Ligon v. Southside Cardiology Associates

Present: All the Justices

JANE V. LIGON, ADMINISTRATOR OF THE
ESTATE OF PEARL V. VAUGHAN, DECEASED

v. Record No. 982467 OPINION BY JUSTICE BARBARA MILANO KEENAN
September 17, 1999
SOUTHSIDE CARDIOLOGY ASSOCIATES,
P.C., ET AL.

FROM THE CIRCUIT COURT OF PRINCE EDWARD COUNTY
Richard S. Blanton, Judge

In this medical negligence case, we consider whether the

trial court erred in admitting "habit" evidence from medical

personnel to prove that a patient did not complain of pain on a

specific occasion, and that the defendant's treatment of the

patient conformed to his routine practice.

Jane V. Ligon, administrator of the estate of Pearl V.

Vaughan, filed a wrongful death action in the trial court

against Dr. Girish Purohit and his medical practice, Southside

Cardiology Associates, P.C. (collectively, the defendant).

Ligon alleged, among other things, that the defendant was

negligent in failing to provide a proper diagnosis and treatment

of Vaughan's heart disease.

The following evidence was presented in a jury trial. In

May 1995, Vaughan experienced chest pains and received three

days of treatment at the Southside Community Hospital

(Southside) in Farmville. Five days after her release, she
returned to Southside's Cardiac Diagnostic Unit (CDU) as an

outpatient to take a Persantine stress test. In this test, the

drug Persantine is administered to place additional stress on

the patient's heart so that abnormalities can be detected and

evaluated.

Vaughan's daughter, Audrey Johnson, took Vaughan to the

hospital for the Persantine stress test and remained there

during the course of the procedure. Under the standard protocol

for this test, Vaughan completed a medical history form in the

CDU and an intravenous "saline lock" was placed in her arm.

Vaughan then went to the hospital's Nuclear Medicine Department

where she received an injection of a radioactive medicine. A

medical technician took photographic images, commonly referred

to as a "nuclear scan," of Vaughan's resting heart.

After three hours, Vaughan returned to the CDU where

another medical technician connected her to vital sign monitors

and obtained various electrocardiograms (EKGs). Dr. Purohit

supervised the injection of the Persantine and the

administration of the stress test. The stress test took 14

minutes to complete. During the stress test, Vaughan

experienced tightness and pain in her chest. At Dr. Purohit's

direction, Vaughan was given nitroglycerin, and her chest pain

stopped. After Vaughan completed the stress test, the heart

monitor and EKG connections were removed and she returned to the

2
Nuclear Medicine Department where a technician took a second

nuclear scan of her heart.

Vaughan left the hospital with Johnson and went to

Johnson's home. That night, Vaughan died in her sleep. All

three medical experts who testified at trial agreed that Vaughan

probably died from an arrhythmia that resulted in cardiac

arrest. One of these three witnesses, Dr. James T. Rittelmeyer,

a cardiologist, stated that Vaughan also had experienced a

"heart attack" during the stress test administered by Dr.

Purohit. The other two medical experts disagreed with that

conclusion.

Johnson testified that as she waited in the CDU reception

area while her mother was undergoing the stress test, she heard

Vaughan call her name. Johnson stated that she went to the area

where the test was being administered and found Vaughan lying on

a gurney, dressed in her own clothes and not connected to any

monitors. Johnson said that Vaughan was crying, trembling, and

complaining that she could not breathe and that she had pain in

her chest and arm.

Johnson testified that Dr. Purohit was standing nearby,

along with two female technicians or nurses. Johnson stated

that when she asked Dr. Purohit whether Vaughan's condition was

normal, he assured her that it was and said that her mother

would be fine once she went home and rested.

3
 Dr. Purohit testified that he had no independent

recollection of Vaughan's condition in the CDU. Debora S. Hurt,

the CDU technician who cared for Vaughan, also had no

independent recollection of Vaughan. However, Courtney Gates,

the nuclear technologist who obtained the final nuclear scan of

Vaughan's heart after the stress test, testified that she

remembered Vaughan. Gates stated that Vaughan complained of

indigestion or "stomach upset" at that time, but that she never

complained of chest pain. At trial, all three medical experts

testified that a violation of the standard of care would occur

if a patient, complaining of chest and arm pain under the

circumstances described by Johnson, were released from the

hospital without further evaluation. Thus, a critical factual

issue in the trial was whether Vaughan complained of chest and

arm pain after completing the stress test.

