2007 Virginia Supreme Court Decisions

Digests of Recent Virginia Supreme Court Decisions
January - August 2007


Philip Morris v. Williams, United States Supreme Court, February 20, 2007

This is the latest United States Supreme Court case involving the constitutional limits of punitive damages.

The plaintiff’s decedent was a cigarette smoker who sued Philip Morris for causing his cancer and his death. He was a heavy smoker. He was awarded by the jury $821,000 in compensatory damages and $79,500,000 in punitive damages. The trial court, on motion of Philip Morris, reduced the punitive damage award to $32,000,000 and both sides appealed. The Oregon Intermediate Appellate Court restored the full amount, the writ was denied by the Oregon Supreme Court thus affirming the Intermediate Court’s position. The case was appealed to the United States Supreme Court which remanded in view of their very recent decision in State Farm v. Campbell. The Oregon Intermediate Court adhered to its original views, and the Oregon Supreme Court affirmed. The United States Supreme Court then accepted review.

There were two issues that concerned the United States Supreme Court. The first was whether the amount of the punitive damages, in light of the compensatory damages, was excessive and therefore violated the due process clause. Note that the ratio is almost 100-1. The Court did not decide this issue.

The second, and decisive issue, had to do with whether the Constitution’s Due Process Clause forbids a State from using punitive damages to punish a defendant for injury that the defendant inflicts on nonparties. During the course of the trial the plaintiff’s counsel had argued to the jury that there were many other victims like the plaintiff, that in fact ten out of every one hundred deaths were caused by cigarettes and that one third of those, by market share, Philip Morris was responsible for. The defendant asked for an instruction which stated that the jury could “consider the extent of harm suffered by others in determining what [the] reasonable relationship is” between any punitive award and “the harm caused to [plaintiff]” by Philip Morris’ misconduct, “but you are not to punish the defendant for the impact of its alleged misconduct on other persons, who may bring lawsuits of their own…” This instruction was refused by the trial court, which decision was upheld by the Oregon Appellate Courts.

The United States Supreme Court reversed 5-4. Basically the majority held that “the Constitution’s Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts on nonparties…” Note however, that the Court majority says that the jury may consider harm to others in considering reprehensibility. Evidence of actual or potential harm to nonparties can show that the conduct that harmed the plaintiff was a potential or actual harm to the general public and therefore more deserving of punitive damages than conduct that affects only a single person and the jury may consider that, but they jury may not go farther and award damages for the harm visited on the nonparties. If you have trouble with this distinction, so did the dissents.

Note the odd lineup. Majority; Breyer, Roberts, Alito, Kennedy, Souter. Dissents; Scalia, Thomas, Ginsburg, Stevens.


Lambert v. Javed, Virginia Supreme Court, March 2, 2007

This is a case involving the statute of limitations.

The plaintiff was injured severely in an accident on April 22, 2001 involving an all terrain vehicle and was taken to the hospital. It was alleged that the doctors there negligently treated him and he died as a result of that treatment on May 8, 2001. Suit was properly filed against several of the defendants on April 18, 2003, within the statute of limitations. On August 22, 2003, the plaintiffs filed a second suit against the same defendants, but added and additional count and another couple of defendants. Note that this case was filed after the statute had run. The plaintiff then nonsuited the first case, and refiled it (minus a defendant) well within the six month period given after a nonsuit is filed. However, after that the defense moved to dismiss the second suit on the grounds that it was barred by the statue of limitations, and this was granted. The defense then moved to dismiss the third suit on the grounds of res judicata because the second suit had been dismissed with prejudice. The trial court agreed and dismissed the third case and the Virginia Supreme Court, 5-2, affirmed.

The majority felt that a dismissal “with prejudice” extinguishes the rights of the parties permanently. Note that when the motion for dismissal on the grounds of the statute was brought in the second case the plaintiff moved for a nonsuit, but the trial court denied this. The Virginia Supreme Court noted that no appeal of that ruling was made.

Practice pointer: there is some danger in filing pocket suits without carefully thinking. Removal to federal court? Statutory or service problem results in a dismissal on the merits of the pocket suit may prejudice the main suit.

(Note – Hughes is the employer/employee case where the dismissal of the employee on the basis of the statute does not end the liability of the employer, even though “with prejudice” because it is not “on the merits.” (5-2).


Doherty v. Aleck, Virginia Supreme Court, March 2, 2007

This is a medical malpractice case. The plaintiff was a 74 year old who suffered from diabetes and heart failure and a number of other serious medical conditions. He developed a problem with his left great toe which was treated by the defendant, a podiatrist. After several months of conservative treatment the podiatrist operated on the toe. It later became infected and was totally removed by another surgeon. Suit was brought and the claim was that the plaintiff patient was such a poor medical risk for that operation that it should never have been performed at all, and that continued conservative treatment was the appropriate method of proceeding and if that course had been followed that the toe would have been saved. The plaintiff won an $850,000 verdict before the jury, but the trial judge, on motion of the defendant, set the verdict aside and the plaintiff appealed.

There were several issues. The most important is that the defendant argued that the plaintiff’s expert never testified that the defendant doctor breached the standard of care”to a reasonable degree of medical probability.” In short, that the expert never used the magic words in his testimony. The Virginia Supreme Court noted that this is an objection to the admissibility of the evidence, not the sufficiency of the evidence. Thus any objection must be contemporaneous. A party cannot wait until all the testimony has been concluded and then object that the magic words weren’t used. Therefore this objection was waived.

The Supreme Court then reviewed the evidence as to breach and causation and felt that there was enough evidence to go to the jury, and thus reversed the case for the plaintiff and remanded.

Practice pointer; there has been some discussion among the lawyers at our firm as to whether when a deposition is taken of an expert and the magic words are not used that one needs to object at the time or whether one can wait until trial and object. While this case does not precisely answer that question, the emphasis on a contemporaneous objection would lead one to believe that waiting until trial to object is probably to have waived the objection.


Commonwealth of Virginia V. Epps, Virginia Supreme Court, March 2, 2007

This case involves Judge Pamela Baskerville and the Sheriff of Petersburg.

Those who have been to the Petersburg Courthouse know that it is not in the best area of town. The presiding Judge, Pam Baskerville, thought that security was needed and reached an agreement with the Sheriff to provide security, a deputy at the door, from 8:00-4:30. About a year later the Sheriff said that as the result of funding cuts he was no longer able to do this, and that deputies would be present only when the court was in session, and would leave when the session ended. Judge Baskerville, upon being informed of this, had a sign posted on the courthouse door stating that that the court was closed due to lack of security and if one wanted entrance to call a listed number. The Sheriff removed the sign form the door. The Judge then ordered that another sign be posted along with a court order requiring that the door be locked when security is not provided and that a listed number for called for those requiring entrance into the courthouse. This notice and order was also removed by the sheriff, who, upon demand, returned the sign but not the order. A contempt hearing was held presided over by Judge O’Hara where Judge Baskerville, over objection, testified to the facts and the Sheriff was held in contempt of Court.

On appeal the Sheriff argued that a statute holds that Judges are not competent to testify on matters that have come before them unless they are victims of a crime applied and since Judge Baskerville was not the victim of a crime committed by the Sheriff she could not testify. The Court of Appeals agreed with the Sheriff and reversed the contempt conviction, holding both that the matter had come before Judge Baskerville and that she was not a victim. The Virginia Supreme Court agreed with the Court of Appeals on the issue that Judge Baskerville was not the victim of a crime. On the issue of whether this was an issue that has “come before” Judge Baskerville in her official capacity as a Judge the Virginia Supreme Court said that the Commonwealth had not appealed this issue from the Court of Appeals. However, they cited the dissent in the Court of Appeals on this issue thereby indicating that if this issue had been appealed it would have at least merited serious consideration.


Raytheon v. Hyland, Virginia Supreme Court, March 2, 2007

This is a defamation case. The plaintiff had been an employee of a company, a subsidiary of Raytheon, for 21 years and she was terminated in part as the result of certain findings by a consulting group. Much of the case was apparently resolved below. For the purposes of this opinion the plaintiff had identified five defamatory statements that were made about her, and the jury, upon instruction, considered them and awarded the plaintiff $1,500,000 in compensatory damages and $2,000,000 in punitive damages. The Court, of course, reduced the punitive claim to $350,000 pursuant to the limitation contained in the Virginia Code, and affirmed the rest of the verdict.

The defense argued on appeal that the statements were privileged, and that the privilege could only be overcome by a showing with clear and convincing evidence of malice, and that the evidence didn’t support this. However, the Virginia Supreme Court noted that the defense did not assign error to the jury’s finding of punitive damages. Since the standard for punitive damages, knowing the statements were false, is almost identical to the standard for malice, and the sufficiency of the evidence in the punitive aspects was not challenged, the Virginia Supreme Court refused to consider the challenge to the malice claim.

The Court then considered five allegedly defamatory statements. Note that the law of defamation is that opinions are not actionable, only facts are. Therefore the Court considered whether each of the five statements were statements of fact which could be (and had at trial) been proven false, or whether they were non actionable statements of opinion. The five alleged defamatory statements are as follows;

Cynthia and her team met their cash goals, but were significantly off plan on all other financial targets including Bookings by 25%, Sales by 11.5%, and profit by 24%.

Cynthia lead [sic] RTSC in the protest of the FAA's evaluation selection process for the TSSC contract and through a difficult procurement for the TSA, both of which demanded her constant attention. These visible losses created significant gaps in our strategic plans and in her business unit financial performance.

Cynthia is frequently verbose and vocal in her opinions, to a degree that others sback to top participating in open dialogue.

She has received specific feedback from her customers, the Beacon group study, her employees, and her leader on her need to listen and learn from others, yet she has appeared to be unwilling to accept and work with this feedback.

Cynthia has also been inappropriately and openly critical of her leader, her peers, and other leaders in the company. This behavior is not only destructive to the team, it negatively impacts her image in the eyes of others, including customers.

