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					                       ~LITIOATION NEWS
                                   V5B          PUBLISHED BY THE lITIGATION SECTION OF-THE VIRGINIA STATE BAR FOR ITS MEMBERS.

      VOLCl\IE V       NLTl\IBER   4                                                                           'i\TINTER   1998-99

                                                                         499." If such a lawsuit is, successful, the plaintiff may
        Expanding the Reach                                              recover treble damages plus the costs of the suit.
                                                                             The starting point for any interpretation of the
        of Virginia's Business                                           Business Conspiracy Act must be the definition of
           Conspiracy Act                                                conspiracy itself. At common law, a conspiracy was "an
                                                                         unlawful combination of two or more persons to do
                          by Michael F. Urbanski                         that which is contrary to "law, or to do that which is
                                                                         wrongful and harmful towards another person."3 In a
                                                                         criminal case, a conspiracy is simply an agreement to
              ver the past two decades, Virginia's state and

      O       federal courts have issued a series of opinions
              that have molded the character of the
      Virginia Business Conspiracy Act.! For years, the
                                                                         commit a crime.4 The object of the conspiracy must
                                                                         be unlawful, of course; it is impossible to conspire" to
                                                                         do what the lawallows. 5
                                                                             The elements of a claim under the Business Con~
      decided cases narrowed the scope of the broadly                    spiracy Act are relatively straightforward. According
      worded statute. Recently, however, the Virginia                    to the Virginia Supr~me Court, the two elements are
      Supreme Court appears t6have reversed the field,
      expanding the reach of the Act by embracing an                                      Business ConspiracyAct - cont'd on page 3
      expansive interpretation of the Act's purpose element.
~\,   While that element had been narrowly construed in
/     the past" that is no longer the case. The most recent                       Table of Contents
      example of this trend is the Supreme Court's June
      1998 decision in Advanced Marine Enterprises, Inc. v.                Expanding the Reach of Virginia's
      PRe, Inc.,2 in which the Court, in ,a case involving                 Business Conspiracy Act ................ 1
      mixed motives, relaxed the plaintiff's burden of proof                 by Michael F. Urbanski
      under the Act by requiring only proof of legal malice.               Letter from the Chair . . . . . . . . . . ........ 2

      Judicial Interpretation of the Act .                                 Healthcare Write-offs and Incurred
                                                                           Medical Expenses: A Defense Perspective ... 7
      The statutory basis for business, conspiracy actions is                by John TCook & James Frederick Watson
      found in Sections 18.2-499 and -500 of the Virginia                  Appellate Alley .. , ................... 13
      Code, ena.cted in 1964. The first statute, qiminal in                  by Melissa Witrner Sc~ggins
      nature, provides that "La ]ny two ,or, more persons
                                                                           The Internet --.: How It Can Assist You with
      who combine; associate, agree, mutually undertake
                                                                           Your Legal Research Needs ............. 13
      or concert t<;>gether for the purpose of... willfully and              by John P. Fishwick, Jr.
      maliciously injuring another in his reputation, trade,
      business' or ,profession by any means whatever ..• shall             Deposing an Out-of-State Agent
      be 'guilty of a Class 1 misdemeanor." Section 18.2~                  of a Corporate Defendantin Virginia ..... 15
                                                                             by Laura S. Evick                    '
      500 provides a civil remedy for anyone who -believes
      he or she has been "injured" in his reputation, busi-                Recent Law Review Articles ... , ........ 17
      ness or profession by reason of a violation of § )8.2-               View from the Bench ................. 19
                                                                             by The Honorable Paul M_ Peatross, Jr.
        Michael F. Urbanski is a principal in the Roanoke firm of
                                                                           Cyber Cites. . .. . . . . ................. 21
        W(Jods, Rogers & Hazlegrove, P.L.c., where he chairs the
       firm's Commercial Litigation Practice Group. The author             Litigation Section Board of Governors .... 22
       ,acknowledges and appreciates the substantial assistance of
                                                                           Young Lawyers Committee ............. 23
        Richard D. Scott, University of Richmond School of Law
        (Qlass of 1999) in the creation of this article.


                                                                     1
LITIGATION NEWS                                                                            WINTER     1998-99

                                   Letter from the Chair


D ;f~t~:~$:;1:!~~?r~!;:~~;1
come to beheld in. such disrepute? For me, the
                                                            uug,ofidied l.et:t~T~froin' lawyers,see,kingan
                                                          , eng~gemeiit.        .       ',       ..,'
                                                                 Ido not mean to sugg.es~ that <J.ll. forms of
                                                                                                               .

                                                            advertising or soticitatiofl ate problematic or that
answers are "Yes!" and "I'm not sure, but I think I         any lawyerwhQ ,advertises is, hatming ,our profes-
have some pretty good ideas."                               sion. Ido not have a bias against plaintiff's personal
      When I graduated fromlaw schoolover 17                injury representation (it is a,part of my own prac-
years ago (time flies when you're having fun ... ),         tice). I also acknowlege the need that most of us
there were less than half as.many lawyers in Virginia       feel we have to "market" ourselves or our services.
th,m there are today. My sense at the time was that         My concern is with advertising or activities that
the general public held lawyers in high esteem and          unduly trivialize or sensationalize our services, or
that the legal profession was well respected. When          which place us on· the level' of carl1ival hucksters.
someone asked~hat I .did for a living, I was proud          Advertising of this nature by. lawyers would ,have
                                                            been unimaginable fifteen years, ago.'           '
to tell them.
      Today, things have changed drastically. I'll               Another significant cause of the public's low
sp<l.re you a lengthy hand-wringing episode over            opinion oflaWyers is, in my opinion, the way we
th~ comparison of·lawyers to .used car salesmen,            (as a profession) frequently treat our clients. For
the sha.:rp edge to the countless lawyer jokes in cir-      example, I havebecomeall1azed at the number of
                                                            times 1 have heard people complain that their
culation (I guess I've Jost my sense of humor), and
                                                            lawyer ignores them and will not return their calls.
the anecdotes about people's reactions at cocktail
                                                                 Recently, I received calls from two prospective
parties when they find o~t they're talking to a
                                                            clients in one ,day who were fed up with their
lawyer. All of lis know the story anyway. I some-
                                                            lawyers and wanted to hire new counsel. The cause
times feel I'm watching OUr profession· self-
                                                            was the same in. both instances: the lawyers had
destruct. f,.. bigger. que~tionls~'Why?"                    failed· for\veeks, orr).l:onths to' respond to the
" '., In my last: "Letter· from' the' Chait ,'~, I . men-   clients' inquiries. One client had a personal injury
tl¢nedthe issue oflawyeracivettising. I pointed out         claim and had not been able to meet with her
that it isdifficuit to regulate in a meaningful way.        lawyer in two years. The other was a retiredphysi-
QurSection continues to look into ways that we              dan who had a securities daimand whose lawyer
might have someposiiive impact on the. lawyer                had ignored repeated calls and letters seeking
advertising issue. Anm:nber of groups within the            information ·about.thestatusofhisdaim. Both
State Bar have a similar concern. There isa ~trong           clients were equally'incensed.
body of opinion that certain tYpes of advertising                T1Selieve soinethingis .wrong if we; as lawyers;
playa great role indemeaniitgourprofessi6n.                 cannot,'orwiUnotrnake thetirrie to communicate
 Some of the TV lawyers'· adsI've seen could just as         without clients. rriignoringoui clients, we create
 easily. substitute used' cars for legal services as the     theimpressioh that we are tOb itnport3.nttowaste
 "product" being sold. In our zealto,coriipete with          oui time' with them· and that all we 'care about is
 one another; we h~ve satUrated the airwaves· with           their moneY,or the money wecari make from their
 advertising pitches whi<:h convey'the sense that            claim. Our' clients resent this treatment, and they
 lawyers are the conduit for turning injuries into           tend not to be silent about the way they feel.
 cash and pain into profit.                     . .              I recognize that there are ( and I have repre-
  . Direct solicitation of injured persons and of            sented) some clients who go overboard and who
 persons' charged with various crimes (especially            abuse the access theyhave.to their attorney. In my
 traffic offenses) has become a problem in some              experience, however, these clients tend to be the
 l()calities. In some areas, it is commonplace for           exception rather than the rule, and even they can
 persons charged with' DWI to receive immerous               be dealt with politely (though perhaps firmly ... ) .
                                                                                                          '.    •
                                                                                                               "":""",



                                                         2
        \tVINTER   1998-99                                                                               LITIGATION NEWS

        Ignoring clients fuels the public's negative impres-           Business Conspiracy Act
        sion of lawyers.                                               contJd from page 1
            These are but a couple of the reasons I believe
        that the image of attorneys has declined in the eyes           "(1) a combination of two or more persons for the
        of the public. Undoubtedly, there are others.                  purpose of willfully and maliciously injuring plaintiff
        Media sensationalism of certain legal proceedings              in his business, and (2) resulting damage to plain-
        may be high on the list. For example, I understand             tiff. ';6 Courts have considered certain aspects of these
        that law school applications dJ:"opped significantly           elements as follows.
        following the O.J. Simpson criminal trial.
                                                                       ~'A   combination of two· or more persons~~
            I hope and believe that it is not too late to
        restore the image of our profession. Most of us                In Virginia, the doctrine of intra-corporate immunity
        have a great deal of our lives invested in the prac-           has had an important effect on the type a.nd number
        tice of law, and many of us have quite a few years             of entities that can be accused of forming a conspiracy
        left before it's time to "hang up our spurs." Let's            to harm a business. Both state and federal courts have
        not squander in one generation the respectability              repeatedly held that various legal entities are incapable
                                                                       of forming conspiracies in and of themselves. First, it
        that those who preceded us in this profession
                                                                       is clear that "[b]y definition, a single entity cannot
        worked hard to establish. I would welcome your
                                                                       conspire with itself."7 Because of the intra-corporate
        thoughts or comments about this issue.
                                                                       immunity doctrine, employees acting within the scope
                Jeffrey H. Gray, Chair                                 of their employment are agents of the employer and
                Board of Governors, Litigation Section                 cannot conspire. 8 A limited exception to the intra-
                                                                       corporate immunity doctrine has been recognized in
                                                                       the Fourth Circuit when the agents have an indepen-
                                                                       dent, personal stake that is separate and apart from
                                                                       their involvement as agents of their employer. 9 While
                                                                       this exception remains recognized, several decisions
                                                                       have limited it in order to assure that the exception
                                                                       does not swallow the rule.1 0
                                                                            A corporation cannot conspire with its wholly-
                                                                       owned subsidiary.!l Further, two wholly-owned sub-
                                                                       sidiariesareincapable of conspiring with each
                                                                       other.l2 However, if the corporate veil is pierced, a
                                                                       conspiracy can .then be established between members
                                                                        of.th~corporation.13Finally, the concept of illtra-
                                                                        corporate immunity has been applied to stateagert-
                                                                        cies ,and their workers. 14
                                                                       «For the purpose ofwillfully and maliciously
                                                                       injuring plaintiff'~
           LITIGATION NEWS     is edited by the Young
           Lawyers Committee ·of the Virginia State Bar                Once an initiaL showing of a conspiracy between at
           Litigation Section.                  .                      least two entities has been made, the next test is
                                                                       whether the conspiracy existed for some uillawful pur~
                                 Chair                                 pose: aconspiracy must be form:ed "to accomplish
                           Kevin W. Grierson                           some criminal or unlawful purpose, or to accomplish
                            Newsletter Editor                          some purpose, not in itself criminal or· unlawful, .by
                           R. Lee Livingston                           criminal or unlawful means."lS It is not necessary that.
                                                                       every conspirator have acted with legal malice; the
           Statements. or expressions of opinion or com-               statute "simply requires that one party, acting with
    I
            ments appearing herein are those of the editors,            legal malice, conspire with· another party to injure the
j
            authors and contributors and not necessarily those          plamtiff."l6 For many years, the purpose element was
          . of the Virginia State Bar or its Litigation Section.
                                                                                       Business Conspiracy Act - contJd on page 4

