W.D. Va.: Supreme Court of Virginia Would Recognize Post-Sale Duty to Warn

Last week, in a published opinion, Chief Judge Jones (W.D. Va.) held that the Supreme Court of Virginia would recognize a post-sale duty to warn in Rash v. Stryker Corp., et al.

In Rash, the plaintiff alleged that he suffered injuries as a result of the use of a "pain pump" (an "ambulatory drug delivery system") manufactured, designed, and sold by the defendants. One of the plaintiff's claims alleged that the pump was defective due to "inadequate post-market warnings." The defendants filed a motion to dismiss under FRCP 12(b)(6), arguing that Virginia has never recognized a cause of action based on a post-sale duty to warn.

In denying the defendants' motion to dismiss for the post-sale duty to warn claim, the court concluded as follows:

Although both the Fourth Circuit and district courts in Virginia have considered whether a post-sale duty to warn exists under Virginia law, the Supreme Court of Virginia has not yet considered the issue. See Hart v. Savage, No. L-04-1663, 2006 WL 3021110, at *2 (Va. Cir. Ct. Oct. 19, 2006). Accordingly, I must predict how the Supreme Court of Virginia would answer that question. See St. Paul Fire & Marine Ins. Co. v. Am. Int’l Specialty Lines Ins. Co., 365 F.3d 263, 272 (4th Cir. 2004). To do so, I may consider “canons of construction, restatements of the law, treatises, recent pronouncements of general rules or policies by the state’s highest court, well considered dicta, and the state’s trial court decisions.” Wells v. Liddy, 186 F.3d 505, 528 (4th Cir. 1999). The general trend among other states is also relevant. See St. Paul Fire & Marine Ins. Co., 365 F.3d at 272.

Considering these factors, I find that the Supreme Court of Virginia would allow a cause of action based on a negligent breach of a post-sale duty to warn to proceed. The Restatement (Third) of Torts: Products Liability § 10 (1998), the view of other states, and dicta from the Fourth Circuit’s opinion in Bly v. Otis Elevator Co., 713 F.2d 1040 (4th Cir. 1983), support this determination.

Recent Fourth Circuit Opinions

Here are recent Fourth Circuit opinions that have implications for civil practice in Virginia:

- Dennison v. Carolina Payday Loans, Inc. and Johnson v. Advance America

In related cases, the Fourth Circuit addressed the minimal diversity requirement under 28 U.S.C. § 1332(d)(2)(A) in two consumer class actions against the payday loan industry. Judge Agee, the court's newest member, concurred in part, dissented in part, and concurred in the judgment in both cases.

- Palisades Collections LLC v. Shorts et al.

This case presents an issue of first impression — whether a party joined as a defendant to a counterclaim (the "additional counter-defendant") may remove the case to federal court solely because the counterclaim satisfies the jurisdictional requirements of the Class Action Fairness Act of 2005 ("CAFA"), Pub. L. 109-2, 119 Stat. 4 (codified in scattered sections of Title 28 of the United States Code). We hold that neither 28 U.S.C.A. § 1441(a) (West 2006) nor 28 U.S.C.A § 1453(b) (West 2006 & Supp. 2008) permits removal by such a party.

- Cozzarelli v. Inspired Pharms. Inc., et al.

This case involves claims that a pharmaceutical company and three of its directors violated federal securities laws. Plaintiffs’ primary allegation is that Inspire Pharmaceuticals, Inc. committed securities fraud by overstating the prospects for an experimental drug that the company was developing to treat dry eye disease. When we apply the careful scrutiny required by Congress in the Private Securities Litigation Reform Act of 1995 and by the Supreme Court in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499 (2007), we conclude that plaintiffs’ allegations are lacking. In particular, plaintiffs fail to raise the "strong inference" of wrongful intent that is necessary to support their securities fraud claims. We thus affirm the district court’s dismissal of the complaint.

Supreme Court Decides Tobacco Preemption Case

Plaintiffs in "light" cigarette litigation got an early Christmas present yesterday. In a 5-4 decision, the Supreme Court decided in Altria Group, Inc. v. Good that the Federal Cigarette Labeling and Advertising Act does not expressly or impliedly preempt state law claims (in this case, a claim under the Maine Unfair Trade Practices Act).

In Good, the plaintiffs were long-time smokers of “light” cigarettes manufactured by Philip Morris, which is a subsidiary of Altria Group, Inc. They brought claims under the MUTPA, alleging that the defendants used fraudulent advertising that conveyed the message that “light” cigarettes have less tar and nicotine. The district court granted summary judgment in favor of the defendants on the grounds that the plaintiffs’ claims were preempted by the FCLAA.

The majority opinion, written by Justice Stevens, held as follows:

We conclude, as we did in Cipollone, that the Labeling Act does not pre-empt
state-law claims like respondents’ that are predicated on the duty not to
deceive. We also hold that the FTC’s various decisions with respect to
statements of tar and nicotine content do not impliedly pre-empt respondents’
claim. Respondents still must prove that petitioners’ use of “light” and
“lowered tar” descriptors in fact violated the state deceptive practices
statute, but neither the Labeling Act’s pre-emption provision nor the FTC’s
actions in this field prevent a jury from considering that claim. . . .

Justice Thomas, joined by Chief Justice Roberts, Justice Scalia, and Justice Alito, dissented, concluding:

The Court today elects to convert the Cipollone plurality opinion
into binding law, notwithstanding its weakened doctrinal foundation, its
atextual construction of the statute, and the lower courts’ inability to apply
its methodology. The resulting confusion about the nature of a claim’s
“predicate duty” and inevitable disagreement in the lower courts as to what type
of representations are “material” and “misleading” will have the perverse effect
of increasing the nonuniformity of state regulation of cigarette advertising,
the exact problem that Congress intended § 5(b) to remedy. It may even force us
to yet again revisit the Court’s interpretation of the Labeling Act.
Because I believe that respondents’ claims are preempted under § 5(b) of
the Labeling Act, I respectfully dissent.

See here and here for more analysis of the Court's opinion.

