KAREN TAYLOR BAGHERI, Administrator of the Estate of Shawn Matthew McKee, deceased v. Dwight L. Bailey, M.d.; Appalachian Emergency Physicians

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1712
KAREN TAYLOR BAGHERI, Administrator of the Estate of Shawn Matthew
McKee, deceased,
Plaintiff - Appellee,
v.
DWIGHT L. BAILEY, M.D.; APPALACHIAN EMERGENCY PHYSICIANS,
Defendants - Appellants,
and
FAMILY HEALTH CARE ASSOCIATES OF SOUTHWEST VIRGINIA, PC,
Defendant.
Appeal from the United States District Court for the Western District of Virginia, at
Abingdon. James P. Jones, District Judge. (1:14-cv-00077-JPJ)
Argued: September 13, 2017 Decided: October 25, 2017
Before KING and THACKER, Circuit Judges, and John A. GIBNEY, Jr., District Judge
for the Eastern District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.

-- 1 of 20 --

2
ARGUED: Frank Kenneth Friedman, WOODS ROGERS, PLC, Roanoke, Virginia, for
Appellants. Monica Taylor Monday, GENTRY LOCKE, Roanoke, Virginia, for
Appellee. ON BRIEF: Michael P. Gardner, WOODS ROGERS, PLC, Roanoke,
Virginia; James N.L. Humphreys, Jimmie C. Miller, HUNTER SMITH DAVIS, LLP,
Kingsport, Tennessee, for Appellants.
Unpublished opinions are not binding precedent in this circuit.

-- 2 of 20 --

3
PER CURIAM:
Dwight L. Bailey, M.D. (“Dr. Bailey”) and Appalachian Emergency Physicians
(“AEP”) (collectively, “Appellants”) appeal from a $2.75 million jury verdict in favor of
Karen Taylor Bagheri (“Appellee”) in a medical malpractice action involving death. On
appeal, Appellants argue, among other issues, that the district court erred in denying their
motions for mistrial and new trial after several jurors admitted to having seen negative
news reports about Dr. Bailey during the trial and after Appellee introduced evidence that
Dr. Bailey’s medical license had been suspended.
We conclude that the district court did not abuse its discretion in denying
Appellants’ motions because it correctly applied the relevant law and took corrective
measures to mitigate any prejudice. Further, the record lacks evidence that either the
news reports about the trial or the testimony about Dr. Bailey’s license suspension
influenced the verdict.
I.
A.
The decedent presented to the emergency room at a Virginia hospital on June 7,
2013, complaining of chest and back pain, shortness of breath, and other symptoms. He
also had a “red toe that was . . . draining.” J.A. 879.1 As the emergency room physician
on duty, Dr. Bailey examined the decedent and conducted a series of diagnostic tests.
1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this
appeal.

-- 3 of 20 --

4
One such test Dr. Bailey ordered was a CT scan. However, at 460 pounds, the decedent
was too heavy for the hospital’s CT machine. Dr. Bailey ultimately concluded that the
decedent’s symptoms were caused by acute bronchitis and a foot infection. Upon
discharging the decedent, Dr. Bailey verbally instructed the decedent to seek a CT scan if
he did not feel better.
Five days later, on June 12, 2013, the decedent and his family moved from
Virginia to Idaho, a cross-country trip that lasted four days. Although the decedent’s
cough persisted during the drive and after the family arrived in Idaho, the decedent
seemed to be feeling better and was not in pain.
On June 24, 2013 -- 17 days after he presented to the emergency room in Virginia
-- the decedent’s cough suddenly worsened, and “he started coughing so hard that he
passed out.” J.A. 628. However, the decedent did not go to the hospital that night. The
next morning, he began to suffer from shortness of breath, and his wife called an
ambulance. The decedent stopped breathing entirely and went into cardiac arrest around
the time the ambulance arrived at the hospital. Efforts to resuscitate him were
unsuccessful, and he was pronounced dead shortly after his arrival at the hospital. An
autopsy concluded that a pulmonary artery thromboembolism2 caused the decedent’s
death.
2 A pulmonary artery thromboembolism is a blood clot located in the lungs. See
J.A. 552, 694.

