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 restated 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. 

13
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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