*1 copies electronic must be filed on separate twelve CDs or DVDs and must be filed Adobe Acrobat Docu- Portable (PDF).1 ment Format WAGONER,
Richard C. Jr. Virginia. COMMONWEALTH of Record 2233-12-3. No. Appeals Virginia,
Court of
Salem.
April 2014. guidelines 1. The digital for the creation and submission of a brief package www.courts.state.va.us, can be found at Ap- in the peals section under "Resources and Reference Materials." *3 (James Haskins; David O. William- McGarry R. W. James Wall, P.C.; Mann, son; Haskins, Gregory, McGarry & Young, P.L.C., briefs), Wall, for appellant. on Brumberg, Mackey Attorney General Armstrong, T. Senior Assistant Alice General, brief), (Kenneth Cuccinelli, II, Attorney T. *4 appellee. HUFF, HUMPHREYS, BEALES and JJ.
Present: HUMPHREYS, Judge. aby was convicted (“Wagoner”) Jr. Wagoner,
Richard C. (“trial City of Martinsville in Court of the the Circuit court”) resulting incapacitated of an adult neglect abuse 18.2-369(B). appeal, death, § On in violation Code (1) Wagoner argues the trial court the applied wrong decisional standard denying motion to set aside (2) verdict; that the evidence was insufficient to support finding that his conduct was a proximate cause of the victim’s (3) death; and that the evidence was insufficient to establish that he committed a willful act with knowledge and conscious- ness that injury or death would result to the victim. For the reasons, following we affirm the trial court.
I. BACKGROUND On appeal, we “consider the evidence all reason able inferences fairly deducible therefrom in light most Commonwealth, favorable to the the prevailing party at trial.” Commonwealth, Bass v.
(2000).
In February Joe Tuggle victim, (“Tuggle”), the was living in a group home for men with intellectual disabilities run by Claye Corporation. Wagoner, who holds a PhD in applied developmental psychology, owns Claye Corpora- tion and serves as the president of Corporation. Claye Corporation a provider has agreement with Depart- ment of Developmental provide Health to services to intellec- tually disabled adults. The Claye Corporation operates sev- eral homes clients, where clients reside. Three including Tuggle, (“Minor lived in Street”). the Minor Street home
In February fifty-seven was years old and had severe Parkinson’s Lewy disease and bodies his brain causing dementia. It is unclear what caused Tuggle’s intellec- disabilities, tual cause, but whatever the he was unable to communicate effectively, he could not carry on a real conversa- tion, and he mostly moaned gestured. Tuggle also needed help with eating and with personal care. Tuggle walk, could but he was shaky from the Parkinson’s disease and had trouble with walking and standing on his own.
Around seven in on evening February sitting a couch in the Minor living Street room when he had a diarrhea (“Baker”), accident. Jerome Baker who *5 and sat to the restroom staff, Tuggle on assisted working
was three two to Tuggle with waiting After on the toilet. Tuggle cleaning and mop bucket minutes, left to retrieve Baker another staff helping began kitchen and from the supplies L.”), the diarrhea up clean member, (“Kenny Kenny L. Brown room. After living in the and floor on the couch that was minutes, to the rest- Baker returned or six for five cleaning on his back in the bathtub lying down Tuggle and found room Tuggle out of the shower. running only hot water with hot off the water Baker turned me!” “Help Help me! saying Kenny L. Baker and help. L. to come Kenny yelled and him on the toilet. him and sat up raised Tuggle and grabbed very red. his skin was off and noticed Tuggle They dried that again and noted living to the room they Tuggle took Then his about ten minutes peel it to really red and started skin was to call ready grabbed phone, that he Baker testified later. “No,” supervisor and to call their L. him Kenny told but policy. that was the first because A.”), the staff (“Kenny A. Brown Kenny L. called Kenny to and went A. left his home night. Kenny that supervisor Tuggle A. and Kenny inspected p.m. around 8:30 Minor Street attention. Ken- not need medical Tuggle did determined (“Tarpley”), co-supervisor,1 Tarpley A. called Tameki ny seeing Tuggle, accident. Without inform her of (“E.R.”) February on emergency room Tarpley called to be like “appeared a burn that asked how to treat and we testified, they “All could tell me was Tarpley sunburn.” pharmacy, [and] to the compressions go cold apply could Kenny called Tarpley to treat it.”2 how pharmacist ask members, who Kenny supervised Minor Street staff Tarpley A. 1. care to the residents. provided most of the direct Martinsville Memori- that she called Tarpley’s phone records indicate 2. burned, night Tuggle was and her p.m. Hospital al at 9:29 charge working the E.R. on the nurse call lasted 54 seconds. from the February does take calls night testified that the E.R. employees are not allowed general public policy is that the but the telephone. not recall The nurse did give any advice over the medical Kenny burns. rags apply cold A. back and said p.m. applying until 11:00 with stayed L. and Baker made noises indicat- and Baker testified rags, cold *6 ing pain. he was at A. arrived back February Kenny morning, next than usual there earlier got 6:30 a.m. He around
Minor Street looked Tuggle He that Tuggle. to on observed in order check “a little bit that his burns were morning that and different Kenny him. and this concerned they pink” than were redder Tuggle to take they told her that needed Tarpley A. called and way on her to Tarpley to checked out. was hospital to the be a.m., called staff member work, 7:00 when she a little before (“Hairston”) bring company to one Lacoma Hairston Tuggle hospital. to to the transport vans over to Minor Street at Minor and saw arm then arrived Street Tarpley it Cynthia Epley and neck and confirmed that was red. called Claye Corporation,3 Tarpley a director at the (“Epley”), told her about arriving Tarpley to at Minor Street and prior and that he was burned. night accident the before coming transport that a van was to Tarpley Epley also told E.R. Tuggle to the van 7:15
Hairston arrived at Minor Street with the about van, a.m. staff in the and the van put Tuggle Some members Wagoner speaking left. testified that she called after Epley said, “Well, I’d like to see him Tarpley Wagoner with and goes.” Tarpley before he then called to tell her Epley he Wagoner [Tuggle] goes.” “Mr. would like to see before van Tarpley bring then called Hairston and told her within a short back. The van arrived back Minor Street time, three minutes after called Hairston. Tarpley about returned, Tarpley
After the van went to CVS “because that’s what the her to and she asked the hospital [told do]”
any injuries February regarding and testified that calls burn phones. do not doctors answer boss, Wagoner Epley's Epley supervisors 3. was and oversaw the Claye Corporation Epley indicted Minor Street and other homes. was charge by prosequied. nolle the Commonwealth but the was told her The pharmacist a sunburn. how to treat pharmacist it clean and keep compresses “cold strips, drainage to use her CVS According heat,” Neosporin. and dry at 8:01 supplies the recommended Tarpley purchased receipt, a.m., to Minor Street. then she returned same time around the at Minor Street arrived
