PRESENT: Goodwyn, Mims, Powell, Kelsey, McCullough, and Chafin, JJ., and Millette, S.J. 

DEBORAH C. GRAVES

 OPINION BY 

v. Record No. 191500 JUSTICE WILLIAM C. MIMS

 December 10, 2020 

SAMANTHA SHOEMAKER

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY

Melvin R. Hughes, Jr., Judge Designate

In this appeal, we consider whether the Circuit Court of Albemarle County abused its 

discretion in ruling that a plaintiff in a personal injury case could not cross-examine the 

defense’s expert witness on his prior financial relationship with the defendant’s insurer. 

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

In December 2015, Deborah Graves was driving in Charlottesville when she was hit from 

behind by Samantha Shoemaker. In the months following the crash, Graves experienced back, 

hip, and neck pain, as well as increased depression and anxiety, leading her to seek medical care 

and physical therapy that cost more than $26,000. Graves initiated a suit against Shoemaker in 

the Circuit Court of Albemarle County, seeking $150,000 in damages. 

State Farm insured Shoemaker at the time of the accident and hired John P. Cattano to 

represent her in the tort action. Cattano engaged Dr. William C. Andrews, an orthopedic surgeon 

who specializes in medicolegal work, as the defense’s expert witness. Dr. Andrews reviewed 

Graves’ medical records and prepared a written report. He opined that the car accident only 

caused minor injury to Graves and that much of the pain she complained of following the crash 

was caused by conditions that pre-existed the accident. He also found that most of the treatment 

Graves received after the accident would not have been medically necessary or reasonable to 
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treat the minor injuries she received. Dr. Andrews issued a bill in the amount of $3,362 to 

Cattano’s office for his initial work on the case, which was later paid by State Farm. 

Shoemaker’s counsel deposed Dr. Andrews in preparation for trial. During the 

deposition, Dr. Andrews said that he had been hired by Cattano or his firm “30 to 35” times over 

the past 10 to 12 years and that on only one of those occasions did he testify on behalf of a 

plaintiff. He also acknowledged that State Farm had paid him $793,198 for testimony he 

provided for their insureds from 2012 to 2018. However, he claimed that he was not aware that 

Shoemaker was insured by State Farm until her counsel told him during the deposition. He 

explained that he had been retained by Cattano, not by State Farm directly. 

The case went to trial on the issue of damages only, as Shoemaker admitted her fault in 

causing the accident. Graves made a pre-trial motion in limine seeking the court’s permission to 

introduce evidence of Dr. Andrews’ previous relationship with Cattano’s firm and State Farm. 

She asserted that it was admissible under this Court’s decision in Lombard v. Rohrbaugh, 262 

Va. 484 (2001). After hearing arguments from counsel, the court determined that Graves could 

introduce evidence that Dr. Andrews had testified on behalf of Cattano’s clients 30 to 35 times in 

the past. However, she would not be allowed to ask him about his prior work for State Farm 

because there was no “direct relationship” between Dr. Andrews and the insurance company. In 

reaching this decision, the court cited the fact that Cattano, not State Farm, hired Dr. Andrews 

and was billed for his work. The court also noted Dr. Andrews’ contention that he did not know 

State Farm would ultimately pay his bill when he wrote his report. Thus, the court found, Dr. 

Andrews was “in a distinctly different position than was the expert in Lombard.” 

At trial, Dr. Andrews testified as the defense’s sole witness. The jury returned a verdict

in favor of Graves in the amount of $3,000, plus interest. Graves moved for a new trial based 
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upon the court’s pre-trial ruling that prevented her from presenting evidence concerning Dr. 

Andrews’ relationship with State Farm. The court denied the motion. 

We awarded Graves this appeal.

II. ANALYSIS

Graves asserts that the circuit court erred in deciding to exclude evidence of Dr. 

Andrews’ relationship with State Farm because it violated this Court’s ruling in Lombard v. 

Rohrbaugh, 262 Va. 484 (2001). She argues that the court misinterpreted Lombard as holding 

that a party must demonstrate a “direct relationship” between an expert and an insurance 

company before cross-examining the expert on previous payments from the insurance company. 

We agree.

This Court reviews a trial court’s evidentiary rulings for abuse of discretion. Hyundai 

Motor Co. v. Duncan, 289 Va. 147, 155 (2015). An abuse of discretion can occur in three 

principal ways: “when a relevant factor that should have been given significant weight is not 

considered; when an irrelevant or improper factor is considered and given significant weight; and 

when all proper factors, and no improper ones, are considered, but the court, in weighing those 

factors, commits a clear error of judgment.” Landrum v. Chippenham & Johnston-Willis Hosps., 

Inc., 282 Va. 346, 352 (2011). A court abuses its discretion when it incorrectly ascertains what 

the law requires. Lawlor v. Commonwealth, 285 Va. 187, 213 (2013). 