Fourth Circuit Vacates and Remands Premises Liability Case

Last week, in an unpublished decision, the Fourth Circuit vacated and remanded a decision by Magistrate Judge Crigler (W.D. Va.) granting the defendant's motion for summary judgment in Strobel v. W.B.W. Enterprises, Inc. (the parties consented to a trial by the magistrate judge).

In Strobel, the plaintiff slipped and fell when she was exiting a farmer's market. She filed a negligence action based on premises liability against the company that managed the market alleging that she tripped over defective mats.

The Fourth Circuit analyzed the case as follows:

To prove negligence in a premises liability case, the plaintiff must first
prove the existence of an unsafe or dangerous condition on the premises.
Kendrick v. Vaz, Inc., 421 S.E.2d 447, 449 (Va. 1992). Mrs. Strobel
contends that the mats were defective because they had pre-existing distortions.
The Market contends that the record is devoid of evidence of the condition of
the floor mats immediately prior to Strobel’s fall. Assuming that the mats were
defective at the time of Strobel’s accident, she must also show that the defect
in the mats caused her to trip and fall. In Virginia, to prove a defendant’s
negligence, a plaintiff must prove “why and how the incident happened. . . . And
if the cause of the event is left to conjecture, guess, or random judgment, the
plaintiff cannot recover.” Town of West Point v. Evans, 299 S.E.2d 349, 351 (Va.
1983).

We conclude that there is a genuine issue of material fact as to whether
the mats were defective and whether they caused Mrs. Strobel’s fall. The
photograph of the mats shows that the edges of the mats, in some places, were
not flush with the floor and that there were ripples across the top of the mats.
Although the district court was concerned that it could not be categorically
determined which mat may have been involved, both mats were in a similar
condition. Further, the court seemed troubled that the mats may not have been in
the same condition as in the photograph as the day of the accident. A manager,
however, testified in deposition that after the accident the mats were rolled up
and placed in secure storage, and a shopkeeper testified that the mats were in
the same condition at the time of the accident as they were portrayed in the
photograph, which showed rippling of the mat.

The court also noted that testimony indicated that there were “problems” with the mats two days prior to the accident that were noticed by “several shopkeepers in the Market.” Accordingly, the court vacated the lower court’s ruling and remanded the case.

In Case You Missed It . . .

Here are a few miscellaneous items of note from the past week:

-In a W.D. Va. social security case, Judge Kiser points out one particularly interesting fact from the ALJ's determination:

The ALJ also noted that Plaintiff did not appear to be in any acute distress
despite the fact that he just drove 72 miles to the hearing without resting and
previously testified that he could only sit for 30 minutes at a time.

That won't engender any sympathy from the court.

- The Fourth Circuit addresses the issue of ripeness in a South Carolina election law case.

- The latest edition of the Harvard Law Review contains a good (and relatively brief) case note on the Supreme Court's decision in Riegel v. Medtronic, Inc.

- Judge Moon (W.D. Va.), in an unpublished decision, addresses the issue of whether a student loan from 1975 was discharged by a bankruptcy in 1983.

Trick or Treat?

Last week, a Massachusetts appeals court addressed an interesting issue in an appeal from a 2001 jury verdict in favor of the plaintiff in a legal malpractice case. The case, Zabin v. Picciotto, as noted by the appeals court, had a "tortuous history" beginning with toxic tort claims filed in 1983 (this related case decided by the First Circuit in January provides additional information on the underlying facts).

The court addressed one of the defendant's arguments on appeal:

As the trial approached the end of October, the jurors asked the judge if he
would allow them to wear costumes on Halloween. After consulting with counsel
for all parties and hearing no objection, the judge allowed the request. The
defendants contend that the presence of jurors in costumes turned the trial into
a circus and denied their rights to due process. With or without the
consent of counsel to the parties, it is regrettable that the trial judge agreed
to the jurors' request. The introduction of Halloween costumes cannot but have
detracted from the seriousness and gravity of formal court proceedings. However,
as to the defendants' claim of a due process violation, the judge did not merely
accommodate the jurors' request; he consulted with counsel for all parties
before doing so, and all counsel agreed. The issue is waived.

In a footnote, the court outlined some of the defendant's other allegations:

The defendants also assert that some of the plaintiffs’ counsel handed out
candy to the jurors. They further claim that, on another occasion, a proposed
“cast list” was circulated for a Hollywood movie version of the trial. The
record reveals no objection to counsel to any party handing out candy to the
jurors or any indication that the “cast list” was circulated to the jury.

Interesting note: the trial court judge is now a member of the appeals court that decided the case.

California Court Finds Name-Brand Manufacturer Liable for Injuries Caused by Generics

Last week, in a published decision, a California District Court of Appeal ruled that the manufacturer of a name-brand drug could be liable for injuries caused by a generic version sold by a different manufacturer in Conte v. Wyeth, Inc.

In Conte, the plaintiff developed a neurological condition, allegedly due to her use of a generic version of Reglan (a drug manufactured and marketed by Wyeth and which is used to treat gastroesophageal reflux disease). The plaintiff, who admitted she only took a generic version that was not manufactured by Wyeth, sued Wyeth on theories of fraud, fraudulent concealment, and negligent misrepresentation (she also sued the generic drug manufacturers and her doctor on other theories). Essentially, her claims were that she was "injuriously overexposed to [the generic] due to their dissemination of false, misleading, and/or incomplete warnings about the drug's side effects."

On appeal, the court reversed the trial court's dismissal of the claims against Wyeth and held as follows:

We hold that the common law duty to use due care owed by a name-brand
prescription drug manufacturer when providing product warnings extends not only
to consumers of its own product, but also to those whose doctors foreseeably
rely on the name-brand manufacturer’s product information when prescribing a
medication, even if the prescription is filled with the generic version of the
prescribed drug.

Essentially, the court relied on foreseeability to support its decision, stating that it was "eminently foreseeable that a physician might prescribe [the generic] in reliance on Wyeth’s representations about Reglan." Accordingly, the court had "no difficulty concluding that Wyeth should reasonably perceive that there could be injurious reliance on its product information by a patient taking [the generic]." Thus, the court concluded, "[a]s the foreseeable risk of physical harm runs to users of both name-brand and generic drugs, so too runs the duty of care."

