Juli Porto has an article in this morning’s VTLAppeal, Is There a New Sheriff in Town Named “A.H. Tingler”?, analyzing SCOVA’s subtle importation of Twiqbal through A.H. v. Church of God in Christ, Inc. and Tingler v. Graystone Homes, Inc. Thoughtful and recommended. Among other things, Juli notes that the Court cited Twiqbal in A.H., then cited A.H. in Tingler as if it had always been Virginia law. She points out:
At the same time, it seems odd that with a plethora of Virginia caselaw on the topic, the Justices decided to overlook this cornucopia and instead invite two controversial federal cases into the fold. It also seems odd that the Court repeatedly decides to unnecessarily change fundamental and decades-old passages. When the Court makes these slight changes, it rightly introduces the authority for its broader proposition with the introductory signal “see.” This signal indicates that a cited authority “clearly supports” the proposition it cites, but it also indicates that “an inferential step” is necessary to get there. One “inferential step” is one thing. But continually stacking them can lead to an outcome that the game of “Telephone” often does: A statement very different from the original. And that’s why it matters. With A.H. Tingler, the Court may have signaled its willingness to continue to make incremental changes in Virginia’s pleading standard that will slowly but steadily bring us closer to the federal standard.
I think that she’s right. I also think that the Court recently used similar moves to
rewrite develop the law of products liability (Duncan –> Walters –> Evans) and vicarious liability (Parker –> Our Lady of Peace). It looked like it was headed toward importing Daubert, too, until it was brushed back by the General Assembly. [Edit: A reader points out that I should have added gross negligence to this list.]