                                                                   3
LITIGATION NEWS                                                                                    \VINTER    1998-99
Business Conspiracy Act                                           Transformation of the purpose element· '
contJd from page 3                                                The element of a business conspiracy thai has seen the
                                                                  greatest transformation in recent years is the purpose
restrictively construed, and only recently has the Court          element - requiring a plairitiff to show that the
liberalized the proof required to satisfy that element.           defendants acted with a certain level of malicious
                                                                  intent. The Virginia Supreme Court has considered
"In its business"                                                 the reaches of the purpose element in a series of cases~
Courts have repeatedly held that the focus of the busi-               First, in 1986, the Court held in Greenspan v.
ness consg,iracy statutes is on injuries to business; other       OsherofJ27 that a plaintiff must show that the defen-
types of injuries are outside the scope of the Act. A             dants' primary and overriding purpose was to injure
right of action under Sections 18.2-4.99 and -500 aris-           plaintiff's business. In Greenspan, a physician,
esonly when maliciouS conduct is. directed at a plain-            Dr. Osheroff, sued an associate, Dr. Greenspan, after
tiff's business; not against one's person)7 The                   Dr. Greenspan insisted that Dr. Osheroff seek hospi-
conduct must be directly aim~d at damaging the busi-              talization for a psychiatric illness. Dr. Greenspan
ness, including injuries toone's property interest)8              assured Dr. Osheroff that he would take care of
The damages cannot be'simply "tbe result or sec-                  Dr.Osheroff's nephrology/kidney dialysis practice.
ondary effect of an action taken for mere personal                However, while Dr. Osheroffwas incapacitated,
gain." 19 Virginia federal courts have consistently resist-       Dr. Greenspan doubled his own salary, opened com-
ed attempts to apply the Act to conspiracies' directed at         peting medical practices, subverted Dr. Osheroff's
                                                                  relationship with his patients, and ultimately threat-
one's employment. 2o The existence of a business is an
issue for triaP1               ,         ..'     ,                ened Dr~ Osheroff that he would "lose everything"
                                                                  unless he sold his practice to Dr. Greenspan~ After
"Resulting in damage to the plaintiff's business"                 being sued by Dr, Osheroff for a conspiracy to harm
                                                                  Dr. Osheroff's dialysis practice, Dr. Greenspan argued
 Virginia is one of a minority of states. that does not
                                                                  that the presence of benign motives for his actions,
 require, in standard conspiracy cases, proof of an               such as concern for the interests of patients who were
 overt act in order to convict a defendant of conspira-           undergoing dialysis at the clinics, weighed against his
 cy: "In law the offense is thet;ombinationfor the pur-           malicious motives of personal gain or animosity
 pose, and no overt act is necessary to constitute it. "22        toward Dr. Osheroff, and therefore constituted a
 Under the BusinessConspira~yAct, defendants can                  defense;28 The Court disagreed,andheld that
 be' guilty of either conspiracy or attempting to con-                  when:the fact-finder is satisfied fromtheevi-
 spire,23 however, the agreement or even anattempted                    dence that the defendant's primary and over-
 agreement is not sufficient to,imp0se liability; there '               riding purpose is to injure his victim in his
 must be proof that some. act Was carried out that                      reputation, trade, business or profession,
                                                                        niotivated by hatred,spite, or ill-will, the ele-
 actually harmed plaintiff's business. "The gist of a                   m~nt of malice required by Code§ 182-499
 civil, action of conspiracy is. the damage caused .by the              is ,established; not;withs,tanding any adclition-
 actsc()mmitted. in pursuanceofthe forllledconspiracy                   almotivesentertaineci by the defendant to
 and 'not the mere combination oft%' of- more per-                 benefit~msel,f:c)tpeJ:"sons9ther.thanthevic-
                                                                   tim. 29 .                    ..
 sons to accomplish an unlaWfiil purpose or lise other
. unlawful means~;'24 This Cis inip'6rtant not only in. .'       Alm,ough thf PrlPlary a'ndoverriding purpose test
                                                           was met in Greenspan, it was seldom ,satisfied tprough-
 terms of~ta6iishing a case for conspiring todaruag~
                                                            out the ensuing decade, Indeed, the requirement that
  a business, but for purposes ·of establishing when the    a plaintiff prpve that a defendant acted with the. prima-
  cause of actiort accrues. The Virginia Supreme Court      ryand overriding purpose to injure the plaintiff served
  has stated that "[a] right of a~tion accrues when any    ,<is an effective deterrent t() litigation under·the Act. .'
  damage; however slight; issustai,ned."25     .                 The Supreme Court followed this decision in
       Finally, 'although the Virginia Supreme Court has     1992 with itS opinion in Tazewell Oil Co. v. United
  not directly addressed the issue, the Fourth Circuit     , Vi1;ginia Bank,30 where it was found that the defem
  has recently determined thatif a.conspiracy to harm a     dant banks had undertaken a concerted campaign to
  business has been alleged ina civil case, proof of the   ·eliminatethe plaintiff's ability to continue operating
  conspiracy must be shown by clear and convincing          or to file a bankruptcy reorganization plan by remov~
  evidence.26                                               ing its access.:tQcash flow; inventory or other finance
                                                                                                                    ~ "

                                                              4
    \VINTER    1998-99                                                                             LITIGATION NEWS

    ing.31 The banks pointed to benign motives, claiming          Waldrop acted intentionally, purposely, and. without
    that their actions were merely attempts to protect            lawful justification. "38 The court distinguished its
    their security interests. However, the Court found            holding in Greenspan that a plaintiff must show that
    that these factors "ring hollow in light of the extensive     the defendants' primary and overriding purpose was
    and unusual actions [the defendants] undertook. "32           to injure the plaintiff's business on the basis that the
         It is somewhat surprising that despite the "p~ma­        "primary and overriding purpose" statement "was
    ry and overriding purpose" language of Greenspan,             made in the context where the conspirator had both
    the Tazewell Oil Co. majority opinion did not cite that       legitimate and illegitimate motives for his actions."39
    case in its discussion of the defendants' conflicting         In CBS, the court found all Waldrop's motives to be
    motivations. Justice Whiting's dissenting opinion,            illegitimate; thus, a showing that the illegitimate
    however, applied the "primary and overriding pur-             motive was the primary and overriding purpose was
    pose" test from Greenspan and found the banks'                unnecessary.
    motives insufficient to prove malice under the Act. 33             Thus, in Greenspan, when the conspirators'
    The dissent found that though "the methods                    motivations were mixed, the Court required a show-
    employed· by UVB ... were indefensible and exhibited a        ing that the primary purpose for the actions was
    willful disregard of Tazewell's rights,"34 it "[could         hatred, spite or ill-will. In CBS, there were nothing
     not] agree that such a purpose constitutes a 'primary        but "bad" motivations; thus, there was no need to
    and overriding purpose' to destroy Tazewell,one               require proof of the primacy of the evilmotivation.
     motivated by 'hatred, spite, or ill-will.' ... UVB's con-         In Advanced Marine Enterprises, Inc. v. PRe,
     duct shows only that its 'primary and overriding pur- . Inc., however, the Court looked past its earlier dis-
     pose' was to effect an immediate collection of               tinction of the Greenspan primary purpose standard
    Tazewell's indebtedness,· not to                                              . in CBS, effectivCIy eliminating that
     destroy the debtor. "35 The dis- ...[T]he elimination of the primary requirement of proof. In Advanced
     sent's analysis was consistent with and overriding purpose element Marine, PRC· filed suit in equity
     the test established by Greenspan; eases. a plaintiWs burden under against Advanced Mafine Enter-
)    however, the majority's failure to the Ad. The purpose req.uirem. ent prises (AME) under the conspiracy
     cite Greenspan may have signaled                                                statute when ·a number of PRe's
     the· beginning of the erosion of has been watered down merely to marine engineering employees left
     the "primary and overriding pur- require proof of legal malice: that PRC and mov.ed to a competitor,
     pose" standard.                      the defendant aded intentionally, AME. 40 PRC had informed the
         The Supreme Court further purposefully, and without lawful employees tha~ due to the loss of
     clarified the motive inquiry in justification... ~[T]he Court... now some of its marine engineering
     1995 when it decided Commercial          limits its examination to the          contracts, they should look for
     Business Systems, Inc. v. BellSouth            conspirator$' methods.           other employment.41 The chancel-
     Services, Inc. 36 In that case, CBS,                                            lor, however, ruling in favor of
     a computer equipment repair company, sued                     PRC, focused on the fact that AMEand the PRC
     BellSouth. Services and one of its managers· (Waldrop)        engineering employees· developed a covert pla·n to
     after its contract to repair BellSouth equipment was          move toAME,42 without regard to the obvious per-
     not renewed, but instead was awarded to CBS's com-            missible motivation of self-preservation for those
     petitor, which had ties to Waldrop. Evidence revealed         faced with losing their jobs. 43
    .that the successful bidder paid bribes in the form of             AME appealed the chancellor's finding on the
     kickbacks to Waldrop; there was also clear proof that         ground that,.in light of Greenspan, the chancellor was
     Waldrop had the power to break the plaintiff's con-           required to find, when evidence of mixed motivations
     tract and steer the replacement contract to the suc-          existed, that AME and the employees acted with the
     cessful competitor. The trial court granted the               primary purpose of injuringPRC. While the Supreme
     defendants' motion for summary judgment on the                Court rejected this argument, it did not address the
     grounds that CBS was unable to show any evidence of           issue of mixed motives at all in its opinion. Rather, it
     ac~al malice on the part of Waldrop; i.e. that Waldrop        relied on CBS simply for the proposition that "Code
     "harbored personal hatred or ill-will toward CBS."37          §§ 18.2-499 and -500 do not require a plaintiff to
     The Supreme Court reversed, holding that the con-             prove that a conspirator'sprimaty and overriding pur-
     spiracy statute did not require a showing of actual           pose is toinjrtre another in his trade or business."44
     malice, but rather only "proof of legal malice, i.e. that
                                                                                 Business Conspiracy Ac~ -cont'd on page 6

                                                               5
      LITIGATION NEWS                                                                                       WINTER     1998-99
      Business ConspiracyAcf                                            Advanced Marine and treble damages
      contJd from page 5                                                 Another noteworthy aspect of the Supreme Court's
                                                                         decision in Advanced Marine was its determination
      Whereas'~CBS seemingly recognized the continuing                   that the chancellor properly awarded both punitive'
      vitality of the primary and overriding purpose require-            and treble damages. AME argued that "because any
      ment of Greenspan - albeit limited to cases where the              award of damages in equity is limited to compensating
      defendants had mixed motivations for their actions ~               an injured party to make it '\\Thole, ", the chan(:ellor
      the court in Advanced Marine made an end run                       ex~eeded his authQrity when he awarded punitive
      around this distinction.                                           damages toPRC.46 The. Court rejected this argument
           By ignoring tile distinction of the Greenspan pri-            on the basis of th~ principle that "when a court of
      mary purpose requirement employed by the Court in                  equity acquires jurisdiction of a cause for any purpose,
      CBS, the AdvancedMarine Court effectively has                      the court may retain the entire cause to accomplish
·'
:.~   blurred the line between actS undertaken with a                    complete justice between the parties~ ThUs, the chan-
·'i   benign motivati<)ll .(such as self~preservation), -which           cellor may hear legal claims and enforce legal rights by
                                                                         applying remedies available::. only at law. "47 The Court
      should not be actionable, with 'acts taken for the pur-
                                                                         determined that since AME chose not to transfer the
      pose of willfully and maliciouslY injuring another,giv-
                                                                         legal claims to the law side, it was bound by the chan-
      ingrise to treble liability. One can only assume from              cellor.'s award of legal reHef.48
      Tazewell Oil, CBS, and Advanced -Marine that the                         AME made similar arguments as to the chancel-
      Court recognized -the' burden the Grelnspan primary                lor's award of treble damages. The Court rejected
      and overriding purp6sestaridard placed on plaintiffs               these as well, holding that the language of § 18.2-
      and has    decided that the Act need not contain such. a          500 clearly contemplat~s that a,. party recovering
      rigorous standard.                               _
                                                       .    .            under tile! $tatute may' "recover three-fold the dam-
           Whereas the Greenspan decision ushered in a                   ages by' him sustained.". The Court further rejected
      d~de...of negligible litigation under thel\ct,the CBS              the argument that the language of § 18 .2-500(b),
      and Advanced Marine opinions shoulq provide the                    which dellrieates the equitable relief available for vio-
      impetus' for a marked increase ill the use .of thispoten-          litiol1s of th.estatute, does not list treble damages,
      tially far-reaching statute. At the very least,theelilni~          thusprecludirig their recovery in equity. The Court
      natIon of the prim:aryand. oyernding pUrpose' eleinent           , held that§ 18.2~500(b) merely adds injunctive relief
      eaSes' a plaintiff's. bui-deri Wider the Act.' The purpose         to the remedies available elsewhere, and is not
      requirement has. been watered down merely' to require              intended to limit the relief available in chancery.49
                                                                               Third, AME argued that an award of bothpuni-
      proof of legal malice: that the defendant acted inten~
                                                                         tive anq. treble damages was duplicative, as the same
      tionally, purposefully,' and Without lawful justiijcation.
                                                                         condrtct forined the' basis for both damage awards.
      While the COurt pteviouSlyertgaged in a rather strict              The Court held that the conduct upon which the
      ~~rutiny 6f the motivationsiJehind. dwaileged,conspir-             punitive damageawar,d waS. based ..,.,--,.breachoffiducia-
      (ltors?wnd,uct, it now limitS itsexamillation to the               ty .dutiesj ·intenti'Orral·irttefferencewith 'contractual
      conspirators' methods. Indeed, the Cqurt'sopinion in               relations~andintentionalinte~ferencewith prospective
      Advanced Marine makes no effort to examine the                     business and contractual -relations---',- was sufficiently
      motivation J~r.the alleged conspir~tors'conduct, but                distinguishable from the claims and legal injuries
      rathet,'focuses'exdusively ontne ciletl10ds they                   tinderlyingthe Act; ThuS; the ,Court held that both
      emplqyed~45 In that regard, ;I1dva,ncedMarine com-                .punitive andttebledamages were properly awarded. 50
      pletes What Tazewell Oil a:rid.CBSb~gan ...:.-. the col-              .•. Finally, the Court was able to .reconcile the treble
      lapse of thCAct's purpose element from a test                      'damage award of more thari$! million with Virginia's
      involvirigmotivation.to a test focusing eXchisively on              statlitorypunitive damages cap of $350,000. 51
      methods. As is evident from Justice Whiting's dissent-              Because the languageof§ 8.01-38.1 only limited
      ingopinion in Tazewell Oil, while the former is diffi-              "punitive" damages; and did not mention "treble"
      cult to. prove, the latter prese~ts a much less daunting            damages, the Court determined that the punitive
      proposition. It is yet tQ be seen whether this relaxed              damages cap was inapplicable. In so doing, however,
                                                                          the Court iinplicitly rejected several state and federal
      evidentiary burden will yield more litigation - and
      more treble 'damage verdicts - under the Act.                                     Business Conspiracy Act - contJd on page 8
                                                                                                                              ,
                                                                   6
         WINTER     1998-99                                                                                      LITIGATION NEWS

