In Rowland v. American General Finance, Inc., the Fourth Circuit in an opinion by Judge Motz joined by Chief Judge Wilkins and Judge Wilkinson held that Judge Turk of the W.D. Va. erred in refusing to give the plaintiff's requested jury instruction regarding "mixed motive," applying the Supreme Court's decision from this term in the case of Desert Palace, Inc. v. Costa.
In the opinion, Judge Motz says, "there is no question that without the mixed-motive
instruction, Rowland had almost no chance of prevailing." That seems like a strange thing to say, and I'm not sure that I agree with it, as either necessary or even true.
The court went on to say that Judge Turk abused his discretion in admitting hearsay evidence, but concluded that there was no error in allowing the defendant to use exhibits and witnesses that were not disclosed in full compliance with the pre-trial disclosure requirements of Rule 26.