Virginia Injury Attorney Blog

In Simpson v. Virginia Municipal Liability Pool, 279 Va. 694 (2010), the Virginia Supreme Court held that a Nottoway County Sherriff’s Office road Deputy was not covered by any automobile insurance policy where there was no car accident or use when he was injured apprehending a fleeing motorist. Although the Deputy had used his cruiser to chase down the suspect and left its siren and flashing lights in operation, he was hurt after exiting his cruiser while subduing the arrestee in the highway median.

Significantly, in Simpson there was “no evidence that [the siren or lights] were used or relied upon in any way to accomplish Simpson’s purpose at the time he was injured.” Id. at 701. Thus Simpson may have enjoyed insurance coverage under the Virginia Municipal Liability Pool, Government Employees Insurance Company (GEICO) and/or National Grange Mutual Insurance policies implicated if he simply had testified at the declaratory judgment hearing that he had left his cruiser, siren and lights on to avoid potential car accident by alerting oncoming motorists while taking the criminal into custody.

Kimble v. Carey, 279 Va. 652 (2010) applied the “rescue doctrine” a/k/a the “humanitarian doctrine” in the context of a car accident in Interstate 64 in Henrico County, Virginia. The Virginia Supreme Court opined on the particular case facts that pre-rescue misconduct of the helpless party was irrelevant and that the rescuer’s alleged contributory negligence should have been decided by the jury.

“Most of the cases in our jurisprudence are based upon the branch of the rescue doctrine concerning suits brought by the rescuer against a third-party whose negligence placed a victim in a situation of imminent peril and the rescuer is injured by the third-party during the rescue attempt,” observed the Virginia Supreme Court in the Kimble car accident appeal. Id. at 659. “Based upon the facts of this case, we apply the branch of the rescue doctrine in which the victim may be liable to the rescuer based on the negligent acts of the victim which placed him or her in peril if those negligent acts also proximately caused the rescuer’s injuries during the attempted rescue.” Id. at 660.

“It makes no difference to rescue doctrine analysis whether the victim was guilty of simple negligence, gross negligence, or willful or wanton conduct in creating his or her peril, because the rescuer’s right to recover for injuries sustained during the rescue attempt rises or falls with the determination whether the rescuer acted rashly or recklessly,” explained Kimble in the car accident appeal. “If the rescuer acted rashly or recklessly, he or she is barred from recovery. However, if the rescuer did not act rashly or recklessly, and the victim was negligent in placing himself or herself in ‘apparent immediate peril of death or serious bodily harm’ the rescuer may recover.” Id. at 662.

“[A]s a general rule whether a person is guilty of contributory negligence in rushing into a place of danger to save another from imminent death or injury is a question for the jury,” pronounced the Kimble car accident opinion. Id. at 663. “[T]he rule is well settled that one who sees a person in imminent and serious peril caused by the negligence of another cannot be charged with contributory negligence, as a matter of law, in risking his own life or serious injury in attempting to effect a rescue, provided the attempt is not recklessly or rashly made.” Id. at 663-664 (emphasis added).

In Rascher v. Friend, 279 Va. 370, 373 (2010), the Virginia Supreme Court reversed the trial judge striking the evidence of a bicyclist in Prince William County, Virginia, who suffered personal injury in a car accident. It held that the jury could have found Plaintiff not negligent or, alternatively, that any negligence of his was not a proximate cause of the collision.

After delineating contributory negligence, proximate causation and proof burdens, the Virginia Supreme Court in the Rascher car accident appeal took “opportunity to again stress the principle of tort litigation that issues of negligence and proximate cause ordinarily are questions of fact for the jury to determine, rather than questions to be determined by the trial court as a matter of law. The trial court should overrule a motion to strike the evidence in every case in which there is any doubt that the party with the burden to do so has failed to prove negligence, contributory negligence, and proximate cause, as the case may be.”

