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New Years Resolutions for Associates: Part 3: Building Your Community

As a new lawyer, I found marketing utterly mystifying.  How was I supposed to approach a complete stranger, usually much older than me, and ask them to entrust me with their legal work?  The answer is you don’t.  Cold calling is not a viable strategy.


Instead, build your network, one person at a time. The people who will be sending you business in 10 to 20 years are your peers today.  To that end, consider the following:


1.         Everyone counts.  Your assistant, your receptionist, the person who cuts your hair, your neighbor, the parents of your children’s classmates.  You never know when that person will end up in a position where they can influence who gets legal work, even if they do not presently work in an industry you are targeting.  A good way to develop this skill is to assess how you treat the staff in your firm – do you treat them the same way you treat the senior partner?  If not, you should.  Do not be blinded by hierarchy. 


2.         Show genuine interest in people as individuals, don’t hustle them.  It will take time, but if they get to know you and trust you, good things may follow.  If they don’t know you or trust you, nothing will follow.  Buy and read Dale Carnegie’s How to Win Friends and Influence People (  It’s culturally dated, but still relevant today. 


3.         Stay on their radar.  Several years ago my firm switched to electronic holiday cards.  I hate them, and some of my colleagues feel similarly and simply don’t bother to send them anymore, but I still do.  And, every year I get back anywhere from 10 to 30 e-mails thanking me and checking in – work may not follow, but at least they are thinking of me.  If they are not thinking of me, I’ll never get work from them.  Staying on the contact’s radar means more than holiday cards.  If you see a case or article that would interest them, shoot them a copy with a personal note.  Do it individually, not to a string of bcc’s. 


4.         Build and maintain your contact list.  Whether it’s Outlook, a paper Rolodex, or enterprise CRM software, make it a habit the first time you cross someone’s path to enter and save their contact information.  Use that information with restraint and don’t be a pest while you stay visible. 


5.         Do something non-law related in your community.  You’ll feel better, and you’ll meet great long term contacts.  Whether its related to your children, a social or political cause, a participatory sports or outdoor activity, a church, the Chamber of Commerce, or otherwise, go spend time with people who share your interests but are not necessarily lawyers.  In short, get a life.  It will give you something to talk about with clients and prospective clients.


6.         Become active in a legal or insurance industry organization.  Whether it’s your local Bar Association or a national one, all these organizations are run by volunteers.  There are never enough volunteers to accomplish all the organization’s goals.  Don’t ask for a glory job at the outset; volunteer to do the most thankless job in the organization, do it well, and the prominent roles and the professional stature that accompanies them, will follow in short order. 


7.         Never burn your bridges.  No matter how unpleasant an interaction, stick to the high road, remain civil and professional, and don’t alienate the other person.  For all you know, some years from now, you may be addressing them as “Your Honor.”  Or, that person may be the new General Counsel or Vice President of Claims of a major client.  

New Years Resolutions for Associates: Part 2-Basic Quality Control

Lawyers learn early to produce quality substantive work product.  There is more to producing quality work, however, than ensuring the law cited is good law, and the document has been spell-checked. 


Here are five things every litigation attorney, young and old, should do:


1.         Proofread the pleading caption.  It’s amazing how often typographical errors appear in captions.  When I was in law school, I worked for a lawyer who had a case dismissed because of a typo in the case number on a required filing.  As they say in the satellite television commercials, “Don’t be that guy.” 


2.         Proofread the service list on a mail-served pleading.  Despite all the systems in place to capture changes, far too often address changes, new parties and new attorneys don’t make it into service\ lists, especially when they are simply pulled from the last filing the attorney or firm has made. 


3.         Proofread the “white noise” portions of correspondence – the address, the subject line and the cc or bcc recipients.  Again, these are often pulled from prior correspondence without any critical examination of what’s being said.


