Virginia Lawyers Weekly VA Lawyers Weekly
A Charlottesville judge slashed a record wrongful death verdict by two-thirds and ordered sanctions against the plaintiff and his lawyer in the aftermath of a hotly contested trial.
Circuit Court Judge Edward L. Hogshire also referred Charlottesville lawyer Matthew B. Murray to the Virginia State Bar on three separate findings of wrongdoing, and referred Murray’s client to the local prosecutor for consideration of a perjury charge.
Hogshire found the jury’s $6,227,000 award to Isaiah Lester for his wife’s death in a 2007 collision with a concrete truck to be “grossly disproportionate” to the $2 million awarded to the woman’s parents. The judge cut the husband’s award to just $2.1 million.
The court released its order in Lester v. Allied Concrete Co., (VLW 011-8-164) on Sept. 1.
The judge will hear evidence later this month to decide the amount of sanctions to be paid by Murray and his client. Hogshire also will consider whether to hold Murray’s former law firm, Richmond-based Allen, Allen, Allen & Allen, liable for Murray’s actions in the case.
Even the defense lawyer’s counsel comes in for criticism in Hogshire’s order.
The judge suggests the defense lawyer’s misguided focus on liability and the plaintiff’s character issues allowed Murray to inflame the jury with inappropriate theatrics.
The case arose from a devastating wreck in Albemarle County. Jessica Lester, 25, was fatally injured in June 2007 when a concrete truck overturned on top of the couple’s car on a two-lane mountain road near Monticello. At the time of the accident, she had been married to Isaiah for two years and was training for a nursing career.
The Charlottesville jury returned verdicts totaling $10.577 million at the end of trial in December. Isaiah Lester won awards for both the death of his wife and for his own injuries in the wreck.
The combined verdict was believed to be the largest award in a Virginia wrongful death case.
As the case moved toward trial in 2009, a skirmish erupted over Isaiah Lester’s Facebook pages. For unknown reasons, Lester sent a Facebook message to defense lawyer David M. Tafuri. Tafuri checked out Lester’s Facebook page and took note of a photo that showed Lester clutching a beer can, wearing a T-shirt proclaiming “I [heart] hot moms.”
Tafuri asked for copies of all aspects of Lester’s Facebook site, including all related photographs.
Hogshire said, “Instead of providing what was sought, Murray created a scheme to take down or deactivate Lester’s Facebook page and to respond by stating that Lester had no Facebook page as of the date the response was signed.”
As disputes continued over the Facebook evidence, Hogshire demanded copies of all communications between Lester and his lawyer’s office, including some the plaintiff claimed were privileged.
Despite that order, Murray deliberately failed to disclose an email that directed Lester to delete various pictures from the Facebook site. Murray once referred to the message as the “stink bomb.” Murray hid that email, Hogshire found, “out of fear that the Court would grant another continuance of the trial.”
Ultimately, all of the Facebook photos emerged and were used to cross-examine Lester at trial.
After the trial, Murray produced the “now notorious email” to the judge, but he falsely represented that the earlier omission was caused by the mistake of a paralegal.
Hogshire then took the rare step of ordering full discovery of the actions of Murray, his firm and Lester regarding the Facebook evidence. Hogshire declared that none of the communications on the Facebook issue was protected by privilege.
Hogshire’s Sept. 1 order reflects his review of the evidence uncovered in the post-trial autopsy of Murray’s representation. Hogshire granted motions for sanctions against both Murray and Lester and cut Lester’s award for his wife’s death to one third of the jury verdict.
Hogshire referred Murray to the VSB based on findings of three offenses: failure to promptly produce his client’s Facebook pages upon request, failure to turn over the incriminating email to the court, and blaming a law firm staffer for omitting the email.
Hogshire also referred Lester, Murray’s client, for possible perjury prosecution for denying under oath he had deleted Facebook material. Hogshire’s order directs the clerk to mail copies to VSB Ethics Counsel James M. McCauley and Charlottesville Commonwealth’s Attorney Warner D. Chapman.
McCauley said he turned the order over to disciplinary lawyers at the VSB. Disciplinary investigations at the VSB are confidential unless a disciplinary subcommittee certifies a complaint to a district committee or the VSB disciplinary board.
Chapman did not return a call for comment by press time.
Hogshire’s order offers criticism on courtroom tactics for both sides. Murray’s inflammatory actions contributed substantially to the excessive verdict, the judge found. “Murray injected passion and prejudice into the trial, shouting objections and breaking into tears when addressing the jury,” Hogshire wrote.
Hogshire also called out Murray for repeatedly invoking God and religion, identifying the plaintiff as a churchgoer and mentioning prayer four times.
Hogshire noted most of Murray’s theatrics went without objection. Defense counsel, he said, focused on denial of liability, despite the defendant driver’s manslaughter guilty plea, and on “aggressive, but obviously ineffectual, attacks upon Lester’s credibility and character.
“This defense strategy produced the extreme opposite of its desired effect, serving to create additional passion and sympathy for Lester and anger toward the Defendants,” Hogshire wrote.
One post-trial issue strongly argued by the defense gained no traction with the judge. The defendants argued the verdict was tainted because the jury foreperson had once had a business relationship with Murray’s law firm. Hogshire found no wrongdoing in the juror’s silence on the question of a “significant involvement” with the Allen firm. He denied a motion for mistrial based on alleged juror bias.
The Allen firm hired Richmond lawyer Hugh M. Fain to defend against possible sanctions in the case. While the firm acknowledged in its pleadings it may be vicariously liable for Murray’s actions, the partners “vehemently assert” the record fails to establish that the firm or its other attorneys “should be tarnished with factual findings of unethical or improper conduct.”
Malcolm P. McConnell, who took over representation of Lester when Murray stepped aside, said he had no comment on Hogshire’s findings. Tafuri also did not respond to a request for comment.
The hearing to determine the amount of sanctions and to consider the potential liability of the Allen firm is scheduled for Sept. 23.
