Whitaker v. Hyundai Motor Company et al
Filing
213
ORDER denying as moot 155 Motion in Limine. Signed by Chief Judge Michael F. Urbanski on 2/12/19. (sas)
CLERK'S OFFICE U.S. DIST. COURT
AT RQ.l.NOKE, VA.
FILED
FEB 1 2 2019
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGIN~.uuAc. ouoLEY.CLERK
ROANOKE DIVISION
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CLARENCE EDWARD
WHITAKER, on behalf of himself
and as Administrator of the Estate
of Shannon Marie Whitaker,
deceased,
Plaintiff,
v.
HYUNDAI MOTOR COMPANY,
et al.,
Defendants.
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Case No. 7:17-cv-00055
Michael F. Urbanski
Chief United States District Judge
By:
ORDER
D efendants Hyundai Motor Company and Hyundai Motor America, Inc.
("Defendants") flied their Motion in Limine to Exclude Evidence and Argument Regarding
Certain Types of Damages on January 25, 2019. ECF No. 155. Plaintiff Clarence Edward
Whitaker (''Whitaker") responded on February 1, 2019. ECF No. 187. For the reasons stated
below, Defendants' motion is DENIED as moot.
Defendants claim that Whitaker intends to seek damages for: (1) Mrs. Whitaker's own
pain and suffering; (2) bystander damages incurred by the Whitaker boys for having found
their mother after the incident; and (3) damages for what Mrs. Whitaker would have earned
had she lived. Defendants argue that Whitaker cannot recover for Mrs. Whitaker's own pain
and suffering because Virginia law permits recovery only for the beneficiaries' losses. The
Virginia Wrongful Death Act states that a beneficiary may recover for his or her sorrow,
mental anguish, and solace which may include society, companionship, comfort, guidance,
kindly offices and advice of the decedent. Va. Code Ann. §8.01-52(1). All courts that have
considered this question have detennined that this refers only to the beneficiaries' anguish,
not that of the decedent. Defendants cite to El-Meswari v. Wash. Gas Light Co., 785 F.2d
483, 491 (4th Cir. 1986) in support of their motion.
Defendants also expect Whitaker to argue that Mrs. Whitaker's children should
recover damages for their own distress in finding their mother. They argue this is not
pennissible-Mrs. Whitaker's children did not suffer physical injuries of their own and were
not in the zone of danger so as to be frightened for themselves. Hughes v. Moore, 214 Va.
27, 197 S.E.2d 214, 219-20 (1973) . Finally, Defendants expect Whitaker to argue he should
recover an amount equal to his wife's projected earnings (salary and benefits) had she lived.
§8.01-52(2) of the Virginia Code permits wrongful death beneficiaries to recover for their
"reasonably expected loss of income of the decedent," meaning what the beneficiaries
reasonably expected and lost, not what the decedent would have earned. Wilson v. United
States, 637 F. Supp 669, 672 (E.D. Va. 1986). Furthermore, Defendants' argue that Whitaker
has no right to recover any pecuniary losses the beneficiaries may have suffered because he
has not disclosed any. Fed. R. Civ. P. 26(a)(1)(A)(iii) requires parties disclose computation of
damages. Whitaker, however, did not do so. Defendants claim that during discovery,
Whitaker said many times he was going to hire an economist yet never did. When explicitly
asked what damages he would claim for the beneficiaries in an interrogatory, Whitaker did
not answer the question. ECF No. 155-1, at 9. Because this is not a harmless error and is not
substantially justified, Whitaker cannot now claim any reasonably expected losses.
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Whitaker responds that he has no intention of asking for damages for Mrs.
Whitaker's own pain and suffering or for bystander damages for the Whitaker boys. All the
same, Whitaker argues that "the circumstances surrounding Mrs. Whitaker's death and the
emotional shock the Whitaker boys suffered upon seeing their mother pinned between the
house and her car and Clarence Whitaker coming upon the scene are part and parcel of their
right to recover mental anguish under the wrongful death act." Virginia Iron, Coal & Coke
Co. v. Odie's Admr., 128 Va. 280, 280 105 S.E. 107, 116 (1970) (abrogated on other
grounds). As for pecuniary loss, Whitaker says he plans to present evidence of Mrs.
Whitaker's employment and the income she contributed to the family, testify to the
reasonably expected loss of income suffered by the beneficiaries, and offer Mrs. Whitaker's
life expectancy into evidence. Whitaker argues this will permit a jury to determine the value
of the reasonably expected loss of income to Mrs. Whitaker's beneficiaries. The jury does
not require expert testimony to make this determination. Whitaker claims that he has been
deposed on the issue of economic loss and Mrs. Whitaker's contribution to the family's
living expenses. He also claims that Defendants have Mrs. Whitaker's employment and
payroll records. Thus, there is no unfair surprise.
Virginia law bars recovery for the decedent's pain and suffering in a wrongful death
case and has never recognized bystander damages in circumstances such as these. See ElMeswari, 785 F.2d at 488 (citing Hughes, 214 Va. at 34, 197 S.E.2d at 219-20) (''Virginia law
does not as an independent goal try to restore mental tranquility shaken by witnessing or
contemplating negligently inflicted injury). The Virginia Wrongful Death Statute does permit
recovery for the beneficiaries' mental anguish, however, and while El-Meswari noted that
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this claim "addressed itself only to the reaction provoked 'by reason of the death' of [the
decedent]," not how this anguish might have been heightened by an awareness of the
circumstances of death, id. at 488, other cases have permitted the introduction of evidence
regarding decedent's pain and suffering to enable the jury to estimate the mental anguish of
the beneficiaries. Sciortino v. Piccioni, 88 Va. Cit. 106, at *2 (2014) (discussing Virginia Iron,
Coal, and Coke Co., 128 Va. at 280, 105 S.E. at 116). There is nothing in Virginia law that
bars evidence of the circumstances of a decedent's death in a wrongful death action, and
Whitaker claims no intention to request damages for Mrs. Whitaker's pain and suffering or
bystander damages for the Whitaker children. The court DENIES Defendants' motion in
limine to prohibit evidence and argument regarding either source of damages as moot.
Finally, as Whitaker claims to have turned over employment and payroll records to
Defendants and been deposed on the issue of reasonably expected loss of income, Whitaker
may testify consistent with deposition testimony and documents produced in discovery. The
court DENIES Defendants' motion to exclude evidence and argument of reasonably
expected loss of income of Mrs. Whitaker. The court will address any attempted
introduction of evidence exceeding what was produced during discovery at trial, as
necessary.
It is SO ORDE RED.
Entered:
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