     ,                                                                    written off by the healthcare providers. 2 For exam-
~   .!
          Healthcare Write-offs                                           ple, in McAmis v. Wallace and General Motors Corp.,
                                                                          the U.S. District Court for the Western District of
          and Incurred Medical                                            Virginia rejected the plaintiff's collateral source argu-
                                                                          ment, holding
           Expenses: A Defense                                                  For the collateral source rule to be in effect
                                                                                under Virginia law, the injured party must be
               Perspective                                                      responsible for making payment, even if a col-
                                                                                lateral source actually pays. The present case is
                  by John T. Cook & James Frederick Watson                      not a situation where Plaintiff avoided person-
                                                                                ally paying a bill because a collateral source
                                                                                stepped in. Here, no one paid the writt~n-off
         Introduction                                                           amount and, as a result, under Virginia law,
         One of the fundamental principles of tort law is that                  Plaintiff has not incurred this fee. See. Sykes v.
         a tortfeasor is responsible to fully compensate his vic-               Brown, 156 Va. 881, 159 S.E. 202, 204
         tim for the fair and reasonable value of the victim's                  (1931); Comley v. Shepard, 41 Va. Cir.372
                                                                                (1997). While itis true that Plaintiff would
         incurred medical expenses.! This principle, however,                   have been liable for these fees if she had not
         has recently been the subject of a vigorous debate in                  qualified for Medicaid, this distant liability is
         Virginia. Specifically, the debate centers on whether a                not enough to trigger the collateral source
         plaintiff in a tort action is entitled to recover those                rule, because Plaintiff has neither paid these
         portions of medical bills which have been "written                     write-offs nor become legally obligated to pay
         off," "adjusted," or otherwise forgiven by his health-                 them. Plaintiff fails to meet the requirements
         care providers pursuant to agreements with private                     of [Virginia Farm Bureau Mut. Ins. Co. v.
         health insurers, Medicare and/or Medicaid.                             Hodges, 238 Va. 692, 385 S.E.2d 612
                                                                                (1989)]. Since no one incurred the fees at
              On one side of this debate are plaintiffs who con-
                                                                                issue, the collateral source rule does not
)        tend that they incur those portions of the medical
         bills their healthcare providers write off. The plaintiffs
                                                                                require that Plaintiff be permitted to recover
                                                                                the write-off.3
         maintain that they would have been liable for these                  In Comely v. Shepard, the Spotsylvania County
         written-off amounts had it not been for their pru-               Circuit Court, in considering "whether the defen-
         dence in obtaining health insurance. Furthermore,                dant in a personal injury case is entitled to discover
         they argue that relieving tortfeasors of responsibility          the amount of a plaintiff's medical bill that may have
         for these written-off amounts provides the tortfeasors           been forgiven or 'written off' by the health care
         With an undeserved windfall. Framing the issue as an             provider," held: .
         attack on the collateral source rule, the plaintiffs                   . [T]he forgiven or "written-off' portion of the
         argue that such an outcome abrogates the collateral                    . medical bill cannot be introduced as evidence
         source rule.                                                             of damages at trial. The coilateral sOurce nile
              On the other side of this debate are defendants                     is not implicated. According to [Sykes v.
         who contend that plaintiffs· incur only those medical                    Brown, 156Va. 881, 159 S.B. 202 (1931)]
                                                                                  an injured tort victim is entitled to recover the
         expenses that the he.althcare providers accept as full                   medical charges associated with the injuries as
         payment. The defendants deny they are attacking the                      long as they have been paid or the plaintiff is
         viability of the collateral source rule. Indeed, they do                 liable for the amount. 4
          not challenge the fact that plaintiffs are entitled to             In Earley v. Weis, the Richmond Circuit Court
          recover ~my amount paid to the healthcare· providers            considered "[w]hether the plaintiff may claim bills
          by a collateral source. Instead, they argue that the            which were waived· by the medical providers as special
          collateral source rule is not implicated since no col-          damages." In ruling for the defendant, the court held:
         lateral source has paid the written-off portions of the                 Insofar as the plaintiff is not liable for the bills .
          medical bills.                                                         in question, it is as though they never existed.
              The majority of Virginia trial courts that have                    The function of the collateral source rule is to
          considered the issue have held that plaintiffs are not                 ensure that the defendant is held responsible
          entitled to recover those portions of the medical bills                for the totality of the plaintiffs damages and
                                                                                 to protect the plaintiff from any financial harm
          John T. Cook and James Frederick Watson are attorneys                  resulting from the defendant's negligence. To
          practicing with Caskie & Frost, P.c., Lynchburg, VA.                                Healthcare Write-offs ~ contJdon page 9

                                                                      7
LITIGATION NEWS                                                                                                       WINTER        1998-99
Business Conspiracy Act                                                     606 F. Supp. 796, 797 (E.D. Va, 1984); Charles E.Brauer Co.,
                                                                            251 Va. at 36, 466 S.E.2d at 387.
cont'dfrom page 6                                                                9 See Detrick, lQ8 F.3d at 544; see also Greenville Publishing
                                                                            Co. v. Daily Refiector, Inc., 496F.2d 391, 399 (4th Cir.1974);
decisions which had expressly equated treble and puni-                      Levine v. McLeskey, 881 F. Supp. 1030, 1057 (E.D. Va. 1995),
qve damage aw'ards,52                   .                                   The Virginia Supreme Co.urt has not specifically recognized this
                                                                            exception. see Little Professor Book Co. v. Reston North Point
    Counsel should be wary of the impact that this                          Village, 41 Va. Cir. 73,79 (Fairfax Co. 1996).            .
decision is likely to have on' suitS filed on the equity                        Hi See General Nutrition Corp, v; United States Fire Ins. Co.,
side, as Advanced Marine has further blurred an                             No. 3:97cv490, 1998 U.S. Dist.LEXlS 4899, at *9 (E.D, Va.
already murky line between law' and equity. Whether                         Jan. 12, 1998); see also Oksanenv. Page Memorial Hospital, 945
or not a defendant would fare better before a jury on                       F.ld 696, 705 (4th Cir. 1991); Selman, 697 F. Supp. at 239
                                                                            (explaining that the exception should not be interpreted so broad-
the law side than before a chancellor is certainly debat-                   ly as to. permit the "independent personal stake" to be inerely.a,n
able, but at least as to the potential award of damages,                    int~rest in the health and profitability of the corporation),      .
the determination to transfer has become .a more                                11 see Saliba, 865 F. Supp. at 313. The same holds true for
important strategic .decision than ever before. Those                       partnerships; general partners within a partnership are .unable to
with cases on either side of the court also should be                       conspire within the scope of their activities for the partnership. Id.
                                                                                12 See Advanced Health-Care Servo V. Radford Com. Hosp.,
aware that the punitive damage cap no longer applies                        910 F2d139, 146 (4th Cir. 1990) (holding that two subsidiaries
to treble damage awards, perl1aps providing'the princi-                     wholly owned by same parent corporation are legally incapable of
pal reason why litigation under the Act should increase                     conspiring under Sherman Act); but see In re Ray Dobbins Lincoln-
in years to come.                                                           Mercury, 604 F. Supp. 203, 205 (W.D.Va. 1984) (holding intra-
                                                                            enterprise conspiracy doctrine. did not preclude a finding of
                                                                            conspiracy between two subsidiaries of the same parent corpora-
                                                                            tion in violation of § 18.2-500), affd without of!. 813 F.2d 402
                                                                            (4th Cii'. 1985).
                                                                                13See Nedrich V. Jones, 245 Va. 465,473-74,429 S.E.2d
                                                                            201,205-06.
      iVa. Code Ann. §§ 18.2-499, -500 (RepL Vol. 1996).                        14See Becker V. Russek, 518 F. Supp. 1040, 1045 (w.n. Va.
      2_ Va. _._., 501 S.E.2d 148 (1998).                                    1981),affd,679F.2d 87,6 (4th Cir. 1982) (investigative/admin-
      3Werth v. Fire Companies' Adjust. Bureau; 160 Va. 845,                istrative arms of State Board of·Medicine); Fowler V. D~pt. of
854,171 S.E. 255, 258 (1933).                                               Educ., 472 F. .supp. 121 (E.D.Va.1978) (officials of Department
      4See Wrightv. Commonwealth, 224 Va. 502, 505, 297                     of Education); but see.Monkv. Dept. of Trans., 34 Va~ Cir. 374,
S.E.2d 711,713 (1982).                                                      376-77 (Rllssell Cq. 1994) (Virginia Department of
    . sSee .:BaxterResearch Meci" Jnc. v. KOLBio-Medical                    Transportation and its employees are not "persons" under the
Instruments~ Inc., No. 97~1111~A,1998 U.S. Dist:. LEXIS 4056,               statute):             .
at *19"21 (E.D. Va. March 2, 1998); Leonard v. J.e. Pro Wear,                   15Hecliier Chevrolet' V. General Motors Corp., 230 Va. 396,
Inc., 64 F,3d 657, 1995 WL 508894, **6 (unpublished disposi-                402,337 S.E.2d 744,748 (1985); see also Potomac Valve &
tion) (4th. Cir.1995); Meadow. Ltd. Partnership v. Heritage Say.            Fitting, Inc. v.Crawford Fitting Co., 829 F.2d 1280, 1284 (4th
& Loan Assoc., 639 F. Supp. 643,653 (E.D.Va. 1986); Hechler                  Cir. 1987); Virginia Vermiculite V. W.R. Grace & Co., 965 F.
Chevrolet v; General Motors Gorp., 230 Va. 396, 402, 337                    Supp. 802, 829 (w.n. Va. 1997).                        . '
S.E,24744, 748 (1985)(citingWerth Y~FireAdjust. Bureau, 160                     16 MlllticChannel TY Cable Co. y. Charlottesville Qllality
V~" at. 855; 'l71: S,E,at 459. (19,~3));'(JUt sti~~ton Pressure Seal         Cable Opei'ating"Co"t08'F .3Cf    szi;   527' (4th Cir. 1997);'
v.Northero VitgiriiaWaterproofing;l? Va,qr.545~ 546 (Fairfax                     17'SteJletei"sOn'V~CdQley,;142 F~3d 181, 187"88 (4th Cir:
Co; 1988) (phrase '"by any mearinvhai:ever"dirrtinates reqUire-              1998);. Busehi v. Kirven; 775 E2d: 1240, 1259 (4th Cir. 1985);
ment that'a crime be colllIfiitted).     .    ".          .                 Wardv .. C<?nnor, 19.5F. Supp. 434, 439{E.D.Va.1980}, m~d on
      6SeeAllen R.e3.lty Corp.v. Holbert, 227 Va. 44,1; 449, 318             other:grounds, 65? F.2d45 (4th Cir. 1981); .M,oore v. Allied
S.E.2d 592, 596 (1984); Ifccord,Siliba v. Exxon Gorp.; 865 F.                Cheni:Corp" 480'F. Supp. 364,375 (KD.Va. 1979)..'                   '.
Supp,' 306;313 (W.n. Va, 1994);'affd, 52 F .3d322 (4thCir.                   . 18Ste PictllreLake Campground, Inc. v. Holiday Inns, inc.,
1995 KMeadow. Ltd.Partp.t;rship. v.Iieritage ·Say.• & Loan Ass'n,            497F.Supp. 858, 864(ED~ Va. 1980).                              .
639.F. Stipp. 643;652 (E.O.Vad986)... .... . , ,          .                      19 Nationwide Mut. Fire Ins. CO. V. Jones, 577 F. Supp.968,
   . 7Foxv. Deese, .234Va,4J,.2, 428, '362,S:E.2d 699, 708                   970 (1984); seealwPetra.lnt'l Banking v, Fir~t American. Bank;
(1987); see also Sunsport, Inc. v. Barclay L¢isureLt4., 984 F.               758 F. Supp.U20,1l42(E.D. Va. 1991),affd sub nom. Petra
Supp. 418,424 (E.D. Va. 1997); Selmanv. American Sports                      Int'l Banking Corp. V. Dameron Int'l, Inc., 953 E2d 1383 (4th
Underwriters, Inc., '697F. Stipp. 225,238 (W.D. Va. 1988);                   Cir; 1992) (stating there is no injury if harm is the secondary or
Charles E. Brauer Co. v. Nationsbank,251 Va: 28, 36, 466                     consequential result of parties' attempt to protect themselves).
S.E2d 382, 387 (199(i).                         .                                20se e Clegg V. Powers, No. 97"0006-H, 1997 U.S, Dist.
      8 See Fox, 234 Va. at 428, 362 oS.E.2d at 708; see also Detrick        LEXIS 17189, at *23 (W.D. Va. August 8, 1997); Jordanv.
v. Panalpina, Inc.; 108 F.3d 529, 544 (4th Cir. 1997), cert.                 Hudson, 690 F. Supp. 502, 507 (E.D. Va. 1988), affd, 879 F.2d
denied, 118 S. Ct. 52 (1997); Marmott v~ Maryland Lumber                     98 (4th Cir. 1989); Campbell V. Board of Supervisors ofCharlo~e
Co.,807 F.2d U80, 1184 (4th Cir.1986); Saliba, 865 F. Supp.
at 313; Selman, 697 F. Supp. at 238; Reasor Y. City of Norfolk,                               Business Conspiracy Act -coniYd on page :z 0

                                                                        8
        WINTER      1998-99                                                                                    LITIGATION NEWS