Additional Notes:
- In its analysis, the court relied on a Fourth Circuit case, Foster v. American Home Products Corp., 29 F.3d 165 (4th Cir. 1994).

-Unsurprisingly, commentators have sharply criticized this decision. For example, the Drug and Device Law blog noted that the court utilized the plaintiff's negligent misrepresentation theory "as an end around decades of product liability precedent."

-The court dodged the issue of federal preemption as an "inappropriate use of judicial resources," given the plaintiff's concessions that her doctor did not rely on any representation from the generic drug manufacturers.

-See here for a Law.com article on the case.

Virginia Court of Appeals Addresses Appellate Practice in Recent Case

On Tuesday, in a published opinion, the Virginia Court of Appeals took the opportunity to provide guidance for attorneys in appellate practice in Fadness v. Fadness, a divorce case. As the court stated:

The parties in this case have spent hundreds of thousands of dollars on attorney’s fees, and years in protracted litigation. The massive 6,000 page joint appendix spans 19 separate volumes. The joint appendix’s table of contents alone is 66 pages long, but was of little use in providing guidance to relevant portions of the record. Despite the willingness of the attorneys in this case to file motion after motion in the trial court, they were apparently unwilling to expend the effort required to research several of the issues that they raise in this appeal, thereby preventing them from advancing the interests of their clients by making logical arguments based on legal authority. The “throw everything at the wall and hope something sticks” approach utilized in this appeal is as unappreciated as it is ineffective. If the parties were unable to find legal support for any of their eleven questions presented, or their numerous sub-questions, they should not have included those questions presented in their brief.

Appellate courts are not unlit rooms where attorneys may wander blindly about, hoping to stumble upon a reversible error. If the parties believed that the circuit court erred, it was their duty to present that error to us with legal authority to support their contention. Because the parties failed to do so, and because that failure is significant, they have waived their right to have these issues reviewed by this Court.

(emphasis added)

Amendments to the Rules of the Supreme Court of Virginia

Last week, the Supreme Court of Virginia released several Rule amendments:

Discovery Rules Amendments: Rules 4:1, 4:4, 4:8, 4:9, 4:9A, and 4:13

For example, a provision has been added to Rule 4:9 to address electronically stored information.

Appeals Rules Amendments: Rules 5:9 and 5A:6

Certification of Foreign Legal Consultants: Rule 1A:7 (this is a new Rule)

All of these changes are effective Jan. 1, 2009.

Election Day: Let the Litigation Begin?

Yesterday, as outlined in this RTD article, Judge Williams (E.D. Va.) rejected the NAACP's request to extend the voting hours of Virginia precincts and to allow paper ballots. According to the article:

U.S. District Judge Richard L. Williams said the fact that the state allows people waiting in line when the polls close at 7 p.m. to vote and that it also allows curbside voting will insure that no blacks are denied the right to vote.
...
He allowed the NAACP to argue its case, but did not hear from the defendants, the State Board of Elections and Gov. Timothy M. Kaine.
Williams also noted that he had cast an absentee ballot at Richmond's City Hall on Friday and had to wait 2½ hours. "It was quite a civics lesson," he said.

However, as the Washington Post points out, the NAACP has vowed to return to court today if needed. Further, the McCain campaign has filed a motion in federal court asking for ten extra days for the state to count military absentee ballots.

These suits are part of a larger trend: an electoral litigation extravaganza. Numerous voter groups, including both campaigns, have enlisted an "army of lawyers" in preparation for today's election (see here for a summary of some of the approximately 34 major lawsuits currently pending that involve the president race).

Even before the election, at least one suit was filed challenging Barack Obama's eligibility to run for President (see here for the court's opinion dismissing the case), along with the numerous suits challenging John McCain's eligibility (see here for one complaint and here for another court's opinion on the issue).

With these legal battles on the horizon, maybe this hypothetical McCain v. Obama Supreme Court case isn't so unrealistic after all...

Supreme Court of Virginia Addresses Admissibility of Evidence of Non-Virginia Statutes

On Friday, the Supreme Court of Virginia addressed the admissibility of evidence of other states’ statutes in Norfolk & Portsmouth Belt Line Railroad Co. v. Wilson. In Wilson, the plaintiff was a conductor for a railroad. While riding along the side of a boxcar, he was struck by an inward-leaning fence post located along the track, injuring his arm. The plaintiff brought a claim against the railroad under the Federal Employers’ Liability Act (45 U.S.C. §§ 51–60), alleging that it breached its duty to inspect and maintain the track and to eliminate dangerous “close clearances.”

At trial, the plaintiff’s expert testified that, although Virginia did not have a statute on the issue, thirty-eight other states adopted “close clearance” laws that would have been violated in this case. In the end, the jury returned a verdict for the plaintiff for $330,000.

The court found that the trial court erred in admitting portions of the plaintiff's expert's testimony. According to the court, “[i]napplicable statutes are, in most circumstances, irrelevant to the proof of the standard of care in a negligence case.” Thus, “[a] statute inapplicable to the case . . . is inadmissible. Any relevance it might have would be substantially outweighed by the prejudicial effect of admitting it.” The court concluded as follows:

Statutory law, as the considered judgment of the elected representatives of the people, properly commands the respect of jurors. Evidence of statutory law that does not apply to the case on trial, but seems to support the position of one party, is likely to be both misleading to the jury and prejudicial to the opposing party. We agree with the courts that have considered the question and hold that inapplicable statutes are inadmissible as proof of the standard of reasonable conduct in a negligence case. For that reason, we will reverse the judgment and remand the case to the circuit court.

The court also rejected the defendant’s assignments of error involving the adequacy of expert disclosures, the foundation for the expert’s opinion, and the admission of evidence that the fence at other points along the tracks was also a “close clearance.”