-- 4 of 20 --

5
Appellee, the mother of the decedent and the administrator of his estate, filed a
medical malpractice action against Appellants on October 28, 2014, alleging that Dr.
Bailey failed to diagnose a pulmonary embolism that resulted in the decedent’s death.
The case eventually went to trial, which began on Wednesday, December 2, 2015. The
trial lasted four days.
B.
During jury selection, outside the presence of the other members of the venire, the
court individually questioned several potential jurors who indicated that they had heard of
Dr. Bailey. Some of these venire members expressed that they knew Dr. Bailey had
previously been accused of overprescribing opioids to his patients.
Prior to the start of the third day of trial, Appellants’ counsel informed the district
court that several local television stations had run a story about the trial and Dr. Bailey,
and one of those stations had posted an article about Dr. Bailey on Facebook. These
news reports stated,
A civil trial has begun against a Russell County doctor accused of
malpractice. The estate of Shawn Matthew McKee is suing Dr.
Dwight Bailey and two other defendants for $3 million. McKee died
while under Bailey’s care; one of five patients over a period of six
years. Last year, the Virginia Department of Health suspended
Bailey’s license to practice medicine for two years, finding Bailey
prescribed large amounts of opiate drugs to several patients with
drug-seeking behavior. Bailey and his co-defendants have denied
any negligence in the treatment of McKee.
J.A. 992. The Facebook post also included a headline reading, “Va. doctor on trial for
deadly malpractice involving drugs.” Id. at 993.

-- 5 of 20 --

6
The television news stories aired on several local stations’ 5:00 p.m. and 6:00 p.m.
newscasts on Thursday, December 3, 2015, and the Facebook article was posted around
the same time. After seeing the news reports, Appellants’ counsel contacted at least one
television station to correct the false statement that the trial involved drugs and to remove
prejudicial facts from the stories. As a result, an updated version of the Facebook article
was posted later that night, and the updated story ran on the 11:00 p.m. newscast on
December 3 as well as on the next morning’s newscast.
On the afternoon of Friday, December 4, 2015, after allowing Appellants’ counsel
time to obtain copies of the news reports, the district court asked the jurors if any of them
had been exposed to the reports. Four jurors indicated that they had. The district court
then excused the jury to the jury room and individually questioned each of the four
identified jurors about what they had been exposed to and whether it would affect their
fairness and impartiality. Two jurors stated that they were “in the other room” when the
television mentioned Dr. Bailey, and one of those jurors heard a statement about an
amount of money sought in the trial. See J.A. 912, 915. A third juror stated that he saw
the story “on the news” the previous evening and that it “mentioned the names, and . . .
said it was over, like an overdose, or something like that.” Id. at 917. This juror called
the news story “pretty much gossip” and said that “[i]t wasn’t anything we were doing
here today.” Id.
Only one juror saw the Facebook post. That juror explained that he was “scrolling
down Facebook” when he saw “Dr. Bailey’s picture . . . , and [he] clicked it.” J.A. 913.
He stated that the story “was stuff not even about this case” and “was something about