        Health care Write-offs                                              Compensatory Damages and the
        contJd from page 7                                                  Collateral Source Rule
                                                                            In providing that benefits received by plaintiffs from
                hold the defendant responsible for fees that
                were completely forgiven by the medical                     sources wholly independent of, and collateral to, the
                providers is akin to making him liable for the              wrongdoers will not diininishthe damages otherwise
                most expensive medical care available, rather               recoverable from the wrongdoers, the collateral
                than the cost of the specific treatment provid-             source nile. serves to strike a balance between two
                ed to the plaintiff he injured. The court is not            compeiingobjectives of compensatory damages.!o
                willing to expand the collateral source rule so             The primary objective of compensatory damages is
                broadly.5                                                   to make the plaintiffs whole, at least to the extent
             While a majority of the Virginia trial. courts that            that their injuries can be quantified in terms of
        have considered the issue' have come to substantially               money. In order to achieve that objective, plaintiffs
        the same decision as McAmis, Comely, and Early,6                    should be awarded that amount which will reasonably
        some courts h~ve held otherwise? For example, in                    compensate them for their actual pecuniary losses sus-
                                                                            tained as a result of the defendants' negligence.!l
        Hill V., Tuttle, the Roanoke Circuit COlit. held that
                                                                            CompeJ;lsatory damages, however, are not intended
        "[t]he written-off, forgiven or remitted portions of
                                                                            to provide plaintiffs with a windfall. In other words;
        the Plaintiff's medical bills are benefits purchased by             plaintiffs are not entitled to an award which puts
        the Plaintiff, the same, as are actual cash payments                them in a position better" than they would have been
        received from the insurance carrier," and that the                  in had it not been for the .defendants' negligence.
        collateral source rule "prohibits any such be~efit                  Thus, plaintiffs' recoveries are limited to "fair coin-
        being given to the tortfeasor."8                                    pensation and indemnity for the injury which [they]
              In ,Brougher v. Wintergreen Resorts, Inc., et al.,            suffered."12                                       .
        the NelsoriCounty Circuit Court, in denying the                          A secondary objective of compensatory damages
        defendant's motion in limine to exclude evidence the                is to ensure that wrongdoers, are held fully responsi-
        portions of the plaintiff's medical bills which were                ble for their wrongdoing.l 3 In order to achieve this
        written off; held:                                                  objective, wrongdoers must be compelled to com-
                The plaintiff incurred medical, expenses while              pensate their ,victims for the fair and reasonable value
                being treated by his healthcare providers"                  of their incurred medieal expenses. However, this
                Those expenses were submitted to his private                objective would bl! defeated, and wrongdoers would
                health insurance carrier and to Medicare. By                enjoy' a windfall, if payments made to healthcare
                virtue of contracts or negotiations with either             providers by collate'ral sources on behalf of victims
                the private health insurance carrier or                     relieved wrongdoers of responsibility.
                Medicare, .portions of the· bills Were forgiven                   This is where the collateral source rule comes
                Or written' off., This is no less .:icollateral., '         into plaY.'Y.hen faced with the choice of providing
                soUrce than the actual payment. ofthebill. 9        .       either the 'victims or the tortfeasors with a windfall,
              In light of these conflicting opinions,' this article         the coHateral source ~ule expresses a public policy
        examines the issue of incurred medical expenses from                judgement· in favor of the victims. In other words,
        adeferise perspective, first exam.ining the roles of both            the coutts havededded that ifthere must be a wind-
        compensatory damages and the collateral source rule                 fall, it should be enjoyed by the victims rather thart
        ~rricXiern tort law. Next, it examines the use of the               the tortfeasors.l4          ,        '.         .     .
        wor4 "incurred" under Virginia law, concluding that                     . SOIile plaintiffs argue that,pursuant to the collat-
        piaintiffs incur only those medical expenses which                   eral source nile, they are' entitled to recover those
        their health care providers, accept as full payment for              portions of medical bills which have been "written
        services rendered. Finally, this article concludes that              off," "adjusted," or otherwise forgiven by their
        neither the collateral source rule nor general, publiC               healthcare providers. However, that is simply not the
        policy considerations support the plaintiffs' daims that             case. The public policy objectIves of compensatory
,                                                                            damages apd the collateral source rule are not violat-
/
    )
        they are entitled to recover those portIons of medical
                                                                             ed if plaintiffs are prohibited from recovering those
         bills which have been "written off," "adjusted," or
        otherwise forgiven by their healthcare providers.                                    }Iealthcare Write-offs -:- contJd o~ page 11

                                                                        9
 LITIGATION NEWS                                                                                                              WINTER        1998-99
Business Conspiracy Act                                                               27232 Va. 388, 351 S.E.2d 28 (1986).
                                                                                      28 See id. at 398,351 S.E.2d at35 (1986).
cont)dfrom page 8
                                                                                      29 Id. at 398-99, 351 S.E.2d at 35-36; see also Multi-Channel
                                                                                  TV Cable Co. v. Charlottesville Quality Cable Operating Co.,
 County, 553 E Supp. 644,645 (E.D. Va. 1982); but see Holden                      108 F.3d at 526-27. In Multi-Channel TV Cable Co., the Fourth
v. Crippen, 32 Va. Cir. 67, 68-69 (Fairfax Co. 1993) (law,medi-                   Circuit, relying on Greenspan, rejected an argument by the defen-
 cine are professions, not employment, and thus injuries thereto are              dant that the Act "requires proof not only that [defendant] specif-
a<;tionable under the statute); Johnson v"Plaisance, 25 Va. Cir.                  ically intended to directly harm [plaintiff] in its trade and
 264 (City of Charlottesvme 1991) (noting Virginia Supreme                        business, but also that [defendant] did so Without any intent to
 Court has not limited statutes as narrowly as federil.! courts).                 benefit itself." Id. at 526.
      21 See Luckett v. Jennirigs, 246 Va. 303, 308,435 S.E.2d 400,                   30243 Va. 94, 413 S.E.2ei 611 (1992).
402 (1993) (demurrer improperly granted when factual questions                        31 Id. at 109, 413 S.E.2d at 619.
 exist to determine if the plaintiff had a distinct business; separate                32Id.
 from the corporation he formed with the defendants, and whether
 there was an injury' to that business distinguishable' from the injury                  33 See id. an 16-118,413 S.E.2d at 623-24,
to   the corporation formed With the defendants y.                                       34Id. at 117;413 S.£.2d at 624. ,
     '22Crump v. Commonwealth, 84 Va. 927, 941-42, 6S.E. 620,                            35 Id. at 118, 413 S.E~2d at 624.
 628 (1888) (emphasis in original); see also Stevens v.                                  36249Va. 39, 453S.E.2d 261 (1995).
 Common~ealth, 14 Va. App. 238, 241, 415 S.E.2d 881, 883 (Va.                            37 Id. at 46,453 s.E.2d at 266.
 Ct.App. 1992) ("A crime is 'committed when the agreement to                             38Id.at47,,453 S.E.2dat267.
 commit the ,offense is complete' and no overt act infurth,erance of                     39Id.; see also Leonard x. J.C. Pro Wear, Inc., 64,F.3d 657,
 the underlying crimds necessary."); Ramsey v. Commonwealth, 2                      1995 WL 508894, **5 (4th Cir.1995) (unpublished disposition)
Va. App. 265,270,343 S.E.2d 465, 469 (Va. Ct. App. 1986) ("A                        (constrUing CBS to stand for the proposition that "it is not neces-
 conspiracy isco!11mitted"when the agreement to commit the                          sary for a plaintiff to show that defendant's 'primary and overrid-
 offense is complete regardless whether ,any overt act in furtherance               ing purpose was to injure [plaintiffs] trade or business,'
 of commission, of the "substantive;: 'offense, is initiated. "); VIRGINIA          (emphasis omitted) in a case where "all of [defendant's] motives
 MODEL JURY INSTRUCTIONS, Criminal, Conspiracy (Scope Note)                         were illegitimate'").
 (199,3 ed., Supp. 1995).                                                                40 See Advanced Marine Enter., Inc. v. PRC, Inc., _ Va.
      23 See Multi-Channel TV Cable Co. v., Charlottesville Quality                 _'_',_'_,501 S.E.2d 148, 152 (1998).
 Cable Operating Co., 108 3d 522, 527 (4th Cir.1997) (reject-                            41 See id, at _,_,501 S.E,.2d at 151.
 ing defendant's, argument that a, party cannot be llable for                            42 See id. at _,501 S.E.2d at 153, 155.
 attempting to conspire, holding that "the plain language of
                                                                                         43 See id. at _,_,501 S.E.2d at 151, 153, 155.
 § 18.2~499(B) conteinplates that a party Can be liable for
 attempting to conspire"); Jee also Va. Code Ann. § 18.2- 499(B)                         44Id. at _,501 S.E2d at 154.
 (Michie 1995) ("Any person who atteinpts to procure the partic-                         45 Ii. at _,501 S.E.2d at 155.
 ipation ... of any onebr more persons to enter into a [conspira-                        46Id. at _ ' ,-501 S.E.2d at 157. AME argued that to find
 cYl... shall be guilty ofaviolation of this section.... ").                        otherWise would violate the English common law rule that equity
      24CaterCorp v. tat~ringConcepts, 246 Va. 22,28,431                            does not punish, which became the common Jaw of Virginia by
 S.E.2d277; 281"82(1993).                                                           virtue of Va. Code Ann. § 1-10.
                                                                                         47 Id:; see also Eastern Industrial Services, -Inc. v. Lee, 43 Va.
   " 25Eshbaugh v. Amoco Oil Co., 234 Va. 74,77,360 S.E.2d
350, 351 (1987( Federal courts have held that because the                           Cir. 252,255 (Amherst Co. 1997) ("once equity has taken juris-
 statutes relate to theplaintifPs business, aprop<:rty ini:erest, the               diction in these matters, it will decide all of the issues involved
 fiVe~yearstatUte of limitations applieS. See Fedei:ai:ed Graphics Co.              Within thep;u-ameters ofthis relief which is sought").
 y.; Napotnik, 424 F., SuPP. 291,293':94 (~.D.Va. 1976); see also                       '48 Seeid. ,(The "bill of c()mpl~ntsought both equitable and
 M.armottv. Maryland Lumber Co., 8Q7 F.2dl180,1185 (4th                             legalremedies.,A¥EcQl1:l<i h;lvemo",ed totr3.nsferits legal claims
 Gir. '1986) (sratil1gthat district court wrongly applied a Qne;year                to the lawside   of     the cOiIrtul1derCode § 8:01-270, where it
 limitationsperibd to § 18.2~499 andcitirig, Federated Graphics for                                                                            to
                                                                                    wQuldhave'beenentitied to a:jurytcial;'but Chose riot proceed
 five"year period). The Supreme Court ofVtrginia has noi: express-                  in ili,is'-IIlanner. Thtls; i\ME cannotnow,complaill watthechan-
 lYfl:~dressed this questibn,but has apJ?liedthe five-year limitation             , ceUor)mproperly.awarded legal, relief to PRC.") The court did
:peIjb,dwhen Jhe trial court and parties agreedthatperiod was                       not attempt to reconcile' itS de<:ision in Staiuirdsville' Volunteer
 {iroper. Ske Eshbaugh at 16-7}, 360S;E.2d at\3S1; bilt see Mickey                  Fire, CQ.v~ Berry, 229 Va. 578, 331, S;E.2d 466 (1985), which
 v. Sears; R.oebuck & Go., 16 Va: Cir._478" 479 (City of                     •.     held that § ~Jn-270 transfers only apply when: a plaintiff has
 A1ex~dria' 1979) (citing Federated, Graphics; but holding that              "      erroneously brought his case on the Wrong side of the court.
 aIl~gation qf malicious-prosecution involves wrongful conduct                         . 49 See id: at _",501 S.E.id at 158.
 directed at a person, wlll1e statUte addresses only conduct directed                           at _,
                                                                                         50 See id.          501S.E.2dat 159.'
 at property; thus, conspiracy count was governed by one~year lim-                       51 § 8.01"38.1 ("In noeveht shall the total amount awarded
 itations period).                                                                  for pu~tive damag~ exceed $350,000.")
      26See Multi-Channd TV Cable Co. v. Charlottesville Quality             "           52 See Porter V. Wilson, 244 Va. 366, ~72, 421 S.E.2d440,
 Cable Operating Co., 108F.3d 522, 526 (4th Crr. 1997) (citing                      443 (1992 )(~treble damages ... are in the nature of a penalty");
 Tazewell Oil Co., Inc.v. United Virginia Bank, 243 Va. 94, 108-                    see also Multi-Channel TV Cable Co. v. Cha:rlottesville Qu'ality
 09, 413 S.E.2d 611, 619 (1992». In Tazewell Oil, the circuit                       Cable Operating Co., 108 E3d 522,.528 ("the trebling of dam-
 court instruCted the jury that Tazewell must prove a violation of           "      ages is itself punitive in nature"), Hometowne Builders, Inc. v.
 the Act by clear and convinCing evidence, and the Supreme Court             ,      Atlantic Nat'l Bank, 477 F. Supp. 717,' 720 (E.D. Va. i979) ("a
 affirmed vvithout commenting on the charge. '                                      punitive element is inherent in the trebling of damages").

