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”.

While the federal rules require a finding of bad intent before an adverse spoliation instruction can be given, this was a case of first impression for the Virginia Supreme Court. Finding federal law persuasive, the Court held that “the evidence must support a finding of intentional loss or destruction of evidence in order to prevent its use in litigation before the court may permit the spoliation inference.” The Court further stated that “[t]o allow such a severe sanction as a matter of course when a party has only negligently destroyed evidence is neither just nor proportionate.”

It should be noted that this opinion does not obviate the doctrine of spoliation, and both parties in any case need to be cognizant of potential claims and take appropriate action for the preservation of evidence, especially when notice is issued to maintain the evidence. This case is also illustrative of the harsh result which emanates from applying an adverse inference spoliation instruction where there is no evidence of any intent to destroy evidence.

This case further reiterates the requirement of proper expert witness disclosures in accordance with Rule 4:1(b)(4)(A)(i). The Court also held that prejudicial error to the defense resulted because the trial court did not sustain the landlord’s objections to plaintiff’s environmental expert’s non-disclosed opinions.

Other noteworthy errors found by the Court included the trial court permitting plaintiffs to increase their demands for damages after all of the evidence was presented and permitting a city inspector to testify about landlord code violations which were not relevant to the carbon monoxide leak.


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