-- 6 of 20 --

7
[Dr. Bailey] over medicating, or something.” Id. at 913–14. This juror further stated that
he told the other jurors about seeing the Facebook post but did not go into detail about its
contents. A fifth juror heard another juror say that his wife told him “[t]hat the case was
about over medicating somebody, and that the amount being sued for was around
$3,000,000, [but] he put that off to reporters getting everything wrong.” Id. at 921. Most
importantly, each of these five jurors assured the district court that any information he or
she heard had no effect on his or her ability to be fair and impartial and had not
influenced his or her perception of the case.
Appellants moved for mistrial on the basis of the news reports and Facebook post,
arguing that the information had prejudiced the jury. The district court denied the
motion. In concluding that there was no “reasonable possibility or probability” that the
jury was influenced by the news reports, the district court determined that the jurors’
exposure was “brief and inconsequential” and that the jurors understood “what this case
is about, which doesn’t have anything to do with drugs.” J.A. 926, 929. The jury
returned to the courtroom, and the district court instructed the jurors to put the news
reports “out of [their] mind[s].” Id. at 931.
When trial resumed shortly afterward, Appellee’s counsel asked Dr. Bailey on
cross-examination if his “license ha[d] been suspended” and if Dr. Bailey “agreed to have
[his] license suspended.” J.A. 940. Appellants’ counsel objected to this line of
questioning, and the district court overruled the objection. After the jury had been
excused for the day, the district court asked Appellee’s counsel about the “relevance” of
the license suspension testimony and expressed concern that it was raised without

-- 7 of 20 --

8
advance warning to the court or to opposing counsel. Appellee’s counsel argued that the
questioning was appropriate because Appellants presented Dr. Bailey as an expert
witness on the issue of the standard of care.
Appellants’ counsel moved for mistrial, which the district court ultimately denied
on the next trial day, Monday, December 7, 2015. However, the district court concluded
that the questioning regarding Dr. Bailey’s suspended license was “unfairly prejudicial”
because “the license suspension had [nothing] to do with the issues of malpractice
asserted in this case.” J.A. 1010. In this regard, when the jury entered the courtroom that
morning, the district court explained to the jury that it “made a mistake” in overruling the
objection by Appellants’ counsel and instructed the jury to “completely disregard that
evidence, and not consider it or even discuss it in [the] deliberations.” Id. at 1013.
The jury eventually returned a verdict of $2.75 million in favor of Appellee.
Appellants filed a motion for new trial, arguing that the jury was influenced by the
negative news reports and the evidence that Dr. Bailey’s medical license was suspended,
among other issues. The district court denied the motion, holding that “the jury was not
prejudiced by the news reports,” J.A. 1527, and that the curative instruction as to the
license suspension issue “negated the information’s effect,” id. at 1536. Appellants
timely appealed.
II.
In general, we review the district court’s denial of a motion for mistrial or new
trial for abuse of discretion. See United States v. Johnson, 587 F.3d 625, 631 (4th Cir.
2009) (mistrial); United States v. Basham, 561 F.3d 302, 319 (4th Cir. 2009) (new trial).

-- 8 of 20 --

9
“[I]n cases involving possible improper communication with jurors, . . . we apply a
‘somewhat narrowed’ modified abuse of discretion standard that grants us ‘more latitude
to review the trial court’s conclusion in this context than in other situations.’” Basham,
561 F.3d at 319 (quoting United States v. Cheek, 94 F.3d 136, 140 (4th Cir. 1996)).
The district court abuses its discretion “when its conclusion is ‘guided by
erroneous legal principles’ or ‘rests upon a clearly erroneous factual finding.’” In re
Jemsek Clinic, P.A., 850 F.3d 150, 156 (4th Cir. 2017) (quoting Westberry v. Gislaved
Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999)). Further, the district court may not “act[]
arbitrarily, as if neither by rule nor discretion” or “fail[] to adequately take into account
judicially recognized factors constraining its exercise of discretion.” United States v.
Alvarado, 840 F.3d 184, 189 (4th Cir. 2016) (alterations and internal quotation marks
omitted). A new trial is warranted “only if the verdict: (1) is against the clear weight of
the evidence; (2) is based upon false evidence; or (3) will result in a miscarriage of
justice.” EEOC v. Consol Energy, Inc., 860 F.3d 131, 145 (4th Cir. 2017).
III.
A.
Jury Exposure to News Reports
1.
Appellants argue that the district court erred in denying their motions for mistrial
and new trial after several jurors were exposed to prejudicial news reports about Dr.
Bailey during trial. When “prejudicial publicity is brought to the court’s attention during
a trial,” the district court must first determine if any jurors were exposed to that publicity

