Allied Concrete Co. v. Lester

• Citation: 285 Va. 295,736 S.E.2d 699
• Decision Date: 10 January 2013
• Docket Number: Record Nos. 120074,120122.
• Parties: ALLIED CONCRETE COMPANY, et al. v. Isaiah LESTER, Individually and as Administrator of the Estate of Jessica Lynn Scott Lester. Isaiah Lester, Individually and as Administrator of the Estate of Jessica Lynn Scott Lester v. Allied Concrete Company, et al.
• Court: Supreme Court of Virginia

285 Va. 295

736 S.E.2d 699

ALLIED CONCRETE COMPANY, et al.

v.Isaiah LESTER, Individually and as Administrator of the Estate of Jessica Lynn Scott Lester.

Isaiah Lester, Individually and as Administrator of the Estate of Jessica Lynn Scott Lester

v.Allied Concrete Company, et al.

Record Nos. 120074, 120122.

Supreme Court of Virginia.

Jan. 10, 2013.

John W. Zunka, Charlottesville (John M. Roche; Taylor Anderson; Zunka, Milnor & Carter, on briefs), for Allied Concrete Company, et al., for appellant.

Malcom P. McConnell, III (Nathan J.D. Veldhuis; Allen Allen Allen & Allen, Fredericksburg, on briefs), for Isaiah Lester, for appellee, for Record No. 120122.

Present: All the Justices.

Opinion by Justice CLEO E. POWELL.

In these combined appeals, we consider whether the trial court erred 1) in denying a motion for a new trial based on the undisputed misconduct by the plaintiff and his attorney; 2) in denying a motion for a mistrial based on juror misconduct; and 3) in remitting the jury verdict.

I. BACKGROUND

On June 21, 2007, Isaiah Lester (“Lester”) was driving his wife, Jessica, to work, traveling west on the Thomas Jefferson Parkway in Albemarle County, Virginia. At the same time, William Donald Sprouse (“Sprouse”), an employee of Allied Concrete Company (“Allied Concrete”), was operating a loaded concrete truck and traveling east on the Thomas Jefferson Parkway. Due to his speed, Sprouse lost control of his vehicle, causing it to cross the center line and tip over, landing on the vehicle occupied by Lester and Jessica. As a result Jessica suffered injuries that ultimately proved to be fatal. Sprouse subsequently pled guilty to manslaughter in the death of Jessica.

On May 16, 2008, Lester, as Administrator and beneficiary of Jessica's estate, filed a complaint against Allied Concrete and Sprouse, seeking compensatory damages for economic and noneconomic losses, including mental anguish, for the wrongful death of Jessica. Jessica's parents (“the Scotts”) were also named as statutory beneficiaries. Lester also filed a separate complaint against Allied Concrete and Sprouse, seeking compensatory damages for his personal injuries. These actions were ultimately consolidated.

A. TRIAL

Trial in this case commenced on December 7, 2010. After a three-day trial, the jury awarded Lester $6,227,000, plus interest, on the wrongful death action, and $2,350,000, plus interest, on his personal injury action. Similarly, the jury awarded each of the Scotts $1,000,000, plus interest, on the wrongful death action.

Allied Concrete filed multiple post-trial motions, including motions for sanctions against Lester and the lead attorney on the case, Matthew B. Murray ¹ (“Murray”), arguingthat Lester conspired with Murray to intentionally and improperly destroy evidence related to Lester's Facebook account and provided false information and testimony related to his Facebook page, his prior use of anti-depressants, his medical history, and the spoliation of Facebook evidence. Further, Allied Concrete contended that Murray engaged in deception, misconduct, and spoliation related to Lester's Facebook account. Allied Concrete also filed a motion seeking, alternatively, dismissal of Lester's claims, a new trial on liability and damages, a new trial on damages only, or a remittitur order, arguing that the misconduct of Lester and Murray precluded an impartial trial and verdict and resulted in an excessive verdict. Finally, the defendants filed a motion for mistrial due to newly discovered juror bias.

The trial court allowed extensive discovery on the post-trial motions, received written submissions, conducted an evidentiary hearing, received the parties' proposed findings of fact and conclusions of law, and entered a 32–page order detailing its findings of fact and conclusions of law.

B. SPOLIATION OF FACEBOOK EVIDENCE

On January 9, 2009, during the pendency of the actions, Lester sent a message through Facebook to David Tafuri (“Tafuri”), an attorney for Allied Concrete. As a result, Tafuri was able to access Lester's Facebook page.