                                                                             10
        WINTER     1998-99                                                                                    LITIGATION NEWS

)       Healthcare Write-offs                                             Court's and the General Assembly's recent defini-
        cont'd from page 9                                                tions of the word "incurred."
                                                                              In 1997, the General Assembly defined
        medical expenses that the healthcare provider writes              "incurred" in Code § 38.2-2201(A)(3) - which
        off.                                                              addresses medical payments in liability insurance
              First, plaintiffs are fully compensated for the fair        policies - as follows:
        and reasonable amounts of their incurred medical                        An expense ....shall be deemed to have been
                                                                                incurred:
        expenses. Virginia. law provides that in order to claim
                                                                                a. If the insured· is directly responsible for
                      as
        medical bills expenses incurred as a result of defen-                      payment ofthe expense;
        dants' negligence, plaintiffs must actually be liable
                                                                                b. If the expense is paid by (i) a health care
        for that amount,1S Some plaintiffs argue that they
                                                                                  ,insurer pursuant to a negotiated cOntract
        incur these written~offamounts at the time themed-                         with the health care provider or· (ii)
        i.cal services are rendered, and that the fact they Were                   Medicaid or Medicare, where the actual
        subsequently written off is not relevant.                                  payment with reference to the medical bill
              Despite the fact that. any given moment of time                      rendered by the provider is less than or equal
        prior to tria.! the plaintiffs may have been theoretically                 to the provider'S usual and customary fee, in
        liable. for the amounts that were later written off, the                   the amount of the actual payment; howev-
        plain fact of the matter is that the determinations as                     er, if the insured is required to make a
        to actual liability are made at the time of trial. At the                  payment in addition to the actual payment
                                                                                   by the health care insurer or Medicaid or
        time of trial, it is clear that neither the plaintiffs nor                 Medicare, the amount shall be increased
        any collateral sources have paid these written-off                         by the payment made by the insured;
        amounts. It is. equally dear that neither the plaintiffs
                                                                                c. If no medical bill is rendered or specific
        nor any collateral sources will ever be obligated to                       charge made by a health care provider to .
        pay these written-off amounts. Because neither the                         the insured, an insurer, or any other per-
)       plaintiffs nor sources collateral to the plaintiffs have                   son, in the amount of the usual and cus-
        paid the written -off amounts, nor will they ever be                       tomary fee charged in that community for
        obligated· to. payoff these amounts, the plaintiffs can 7                  the service rende(ed,16 .
        not reasollably be said to be. liable for them.                       Under this statute, someone -'--either the
         . Additionally, prohibiting plaintiffs' from recover-            insured,:the insu~ed's health care insurer, Medicaid,
        irig those. medical expenses that the healthcare                  or Medicare ~. must have made an "actual payment"
        providers write off does not allow defendants to                  for an expense' to have been' incurr.ed.. In the case of
        enjoy a windfall. It certainly does not absolve defen-            written-off medical expenses, no one - not the
        dants from their responsibility to compensate plain-              insured, not his health i~lsurance carrier, not
        tiffs. Defendant are held fully responsible for their             Medicaid, not Medicare -has. made an "actual pay-
        wrongdoing in thin they ate m~de to pay plaintiffs                ment." Therefore, under the.General Assembly's def-
        fuJl; fair; arid reasonable cdinpensation for the plain-          initionof the term,aplaiI1?ffhas not."incurred"
        tiffs' incurred medical expemes;that is, the amount               those portions of the mttdical bills.
        accepted by the healthcareproViders' as .full payment                 The GeneralAssembly's definition of the term
        for their services. Because thehealthcare providers               "incurred" Was' recently adopted by the Virginia
        routinely accept these amounts as full payment for                Supreme Court. In April of this year, the Supreme
        their services, those amounts,. by·definition, consti-            Court handedddwn a.n opinion, State Farm Mut.
         tute a fair market 'value for those services.                    4uto Ins. Co. v; Bowers, concerning the amount of
                                                                          reasonable inedical' expenses incurred by an insured
        ,The Ordinary Meaning of the                                      under a' medical payments provision of an automo-
        Word "Incurred"                                                   bile insurance poliCy:I7. In Bowers, the plaintiff SUS"
                                                                          tained injuries in an automobile accident. Under the
        Some plaintiffs argue that they incur those portions
                                                                          medical payments provision of the plaintiff's auto~
        of their medical bills which are "written off,"
                                                                          mobile insurance policy, the insurer agreed to pay
    \   "adjusted," or, otherwise' forgiven by the healthcare
    )                                                                     "on behalf of each injured person, medical expense
        providers at the time the medical services are ren~
        dered. However, such a definition of the word
                                                                          benefits as a  result of bodHy injury caused byacci-
        "incurred" is. inconsistent with both the Supreme                                 . HealthcareWrite-ojfs ~ cont'd on page 12

                                                                     11
LITIGATION NEWS                                                                                              WINTER      1998-99
Healthcare Write-offs                                                Since Bowers holds that one of the Illen did not incur
cont'd from page 11                                                  the written-off portion of the bill,common sense
                                                                     dictates that the other man could not have incurred
dent." The policy defined "medical expenses" as "all                 the same portion of his bill.
reasonable and necessary expenses for medical. .. ser-                   While it is true that Bowers dealt with the medical
vices .. .incurred within three ye:arsafter the date of              payments provision of an autorno~ile insurancepoli-
the accident." Because of a dispute between Bowers                   cy, the court sought to give the word "incurred" its
and her automobile insurer regarding amoUnts writ-                   "ordinary meaning." The Court concluded that with
ten off by the healthcare providers pursuant to an                   regard to healthcare expenses, the ordinary' meaning
agreement with a private health insurer, the Supreme                 of "incurred" included only those amounts the
Court was required to construe the term "incurred"                   healthcare providers accepted as full payment for
as used in the definition of mt!dicalexpens'e. The                   their services because the plaintiff would never be
insurer argued that the "incurred" expenses were                     liable for any amount greater than .that.
those amounts which the healthcare providers'                             In order to di~regard the Bowers definition of
accepted as full payment for their services. The                     "incurred," plaintiffs must argue (1) that the word
insured, however,argued that she "iricurred" the full                "incurred" has more than one ordinary meaning -
amo-qnt of the bills.                           '                    one for contract law and one for tort law, or (2) that
    In fhIding fot the automobile insurer, the                       the word "incurred," as employed in tort law,should
Supreme Court held:'                                                 be given an extraordinary or unusual meaning.
        The evidence in the instant case was that [the
        insured] would never be liable for any amount                Conclusion
        greater than that which the various health-                Under Virginia law, the ordinary meaning of the
        car,e providers accepted as full payment for
        their services based on the Blue Cross fee                 word "incurred" includes only those a:mounts the
        schedule. Stated differently, the health-care              healthcare providers accept as full payment for their
        providers' agreements with Blue Cross pre'c                services. Under that ordinary meaning, plaintiffs
        vented them from collecting more than the                  should not be entided to recover those. portions of
        scheduled fee and any required co-p<lyment.                medical bills which have been "written off," "adjust-
       Therefore,weconclude that the medical expens~               ed," or otherwise forgiven by healthcare providers.
      ,es [theinsuredJ ((incurred» were the amounts                    Some plaintiffs argue that giving the word
       tha.! the: health-care providers accepted as full           "incurred" its ordinary meaning will result in the
       payment for their services rendered to him. [The '
         insured] has not paid nor is he "legallyoblig-            abrogation of the collateral source rule. Such an
         ated to pay" the amounts written off by the               argument, however, is without merit. Plaintiffs will
         providers ... ~Todecideotherwise would be to              continue to be fully compensated for the fair and rea-
         grant [the insured la windfall 'because he                son:able. amounts of their incurred medical, expenses,
       , would be receiving an amount greaierthan                  an~ qefendallts win continue' to be held fully respon-
      "thatwhich he would ever bel(!gailyobJigated                 sibte, for:~ their wrongqoiqg jn; ithCitthey, will m:ide to
   '.' . to pay.            • '. ' . '         '   " "      ,    , pay,plClintiffs full, fair, mel re;<l$!;>nab~e <:()mpensation
     Sortie plajJitiffs,ofcCH-l-fse, ,cont.end, that the           for the, plaintiffs~ inqlrr~# medical expenses,
B(}wers.Court's definition of "incurred" is not'rele-
vam ,', ~q th~defiNtio~of"illcurred'~ ,in, tort liability
ql$:~s: inoth~,r, worqs, those plaintiffs argue that
'Y:he,ther or, notthe,y '~illcll,('.aJiledicalexpense
~ep,el1ds, not on the n~p:i,rei of their, relationship, with
                                                                          122 Am. Jur. 2d Damages§ 197.
tli~>healthcareprovider~; rather, it depends solely on
                                                                          2See, e.g., McAmis v.Wa1laceal1d~ Gerieral Motors Cotp;,
the nature of the litigation.in which they are                       980 F. Supp. 181 (W.D. Va. 1997); Comley v., Shepard, 41 Va.
in'volved.Under the plaintiffs' argument, two                        Cir. 372 (Spotsylvania Co. Cir. Ct. 1997); Earley v. Weis, 43' Va.
pati~nts with identical health insurance could receive               Gir. 99 (Richmond Cir. Ct. 1997); Unger v; Whitehead, No.
the Same treatment from the same healthcare                          CL95001390 (Chesterfield Co. Cir. Ct 1996).
provlder 'for the same ailment on the same day, but                       3McAmis, 980 F. S!lPp. 181. "
                                                                          4 Comley, 41 Va. Ci~. 372.
only one ' patient could ,dairn 'that he incurred the
                                                                          5 Earley, 43 Va. Cir. 99.
wntten·offportions of his medical bill. Such all out-
come defies common sense and fundamental fairness.                                      Healthcare WriteMoffs ~ cont)don page 20
                                                                                                                                 ,
                                                                12
    VVINTER    1998-99                                                                                  LITIGATION NEViS


                Appellate Alley                                      The Internet - How
       by Melissa Warner Scoggins                                   It Can Assist You with
                                                                     Your Legal Research
    T.                     .
           he APpellate. p .r;a.ctice Subcommittee w.ashon-
            ored to have the Honorable Leroy Roundtree
            Hassell of the Virginia Supreme Court as its
    speaker at the meeting held at the Berkeley Hotel in
                                                                            Needs
                                                                                      by John P. Fishwick, Jr.
    Richmond on December 2, 1998. Justice Hassell
    shared highlights of some of the key cases that the
                                                                    .     he Internet i.S a fast and cost-effectiv.e tool to
    Court has decided' during his tenure on the Court~
    He also advised those lawyers present of his views on
    advocacy before the Court, giving some real insight
    into effective oral argument and brief writing.
                                                                   T  .
                                                                          assist you with your legal research. needs. The
                                                                           Internet links together computers around the
                                                                   world. Law libraries with massive ,loose-leaf services
                                                                   are a remnant of the past, as many important current
        In October the subcommittee saw the fruits of              legal resources are available to you on the Internet.
    much labor realized with the publication of the 1998           For a low cost, you can have easy access to many of
    edition of the Appellate Advocacy handbook pub-                these resources. This article will examine how the
    lished by the Virginia State Bar. I thank Frank                Internet can assist you with your legal research needs.
    Friedman for his assistance in the revisions and final
    proofreading. This was a fourth and much-needed                Getting Started
    revision; the handbook was last revised in 1994 and            Think of the Internet as a way to visit the law library
    thus did not incorporate the many significant rule             without leaving your desk. 'Once connected to the
    changes in 1996 and 1997. The handbook is avail-               Internet, you are only a few seconds away from many
    able from the publications office of the Virginia State        law libraries. ,Furthermore, you can print or download
    Bar and is a useful, concise guide to practice in both         the information you need for reading then or at a
    the Virginia Supreme Court and the Court of                    later time. The Internet allows you to set your own
    Appeals of Virginia. But, remember - the guide is              research schedule.
    no substitute' for reading the rules themselves! Re,ad              To get started you need a computer, a modem, a
    the~ every time you handle an appeal.                          telephone line,and an Internet access provider.
        For those of you who are Internet users, there is          Internet providers include, the commercial providers
    an excellent web site available for our state appellate        (e.g,AInerica Online, Coinpuserve) and your local
    courts. Visit http://www.courts.state.va.us to find            Internet providers (e.g. Infinet), For approximately
    the most recent decisions of both the Virginia                 twenty dollars per month you, can have unlimited
    Supreme Court' and the Court of Appeals. You can               access to the Internet. Many providers will provide
    usually download opinions within a day of their                free 'demonstrator software. You should, take advan"
    release. You can also learn the most rc<;:cntrule              tag~9fthisto get comforta~le with the software.       .,
    chahge~ by choosihg"AInendments to :the Rules of               •. YbU can identify the site you are visiting. by the
    COUft." For example" the site now shows the                    last three letters in its location. The Internet le~ you
    changes to Rule 5:17( c), Rule S:22(a) arid Rule               Visit commercial cites (.com), education institutions
    SA: 15' to reflect the enactment of Title 17 .1 of the         (;edu) and 'governmental agencies (,gov). For exam-
    Code for Courts' of Record, eff~ctive October 1,               pie if· you type, for the l()catjon -
    1998, taking the place of Title 17, which was                  http://www.vtla;colTl you can visit the homepage of
                                                                    ;   .   -.,            . . . . .                        .
    repealed effective the same date. (The rules were
    changed simply to reflect the new statute; there are                                          Internet - cont'd on page 14
    no substantive changes to them.)
                                                                    John P. Fishwick; Jr. is President o[-Vir,ginia Online Legal
        The next meeting of the Appellate Subcommittee
                                                                    ResewrchCompany (www.vaonline.com). He is agradu-
    will be held in Richmond iii March, with the date,              ate of Harvard College (B.A. 1979) and Washington and
,
    time' and speaker to be announced.                 '            Lee Law School (1983). He is Chairman of the Law
)                                                                   Ma.nagement Sectio'Yf of the Virginia Bar Association, and
                                                                    a me.mber ofVTLA. He can be reached byemail at
                                                                    requesiS@Vaontine.com or by phone at 1~800c569-3854. ,