The Virginia Supreme Court held that the first two statements were statements of fact, but the last three contained opinions. Since three of the five statements considered defamatory were statements of opinion, at least in part, that should not have been considered by the jury the case was reversed for a new trial.


Allstate v. Gauthier, Virginia Supreme Court, March 2, 2007

This case deals with an interpretation of an insurance policy.

The plaintiff owned a boat which had a defective water pump. He removed the pump to have it repaired at a repair shop. However, the removal of the pump left a hose which went to a hole that went out of the boat. If left alone the boat would have filled with water and sank. There was a valve that would have closed the hole but the plaintiff apparently didn’t know about it and instead took a rake handle and stuck it into the hose plugging it up, and carefully placed the other end on the engine. This seemed fine when left the boat. But, overnight the wind rose and rake handle came lose and the boat sank.

The Allstate insurance policy did cover negligent acts but excluded losses resulting from “repairing, renovating, servicing, or maintenance…” of the boat. Therefore, relying on this, they refused to pay. The plaintiff boat owner argued that the case of the sinking was not the servicing of the repair pump, which was to be done by someone else, but his failure to close the valve. The trial court agreed and declared that Allstate should pay, and the Virginia Supreme Court agreed with the trial court.

The significant item for trial lawyers is that the Virginia Supreme Court repeated the doctrine that “exclusions in insurance policies must be read narrowly in favor of coverage” and “exclusionary language in an insurance policy will be construed most strongly against the insurer and the burden is upon the insurer to prove that an exclusion


Taboada v. Daly Seven, Virginia Supreme Court, March 2, 2007

On March 3, 2006 the Virginia Supreme Court issued an opinion in Taboada v. Daly Seven, Inc. in which it held that an innkeeper could be responsible for criminal acts of third persons in a broad variety of situations due to the special nature of the innkeeper/guest relationship, and that the responsibility that went with this special relationship exceeded that of business/invitee for example. The innkeeper filed for a rehearing which was ultimately granted. The Virginia Supreme Court, having reheard the case, this day decided 5-2 to affirm its prior ruling.

The dissent, 15 pages long, was by Justices Agee and Kinser.


Nussbaum v. Berlin, Virginia Supreme Court, March 2, 2007

This case involves the authority of a trial judge to issue sanctions against an attorney.

The underlying case was a medical malpractice case. During the cross examination of a witness one of the attorneys stood and objected and made some comments. The cross examining attorney stated that some of the comments that the objecting attorney was making were not true. Shortly after a sidebar conference the co-counsel of the objecting lawyer, Robert Nussbaum, allegedly pushed the cross examining lawyer and stuck his elbow into his chest and told him not to do that again. The bailiff saw this and reported it to the Judge, who apparently did not see it. The Judge declared a mistrial, thinking that the jury may have seen it, and held Nussbaum in contempt of court and fined him $250. In addition he awarded attorney’s fees and costs in the amount of $50,000 to the other lawyers for the time and expense they had incurred as the result of the mistrial and subsequent hearings.

The case was appealed, and the question was whether a trial court judge in Virginia has the inherent power to impose a monetary sanction comprised of an award of attorneys’ fees and costs to the opposing parties. The Virginia Supreme Court held that the trial judge does not have that inherent power, and reversed.


W. R. Hall v. Hampton Roads Sanitation Dist.
Estes Express Lines v. Chopper Expres, Virginia Supreme Court, March 2, 2007

These are two different cases which discuss the same basic issue, whether one can in a contract indemnify against one’s own negligence.

In Hall, a construction company entered into a contract to install and replace sewer lines with the Hampton Roads Sanitation District. The lines ran under a railroad line, and the railroad allowed the work to be done on its property. However, in the contract the railroad required that if anyone be hurt during the construction and sues the railroad that the contractor would indemnify the railroad for any loss, even if the negligence that caused the injury was caused by the railroad, as allegedly happened in this case.

In Estes, a truck leasing company contracted to lease trucks to a trucking company. In the contract was a clause that stated that the trucking company would indemnify the leasing company for any injury suffered by an employee of the trucking company. An employee of the trucking company did get injured, allegedly as the result of negligence maintenance by the leasing company, and the leasing company sought indemnification for its own alleged negligence.

The Virginia Supreme Court held in both cases that while it was against public policy for there to be pre injury releases for personal injury claims there was not a public policy prohibition against indemnification clauses for personal injury claims even for ones own negligence.


Fitzgerald v. Commonwealth of Virginia, Virginia Supreme Court, April 20, 2007

This is a criminal case which discusses the ability of a licensed professional counselor to testify as an expert witness that a person suffered from Post Traumatic Stress Disorder (PTSD).

The case involved a criminal case against a stepfather for sexual molestation of a stepdaughter, who was under 13 at the time. As part of the case the Commonwealth called as an expert witness a licensed professional counselor. The background was that the counselor had both a bachelor’s and a master’s degree in counseling, had completed three years of supervised clinical training and had practiced for nine years as a licensed professional counselor with a primary emphasis on abused children. She met with the alleged victim on at least six occasions, and concluded that the child victim suffered from PTSD. The counselor also testified that she was very familiar with PTSD having encountered it regularly in her clinical training as well as in her academic studies. She did admit that it was a psychiatric diagnosis, but stated that it is often made not just by psychiatrists but by many other health professionals. The defense objected, arguing that the counselor did not have the clinical ability to make that diagnosis, which, they argued, had to be made by a either a psychiatrist or a psychologist. The trial court overruled the objection and the defense appealed. The Court of Appeals affirmed the conviction.

The Virginia Supreme Court also affirmed. They noted the general rule that “all that is necessary for a witness to qualify as an expert is that the witness have sufficient knowledge of the subject to give value to the witness’s opinion.” They also noted that in John v. Im they had held that only a medical doctor may testify as to the causation of a human physical injury. The ruling was that a properly qualified licensed professional counselor\r may testify as the diagnosis of PTSD.


Isbell v. Commercial Investment Associates, Virginia Supreme Court, April 20, 2007

This is the Virginia Residential Landlord Tenant Act case. Basically the plaintiff filed suit for an accident which occurred on worn stairs within the leased premises, not in a common area. Thus, at common law, there was no duty in tort for the landlord to maintain. A contract right in these circumstances, such as a contract within the leaser to keep the stairs in repair, would only give right to contract remedies, not tort remedies. However, the plaintiff alleged that the Virginia Landlord Tenant Act, which gave duties to the landlord, changed this. The trial court disagreed, and dismissed the case. The plaintiff appealed.

The Virginia Supreme Court sustained the trial judge and affirmed the dismissal. Basically it said that the statute was, allegedly, in derogation of the common law (common law – no tort duty on the landlord) and therefore unless the legislature evidenced in the statute that it clearly meant to change the common law that no change would be implied. Here they failed to find a clear intent to change the common law tort duties, and therefore affirmed the trial judge’s dismissal of the case.


Conley v. Commonwealth, Virginia Supreme Court, April 20, 2007

This is a criminal case where the Court discussed the ability of a non-physician expert to diagnose Post Traumatic Stress Disorder (PTSD).

The defendant was convicted of abduction with intent to defile and forcible sodomy with a child under the age of 13. At trial the Commonwealth, over objection, called a licensed clinical social worker who testified that the victim suffered from PTSD. The defense objected on the grounds that a licensed clinical social worker is not an MD and therefore is not qualified back to top make that determination. Note that the Commonwealth conceded that the social worker could not opine on causation. The trial court overruled the objection and the social worker testified that the victim did suffer from PTSD. Note that there was extensive voir dire to show that the social worker had significant experience and training in the diagnosis of PTSD.

The Virginia Supreme Court upheld the trial judge and affirmed the conviction. They reviewed Combs v. Norfolk and Western and John v. Im and noted that those cases hold that only a medical doctor may give an expert opinion regarding the cause of a human injury. However, they distinguished those cases from this case by noting that in this case the expert was not called upon to testify as to causation. They held that the diagnosis and treatment of mental disorders is not a field reserved exclusively to medical doctors but is also covered by other professionals who are educated and trained to provide such services. The Court noted that by statute licensed clinical social workers may provide” diagnostic…” services. Therefore, if otherwise qualified, a licensed clinical social worker may testify as to the diagnosis and treatment of mental conditions such as PTSD.


Budd v. Punyanita, Virginia Supreme Court, April 20, 2007

The plaintiff here lost a medical malpractice case and appeals, and the Virginia Supreme Court decided one issue on appeal, and that is the trial judge’s refusal to allow the plaintiff to introduce certain medical literature as substantive evidence through cross examination.

Basically the plaintiff developed compartment syndrome in his leg as the result of allegedly negligent treatment by the defendant. Approximately one month before trial the plaintiff designated certain medical literature as reliable authorities on compartment syndrome. The statute which covers this procedure requires that the party proposing to use such literature designate the articles and send copies to the other side 30 days before trial. Here it was uncontested that the plaintiff apparently forgot to send copies to the defense lawyer as required by the statute. (8.01-401.1).

At trial, at the end of the direct examination of his own expert, the plaintiff asked his own expert if certain articles were authoritative. The defendant objected, and the plaintiff responded that he did not want to use the medical literature on direct but wished his expert to establish the literature as authoritative and then use the articles in cross examination of the defense experts and in that process to have the statements from the literature introduced as substantive evidence. The trial court sustained the defense objection to this procedure. The case was tried to the jury and a defense verdict obtained.

On appeal the Virginia Supreme Court upheld the trial judge. The Court basically held that using the plaintiff’s expert to state that certain medical literature was authoritative and then read it into evidence during the cross examination of the defense experts as substantive evidence without complying with the 30 day rule contained in the statute was a way to circumvent the notice requirement and was not proper. Note of course had the defense expert been asked, as he was not, whether the literature was authoritative and had he acknowledged that it was he could have been cross examined on it, but it would not have been read into evidence as substantive evidence, which was what the plaintiff here desired. Thus the defense verdict was affirmed.