Epley house, Epley entered from CVS. When returned Tarpley Tuggle in a room wheelchair. living sitting was top of his only could see over him so she something had staff and the shortly Epley, after arrived Wagoner hand. de- Epley had happened. to them what explaining started overwhelming, everyone as chaotic and the scene scribed Minor Street house inside the stayed at once. She talking in her car. then went to sit minutes and less than ten took Then Baker doing. how he was Wagoner asked *7 T-shirt for pulled up Tuggle’s and Tuggle the sheet off of Baker testified that injuries. his Wagoner to see away. member peeled skin had Staff really was red and skin (“Collins”) did not have Tuggle testified that Collins Lawrence and staff member Artis Williams clothes on and that he any Wagoner from him so the sheet Tuggle up dropped stood and him at him. He looked looked “iWagoner] could have a look. in [Tuggle] looked. We sat back just Then he up and down. one everybody. say He didn’t Wagoner] chair. looked looked, had. He walked just this look he word to us. He made the February that on the staff Epley out.” testified and that Tuggle hospital to send to the treatment decision regard with to not the treatment decision Wagoner made hospital. to the sending Tuggle in “in when he walked that he was shock” Collins described “had Tuggle because morning Tuggle that and saw the home elaborated on very bad burn.” Collins suffered he hurting; looked like he was morning: Tuggle that condition talking. “Tuggle not just smiling he was staring; was head, like all him from the back of his have no flesh on didn’t him, all down his shoulders. hair and stuff to of his was melted down, know, he had burns way you All the gone. His butt was continued, to his feet.” Collins way all the down know, not even on him. You nothing He couldn’t have that much in the raw. His whole just He was underwear. just it had real It looked like body just pink. was like somebody just took all just I mean it was like happened. I of him. He didn’t have none. mean the skin off the back no hair on hairy. was real He didn’t have Tuggle like butt, more, no or on his nowhere. back minutes, looking Wagoner After for two or three Tuggle in Epley According went outside and sat with her car. was and nervous and had to take her Wagoner, Epley upset they blood medication while talked the car. While pressure outside, smoked a he watched and cigarette Epley Collins Wagoner Wagoner upset agitated, the car. looked and and hand-gestures, Wagoner based on his Collins could tell car happy. Epley Wagoner got not testified when shot,” “just “Well, said and I guess he his nerves were Social will us.” He told investigate Epley Services also “after talking Tuggle talking Tarpley hearing and to Ms. and what hospital say, had to he decided that we would treat one, care, get at home one on with one on one that he felt he’d better care.” left Minor after with Wagoner talking Street Epley about ten minutes. left,
After out Wagoner Epley telephoned Tarpley come They Family Pharmacy together to her car. went her own Epley picked up Tarpley bought medication and more if Neosporin Tylenol. Epley Tarpley told gets they worse should him to the E.R. Epley take After Street, dropped Tarpley Epley off at Minor left and went to a *8 friend’s house for the afternoon. From there she made two phone Wagoner during they calls to which discussed reporting “licensure,” the burn incident to meaning Department Services, Behavioral Li- Developmental Health and Office of censing.4 Epley Wagoner stressed to that he did need to Wagoner's Epley job purely 4. that testified administrative and busi- practice Epley ness and that she oversees client care. The was for to report injuries Wagoner responsible reporting inju- to he and for he Epley told Wagoner to licensure. injuries Tuggle’s report reporting the criteria for met injury if Tuggle’s not know did that it. indicated Wagoner into have to check and he would reported to be injuries needed Tuggle’s not think he did present. was no blood there because Tuggle care of the staffs supervised A. Kenny and Tarpley cold and applied Neosporin staff days. nine the next over sheets changed Tuggle’s The staff burns. Tuggle’s rags oozing they and the burns were often because and T-shirts on the there was blood Sometimes wet and smelled bad. were pus came sheets, yellow, wounds turned burn too. Collins, who refused to them, to stink. they started out of and to care for qualified he did not feel because Tuggle care was so room that the odor injuries, reported burn to vomit. it made him want days four after three or bad odor, too. had to Tuggle members mentioned Other staff side or left side. right hour to be on his turned each be of the said, bad,” “just he was awe “It was and Collins Baker, Tuggle days care of most who took thing.” whole death, that Tuggle testified his accident and between as much. The and would not eat slowed down movement because carefully during sponge baths Tuggle very wiped staff on him. they put any pressure could not during Tuggle his shifts that Baker made routine notes him; he also as staff ointment “laughed put and smiled” all of his wrote, “Tuggle ate report,” “no problems “relaxed” and indicated that dinner.” Other notes that all the notes said television. Collins testified watched would not allow management because “nothing report” Kenny A. Tarpley He added that reports otherwise. and the staff did not how to write the notes would tell the staff already Tug- knew management report anything because out that neither pointed Defense counsel also gle’s condition. Wagoner not call they called 911 and did Baker nor Collins Baker understood needed more care. say including licensing agency within 24 regulatory agencies, to the ries hours. *9 of 911 supervisor should be consulted instead and already decision about care had been Tuggle’s made—it was not going anywhere.” understood that “he’s Tuggle only day Adrian Jones took care of one after Tug- gle’s burns. Jones saw on Tuggle February When he was injuries. shocked to see Tuggle’s Tuggle Jones observed bad, in a pain, looked like he was lot of and was “burnt real over, red all purple, up down from his ankles to his head. His side, hair was melted to his head.” had on his Tuggle blisters back, buttocks, his and his pus running body. and was off his added, room “I Tuggle’s smelled like death. Jones was sitting beside him I only and was the one to see that tears shed[ ] from his face.” wrapped sheets without clothes underneath. had changed every sheets to be minutes, off, and we’d pull “[w]hen them the skin would be pulling you’d with it so be pulling every skin with the sheets time change we’d them.” Jones “no to report” wrote incidents for his shift Tuggle’s injury because did not occur on his shift.
In accident, the days following Tuggle’s Wagoner did not visit Minor Street and apparently only supervi- relied on the sors to on report Tuggle. Wagoner training, had no burn and he knew that supervisors did not have any burn training. The staff only members were trained first aid and CPR. Wagoner later told a investigator case the decision to take care of Tuggle Minor Street “was a group decision” and that he Tarpley’s trusted advice based on her call to the hospital and her conversation with a pharmacist after she asked how to treat a sunburn. He indicated that he did not think the burn was serious enough report to licensing; he injuries referred to Tuggle’s as a sunburn.