Roanoke Woman Files Two $5M Suits Over Hand Injury

As outlined in this article, a Roanoke woman has filed two five million dollar lawsuits in Roanoke Circuit Court against printing press manufacturers after she was injured while working with a book binding machine in October 2006. According to the article,

As she lifted books from a conveyer belt, May’s left hand became lodged in
the press as it continued to operate, according to the suits. Even after the
machine was turned off, workers at the plant had to take it apart before May
could be freed.
…
In separate lawsuits, [her attorney] brought product-liability claims
against the manufacturer of the press, Osako & Co. of Japan, and Regional
Conveyer Services, a Salem firm that provided a conveyer belt involved in the
accident.

The woman claims that she suffered permanent injuries to her hand and that the press should have had an emergency shutoff switch.

NW Law Review Publishes Two Articles on FDA Labeling Preemption

The Northwestern University Law Review recently published two articles that discuss the implications of the Supreme Court's decision in Riegel v. Medtronic, Inc. for state law product liability claims.

Catherine M. Sharkey, What Riegel Portends for FDA Preemption of State Law Products Liability Claims

Richard A. Epstein, The Case for Field Preemption of State Laws in Drug Cases

Magistrate Judge Denies Motion for Contempt and Sanctions

In an unpublished decision last week, Magistrate Judge Michael Urbanski (W.D. Va.) denied the plaintiff’s motion to hold the defendant in contempt and for sanctions because of the defendants’ insurer’s failure to appear in person for mediation.

In Hinkle Oil & Gas, Inc. v. Bowles Rice McDavid Graff & Love, LLP, the underlying lawsuit revolved around an oil company’s claims that “it was prevented from acquiring several oil and gas wells in a bankruptcy proceeding because of certain actions taken by defendant law firm Bowles Rice, and certain of its individual partners, in conflict with the defendants’ obligation to zealously represent Hinkle Oil’s interests.” The plaintiffs claimed that it incurred significant expense by having counsel and its principals travel to Roanoke for the mediation, and that the defendants’ insurer violated a Settlement Conference Order by not having a representative physically present at the mediation with authority to settle.

Five days before the scheduled mediation, the district court (Judge Wilson), in a published opinion, granted summary judgment for the defendants because of the plaintiff’s inability to prove causation. Judge Urbanski, however, denied a request of the parties suggesting that the mediation be cancelled. According to the judge, “[t]he undersigned denied the request to cancel the mediation, believing that each side continued to have significant reasons to settle this case.”

The court briefly concluded that “[i]t is plain that ALPS, as insurer for Bowles Rice, did not meet its obligations under paragraphs 2, 3 and 4 of the Settlement Conference Order, as no ALPS representative with authority was present at the mediation.” Thus, the court analyzed what penalty was appropriate:

This is an unusual case in which summary judgment had been granted for
defendant immediately prior to the mediation. Despite this significant event in
the case, plaintiff's settlement position was such that no settlement was going
to be possible at mediation, regardless of whether the ALPS representative was
present or not. As such, because of the posture of the case and because the
parties remained light years apart in settlement, in the judgment of the
undersigned, it simply did not matter that the ALPS representative was not
physically present. There was, in short, no harm to Hinkle Oil by not having
the ALPS representative here in person. Under these most unusual circumstances,
no sanctions are warranted in this case.

Fourth Circuit Dismisses Petition for Appeal, Sending Blackwater Suit to Arbitration

As outlined in an article in today’s Virginian-Pilot, last Friday, the Fourth Circuit denied a petition for appeal in Blackwater Security Consulting, LLC et al. v. Nordan (E.D. N.C.) (see here for filings related to the case).

In March 2004, four employees of Blackwater, a private security firm, were brutally killed in Fallujah. In January 2005, a representative of the families of the victims filed suit against Blackwater, alleging a breach of contract stemming from the failure to provide proper equipment and security to the men. In December 2006, Blackwater petitioned for the court to direct the matter to arbitration , which the court granted in April 2007, leading to an appeal by the families.

As the article summarizes:

A three-judge panel from the Court of Appeals ruled the court did not have jurisdiction over the appeal of the case. Unless the lawyers for the families choose to appeal further, the confidential arbitration panel will resume work on the case.
…
The three-person arbitration panel includes William Webster, who was a director of the FBI and CIA under President Ronald Reagan; Edward Dreyfus, a New Jersey patent lawyer; and Jean Kalicki, an attorney specializing in international arbitration based in Washington, D.C.

JPML Denies Transfer in Auction Rate Securities Cases

Earlier this month, the Judicial Panel on Multidistrict Litigation denied motions to transfer from plaintiffs in twenty-nine separate actions. As the panel noted:

The actions before us are securities fraud actions filed in the wake of
widespread failure in the market for auction rate securities (ARS). While the
actions share some general common factual questions, no single action is against
more than one defendant entity (or its affiliates and/or employees). Further,
the actions involve different representations made to each purchaser of ARS,
which will necessarily vary from institution to institution (and perhaps from
ARS to ARS). The proponents of centralization have failed to convince us that
any common questions of fact among these actions are sufficiently complex and/or
numerous to justify Section 1407 transfer at this time. Alternatives to transfer
exist that may minimize whatever possibilities there might be of duplicative
discovery and/or inconsistent pretrial rulings.

These cases are indicative of the massive amount of litigation that will probably arise out of the recent stock market decline.

VBBE Releases Bar Exam Results

Today, the Virginia Board of Bar Examiners released the results from the July 2008 bar exam. The overall pass rate was 79.7%, with a 85% pass rate for first-time takers.

Magistrate Judge Recommends Denial of Injunctive Relief in Environmental Case

In a published report and recommendation released today, Magistrate Judge Pamela Sargent (W.D. Va.) addressed a variety of issues in Sierra Club v. Kempthorne. Interestingly, the court began its R&R as follows:

To a child of Appalachia, to see the mountains laid waste, whether by clear-cutting or strip mining, is to witness a dagger plunged into the very bosom from which you sprang and which has sustained you. Nonetheless, this court’s role in this case is not to pass judgment upon the policy decisions which allow such activities.