Over Ligon's objection, the defendant was permitted to

present evidence of the routine or "habit" of Dr. Purohit, Hurt,

and Gates in responding to other patients who complained of

chest pain after completing stress tests. Dr. Purohit testified

that he had administered one or two stress tests per day over

the last ten years, and that at least a dozen of those patients

had complained of chest pain after completing the test and

changing into their own clothes. He stated that whenever this

occurred, he re-evaluated the patient by obtaining another EKG

4
and performing a physical examination. Dr. Purohit testified

that he had never failed to re-evaluate a patient who complained

of chest pain on completion of a stress test.

Hurt testified that she had worked as a cardiac diagnostic

technician for ten years. When asked how many times she had

observed patients develop complaints similar to those described

by Johnson, Hurt responded that such complaints had occurred

more than ten times. She testified that when these complaints

were brought to her attention, she reconnected the patients to

an EKG monitor and had them re-evaluated by a physician.

Gates testified that during the 30 years she had worked as

a nuclear technologist, patients had complained of chest pain

"more than ten" times. Gates stated that she immediately

responded to those complaints by requesting assistance from the

cardiac unit or the emergency room.

At the conclusion of the evidence, the jury returned a

verdict in favor of the defendant. The trial court entered

judgment in accordance with the jury's verdict.

On appeal, Ligon argues that the trial court erred in

admitting the defendant's "habit" evidence. Ligon asserts that

the challenged testimony permitted the jury to speculate that

because Dr. Purohit, Hurt, and Gates provided proper medical

care to other patients, they provided the same care to Vaughan.

Ligon argues that under our holding in Jackson v. Chesapeake &

5
Ohio Ry. Co., 179 Va. 642, 20 S.E.2d 489 (1942), evidence of a

defendant's habitual conduct is inadmissible to prove that the

defendant acted in conformance with such conduct on a particular

occasion.

In response, the defendant argues that the witnesses'

testimony concerning their responses to other patients'

complaints of chest pain was not evidence of general habit such

as that addressed in Jackson, but was evidence of "specific

responses to a specific situation." The defendant asserts that

in a medical negligence action, when a defendant physician has

no memory of a patient, evidence of the physician's routine or

habit is relevant to establish his conduct with regard to that

particular patient. The defendant further contends that the

challenged testimony was not offered to prove that the defendant

was not negligent, but merely was offered to show that a

particular event, Vaughan's complaint of chest pain, did not

occur. We disagree with the defendant's arguments.

Our decisions do not draw a distinction between "general"

and "specific" habit evidence. Instead, the focus of our

analysis has been whether the proffered evidence is relevant to

the issues at trial. See Cherry v. D.S. Nash Constr. Co., 252

Va. 241, 244-45, 475 S.E.2d 794, 796-97 (1996); Spurlin v.

Richardson, 203 Va. 984, 989-90, 128 S.E.2d 273, 277-78 (1962);

Jackson, 179 Va. at 650, 20 S.E.2d at 492.

6
 The reasoning we articulated in Jackson is persuasive in

resolving the issue before us. There, a plaintiff brought a

negligence action for personal injuries he sustained when the

truck in which he was a passenger collided with a train. The

engineer in charge of the train's engine testified that on the

day of the accident, as well as on the 6th, 7th, 8th, 9th, 22nd,

23rd, and 24th day of every month, he rang the crossing bell and

gave other crossing signals prior to the train's traversing the

crossing. The plaintiff attempted to impeach this testimony

with proffered testimony from a witness who would have testified

that on the same days in a month other than that in which the

accident occurred, the crossing bell was not rung before the

train crossed the tracks. 179 Va. at 645-46, 20 S.E.2d at 490.

We held that the trial court did not err in refusing to

allow the proffered testimony. We stated that evidence of a

person's general habits is not admissible for the purpose of

showing the nature of his conduct on a specific occasion. Id.

at 649, 20 S.E.2d at 492. Such evidence of habitual conduct is

inadmissible because it consists only of collateral facts, from

which no fair inferences can be drawn, and tends to mislead the

jury and to divert its attention from the issues before the

court. See id. at 648, 20 S.E.2d at 491; Cherry, 252 Va. at

244-45, 475 S.E.2d at 796; Spurlin, 203 Va. at 990, 128 S.E.2d

at 278.

