agreement. What is the

course of action?”4 The trial court did not answer the

question; rather, it summoned the jurors into the

3
During argument at trial concerning the difference
between the two proffered proximate cause jury
instructions, the Administrator did not object to the
wording of Dr. Levine’s instruction but insisted that it
should include the last sentence of his requested
instruction: “There may be more than one proximate cause of
an event.”
4
Instruction B advised the jury that the issues in the
case were:
(1) Did Dr. Levine fail to use the degree of skill
and diligence required of a reasonably prudent
radiologist practicing in the Commonwealth of
Virginia in his treatment of . . . Holmes?
(2) If so, was that failure a proximate cause of
. . . Holmes’ death?

9
courtroom, asked them whether they could reach a verdict if

they deliberated further, and instructed them to go back to

the jury room and answer the court’s question.

When the jury returned to the courtroom, however, it

had reached a verdict in favor of Dr. Levine. On the

verdict form, there appeared a handwritten notation saying,

“We find that Dr. Levine failed to use the degree of skill

and diligence required of a reasonably prudent radiologist

in the Commonwealth of Virginia in his treatment of . . .

Holmes. We did not find that this failure was a proximate

cause of . . . Holmes [sic] death.”

The Administrator moved the trial court to set aside

the jury verdict, grant judgment in his favor on the issue

of liability, and order a new trial on the issues of

causation and damages. The trial court denied the motion

and entered judgment for Dr. Levine in accordance with the

jury verdict. The Administrator appeals from that

judgment.

II. ANALYSIS

On appeal, the Administrator raises four assignments

of error. In the first assignment of error, the

Administrator challenges the trial court’s evidentiary

(3) If the plaintiff is entitled to recover, what is
the amount of his damages?

10
ruling admitting Dr. Huff’s testimony about hematuria. The

trial court’s evidentiary ruling striking Dr. Grob’s

testimony about the cause of death listed in the death

certificate is the subject of the second assignment of

error. The third assignment of error contests the trial

court’s refusal to give the Administrator’s jury

instruction on the issue of proximate causation, and the

fourth assignment of error attacks the sufficiency of the

evidence. With regard to the third assignment of error, we

conclude the trial court committed reversible error and

that we must therefore remand this case for a new trial.

We will also address the first and second assignments of

error since they present issues that may arise again upon

retrial. See Lopez v. Dobson, 240 Va. 421, 424, 397 S.E.2d

863, 865 (1990) (addressing issue that may arise again upon

retrial).

A. Proximate-Cause Jury Instruction

The Administrator argues the trial court improperly

refused to grant a jury instruction that would have enabled

him to argue to the jury that it did not need to find Dr.

Levine’s alleged negligence was the only proximate cause of

Holmes’ death. For his part, Dr. Levine contends the

instructions granted by the trial court, taken together,

sufficiently advised jurors that the Administrator had to

11
prove only that Dr. Levine’s breach of the standard of care

was “a” proximate cause of Holmes’ death.5

As we have made clear in the past, “[a] litigant is

entitled to jury instructions supporting his or her theory

of the case if sufficient evidence is introduced to support

that theory and if the instructions correctly state the

law.” Schlimmer v. Poverty Hunt Club, 268 Va. 74, 78, 597

S.E.2d 43, 45 (2004); accord Honsinger v. Egan, 266 Va.

269, 274, 585 S.E.2d 597, 600 (2003). The evidence

introduced in support of a requested instruction “must

amount to more than a scintilla.” Schlimmer, 268 Va. at

78, 597 S.E.2d at 45 (citing Justus v. Commonwealth, 222

Va. 667, 678, 283 S.E.2d 905, 911 (1981)). “If a proffered

instruction finds any support in credible evidence, its

refusal is reversible error.” McClung v. Commonwealth, 215

Va. 654, 657, 212 S.E.2d 290, 293 (1975).

The Administrator’s position at trial was that there

were two proximate causes of Holmes’ death: the cancer

itself and, separately, the delay in diagnosis occasioned

by Dr. Levine’s alleged breach of the standard of care,

which deprived Holmes of a significantly better chance of

survival. Both factors find support in the evidence

5
We observe that Dr. Levine did not argue this point
at trial. To the contrary, he asserted that “there can be

12
admitted at trial, which we review in the light most

favorable to the refused instruction’s proponent.

