(Posted March 22, 2018) On a day when the calendar cruelly mocks us by insisting that it’s spring, while temperatures here in Tidewater hover 12 degrees below normal, the Supreme Court helps warm us up with three new opinions.


Products liability

The justices hand down the latest in a growing string of products-liability victories for manufacturers in Evans v. NACCO Materials Handling Group, Inc. This is an appeal in a wrongful-death action; the victim was crushed to death by a lift truck at a paper plant in Lynchburg. His personal rep sued on three theories: negligence, breach of implied warranty, and failure to warn.

The claimed defect in the product was a parking brake on the truck; the brake didn’t hold the parked truck on a 12-degree incline, causing it to slide backward. The estate’s expert opined that because it was operator-adjustable by hand, instead of being adjustable only by mechanics using tools, it was unreasonably dangerous. A jury agreed, returning a verdict on the negligence claim only and fixing damages at $4.2 million.

The manufacturer moved the trial court to set aside the verdict, a move with a low probability of success. But it paid off here: The court ruled that the decedent was contributorily negligent as a matter of law, so it entered judgment for the manufacturer. The personal rep got a writ, and the justices also granted the manufacturer’s assignments of cross-error.

Today the justices affirm the judgment, but for a different reason. Instead of tackling the thorny issue of contrib as a matter of law – something that’s usually in the jury’s domain – the Supreme Court rules that the plaintiff failed to prove that the product was defective.

There are a few key aspects to this analysis, but the ones you probably need to know are these:

The court rules that “a design is not objectively unreasonable unless the plaintiff can show that an alternative design is safer overall than the design used by the manufacturer.”

Second, it’s not enough for a plaintiff to show that another design would have been safer in preventing injuries of the particular kind sustained by the victim. The proposed alternative design has to make the product safer overall. Justice McCullough, who writes today’s unanimous opinion, gives the example of air bags. Since air-bag deployments can injure babies and children, it would be safer for them to design cars without air bags. But that would generate a greater safety risk to a far larger number of adults who would be protected by the bags.

Third, and of particular significance to lawyers drafting pleadings in this field, the court completes its embrace of Kentucky products-liability law – a process that began with Dorman v. State Industries in 2016, advanced significantly last year in Holiday Motor v. Walters, and now emerges into the open today. This circumstance deserves an explanation.

In 1991, the Fourth Circuit decided a products case, Alevromagiros v. Hechinger Co., that purported to apply Virginia law, but actually cited a Kentucky-law decision (Sexton v. Bell Helmets, Inc.). While federal courts understandably cited Alevromagiros as defining Virginia law, the Supreme Court of Virginia never acknowledged the decision, perhaps because its use of consumer expectations to define a product’s acceptance in the marketplace didn’t fit within Virginia products jurisprudence.

Then in Dorman, the SCV for the first time held that evidence of the number of units sold is admissible to show acceptance of a product in the marketplace. Dorman still didn’t cite either of the federal decisions, but it gave the justices a stepping stone to do so in the next major products case, Holiday Motor. There, the court briefly cited Alevromagiros in a footnote, the first time it had even tentatively embraced Kentucky products law, explaining that reasonable consumer expectations are a factor in defective-product analysis.

Today’s opinion in Evans throws off any shyness on the subject: The court openly cites with approval Sexton, Alevromagiros, and several other federal decisions for the premise that reasonable consumer expectations can help define whether a product is unreasonably dangerous. Kentucky law has arrived.

This is a major victory for manufacturers, for the simple reason that a large number of product sales will always cut in favor of the defense in products litigation. My own view is that this is a highly imperfect lens to decide such an issue – for example, would Ford be able to assert that its Pinto was presumably safe because 3 million customers bought one? But from now forward, manufacturers will be able to cite those sales figures as a form of passive evidence to show that a product is safe, or at least not unreasonably dangerous.

There’s one other aspect of this decision that merits mention here. I noted above that the personal rep pleaded three theories of recovery. The jury based its ruling on negligence and rejected the implied-warranty claim. That leaves the failure-to-warn claims. Today’s opinion notes that that’s a separate issue from design defect. But for whatever reason, the parties submitted a jury-verdict form that listed only the negligence and warranty claims. This effectively shut off the failure-to-warn claim. Justice McCullough explains, “On these instructions, the jury’s defense verdict on breach of implied warranty, of necessity, was a defense verdict on the failure to warn.”


Actual innocence

Because of my travel schedule today, I only have time here to mention the outcome of an actual-innocence petition in In re Brown. The court dismisses the petition for two reasons. First, the petitioner relied on biological evidence that had been tested by a private laboratory. The court rules today that the actual-innocence statute only allows it to consider testing that has been certified by the Division of Forensic Science. Second, even with the evidence considered, the court finds that the petitioner has failed to show that a reasonable jury would not have convicted him, given the other evidence in the case. Justice Kelsey’s opinion for a unanimous court concludes with a quote from a recent SCOTUS opinion: “DNA testing alone does not always resolve a case. Where there is enough other incriminating evidence and an explanation for the DNA result, science alone cannot prove a prisoner innocent.”



Finally, the court issues a revised opinion in Kohl’s v. Dept. of Taxation, a decision first handed down on August 31. There, by a 4-3 vote, the court held that a company was subject to payment of taxes on royalties paid to a foreign (Illinois) subsidiary. The taxpayer petitioned for rehearing, noting that the majority based its decision in part on agency interpretations, and a statute forbids that consideration.

At least one justice from the August majority voted to grant rehearing, but today, the court again rules 4-3 against the taxpayer.





(Posted March 6, 2018) A panel of the Fourth Circuit today hands down a unanimous opinion in Adams v. Ferguson, an appeal stemming from the 2015 death of Jamycheal Mitchell, an inmate at the Hampton Roads Regional Jail.

Mitchell was arrested for theft in April 2015. Jail officials soon ascertained that, like many other detainees and inmates, he needed mental-health services. A psychiatrist found that he was “both manic and psychotic” and recommended that he be transferred to a hospital for treatment. But that transfer never happened; instead, Mitchell was subjected to treatment in the jail that most readers will regard as shocking. He eventually died from malnutrition while in custody, four months after his arrest.