Moses v. Southwestern Virginia Transit, Virginia Supreme Court, April 20, 2007

The trial court here set aside a plaintiff’s verdict on the grounds that the plaintiff was contributorily negligent as a matter of law and the Virginia Supreme Court granted the writ.

The decedent, who died of unrelated causes well after the accident, was a 72 year old pedestrian crossing a street. The street was a four lane but one-way street in Roanoke, Virginia. He testified on deposition that he looked both ways before crossing the street. He was about 125 feet from the nearest intersection. As he was crossing a bus exited a bus terminal and struck him, causing significant injuries.

Note that there was no crosswalk at the point where the plaintiff crossed, and he knew that. However, he stated on deposition that “everyone crosses there.” He had nearly completely crossed the street and was about to step up on the curb when he was struck by the defendant’s bus. He had crossed to the same side of the street where the bus terminal was. Apparently there was evidence that the bus driver was looking to her right, the direction from which traffic on the one way street was coming, and didn’t see the plaintiff crossing to her left, and pulled out and struck him. After a verdict for the plaintiff in the amount of $50,000 the trial judge set the verdict aside on the grounds that the plaintiff was contributorily negligent as a matter of law.

The Virginia Supreme Court reversed. Although the plaintiff may have been guilty of negligence in crossing where there was no crosswalk, and the Court did not decide this, the issue of proximate cause here was for the jury and therefore the trial court erred in setting aside the verdict.


Baldwin v. McConnell, Virginia Supreme Court, April 20, 2007

This is a case where the plaintiff won a great verdict and the trial judge granted the defense motion for remittitur. The plaintiff appealed.

The plaintiff and the defendant were both employed at General Electric when they had a physical fight. Since GE has a no tolerance policy for violence, they were both terminated. McConnell sued Baldwin, and Baldwin counterclaimed. The jury found against McConnell and for Baldwin on the counterclaim in the amount of $240,000 in compensatory damages and $100,000 in punitive damages. Because Baldwin had only sued for $100,000 in compensatory damages the trial judge first reduced the amount to $100,000 in compensatory damages, and then further reduced the compensatory award to $1,000 and the punitive award to $10,000. The plaintiff appealed these rulings, except for the one reducing the compensatory in the first instance to the amount in the ad damnum.

The injury did appear to be minor. The plaintiff was slammed up against the wall by the defendant and suffered a knot on his head and soreness on his head and on his tailbone when he fell to the ground. He was seen by his coworkers to be so slammed and felt humiliated in front of his coworkers and insulted.

When reviewing the trial court’s decision the Virginia Supreme Court noted that when granting a motion to reduce a verdict the trial court must explain why it is doing so, and in doing so needs to consider the evidence in the light most favorable to the plaintiff, the prevailing party. Here the trial judge did not do so, and so the compensatory damages verdict rendered by the jury was reinstated. Note that the standard for reviewing a reduction by the trial judge of compensatory damages is an abuse of discretion, while in reviewing a reduction in punitive damages the standard in de novo upon independent review of the entire record. The standard is not only the reasonableness, but proportionality when considering the compensatory award and the ability of the defendant to pay. Here there was evidence that the defendant owned over a third of a million dollars in GE stock. When considering the proportionality the court considered the verdict before reduction for the ad damnum issue, which would have meant that the verdict for proportionality considerations was $240,000. Considering all of this the Virginia Supreme Court reversed the trial judge and reinstated the jury verdict (after the reduction for the ad damnum issue).


Phillips v. Mazyck, Virginia Supreme Court, April 20, 2007

This case involves the trial court’s ordering arbitration pursuant to an alleged contract.

The plaintiff was injured in a personal injury action and filed suit against the defendant. The defendant filed a plea in bar, alleging that the plaintiff had agreed to arbitrate the matter with his insurance company. The trial judge sustained the plea and ordered arbitration.

The underlying facts were that the plaintiff’s attorney and the adjuster were negotiating a high low agreement. By letter the adjuster indicated that he agreed to a high low figure but insisted on discovery on both liability and damages. An agreement was drafted by Arbitration Associates and sent to both the plaintiff’s attorney and the defense attorney. The defense attorney requested an IME, which was done. They also agreed on the arbitrator. However, the plaintiff’s attorney, although he signed his copy of the arbitration agreement, never sent it on, but kept it in his possession. He stated that he was awaiting the results of the IME, that is, the report, before he signed the agreement and sent it on. The IME report came back very favorable for the plaintiff, the doctor indicating that future surgery was indicated. Therefore the plaintiff attorney was unwilling to proceed with the arbitration at the high low previously discussed. He filed suit, as noted, and the defense interposed the plea in bar.

The trial court held that an enforceable contract existed, and noted that the party to be charged had actually signed the contract, although he had not mailed it to the other side. The Virginia Supreme Court disagreed, and stated that there was no clear meeting of the minds. For example, the term that discovery was to be allowed nowhere appeared in the draft arbitration agreement. Other terms which were modified in the second draft were never clearly assented to by the defense attorney. Of some importance is that fact that the plaintiff attorney never forwarded the signed agreement, whether the first or the revised agreement, to the defense counsel or to the arbitration company. This demonstrated that the plaintiff’s lawyer had not formally assented to the terms.

Thus reversed for trial on the merits before a jury.


Reilly v. Shepard, Virginia Supreme Court, April 20, 2007

This is a case where the defendant challenges the sufficiency of the evidence in a malicious prosecution case.

A robbery occurred where the victim, a taxi driver, was struck on the head and his money taken. The defendant interviewed the victim, viewed the taxi, and reviewed finger print evidence. A description of the robber was obtained from the victim. Four fingerprints were taken from the taxi and it was noted that the climate, very wet, meant that fingerprints that were not fresh would probably not have been preserved. The victim noted that he observed the robber touching the taxi in a place where a fingerprint was found. This fingerprint was used to identify the plaintiff. The description of the plaintiff matched almost exactly the description of the robber and there was the fingerprint evidence. Furthermore the plaintiff lived only a couple of miles from the scene of the crime. The defendant police officer issued an arrest warrant for the plaintiff who was pickled up on a traffic charge and brought to the city where the crime took place and spent six days in jail. When the plaintiff was brought before the General District Court judge the victim was unable to identify him and the charges were dropped. The plaintiff then brought suit for malicious prosecution against the police officer. The officer, at trial, moved to dismiss because the plaintiff failed to prove either malice or a want of probable cause. The trial court refused to dismiss and the jury returned a verdict against the defendant police officer for $123,000.

On appeal the Virginia Supreme Court noted that there are 4 elements to a claim for malicious prosecution. The prosecution must be 1 malicious 2. Instituted by or with the cooperation of the defendant 3. Without probable cause and 4. Terminated in a manner not unfavorable to the plaintiff. Here 2 and 4 are not at issue. The Virginia Supreme Court noted that actions for malicious prosecution are not favored in Virginia.

In reviewing the case the Virginia Supreme Court noted that malice may be inferred from a lack of probable cause, but a lack of probable cause may not be inferred from malice. Therefore the Court started by reviewing the evidence to see whether the defendant had probable cause for the arrest. Note that the plaintiff’s description matched exactly that of the robber, that a fresh fingerprint was that of the plaintiff, and that the plaintiff lived within a couple of miles of the scene, among other things. These were sufficient for probable cause, and therefore the case was reversed.


Martin v. Howard, Virginia Supreme Court, April 20, 2007

This is an interesting case involving exhumation of a dead body (I guess they don’t exhume live ones).

The plaintiff is the alleged illegitimate daughter of the deceased, who died in 2005. The deceased was survived by a wife and two children by her. The illegitimate daughter, who is in her late 30s, asked that the body be exhumed to obtain a DNA sample to prove paternity. The wife objected.

The General Assembly, after some rulings from the Virginia Supreme Court, finally adopted a statute that virtually eliminated the discretion of the trial court in ordering exhumations for the purpose of proving paternity. The “good cause” test has been removed from the statute, for example. The Supreme Court noted that will the word “may”, which is the word describing the trial judge’s authority, can be permissible, but in some cases, as here, it is mandatory and directional. The trial court’s only real discretion is in finding that the person trying to exhume the body is a party attempting to prove parentage.

The Supreme Court thus affirmed the trial judge’s order of exhumation.

Note that this case was brought to the Virginia Supreme Court under 8.01-626, which states that when a circuit court grants or refuses an injunction the aggrieved party may bring a petition before the Supreme Court within 15 days, and the Supreme Court may then take such action as they deem appropriate.


Kopalchick v. Catholic Diocese, Virginia Supreme Court, June 8, 2007

This case involves the interpretation of the sexual abuse statute and related constitutional amendment which changes the accrual date for the intentional tort, resulting in a longer statute of limitations in some instances.

The plaintiff alleged that he had been sexually abused by two Priests who were employees of the defendant Catholic Diocese of Richmond in the 1960s. He alleged in the pleadings that he suffered from severe mental, emotional and physical injuries but was unaware that the cause of these injuries was the abuse until he was so informed in 2002 by a psychologist thus attempting to bring himself under the change in the accrual time by the recent amendment to the Virginia Constitution.

In general the statute of limitations in Virginia is two years, with the accrual suspended by infancy. Thus a child could normally bring an action for abuse prior to his 20th birthday but no later. However in 1995, as the result of a change in the Virginia Constitution approved by the people, the legislature was given the power to change the accrual date of an intentional tort when performed by a “natural person” and they did so, in sexual abuse cases, to the date when the injured person was informed by a health professional that the cause of the injury was the sexual abuse. In addition, in the constitutional amendment it is stated that “no natural person shall have a constitutionally protected right to bar a cause of action on the ground…that a change in the accrual date…has been applied retroactively.” The Virginia Supreme Court, affirming the trial court, held that the Constitutional amendment, by its terms, was limited to “natural persons”, the Diocese was not a “natural person”, therefore the constitutional change did not apply to them, and the statute of limitations still barred the action against the Diocese. Presumably the actions against the Priests as individual still survived.


