Virginia Injury Attorney Blog

Toward frustrating medical malpractice claims, hospitals, nursing homes and other healthcare institutions routinely keep “double books” about personal injury incidents – a laundered “patient chart” and other trenchant facility records about the patient. Healthcare institutions routinely withhold the latter from patients, claiming statutory quality-care/peer-review privilege under Va. Code Ann. §8.01-581.17. But Avery T. “Sandy” Waterman, Jr., Esq. champions victim patient rights and debunks ostensible privilege in succeeding posts.

The “statutory language [of §8.01-581.17] is clear, unambiguous, and unqualified.” HCA Health Servs. of Virginia, Inc. v. Levin, 260 Va. 215, 220 (2000). “When statutory language is clear and unambiguous, there is no need for construction by the court; the plain meaning of the enactment will be given it. Courts must give effect to legislative intent, which must be gathered from the words used, unless a literal construction would involve a manifest absurdity.” Id.

8.01-581.17 “provides a privilege in plain language which is limited narrowly to medical staff committees, utilization rule committees, and other committees specified in § 8.01-581.16.” Klarfeld v. Salsbury, 233 Va. 277, 284 (1987)(italics in original)(underlining added). “[T]he scope of § 8.01-581.17 is more limited [than § 8.01-581.16]. Stated differently, § 8.01-581.17 does not include an ‘other entity’ referred to in § 8.01-581.16 which is not a ‘committee’.” Id.

“Ambiguities in the [medmal] statutes should not be extended to enlarge the privilege.” Johnson v. Roanoke Mem’l Hosps., Inc., 9 Va. Cir. 196, 199 (Roanoke 1987). “Any ambiguities in [§ 8.01-581.17] must be strictly construed for, as the U.S. Supreme Court has noted, ‘exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for the truth’. United States v. Nixon, 418 U.S. 683, 709-10 (1974).” Curtis v. Fairfax Hosp. Sys., Inc., 21 Va. Cir. 275, 277 (Fairfax 1990). Recently writing for the Virginia Supreme Court, Justice Lemons reiterated that a statute (such as §8.01-581.17) “in derogation of the common law… must be ‘strictly construed and not…enlarged in [its] operation by construction beyond [its] express terms’.” Univ. of Va. Health Servs. Found. v. Morris, 275 Va. 319 (2008)(Lemons, J.)(denying immunity to a hospital healthcare provider in the context of medical malpractice).

Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006), a landmark medical malpractice case of Mr. Waterman, held “communications … provided to” covered committees were “not privileged”; “factual information of patient care” is not confidential or privileged; and use of factual patient care information in the peer review or quality care committee process does not render it privileged. “These limitations on the application of the privilege are consistent with preserving the confidentiality of the quality review process while allowing disclosure of relevant information regarding specific patient care and treatment. *** It is the deliberative process and the conclusions reached through that process that the General Assembly sought to protect. *** The deliberative process involving evaluation of patient safety conditions and the design of initiatives to improve the health care system both necessarily begin with factual information of patient care incidents occurring within the health care facility. The use of this factual information in some way in the peer review or quality care committee process alone is insufficient to automatically cloak such information with the protection of no-disclosure. Factual patient care information that does not contain or reflect any committee discussion or action by the committee reviewing the information is not the type of information that must ‘necessarily be confidential’ in order to allow participation in the peer or quality assurance review process. Rather such information is the type, contemplated by Subsection (C) of Code §8.01-581.17, which the General Assembly has specifically instructed should not be brought within the scope of those items entitled to the privilege under any other part of the section. Applying these principles, we conclude that the documents at issue here are of the nature of those described in Code §8.01-581.17(C) and are not privileged.” 272 Va. at 532-533 (emphasis added). Cf., Stevens v. Lemmie, 40 Va. Cir. 499, 508 (Petersburg 1996)(Lemons, J.).

Continue reading " Medical Malpractice: Va. Code Ann. § 8.01-581.17 – a Lawyer’s Overview " »

In a §1983 civil rights wrongful death suit, Avery T. “Sandy” Waterman, Jr., Esq. recently survived a federal court challenge to 755 days elapsing from filing to service of the pro se complaint. One unsuccessful defense line of attack was that the clerk’s multiple extensions were not granted within the original time periods for service. Webb v. Stevens, No. 5:05-CV-33-BO(1) Decision and Order (Mar. 17, 2008) aff’d Order (May 22, 2008),2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008).

Fed. R. Civ. P. Rule 4(m) is not subject to Fed. R. Civ. P. 6(b). Specifically, Rule 6(b) does not superimpose onto Rule 4(m) the ostensible requirement of moving for an extension prior to expiration of the 120-day time period. That would be contrary the plain clear language of Rule 4(m) and Rule 6(b)(2). It also ignores that the Court can act “on its own initiative” under Rule 4(m).

Rule 4(m), which pertains solely to service, provides in pertinent part: “If service is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative [shall ‘dismiss’ or ‘extend’].” Thus, Rule 4(m) explicitly: (1) is wholly self-enabling, does not reference Rule 6(b) and is not dependent upon it; (2) is triggered if and when the time already has expired without service, i.e., must not be invoked prior to expiration of the time; and (3) always is subject to the Court acting sua sponte. Per 1993 Amendment, a Rule 4(m) extension may be for “good cause” or no good cause.

Conversely, Rule 6(b) provides for general enlargement of time since, unlike Rule 4(m), most Rules with time periods do not contain their own provisions for enlargement. Rule 6(b) allows enlargement: (1) within court discretion prior to expiration of the time period; and, significantly, (2) for “excusable neglect” even after expiration of the time period.

Hence specific Rule 4(m) and general Rule 6(b) both provide for enlargement, yet have difference structure, timing and standards. Although Rule 6(b) may apply generally to service under Rule 4 – just as it does to other Rules – it does not rewrite (eviscerate) Rule 4(m), which since its 1993 Amendment is a much more liberal standard for enlargement of time for service.

Continue reading " Federal Wrongful Death Suit Service – a Lawyer’s Extension (FRCP 6) " »

In a §1983 civil rights suit for wrongful death, Avery T. “Sandy” Waterman, Jr., Esq. recently withstood challenge in federal court to the pro se complaint not having been served for 755 days after filing. In Webb v. Stevens, 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008), the clerk had granted multiple extensions of time under Fed R. Civ. P. 4(m) to effect service, including without any finding of good cause.

It is not necessary for a court to find “good cause” for a discretionary extension of time to be valid under Rule 4(m). In 1996 the United State Supreme Court pronounced: “Most recently, in 1993 amendments to the Rules, courts have been accorded discretion to enlarge the 120-day period ‘even if there is no good cause shown.’ See, Advisory Committee’s Notes on Fed. R. Civ. Proc. 4, 28 U.S.C. App.” Henderson v. United States, 517 U.S. 654, 662 (1996)(dicta)(emphasis added). Contrarily, in 1995, a Fourth Circuit panel erroneously had upheld the old “good cause” requirement, reciting incorrectly that “Rule 4(j) was edited without a change in substance and renumbered as Rule(m),” Mendez v. Elliot, 45 F.3d 75, 78 (4th Cir. 1995); falling out of step with every other circuit in the country. See, e.g., Horenkamp v. Van Winkle and Co., 402 F.3d 1129, 1132-1133 (11th Cir. 2005)(and cases cited therein).

