Egan v. Butler, Record Nos. 141365

• Docket Nº: 141372.
• Citation: 772 S.E.2d 765, 290 Va. 62
• Case Date: June 04, 2015
• Court: Supreme Court of Virginia

290 Va. 62

772 S.E.2d 765

Joseph EGAN, Sr.

v.David BUTLER.

Abilene Motor Express Co.

v.David Butler.

Record Nos. 141365

141372.

Supreme Court of Virginia.

June 4, 2015.

Christopher M. Winslow, Midlothian (Winslow & McCurry, on brief), for appellant.

William G. Shields, Richmond (Shields Law Firm, on brief), for appellee.

Present: All the Justices.

Opinion

Opinion by Justice LEROY F. MILLETTE, JR.

In these appeals we consider whether evidence of work history and quality of past job performance is probative of future lost income damages, and whether the evidence introduced at trial was sufficient to subject a corporate employer to punitive damages liability.

I. FACTS AND PROCEEDINGS

David Lamont Butler worked as a diesel mechanic at Abilene Motor Express Company, where Joseph F. Egan, Sr., was Butler's supervisor. After working at Abilene for three months, Butler was fired by Egan for unsatisfactory job performance. Although the circumstances of that termination are subject to differing accounts by the parties, the situation was undisputedly heated.

The same day that Butler was fired, Egan swore out a misdemeanor assault and battery complaint against Butler for events that allegedly occurred immediately after Butler's termination. The following day, Egan told other Abilene employees that Butler had pushed Egan and that Butler had cut or stabbed Egan. The misdemeanor assault and battery charge was dismissed with prejudice several months later.

Based on these circumstances, Butler filed a complaint against Egan and Abilene alleging one count of malicious prosecution and one count of defamation. Under both claims Butler sought compensatory damages, including future lost income, and punitive damages.

Butler's claims went to a jury trial. After hearing witness testimony and considering the evidence, the jury returned a verdict in favor of Butler. On the malicious prosecution claim, the jury awarded Butler $250,000 in compensatory damages, and $50,000 in punitive damages against Egan and $200,000 in punitive damages against Abilene. In compliance with Code § 8.01–38.1, the circuit court reduced the punitive damages award against Egan to $38,850 and the punitive damages award against Abilene to $155,600. On the defamation claim, the jury awarded Butler $200,000 in compensatory damages, and $50,000 in punitive damages against Egan and $150,000 in punitive damages against Abilene. In compliance with Code § 8.01–38.1, the circuit court reduced the punitive damages award against Egan to $38,850 and the punitive damages award against Abilene to $116,700. Apart from reducing the punitive damages awards, the circuit court entered final judgment on the jury's verdicts against Egan and Abilene.

Egan and Abilene separately filed timely appeals with this Court.

II. DISCUSSION

A. Future Lost Income

Egan's assignment of error 1 and Abilene's assignment of error 1 are identical, and read:

The trial court erred when it (1) excluded evidence of Butler's past employment history and (2) when it excluded evidence of the quality of Butler's job performance.

1. Standard Of Review

“We review a trial court's decision to admit or exclude evidence using an abuse of discretion standard and, on appeal, will not disturb a trial court's decision to [exclude] evidence absent a finding of abuse of that discretion.” Harman v. Honeywell Int'l., Inc., 288 Va. 88, 92, 758 S.E.2d 515, 520 (2014) (internal quotation marks, citation, and alterations omitted). “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.” Barkley v. Wallace, 267 Va. 369, 374, 595 S.E.2d 271, 274 (2004).

2. The Excluded Evidence Is Probative Of Future Lost Income

At trial, the circuit court denied entry of evidence pertaining to Butler's work history on the basis that it was irrelevant to determining Butler's future lost income. The circuit court also denied entry of evidence pertaining to the quality of Butler's past job performance. This was error.

“In order to form a reliable basis for a calculation of future lost income or loss of earning capacity, such evidence must be grounded upon facts specific to the individual whose loss is being calculated.”Bulala v. Boyd, 239 Va. 218, 233, 389 S.E.2d 670, 677 (1990). “Although mathematical precision is not required, the plaintiff must furnish evidence of sufficient facts or circumstances to permit at least an intelligent and probable estimate of [such] damages.” Id. at 232–33, 389 S.E.2d at 677 (internal quotation marks and citation omitted).