The paragraph above reflects the facts as alleged in the complaint that Mitchell’s personal representative filed in 2016. There has as yet been no evidence taken in the case, because one of the defendants, the former commissioner of the Department of Behavioral Health, moved to dismiss the claims against her, on immunity grounds. A magistrate judge recommended that the motion be granted, but a district judge disagreed and denied the motion.

The commissioner appealed. Normally, you can’t appeal the denial of a motion to dismiss, but the refusal of a plea of qualified immunity is an exception to that, under the collateral-order doctrine. Even so, the circuit court today refuses to review some of the other defenses, such as state-law immunity under the public-duty doctrine.

There are two reasons for that refusal: First, the commissioner didn’t raise the public-duty doctrine in the district court, so that issue is waived. Second, the Fourth can’t use pendent appellate jurisdiction – where the courts can adjudicate state-law claims that are “attached” to federal-law claims – because the state-law claims aren’t “inextricably intertwined” with the federal claims. Some of the personal rep’s claims against the commissioner are thus sent back to the district court for further proceedings.

But the court can reach the qualified-immunity defense. The panel concludes that the allegations against the commissioner weren’t clearly established at the time, so she’s entitled to dismissal of those claims.

If you’re familiar with the case, you may be surprised to learn that the way in which the system treated the decedent isn’t forbidden by clearly established law. After all, the pleadings paint a horrifying picture of abuse, followed by death through what amounts to starvation.

But the claims against the commissioner are different: She is alleged to have ignored the pleas to have Mitchell transferred to a mental hospital, despite the availability of more beds than were needed for inmate patients at the time. And that claim is insufficient under existing law. Jails and prisons are expected to provide mental-health services, and while a hospital might give the patient a brighter prospect of recovery,

No clearly established law dictates that housing mentally ill inmates in prisons, rather than transferring them to state mental health facilities, “automatically and alone amount[s] to an ‘objectively excessive risk’ to [inmate] health and safety.”

The court thus affirms in part, reverses in part, and remands the case to the district court in Norfolk for further proceedings.

I’ll mention one other aspect of this. The commissioner had claimed immunity based on her status as a government official. She asserted that she was sued in her official capacity, and caselaw clearly holds that that’s the functional equivalent of suing the government itself. But the personal rep’s pleading asserts that she was sued in her personal capacity.

The appellate court doesn’t have to take that as gospel; it can find that such an allegation is merely a coat of varnish on official-capacity allegations. But not here. The allegations relate to the commissioner personally, and unlike true official-capacity suits, her successor wasn’t substituted as a party to the case when she stepped away from the job. This last point is a helpful tip to those who plead, and who respond to pleadings, in this kind of action.





(Posted March 1, 2018) The justices continue to clear off their desks today, handing down five published opinions and two unpublished orders.


Criminal law

Virginia’s statutes have long prohibited the public display of a noose with the intent to intimidate. Today’s ruling in Turner v. Commonwealth explores what a “public place” is in the context of that statute.

Turner knew not to put up his noose, complete with a mannequin of a black hanging victim, on public land. He decided that he could lawfully exercise this particular free-speech right by hanging the noose on his own property, just a few paces away from a public road, in plain sight for anyone passing by.

A trial judge, conducting a bench trial, viewed the phrase “public place” more expansively than Turner did, and convicted him. The Court of Appeals agreed and affirmed. Today the justices make it unanimous, affirming the conviction without a dissenting vote.

In his briefs, Turner continually referred to the requirement that the display be on “public property,” and he insisted that his land was private. But as Justice McClanahan’s opinion for the court points out, the statute doesn’t say “public property.” In another context – a prosecution for disorderly conduct – the court interpreted the phrase “public place” to include things that are done on private property but that are so close to a highway that they’re in a public place.

That’s enough to justify the conviction, but Justice McClanahan goes on to mention a separate and particularly important factor: the purpose of the statute. That purpose is to deter people from making threats that will intimidate others and place them in fear for their safety. Viewed in that light, this interpretation of the phrase makes perfect sense; Turner’s racially diverse neighbors will feel just as threatened by a noose and “victim” hanging just off the road as they would if the display were on public property.

In 2013, the General Assembly amended the actual-innocence statute relating to DNA evidence. Previously, a petitioner had to show that with newly acquired biological evidence, no rational finder of fact could have found proof of guilt beyond a reasonable doubt. The amendment changed the word could to would. Today’s opinion in In re Watford gives the justices the first opportunity to explore the effect of the amendment.

Watford was convicted on a plea of guilty to a charge of rape in 1977. The 12-year-old victim saw a doctor who filled out a report listing three names of possible perpetrators: “Skip, Anthony, Vale Waffer.” The Watford family includes three brothers named Anthony, Evelio, and Roy; the last of these is our petitioner, and his nickname was Skip.

Watford, who was 18 at the time of the assault, pleaded guilty on advice of his grandfather and received an extraordinarily lenient sentence: ten years in prison with all of that suspended.

Nearly 40 years later, the Department of Forensic Science was able to conduct DNA testing on the evidence in the case. That testing indicated that none of the biological evidence gathered at the scene and from the victim matched Watford. Based on this finding, he petitioned the Supreme Court for a writ of actual innocence to clear his name.

The justices found the record sketchy, so as provided by statute, they commissioned the local circuit court to conduct an evidentiary hearing on the case and report its findings back to Richmond. At that hearing, the victim, now over the age of 50, stated that she had not seen Watford at the scene, though she had seen one of his brothers. Today’s opinion adds,

When she was asked if she had named Watford as one of her attackers, she responded “I can’t remember I did.” When the circuit court pressed her on the matter, she stated, “I don’t remember, no. I don’t remember naming him.” She then stated that she remembered naming Evelio. Additionally, when asked if she knew Watford’s nickname at the time of the offense, she said she did not.

The circuit court also heard testimony from two other witnesses, one of whom lived next door to the scene of the attack. They both testified that they never saw Watford at the scene.