On February Martinsville Police Officer Michael Clark responded to a call from the home of Curtis Williams. Curtis Williams, Williams is the father of Artis who care for helped Tuggle the next shift after sustained injuries, again February 10. Officer Clark spoke with Curtis spoke then with Artis about a gentleman Minor Street “who had suffered some burns.” Officer Clark then visited Minor escorted to check” and was on a “wellness
Street Tuggle’s sheets asleep in his bed. Tuggle was room where *10 clothes; any not he wearing and he was were back pulled had Tuggle observed that side. Officer Clark lying on his left area, was a burn thigh area. There upper on his “butt burns There would have been. right shoulder blade where [] I on I one believe arm. also observed right was one on his told Officer Clark Tarpley ... area of his neck.” right emergency “in contact with the that had been constant she wounds. they treating Tuggle’s how were explained room” and emergency action or call any did not take Officer Clark that was not in Tuggle because he believed medical services appeared resting that he to be any danger given imminent being by and was cared for others. comfortably Tankersley called Deborah February Wagoner On of Health and (“Tankersley”), Department of the Behavioral Services, Licensing, to tell her that Office Developmental to do a day had come to Minor Street before police Licensing The Office of licenses Tuggle. wellness check services, and it monitors the provide to Claye Corporation services, Claye Corporation As a provider services. injury requires by to an that evaluation required report location within professional provider’s medical outside that Tankersley Wagoner hours. testified was the individ- injuries Claye Corporation, ual for the as required report “person responsible he was on the license as the for the listed and of the or the management [oversight] programs overall Tankersley that had no going facilities are to be licensed.” never received an prior Tuggle’s injury “injury notice of and on the incident. report” Claye Corporation scalding from the Wagoner Tuggle’s injury phone told her the events of over the a little red where the water “[Tuggle] got said him Tankersley Wagoner touched like a sunburn.” told him to take the client to the doctor. She so advised he needed doctor, took note of Tuggle because had not seen and she Tuggle’s injuries enough fact that someone felt were bad Wagoner to call the to check on him. While told her police in, bring Tuggle that the E.R. said not to she said “he needs to else somebody be seen let make determination.” burns, cousin, During following Tuggle’s the week of his Dwayne Tuggle, telling plans pick called Minor Street him to his mother’s house for a visit. up Tuggle elderly take He was told it was not a time to he good get Tuggle because burns, sunburn,” had some minor “like a and diarrhea. light Dwayne they mother decided would not pick up as planned. Dwayne they was not alarmed when said Tuggle had “a sunburn.” light family The next time the heard from Minor Street about was at the time of Tuggle’s death.
Around 1:30 to 2:00 a.m. on February Tuggle was alive at the bed check and was assisted to the restroom. He was *11 unresponsive found around 6:00 a.m. morning. The staff notified the house manager Wagoner and then called 911. notified the of Licensing Office death on Tuggle’s February 18 via facsimile. Suzuki, Gayle
Dr. the medical examiner for the and a case pathologist, performed autopsy and determined that about thirty percent of Tuggle’s body was burned and his burns were consistent -with second and third degree burns. She (bacteria testified that Tuggle’s the cause of death was sepsis blood) in growing pneumonia and resulting from the injuries thermal from immersion in scalding water. She de- scribed that the sepsis bacteria was consistent with type bacteria found on the skin. Dr. Tuggle’s Suzuki testified that pneumonia was severe. He yellow-green pus had on his lungs, and with this severe lung Tuggle condition could not have been as well off as the notes and the staff reported would —it have been nearly impossible for him to breathe.
Dr. Kevin Whaley, Examiner, Assistant Chief Medical was an in qualified expert as the field of injury, including thermal classification, and diagnosis, treatment of burns. He reviewed Dr. autopsy report. Suzuki’s He testified second and degree third burns to thirty percent of the total surface body requires automatic admission to a degree burn unit. A second it A very painful. the skin to off and third wipe
burn causes hard; the skin and it it is not degree gets painful burn “cooks” are dead. The treatment endings because the nerve condition would include fluid resuscitation Tuggle’s someone first, fighting then the risk of infection because bacteria thrive medication, A very strong pain and under dead skin. Fentanyl, Tuggle’s is used to treat for burn pain patients Neosporin definitely condition. and first aid cream are not treatments for second and third degree recommended burns. viewing photographs Tuggle, Whaley’s opinion After Dr. degree was that had third burns to his knee buttocks, cheeks, degree second burns his neck and arm, right and back. He also said that third Tuggle’s degree yellowish-white burns his knees would have looked as soon out, as it dried and it would have out dried within twelve hours burn, assuming after the no more water was to it. Dr. applied Whaley testified risk of death without treatment Initially was 100%. he testified that risk of death with treatment eighty-seven percent, based on the thirty burned percent body surface. On cross-examination defense suggested counsel a recalculation of Tuggle’s burned surface said, area. Dr. Whaley say “You could Dr. [] 18[%].” Whaley testified that eighteen percent body of the surface going burned is still to mean 100% morality without treat- ment, treatment, and with seventy- would have had a five percent twenty-five chance of death and a percent chance of survival.
Dr. Thomas Berry by the trial court as an received classification, in expert diagnosis, burns, the and treatment of and testified for the defense. Based on his review of the autopsy, he testified that only twenty percent of Tuggle’s body was burned. He also testified that did not present symptoms sepsis. opined He the pneumonia onset rapidly may may not have been related to the burns.5 Berry qualified express opinion 5. While Dr. was not an as to the death, testimony cause of the opinion cited is not an as to objected cause of death and fairly furthermore was not to and thus was
243 probably He testified that he would have recommended home/out-patient Tuggle. care for counsel made a
Wagoner’s motion strike the close evidence, the Commonwealth’s and at the close of all the jury Wagoner guilty, evidence. After the found his counsel verdict, jury made a motion to set aside the and then a motion jury to reconsider the trial court’s refusal to set aside the motions, verdict. The trial court denied all of these 6, 2012, a sentencing sentencing entered order November Wagoner years’ years to five incarceration with all five sus- period years. for a of ten pended
II. ANAYLSIS Jury A. Motion to Set Aside the Verdict that, Wagoner’s assignment first of error is The trial court erred Motion to Aside denying Set [his] Jury by decisional standard. applying wrong Verdict trial Although reviewing [Wagoner]’s court was [m]otion verdict, jury after the had returned its the trial court erroneously applied only the decisional standard intended guidance deciding a motion to strike the evidence made the conclusion of the Commonwealth’s case. In deciding [Wagoner]’s post-trial jury motion to set aside the verdict, the trial court should have reviewed evidence under the traditional standards and instructions neces- a sary support verdict.
