Virginia Injury Attorney Blog

On February 19, 2010, Plaintiff’s Motion for Entry of Order was filed in the medical malpractice case of Marshall v. Moniz, No. CL08-2018 in Circuit Court for York County, Virginia. The presiding Judge had requested Plaintiff as prevailing party on three issues on February 9, 2010, to draft and circulate the Order memorializing the hearing; but Defendant’s counsel refused to sign as drafted.

Plaintiff’s Motion is scheduled for Court hearing on March 4, 2010. Companion blogs about the three underlying issues and the hearing in the Marshall v. Moniz medical malpractice lawsuit claiming $12,000,000.00 are posted on February 4,6, 8, and 9, 2010.

Garrity v. Jones is a motor vehicle accident lawsuit pending in Circuit Court for York County, Virginia, No. 1341. Significant issues surround the adequacy of pre-trial expert disclosures by the defense.

In her First Motion in Limine, Plaintiff seeks to exclude the defense retained expert from referring to any Cincinnati Veterans Administration (“VA”) records because of them not being identified or even possessed at the time of her required expert disclosure by the defense. Simarily, in her Third Motion in Limine, Plaintiff seeks to exclude any use of Cincinnati, Richmond, Hampton, Roanoke and/or other VA records containing expert opinions because of those expert opinions not being disclosed in the defense expert designation as required.

The Virginia Supreme Court recently underscored the gravity of the expert disclosure requirement under Virginia Supreme Court Rule 4:1(b)(4)(A)(i) in John Crane, Inc. v. Jones, 274 Va. 581 (2007) writ denied 552 U.S. 1184 (2008) (copy attached). Crane upheld what the defense claimed was a “dramatic and unfair limitation of expert testimony” by Judge Peter C. Tench in Newport News. Id. at 591.

In Crane, nothing in Defendant's expert disclosure or report referred to the disputed point of testimony objected by plaintiff. Id. at 592. The Virginia Supreme Court found unavailing defense arguments that plaintiff already was familiar with the topic and/or could have deposed the defense doctor. Id.

”Such a rule would impermissibly alter a party’s burden to disclose and impose an affirmative burden on the non-disclosing party to ascertain the substance of the expert’s testimony. We reject this reading of Rule 4:1(b)(4)(A)(i).” Id. (emphasis added). See also, id at 593.

Continue reading " Virginia Experts: Va. Sup. Ct. Rule 4:1(b)(4)(A)(i) – a Lawyer’s Disclosure " »

On February 9, 2010, the medical malpractice lawsuit of Marshall v. Moniz, No. CL08-2018 in Circuit Court for the County of York and the Town of Poquoson, Virginia, was heard on the Defendants’ three dilatory pleadings. Plaintiff seeks $12,000,000.00 in compesatory damages, alleging that various surgery-related acts and/or omissions caused him grievous permanent personal injuries, over $1,000,000.00 in medical expenses, and loss of his lucrative career.

First, Defendants’ Motion to Transfer Venue to the Circuit Court for the City of Williamsburg/James City County, Virginia, was denied. The Court found in the Marshall v. Moniz medical malpractice case that York County was permissible venue based on tortious acts and/or omissions occurring there at the new Sentara Williamsburg Community Hospital and Defendants regularly conducting substantial business activity there at the hospital, pursuant to Va. Code Ann. §8.01-262(3 & 4). The Court in Marshall v. Moniz found that Defendants failed to bear their burden of proving “substantial inconvenience” to witnesses, despite Defendants claiming a 13-mile difference in driving distance. Plaintiff initially having filed suit in Williamsburg was not pertinent to forum non conveniens pursuant to Va. Code Ann. §8.01-265.

Second, Defendants’ Demurrer and Special Pleas of Statute of Limitations, Res Judicata, and Autre Action did not defeat the proceedings and was overruled. The Court in the Marshall v. Moniz medical malpractice case found that the doctrine was not self-executing, only applied if two identical suits were pending at the time of filing and, in and event, did not require that the initial action be the one maintained.

Third, Defendants’ Demurrer for allegations of unspecified negligence was overruled too. The Court in the Marshall v. Moniz medical malpractice suit found that Plaintiff’s negligence itemization of “such other acts and/or omissions as may be discovered, investigated and proved at trial” was gratuitous and, if anything, subject to a Motion to Bill of Particulars and not a Demurrer.

Plaintiff already has requested the discovery deposition of Defendant, Dr. Moniz. Plaintiff is moving to schedule the medical malpractice lawsuit in Marshall v. Moniz for jury trial on the merits in early 2011 at Yorktown Courthouse.

Marshall v. Moniz, No. CL08-2018 in York Circuit Court is a medical malpractice action. Defendants have moved to transfer venue to Williamsburg, Virginia.

Va. Code Ann. §8.01-261 provide “Category A or preferred venue”. There is no preferred venue in the Marshall medical malpractice lawsuit .

Va. Code Ann. §8.01-262(3&4) provide “Category B permissible venue,” wherein “the defendant regularly conducts substantial business activity” and/or “the cause of action, or any part thereof, arose”. York County is permissible venue under both of those subsections in the Marshall medical malpractice suit.

“While plaintiff’s choice of forum is not entitled to absolute deference, it ‘should not be lightly defeated’.” Champigny v. Bagly, 55 Va. Cir 381, 382 (Norfolk Jul. 2, 2001)(citations omitted). “A rebuttable ‘presumption of correctness attaches to a plaintiff’s choice of forum’.” Kollman v. Jordan, 60 Va. Cir. 293, 294 (Chesterfield Oct. 29, 2002). When “considerations are equal or even close, the plaintiff’s choice of forum must prevail.” Wray v. Floyd & Beasley Transfer Co., 29 Va. Cir. 126, 130 (Richmond Sep. 17, 1992).