The Supreme Court considers all of this under the newer and more lenient standard of the revised statute, and concludes that on this record, no correctly instructed jury would have found guilt. The fact of the guilty plea is usually sufficient to establish guilt, and Justice Powell, in her opinion for the court, acknowledges as much. But a guilty plea doesn’t foreclose an actual-innocence petition under the statute, so the court evaluates all of the evidence and finds that it falls short of what’s needed to convict. Thus, 40 years after the guilty plea, the Supreme Court vacates Watford’s conviction.

For our final venture into criminal-law matters, consider the fate of those unfortunates who are remembered in history for their worst moment. For all his military brilliance, ranking him among the handful of greatest military geniuses in history, and despite winning scores of major battles, Napoleon Bonaparte is best-known today mostly for his defeat at Waterloo. For a more recent and more mundane example, recall how Steve Bartman – a nice guy – became Satan incarnate to Cubs fans merely for trying to catch a foul ball at a baseball game. (All was forgiven when the Northsiders won the Series 13 years later. They even gave Bartman a ring.)

The General Assembly has recognized that sometimes a person just needs a second chance. That gave rise to the expungement statute, allowing an arrestee to have his or her arrest record wiped away in certain circumstances. Our heroine in A.R.A. v. Commonwealth had too much to drink one night a few years ago; she ingested enough to necessitate a visit from the gendarmes. She didn’t like that, and struggled with the investigating officer. At one point, she grabbed that officer in a region that we don’t customarily mention in detail here at VANA.

A.R.A. was charged with two misdemeanors and one felony – assault and battery of a law-enforcement officer. By the time the case matured, she was apparently contrite enough that the local prosecutor agreed to let the misdemeanors go and drop the felony down to disorderly conduct. I presume that the officer consented to this reduction; in my experience, a prosecutor won’t do this over the objection of a cop who’s the victims of a crime.

The judge agreed to the charge, accepted her plea, and imposed a negotiated disposition of a fine and a suspended jail sentence. By all accounts, A.R.A. turned her life around; she finished college with a 3.8 average and got a good job.

But still, the arrest record troubled her. She had pondered going to law school, but feared that the arrest would work against her in the application process. She also decided not to seek a few positions that involved working with children, since she figured that the arrest would scotch that plan immediately. In order to free her from the lingering effects of her worst moment, she petitioned the local circuit court to expunge her arrest record.

The trial judge had no trouble with the misdemeanor arrests; those were gone with the stroke of a pen. But he refused to erase the felony arrest, ruling that “the continued existence and possible dissemination of information relating to the arrest of Petitioner on this charge does not cause and may not cause circumstances which constitute a manifest injustice to the Petitioner.” This tracks the language of the statute; the court simply found that the petitioner hadn’t made out a case of manifest injustice.

On appeal, a divided Supreme Court reverses. Justice McCullough, joined by four justices, finds that this is a proper case for an expungement petition, because the felony was “otherwise dismissed.” It may have been a different situation had the prosecution ended with a Speedy Trial Act violation; but here, the prosecution simply declined to prosecute her for the felony. That means she occupies “the status of innocent.”

This last part plays a big role in the court’s analysis of the merits of the case. The primary issue here is whether the trial court can look at the circumstances that got the petitioner arrested in the first place, presumably to see how egregious her conduct was. The trial judge had leaned heavily on those circumstances in denying the petition, but today’s majority rules that a court may not do so. A petition like this is “forward-looking,” in that by statute a judge has to consider not the offense but the likely effect of the arrest record on the petitioner.

That statute is phrased very favorably for the petitioner:

If the court finds that the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner, it shall enter an order requiring the expungement of the police and court records, including electronic records, relating to the charge. Otherwise, it shall deny the petition.

Note that it says that if the arrest record “causes or may cause” a manifest injustice. That causes us to exit the realm of certainty and enter the realm of possibility. The majority today decides that A.R.A. had made out a plausible claim that she may be harmed by the record, so that means that the trial court “shall enter an order requiring the expungement.”

This is almost good enough for the chief justice. He files a short opinion concurring in the judgment, though he would permit trial courts to look backward in addition to forward. In his view, even that backward look compels the conclusion that the petitioner is entitled to relief.

It is not, however, good enough for Justice Kelsey, who dissents along with Justice Goodwyn. The dissent finds it entirely appropriate for a trial court to look backward, and in this context, that set of circumstances could lead a judge to exercise the discretion not to grant the petition. Abuse of discretion is supposed to be a lenient standard of appellate review, and the dissent thinks that this judge wasn’t obviously wrong to say no.


Elected officials

In 2015, the Clerk of the Montgomery County Circuit Court stood for reelection. She won despite the fact that roughly half of her staff didn’t support her campaign. (Speaking as a political outsider, I’ll add that that fact probably should have been a big red flag for the voters; but they reelected her anyway.) When the Clerk fired everyone who had not supported her, fifty citizens of the county prepared and circulated a petition to remove her for neglect of, misuse of, or incompetence in the performance of her duties. This is the backdrop of Commonwealth v. Williams.

Removal procedures are tough; you have to gather signatures from voters representing 10% of the number of votes cast in the previous election. In the case of this election, that meant over 1,800 signatures. But the citizens spearheading the effort persevered, and they amassed more than the required number. That automatically triggered a show-cause order directed to the Clerk.

In response, the Clerk moved to quash the rule, claiming that the 1,800 endorsers of the petition hadn’t signed under oath. The Commonwealth’s Attorney, who by statute handled the proceedings after the show-cause order issues, answered that only the organizers needed to sign under oath, and all 50 of them had done so.

There are two statutes primarily in play here. Here’s the first one, setting forth the number of signatures required:

The petition must be signed by a number of registered voters who reside within the jurisdiction of the officer equal to ten percent of the total number of votes cast at the last election for the office that the officer holds.

The next statute contains the oath requirement:

A petition for the removal of an officer shall state with reasonable accuracy and detail the grounds or reasons for removal and shall be signed by the person or persons making it under penalties of perjury. . . .

The italics in both passages are inserted in today’s majority opinion. So, who has to sign under oath? Justice Goodwyn, writing for four other justices, believes that all 1,800 signatories must do so. That makes the petition ineffective to trigger a valid show-cause order, so the Supreme Court affirms the trial court’s order quashing the show-cause.

