Please ensure Javascript is enabled for purposes of website accessibility
Home / Editors' Picks / Defense verdict follows flurry of motions, sanctions

Defense verdict follows flurry of motions, sanctions

In the months leading to trial, the parties litigated numerous motions that saw Judge Norman K. Moon opining on issues ranging from “Reptile Theory” tactics, expert witnesses, deposition questions and sanctions for spoliation of evidence.

While one of the plaintiffs resolved her claim, a second proceeded to an eight-day jury trial.

“The jury deliberated for a little over an hour before finding our client wasn’t negligent,” defense counsel Jeffrey Miller told Virginia Lawyers Weekly.

Below, we examine some of Moon’s opinions and how they affected this case.

The opinions are Paul, et al. v. Western Express Inc., et al. (VLW 023-3-055, VLW 023-3-149, VLW 023-3-150, VLW 023-3-172 and VLW 023-3-195).

The lawsuit

This case involved a multicar accident in August 2018 on Interstate 81 in Rockbridge County. Vehicles began stopping during sudden hazardous rain, leading to a chain-reaction collision as a driver collided with the rear of Andre G.H. Le Doux V’s vehicle, which was pushed into Judy M. Paul’s vehicle.

Le Doux and Paul remained in their stopped vehicles on the interstate. Evan Worthy then crashed into them while operating a tractor-trailer for Western Express.

Le Doux and Paul filed and consolidated their negligence claims against Worthy and Western Express in 2020.

A series of motions were litigated. One week before trial, the parties agreed to dismiss Paul’s claims; she settled her claim. Paul’s negotiation position was likely strengthened after Moon refused to order sanctions against her for spoliation of evidence.

No sanctions

The defendants then moved for sanctions against Paul, asserting that she failed to preserve her car and data from its electronic data recorder, or EDR, despite receiving a preservation letter. The parties had inspected Paul’s vehicle, but nobody downloaded the EDR. (See VLW 023-3-055.)

The defendants didn’t request the EDR again until after suit was filed in 2020. By that time, Paul’s insurer had released the vehicle from its litigation hold and sold it. Paul’s expert should have removed the EDR after the inspection, the defendants argued.

Moon wasn’t persuaded.

“The Court finds that Paul’s counsel took reasonable steps to preserve the Kia and its EDR,” he said, “but Defense counsel failed to take timely steps to gather such evidence.”

Moon noted that defense counsel “did not take any steps to set a second inspection date to download the Kia’s EDR nor did they communicate a further interest to inspect the Kia before its destruction, which occurred in April 2019.”

At most, the judge said the evidence showed that Paul’s counsel acted negligently.

“There is no evidence showing Paul’s counsel acted in bad faith or willfully in failing to preserve the Kia to justify the Court ordering the harsh sanction of an adverse inference instruction,” Moon concluded.

However, the judge found that Le Doux and Worthy each deserved that sanction after finding them culpable for spoliation of their personal electronic data. Worthy’s sanctions were covered earlier this month in “Trashed: Defendant sanctioned for spoliation of evidence” (VLW 023-3-191).

Le Doux sanctions

The defendants moved for an adverse inference instruction to the jury that Le Doux intentionally deleted text messages and emails from a cell phone because they were unfavorable to him. (See VLW 023-3-149.)

Here, Le Doux “reasonably anticipated litigation when he obtained the second cell phone on Oct. 29, 2018, because prior to that date, he had obtained counsel and received two preservation letters,” Moon noted.

Text messages and emails might have been relevant to the case, which Le Doux should reasonably have known, the judge added.

Le Doux admitted that he deleted the messages, didn’t have cloud backup and his third-party vendor couldn’t retrieve them. Moon rejected his argument that the defendants could have subpoenaed his relatives to obtain the records.

Finding that Le Doux acted intentionally, Moon ordered the jury be instructed that they could presume the lost cell phone evidence was unfavorable to him. He refused to dismiss the case.