Early on, most Fourth Circuit district courts blindly followed Mendez, either ignorant of Henderson or deferential to Mendez. But the current has shifted, swamping Mendez increasingly. Some courts expressly have rejected Mendez. See, e.g., Scruggs v. Spartanburg Reg. Med. Ctr., 1999 U.S. App. LEXIS 26227, *5-7 (4th Cir. 1999); Yongo v. Nationwide Affinity Ins. Co. of Am., 2008 U.S. Dist. LEXIS 14684, *25(E.D.N.C. Feb. 25, 2008); Cane Creek Cycling Components, Inc. v. Tien Hsin Indus. Co., Ltd., 2007 U.S. Dist. LEXIS 79957, *19 (W.D.N.C. Oct. 15, 2007); Bethae v. S.P. Richards Co., 2007 U.S. Dist. LEXIS 71170, *1-4 (D.S.C. Sep. 24, 2007) (plaintiff did not serve within 120 days, Magistrate recommended additional 90 days, and Judge granted additional 270 days as “reasonable”); Cochran v. Waldrop, 2007 U.S. Dist. LEXIS 13213, *3 (D.S.C. 2007); Bonds v. Electrolux Home Prods. Inc., 2006 U.S. Dist. LEXIS 88392, *10-12 (D.S.C. 2006); Bey v. Stamp, 2006 U.S Dist. LEXIS 70298, *4 (W.D.N.C. 2006), aff’d 2007 U.S. App. LEXIS 15186 (4th Cir. 2007); Lane v. Lucent Techs., Inc., 388 F.Supp.2d 590, 596-597 (M.D.N.C.2005); Melton v. Tyco Valves & Controls, Inc., 211 F.R.D. 288, 289-290 (D. Md. 2002); Tracy v. Angelone, 2002 U.S. Dist. LEXIS 16682 (W.D. Va. 2002); and Hammad v. Tate Access Floors, Inc., 31 F. Supp. 2d 524, 527-528 (D. Md. 1999). Others less confrontationally have rejected Mendez impliedly, expressly following Henderson and/or other courts without referring to Mendez. See, e.g., Giacomo-Tano v. Levine, 1999 U.S. App. LEXIS 26997, *4 (4th Cir. 1999); Shekhem v. Norfolk So. Corp., 2008 U.S. Dist. LEXIS 15819 *3-4 (W.D.Va. Feb. 28, 2008); Fabriko Acquisition Corp. v. Advisco Capital Corp., 2007 U.S. Dist. LEXIS 11882, *2 (W.D. Va. 2007); Atkins v. Winchester Homes, Inc., 2007 U.S. Dist. LEXIS 5791 (D. Md. 2007); Huber v. Maxim Healthcare Servs., 2006 U.S. Dist. LEXIS 8315, *1 (D. Md. 2006); Life Ins. Co. of N. Am. v. Batson, 2004 U.S. Dist. LEXIS 4305 *5 (D. Md. 2004); Coates v. Shalala, 914 F. Supp. 110, 112-113 (D. Md. 1996); and Fultz v. Rittlemeyer, 1995 U.S. Dist. LEXIS 5379, *4-6 (W.D. Va. 1995). Given the “stealth” rejection, it is difficult to know just how many other Fourth Circuit district courts are not following Mendez.

The Eastern District of Virginia has eroded its support for Mendez. Compare Reliable Tax & Fin. Servs., Inc. v. H&R Block E. Tax Servs., Inc., 212 F.Supp.2d 592, 595 (E.D. Va. 2002)(Smith, J.)(following Mendez) with United States v. Gulf Ins. Co., 225 F.R.D. 526, 528 (E.D. Va. 2005)(Smith, J.)(“some question”) and United States v. Sea Bay Dev. Corp., 2007 U.S. Dist. LEXIS 33734, *19 (E.D. Va. 2007)(Jackson, J.)(“questionable nature of Mendez”). The District of Maryland repeatedly has rejected Mendez over time. Compare Braithwaite v. Johns Hopkins Hosp., 160 F.R.D. 75 (D. Md. 1995) with Atkins, Huber, Batson, Melton, Hammad and Coates.

“Circumstances in which the advisory committee suggests that the Court should exercise its discretion include pro se claims and cases in which ‘the application of statute of limitation would bar the refiled actions.’ Fed. R. Civ. P. 4(m) advisory committee’s note (1993).” Coates, 914 F.Supp. at 113 (emphasis added). Hence a number of courts have applied Rule 4(m) in those circumstances extending the time for service without requiring “good cause”. “In certain cases, extension of time for service is warranted because the Plaintiff’s claims would otherwise automatically be barred by application of the statute of limitations.*** The absence of a limitations issue does not, of course, preclude the extension given the other considerations discussed.” Yongo,* 29 (emphasis added). See also, e.g., id., Lane, Tracy and Fultz. Indeed, in Tracy, the Western District of Virginia vacated a prior dismissal order, reinstated the case on the docket and then extended the time for service with no “due diligence” or other “good cause”.

Continue reading " Federal Wrongful Death Suit Service – a Lawyer’s Extension (FRCP 4) " »

Recently, wrongful deaths were reduced by almost 50% and untoward personal injuries were reduced by over 35% by a 19-item non-cardiac surgical safety checklist. The New England Journal of Medicine reported this on January 29, 2009, by article, “A Surgical Safety Checklist to Reduce Morbility and Mortality in a Global Population.”

During October 2007-September 2008, roughly 4,000 patients in 8 urban hospitals worldwide participated in the World Health Organization’s Safe Surgery Saves Lives program. The study findings proved its premised, thereby indicating prevalent medical malpractice: “Surgical complications are common and often preventable.”

The checklist principally consists of verifying patient identity, allergies and blood type; surgical site, procedure, and critical events; and access to blood, imaging, and certain instrumentalities. Verification occurs before anesthesia induction, before skin incision, and before leaving the operating room.

The implication is that many wrongful deaths and personal injuries are caused by medical malpractice in non-cardiac surgery due to healthcare providers neglecting simple routine verification procedures. Fortunately, these serious untoward consequences are readily avoidable.

The standard of review by a District Judge for a nondispositive motion decided by a Magistrate is whether the decision is “clearly erroneous or is contrary to law”. See, Fed. R. Civ. P. 72(a); and 28 U.S.C. §636(b)(1)(A). In Webb v. Stevens, No. 5:05-CV-33-BO(1) Order (E.D.N.C. May 22, 2008), a §1983 civil rights wrongful death suit, the Judge summarily affirmed under that standard an appeal from a grant of leave to amend by the Magistrate.

“A motion to amend is generally considered a nondispositive pretrial motion, subject to Rule 72(a) standard of review.” Young v. James, 168 F.R.D. 24, 26 (E.D. Va. 1996). In Young, the amendment sought to rename one of the plaintiffs, destroying the court’s jurisdiction over the cause; and defendants opposed, claiming bad faith, prejudice and futility. The District Judge followed the liberal amendment mandate of Fed. R. Civ. P. Rule 15(a) and Foman v. Davis, 371 U.S. 178, 182 (1962), and affirmed the analysis and holding of the Magistrate in Young as not “clearly erroneous or contrary to the law”. Id. at 27-28.

The Magistrate is “clearly erroneous” only if “the reviewing court…is left with the definite and firm conviction that a mistake has been committed”. United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). This “clearly erroneous and contrary to law” standard has been followed by North Carolina and other sister Fourth Circuit courts in affirming Magistrates. E.g., Neuberger Berman Real Estate Income Fund, Inc. v. Lola Brown Trust Co., 1B, 2006 U.S. Dist. LEXIS 11358, *5 (D. Md. Mar. 20, 2006). Gardendance, Inc. v. Woodstock Copperworks, Ltd., 230 F.R.D. 438, 447-448 (M.D.N.C. 2005).

Under the applicable standard of review, a District Judge substituting his personal decision-making or that of a “reasonable person” on de novo review is reversible error. “Since it does not appear that Judge Spiegel applied the clearly erroneous standard, the case is remanded for consideration under that standard. It seems that Judge Spiegel weighed the evidence de novo and decided that a reasonable person could conclude that there was a coverup. Whether a reasonable person could find evidence of a coverup that may support a finding of the crime-fraud exception to the attorney-client privilege is irrelevant for the purposes of Judge Spiegel’s decision. What is relevant for Judge Spiegel to consider is whether the Magistrate Judge was clearly erroneous when he found that no crime-fraud exception could be found. Therefore, we remand this case to the district court for determination of whether the Magistrate Judge clearly erred in his rejection of crime-fraud exception.” Chesher v. Allen, 122 Fed. Appx. 184, 187-188 (6th Cir. 2005).

The sufficiency of §1983 civil rights wrongful death and other federal suits is scrutinized in the light most favorable to the plaintiff, particularly when the initial complainant is pro se. Avery T. “Sandy” Waterman, Jr., Esq. recently prevailed on the point against Rule 12 Motions to Dismiss in Webb v. Stevens, 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008), a civil rights wrongful death case under 42 U.S.C. §1983.

The United States Supreme Court has declared that the general “inartfully pleaded” allegations of a pro se §1983 civil rights complaint are held to “less stringent standards”. See, e.g., Haines v. Kerner, 404 U.S. 519, 520-521 (1972) (reversing Fed. R. Civ. P. 12 dismissal). “It is now established doctrine that pleadings should not be scrutinized with such technical nicety that a meritorious claim should be defeated, and even if the claim is insufficient in substance, it be amended to achieve justice. [A] complaint, especially a pro se complaint, should not be dismissed summarily unless ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief….” Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.), cert. denied, 439 U.S. 970 (1978) (emphasis in original) (reversing Rule 12 dismissal of pro se §1983 civil rights complaints). “The Fourth Circuit takes the position that its district courts must be especially solicitous of civil rights plaintiffs….This solicitude for a civil rights plaintiff with counsel must be heightened when a civil rights plaintiff appear pro se.” Id.