Justice McCullough dissents, and Justice Powell joins him. As befits a former appellate lawyer, his prose sparkles. Here’s his opening salvo:

Virginia has long been blessed with many talented and conscientious officials who ably labor for the public good. Human fallenness being what it is, however, accountability mechanisms are necessary to protect Virginians in the rare instances when their public officials go astray. Because I disagree with the majority’s interpretation of the applicable statutes, and because I fear that the majority’s interpretation will have baleful consequences on the accountability of our public officials, I respectfully dissent.

Who said appellate opinions have to be dry?

Justice McCullough notes that in 1989, the Attorney General had issued an opinion that went the other way, expressing the view that only the organizers – the people who craft the petition – have to sign under oath. That opinion stood the test of time for almost 30 years, but today the majority simply disagrees with it, holding that the language of the two statutes is clear.

My sentiment here lies with the dissent. I agree that asking 1,800 citizens to sign a petition under penalty of perjury is a very different matter than asking them to sign without that threat. And while the prosecution of several organizers for filing materially false statements in a petition is understandable, can you picture the prosecution of 1,800 people for the sin of having agreed that their elected official needs to go? I cannot envision that that’s what the legislature had in mind.

It is, of course, foreseeable that the 2019 General Assembly will see a bill to address and reverse this decision, specifying that only the organizers of a petition drive have to sign under oath. Otherwise, as a practical matter the Supreme Court has made it all but impossible for a citizen petition drive to succeed. (In fairness, today’s majority will insist that the legislature did it that way, intentionally or not.)


GDC appeals

When I picked up The Robert and Bertha Robinson Family, LLC v. Allen, I figured that the dominant issue was sanctions, and I intended to caption this section accordingly. The amount in controversy bears this out; the two appellate issues are a $2,600 landlord-tenant judgment and a $10,000 sanction award. But after reading it, I believe that the primary legacy of this opinion will be the resolution of a procedural issue that has perplexed bench and bar for some time.

Landlord sued tenants in general district court for unpaid rent and for damage to the leased property. Tenants counterclaimed, seeking a return of their security deposit. After a trial, a GDC judge ruled against both parties on their claims, awarding nothing to anybody.

The landlord decided to appeal to circuit court. The tenants didn’t appeal the denial of their counterclaim. But in the circuit, court, the tenants started acting as though they were still pressing the counterclaim. The landlord decided to be proactive, moving to dismiss the counterclaim, since the tenants hadn’t appealed. The tenants responded that the GDC had decided the whole case, and landlord’s notice of appeal was sufficient to bring the whole case up, including the counterclaim.

Before the court could adjudicate this motion, the landlord – a family-held LLC – decided to pull the plug on its appeal, moving to withdraw it under Code §16.1-106.1(A). The manager and his wife decided that, in light of some health problems, life was too short to keep fighting the tenants.

But the tenants weren’t through fighting. They filed a motion for sanctions. The circuit court granted the motion to withdraw, but “summarily awarded the tenants $2,600 on their counterclaim without hearing evidence on the matter.” The trial judge also awarded the tenants $10K in sanctions.

I will confess that when I read this procedural history, my reaction was, “Oh, no, you didn’t!” Judgment on a counterclaim with no evidence? Sanctioning a party merely for having appealed from GDC?

As it turns out, I am not alone; today the Supreme Court unanimously reverses both awards and enters final judgment. The sanction award falls easily; the trial judge based his ruling on the erroneous premise that an appealing party must have all of his trial evidence in hand before filing the appeal. That’s nonsense, of course; for one easy example, parties marshal evidence during the discovery process all the time. There is no requirement in the law that a party has to be ready to call her first witness when she notes an appeal from GDC to circuit.

The second issue implicates the very pregnant question whether an appealing party brings the entire case up to circuit with him when he appeals. Citing a “leading scholar of Virginia procedural law, Judge J. R. Zepkin,” the court today notes that this issue has never been firmly decided by the appellate court, so it undertakes to provide that guidance. (I agree that the issue needed appellate attention. I also agree that Judge Zepkin is about as expert as they come on Virginia procedure.)

Justice Kelsey authors today’s unanimous opinion for the court, and since this question implicates the meaning of the right of appeal, we’re in for the treat of a trip through legal history. He begins with an all-too-brief citation to one of my favorite recent law-review articles, which discusses the ancient origins of appeals. (A disgruntled litigant in ancient Egypt could appeal to an oracle in a temple, though that appeal usually turned on which side provided the better bribe to the priests. If you still weren’t happy, you could appeal on to pharaoh, but that could have unintended consequences.) He then explains the difference between a true appeal and a writ of error.

Candidly, none of this is essential to the resolution of today’s case, but for history nerds like me, it’s fun reading. I’ll let you read the slip opinion yourself to get the full reasoning, but today, for the first time, we have the definitive answer: If you want your dismissed counterclaim heard on appeal to circuit court, you have to file your own notice of appeal. You cannot rely on your adversary to bring the whole case up, and if you don’t appeal, the adverse judgment on your claim will trigger claim preclusion under Rule 1:6.

Because the counterclaim wasn’t properly before the circuit court, the justices reverse that judgment.





(Posted February 22, 2018) For the first time in 2018, the Supreme Court of Virginia hands down published opinions this morning. We get seven rulings, including three in the field of medical malpractice.

Before we move to the analysis, I’ll mention that this is an important week at Ninth and Franklin, as two justices celebrate birthdays this week; one today and one tomorrow. To protect their privacy, I’ll let you figure out which ones they are. Today’s celebrant shares a birthday with a highly esteemed member of the medical profession, and also with this guy. I offer happy birthday wishes to both justices, as well as to the Doctor.


Medical malpractice

The court considers the sufficiency of causation evidence in Dixon v. Sublett, involving complications from a laparoscopic hysterectomy. For those not of a medical bent, a laparoscopy involves a small incision into the torso, with tiny surgical instruments inserted through that opening. It’s comparable to arthroscopic knee surgery, if you’re familiar with that. It’s much less invasive than general surgery, in which a surgeon opens up the torso to perform the operation.

