PRESENT: All the Justices
VIRGINIA S. JONES,
ADMINISTRATRIX OF THE ESTATE OF
PAUL ARBON JONES, JR., DECEASED
OPINION BY
v. Record No. 091745 JUSTICE WILLIAM C. MIMS
November 4, 2010
JOHNNY WILLIAMS, AN INFANT,
WHO SUES BY HIS MOTHER AND NEXT
FRIEND, DOSSHANDRA WILLIAMS, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Junius P. Fulton, III, Judge
In this appeal, we consider whether Code § 8.01-397
required corroboration of the testimony of a non-party witness
in favor of a prevailing plaintiff when the defendant was
incapable of testifying.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
On June 4, 2005, Dosshandra Williams (“Williams”) gave
birth to Johnny Williams (“Johnny”) at DePaul Medical Center in
the City of Norfolk. Williams was under the care of Paul Arbon
Jones, Jr., M.D. (“Dr. Jones”), an obstetrician. During the
delivery, Johnny’s shoulders became obstructed within the birth
canal, a condition known as shoulder dystocia. Shoulder
dystocia is a potentially fatal emergency condition that
deprives the baby of oxygen. See Bostic v. About Women OB/GYN,
P.C., 275 Va. 567, 571 & n.2, 659 S.E.2d 290, 291 & n.2 (2008).
Martha McGuirt, an obstetric nurse with thirty-three
years’ experience, assisted with the delivery. McGuirt
testified at trial that she initially attempted to resolve the
shoulder dystocia by pressing Williams’ legs against her chest
– a medical procedure known as the McRoberts maneuver. McGuirt
further testified that when the McRoberts maneuver failed, Dr.
Jones manually attempted to rotate Johnny’s shoulders inside
the birth canal. According to her testimony, Dr. Jones ordered
McGuirt to apply fundal pressure – that is, to press her
forearm forcefully on top of Williams’ uterus. Thereafter
Johnny was delivered successfully. However, he had suffered
severe and permanent damage to the nerves in his right arm, a
condition known as Erb’s palsy. See id. at 571 & n.1, 659
S.E.2d at 291 & n.1.
Dr. Jones died on October 15, 2005. His widow, Virginia
S. Jones (“Jones”), qualified as his personal representative.
On October 24, 2007, Johnny filed a complaint against Jones as
personal representative of Dr. Jones’ estate in the circuit
court through Williams, his next friend. Johnny alleged in the
complaint that Dr. Jones had breached the standard of care in
performing the delivery. 1
At the close of Johnny's case in chief, Jones moved to
strike the evidence. Jones argued that the testimony
concerning fundal pressure was inadmissible under Code § 8.01-
1
Williams also sued in her individual capacity to recover
future medical expenses. That claim was dismissed and is not
before us on appeal.
2
397. Jones asserted that McGuirt could not corroborate
Johnny’s claim because she was an interested party within the
meaning of the statute. The circuit court denied the motion.
Jones later renewed the motion to strike after presenting her
defense. The court again denied the motion. Jones also
proffered a jury instruction related to Code § 8.01-397, which
the court refused. The case was submitted to a jury, which
found for Johnny and awarded $1,750,000 in damages. We awarded
Jones this appeal.
II. ANALYSIS
“On appeal, we generally review evidentiary rulings under
an abuse of discretion standard.” Boyce v. Commonwealth, 279
Va. 644, 649, 691 S.E.2d 782, 784 (2010). However, the
admissibility of McGuirt’s testimony in this case requires an
interpretation of Code § 8.01-397 and “[s]tatutory
interpretation is a question of law which we review de novo,
and we determine the legislative intent from the words used in
the statute, applying the plain meaning of the words unless
they are ambiguous or would lead to an absurd result.” Syed v.
ZH Techs., Inc., 280 Va. 58, 69, 694 S.E.2d 625, 631 (2010)
(quotation marks omitted).
The statute provides, in relevant part, that
[i]n an action by or against a person who, from
any cause, is incapable of testifying, or by or
against the committee, trustee, executor,
3
administrator, heir, or other representative of
the person so incapable of testifying, no
judgment or decree shall be rendered in favor of
an adverse or interested party founded on his
uncorroborated testimony.
Code § 8.01-397.
We have noted that the statute replaced the rigid common
law rule that barred an adverse party from testifying in his
own behalf in an action against an incapacitated litigant.
Virginia Home for Boys & Girls v. Phillips, 279 Va. 279, 286,
688 S.E.2d 284, 287 (2010). Under the statute, “testimony is
subject to the corroboration requirement if it is offered by an
adverse or interested party and if it presents an essential
element that, if not corroborated, would be fatal to the
adverse party's case.” Johnson v. Raviotta, 264 Va. 27, 32,
563 S.E.2d 727, 731 (2002). Moreover, “evidence, to be
corroborative, must be independent of the surviving witness.
It must not depend upon his credibility or upon circumstances
under his control. It may come from any other competent witness
or legal source, but it must not emanate from him.” Virginia
Home, 279 Va. at 286, 688 S.E.2d at 287-88.
Similarly, the testimony of the adverse party may not be
corroborated by an interested party, or vice versa. Ratliff v.
Jewell, 153 Va. 315, 325, 149 S.E. 409, 411 (1929). “However,
that rule only applies when the corroborating witness has a
pecuniary interest in common with the person whose testimony
4
needs corroboration in the judgment or decree sought to be
entered based on that testimony.” Johnson, 264 Va. at 38 n.2,
563 S.E.2d at 734 n.2 (emphasis added).
In Ratliff, we considered the types of interests in
litigation that would render a witness an “interested party”
within the meaning of the statute. The interests identified
were (a) being liable for the debt of the party for whom he
testified, (b) being liable to reimburse such a party, (c)
having an interest in the property at issue in the action, (d)
having an interest in the money being recovered, (e) being
liable for the costs of the suit, or (f) being relieved of
liability to the party for whom he testified if such party
recovered from the incapacitated party. 153 Va. at 325-26, 149
S.E. at 412. In this case, Jones argues that McGuirt is an
interested party under the last of these criteria because
Johnny’s recovery against Dr. Jones relieved her of potential
liability. We disagree. 2
We determined in Johnson that a witness whose testimony
provides the basis for his or her own liability is not an
“interested party” for purposes of Code § 8.01-397. Johnson,
264 Va. at 38 n.2, 563 S.E.2d at 734 n.2. As Jones conceded at
2
Jones also asserts that the circuit court found McGuirt
was an interested party and that Johnny failed to assign cross-
error to this finding. The court made no such finding.
Rather, the court assumed without deciding that if McGuirt was
an interested party, her testimony was adequately corroborated.
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oral argument, McGuirt’s testimony may provide a basis for a
claim of contribution. While Jones argues that the limitation
of recovery established by Code § 8.01-581.15 gave McGuirt an
incentive to maximize Dr. Jones’ liability, Jones also conceded
at oral argument that the fundamental question for establishing
his liability was whether fundal pressure was applied before or
after he had dislodged Johnny’s shoulder. On that question,
McGuirt testified that she did not know whether Dr. Jones had
succeeded in manually rotating Johnny’s shoulders clear of the
obstruction prior to ordering the application of fundal
pressure. Consequently, her testimony is neutral regarding the
dispositive issue in this case.
Accordingly, we hold that McGuirt is not an “interested
party” within the contemplation of Code § 8.01-397. Thus,
there is no error in the circuit court’s denial of Jones’
motions to strike or its refusal to instruct the jury on the
statute and we will affirm the judgment.
Affirmed.
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Jones v. Williams
Combined Opinion