PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, Mims, and
McClanahan, JJ., and Russell, S.J.

MICHELLE C. HARMAN, ADMINISTRATRIX
OF THE ESTATE OF JOSEPH A. GRANA, III,
DECEASED, ET AL.                               OPINION BY
                                         JUSTICE WILLIAM C. MIMS
v.   Record No. 130627                        June 5, 2014

HONEYWELL INTERNATIONAL, INC.

           FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                    Herbert C. Gill, Jr., Judge

      This appeal arises out of two consolidated wrongful death

actions against Honeywell International, Inc. (“Honeywell”).     We

consider the admissibility of testimony regarding the contents of

an accident investigation report, as well as the admissibility of

lay witness opinion testimony.    We also address statements made

by Honeywell’s counsel during closing argument.    Finally, we

consider whether the circuit court erred in striking portions of

a proffered jury instruction defining proximate cause.

            I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

      On April 27, 2008, Joseph A. Grana, III (“Grana”) and his

father, Joseph E. Grana, Sr., were killed when the single-engine

airplane Grana was piloting crashed shortly after takeoff from

Chesterfield County Airport.    The takeoff was normal.

Approximately ninety seconds into the flight, the plane’s nose

began moving up and down erratically.    The plane then spiraled

nose-down to the ground.
     The Administrators of the Granas’ estates (collectively,

“the Administrators”) filed wrongful death actions in the Circuit

Court of Chesterfield County against Honeywell, the manufacturer

of the plane’s autopilot system. 1   The actions were consolidated

for trial.

     The sole claim pursued at trial was for breach of the

warranty of merchantability.   The Administrators asserted that

the defective design of the Honeywell autopilot system allowed

microscopic debris to enter into one of the gear systems, jamming

the gears and causing the plane to become uncontrollable.

Specifically, the Administrators claimed that the jammed gears

caused a situation known as “runaway trim,” which occurs when the

autopilot’s auto-trim system repeatedly attempts to increase and

decrease the plane’s pitch, or horizontal incline, in a futile

effort to level the plane. 2 Honeywell denied any defective design

or malfunction of the autopilot system.    It maintained that the

crash was simply the tragic result of an inexperienced pilot

becoming disoriented while flying in heavy cloud-cover.




     1
       The Administrators originally filed wrongful death actions
against various other entities and individuals involved in
manufacturing components of the plane. The claims against all
defendants except Honeywell were dismissed prior to trial.
     2
       The auto-trim system controls the movement of the plane’s
tail and thus the angle of its ascent or descent. Specifically,
the auto-trim system causes the horizontal stabilizer in the tail
to move up or down, which causes the pitch to change.


                                 2
     Grana had begun pilot training just sixteen months prior to

the accident, and he had been licensed for approximately fourteen

months.   On the day of the accident, he was flying in instrument

meteorological conditions that require pilots to navigate using

navigational instruments rather than visual cues.   He had at most

one hour of solo flight time in such conditions in this

particular plane that was manufactured by Mooney Airplane

Company, Inc. (the “Mooney plane”).   His previous experience had

been in a less-powerful, less-complex plane that was manufactured

by Cessna Aircraft Company (the “Cessna plane”).    Honeywell’s

theory was that upon entering the cloud-cover, Grana experienced

“spatial disorientation,” a phenomenon that occurs when a pilot

has no visual cues to determine a plane’s pitch and thus flies

erratically without knowing it.

     Following a nine-day trial, the jury deliberated for one

hour before returning a verdict in favor of Honeywell.    The

Administrators filed a motion to set aside the verdict and for a

new trial, which the circuit court rejected.   This appeal

followed.

     The Administrators pursue five assignments of error.    They

assert that the circuit court erred by (1) admitting into

evidence an accident investigation report and testimony regarding

its contents; (2) allowing William Abel to testify that he had

concerns about Grana’s judgment in taking off in the weather


                                  3
conditions present on the day of the accident; (3) allowing

Robert Norman to testify regarding his subjective feelings and

experiences while flying the Mooney plane and the Cessna plane;

(4) overruling their objection to statements made by Honeywell’s

counsel during closing argument; and (5) striking portions of

their proffered jury instruction on proximate cause.