The day after undergoing the procedure, the patient experienced symptoms including significant pain and shortness of breath. When those symptoms remained on the second morning after surgery, the doctor ordered a CT scan; a subsequent surgery revealed and repaired a small perforation in the patient’s bowel.

The patient sued and called a medical expert to testify about the standard of care. He opined that the defendant doctor breached that standard by not examining the bowel carefully enough before ending the surgery, and by not calling in a general surgeon immediately. When the patient tried to have the same expert testify about what a general surgeon would do, the doctor objected that the patient hadn’t designated an opinion like that. The court sustained that objection.

The patient didn’t offer any other evidence on causation. The doctor moved to strike, but the judge let the case go to the jury. The patient got a verdict for $652,000. The doctor appealed and got a writ.

The Supreme Court reverses today and enters final judgment for the doctor. The justices note that there was no evidence in the record to show what a general surgeon would have done, or that the outcome would have been different if the defendant had called one in to operate immediately. That means that the trial court should have granted the motion to strike.

An expert is also at the heart of Holt v. Chalmeta, which involves a claim of neonatal malpractice in a Fauquier County hospital. The baby was born with a condition called nasal stenosis, which obstructed breathing through the nose.

When nurses saw a breathing problem a few minutes after birth, they summoned the eon-call pediatrician. That doctor tried to insert a catheter into the baby’s nostrils to permit airflow, but wasn’t able to do so; she ordered placement of something called an oxyhood, which surrounds the baby with moist oxygen to assist breathing. Seven hours after birth, the doctor decided to transfer the baby to the pediatric ICU at the University of Virginia, about 65 miles away. She did manage to insert the catheter, but by the time the baby reached U.Va., she had sustained brain damage due to an oxygen deficit.

The baby’s mother sued and offered a single expert witness to establish both breach of the standard of care and causation. The expert was a neonatologist, a pediatrician with special training in caring for babies. At trial, the defendant doctor objected that the expert didn’t have an active clinical practice in the field and didn’t have the required knowledge to qualify as an expert in the defendant’s field.

The trial court agreed and excluded the doctor, triggering summary judgment for the defense. The Supreme Court disagrees today, reversing and sending the case back for trial. The justices find that the expert was licensed in Virginia and in practice here in the field of pediatrics. She was thus entitled to the statutory presumption that she knew the standard of care. The court finds today that the defense didn’t rebut that presumption.

The Supreme Court notes that here, “the relevant medical procedures concern assessment of the severity of a newborn infant’s respiratory distress resulting from nasal stenosis and responding appropriately.” The expert’s practice included that kind of assessment, so she should have been allowed to testify.

I’ll add a word about the standard of review. The analysis section of the opinion begins with the recognition that normally the Supreme Court reviews the exclusion of evidence for abuse of discretion. That normal situation is subject to an important exception, applicable here:

However, in an action alleging medical malpractice, we will overturn a trial court’s exclusion of a proffered expert opinion “when it appears clearly that the witness was qualified.”

Since the justices find this expert to have been qualified, the case returns to Warrenton for a new trial.


Name-change petitions

When an ordinary Tom, Dick, or Harry wants to change his name to something more charismatic – say, Steven – the law makes it relatively easy. “[U]nless the evidence shows that the change of name is sought for a fraudulent purpose or would otherwise infringe upon the rights of others,” a court is required to grant the request.

Not so with inmates, probationers, and similar persons. For those folks, a court must find that “the change of name (i) would not frustrate a legitimate law-enforcement purpose, (ii) is not sought for a fraudulent purpose, and (iii) would not otherwise infringe upon the rights of others.” Assuming the applicant meets those requirements, the court has the discretion but not the duty to grant the petition.

That difference makes all the difference in Jordan v. Commonwealth. Jordan received a lengthy prison sentence for very serious crimes including aggravated malicious wounding and first-degree murder. His petition states that he found Islam while in prison, and he desired to change his name to reflect that conversion. The trial court found that the petition wasn’t for a fraudulent purpose, but it denied the petition anyway because of the severity of the crimes. The court’s discussion concluded, “A function of his punishment is that he bear the convictions in the name they were ordered by the court, and that his victims and society have that assurance.”

That ends up being good enough for the justices. Citing the trial court’s “broad discretion to grant or deny the petition,” the Supreme Court unanimously rules that the trial court “could conclude that a person who would commit crimes of that gravity and brutality must retain his given name, for the peace of mind of the victims and the victims’ families and to avoid any possible future confusion about his identity.” Jordan will be at least eligible to return to society when he reaches the age of 65, and society deserves to know who he is.

Jordan had stipulated that a denial of his name change wouldn’t hinder his exercise of his new religion. Today’s opinion doesn’t say that the result here would be different if he did make such a claim. Reading between the lines here, I sense that the court may have been relieved that it didn’t have to resolve an issue like that.


Administrative law

The Supreme Court takes up an employee grievance in Osburn v. Dep’t of ABC. Osburn was an ABC special agent who went with a colleague to inspect the premises of a restaurant that had applied for a retain alcohol license.

When they arrived, Osburn and his colleague split up; the colleague interviewed the applicant, while Osburn went back to the kitchen to see if it was fully stocked – a legitimate licensing requirement. But after checking the kitchen, he decided to keep snooping around:

After inspecting the kitchen, Osburn walked through an open door into a business office in the back of the Bistro. Once inside, Osburn searched the office. He opened desk drawers and a filing cabinet, and photographed various documents uncovered in the process. One of those documents indicated that [another person] was the owner of the Bistro. Osburn did not ask for permission to enter the office, and he did not encounter anyone while conducting his search.

ABC denied the application, perhaps because of what Osburn had found. (It’s grounds for refusal to make a false statement on an application, including falsely identifying the true applicant.) The applicant howled in protest, claiming that Osburn had violated her Fourth Amendment rights. Osburn felt that he had done nothing wrong, since a statute [scroll down to paragraph F] provides that ABC agents shall be allowed free access to various places within the Commonwealth.