Since “a pro se complaint must be read liberally,” the “power summarily to dismiss…is limited”. See, e.g., Hudspeth v. Figgins, 584 F.2d 1345, 1347 (4th Cir. 1978) (reversing Rule 12 dismissal of pro se §1983 civil rights complaint). See also, e.g., Bolding v. Hoshouser, 575 F.2d 461 (4th Cir.), cert. denied, 439 U.S. 837 (1978)(manifest that broad sweeping pro se complaint of constitutional deprivations is immune from Rule 12 dismissal). “Pro se complaints and petitions should be construed liberally by this court. Such pro se complaints and petitions are held to a less stringent standard than those drafted by attorneys. A federal district court is charged with liberally construing a complaint or petition file by a pro se litigant to allow the development of a potentially meritorious case. Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 66 L.Ed.2d. 163 (1980).” Phomphackdi v. Spartanburg County, 2007 U.S. Dist. LEXIS 19895, *4 (D.S.C. Mar. 20, 2007)(citation omitted).

Rule 12 tests the sufficiency of a Complaint. On 12(b)(6) motion, “we accept as true the allegations of the complaint.” Adams v. Bain, 697 F.2d 1213, 1217 (4th Cir. 1982) (reversing and remanding dismissal of §1983 civil rights action). In addition, the court also may consider “matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint.” Wu v. Tseng, 2007 U.S. Dist. LEXIS 5025 (E.D. Va. 2007)(quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure §1357 (1990). See, Anheuser Busch, Inc. v. Schmoke, 63 F.3d 1305, 1312 (4th Cir. 1995), vacated on other grounds, 517 U.S. 1206 (1996). “The same standard is applied to a Rule 12(c) motion as for a Rule 12(b)(6) motion to dismiss.” See, e.g., Syngenta Crop Protection, Inc. v. United States, 444 F.Supp.2d 435, 444 (M.D. N.C. 2006).

It is hornbook law that the Court cannot consider Exhibits submitted by Defendant without converting the 12(b)(6) motion to a Rule 56 motion, giving Plaintiff sufficient advance notice of the same, and permitting full discovery with which to oppose it. A 12(b)(1) motion is “critically different” than a 12(b)(6) motion: “Unlike the procedure in a 12(b)(6) motion where there is a presumption reserving the truth finding role to the ultimate fact finder, the court in 12(b)(1) hearing weighs the evidence to determine jurisdiction.” See, e.g., Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (§1983 civil rights dismissal reversed and remanded). “A trial court may consider evidence [on a 12(b)(1) motion] by affidavit, depositions or live testimony without converting the proceeding to one for summary judgment.” Id. Significantly, however, 12(b)(1) motions should be denied where underlying “jurisdictional facts are intertwined with the facts central to the merits of the dispute. It is the better view that in such cases the entire factual dispute is appropriately resolved only be a proceeding on the merits.” Adams.

The timeliness of §1983 civil rights wrongful death and other federal suits depends on when the complaint physically was delivered to a Court officer, not when it is stamped “filed” and/or its fees are paid. Avery T. “Sandy” Waterman, Jr., Esq. recently has survived the point in Webb v. Stevens, No. 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008), a civil rights wrongful death case under 42 U.S.C. §1983. In Webb, the pro se plaintiff timely delivered the complaint, but did not pay the filing fee; and then was denied his petition to proceed in forma puaperis (such that his complaint was not stamped “filed” until he belatedly paid the filing fee).

The “Federal Rules of Civil Procedure govern the commencement of this suit for purposes of tolling the state statute of limitations.” Lewis v. Richmond City Police Dept., 947 F.2d 733, 735 (4th Cir. 1991)(holding pro se litigant timely “filed” by depositing his §1983 complaint in prison mailbox). “As long as the complaint is deemed filed within the limitations period, the action is timely.” Id. (citing Fed. R. Civ. P. 3) (emphasis added). “The phrase ‘filing a complaint’ as used in Rule 3, means nothing more than delivery of the complaint to an officer of the court authorized to receive it – under Rule 5, the clerk of court or a judge thereof.” See, Robinson v. Waterman S.S. Co., 7 F.R.D. 51, 54 (D.N.J. 1947) (amended complaint delivered to judge, but not clerk, timely). See also, e.g., Robinson v. Yellow Freight Sys., 892 F.2d 74 (4th Cir. 1989)(pro se complaint); Ladd Furniture, Inc. v. Ernst & Young, 1998 U.S. Dist. LEXIS 173 45, *20 (M.D.N.C. 1998)(third-party complaint attached to motion for leave to amend filed timely despite grant after statute of limitations ran).

Wells v. Appel, 103 F.Supp.2d 893 (W.D. Va. 2000) is on point. In Wells, plaintiff timely delivered the clerk a complaint and an application to proceed in forma pauperis on November 29, 1999; but the court denied her application, and she did not pay her filing fee and correspondingly her complaint was not marked “filed” until January 12, 2000, after the statute of limitation had run. Id. 894-895. Nonetheless, Wells followed the “better rule” that a Complaint be deemed “filed” as of “the date on which it was first received by the clerk’s office,” regardless “the untimely payment of the required filing fee”. Id. at 896-899. See, also, e.g., Parissi v. Telechron, Inc., 349 U.S. 46, 47 (1955)(untimely filing fee payment did not “vitiate the validity” of appeal notice); Hunt v. Stone, 39 F.3d 1177 (4th Cir. 1994) (“Appellant’s petition should have been deemed filed on the date that the district court clerk received it along with what Appellant reasonably believed was the filing fee.”); Robinson v. Poe, 272 F.3d 921, 922-923 (2001), reh. en banc denied 2002 U.S. App. LEXIS 585 (7th Cir. 2002)(pro se §1983 complaint timely “filed” upon receipt by clerk, despite its return for lack of required filing fee; as local rule “cannot defeat a right, which in this case is the right to arrest the running of the statue of limitation by filing a complaint in the district court, that is conferred by the national rules”); McDowell v. Delaware State Police, 88 F.3d 188, 190-191 (3d Cir. 1996) (“Although a complaint is not formally filed until the filing fee is paid, we deem a complaint to be constructively filed as of the date that the clerk received the complaint – as long as the plaintiff ultimately pays the filing fee or the district court grants the plaintiff’s request to proceed in forma pauperis.”); Cintron v. Union Pac. R.R. Co., 813 F.2d 917, 919-921 (9th Cir. 1987)(complaint constructively filed upon delivery to clerk despite rejection for non-compliance with local rules and filing fee statute); Rodgers v. Bowen, 790 F.2d 1550, 1551-1553 (11th Cir. 1986); Lyons v. Goodson, 787 F.2d 411, 412 (8th Cir. 1986); Leggett v. Strickland, 640 F.2d 774, 776 (5th Cir. 1981); In re Horob, 54 B.R. 693, 696 (Bankr. D.N.D. 1985); Johnson v. The Univ. of Va. Med. Ctr., 2007 U.S. Dis. LEXIS 3122, * 9 (W.D.Va. Jan. 17, 2007) (in forma pauperis Complaint is deemed “filed” when physically delivered to the Clerk’s office, not when formally docketed subsequently upon payment of fee); Cornett v. Weisenburger, 454 F.Supp.2d 544 (W.D. Va. 2006); and In re Emory, 219 B.R. 703, 708 (Bankr. D.S.C. 1998).

Fed. R. Civ. P. 15(a) strongly favors leave to amend being granted, including in §1983 civil right suits for wrongful death. Avery T. “Sandy” Waterman, Jr., Esq. recently was granted leave to amend a wrongful death suit against a former North Carolina state trooper with Rule 12 motions to dismiss pending. Webb v. Stevens, No. 5:05-CV-33-BO(1) Decision and Order (Mar. 17, 2008), aff’d Order (E.D.N.C. May 22, 2008).

Webb held that amendment was not futile, unduly prejudicial, or in bad faith. See, Decision and Order at 4-7. Adding “an additional theory of recovery to the facts already pled…before any discovery has occurred” is permissible. Id. at 3.

Mr. Waterman’s success in Webb follows the Fourth Circuit reaffirming the liberal mandate of Rule 15 in 2006 and 2007, twice vacating and remanding for district court denials of leave to amend for abuse of discretion, even in the face of delay. “Delay alone… is an insufficient reason to delay the plaintiff’s motion to amend.” Laber v. Harvey, 438 F.3d 404, 427 (4th Cir. 2006)(en banc). Sitting en banc, the Fourth Circuit in Laber concluded that it was an abuse of discretion to deny Plaintiff’s Motion for Reconsideration and to Amend because Plaintiff’s amendment was not in bad faith, prejudicial or futile. Id. at 429. To the same effect is the Fourth Circuit’s more recent decision following Laber in Sciolino v. City of Newport News, Virginia, 480 F.3d 642, 651 (4th Cir. 2007)(Rule 15 motion to file a second amended §1983 civil rights complaint after entry of judgment of dismissal was appropriate).