                           II. DISCUSSION

  A. The Mooney Report

     The Administrators assign error to the circuit court’s

admission of testimony regarding an accident investigation report

prepared by Mooney Airplane Company describing its investigation

of the crash (the “Mooney Report”).   It describes the plane’s

movements during flight and the condition of the wreckage, and

sets forth the author’s conclusions that there was no evidence

“that the aircraft engine was not capable of producing power or

that the aircraft was uncontrollable at the time of the

accident.”   Portions of the Mooney Report related to the position

of the “jackscrew,” a component in the autopilot’s auto-trim

system that corresponds with the position of the horizontal

stabilizer in the plane’s tail.

     The central question in the case was whether contaminated

gears in the autopilot system caused the pitch to become erratic,

rendering the plane uncontrollable.   Consequently, a critical

issue at trial was the position of the autopilot’s trim setting


                                  4
at the time of impact.   The experts for both sides agreed that

the trim setting could be determined by examining the jackscrew.

The experts also agreed that the jackscrew had six threads

exposed at the time of impact.    However, they vigorously

disagreed regarding whether this position indicated a nose-down

or normal takeoff trim setting.

     Honeywell’s expert in aircraft accidents, Dr. George Clarke,

III, testified that the jackscrew was in a “normal and safe

takeoff position,” and therefore runaway trim could not have been

the cause of the accident.   Honeywell’s counsel directed Dr.

Clarke’s attention to the Mooney Report to support that opinion.

The Administrators objected on hearsay grounds. 3   Honeywell

responded that the Mooney Report was admissible pursuant to the

“learned treatise” exception to the hearsay rule set forth in

Code § 8.01-401.1.   The circuit court agreed with Honeywell and

overruled the Administrators’ objections, holding that the Mooney

Report was a “pamphlet” admissible under Code § 8.01-401.1.

     Dr. Clarke then read and displayed to the jury statements in

the Mooney Report supporting his opinion that the jackscrew was

in a normal takeoff position at the moment of impact:

     Q. And what did the Mooney Aircraft Company
     investigation indicate with respect to that trim
     position?

     3
       The record does not indicate why the author of the Mooney
Report was not called as a witness to testify regarding its
contents.


                                  5
     A. It says in the last sentence, “This indicates an
     approximate takeoff position trim setting.”

                               . . . .

     Q. And again, it is Exhibit 11. And would you show
     that page from the [Mooney Report]? We’re looking at
     the [Mooney Report] page 0006.

     A. Yes. And this was the part that I just read. This
     indicates an approximate takeoff position trim setting.
     And to validate what we just spoke about, it says that
     there were six threads exposed on the jackscrew. And
     it’s the same six threads we were talking about from
     the full nose-down position.

After being prompted by the court, Dr. Clarke stated that he

relied upon the Mooney Report in reaching his conclusions, but he

did not testify that it was a reliable source.   Additionally,

Honeywell was permitted to introduce the entire Mooney Report

into evidence as an exhibit.

     On appeal, the Administrators argue that the circuit court

erred twice, by allowing testimony regarding the contents of the

Mooney Report and also by admitting it into evidence.   The

Administrators claim the report contained inadmissible hearsay

statements and did not satisfy the requirements of the “learned

treatise” exception under Code § 8.01-401.1.

     “[W]e 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 admit evidence

absent a finding of abuse of that discretion.”   John Crane, Inc.



                                  6
v. Jones, 274 Va. 581, 590, 650 S.E.2d 851, 855 (2007).        However,

a trial court has no discretion to admit clearly inadmissible

evidence.   Id.

     Hearsay statements generally are inadmissible.        See Va. R.

Evid. 2:802. One exception to the hearsay rule in civil cases,

the “learned treatise” exception in Code § 8.01-401.1, provides:

     To the extent . . . relied upon by the expert witness
     in direct examination, statements contained in
     published treatises, periodicals or pamphlets on a
     subject of history, medicine or other science or art,
     established as a reliable authority by testimony or by
     stipulation, shall not be excluded as hearsay. If
     admitted, the statements may be read into evidence but
     may not be received as exhibits.

See also Va. R. Evid. 2:706(a) (same).        Because Code § 8.01-401.1

is in derogation of the common law, we must strictly construe the

statute and be careful not to enlarge it beyond its express

terms.   See Bostic v. About Women OB/GYN, P.C., 275 Va. 567, 576-

77, 659 S.E.2d 290, 295 (2008).