ABC conducted an internal investigation and figured out what had happened. It fired Osburn for acting contrary to ABC policy. Osburn appealed through a grievance process but never found succor. Even the Court of Appeals ruled against him, holding that the free-access statute requires applicants to grant the access, but doesn’t allow the agent to seize it without notice.

The justices today affirm on a different ground. They conclude that the free-access statute applies only to licensee and doesn’t apply to applicants who don’t already have a license. Here, judge for yourself:

[ABC] and its special agents shall be allowed free access during reasonable hours to every place in the Commonwealth and to the premises of both (i) every wine shipper licensee and beer shipper licensee and (ii) every delivery permittee wherever located where alcoholic beverages are manufactured, bottled, stored, offered for sale or sold, for the purpose of examining and inspecting such place and all records, invoices and accounts therein.

Sure enough, only licensees and permittees are required to give free access to agents. Since Osburn had essentially blown off the applicant’s Fourth Amendment rights, the folks at ABC acted within their legitimate discretion in firing him.



Appellate lawyers will want to read Kellogg v. Green very carefully. The primary issue is whether res judicata bars a collection action where the trial court has already decided the merits of that claim in a show-cause proceeding. (If this sounds hauntingly familiar to you, you’re recalling Lee v. Spoden, 290 Va. 235 (2015), which resolved a similar issue.)

Kellogg and Green are former spouses; a circuit court unhitched them in a divorce proceeding after 16 years of bliss. The final decree incorporated by reference a prenuptial agreement from 1998 and an amendment to that agreement, signed in 2004. Those terms required the now ex-husband to pay the now ex-wife $5,000 for each year of their marriage. The math comes up to just shy of $83K.

The wife later filed a motion to amend the divorce decree to correct a typographical error; the amendment agreement was actually signed in 2003, not 2004. She included a petition for a rule to show cause, claiming that the husband hadn’t paid what he owed.

The circuit court considered the matter and entered an order correcting the typo. It provided, in language that’s familiar in these contexts, “this cause shall remain on the docket of [the circuit court] for the purposes of enforcing the terms of the Agreements.” Two weeks later, it entered a second order that, in the language of today’s SCV opinion, “memorialized the granting of the motion to amend the Final Decree and denied and dismissed the Show Cause Petition.” The court found that while the husband owed the money, it hadn’t specified the date when that money was due, so the husband wasn’t in contempt.

The wife figured she had another approach: She sued her ex for breach of contract. That looks plausible when you consider that the divorce decree stated that the agreements were enforceable “either under contract law or through the contempt powers” of the circuit court.

But the husband knew about Lee v. Spoden and filed a plea of res judicata. The circumstances of the two cases seemed indistinguishable to the trial judge, who dismissed the contract action. The wife argued in vain that the earlier proceedings weren’t final yet, because the court had retained the case on the docket to enforce the agreements.

Today, the Supreme Court reverses, agreeing that the previous ruling in the contempt proceeding wasn’t final. Since only final orders can serve as the basis for a plea of res judicata, the justices find that the trial court erroneously dismissed the contract claim. Today’s opinion remands the case to the circuit court for evaluation of that claim.

I will confess to being surprised at this ruling, for two reasons. First, the previous matter sure looks final to me, under the test for finality that the court quotes in this opinion:

A decree is final only when it disposes of the whole subject, gives all the relief that is contemplated and leaves nothing to be done by the court in the cause except its ministerial execution.

This quote is from a 1960 case, and the court has reaffirmed the holding often. In 2011, for example, it held the same thing, ending the passage with, “leaves nothing to be done in the cause save to superintend ministerially the execution of the order.”

Let’s go back to the language of the correction order in the divorce action: “this cause shall remain on the docket of [the circuit court] for the purposes of enforcing the terms of the Agreements.” I cannot explain to you why this language is not fully equal to “to superintend ministerially the execution of the order.” The subsequent order reaffirming the correction and dismissing the show-cause wasn’t filed in an independent action. It was entered within 21 days, so it was timely; but it didn’t create an open-ended, non-final order.

The second thing that troubles me is that this opinion seems to conflict with previous SCV caselaw on retention of jurisdiction. At pages 5-6, the slip opinion recites accurately the law on this point: a trial court can postpone finality by expressly retaining jurisdiction over a case.

But this judge didn’t do that: the order merely says that the case “shall remain on the docket.” That is the exact phrase that the court found wanting in City of Suffolk v. Lummis Gin, 278 Va. 270, 277 (2009). There, a judge used this very phrase, and the Supreme Court ruled that that wasn’t good enough; the trial court lost jurisdiction 21 days later because the order hadn’t retained jurisdiction.

There may be a factor elsewhere in the caselaw, or a circumstance in the record but not in this opinion, that justifies this ruling. If not, the Supreme Court has just embarked on a sea change in finality jurisprudence. In good conscience, I cannot recommend that future litigants try to establish continuing trial-court jurisdiction by using the phrase “remain on the docket” without adding “retain jurisdiction.” But today’s opinion, blessing that very approach, means there may be daylight out there for litigants who don’t follow my advice.


Res judicata and estoppel

We get a very helpful explanation of the boundaries between claim preclusion and issue preclusion, plus a discussion of judicial estoppel, in D’Ambrosio v. Wolf. This is litigation between a brother and his two sisters over Mom’s estate.

Mom had a stroke in 2012. The next year, she signed a durable power of attorney in favor of her son, whom we’ll call Brother. Early in 2014, she executed a will that divided her estate between Brother and the Sisters. Litigation ensued between the siblings, despite the fact that Mom still drew breath.

In the action, both sides sought relief against the other, claiming that this document was valid or that one wasn’t. The litigation ultimately ended in a consent order that appointed a neutral guardian/conservator and dismissed Brother’s claims.

The next year Mom died, and the Sisters got the 2014 will admitted to probate. Brother sued, claiming that Sisters had exerted undue influence on Mom to procure this will, and asserting that Mom lacked testamentary capacity. The Sisters filed a plea in bar, asserting claim preclusion, issue preclusion, and judicial estoppel. The trial court agreed with Sisters on all three rounds, and dismissed the suit. Brother, undeterred, got a writ.