4.         Pause before you hit the “send” button.  This has two parts:


            a.         Read the addressees  line.  Many of us have our e-mail programs set to auto populate names and e-mail addresses after a couple of keystrokes.  Computers are dumb and if you are not careful, the auto populated name won’t be the intended recipient.  I probably get two to four misdirected e-mails a month where I need to notify the sender and delete them. 


            b.         If the e-mail to which you are responding is accusatory, insulting or otherwise provocative, save the draft and wait until tomorrow morning.  Nothing is gained by a hasty reply, and your brilliant ripostes will not look nearly as brilliant tomorrow morning.  Also, to borrow in concept from George Bernard Shaw, don’t wrestle with a pig, both of you will get dirty, but only the pig will have fun. 


5.         Think twice before using “reply all.”  Usually, it isn’t necessary. 


In Part 3:  Building Your Community

Defendants Removal is Frustrated by Plaintiff's Multiple Amendments to Complaint

Defendant’s Removal Is Frustrated by Plaintiff’s Multiple Amendments to Complaint and an Action that Was Proceeding in Three (3) Courts Simultaneously

In Johnson v. Citibank, N.A., No. PWG-14-3024 (U.S. District Court of Maryland, December 5, 2014), the Court examined a complicated case of unsuccessful federal removal.  After initially filing a case pro se in Maryland State District Court setting forth, inter alia, violation of the Fair Credit Billing Act (“FCBA”), Plaintiff prayed a jury trial and amended his claimed damages, and so the case was transferred to the Maryland State Circuit Court, where the complaint was thereafter amended several additional times. 

Defendant sought to remove the case to the Maryland Federal Court on the basis of federal question jurisdiction based on the FCBA.  Defendant filed a notice of removal and provided notice to Plaintiff and the State District Court—but not to the State Circuit Court.  While the docket reflected that the case had been transferred from the State District Court to the State Circuit Court after the jury demand was prayed, the Defendant’s attorney was advised by the State Court Clerk that the case file remained with the State District Court, and therefore, the Defendant filed the notice of removal with the State District Court instead of the State Circuit Court.  After the notice of removal was filed, Plaintiff again amended the Complaint and stripped the Complaint of its federal claims.  Plaintiff moved to remand the case back to State Court on the grounds that there was no case pending in the State District Court to remove after the jury demand was filed. 

In ruling on the motion to remand, the Court disagreed with the Plaintiff’s argument, and found that although jurisdiction transferred from State District Court to State Circuit Court with the filing of the jury demand, the case remained pending and was removable to this court.  However, because Defendant did not provide notice to the State Circuit Court (in which the case was pending) until after Plaintiff amended his complaint to remove all of his federal claims, there was no basis for federal jurisdiction at the time that the removal was effected. 

Specifically, the Federal Court held that jurisdiction of the case was immediately transferred from the State District Court to the State Circuit Court upon the filing of the jury demand, and so the Notice of Removal ought to have been filed in the State Circuit Court.  The Court sympathized with Defendant who was left in a “state of limbo” in which the State Circuit Court had jurisdiction over the case but the State District Court retained custody of the physical case file.  Although Defendant timely filed its Notice of Removal in the Maryland Federal Court within thirty (30) days of being served with process, and immediately served a copy of the Notice of Removal on Plaintiff, the removal was not effective unless and until Defendant “[p]romptly . . . file[d] a copy of the notice with the clerk of such State court” as required by 28 U.S.C. § 1446(d).  Defendant did not strictly comply with 28 U.S.C. § 1446(d), but the Court noted that failure of notice to the state court is a procedural defect that does not defeat federal jurisdiction, and that several courts have found substantial compliance with 28 U.S.C. § 1446(d) where a state court has actual notice of the removal notwithstanding a defendant’s failure properly to file a notice of removal.

Although Defendant promptly provided notice of removal to the State District Court, it did so after jurisdiction transferred to the State Circuit Court.  The State Circuit Court was not made aware of the removal until Defendant filed its Motion to Stay State Proceedings over a month after the Notice of Removal was filed in this Court and over two (2) weeks after Plaintiff filed his Fifth Amended Complaint which eliminated his federal law claims.  Removal was effected on the date that the Motion to Stay State Proceedings was filed in State Circuit Court, and not before.

