I’m still trying to wrap my head around SCOVA’s recent opinion in Lucas v. Riverhill Poultry, Inc.
Lucas seems to say that a plaintiff who fails to move the trial court to reconsider an interlocutory ruling has waived the issue for appeal.
That strikes me as patently wrong–and not in an academic way, but in a way that will cause real-world problems.
So I’m going to try to work my way through this. Follow along and tell me what I’m missing.
Lucas follows a defense verdict in a motor-vehicle-accident case. A farm-use truck owned by Riverhill Poultry ran off I-81, killing its two occupants, Lucas and Hilliard. Lucas was found outside the vehicle. Hilliard was found in its cab with his hand on the steering wheel. Hilliard worked for Riverhill, and Lucas was his “friend and neighbor.”
Lucas’s personal representative sued both Riverhill and Hilliard’s personal representative. She argued that Hilliard was driving the truck, while the defendants insisted that Lucas was the driver. (Based on these two paragraphs alone, I have . . . questions? . . . about this theory of the case. But the defense lawyers involved are both very good–and both straight shooters–so who knows.)
The plaintiff’s theory of the case was that Hilliard fell asleep at the wheel. She wanted to support this with evidence that he had a sleeping disorder and, at the time of his death, had drugs in his system that could cause drowsiness. All that seems reasonable enough.
Or at least it did until the circuit court gutted the plaintiff’s case at a pretrial hearing by excluding her expert testimony from (deep breath) the medical examiner, Hilliard’s family doctor, a neurologist, and a trucking-safety professional. For good measure, the court also tossed portions of the autopsy report on Hilliard. And at trial, the circuit court refused to instruct the jury that a person who falls asleep while driving is negligent.
Somewhat unsurprisingly, the plaintiff lost at trial. She had the good sense to proffer the excluded evidence. Then she appealed.
SCOVA affirmed. There’s some stuff in the opinion that I agree with, some that I don’t, and some that I find totally incomprehensible.
Let’s focus on that last category: Hilliard’s family physician testified that Hilliard complained of insomnia, sleep disturbances, depression, and fatigue. The results of his sleep study were abnormal. That seems useful! (Especially in connection with the excluded evidence “that some of the medications found in Hilliard’s blood were drowsiness-inducing medications typically taken as sleep aids.”).
The circuit court excluded this testimony before trial, finding it “too attenuated,” but said that its ruling was “without prejudice to [Lucas] . . . moving the Court to reconsider its ruling based on developments at trial.”
Lucas proffered the doctor’s testimony but did not move to reconsider. SCOVA held on appeal that she had thus waived the appeal point.
That cannot be right. I want to give the opinion a fair shake, so I’m going to quote the whole section:
The circuit court ruled that Dr. King’s testimony was inadmissible at the time of the pre- trial hearing because it was “too attenuated,” but its ruling was “without prejudice to [Lucas], by counsel, moving the Court to reconsider its ruling based on developments at trial.”
Although the Administrator contends that the circuit court abused its discretion in excluding Dr. King’s testimony, we conclude that she has waived this argument. Rule 5:25. The circuit court’s ruling to exclude Dr. King’s testimony was without prejudice to a motion for reconsideration based on developments at trial. The Administrator proffered Dr. King’s testimony at the outset of the trial; however, she did not move the court for reconsideration during the trial in accordance with the court’s preliminary ruling. See, e.g., Wal-Mart Stores E., LP v. State Corp. Comm’n, 299 Va. 57, 76 (2020) (observing that “[a] motion to reconsider ordinarily asks a court to reconsider a holding because, in the opinion of the movant, the holding was erroneous”). Therefore, the Administrator deprived the circuit court of an opportunity to make a final ruling on the admissibility of Dr. King’s testimony in light of the evidence presented at trial and we will not consider the challenged ruling as a basis for reversal on appeal. See Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 526 (2006) (finding that if the circuit court is not afforded the opportunity to address an issue there is no ruling on that issue and, thus, no basis for review or action by this Court); Wal-Mart Stores, 299 Va. at 76-77 (concluding that a motion for reconsideration “may . . . challenge a tribunal’s failure to rule on an issue properly presented to it, particularly a timely but unadjudicated lesser-included claim,” but that it may not “request to consider for the first time something the movant had never before specifically sought”).
As I read this, the notion that the circuit court granted the defense motion without prejudice to a motion to reconsider is doing a lot of work. (The bit about “based on developments at trial” is a red herring because there is no hint that any such developments came to pass.)
The problem is that every interlocutory ruling comes without prejudice to a later motion to reconsider. That’s what makes it interlocutory instead of final. There was nothing special about the circuit court’s ruling here.
So if we take Lucas‘s reasoning seriously, to preserve a point for appeal on any pretrial ruling, we need to object at the time of the ruling, then move to reconsider at trial.
That’s not the law. We know that it’s not the law, because Code § 8.01-384 tells us that we only have to raise an argument once to preserve it. Code § 8.01-384(a) (“[F]or all purposes for which an exception has heretofore been necessary, it shall be sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objections to the action of the court and his grounds therefor . . .”).
We also know it’s not the law because it would be totally unworkable: A litigant cannot meaningfully move to reconsider every adverse pretrial ruling at trial; she’d either have to throw in a formulaic “and we ask the court to reconsider all its adverse pretrial rulings,” which wouldn’t give the trial court a fair chance to rule intelligently on anything, or read a multipage script and watch the proceedings grind to a halt.
Layered on top of that, as Steve Emmert points out, is another practical problem: What exactly was supposed to happen if the court had granted the motion to reconsider? Then the plaintiff would have had a few hours to track down a witness and put her on the stand; the defense would have been surprised by an unexpected witness; one or both sides likely would have moved for a continuance. That seems suboptimal.
Also, consider that Lucas doesn’t tell us how many times we have to move to reconsider. It seems like “developments at trial” could occur during the plaintiff’s case in chief, the defense case, or the plaintiff’s rebuttal. Do we need to move three times? And the court’s ruling on the motion to reconsider will itself be an interlocutory. Do we need to move to reconsider that one, too? The answer has to be “no,” but there’s nothing in Lucas that can fairly be read to say so.
More to the point: After reading Lucas, a trial lawyer who has a strong point that she wants to preserve for appeal will have no idea what she needs to do to avoid this new waiver rule (and a later malpractice action).
Brother Emmert calls this a “thermonuclear waiver ruling.” I don’t think he’s wrong; frankly, I think Lucas is a mess and I hope the Court cleans it up soon.