Writing for a unanimous court – indeed, all seven of today’s opinions are 7-0 rulings – Justice Mims crafts a reversal opinion that you’ll probably agree is a very useful primer on the difference between claim preclusion and issue preclusion, plus a helpful explanation of one aspect of judicial estoppel.

Claim preclusion is now governed in Virginia by Rule 1:6. If you can raise a given claim in an action, but choose not to do so, you’re generally barred from asserting that claim in subsequent litigation. This prevents the practice of “claim-splitting,” whereby a plaintiff can subject a defendant to the annoyance of multiple lawsuits. The Sisters had asserted that Brother’s suit raised claims that could have been brought during the first suit – specifically, he could have sued earlier to impeach the will due to his power of attorney.

That doesn’t work, because a will “speaks” at death. No heir has a right to claim anything while the testator is still alive, because the testator can always change her mind and make a new will. Even so, the Sisters argue that Brother could have filed a declaratory-judgment action, since those don’t have to await the accrual of a claim. Unfortunately for the Sisters, prior caselaw bars this approach. Because Brother couldn’t have sought to impeach the will while Mom was alive, he cannot be barred by claim preclusion.

Justice Mims takes up issue preclusion next, and quickly explains one key difference between the two matters. Issue preclusion only applies to issues that have actually been litigated in the first suit. In other words, Rule 1:6 doesn’t govern here to bar issues that might have been included in the previous suit. Since the question of Mom’s capacity at the time she signed the will wasn’t actually decided in the first suit, that doesn’t help Sisters, and the trial court erroneously based its judgment on that doctrine.

Finally, the court takes up judicial estoppel. In the first action, Brother had asserted that Mom had capacity in 2013 when she gave him power of attorney, and again three months after the date of the will. They claimed that he could not, in the second suit, claim that she was incapacitated in between those dates.

Ah, but he can; the only date that matters for determining testamentary capacity is the date of execution. Earlier and later dates are irrelevant. The trial court thus erred in dismissing the suit on this ground. Justice Mims goes on to note that the judge in the first suit didn’t rely on Brother’s assertion about capacity in deciding the case. That’s a separate reason why judicial estoppel doesn’t bar Brother’s claim.

The court remands the case for further proceedings on Brother’s suit to impeach the will. As I’ve noted here, this is a highly instructive explanation of these concepts, and lawyers litigating cases even far removed from the probate arena should read it carefully.



There’s one more med-mal decision today: Martin v. Lahti implicates evidentiary issues and a familiar procedural problem on appeal.

A patient came to a hospital’s emergency room in Danville and was diagnosed with acute pancreatitis. Tests showed that the problem originated in her gallbladder. Her doctor recommended removing it. He met with the patient for over half an hour to discuss the situation. No one else was present.

This case, too, involves a laparoscopy and a claim that the surgeon “nicked a bowel during surgery.” A week after the surgery, the patient died. Her daughter qualified as personal rep and sued, claiming a lack of informed consent. The lawsuit asserted that the doctor had failed to inform the patient about available nonsurgical treatment, and that if he had done so, the patient would have chosen not to undergo surgery.

You’ll immediately appreciate the tremendous evidentiary disadvantage that the personal rep faces: How do you prove that someone else would have chosen Course B over Course A, particularly when the patient is now dead? The personal rep chose to do so with circumstantial evidence: her own testimony and that of her aunt.

At a hearing, the daughter told the trial court that she and her mother discussed medical matters in detail on this and other occasions. The mother had a stated resistance to surgery. The daughter was unable to testify as to what the doctor actually told the patient during that half-hour-plus, but asked the court to infer that the doctor left nonsurgical options out because the mother hadn’t mentioned them to her daughter. She concluded, based on her familiarity with her mother and other similar factors, that if the doctor had told her mother about nonsurgical treatments, the mother would have chosen that course instead of surgery.

The trial court didn’t buy this, and neither do the justices. The Supreme Court acknowledges that lay witnesses can offer opinions, but those are generally restricted to matters within the witness’s own perception. Here the daughter was simply speculating about what her mother would have done, and no witness can do that.

In a footnote, Justice McCullough observes that there is a split of authority over an issue that isn’t directly implicated in this appeal: whether proving causation in an informed-consent case requires a subjective or objective approach. The subjective approach is where a patient testifies, “I would never have consented if I had only known …” The objective approach turns instead to “what a prudent person in the patient’s position would have decided if suitably informed …” This issue remains unaddressed in Virginia jurisprudence for now.

There’s one more issue, but here, some sloppy drafting by an appellate lawyer dooms the appellant. The patient’s sister offered testimony that the patient had stated after the surgery, “I thought this would be an easy operation.” The personal rep contended that this helped to prove that the doctor had misled the patient.

While I find myself a bit skeptical of this contention, the issue dies without a resolution on the merits. The trial court originally ruled in a letter opinion that this statement was inadmissible hearsay and was speculative. After the evidentiary hearing I described above, the court ruled that the statement was irrelevant to the triable issue.

In the Supreme Court, the personal rep assigned error to the trial court’s ruling based on hearsay and speculation. The assignment said nothing about relevance, the ultimate basis for the court’s exclusion of the evidence. Because you must assign error to what the court actually did, the Supreme Court finds this assignment to be waived.





(Posted December 29, 2017) While we still might get some ninth-inning rulings today from the Fourth Circuit, for the most part the appellate year has drawn to a close. Here are a few notes on things that occur to me as I look into the rear-view mirror.


Business indicators

For those of us who make our livings in the Supreme Court of Virginia, it’s important to keep an eye on statistics that show how busy things are at Ninth and Franklin. I won’t have a full 2017 statistical report for two or three months, but I can see a few things just by looking at the court’s website.

For example, by my count the justices handed down 111 merits decisions this year, including 79 published opinions and orders and 32 unpubs. For comparison, in 2016 there were 125. That’s a decline of about 11%.

The ink isn’t quite dry on the number of incoming cases, but my best guess is that new filings will be down by almost 100 from last year’s figure of 1,827. The appellate business is not proving to be a growth industry.