Settlement Funding v. Carla Von Neuman-Lillie, Virginia Supreme Court, June 8, 2007

Carla won the Virginia lottery and was to receive $1,000 a month for life. She entered into a loan agreement for $29,000 with a Utah bank. She was to pay the loan back in monthly installments of $500 for 178 months ($89,000 total). The contract contained a provision that the laws of Utah would apply. The contract was then assigned to Settlement Funding, and security documents were executed allegedly giving the loan company a security interest in the lottery proceeds.

After Carla had paid $13,500 over 27 months she wanted to pay the loan off, and was told that the prepayment amount was $67,023 (on a $29,000 loan with $13,500 in payments already made!!). Carla, on being informed of this, sback to topped payments. The loan company tried to get the lottery payments sent to it and the Virginia State Lottery filed an interpleader action asserting that lottery payments are not assignable. In court Carla claimed that the proceeds of the lottery were not assignable, and the trial judge agreed. The trial judge also permitted the loan company to amend its pleadings to ask for a sum certain instead of just the monthly payments and the loan company did amend asserting that including penalties and interest $253,727.89 was owed. Carla asserted the Virginia usury statute, despite the fact the Utah law was stipulated in the contract. There was some evidence of the law of Utah, which basically is that there is no usury statute, and this was contained in a memo given to the trial judge by the loan company attorney. The trial judge applied the Virginia usury statute and found for Carla. On appeal the Virginia Supreme Court held that if a contract specifies that the law of another state should apply then that state’s law should be applied. The Virginia Supreme Court also held that there was sufficient proof of the content of Utah law so that the trial judge should have applied it. Note that when another state’s law is to be applied but there is insufficient proof of that law that the trial judge has the right to assume that the other state’s law is the same as Virginia, which is what the trial judge did. Reversed because there was enough evidence for the trial judge to apply Utah law.


Ogunde v. Prison Health Services, Virginia Supreme Court, June 8, 2007

This case, among other things, involves the independent contractor doctrine in the context of Virginia’s prisons.

The plaintiff was a prisoner in Greensville Correctional Center. He alleged that he had a significant skin condition which made it difficult to shave. He alleged that he was treated medically inappropriately by employees of Prison Health Services and, among other things, should have been issued an exemption from the inmate grooming policy. The plaintiff sued the employees and Prison Health Services for, among other things, negligence and medical malpractice. Prison Health Services is an organization contracted by the Commonwealth to provide medical services within the prisons. The Commonwealth moved to dismiss this part of the complaint because, it claimed, that the employees of Prison Services were employees of the Commonwealth, not independent contractors, and therefore no claim could be made except under the Virginia Tort Claims Act. The trial judge agreed and dismissed this part of the suit.

On appeal the Virginia Supreme Court reviewed the independent contractor test. It noted that there is a four part test consisting of 1. selection and engagement 2. payment of compensation 3. power of dismissal and 4. power to control the individual’s work. Of these the fourth is the most important and usually is determinative.

Here the alleged employees were nurses and doctors. While there were some restrictions on them, basically the contract required them to “provide all medical…services” at certain correctional centers. The restrictions, the Supreme Court noted, were almost all security related, as befits a correctional institution, and did not reach the details of the delivery of medical services. Furthermore, the contractor Prison Health Services was, in the contract, responsible for supervising and directing the work under the contract. Thus the contractor, Prison Health Services, was responsible for supervising the work of the individual employees, not the Commonwealth. Based on this reasoning the employees of Prison Health were independent contractors and not the employees of the Commonwealth, and the trial judge’s dismissal of the negligence action was reversed.

The Virginia Supreme Court also stated that the plaintiff was a third party beneficiary of the contract between Prison Health Services and could sue for breach even though not a party to that contract.


Torloni v. Commonwealth, Virginia Supreme Court, June 8, 2007

This is an important case that involves the effect of the cap in the Virginia Tort Claims Act when the Commonwealth is a joint tortfeasor.

The plaintiff was a passenger in a vehicle that went onto the shoulder of a road, encountered a sharp 8-12 inch drop off, and went out of control causing serious injuries to the plaintiff. The plaintiff settled with her own driver for $100,000 and filed suit against the Commonwealth for $1,500,000 for negligence and nuisance. Upon motion of the Commonwealth, over objection, the trial judge reduced the ad damnum to $100,000, the limit in the Virginia Tort Claims Act. The trial judge then ruled that the Commonwealth had no liability because its maximum was $100,000 and under 8.01-35.1, the section dealing with settlements and joint tortfeasors, the Commonwealth would get a credit for the $100,000 already paid and therefore could never owe anything. The plaintiff appealed.

The Virginia Supreme Court reversed. First it said that it was improper to reduce the ad damnum before verdict. Procedurally the jury must render its verdict first and then the trial court may reduce the verdict to the cap contained in the Act. (This is similar to what happens in medical malpractice case where there is also a cap). However, the Virginia Supreme Court also said that the credit for the other settling defendant must be applied first, and then the Cap applied. Thus, in this case if a $400,000 verdict was rendered against the Commonwealth then it would be reduced by the $100,000 credit by the other settling defendant to $300,000 and only then the cap of $100,000 would be applied, thus allowing the plaintiff to collect another $100,000 potentially.


Jackson v. Hartig, Virginia Supreme Court, June 8, 2007

This is a defamation case brought by a losing candidate for the House of Delegates in the Virginia Beach area against the Virginia-Pilot and its editor.

Briefly, the plaintiff ran for and won an election to the School Board in Virginia Beach in 1994. Shortly thereafter the School Board was found to be over budget, which is a crime in Virginia. A special grand jury compiled a report which recommended that all the school board members resign or face prosecution. The plaintiff refused to resign, was prosecuted, and was acquitted of all charges. He served out his full four year term on the School Board but did not seek re-election. In 1998 he ran for City Council and was endorsed by the Virginia-Pilot which noted in its editorial that he had not resigned and that a jury had exonerated him when charged. In 2003 he ran for the House of Delegates. The defendant Hartig, an editor with the Virginia-Pilot, published an editorial criticizing the plaintiff in the following language.

We have deep misgivings about Jackson’s qualifications . . . .

Jackson, a former police officer and Republican, was honored to be among the first citizens elected to the Virginia Beach School Board. It turned out badly.

It was on his watch that the schools went millions of dollars in the red, a disaster that took years to overcome. Jackson was indicted for malfeasance, but was exonerated, then resigned.

Jackson has given us no reason why voters should forgive this blot on his record. Now he wants voters to trust him to oversee a state budget 200 times as large as the School Board’s. That’s asking too much.

Note that the fact that the plaintiff resigned is actually false.

The Virginia Supreme Court noted that since this was an election that the plaintiff had to prove Times v. Sullivan malice. This means actual malice, which the Virginia Supreme Court defined in this case as making statements which the defendant knew were false or “subjectively entertained serious doubts” as to the truth of the statements. Even though their own newspaper had within its archives the fact, for example, that the plaintiff had not resigned, this was not sufficient to impute actual knowledge to the author of the falsity of his statements. He was not required to make a search of the archives to ascertain whether the statements were true or not. There are further factual details, but this case sets out the law when there is a defamation case against a public figure. Dismissed by the Virginia Supreme Court sustaining the trial court. Dissent by two justices, so this is near the line.


Augusta Mutual v. Mason, Virginia Supreme Court, June 8, 2007

This case involves the relationship between tort claims and contract claims.

Mason insured his property with the defendant insurance company, Augusta Mutual. An independent agent filled out a report concerning a wood stove as part of the application process for Augusta Mutual and, allegedly, forged the plaintiff’s name to the report. There was a fire which destroyed the property and Augusta Mutual refused to pay and the plaintiff’s sued. Augusta Mutual refused to pay claiming that the report part of the application for insurance filled out by the agent contained fraudulent statements material to the risk, namely that a wood stove chimney was masonry lined with tile when it was not. The independent agent who filled out the application was third partied in by Augusta Mutual, alleging that the agent fraudulently filled out the form and fraudulently signed the form on behalf of the plaintiff homeowner. The third party defendants demurred, stating that the claims against it by Augusta Mutual were contract claims and the appropriate contract statute of limitations had run. The trial court agreed and this appeal followed.

The Virginia Supreme Court agreed with the trial court. The Supreme Court is quite concerned with parties attempting to turn a breach of contract claim into a tort claim by alleging fraud. It noted that the claims by Augusta Mutual all arose out of the contract and were really breach of contract claims. In order for there to be tort claims arising from those facts “the tort duty tortuously or negligently breached must be a common law duty, not one existing between the parties solely by virtue of the contract.” In this case the court held that the alleged fraud claims arose out of the contract and that there was no independent tort duty involved, so the trial judge’s decision in sustaining the demurrers was sustained.


Manassas Autocars v. Couch, Virginia Supreme Court, June 8, 2007

The defendant car dealer advertised that they had a vehicle for sale, and gave the stock number. They did not state explicitly that they had only one of those vehicles at that price. The plaintiffs came to the car dealer to buy the car advertised and were told that that one car had been sold, but they could have a similar car, available from a nearby dealer, at a slightly higher price. The plaintiffs agreed to buy that vehicle and signed the papers transferring title. When that car was delivered it had a significant eight inch stain on one fender. The car dealer tried to remove the stain but couldn’t, and, without the permission of the plaintiffs, repainted the car. After discovering this, the plaintiffs returned the car to the dealer and ceased making payments, and this suit followed.