Hawthorne v. VanMarter, 279 Va. 566, 571 (2010) involved a vehicle accident in which a Roanoke County Policy Department Officer allegedly caused wrongful death and personal injuries to other motorists. The Virginia Supreme Court upheld grant of sovereign immunity for ordinary negligence based on Defendant’s uncontradicted testimony and the judge’s finding at evidentiary Plea hearing that he was “pursuing a speeding vehicle at the time of the accident,” an act involving judgment and discretion.

“The party asserting a plea in bar bears the burden of proof on the issue presented,” opined the Virginia Supreme Court in the Hawthorne car accident case. “The issue raised by a plea in bar may be submitted to the circuit court for decision based on a discrete body of facts identified by the parties through their pleadings, or developed through the presentation of evidence supporting or opposing the plea. If the parties present evidence on the plea ore tenus, the circuit court’s factual findings are accorded the weight of a jury finding and will not be disturbed on appeal unless they are plainly wrong or without evidentiary support.” Id. at 577 (citations omitted).

“[I]f the facts are disputed and no demand for a jury is made, the ‘whole matter of law and fact’ may be decided by the court,” continued Hawthorne in the car accident appeal. “By submitting the entire decision on the plea in bar to the circuit court judge, Guthrie effectively agreed to have the judge decide all legal and factual questions underlying the single issue whether sovereign immunity shielded VanMarter from Guthrie’s allegations of ordinary negligence. Thus, we hold that Guthrie waived his right to have the jury at trial decide the factual issues pertaining to the question of sovereign immunity. Additionally, we note that the circuit court’s decision declining to reopen the issues pertaining to its sovereign immunity holding fully reflected the function of the plea in bar, which is to narrow the litigation by resolving an issue that will determine whether a plaintiff may proceed to trial on a particular cause of action. This function would have been undermined in the present case had the circuit court set aside its ruling and permitted Guthrie an opportunity to relitigate the issues already addressed without objection at the hearing on the plea in bar.” Id. at 578 (citations omitted).

On May 18, 2011, United States Court of Appeal for the Fourth Circuit by Order and Judgment of 3-justice panel summarily dismissed without opinion the appeal that had been prosecuted against Mr. Waterman’s client. The special case is United States of America, ex rel., Joseph M. Russell v. Michael J. Gennari, Evonne Fei, and Nancy Lynne Russell, and United States of America, No. 11-1329.

Appellees in Russell had moved to dismiss the appeal from the Newport News Division of United States District Court for the Eastern District of Virginia on the alternative grounds that Mr. Russell could not appear pro se on behalf of the United States of America and that he filed the appeal too late. Mr. Russell still can seek rehearing of this special case en banc by the Fourth Circuit and/or writ of certiorari to the United States Supreme Court.

On May 16, 2011, Mr. Waterman filed Brief in Opposition to Petition and in Support of Assignments of Cross-Error of Appellee/Cross-Appellant, Mr. Gagnon, in Travis Burns v. Gregory Joseph Gagnon, et al, No. 110754 in the Virginia Supreme Court. The appeal is of his $6,100,000.00 jury verdict on August 27, 2011, in Circuit Court for Gloucester County, Virginia, for a brain injury victim of negligence, assault and battery.

In Burns v. Gagnon, Assistant Principal Burns assigns error on sovereign immunity, common law duty, statutory immunity, and de bene esse deposition admissibility. Cross-errors assigned by Mr. Gagnon in the brain injury appeal
are the trial court finding no gross negligence, as well as not submitting gross negligence to the jury.

On the duty issue in Burns v. Gagnon, Mr. Gagnon asserts that Va. S. Ct. R. 5:25 bars Assistant Principal Burns from complaining about jury instructions for the first time on appeal. At trial of the brain injury lawsuit, Assistant Principal Burns requested the negligence definition and finding instructions given, but not any other special “duty” instruction.

