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Contract Liability and Admission of Evidence: Improper Application of Rule of Evidence 403

We were engaged to represent the installer of a fire alarm system on an appeal to the Maine Supreme Judicial Court sitting as the Law Court following a $2,700,000 jury verdict in the trial court. During discovery, a contract was produced that inadvertently omitted the reverse side of one of the pages. That page included limitations on the installer’s liability. The mistake was ultimately uncovered and the page was produced prior to the close of discovery and prior to the completion of the installer’s employees’ depositions. On summary judgment, the trial court found that there was no discovery violation that required the court to strike the subject page, but omitted the page from the summary judgment record on the grounds that it might not be admissible at trial. At trial, the court excluded the page based on the balancing test found in Rule 403, finding that the late disclosure prejudiced the plaintiff camp and that the prejudice outweighed the probative value of the limitation on liability. On appeal, the Law Court found that the court did not abuse its discretion in refusing to strike the page as a discovery violation, but that it erred by excluding the document pursuant to Rule 403. In so holding, the Law Court noted the distinction between the prejudice required to strike evidence as a discovery violation and the prejudice required to exclude evidence pursuant to Rule 403. For a discovery violation, the prejudice looks to the opposing party’s capacity to respond to the evidence. For Rule 403, the prejudice is based on the specific nature of the evidence itself. As such, prejudice caused by unfair surprise during discovery is not, standing alone, grounds for finding prejudice under Rule 403. As a result, the Law Court vacated the $2,700,000 verdict and remanded the case to the trial court. Camp Takajo, Inc. v. SimplexGrinnell, L.P., 2008 ME 153

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Matter

International and Constitutional Law: Representation of Government of Mexico Seeking Parens Patriae Standing

Verrill attorneys represented the Government of Mexico in this high-profile appeal involving civil rights claims by over 1,000 Mexican migrant workers at an egg production farm in Maine. Mexico sought parens patriae status, specifically...

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Real Estate and Mortgage Law: Sufficiency of Mortgagee’s Notice of Right to Cure to Borrower

Verrill filed an amicus brief on behalf of the Maine Association of Mortgage Professionals in a case involving an issue of first impression under Maine law regarding the sufficiency of a statutory notice of...

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Environmental & Land Use Law: Protection of Private Coastal Property Rights for Conservation of Intertidal Habitat

Verrill successfully represented coastal landowners in first-impression litigation against a Canadian seaweed harvesting company with global operations to determine who owns the sea plants that are growing on private intertidal property in Maine. In...

News

Verrill Trial Attorneys Once Again Recognized as “Local Litigation Stars” in Benchmark Litigation 2021 Edition

(January 14, 2020) – Eight Verrill attorneys have again been recognized for their litigation skills in Benchmark Litigation’s 2021 edition. In addition to the firm’s eight individual rankings, both Karen Frink Wolf and Martha...

News

Fighting for the Future of In-house Attorney-Client Privilege

To be able to conduct or oversee effective internal investigations, in-house counsel must be able to assure witnesses that their communications with investigators, documents evidencing those communications, and documents the investigators create, will be...

Matter

Appellate Practice: Coastal Property Rights in Kennebunkport

We represented coastal landowners in a high-profile appeal before the Maine Supreme Court, in which the Town of Kennebunkport claimed ownership of Goose Rocks Beach against numerous homeowners whose deeds described property down to...

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Taxation and Constitutional Law: Amicus Brief to U.S. Supreme Court regarding Sales Taxation by States

Verrill represented the National Auctioneers Association as amicus curiae in the U.S. Supreme Court case South Dakota v. Wayfair, Inc . The case presented the issue of whether states could require out-of-state sellers to...

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Elections and Constitutional Law: Constitutionality of Ranked Choice Voting

Verrill Dana represented the League of Women Voters in two proceedings before the Maine Supreme Court relating to the constitutionality of Maine’s voter-approved ranked choice voting law. The first proceeding, Opinion of the Justices...

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Professional Regulation and Constitutional Law: First Amendment Challenge to State Law

We represented the Massachusetts Board of Public Accountancy in defending against a First Amendment challenge to a state law that barred accountants who were not certified public accountants from describing themselves as “accountants,” with...

Matter

Elections and Constitutional Law: Certification of Initiative Petition to Ban Casino Gambling

Verrill successfully represented ten Massachusetts citizens who challenged the Attorney General’s refusal to certify an initiative petition under the state constitution that would have banned casino gambling in Massachusetts. In a unanimous opinion, the...

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