“Rule 15(a) directs that leave to amend ‘shall be freely given when justice so requires.’ This liberal rule gives effect to the federal policy in favor of resolving cases on their merits instead of disposing of them on technicalities. See, Conley v. Gibson, 355 U.S. 41,48, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)(‘The Federal Rules reject the approach that pleading is a game of skill in which one misstep counsel may be decisive to the out outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.’); Ostrzenski v. Seigel, 177 F. 3d 245, 252-53 (4th Cir. 1999)(‘The Federal Rule policy of deciding cases on the basis of substantive rights involved rather on technicalities requires [the] Plaintiff be given every opportunity to cure a formal defect in his pleading.’(quoting 5(A) Charles Allen Wright & Arthur R. Miller, Federal Practice & Procedure § 357(2d ed. 1999))).”

Earlier, the Fourth Circuit reversed a district court that denied amendment because of “a change in the theory of recovery.” Wards Elecs. Serv. Inc. v. First Commercial Bank, 819 F.2d 496 (4th Cir. 1987). The “fact than an amendment changes the plaintiff’s theory of the case will not suffice as a reason for denial absent a showing of prejudice, bad faith, futility, or dilatoriness.” Id. At 497. “Under the circumstances, we think that Foman’s spirit required permitting this second amendment still early in the pre-trial process.” Id. (emphasis in original).

Continue reading " Federal Wrongful Death Suit Amendment – a Lawyer’s Complaint (FRCP 15) " »

Federal wrongful death suits properly are amended to substitute the correct estate representative after the limitation period has run. The leading Virginia case was litigated by Avery T. “Sandy” Waterman, Jr., Esq. Zhu v. Rocco Farms, Inc., 1998 U.S. Dist. LEXIS 21781 (W.D. Va. 1998). A leading North Carolina case also was litigated by Mr. Waterman. Webb v. Stevens, No. 5:05-CV-33-BO(1) Decision and Order (Mar. 17, 2008), aff’d Order (E.D.N.C. May 22, 2008).

Zhu found that Federal procedural rules plainly provided for such amendment and relation back in wrongful death suits. “Under the federal rules, when the wrong party has brought a suit, the federal court may substitute the real party in interest in order to avoid forfeiture and injustice. See Levinson v. Denpree, 345 U.S. 648, 97 L.Ed. 1319, 73 S. Ct. 914 (1953); Fed. R. Civ. P. 15 and 17. The court may ‘continue the action, even though the state law under its statute of limitations might not allow relation back and would require dismissal.’ 3A James Wm. Moore et al., Moore’s Federal Practice §17.15 (2d ed. 1982). The statute of limitation does not pose an obstacle to the change in parties since Rule 17 states that ‘substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.’ Fed. R. Civ. P. 17(a); see also 6A Charles Alan Wright, et al. Federal Practice Procedure §1555 (2d ed. 1990).” Id. at *3-4. Indeed, lenient Fed. R. Civ. P. 17(a) prohibits dismissal “on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for . . . substitution of the real party in interest”. Id. at *4 (emphasis added). Zhu concluded: “The court believes that substituting personal representatives, absent a showing of improper or deceitful conduct by the plaintiff, constitutes just cause for abating an action until appointed.” Id. at *5.

Recently in Webb, a §1983 civil rights case for wrongful death, the court granted amendment and substitution of estate representatives with motions to dismiss over the point pending. Webb substituted an ancillary estate administrator qualified in the forum state of North Carolina instead of the estate administrator qualified in Virginia. See, Decision and Order at 4.

Earlier in McNamara v. Kerr-McGee Chem. Corp., 328 F.Supp. 1058 (E.D.N.C. 1971), this Court reached the same result. It did so despite holding incorrectly that North Carolina law must be applied to another wrongful death action under diversity jurisdiction, because North Carolina had adopted the relevant Federal rules. “The court is of the opinion that the North Carolina Supreme Court would hold that the enactment of Rule 15(c) changes the North Carolina law to conform to the majority state court rule and to the established rule in the Federal courts. The court is further of the opinion that the requirements of Rule 15(a) and (c) are met, and therefore, in the interest of justice, plaintiff’s motion to amend the complaint…is hereby granted. The court is also of the opinion that plaintiff’s motion to substitute a party plaintiff and to ratify the complaint must be granted [under North Carolina Rule 17(a)].” Id. at 1059. Subsequent to McNamara, consistent with Zhu, the Fourth Circuit held that Federal procedure governed in a diversity action, even if State procedure otherwise would command a different result. Davis v. Piper Aircraft Corp., 615 F.2d 606, 611 (4th Cir.), cert. denied 448 U.S. 911 (1980).

“Indeed, amendments to pleadings which substitute the real party in interest for a person who did not enjoy that capacity when he brought the claim is a more drastic change in the kind of claimant than an amendment which merely changes the capacity in which the same named individual is suing. Rule 17(a) expressly authorizes the former substitution of one party for another.” Burcl v. North Carolina Baptist Hosp., Inc., 306 N.C. 214, 230, 293 S.E.2d 85, 95 (1982). The Western District sua sponte has stayed a motion to dismiss to “permit Plaintiff or a similarly situated substitute … reasonable time to seek proper qualification as ancillary administrator or personal representative, to file a supplemental pleading establishing such qualification, and thereby to ratify the commencement of this action,” see, e.g., Janean v. Pitman Mfg. Co., 1991 U.S. Dist. LEXIS 19322 (W.D.N.C. 1991); and the Fourth Circuit even has raised the possibility of remand for that purpose. See, e.g., Messer v. American Gems, Inc., 612 F.2d 1367, 1374 (4th Cir. 1980).

An estate representative filing a federal suit for wrongful death pro se is not impermissible per se and does not constitute unauthorized practice of law. 28 U.S.C. §1654 expressly provides for pro se representation in Federal Court. Moreover, even assuming arguendo that such a temporary practice is disallowed, it is not just grounds for dismissal where the litigant subsequently retains legal counsel. See, e.g., Witherspoon v. Jeffords Agency, Inc., 120 Fed. Appx. 999 (4th Cir. 2005); Webb v. Stevens, No. 5:05-CV-33-BO(1) Decision and Order (E.D.N.C. Mar. 17, 2008) and 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008); Gallo v. United States, 331 F.Supp.2d 446 (E.D. Va. 2004); Brown v. Ortho Diagnostic Sys., Inc., 868 F.Supp. 168, 172 (E.D. Va. 1994); and Wolford v. The Budd Co., 149 F.R.D. 127, 129-131 (W.D. Va. 1993)(North Carolina lawyer filing in Virginia federal court “mere technical defect” cured by retaining Virginia “to do substantial justice” versus “lock the courthouse door”).

The Fourth Circuit addressed an estate representative appearing pro se in a wrongful death suit. It found “no reversible error” in dismissal, but only after plaintiff was given opportunity to retain counsel of record and failed to do so. See, e.g., Witherspoon.

More recently in Webb, a §1983 civil rights suit for wrongful death, the court denied summary dismissal of the pro se complaint where the estate representative retained counsel of record. Avery T. Waterman, Jr., Esq. of Newport News and Williamsburg, Virginia, appeared, briefed and argued in Webb in North Carolina.

Earlier, in Gallo, a parent filed a personal injury action pro se in a representative capacity for a child. The Gallo court concurred with other courts that dismissal would be “unwarranted” because “appointment retention of counsel would solve the defect”; and also “would be a particularly harsh result in this case because any subsequent claim filed…after dismissal of this action would be effectively barred by the statues of limitation”. 331 F.Supp.2d at 448. Thus, Gallo concluded “the proper course is not to dismiss [the] case, but rather to allow Ms. Gallo to take measures to retain an attorney for her daughter.” Id. at 449. Brown, which likewise involved a parent appearing pro se for a child, holds the same. “And dismissal of [plaintiff’s] claim on this ground is certainly unwarranted. Rather, all that is required is for the Court to appoint counsel for [plaintiff], which now has been done.” 868 F.Supp. at 172.

Limiting access to courts by wrongful death and other personal injury victims and/or conspiring to abridge their constitutional protections under color of state law may violate federal civil rights under 42 U.S.C. §1983. Avery T. “Sandy” Waterman, Jr., Esq. recently withstood Fed. R. Civ. P. 12 motions to dismiss such claims on allegations that officers tampered with evidence of a wrongful death victim in Webb v. Stevens, No. 5:05-CV-33-BO(1) Order (Mar. 17, 2008) and 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008).

In 1978, the Fourth Circuit established that citizens “have a constitutional right of meaningful access to the courts which a state may not abridge nor impair, nor may it impermissibly burden its exercise.” Hudspeth v. Figgins, 584 F.2d 1345, 1347 (4th Cir. 1978)(§1983 claim stated). “It is enough that the [constitutional misconduct] was intended to impose a limitation upon the [citizen’s] right of access to the court and was reasonably calculated to have that effect.” Id. at 1348.