The Sierra Club and Southern Appalachian Mountain Stewards, Inc. filed suit against the Secretary of the Interior, seeking an order compelling the Secretary to issue a cessation order. The plaintiffs sought to prevent several companies from removing vegetation, constructing or improving roadways, or conducting any other “surface coal mining operations” on the land included in a permit application pending before the Virginia Department of Mines, Minerals & Energy. Specifically, the plaintiffs brought a citizens suit under 30 U.S.C. § 1270 for alleged violations of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. §§ 1201 et seq.).
After substantial analysis, the court made the following recommendations:

1. The district court has subject matter jurisdiction over this case under 30 U.S.C. § 1270(a)(2);
2. Neither the federal nor Virginia’s statutory or regulatory schemes define “coal surface mining operations” to include the activities at issue in this case;
3. The Secretary has the discretion to determine whether the activities at issue in this case are “coal surface mining operations;”
4. The Secretary’s determination is binding on the court unless it is inconsistent with the regulations or is plainly erroneous;
5. The Secretary’s determination that the activities at issue were not “coal surface mining operations” is not inconsistent with the regulations and is not plainly erroneous;
6. The citizens suit provision of 30 U.S.C. § 1270(a)(2) allows a federal court to intervene only when the Secretary fails to act upon a nondiscretionary duty; and
7. The court should deny the plaintiffs’ request for entry of a permanent injunction.

To conclude, the court made the following observations:

It is difficult to imagine any commercial activity that has a more devastating effect on the land than strip mining. . . . The facts before the court in this case, however, clearly show that logging the steep mountains of Southwest Virginia poses many of the same environmental and safety concerns as strip mining. Nonetheless, it is not the role of this court, in this case, to tackle the difficult policy issues raised by the dangers presented to the environment and the occupiers of adjoining lands by logging. Those issues are best left to our federal and state legislators. The court is left only to hope that those issues will be addressed before a child of Appalachia dies beneath a boulder dislodged by logging activities.

Judge Reduces Jury Award in Emotional Distress Case

On Friday, Judge Ray Grubbs (Montgomery County Circuit Court) reduced a $350,000 jury award against Blacksburg to $50,000. Judge Grubbs also denied the town’s motion to set aside the verdict. An article from the Roanoke Times provides additional facts about the case:

Knight had filed a civil lawsuit against the town and the director of the Third Annual Greater Blacksburg Triathlon, held in 2000, claiming they were negligent in failing to warn passing motorists of the race course. Triathlon participant Gary Wayne Taylor, a 30-year-old sports promoter from Lynchburg, died midway through the competition after his bicycle crashed into Knight's car.
Knight told a jury in January that she sought counseling more than a year after the wreck for nightmares and other related trauma symptoms and asked for $750,000 in damages. The jury found the town negligent and awarded Knight $350,000.

In arguing that the verdict should be set aside, the town argued, inter alia, that it should be granted immunity, an argument that Judge Grubbs rejected.

But, Grubbs wrote, because Knight suffered no lasting physical injuries and her mental and emotional trauma were resolved within six months without interfering with her ability to work, the jury’s award was out of proportion to the injury.
Grubbs based his ruling on a Virginia statute that allows judges to reduce jury awards if they are excessive or based solely on sympathy for the plaintiff.

Both sides have indicated that an appeal to the Supreme Court of Virginia is possible. If so, the case would provide an opportunity for the court to again address the issue of damage awards for emotional distress.

D.C. Circuit to Hear Appeal Today in Landmark Tobacco Case

The D.C. Circuit is scheduled to hear arguments today in a landmark ruling against the tobacco industry. In 1999, the Justice Department brought a civil RICO case against several tobacco companies, claiming that they misled the public about the health hazards of smoking. In August 2006, District Court Judge Gladys Kessler found that the companies violated civil RICO (in a 1683-page opinion found here). However, she declined to order them to pay the billions of dollars in damages sought by the Justice Department (her 18-page remedial order can be found here). Notably, she did order that the companies pay legal fees, which the government estimates to be over $140 million. This article from the Washington Times summarizes additional aspects of her ruling:

Kessler, however, did order the companies to publish in newspapers and on their Web sites “corrective statements” on the adverse health effects and addictiveness of smoking and nicotine. She also ordered tobacco companies to stop labeling cigarettes as “low tar,” “light,” “ultra light” or “mild,” since such cigarettes have been found to be no safer than others because of how people smoke them.

In her ruling in the long-running case, the judge said, “Over the course of more than 50 years, defendants lied, misrepresented and deceived the American public, including smokers and the young people they avidly sought as ‘replacement smokers,’ about the devastating health effects of smoking and environmental tobacco smoke (secondhand smoke).”

Kessler, who presided over a nonjury trial in the case, said that adoption of a national stop-smoking program, as sought by the government, “would unquestionably serve the public interest” but that she was barred by an appeals court ruling that said remedies must be forward-looking and not penalties for past actions.

If upheld, the case could open the door for a flood of private civil RICO claims against the industry.

Woman Sues Motorola and Nextel for Injuries Allegedly Caused by Cell Phone Charger

According to an article in today’s Virginian-Pilot, a Knotts Island woman filed a $15 million suit in federal court this week against Motorola and Nextel, alleging that the negligent and careless design of a cell phone charger caused her to become blind in one eye. Specifically, "[the plaintiff] says . . . that she was blinded in her right eye after being struck by the phone jack and suffered other physical pain and mental anguish as a result." The article provides additional details about the suit:

On Sept. 7 [of 2005], while she was using the phone, “the coil cord of the car charger suddenly, precipitously and without warning, recoiled and otherwise snapped back, striking at and into the plaintiff's face and eye, hitting her in the right eye with the phone jack,” the lawsuit says.
…
The suit says that the packaging of the phone and charger should have included warnings that “serious injury could result from the use of such car chargers” and that “safety glasses should be worn when using such car chargers.” The warnings should also indicate that “a tight hold should always be kept on the car charger cord to avoid injury,” the suit states.