The fate of the criminal appeal

A long time ago, in a galaxy far, far away, I took a bar-exam review course in which the criminal-law segment was taught by an enormously popular U.Va. law professor named Charlie Whitebread. Near the end of that segment, he gave us advice on what to do if, despite our best efforts and analysis, we just weren’t sure what the correct answer was. In that event, he advised, “Remember: This is Virginia. [Here he slowed down his delivery when pronouncing the name of the state, so it came out as four distinct syllables.] The defendant is guilty.”

Against that backdrop, we have this year’s criminal-law appellate jurisprudence. In published decisions, the Supreme Court ruled in favor of the defendant twice and in favor of the Commonwealth 16 times. The prosecution fared slightly worse in unpublished orders, winning seven appeals and losing five. Overall, then, the defendant won 23% of the time and the prosecution won 77%.

You may be interested in a comparison of those figures with the appellants’ success rate in the Court of Appeals, where all criminal appeals except those involving death sentences must first stop. At this point, I’ve only looked at the CAV’s published decisions, not the much larger body of unpubs. But among published opinions in 2017, the CAV ruled in favor of the prosecution 36 times and for the defendant 10 times, giving the prosecution a nearly identical success rate of 78%.

Keep in mind that this count, in addition to being only for published decisions, involves only appeals where the CAV has granted a writ. The overwhelming majority of criminal appeals die a quick death at the petition stage, so the prosecution’s real success rate is likely far over 90%. (The same dynamic is true in the Supreme Court, where all criminal appeals other than death-sentence reviews go through the petition stage.)


Was there an “opinion of the year”?

In 2016, this answer was easy: The 800-pound gorilla that year was clearly Howell v. McAuliffe, a politically charged mandamus petition where the principal combatants were the Speaker of the House and the Governor. It also involved what appeared to me to be a decision made well in advance; for reasons I outlined in my essay last year, I’m convinced that the justices considered the case, debated it, voted, and wrote their opinions long before the oral argument date.

This year … not so much. We had significant rulings, of course, but nothing of the magnitude of Howell. That being said, here are a few notable rulings in my view:

Mayr v. Osborn (Feb. 2) and Allison v. Brown (Jul. 27) convince me that in Virginia, the tort of “medical battery” (this is my shorthand for it) as a parallel claim to medical malpractice is either dead or in hospice. In the past, many patients had claimed battery instead of filing a med-mal suit because the cost of hiring a medical expert made the med-mal route uneconomical.

Jones v. Commonwealth (Feb. 2) is the latest salvo in the ongoing battle between the state and federal courts over life-without-parole sentences for juveniles. I don’t think that war is over yet; I believe that SCOTUS will eventually decide whether the inclusion of a geriatric-release program like Virginia’s means that no inmate is actually serving life without the possibility of parole.

The Funny Guy v. Lecego (Feb. 16) is just scary. Where a plaintiff settles pending litigation by accepting a promise (such as a note) from the defendant to pay something in the future, and the defendant doesn’t pay, the plaintiff now has to sue on the note AND on the original cause of action. If there’s something wrong with the note, and the plaintiff didn’t plead and prove his original claim as well, that becomes res judicata against him.

Hilton v. Commonwealth (Apr. 13) and yesterday’s Pijor v. Commonwealth are this year’s entries in the stupid-criminal sweepstakes.

Daily Press v. OES (Jun. 29) is the latest in a growing string of losses for open-government advocates. The justices ruled that a FOIA request sent to the Executive Secretary of the Supreme Court, seeking aggregated records of trial-court litigation, was misdirected. The requester must instead file a gazillion individual FOIA requests to local clerks for nonaggregated data.

JIRC v. Bumgardner (Jul. 20) and JIRC v. Pomrenke (Nov. 27) gave us the rarity of two judicial-discipline decisions in one calendar year.

City of Danville v. Garrett (Aug. 31) is the third appeal I’ve seen in the past two years in which the Supreme Court decided an appeal over which it demonstrably did not have jurisdiction. The court reversed all three.

Old Dominion Committee v. SCC (Sep. 14) is actually a fair nominee for the opinion of the year. Here, the justices rejected an argument that a widely publicized deal between the legislature and two electric utilities violated separation-of-powers principles.

Levick v. McDougall (Nov. 2) analyzes a contorted fact pattern in which a happy couple got married – or did they? – even though they forgot to get a license. The back-and-forth between the majority and dissenting opinions made for fascinating reading.


Two last thoughts about may and shall

Yesterday we explored the Sexually Violent Predator Act decision in Rickman v. Commonwealth. I’ve pondered that and have a couple of additional thoughts.

The court’s focus was upon the difference between a mandatory and a directory use of the word shall in statutes. As yesterday’s essay points out, the boundary is whether the statute specifies the consequence of a failure to do what one “shall.” If the consequence appears in the statute, then it’s mandatory; if not, then it’s directory and the courts fashion an appropriate remedy.

In that context, let’s look at Rule 5:5(a), dealing with filing deadlines in the Supreme Court. That rule states that the deadlines for filing certain appellate documents, such as a notice of appeal, are mandatory. Those rules wouldn’t qualify as mandatory requirements in their own right, since none of them specify the consequence of missing the deadline. (Rule 5:9 comes closest, stating that “No appeal shall be allowed” unless you file the notice within 30 days.) The effect of Rule 5:5 is, by clear implication, to fix dismissal as the penalty for missing the deadline. And indeed, that’s the way the justices have always treated those rules; they sometimes say that the appellate court doesn’t have jurisdiction if you miss one.

If you want an example from the rules of a clearly mandatory requirement, check Rule 5:17(c), which specifies what a petition for appeal “must contain.” One of those requirements is a section entitled, “Assignments of Error.” That section goes on to state that “If the petition for appeal does not contain assignments of error, the petition shall be dismissed.” That’s what we call an unambiguous consequence.

The other thought was actually suggested by The Boss, when I told her about Rickman: “Gee, how about the Ten Commandments? Are they directory, too?” Not bad, Boss; you’re thinking like a lawyer. Sure enough, with the possible exception of the Third Commandment, there are no consequences specified there, either. Happily, this is not a matter that will occupy the justices’ minds anytime soon.

Thou shalt enjoy a happy, healthy, and prosperous 2018, my dear readers.