Virginia Injury Attorney Blog

On September 28, 2011, Mr. Waterman settled a car accident claim arising in Newport News, Virginia. His client suffered personal injuries from a rear-ender on Interstate 664 in 2010.

As a result of the two car collision, the victim was treated at Mary Immaculate Hospital in Newport News, Virginia and followed up with physical therapy in her home state of North Carolina. Coincidentally, the offending driver also was a North Carolina resident.

Using email, fax and phone, Mr. Waterman was able to resolve the car crash claim of that guest passenger without her having to return to Virginia. He regularly represents out-of-state clients for motor vehicle and other personal injury and wrongful death actions arising in Virginia.

On September 24, 2011, Mr. Waterman settled a car accident claim against the six-figure insurance policy of an out-of-state motorist. His client is a long-time resident of Williamsburg, Virginia.

The offending motorist allegedly ran a redlight on Airport Road and broadsided the victim on Richmond Road in James City County, Virginia. That vehicle collision caused the victim to run off the road and into an electric power control box.

Over a 9-month period, the car crash victim received medical treatment from James City County Fire & Emergency Medical Service, Sentara Williamsburg Community Hospital n/k/a Sentara Williamsburg Regional Medical Center, Williamsburg Emergency Physicians, Tidewater Diagnostic Imaging, Sentara Family Medicine, Sentara Orthopaedic & Sports Medicine Physicians, and Tidewater Physical Therapy. The victim’s injury caused 4 weeks of work loss.

Social media burst onto the radar of most lawyers in 2011 with repeated headline news coverage of a notorious truck accident case, Lester v. Allied Concrete. But Mr. Waterman has been wrangling with it for years.

In a confidential 2009 Williamsburg special case in Court, a party printed the other party’s Facebook photographs, surprised the opposition on cross-examination, and introduced them as key evidence. Since that social media irrefutably showed excessive drinking and apparent neglect, it carried the day.

Social media usually is intended for family and friends. But victims of car accidents, medical malpractice, other personal injury, and wrongful death seriously need to think twice and even thrice about what is posted by them innocently falling into enemy hands unwittingly.

Most victims of vehicle accidents and medical malpractice are unaware that anything posted may be held against them in Court. But defendants, defense lawyers, insurance companies, claim representatives, risk managers and other opponents now are very savvy to this and routinely search for, save, and download potentially incriminating information that is on social media.

All victims of personal injury or wrongful death immediately should consider privatizing all social media, scrutinizing all existing posts for content, and limiting all future posts. Of course, such prudence may be superseded by pending discovery requests, court orders, etc.

In Evans v. Evans, 280 Va. 76 (2010), the Virginia Supreme Court upheld the right of a child to sue through one parent as next friend the other parent who injured the child by negligence in a vehicle crash. A father had put his 4 year-old in a portable foam seat in his 1972 pickup truck floor board before getting into a head-on collision, going offroad, and hitting a fence.

The Virginia Supreme Court in Evans reversed the trial judge’s decision that the child’s suit for common law negligence was barred by the father being guilty of negligence per se in the truck accident under Va. Code Ann. §46.2-1095. That statute provides Virginia drivers ensure a child under 8 years old be “properly secured in a child restraint device” meeting USDOT standards.

“[W]e conclude that the General Assembly intended preclusion of a per se negligence action based upon Code §46.2-1095 and 46.2-1098,” declared the Virginia Supreme Court, “but did not abrogate a common law action for negligence.” Id. at 85. Further, the Court advised the trial judge on remand of the Evans vehicle collision case: (1) “a child of four is not legally capable on contributory negligence”; (2) “in a suit by an infant to recover damages for personal injury, the negligence of a parent will not be imputed to his infant child”; and (3) “a four-year-old child is unable, as a matter of law, to mitigate her damages”. Id.

On September 15, 2011, the Supreme Court of Virginia awarded appeals on the Petition filed and cross-errors assigned by Mr. Waterman’s client in Gagnon v. Burns, Record No. 110767; and on the Petition filed by the opposition in Burns v. Gagnon, Record No. 110754. The appeals arise out of the 2010 Gloucester brain injury case resulting in a $6,100,000.00+ jury verdict.

