COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Malveaux and Fulton

VINCENT COLBERT

MEMORANDUM OPINION*

v. Record No. 1458-22-4 PER CURIAM

MAY 9, 2023

MARTRELL SPAIGHT

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Richard E. Gardiner, Judge

(D. Cory Bilton; Bilton Law Firm, PLLC, on briefs), for appellant.

(Heather K. Bardot; Kara A. Schmidt; McGavin, Boyce, Bardot, 

Thorsen & Katz, PC, on brief), for appellee.

Vincent Colbert filed a personal injury suit in Fairfax County Circuit Court against Martrell 

Spaight stemming from a motor vehicle collision on October 26, 2015. After a three-day trial, the 

jury returned a verdict in favor of Spaight, and the circuit court entered judgment reflecting that 

verdict. On appeal, Colbert argues that the circuit court committed reversible error in refusing to 

admit his medical bills into evidence. After examining the briefs and record in this case, the panel 

unanimously holds that oral argument is unnecessary because “the appeal is wholly without merit.” 

Code § 17.1-403(ii)(a); Rule 5A:27(a). We find that the record before us is insufficient to allow us 

to consider the assignment of error, and therefore affirm the circuit court’s judgment.

BACKGROUND

Colbert filed a complaint alleging that on October 26, 2015, Spaight negligently rear-ended 

his vehicle and injured Colbert in the accident. In his answer, Spaight denied the allegations of 

* This opinion is not designated for publication. See Code § 17.1-413.

UNPUBLISHED
- 2 -

Colbert’s complaint; Spaight asserted that he was not negligent and did not cause the accident or, in 

the alternative, that Colbert was contributorily negligent in the collision. 

On the second day of the jury trial, Dr. John Peters testified on behalf of Colbert as an expert 

neurologist. Dr. Peters testified that he first met Colbert in October of 2021, six years after the 

collision. He reviewed Colbert’s prior medical records, examined Colbert, and noted Colbert’s 

statements about the accident and his symptoms. Dr. Peters concluded that, based on that evidence, 

Colbert suffered a concussion in the collision. Dr. Peters then testified that Colbert’s treatment after 

the collision was reasonable and related to his injury from the collision. On cross-examination, 

when asked which of Colbert’s specific visits to medical treatment providers that he would relate to 

the collision, Dr. Peters testified that he “would have to go back and look at the records specifically” 

and that “it’s been a while since [he] looked at the records.” Dr. Peters then went on to relate two of 

Colbert’s medical visits to the collision, but he was unable to connect any of the other treatment 

dates to the accident without “look[ing] at that particular encounter note.” When defense counsel 

stated that some of the treatments in the records indicated that they were specifically for injuries 

sustained in a subsequent vehicle collision in 2017, Dr. Peters replied, “[I]f you’re telling me that, 

I’ll accept that.” Ultimately, when asked if he “kn[ew] what [Colbert] was seen for on those dates,” 

Dr. Peters testified that he “would have to go back and look.” 

Colbert then moved to introduce medical bills into evidence; Spaight objected, asserting that 

under the principles of McMunn v. Tatum, 237 Va. 558 (1989), Colbert failed to lay proper 

foundation that the bills were related to the collision. After hearing argument, the circuit court 

sustained the objection, and excluded the medical bills. 

At the close of trial, the circuit court instructed the jury to determine: (1) if Spaight was 

negligent; (2) if such negligence was the proximate cause of an injury to Colbert; and (3) if 
- 3 -

Spaight’s negligence proximately caused an injury, the amount of damages Colbert was entitled to 

recover. The jury returned a verdict in favor of Spaight, awarding no damages to Colbert. 

ANALYSIS

Colbert argues that he laid sufficient foundation for introducing the medical bills for the 

treatment he claimed related to the collision and that in excluding that evidence the circuit court 

committed reversible error. We cannot reach the merit of Colbert’s assignment of error because he 

failed to provide this Court with a sufficient record to do so. 

