VIRGINIA

a. Yes. Generally, in Virginia, all relevant evidence is admissible. Evidence is relevant if it is both probative (i.e., it makes a fact more or less likely) and material (of consequence in the case at hand). Even relevant evidence can be excluded, however, including when it is unnecessarily cumulative or repetitive.

In this case, the Court is within its discretion to determine that Sally does not need ten witnesses who are all going to be testifying as to the same general matter--i.e., that Sally’s injury as impacted her life. Most of the witnesses Sally wishes to call knew her from the same context, as coworkers, and planned to testify about the same or similar observations. By limiting the number of witnesses Sally can call, the Court will reduce repetition and can still ensure that Sally will not be prejudiced, because she should be able to make the point she wishes to make by calling forth the three witnesses, rather than ten.

In conclusion, because the witnesses had similar relationships with Sally and were going to testify about the same general observations, the Court was correct to sustain GrassyWorks’ objection and limit the witnesses to three.

b. No. In Virginia, a party’s attemtps to make a product safer, including through new designs or models, cannot be admitted as evidence that the party was negligent in its previous design. This evidence can be admitted for other reasons, including for impeachment purposes.

However, in this case, Sally is not seeking to admit evidence of the new model to provethat the earlier model was defective; instead, she is attempting to respond to the expert’stestimony that it would not be “feasible” to design the product differently with a different composition of the safety flap. In this case, because the evidence could impeach the expert’s testimony, it should be admitted.

In conclusion, the Court erred in sustaining the objection to the introduction of evidence of the design change on the newer model of mower.

c. Yes, the court was correct. While all relevant evidence is generally admissible, Virginia applies certain exceptions to this rule, including a rule that allows relevant evidence to be excluded if the danger of prejudice to a party outweighs the probative nature of the evidence.

In this case, the photo fo Sally marching at an unpopular protest and carrying a sign with offensive language is very likely to be prejudicial, and GrassyWorks can accomplish its goal of showing Sally engaging in physical activities without showing this particular photo.

Therefore, because the danger of prejudice to Sally outweighed the probative value of the photo, the Court correctly sustained Sally’s motion objecting to the introduction of the photograph of Sally at the protest.

d. In Virginia, in order to preserve an objection for appeal, an attorney must make a contemporaneous objection or offer of proof when the ruling is made allowing evidence or refusing to admit it. The attorney must state the grounds for the objection with reasonable certainty.

In this case, when the Court excluded the testimony of GrassyWorks’ in house engineer regarding the design change, Sally’s attorney should have made an offer of proof. Upon making an offer of proof, the parties would have met with the judge outside of the presence of the jury, and Sally’s attorney would have described the evidence for the record. This way, the evidence, and the Court’s exclusion of the evidence, would appear on the court transcript and would be preserved in the record for appeal.

In conclusion, after the Court excluded the testimony of GrassyWorks’ in house engineer regarding the design change to the mower, Sally’s attorney should have made an offer of proof and engaged in a discussion with the judge to explain what the evidence was and the reasons for the objection; these actions would have preserved the evidence and objection to the Court’s ruling for appeal.

7a. The Court was correct in sustaining the objection to the testimony of the ten witnesses and limiting the number to three to prevent unnecessarily cumulative evidence.

Relevant evidence is evidence that makes a fact in the case more or less likely. Evidence, including testimony, that is unnecessarily cumulative may be limited within the Court's discretion.

Here, the plaintiff wished to introduce 7 coworkers to testify about Sally's difficulties walking and standing for long periods. GrassyWorks' attorney objected as this was repetitive and would not aid the jury. The Court properly heard a summary of this proposed testimony and then limited Sally's attorney to calling three of the witnesses.

Since it seems that Sally's coworkers' testimony was going to be about the same facts--her difficulty standing and walking at work--it was within the Court's discretion to limit this testimony to less witnesses based on it being unnecessarily cumulative.

7b. The Court erred in sustaining the objection to the introduction of evidence of the design change on the newer model of mower.

Evidence of a subsequent remedial measure is barred from being introduced into evidence as evidence of liability. This is because the rules of evidence do not want to deter parties from making their products safer. However, this rule does not apply when the subsequent remedial measure is being introduced into evidence to show that a safer product was feasible. In that instance, it should be permitted.

Here, GrassyWorks' in-house engineer testified that another option for the flexible safety flap on the mower was not feasible. Sally's attorney sought to intoduce the newer version of the model that was modified to have a rigid safety flap. While this evidence cannot be introduced to show liability, it can be introduced to counter the engineer's testimony that a different option was not feasible. Accordingly, the Court erred in sustaining the objection to evidence of the design change. The Court should have allowed the evidence, but with a limiting instruction that it may only be considered for the feasibility for a safer design.

7c. The Court was correct in sustaining the objection to photos of Sally at the protest.

Relevant evidence may not be permitted if its probative value is substantially outweighed by unfair prejudice. The Court may consdier other evidence that the party is putting on and the totality of the circumstances when deciding whether evidence should be excluded under this rule.

Here, GrassyWorks sought to introduce evidence of Sally engaged in physical activities through various photographs, including her jogging and lifting heavy objects. The Court was within its discretion to determine that evidence of her marching in a very unpopular political protest with very offensive language would cause unfair prejudice to her case.

This unfair prejudice would be outweighed by the photo's probative value in light of the other photos of her engaged in various physical activies. The other photos of her engaged in physical activity provide the same purpose to counter Sally's claims of physical injury, without a risk of unfair prejudice against Sally. Therefore, the Court was correct in sustaining the objection to the photos of Sally at the protest.

7d. The issue is the steps Sally's attorney should have taken to preserve the evidence and her objection on appeal.

When the Court sustains an objection to the admission of evidence, the party seeking to introduce the evidence must make an offer of proof on the record. The offer of proof on the record should be made outside of the jury's presence and state what the evidence would have shown had the objection not be sustained, stating why the party was seeking to introduce the evidence and their arguments against the objection. Otherwise, the Court of Appeals will only reverse the decision based on plain error.

Here, the Court sustained an objection to evidence of the newer model while outside the presence of the jury. While still outside the presence of the jury, Sally's attorney should have made an offer of proof explaining that the newer model sought to be introduced to show that a safer design was feasbile to counter the in-house engineer's testimony. This preserves the issue for appeal.