“Today, century ago, ‘nothing as is better settled that everything than is to be in favor of presumed correctness of rulings competent jurisdiction, of a court of Commonwealth, 1, 9, jury. Wright Va.App. before the See v. (1996) ("The proper preclude party method to another any entering from ... form of inadmissible evidence is to make a Nolen, contemporaneous objection.”); see Brame v. also (1924) ("improper by 124 S.E. evidence introduced
party, unobjected by opponent, by if will be considered appellate proper (quoting court as if it were evidence” Wessel (1923))). Bargamin, 137 Va. 120 S.E. *13 244 tribunal, until the appellate in an brought
when under review ” Commonwealth, 53 Caprino Va.App. is shown.’ v. contrary (2008) 181, 184, Early 38 v. Common- (quoting 670 S.E.2d (1890)). wealth, 921, 925, “A trial 86 Va. S.E. jury’s great a verdict is entitled judgment approving court’s and will not be disturbed unless it is con- weight appeal Commonwealth, Gray trary plainly wrong.” to law (1987). Va. jury argued
In
motion to set aside the
verdict he
Wagoner’s
jury
insufficient evidence for the
to find that
there was
constituted a
cause of
proximate
his acts or omissions
pointed
In its letter
the trial court
to case law
opinion,
death.
its
that the Commonwealth’s
as
supported
ruling
evidence
a
proximate
jury question:
cause was sufficient
create
The
“substantial
of survival” should be
language
possibility
“employed
guidance
as a decisional standard for the
of trial
evidence,”
courts in
a motion to strike the
deciding
“[i]t
short,
teaches, in
that if a plaintiffs evidence has shown that
defendant’s
has
negligence
destroyed any
substantial
survival,
of the
possibility
patient’s
then there is sufficient
proximate
evidence of
cause to
to the
and a motion
go
jury,
ground
to strike the evidence on that
should be overruled.”
(1991).
467, 473-74,
Hays,
Blondel v.
The question was whether the trial court should have instructed the on the “substantial survival,” possibility and the excerpt Wagoner quotes from Blondel relates to whether the properly instructed. found, Supreme “The ‘substantial possibility standard, survival’ furnishing deciding while the criterion for *14 strike, of a designed guidance never for the motion of subject proximate law on the The well-settled jury.... which correctly expressed by jury instructions] [the cause was Blondel, 241 at 403 at Va. granted.” the court words, the use of Supreme approved In other the Court 344. deciding a trial court to use in good as law for the standard the a proper question jury regarding there is a for whether 473-74, of a Id. at 403 patient. cause of death proximate time, At warned against S.E.2d at 344. the same from court language appellate opinions indiscriminate use of jury (citing instructions. Id. 403 S.E.2d Oak Thomas, 396, 397-98, Knolls v. Va. 184 S.E.2d Realty (1971) (“We appearing have often said that statements court, authority of this while for the set opinions propositions forth, necessarily proper language jury are not instruc tions.”)). Supreme Our Court did not make a distinction a trial for a motion to between court’s “decisional standard” verdict, strike versus a motion to jury set aside the as the suggests. dissent case,
In jury this the trial court did not instruct the on possibility the “substantial of standard. As in survival” Blon del, the trial court here used the possibility substantial solely survival standard to determine whether cause proximate proper question jury. of death was a to submit to the The law is the trial regarding question the same whether court is considering a motion to strike the a jury evidence before jury receives the case or a motion to set aside a verdict. As for the trial court’s standard of review when asked to set aside evidence, jury insufficiency verdict on of the based Code standard, § provides 8.01-680 case, criminal, by jury party
When a
civil or
is tried
and a
objects
judgment
granting
to the
or action of the court in
or
refusing
grant
a new trial on a motion to set aside the
that it
jury
ground
contrary
verdict of a
on the
is
evidence, ...
judgment
of the trial court shall not be set
judg-
aside unless it
from the evidence that such
appears
it.
plainly wrong
support
ment is
or without evidence
judge’s power
The trial
to set aside a
verdict
or
plainly wrong
where the verdict is
only
“can
be exercised
it. If there is a conflict
support
credible evidence to
without
or if reasonable
testimony
point,
on a material
in their conclusions of fact to be drawn
may differ
[persons]
evidence,
if
is
on the
dependent
the conclusion
from the
testimony,
judge
the trial
cannot
given
to be
weight
jury merely
because
his conclusion for that
substitute
if
for a different verdict
he had been
he would have voted
jury.”
(2007)
Aleck,
421, 424,
641 S.E.2d
Doherty v.
Scott,
238, 240
220 Va.
(quoting Lane
(1979)).
to make a
issue
the evidence
sufficient
Where
causation,
in setting
a trial court errs
aside the
proximate
*15
429-30,
641
at 97-98.
jury’s verdict.
Id.
S.E.2d
Thus,
contrary
by
to the
taken
position
dissent,
deciding how to rule on a motion to set aside the
when
verdict,
applies
principles
a trial court
the same
jury
“A
to a motion to strike the evidence.
motion to strike
apply
whether the evidence is sufficient to submit the
challenges
Commonwealth,
187, 223,
jury.”
case to the
Lawlor v.
285 Va.
(2013).
847,
738
868
Where reasonable minds could
S.E.2d
issue,
in
on a factual
the trial court does not err
differ
Towers,
jury.
the issue to
Ravenwood
Inc. v.
submitting
(1992).
“It ...
Woodyard,
credibility
function of a
to determine the
jury
is the
weight
and the
of the evidence and to resolve all
witnesses
conflicts in the evidence.” Id.
Therefore, we are not convinced by Wagoner’s argument adopted by the dissent that there is one “decisional standard” that applies to motions to strike and a different “decisional applies standard” that to motions to set aside a verdict. Accordingly, we hold that the trial court did not an apply incorrect “decisional standard” ruling Wagoner’s motion to set aside the verdict.