The plaintiffs defended in part by stating that the car dealer had violated the law by advertising the vehicle when they had only one in stock and did not make this clear in the advertisement. The dealer responded that there was a regulation promulgating by the Motor Vehicle Board which allowed a dealer to advertise a vehicle by stock number without stating that there was only one. The trial court agreed with the plaintiffs that the regulation conflicted with the statute, which said that stock numbers could not be used in new car advertising unless the advertisement clearly stated that the stock number applied to only one vehicle. Since the statute controls when it conflicts with a regulation issued under the statute the trial court refused to allow the auto dealer to make that defense. Consequently the jury rendered a verdict under the Virginia Consumer Protection Act and the car dealer appealed. The Virginia Supreme Court accepted the logic of the trial court and affirmed.

A second count for the plaintiffs was their right of revocation. The Code allows a buyer to revoke acceptance of goods if they contain a non-conformity that “substantially impairs its value to him” and if the buyer had accepted the goods on the assumption that the nonconformity would be cured. The plaintiffs had accepted the car with the assumption that the stain would be removed. They felt that a repainted car was no longer a new car, and presented expert testimony that repainting a new car lowered its value by 20%. The Virginia Supreme Court agreed with the jury that the plaintiffs had intended to purchase a new car and that a repainted car is not a new car. Thus the verdict on this issue for the plaintiffs was sustained also.


BBF, Inc. v. Alstom Power, Virginia Supreme Court, June 8, 2007

This case involves a trial judge’s refusal to vacate an arbitration award.

BBF contracted with Alstom Power to supply air cooled condensers in conjunction with the construction of two power plants that Alstom was constructing for a third party. The contract contained a clause allowing for damages if the condensers as installed did not meet certain performance standards. Alstom Power separately contracted with another (but related) company to receive compensation if the performance standards were not met. The standards were not met and, pursuant to the contract, the differences were arbitrated.

The arbitrators awarded several million dollars and Alstom moved a trial court to confirm the award. BBF objected, saying that since Alstom had a right to be made whole from a third party it had suffered no actual damage and since it had not suffered any actual damage under Virginia law it could not receive an award of damages and that this was against the public policy of Virginia. The trial judge affirmed the arbitration award and the Virginia Supreme Court affirmed.

Basically the Supreme Court cited the statute concerning arbitration awards and the bases for vacating an award. The only real criteria are fraud or exceeding the authority given the arbitrator in the contract. Violating a public policy of Virginia is not grounds for vacating an arbitration award. What the Supreme Court is saying is that if an arbitration award is within the authority of the arbitrator to make and isn’t procured by fraud it will stand any challenge.


Commonwealth of Virginia v. Karen Burns, Virginia Supreme Court, January 12, 2007

This is a case discussing sovereign immunity and the public duty rule.  The public duty rule states that when a public employee owes a duty to the public at large the remedy is for the public at large, and not for any individual.  Thus a duty to everyone is essentially a duty owed to no one in particular.  This usually arises in the case of a jailer of similar official who has negligently allowed a prisoner to escape, and the escaped prisoner injures someone after the escape.  The Virginia Supreme Court, and many other states, have held that the duty of the jailer is to the public at large and therefore no one individual can sue for breech of that duty.

In this case the defendant was an employee of VDOT.  Allegedly, because this case was an interlocutory appeal on the pleadings, that employee and his team worked on an area of highway and left a two inch deep, three foot wide,108 foot long “trench” in the right hand lane of a four lane highway and didn’t properly leave warnings of the defect before they left for the day.  The plaintiff, driving a motorcycle at night, lost control because of the defect and died of his injuries.

VDOT’s plea of immunity of sovereign immunity on the grounds of the public duty rule was denied by the trial court and this interlocutory appeal followed.

VDOT argued that the duty owed by its crew was owed to the general public, not to any individual, and therefore no suit can be brought by any individual for breech. The Virginia Supreme Court said that this would be an extension of the public duty rule in Virginia, which currently was limited to prisoner type cases, and that the current state of the law of sovereign immunity adequately protected the sovereign and affirmed the trial court’s denial of the plea of sovereign immunity.  


Afzall v. Commonwealth, Virginia Supreme Court, January 2007

This case involves Medicaid liens and sovereign immunity.

The plaintiff was seriously injured in a personal injury action and his case was settled for a large amount of money, undisclosed.  Medicaid paid some$420,000 towards the bills, and demanded its money back from the settlement proceeds.  The plaintiff’s attorney deducted from the claimed amount the proportional attorney’s fees and expenses and sent the rest, about two thirds of the claimed amount, to Medicaid, which sent it back demanding the full amount.  The plaintiff then filed a declaratory judgment action requesting that the lower court determine that he was entitled to the deduction.  The lower court ruled against him, and the plaintiff appealed. 

On appeal, for the first time, the Commonwealth raised the issue of sovereign immunity.  The Virginia Supreme Court allowed this, saying that the issue of sovereign was jurisdictional and thus could be raised at anytime, even on appeal for the first time.  The Supreme Court then discussed the issue and ruled that the Commonwealth had not waived its sovereign immunity in this case to the extent that a declaratory judgment action could be brought against it.  Therefore it dismissed the case.

Note that the appropriate statute,8.01-66.9 does provide a remedy, a motion or petition before the appropriate trial court for a reduction of the lien, and this is the method that should have been followed and can be followed. 


Hughes v. Jane Doe, Virginia Supreme Court, January 2007

This case concerns whether a dismissal with prejudice but not on the merits of claims against an employee precludes further proceedings against the employer on a theory of respondent superior.

The plaintiff sued the defendant medical corporation and “Jane Doe” apparently a nurse employee.  The corporation was sued on the basis that its employee, acting in the scope of her employment, had caused the injury to the plaintiff.  After the statute had run the Jane Doe nurse was identified and the plaintiff attempted to amend the pleadings to reflect that.  The trial court granted the amendment but then sustained the defense plea of the statute of limitations, noting that this was not a misnomer but anew party.  (The statutory language that we are familiar with that allows this to be done in auto cases is in 38.2-2206,the UM section, and obviously does not apply outside of the uninsured motorist insurance context).  The defense then moved for summary judgment, arguing that since the liability of the employee had been determined with prejudice that the employer could not be held liable on a respondent superior theory.  The trial court agreed and dismissed the case.

The Virginia Supreme Court reversed, 5-2.  Basically the majority hold that the exoneration of the employee “on the merits” does exonerate the employer when the claim against the employer is brought on the theory of respondent superior, but that a dismissal on grounds of the statute of limitations is not a finding that the employee was not negligent,even though it is prejudicial against the employee.


John Doe v. Terry, Virginia Supreme Court, January 12, 2007

In this case the plaintiff obtained a verdict against John Doe and John Doe appealed, complaining that the plaintiff had not met its burden of proof.

The plaintiff was a security officer in the Hampton Tunnel. At the time of his injury he was walking on the protected sidewalk in the tunnel. This is separated from the roadway by a steel railing and it is elevated several feet. He testified that as he was walking along a truck passed him by and then immediately after two other vehicles. He put his head down as the truck went by to avoid the debris kicked up by its wind and when he lifted his head he was struck in the right temple by an object. He also heard catcalls coming from one of the vehicles. He was knocked out cold, and never saw what hit him. The people who found him noticed that he had a large lump on the side of his head and that there was broken glass all around.

The case went to the jury against John Doe, the allegation being that John Doe driver had thrown a bottle at the plaintiff and injured him. The jury found for the plaintiff in excess of the ad damnum, the trial court reducing the verdictto the ad damnum, $100,000, and the defendant appealed.

The defendant argued that the plaintiff did not show sufficient facts to show negligence of the behalf of John Doe, a driver, and 4-3, the Virginia Supreme Court agreed. It is just as likely that a passenger threw the bottle, for example. The plaintiff, the onlyreal witness, could not say whether the bottle that struck him came from the passenger side of the car or the driver side. He also could not establish where the voices came from. The Court said that there was simply not enough evidence to show negligence

The dissent argued that the jury could reasonably have concluded that the driver of avehicle had thrown a glass bottle at the plaintiff, injuring him.


Ford Motor Company v. Benitez, Virginia Supreme Court, January 12, 2007

This case involves sanctions for a defense lawyer who pled several affirmative defenses that were not well grounded in fact.

The plaintiff alleged injury to her eye from a defective airbag.  Suit was filed, extensive discovery was done, and the case was nonsuited before it came to trial.  The case was refiled appropriately.  The defense answered, and in its answers pled 13 affirmative defenses.  Nearly a year after the grounds of defense had been filed the plaintiff moved to strike the affirmative defenses because, after interrogatories depositions and other discovery requesting factual support for the affirmative defenses the defendant had furnished none. 

The motion was brought on for a hearing and the trial judge asked the defense counsel what evidence she had on each of the 13 defenses.  The defense counsel admitted that she had no evidence on several, but defended by noting that the discovery deadline in the refiled case had not yet passed and that the defenses had been reserved so that they would not be waived.  The trial judge struck several of the defenses, some were reserved for future decision, and defense counsel withdrew some.  At the conclusion the plaintiff’s attorney asked for sanctions on the ground that defense counsel had admitted that there was no known factual basis for several of the affirmative defenses when pled under 8.01-271.1.  The trial court agreed and awarded sanctions in the amount of $2,000. Note, of course, that this case had gone through discovery before so defense counsel should have known the facts well.

 The Virginia Supreme Court solidly affirmed the award of sanctions.  It noted the word “shall” in the statute as far as the trial court’s awarding sanctions if the appropriate findings are made.  The appropriate finding was that at the time of signing the pleading defense counsel, after inquiry, did not have a sufficient factual basis for the particular defense.  Note, and the Supreme Court did, that this case had been filed and discovery had been done before, so defense counsel should have been well aware of the facts in this case.  Defense counsel tried to argue that he was merely reserving those defenses for trial in case evidence came up later to support them.  The Court shot this down.  If later discovered evidence raises the factual basis for a defense “leave shall be liberally granted” in amend the pleadings.  Again, waiting until after discovery is completed is not the right answer.  When the pleading is signed there must be a factual basis for the defense, or for an allegation in a pleading.  Note that the reasonable inquiry standard does consider the timing.  A defense or plaintiff’s counsel with little time may have to plead without making as significant an inquiry if the time doesn’t allow.  They will not be held to the same standard as here, where the case had been previously discovered.