“It has been held that the failure to request an instruction at the trial bars any appeal on the point.” Friend, Law of Evidence in Virginia, §8-2 at 282 (6th ed. 2010 cumm supp.). Rose v. Jaques, 268 Va. 137, 158 (2004)(citing Va. S. Ct. R. 5:25 for not requesting instruction as failure to perfect in trial court and bar on appeal). “Accordingly, because [Defendant in Burns v. Gagnon] failed to pursue [any other instruction on duty to the brain injury student], we will not address the issue on appeal. Rule 5:25.” Oden v. Salch, 237 Va. 525, 531 (1989).

The recent letter opinion in Hairston v. Eliacin of Honorable David A. Melesco, Judge for Circuit Court of Danville, Franklin County and Pittsylvania County, Virginia, reaffirms the continuing vitality of Mr. Waterman’s landmark medical malpractice case, Riverside Hosp., Inv. v. Johnson, 272 Va. 518 (2006), and its progeny. The Virginia Supreme Court in Riverside and numerous circuit courts subsequently pronounce that “factual information of patient care” is not privileged under Va. Code Ann. §8.01-581.17 and, concomitantly, uphold the discoverabililty and even admissibility of facts contained in incident reports, electronic databases, and other materials of peer review and other quality care committees.

Distraught over the transparency ushered by Riverside and its progeny, medical malpractice defense interests spearheaded the Virginia General Assembly’s passage of a compromise amendment to §8.01-581.17 in its 2011 Session. That becomes effective on July 1, 2011.

Significantly, however, Judge Melesco in Hairston opined that all of the patient care factual information in a medical center’s Peer Review and Quality Control Committee (“PR&QCC”) document was not privileged under Riverside or the new §8.01-581.17 amendment. Interestingly, the medical center in the Hairston medical malpractice case unsuccessfully attempted to use a self-serving Affidavit of its PR&QCC head to float its privilege claim; and the medical center moved to quash plaintiff’s witness subpoena for its “most knowledgeable person” on the topic, plus its counsel of record even refused to answer any questions about how the patient’s factual information came to be parked in its PR&QCC document.

Medical malpractice defense counsel have sought to rely on Muhammad v. Commonwealth, 269 Va. 451, 518-519 (2005), the so-called “Capital beltway sniper” case, as authority for introducing self-serving videotape or computer “simulations” created for their own civil cases. But Muhammad obviously is a singular criminal prosecution for 16 serial murders, which in 6 years never has been followed or even cited for the proposition raised by defendants.

In addition to Muhammad being a truly extraordinary case, its opinion discloses at least two distinctions. First, the Muhammad videotape simulation was predicated on independent eyewitness testimony of what occurred; while in most medical malpractice cases, defendants’ simulation less reliably (more biasedly) will be attested by defendants themselves and/or their experts.

Second, in Muhammad the jury got to scrutinize the real thing first hand “by an actual inspection of the trunk,” not simply to see the videotape stimulation. Conversely, in most medical malpractice cases, the jury will not get an actual corroborating inspection of plaintiff’s body, condition and/or process; and instead only will have the defense’s vivid unilateral re-creation imprinted in their psyche.

Besides those significant legal distinctions between the two cases, realistically most defendants cannot duplicate plaintiffs’ idiosyncratic physical conditions medically as of the pertinent times. Hence courts summarily should exclude defense videotape simulations as was done in the medical malpractice suit of Norman v. Williams, No. CL07-4554 (Norfolk May 19, 2009), despite the defense offering to redact video and to abandon audio in unsuccessful last-ditch attempts to salvage simulation.

Finally, less than 2 months after handing down Muhammad, the Virginia Supreme Court found the trial court’s allowance of a defense videotape in a medical malpractice case to be erroneous. Holley v. Pambianco, 270 Va. 180, 185-186 (2005). Thus, despite Muhammad, videotape evidence remains a “hot button” topic in Virginia, the admission of which may constitute reversible error.