B. Proximate Cause that, Wagoner’s assignment second of error is trial court erred denying Motion to Set Aside [his] [J]ury finding [V]erdict conduct was a [his] proximate cause of Tuggle’s death when the evidence showed that Tuggle had a 75% probability dying from his burns, which were not by caused [Wagoner]. The trial *16 court erred in allowing jury verdict to stand when the evidence did not establish that death would not conduct, have occurred for [Wagoner’s] but or even that Tuggle’s death was made more than probable not because of [Wagoner’s] conduct. party who comes before appellate
“[A] with a jury [an court] verdict approved by the trial court ‘occupies the most favored ” Towers, position known to the law.’ 244 Ravenwood Va. at 57, Privette, 419 (quoting Pugsley 892, S.E.2d 630 220 (1980)). 901, 69, therefore, 263 appeal, “On we must view the evidence and all reasonable inferences deducible prevailing party most favorable to the light
therefrom the However, application review the trial court’s at trial.” Id. we Webb, 319, facts de novo. Tuttle v. 284 Va. of the law to the (2012). 909, 731 S.E.2d § violating of Code 18.2- Wagoner convicted jury 369(B), who part, “Any responsible person reads in which an adult in violation of this neglects incapacitated abuses or in the death of the neglect and the abuse or results section guilty felony.” is of a Class 3 incapacitated adult a Wagoner “responsible person,” It is uncontested that thus, required prove Wagon- the Commonwealth was in” or of “resulted the death of neglect er’s abuse did not cause Tuggle. Wagoner Tug- It is uncontested injuries. that the evidence es- gle’s Wagoner burn stressed tablished that chance of survival even with treatment was, best, twenty-five percent, and there was no evidence lived with Tuggle probably would have different treat- ment. phrase ‘proximate cause’ is shorthand for the
“[T]he
policy-based judgment
contributing
that not all factual causes
injury
legally cognizable
to an
should be
causes.” CSX
—
McBride,
U.S. —, —,
Inc. v.
131 S.Ct.
Transp.,
(2011).
any
The United States Supreme
recently
Court has
interpreted
similar
in the
language
federal Controlled Substances Act that
“imposes a 20-year mandatory minimum sentence on a defen
dant who unlawfully distributes a
I
II drug,
Schedule or
when
‘death or
bodily
serious
injury results
use
such
from
”
—
States,
substance.’ Burrage v.
U.S. —, —,
United
(2014)
added)
134 S.Ct.
We neglect for the abuse or whether a victim would have lived but extreme, can person. of the On one we conceive responsible ill incapacitated in which an adult becomes or of situations fault and even injured through responsible party no of the heroic measures could not have saved the victim from prompt of the actions or inaction regardless death. Death was certain scenario, Clearly, responsi- of the this responsible party. qualify failure to act would not as a cause of the party’s ble injured ill It could not be said that the or victim’s death. might would have or even have lived but for the party act. no of fact party’s question failure to There is responsible for the on causation this scenario. extreme,
At equally imagine the other we can an incapaci- tated adult who suffers from diabetes and receives a minor foot, injury example. small abrasion on the The abra- —a sion, treated, if would properly life-threatening not be However, injury. abrasion becomes infected when it is untreated. patient develops gangrene, left which is also untreated, ultimately consequences left dies from medical scenario, traceable small initially to the abrasion. In this any actions inactions of was a responsible person theoreti- cal “but for” the injured cause of victim’s death: adult almost certainly responsible would have lived but for the scenario, failure party’s appropriately. to act In this even though clear, the legal culpability would seem to it be remains *19 question of fact jury for the on causation.
The facts of this fall posited case between the two extremes above, and create a quintessential jury question. Dr. Suzuki testified that thirty percent of Tuggle’s body was burned with second and degree third burns and that his cause of death was sepsis and pneumonia from resulting injuries. these thermal Whaley treatment, Dr. testified that without Tuggle’s risk of treatment, death was 100%. With had a Tuggle thirteen to twenty-five percent chance of survival. Dr. Berry testified that did appear not to have and his sepsis, pneumonia onset or rapidly may may not have been related to the injuries. burn Berry Dr. also probably testified that he would have out-patient recommended care for Tuggle. conflicting
This a question evidence creates of fact as whether Tuggle would have lived for Wagoner’s but calling Tuggle back to Minor Street his trip from to the hospital and ongoing his failure to seek medical professional treatment for province him. It is the of jury weigh the “to the facts and to judge credibility the lay the various and expert 465, 470, witnesses.” Commonwealth v. Va. Presley, 256 507 (1998). 72, jury reject S.E.2d 75 A may a witness’ testimony part Commonwealth, and accept part. Hopkins it in 230 (1985). 264, Here, Va. jury the entitled believe Dr. Whaley’s testimony had a to conclude that of survival and percent chance twenty-five Wagoner sought professional had have lived Tuggle would per twenty-five find that a for him. We medical treatment question take the of survival is sufficient to chance cent Wagoner’s survived absent ne Tuggle would have whether conjecture, speculation, mere “out of realm of glect inference,” making thus realm legitimate into the Jones, Beale v. ripe jury. for question submission (1970) Hawkins v. (quoting (1937)). 561, 191 Beecham, 168Va. S.E. Dr. Berry’s was entitled to believe Alternatively, jury outpatient only required some testimony Tuggle’s wounds Tuggle’s jury infer testimony care. From this could Taken with life-threatening not themselves. wounds were could infer that these non-life- testimony, Dr. Suzuki’s injuries by professional threatening left untreated a medical Thus, the jury and led to his pneumonia resulted death. have occurred have found that death would not could actions, to the staff to Wagoner’s namely for directions but Street en route bring Tuggle back to Minor while at the home keep Tuggle and his decision to even hospital, that he saw himself the serious- there evidence though ness of burns. Hall, Hall v. respect
“Great is accorded verdict.” *20 (1990). 829, The 240 Va. 397 S.E .2d “time- in deciding standard” that a court must wheth apply honored a is: approve er to verdict testimony on a or if point,
“If there is conflict of material may men to the conclu- reasonably differ as [fair minded] evidence, from if of fact drawn the or the sions to be given is the to be the dependent upon weight conclusion in all cases the of the is final testimony, such verdict by the trial and conclusive and cannot be disturbed either court, by this if the trial by improperly court or set aside court, by it will this court.” be reinstated Co., v. S. Cotton 130 Va. (quoting Id. Forbes & Co. Oil (1921)). in Based on the evidence this 108 S.E. case, we find that fair men minded and women could differ as to Wagoner’s whether actions inactions constituted and/or death, in neglect resulted thus trial court properly question submitted the to jury.
Wagoner argues that the Commonwealth must have a proved probability Tuggle would have survived with treatment, words, different or in greater other a than fifty percent chance of survival. We do not If agree. only evidence in this case was Dr. Whaley’s testimony only survival, had a twenty-five percent chance a of could Wagoner’s find that act calling of back while en route hospital by failure correct his action seeking professional medical treatment hastened death twenty-five destroyed percent of It chance survival. would 18.2-369(B) § defeat the of purpose Code Wagoner relieve liability of criminal only because Tuggle fifty- did not have a percent one chance of survival.