“[O]n appeal the judgment of the lower court is presumed to be correct and the burden is 

on the appellant to present to us a sufficient record from which we can determine whether the 

lower court has erred in the respect complained of.” Smith v. Commonwealth, 16 Va. App. 630, 

635 (1993) (quoting Justis v. Young, 202 Va. 631, 632 (1961)). “If the appellant fails to do this, 

the judgment will be affirmed.” Id. (quoting Justis, 202 Va. at 632).

“In a civil case, the erroneous exclusion of evidence is reversible error when the record 

fails to show plainly that the excluded evidence could not have affected the verdict. Thus, 

[appellate courts] consider the potential effect of the excluded evidence in light of all the 

evidence that was presented to the jury.” Barkley v. Wallace, 267 Va. 369, 374 (2004)

(emphasis added) (citing Pace v. Richmond, 231 Va. 216, 226 (1986)); see also Commonwealth 

v. Proffitt, 292 Va. 626, 642 (2016).

In his appeal, Colbert filed only two partial transcripts from his three-day jury trial. The 

transcript extracts which Colbert filed reflect the testimony of Dr. Peters, Colbert’s argument on the 

admissibility of the medical bills, the admission of some of Spaight’s exhibits, the pretrial 

depositions of other medical experts, and the final instructions to the jury with closing arguments. 

Colbert filed no transcripts, or written statements of fact in lieu of transcripts, containing the other 

evidence that the parties introduced at trial. Further, Colbert never proffered the medical bills to the 
- 4 -

court after they were excluded and, therefore, they are not part of the record. “In Virginia, when

‘[evidence] is rejected before it is delivered, an appellate court has no basis for adjudication unless 

the record reflects a proper proffer.’” Ray v. Commonwealth, 55 Va. App. 647, 649 (2010) (quoting 

Whittaker v. Commonwealth, 217 Va. 966, 968 (1977)). “It is well established that a party who 

wishes to challenge the trial court’s exclusion of evidence on appeal must provide a proffer of that 

evidence that is adequate to permit this Court to determine whether the lower court erred.” Smith v. 

Commonwealth, 72 Va. App. 523, 541 (2020). To be sufficient, a proffer must allow us to examine 

both the admissibility of the proposed evidence and whether, even if admissible, its exclusion 

prejudiced the proffering party. Molina v. Commonwealth, 47 Va. App. 338, 368 (2006). By 

neglecting to include a full trial transcript or proffer the medical bills to the trial court, Colbert thus 

failed to provide this Court with a sufficient record to determine if the circuit court committed 

reversible error in excluding the medical bills in light of all the other evidence the parties 

introduced. See Rule 5A:8(b)(4)(ii) (If the appellant fails to “ensure that the record contains 

transcripts or a written statement of facts necessary to permit resolution of appellate issues, any 

assignments of error affected by such omission shall not be considered.”). We therefore cannot 

consider Colbert’s assignment of error. 1

1 We note that this was a case of contested liability, in which the jury had to determine first 

if Spaight was negligent in this collision, and if so, whether that negligence proximately caused an 

injury to Colbert. The jury rendered a verdict in favor of Spaight, suggesting a finding that Spaight 

was not negligent, or a conclusion that his negligence did not proximately cause an injury to 

Colbert. Medical bills are relevant in a personal injury suit, but only to show damages, both 

liquidated and unliquidated. See Barkley, 267 Va. at 373 (holding that medical bills are relevant 

evidence of pain and suffering, and excluding that evidence was reversible error). Thus, even if the 

circuit court erred in excluding the medical bills, in light of the jury’s verdict in favor of Spaight, 

any conceivable error in the court’s ruling was harmless. See Code § 8.01-678 (“When it plainly 

appears from the record and the evidence given at the trial that the parties have had a fair trial on the 

merits and substantial justice has been reached, no judgment shall be arrested or reversed . . . for any 

error committed on the trial.”).
- 5 -

CONCLUSION

For the foregoing reasons, we affirm the judgment of the circuit court.

Affirmed.