Failure to order complete trial transcript results in dismissal of Virginia appeal of $8.3 million verdict
A simple clerical error -- failing to order the complete trial transcript -- resulted in the dismissal of the Virginia appeal of a $8.3 million verdict and also spawned two other lawsuits. These events and their consequences are worth reviewing, as many lawyers will have to admit "there but for the grace of God . . . ."
A 17 year old girl sustained severe injuries, including brain injuries, when skiing in Virginia. Essentially she collided with a snow grading machine that was being driven up the intermediate slope to reach a snow tubing run. On July 16, 2004, after a week long trial, a jury returned a verdict in the amount of $8.3 million against the resort.
The defendant and its insurer certainly anticipated a possible bad result, as they retained prominent appellate counsel shortly before the trial had even begun.
An appeal was noted to the Virginia Supreme Court. Somehow, someway, at least one trial transcript was apparently not timely filed on the appellant's behalf. For that reason, the Virginia Supreme Court ultimately dismissed the appeal in July 2005.
Subsequently, the insurer of the ski resort filed a legal malpractice suit against the trial defense counsel in the Circuit Court for the City of Richmond in July, 2007. Shortly thereafter, the case took on political overtones, as it was revealed in a newspaper story that one of the attorneys involved in the failed appeal was under nomination to the U.S. Court of Appeals for the Fourth Circuit.
On September 10, 2008, one of the defendants in the legal malpractice case filed his own suit against the involved insurers and their counsel, for defamation, abuse of process, and conspiracy to injure the plaintiff in his business. Essentially, he claimed that he had no involvement in the post-trial matters in the skiing accident case, since it was all turned over to appellate counsel.
The latter suit was recently dismissed on Jan. 6, 2009 by U.S. District Court Judge Norman K. Moon, in part due to the absolute litigation privilege and the statute of limitations.
An appeal was taken to the Fourth Circuit concerning the latter ruling. Apparently while on appeal, a settlement was worked out, and as part of the settlement it was agreed that there would be a vacatur of Judge Moon's opinion. Judge Moon, however, denied the request for vacatur.
Meanwhile, the legal malpractice suit arising from the failed appeal was non-suited on March 30, 2009.