BMHJ Blog: Legal Information, Resources, & News: Personal Injury / Wrongful Death Defense

The Art of the Trial is Alive and Well

February 11th, 2019
By: admin

While statistics reflect that there is a decline in the number of cases that are being tried by jury, a review of the disposition of some of our firm’s cases in January 2019 underscores that the art of the trial is alive and well. A review of our January 2019 statistics reflect twelve trials, with 7 circuit court trials (5- juries and 2 bench) and 5 general district court cases throughout the Commonwealth of Virginia and in Maryland. While we also practice in the District of Columbia we had no trials in that jurisdiction in January; however, a case was tried by jury in December resulting in a defendant’s verdict.

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Virginia Supreme Court Upholds Trial Court’s Decision to Grant Missing Witness Instruction where Plaintiff Elected Not to Attend Trial

Anna G. Zick, Esquire
February 4th, 2019
By: Anna G. Zick, Esquire

The Virginia Supreme Court recently denied a Petition for Appeal and a Petition for Rehearing in the case of Raighne C. Delaney v. Madison Pommer, Record No. 180903, Circuit Court No. CL-2016-16148. The issue on appeal was whether the “missing witness instruction” was properly granted when plaintiff did not appear for his own trial. Plaintiff is a prominent local attorney who never appeared at the trial or testified over the 4 days of the trial. The plaintiff claimed he suffered a traumatic brain injury following a minor rear end automobile accident. Plaintiff presented evidence of $189,000.00 in past medical specials and $1,150,000.00 in lost wages. The evidence demonstrated the roads were wet and the defendant was unable to stop her vehicle before colliding with the vehicle immediately in front of her. The vehicle immediately in front of the defendant was pushed into the plaintiff’s vehicle. The jury returned a defense verdict.

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Trial Court Finds Uim Carrier’s Subrogation Rights Are Not Extinguished Under Section L Of Va. Code 38.2-2206 Unless Defendant Tort Feasor Signs The Release

Melissa H. Katz, Esquire
February 1st, 2019
By: Melissa H. Katz, Esquire

In a personal injury case pending in the Circuit Court of Fairfax County, the defendant’s insurer tendered its policy to the plaintiff, pursuant to Section K, with the expectation that its duty to defend would end, and the UIM carrier would absorb the defense. In that case, the release was not signed by the defendant and the UIM carrier objected to the insurer’s attempt to withdraw from the defense of the case asserting that there was non-compliance with Va. Code Section 38.2-2206(L). Pursuant to Section L, in order for the liability insurer to settle with the plaintiff and have the UIM carrier’s subrogation rights extinguished, the settlement must be in writing and signed by both the plaintiff and underinsured motorist (i.e. the defendant). Section L requires specific “Notice to Release Party” which states that the underinsured motorist must initial it. Even though the notice was mailed, as represented later in court in accordance with the statute, the trial court held that the release needed to be signed by the defendant in order to extinguish the UIM carrier’s subrogation rights. The court also commented that the statute was less than clear. As a result, the defendant’s attorney, who was retained by the underlying insurer, was not allowed to withdraw from the case. This was also AFTER the policy limits had been paid to the plaintiff. The take away under the present statute is for the underlying carrier to make all efforts to obtain the defendant’s signature on the release in compliance with the statute. If the defendant cannot be located, then prior to tendering the policy limits agreement should be obtained from the UIM carrier to the motion to withdraw from the defense.

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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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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