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Court sees ‘gamesmanship’ by p.i. plaintiff

A p.i. plaintiff could not sit out his own trial based on medical advice, a federal appeals court said, upholding judgment for a truck driver sued for negligence after he collided with plaintiff motorcyclist.

Plaintiff Michael Scott appeared on the witness list when his case against Watsontown Trucking and its driver, William Miller III, went to trial in Richmond federal court. Near the end of trial, his lawyer told U.S. Magistrate Judge David Novak that Scott would not appear voluntarily or in response to a subpoena, which the lawyer said would be untimely under local rules.

One of Scott’s treating physicians testified that he had advised Scott not to attend the trial because protracted sitting would cause his chronic pain to “spike.”

The defendants asked for a “missing witness” jury instruction. Novak at first said no, but sua sponte reconsidered his decision later that evening. Over Scott’s objection, Novak instructed the jury that if it believed a party, without explanation, failed to call an available witness who had knowledge of necessary and material facts, it could presume that testimony “would have been unfavorable to the party who failed to call the witness.”

On July 18, the 4th U.S. Circuit Court of Appeals upheld use of the instruction in Scott v. Watsontown Trucking Co.

The court didn’t buy Scott’s claim that he suffered from amnesia and had no recall of the accident, an assertion that was “belied by even a cursory review of the record.”

It was significant, the appeals panel said, that the district court “was confronted with considerable gamesmanship throughout the course of the litigation below.” The panel’s unpublished per curiam opinion offers a primer on how to qualify for a “missing witness” instruction under Virginia law.
-Deborah Elkins

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