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.

The second involved the court allowing, over Mikhaylov’s objections, Sale’s medical expert to give opinions not previously disclosed during discovery, to include plaintiff’s need for future surgery. The Virginia Supreme Court agreed that the trial court abused its discretion in permitting undisclosed expert opinions to be admitted into evidence and disagreed that Mikhaylov had to file a motion in limine to preclude plaintiff’s expert from testifying on matters not previously disclosed. Instead, the Court held that the plaintiff had the burden and obligation to disclose the opinions of her experts under Rule 4:1(b)(4)(A)(i), Rule 4:1(e), and the pretrial scheduling order. This case is important as it underscores that opinions not properly designated are inadmissible at trial.


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