In 1987, the Fourth Circuit established that a police officer had a “duty to act,” i.e., a duty “to protect [a citizen] from illegal excesses perpetrated by [another officer present];” and that tacit conspiratorial liability for a §1983 civil rights claim could be predicated on an officer’s failure to protect in such circumstances. Further, the Fourth Circuit established that engagement in “concerted activity” could be inferred from minimal participatory physical conduct by an officer even in the absence of an oral agreement with another officer to deprive constitutional rights. Jackson v. Pantazas, 810 F.2d 426, 430 (4th Cir. 1987)(§1983 excessive force conspiracy claim). Browning v. Snead, 886 F.Supp. 547, 552 (S.D. W.Va. 1995) followed Jackson.

In 1992, the Fourth Circuit outlined, “The district judge did not err by instructing the jury that a claim of conspiracy under 42 U.S.C § 1983 can succeed by a mere showing of acquiescence.” Hafner v. Brown, 983 F.2d 570, 576 (4th Cir. 1992)(§1983 excessive force conspiracy claim). The Fourth Circuit in Hafner emphasized, “Acquiescence can amount to a conspiracy agreement when, as here, one police officer watches an open breach of the law and does nothing to seek its prevention.” Id. at 578. Mere participation in unconstitutional conduct can constitute “concerted activity” without any explicit agreement. Id. at 577. Thus, it is not necessary expressly to show or even allege a specific conspiratorial agreement; it suffices simply to allege and show “mere acquiescence” to prove a conspiracy.

Denial of medical care under color of state law may state a claim for wrongful death or personal injuries under 42 U.S.C. §1983. A leading civil rights case of Avery T. “Sandy” Waterman, Jr., Esq., clearly establishes “deliberate indifference to serious medical needs” as a constitutional violation. Kane v. Hargis, 987 F.2d 1005, 1008-1009 (4th Cir. 1993).

“A duty to render medical care is generally thought of as arising under the Due Process Clause or the Eighth Amendment.” See, e.g., DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 200, 109 S. Ct. 998, 103 L.Ed.2d. 1134, 1139 (D. Minn. 2005). Under the Fourteenth Amendment, pretrial detainees are entitled to at least as much protection as under the Eighth Amendment.” Id. at 1141. Where an officer arrests by shooting and disabling and then denies the arrestee medical care, there is “no reason to carve out a separate standard for arrestees, a subset of pretrial detainees. Bell v. Wolfish, 441 U.S. 520, 523, 99 S. Ct. 1861, 1865-66, 60 L.Ed.2d. 249 (1989). Patrick v. Lewis, 397 F.Supp.2d. 447 (1979).” Nerren v. Livingston Police Dep’t, 86 F.3d. 469, 472-473 (9th Cir. 1996).

Hence, cases have denied qualified immunity for §1983 civil rights claims where defendants have denied arrestees medical attention. For example, in Nerren, supra, the arrestee had fled the scene of an automobile accident and unlawfully was denied requested medical attention upon apprehension. In Torres v. The City of Chicago, 123 F.Supp.2d. 1130 (N.D. Ill. 2000), plaintiff stated a §1983 claim where the police failed to secure a shooting victim the necessary immediate medical attention and he died. In Penilla v. City of Huntington Park, 115 F.3d. 707 (9th Cir. 1997), the police actually frustrated and delayed the victim receiving gravely needed medical care from paramedics, causing his death. To the same effect is Webb v. Stevens, 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008), a wrongful death case litigated by Mr. Waterman, in which qualified immunity was denied under Rule 12 for allegedly conspiring officers delaying emergency medical treatment. Also, “G.S. 15A-503 imposes a duty on police who arrest an unconscious or semi-conscious person to make a reasonable effort to provide appropriate medical care.” Doerner v. City of Asheville, 90 N.C. App. 128, 130, cert. denied 323 N.C. 172 (1988).

No specific precedent for unconstitutionality is necessary for a §1983 civil rights claim where the unlawfulness indisputably is apparent. Factually dissimilar precedent does not entitle an offender qualified immunity where his misconduct is obviously unconstitutional. See, e.g., United States v. Lanier, 520 U.S. 259, 271 (1997). “[W]e must also keep in mind the Supreme Court’s warning that this is not a mechanical exercise, and that the test is not whether ‘the very action in question has previously been held unlawful,’ but rather whether pre-existing law makes the unlawfulness of an act ‘apparent.’ Accordingly, a constitutional right is clearly established for qualified immunity purposes not only when it has been ‘specifically adjudicated’ but also when it is ‘manifestly included with in more general applications of the core constitutional principle invoked.’ Thus, ‘when the defendants’ conduct is so patently violative of the constitutional right that reasonable officials would know without guidance from the courts that the action was unconstitutional, closely analogous pre-existing case law is not required to show that the law is clearly established.’ And to hold otherwise would allow an officer who understood the unlawfulness of his actions to escape liability simply because the incident case could be distinguished on some immaterial facts, or worse, because the illegality of the action was so clear that it had seldom before had been litigated.” Clem v. Corbeau, 282 F.3d. 543, 553 (4th Cir. 2002)(italics in original)(citations omitted).

A federal civil rights suit for wrongful death under 42 U.S.C. §1983 was cleared for discovery and Court-facilitated mediation at Status Conference earlier this month. The case is Webb v. Stevens, No. 5:05-CV-33-BO(1) in the Eastern District of North Carolina, with Avery T. “Sandy” Waterman, Jr., Esq. as lead counsel.

Webb alleges multiple civil rights violations, including objectively unreasonable: (1) use of deadly force; (2) denial of first responding emergency medical attention; and (3) conspiracy to tamper with evidence and deny court access. Such implicates the Fourth, Eighth and Fourteenth Amendments to the U.S. Constitution.

The defendant Caucasian North Carolina state trooper stopped an African-American motorist in rural North Carolina on Martin Luther King Day in 2003 for claimed seatbelt violation. After being placed under arrest and attempting to flee, the Virginia motorist was subdued, handcuffed improperly, and put in a running cruiser alone.

As the arrestee slowly backed the cruiser straight in reverse to leave, the trooper ran along side and repeatedly fired at point blank range through the driver’s window into the driver’s torso. The earliest EMT responders initially were not allowed by encircling officers to attend the victim, and another officer removed a telltale dangling handcuff from the victim’s wrist as he lay dying.

Defendant trooper was terminated by the North Carolina State Highway Patrol over the incident. His firing was upheld on appeal after a two-day evidentiary hearing.

Continue reading " §1983 Civil Rights Wrongful Death Suit – a Lawyer’s Case " »

“N.C.G.S. §15A-401(d) abrogated any public officer immunity for the use of deadly force by creating a state-law privilege for the use of deadly force but specifically providing that nothing in the statute justified willful, malicious or criminally negligent conduct or excused or justified the use of unreasonable or excessive force.” Thompson v. Farmer, 645 F. Supp. 109, 111 (W.D.N.C. 1996). Thus, §15A-401(d)(2) does not insulate officers from all liability for wrongful death and serious personal injury.

§15A-401(d) does not trump Federal law. It codifies not only rights and privileges of officers, but also their “duties” to arrestees, consistent with §1983. See, e.g., J. Michael McGuiness, Law Enforcement Use of Force: The Objective Reasonableness Standards Under North Carolina and Federal Law, 24 Campbell L. Rev. 201, 210 (Spring 2002). “N.C. Gen. Stat. 15A-401 provides both a statutory standard and a privilege for law enforcement officers which is consistent with common law as well as contemporary decisions by the United States Supreme Court regarding the use of force.” Id. Thus, Defendant’s immunity or liability under §15A-401(d) simply tracks his immunity or liability under the United States Constitution. See, e.g., Thompson, 945 F. Supp. at 110-111.

Even if arguendo North Carolina doctrine of public official immunity survives §15A-401(d), it applies only if the action involves the “exercise of judgment and discretion” and is not “corrupt, malicious or beyond the scope of authority”. See, e.g., McGuiness at 211 n. 26 (and North Carolina cases cited therein); Abney v. Cox, 2005 U.S. Dist. LEXIS 41890, *41 (M.D.N.C. 2005); Lea v. Kirby, 171 F.Supp.2d 579, 584 (M.D.N.C. 2001), aff’d in part and dism’d in part, 39 Fed. Appx. 901 (4th Cir. 2002). Showalter v. North Carolina Dept. of Crime Control and Pub. Safety, 2007 N.C. App. LEXIS 836, *8, 643 S.E. 2d 649, 652 (2007); Glenn-Robinson v. Acker, 140 N.C. App. 606, 626, 538 S.E. 2d 601, 615 (App. 2000) cert. den., 353 N.C. 372, 547 S.E. 2d 811 (2001). Further, public officer immunity at most applies only to state law claims. Federal civil rights claims are affected only by the qualified immunity doctrine. See, e.g. Massasoit v. Carter, 439 Supp.2d. 463, 480 (M.D.N.C. 2006).