     Code § 8.01-401.1 creates an exception to the hearsay rule

“in certain limited instances.” 4       Weinberg v. Given, 252 Va. 221,

226, 476 S.E.2d 502, 504 (1996).        First, when learned material is

     4
       This Court has long recognized the dangers of admitting
hearsay expert opinion testimony. See McMunn v. Tatum, 237 Va.
558, 566, 379 S.E.2d 908, 912 (1989) (“The admission of hearsay
expert opinion without the testing safeguard of cross-examination
is fraught with overwhelming unfairness to the opposing party.”).
In enacting the “learned treatise” exception in 1994, “the
General Assembly was clearly aware of those dangers and sought to
avoid them by inserting . . . preconditions to the admission of
hearsay expert opinions as substantive evidence on direct
examination . . . .” Bostic, 275 Va. at 576, 659 S.E.2d at 294.


                                    7
used on direct examination the testifying witness must have

“relied upon” the hearsay statements.    Second, the statements

must be (a) contained in a published treatise, periodical or

pamphlet; (b) on a subject of history, medicine or other science

or art; and (c) established as “a reliable authority” by

testimony or by stipulation.    Dr. Clarke’s testimony regarding

the Mooney Report failed to satisfy these requirements.

     At the outset, we note that the Mooney Report simply is not

the type of authoritative literature contemplated by Code § 8.01-

401.1.   Learned treatises have sufficient indicia of

trustworthiness because their authors have no bias in any

particular case and are aware that their work will be read and

evaluated by others in their field.    See United States v.

Martinez, 588 F.3d 301, 312 (6th Cir. 2009).    However, the Mooney

Report lacks such assurances of trustworthiness.    The report is

not a “published treatise[], periodical[] or pamphlet[]” on a

“subject of . . . science.”    Code § 8.01-401.1.   Rather, it is a

four and one-half page accident investigation report that was

prepared by the plane’s manufacturer.    Of even greater

importance, at the time the report was prepared, Mooney had not

yet been dismissed as a defendant in this case.     Thus, the Mooney

Report was prepared for litigation purposes and “was not

subjected to peer review or public scrutiny, and it was not

written primarily for professionals with the reputation of the


                                  8
writer at stake.”   Martinez, 588 F.3d at 312 (internal quotation

marks omitted).   Consequently, the report lacks the reliability

necessary to be a “learned treatise.”    See Sommerfield v. City of

Chicago, 254 F.R.D. 317, 323 (N.D. Ill. 2008) (“[D]ocuments

prepared specifically for use in litigation are . . . dripping

with motivations to misrepresent” and “are therefore inadmissible

hearsay.”) (quoting Hoffman v. Palmer, 129 F.2d 976, 991 (2d Cir.

1942)).

     Moreover, the Mooney Report was not established as a

reliable source through testimony or stipulation as required

under Code § 8.01-401.1.    Honeywell maintains that by stating

that he “relied upon” the report, Dr. Clarke thereby endorsed its

authority.   We disagree.   Code § 8.01-401.1 expressly requires

that a report used on direct examination by a party’s own expert

be both “relied upon” and “established as a reliable authority by

testimony or by stipulation.”    See also Va. R. Evid. 2:706(a)

(same); Bostic, 275 Va. at 576, 659 S.E.2d at 294.   Dr. Clarke

only satisfied the first precondition.

     Dr. Clarke did not testify that the Mooney Report was a

reliable source typically used by experts in his field.   Indeed,

he could not offer such testimony because, as established above,

it was not a “treatise[], periodical[] or pamphlet[]” on a

“subject of . . . science.”   Further, the parties did not

stipulate to the Mooney Report’s reliability.   Thus, we conclude


                                  9
that the circuit court abused its discretion by permitting Dr.

Clarke to testify regarding the conclusions reached in the Mooney

Report.

     Having determined that the hearsay statements in the Mooney

Report were erroneously admitted, we turn to whether their

admission was harmless error, as asserted by Honeywell.

Honeywell argues that the facts asserted in the portion read into

evidence by Dr. Clarke were independently established by other

evidence presented at trial.   Thus, it claims that the circuit

court’s admission of the hearsay statements was “merely

cumulative of other competent evidence” and therefore harmless

error.    Greenway v. Commonwealth, 254 Va. 147, 154, 487 S.E.2d

224, 228 (1997); see also Schindel v. Commonwealth, 219 Va. 814,

817, 252 S.E.2d 302, 304 (1979) (“Even though testimony is

objectionable as hearsay, its admission is harmless error when

the content of the extra-judicial declaration is clearly

established by other competent evidence.”).   We disagree.

