BMHJ Blog: Legal Information, Resources, & News

Medical Examiners Cannot Tell A Jury Who Is At Fault In An Accident

Vivek Subramanyam
August 16th, 2021
By: Vivek Subramanyam

If your client is the target of a wrongful death action where liability and fault are unclear, you can prevent the admission of testimony from the plaintiff’s medical examiner that gives opinions as to who is at fault for the accident.

In July 2021, the Virginia Supreme Court, in Lucas v. Riverhill Poultry, Inc., 2021 Va. LEXIS 74 (Va., July 1, 2021), interpreted Va. Code § 8.01-247.1 to bar in civil cases testimony of a medical examiner offering opinions upon the ultimate facts of the issue.

A tractor-trailer traveling on I-81 suddenly banked off the highway and killed both the occupants, Gerald Hilliard and Mark Lucas. The estate of Lucas sued the estate of Hilliard as well as Hilliard’s employer Riverhill Poultry, claiming that Hilliard was operating the vehicle in the course and scope of his employment. There was a dispute, however, over whether Hilliard or Lucas was actually driving the tractor-trailer at the time of the crash.

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Claims and Defenses under the Virginia Telephone Privacy Protection Act

Matthew A. Roberson, Esquire
July 7th, 2021
By: Matthew A. Roberson, Esquire

In Virginia, significant remedies are available for individuals who receive unwanted telephone solicitation calls. In 2001, the Virginia General Assembly promulgated the Virginia Telephone Privacy Protection Act (“VTPPA”), which sets forth a series of requirements both for telephone solicitors and the person or business entity for whose benefit the solicitation call was made. When these rules are violated, an individual receiving unwanted telephone solicitation may be entitled to receive monetary damages of up to $5,000.00 per call, as well as an award of attorneys’ fees. Depending upon the number of calls at issue, the VTPPA can expose defendants to substantial liability. At the same time, the law governing these cases is underdeveloped and evolving. Companies that engage in telemarketing in Virginia are well advised to apprise themselves of the law in this area.

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Vague Defamation Complaint May Fail to Toll the Statute of Limitations

Anna G. Zick, Esquire
June 16th, 2021
By: Anna G. Zick, Esquire

Defamation actions are controlled by a one-year statute of limitations and accrue at the time of publication. Va. Code § 8.01-247.1; See e.g. Cominelli v. Rector & Visitors of the Univ. of Va., 589 F. Supp. 2d 706, 718 (W.D. Va. 2008) (noting the claim accrued at the time the email was sent). If a Plaintiff files a defamation complaint and takes a nonsuit, the plaintiff may “recommence his action” within six months of the nonsuit. Virginia Code § 8.01-229(E)(3). Where the original complaint failed to state a claim for defamation and the new complaint includes new facts and statements that were not a part of the original complaint, a defendant should consider whether the re-filed complaint is the “same cause of action.” See McKinney v. Va. Surgical Assocs., P.C., 284 Va. 455, 459-60 (2012) (discussing the terms “cause of action” and “right of action” in Virginia).

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The Use of “And/Or” Pleadings

Ara L. Tramblian
June 2nd, 2021
By: Ara L. Tramblian

The Virginia Supreme Court has now twice, in dicta, criticized the increasingly common use of “and/or” in allegations in complaints concerning the liability of multiple defendants.

The Court first did so in A.H. v. Church of God in Christ, Inc., 297 Va. 604, 614 n.3 (2019). In that case, the amended complaint repeatedly used the phrase “and/or” when referring to an individual defendant’s relationship with an institutional co-defendant; for example, that the defendant was an “agent and/or employee” of the entity. The Court criticized the ambiguity of “and/or” as an “unfortunate hybrid” and a “drafting blemish” which provided three possible choices: one, the other, or both. This issue did not, however, factor into the Court’s ruling.

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When the Attorney-Client Privilege Isn’t Privileged

Nicole L. Antolic
May 15th, 2021
By: Nicole L. Antolic

There are few legal privileges as well known or as fundamental as the attorney-client privilege, but this longstanding privilege is not absolute. There are times when communications between counsel and client are not protected and it is important to understand the circumstances that can erode this privilege.

Before discussing the circumstances in which the attorney-client privilege may be waived, it is important to understand that for the privilege to attach (and thereafter be waived) an attorney-client relationship must first be established. This seems elementary, but not all conversations with an attorney engage the parties in an attorney-client relationship. For instance, having a conversation with an attorney friend about your most recent legal issue at a party more than likely does not establish an attorney-client relationship, and there would be no privilege to those communications.

The test for application of the attorney-client privilege is set forth in the widely cited case, United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (Mass. 1950), and states that the privilege applies

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This blog and the information provided has been prepared by Bancroft, McGavin, Horvath & Judkins, P.C. (“BMHJ”) for information purposes only and is not intended nor to be construed as legal advice. This blog may contain the opinions of the members and associates of this firm on various legal issues and is not legal advice. Read More