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Rule 702 Amendments Will Likely Lower Courts’ Tolerance of “Shaky” Expert Witness Testimony

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The long-awaited amendments to Federal Rule of Evidence 702 took effect across federal courts on December 1, 2023.  Companies and individuals whose trial and settlement outcomes come down to expert witness testimony should pay close attention to the growing body of caselaw defining the import of these amendments. Rule 702 provides a key tool for litigants to keep “junk science” out of trial, and imposes on courts an important “gatekeeping” responsibility to exclude any expert opinions that lack sufficiently reliable methodologies.  Although “[n]othing in the amendment[s] imposes any new, specific procedures” to the rule, the Advisory Committee’s comments strengthen the […]

Appellate Mediation Comes to Virginia Article

Appellate Mediation Comes to Virginia

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Published with the permission of the Virginia State Bar. Originally published in the Virginia Lawyer, Vol. 67/No. 3. The Supreme Court of Virginia has approved a pilot program for limited appellate mediation in the Court of Appeals of Virginia and Supreme Court of Virginia beginning January 1, 2019. The Court’s announcement recognizes the importance of expanding the availability of alternative dispute resolution to all levels of Virginia’s court system. The pilot program will run for two years. It is designed to support mediation in Virginia’s appellate courts so litigants may make informed decisions about resolution of their disputes and fashion […]

Vlaming Decision Article

Supreme Court of Virginia’s Vlaming Decision is a Legal Earthquake with Major Implications for Virginia Businesses, Organizations, and Government Entities

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I. Introduction and Executive Summary On December 14, 2023, a legal earthquake hit Virginia when the Supreme Court of Virginia issued its decision in Vlaming v. West Point School Board, 895 S.E.2d 705 (Va. 2023).  But, to the extent there is a “legal” Richter scale, that earthquake has yet to register.  Headlines covering the decision noted the result dealing with a hot-button social issue: a teacher fired for refusing to use a student’s preferred pronouns on religious grounds could continue to pursue his case against the school board for alleged violations of constitutionally protected religious rights.  But that context has […]

Pro-Employee Whistleblower Standard Embraced by SCOTUS Article

Pro-Employee Whistleblower Standard Embraced by SCOTUS

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On February 8, 2024, a unanimous United States Supreme Court ruled that whistleblowers bringing a retaliatory discharge claim under the Sarbanes-Oxley Act (“SOX”) are not required to prove that the employer acted with “retaliatory intent,” but need only prove that their “protected activity” was a “contributing factor” in the employer’s unfavorable personnel action.  The ruling reversed a Second Circuit decision which had overturned a $900,000 jury verdict in favor of a former employee against UBS Securities, LLC.[1] The Court’s ruling is yet another disappointment for businesses hoping for greater judicial protection from the growing number of retaliation claims.[2] Justice Sotomayor’s […]

New 2024 “Low Wage” Salary Level for Virginia Non-Compete Agreements Article

New 2024 “Low Wage” Salary Level for Virginia Non-Compete Agreements

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As of July 1, 2020, Virginia became one of twelve (12) states that imposed a ban  on the use of non-compete agreements for “low wage employees.”[1] At the time of adoption, the salary threshold for a “low wage employee” was $59,124 annually (or $1,137 per week). This salary threshold was not fixed by statute, but instead, the General Assembly adopted a moving target definition that ties the “low wage” salary threshold to the “average weekly wage of the Commonwealth” as determined by the Virginia Employment Commission. The practical effect is that a new average weekly wage is calculated before or […]

Forever Barred Article

Forever Barred? The Statute of Limitations and its Limited Exceptions When Bringing a Medical Malpractice Lawsuit

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Navigating how to bring a personal injury claim in Virginia can be very confusing without experienced medical malpractice attorneys. Adding to that confusion, bringing a lawsuit for an injury caused by medical negligence, or medical malpractice, by a healthcare provider, adds additional complexities. Some requirements are so important that failure to comply with them can derail a lawsuit before it even begins. One such requirement is that you must bring your lawsuit within the time allowed under Virginia law, or it will be forever barred. This is known as a statute of limitations. The General Rule What is a statute […]

Supplemental Authority on Appeal: Rules and Considerations Article

Supplemental Authority on Appeal: Rules and Considerations

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Despite a set schedule, appellate briefing is not necessarily closed prior to decision.  Even after oral argument, a party may submit “supplemental authorities” by letter to the clerk.  This letter is not limited to just citing the new authority—argument is ok too. The rules for submitting supplemental authority are similar across the Court of Appeals of Virginia, the Supreme Court of Virginia, and the Fourth Circuit. The “authority” cited must be “pertinent and significant.”  Temporally, it should “come to a party’s attention” (i) after the party’s petition/brief was filed or (ii) after oral argument, but before decision; the letter must […]

The DOL’s New Employee-Friendly Independent Contractor Rule Article Graphic

The DOL’s New Employee-Friendly Independent Contractor Rule

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Earlier this month, the Department of Labor (DOL) issued a new final rule intended to be effective March 11, 2024 that will address when a worker can be properly classified as an independent contractor. The misclassification of workers has been an issue of concern for several years, especially for worker-right advocates, which led to new legislation being passed in Virginia and many other states.[1] On the other hand, many business groups, especially those which rely heavily on independent contractors, such as those in the trucking and construction industry, and others in the gig-economy, are concerned that the new regulations unfairly […]

Do I Need an Autopsy for a Medical Malpractice/Wrongful Death Lawsuit?

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Our firm is often asked whether it is necessary to have an autopsy performed on your family member if he or she passes away, and you suspect that medical malpractice was the cause of your loved one’s death. The short answer is, that it is not a legal requirement in Virginia; however, wrongful death attorneys will agree that it is highly recommended. A wrongful death claim based upon medical malpractice is a claim that is brought when a family member dies as a result of the negligence of a healthcare provider. To have a meritorious medical malpractice action in Virginia, […]

New Cybersecurity Requirements For Healthcare Providers and Hospitals Article

New Cybersecurity Requirements For Healthcare Providers and Hospitals

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On December 6, 2023, the United States Department of Health and Human Services (HHS) initiated new cybersecurity requirements for hospitals in an effort to protect the healthcare sector from cyber-attacks. Hospitals and healthcare providers are particularly attractive targets for threat actors due to their size, dependence on technology, and access to data (including sensitive health-related data). Because sophisticated hackers appreciate the massive disruption and harm that an attack could cause to a healthcare provider and their data subjects, ransomware attacks are the weapon of choice for these threat actors. Gentry Locke is an experienced cybersecurity law firm that has data […]

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