Wrongful death and personal injury victims are entitled to discover case facts underlying their 42 U.S.C. §1983 civil rights claims before adverse adjudication of a dispositive motion, even if a defendant claims qualified immunity. On January 2, 2009, Avery T. “Sandy” Waterman, Jr., Esq. was ordered discovery in a §1983 civil rights wrongful death suit despite motions to dismiss on qualified immunity in Webb v. Stevens, No. 5:05-CV-33-BO(1) Order (E.D.N.C. Jan. 2, 2009).

“A trial court may consider evidence [on a Fed. R. Civ. P. 12(b)(1) motion for qualified immunity] by affidavit, depositions or live testimony without converting the proceeding to one for summary judgment.” Adams v. Bain, 697 F.2d. 1213, 1219 (4th Cir. 1982). However, a defendant’s 12(b)(1) motion should be denied where the underlying “jurisdictional facts are intertwined with the facts central to the merits of the dispute. It is the better view that in such cases the entire factual dispute is appropriately resolved only by a proceeding in the merits.” Id. (§1983 dismissal reversed and remanded for lack of discovery unto merits).

Indeed, discovery on qualified immunity should be permitted even if a motion for summary judgment is filed under Rule 56. For example, the Fourth Circuit reversed a grant of summary judgment on qualified immunity on the mere possibility that one of the police cruisers at the scene may have had a camera with videotape. Ingle v. Yelton, 439 F.3d., 191, 196-198 (4th Cir. 2006). “Although [plaintiff] could not determine whether any of the vehicles present that night had cameras installed, the new policy provided sufficient basis to conclude that a videotape of the incident might exist. Such a videotape might have provided [plaintiff] with an opportunity to contradict the affidavits upon which the district court relied. For this reason, we remanded for further discovery as to the existence of a videotape of the incident; our mandate specifically noted that the district court could reconsider the defendants’ motion for summary judgment again after completion of discovery.” Id. at 197. Ingle v. Yelton, 2008 U.S. App. LEXIS 3184, *3-4 (4th Cir. Feb. 14, 2008).

Likewise, last year a Virginia district court twice deferred consideration of defendants’ motions in favor of discovery, following Fourth Circuit precedent. “[T]he United States Court of Appeals for the Fourth Circuit has held that ‘ordering discovery on the issues of immunity…[is] well within the discretion of the district court.’ American Civil Liberties Union, Inc. v. Wicomico County, 999 F.2d. 780, 787 (4th Cir. 1993). Indeed, most often ‘qualified immunity is tested at the summary judgment stage after the facts have been developed through discovery.’ Alford v. Cumberland County, No. 06-1569, 2007 U.S. App. LEXIS 24138, 2007 W.L. 2985297, at *3 (4th Cir. Oct. 15, 2007).” Turner v. Kinder, 2008 U.S. Dist. LEXIS 18143, *8 (W.D.Va. Mar. 10, 2008) and 2008 U.S. Dist. LEXIS 39709, * 6-10 (W.D.Va. May 15, 2008).

Specifically, Turner initially upheld various discovery requests on §1983 civil rights claim for denial of medical attention and extent of injuries. “The court finds that the discovery requested by [plaintiff] could contribute to the determination of whether defendants acted maliciously and sadistically for the very purpose of causing harm, whether [plaintiff] injuries were more than de minimis, and whether defendants were deliberately indifferent to [plaintiff’s] allegedly serious medical needs.***The court further determines that the discovery requested by [plaintiff] could contribute to the determination of the extent of [plaintiff’s] injuries and whether or not defendants offered [plaintiff] medical care. Accordingly, as the discovery requests are relevant to qualified immunity, the court finds that [plaintiff] has made an adequate showing of his need to engage in discovery and will grant him the opportunity to do so.” 2008 U.S. Dist. LEXIS 18143 at 10-11. Subsequently, Turner ordered production concerning “any relevant complaints, investigations, civil rights or criminal actions, and disciplinary reports,” including ones post-incident and/or related to the suit. 2008 U.S. Dist. LEXIS 39709 at 7 and 10.

Qualified immunity does not insulate all officers from wrongful deaths or other personal injury claims under 42 U.S.C. §1983 for excessive force. See, e.g., Tennessee v. Garner, 471 U.S. 1 (1985); Massasoit v. Carter, 253 Fed. Appx. 295 (4th Cir. 2007); Schultz v. Braga, 455 F.3d 470 (4th Cir. 2006); Clem v. Corbeau, 284 F.3d 543 (4th Cir. 2002); Haddaway v. Ellerbusch, 1993 U.S. App. LEXIS 16039 (4th Cir. 1993); Kane v. Hargis, 987 F.2d 1005 (4th Cir. 1993); Webb v. Stevens, 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008); Phomphackdl v. Spartansburg County, 2007 U.S. Dist. LEXIS 19895 (D.S.C. Mar. 20, 2007); Russo v. United States, 37 F.Supp.2d 450 (E.D. Va. 1999); Thompson v. Farmer, 945 F. Supp. 109 (W.D.N.C. 1996); Jordan v. Civil Service Board for the City of Charlotte, 153 N.C. App. 691, 570 S.E.2d 912 (2002), cert. denied 356 N.C. 672, 577 S.E.2d 672 (2003); and Glenn-Robinson v. Acker, 140 N.C. App. 606, 538 S.E. 2d 601 (2002), cert. denied, 353 N.C. 372, 547 S.E.2d 811 (2001). See also, e.g., J. Michael McGuiness, Law Enforcement Use of Force: The Objective Reasonableness Standards Under North Carolina and Federal Law, 24 Campbell L. Rev. 201, 227 n.157 (Spring, 2002) (“McGuiness I”) (“Edwards v. City of Goldsboro, 178 F.3d 231 (4th Cir. 1999)(denying qualified immunity in law enforcement personnel cases)”). “Officers are subject to civil, civil rights and criminal liability for excessive force,” see, e.g., McGuiness I at 206-207; despite the existence of qualified immunity.

Tennessee v. Garner, 471 U.S. at 11, clearly establishes that “the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.” McGuiness I at 230. Schultz, 455 F.3d 477. “Generally, mere flight alone without more is not sufficient to warrant deadly force. Without some implied threat of harm to officers or others, fleeing suspects cannot be shot.” Id.

“The intrusiveness of a seizure by means of deadly force is unmatched.” Tennessee v. Garner, 471 U.S. at 9. “And it is clearly established principle of law that law enforcement officers may employ deadly force ‘[w]here the officer has probably cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.’ Id. at 11. ‘Where [a] suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.’ Id. But ‘if the suspect threatens the officer with a weapon or there is probably cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible some warning has been given.’ Id. at 11-12.” Schultz, 455 F. 3d at 477.

“The evolving body of use of force law mandates a complete assessment of the facts, circumstances and reasonable beliefs of the officer….” See, e.g., J. Michael McGuiness, “Supreme Court Further Defines Police Use of Force Standards,” The Connecticut Lawyer (February 2002) (“McGuiness II”); J. Michael McGuiness, “Shootings by Police Officers are Analyzed under Standards Based on Objective Reasonableness”, 72 N.Y.S. Bar J. 17 (September 2000)(“McGuiness III”). See also, McGuiness I at 226 (stating “careful attention to the facts and circumstances of each particular case” is required). In “Tennessee v. Garner, 471 U.S. 1, 8-9 (1985),…the Court relied upon the ‘totality of the circumstances” in assessing reasonableness, see, e.g., McGuiness I at 219 n.89, 230; and a “literal application of this [so-called ‘reasonableness of the moment’ concept] may strain logic and the ‘totality of the circumstances’ framework because the course of events leading up to the use of force may further support or negate the need for force.” See, e.g., id. at 219. Hence the Fourth Circuit properly has applied the Court’s “totality of the circumstances’” analysis instead of the myopic “reasonableness of the moment” concept. Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994). This determination must include an evaluation of the full context of the situation, evaluating all the relevant factors. See id.” McClain v. Cumberland County, 1998 U.S. Dist. LEXIS 18592 (E.D. N.C. 1998). Cf., Scott v. Harris, 127 S.Ct. 1769 (2007)(determining qualified immunity based on a six-minute videotape “capturing the events in question,” a ten-mile vehicle chase).