                                                              13
 LITIGATION NEWS                                                                                     WINTER     1998-99
Internet                                                          Top Legal Sites
contJd from page 13                                               Nation
                                                                  Supreme Court - http://supct.law.comell.edu/supct
the Virginia Trial Lawyers Association (VTLA). If                 U.S. Code - gopher:! /hamiltonl.house.gov or
you enter gopher:! /hamilton 1.house.gov or                            http://www4.1aw.comell.edu/uscode
http://www4.1aw.comell.edu/uscode/ you will find                  Other state and federal courts "'- http://www.
the U.S. Code. You can then print or download a                        findlaw.com'             '.              '
statute from your computer. The World Wide Web                    Martindale-Hubbdl--'- http://wviIw.martindale.com
(www) addresses of value you can mark as a "book-                 Financial documents - http://sec.gov/edgarhp.htm
mark," which lets you return to the site by clicking
on its name instead of typing in the address each                 Virginia.
time. Through bookmarks, you can build easy access                Virginia Lawyers Weekly - http://www.virginialaw.com
to your own law library.                                          Virginia Supreme Court & Court of Appeals -
                                                                       http://www.courts.state.va.us/opin.htm
What's Out There                                                  Fourth Circuit - http://www.law.emory~edu/4circuit
Most rec'ent court decisions are available on the                 Virginia Trial Lawyers Association - http://www.
Internet. For example; Fourth Cin:;uit decisions since                 vtla.com
1995 are available at Emory Law School                            Virginia State Bar - http://www.vsb.org
(http://www.law,emory.edu/4circuit). Virginia                     Virginia Bar Association - http://www.vba.org
Supreme Court' and Virginia Court of Appeals deci-
sions since 1996 are fotindat http://www.courts.                  Medical
state.va.us/opin.htm. For Virginia cases, Virginia                gealthGate - http://www.healthgate.com      .
Lawyers Weekly (www.virginialaw.com) has excellent                The New EnglandJournal of Medicine ~ http://www.
search capabilities for recent cases. All United States               nejm.org .
Supreme Court cases since 1990 are available at,the               Medscape: ,"The Online ReSource for Better Patient
Cornell Law Library (http://supct.law.comell.                          Car,e" - http://www.medscape.com/index.html
edu/supct/) and many major Supreme Court decF                     PubMed - National Library of Medicine
sions from earlier dates are available.                             . http://www.nc!>Lnlm.ri.ih.gov/PubMed/ .
     There are a number of other Intern~t sites' avail-
able to supplement your legal research needs. For                 Integration.'
example, there are several sites that have' overviews             Each,year the Internet becomes m~re reliable' as ~.
of all state and federal cases available on the                   research to()1. Most cases prior to the Q1id-1990s are'
Internet. A very popular and useful site is Findlaw               still not on the Internet (except for U.S. Supreme
(http://www.findlaw.com). If you are involved in liti-            CoUrt cases), but many new court decisions are post-
gation against a publicly~traded corpOration, a number            eddaily on the Iriternet: Most government and large
of financial documents can be downloaded or. printed              private sites are reliable and. can supplement .other
off the. Internet. One of the. best .resources is the             re~earch·tQ.ols. Stnq: on~y the, 1110st recent cases~re
EDGAR site (http://www.sec.gO\I/edgarhp.htm),                     p()st~~"the Intemet cannot ,beah. ,exClusive research
which lets you,easily find current financial reports.             tool,btlt .it'c~ be a useful tool. The search capabili-
     The Virginia Bar has a proposed ruk(MCLE                     t;i,eson the Internet do notyetequalthe large COffi-
opinion 16) which proposes that continuiriglegal edu-             ll,lercial services (~.g. West), but the gap is dosing.
cation seniinars be providedo'n the Internet. Lawyers             Overtime mote and more research will be done
cart stay in their offices and have more fleXibility in           without the us~ of a co~merdalprovider.             .. .
scheduling these seminars. Additionally, lawyers can                   The Internet should become an integral part of
use the CLE site (www.vade.org) to link to other                  your legal research 'at;senal. It is a fast and cost-effec-
research sites, and review recent ethics opinions.                tive method to reach materials that will assist your
     Most sites have links to other legal· Internet sites.        clients. La,wyers no longer need to have rows of
This means you can "click on" to a link and you' will             books in their offices. The Internet lets you tap into
then move toa new Internet page. For example, the                 the legal resources of others. from your desk at any
Virginia State Bar (www.vsb.org) has links to all law             time, day or night. This resource' permits. you to
schools in Virginia. The advantage of links is good               stand on equal footing with any firm.
sites will be linked from a page, making it ~asier for
you to find what you need.

                                                             i4
,"'\TINTER   1998-99                                                                             LITIGATION     Nmvs
                                                                4:S(b)(6) of the Rules of the Virginia Supreme
Deposing an Out-of-State                                        Court states:
                                                                     A party may in his notice name as the depo-
 Agent of a Corporate                                                nent a public or private corporation or a
                                                                     partnership or association or governmental
 Defendant in VIrginia                                               agency and designate with reasonable partic-
                                                                     ularity the matters on which examination is
                     by Laura S: Evick
                                                                     requested. The organization so named shall
                                                                     designate one or more officers, directors, or
       he Rockingham County Circuit Court recent-

T      ly addressed the issue of where depositions of
       an out-of-town agent of a corporate defen-
dant may be taken. In an August 14, 1998 Opinion
                                                                     managing agents, or other persons who con-
                                                                     sent to testify on its behalf, and may set
                                                                     forth, for each person designated, the mat-
                                                                     ters on which he will testify.
by Judge John J. McGrath, styled North and South                    The purpose of the aforesaid Virginia Supreme
Lines, Inc. v. United States Fidelity and Guaranty              Court Rule appears to be analogous to Federal Rule
Company, Law No. 11199, the Court addressed this                30,(b)(6). This purpose is perhaps best.explainedih
issue. This article will provide a summary of the               the Advisory Committee notes to FED R. CIV P.
applicable . law on where depositions of an out-of-             30(b )(6). which identifies the purpose as being to
town agent of a corporate defendant may be taken.               reduce
                                                                     the difficulties now encountered in deter-
Rule 4:5                                                             mining, prior to the' taking of a deposition,
This rule States as follows;·'                                       whether a particular employee or agent is
       Depositions shall be taken in the county or                   "managing agent."]t will curb the "bandy-
       city in which suit is pending ... except that                 ing" by which officers and managing agents
       deposition may be taken at a place upon                       of a corporation are deposed in turn but
       which the parties agree or at a place that the                each disclaims knowledge of facts that are
       court in such suit may, for good cause, des-                  clearly known to persons in the organization
       ignate. If a nonparty witness is not a 'resident              and thereby to it)
       of the Commonwealth, his deposition may
       be taken in the locality where he resides or is          Case Law'
       employed or at any other locationag-reed                 The only case on pqint prior to the North and South
       upOQ by the parties.                                     Lines, Inc. v. United States Fidelity and Guaranty
     Thus, the first issue in deciding where. the depo-         Company case was Th.e Staples Corporation, v.
sition must be taken is whether the person to be                Washington Hall Corporation, Chancery No.
deposed is a party or a nonparty. If the person to be           146430 (Jan. 30, 1998) (Klein, J.). In Staples, the
deposed is a party, then. he may be deposed in the              Plaintiff, after deposing the sole agent of the
county or city in which the suit is pending. However,           Washington: Hall CO!p. in, America,sQught to
if ;thedeponent isa nonparty then she must be                   dep()se,two additional employees of the Washington
deposed in either the locality where she resides,               HaJI·Corp.  as   "officers, directors, of managing
works, or any other location agreed upon by the par-            agents" .of the corporate defendant pursuant to Rule
ties; This issue of party and nonparty witnesses                4:1 and 4:5 of the Rules of the Supreme, Court of
becomes· more complex when the deponent is a cor-               Virginia. These employees resided and. worked in
poration.,       ..'      ' . .'       ..... .                  Japan.2 The Washington Hall Corp. filed for a pro-
     Often it is difficult to determine which corporate         tective order concerning the deposition of these two
officials possess adequate knowledge for deposition             employees who were in Japan.                 '.
testimony. ,One method that exists in both Virginia                . In sllpp6rt of its Motion for Protective Order,
and Federal law to enable litigants to have meaning- .•         the Washington Hall Corp. argued that in accor-
fuldeposition testimony is found in Rule 4:S(b)(6)              dance with Rule 4:S(al), the depositions must be
of the Rules of the Virginia Supreme Court and its              taken in Japan, where thes~ nonparty witnesses
federal counterpart, FED R. CIV. P. 30(b)(6). Rule              worked and resided. Additionally, Washington Hall
. Laura S. Evick JS an attorney practicing with the firm        Corp. argued the depqsitions would be "unnecessary
 Clark e9" Bradshaw, P.e. ofHarrisonburg, VA.                                    North & South Lines - cont'd on page 16

                                                           15
 LITIGATION NEWS                                                                                       WINTER      1998-99
North & South Lines                                                ming from a claim filed by North & South Lines,
cont'd from page 15                                                Inc. against its insurer, USF&G, and the subsequent
                                                                   denial of this claim by the insurer. Responsive plead-
and unduly burdensome" as Plaintiff had already                    ings were filed by the Defendant. After conducting
deposed one agent of the Defendant.                                written discovery, Plaintiffsought to depose
      The Plaintiff, Staples Corp., contended these                USF&G. A Notice of Deposition was filed to take
employees were, "party witnesses" under Rule                       the deposition of any agent of USF&Gwho could
4:5(a1) because they were officers of the                          provide testimony on a list of issues that was attached
Washington Hall Corp, which was the defendant in                   to the Notice in accordance with 4:5(b)(6). USF&G
the suit. Moreover, Plaintiff also argued the deposi-              refus·ed to provide agents to be deposed in
tions were necessary since the prior deponent had                  Harrisonburg, the location of the pending suit,
been unable to testify to certain important issues                 insisting instead that the proper deposition forum
involved in the suit.                                              was' Atlanta, Georgia, the home and workplace of
  , . The Staples Court held that the officers of the              those employees of USF&G having the needed infor-
Washington Hall Corp. were "party" witnesses.                      mation. North & South Lines, Inc. filed a motion to
SpeCifically the Court found:                                      compel. USF&G countered by seeking a protective
       Rules 4:7(a)(3) and 4:12(b) manifest an .                   order. The' motions were argued before the Circuit
       intent by the Virginia Supreme Court to                      Court of Rockingham County.
       treat officer, directors and managing agents                      During the arguments on Plaintiff's Motion to
       selected to testifY on behalf of a corporate
                                                                    Compel, PI,aintiff's Attorn,eys; Mark B. Callahan and
       litigant by the examining party as "party"
       witnesses for the purposes of Rule 4:5(al).3                 Laura S. Evick of Clark & Bradshaw, P.C., argued
       The Court further held that the depositions of              that Rule 4:5(b)( 6) clearly and unequivocally allowed
 these individuals was not unduly burdensome or                     the Plaintiff to take the deposition of any agent,
 unnecessary in light of the theory that discovery                  employee, officer, etc. designated by the Defendant
 should be very liberal and open. The Court felt that              who had knowledge concerning the issues set forth
 the depositions of these individuals was "likely to                in the Notice. Specifically, Rule 4:5(b)(6) states that
 lead to the discovery of admissible evidence."                     a party may name in his notice of deposition a "pub-
 Therefore the. Court denied Defendant's Motion for                 lic or private corporation" and designate with "rea-
 a Protective Order with regard    to   the depositioris of         sonable particularity" th~se issues upon which
  the two named officers of the Washington Hall                     deposition testimony was sought. The corporation so
  Group. While the Court granted the Motion for                     named must then- designate one or more officers;
  Protective Order with regard to the 4:5(b)(6) depo-               directors, etc. to provide testimony on behalf of the
  sition, it stated that "[i]f Staples conchides that Offi-                                                             a
                                                                    corporation at the deposition. S In addition .to firm
  cials at Washington have knowledge of matters not                 reliance on the language of Rule 4:5(b )(6) of the
  discussed in. the Okuda, Nishimiya, and Nomura                    Ru.les of the· Supreme Gourt, 1?1ai,i1tiff's' Counsel also
 depOsitions, Staples may then file a 4:S(b)( 6) Nocice             referred to the dedsi0Il lr'l Staples Corp. V. .Washi,~gton
. of Depos!tion toWashingtori and desigrtate those                   Halt Corp:6 The main diffetei1cebefureen the factS 'in
                                                                     S,tapl~sand:tIie present case was that In Staples the
  particular subjects about which it feels further testi-
  mony is ne~essary."                                              .Plaintiff' had already deposed one efuployee' of the
                                                                    defehdartiwd w~s.giveri permission t6 'depose tWo
 North&.SouthLines, Inc.            v~. USF&G                       additional· agents ; However, in the present case,
                                                                    North & Soq.th,Lines,~Inc.,atthe time ofargriments
Against thislegat backgrou~d, North & SouthLines
          .             .  .                   "     "
                                                                    on this Motion, had not been.afforded an opportuni-
111;c. v, United States Fidelity & GuarWff,ty Company!
                                                                     ty to depose any employees of the Atlanta-based
was argued, A brief description of the uhdedying
                                                                     Defendant. Therefore, under' the law as set forth in
case will aid in an understanding of the Court'sdeci~
                                                                     Staples, the deposition should be allowed.
sion regarding depositions of a corporate defendant.
                                                                         Counsel for. USF&G argued there was a distinc-
North & South Lines, Inc. filed its Motion for
                                                                     tion between corporate officers and directors and
Judgment in the Circuit Court of Rockingham
                                                                     lower-level employee,s. USF&G's position was that
County on November 25, 1997. The issues in: this
lawsuit were breach of contract and bad faith stem-                                  North &   South Lines -'- cont'd on page 18

                                                              16
                 WINTER     1998-99                                                                              LITIGATION NE\VS
         \
         )
     /

                                              Recent Law Review Articles
                    by R. Lee Livingston

                 The following are recently published Law Review articles that may prove useful to you in your practice:

