The wrongful death lawsuits lodged against the state for Virginia Tech's
handling of the April 16, 2007, shootings go to the Virginia Supreme Court on
Tuesday in what is the first step toward a full court review.
Attorneys for both sides have appealed the case in which a Montgomery County jury found last year that Tech officials were negligent and awarded $4 million each to the families of Erin Peterson and Julia Pryde, two students slain in Norris Hall. Thirty other faculty and students were fatally shot that day on campus.
The jury awards were later reduced under a law capping damages against the state at $100,000 for each plaintiff.
This case is unusual, Chief Deputy Clerk Doug Robelen said, because both sides are asking for appeals. Normally, only one party to a case will appeal to the Supreme Court and be allowed to present a 10-minute oral argument to the panel.
This time, however, both sides are appealing on different grounds.
"It's not particularly common. Usually it's one side or the other. It's not something we see regularly," Robelen said.
Each side will have 10 minutes to present its case to the panel of justices. The panel will likely decide quickly if either or both appeals will be granted, perhaps as soon as the day of the hearing. However, it could be weeks before the parties know if their appeals have been granted, Robelen said.
Orders in the cases are entered by three deputy clerks, a process that can take days or weeks. Then the parties are notified of the decision by mail, Robelen said.
Because dozens of cases are heard on a writ panel day, the orders can get backed up. The appeals in the Tech case are two of 78 cases set to be heard before a writ panel in February, according to the court's hearing schedule.
The defense is arguing that the court should set aside the verdict on several grounds, including that presiding Judge William Alexander erred in his instructions to the jury.
The plaintiffs are asking that Tech President Charles Steger be reinstated as an individual defendant and the case sent back to the lower court for trial. Steger was dismissed on a technicality before the case went to Circuit Court in March.
A separate state Supreme Court case may play a role in the defense's appeal. In April, the court handed down a decision in the Burns v. Gagnon case, finding that a public high school assistant principal who was told that a student might be in a fight and did nothing to prevent it had no statutory duty to intervene or to warn of the potential danger. The student was attacked and permanently injured.
"The Burns case is problematic. There's no question about it," Alexander said before entering the jury verdict in the Tech case. But, the judge said, "there are enough factual and legal differences" between the two that the state Supreme Court ought to look at the Tech case and clarify the issues.
The defense will be represented by staff from the office of Attorney General Ken Cuccinelli and attorneys from the Richmond office of McGuireWoods. The team includes former Virginia Attorney General Bill Broaddus, who also helped defend the university in the March jury trial.
The plaintiffs are represented by noted civil law attorney Bob Hall of Hall & Sethi in Reston and Steve Emmert, an appellate attorney with Sykes, Bourdon, Ahern & Levy in Virginia Beach. Emmert publishes the legal issues blog Virginia Appellate News & Analysis.
Most Supreme Court appeals are denied. According to 2011 online statistics - the most recent available - 2,333 appeals were filed to the court. The justices accepted 152.
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