On motion for summary dismissal, the facts must be viewed “in the light most favorable” to the injured party. Massasoit, 253 Fed. Appx. at 297; Clem, 284 F.3d at 550-551; Webb, 2008 U.S. Dist. LEXIS 61480, * 2-3. The defendant officer on a traffic stop in Massasoit twice shot and killed a suspect after he “tussled” and pepper-sprayed the suspect, and also twice shot another fleeing suspect; all “without warning”. Under these facts, the Fourth Circuit found the deadly force unreasonable, unjustified and clearly unconstitutional. 253 Fed. Appx. at 297. Similarly, because the plaintiff in Clem proffered that he was not a serious threat and “firing three shots are close range was an application of force that could have killed him;” the Fourth Circuit explained that “on the basis of Garner alone…, we would have to conclude that the constitutional right at issue in this case was ‘clearly established’.” 284 F.3d at 554. See, Phomphackdl, supra, 2007 U.S. Dist. LEXIS 19895, *7-11 (Magistrate’s Report and Recommendation that “accepted defendants’ accounts of the incident” was rejected by district judge and summary judgment on excessive force was denied); Russo, supra, 37 F.Supp.2d at 455 (“At this early stage of the proceedings, where the court is limited to the allegations contained in the complaint and must accord every reasonable inference to the plaintiff as the non-moving party, the court cannot determine [the unconstitutionality or constitutionality of the use of deadly force].”)

Continue reading " §1983 Civil Rights: Excessive Force & Qualified Immunity – a Lawyer’s Standard " »

On June 9, 2008, Avery T. “Sandy” Waterman, Jr., Esq. served suit under Virginia’s Multiple Claimant Litigation Act. The case is Gilliam v. Hampton University, et al., No. CL07-1562, pending in the Circuit Court for the City of Hampton, Virginia.

The multi-claimant action in Gilliam involves Doctor of Physical Therapy students suing their former college for lack of program accreditation. They allege that Hampton University committed breach of contract and/or constructive fraud by failing to obtain accreditation as promised, bargained and agreed.

Due to lack of accreditation, the students could not graduate on schedule and were subject to remediation workshops in Hampton and to additional courses in Florida. Thereby they suffered substantial inconvenience and earnings loss.

Hampton University moved for summary dismissal of multi-claimant action counts, asserting that the students did not have the causes of actions alleged. But those dilatory defensive pleadings were denied by Order entered on September 20, 2008; so the case currently is proceeding through discovery unto trial.

Public notice, particularly Court-facilitated notice, of a class action, collective action or multi-claimant action often is critical to the lawsuit maximizing the number of victims obtaining redress. Avery T. “Sandy” Waterman, Jr., Esq. recently has obtained such favorable notice in Newport News and Williamsburg, Virginia.

The Norfolk Division of the United State District Court for the Eastern District of Virginia entered Notice of Pendency of Collective Action Lawsuit on June 20, 2007. The consolidated cases were Choimbol v. Fairfield Resorts, Inc., No. 2:05cv463 c/w Gombosuren v. Fairfield Resorts, Inc., No. 4:06cv055 c/w Bahamolau v. Fairfield Resorts, Inc., No. 4:06cv147, filed in Newport News and Norfolk, Virginia.

The Court-facilitated notice was published in local newspapers, The Daily Press and The Virginia Gazette. Both publications were full-page versions of the notice in two languages, English and Cyrrillic, to reach the most foreign victims.

Plaintiffs’ counsel initially has to bear the substantial expense of such newspaper publication. Ultimately in settlement all such costs may be shifted to the Defendant.

In Choimbol, Gombosuren and Bahamolau, the published notice was effective. It encouraged additional victims to join the collective action lawsuit.

The defense may dispute mild and even moderate traumatic brain injury, particularly where neuroimaging is inconclusive. The defense opportunistically may contest the fact of brain injury and, alternatively, may assert that the victim is malingering.

The victim’s lawyer must protect his brain injury client against any such unfounded ploy with motions in limine, objections at trial, etc. As gatekeeper, Virginia Courts must be vigilant against introduction of malingering testimony, which is highly prejudicial and variously inadmissible.

Although the Virginia Supreme Court has not ruled substantively on malingering testimony, many of its opinions provide ample general guidance such evidence. For example, the defense bears the burden of proving that such testimony is founded on proper expert qualifications, assists the jury, does not invade the jury’s province, does not violate physician-patient confidentiality, is not speculative, is not missing variables, does not include hearsay, is based on scientifically reliable methods, is to the appropriate degree of certainty, is not cumulative, is more probative than prejudicial, etc.

Use of neuroradiology is critical to diagnosis of traumatic brain injuries in general. Use of the best imaging techniques may be crucial to accurate evaluation of mild and diffuse axonal injury in particular.

Computerized Axial Tomography (“CAT”), renamed Computer Tomography (“CT”), scans still are entrenched as the front-line neuroradiological imaging for many because of their relative availability and low cost. But “CAT fever” has its limitations and detractors, with CT scans showing false negatives in virtually all cases of mild traumatic brain injuries and in some others too.

Magnetic Resonance Imaging (“MRI”) is more sensitive than CT. But most traditional clinical MRI also show mild traumatic brain injuries as normal, because it relies on signs of edema and structural abnormalities, which are just the tip-of-the-iceberg fordiffuse axonal injury.

The vast majority of MRIs are low resolution 0.15-1.5 Tesla (“T”); relatively few are the “gold standard” high-resolution 3T available by 2004. In the United States, there are only a half-dozen 7T (located in Boston, New York City, Philadelphia, Pittsburgh, Minneapolis and Portland); and a single 9.4T in Chicago, the world’s most powerful medical one, which hopefully soon will offer real-time view of metabolic processes safely.

New MRI-based diffusion tensor imaging (“DTI”) advances sensitivity toward micro-structural lesions and changes implicated thereby. This brilliant cutting-edge technique measures fractional anisotropy variations and fiber bundle discontinuity in white matter locations.

Functional imaging techniques of positron emission tomography (“PET”) Single Photo Emission Computed Tomography (“SPECT”) and MRI-based spectroscopy (“MRS” or “MRSI”) are complementary to the foregoing anatomical imaging. PET measures cellular function, SPECT measures blood flow, and MRS/MRSI measures chemical changes – all as metabolic markers of neuronal integrity or damage.

Continue reading " Virginia Traumatic Brain Injuries – a Lawyer’s Diagnostic " »

Traumatic brain injuries frequently are closed-head sequelae of high-velocity acceleration, deceleration and/or rotational force incidents, such as vehicle accidents or patient falls. Significantly, no direct impact is necessary for causation, although often it is present and intensifies injury.

Rapid external acceleration, deceleration and/or rotational forces propel the unprotected soft brain within the hard bony skull. Those forces strain, stretch and finally shear delicate minute blood vessels and nerve fibers irrepairably, and are followed by biochemical degradation.

Much traumatic brain injury consists of diffuse axonal injury. Lesions and lacerations dispersed throughout the brain are the observable tip-of-the-iceberg of such injury and ultimately result in permanent degeneration, scarring and/or cavities.

With injury occurring at the neuronal level, the damage may not be discernable using only a CT scan, particularly in cases of mild traumatic brain injury. That primary diagnostic technique may have to be supplemented with other more expensive neuroimaging, such as MRI and even PET, SPECT or EEG; so not to overlook demonstrable injury.

Despite many victims having an outwardly normal appearance, clinically-observable damages flowing from traumatic brain injury are numerous, wide-ranging, and frequently permanent, increasing and disabling, such as persistent postconcussive syndrome – hence the national Center for Disease Control refers to it as the “silent epidemic”. Classic neurobehavioral symptoms, deficits and disorders include but are not limited to: physical (headaches, neck/back pain, tinnitus, hearing loss, aural-sensitivity, blurred vision, diplopia, photo-sensitivity, diminished taste, diminished smell, fatigue, drowsiness, seizures, tremors, sleep disturbance, vertigo/dizziness, imbalance, decreased appetite, and increased risk of altzheimer’s disease and morbidity); psychological/affective (personality change, depression, anxiety, irritability, agitation, aggression, impulsivity, moodiness, disinhibition, altered sexuality, and limited self-awareness); cognitive (visual-perceptual alteration, attention/concentration impairment, memory dysfunction, decreased processing/reaction, decreased understanding/insight, decreased reasoning/judgment, language/communication difficulties and learning problems); and socioeconomic (increase risks of interpersonal disputes, regression/dependency, suicide, divorce, substance abuse, vocational problems, occupational problems, chronic unemployment/underemployment, and economic strain).

On January 8, 2009, The Daily Press covered a successor suit for traumatic brain injury filed by Avery T. “Sandy” Waterman, Jr., Esq. in Gloucester. Its headline is titled “New suit seeks $9M over fight”.

In December, 2006, a Gloucester High School student was victim of a vicious unprovoked assault and battery by another student, who allegedly was encouraged to attack by his older sister. The siblings recently were named as Defendants since both now have graduated and are adults.

Gloucester Assistant Principal Travis Burns remains the primary Defendant for his alleged gross negligence in completely abdicating his ministerial duty to intervene as specifically requested and promised hours beforehand. By Deposition attached as an exhibit, a fellow student already has testified under oath that Burns assured he would alert Gloucester High School, security hours before the attack; and by separate Affidavits attached as exhibits, the victims parents have averred further under oath Burns subsequently admitted to each of them independently that he “dropped the ball” in not protecting their child at school.

