So a Party Lied During Discovery… What Now?

Written by Megan E. Cook, Esq. Edited by Bill Pfund, Esq. Whether viewed from a defense or plaintiff standpoint, after a party has provided false discovery information, the opposing party’s response should be to file a Motion for Sanctions against the party who provided the false information.  Virginia Courts have awarded sanctions against the violating party for false interrogatory answers and false deposition testimony numerous times. The case of Doe v. Va. Wesleyan College provides a succinct analysis of how to properly discuss one’s arguments supporting a Motion for Sanctions.  93 Va. Cir. 215 (2016).  The core arguments begin with an analysis of Virginia Code § 8.01-271.1 and Virginia Supreme Court Rule 4:12. The pertinent part of Section 8.01-271.1 of the Code of Virginia states: “Every pleading, written motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name…A party who is not represented by an attorney, including a person confined in a state or local correctional facility proceeding pro se, shall sign his pleading, motion, or other paper and state his address.  The signature of an attorney or party constitutes a certificate by him that (i) he has read the pleading, motion, or other paper [and] (ii) to the best of his knowledge, information, and belief, formed after reasonable inquiry, it is well grounded in fact…” The court in Doe interprets this as saying that sanctions under this statute are only available against the attorney.  93 Va. Cir. at 226.  Otherwise, as the statute discusses, sanctions can be assessed against a pro se litigant...

Off the Clock, but not Off the Hook: Employer liability for injuries suffered off the job site

Written by Christopher R. Wilson, Esq. Edited by Rachel A. Riordan, Esq. May an employer be held responsible for injuries an employee suffers even when he or she is “off the clock” or has left or not yet arrived at the job site? In Virginia, the answer is generally no, but there are exceptions to the general rule of which every employer should be aware. Under most circumstances, injuries suffered while an employee is going to or coming from work are not considered to have occurred “in the course of” the employment, and therefore are not compensable under the Virginia Workers’ Compensation Act. There are, however, three exceptions to this so-called “coming and going” rule that can make an injury compensable: (1) where the employee’s means of transportation is provided by the employer or travel time is paid for or included in the employee’s wages; (2) where the accident occurs in a location that is the only means by which all employees enter and exit the employer’s premises, and (3) when the employer requires the employee to undertake a “special errand”  away from the employer’s place of employment. Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 190, 355 S.E.2d 347, 347 (1987). Lastly, if the accident occurs in a parking lot or walkway that is found to be an “extension of the employer’s premises,” the going and coming rule will not bar the claim. Barnes v. Stokes, 233 Va. 249, 355 S.E.2d 330 (1987). The fact that an accident occurs in a parking lot or walkway used by employees is not sufficient by itself to make the accident...

Predicting Sanctions for an Unprepared Corporate Designee

Written by Brian A. Cafritz, Esq. Whenever a corporation is a party to litigation, the 30(b)(6) Deposition is one of the major events during discovery. Rule 30(b)(6) is the Federal Rule that establishes the means by which one party can take the binding deposition of a corporation. The basic framework is that the party seeking the deposition provides a list of Matters of Inquiry, notifying the organization as to what subject matters the inquiry will be focused. The corporation, then, decides the representative(s) it wants to answer the specific matters of inquiry. It is incumbent upon the corporation to make sure that the representative testifies, not based on his own knowledge, but based on the knowledge of the entire company. This, by necessity, requires preparation, focus, and dedication. So what happens when adequate preparation does not occur? Recently, the Western District of Virginia sanctioned a corporate defendant for acting in bad faith for not properly preparing its corporate representatives. In Latson v. Clarke, WDVA (Abingdon Division) Case 1:16cv39 (May 14, 2018), an autistic man sued the Virginia Department of Corrections (“DOC”) over improper treatment at a state prison. A Notice of Deposition was served on the DOC containing eighteen Matters of Inquiry. The DOC produced six corporate designees to answer the matters of inquiry. After the depositions were completed, the Plaintiff believed that the designees did not sufficiently prepare for their testimony and had insufficient information to answer the various matters of inquiry on which each was designated. As a result, Plaintiff moved for sanctions. It is worth noting that the matters of inquiry were agreed upon in advance, and the counsel conducted several meet and confer negotiations...