The jury in Gagnon awarded principal amounts of $1,250,000.00 against Travis Burns, then Assistant Principal at Gloucester High School (“GHS”) and now Acting Principal of Page Middle School; $3,250,000.00 against the assailant, then a GHS student; and $500,000.00 against the assailant’s sister, then a GHS student too. It also award the brain injury victim pre-judgment interest retroactive to the assault and battery at GHS on December 14, 2006; which amounted to roughly $1,100,000.00 at verdict on August 27, 2010, and which continued to accrue at the rate of approximately $30,000.00/month thereafter.

The judge in Gagnon entered each award against each Defendant separately, thereby limiting collection by the brain injury victim to those respective amounts against each individual Defendant. On appeal, Gagnon argues that judgment should have been joint and several, thereby allowing collection of all amounts against any defendant – a critical point since Burns has $6,000,000.00 insurance coverage, the sister has filed Bankruptcy, and the assailant has few assets.

Burns assigned four errors on appeal in Gagnon: use of a deposition from a prior action; denial of statutory immunity; recognition of special relationship importing duty of care; and denial of sovereign immunity. The brain injury victim cross-appealed on sovereign immunity: if the Virginia Supreme Court were to reverse the trial judge’s finding of “ministerial duty,” then Gagnon argues he is entitled to retrial on the “gross negligence” exception.

By September 30, 2011, Gagnon must post an Appeal Bond of $500.00 and Gagnon and Burns must file Joint Appendix designations for Gagnon with the Virginia Supreme Court. The brain injury victim anticipates oral argument around December or January in Richmond, Virginia.

This month, Mr. Waterman attended “The Ethics of Negotiation in Mediation” in Richmond, Virginia, sponsored by the Virginia ADR Joint Committee of the Virginia Bar Association and the Virginia State Bar. Topics included mediating out-of-state, mediator background and “bad faith” disclosures, lawyer mediation conduct, and mediation case evaluation and settlement enforcement.

Virginia statistics show a drastic reduction in the number of jury trials, which is attributed to the proliferation of mediation and other alternative dispute resolution (“ADR”). Only about one-half of one percent (00.50%) of all cases recently filed in Virginia resulted in jury trial.

On September 13, 2011, Mr. Waterman settled without having to file suit a medical malpractice claim against a Wal-Mart Pharmacy in Williamsburg, Virginia. It was a clear case of liability for the pharmacist dispensing 10 times the strength of a medication prescribed by a neurologist in Newport News, Virginia.

The over-medication immediately caused serious adverse effects on the patient from Williamsburg, Virginia, who had to miss work for a week. Fortunately, like most mis-prescription cases of medical malpractice, this one caused no permanent disability.

On September 3, 2011, Mr. Waterman again was selected by his peers for inclusion in the 2012 18th Edition of The Best Lawyers in America. His legal recognition was for the practice areas of Medical Malpractice Law – Plaintiffs, Personal Injury Litigation, and Personal Injury Litigation – Plaintiffs.

Mr. Waterman is in his 30th year of law practice. He has been with Patten, Wornom, Hatten & Diamonstein in Newport News for 25 years, which currently is the third longest active tenure with the law firm.

On September 1, 2011, a 32-page Order was entered in a car accident suit pending in Circuit Court for Charlottesville, Virginia. The consolidated personal injury and wrongful death cases are Lester v. Allied Concrete Co., No. CL08-150 c/w CL09-223.

The Lester auto accident litigation marquees the increasing importance of “social media” in personal injury and wrongful death matters. Plaintiff’s Facebook page became a discovery and post-trial battleground.

Plaintiff’s lawyer in Lester was found to have violated statute, rules and ethics and sanctioned for having his client delete Facebook photographs previously requested in discovery, for withholding related email from in camera inspection, and for misrepresenting information to the Court. The vehicle accident victim himself was found guilty of deactivating his Facebook and deleting its photos after discovery was requested and of making misrepresentation about the same and other facts; and was referred for criminal prosecution for perjury.

The Judge in Lester declared that “attorney-client privilege” and “work product doctrine” were inapplicable to the evidentiary spoliation and other misconduct. Finally, the Judge reduced Plaintiff’s damages award for the wrongful death of his wife by vehicle collision from $6,227,000.00 to $2,100,000.00 in what had been one of the largest Virginia jury verdicts in 2010.