Docket – February 5, 2019

4th U.S. Circuit Court of Appeals

Mountain Valley Pipeline LLC v. 6.5 Acres (P), 4th Cir. (Harris) from WDVA at Roanoke (Dillon).

In the eminent domain proceedings below, the district courts did not err in granting immediate possession of certain easements to Mountain Valley Pipeline LLC based on its deposits toward just compensation for the easements.

Where trials to determine just compensation for the many properties affected would take years to complete, it wasn’t necessary to delay pipeline construction until that time because the deposits were sufficient to ensure full compensation.


Court of Appeals of Virginia

King v. DTH Contract Servs. Inc. (P), CAV (Huff) from Va. WCC.

A random attack on a workers’ compensation claimant by someone the claimant knows is compensable if the employment generates a risk of assault to the claimant. Thus, a claimant may prove an assault arose out of his employment if he can prove the job subjected him to greater risk of assault—even if he knew his assailant—as long as no evidence suggests the motivation for the assault was personal.

Here, for reasons that were never determined, a former co-worker stabbed the appellant in the face while he was working alone as the overnight attendant at a rest area for the appellee-employer. The Workers’ Compensation Claimant erred in denying him benefits on grounds that the attack was not random because the victim knew the assailant. When an assailant’s motive is unknown, he can still prove the assault arose out of his employment if the employment placed him at a greater risk of assaults than the general public.

Reversed and remanded.

Blankenship v. Commonwealth (P), CAV (O’Brien) from Tazewell (Patterson).

In the appellant’s trial for attempted rape and related crimes, the circuit court did not abuse its discretion by admitting the defendant’s prior conviction as propensity evidence.

Code § 18.2-67.7:1 and its parallel Rule 2:413 provide an exception to the general prohibition against introduction of “other crimes, wrongs, or acts” as set out in Rule 2:404(b). Like Federal Rule of Evidence 414, Code § 18.2-67.7:1 and Rule 2:413 provide that a defendant’s prior sexual offense conviction may be considered on any matter to which it is relevant and is also subject to a balancing test set forth in Rule 2:403. So convictions for prior felony sexual offenses against minors are excluded only if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. To make this determination, trial courts are entitled to consider underlying details of the prior conviction, although only the mere conviction order is admissible into evidence.

The record supports the court’s decision that the probative value of the prior conviction outweighed the danger of unfair prejudice. Both cases involved the appellant exposing himself to the minor child of an acquaintance, and in both cases he used a vehicle to facilitate the offense. In each case, the significantly younger female victim was dependent on the appellant for transportation. It wasn’t error to find the prior conviction highly probative of the appellant’s propensity to commit the crime charged in this case to an extent that outweighed the risk of any unfair prejudice.


U.S. District Court – Virginia Eastern

Burke v. CHS Middle East LLC, EDVA at Alexandria (O’Grady).

A nurse stationed in Basra, Iraq has alleged facts sufficient to support a recurring retaliation claim against her employer, based on her complaint of sex discrimination.

One month after complaining about her supervisor’s sexual harassment, the plaintiff made another complaint about her supervisor’s retaliation for her first report. The next month, she was told she would be transferred to a less desirable work location, in violation of the company’s stated policy and despite the fact that other nurses were transferred to her original location around the same time. After she complained that the transfer was retaliatory, the employer cancelled it. However, four months later, the defendant allegedly created a policy it used as a pretext not to renew her employment contract. The policy was rescinded after she left.

Other claims were dismissed without prejudice.

Categories: Daily Dockets

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