Sullivan v. Robertson Drug Company, January 2007

This case involves the trial court’s instructions to a jury concerning the right of contribution among joint tortfeasors.

The plaintiff in a medical malpractice action filed in Federal Court alleged that the defendant doctor had over prescribed certain steroids, leading to severe medical consequences. The doctor settled the case before trial for $735,000. The agreement released all claims that the plaintiff had, including any against the Robertson Drug Company.

The defendant doctor then sued the pharmacy for contribution, alleging that the pharmacy had wrongfully filled certain of the prescriptions, thus contributing to the plaintiff’s condition.

In its instructions the trial court instructed the jury to apportion the fault on a pro rata basis, and also instructed the jury that there was a presumption that the settlement amount was reasonable and that the Drug Company had to show that it was not reasonable.

The jury returned a verdict for$73,500 (10% of the settlement) and the doctor appealed.

This case contains an excellent discussion of the basic rules of contribution in Virginia and should be consulted for a summary of the requirements of proof and the possible defenses. However, the Virginia Supreme Court held that the trial court was wrong in allowing the jury to apportion damages. When there are two tortfeasors they share equally in the damages.

Also the Court said that when a tortfeasor settles a case and obtains releases of all parties and asks for contribution the finder of fact may consider the reasonableness of the settlement only with respect to the entire injury. Thus the pharmacy had the burden of producing evidence that the settlement was unreasonable before it was entitled to an instruction on the issue, and this it failed to do.

The Supreme Court reversed the case for a retrial on all issues.


McGuire v. Hodges, Virginia Supreme Court, January 12,2007

This case involves whether the trial court was correct in setting aside a verdict for the plaintiff in a premises cases.

This is a very unfortunate case where the defendant owned a swimming pool. The pool had a fence around it, if not exactly the height required by code close to it. There was a gate into the pool area. The Code required that there be a latch 4 feet above ground level,and the latch on this gate was only 32”. The pool owner at one time had a chain with a lock on the gate, but the lock had disappeared so the evidence was that the chain was simply wrapped around the gate securing it somewhat.

The plaintiff’s decedent, the son of a friend who was visiting, was 30 months old, and a witness saw him at the gate pulling on the chain. When next seen he was in the pool drowning and despite efforts he died in the hospital two days later. One witness said that he jumped the fence to get to the child when they saw him in the pool; another said he tried to go through the gate but it took him several seconds to get the chain off and the gate open.

The jury returned a verdict for the plaintiff and the trial court, on motion, set it aside concluding that the plaintiff had not proven that the Code violations were a proximate cause of the death of the child. The plaintiff appeals. 

The Virginia Supreme Court reversed. Here a code violation was clearly established in that the latch was at too low a height, and the plaintiff was a person the Code was designed to protect. The defendant argued that the plaintiff had failed to show how the plaintiff had entered the pool so that the plaintiff had failed to show that the Code violations were the proximate cause of the death, but The Supreme Court held that with the child being seen pulling on the chain shortly before being found in the pool there was sufficient evidence for the jury to infer that he had entered by the defectively locked gate. Reversed for the plaintiff.


Harmon v. Sadjadi, Virginia Supreme Court, January 12, 2007

This case involves the tolling of the statute of limitations. It is a medical malpractice case where a sponge was left in a body and removed much later.

The dates areas follows:

June 6, 2001–original surgery in Virginia,sponge left in by mistake

November 8, 2001– second surgery to remove sponge

May 1, 2003– dies of unrelated causes

July 18, 2003- West Virginia

October 29, 2003– spouse, not qualified in Virginia, files suit in Virginia

January 13, 2004– estate closed in West Virginia, spouse discharged as personal rep.

September 28, 2004– above action nonsuited

December 6, 2004– spouse qualifies as personal rep. in Virginia

March 24, 2005– suit filed in Virginia

Note that 8.01-229(B)(1) states that if a person entitled to bring a personal injury action dies within the statute that his personal representative has one year from date of qualification (or the original statute which ever) is later to file. The trial court, relying on McDanielv. North Carolina Pulp Co. (1956) ruled that an out of state qualified personal representative has standing to bring a suit which tolls the statute of limitation, but not to prosecute the suit. Consequently the one year began to run on the date of the qualification in West Virginia,suit was filed within the year, but when the qualification in West Virginia ended the statute began running and ran out before the second suit was filed.

Basically they held that the rule in Virginia is that a person with no standing cannot take any legal action period. All such actions are a nullity. Therefore the first legal qualification was the qualification in Virginia in December, 2004, and the case was filed within one year of that date.




Crocker v. Riverside, Virginia Supreme Court, January 12, 2007

This is another in a long series of cases involving the delivery of materials and the workers’ compensation bar.

The defendant operated a brick and masonry supply company. The defendant ordered some stone from another company,which in turn hired a shipping company to deliver it. The plaintiff worked as a driver for the shipping company. The trial court found as a fact that the only obligation of the shipping company was to deliver the stone on pallets on the truck to the masonry company and it was the duty of the masonry company to unload the truck once it got there. The plaintiff driver was requested,however, to assist in the unloading of the truck, and during the process was injured. The trial court held that workers’ compensation acted as a bar to any suit from the driver to the masonry company, stating that the plaintiff, in unloading the truck, was engaged in an essential part of the business of the defendant.

The Virginia Supreme Court reversed. Citing two prior cases, it stated that the plaintiff was not the statutory employee of the defendant masonry company, even though the plaintiff was assisting in the unloading, because unloading the freight was the sole responsibility of the defendant, and not part of the business of the plaintiff’s employer.

Reversed and remanded.


Parker v. Warren, Virginia Supreme Court, January 12, 2007

In this case the trial court felt that there was a scrivener’s error in a statute, corrected it, and dismissed the plaintiff’s personal injury case against a deceased defendant. The statutory sections involved are 8.01-229(B)(2) and are as follows;

2. Death of person against whom personal action may be brought. –

a. If a person against whom a personal action may be brought dies before the commencement of such action and before the expiration of the limitation period for commencement thereof then a claim may be filed against the decedent's estate or an action may be commenced against the decedent's personal representative before the expiration of the applicable limitation period or within one year after the qualification of such personal representative, whichever occurs later.

b. If a person against whom a personal action may be brought dies before suit papers naming such person as defendant have been filed with the court, then such suit papers may be amended to substitute the decedent's personal representative as party defendant before the expiration of the applicable limitation period or within two years after the date such suit papers were filed with the court, whichever occurs later, and such suit papers shall be taken as properly filed. (emphasis added)

June 12, 2000 – automobile accident

May 23, 2002 – suit filed against individual defendant

October 13, 2003 – defendant dies

November 17, 2004 - Defendant’s personal representative qualifies

May 5, 2005 – trial court grants motion to substitute

The trial court held that the before underlined above really should be after, and therefore the substitution was late, and dismissed the case.

The Virginia Supreme Court ruled that there was no error, that the statutory section dealt with the situation where the plaintiff files against a person he doesn’t know is dead. Before the statutory change this filing was a nullity, and did not toll the statute. As the result of the change it does. Therefore it is a valid statute. However, it doesn’t apply here, so the trial court’s dismissal of the case based on this was improper.



Almy v. Grisham, Virginia Supreme Court, January 12, 2007

This case involves author John Grisham, among others, and intentional infliction of emotional distress and conspiracy to commit intentional infliction of emotional distress.

The allegations in the pleadings were that some anonymous letters were sent to a friend of Grisham’s alleging infidelity. One letter was also sent to Grisham. Grisham hired a hand writing expert to find out who the letters were sent from, and, allegedly, assisted the experts in falsifying their reports to name Almy. To obtain handwriting samples from the Almy Grisham allegedly secured confidential medical records signed by the Almy from a private school where Almy had children enrolled and Grisham was on the Board. After the reports had been obtained the police were notified and Almy confronted, although not arrested. Almy allegedly suffered severe emotional distress which caused her to seek professional help, nervousness, sleeplessness, inability to concentrate, and that she could no longer perform her functions as wife and mother, and was unable to manage her business affairs. She also had serious depression, and when she found out that her children’s confidential medical records had been viewed suffered additional depression and harm and feelings of being violated.

Grisham and the other defendant’s demurred and asked the court to consider as part of their motion a deposition that had been taken in the nonsuited case. Without objection, the court did so, and sustained the demurrers. The Almy appealed.

The Virginia Supreme Court reversed. It first noted that a demurrer searches the pleadings only; the deposition should not have been considered. The Court then reviewed the four part test for intentional infliction of emotional distress and measured it against the alleged facts and held that the factual allegations were sufficient. The Court, however, refused to adopt a cause of action for conspiracy to commit intentional infliction of emotional distress, and sustained the trial judge on that point. Justice Kinser dissented. She noted that intentional infliction of emotional distress requires severe injury, and felt that the factual allegations were not sufficient here to meet that test.


Holmes v. Levine, Virginia Supreme Court, January 12, 2007

This is a medical malpractice wrongful death case. The plaintiff’s decedent had developed bladder cancer from which she died. Early on an x-ray was taken which showed a thickening in the bladder wall which was, in the opinion of plaintiff’s experts but not defendants, the early stage of that cancer. The x-ray doctor did not report this however, and his failure was allegedly a breech of the standard of care. There was testimony that if it had been reported that early on that there was a substantial probability that the plaintiff would have been cured. The jury found for the defendant, and the plaintiff appealed. There are three key issues.

