Mikhaylov v. Sales, 291 Va. 349

In 2011 defendant Dmitry Mikhaylov pleaded guilty in general district court to assault and battery; in 2013 plaintiff Lisa Sales sued him civilly for assault and related damages.
In the civil case Mikhaylov admitted he pled guilty but denied actually committing the offense and disputed the extent of Sales’s injuries; he also repeatedly sought to explain circumstances surrounding his guilty plea.
At a pretrial hearing the trial court ruled Mikhaylov judicially estopped from denying he committed the assault and battery based on his guilty plea, effectively deciding liability as a matter of law while leaving damages to the jury.
At trial the court sustained objections to Mikhaylov’s testimony denying an "attack" and instructed the jury that he could not deny he assaulted and battered Sales; the jury returned verdicts for Sales on assault and battery and intentional infliction of emotional distress.
During trial Sales’s medical expert, Dr. Lippman, gave opinions on future medical treatment (neck surgery and meniscal care) that had not been disclosed in expert designation or in deposition; Sales conceded the opinions were undisclosed.
The trial court allowed the undisclosed future-treatment opinions, reasoning defendant should have sought a pretrial motion; defendant objected and appealed both the judicial-estoppel ruling and the admission of undisclosed expert opinion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether judicial estoppel barred Mikhaylov from denying he committed the assault despite his guilty plea	Sales relied on Code § 8.01-418 and contended the guilty plea was admissible and sufficient to establish liability	Mikhaylov argued judicial estoppel did not apply because the criminal case was prosecuted by the Commonwealth (not Sales) and parties were not the same	Court reversed: judicial estoppel applies only when the same parties or their privies are involved; guilty plea is admissible evidence but not a preclusive estoppel here
Whether trial court abused discretion by admitting expert opinion on future medical treatment that had not been disclosed pretrial	Sales argued defendant should have anticipated future-treatment opinions and objected earlier; thus admission was fair	Mikhaylov argued nondisclosure violated Rule 4:1 and the pretrial scheduling order; Sales offered no adequate excuse for nondisclosure	Court reversed: trial court erred to admit undisclosed expert opinion; plaintiff bore the disclosure duty and cannot rely on speculation that defendant should have anticipated the opinion

Wooten v. Bank of Am., N.A., 290 Va. 306 (2015) (discussing historical scope and limits of judicial estoppel)
Bentley Funding Grp. v. SK&R Grp., 269 Va. 315 (2005) (judicial estoppel in Virginia generally requires same parties)
Koutsounadis v. England, 238 Va. 128 (1989) (guilty plea admissible in subsequent civil action involving same occurrence)
Lofton Ridge, LLC v. Norfolk S. Ry., 268 Va. 377 (2004) (distinguishing admissibility from preclusive effect and noting exception for derivative liability)
Selected Risks Ins. v. Dean, 233 Va. 260 (1987) (issue preclusion requires mutuality; Commonwealth and victim not treated as same party)
Woodbury v. Courtney, 239 Va. 651 (1990) (purpose of pretrial scheduling to allow discovery of expert opinions)
John Crane, Inc. v. Jones, 274 Va. 581 (2007) (party not relieved of disclosure duties because other side knew the expert)
Haring v. Prosise, 462 U.S. 306 (1983) (discussing limits of preclusive effect of criminal proceedings in civil suits)