The delay between filing the Notice of Removal in the Federal Court and providing notice to the State Circuit Court was crucial because the validity of a removal must “be determined according to the plaintiffs’ pleading at the time of the petition for removal.”  Were removal complete on the day the Notice of Removal was filed in Federal Court, there is no question that Plaintiff’s FCBA claim would provide a basis for federal jurisdiction.  But, Plaintiff filed three amended complaints in State Circuit Court since that date, which eliminated the federal claims.  The Court did recognize that Plaintiff likely manipulated the Complaint to avoid federal jurisdiction, however, such liberal amendments are permitted in State Court, and so in this case, the amendments removing the federal claims were able to defeat removal based on the procedural irregularity with the filing of the Notice of Removal in the wrong Maryland State Court.  Accordingly, the case was remanded back to State Court.

Johnson v. Citibank, N.A., No. PWG-14-3024 (U.S. District Court for Maryland, December 5, 2014), Available at

Submitted by Marisa A. Trasatti and Colleen K. O’Brien, Semmes, Bowen & Semmes

New Years Resolutions For Associates: Part 1-Understanding the Logistics of Litigation Practice

When I started practicing law, I was told “Lawyers don’t type.”  That didn’t last long – three years later, I was the office guinea pig for giving computers to lawyers.  My handwriting has deteriorated ever since. 


But, this isn’t about typing or computers.  Every lawyer needs to know how to perform the tasks usually performed in larger firms by support staff to transform the lawyer’s intellectual work product into an actual court filing.  Only by understanding the logistical demands of an actual filing can the attorney ensure he or she is giving the support staff what they need when they need it.


With that preface, here are four things every young litigation lawyer needs to have done at least once:


1.         Make a paper court filing at the clerk’s office, ideally one requiring the payment of filing fees (without billing the client for your time).


2.         Make an electronic court filing from start to finish, preferably one with multiple documents and exhibits..


3.         Perform the printing, copying, and mail service of a complex discovery or motion pleading (ideally, one including exhibits), including execution of the Certificate of Service. 


4.         Find a document in a litigation support database. 


Why?  First, some day the attorney may need to perform these acts when there is no available support staff.  Second, every one of these tasks takes longer than many of us expect.   Giving the staff the necessary lead time is essential and there is no better way to learn how long these tasks take, and what obstacles may surface in the process, than doing it yourself. 


In Part 2:  Quality Control

Short-Term Disability Claim Administrator Abuses Discretion

Short-Term Disability Claim Administrator Abuses Discretion in ERISA Case When It Fails to Access Readily Available Information That May Confirm Plaintiff’s Theory of Disability

In Harrison v. Wells Fargo Bank, N.A., No. 13-2379 (U.S. Court of Appeals for the Fourth Circuit, December 5, 2014), the Court determined that Defendant abused its discretion by terminating the Plaintiff’s short term disability benefits.  Specifically, the Court held that Defendant did not give the Plaintiff’s claim a full and fair review pursuant to the Employee Retirement Income Security Act (“ERISA”).

Factually, Plaintiff worked for Defendant Wells Fargo as an Online Customer Service Representative.  In 2011, she was diagnosed with an enlarged thyroid and large mass that extended into her chest causing chest pain and tracheal compression.  She had a thyroidectomy surgery first, and a second chest surgery was scheduled for approximately two (2) months later to address the chest mass.  Wells Fargo paid Plaintiff short-term disability benefits for three (3) weeks after the first surgery, but terminated benefits prior to the second surgery, since it determined that three (3) weeks was the typical recovery period for this type of operation.  Additionally, while Plaintiff was facing her surgeries, her husband died unexpectedly, triggering a recurrence of depression and post-traumatic stress disorder (PTSD) related to the death of her mother and her children in a house fire in 2004.  Her primary care physician doubled her dosage of antidepressants and referred her to a psychologist for additional treatment.  Between those two (2) surgeries, Plaintiff sought continued short-term disability benefits on the basis of both physical and psychiatric complaints.