-- 9 of 20 --

10
and then examine each juror “individually and outside the presence of the other jurors, to
determine the effect of the publicity.” United States v. Hankish, 502 F.2d 71, 77 (4th Cir.
1974) (quoting Margoles v. United States, 407 F.2d 727, 735 (7th Cir. 1969)). The
district court must then, “in its sound discretion, take appropriate measures to assure a
fair trial,” such as “cautionary instructions, excusing individual jurors when alternates are
available, or a mistrial if nothing else will cure the prejudice.” Id. (footnotes omitted). In
this case, the district court followed these procedures and gave a cautionary instruction to
the jury, charging the jurors to “put [the news reports] out of [their] mind[s].” J.A. 931.
We presume that the jury followed such an instruction where, as here, there is “no reason
to believe that the jury . . . ignored the curative instruction or otherwise was confused.”
EEOC v. Consol Energy, Inc., 860 F.3d 131, 146 (4th Cir. 2017). Thus, under Hankish,
the district court here did all that was required of it.
2.
Nonetheless, Appellant contends that the news reports should be deemed
presumptively prejudicial pursuant to Remmer v. United States (Remmer I), 347 U.S. 227
(1954), reh’g granted, 348 U.S. 904 (1955). In Remmer I, the Supreme Court held that
“any private communication, contact, or tampering, directly or indirectly, with a juror
during a trial about the matter pending before the jury” merits a presumption of prejudice
if it is “not made in pursuance of known rules of the court and the instructions and
directions of the court made during the trial, with full knowledge of the parties.” 347
U.S. at 229. The Remmer presumption applies when “the party attacking the verdict”
demonstrates that “extrajudicial communications or contacts [between a juror and a third

-- 10 of 20 --

11
party] were more than innocuous interventions.” Barnes v. Joyner, 751 F.3d 229, 245
(4th Cir. 2014) (quoting United States v. Cheek, 94 F.3d 136, 141 (4th Cir. 1996)).
Significantly, “not every allegation of an unauthorized communication between a juror
and a third party will trigger” the presumption. Id. at 244.
Appellee argues that the Remmer presumption does not apply to juror exposure to
public communications such as news reports. But we need not reach the issue because
Appellant’s arguments fail even if we apply the Remmer presumption in this case.3 Upon
application, “[t]he burden . . . shifts to the prevailing party to prove that there exists no
reasonable possibility that the jury’s verdict was influenced by an improper
communication.” Cheek, 94 F.3d at 141 (internal quotation marks omitted). In
determining whether such a possibility exists, the district court is to consider the extent of
the improper communication; the extent to which the communication was discussed and
considered by the jury; the type of information communicated; the timing of the
exposure; and the strength of the opposing party’s case. See United States v. Basham,
561 F.3d 302, 320 (4th Cir. 2009). Of these, the extent of the communication is “the
most important factor.” Id.
The district court properly considered these factors here. It determined that the
jurors’ exposure to the news reports was “brief and inconsequential.” J.A. 929. Indeed,
the jurors’ combined exposure lasted, at most, several minutes. One juror saw the entire
3 The district court applied the presumption “out of an abundance of caution” and
reached the same result. See J.A. 1525.