Further, Wagoner’s position
not
in Virginia
founded
Virginia
law.
law6
case
does not hold that the Commonwealth
must
prove
probability
greater
fifty
of
than
percent chance
of the victim’s survival absent the
neglect
defendant’s
order
a jury
proximate
create
question
cause of death. While
Supreme
Blondel
against including
advised
substantial possibility
instructions,
of survival in jury
it af
firmed that the law of Virginia is that
is at
where there
least a
possibility
survival,
substantial
proximate causation of
Blondel,
a question
472-73,
death is
jury.
atVa.
“substantial of survival” to a “probability” surviv- al and common suggests sense that a “substantial possibility” is somewhat of a quantification less than a “probability.” emphatically, “[0]ur decisions have stated medical malprac- 6. principles proximate "Established applicable are causation in both Commonwealth, civil and criminal cases.” Brown v. *21 43, (2009). 685 S.E.2d 46
254 de- cases, physician’s a defendant tice-wrongful death surviv- patient’s of the ‘any possibility of substantial struction ” Id. at death.’ patient’s cause of the al’ ‘a proximate at 343. inac- action or negligent physician’s surgeon’s a “When survival, chance of person’s terminated a effectively has tion conjectures as to possible raise not be to permitted he will If realization. put beyond that he has for survival chances and the of survival possibility substantial any there was it it, Rarely is destroyed he is answerable. has defendant certainty what would to an to demonstrate absolute possible law had taken. The if certain actions been happened have to a show require plaintiff in all circumstances a does not have had he been would lived certainty patient that a on promptly.” operated v. Whittaker
Id. (quoting
S.E.2d
Whitfield
(1969)).
176, 184,
Hosp., 210 Va.
568-69
Mem.
S.E.2d
Koulizakis,
in Brown v.
229 Va.
Supreme
also held
Court
(1985),
case, if a
“in a death
inaction,
destroyed any
has
by action or
physician,
defendant
survival, such
of
conduct
possibility
patient’s
substantial
cause
death.”
proximate
patient’s
becomes a
of
States,
(4th
Cir.2000), v.
Murray
United
cian’s action of cause proximate of the survival’ patient’s possibility death.”). patient’s cases there was evidence Virginia in the above cited
While fifty chance survival absent percent of a than greater that a has not said Supreme Court negligence, defendant’s required to find chance of survival is fifty percent than greater did Supreme of survival.” possibility a “substantial possibility the “substantial any into discussion about not enter any “probability survival” of survival” equating *23 repeatedly the “substantial cases cite Virginia these cases. “possibility.” the qualifying of without possibility survival” reasons, reject of error as assignment For we this these well. Neglect
C. Willful is, assignment of final error Wagoner’s Motion to Set denying [Wagoner’s] trial court erred in The failed to establish the Verdict when the evidence Jury Aside knowledge a willful act with and [Wagoner] that committed Tuggle, or would result to injury that death consciousness 18.2-369(B). clearly § The evidence as required by [Code] staff [Wagoner] and all other administrative established that consistently by caregivers was were told by hospital phar- and receiving care recommended the the improving. and his condition macy factual conclusions with jury’s This Court must review deference, to the deferring highest degree appellate testimony, in to resolve conflicts jury’s responsibility evidence, from to draw reasonable inferences weigh the and Commonwealth, Ervin v. 57 basic facts ultimate facts. (2011). 495, 502-03, 704 138-39 Va.App. meaning “neglect” as to the and jury was instructed “ ‘Neglect’ knowing means the “willful.” Instruction 15 read: by person provide treat- responsible and willful failure care, injury to the ment, goods or which results services endangers or of an safety incapacitated health adult.” Instruction 17 read: must knowing
“Willful” describes conduct that be inten- tional, accidental, than justi- rather and undertaken without excuse, ground believing fiable without the conduct is lawful, or with a purpose. contemplates bad “Willful” an intentional, act purposeful or omission the care of an incapacitated adult one by for that adult’s responsible care. These for “neglect” instructions state the definition exact- § it ly as is found Code 18.2-369. The instruction for Commonwealth, “willful” is taken verbatim from Correll v. 12-13, (2005), Supreme where the this trial affirmed Court and the court’s conclusions knowingly willfully defendant neglected incapaci- her tated mother and thus affirmed her conviction under Code § 18.2-369.
Wagoner Commonwealth, cites Shanklin Va.App. (2009), neglect S.E.2d 577 a child appel- case where the lant’s conviction was reversed because this Court found the evidence did not show that recognized severity she of the injuries willfully child’s disregarded importance obtaining medical assistance. Id. S.E.2d at 580. *24 The child had prior been burned to at arriving appellant’s the home. The child’s degree second burns had been by treated his parents with ointment and then with wrapped gauze and with tape. secured duct Appellant was told the child had However, some burns in hot playing from water. the wounds completely were so appellant bound that could see not the injuries extent the child and did not show any signs of 690, discomfort. Id. 674 at 580. S.E.2d Commonwealth, This case is more akin to Flowers v. 49 241, 248-50, (2007), Va.App. 639 S.E.2d where this appellant’s Court felony neglect, affirmed conviction for child finding that that supported the evidence Flowers willful- acted ly in to neglecting seek medical care for the child. “[E]ven though Flowers that believed the children had taken some- and thing they attention, that needed immediate medical she action to secure any prompt other call 911 or to take
failed to at 317. S.E.2d Id. at for the child.” medical attention father who lived call the child’s hours to three She waited from he refrain that requested and away, some distance hoopla.” “any mother avoid police or the child’s calling the circumstances, a reasonable fact totality of the Id. the Under and “actions deliberate appellant’s that the finder could find “ child at risk of the placing situation inaction” ‘created ” (quoting at 317 harm.’ Id. physical actual Commonwealth, Barrett (2004)). Thus, the trial court’s classifi affirmed omission” for conduct as “willful appellant’s
cation of 18.2-371.1(B)(1). Id. § of Code purposes Shanklin, in case was present Wagoner in Unlike Tuggle about twelve hours after view burns Tuggle’s able to Flowers, entitled Like was injuries. sustained Tuggle severely knew that Wagoner that believe burned, Tuggle seek treatment for order proper but did not consequences. Collins testified personal to avoid undesirable stood morning February staff members that on was not Wagoner Tuggle wearing and Tuggle up front clothes, Tuggle’s could see all of indicating Wagoner that “very he Tuggle’s “in when saw burns. Collins was shock” was no flesh on the back He described that there bad” burns. him, head, his hair was melted there were of Tuggle’s looked like Tuggle to his feet. He also noted that burns down hurting. he was lifted to his Tuggle’s up t-shirt was
Baker testified inspect Tuggle’s so could wounds Wagoner shoulders peeled skin had away. red and the really skin was that he enough A. burns were bad decided Kenny morning. hospital to the should send and to testimony of these witnesses was entitled believe very had severe infer also saw that Wagoner type injury. Epley also burns, and not a minor “sunburn” *25 February on was that the situation at Minor Street testified everybody talking and was once. overwhelming chaotic and jury testimony The infer from her employees could that the present thought significant injury had occurred and their chaotic concern fueled a environment.
