BMHJ Blog: Legal Information, Resources, & News: Business/Commercial Litigation

Legislative Update: House and Senate pass bill on spoliation of evidence.

March 1st, 2019
By: admin

The summary of bill as passed:

Spoliation of evidence. Establishes that a party or potential litigant has a duty to preserve evidence that may be relevant to reasonably foreseeable litigation. The bill further provides that a court (i) upon finding prejudice to another party from loss, disposal, alteration, concealment, or destruction of such evidence, may order measures no greater than necessary to cure the prejudice, or (ii) only upon finding that the party acted recklessly or with the intent to deprive another party of the evidence’s use in the litigation, may (a) presume that the evidence was unfavorable to the party, (b) instruct the jury that it may or shall presume that the evidence was unfavorable to the party, or (c) dismiss the action or enter a default judgment. The bill further provides that no independent cause of action for negligent or intentional spoliation of evidence is created.

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Dismissal For Failure To Serve Within One Year May Still Be A Viable Defense Even After a Court Extends Service Time by Court Order

Andrew R. Alder, Esquire
January 2nd, 2019
By: Andrew R. Alder, Esquire

Virginia Code § 8.01-275.1 and Rule 3:5(e) require that service of process be made within twelve months of the commencement of a lawsuit. Service on a defendant more than twelve months after commencement is timely only if there is a “finding by the court that the plaintiff exercised due diligence to have timely service made on the defendant.” Va. Code § 8.01-275.1. Va. Code § 8.01-277(A) allows a defendant to challenge the timeliness of service.

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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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D.C. Court of Appeals Signaled Directions on Expert Testimony

Martin Schubert, Esquire
April 24th, 2015
By: Martin Schubert, Esquire

D.C. Court of Appeals: 1) pulls back on the free pass for late Rule 26(b)(4) expert designations and supplements, and 2) affirms striking of expert and granting of summary judgment where expert medical testimony was based neither on relevant testing nor peer reviewed literature.

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Supreme Court of Virginia clarifies the Rules of Evidence

Andrew R. Alder, Esquire
January 7th, 2015
By: Andrew R. Alder, Esquire

On November 12, 2014, the Supreme Court of Virginia clarified the rules of evidence regarding the admissibility of prior witness statements at trial. It did so by modifying Rule 2:801, the definition section of the rules governing hearsay. The modified rule now sets forth with greater clarity exceptions to the general rule that a witness’s prior statements are inadmissible hearsay.

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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