14 May Virginia: Special Cases – a Lawyer’s Plea
On April 21, 2016, in the Fairfax appeal of Mikhaylon v. Sales, No. 150552, the Virginia Supreme Court held that the principles of judicial estoppel did not preclude Defendant from denying assault and battery in a civil suit after pleading guilty to assault and battery in a criminal prosecution. Id. at 5-7, 11. The guilty plea was admissible in evidence civilly under Va. Code §8.01-418, but was not a preclusive bar under judicial estoppel because the civil and criminal parties were not the same. Id. at 6-7. Plaintiff in Mikhaylon did not argue collateral estoppel or any other theory of issue preclusion. Id. at 2.
Mikhaylou also held that Plaintiff expert’s “previously undisclosed opinion on future medical treatment” was inadmissible over Defendant’s objection at trial. Id. at 9-11. Defendant “was under no obligation to file a pretrial motion to contest the admissibility of expert testimony on a subject that had never been disclosed to him”. Id. at 10. Contrary to the trial judge’s ruling, Defendant did not waive or forfeit his objection by waiting until trial to assert it. Id. at Id.