7
 The reasoning we employed in Jackson was a departure from

our prior decisions in Alexandria & F.R.R. Co. v. Herndon, 87

Va. 193, 12 S.E. 289 (1890) and Washington, A. and Mt. V. Ry. Co

v. Trimyer, 110 Va. 856, 67 S.E. 531 (1910), in which we

approved the admission of evidence that a defendant had acted in

an habitually negligent manner prior to the accident at issue.

In Herndon, we held that evidence of the habitual stopping place

of a train at a location where its rear car had no landing place

for exiting passengers was admissible to prove that the train

was stopped, rather than in motion, at this location when the

plaintiff left the rear car and was injured. 87 Va. at 199, 12

S.E. at 291. In Trimyer, we approved the trial court's

admission of evidence that the defendant railroad company, in

violation of its alleged duty, previously had failed to stop its

train at the same intersection where the plaintiff allegedly was

injured by the defendant's moving train. 110 Va. at 858-59, 67

S.E. at 532.

After Trimyer, however, we repeatedly have stated that

evidence of prior negligent habit is inadmissible to prove the

acts of negligence alleged at trial. See Cherry, 252 Va. at

244-45, 475 S.E.2d at 796-97; Jackson, 179 Va. at 649, 20 S.E.2d

at 492; Southern Ry. Co. v. Rice's Adm'x, 115 Va. 235, 248-49,

78 S.E. 592, 595 (1913). Moreover, in these negligence cases,

we have rejected the admission of habit evidence offered to

8
prove the issues at trial for the primary reason that such

evidence is collateral to the proof of those issues. * See id.

In a negligence action, evidence of habitual conduct is

inadmissible to prove conduct at the time of the incident

complained of because such evidence is collateral to the issues

at trial. Thus, the evidence in question before us was

inadmissible because it was collateral to the issues whether

this decedent complained of chest pains after her stress test,

whether the defendant was negligent in treating this patient at

the time of the incident complained of, and whether the alleged

acts of negligence were a proximate cause of the decedent's

death. See Cherry, 252 Va. at 244, 475 S.E.2d at 796; Jackson,

179 Va. at 648, 20 S.E.2d at 492.

Acceptance of the contrary position urged by the defendant

would result in the admission of irrelevant evidence in a

variety of actions. For example, a defendant in an automobile

*
We also note that Graham v. Commonwealth, 127 Va. 808, 103
S.E. 565 (1920), cited by the defendant, is inapposite to the
present case. There, we held that since the defendant on trial
for murder had asserted a self-defense claim, alleging that the
deceased had used violent, profane language and advanced toward
him with a gun, the Commonwealth was entitled to introduce
rebuttal evidence that the deceased did not have a habit of
swearing. 127 Va. at 824, 103 S.E. at 570. We stated that this
evidence was admissible under the same principle that allows the
admission of character evidence. Id. Thus, our holding in
Graham was limited to the use of a narrow category of rebuttal
testimony to a claim of self-defense in a criminal prosecution,
and is unrelated to the present issue of the admissibility of
habit evidence in a negligence action.

9
negligence action would be permitted to prove that he obeyed a

certain traffic signal at an accident scene by testifying that

he complies with that signal on a daily basis when driving at

that location. We decline to adopt such a rule because the

relevant inquiry in a negligence action is not whether a

defendant has a habit of compliance with the type of duty at

issue, but whether the defendant breached a specific duty owed

to the plaintiff at a particular time.

By our holding in this case, we also decline the

defendant's request that we follow the decisions of other

jurisdictions that permit evidence of the habitual conduct of

medical personnel for the purpose of proving that the

defendant's conduct on a specific occasion conformed to their

routine practice. See, e.g., Bloskas v. Murray, 646 P.2d 907,

911 (Colo. 1982); Crawford v. Fayez, 435 S.E.2d 545, 549-50

(N.C.App. 1993). Those decisions represent a departure from our

jurisprudence, and we perceive no benefit from the admission of

such evidence to warrant a reversal or curtailment of the basic

principles articulated in Jackson.