“Plaintiff does not need to explain his reasons for placing venue in any particular forum that §8.01-262 allows.” Id. “According to the plain language of the statute [§8.01-265], Defendant has the burden to show good cause for a transfer.” Id.

Continue reading " Virginia: Medical Malpractice Va. Code Ann. §8.01-265 – a Lawyer’s Venue " »

Marshall v. Moniz is a medical malpractice lawsuit pending in Circuit Court for York County, Virginia. Defendants have filed a Demurrer to strike Plaintiff’s “catch-all” allegation of negligence: “Such other tortious acts and omissions as may be investigated, discovered and proved”.

Yet, it is hornbook law that Virginia is a “notice” pleading state. “Every pleading shall state facts on which the party relied in numbered paragraphs, and it shall be sufficient if it clearly informs the opposite party of the true nature of the claim or defense.” Va. Sup. Ct. Rule 1:4(d)(emphasis added).

Conversely, Virginia pleading does not require plaintiffs to itemize details of negligence. “An allegation of negligence. . . is sufficient without specifying the particulars of the negligence.” Va. Sup. Ct. Rule 3:18(b)(emphasis added).

A Demurrer is used to make “the contention that a pleading does not state a cause of action or that such pleading fails to state facts upon which the relief demanded can be granted.” Va. Code Ann. §8.01-273(A). “[I]t is unnecessary for the pleader to descend into statements giving the details of the proof in order to withstand demurrer” if the complaint informs the defendant of the nature and character of the claim. Catercorp, Inc. v. Cathering Concepts, Inc., 246 Va. 22, 24 (1993).

Thus, in Ragsdale v. Jones, 202 Va. 278, 284 (1960), the Virginia Supreme Court upheld the admission of intoxication evidence, even through negligence in general and not intoxication in particular was pleaded. Likewise, in Moore v. Jefferson Hosp., Inc., 208 Va. 438, 439 (1967)(reversing a supposed failure to state), the Virginia Supreme Court found sufficient plaintiff’s pleading of negligence that defendant “proximately caused injury to the plaintiff, both mental and physical”. Likewise, Moore v. Payless Supermarket, Inc., 18 Va. Cir. 197, 200 ( Wise Sep. 15, 1989) found the “general allegation of negligence is sufficient”. Similarly, Cunningham v. Roanoke Reg. Airport Comm’n, 70 Va. Cir. 273, 276 ( Roanoke Mar. 8, 2006) held “pleadings are not required to assert anything more than a general allegation of negligence”.

Continue reading " Virginia: Medical Malpractice – a Lawyer’s Pleading " »

The medical malpractice lawsuit of Marshall v. Moniz, No. CL08-2018 in York Circuit Court, initially was filed in Williamsburg/James City County and non-suited after the refilling in York County, Virginia. Defendants have filed a Special Plea and Demurrer for dismissal with prejudice based on that litigation history.

The Supreme Court of Virginia already has countenanced the exact procedure postural of the Marshall medical malpractice suit. Plaintiffs are entitled to file one action, file a second action in another jurisdiction, non-suit the first action, and proceed with the second action in the different jurisdiction. Moore v. Gills¸ 239 Va. 239 (1990). Cf., Smith v. Ellis, 28 Va. Cir. 180 (Richmond May 21, 1992).

“An ‘action’ and a ‘cause of action’ are quite different. ‘Action’ is defined [as ‘all civil proceedings whether at law, in equity, or statutory in nature’]. We defined ‘cause of action’ . . . as ‘a set of operative facts which under substantive law, may give rise to a right of action’.” Trout v. Commonwealth Transp. Comm’r of Virginia, 241 Va. 69, 73 (1991).

“Nonsuit remains. . . distinctly a weapon in the arsenal of a plaintiff.” Id. “The effect of a nonsuit is simply to put an end to the present action, but is no bar to a subsequent action for the same cause.” Gemmell, Inc. v. Svea Fire and Life Ins. Co., 166 Va. 95, 97 (1936). Cf., Virginia Concrete Co. v. Bd. of Sup’rs, 197 Va. 821, 826 (1956). “[T]he only effect of a non-suit is to put an end to the pending litigation without prejudice to either party.” Tysons Toyota, Inc. v. Globe Life Ins. Co., 1994 U.S. App. LEXIS 36692, * 19 (4th Cir. 1994); Winchester Homes, Inc. v. Osmose Wood Preserving, Inc., 37 F.3d 1053, 1058 (4th Cir. 1994); Umphreyville v. Gittins, 2009 U.S. Dist. LEXIS 454, * 5 (W.D. Va. Jan 6, 2009); Monroe v. City of Charlottesville; 2006 U.S. Dist. LEXIS 20027, *5 (W.D. Va. 2006); Poullah v. Rzasa, 75 Va. Cir. 349, 352 (Fairfax Jul. 15, 2008); Cook v. Wayland, 64 Va. Cir. 386, 387 (Waynesboro Apr. 26, 2004); Odeneal v. Thompson, 63 Va. Cir. 71, 73 ( Fairfax Aug. 6, 2003); Green v. Barnes, 54 Va. Cir. 348, 350 (Portsmouth Jan 4. 2001).

Thus in the medical malpractice case of Marshall, Plaintiff’s non-suit of his first action was not a dismissal with prejudice of his underlying cause of action. It simply put an end to that first action without prejudice to Plaintiff pursuing his subsequent action on the same cause of action.

Continue reading " Virginia: Medical Malpractice – a Lawyer’s Non-Suit " »