     The circuit court’s error “‘is presumed to be prejudicial

unless it plainly appears that it could not have affected the

result.’”   Hinkley v. Koehler, 269 Va. 82, 92, 606 S.E.2d 803,

808 (2005) (quoting Spence v. Miller, 197 Va. 477, 482, 90 S.E.2d

131, 135 (1955)).   The Mooney Report contains conclusions that go

to the very heart of the case.   For instance, it concludes that

the position of the jackscrew indicates an “approximate takeoff


                                  10
position trim setting.”   Honeywell insinuates that other experts

provided this same testimony; however, this is not accurate.       Dr.

Clarke was the only witness to testify that the autopilot’s trim

setting was in the takeoff position at the time of impact.       The

Administrators’ experts agreed with Dr. Clarke that the jackscrew

had six threads exposed, but testified that this represented a

nose-down trim position, not a normal takeoff trim position.

Likewise, it was the only investigation report to categorically

conclude that the plane was not “uncontrollable at the time of

the accident.”

     Moreover, the Mooney Report repeatedly was brought to the

jury’s attention by Honeywell.    Its counsel had Dr. Clarke read

from and display parts of the report to the jury.    Honeywell also

referred to it twice during closing argument.    Further, the

entire Mooney Report was admitted into evidence as an exhibit and

taken into the jury room during deliberations.    This exacerbates

the prejudice in this case. 5   See, e.g., Norfolk & W. Ry. v.

Puryear, 250 Va. 559, 562-63, 463 S.E.2d 442, 444 (1995) (finding

that the error was not harmless when an erroneously admitted

exhibit could have been reviewed during deliberations).

     5
       Honeywell argues that the Administrators did not clearly
object to the Mooney Report itself being received as an exhibit.
Because we find that it was error for it to be used at all, we
need not address Honeywell’s argument. However, we note that
Code § 8.01-401.1 clearly forbids such action: “[i]f admitted,
the statements may be read into evidence but may not be received
as exhibits.” See also Va. R. Evid. 2:706(a) (same).


                                  11
       Accordingly, we reject Honeywell’s argument that the error

by the circuit court was harmless.         It does not plainly appear

from the record that the erroneous admission of the hearsay

statements could not have affected the jury’s verdict.

Therefore, we will reverse the judgment appealed from and remand

the case for a new trial.      See Bostic, 275 Va. at 578, 659 S.E.2d

at 296.     While this error alone requires reversal of the circuit

court’s judgment, we will address the Administrators’ remaining

arguments because they involve issues that are likely to arise in

the retrial of the case.      See, e.g., Velocity Express Mid-

Atlantic, Inc. v. Hugen, 266 Va. 188, 203, 585 S.E.2d 557, 566

(2003) (the Court “must consider certain issues that probably

will arise upon remand”).

  B.       Lay Witness Opinion Testimony

       The Administrators also assign error to the circuit court’s

admission of certain opinion testimony by William Abel and Robert

Norman. 6    We address these two assignments of error concurrently.

  (1)      William Abel’s Testimony

       William Abel was Grana’s friend and flight instructor.      He

had extensive experience flying with Grana in the Mooney plane

and the Cessna plane, including in poor weather conditions

requiring the use of navigational instruments.

       6
       Abel and Norman were deposed by Honeywell prior to trial.
The depositions were videotaped, and the portions determined to
be admissible by the circuit court were played for the jury.


                                      12
     At trial, the jury heard testimony from Abel that he and

Grana had agreed that Grana would not fly the Mooney plane in

instrument meteorological conditions without an instructor.    Abel

testified that he monitored the weather forecast a few days prior

to the crash, and that he and Grana discussed the weather

forecast via email.   Abel testified that he was not at

Chesterfield County Airport on the day of the crash, but that he

checked the weather report as soon as he learned of it.   Over the

Administrators’ objection, Abel testified that he had concerns

about Grana’s judgment in deciding to fly on that day:

     A. While [Grana] exercised safe judgment during almost
     all of our flying, the fact that he took off on this
     day makes –- makes me have some concerns about the
     judgment, taking off into conditions based on the
     weather that –- that was reported to me.

                              . . . .

     Based on the –- all the flying I’ve done with [Grana]
     and the conversations that we had, I had concerns about
     why he would take off into those conditions on that
     day.

                              . . . .