We also disagree with the defendant's contention that

admission of this type of evidence is necessary to counter a

plaintiff's expert testimony on the applicable standard of care,

which is based partly on actions taken by other health care

providers under the same circumstances. Both factual and expert

10
testimony in a medical negligence action must be relevant to the

incident at issue. The testimony of fact witnesses is relevant

to show what actually happened on a particular occasion. The

testimony of expert witnesses relates to the same specific

incident by establishing a standard of care applicable to the

defendant's actions on that particular occasion and by assessing

whether those actions conformed to the established standard of

care. In contrast, the evidence improperly admitted by the

trial court was relevant only to prove events that occurred on

other occasions.

For these reasons, we will reverse the trial court's

judgment and remand the case for a new trial in accordance with

the principles expressed in this opinion.

Reversed and remanded.

JUSTICE KINSER, concurring.

I concur in the result reached by the majority but for

different reasons. In prior cases, this Court has not clearly

articulated a distinction between “general” and “specific” habit

evidence, or discussed whether different rules apply when

determining the admissibility of each type of habit evidence.

However, we have, on occasions, upheld the admissibility of

“specific” habit evidence. See Washington, A. and Mt. V. Ry.

11
Co. v. Trimyer, 110 Va. 856, 67 S.E. 531 (1910); Alexandria &

F.R. Co. v. Herndon, 87 Va. 193, 12 S.E. 289 (1890).

The majority states that this Court’s reasoning in Jackson

v. Chesapeake & Ohio Ry. Co., 179 Va. 642, 20 S.E.2d 489 (1942),

represented a departure from the decisions in Trimyer and

Herndon. But in Jackson, we concluded that the facts of that

case did “not bring it within any of the exceptions to the

general rule” that evidence of an individual’s general habits is

not admissible for the purpose of establishing that individual’s

conduct on a specific occasion. Id. at 649, 20 S.E.2d at 492.

I believe this Court’s decisions in Trimyer, Herndon, Norfolk &

W. Ry. Co. v. Thomas, 110 Va. 622, 66 S.E. 817 (1910), and

Kimball v. Borden, 95 Va. 203, 28 S.E. 207 (1897), all of which

were discussed in Jackson, represent the “exceptions to the

general rule.” Jackson, 179 Va. at 649, 20 S.E.2d at 492.

Thus, I do not agree that the decision in Jackson signified a

shift from the Court’s earlier rulings. Rather, Jackson re-

stated the rule regarding “general” habit evidence. Id. It did

not overrule Trimyer or Herndon, nor does the majority decision

today do so.

Additionally, the more recent case of Cherry v. D.S. Nash

Constr. Co., 252 Va. 241, 475 S.E.2d 794 (1996), involved only

“general” habit evidence although the Court did not classify the

challenged evidence as “general” or “specific.” Instead, the

12
Court merely concluded that “Nash Construction’s overall

performance record, as well as the fact that it had not been

cited . . . for safety violations on the job, had no probative

value regarding” what action Nash Construction took or should

have taken on the day of the accident. Id. at 245, 475 S.E.2d

at 797.

Regardless of the status of the Commonwealth’s

jurisprudence regarding “specific” and “general” habit evidence

and the import of the decision in Jackson, I believe that the

trial court erred by admitting the evidence at issue in this

appeal because the defendants did not establish a proper

foundation. According to the testimony of Dr. Girish Purohit,

Debora S. Hurt, and Courtney Gates, they occasionally had

patients who experienced chest pain after completing all the

cardiac tests and changing into their own clothes. However, Dr.

Purohit, Hurt, and Gates admitted that such occurrences were

infrequent. In other words, episodes, like the one allegedly

experienced by Pearl V. Vaughan, were not numerous or regular

events. Thus, I conclude that the defendants failed to prove a

routine practice or procedure regularly utilized in response to

a repeated specific situation from which an inference of

habitual conduct could be drawn.

For these reasons, I respectfully concur.

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JUSTICE LACY, dissenting.

Until today, Virginia, like virtually all other

jurisdictions, recognized a distinction between evidence of

one's general habits and evidence of one's specific habits and

considered specific habit evidence relevant and admissible under

certain conditions. 1 McCormick on Evidence § 195 (John William

Strong ed., 4th ed. 1992); 1A Wigmore, Evidence § 93 (Tillers

rev. 1983). Compare Cherry v. D.S. Nash Construction Co., 252

Va. 241, 475 S.E.2d 794 (1996), with Jackson v. Chesapeake &

Ohio Ry. Co., 179 Va. 642, 20 S.E.2d 489 (1942), Graham v.