                 Ethics                                                         to Ensure the Reliability of All Expert Testimony.
                                                                                (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
                 Lisle R. Baker. Ethical Limits on Attorney Contact
                                                                                U.S.' 579, 1993.) 25 FORDHAM URB. L.]. 541-574
                 with Represented and Unrepresented Officials: The
                                                                                (1998).
                 Example of Municipal Zoning Boards Making Site-
                 Specific Land Use Decisions. 31 SUFFOLK U. L. REv.             David Robinson, Jr. Old Chief, Crowder,' an'd Trials by
                 349-390 (1997).                                                Stipulation. 6 WM. & MARy BILL OF RTS. J. 311-344
                 Michelle D. Gaines, Comment. A Proposed Conflict of            (1998).
                 Interest R'ule for Attorney-Mediators. 73 WASH. L.             Lisa E. Toporek, Coinment. «Bad Politics Makes Bad
                 REv. 699-729 (1998).                                           Law)): A Comment on the Eighth Circuit)s Approach to
                 Micalyn S. Harris and Karen L. Valihura. Outside               the Governmental Attorney-Client Privilege. 86 GEO.
                 Counsel as Director: The Pros and Potential Pitfalls of        L.J. 2421-2443 (1998).
                 Dual Service. 53 Bus. LAw~ 479-506 (1998).
                                                                                Insurance Law
                 Hon. Dick Thornburgh. Junk Science - The Lawyer)s
                 Ethical Responsibilities. 25 FORDHAM URB. L.J. 449-            Mark O. Hieplerand Brian C. Dunn. Irreconcilable
    '",
                 469 (1998).                                                    Differences: Why the Doctor-Patient Relationship is
             J
.   ,,/                                                                         Disintegrating at the Hands of Health Maintenance
                                                                                Organizations and Wall Street. 25PEPP. L. REv. 597-
                 Evidence                                                       616 (1998).
                 Daniel J. Capra. The Daubert Puzzle. 32 GA. L. REv.
                 699-782 (1998).,                                               Johnny Parker. The Common Fund Doctrine: Coming
                                                                                of Age in the Law on Insurance Subrogration. 31 IND.
                 Michael J. Keel, Comment. Law and Religion Collide             L. REv. 313-339 (1998).
                 Again: The Priest-Penitent Privilege i'liChild Abuse
                 Reporting Cases. 28 CUMBo L. REv. 681-714 (1997-               Rob S. Register, Comment. Apportioning Coverage
                 1998).                                                         Responsibility of Consecutive Insurers When the Actual
                                                                                Occurrence of Injury Cannot Be Ascertained: Who Has
                 Niccol Kordingand Janine P. DuMontefle. An                     to Contribut.e ina Settlement? 49 MERCER L. REv.
                 Overview Of Admissibility 'o/Genetic Test R.esults in          1151-1169 (1998).
                 Federtr,l Civil Actions: An Uncertain Destiny. 19
                 WHmIER L. REv. 681-704 (1998).                                 Ken Swift. How Special is Special? An Insurance
                                                                                Agenrs Duty to Advise. 21 HAMLINE L. REv. 323-335
                 Adrienne Kotowski, Student Article. «How                       (1998).
                 -Confident.ial is This Conversation Anyway?»:
                  Discoverability of Exculpatory Materials in Sexual
                 Assault Litigation. 3 SUFFOLK J. TRIAL & App.                  Practice and' Procedure
                 ADvoc. 65-91 (1998).                                           Gregory S. Johnson. A Practitioner)s Overview of
                                                                                Digital Discovery. 33 GONZ. L. REv. 347-376
                 DavidP. Leonard. In Defense of the Character                   (1997/98).
                 Evidence Prohibition: Foundations of the Rule Against
                 Trial by Character. 73 IND. L.]. 1161-1215 (1998).             Teal E. Luthy, Comment. Assigning Common Law
     )           Kristina L. Needham, Note. Questioning the
                                                                                Claims for Fraud. 65 U. CHI. L. REv. 1001- 1028
                                                                                (1998).
                 Admissibility of Nonscientific Testimony After
                 Daubert: The Need for Increased Judicial Giuekeeping                            Law Review Articles -   cont~d   on page 18

                                                                           17
LITIGATION NEV\'S                                                                                         WINTER    1998-99
North & South Lines
cont)d from page 16                                                         Low Review Articles                      (cont'd)


lower-level employees should not be considered                            Kristin A. Reich, Note. Long-term Care Financing
"party witnesses" under the Rule. Moreover, it                            Crisis - Recent Federal and State Efforts to Deter
argued that it was unduly burdensome to require                           Asset Transfers as a Means to Gain Medicaid
low-level employees to travel long distances to pro-                      Eligibility; 74 N.D. L. REv. 383-409 (1998).
vide deposition testimony.                                                Kimberly M. Ruch-Alegant, Note. In Light of De
    Judge McGrath held that a reading of Rules                            Novo Review; Parties to Patent Infringement
4:S(al) and 4:S{b)(6) "indicate' that agents of                           Litigation Should Consider the ADR Option.
USF&G, as the defendant corporation, may be                               (Markman v; Westview Instruments, Inc., 116 S. Ct.
named as deponents and deposed in Rockingham                              1384, 1996.) 16 TEMP. ENVTL. L. & TECH. 1. 307-
County, Virginia, where the suit is pending."7                            324 (1998).
                                                                          Christopher A. Young, Note. In Search of Consistency:
                                                                          Jury Instructions Under Rule 51 of the Federal Rules
                                                                          of Civil Procedure. 83 IOWA L. REv. 471-497 (1998).
     IFederai Rules of Civil Procedure 30(b)(6), advisory com-
mittee's note, cited in Staples Corp. v. Washington Hall Corp., 19        Products Liability
Cir. C146430, p. 4.
     2Staples Corporation v. Washington Hall Corporation,                 Patrick J. Norton, Note. What Happens When Air
Chancery No. 146430, Slip. Op. p.2 (Jan. 30, 1998)(Klein,   n.            Bags Kill: Automobile Manufacturers) Liability for
     3 Staples, supra note 4 at 5.                                        Injuries Caused by Air Bags. 48 CASE W. REs. L. REv.
     4North & South Lines, Inc. v. United States Fidelity &               659-699 (1998).
Guaranty Company, Law No. 11199, (Aug. 14,
1998)(McGrath, J.)
     5 Rule of Virginia Supreme Court 4:5(b)( 6).                         Torts
     6Staples Corporation v. Washington Hall Corporation,                 Denis Binder. The Duty to Disclose Geologic Hazards
Chancery No. 146430 (Jan. 30, 1998)(Klein, J.).               .
                                                                          in Real Estate Transactions. 1 CHAPMAN L. REv. 13-
     7North & South Lines, Inc. v. United States Fidelity &
Guaranty Company, Law No. 11199, (Aug. 14,1998)                           56 (1998).
(McGrath, J.), p. 4.                                                      Karen L. Chadwick. ((Causing» Enhanced Injuries in
                                                                          Crashworthiness Cases. 48 SYRACUSE L. REv. 1223-
                                                                          1262 (1998).
                                                                          George S. Ingalls, Linda T Layton, and Nomiki B.
                                                                          Weitze,. Elder Abuse Originating in the Institutional
                                                                          Seiting..74 N.D.I,-.REv.313~340(1998).               .
                                                                          TravisN. ·Jensen, Note. Cooling the Hot Pursuit:
                                                                          Toward a Categorical Approach. 73 IND. L.J. 1277-
                                                                          1294 (1998),
                                                                          BrentB. Nicholson. The Taxation of Prejudgment
                                                                          Interest in Personal Injury Cases. 59 MONT. L. REv.
                                                                          207-223 (1998).
                                                                          Robert M. O'Neil. The Drudge Case: A Look at Issues
                                                                          in Cyberspace Defamation. 73 WASH. L. REv. 623-
                                                                          636 (1998).
                                                                          Price, Polly' J. Full Faith and Credit and the Equity
                                                                          Conflict. 84 VA. L. REv. 747 -842 (1998).



                                                                     18
           WINTER     1998-99                                                                                  LITIGATION NEWS

      )
                                                 A View from the Bench
           And the Truth Wt11 ...                                          purpose of the court system in resolving legal dis-
                                                                           putes is to seek the truth. If truth is the proper goal
              by The Honorable Paul M. Peatross, Jr.                       of the legal system, then trial lawyers must be lead-
                                                                           ers and demonstrate how to prove the truth by set-
                     ne morning while I attended my son's                  ting good examples; i.e. presenting a case in such a

           O   ,     soccer game at a local school, one of the
                  , fathers who knew I was a judge struck up
            a converSation with me about lawyers. He began
                                                                           way that judge or jury can reach the truth in the
                                                                           case. There is clear guidance for the trial bar relating
                                                                           to this goal. ..
            the conversation with the question: "Why aren't                     The Board of Governors of the Litigation
            lawyers sworn into tell the truth when they appear             Section of the Virginia State Bar has published
            in court at the trial of a case?                               Principles of Professional Courtesy. In the Preamble,
                Obviously, my first thought was that he had                it states:
            had a recent experience in court where he did not                    Thoughtful, courteous conduct, manners
            feel the lawyer represented the facts of the case                    and attitudes, constantly practiced by the
                                                                                 bench' and bar in a symbiotic relationship;
            accurately. Of course, the correct answer to the
                                                                                 will improve both the reality and the public
            question is that lawyers do not testify as to facts,                 perception of the legal system. While it may
            but tell a judge ora jury what they expect the facts                 be axiomatic that lawyers owe a duty of
            to be in an opening state-ment; pose questions dur-                  courtesy, respect and candor to the courts,
            ingthe examination of witnesses to elicit facts                      opposing counsel, witnesses, clients, mem-
            from the witnesses; and argue to the judge or jury                   bers of court support groups and the public,
            in closing arguments what the facts are and how                      reports from a wide range of sources suggest
                                                                                 an increasing display of arrogance, rudeness,
            these facts should be applied to the law.
                                                                                 insensitivity and discourtesy within the sys-
                I reflected, more on this question while observ-                 tem. These traits, reprehensible in them-
            ing lawyers in court on a frequent basis and teach-                  selves, also actually impede the
            ing a trial advocacy course at the University of                     administration of justice and increase the
            Virginia Law School. The implication of the ques-                    expense of litigation.
            tion stresses the importance for lawyers to make                   Likewise, the Virginia Bar Association has adopt-
            statements during trial which are supported by                 ed the Vir,ginia Bar Association Creed. The Vir,ginia
            facts that will be, or have been, presented to the             Bar Association Creed, addressing conduct before
            judge or jury in determining the outcome of the                courts and other tribunals, states in part that a pro~
            case. For example, a lawyer, in making an opening              fessional should always exercise candor with the
          , statement and telling a judge or jury what he or               court at all times and act with complete honesty.
            she expects the facts to be in a case, should make                 In a speech by Douglas O'Brien, Esquire, Chair,
            sure he or she presents facts through witnesses or             Public Relations Committee, New York State Bar
            exhibits that support the claims made in the open-             Association, given in Washington, DC on November
            ing statement. Likewise, a lawyer's final arguments            7, 1993, he noted as follows:                 '
                                                                                , When someone has had a bad experience
            should argue facts that have been established by                      with a lawyer, there will be thirteen negative
            the evidence, either through witnesses or exhibits,                   impressions, as the unhappy client communi-
            in order to persuade the jury to adopt those facts                    cates his or her dissatisfaction to family and
            to decide the case favorably for his or her client.                   friends. It take twenty positive impressions
                Despite the political climate that we find' our-                  per person to offset a single negative one. So
            selves in at the present time, where the importance                   we have to generate two hundred and sixty
                                                                                  positive impressions to undo the damage
            of telling the truth is a highly-debated topic, the
    )
.. ,,""
                                                                                  done by that one bad experience. The math-
            The Honorable Paul M. Peatross, Jr. is. a Circuit Court               ematics clearly indicate it is far more logical
            judge, Sixteenth Judicial Circuit._                                              View from the Bench - cont)d on page ,18

                                                                      19
           LITIGATION NEWS                                                                                        'VINTER     1998-99
                                                                           HeQlth~Qre Write-oHs
           View from the Bench                             (cont'd)
                                                                           cont~d from page 12

                and efficient to try to eliminate as many neg-                  6See, eg., Babb v. Wal-Mart Stores, Inc., No. 2:95cv630
                ative impressions as possible.                             (E.D. Va. March 7,1996); Wyche v. Campbell, No. 96CVI07
              The entire structure of the trial itself is based            (E.D. Va. Nov. 27, 1996); Clemens v. Mary Iml11acu:late
                                                                           Hospital, Inc., No. 21933-VA (Newport News Cir. Ct. 1997);
         upon the goal of determining the truth. A jury is                 Martin v. Daugherty, No. 95-244 (Wise Co. Cir. Ct. 1997);
,'"      given an oath to answer truthfully questions about                Payne v. Brown, No. 22151-'RW (Newport News Cir. Ct. 1997);
         qualifications to sit as a fair and impartial juror. The          Rice v. Coppins, No. CL96-838 (Henrico Co. Cir. Ct. 1997);
                                                                           Rowe v. Tri-State Clinic, Inc., 43 Va. Cir. 27 (Buchanan Co. Cir.
         jury is further charged with trying the case as well              Ct. 1997); CarWile v. Tomlinson, No, L96-797 (Portsmouth Cir.
         and truly reaching a true verdict according to the law            Ct. 1996); Compton V. HCMF Corp., No. 395-95 (Buchanan
         and evidence. Witnesses are sworn to tell the truth,              Co. Cir. Ct. 1996); Fi~lds V. Fields, No. 194-255 (Wise Co. Cir.
         the whole 'tr~t:h and nothing but the truth. Judges               Ct. 1995); King v.Sowers, et al., No 93-1005 (Roanoke Cir. Ct.
                                                                           1995); Woods V. W-L Construction & Paving, Inc., No.
         aIl~ lawyers take the same oath of office to faithfully           173CL95004689 cOO (Smyth Co. Cir. Ct. 1995).
         and impartially discharge all the duties incumbent                     7 See, e.g., Hill V. Tuttle, No. CL97-134 (Roanoke Cir. Ct.
         upon them as a judge or a lawyer.                                 April 2, 1997); Smith V. Jernigan, 42 Va. Cir. 395 (Norfolk Cir.
                                                                           Ct. June 9, 1997); Boehm V. Machado, No. 165267 (Fairfax Co.
              In conClusion, even though lawyers are not                   Cir. Ct. July 8,1998); Brougher V. Wintergreen Resorts, Inc., et
         required to take an oath to tell the truth each time              al:, No. 125CL96000028-00 (Nelson Co. Cir. Ct. October 1,
         they try a case, they have taken an oath to faithfully            1998).                 .
                                                                                8 Hill, No. CL97-734.
         and impartially discharge all the duties incumbent
                                                                                9 Brougher, No. 125CL96000028-00.
         upon them as attorneys at law. They are required to
                                                                               lOSeeSchicklingv. Aspinall, 235 Va. 472,474-75 (1988).
         adhere to the Virginia Code of Professional                           llS~eAvereti:v. Shirc1iff, 218 Va. 202, 208 (1977).
         Responsibility. I recommend to each trial attorney                    1222 Am. Jui". 2d Damages§ 27.
         the Principles of Professional Courtesy and the                       13 See id. at § 566.
      ~Vi1lJinia Bar Association' Creed as routine reading to                  14See Dag E. Ytreberg, Collateral Source Rule: Injured
         elevate the standards of legal professionalism. While             Person's Hospitalization or Medical Insurance as Affecting
                                                                           Damages Recoverable, 77 AL.R..3d 415 (1977):
         promoting the truth with good trial practices will not                15 Sykes V. Brown, 156 Va. 881 (1931).
         always set your client free or give you a judgement in                16Virginia Code §38.2-2201(A)(3)(emphasis added).
         your client's favor, it will go a long way in serving                 17State Farm Mut. Auto Ins. CO. V. Bowers, Record No.
         the best interests of your client and promoting jus-              971257 (Va. April 17, 1998).
                                             ,.
         tice in our court system.