Fourth Circuit Affirms Denial of FRCP 60(b)(4), (6) Motions

Earlier today, in an unpublished decision, the Fourth Circuit affirmed a district court decision denying a plaintiff’s FRCP 60(b)(4) and 60(b)(6) motions in Wadley v. Equifax Information Services, LLC. The plaintiff sought relief from the court’s decision to grant the defendant’s motion for summary judgment on the plaintiff’s Fair Credit Reporting Act claims.

In Wadley, the plaintiff brought two separate actions against Equifax and Experian. After the Fourth Circuit found error and remanded his case against Experian, the plaintiff filed his Rule 60(b) motion in the Equifax case, arguing that since the district court used the same analysis to grant summary judgment for the defendant in both cases, the same error occurred.

The Fourth Circuit rejected the plaintiff's argument. After noting that the plaintiff made a “considered choice” not to appeal the order in the Equifax case, the court addressed the “reasonable time” requirement in FRCP 60(c)(1). According to the court,

In this case, Wadley waited almost two years after the district court’s adverse
grant of summary judgment in favor of Equifax to file his Rule 60(b) motion.
That he chose to wait for the litigation in this court as to the related appeal
to become final so he unnecessarily would not have to pay additional fees and
costs for an appeal as to Equifax is not a sufficient justification supporting
the relief he now seeks. Under these circumstances, we find this passage of time
was not reasonable.

The court went on to reject the plaintiff’s arguments under FRCP 60(b)(4) and (6). Quoting a prior decision, the court stated that “[a] judgment is not ‘void’ under Rule 60(b)(4) merely because it is erroneous.” Regarding FRCP 60(b)(6), because the decision was a strategic litigation decision, the court concluded that it was not an “extraordinary circumstance.”

Thus, “Wadley may not use Rule 60(b) as a vehicle to excuse his failure to seek review of the final judgment granted to Equifax almost two years earlier and from which he chose not to take an appeal.” Accordingly, the court affirmed the district court’s decision.

Amendments Proposed for FRCP 26 and 56

In August, the Judicial Conference Advisory Committee published for comment its proposed amendments to the Federal Rules. The report of the Civil Rules Advisory Committee outlines several proposed changes to FRCP 26 and 56.

The proposed amendments to Rule 26 attempt to address two issues. As summarized in this brochure from the Committee,

The first deals with expert witnesses who are not required to prepare a detailed
report under Rule 26(b)(2)(B). Under the proposed amendment to Rule 26(a)(2),
the party (not the expert witness) must disclose the subject matter of the
expected expert testimony and a summary of the expected facts and opinions. The
second topic applies the work-product protections of Rule 26(b)(3)(A) and (B) to
limit discovery of drafts of expert disclosure statements or reports and, with
three exceptions, of communications between expert witnesses and counsel
regardless of form (oral, written, electronic, or otherwise). The exceptions are
for those parts of the attorney-expert communications regarding compensation,
identifying facts or data considered by the expert in forming the opinions, and
identifying assumptions relied on by the expert in forming the opinions.

Revisions to Rule 56 were also proposed to provide a consistent procedure for summary judgment. According to the same source,

The proposed rule requires that unless the court orders a different procedure in
a case, a party moving for summary judgment must submit a statement of facts
that it asserts are not in genuine dispute and entitle it to summary judgment.
The statement must list the asserted undisputed material facts in separate,
numbered paragraphs, with citations to the record. The party opposing the motion
must file a response to the statement that addresses each fact by accepting,
disputing, or accepting it in part and disputing it in part, either generally or
for purposes of the motion only. The statement and response are separate from
the briefs. Other proposed changes include addressing the consequences of
failing to respond or responding in a way that does not conform to the rule and
recognizing the well-established practice of granting summary judgment on part
or all of a claim or defense.

New SCOTUS Term Begins Today

Oral arguments begin today in the Supreme Court’s new term. For an article summarizing the significant upcoming cases, see here. More specifically, here are some of the key cases coming up this term that are relevant to civil practitioners:

Altria Group v. Goode: Does the Federal Cigarette Labeling and Advertising Act preempt state tort claims for deceptive practices against tobacco manufacturers based on the marketing of “light” cigarettes? (First Circuit said no preemption in an opinion found here)

Vaden v. Discover Bank: Do federal courts have jurisdiction over motions to compel state-law arbitration claims that do not raise questions of federal law? (Fourth Circuit said yes in an opinion found here)

Philip Morris USA, Inc. v. Williams: Is the third time a charm for this punitive damages case? (see Oregon Supreme Court opinion here and SCOTUS's 2007 decision here)

Wyeth v. Levine: Does federal law preempt state tort claims based on drug labeling previously approved by the FDA? (Vermont Supreme Court said no preemption in an opinion found here)

Court Imposes Sanctions and Strikes Defense for Inadequate FRCP 30(b)(6) Designee

On Wednesday, Magistrate Judge Urbanski (W.D. Va.) addressed the issue of discovery sanctions in Spicer v. Universal Forest Products, a wrongful termination case. Of the various issues raised in the plaintiff's motion, what the court found “[m]ost disturbing of all [was] Universal’s abject failure to comply with the requirements of Fed. R. Civ. P. 30(b)(6).”

At his deposition, the company’s 30(b)(6) witness testified that he did no investigation into the topics listed in the deposition notice except to talk to the company’s counsel. Then, when plaintiff’s counsel asked about these conversations, the defendant’s counsel asserted attorney-client privilege. The court also noted that the company’s representative “was simply unaware of his role,” as he repeatedly stated that it was not his job to know certain relevant information, even though he admitted that this information “could have been obtained through investigation, had he done any.” Thus, the court concluded, “the 30(b)(6) deposition was a futile exercise for Spicer.” According to the court, “[t]he Federal Rules of Civil Procedure and case law require more of a corporation responding to a Rule 30(b)(6) deposition notice than Universal has done here.”