On March 25, 2009, Allied Concrete issued a discovery request to Murray, seeking production of “screen print copies on the day this request is signed of all pages from Isaiah Lester's Facebook page including, but not limited to, all pictures, his profile, his message board, status updates, and all messages sent or received.” Attached to the discovery request was a copy of a photograph Tafuri downloaded off of Lester's Facebook account. The photo depicts Lester accompanied by other individuals, holding a beer can while wearing a T-shirt emblazoned with “I > hot moms.” That evening, Murray notified Lester via email about the receipt of the discovery request and the related photo.

The next morning, on March 26, 2009, Murray instructed Marlina Smith (“Smith”), a paralegal, to tell Lester to “clean up” his Facebook page because “[w]e don't want any blow-ups of this stuff at trial.” Smith emailed Lester requesting information about the photo. Smith also told Lester that there are “some other pics that should be deleted” from his Facebook page. In a follow-up email, Smith reiterated Murray's instructions to her, telling Lester to “clean up” his Facebook page because “[w]e do NOT want blow ups of other pics at trial so please, please clean up your facebook and myspace!” ²

On April 14, 2009, Lester contacted Smith and informed her that he had deleted his Facebook page. The next day, Murray signed and served an answer to the discovery request, which stated “I do not have a Facebook page on the date this is signed, April 15, 2009.” Allied Concrete subsequently filed a Motion to Compel Discovery. On May 11, 2009, Murray told Smith to obtain the information requested in the March 25, 2009 discovery request. Smith contacted Lester, who eventually reactivated his Facebook page. Smith was then able to access and print copies of Lester's Facebook page.³ After Smith printed the Facebook page, consistent with the previous directive to “clean up” his Facebook account, Lester deleted 16 photos from his Facebook page. On May 14, 2009, Murray sent the copies of Lester's Facebook page to Allied Concrete. On October12, 2009, Murray provided additional, updated copies of Lester's Facebook page to Allied Concrete.

At a deposition on December 16, 2009, Lester testified that he never deactivated his Facebook page. As a result, Allied Concrete had to subpoena Facebook to verify Lester's testimony. Allied Concrete also hired an expert, Joshua Scotson (“Scotson”) to determine how many pictures Lester had deleted. Scotson determined that Lester had deleted 16 photos on May 11, 2009. This was later confirmed by an expert hired by Lester to examine Scotson's methodology. All 16 photos were ultimately produced to Allied Concrete.

On September 28, 2010, Allied Concrete served a subpoena duces tecum on Smith, seeking production of all emails between herself and Lester between March 25, 2009 and May 15, 2009. On November 17, 2010, the trial court ordered Lester to file a privilege log, listing everything he claimed was privileged and the basis for the claim. On November 28, 2010, Lester filed an enhanced privilege log. However, Murray intentionally omitted from the enhanced privilege log any reference to the March 26, 2009 email.⁴

Ultimately, the trial court decided that Allied Concrete was entitled to sanctions against Lester and Murray. After a further hearing on the matter, the trial court sanctioned Murray in the amount of $542,000 and Lester in the amount of $180,000 to cover Allied Concrete's attorney's fees and costs in addressing and defending against the misconduct.

C. LESTER'S CREDIBILITY

In addition to lying about deleting his Facebook page, Lester made a number of representations throughout discovery that were ultimately determined to be untrue. Of particular note, it was determined that Lester lied about his history of depression and past use of anti-depressants, and he made false claims about doing certain volunteer work. As a result of these misrepresentations, specifically the deletion of his Facebook page, the trial court ordered that the following adverse inference jury instruction would be given:

The Court instructs the jury that the Plaintiff, Isaiah Lester, was asked in discovery in this case to provide information from his Facebook account. In violation of the rules of this Court, before responding to the discovery, he intentionally and improperly deleted certain photographs from his Facebook account, at least one of which cannot be recovered. You should presume that the photograph or photographs he deleted from his Facebook account were harmful to his case.

The Court further instructs the jury that the presumption from this inference should not affect any award due to the beneficiaries, Gary Scott and Jeanne Scott.

The trial court noted that Allied Concrete knew of the misrepresentations prior to trial. Thus, the trial court ruled that Lester's misrepresentations “related solely to the issue of damages and were mitigated, to the extent appropriate, by an adverse jury instruction, thus, they do not affect the validity of the verdict as to liability.” The trial court read the jury instruction twice, once while Lester was testifying and again before the closing arguments.

D. JUROR MISCONDUCT

During voir dire, the trial court posed the following question to the prospective jurors:

Are any of you related by blood or marriage to any of the attorneys? Do you know them or have significant involvement with them or their law firms?

Only one potential juror, Thomas Hill, responded that he knew several of the attorneys and that he had retained at least one of them in the past. The rest of the potential jurors remained silent.

Post-trial it was discovered that the jury foreperson, Amanda Hoy (“Hoy”), was the former Executive Director of Meals on Wheels of Charlottesville/Albemarle (“Meals on Wheels”). This was relevant because...