                                                                      20
     WINTER      1998-99                                                                              LITIGATION NEWS


                                                   Cyber Cites
         by Kellin W Grierson                                        Virginia Courts
                                                                      http://www.courts.state.va.usis the web site for
     Back to the Basics                                               our state court system. You can download the most
                                                                     'recent decisions of the Virginia Supreme Court and
         t's been over a year since this column started and,          Court of Appeals, usually within a day of their

     I   looking back at some of the sites covered previ-
         ously, it was· clear that information had become
     outdated. So, here's a list of some of the basic refer-
                                                                      release. About the only thing faster is to have some-
                                                                      one waiting at the courthouse.
                                                                          Virginia Beach's courts have a fairly comprehen-
     ence points for Virginia attorneys on the web.                   sive web site at http://www.virginia-beach.va.us/
                                                                     courts/courts.htm.
     State Sites
     Virginia Government                                             Federal Sites
     http://www.state.va.us/home/governmt.html                       The United States Code
     This site contains links to web pages for the Governor,         http://www4.1aw.comell.edu/uscode
     the General Assembly and the Courts. It also has links          This is the compilation of all the laws passed by the
     to the Virginia Code, which is a compilation of all the         US Congress, organized by topic. Cornell University
     laws passed by the legislature that are currently in            presents the Code in a form that allows you to search
     force, as well as the Administrative Code, which con-           for specific terms;
     tains the regulations passed by various state agencies,
     such as the State Corporation Commission. For stu-              THOMAS - US Congress Legislative Site
     dents, there is a "Virginia Facts & Figures" section            http://thomas.loc.gov/
     with statistical information about the Commonwealth.            This site provides details about pending federal bills
                                                                     and laws.
     The Virginia Legislature Online
     http://legis.state.va.us/vaonline/v.htm                         The United States Supreme Court
     This is the home page of the state legislature. You             http://supct.law.comeILedu/supct/
     can use this web site to find out who your legislators          Find all of the recent decisions of the Supreme Court
     are, find out how to contact them, follow a bill                of the United States, as well as a wide range of infor"
     through the legislature. There's even a "Kid's                  mation about the court.
     Korner" with information about state government.                The United States Court of Appeals
     Office of the Attorney General                                  fbrthe FOilrth Circuit
     http://www.cns.state.va.us/oag                                  http://W'Iivw.1aw.emory.edu/4circuit/
     Find out· information about your Attorney General.               Emory University is currently hosting the Fourth
     Included you will firid.inforination about the pro-              CircUit's website. Fourth Circuit opinions have been
     posed tobacco settlement, and you can look through               posted here since January 1995. The Fourth
     opinions of the Attorney General (in which he answers            Circuit's official site will eventually be found at
     various questions· of law posed by state legislators) at         http://www.ca4.uscourts.gov/. but the site cur-
     http://www.csn.state.va.us/oag/opin/default.htm.·               .rently contains no data.
     There is also a site that allows you to search through          United States Bankruptcy Courts
     the text of those same opinions: http://www.csn.
     state.va.us/oag/search.dm.                                      Eastern District of Virginia
                                                                          http://wwvv.vaeb.uscourts.gov
     The Cen~ury Date Change Initiative                              Western District of Virginia .
     (Virginia's Year 2000 website)                                       http://www.vawb.uscourts.gov
     http://www.cdci.state.va.us/
                                                                     I searched without success for a site for the District
     Find out what your Commonwealth is doing about
-)   the Year 2000 problem. Also provided are links to
                                                                     Courts. If anyone has an address for them, please let
                                                                     me know.·
     Virginia Agency Year 2000 pages, as well as links to
     federal sites addressing the Y2K problem,                                              Cyber Cites - contJd on back COller

                                                                21
 LITIGATION NEWS                                                                               WINTER      1998-99
                              Virginia State Bar Litigatio'n Section
                                             Board of Governors
Jeffrey Hugh Gray                       Kevin W. Grierson                         Frank Kenneth Friedman
Chair                                   Chair - Litigation YLC                    Woods, Rogers & Hazlegrove, PLC
Willcox & Savage, P.c.                  Jones, Blechman, Woltz & Kelly, P.C.      10 St. Jefferson Street, Suite 1400
One Columbus Center, Suite 1010         600 Thimble Shoals Boulevard              P.O. Box 14125
P.O. Box 61888                          P.o. Box 12888                            Roanoke, VA 24038-4125
Virginia Beach, VA 23462                Newport News; VA 23612-2888                                     540/983-7692
                      757/628-5516                             757/873-8061                        Fax: 540/983-7711
                 Fax: 757/628-5659                        Fax: 757/873-8103

                                                                                  James A. Gorry, III
Susan Carol Armstrong                   R. Lee Livingston                         Taylor & Walker, P.C.
Vice Chair                               Newsletter Editor                        P.O. Box 3490
Mays & Valentine, L.L.P.                 Tremblay & Sinith, L.L.P.                Norfolk, VA 23514-3490
P.O. Box 1122                            105 c l09 East High Street                                   757/625-7300
Richmond, VA 23218-1122                 .P.O. Box 1585
                    804/697-1220         Charlottesville, VA 22902
               Fax: 804/697-1339                                804/977-4455      Thomas Moore Lawson
                                                           Fax: 804/979-1221      20 South Cameron Street, Suite 301
                                                                                  Winchester, VA 22601
Glen.ti Walthall Pulley                                                                               540/665-0050
.Secretary                              Melissa Warner Scoggins                                  Fax: 540/722-4051
 Clement & Wheatley, P.C.               Chair - Appellate Practice Subcommittee
 549 Main Street                        Attorney at Law
 P.O. Box 8200                          P.O. Box 9035
                                        Chesapeake, VA 23321-9035
                                                                                  Hon. Mosby Garland Perrow III
 Danville, VA 24543-8200                                                          Ex-Officio Judicial
                      804/793-8200                             757/488-5500
                                                                                  Lynchburg Circuit Court
                 Fax: 540/793-8436                       Fax: 757/465-9577
                                                                                  Twenty-Fourth Judicial Circuit
                                                                                  900 Court Street
                                                                                  Lynchburg, VA 24504
John J. Sabourin, Jr.                   Thomas E. Albro                                                804/847 -1490
Immediate Past Chair                    Tremblay & Smith, L.L.P.                                  Fax: 804/847-1864
Hazel & Thomas, P.C.                    105"109 EastHigh Street
3110 Fairview Park Drive, Suite 1400    P.O. Box 1585
P.O. Box 12001                          Charlottes~ille, VA 22902-1585
                                                                                  Hon.   LydiCl~alvert   Taylor
Falls Church, VA 22042                                 .      804/977-4455
                                                                                  .Ex-Officio Judicial
                     703/641-4270                         Fax:a04/979-1221 .
                Fax: 703/641-4340                                                  Norfolk'CircuitCourt
                                                                                   100 St. Paul's Boulevard
                                                                                   Norfolk, VA 23510-2721
                                        R.()nald M. Ayers
Robert Craig Wood                                                                                       757/664"4593
                                        Johnson, AyerS & Matthews                                  Fax: 757/664-4581
Past Chair                              302 Second Street, S.W.
McGuire, Woods, Battle &                P.O. Box 2200
   Boothe, L.L.P.                      "Roanoke,VA 24009~2200
418 East Jefferson Street                                                         Patricia Sliger
                                                             540/982-3666
P.O. Box 1288                                                                     Liaison
                                                        Fax: 540/982-1552
Charlottesville, VA 22902-1288                                                    Virginia State Bar
                       804/977-2500                                               707 East Main Street, Suite 1500
                  Fax: 804/980-2222                                               Richmond, VA 23219-2803
                                        Paul Markham Black                                              804/775-0576
                                        Wetherington Melchionna, et al.                            Fax: 804/775-0501
                                        P.o. Box 90
                                        Roanoke, VA 24002-0090
                                                           540/982-3800
                                                      Fax: 540/342-4480

                                                          22
  WINTER     1998-99                                                                        LITIGATION NEWS

                                 Virginia State Bar Litigation Section
                                       Young Lawyers Committee . ' .'
 Kevin W. Grierson                       Megan E. Burns                         Kevin E. Martin-Gayle
 Chair                                   Clark & Stant, P.C.                    Stallings & Richardson, P.C.
 Jones, Blechman, Woltz & Kelly, P.C.    One Columbus Center, Suite 900       , Pavilion Center, Suite. 801
 600 Thimble Shoals Boulevard            Virginia Beach, VA 23462               P.O. Box 1687
 P.O. Box 12888                                                757/499-8800   . VtrginiaBeach, VA 23451-4160
 Newport News, VA 23612-2888                              Fax: 757/473-0395                           757/422-4700
                      757/873-8061                                                               Fax: 757/422-3320
                 Fax: 757/873-8103
                                         David B. Carson
                                         Johnson, Ayers & Matthews             Steven W.. Morris
 Jimese Pendergraft Sherrill             P.O. Box 2200                         LeClair Ryan
 Past Chair                              Roanoke, VA 24009                     707 East Main Street, Eleventh Floor
 As.sistant City Attorney                                    540/982-3666      Richmond, VA 23219
 City of Portsmouth, Virginia                           Fax: 540/982-1552                           804/343-4072
 801 Crawford Street                                                                          Fax: 804/783-2294
 P.O. Box 820
 Portsmouth, VA 23705-0820
                        757/466c0464     D. Jeffrey Coale
                   Fax: 757/466.:8242    Deputy Commonwealth's Attorney        Christopher J. Robinette
                                         Washington County                     Tremblay & Smith, L.L.P.
                                         191 Main Street                       105-109 Ea,stHigh Street
                                         Abingdon,VA 24210                     P.O. Box 1585
 John Wilson                                                  540/676-6291     Charlottesville, VA 22902
 Secretary                                               Fax: 540/676-6293                            804/977-4455
 Willcox & Savage                                                                                Fax: 804/979-1221
 1800 NationsBank Center
 One Commercial Place
 Norfolk, VA23510                        Sean Copeland
                     757/628-5648        Hunton & Williams                     William B. Tiller
                Fax: 757/628-5566        Riverfront Plaza, East Tower          Morris & Morris, P.C.
                                         951 East Byrd Street                  P.O. Box 30
                                         Richmond, VA 23219-4074               Richmond, VA 23218
                                                              .804/788-8200                        804/344-6335
. R. Lee Livingston                                       Fax: 804/788-8218                    Fax:804i344-8359
  Newsletter Editor
  Tremblay & Smith, L.L.P.
  105-109 East High Street
  P.O. Box 1585                          Laurie Hand                           Mark T. Williams
  Charlottesville, VA 22902              McGuire, Woods, Battle &              Williams, Stillwell, Morrison,
                         804/977 -4455      Boothe, L.L.P.                     Williamson & Light
                    Fax: 804/979-1221    Tysons Corner                         317 B Patton Street
                                         8280 Greensboro Drive, Suite 900      Danville, VA 24541
                                         McLean, VA 22102-3892                                       804/793-4912
                                                             703/712-5415                       Fax: 804/792-6110
 Candace A. Blydenburgh                                 Fax: 703/712-5050
 Mays and Valentine
 P.O. Box 1122
 Richmond, VA 23208-1122
                     804/697-1200        Brian J. Lubkeman
                Fax: 804/697-1339        Office of the County Attorney
                                         12000 Government Center Parkway
                                         Suite 549
                                         Fairfax, VA 22035-0064
                                                              703/324-2670
                                                         Fax: 703/324-2665

                                                         23
LITIGATION NEWS                .                                                                         'iVINTER   1998-99

                                                                 (gJ(gJ~(gJ(gJ(gJ(gJ(gJ(gJ(gJ(gJ~~~~(gJ
           Cyber Cites               (cont'd)


The Law of Cyberspace
                                                                 IS]         Publish Your Work                               IS]
The UCLA Online Institute for                                    (gJ         Litigation News welcomes the sub-               IQ]
Cyberspace Law and .Policy                                       (gJ         mission of Iitigatipn.,oriented articles. If    (gJ
http://www.gse.ucla.edu/idp/csth.html
                                                                 (gJ         you have researched or argued an                IQ]
This site contains Court opinions md statutes dealing
                                                                 (gJ         interesting point of Virginia law, or           IQ]
with various issues in cyberspace, such as online priva-         (gJ         have practice tips to share, consider           (gJ
cy and free spee~h.                                              (gJ         condensing them into an article for             IQ]
Links to Index Sites
                                                                 (gJ
                                                                 IQ]
                                                                             Litigation News. The contact for sub-
                                                                             mission of these artides is:                    S
                                                                                                                             Ir1l


Virginia CLE .                                                   (g]                  R. lee livingston, Esq.                IQ]
http://www.vacIe.org                                             IQ]                 Tremblay & Smith, LLP.                  IQ]
This site contains links to a number of useful sites, and
will now also let you register for CLE programs
                                                                 IQ]                105-109 East High Street                 IQ]
                                                                 IQ]                       PO Box 1585                       IQ]
online.      "                                                   IQ]                Charlottesville, VA 22902                IEJl
MicroLaw                                                         IEJl                    804/977-4455                        I!;;;;;!J
http://www.microlaw.com                                          I!;;;;;!J           fax 804/979-1221                        IQ]
This is the site of Ross Kodner's .consulting firm.              IS]             e-mail IliVingston@firstva.comlS]
Ross also has a collection of law-related sites , as well
                              .        .

as other diversions (such as links to Star Trek sites).          IQ]IQ]~IQ]~IQ]IQ]IQ]~IQ]IQ]IQ]~~~IQ]



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            707 E. Main Street, Suite 1500                                                                       Permit No. 709
            Richmond, VA 23219-2803




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