The first is that in instructions the plaintiff asked for a fairly standard proximate cause instruction which ended with the words “there can be more the one proximate cause of an event.” The defense asked for an almost identical instruction which did not contain that last phrase. The plaintiff objected to the trial court’s giving the defense instruction. The jury had trouble with this issue, asking a question, which the trial judge did not really answer on proximate cause, and on the verdict form noting that they found the defendant negligent but that his negligence wasn’t a proximate cause of the death. The Virginia Supreme Court reversed on this issue, noting that the plaintiff’s case was that there were two proximate causes of the death, first the cancer, and secondly the delay. The jury needed to be told that there could be more than one proximate cause of an event, which is a correct statement of law, not covered by the other instructions, and which was supported by the evidence in the plaintiff’s case.

Secondly, the defendant presented the testimony by video tape of the plaintiff’s treating urologist. The testimony was that early on a urinalysis was done which showed a very little blood in the urine. The doctor was asked if this represented a condition called hematuria (blood in the urine) and the doctor replied that the very few red blood cells did not indicate that condition to her. This explanation was not in the doctor’s notes, and the plaintiff objected to the testimony. The Virginia Supreme Court ruled that this was proper. While a plaintiff’s treating physician may be called to testify for the defense the testimony is limited to what is in the records. However the Supreme Court allowed this as an explanation of the impressions contained in the records.

Thirdly, the trial court, on cross examination of a defense doctor by the plaintiff, allowed the plaintiff to elicit the cause of death in the medical examiner’s report, which was not otherwise in evidence. The trial court, over objection, allowed this, but upon renewed objected at the end of trial reversed its ruling and told the jury to disregard the evidence. The Virginia Supreme Court said that this second ruling was right. The defense doctor can be cross examined on records that he relied on, but since he disagreed with the medical examiner clearly he wasn’t relying on that report.

Reversed for a new trial.


Westlake v. Westlake, Virginia Supreme Court, January 12, 2007

This is a complicated case involving a property owners association and its developer. However, at trial there is an interesting point of evidence.

One party called the president of the other as an adverse witness. The first question was whether the President had been convicted of a felony. It was objected to and not answered after a conference in chambers, and the trial judge instructed the parties not to mention it again. The next day the objection was renewed and a motion for a mistrial was made the moving party stating that cautionary instructions have little if any effect. The trial court refused to grant the motion but did instruct the jury that the question was improper and they should disregard it.

On appeal counsel for all parties acknowledged that the question was improper and laid the problem to inexperienced counsel. The Supreme Court non-the-less condemned the question noting that counsel, whether from inexperience or not, had timed the question for its most possible dramatic effect. However, the Supreme Court held that the trial court did not abuse its discretion is refusing to grant a mistrial and only giving a cautionary instruction, and affirmed the verdict.


Vahdat v. Holland - Virginia Supreme Court - September 14, 2007

In this automobile case the vehicle driven by the defendant was following the plaintiff's vehicle when the defendant's vehicle went to the left, apparently attempting to pass, lost control, hit a telephone pole, knocked the telephone pole down which then fell across the plaintiff’s car causing damage. The defendant testified that he was driving normally when he suddenly blacked out. He was diabetic, but stated that he had never blacked out before and had checked his blood frequently the morning of the accident and his blood sugar was fine. At trial at the conclusion of all the evidence each side offered a "sudden emergency" instruction.

The defendant offered the standard book instruction. The plaintiff modified the instruction by adding language to the effect that the defendant bore the burden of proving the defense of diabetic blackout. The trial court granted the defendant's instruction, the jury returned a verdict for the defendant, and the plaintiff appealed.

The Virginia Supreme Court noted that whether a sudden emergency instruction was appropriate here was not at issue, and reiterated in a footnote its previous holdings that such instructions are rarely appropriate. The Court said that the issue in this case was whether the instruction given was properly phrased, or whether the jury should have been instructed that the defendant bore the burden of proof of the sudden emergency.

The Court held that the burden of proof in such a negligence action always resides with the plaintiff. The defendant in a sudden emergency case has, after the plaintiff has proven a prima facia case, the burden of going forward with enough evidence to get to the jury the issue of sudden emergency, but once the burden of going forward has been met the burden of proof still resides with the plaintiff. The jury here was properly instructed so the trial judge and the jury below are affirmed. Note also that the jury need never be told of the burden of going forward because if the defendant does not meet that burden the defense will never be presented to the jury, and if the burden is met then the facts go to the jury with no need to tell the jury that the defendant had to meet the burden of going forward since they already met it.

Crane v. Jones - Virginia Supreme Court - September 14, 2007

This case involves a wrongful death verdict as the result of mesothelioma due to asbestos fibers. The verdict, $10.4 million (reduced to the ad damnum of $10 million) was apportioned by the jury almost equally among the three defendants. The trial court sustained the verdict and it was appealed on several grounds.

The first ground was that the case was tried under general maritime law rather than Virginia Law. The plaintiff was an outside machinist at Newport News Shipbuilding & Dry Dock Company. He was alleged to have encountered asbestos containing products while building and repairing various vessels. The trial judge held that maritime law applied. The Virginia Supreme Court affirmed. Basically maritime law is applied first on a location test, which here was satisfied by the location being the shipyard, and secondly by a maritime connection test. The connection test must be satisfied by proving that the incident had a potentially disruptive impact on maritime commerce and that the incident showed a substantial relationship to traditional maritime activity. The Court, citing other jurisdictions, held that injury to a repair worker could potentially slow the repair of the vessel thus potentially disrupting maritime activity. The court also held that the defendant's activity, providing gaskets and packing material designed and marketed to the maritime industry proved a substantial relationship to traditional maritime activity. Thus maritime law was correctly applied.

The Court also sustained the trial court in its allowing the testimony of a witness for impeachment and, more importantly, excluding some of the testimony of two of the defendant's experts. The first expert hadn't, according to the plaintiff and the trial judge
agreed, fully stated one of the opinions he was going to give at trial. Significantly, the Supreme Court did agree with the trial judge that this omission was not cured at the deposition of the expert when the plaintiff’s attorney elicited those opinions and examined the expert on those opinions. "A party is not relieved from its disclosure obligation under the Rule simply because the other party has some familiarity with the expert witness or the opportunity to depose the expert." The second expert had performed some tests and the opinions and results were stated to have been given in an attached report, which was never sent. The trial court excluded the testimony, and the Virginia Supreme Court agreed.
The key point is that the Virginia Supreme Court is quite serious about expert disclosures. See also King v. Cooley. If you play with expert disclosures and try to game the system you might very well get burned.

Of great importance is the last ruling. The verdict was above the ad damnum and well above average verdicts for that type of injury (death). The Virginia Supreme Court firmly rejected the average verdict rule as a test. It reviewed the evidence, including the trial judge's affirmation of the verdict, and held that the trial judge did not abuse its discretion in affirming the verdict.

Collins v. Shepard - Virginia Supreme Court - September 14, 2007

This is a case that involves the Circuit Court's dismissal of a case for failure to serve within one year. The Norfolk Circuit Courts apparently had a local rule that stated that once a case had been on the docket for more than one year the case would be dismissed with prejudice. notice would be sent to plaintiff’s counsel before the actual entry of the order allowing plaintiff’s counsel either to prove due diligence or to take a nonsuit. In this case the underlying case languished on the docket for more than one year without service on the defendant and the court sent a notice to plaintiff s counsel stating that the case would be dismissed with prejudice on a certain date in the future unless the counsel appeared and made the appropriate showings. The plaintiff’s counsel never appeared or objected and in due course an order was entered dismissing the case with prejudice. A copy of this order was sent to plaintiff’s counsel, who made no objection for six months. Plaintiffs counsel told the court that there was a fraudulent behavior in his office which kept him from receiving the order and being able to respond. He asked that the order be set aside and the case be returned to the docket. The Circuit Court judge granted this order, and the plaintiff immediately nonsuited the case. The defense lawyer somehow found out about this and promptly moved the Circuit Court to reinstate the order of dismissal on the grounds that the 2l day rule had long expired, and thus the Circuit Court did not have the authority to vacate that order. The plaintiff argued that the original order dismissing the case was invalid because the Circuit Court rule under which it was granted exceeded the authority of the Circuit Court. The Circuit Court vacated the nonsuit order and ruled that its order dismissing the case with prejudice was a valid order. Plaintiff appealed.

The Virginia Supreme Court reversed. The Justices agreed that the Circuit Court did not, at that time, have the authority to craft a rule dismissing cases under those circumstances. Four of the Justices felt that the order dismissing the case was therefore invalid and void and of no effect and therefore the plaintiffs case was still on the docket. Three, in dissent, felt that the order was voidable and therefore the 2l day rule applied and thus the order dismissing the case had become final. Note that this issue has become somewhat moot because a statute has been recently enacted which gives the Circuit Court the authority that the Supreme Court said it lacked.

King v. Colley - Virginia Supreme Court - September 14, 2007

This is a medical malpractice case. The plaintiff sued, alleging that the doctor negligently followed up on the patient after performing a gastric bypass surgery leading to severe injury including permanent brain injury. The plaintiff’s experts claimed that the brain injury and associated damage was caused by Adult Respiratory Syndrome and sepsis which were caused by the defendant's failure to diagnose promptly and treat a leak left over from the surgery. The defense experts stated the brain and associated injury were caused when the plaintiff, while being prepared for the second reparative surgery, aspirated during the intubation process. The plaintiff obtained a verdict of $3,500,000 which was reduced to the cap by the trial judge, which was then $1,650,000.