Commonwealth, 127 Va. 808, 103 S.E. 965 (1920), Washington, A.

and Mt. V. Ry. Co. v. Trimyer, 110 Va. 856, 67 S.E. 531 (1910),

and Alexandria & F.R.R. Co. v. Herndon, 87 Va. 193, 12 S.E. 289

(1890).

Following existing Virginia precedent, the trial court in

this case determined that the evidence at issue was specific

habit evidence and considered its admissibility on that basis.

In reversing the trial court, the majority recites the rule

applicable to general habit evidence, and applies it to the

facts of this case. Because I believe the trial court analyzed

the evidence correctly and in accordance with our prior cases in

ruling on its admissibility, I respectfully dissent.

Evidence of general habits, such as evidence that a person

generally is a careful driver offered to show that he did not

14
act negligently at the time in question, regardless of any

probative value it may have, has been held inadmissible per se.

Thus, in Jackson, we said:

[A]ccording to the weight of authority, evidence
of the general habits of a person is not
admissible for the purpose of showing the nature
of his conduct upon a specific occasion.
Accordingly, in actions for negligence the courts
generally deny the admissibility of evidence of
the reputation of the defendant for negligence,
his habits of negligence, his habitual negligent
conduct, etc., upon the issue of his negligence
at the time of the injury complained of.

179 Va. at 649, 20 S.E.2d at 492; see also Cherry, 252 Va. at

244, 475 S.E.2d at 796.

However, this blanket rejection of general habit evidence

has not been extended to evidence of specific habitual conduct,

that is, evidence that a person regularly reacts to a specific

set of circumstances in the same manner. We concluded long ago

that such specific habit evidence is probative of, and thus

relevant to, such person's actions on a particular occasion

under similar circumstances. "Of the probative value of a

present habit, or custom, as showing the doing on a specific

occasion of the act which is the subject of the habit or custom,

there can be no doubt." Graham, 127 Va. at 823, 103 S.E. at 570

(emphasis added). Such evidence is not automatically admissible

under the prior cases decided by this Court, but neither is it

automatically inadmissible under those cases or under the rule

15
recited in Jackson. Rather, as Jackson pointedly observed,

"[t]he admissibility, as well as the probative value, of this

class of [specific habit] evidence depends in a large measure

upon the circumstances in which it is offered." Jackson, 179

Va. at 647, 20 S.E. at 491.

Thus, this Court has affirmed the admission of evidence

showing that the railroad company's trains had habitually

stopped at a particular place on arriving at the station because

such evidence "did tend to prove" whether the train was stopped

or in motion at the place plaintiff was injured. Herndon, 87

Va. at 199, 12 S.E. at 290. Likewise, testimony that a train

did not stop at an intersection on other prior occasions tended

to prove that it did not do so on the day of the accident in

issue, and was thus properly admitted. Trimyer, 110 Va. at 858-

59, 67 S.E. at 532-33.

The evidence at issue in this case was the habit of

recording complaints of chest pains in a patient's record and

re-evaluating the patient in response to the patient's complaint

of chest pains following the completion of a stress test. The

appellee argued that the evidence was not evidence of general

habits and was not offered to show a general disposition toward

non-negligent acts. According to the appellee, "[w]hile the

challenged evidence admittedly has a bearing on the question

whether Dr. Purohit was negligent, the primary purpose for which

16
it was offered was to prove that the event (the alleged

complaints of chest pain after the Persantine Stress Test had

ended) upon which the plaintiff relies as giving rise to the

duty to re-evaluate and hospitalize Mrs. Vaughan did not occur,

. . . ."

The trial court agreed with the appellee, stating that the

evidence was not general habit evidence offered for the purpose

of showing that the defendants "conducted themselves in a safe

and careful manner," but evidence "of a specific response to a

particular factual situation." Before admitting the evidence,

the trial court further required that the evidence offered meet

the test of regularity, that is, in the words of the trial

court, that the actions were "numerous enough to base an

inference of systematic conduct or . . . regular response to a

repeated specific situation."

