Written by Lauren Gibbons, Esq.
Edited by Bill Pfund, Esq.
One of the Virginia Supreme Court’s most recent decisions touches on various issues that may, and often frequently do, arise in trial. In Emerald Point, LLC, et al. v. Lindsey Hawkins, et al., the tenants of an apartment complex prevailed in a jury trial against defendants, their landlord and its management company, for injuries from alleged carbon monoxide poisoning. 2017 Va. LEXIS 197 (2017).
Plaintiffs’ apartment was heated by a natural gas furnace. On several occasions the carbon monoxide detector in the unit was activated. Following various inspections and maintenance calls, the furnace was replaced. For this appeal, there is no dispute that plaintiffs suffered injuries as a result of CO exposure.
The Supreme Court addressed the following issues, in pertinent part, on the defendants’ appeal: (1) whether an expert’s testimony was properly allowed despite failure to disclose the opinion in accordance with Rule 4:1(b)(4)(A)(i); (2) whether the trial court erred in using an adverse inference jury instruction; and (3) whether the court properly allowed plaintiffs to increase their ad damnum following the close of evidence and over defendants’ objection.
A summary of the Supreme Court’s pertinent rulings are as follows:
Expert Testimony Disclosure
The pretrial scheduling order entered in this matter mandated that “all information discoverable under Rule 4:1(b)(4)(A)(i) of the Rules of the Supreme court of Virginia shall be provided or the expert will not ordinarily be permitted to express any non-disclosed opinions at trial.” The expert relied on a “very recent paper” to support his contention that exposure to CO leads to the development of dementia. Defendants objected to the use of portions of an expert witness’s testimony on the basis that the expert’s reliance on this recent study was not adequately disclosed in plaintiff’s answers to interrogatories. Despite this objection, the court allowed the testimony. The Supreme Court reversed the verdict on this error, as it was in clear violation of the pretrial scheduling order entered in the matter.
Adverse Inference Jury Instruction
The landlord stored the defective furnace in a maintenance bay for over a year following its removal from the unit but eventually disposed of it well before the filing of the complaint in this matter. Although the court found that the landlord “did nothing in bad faith” in disposing of the furnace, it nevertheless gave the following 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.”
The Supreme Court, in identifying this issue as one of first impression, 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.” When a party has only negligently, at best, destroyed evidence, a spoliation inference is too severe a sanction that would create an unjust and disproportionate result. The Supreme Court ruled that the instruction should not have been given.
Increasing Ad Damnum Following Close of Evidence
Plaintiffs each initially sought compensatory and punitive damages based on their assertion that defendants had been willful and wanton in failing to maintain the furnace and in failing to employ competent staff. Following the presentation/close of evidence, the trial court ruled that the plaintiffs failed to establish the requisite level of negligence or willful and wanton behavior to allow recovery of punitive damages. Despite defendants’ objection, the court allowed plaintiffs to increase their compensatory damages ad damnum.