Opinion
Case No.: CL14-6942
05-18-2016
JANE DOE, Plaintiff, v. VIRGINIA WESLEYAN COLLEGE, Defendant/Third-Party Plaintiff, v. ROBERT ROE, Third-Party Defendant.
OPINION AND ORDER
Plaintiff Jane Doe ("Doe"), Defendant/Third-Party Plaintiff Virginia Wesleyan College ("VWC"), and Third-Party Defendant Robert Roe ("Roe") appeared before the Court telephonically on May 13, 2016, for a hearing (the "Hearing") requesting clarification of the Court's prior ruling denying Doe's Eighteenth Motion in Limine seeking to exclude certain August 28, 2012, Facebook message postings between Doe and a third party, in which Doe appears to relay facts or circumstances about the August 24, 2012, incident that is the subject of this personal injury suit. See January 12, 2016, Order.
Specifically, although the parties agree that the Facebook messages posted by Doe (the "Facebook Messages") can be used for impeachment during cross examination of Doe, VWC and Roe desire to use the Facebook Messages in their cases in chief and during their opening statements. After hearing from the parties during the telephonic hearing, the Court ruled that VWC and Roe were precluded from using the Facebook Messages in their cases in chief and during their opening statements. The Court nevertheless invited the parties to submit any additional precedential authorities or case law that addressed the issue, whereupon the Court would consider amending its ruling.
Having reviewed the cases cited by Roe—both in his "Memorandum in Opposition to Plaintiff's Objections to the Use of Plaintiff's August 28, 2012 Facebook Messages as Exhibit at Trial" and "Memorandum in Support of the Admissibility of Doe's August 28, 2012 Facebook Messages in Roe's and VWC's Cases-in-Chief and their Attendant Right to Reference the Facebook Messages in their Opening Statements"—and consulted other legal authorities, the Court does not amend its ruling.
VWC and Roe listed the Facebook Messages on their respective trial exhibit lists, and the Court assumes for purposes of this ruling that the Facebook Messages are relevant, can be properly authenticated, and in fact were authored by Doe.
Rule 2-613(b) of the Rules of Supreme Court of Virginia states, in pertinent part:
(i) General rule. [A] witness may be cross-examined as to previous statements made by the witness in writing or reduced to writing, relating to the subject matter of the action, without such writing being shown to the witness . . . .
. . . .
(ii) Personal Injury or Wrongful Death Cases. Notwithstanding the general principles stated in this subpart (b), in an action to recover for a personal injury or death or wrongful death, no ex parte affidavit or statement in writing other than a deposition, after due notice, of a witness . . . as to the facts or circumstances attending the wrongful act or neglect complained of, shall be used to contradict such witness in the case.
Although the Virginia Rules of Evidence did not become effective until 2012, they were "adopted to implement established principles under the common law and not to change any established case law rendered prior to the adoption of the Rules." Va. Sup. Ct. R. 2:102. In case law that preexisted the Rules, the Virginia Supreme Court explained the purpose of the current subpart dealing with personal injury and wrongful death cases (the "Exclusion Provision") as follows:
The purpose of the addition to the statute was to correct an unfair practice which had developed, by which claim adjusters would hasten to the scene of an accident
and obtain written statements from all eye-witnesses. Frequently, these statements were neither full nor correct and were signed by persons who had not fully recovered from shock and hence were not in full possession of their faculties. Later, such persons, when testifying as witnesses, would be confronted with their signed statements and, after admitting their signatures, these statements would be introduced in evidence as impeachment of their testimony given on the witness stand.Gray v. Rhoads, 268 Va. 81, 87, 597 S.E.2d 93, 97 (2004) (quoting Harris v. Harrington, 180 Va. 210, 220, 22 S.E.2d 13, 17 (1942)) (interpreting Va. Code § 8.01-404).
The Court in Harris clarified the scope of the Exclusion Provision as follows:
The statute was intended to correct these abuses, and to this extent it is a modification of the rule as to best evidence, but it was never intended to prohibit the proof of prior inconsistent statements by oral testimony. . . . Clearly it was the intention of the 1919 Code Revisors to permit the jury to determine the truth of the matter under investigation from an oral examination of the witness on the stand, uninfluenced by an ex parte written statement prepared by an interested party for the purpose of introducing it in evidence.Harrington, 180 Va. at 220, 22 S.E.2d at 17.