The admissibility of evidence is within the discretion of

the trial court. Roll 'R' Way Rinks, Inc. v. Smith, 218 Va.

321, 326, 237 S.E.2d 157, 161 (1977). The evidence in this case

was specific, not general, habit evidence; it was relevant to

and probative of a fact in issue — whether the patient

complained of chest pains following the stress test; there was

no assertion that admission of the evidence would unduly

lengthen the trial or confuse the jury. There is nothing in

this record to support a finding by this Court that the trial

17
court abused its discretion in admitting this evidence in this

case. Accordingly, I find no basis to reverse the judgment of

the trial court.

In reversing the trial court, the majority relies heavily

on the Jackson case, a negligence action against a railroad

company for injuries suffered when a train hit a vehicle

occupied by the plaintiff at a railroad crossing. The decision

in Jackson was not based on a finding that the proffered

evidence was inadmissible habit evidence, but rather that the

evidence was inadmissible impeachment evidence, the ground

asserted by the plaintiff in his objection to the trial court's

ruling. 179 Va. at 650-51, 20 S.E.2d at 492-93. As such, the

Court's discussion of habit evidence in Jackson, which the

majority finds so persuasive, is merely dicta. Nevertheless,

because I believe the majority misinterprets the dicta in

Jackson, a full discussion of the case is warranted.

An issue described by the Court in Jackson as "vital" to

establishing the railroad's negligence in that case was whether

the railroad crossing signals required by statute were given on

the day of the accident. The statutory signal requirements were

"two sharp sounds of the whistle and a continuous ringing of the

bell, or the whistle sounded continuously or alternatively with

the bell from a point at least 300 yards, and not more than 600

yards, from the crossing." Id. at 645, 20 S.E.2d at 490. The

18
failure to give a proper signal constituted negligence per se.

Thirty-four eyewitnesses testified on this issue, the majority

of which testified that the crossing signals were given. Id.

The evidence in dispute was offered by the plaintiff and

consisted of notations made by a person stationed at a nearby

business regarding the crossing signals given on seven days

seven months after the accident. The notations were that

"different crossing signals were given;" "the whistle was blown

on each day mentioned" but that "the number of blasts varied,"

and that the bell was not rung on any of the days. Id. at 646,

20 S.E.2d at 489. The trial court refused to admit this

evidence.

On appeal, the Court in Jackson, as noted above,

acknowledged the rule against the admission of general habit

evidence but also acknowledged that the rule did not apply to

all habit evidence, citing other Virginia cases in which habit

evidence was admitted. Id. at 647, 20 S.E.2d at 491. The Court

in Jackson, like the majority here, did not specifically

classify the proffered evidence as evidence of general or

specific habit. However, the Jackson Court did not reject the

proffered specific evidence under the rule that evidence of

general habits is inadmissible per se as the majority states.

This much is clear from the fact that the court engaged in a

lengthy analysis of the reliability, relevancy, and prejudicial

19
effect of the proffered evidence, which analysis would have been

unnecessary for application of a per se rule against

admissibility.

Recognizing that proffered specific habit evidence "may not

in fact have sufficient regularity to make it probable that it

would be carried out in every instance . . . ," and that

"[w]hether or not such sufficient regularity exists must depend

largely on the circumstances of each case," 179 Va. at 650, 20

S.E.2d at 492 (emphasis added)(citing Wigmore), the Court in

Jackson affirmed the trial court's refusal to admit the

plaintiff's proffered evidence, reasoning that the evidence

offered involved incidents "too remote in time and too

indefinite in substance to be relevant to the question, . . . ."

Id.

The Court's conclusion in Jackson that the proffered habit

evidence in that case did not qualify as admissible specific

habit evidence did not represent a departure from previous

cases. The proffered evidence in Jackson differed significantly

in quality from the specific habit evidence admitted in previous

cases. See Trimyer, 110 Va. 856, 67 S.E. 531; Herndon, 87 Va.

