BMHJ Blog: Legal Information, Resources, & News

PR for the Defense: New Virginia Supreme Court Case Requiring Intent for Spoliation Jury Instruction and Proper Designation for Expert Witness Testimony Admissibility

Melissa H. Katz, Esquire
February 5th, 2018
By: Melissa H. Katz, Esquire

Recently, the Virginia Supreme Court reversed and remanded a $4.1 million jury verdict in favor of four plaintiffs in a Virginia Beach personal injury case. In the case of Emerald Point, LLC v. Hawkins, 2017 Va. LEXIS 197, 808 S.E.2d 834 (2017), four apartment co-tenants sued their landlord claiming injuries as a result of carbon monoxide (“CO”) exposure while living in their apartment. After notification of CO exposure, the landlord undertook repairs to include replacement of the furnace. When high levels of CO continued to be detected upon further investigation it was determined that a faulty connection was the cause. The old furnace was stored by the landlord for approximately one year and then discarded before any lawsuit was filed. At trial, the trial court permitted an adverse inference jury instruction, over objection by the defense, which stated that if a party with exclusive possession of material evidence disposes of the evidence, the jury may infer that the evidence would have been detrimental to that party’s case. The landlord appealed arguing that the instruction could not be justified without a finding of “bad faith”.

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Please join us in welcoming our newest attorney, Ara L. Tramblian

January 25th, 2018
By: admin

The attorneys and staff of Bancroft, McGavin, Horvath & Judkins, P.C. are proud to announce that Ara L. Tramblian recently joined our team of distinguished attorneys. After 33 years of service, Ara retired as Arlington’s deputy county attorney and has joined the firm. He is the 2017 recipient of the local government attorneys of Virginia’s A. Robert Cherin Award as outstanding deputy local government attorney. He is available for referrals regarding local government law.

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Congratulations to our own Julia Judkins for her induction as a Fellow into the Virginia Law Foundation

January 12th, 2018
By: admin

Congratulations to our own Julia Judkins for her induction as a Fellow into the Virginia Law Foundation. The Fellows of the Virginia Law Foundation are recognized as leaders in the profession, not just in their practices but in their communities.

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Serving Our Clients in Virginia, DC, and Maryland

February 13th, 2017
By: admin

In addition to practicing throughout the state and federal courts in the Commonwealth of Virginia, the Superior Court of the District of Columbia and its federal court, we also practice throughout the state and federal court in Maryland. Our directors John D. McGavin, Dawn E. Boyce, Heather K. Bardot, and Michael E. Thorsen are also admitted in Maryland. The firm’s expansion into the State of Maryland was designed to serve the needs of our clients. Our firm’s objective has always and continues to be providing our clients with excellence in litigation and service.

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Expert Witness Disclosures and Judicial Estoppel

Melissa H. Katz, Esquire
May 16th, 2016
By: Melissa H. Katz, Esquire

Recently, the Virginia Supreme Court reversed and remanded an assault and battery case in favor of the plaintiff and tried in the Circuit Court of Fairfax County. In Mikhaylov v. Sales, 2016 Va. LEXIS 53 (April 21, 2016), Michael E. Thorsen, Esquire represented the defendant Mikhaylov and battled several adverse court rulings. The first involved defendant’s inability to contest the assault and battery allegations. Because the defendant had pled guilty to an assault and battery charge in an earlier criminal case, the judge instructed the jury that “the defendant cannot deny that he assaulted and battered the plaintiff.” Mikhaylov objected to the instruction contending that it “in essence, grants summary judgment in favor of the plaintiff as to the assault and battery claim.” The Virginia Supreme Court reversed finding that the court had erred in applying “judicial estoppel” in the civil suit by plaintiff Sales against Mikhaylov based upon his prior guilty plea in the related criminal case. While the guilty plea was not inadmissible pursuant to Va. Code Section 8.01-418, it did not constitute a “preclusive bar” under the doctrine of judicial estoppel “unless the parties are the same.” Therefore, the court erred by precluding Mikhaylov from defending the assault and battery allegations. This case is important as it underscores that the mere fact that a defendant pleads guilty or nolo contendere in a related criminal charge does not bar that defendant from disputing liability in a civil case.

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Disclaimer

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