Honsinger, 266 Va. at 274, 585 S.E.2d at 600. The

testimony of Drs. Pfeffer and Denmeade clearly provided

“more than a scintilla” of evidence to support the

Administrator’s theory of his case. Both opined that the

delay in diagnosing Holmes’ cancer caused by Dr. Levine’s

failure to report the focal thickening in Holmes’ bladder

significantly reduced her chance of survival. Further, the

Administrator’s requested instruction was an accurate

statement of settled law in Virginia holding, “There may

. . . be more than one proximate cause of an event.”

Panousos v. Allen, 245 Va. 60, 65, 425 S.E.2d 496, 499

(1993).

Dr. Levine, however, argues that the additional

sentence in the Administrator’s version of the proximate-

cause instruction would have been duplicative of other

instructions given by the trial court. He contends the use

of the indefinite article “a” to modify the element of

proximate cause in other jury instructions fully covered

the principle of law and adequately apprised the jury that

it could find Dr. Levine liable notwithstanding the

possibility of other proximate causes of Holmes’ death. A

only one proximate cause of [Holmes’] death.”

13
closer look at the record reveals, however, the trial court

also used the definite article “the” when instructing the

jury that “[t]he burden is upon the plaintiff to prove by a

preponderance of the evidence that Dr. Levine was negligent

and that any such negligence was the proximate cause of the

death of . . . Holmes.” Thus, we cannot say that the

granted instructions fully and fairly covered the principle

of proximate causation as it pertained to the evidence in

the record. See Poliquin v. Daniels, 254 Va. 51, 59, 486

S.E.2d 530, 535 (1997) (a trial court does not abuse its

discretion by refusing to give a jury instruction related

to the same legal principle that is fully and fairly

covered by other instructions).

In light of the Administrator’s theory of the case and

the evidence in support of that theory, we conclude that

the trial court erred by refusing to include in the

instruction on proximate cause the additional sentence

requested by the Administrator. For that reason, we must

remand this case for a new trial.

B. Dr. Huff

The Administrator argues that Dr. Huff’s testimony

stating she “did not think that an occasional red blood

cell would qualify for microscopic hematuria” was

inadmissible under Code § 8.01-399(B). Consequently, he

14
contends the trial court committed reversible error when it

admitted the testimony into evidence, and again when it

failed to correct the problem by setting aside the verdict

and ordering a new trial. In relevant part, Code § 8.01-

399(B) states:

If the physical or mental condition of the
patient is at issue in a civil action, the
diagnoses, signs and symptoms, observations,
evaluations, histories, or treatment plan of the
practitioner, obtained or formulated as
contemporaneously documented during the course of
the practitioner’s treatment, together with the
facts communicated to, or otherwise learned by,
such practitioner in connection with such
attendance, examination or treatment shall be
disclosed but only in discovery pursuant to the
Rules of Court or through testimony at the trial
of the action. . . . Only diagnosis offered to a
reasonable degree of medical probability shall be
admissible at trial.

At issue in this appeal are the portions of this

subsection referring to “diagnoses, signs and symptoms,

observations, evaluations, histories, or treatment plan”

that are “contemporaneously documented during the course of

the practitioner’s treatment” and the requirement that a

diagnosis must be “offered to a reasonable degree of

medical probability” in order for it to be admissible at

trial. Code § 8.01-399(B) (emphasis added). The

Administrator contends that the portion of Dr. Huff’s

testimony at issue was not contemporaneously documented in

Holmes’ medical records and constituted a diagnosis not

15
offered to a reasonable degree of medical probability. For

both reasons, the Administrator argues the testimony was

inadmissible. Dr. Levine contends the challenged testimony

was not a medical diagnosis but, instead, merely reflected

Dr. Huff’s impressions and conclusions reached during her

treatment of Holmes. Dr. Levine also argues that the

absence of a notation in the medical records about

hematuria did not render Dr. Huff’s testimony inadmissible.

In Pettus v. Gottfried, 269 Va. 69, 606 S.E.2d 819

(2005), we addressed both of these statutory provisions.6

In that wrongful-death case, the plaintiff alleged that the

defendant-doctor misdiagnosed the decedent’s chest pain and

negligently discharged the decedent from a hospital

emergency room. Id. at 73, 606 S.E.2d at 822. A few days

later, a cardiologist admitted the decedent to the hospital

although the decedent was free of chest pain at that time.