The attack victim suffered traumatic brain injuries which persist and increase, including among other things memory loss; balance, vision and learning problems; seizures; and psychological issues. As averred, he needed special academic accommodation to graduate Gloucester High School; cannot attend college or even drive; and has limited employment and other prospects.

Although the suit has requested $9,350,000.00 for the victim’s damages, Mr. Waterman previously sought unsuccessfully to settle case with Assistant Principal Burns and the Gloucester County School Board within their very substantial insurance coverage limits and remains open to such a resolution. So far, Mr. Waterman has discovered two insurance policies covering Burns that can provide at least $6,000,000.00 in coverage for his client’s traumatic brain injuries.

The suit also alleges that Gloucester officials have secreted all school investigative materials in the attacker’s records to keep them from the assault and battery victim. Any such withholding of key facts enables Defendants to deny them without impeachment.

On January 7, 2009, the Gloucester Gazette reported a brain injury suit filed by Avery T. “Sandy” Waterman, Jr., Esq. The article is titled “Suit seeks $9 million in GHS incident”.

Virginia Municipal League Insurance Programs retained Richmond counsel for Defendant, Assistant Principal Burns, who was new on the job in 2006. Burns enjoys $6,000,000.00 in insurance coverage for the GHS assault and battery.

The Plaintiff suffered permanent brain injuries in 2006 from being attacked by another student, who reportedly was encouraged by his older sister. Gloucester High School made accommodations to allow the victim to graduate in 2007.

By deposition, another Gloucester High student testified that he warned Assistant Principal Burns the victim was being targeted for an altercation, that Burns promised he would alert security, and that Burns took absolutely no action instead. By affidavits, both of the victims’ parents swore under oath Burns admitted his fault, that he had “dropped the ball”.

The Virginia Supreme Court long has held that routine accident reports and statements are not privileged under Virginia’s “work product” doctrine." A statement made by an employee to his employer, in the course of his ordinary duty, concerning a recent accident, and before litigation has been brought or threatened, is not privileged either in the hands of the employer or in the hands of the latter’s possessed by insurer attorney to whom it has been transmitted. We so held in Virginia-Carolina Chem. Co. v. Knight, 106 Va. 674, 679, 680, 56 S.E. 725 [1907]." Robertson, 181 Va. at 539 (emphasis added). “The trial court correctly ruled that the [statement] was not a privileged communication.” Id. at 541. In Virginia-Carolina, “the [written accident] report was made by an official of the defendant in the course of his ordinary duty immediately after the accident, before any action had been brought or threatened. A report made under these circumstances . . . is not a privileged communication within the reason of the rule under the authorities.” 106 Va. at 680 (emphasis added).

The spirit of Virginia-Carolina and Robertson has been embodied by the clear majority of Circuit Courts. Internal premises liability “accident reports” prepared contemporaneously have been ruled “not work product immune from discovery.” See, e.g., Assaid v. Food Lion, Inc., No. 95-1201-R, Order at 1 (W.D.Va., May 7, 1997)(“Notice to Counsel form”); Lott v. Food Lion, Inc., (E.D.Va.); Blough v. Food Lion, Inc., 142 F.R.D. 622, 624 nn. 1-3 (E.D.Va. 1992)(Virginia), vacated and remanded on other grounds, No. 93-1169 (4th Cir. 1993)(unpublished opinion) (“General Liability Claim Notice to Counsel”); Lewis v. Ukrop’s Super Markets, Inc., No. CL01-9480, Bench Ruling (Williamsburg Jul. 30, 2001)(7 fall victims’ statements); Clark, 40 Va. Cir. at 230 (material captioned “prepared in anticipation of litigation”); Moore v. Farm Fresh, No. CL94-20624-RF, Order (Newport News Oct. 30, 1995); Whitehead v. Harris-Teeter, Inc., 28 Va. Cir. 367, 368 (Amherst 1992).

Continue reading " Virginia Vehicle Accidents & Premises Liability – a Lawyer’s Discovery " »

Proper auto accident case work-up, evaluation, and negotiation by an experienced local personal injury lawyer often can result in attractive settlement without having to file suit – even for an out-of-state vehicle accident. Last month, Avery T. “Sandy” Waterman, Jr., Esq. obtained a $50,000.00 personal injury settlement for a Peninsula resident victim of an auto accident in Maryland. His client seamlessly attended college out of the area and communicated by email while he negotiated with the insurance adjuster by telefax and telephone.

Using modern technology, client involvement is streamlined, minimizing inconvenience whenever possible. When wrongful death or other catastrophic personal injuries are involved out-of-state, Mr. Waterman may retain local counsel for his clients and is admitted to practice there as co-counsel.

What really happens in a vehicle accident should govern case outcome. But too often liability and/or damages for personal injuries in Virginia actually are affected by what happens after the accident.

10. Contact an experienced lawyer as soon as possible to discuss your case.

Continue reading " Virginia Vehicle Accidents – a Lawyer’s Advice " »

On November 27, 2008, The Daily Press featured authority about patient falls in Virginia. That expert authority on medical malpractice was introduced by Avery T. “Sandy” Waterman, Jr., Esq., who has obtained a record verdict and record settlements in Virginia patient fall cases. Per The Daily Press, over 20 years, published reliable expert authority has emphasized the following.

“A review of fall literature confirms that various researchers have identified risk factors (measurable patient characteristics, medical or nursing diagnoses) that have a potential to predict falls in elderly population, thus suggesting preventability. Falls are one of the most common reasons that nurses…and hospitals are sued for medical negligence. Many falls are predictable and should not be considered to be an expected sequela of the aging process. Hospitalization can pose a major risk for older persons….”

“Falls are a common problem and nurse should be aware of patients who many fall. Various safety precautions can be taken to prevent falls.”

“Older adults…are a high-risk group for falls with resulting injuries. More aggressive measures seemed necessary to prevent further patient falls. These measures included additional patient safely devices [such as ‘bed alert’ systems], more stringent staff education in patient fall prevention, and the development of a written protocol of nursing intervention levels….”

On December 26, 2008, The Daily Press featured medical malpractice cases of Avery T. “Sandy” Waterman, Jr., Esq., including three patient fall cases settled for $2,600,000.00 in 2008. The article is “Attorney fights to get the facts on patient care in hospitals,” subtitled “He contends most institutions keep ‘double books’ that can conceal details about injuries”.

It covers Mr. Waterman’s landmark medical malpractice case decided by the Virginia Supreme Court, Riverside Hospital, Inc v. Johnson, 272 Va. 518 (2006) . That decision mandated healthcare institutions provide patients their factual medical records, including particularly incident reports and electronic databases. But Riverside and other institutions continue to resist Johnson and attempt to overturn it legislatively through their activist trade association, Virginia Hospitals & Healthcare Association. To date, however, their attempts to “couch” factual patient medical records as confidential have been unsuccessful in Newport News Circuit Court. The article recounted Mr. Waterman’s courtroom successes in compelling healthcare institutions, including most notably a facility that withheld over 700 pages of factual patient care records.

This is the last of 13 reprinting Mr. Waterman’s leading medical malpractice article, “Healthcare Policies, Procedures & Protocols: Discoverability, Abuse, Admissibility & Legislation,” featured in VTLA’s The Journal for Spring, 2008.

IV. PP&P LEGISLATION

Section 8.01-581.17 was intended to balance the legitimate competing societal interests of disclosure to victim patients and of confidentiality for healthcare providers. That delicate balance is struck by rendering the actual deliberative process of covered committees privileged, while otherwise upholding patient access.

In the discrete context of PP&P, the analysis and debate, the drafting and revision, etc. of covered committees are protected. However, PP&P finally adopted for use by healthcare providers do not enjoy any protection.

An amendment to §8.01-581.17 should add new language to the following effect: “No policy, procedure, protocol or like private rule that has been adopted for use and/or used in fact by a healthcare provider shall be privileged; provided, however, that preliminary deliberation thereon and/or drafting thereof by a committee protected under §8.01-581.16 shall be privileged, unless a circuit court, after a hearing and for good cause arising from extraordinary circumstances being shown, orders their disclosure.” That is necessary and appropriate to clarify the pertinent Virginia law and to curb abuse of it.

Otherwise, privilege abuse will continue until a case finally percolates to the Supreme Court of Virginia and becomes the unquestioned law of the Commonwealth. When that landmark opinion is handed down, which likely will be sooner than later, healthcare providers again will prevail on the General Assembly for more protectionist legislation. As most recently with Riverside, the healthcare hew and cry will be that the highest court’s new decision is a maverick one from left field that radically changes existing law – when in fact, as elucidated by this article, it really just will exemplify the current majority rule of the numerous lower courts that reflects the gradual evolution of the law over decades. So it is time now to see and call the jurisprudence for what it actually is and, concomitantly, to legislate accurately based on the empirics and not on the hysterics.