In its analysis, the court reiterated that a corporation “must make a good-faith effort to designate people with knowledge of the matter sought by the opposing party and to adequately prepare its representatives so that they may give complete, knowledgeable, and nonevasive answers in deposition.” When a designee lacks knowledge of relevant facts and the company does not designate a knowledgeable alternative, “[s]anctions may be properly imposed.” The company’s actions were not excused simply because it provided the plaintiff with discoverable information through non-30(b)(6) depositions and document production.

In the end, the court ordered Universal to pay costs and fees associated with the Rule 30(b)(6) notice and deposition, as well as the motion for sanctions. The court also struck one of Universal’s defenses because the corporate designee had no information on the topic and trial was imminent in the case. According to the court, “[a] party simply cannot disregard its obligations under the Federal Rules of Civil Procedure as Universal has in this case and thwart discovery on such a material issue.”

Second Boy Scout Files Suit Against California Meat Processor in Rockbridge County

Last week, another Boy Scout filed suit in Rockbridge County Circuit Court against S&S Foods after he contracted E. coli, allegedly from eating frozen hamburger patties supplied by S&S while at camp at the Goshen Scout Reservation. S&S Foods later recalled over 150,000 pounds of beef when it tested positive for E. coli.

In all, eighty-four people became sick while at the camp in July. This represents the second suit filed against S&S on behalf of an affected Boy Scout. (See here for a description of the first suit, including a copy of the complaint, and here for a posting by one of the attorneys for the plaintiff in both cases.)

W.D. Va. Sets Aside Jury Verdict in Corruption Case

On Monday, Chief Judge Jones (W.D. Va.) set aside jury verdicts against two corporate defendants totally $500,000 in Buchanan County v. Blankenship. In June, a jury found that Kenneth Stephens, acting as an agent of the two companies, had charged the county more than a reasonable value for flood relief work. The county also presented evidence that Stephens had paid bribes of as much as $300,000 to county officials (something he had been convicted of in a prior criminal trial). An article from today’s Richmond Times-Dispatch provides additional underlying facts of the case, which was part of a series of litigation:

The county’s attempt to collect money in a civil action followed the criminal
convictions three years ago of 16 people---among them county officials,
contractors and an employee of the Federal Emergency Management Agency---on
charges of bribery and fraud. The defendants were charged with swapping more
than $8 million in federally funded cleanup contracts for cash, guns, NASCAR
tickets and even prized coon hunting dogs. Although dog dealing was not a
central part of an investigation by the FBI and the Internal Revenue
Service, federal authorities came up with the name “Operation Big Coon Dog.”

In the civil suit, the county argued that two of the defendants were liable under Va. Code Ann. § 2.2-3123, which allows for the rescission of a government contract obtained through bribery. Under the statute, a contractor can only retain the reasonable value of property or services rendered, “with no increment for profit or commission.”

In granting the defendant’s motion to set aside the jury verdict, the court noted that:

While the undisputed payment of the bribes could have supported an inference
that the companies inflated their contract prices, there was no evidence by
which a reasonable jury could have determined the allocation of such amounts as
between the defendants. Although the companies shared a common agent, they
entered into separate contracts with the County, for separate services. The
evidence at trial could only have allowed the jury to speculate as to the proper
division of the bribes—and thus the proper division of damages—as between the
defendants.

W.D. Va. Grants SJ for Defendants in OxyContin Addiction Case

Earlier today, the court granted the defendant’s motion for summary judgment in a prescription drug products liability case. In Boysaw v. Purdue Pharma, the plaintiff, a federal inmate proceeding pro se, sued the manufacturer of OxyContin for negligence, failure to warn, breach of implied warranty, and additional federal law claims, alleging that the manufacturer’s actions caused him to be addicted to the drug.

In support of its motion for summary judgment, the defendant submitted a declaration where its expert opined that due to other medications that the plaintiff was taking , “he would have become physically dependent on opioids during the time in question even if he had not also taken the OxyContin he took.” The plaintiff did not produce an expert or any scientific evidence to rebut this expert opinion.

Applying Virginia tort law, the court noted the “settled principle” that a plaintiff bears the burden of producing evidence that the defendant was the proximate, or “but for” cause, of the sustained injury. Quoting a prior published opinion, the court stated that although “Virginia tort law does not mandate expert testimony to show proof of causation in every case[,] . . . in a products liability action, proof of causation must ordinarily be supported by expert testimony because of the complexity of the causation facts.” Accordingly, the court concluded that:

Although I am sympathetic to Boysaw’s indigence and inability to pay for an
expert, it is his burden to make a sufficient showing that OxyContin was the
cause of his physical dependence and addiction to opioids, and he has not done
so. Since causation is an essential element for each of his claims, including
the negligence and failure to warn claims, summary judgment in favor of the
defendant is appropriate at this time.

Virginia Court of Appeals Reaffirms Contemporaneous Objection Rule

In an unpublished decision, the Virginia Court of Appeals today reaffirmed the continuing role of the contemporaneous objection rule in Virginia.

In Ellis v. Commonwealth, Ellis appealed his criminal convictions on the ground that the trial court erred by admitting 911 tapes that were unduly prejudicial. At trial, Ellis made hearsay and relevance objections, but did not raise the issue of unfair prejudice.

The court began by noting that "[o]bjecting to evidence as unduly prejudicial is different from attacking it as logically irrelevant or, even if relevant, nonetheless barred by the hearsay rule." Accordingly, "[w]hile perhaps related, these three concepts are far from synonymous."

In light of these differences, by failing to raise the issue of unfair prejudice at trial, "Ellis never gave the trial court an opportunity to decide whether — even with multiple cautionary instructions, even though relevant, and even if not barred by the hearsay rule — the 911 calls should still be excluded from evidence as unduly prejudicial." As a result, the contemporaneous objection rule prevented the court from considering the issue and Ellis' conviction was affirmed.

South Carolina Supreme Court Creates New Exception to the Economic Loss Rule

Last month, in Colleton Preparatory Academy, Inc. v. Hoover Universal, Inc., the South Carolina Supreme Court addressed the following certified question: “Can the user of a defective product recover in tort when only the product itself has been injured and when the product either violated generally accepted industry standards or posed a serious risk of bodily harm?”