Keeping the Peace

Written by Rachel Stewart, Esq. Edited by Brian Cafritz, Esq. While restaurants and retailers want customers to patronize their stores, unfortunately, there are times when a particular customer threatens an employee or causes concern for the potential of harm to an employee or other customers.  With so much information on social media and in the news regarding videos of employee-customer interactions in restaurants and retail stores, what can or should an employee of a restaurant or retail store do when confronted with a dangerous or potentially dangerous customer? First and foremost, depending on the circumstances, the customer should be asked to leave the store immediately.  Once the customer is invited to leave and given a reasonable amount of time to comply, his failure to do so will change his status from invitee to trespasser.  As a trespasser, the duties owed to him under the law change.  Under Maryland law, a property owner is only required to refrain from willful or wanton conduct that may injure the trespasser. If a customer is brandishing a weapon of any sort or a fear of imminent or serious injury exists as a result of the customer’s actions, in order to protect your employees and customers, the police should be contacted immediately.  As we’ve discussed in a prior article, if the customer were to use the weapon and injure or kill a customer, the court may consider the timing of an employee’s actions on the risk of harm in determining liability once aware of the possibility of imminent danger. Employees should not be afraid to contact the police if a customer refuses to comply...

Take the $20 Challenge!

This past month, firm president, John Messersmith, gave all KPM attorneys and staff a crisp $20 bill and a challenge: Spend the money however you wish – but spend it on someone other than yourself – and then tell us what you did.  What resulted was a waterfall of good deeds and warm feelings that made the world just a little bit better. About a third of the money was donated to about a dozen different charities, churches or other community organizations.  Others followed their love of animals by helping shelters, SPCA and other animal care groups while another significant percentage helped their local schools or scouting organizations. Among some of the more heartwarming stories, a large group pooled their money in order to fund school lunches for children who otherwise would go hungry during the course of a school day.  Many matched or otherwise contributed additional funds for this cause and as a result, two local schools essentially had their lunch programs funded until the end of the school year.  Countless children had their days immeasurably improved. Given the impact of nutrition on learning, we may never know just how much impact this seemingly small thing had on some of those children. About 20% did all manner of acts of “pay it forward” from buying food or drinks for people behind them to covering medical co-pays for seniors at the drug store. Speaking of seniors, one individual bought and potted a few small plants to bring to residents in a local seniors’ home.  The real gift was in the time spent visiting with each of the recipients. Another...

A Closer Look: Medical Causation through Request for Admissions

In almost every circuit court case involving a bodily injury claim, at some point plaintiff’s counsel sends a set of basic Requests for Admissions regarding medical bills and records. The request always seeks the admission of three (3) basic things as to the plaintiff’s bills and records: 1) admit the bills and records are authentic; 2) admit the bills and records are reasonable in cost and scope; and 3) admit the bills and records are causally related to the accident alleged in the lawsuit. In most cases items 1) and 2) can, or must, be admitted without issue. This essay is concerned solely with item 3) or causal relation. As far back as can be remembered the answer to the “causal relation” request for admission is to deny, on the grounds that it requires an expert opinion and modern discovery rules and physician-patient privilege prevent defense counsel from simply calling the physician on the phone to discuss whether a particular bill or record is causally related to the subject accident (not that many physicians would take the call anyway). Conversely, it seems counter-intuitive that defense counsel could be forced to take a deposition of plaintiff’s treating physician in order to get to the bottom of causation. For the most part plaintiffs’ counsels have allowed the denial to stand without objection but lately there has been a movement to challenge the denial. What have the Courts said about this issue? First, Rule 4:11 of the Rules of the Supreme Court of Virginia provides in part: The answer [to a request for admission] shall specifically deny the matter or set forth...