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Erin McNeill is a member of the Risk Management practice group and the Animal Law team. She focuses her law practice on the defense of private companies, and insurers and their clients in toxic tort, general liability, and products liability cases in state and federal courts. She works in the Richmond office of the firm.
What is offered here are highlights of some of Judge Scheindlin’s comments in this decision. This is neither offered as a complete analysis of the opinion, nor is it postured to be a legal analysis of the opinion with respect to the rules of discovery or other case law.
During the 2010 session of the Virginia General Assembly, House Bill 93 (“HB 93″) was passed to amend Virginia’s existing underinsured motorist insurance statute, Virginia Code Section 38.2-2206 (“UIM Statute”), in an attempt to address concerns that UIM carriers could force protracted litigation because no incentives or penalties existed to encourage them to sit in good faith at the negotiating table during litigation.
Virginia civil law can be odd in a number of ways, not the least of which is the intent and effect of Virginia Code Ann. ยง 8.01-404 concerning prior written or recorded statements by witnesses. This statute, which contradicts the majority evidence rule that permit a defense attorney to use a prior written statement to cross-examine a witness, states that “(I)n an action to recover for personal injury or death by wrongful act or neglect, no ex parte affidavit or statement in writing, other than a deposition, of a witness and no extrajudicial recording made at any time other than simultaneously with the wrongful act or negligence at issue….shall be used to contradict him as a witness in the case.” Thus, if an adjuster, attorney, or investigator obtains a statement from a plaintiff or other witness, if written or recorded on tape, that statement cannot be used at trial to contradict that witness when he inevitably changes his story two years later.
. . . Cummins proposed solution is for claims reps to give defense counsel a more accurate understanding of their expectations, but I think defense counsel are aware that claims reps want accurate and timely information. Instead, should defense counsel communicate areas of uncertainty more accurately? . . .
Attorneys advising clients on the strategic value of removal to Federal court are free to advise their clients without risking the threat of sanctions in the event the case is remanded back to state court after removal. Instead, clients bear the risks of sect. 1447′s award of costs and fees, which puts the client back [...]
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