The defendant appealed. There were two main issues. The defendant attempted to call one of the plaintiff’s treating physicians, the surgeon who assisted at the second surgery, as a witness. The plaintiff objected, stating that the defendant had not detailed, per the pretrial order, the opinions and the grounds for the opinions of this expert. The trial judge agreed and excluded the testimony of that witness. On appeal the defendant claimed that this was not really an expert witness but rather a fact witness. However, upon examining the proffered evidence testimony, the Virginia Supreme Court agreed with the trial judge that the evidence that the plaintiff suffered from aspiration pneumonia was expert opinion evidence rather than factual evidence. However the Supreme Court did not decide whether the testimony was properly excluded under the pretrial order because even if it should have been admitted it was harmless error because it was merely cumulative, defendant's three other expert witnesses having given the same opinion. The second point on appeal was that the defendant's claimed they were not allowed to fully cross examine one of the plaintiff’s experts. However, the Virginia Supreme Court refused to consider this issue because a sufficient proffer of what evidence they expected to elicit was not made.

Craig v. Heron - Virginia Supreme Court - September 14, 2007

This case involves an interpretation of a policy provision required by the Federal Motor Carrier Safety Administration of vehicles involved in interstate commerce. The insured motor carrier’s primary business was in Florida but its vehicles hauled mulch resulting from the taking down of trees as the result of hurricanes in many states. The vehicle involved allegedly caused an accident on Route 64 in Tidewater. However, at the time the vehicle was involved in a trip which was purely intrastate. The policy provisions excluded coverage for the driver because he had a terrible driving record. Therefore the parties stipulated that there was coverage only if the FMCSA endorsement, called MCS-90 required it.

In pertinent part MCS-90 reads- “The insurer agrees to pay...any final judgment recovered against the insured for...liability resulting from negligence in the operation...of motor vehicles...subject to the financial responsibility requirement of . . .the Motor Carrier Act. . .regardless of whether or not each motor vehicle is specifically described in the policy...”

The trial court held in a declaratory judgment action that this language meant that only vehicles in interstate commerce were covered. The Virginia Supreme Court, Justice Lacy before she retired, held that there was no language in the contract limiting the coverage to the use or operation of the vehicle in interstate commerce and the courts in Virginia would not read such a provision into the contract. Therefore this case was reversed for coverage.

Billups v. Commonwealth of Virginia - Virginia Supreme Court - November 2, 2007

This case involves the use of new scientific tests.  The defendant, a juvenile at the time of his offenses, was convicted of several crimes regarding the molestation of children.  The case was certified to the Circuit Court and he was tried as an adult.  Indeed, he reached the age of majority shortly before the actual trial.  After the convictions the trial judge ordered a pre-sentence report which was to contain a psychosexual evaluation pursuant to statute.  Defense counsel objected to the final report because it contained conclusions based on both polygraph tests and “plethysmograph” testing.  The trial judge granted the defense motion in part and ordered a new report without any of the polygraph testing results allowed.  However, the trial judge did allow the conclusions of the plethysmograph testing to be used.  A plethysmograph is “an instrument for determining and registering variations in the size of an organ or limb and in the amount of blood present or passing through it.”  Apparently the test consists of the person being tested being exposed to various auditory and visual stimuli and the device then measures the arousal of the test taker to the various stimuli.  The tests results showed that the convicted person was highly likely to commit offenses in the future. 

The defense specifically objected to the inclusion of the test results of the plethysmograph on the grounds that there was no showing that it was a reliable scientific test.  The trial judge overruled the objections and sentenced the defendant to life plus.  On appeal the Court of Appeals upheld the trial judge noting that there was a reduced standard of proof in sentencing hearings.  However the Virginia Supreme Court reversed and held that before results of a scientific test may be used that there must be a threshold determination that the test is scientifically reliable and the proponent of the evidence must bring that evidence forward. This is true even under the reduced standards of a pre-sentence report.   Here this was not done so the sentence is reversed. 

Dagner v. Anderson - Virginia Supreme Court - November 2, 2007

This case is an appeal from a verdict for the defense in a medical malpractice case.  Briefly the plaintiff’s decedent was found in her apartment unconscious and was transported to the ER.  She was a diabetic, and apparently had taken her daily dose of insulin but not had the recommended meal but instead had ingested significant quantities of alcohol. Alcohol can significantly compromise someone who is a diabetic. This caused the coma.  The rescue squad personnel gave her medication in the ambulance and she awakened and was doing fairly well when she got to the ER.  There the defendant ER doctor examined and treated her.  He gave her additional medication, had her eat a meal, instructed her not to ever drink alcohol again, and discharged her.  At the time he discharged the patient, the lab results showed a BAL of .24.  However, when a nurse called a relative to give her a ride home the response was that I am working and cannot be there for eight hours.  Therefore the plaintiff’s decedent spent the time in the ER waiting room, where she was found in a coma with extremely low blood sugar, and was admitted but later died. 

The defendant called one doctor as an expert witness.  That doctor was an ER doctor also and testified that not only did the defendant not violate the standard of care, but that the cause of death, the brain damage, was from seizures due to AWS (alcohol withdrawal syndrome) rather than the diabetes and the very low blood sugar problems, and that a reasonable ER doctor could not have anticipated this problem.

The jury found for the defendant, and the plaintiff appealed.

The Virginia Supreme Court reversed.  The defendant’s expert witness was clearly qualified to testify as to the standard of care, but, in the opinion of the Virginia Supreme Court, not sufficiently qualified to testify as to causation of the brain damage and death, and the trial court erred is so qualifying him. 
Therefore the case is reversed and sent back for a new trial.

Commonwealth of Virginia v. Juares - Virginia Supreme Court - November 2, 2007

This is a criminal case involving jury misconduct but with applications for all trials.

The defendant was arrested and charged with aggravated sexual battery.  After his arrest he was interviewed by an investigator who taped part of the interview.  Since the defendant spoke little English, a deputy who was fluent in Spanish interpreted.  Part of this tape recording was played at trial, the deputy stating that his translation was 90-95% word for word and accurate.  The defendant objected and asked for a Spanish interpreter and one was provided who translated the portions of the tape that were in Spanish to the jury.

During deliberations the jury asked for a translator and court personnel, not otherwise identified, and told the jury they couldn’t have one.  The jury returned a guilty verdict.  Note that the trial judge was not apprised of the jury request at the time it was made.  The defendant learned of the ex parte contact with court personnel and moved to set aside the verdict and for a mistrial based on the ex parte contact between the jury and court personnel.  The trial judge overruled the motions noting that he had previously instructed the jury that although they might take notes that they would not get a written transcript and that nothing would be read back to them.  The trial judge felt that under no circumstances would an interpreter have been sent back to the jury, and so no harm was done in the communication. 

On Appeal the Court of Appeals noted the rule that any ex parte contact was presumptively prejudicial and the Commonwealth did not carry its burden to show that such contact was harmless, and so reversed. 

The Virginia Supreme Court reversed the Court of Appeals and sustained the trial judge, affirming the verdict of guilty.  It did note the general rule that any ex parte contact with a juror is presumed prejudicial.  However, that rule applies only when the contact conveys some information regarding the case.  Here the contact did not convey any information about the facts of the case, about guilt or innocence, or about the law.  It was merely a request for an interpreter.  Therefore the defendant was required to show prejudice, and he did not carry this burden. 

Perez v. Commonwealth - Supreme Court of Virginia - November 2, 2007

Briefly, the defendant was stopped for a traffic offense.  The officer noted a gun under the front seat, and, after finding out the defendant’s real name, charged him with possession of a firearm after having been convicted of a felony.  The question arose at trial on the question of proof of whether the defendant had been convicted of a felony before the new charge.  The Commonwealth produced two orders as evidence.  The first came from the “Woodbridge Juvenile and Domestic Relations District Court” which, of course, is a misnomer, that court not existing.  The case was apparently transferred to the Fairfax Juvenile and Domestic Relations District Court.  The orders show that the defendant was charged with Grand Larceny and Burglary, and that he was convicted of two counts, and lists the case as a “felony” case.  The order was signed by a Judge, but not dated. 

The Court of Appeals, after stating that two of the convictions were for the same crime, affirmed the trial court and the Virginia Supreme Court granted an appeal limited solely to the issue of whether an undated order purporting to be a predicate juvenile adjudication is sufficient to support felony possession of a firearm. 

The Virginia Supreme Court affirmed.  Although there was no date, it was clear that the defendant had been convicted of a felony.  From the date of the earlier offense and the fact that the defendant was charged as a juvenile and sentenced as a juvenile that the date of conviction, even though left blank, had to be before the date of the felony possession of a firearm offense, which occurred after the defendant had reached the age of majority.  Therefore, in the opinion of the majority there was proof  beyond a reasonable doubt that the defendant had been convicted of a felony prior to the event for which he was charged with felony possession of a firearm. 

There was a dissent by Justice Koontz who pointed out that the “Woodbridge” court did not exist at the time of the conviction, and holding that an undated order is not an effective order. 


Judicial Inquiry and Review Commission of Virginia v. Shull - Virginia Supreme Court - November 2, 2007

Judge Shull was charged with several violations of the Canons of Judicial Conduct and was suspended by the Judicial Inquiry and Review Commission.  The Commission then filed a formal complaint with the Virginia Supreme Court which requires the Court to hold an open hearing to decide whether the Judge in question has engaged in conduct prejudicial to the proper administration of justice.

Here in the hearing the Virginia Supreme Court found that Judge Shull had, in custody and visitation hearing, twice in open court ordered a female party to lower her pants in order for him to view a wound on her thigh.  There was some question as to whether the wound was from the husband of the female or whether it was self inflicted.  The female tried to show the Judge the wound by raising her pants leg but was unsuccessful, and so, the Virginia Supreme Court found, at the Judge’s insistence, lowered her pants exposing her underwear and buttocks to others in the courtroom.  The Virginia Supreme Court also found that Judge Shull had initiated an ex parte conversation with hospital authorities to discuss with them the wound.  Note that the female was not represented by counsel at the hearing and had a history of mental problems, which the Judge knew.  The Virginia Supreme Court also found that Judge Shull had, on at least two occasions, decided matters before him by flipping a coin in the open courtroom.  Finally the Judge had a prior history of improper behavior and had been disciplined once previously.

Taking this into account the Virginia Supreme Court removed Judge Shull from the bench.

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