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In an unpublished decision, the Virginia Court of Appeals today reaffirmed the continuing role of the contemporaneous objection rule in Virginia.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