Court Rejects Plaintiff’s Gameshow Approach to Litigation and Twice Denies Her Motion to Increase Her Demand

The First Case

The plaintiff filed a Complaint asking for an award of $250,000. She alleged she was entitled to this amount as compensation for injuries the defendant’s armored van caused her during a 2013 automobile accident.

The parties engaged in extensive discovery, during which the plaintiff identified only $17,143.30 in medical bills. The Court then set the case for trial.  About six weeks before the start of trial, the plaintiff filed a motion to increase the amount of her demand from $250,000 to $3.5 million.  In her motion, the plaintiff relied on the language of Rule 1:8 of the Rules of the Supreme Court of Virginia, which requires that “leave to amend shall be liberally granted in the furtherance of the ends of justice.”  The plaintiff cited case law in which the Supreme Court of Virginia affirmed the decision of the trial court to allow a plaintiff to double her demand the day before trial.  The plaintiff also argued that the increase would not prejudice the defendant.

In response, the defendant argued that the plaintiff had no reason to believe her case was worth more than she initially thought. The defendant supported this argument by pointing out that the plaintiff had repeatedly called her own credibility into question during discovery, that she had not sought or received additional medical treatment since filing her Complaint, and that her medical bills had not increased.  In fact, she filed a motion to exclude her own medical bills from evidence for the purported reason that they were not relevant.  The defendant also argued that he would be prejudiced if the Court permitted the plaintiff to increase her demand by fourteen times, because the defendant’s deadline to identify experts had already passed, and the new demand would be $500,000 in excess of his insurance policy.  The Court agreed and denied the plaintiff’s motion.  In response, the plaintiff voluntarily dismissed her case.

The Second Case

The plaintiff resumed this litigation about six months later, when she filed a second Complaint in the Fairfax County Circuit Court. The second Complaint was identical to the first, including that it demanded only $250,000.  At the same time as she filed the second Complaint, she filed another motion asking the Court to give her leave to increase her demand from $250,000 to $3.5 million.  The plaintiff’s second motion provided the same arguments as her first motion.

The defendant once again contested the motion. The defendant’s previous argument that he would be prejudiced by an increase was greatly weakened, because there was not yet any trial date or deadline for the disclosure of experts.  Instead, the defendant’s argument focused on the language of Rule 1:8, which required that the Court could only grant the increase “in furtherance of the ends of justice.”  The defendant argued that justice did not require any increase where the facts of the case had not improved for the plaintiff.  The defendant reminded the Court that the plaintiff previously sought to exclude evidence of her own medical bills.  Based on this, the defendant argued that the plaintiff was trying to rob the jury of any context for an award while at the same time creating a massive ceiling for that award.  The end result was a “gameshow approach” to litigation, in which the plaintiff forced each juror to guess at the amount of damages she was owed, and in which the plaintiff hoped the guesses would be high.  The Court once again denied the plaintiff’s motion.

The Takeaway

These are unusual and important rulings. Motions to increase demands are fairly common in Virginia.  Courts almost always grant these motions, even when trial is very close.  This is because the courts tend to focus on the language of Rule 1:8 requiring them to liberally grant requests to increase a demand.  The rulings of the Fairfax County Circuit Court return more balance to this analysis.  They emphasize the other side Rule 1:8: that grants to amend must also further the interests of justice.

Based on these rulings, defendants should seriously consider contesting motions to increase where one or more of the following conditions are met:

  • The plaintiff tries to increase the demand to an amount out of all proportion to the claimed damages
  • The new demand is higher than the limits of the defendant’s insurance policy
  • Nothing happened between the first and second demand to improve the plaintiff’s case
  • Something happened between the first and second demand that actually worsened the plaintiff’s case
  • The plaintiff provides no reason why the increase is justified
  • The plaintiff asks to increase her demand after the defendant’s deadline for disclosing experts

If you have any questions about how you can best defend against a plaintiff’s meritless request to increase their demand, feel free to contact me at