-- 11 of 20 --

12
20-to-30-second news clip on television, and two others heard parts of the segment from
another room in their homes. Only one juror “took an affirmative step” to intentionally
read the Facebook post about the trial. Id. at 1527. The district court referred to this
juror’s conduct as “a momentary lapse in judgment” but determined that the juror “had
not been prejudiced” by the information. Id. at 1528. Notably, Appellants did not
request that this juror, or any of the others, be removed from the panel due to their
exposure to the news reports.
Moreover, after questioning each juror individually about what he or she heard or
saw, the district court concluded that the jurors “believe[d] that the TV station just got it
wrong” and that they understood the case “doesn’t have anything to do with drugs.” J.A.
929. The jurors’ brief exposure to the news reports gave them very little opportunity to
glean any prejudicial information, and no juror indicated that he or she learned from the
news reports that Dr. Bailey’s medical license had been suspended. Most importantly,
the district court “d[id] not believe that anything [the jurors] saw or heard influenced
them such that they would be incapable of rendering a fair and impartial verdict in the
case.” Id. To emphasize that the jurors were not to further consider the news reports, the
district court also told the jurors that the reports did not “ha[ve] any relation to this case”
and instructed them to “put [anything they had seen or heard] out of [their] mind[s].” Id.
at 931.4
4 Additionally, at least one of the jurors who was exposed to the news reports
already knew that Dr. Bailey had previously been accused of overprescribing opioids to
his patients. Juror Kilgore was among the potential jurors who stated during jury
(Continued)

-- 12 of 20 --

13
3.
On the whole, the record demonstrates that the district court took the issue of
improper influence seriously. Appellants were permitted to collect the news reports and
provide copies to the district court before the district court raised the issue with the jury.
The district court asked each juror who was exposed to the news reports about what he or
she read or heard and whether that would affect his or her perception of the case. The
jurors indicated that they believed the story was not related to the trial and that they
understood not to consider the information. The district court, which was in the best
position to observe the jurors’ demeanor and evaluate their credibility, determined that
the jurors did not “draw any [prejudicial] conclusions” from the news reports. J.A. 1526.
Nothing about the district court’s process or its ultimate conclusion suggests an abuse of
discretion. It employed the Remmer presumption despite doubts about the applicability
of the Remmer presumption to public communications, conducted the required
evidentiary hearing, and determined that there was no reasonable possibility that the news
reports improperly influenced the jury. Even under the “narrowed” abuse of discretion
standard we must apply here, there are no grounds for reversal.
selection that they had heard of Dr. Bailey and his alleged over-prescription of opioids.
Yet, neither party moved to have Juror Kilgore excluded for cause as a result of the fact
that he knew this information.

-- 13 of 20 --

14
B.
Cross-Examination Regarding License Suspension
Appellants contend that the district court erred in denying their motions for
mistrial and new trial after Appellee introduced evidence at trial that Dr. Bailey’s medical
license had been suspended. According to Appellants, the probative value of this line of
questioning was substantially outweighed by its prejudice to Dr. Bailey. In addition,
Appellants emphasize that the questioning violated an agreement between the parties, not
to mention in the presence of the jury, that Dr. Bailey’s license had been suspended.
1.
The district court initially overruled Appellants’ objection but ultimately
determined that the testimony about Dr. Bailey’s license suspension was unfairly
prejudicial because the reason for the suspension was unrelated to the case. The district
court has “broad discretion” to make this determination, and we see no reason to disturb
the district court’s decision to ultimately exclude the evidence. See Minter v. Wells
Fargo Bank, N.A., 762 F.3d 339, 349 (4th Cir. 2014) (“Under Federal Rule of Evidence
403, determining whether the probative value of evidence is substantially outweighed by
the danger of unfair prejudice, misleading the jury, or confusion of the issues is within
the district court’s broad discretion.”).
2.
The parties agreed prior to trial that Appellee would “not seek to inform the jury
that Dr. Bailey [wa]s . . . not licensed to practice medicine unless [Appellants]
introduce[d] evidence which ma[de] Dr. Bailey’s lack of a license relevant.” J.A. 1280.

