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Prejudice not shown from late amendment

Virginia Lawyers Weekly//August 30, 2021

Prejudice not shown from late amendment

Virginia Lawyers Weekly//August 30, 2021

Where the plaintiff’s motion to amend her personal injury complaint arising out of a Segway accident came after fact discovery concluded, it was granted because the defendants failed to show prejudice. The new allegations merely elaborated on the original ones, and the defendants were aware of them before the motion was filed.


Plaintiff filed her original complaint in the Richmond circuit court in 2019. She alleged that she sustained injuries while “participat[ing] in a group Segway tour” during a July 2018 stay at one of defendants’ resorts. Defendants removed the action to federal court in July 2019. The parties then exchanged written discovery, conducted depositions and exchanged initial expert disclosures.

Plaintiff filed the instant motion for leave to amend in June 2021. At the time, about two weeks remained before the July 2 deadline to file motions to amend pleadings and the July 6 deadline to complete fact discovery and about three months remained before the October 2021 trial date. Plaintiff seeks to amend her original complaint by increasing the damages claimed in her ad damnum clause and by supporting her factual allegations with additional information.

Ad damnum

Plaintiff seeks to amend the ad damnum clause in her complaint to increase the damages sought from $3 million to $5 million. Defendants oppose this change. Specifically, they contended at oral argument that plaintiff’s proposed increase in the ad damnum clause would be prejudicial because it would require them to involve an additional layer of insurance coverage that has not played any role in this litigation to date. They contended that involving that excess insurance carrier shortly before trial would deprive the carrier of the ability to conduct discovery.

Defendants’ argument is unpersuasive. Even if including an additional insurance carrier creates practical difficulties for their litigation team, defendants cannot claim unfair prejudice where, regardless of the amount sought in the ad damnum, the jury may award damages in any amount “justified by the evidence.”

Factual allegations

Plaintiff “seeks to refine the allegations upon which [her] claims are based in response to information that has arisen during the discovery and deposition process.” Defendants argue that her proposed amendments “present[] new grounds for liability based upon [the] manufacturer’s guidelines in a Segway user manual,” which would “substantially prejudice” defendants at this “late stage” of litigation.

Defendants do not contend that there is bad faith on the part of the plaintiff or that her amendment would be futile. Accordingly, the court considers only whether plaintiff’s proposed amendments would be prejudicial to defendants.

Defendants correctly point out that this litigation began two years ago and that trial is upcoming. Trial is set for Oct. 4-6, 2021, and fact discovery concluded on July 6, 2021. Defendants also argue that, “[h]ad Omni been apprised of this aspect of plaintiff’s case, it would have undertaken more extensive third-party discovery to gather pertinent information regarding the capabilities of the subject Segway.”

On balance, despite the late procedural posture of this case, the court found defendants’ arguments unpersuasive because plaintiff’s proposed amendments merely “elaborate” on her initial allegations and because defendants have had notice of plaintiff’s intent to focus on the Segway user manual and defendants’ alleged failure to warn about or train her regarding specific guidance found therein for approximately six months. Defendants cannot claim to be surprised or prejudiced by plaintiff’s proposed amendments where they have already had the opportunity to rebut those allegations with contradictory expert testimony.

Plaintiff’s motion for leave to file amended complaint granted.

Seiden v. Omni Hotels Management Corporation, Case No. 5:19-cv-00067, July 28, 2021. WDVA at Harrisonburg (Hoppe). VLW 021-3-361. 16 pp.

VLW 021-3-361

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