In a 3-2 decision, the court answered this question “‘no’ if there is merely a breach of industry standards without an accompanying breach of a legal duty owed, and ‘yes’ if there is a breach of duty accompanied by a clear, serious, and unreasonable risk of bodily injury or death.” In order to determine whether this “serious threat of physical harm” exception to the economic loss rule applies, the court adopted Maryland’s test of balancing “the nature of the damage threatened and the probability of damage occurring to determine whether the two, viewed together, exhibit a clear, serious, and unreasonable risk of death or personal injury.”

The dissent sharply criticized this ruling as “work[ing] a wholesale revision of the law of products liability, and eras[ing] important distinctions between contract (warranty) and negligence (tort).”

Trenga Confirmed to Federal Bench

On Friday, Miller & Chevalier attorney Anthony J. Trenga was confirmed to the federal bench in the Eastern District of Virginia. A UVA Law grad, he clerked for the Honorable Ted Dalton (W.D. Va.) after graduation. According to his firm profile, in private practice, Trenga worked primarily as lead trial counsel in ERISA, civil RICO, securities fraud, and other complex litigation. See here for a list of representative cases.

To see Senator Jim Webb's testimony about Trenga, see here.

Fourth Circuit Affirms Dismissal of Ham-Burglar's Widow's Wrongful Death Suit

In an unpublished decision, the Fourth Circuit affirmed a district court's dismissal of a widow's Section 1983 action against officers from a South Carolina police department. The facts of the case were as follows:

On the afternoon of November 7, 2003, Wylder walked into a grocery store in
North Charleston, South Carolina. Wylder threatened grocery store clerks with a
serrated steak knife and took a package of ham before leaving the store. Police
officers confronted Wylder outside the store and, according to their testimony
and the testimony of several nearby eyewitnesses, repeatedly told him to drop
the knife and get on the ground. Wylder refused and ignored the warnings
while backing away from the officers, leading them across the street. Wylder
eventually dropped the ham, reached into his pocket, and pulled out a
screwdriver that he had sharpened to a point. The officers failed in their
attempts to disarm Wylder by using pepper spray and batons. During one of the
attempts, Wylder cut Officer David Neumann on the lip and chin with the
knife. When Wylder advanced toward the officers, Officer James Handy drew
his firearm and fired a single shot that hit Wylder. Wylder fell to one knee,
but he refused to drop the knife and attempted to get back to his
feet. Handy fired a second shot and Wylder fell to the ground, where
officers subdued and handcuffed him. Wylder died as a result of the gunshot wounds.

On appeal, Wylder's widow argued that the district court failed to look at the evidence in a light most favorable to her, as five bystanders testified that they did not see a weapon or Wylder provoke the officers. The Fourth Circuit, however, rejected this argument, stating that "[t]he discrepancies between the officers’ testimony and the observations of the bystanders who did not see the knife or Wylder’s aggressive actions are not enough to raise a material question of fact disputing the version of events described by the unimpeached witnesses and the consistent testimony of the officers." The court also rejected the argument that the officer's use of deadly force was unreasonable. Accordingly, it affirmed the district court's dismissal of the action.

Judicial Council of Virginia Publishes Report from Appellate Rules Advisory Committee for Comment

Earlier this week, the Judicial Council of Virginia published a June 2008 report from the Appellate Rules Advisory Committee for comment. (See here for additional information on the Committee and the comment process.)

The Committee, chaired by Justice Lemons, suggested a number of amendments to the rules, including amendments addressing the procedure for filing an appeal, perfecting an appeal, and other procedural matters. The revisions also explicitly permit the citation of unpublished cases as persuasive authority. (Notably, if the opinion is "not available in a publicly accessible electronic database," a copy must be submitted with the brief/motion that is being filed).

Also of note is a new rule suggested by the Committee, Rule 5:1A. According to the Committee,

This is a new rule that states the Court may dismiss an appeal or impose
any other appropriate penalty for failure to comply with the rules. It also
gives the Court the ability to issue a show cause order at its discretion
and allow the party an opportunity to cure the defect in situations that do
not involve the violation of a mandatory filing deadline. Additionally the
rule states that if an attorney’s failure to comply with the rules results
in a dismissal, the Court may report the attorney to the Virginia State Bar.
The Committee wanted to make the public, and the legal community,
aware that the Court does report attorneys to the Bar when their failure to
comply with the rules results in a dismissal of an appeal. The Committee
also wanted to put into writing the show cause option so that the Court has
the option to allow a party to cure a procedural defect.

Stay tuned to see if these changes are enacted.

New FRE 502

Last week, President Bush signed into law new Federal Rule of Evidence 502, addressing the issue of inadvertent waiver of both the attorney-client privilege and the work-product doctrine.


Additional links:
Senate Report
Statement of Congressional Intent
Analysis from Law.com

Failure to comply with 5A:20(e) = "affirmed without opinion"

In a short published opinion, the Virginia Court of Appeals held that a party's failure to comply with Rule 5A:20(e) resulted in waiver. Accordingly, the court affirmed the trial court decision "without opinion as to whether error exists in the record."

Specifically, in Parks v. Parks, a wife appealed a trial court's equitable distribution order, claiming three errors. However, none of these errors were accompanied by legal authority to support them, in violation of Rule 5A:20(e)'s requirement that an opening brief include "[t]he principles of law, the argument, and the authorities relating to each question presented." Citing the Supreme Court of Virginia's decision in Jay v. Commonwealth, 275 Va. 510, 659 S.E.2d 311 (2008), the court stated that waiver could only occur if the failure to comply with the Rule was "significant." In this case, the court held that the "wife's failure to comply with Rule 5A:20(e) as to each question presented [is] significant."

Note: Interestingly, the opinion lists the husband as the only pro se party in the case.

It begins . . .

This blog grew out of my frustration that there wasn't a central source for information on legal news in Virginia. My hope is that this blog can help serve to fill that void and serve as a useful tool for Virginia lawyers. Feel free to submit your comments to civ.prac.va@gmail.com to help me achieve this goal.