-- 14 of 20 --

15
Then, during trial, when they called Dr. Bailey as an expert witness as to the standard of
care in a medical malpractice action,5 Appellants made this issue relevant. Appellants
asked Dr. Bailey if he “believe[d] that [his] care and treatment of [the decedent] met the
standard of care” and asked him to explain why he believed the standard of care had been
met. Id. at 903.
Under Virginia law, a standard of care witness in a medical malpractice action
who is not licensed by the state at the time of trial must have “had active clinical practice
. . . within one year of the date of the alleged act or omission forming the basis of the
action” to be qualified to testify as to the applicable standard of care. See Va. Code Ann.
§ 8.01-581.20 (2015). Dr. Bailey technically met this requirement. However, the fact
that Dr. Bailey was not licensed at the time of trial is clearly relevant to the credibility of
his testimony that he “believe[d]” -- at the time of trial -- that he satisfied the standard of
care when he treated the decedent. Therefore, Appellee was well within the realm of
reasonableness to ask Dr. Bailey about the suspension of his license.
5 There is some question as to whether Dr. Bailey was properly designated to
testify on this subject in the first place. Appellants’ initial expert disclosures state that
Dr. Bailey would testify “to the subject matters of causation, damages, and his care and
treatment of [the decedent].” J.A. 1281–82. To the extent that the standard of care may
be subsumed within “care and treatment,” Appellants technically designated Dr. Bailey
as a standard of care expert. However, the fact that there was some confusion at trial as
to the extent of Dr. Bailey’s expert testimony suggests that Appellants’ language should
have been clearer if in fact they intended to designate Dr. Bailey as a standard of care
expert from the outset.

-- 15 of 20 --

16
3.
Further, the district court took sufficient measures to mitigate the possibility that
the jury would be influenced by the evidence. At the earliest opportunity after
determining that it should have sustained Appellants’ objection to the questioning, the
district court explained that it “made a mistake” and instructed the jury to “completely
disregard that evidence, and not consider it or even discuss it in [the] deliberations”
because it “ha[d] nothing at all to do with this case, or with the treatment of [the
decedent] by Dr. Bailey.” J.A. 1013. We see no inherent prejudice to Appellants in the
fact that the district court modified its ruling admitting the testimony after a weekend
recess, and the delay in providing the curative instruction does not in itself indicate abuse
of discretion. See United States v. Wallace, 515 F.3d 327, 331 (4th Cir. 2008). The
district court, which “was in the best position to assess” the impact of the evidence on the
jury, concluded that the curative instruction it gave was sufficient. See Arizona v.
Washington, 434 U.S. 497, 514–15 (1978).
Moreover, Appellants were permitted to present an additional expert witness to
testify as to the standard of care. Under these circumstances, the district court did not
abuse its discretion by initially overruling Appellants’ objection to the line of questioning
about the suspension of Dr. Bailey’s medical license.
C.
The remaining issues raised by Appellant likewise do not warrant granting a new
trial.

-- 16 of 20 --

17
1.
Exclusion of Testimony Regarding Dr. Bailey’s Discharge Instructions
The district court took great care to avoid the presentation of evidence that would
create an inference of contributory negligence on the part of the decedent, given that
Appellants were barred from asserting this defense. See Chandler v. Graffeo, 604 S.E.2d
1, 5 (Va. 2004) (“To constitute contributory negligence in a medical-malpractice case
[pursuant to Virginia law], a plaintiff’s negligence must be contemporaneous with the
claimed defendant’s negligence.”). The district court held prior to trial that there was no
evidence of contemporaneous negligence on the part of the decedent, and Appellants do
not challenge that ruling on appeal. On this basis, the district court properly excluded
evidence that the decedent’s wife told the emergency room physician at the hospital in
Idaho that Dr. Bailey instructed the decedent to obtain a CT scan if he did not feel better.
To the extent that this evidence supported Appellants’ assertion that a CT scan
was unnecessary because the decedent improved with treatment, this argument was
presented at trial. Dr. Bailey testified about his discharge instructions, and several other
witnesses testified that the decedent did feel better in the days leading up to his death.
Additional testimony on this point from the decedent’s wife was therefore unnecessary,
and it is unlikely that its exclusion prejudiced Appellants.
2.
Jury Instruction Regarding “Duty” to Arrange CT Scan
We also find no abuse of discretion in the district court’s jury instruction “that
after seeing Dr. Bailey, [the decedent] had no duty to arrange his own CT scan.” J.A.

