Mr. Waterman wishes everyone a very happy New Year’s Eve and wonderful 2012! May the spirit of good will carry throughout the year for your family, friends, and you!
Too often celebration ends in personal injury and wrongful death by vehicle accident due to operators being under the influence. Please be responsible – especially when it comes to using a designated driver!
The Fall 2011 issue of The Trial Lawyer, The National Trial Lawyers’ quarterly magazine, features as 12-page article: “2012 Mass Tort Drug Chart”. It tabulates the status of product liability litigation, principally against pharmaceutical manufacturers.
The following are the 37 prescription drugs and prosthetic devices covered: [1] Duragesic Pain Patch (Fentanyl); [2] Depakote; [3] Digitek (Digoxin); [4] Botox and Botox Cosmetic (Botulinum toxin Type B); [5] Crestor (rosuvastatin calcium); [6] Seroquel (quetiapine); [7] Heparin; [8] Cipro (Ciprofloxacin); [9] Yasmin, Yaz and Ocella; [10] Tasydol/Aprotinin; [11] Tequin; [12] DePuy ASR Hip Implant; [13] Zyprexa; [14] Gadolinium/NSF; [15] Avandia (rosiglitazone maleate); [16] Paxil; [17] Accutane (isotretinoin); [18] Propulsid (Cisapride); [19] Risperdal (risperidone); [20] Topamax (Topiramate); [21] Zicam; [22] Fosamax (alendronate); [23] Zelnorm; [24] NUVAR – ING; [25] Ortho Evra; [26] Levaquin; [27] Chantix; [28] Viagra (sildenafil); [29] Zoloft (sertraline hydrochloride); [30] Depo-Provera; [31] Provera (Medroxy-progesterone acetateis); [32] Ketek (telithromycin); [33] Permax (pergolide); [34] Prempro; [35] Premarin (conjugated estrogens); [36] Amiodarone (Cordarone and Pacerone); and [37] Darvocet. Mr. Waterman and his law firm have been involved with pharmaceutical and other class actions, collective actions, and other multi-party litigation.
Mr. Waterman is an inaugural member of The National Trial Lawyers’ “Top 100 Trial Lawyers in Virginia”. His practice focuses on vehicle accidents, medical malpractice, sexual abuse and other types of personal injury and wrongful death litigation such as product liability.
Whether you celebrate Christmas, Hanukkah, Kwanzaa, or another holiday, Mr. Waterman wishes you a very happy one! May your family, other loved ones, and you be joyous and safe in your special celebration.
On December 19, 2011, Mr. Waterman settled another car accident claim against the offending motorist insured of State Farm Mutual Automobile Insurance Company. It is the companion claim for those of two other claimants in the same family.
The victim driver was relocating his family from New Jersey to Virginia, when the car accident occurred in Goochland County. He incurred significant hotel rooming and auto leasing in Richmond, since they had no home or other vehicle in Virginia, in addition to his medical substantial expenses at MCV Hospital with MCV physicians.
On November 23, 2011, Circuit Court for the City of Alexandria, Virginia, rejected defendant healthcare provider’s medical malpractice claim of privilege based on the 2011 Amendment of Va. Code Ann. §8.01-581.17, and ordered the hospital to produce its so-called “incident report”. The pivotal case is Mary Hamill v. INOVA Alexandria Hospital, No. CL-10004231.
Significantly, the healthcare provider in Hamill v. INOVA introduced testimony that the patient’s nurse “reported the incident electronically to Inova Alexandria Hospital’s quality department,” with the purpose ostensibly being “to initiate a peer review of the incident to determine if measures should be taken to improve the quality of care”. Defendant’s Memorandum at 3. INOVA unsuccessfully asserted by deposition that the medical malpractice incident report “automatically goes to Quality,” with the quality department doing a “post-event assessment”. Id. at 6.
Plaintiff patient in Hamill v. INOVA successfully relied chiefly on Mr. Waterman’s landmark medical malpractice appeal, Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006). Therein the Virginia Supreme Court upheld the discoverability and the admissibility of incident reports, rejecting that a healthcare provider routing facts about patient care through a covered committee created privilege. Id. at 532.