Defendant denied Plaintiff’s continued receipt of short-term disability benefits between the surgeries.  Plaintiff filed an internal appeal of the adverse claims decision.  She noted that she continued to have chest pain from the recent thyroid surgery and suffered emotional trauma from the death of her husband.  Her primary care physician and thoracic surgeon provided additional documentation to this effect.  Plaintiff also provided Wells Fargo with the contact information for her psychologist.  Additionally, Plaintiff also provided a detailed letter from her sister, who was her primary caretaker, outlining Plaintiff’s continuing pain, disability, and severe panic attacks.

During the appeal process, Defendant sought an independent psychological peer review of Plaintiff.  The psychological reviewer did not contact Plaintiff’s psychologist; he determined that the evidence in the record suggested that the recent events could have triggered PTSD; and he overall concluded that in the absence of psychiatric/psychological records or a telephone conference with Plaintiff’s psychologist, no opinion could be provided on whether Plaintiff’s psychiatric status limited Plaintiff’s functional capacity.  Wells Fargo upheld its previous decision to deny benefits.

Plaintiff filed an ERISA lawsuit claiming that Defendant abused its discretion in denying her short term disability benefits.  Defendant moved for summary judgment.  The trial court found there was insufficient evidence of disability under the plan and granted summary judgment in favor of the Defendant.  Plaintiff appealed to the Fourth Circuit.

The Fourth Circuit held that Defendant abused its discretion because it failed to contact Plaintiff’s psychologist when it was on notice that Plaintiff was seeking treatment for mental health conditions and when it had the psychologist’s contact information, as well as properly signed release forms from Plaintiff.  Here, the Defendant “chose to remain willfully blind to readily available information that may well have confirmed [Plaintiff’s] theory of disability.”  The Court recognized that “the primary responsibility for providing medical proof of disability undoubtedly rests with the claimant,” but also observed that the plan administrator cannot ignore medical information that may confirm the Plaintiff’s theory of disability where “there is no evidence in the record to refute that theory.”  Claim administrators should “notify a claimant of specific information that they were aware was missing and that was material to the success of the claim.”

Under past precedent, claim administrators are not under a duty to secure evidence supporting a claim for disability benefits when there is reliable evidence that a claimant is not, in fact, disabled.  In such cases, however, there is typically sufficient evidence in the record to refute the claimant’s theory of disability.  The present case, however, was distinguishable, as even the Defendant’s peer reviewer stated that the record was incomplete and his opinion as to whether the Plaintiff’s psychiatric status limited her functional capacity could not be provided.  The Defendant was “repeatedly” put on notice that Plaintiff was seeking psychiatric treatment, and even though the Defendant commissioned a psychiatric peer review, the psychiatric peer reviewer never contacted Plaintiff’s treating psychologist for further information that he determined was needed to render an opinion.  Unlike in prior cases, the record in this case did not refute Plaintiff’s claim of disability.

Even though Defendant was on notice that Plaintiff was receiving treatment for potential debilitating psychological trauma, it never made clear to Plaintiff that records from her psychologist were missing and needed.  Defendant noted “vaguely” and “deep into a long letter” that Plaintiff should provided relevant medical information “without ever once mentioning” the Plaintiff’s psychologist by name.  Instead, Defendant “should have made clear that records from [the psychologist] were absent from the record and necessary to perfect [Plaintiff’s] claim.”  Here, the Defendant breached its fiduciary duty to Plaintiff because it “neither sought readily available records” that “might have confirmed her theory of disability” nor “informed her in clear terms that those records were necessary.”  Accordingly, the judgment of the trial court was reversed and the claim was returned to Defendant for proceedings consistent with this decision.

Harrison v. Wells Fargo Bank, N.A., No. 13-2379 (U.S. Court of Appeals for the Fourth Circuit, December 5, 2014), Available at

Submitted by Marisa A. Trasatti and Colleen K. O’Brien, Semmes, Bowen & Semmes

Bad Law from the Eleventh Circuit

Yesterday, the Eleventh Circuit decided St. Paul Mercury Ins. Co. v. FDIC.  While the case is disappointing to industry-side lawyers who handle D&O coverage disputes involving failed banks, the court’s ambiguity analysis should be of greater concern.. 