Then there is the evidence that Wagoner recalled the van as transporting it was Tuggle hospital February 9 so he could take a look at Tuggle. Wagoner looked at and in then sat privacy Epley’s expressed car and concern that Social going investigate Services was them. Collins saw from a distance that Wagoner upset agitated acted and in Epley the car. Later the same twice day, encouraged Wagon- report er to the incident but he not report Tuggle’s did injuries to of Licensing the Office until seven later days and only police because the made a wellness check on Tuggle. jury was entitled to consider all of these circumstances Wagoner and could infer that decided not to professional seek in medical care for order to investigation avoid and to protect his self jury own interests. The was entitled to disregard Wagoner’s story thought that he Tuggle only had a injury minor and that he relied on the advice Tarpley relayed pharmacist from a hospital at the someone who had never observed wounds. The also entitled to that Wagoner consider knew his employees, upon whom he condition, relied him on educate did have any not advanced burn training. the totality Given of the circum- stances, a reasonable fact finder could Wagoner conclude that purposefully willfully failing acted to seek professional Tuggle. medical care for
III. CONCLUSION reasons, For the we foregoing hold that the trial court did not err denying Wagoner’s motion to set aside the verdict.
Affirmed.
HUFF, J., dissenting, part. 1)
I respectfully dissent because the standard articulated by the trial court denying appellant’s when motion set aside
260 rejected by that was the standard very verdict was the 467, 473-74, Hays, v. 241 in Blondel Va. Court Supreme the the (1991), statement of 340, an incorrect 344 as 403 S.E.2d 2) Commonwealth, and the in cause the proximate law of and neglect abuse appellant’s determination jury’s “ wrong ‘plainly [and] in death resulted ” Aleck, it,’ Doherty v. support evidence to without credible v. (2007) (quoting Lane 93, 424, 421, 94 641 S.E.2d 273 Va. (1979)). 238, Scott, 578, 581, 240 Conse- 260 220 Va. S.E.2d in an applying court erred I hold that the trial quently, would to, denying, appellant’s in subsequently and incorrect standard jury’s the verdict. motion to set aside 18.2-369(B) “[a]ny responsible person § provides Code in violation of an adult neglects incapacitated or who abuses in the death of neglect the abuse or results this section and felony.” It is is of a Class 3 guilty adult incapacitated “responsible person” is a under appellant uncontested that Thus, jury’s is appeal the issue on whether statute. in” neglect abuse or appellant’s “resulted] determination that evidence. Code supported by death is credible 18.2-369(B). § observation, majority’s
I with the based the United agree States, v. opinion Burrage United in Court’s Supreme States — (2014), U.S. —, 881, 715 that the 134 S.Ct. 187 L.Ed.2d § death,” as it is used in Code 18.2- phrase, “results in the 269(B), equivalent “proximately causes is functional cause quoted proximate “A definition of frequently death.”8 Burrage distinguished Supreme 8. States Court in While United proximate “legal cause called [often cause” between “actual only language went on to address the "results from” then cause]” 887-88, cause, U.S. at —, — 134 S.Ct. at the context actual in legal are in the national nomenclature as "there inconsistencies proximate be a of cause, cause is considered to subset [actual cause] whether cause], proximate together in ... [actual whether addition Boomer, legal v. Va. n. Ford Motor Co. 285 151 create cause.” indicated, (2013). Supreme has n. 2 Our 728 however, widely ... is the more used that “the former nomenclature terminology Virginia....” Consequently, the United States Su- Id. ‘which, that it is a cause natural and continuous sequence produces injury, ... and without the result which would ” Simms, 808, 816-17, not have occurred.’ v. Scott (1949). of proximate “[T]he S.E.2d first element cause, fact, causation in is often described as the ‘but for’ Boomer, rule.” Ford Motor Co. 285 Va. (2013). cause,” A “but-for which is “[a]lso cause; fact; actual cause,”
termed cause factual is a [and] “cause without which the event have could not occurred.” *27 (9th ed.2009). Law Dictionary Black’s In present the case, above, the well-settled of principles proximate cause in Virginia accurately were reflected in Jury Instruction No. provided proximate which cause of death is a “[a] cause that, in natural and continuous sequence, results death. It ais cause without the which death would not have occurred.” added).9 (Emphasis
Rule 3A:15 the applied establishes standards to be by a trial court when a considering motion to a strike and motion to set a jury aside In pertinent verdict. part, the standard is the same for both motions—whether “the evidence is sufficient as a matter of (b). law to a 3A:15(a), sustain conviction.” Rule Indeed, as majority points out, the under this standard and § Code 8.01-680 the trial court “shall set not aside [a verdict] unless it from appears the evidence that such judg- ment is plainly or wrong without to support evidence it.”