Id. at 72, 606 S.E.2d at 822. The next morning, the

decedent’s mental status became a matter of concern, and

after the cardiologist ordered a neurology consultation,

6
Since our decision in Pettus, the General Assembly
amended Code § 8.01-399(B). 2005 Acts chs. 649, 692. As
pertinent to the case before us, the first sentence in the
prior version of Code § 8.01-399(B) referred only to
documentation of a practitioner’s “diagnosis or treatment
plan.” The General Assembly did not make any changes in
the language that “[o]nly diagnosis offered to a reasonable

16
the decedent had a seizure and died. Id. at 72−73, 606

S.E.2d at 822. The defendant introduced the cardiologist’s

deposition testimony, which stated that, during the course

of treating the decedent, the cardiologist formed an

opinion that the cause of the abrupt change in the

decedent’s mental status could have been “a central nervous

system event.” Id. at 73, 77, 606 S.E.2d at 822, 824.

The plaintiff argued that the cardiologist’s testimony

that the decedent’s mental disorientation “could have been”

a central nervous system event was inadmissible because it

was a diagnosis not offered to a reasonable degree of

medical probability. The plaintiff also asserted that the

testimony was inadmissible because it deviated from the

cardiologist’s entries in the decedent’s medical records.

We rejected both arguments.

First, we concluded that the testimony, which was

given in response to the defendant’s question about whether

the cardiologist had formed an opinion about the cause of

the decedent’s change in mental status, “was factual in

nature because it served to explain the impressions and

conclusions [the cardiologist] reached while treating [the

decedent].” Id. at 77-78, 606 S.E.2d at 824-25. We

degree of medical probability shall be admissible at
trial.” Code § 8.01-399(B).

17
further stated that the testimony was neither an expert

medical opinion offered at trial nor a diagnosis. Id. at

78, 606 S.E.2d at 825. Thus, we concluded the challenged

testimony “was not subject to the general rule that a

medical expert opinion must be rendered to a reasonable

degree of medical probability.” Id.

We reach the same conclusion with regard to the

challenged portion of Dr. Huff’s testimony. Her testimony,

like that of the cardiologist in Pettus, must be read in

context. Dr. Huff testified that the February 20, 2003

urinalysis showed “an occasional red blood cell per high-

powered field.” Her subsequent testimony, stated in the

past tense and in response to the Administrator’s question

whether the level of red blood cells present in Holmes’

urine specimen was hematuria, reflected Dr. Huff’s

impression reached at the time she was treating Holmes.

Like the cardiologist in Pettus, she was not offering a

diagnosis or her present medical expert opinion about the

clinical significance of the results of Holmes’ urinalysis.

Instead, she was merely stating that, at the time she

received the urinalysis results, she did not think the

presence of a few red blood cells in Holmes’ urine was

clinically significant or tantamount to microscopic

hematuria.

18
 In Pettus, we further disagreed with the plaintiff’s

argument that the cardiologist’s testimony deviated from

the entries in the relevant medical records. Id. at 78,

606 S.E.2d at 825. As we explained, the decedent’s medical

records prepared by the cardiologist referred “to the

possibility of a central nervous system embolic event.”

Id. We concluded that any difference between the “written

entry and [the cardiologist’s] testimony did not affect the

admissibility of the testimony.”7 Id. While the plaintiff

argued that Code § 8.01-399(B) limited the scope of

admissible trial testimony by a treating physician, it was

not necessary to decide that issue because, as already

noted, the documentation in the decedent’s medical records

mentioned a central nervous system event.

Similarly, in the case before us, it is not necessary

to determine whether the provisions of Code § 8.01-399(B)

merely specify the nature of confidential physician-patient

information that must be disclosed in discovery or through

trial testimony when a patient’s physical or mental

condition is at issue in a civil action or whether the

statute states an outside limit on the scope of trial

7
With regard to an objection in Pettus that another
treating physician’s testimony was not admissible under
Code § 8.01-399(B), there was an inadequate record on

19
testimony by a treating physician. This is so because the

results of the February 20, 2003 urinalysis were in Holmes’

medical records and showed only a “trace” of blood in her

urine.8 As in Pettus, any distinction between the

documentation in Holmes’ medical records and Dr. Huff’s

testimony that the presence of a few red blood cells did

not qualify as microscopic hematuria “did not affect the

admissibility of the testimony but was a proper subject for

cross-examination of the witness.” 269 Va. at 78, 696

S.E.2d at 825. Thus, we conclude that the trial court did

not abuse its discretion in admitting the challenged

portion of Dr. Huff’s deposition testimony.9 See Gray v.

