Recently, the Virginia Supreme Court, in the case of Tingler v. Graystone Homes, Inc. held that the trial court did not err in its ruling sustaining a home builder’s demurrer to a negligence count for alleged breach of the original construction contract. In that case, a family, in related suits alleged personal injuries and damage resulting from mold that developed in a home built by the defendant contractor. The plaintiffs pled many theories of liability, all of which were dismissed by the trial court.
BMHJ Blog: Legal Information, Resources, & News: Business/Commercial Litigation
Legislative Update: House and Senate pass bill on spoliation of evidence.
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.
Dismissal For Failure To Serve Within One Year May Still Be A Viable Defense Even After a Court Extends Service Time by Court Order
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.
PR for the Defense: New Virginia Supreme Court Case Requiring Intent for Spoliation Jury Instruction and Proper Designation for Expert Witness Testimony Admissibility
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”.
D.C. Court of Appeals Signaled Directions on Expert Testimony
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.
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