     Q. With respect to Mr. Grana’s lack of experience in
     this airplane in actual [instrument meteorological]
     conditions and the judgment that he used in taking off
     that day, in your opinion, was that a cause or
     contributing cause of this accident?

     A. I don’t know what happened in that airplane. In my
     opinion, it wasn’t the best of judgment to take off in
     those conditions.




                                 13
     On appeal, the Administrators argue that Abel’s testimony

regarding Grana’s judgment lacked sufficient foundation and was

improper opinion testimony by a lay witness that invaded the

province of the jury.

  (2)    Robert Norman’s Testimony

     Robert Norman was a co-owner of the Mooney plane along with

Grana.   He obtained his pilot’s license around the same time as

Grana, and both men transitioned from flying the Cessna plane to

the Mooney plane.    At the time of the crash, Norman had not been

endorsed to fly the Mooney plane solo.    He had five to ten hours

less flight time in it than Grana.

     Over the Administrators’ objection, the jury heard testimony

from Norman regarding his personal experiences flying the Mooney

and Cessna planes.   Norman compared them, opining that the Mooney

plane was faster, more powerful, more complex, and more difficult

to maneuver than the Cessna plane.     Norman testified that he had

a “healthy fear” of the Mooney plane and that he did not feel

prepared to fly it solo because of its complexity.    He also

stated that he had never perceived problems with the flight

controls in the Mooney plane.

     On appeal, the Administrators challenge Norman’s testimony

regarding his subjective feelings and experiences flying the

Mooney and Cessna planes.   The Administrators argue that such




                                  14
testimony was improper opinion testimony by a lay witness,

irrelevant, and prejudicial.

  (3)     Analysis

     As stated previously, we review a trial court’s decision to

admit or exclude testimony using an abuse of discretion standard.

See John Crane, Inc., 274 Va. at 590, 650 S.E.2d at 855.

     Neither Abel nor Norman was qualified by the court as an

expert.    Thus, we review their testimony in light of Rule 2:701,

which states:

          Opinion testimony by a lay witness is admissible
     if it is reasonably based upon the personal experience
     or observations of the witness and will aid the trier
     of fact in understanding the witness’ perceptions. Lay
     opinion may relate to any matter, such as –- but not
     limited to –- sanity, capacity, physical condition or
     disability, speed of a vehicle, the value of property,
     identity, causation, time, the meaning of words,
     similarity of objects, handwriting, visibility or the
     general physical situation at a particular location.
     However, lay witness testimony that amounts only to an
     opinion of law is inadmissible.

To summarize, Rule 2:701 permits lay witness opinion testimony if

(1) “it is reasonably based upon the personal experience or

observations of the witness;” and (2) it “will aid the trier of

fact in understanding the witness’ perceptions.”

     The first prong of Rule 2:701 requires personal knowledge.

Clearly, both Abel’s and Norman’s testimony satisfied this

requirement.    Abel was Grana’s flight instructor and had flown

with Grana in various weather conditions.   He had extensive



                                  15
personal knowledge of Grana’s flying abilities and was well-

positioned to testify regarding whether Grana should have been

flying in instrument meteorological conditions.    Likewise,

Norman’s testimony was based on his personal experiences flying

the Mooney and Cessna planes.   He was an appropriate witness to

explain the difference between the two planes because he had

owned both planes and had experience flying them.

     The second prong of Rule 2:701 speaks to the necessity of

lay opinion testimony.   Generally, lay opinion testimony is only

admitted when “the witness’s information for some reason cannot

be adequately conveyed to the court by a detailed recital of the

specific facts upon which the opinion is based.”    Charles E.

Friend & Kent Sinclair, The Law of Evidence in Virginia § 13-

3[a], at 731 (7th ed. 2012).    For instance, this may be because

the witness’s impression is one that cannot by its very nature be

broken down into constituent parts.    See Richards v.

Commonwealth, 107 Va. 881, 889, 59 S.E. 1104, 1107 (1908)

(holding that a lay witness’s opinion that a substance was oil or

grease was admissible because the subject matter could not be

fully described to the jury as it appeared to the witness).

     However, if the witness can conveniently relate the facts in

a manner that will provide the jury with an adequate

understanding of the issue, the witness’s opinion based on those

facts is unnecessary and therefore inadmissible.    See Friend &


                                  16
Sinclair, supra, § 13-1[b], at 726; see also Denis v.

Commonwealth, 144 Va. 559, 574, 131 S.E. 131, 135 (1926) (“The

test of admissibility of a conclusion of fact of a nonexpert

witness is this:   Is it clear that the jurors would or could have

been fully and as exactly furnished with the data which formed

the basis for the conclusion of the witness as the latter was?