“If there is a conflict the material testimony point, on a if reasonable [persons] may differ in their conclusions of fact to be evidence, drawn from the or if the conclusion is dependent on weight given be testimony, the trial judge cannot substitute his conclusion for that of the jury preme analysis Burrage applicable Court's of actual cause in to our analysis proximate present causation in the case. notes, thus, majority 9. As the this instruction was uncontested and at a minimum, Owens-Illinois, is the law of the case. Inc. v. Thomas Baker Estate, Ltd., (1989) Real Va. 379 S.E.2d ("instructions given objection without become the law of the case and thereby parties review”). bind in the trial court Court and this verdict voted for different would have he merely because jury.” on the if he had been Lane, (quoting at 94 641 S.E.2d at
Doherty, 273 Va. 240). at 260 S.E.2d insuffi- evidence as motion to strike the considering a When case, in a death wrongful cause proximate to establish cient “guid- additional provided has however, Supreme in Rule established the standard beyond courts ance” to trial 473-74, at 344. 3A:15(a). Blondel, 241 Va. that when Court stated Supreme Specifically, ..., if plaintiffs strike the evidence a motion to deciding has negligence the defendant’s shown evidence has surviv- patient’s possibility substantial destroyed any go cause to proximate al, is sufficient evidence then there on that the evidence motion to strike jury, and a be overruled. ground should added). Considering (emphasis at 344 Id. at case, at the motion present in the guidance this additional treatment, that without the evidence established stage, strike from his burns. With dying a 100% chance of had twenty- however, had a thirteen to treatment, he would have *28 appellant when Consequently, chance of survival. percent five a destroyed he hospital, to the not to send decided Thus, the trial of survival. possibility substantial as to strike the evidence motion appellant’s court denied the issue to cause and sent proximate to establish insufficient jury. Blondel, however, explain Court went Supreme “ standard, while of possibility survival’ substantial ‘[t]he strike, deciding a motion the criterion for furnishing at guidance jury.” of Va. designed for never possibility This is because “substantial at 344. in the cause proximate is not the law standard survival” (“Courts 474-75, in a at 344 Id. at 403 S.E.2d Commonwealth. adopted have the ‘substantial jurisdictions of other number ..., jury instructions [but] standard of survival’ possibility see also policy.”); of that of the wisdom persuaded we are not Commonwealth, Cooper Va.App. 345 S.E.2d (1986) (jury reflect “the law accurately instructions must added)). of the case applicable the facts” (emphasis Rath- er, it is to “employed be as a decisional standard for the guidance of trial courts deciding motion to strike the evidence” as insufficient to establish proximate cause in Blondel, wrongful death 473-74, cases. 241 Va. at added). at 344 (emphasis words, In other once a case makes it past the motion to stage, strike the jury’s function is to decide the issue of “proximate cause” according to the Com- law,” monwealth’s “well-settled not according to whether a substantial possibility Id. of survival was destroyed. 403 S.E.2d at Supreme 344. Our Court did not intend for the “substantial possibility of survival” standard to be applied when considering a motion to set a jury aside verdict for lack cause, of proximate as the majority suggests.
Consequently, when considering a motion to set
jury
aside a
proximate
death,
verdict
for lack of
cause of
a trial court
should not seek to determine whether the evidence established
that a substantial possibility of a victim’s survival was de-
rather,
stroyed, but
it should seek only to determine whether
“the evidence is insufficient as a matter
law to sustain a
3A:15(b)
added).
conviction.” Rule
(emphasis
Accordingly,
when considering appellant’s motion to set
aside the
case,
verdict
the present
the trial court should have consid-
ered the well-settled law of proximate cause in the Common-
wealth, and then asked
jury’s
whether the
determination that
appellant’s
neglect
abuse or
proximately caused Tuggle’s
“
death was
‘plainly wrong or without credible evidence to
”
it.’ Doherty, support
the v. Whittaker (1985), 229 Va. 331 S.E.2d Whitfield (1969), in which the Hosp., Mem. 210 Va. incorrectly striking plaintiff’s reversed for trial courts were Blondel, at The 403 S.E.2d 344. evidence. standard, however, was of survival” possibility “substantial of as an incorrect statement Supreme the rejected by Id. 474-75, at 344 cause. proximate the law of (“Courts the jurisdictions adopted other have in a number of jury instruc- of survival’ standard possibility ‘substantial ..., of the wisdom of persuaded we are not tions [but] policy.”). verdict, jury appro- a
In
a motion to set aside
deciding
a
evidence is insufficient as
is whether “the
priate inquiry
3A:15(b) (empha-
law to sustain a conviction.”
Rule
matter of
added).
was sufficient to
whether
the evidence
Deciding
sis
verdict,
law, requires
as a matter of
support
jury’s
case,
law—in this
on the issue
apply
trial court to
the correct
appears
That
not to have been done.
proximate
causation.11
appellant’s
that when considering
I would hold
Accordingly,
verdict,
by
trial
jury
court erred
motion to set aside
only
“guidance”
standard intended
as
applying a decisional
to strike the evidence.
motion
a
deciding
when
Wagoner's act
majority's suggestion that "a
could find that
10. hospital
calling Tuggle back while en route to the
and failure to
by seeking professional
action
medical treatment hastened
correct his
destroyed
twenty-five percent
Tuggle's death and
chance
surviv-
applying
possibility of surviv-
al'' also has the effect of
the "substantial
Virginia.
proximate cause in
al" standard as the law of
deciding
Although
language
11.
the same
is used in Rule 3A:15 for
verdict,
the evidence and a motion to set aside
motion to strike
Court, Blondel,
guidance
Supreme
provided additional
for a trial
has
considering
apply in
a motion to strike the evidence on
court to
actions,
473-74,
proximate
in death
241 Va. at
issue of
cause
jury.
favoring
of such cases to the
This
S.E.2d at
submission
proxi-
guidance
change the
law of
additional
does not
Commonwealth's
therefore does not lessen the standard for consider-
mate causation and
ing
a motion to set aside a
verdict.
*30
I
in denying
would further hold that
the trial court erred
jury’s
the motion to set aside the
verdict because the
appellant’s
neglect
determination that
abuse or
of
was
“
Tuggle’s
‘plainly wrong
a
cause of
death was
proximate
[and]
”
Doherty,
support
without credible evidence to
it.’
273 Va. at
Lane,
The facts of the case present are similar to the majority’s hypothetical example of an incapacitated adult who ill becomes injured or through no fault of the responsible party, and the or “prompt heroic measures” of responsible party would not notes, save the victim from death. majority As the in this scenario, the responsible party’s inaction would not qualify as a proximate cause of the victim’s death. Similarly, case, present no evidence was presented upon which a jury could base its verdict appellant’s neglect abuse awas I, proximate therefore, cause of death. would hold that respectfully suggest majority 12. I that the extent to which the relies on death, Berry’s testimony, regarding Tuggle's Dr. cause of as evidence to support jury's misplaced determination is because the trial court qualify Berry expert pathology, declined to holding as an in forensic Berry express opinion that "Dr. cannot an as to cause of death because expertise.” that is outside area Tug- neglect abuse or appellant’s determination jury’s unsupported, death cause proximate was a gle reasons, I respectfully foregoing For the a matter of law. as dissent.13 *31 SERVICES, INC., HEALTH
1ST STOP Stop Home Care 1st d/b/a ASSISTANCE DEPARTMENT OF MEDICAL SERVICES, Cynthia Jones, Director. B. 1418-13-4.
Record No. Virginia, Appeals
Alexandria.
April 2014. assignment majority appellant’s third with the as to 13. I do not differ error, reaching although without that issue. I would reverse