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  • Norman A. Thomas

"Back to School:" The Supreme Court Instructs On Expert Testimony, Evidence Spoliation, Ma

As its 2017 finale, the Virginia Supreme Court delivered a wide-ranging decision touching upon evidence and procedure in the personal injury context. Senior Justice Lawrence L. Koontz, Jr., wrote for a unanimous Court. Justice S. Bernard Goodwyn did not participate in the decision.

The decision in Emerald Point, LLC v. Hawkins, 2017 Va. LEXIS 197 (December 28, 2017), reversed jury verdicts for four apartment co-tenants injured from carbon monoxide poisoning. The monoxide exposures occurred from late-November 2012 through mid-January 2013. Each plaintiff suffered injury, one seriously and permanently, due to improper ventilation of exhaust gases from their, and a neighboring apartment’s furnace units. The Court remanded the case to the Virginia Beach Circuit Court for retrial “on all issues.”

The Court granted the defendants’ Petition for Appeal on six assigned errors. It reversed on the first assignment of error, resulting from the trial court’s admission of undisclosed expert opinions. It then reviewed the “remaining” assigned errors “to resolve issues that are likely to arise in a new trial on remand.”

Ultimately, the Court deemed one of the remaining issues mooted. It related to the defendants’ motions to set aside the jury’s verdicts as excessive.

At trial, via de bene esse deposition testimony, the plaintiffs presented expert testimony from Dr. Allan Lieberman, “a specialist in environmental medicine and toxicology.” Dr. Lieberman also treated one of the plaintiffs.

Despite pretrial discovery, including interrogatories and a deposition, Dr. Lieberman rendered two previously undisclosed opinions in his de bene esse deposition. First, he testified that a “very recent paper” causally connected dementia as a “long-term effect” of carbon monoxide exposure. Yet, the Court ruled, neither plaintiffs’ interrogatory responses nor Dr. Lieberman’s discovery deposition testimony mentioned the paper or the “later on in life” connection between monoxide exposure and dementia. The plaintiffs also did not provide the 30-day pretrial notice required by Va. Rule of Evidence 2:706(a) to underpin the paper’s admissibility.

Second, Dr. Lieberman testified that in “a study of Japanese coal miners, ‘59% of those miners had almost a daily headache 33 years later after the initial exposure’ to carbon monoxide.” He thus opined that “the effects of carbon monoxide poisoning were subject to a ‘latency’ period” that may predate chronic headaches. Again, plaintiffs’ interrogatory responses did not disclose this opinion.

The Court found the admission of such testimony prejudicial, and thus reversible trial court error. It noted its ruling in John Crane v. Jones, 274 Va. 581, 591-93 (2007), that “approved the exclusion of non-disclosed opinion testimony as…within the trial court’s discretion.” Further, in Mikhaylov v. Sales, 291 Va. 349, 360-61 (2016), it held “that a trial court abused its discretion in permitting expert testimony not disclosed in accordance with the pre-trial scheduling order.” Based on this precedent, it set aside the jury’s verdicts.

Commencing on November 26, 2012, the carbon monoxide detector on the plaintiffs’ apartment’s furnace repeatedly alarmed. Following ineffectual remedial efforts, the defendants replaced the furnace on January 4, 1013. The defendants stored the furnace “in a maintenance bay for more than one year” before disposing of it. The plaintiffs’ filed suit on November 13, 2014, several months after the disposal.

During the trial, the plaintiffs persuaded the trial court to give the jury the following evidence spoliation instruction: “"If a party has exclusive possession of evidence which a party knows, or reasonably should have known would be material to a potential civil action and the party disposes of that evidence, then you may infer, though you are not required to do so, that if that evidence had been available it would be detrimental to the case of the party that disposed of it[]. You may give such inference whatever force or effect you think is appropriate under all the facts and circumstances." In its ruling, however, the trial court found that the defendants “’did nothing in bad faith’ in disposing of the furnace.”

The Court recognized the appellate issue as one of first impression, “whether a party who is either aware or should reasonably be aware of the relevance of evidence in its possession or under its control to either probably or pending litigation, and fails to preserve such evidence without bad faith shall be penalized by having the jury instructed” on evidence spoliation.

The Court then reviewed federal authority, and specifically quoted the Advisory Committee Notes of F.R. Civ. P. 37(e) on “electronic evidence” spoliation. Those Notes stated that adverse-inference instructions “were developed on the premise that a party’s intentional loss or destruction of evidence to prevent its use in litigation gives rise to a reasonable inference that the evidence was unfavorable to the party[.]” But mere negligent loss or destruction would not warrant such an instruction.

The Court agreed with and adopted this standard, stating first that it found the federal approach to electronic evidence “persuasive.” It continued, “[w]e are further of opinion that the resolution of a spoliation issue in the Commonwealth should be guided by the same standard and applicable to all forms of spoliation evidence. Accordingly, we hold that the evidence must support a finding of intentional loss or destruction of evidence in order to prevent its use in litigation before a court may permit the spoliation inference.” Thus, just as with Rule 37(e), negligent loss or destruction of evidence will not support a spoliation instruction.

