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.
BMHJ Blog: Legal Information, Resources, & News: Business/Commercial Litigation
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.
Supreme Court of Virginia clarifies the Rules of Evidence
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.
Virginia Supreme Court Struggles with Contributory Negligence as a Matter of Law and Illustrates the Importance of Some Support for a Jury’s Decision
As is customary, the jury rendered a verdict in this wrongful death action arising out of a railroad crossing collision. A dump truck was struck by a train. The jury found for the estate of the driver and the trial court entered an order in conformance with that verdict. It is the subsequent history that becomes interesting. On June 5, 2014, the Virginia Supreme Court reversed, finding contributory negligence on the part of the decedent, as a matter of law. RGR, LLC v. Settle, 288 Va. 1, 758 S.E.2d 215 (2014) (RGR I). That opinion was subsequently withdrawn and a new opinion reversing that first opinion was entered on Oct. 31, 2014. RGR, LLC v. Settle, 2014 Va. LEXIS 161 (2014) (RGR II). Both majority opinions were written by the same justice and both opinions had dissents.
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