The Facebook Messages undoubtedly are written statements. They also clearly relate to "the facts or circumstances attending the wrongful act or neglect complained of." The Rule does not include any temporal limits, e.g., that the written statement be made at the time of the incident, and the Rule in fact includes an exception for deposition testimony, which normally occurs well after the incident. The Court therefore finds that the Facebook Messages come within the four corners of the Exclusion Provision.
Although several cases cited by Roe initially seem to support his position that the Facebook Messages are admissible during VWC's and his case in chief and during their opening statements, upon closer examination the Court concludes otherwise.
Gray v. Rhoads initially appears to stand for the proposition that the Exclusion Provision does not apply to party admissions, as Roe asserts. 268 Va. 81, 597 S.E.2d 93. However, in Rhoads the party admissions were statements made by a party to police officers, who prepared written statements, at the scene of the accident. Id. at 85, 597 S.E.2d at 96. Although the court held that written statements were admissible as party admissions, the court's ruling was based on its analysis that the statements were not being used to "contradict" the witnesses who recorded the statements, i.e., the police officers; as the court noted, the police officers had not yet testified, and might never testify. Id. at 89, 597 S.E.2d at 98. Here, Roe seeks to use Doe's own written statements to contradict Doe, which would be using the written statements to contradict the testifying witness. As pointed out in the strongly worded dissent, "The majority concedes, as it must, that the statements could not be used to contradict witnesses in the trial." Id. at 90, 597 S.E.2d at 99 (Stephenson, J., dissenting).
Scott v. Greater Richmond Transit Co. initially appears to stand for the proposition that a written statement that is neither signed by the witness nor in the witness's handwriting does not come within the Exclusion Provision. 241 Va. 300, 402 S.E.2d 214 (1991). There, the Court found that prior cases applying the Exclusion Provision—with one possible exception, which it specifically went on to overrule—involved written statements that were either signed by the witness or in his handwriting, as opposed to statements written down by a third party. Id. at 303-04, 402 S.E.2d at 217. In other words, the signature or handwriting is an indicium that the witness had authored or adopted the written statement, bringing the writing within the Exclusion Provision, which exists "to permit the jury to determine the truth of the matter under investigation from an oral examination of the witness on the stand, uninfluenced by an ex parte written statement." Va. Sup. Ct. R. 2:613(b)(ii). Here, it is undisputed that Doe authored the Facebook Messages, making them the equivalent of a written statement signed by Doe or in her handwriting.
The proper application of the Exclusion Provision is demonstrated in Ruhlin v. Samaan. 282 Va. 371, 718 S.E.2d 447 (2011). There, Plaintiff provided a statement to Defendant's insurance company, which was reduced to writing. Id. at 374, 718 S.E.2d at 448. Defendant sought to impeach Plaintiff with the written statement when Plaintiff described additional injuries at trial. Id. at 375-76, 718 S.E.2d at 448-49. The Court held that the Exclusion Provision did not prohibit proof of prior inconsistent statements by oral testimony and cross examination. Id. at 378-79, 718 S.E.2d at 450-51; see also Harrington, 180 Va. at 220, 22 S.E.2d at 17. ("[The Exclusion Provision] was never intended to prohibit the proof of prior inconsistent statements by oral testimony."). Additionally, the court held that the written statement could be used to refresh the witness's recollection because such use does not "contradict" the witness's testimony. Ruhlin, 282 Va. at 379-80, 718 S.E.2d at 451.
Similarly, here the Court finds that VWC and/or Roe may use the Facebook Messages as proof of prior inconsistent statements via oral testimony and cross examination, and to refresh Doe's memory if necessary. VWC and Roe may not introduce the Facebook Messages into evidence, use them in their cases in chief, or mention them during their opening statements.
Any objections to this Order shall be submitted to the Court within fourteen days. Endorsements are waived pursuant to Rule 1:13. The Clerk shall mail (or e-mail) copies of this Order to all counsel of record.
IT IS SO ORDERED this 18th day of May, 2016.
/s/_________
David W. Lannetti
Circuit Court Judge