According to the Eleventh Circuit, the fact that other courts disagree regarding the correct interpretation of policy language means it’s ambiguous.  That is a gross oversimplification.  But, it’s part of a disturbing trend as other courts reach similar conclusions.  See e.g., St. Paul Mercury  v. Hahn, 2014 WL 5369400 (C.D. Cal. 2014); Annotation, 4 A.L.R.4th 1253 (collecting cases).  The superficial “courts disagree, so it must be ambiguous” mode of analysis is wrong because each case involves the application of specific policy language to a specific factual pattern.  For example, in the failed bank D&O litigation context, many of the cases cited to show judicial disagreement regarding the Insured vs. Insured exclusion involve materially different policy language, because there is little uniformity in policy terms.  When courts simply tally conflicting decisions without considering whether they are on point, they err. 


Ambiguity doesn’t exist in the abstract.  It exists when there are multiple reasonable interpretations of contractual language in the context of the particular case.  As one California decision explained:


The [courts disagree] argument is unpersuasive. Different jurisdictions apply different rules governing the issue of textual ambiguity, and so may reach different results which are not necessarily logically inconsistent. The mere fact that judges of diverse jurisdictions disagree does not establish ambiguity under the particular principles which govern the interpretation of insurance contracts in California (see typed opn. at pp. 212–213).


ACL Technologies, Inc. v. Northbrook Prop. & Cas. Co., 17 Cal.App.4th 1773, 1787, n. 39 (1993). 


One flaw in the analysis by the 11th Circuit here, by the Central District of California in Hahn and by other courts is they did not analyze the following factors:  (a)was the policy language the same; (b)was the context of the court’s analysis similar; and (c)is the law being applied the same?  Without at least that level of congruence, the fact that courts hearing different cases reach different results does not mean the language at issue in a particular case is susceptible to multiple reasonable interpretations in that particular case.  Judicial disagreement does not compel a finding of ambiguity.  Just as juries are instructed not to make a decision based on the number of witnesses who testify on one side or the other, courts should not substitute counting conflicting decisions by other courts in place of analysis of the particular language at issue in the context of the particular case.  

A Sensible Class Action Decision

Too often the plaintiff-side class action bar focuses on the number of potential plaintiffs and ignores the fact that their identities may not be readily ascertainable, and that common issues may not predominate.  A recent decision from the California Court of Appeal is a breath of fresh air on that issue. 


It’s a truism, not always grounded in fact, that “Nobody pays retail” when it comes to health care.  Dagmar Hale, who was uninsured when she visited the Emergency Room at Sharp Grossmont Hospital in San Diego, didn’t see things the same way. 


Ms. Hale, despite being granted a discount off of retail pricing by Sharp Healthcare, filed a class action against Sharp on behalf of everyone who visited the ER without insurance.  She contended the “regular” rates at Sharp were unreasonable, unconscionable and illegal.  Following a previous appeal and prior certification of the class, Sharp moved to decertify the class.  The trial court agreed to decertify and the appellate court affirmed.  Hale v. Sharp Healthcare.


What’s interesting from a defense perspective, is how Sharp was able to defeat class certification.  From a review of its records, Sharp was able to identify roughly 120,000 patients who arrived in the ER claiming they were uninsured.  But, because California law prohibits hospitals from discussing financial issues with patients until after the patient is admitted and treated, Sharp explained that some of the “uninsured” really were not uninsured.  And for many others, Sharp gave or agreed to significant discounts from its retail rates, often resulting in payments less than those made on behalf of insured patients.  But, Sharp explained to the court that it could not ascertain which ostensibly uninsured patients really were uninsured, and not granted discounts, without individual review of the records of each of the 120,000 patients.  The court accepted that explanation, found the class was not ascertainable, and that individual issues, not class issues predominated. 