If so, the conclusion is inadmissible in evidence.”) (internal

quotation marks omitted).

     We find that Abel’s testimony regarding Grana’s judgment was

unnecessary and therefore should have been excluded pursuant to

Rule 2:701.   Abel testified at length regarding Grana’s

inexperience flying the Mooney plane in instrument meteorological

conditions.   He testified that he and Grana agreed that Grana

would not fly it in such conditions without an instructor, and

that Grana specifically assured him that he would not fly on the

day of the crash if such conditions were present.   That Abel

believed Grana exercised bad judgment in deciding to fly on the

day of the crash was implicit in the rest of his testimony.

Expressing this opinion did nothing further to “aid the trier of

fact in understanding [Abel]’s perceptions.”   Va. R. Evid. 2:701.

Rather, it was superfluous.   The jury was fully capable of

listening to the specific facts recited by Abel and reaching its

own conclusion based on those facts.




                                 17
     Moreover, Abel’s testimony was an impermissible assessment

of Grana’s culpability for the accident.   While the passage of

Code § 8.01-401.3 in 1993 expanded the ability of expert and lay

witnesses to express opinions on ultimate issues of fact, “mere

assessments of liability or its constituent findings are not

admissible.”   Friend & Sinclair, supra, § 13-5[a], at 742.      This

Court has held that witnesses are precluded from “characterizing

acts or conduct as careful, careless, cautious, dangerous, good

management, in the line of duty, necessary, negligent, omitting

anything possible, practicable, proper, prudent, reasonably safe,

skillful, usual or unusual.”    Davis v. Souder, 134 Va. 356, 362,

114 S.E. 605, 607 (1922) (internal quotation marks omitted).

Abel’s testimony that “it wasn’t the best of judgment [for Grana]

to take off” characterized Grana’s actions as careless or unsafe.

This was improper lay opinion testimony directed at Grana’s

culpability or blameworthiness for the crash.

     The circuit court did not abuse its discretion in admitting

Norman’s testimony.   Norman did not address Grana’s judgment or

flying abilities.   Rather, his testimony focused solely on his

own experiences flying the Mooney and Cessna planes.   Further,

Norman’s opinion testimony as to the differences between the two

planes was not unnecessary.    It was impossible for Norman to

adequately convey the differences between them without couching

these differences in comparative terms.    Norman’s statements that


                                  18
the Mooney plane was faster, more powerful, more complex, and

more difficult to maneuver than the Cessna plane aided the jury

in understanding Norman’s experiences and therefore qualified as

proper lay opinion testimony pursuant to Rule 2:701.

     Finally, Norman’s testimony was relevant and not unfairly

prejudicial.   It helped the jury understand Grana’s transition

between the Mooney and Cessna planes.    This was relevant because

it bore on Grana’s ability to handle the Mooney plane on the day

of the crash and demonstrated some of the problems he may have

encountered.   We cannot say that the probative value of this

testimony was substantially outweighed by the danger of unfair

prejudice.   Va. R. Evid. 2:403(a).    Thus, Norman’s testimony was

properly admitted.   See Gamache v. Allen, 268 Va. 222, 227-28,

601 S.E.2d 598, 601 (2004) (“Evidence that is factually relevant

may be excluded from the jury’s consideration if the probative

value of that evidence is substantially outweighed by the danger

of unfair prejudice.”).

     Accordingly, we find that the circuit court abused its

discretion in admitting Abel’s opinion testimony regarding

Grana’s judgment.    However, it did not abuse its discretion in

admitting Norman’s testimony.

  C. Statements During Closing Argument

     The Administrators next challenge certain statements made by

Honeywell’s counsel during closing argument as violating a


                                  19
pretrial order and Virginia law.    Prior to trial, the

Administrators filed a motion in limine to exclude any evidence

or argument “as to the number of [Honeywell] autopilots sold or

as to the so-called ‘safety history’ of [the Honeywell]

autopilots.”   The circuit court granted the motion.

