Defendants argue for new trial in wrongful death case - The Daily Progress: News

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Defendants argue for new trial in wrongful death case

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Posted: Wednesday, October 31, 2012 1:00 am | Updated: 4:22 pm, Tue Jan 22, 2013.

A $10.6 million personal injury and wrongful death case in which the plaintiff and his lawyer were sanctioned $722,000 for tampering with a Facebook page and other misconduct was argued before the Virginia Supreme Court on Tuesday.

The defendants, among them the Allied Concrete Co., appealed a ruling by Charlottesville Circuit Judge Edward L. Hogshire denying them a new trial in light of the misconduct.

The plaintiff, Isaiah Lester, whose wife, Jessica, died from injuries when a cement truck hit a car the two were riding in on June 21, 2007, is challenging Hogshire's decision to cut $4,127,000 out of the $8,577,000 the jury awarded Lester.

The trial was held in December 2010 and in addition to the money awarded Lester, the jury also awarded $1 million to each of his wife's parents.

A month before the trial started, Lester's lawyer, Matthew B. Murray, of Charlottesville, admitted that "there had been a spoilation of evidence."

Among other things, Lester had deleted 16 photos from his Facebook page, of which all but one was recovered by a defense expert.

Murray also did not reveal an email he had his paralegal send to Lester directing him to "clean up" his Facebook page, which included a photo of him holding a beer can and wearing a T-shirt that said: "I (heart symbol) hot moms."

John W. Zunka, argued before the Virginia Supreme Court that the judge should have granted a new trial based on the misconduct by Murray and Lester.

Justices questioned how much difference it would have made to the case had the 16th photograph been obtained.

"One piece of evidence can carry the day," said Zunka. He said the defendants were "entitled to a fair trial and not to have to worry about the conduct of an opposing counsel."

Murray hid the "stink-bomb email" and lied about it later, Zunka said. "They can't get away with just being sanctioned," he argued, adding that sanctions cannot simply be considered a cost of doing business by lawyers.

Malcolm P. McConnell III told the justices that Hogshire abused his discretion in cutting the jury award to Lester and the full amount should be restored.

"It's up to the jury. The judge substituted his own subjective opinion for (the jury's) subjective opinion and that's very, very dangerous," argued McConnell.

Parental rights case

The Supreme Court justices also heard arguments Tuesday in the case of William D. Breit, a Virginia Beach man seeking parental rights over his biological daughter who was conceived with his sperm via in vitro fertilization.

Breit and the girl's mother were not married but lived together and underwent the medical procedure to have the child.

However, the mother of the now 3-year-old girl contends he cannot be the legal father because a state law says a sperm donor "is not the parent of a child conceived through assisted conception unless the donor is the husband of the gestational mother."

In dispute is an interpretation of the Virginia law that sperm donors cannot claim parental rights in assisted fertilizations — even when the mother agreed the donor is the father — if the two were not married at the time of conception or birth.

Among other things, Frank K. Friedman, representing the mother, argued that the law was consistent with others enacted by the General Assembly, such as adoption, in which an adopting couple must be married.

Breit's lawyer, Kevin Martingayle, argued that the day after the baby was born the two signed a sworn acknowledgement of paternity agreement naming Breit the biological father. They also agreed the girl would have a hyphenated last name consisting of their surnames.

The justices are expected to rule on the two cases in December.

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