To this end, we have held that an expert's opinion about future lost income or future lost earning capacity is inadmissible when such testimony fails to consider the plaintiff's work history. E.g., Vasquez v. Mabini, 269 Va. 155, 160–61, 606 S.E.2d 809, 811–12 (2005) ; Greater Richmond Transit Co. v. Wilkerson, 242 Va. 65, 71–72, 406 S.E.2d 28, 33 (1991). The inverse of the principle expressed in these cases applies here: that is, a plaintiff's work history and quality of past job performance is admissible evidence probative of the plaintiff's claimed damages in the form of future lost income or future lost earning capacity. See Virginia Rule of Evidence 2:401 (“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact in issue more probable or less probable than it would be without the evidence.”); Virginia Rule of Evidence 2:402 (“All relevant evidence is admissible, except as otherwise provided by ... statute, Rules of the Supreme Court of Virginia, or other evidentiary principles.”); Breeden v. Roberts, 258 Va. 411, 416, 518 S.E.2d 834, 837 (1999).

This is the very type of evidence Egan and Abilene sought to introduce but which the circuit court excluded as irrelevant. Specifically, the court excluded evidence of Butler's work history from 1999 to 2010, including proof relating to his employers, employment dates, pay rates, and reasons for leaving the job. The court also excluded evidence of the quality of Butler's past job performance. In each instance, the court held that evidence of past work had no bearing on future income. Utilizing this incorrect legal standard to bar admission of relevant evidence was an abuse of discretion. Lawlor v. Commonwealth, 285 Va. 187, 212–13, 738 S.E.2d 847, 861–62 (2013).

3. The Error Is Not Harmless

Reversal is required because this excluded evidence, probative of Butler's future lost income, could have affected the verdict. Barkley, 267 Va. at 374, 595 S.E.2d at 274. Two principles arising from related circumstances, in which we addressed the issue of speculative future lost income, underscore this point.

First, we have held that expert testimony regarding future lost income is too speculative to go to the jury when the expert's opinion is based upon too scant of a work history. Compare Cassady v. Martin, 220 Va. 1093, 1095–96, 1100, 266 S.E.2d 104, 104–05, 108 (1980) (8 weeks of work history insufficient to make 21 year old decedent's 44 years of future lost income not speculative), with Clark v. Chapman, 238 Va. 655, 665–67, 385 S.E.2d 885, 891–92 (1989) (6 weeks of work history, in addition to a minimal and intermittent string of jobs, sufficient to make 41 year old plaintiff's 11 years of future lost income not speculative).

Second, in the context of remedying wrongful termination pursuant to the Virginia Fraud Against Taxpayers Act, Code § 8.01–216.1 et seq., we have observed that “the longer the period over which front pay is requested, the more speculative a front pay award becomes.” Lewis v. City of Alexandria, 287 Va. 474, 483 n. 7, 756 S.E.2d 465, 471 n. 7 (2014).

Directed to the circumstances of this case, these principles establish that a jury award for future lost income damages must be predicated upon evidence sufficiently establishing the plaintiff's work history and continuing ability to work absent the wrongful actions of the defendant, so that such an award is not impermissibly speculative. Further, the degree of evidence required to remove the award from the realm of impermissible speculation corresponds to the amount of time the future lost income damages cover. That is, the longer the timeframe of future lost income claimed, the more significant the evidentiary basis required to support such an award.

At trial, Butler did not call an expert witness to testify as to damages, but testified on his own behalf as a fact witness. Butler claimed approximately 23 years of lost future income totaling $137,842. Butler based this claim upon the difference between his $18 per hour wage at Abilene and his lower hourly wage with a subsequent employer—a difference totaling approximately $6,000 per year—and multiplied that figure by the approximately 23 years until when Butler planned to retire at age 65.¹ Accordingly, by excluding the very evidence that Egan and Abilene sought to introduce, the circuit court made this future lost income claim more speculative than if such evidence had been admitted. When the record shows that excluded evidence would have made an award less speculative, such evidence could have affected the verdict so as to require reversal. Barkley, 267 Va. at 374, 595 S.E.2d at 274.

We decline to affirm, as Butler argues, under the “right result for the wrong reason” doctrine. Under that doctrine, “however erroneous may be the reasons of the court for its judgment upon the face of the judgment itself, if the judgment be right, it will not be disturbed on account of the reasons.” Perry v. Commonwealth, 280 Va. 572, 579, 701 S.E.2d 431, 435 (2010) (internal quotation marks, citation, and alterations omitted). Butler makes two arguments for such affirmance, and we disagree with both.

First, Butler argues that the excluded evidence is more prejudicial than probative, as it “make[s] Butler out to be unreliable, when he [is] not.” However, if that is what the evidence shows, then that is simply the nature of the...