     Yet, during closing argument Honeywell’s counsel stated:

     They walk you into this courtroom and try to convince
     you of this theory. Don’t have one test. Didn’t
     sprinkle any debris in it to show does this happen.
     How can it run away? Don’t you expect that out of
     them? If they have the burden of proof here to prove
     this happened, why didn’t they show you this stuff?
     Why didn’t they prove it? It’s never happened before.
     There is no evidence this has ever happened anywhere
     any time.

(Emphasis added.)   The Administrators promptly objected, arguing

that Honeywell’s counsel’s statements violated the order granting

the motion in limine.   The court overruled the objection and

directed Honeywell to “proceed.”    A few minutes later,

Honeywell’s counsel again argued that the autopilot system had a

“[s]afe design for 35 years, and no complaints,” and that there

was “[n]o evidence of a prior problem at all ever.”

     Immediately following Honeywell’s closing argument, the

Administrators requested a conference outside the jury’s

presence.   The Administrators restated their objection and asked

the court to issue a cautionary instruction directing the jury to

disregard the improper statements.      The court declined, stating:

“I had previously told the jury that what [the attorneys] tell


                                   20
them is not evidence, and they should not consider it as such,

we’ll leave it at that.   Overrule the motion.”

     The Administrators again contested the court’s ruling in

their motion to set aside the verdict and for a new trial.    The

court denied the motion, finding that the statements were proper

because they “were made in reference to the testimony of the

parties’ experts.   No expert, for either side, testified that the

alleged cause of this crash was the cause of another crash that

he had investigated, and [Honeywell] was entitled to make that

argument.”

     On appeal, the Administrators assert that the court’s

pretrial order properly excluded any argument regarding the

safety history of the autopilot system, see Goins v. Wendy’s

Int’l, Inc., 242 Va. 333, 335-36, 410 S.E.2d 635, 636 (1991)

(holding that evidence of the absence of other incidents is

inadmissible).   They argue that Honeywell violated this ruling by

repeatedly telling the jury that there was an absence of other

incidents.   Honeywell responds that its counsel’s statements

merely summarized the testimony of the Administrators’ experts,

who testified without objection that they had not investigated

any other crash caused by debris in the gears of an autopilot

system.   We disagree.

     Honeywell’s counsel’s statements went beyond summarizing the

experts’ testimony.   He did not place his remarks in the context


                                 21
of any particular expert’s testimony.     Rather, he made sweeping

proclamations that the autopilot system had a “[s]afe design for

35 years, and no complaints;” that the alleged debris-in-the-

gears problem had “[n]ever happened anywhere any time;” and that

there was “[n]o evidence of a prior problem at all ever.”     These

statements violated the court’s pretrial order excluding argument

regarding the safety history of the autopilot system.     Because

Honeywell did not assign cross-error to the court’s pretrial

order, it is the law of the case.      See Little v. Cooke, 274 Va.

697, 722, 652 S.E.2d 129, 144 (2007) (holdings uncontested on

appeal become “the law of the case”); Board of Supervisors v.

Stickley, 263 Va. 1, 6, 556 S.E.2d 748, 751 (2002).

Consequently, it was error for the circuit court to allow

Honeywell’s counsel to make statements in contravention of its

own order.

  D. Jury Instruction on Proximate Cause

     The Administrators finally contend that the circuit court

erred in striking portions of their proposed jury instruction on

proximate cause.   We disagree.

     At trial, the Administrators proffered the following jury

instruction defining proximate cause:

     A proximate cause of an accident, injury, or damage is
     a cause which in natural and continuous sequence
     produces the accident, injury, or damage. It is a
     cause without which the accident, injury, or damage
     would not have occurred. There may be more than one


                                  22
     proximate cause[]. Proximate cause need not be
     established with such certainty so as to exclude every
     other possible conclusion.

(Emphasis added.)   Honeywell objected to the last two sentences.

It noted that, at the time of trial, these sentences were not

included in the Virginia model jury instruction defining

proximate cause.    See 1 Virginia Model Jury Instructions – Civil,

No. 5.000 (2012).   The circuit court struck the last two

sentences of the proposed instruction over the Administrators’

objection.

     On appeal, the Administrators argue that the court erred in

striking those sentences.   They claim that the proposed

instruction accurately stated Virginia law, and that the last two

sentences were necessary to dispel any erroneous impression that

there could only be one proximate cause of the accident.

     Our sole responsibility in reviewing jury instructions is

“to see that the law has been clearly stated and that the

instructions cover all issues which the evidence fairly raises.”

Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185, 187

(2009) (internal quotation marks omitted).   We review de novo

whether an instruction correctly states the law and whether it

finds support in credible evidence. See Lawlor v. Commonwealth,

285 Va. 187, 228-29, 738 S.E.2d 847, 870 (2013).   “When reviewing

a trial court’s refusal to give a proffered jury instruction, we

view the evidence in the light most favorable to the proponent of


                                  23
the instruction.”   Id. at 228-29, 738 S.E.2d at 871 (internal

quotation marks omitted).

     The Administrators primarily rely on Holmes v. Levine, 273

Va. 150, 159, 639 S.E.2d 235, 239 (2007), in which we reversed a

jury verdict where the circuit court refused to instruct

regarding multiple potential proximate causes.     This reliance is

misplaced.   In Holmes, we narrowly held that the circuit court

erred in refusing the instruction “[i]n light of the

Administrator’s theory of the case and the evidence in support of

that theory.”    Id. at 160, 639 S.E.2d at 240.   In that case,

there were two possible proximate causes of the decedent’s death:

cancer itself and the defendant physician’s negligent delay in

diagnosing the cancer.   The Administrator in Holmes put on

considerable evidence regarding both causes.      Id. at 159, 639

S.E.2d at 239.   Here, however, the Administrators’ position was

that the autopilot system was the sole cause of the accident.

The Administrators’ experts opined that other possible causes of

the accident had been considered and rejected.     The experts

explicitly refuted the argument that Grana’s own error could have

contributed to the crash.

     In light of the Administrators’ theory, the granted

instruction fully and fairly covered the principle of proximate




                                  24
causation. 7   It “refers to ‘a proximate cause’ instead of ‘the

proximate cause’” precisely because “there may be more than one

proximate cause of an injury.”     See 1 Virginia Model Jury

Instructions – Civil, No. 5.000 (2012) (commentary).      The jury

repeatedly was instructed that it could find Honeywell liable if

it concluded that Honeywell’s alleged breach of warranty was “a

proximate cause” of the crash. 8   Thus, the first additional

sentence proposed by the Administrators added nothing that was

not already encompassed by the given instructions.    While an

instruction may not be withheld from the jury solely because it

varies from the model instruction, see Code § 8.01-379.2, it is

not error for a court to reject proposed additions to a model

instruction that are redundant.     See Stockton v. Commonwealth,

227 Va. 124, 145, 314 S.E.2d 371, 384 (1984); Wilson v. Brown,


     7
       The definition of proximate cause provided to the jury was
identical to the corresponding Virginia model jury instruction at
the time of trial. We note that the model jury instruction was
amended post-trial to add the following sentence: “There may be
more than one proximate cause of an accident, injury, or damage.”
1 Virginia Model Jury Instructions – Civil, No. 5.000 (2014).
However, the commentary clarifies that this sentence should only
be included in cases “[w]here the evidence . . . shows the
possibility of more than one proximate cause of an accident.” Id.
As discussed, that was not the case here.
     8
       The given proximate cause instruction used the phrase “a
cause” three times. It never referred to “the cause” of the
accident. Likewise, the rest of the given instructions
consistently referred to “a proximate cause” and never referenced
“the proximate cause” of the accident. By contrast, in Holmes we
emphasized that the circuit court improperly used the definite
article “the” when instructing the jury since concurrent causes
were alleged. 273 Va. at 160, 639 S.E.2d at 240.


                                   25
136 Va. 634, 637-38, 118 S.E. 88, 89 (1923) (“Where the jury has

been sufficiently and correctly instructed on any point, it is

not error to refuse further instructions on that point, however

correct a tendered instruction may be.”).

     Finally, the second proposed additional sentence could have

confused the jury regarding the burden of proof.    The jury was

separately instructed to find for the Administrators if they

“proved by the greater weight of the evidence” that, among other

things, the autopilot system was a proximate cause of the

accident.   It also was specifically instructed as to the meaning

of the phrase “greater weight of all the evidence.”    These

instructions were clear and consistent.     Adding words such as

“certainty” could have heightened the potential for confusion.

     Accordingly, we find that the circuit court did not err in

striking the last two sentences of the Administrators’ proposed

instruction on proximate cause.

                          III. CONCLUSION

     For the reasons stated, we will reverse the judgment of the

circuit court and remand for further proceedings consistent with

this opinion.

                                               Reversed and remanded.




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