Docket – November 7, 2018

4th U.S. Circuit Court of Appeals

United States v. Birchette (P), 4th Cir. (Wilkinson) from EDVA at Newport News (Allen).

After a jury convicted the appellant of several firearm- and drug-related offenses, he requested leave to interview jurors for evidence of racial animus. The district court did not abuse its discretion in denying his request.

In consideration of the Eastern District’s Local Rules, a party should give the court sound reason to believe that racial animus was a significant motivating factor in the juror’s vote to convict. Here, the appellant’s evidence that “a white lady” referenced race need not suggest that the speaker, assuming she was even a juror, had racial animus that in any way impacted her vote to convict. The statements fall short of the statements presented in Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 869 (2017), in which a juror allegedly argued for a guilty verdict because the defendant was Mexican.

Affirmed.

U.S. District Court – Virginia Eastern

Lindsay-Felton v. FQSR LLC, EDVA at Norfolk (Davis).

A plaintiff who resigned from her employment based on alleged race discrimination can take her hostile-work-environment claim to a jury, based on her immediate supervisor’s conduct. His comments about the plaintiff’s “culture” and his use of the term “cockroach” could be untethered to race, but a reasonable fact-finder could conclude otherwise, particularly if he or she also credited the supervisor’s repeated use of a racial slur in the workplace.

However, the evidence is insufficient as a matter of law to demonstrate that the plaintiff was constructively discharged or that her supervisor retaliated against her.

Motion for summary judgment granted in part and denied in part.

Virginia Circuit Courts

Fathi v. Nasir, Fairfax Cir. (Azcarate).

Plaintiff’s counsel lacked a reasonable objective basis for designating three doctors as expert witnesses who would testify as to plaintiff’s diagnosis and treatment following the defendant’s alleged sexual assault, battery, and intentional infliction of emotional distress.

While the plaintiff’s medical records do reference his allegations of sexual assault, the doctors don’t causally connect the assault to the plaintiff’s injuries. Instead, they reference the assault to describe why the plaintiff was admitted to the hospital or as a transcription of the plaintiff’s statements. Not one of the three doctors rendered an opinion as to whether the plaintiff’s injuries were caused by the defendant’s alleged conduct.

Plaintiff’s counsel had notice that none of the doctors were willing to testify as an expert witness, and no further reasonable inquiry was made as to whether any of them would testify or offer their expert opinion on causation. Without this testimony, it is unlikely that counsel would have been able to prove the plaintiff’s injuries and damages.

Defendants’ motion for sanctions granted. Plaintiff’s counsel shall pay $9,912.50 in attorneys’ fees.



Categories: Daily Dockets

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