From a defense perspective, it’s refreshing to see that the court did not hold Sharp to an unreasonable standard of recordkeeping and instead accepted the inherent limitations of Sharp’s computerized records.  Too often, plaintiffs and courts expect a degree of IT sophistication and omniscience from corporate defendants which simply isn’t present in computer systems designed to meet the needs of regulators, auditors, and others, not the needs of plaintiff’s lawyers.  In Hale v. Sharp Healthcare, the court recognized that the parties can only work with the records as they exist, and if the manual review of the records of 120,000 patients was necessary to determine both class membership and damages, the class was not ascertainable, nor did common issues predominate. 

Trial Court Properly Granted Summary Judgment

Trial Court Properly Granted Summary Judgment for Nightclub Defendants Where Plaintiffs Injured in Bar Fight Failed to Prove Applicable Standard of Care by Expert  

In Night and Day Management LLC v. Butler, No. 13-CV-944(District of Columbia Court of Appeals, October 23, 2014), the District of Columbia high court affirmed summary judgment in favor of the Defendants in a case alleging inadequate nightclub security due to the Plaintiffs' lack of expert witness testimony.  The case arose out of a fight at a nightclub.  Plaintiffs sued the nightclub, its management company, and one of its principals (collectively, “Defendants”), claiming that the lack of proper security caused their alleged injuries.  The trial court entered summary judgment for Defendants because Plaintiffs had not proffered the expert testimony regarding the appropriate standard of care that they would need to prevail.  The appellate court affirmed.

According to the underlying facts, the Plaintiffs were in the VIP section of the nightclub.  One of the Plaintiffs slipped and fell, knocking over another patrons’ drink, which prompted a fight between the Plaintiffs and a second group of patrons.  The fight lasted ten to fifteen minutes.  There were no security personnel in the VIP room when the fight began, and the security cameras in the room were not working.  Club security personnel arrived after the fight was over, but they did not attempt to determine who started the fight.  The assaulting patrons left without being identified or questioned.  Security personnel escorted Plaintiffs out of the club, but did not offer any medical assistance although Plaintiffs were visibly bleeding.  Plaintiffs went to Washington Hospital Center to have their injuries treated.

Plaintiffs filed a Complaint alleging, inter alia, that the nightclub was negligent because it had not provided adequate security.  On July 16, 2013, the trial court granted Defendants’ motion for summary judgment.  The trial court did not base its decision on any argument raised by the parties, but sua sponte, granted summary judgment for the Defendants on the ground that Plaintiffs could not establish the standard of care for nightclub security without presenting expert testimony.  Plaintiffs appealed.

Because Plaintiffs’ Complaint sounded in negligence, the appellate court evaluated whether the applicable standard of care required expert testimony because it was something that was distinctly related to some science, profession, or occupation beyond the ken of the average juror.  The Court had previously affirmed trial court rulings that expert testimony was required to establish the standard of care in negligence cases that involve “issues of safety, security, and crime prevention.”

Here, Plaintiffs claimed that the nightclub was negligent because security personnel did not intervene in the fight.  But Plaintiffs took no discovery and provided no evidence regarding how many guards were on duty the night of the fight, how they were deployed, or why they did not intervene.  This is the type of information an expert would need to formulate an informed opinion on the appropriate standard of care and whether it was breached.  Even assuming that there were no security guards or working security cameras in the VIP room when the fight occurred, those facts cannot establish, by themselves, what the nightclub security arrangements should have been.  “Such issues are generally beyond the common knowledge of the average juror.”  Without expert testimony or some other evidence of the standard of care, a jury could resolve Plaintiffs’ negligence claim “only through pure speculation.”

The Court rejected Plaintiffs’ argument that the standard of care could be inferred from a statute, rather than expert testimony, under the doctrine of negligence per se.  The relevant statute, D.C. Code § 25-402, which requires nightclubs to submit a security plan with a liquor license application, which is subject to review by the Alcohol Beverage Control Board.  Even though the statute describes in great detail what topics the plan must address, the specifics are left to the discretion of the applicant and the review board, see D.C. Code § 25-403(g), and so a standard of care could not be imported from the statutory requirement that nightclubs submit a security plan with their license applications.  Additionally, even if the nightclub’s security plan could provide the standard of care, Plaintiffs did not submit it to the trial court.