193, 12 S.E. 289. The purportedly habitual act at issue in

Jackson — giving the signal crossings in the manner required by

statute — was not a simple, single act. It included alternative

formulas for sounding the signals which had to be performed at

20
certain distances. The proffered evidence only established that

different crossing signals were given, some of which may have

been in compliance with the statutory requirements, such as the

continuing blast of the signal. Also in contrast to prior

cases, the evidence offered pertained solely to actions after

the accident, rather than prior to the accident, and consisted

of only seven occasions. Under these circumstances, it is not

surprising that the proffered evidence of a specific habit was

determined to be inadmissible. The reasons stated by the Court

in Jackson for rejecting the evidence at issue in that case

reflected the analysis which must be applied by a trial court

each time a party seeks to introduce evidence of a specific

habit.

As indicated above, the trial court in the instant case

engaged in just such an analysis and concluded that the evidence

was relevant and admissible and unlikely to cause prejudice or

undue delay. The majority concludes that this evidence offered

and admitted by the trial court was inadmissible because it was

evidence of "collateral" matters. This conclusion rests on a

legal principle announced by the majority that, "evidence of

habitual conduct is inadmissible because it consists only of

collateral facts, from which no fair inferences can be drawn,

and tends to mislead the jury and to divert its attention from

the issues before the court."

21
 The majority cites three cases for support of this

principle: Jackson, Cherry, 252 Va. at 244-45, 475 S.E.2d at

796; and Spurlin v. Richardson, 203 Va. 984, 990, 128 S.E.2d

273, 278 (1962). However, of these cases only Jackson involves

any discussion of specific habit evidence, and the referenced

passage in each case is nothing more than a recitation of the

unremarkable proposition that irrelevant, collateral evidence is

inadmissible. In fact, all three cases refer to Moore v. City

of Richmond, 85 Va. 538, 539, 8 S.E. 387, 388 (1888), as the

source of the statement. "It is an elementary rule that the

evidence must be confined to the point in issue, and hence

evidence of collateral facts, from which no fair inferences may

be drawn tending to throw light upon the fact under

investigation, is excluded." Id. Moore did not involve habit

evidence at all, but rather involved evidence offered by the

plaintiff "for the purpose of proving the defective condition of

the sidewalk at the place where the accident occurred" that

another person "on the same night, fell into the same hole" as

plaintiff. Id. Therefore, I believe the majority has

misinterpreted Jackson, as well as Cherry and Spurlin, as

support for a legal principle that all habit evidence is

evidence of collateral facts. While the legal principle

enunciated by the majority may arguably be valid with regard to

22
general habit evidence, its applicability to evidence of

specific habits must be determined on a case by case basis.

Of equal concern to me is the majority's statement that the

disputed evidence in this case was "collateral to the issue of

[the defendants'] conduct and the decedent's condition at the

time of the incident in question" and, therefore, was not

relevant to "the issues at trial, namely, whether this decedent

complained of chest pains after her stress test." This

conclusion ignores a crucial factual issue in this case —

whether the plaintiff complained of chest pains following the

stress test.

The evidence of the defendant's habit of recording chest

pain complaints and re-evaluating the patient whenever a patient

complains of chest pain tends to show that they would have done

the same had decedent complained of chest pain at the time in

question. This evidence, combined with the fact that decedent's

records reveal no chest-pain complaints or re-evaluation, tends

to prove that decedent did not, in fact, complain of chest pain.

The disputed evidence is thus demonstrably probative of a

crucial factual issue in the trial; it simply is not collateral

to "the issues at trial." See Herndon, 87 Va. at 199, 12 S.E.

at 291 ("It is a settled rule of evidence that, whatever tends

to prove the issue, or constitutes a link in the chain of proof,

is relevant and admissible.")

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 Finally, the majority's conclusion that the evidence at

issue is inadmissible is not supported by any discussion of why

no reasonable inferences can be drawn from the evidence, why the

evidence misleads and diverts the attention of the jury in this

case, or how this evidence differs from the specific habit

evidence directly addressed and held admissible in Trimyer and

Herndon, cases which have not been overruled and which were

specifically acknowledged by this Court in Jackson.

I recognize the majority's valid concern that this type of

evidence poses the danger of confusing the jury and causing

mini-trials. However, that danger is greater in some cases than

in others and is non-existent in still other cases. Thus, the

trial court must consider this danger, in relation to the

probative value of the proffered evidence, in determining

whether to admit specific habit evidence in any particular case

— the type of determination made daily by trial courts in ruling

on the admission of evidence. Because I believe the trial court

made this determination correctly in this case, I would affirm.

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