Sanctions for Loss or Destruction of Evidence – SB1619

Under a new Virginia law that will go into effect July 1, 2019[1], parties to lawsuits now have a duty by statute to preserve evidence that may be relevant to litigation. The measure, SB1619, authorizes courts to punish parties and potential parties to lawsuits alike for failing to preserve, disposing of, altering, or concealing evidence that should have been preserved in anticipation of litigation (in legal terms, the “spoliation” of evidence). Determining when the duty to preserve arises will depend on all the facts and circumstances, especially the factor of when the party or potential party had notice that litigation was likely and that the evidence would be relevant. Significantly, the duty may arise even before a lawsuit is filed.[2] The statute does not impose a duty of evidence preservation on non-parties. When a party is prejudiced by the loss of potential evidence by spoliation, judges are authorized to fashion a sanction proportional to the value of the lost evidence.[3] When the party to be punished acted recklessly or with intent to deprive the other party of the evidence, however, more dramatic sanctions will be available, including dismissal of the lawsuit, entry of default judgment against the spoliator, or an instruction to jurors that they may presume the evidence would have been unfavorable to the party that lost it.[4] The anti-spoliation statute is a reaction to the Virginia Supreme Court’s holding in Emerald Point, LLC v. Hawkins[5], in which the Supreme Court reversed a jury verdict for plaintiffs injured by carbon monoxide poisoning and remanded the case for a new trial. Although the Court reversed on the ground that...

Prohibition against Excessive Fines by U.S. States

In a unanimous decision by Justice Ruth Bader Ginsburg issued February 20, 2019, the Supreme Court of the United States ruled in Timbs v. Indiana[1]that the Eighth Amendment’s[2] protection against excessive fines applies to the states via the Fourteenth Amendment’s Due Process clause. The decision may strike a blow at the heart of many states’ civil asset forfeiture laws, which enable law enforcement officials to confiscate property believed to have been used in connection with a crime, but which have been criticized for depriving owners of property without due process protections and for giving the police a financial incentive in the administration of justice[3]. Tyson Timbs pleaded guilty in an Indiana trial court to distributing a small amount of heroin and was sentenced to home detention, probation, and payment of fines and costs. The police seized his Land Rover automobile, valued at $42,000, under Indiana’s asset forfeiture law, alleging that the vehicle had been used to transport the heroin. Timbs demonstrated that the Rover had been purchased not by any illegal activity, but with the proceeds of an insurance policy on his late father’s life. The vehicle had indeed been used to transport heroin, but Timbs argued at trial and the court agreed that forfeiture of the Land Rover would constitute an excessive fine in violation of the Eighth Amendment, because the maximum fine for the distribution offense was $10,000. The Indiana Court of Appeals affirmed, but the Indiana Supreme Court reversed, holding that the prohibition on excessive fines had not been incorporated against the states and therefore restrained only the federal government from disproportionate impositions[4]. Tracing its history...

Negligent Infliction of Emotional Distress

A previous post on the Tremblay & Smith blog discussed the legal standard for claims of intentional infliction of emotional distress. But not all emotional injuries are caused by intentional or reckless action—sometimes ordinary negligence is to blame. This post addresses the status of Virginia law regarding negligent infliction of emotional distress (NIED) and a recent proposal to extend recovery to more potential plaintiffs. The Virginia Supreme Court in Hughes v. Moore[1]articulated the standard for recovery on a claim of negligently inflicted emotional distress: [W]here the claim is for emotional disturbance and physical injury resulting therefrom, there may be recovery for negligent conduct, notwithstanding the lack of physical impact, provided the injured party properly pleads and proves by clear and convincing evidence that his physical injury was the natural result of fright or shock proximately caused by the defendant’s negligence. The short quotation from the Hughes opinion contains a number of key points for the potential NIED plaintiff: (1) The plaintiff need not have experienced any physical contact from the defendant’s negligence; (2) but the plaintiff’s emotional distress must have resulted in some physical injury; (3) the compensable emotional disturbances include fright and shock; (4) the physical injuries must have been the natural result of the plaintiff’s emotional distress; and (5) the plaintiff must prove his or her case by clear and convincing evidence. The requirement that the plaintiff’s emotional distress must have proximately caused the physical symptoms may be seen as an articulation of the duty in every negligence case to prove that the injuries are the natural and probable result of the defendant’s actions; of course, where harm to others is...

Qualified Immunity for Police Officer Who Shot Woman in Own Front Yard

In a per curiam opinion dated April 2, 2018, the U.S. Supreme Court found that a police officer who shot a woman suspected of no crime but who was holding a kitchen knife at her side in her own front yard was shielded from a civil suit by qualified immunity. The doctrine of qualified immunity protects government officials from some types of lawsuits arising from the performance of their duties. As national attention has increasingly focused on police shootings, the Supreme Court opinion prioritizes the officer’s view of what happened over the citizen’s, and it will probably make it even more difficult for citizens to recover money damages on claims of excessive force. In finding the officer was entitled to the protection of qualified immunity, the Supreme Court focused on the question of whether at the time of the shooting his actions violated clearly established law. Finding the officer’s actions did not, the Court reversed the Ninth Circuit Court of Appeals, which in turn had reversed the District Court in granting summary judgment to the officer. The Supreme Court found the Ninth Circuit had misapplied its own precedents and interpreted “clearly established law” too generally. “Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[1] “Police officers are entitled to qualified immunity unless existing precedent ‘squarely governs’ the specific facts at issue.”[2] Applying the Ninth Circuit precedent, the Court found that the officer did not violate the woman’s clearly established Fourth Amendment right not to be subjected to the use of deadly force. Justice Sotomayor...

The Doctrine of Qualified Immunity

Recent well-publicized reports of citizens being injured or killed by police officers have produced public discourse on what civil liability law enforcement officers face for the use of excessive force. The pattern of grievous personal injury followed by administrative leave, no criminal charges, and an eventual return to employment has left the families of Eric Garner, Philando Castile, and Alton Sterling asking what civil remedies are available against law enforcement officers. The chief source of tort liability for excessive force cases is 42 U.S.C. § 1983, which provides a civil action for money damages “to any citizen of the United States or other person within the jurisdiction thereof [for] the deprivation of any rights, privileges, or immunities secured by the Constitution and laws. . . .”[1] The United States Supreme Court has interpreted 42 U.S.C. § 1983 to create tort liability for police officers acting outside the scope of their lawful authority.[2] But even though police officers can be sued for violating civil rights, victims and their families seeking monetary compensation must still overcome a high hurdle before their cases will be heard: the doctrine of qualified immunity. There are various kinds of governmental immunity under the law. Federal and state governments, for example, are protected by what is called sovereign immunity, which protects them from suit unless they have passed legislation specifically allowing them to be sued.[3] “The doctrine of sovereign immunity from suit, rooted in the ancient common law, was originally based on the monarchical, semireligious tenet that ‘the King can do no wrong.’”[4] Both the federal government and the Commonwealth of Virginia have waived their sovereign immunity in...