The Court also rejected Plaintiffs’ argument that the standard of care could be inferred from the nightclub’s agreement with its neighborhood commission.  This agreement also contained a security plan, however, to the Court, it lacked specificity on how the security of the nightclub was to be arranged.  The agreement used terms such as “sufficient” and “adequate” which left much of the security specifics to the discretion of the nightclub.  Additionally, even if the agreement did contain specific instructions, guidelines such as internal policy manuals cannot provide the standard of care under the doctrine of negligence per se.

Therefore, because Plaintiffs failed to provide evidence of the applicable standard of care, the appellate court determined that the trial court had properly granted summary judgment in favor of the Defendants.

Night and Day Management LLC v. Butler, No. 13-CV-944, District of Columbia Court of Appeals, October 23, 2014, Available at

Submitted by Marisa A. Trasatti and Colleen K. O’Brien, Semmes, Bowen & Semmes

Desecration of unmarked graves

Desecration of unmarked graves is not prima facie negligence for desecration of marked graves

In 2004, Equitable Production Company, (“Equitable”) an oil and natural gas prospector, retained the services of General Pipeline Construction, Inc. (“GP”) to construct a pipeline across a land tract of a former coal mining town known as Crystal Block Hollow, WV.  Within that tract of land is Crystal Block Cemetery. While preparing the entrance and egress for the pipeline construction, GP’s bulldozer operator bulldozed a road through the cemetery, despite being informed by residents that the cemetery was in his path and contained the graves of the African American coal mine workers.  As the operator created the road access, he pushed aside, uprooted, and damaged the headstones and markers of numerous graves.  While other GP employees attempted to repair the graves, Equitable representatives did not visit the site for months after learning of the operator’s actions.   When the descendants of seven (7) of the grave occupants learned of the desecration, they filed suit against GP and Equitable in West Virginia.

In 2009, after the close of discovery, the circuit court certified a question to the Supreme Court of West Virginia on what elements were required to prove a cause of action for the desecration of a grave.  See Hairston v. General Pipeline, Inc., 226 W.Va. 663, 704 S.E.2d 663 (2010)(“Hairston I”). The Supreme Court issued guidance on that issue, but also advised that the  West Virginia legislature had preempted common law in limited circumstances, namely where there were “unmarked grave(s) … of historical significance” by codifying W.Va. Code § 29-1-8a (1993).

The matter then went to trial, during which the Plaintiff’s requested that, in addition to a jury instruction on the common law cause of action, an instruction be given that if Defendants were in violation of W.Va. Code § 29-1-8a, it was prima facie evidence of negligence.  The circuit court granted the request and permitted Plaintiffs to present expert testimony as to the legal meaning and application of the statute.  The Court also permitted the Plaintiffs to argue to the jury that the Defendants had spoliated, or illegally destroyed, evidence by attempting to repair the damage at the cemetery. The jury found in Plaintiffs’ favor and against GP and Equitable, including compensatory damages against both Defendants and punitive damages against Equitable.   The Court denied the Defendants’ motion for a new trial, and the Defendants appealed.

The West Virginia Supreme Court addressed three matters in the appeal: 1) whether W.Va. Code § 29-1-8a was applicable in this matter; 2) whether it was proper to permit expert testimony on the meaning of the statute; and 3) whether the arguments on spoliation were proper. The Plaintiffs argued that because there were unmarked graves that were also desecrated, along with their ancestors’ graves, the statute was properly considered by the jury.  The Court reviewed the language of the statute and held that it did not apply to the Plaintiffs’ marked graves, and further, there was no private cause of action created by the statute.  The right to enforce the statute, through civil or criminal prosecution, lay solely with the Director of the Historic Preservation Section.  In coming to this conclusion, the Court  noted that in determining if a statute created a private cause of action, a four factor test must be applied.