We first considered the cross-examination of expert witnesses regarding their relationship 

with insurance companies in Lombard. That case was decided before this Court adopted the 

Virginia Rules of Evidence in September 2011, but it relied on evidentiary law that formed the 

basis for the Rules. While “all relevant evidence” is generally admissible under Rule 2:402, 

several rules constrain this broad instruction. Under Rule 2:403, a court may exclude relevant 
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evidence if “the probative value of the evidence is substantially outweighed by . . . the danger of 

unfair prejudice.” Likewise, Rule 2:411 provides that evidence that a person was or was not 

insured is generally inadmissible, but exclusion is “not required when offered for another 

purpose, such as proof of . . . bias or prejudice of a witness.” 

In Lombard, 262 Va. at 490–91, the trial court allowed the plaintiff to cross-examine an 

expert who had been hired by the defendant’s insurance company on payments he had received 

from the company for testifying in previous cases, more than $100,000 per year for two years. 

We ruled that it was not an abuse of discretion for the circuit court to allow admission of this 

evidence. Id. at 498. The “crux of the issue” in determining whether the evidence should be 

admitted is “whether there is a substantial relationship between the witness and a particular 

insurance carrier that has a financial interest in the outcome of the case.” Id. at 496. If the 

plaintiff can demonstrate a substantial relationship, “its probative value concerning potential bias 

or prejudice outweighs any prejudice to the defendant resulting from the jury’s knowledge that 

the defendant carries liability insurance.” Id. at 497. We found that there was a substantial 

relationship even though the expert was not an employee of the insurer, but only an independent 

contractor, as “the absence of an employer-employee relationship does not define the limits of 

cross-examination.” Id. at 496. 

Here, the circuit court erred by requiring a “direct relationship” between Dr. Andrews 

and State Farm. Lombard made clear that in determining whether there is a “substantial 

relationship” between an insurer and an expert, the central issue is not “artificial labels,” but the 

“potential for bias because of the witness’s interest in the case.” Id. While the expert in 

Lombard was hired directly by the insurer and Dr. Andrews was originally retained by defense 

counsel, this is a distinction without a difference. It is not necessary that an insurer directly hire 
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an expert to establish a “substantial relationship,” but only one of many factors that a trial court 

can consider. 

An insurer’s payment of a considerable sum of money to an expert for his prior testimony 

favorable to its insureds can be enough to establish a “substantial relationship” on its own. This 

was the case here, where Dr. Andrews received nearly $800,000 over the course of seven years 

from State Farm, an annualized amount similar to what the expert in Lombard received. The 

receipt of such a substantial amount by an expert is enough to create a potential for bias that 

outweighs any potential harm from the mention of insurance to a defendant. Furthermore, as we 

emphasized in Lombard, any potential prejudice to a defendant posed by the mention of 

insurance can be mitigated by giving a limiting instruction to the jury. Id. at 497. 

If we were to adopt the position advocated by the appellee, defendants could avoid crossexamination on potential expert bias resulting from a prior relationship with an insurance 

company simply by having the defense attorney retain the expert rather than having the insurance 

company retain the expert directly. Such an outcome would effectively deny plaintiffs their 

“right to establish that a witness is biased.” Sawyer v. Comerci, 264 Va. 68, 77 (2002). 

Moreover, the issue of Dr. Andrews’ bias was a consideration for the jury. Dr. Andrews 

alleges that he was not aware that State Farm would benefit from his testimony when he wrote 

his report. The plausibility of that assertion rested on his credibility, which the jury was entitled 

to consider given his experience working with insurers and defense attorneys. See Gray v. 

Commonwealth, 233 Va. 313, 344 (1987) (“It is a jury’s function to judge the credibility of the 

witnesses and the weight of their evidence. The jury has the opportunity to observe the 

witnesses’ demeanor while testifying, to consider their interest in the outcome of the case, and to 

determine from all the circumstances of the case which witnesses are more believable.”).
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III. CONCLUSION

For the above reasons, we hold that the Circuit Court of Albemarle County abused its 

discretion in denying Graves’ motion in limine to introduce evidence regarding Dr. Andrews’ 

financial relationship with State Farm. We therefore vacate its judgment and remand for further 

proceedings. 

Vacated and remanded.