Rhoads, 268 Va. 81, 86, 597 S.E.2d 93, 96 (2004) (“A trial

court’s exercise of discretion to admit or exclude evidence

will not be overturned on appeal unless the court abused

its discretion.”)

C. Cause of Death

The Administrator claims the trial court properly

applied Code § 8.01-401.1 when it initially allowed Dr.

appeal to address the merits of the argument. 269 Va. at
81, 606 S.E.2d at 827.
8
We note that one of Dr. Levine’s expert witnesses
testified that blood in the urine is synonymous with the
term “hematuria.”
9
We find no merit in the Administrator’s argument that
the challenged portion of Dr. Huff’s testimony should not

20
Grob to testify about the cause of death set forth in

Holmes’ death certificate, but that it erred when it later

reversed its decision and directed the jury to disregard

that testimony. He argues that, since Dr. Grob testified

he had reviewed Holmes’ medical records in the course of

arriving at his conclusions that she did not have bladder

cancer in February 2003 and that the cancer originated in

her periurethral space, the provisions of Code § 8.01-401.1

permit an inquiry on cross-examination into “the . . .

facts or data” underlying Dr. Grob’s opinions, especially

those that did not support his conclusions.10 Further, the

Administrator contends that Dr. Levine’s objection,

predicated on our holding in McMunn v. Tatum, 237 Va. 558,

379 S.E.2d 908 (1989), was misplaced because, according to

the Administrator, that decision restricted an expert

witness from testifying only during direct examination as

to hearsay matters of opinion upon which the expert relied

in reaching his own opinion.

have been admitted simply because Dr. Levine agreed to
redact other portions of her testimony on the same subject.
10
This Court has held that a death certificate is not
“competent to show the cause of [a] decedent’s death”
because, when offered for that purpose, it merely
represents “the expression of an opinion by the physician
signing the certificate.” Edwards v. Jackson, 210 Va. 450,
453, 171 S.E.2d 854, 856 (1970).

21
 To resolve the issue about Dr. Grob’s testimony, we

need not determine the extent of the holding in McMunn

because the contents of the death certificate were not

facts or data upon which Dr. Grob relied in forming his

opinions. The relevant statute states, in pertinent part:

In any civil action any expert witness may
give testimony and render an opinion or draw
inferences from facts, circumstances or data made
known to or perceived by such witness at or
before the hearing or trial during which he is
called upon to testify. The facts, circumstances
or data relied upon by such witness in forming an
opinion or drawing inferences, if of a type
normally relied upon by others in the particular
field of expertise in forming opinions and
drawing inferences, need not be admissible in
evidence.

The expert may testify in terms of opinion
or inference and give his reasons therefor
without prior disclosure of the underlying facts
or data, unless the court requires otherwise.
The expert may in any event be required to
disclose the underlying facts or data on cross-
examination.

Code § 8.01-401.1 (emphasis added). The record is devoid

of any evidence that Dr. Grob relied on the death

certificate and its statement as to the cause of Holmes’

death in forming his opinions about which he testified.

The only foundation laid by the Administrator for

introducing the cause of death stated in the death

certificate was that Dr. Grob had “looked at the medical

records.” From his comment that “death certificates can

22
only use the information they have available,” it is clear

that Dr. Grob discounted the document’s persuasiveness and

did not rely upon it in forming his opinions. Thus, we

conclude the trial court did not abuse its discretion in

striking Dr. Grob’s hearsay testimony.11 Our conclusion,

however, does not mean that the Administrator was precluded

from cross-examining Dr. Grob about whether he relied on

the death certificate in formulating his opinions and, if

not, why he discounted the information contained in the

death certificate.

CONCLUSION

For the reasons stated, we will reverse in part, and

affirm in part, the circuit court’s judgment and remand the

case for a new trial on all issues consistent with the

principles expressed in this opinion.12

Reversed in part,
affirmed in part,
and remanded.

11
We reject the Administrator’s argument that the
trial court’s striking that portion of Dr. Grob’s testimony
deprived him of the opportunity to test Dr. Grob’s
credibility and to cross-examine him for bias.
12
In light of our decision, we do not address the
Administrator’s fourth assignment of error.

23