In making the “intentional” or “negligent” determination, one that is “highly fact specific,” a trial court must resolve (a) whether “a party intentionally failed to preserve evidence in order to prevent its use in litigation,” and (b) when “the party knew or reasonably should have known under the totality of circumstances that the evidence would be material in a pending or probably litigation.”

Under the facts of this case, the disposal of the furnace “resulted at worst from negligence.” The trial court thus erred in giving the spoliation instruction.

After the defendants replaced the plaintiffs’ apartment’s furnace, the contractor installing a replacement furnace failed to obtain a City work permit. Inspector Alan Moore discovered the absence of the required permit. The contractor then obtained a permit. Upon inspection of the installed furnace, Moore found “several code violations and required the contractor to make corrections.”

The trial court permitted Mr. Moore to testify to these matters, over the defendants’ objections. It did so based on the plaintiffs’ assertion “that the testimony was relevant to show [the defendants’] course of negligent maintenance of the heating and venting and disregard for their safety.”

The Court found that the trial court erred. It concluded “on this record that Moore’s testimony was prejudicial because it involved matters collateral to the determination of [the defendants’] liability for [the plaintiffs’] injuries.” The plaintiffs “did not contend that the new furnace failed to perform as intended or that any of the code violations resulted in” their carbon monoxide exposure. And, “the failure of the contractor to obtain the required permit was not evidence of” the defendants’ neglect, “as obtaining the permit was the duty of the contractor.” Thus, at a subsequent retrial, Moore may not testify.

Prior to trial, the defendants’ moved to sever the most injured plaintiff’s claim from the others. It made motion under Va. Code §8.01-5, alleging that the evidence of that plaintiff’s severe injuries would unduly prejudice the “jury’s consideration of the evidence concerning the relatively minor injuries” of the three other plaintiffs. The trial court denied the defense motion. The Court found no abuse of discretion in that ruling.

As to the severance motion, the Court noted that a trial court (a) “must be cautious to insure that separating…claims for trial does not prejudice the substantial rights of any party;” and (b) “must also consider any resulting unnecessary delay, expense, or use of judicial resources that would flow from separate trials of the claims at issue.”

Upon the conclusion of the evidence, the trial court struck the plaintiffs’ claims for punitive damages. The plaintiffs then moved to upwardly amend their “ad damnum prayers.” The trial court granted that leave.

On review, the Court recounted its previous decisions that “it is in the discretion of the court, at any time before verdict is rendered, to allow amendments of the pleadings which will operate in favor of justice;’” and, “where there was an opportunity for the defendant to offer responsive proof, or to be granted a continuance – ad damnum amendment motions late in the trial while the evidence was still being introduced should have been granted under the Virginia doctrine of liberal amendment[.]” But these holdings are tempered, such that “amendment after the close of all the evidence denies the defense (and the court) a fundamental understanding of the issues in the case, and would ‘promote injustice.’” Citing, Russell Lumber Co. v. Thompson & Lambert, 137 Va. 386, 392-94 (1923); and see, Whitley v. Booker Brick Co., 113 Va. 434, 437 (1912).

Based on the limitations expressed in Russell Lumber, the Court ruled that the trial court abused its discretion in permitting these amendments. It further noted that “we can perceive no rationale for considering [the plaintiffs’] failure to make out a claim for punitive damages as a justification for that ruling.”

Yet the Court offered the plaintiffs a new hope on remand. It stated that “we have also held that when a case is remanded for a new trial it is presented anew…Thus if they are so advised, on remand [the plaintiffs] may seek leave to amend their ad damnum prayers before commencement of a new trial[.]”


Without question, Emerald Point represents a tome of evidence and procedural law affecting modern civil litigation in Virginia.

Once again, the Court policed the requirement that litigants timely disclose anticipated expert opinion testimony. It cited both discovery rules and pretrial scheduling orders as foundations for the disclosure requirement and its judicial enforcement.

At last, the Bar received clarity on the factual findings necessary to warrant an “adverse inference” evidence spoliation instruction. Yes, the Court adopted a rather conservative standard for such instructions. Yet, the Court clearly endorsed such instructions in appropriate circumstances and provided a unitary rule for all categories of evidence. That endorsement should go a long way to deterring evidence spoliation. The defense Bar surely will advise their clients accordingly. And, when the worst happens, the plaintiffs’ Bar may seek a spoliation instruction to partially equalize the evidentiary disadvantage resulting from intentionally destroyed evidence.

And Emerald Point goes further in its instructive holdings on materiality, severance, and the amendment of ad damnum clauses. As to the latter topic, a post-evidence amendment clearly comes too late. In this case, following the plaintiffs’ evidence, the defendants rested without introducing evidence. Those representing plaintiffs in personal injury cases therefore must thoughtfully consider whether, and when to seek leave to increase an ad damnum amount.

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