(1)       the plaintiff must be a member of the class for whose benefit the statute was enacted;

(2)       consideration must be given to legislative intent, express or implied, to determine whether a private cause of action was intended;

(3)       an analysis must be made of whether a private cause of action is consistent with the underlying purposes of the legislative scheme; and

(4)       such private cause of action must not intrude into an area delegated exclusively to the federal government.

Hairston II, at ___, citing Hurley v. Allied Chemical Corporation, 164 W.Va. 268, 262 S.E.2d 757 (1980)

In this matter, the Court held that W.Va. Code § 29-1-8a was not intended to protect Plaintiffs, but the unmarked graves, and further, the legislative intent did not create a private cause of action.  As such, instructing the jury on W.Va. Code § 29-1-8a was error, and the Court could not say it was harmless. 

The Court held that Plaintiffs’ use of an expert archaeologist and land surveyor to provide expert testimony on the legal meaning of the statute and whether Defendants were in violation of the statute was “clearly wrong.”  The interpretation and application of statutory language was the sole province of the judge.

Finally, the Court addressed the spoliation of evidence.  The Court first established the standard to be applied:

Before a trial court may give an adverse inference jury instruction or impose other sanctions against a party for spoliation of evidence, the following factors must be considered:  (1) the party’s degree of control, ownership, possession or authority over the destroyed evidence; (2) the amount of prejudice suffered by the opposing party as a result of the missing or destroyed evidence and whether such prejudice was substantial; (3) the reasonableness of anticipating that the evidence would be needed for litigation; and (4) if the party controlled, owned, possessed or had authority over the evidence, the party’s degree of fault in causing the destruction of the evidence.  The party requesting the adverse inference jury instruction based upon spoliation of evidence has the burden of proof on each element of the four-factor spoliation test.  If, however, the trial court finds that the party charged with spoliation of evidence did not control, own, possess, or have authority over the destroyed evidence, the requisite analysis ends, and no adverse inference instruction may be given or other sanction imposed.

Hairston II,at ___, citing Tracy v. Cottrell ex rel. Cottrell, 206 W.Va. 363, 524 S.E.2d 879 (1999).  The Court acknowledged that the record did not demonstrate that the spoliation instruction was in error, but noted that it was error for the Court to cede the determination of the application of the instruction to the jury.  Instead of performing an in camera review of Plaintiffs’ evidence to determine if a spoliation instruction was proper, the Court had simply permitted the jury to conduct the analysis.  The Court held this was improper, but did not address if it was harmless as it was already reversing judgment based on the errant statute jury instruction.

The Court reversed the judgments and remanded the matter to the circuit court for a new trial.

General Pipeline Construction, Inc. v. Hairston,___S.E.2d___ (W. Va. 2014) (“Hairston II”), Available at

Submitted by Marisa A. Trasatti and Gregory S. Emrick, Semmes, Bowen & Semmes

Deposition Boot Camp - The Purpose of Depositions

In conjunction with its Deposition Boot Camps (the next one in Philadelphia on November 12-13), the FDCC has published a deposition manual written by its members.  In Chapter One, The Purpose of Depositions - Dos and Don'ts, Marc Barre and Drew Timmons address how to secure the "good facts" during deposition:

If you can, begin your deposition with the good facts - those are the questions you will have prepared in your outline and the ones to which you believe you know the answer.  Starting your deposition with these questions will also allow you to get into a comfort zone with the witness.  For example, in a deposition of the plaintiff, find out if plaintiff's version of events actually supports the claim he raised in the complaint.  Before deposing a plaintiff, or any witness who may be able to support plaintiff's version of events, review the allegations contained in the Complaint, and discovery responses, if available, so that you truly understand the specific claim being raised.  Then, draft your deposition outline with an eye toward obtaining facts regarding the specific elements of each claim (i.e., what does the plaintiff need to prove in order to prevail?).  The more information you obtain from the Plaintiff about the circumstances of the incident, the better you will be able to craft your defenses.  Similarly, make sure you have explored the potential defenses available to your client, and ask as many questions as possible from the witness to obtain testimony which supports those defenses.  With this foundation, you will be able to extract the most relevant information from every witness, expert and fact witness alike. 




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