-- 17 of 20 --

18
1127. The district court apparently thought it necessary to give this instruction in order to
prevent an inference of contributory negligence because it was “not an issue in this case”
and there was “no evidence supporting” it. Id. at 1084. “[W]e accord the district court
much discretion to fashion the charge.” Noel v. Artson, 641 F.3d 580, 586 (4th Cir. 2011)
(internal quotation marks omitted). Even if the district court could have framed the
instruction differently, there is nothing in the record to indicate that its failure to do so
“seriously impaired [Appellants’] ability to conduct [their] defense.” United States v.
Passaro, 577 F.3d 207, 221 (4th Cir. 2009) (describing standard for “reversible error in
refusing to provide a proffered jury instruction”). Appellants argued at trial that a CT
scan was entirely unnecessary because the decedent’s condition improved with the
treatment Dr. Bailey prescribed. By contrast, Appellee’s expert witnesses testified that a
CT scan was required despite any later improvement. The jury was entitled to believe
either standard of care theory. In this light, giving the instruction as Appellants requested
-- or not giving it at all -- would have no bearing on the evidence Appellants presented at
trial.
3.
Jury Instruction Regarding “Corroboration” of Dr. Bailey’s Testimony
For similar reasons, we find no reversible error in the district court’s instruction
that “[t]here can be no verdict against the plaintiff based on the uncorroborated testimony
of Dr. Bailey.” J.A. 1127. The jury instructions are deemed sufficient if “construed as a
whole, [they] properly informed the jury of the controlling legal principles without
misleading or confusing the jury.” Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 775

-- 18 of 20 --

19
(4th Cir. 1997). The district court’s instruction with regard to the uncorroborated
testimony of Dr. Bailey was an accurate statement of Virginia law. See Va. Code Ann.
§ 8.01-397 (2015) (providing that “[i]n an action by or against any person who . . . is
incapable of testifying, . . . no judgment . . . shall be rendered in favor of an adverse or
interested party founded on his uncorroborated testimony”). Moreover, any resulting
prejudice to Appellants is minimal because there is nothing to indicate that the jury
disregarded any of Dr. Bailey’s testimony for lack of corroboration.
4.
Damages
Finally, we find no error in admitting the damages calculation performed by
Appellee’s damages expert. To calculate the decedent’s personal consumption of his
expected income for the remainder of his lifetime, Appellee’s expert used information
about the decedent’s income, family size, and the number and ages of the children in the
household, as well as statistical rates corresponding to this data. To determine the value
of the household services performed by the decedent, the expert spoke with the
decedent’s wife about the kinds of activities the decedent performed in the household and
the amount of time per week the decedent spent doing these tasks. The expert then
multiplied the amount of time spent by the national average hourly rate for such services.
Appellants assert that the expert “inflated” the overall damages calculation by
failing to include facts related to the decedent’s financial situation and by relying on
national statistical data not tailored to the decedent personally. However, the expert
employed an “accepted method” of determining an individual’s projected consumption

-- 19 of 20 --

20
by applying facts specific to the decedent and his family to the statistical data. See J.A.
170. He also explained that he used a national rate to determine the value of the
decedent’s household services rather than a local rate because the decedent lived in “two
places . . . almost completely across the country,” and because the rate included “a
variety of jobs.” Id. at 679. Absent some other indication that the expert’s methodology
was unreliable, it cannot be said that the district court abused its discretion in permitting
the expert to testify as to this calculation. See United States v. Wilson, 484 F.3d 267,
273–74 (4th Cir. 2007) (stating that “the test of reliability is flexible” and discussing
district court’s discretion in determining whether expert testimony is reliable).
IV.
For the foregoing reasons, the order of the district court is
AFFIRMED.

-- 20 of 20 --