Weather experts

Le Doux disclosed Heath Stewart as a collision analyst whose “weather data analysis” purported to depict the degree and severity of rain over Worthy at different points along the interstate. (See VLW 023-3-150.)

Stewart relied on data from Le Doux’s meteorological expert, Steven Greco. The defendants claimed Stewart’s methodology was speculative and flawed because Greco’s radar only scanned every 3-6 minutes and their expert said Stewart used an inaccurate time stamp.

Moon agreed.

“Mr. Stewart’s proposed testimony compounds weather speculation with location speculation,” the judge said.

“Since the proposed expert testimony essentially purports to offer the jury real-time, GPS-based weather data, the overlapping of Mr. Stewart’s locational data onto Mr. Greco’s weather data has ‘the potential to “be both powerful and quite misleading.”’”

Further, Moon excluded all of Greco’s testimony as there was no reliable evidence tying Worthy’s location to his weather data, thereby significantly reducing its probative value at the risk of unfair prejudice and jury confusion.

Miller, who represented the defendant, said there was plenty of weather evidence presented at trial, including dashcam video from our truck, testimony from plaintiff’s witnesses and two Good Samaritans on the scene.

“They all confirmed that nobody had windshield wipers on, there were a few rain drops, then the sky opened up, bedlam broke loose and then three accidents on I-81 in a short span,” the litigator pointed out. “It was hectic; the trooper didn’t even write anyone a ticket.”

Miller noted how Le Doux’s accident reconstructionist focused on whether Worthy was using cruise control in the rain.

“But there was some discrepancy about whether he was talking about heavy or light rain,” he said, “and our data showed that Worthy disengaged cruise control pretty quickly upon coming into the rain.”

‘Reptile theory’

The Supreme Court of Virginia has “repeatedly held that counsel may not, in closing argument, invoke the so-called ‘Golden Rule,’” also referred to as “Reptile Theory” tactics, Moon explained. (See VLW 023-3-172.)

Such tactics ask the jury to decide a case based on how they might wish to be treated, rather than according to the evidence.

The defendants argued that Le Doux’s attorneys wanted “the jury to become afraid of all tractor-trailers and project that fear onto Worthy and his behavior in this case.” They pointed to plaintiff’s deposition questions about federal safety regulations and licensing manuals.

Finding the questions didn’t support or plausibly infer that plaintiff’s counsel intended to ask the jury how they wished to be treated on the interstate or make them afraid of all tractor-trailers, Moon said the motion was premature and vague.

Miller said Moon’s ruling was perfectly reasonable, adding that their motion was “preventative, to put everyone on notice that wasn’t going to fly and there will be objections.”

“It’s standard practice for plaintiffs in these cases to try and scare the jury about dangerous trucks,” he pointed out. “You can’t say to a jury, ‘Now put yourself in the plaintiff’s shoes.’”

While Miller has seen the argument used against big-box retailers and amusement parks, he cautioned that Reptile Theory arguments “put the defense in a pickle.”

“If we object, we may actually draw more attention to it,” he said.

Deposition questions

On the day before trial, Moon overruled Le Doux’s objection that deposition questions asked by the defendants about a witness’s post-crash memorandum were inadmissible hearsay. The judge said the objections were untimely and improperly raised. (See VLW 023-3-195.)

Here, Le Doux’s hearsay objections directly related to the way defense counsel questioned the witness and the form of their questions, the judge held, thus they could have been corrected during the deposition.

“To cure these objections now,” Moon said “the court would have to strike a large portion of [the witness’s] deposition, which would significantly reduce the deposition’s usefulness and helpfulness to the jury.”

According to Miller, “the deposition objections were litigated all the way through the middle of trial.”

The litigator advised practitioners with an impending federal trial that’s the least bit complicated to add two weeks onto whatever date they planned to begin preparations.

“Also make sure that your deposition designations are taken care of well in advance of trial, otherwise it could be a trainwreck,” he said. “With the hearsay exceptions in our case, we had to edit specific parts of videos and that’s not easy without good technical support.”