Hi, How Can We Help You?

Virginia Supreme Court Hears A...

Virginia Supreme Court Hears Appeal in Wrongful Death Case Involving a Widower and His Attorney Destroying Facebook Evidence

In one of the largest wrongful death cases Virginia has ever seen, a jury awarded a Plaintiff over $6 million dollars to compensate him for the death of his wife in a motor vehicle accident.  The driver of the other vehicle was an employee of Allied Concrete Company, and lost control of his loaded concrete truck, causing it to tip over and land on the vehicle occupied by Plaintiff and his wife.  The wife’s injuries proved to be fatal, and the jury awarded Plaintiff $6,227,000 to compensate him for her death.  However, after trial, it was revealed that Plaintiff’s attorney assisted the widower in destroying evidence by instructing him to “clean up” his Facebook page.  Allied claimed the attorney’s misconduct entitled it to a new trial or to a reduction of the jury’s award.  The trial court refused to grant a new trial, but did reduce the jury’s award by over $4 million.  Both parties appealed to the Virginia Supreme Court.  Justice Cleo E. Powell authored the opinion of the Supreme Court in Lester v. Allied Concrete Co., et al., dated January 10, 2013.

Allied argued that it was entitled to a new trial because the proceedings were tainted by the Plaintiff’s dishonesty and his attorney’s unethical conduct.  During discovery, the defendants sought the production of screen print copies of Plaintiff’s Facebook page.  The attorney representing Plaintiff first instructed Plaintiff to “clean up” his account, and then to deactivate his account altogether in order to avoid production.  The Plaintiff then lied under oath about deactivating his account.  Eventually, Plaintiff reactivated his account, but deleted several photos before producing the rest to Defendants’ counsel.  During the trial, the Court explained Plaintiff’s misconduct to the jury.  The judge instructed the jury to “presume that the photograph or photographs he deleted from his Facebook account were harmful to his case.”   Lester v. Allied Concrete Co., et al.  After the trial, the court also ordered Plaintiff to pay $180,000 to Defendants for his misconduct, and ordered Plaintiff’s attorney to pay a significant sanction of $542,000.  The Virginia Supreme Court held that the trial court did not err by failing to grant Defendants’ Motion for a New Trial since it took these proper steps to mitigate any effects of Plaintiff and his attorney’s misconduct before and during the trial.

However, the Supreme Court held that the trial court was in error when it reduced Plaintiff’s jury award by over $4 million.  In deciding to reduce (or remit) the jury award, it appears the trial judge was overly influenced by Plaintiff’s attorney’s actions.  The trial judge noted that the attorney was shouting objections and “breaking into tears when addressing the jury,” and this caused the jury to act on its bias, sympathy, or passions; rather than by fair and objective considerations of the evidence.  Lester v. Allied Concrete Co., et al.  However, the Supreme Court was not persuaded that the trial court itself had engaged in a reasonable evaluation of the evidence related to damages.  Even if the trial court was correct that the jury was improperly motivated by the attorney’s courtroom theatrics, the Supreme Court held this would still not provide a basis to ascertain whether the damages awarded bear a reasonable relation to the damages disclosed by the evidence.  Therefore, the Supreme Court reversed the trial court’s order and reinstated the jury’s full award to Plaintiff.