Hamill v. INOVA undercuts the medical malpractice defense viewpoint by W. Scott Johnson, Esq. of Hancock, Daniel, Johnson & Nagle, P.C. in his article “2011 General Assembly Amendments to Va. Code §8.01-581.17: Quality Assurance and Peer Review Protection,” Virginia Lawyer, Vol. 60 (Dec. 2011). Plaintiff counsel are invited to contact Mr. Waterman for a copy of the 11/23/11 Order in Hamill v. INOVA.
Mr. Waterman compromised a car wreck claim for personal injuries arising because the offending motorist from Yorktown traveling on Marcella Drive failed to yield the right-of-way and broadsided the victim from Newport News traveling on Executive Drive in Hampton, Virginia. It was not necessary to file suit; his negotiations with the insurance adjuster were successful.
The car accident victim treated 3 months in Hampton with the following healthcare providers: Sentara CarePlex, Peninsula Emergency Physicians, Tidewater Diagnostic Imaging, Sentara Urgent Care, and Dominion Physical Therapy. This was the second motor vehicle claim Mr. Waterman has handled for the victim family.
Mr. Waterman a car accident case arising out of a two-car collision involving residents of Newport News. The victim underwent healthcare treatment at Riverside Regional Medical Center and physical therapy.
Suit was filed for the vehicle collision claim. But the lawsuit did not have to be tried or served.
Mr. Waterman settled for tens of thousands of dollars a vehicle accident case arising in James City County, Virginia, because the offending motorist rear-ended the victim. A lawsuit was filed in Williamsburg to protect the statute of limitation, but did not have to be served.
The car collision victim underwent medical treatment and care in Williamsburg, James City County and York County for personal injuries over a 6-month period with the following healthcare providers: Sentara Williamsburg Regional Medical Center, Tidewater Physicians Multispeciality Group, Tidewater Diagnostic Imaging, Williamsburg Physical Therapy & Sports Therapy Center, and Tidewater Pain Management, Inc. Mr. Waterman usually is able to resolve motor vehicle accidents cases without resort to trial and often without even filing suit.
In December, 2011, the 2012 Edition of Virginia’s Best Lawyers featured on its cover Patten, Wornom, Hatten & Diamonstein as Virginia’s “lawyers of the year”. Five partners were recognized individually – Mr. Waterman, Mr. Patten, Mr. Hatten, Mr. Garnett, and Mr. Shoemaker – appearing on the cover and inside.
On December 5, 2011, Mr. Waterman filed Reply Brief in Gagnon v. Burns, No. 110767 c/w Burns v. Gagnon, No. 110754, in the Virginia Supreme Court at Richmond, Virginia. Those consolidated brain injury appeals raise issues of liability and damages on his $6,100,000.00 jury verdict in Circuit Court for Gloucester County, Virginia.
“We review matters of law de novo,” Banks v. Mario Indus. of Va., Inc., 274 Va. 438, 451 (2007); cites the crime victim in support of his appellate claim for joint and several liability in Gagnon v. Burns. “[C]ourts have the duty to correct a verdict that plainly appears to be unfair or would result in a miscarriage of justice”. Norfolk Bev. Co., Inc. v. Cho, 259 Va. 348, 353 (2000).
Another issue in the consolidated brain injury appeal before the Virginia Supreme Court in Burns v. Gagnon, No. 110754 c/w Gagnon v. Burns, No. 110767 is the admissibility of the key witness’ de bene esse deposition taken in the companion predecessor action that was non-suited. Va. Sup. Ct. Rule 4:7(a)(7) provides that depositions taken in a prior action may be used in a subsequent action “involving the same subject matter…between the same parties…as if originally taken therefore”.
Also pertinent to the Burns/Gagnon crime victim case is Rule 4:7(a)(4)(B), which provides that a witness’ deposition may be used at trial if the witness is “out of this Commonwealth”:
The deposition of a witness, whether or not a party, may be used by any party for any purpose in any action upon a claim arising at law…if the court finds: (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of this Commonwealth, unless it appears that the absence of the witness was procured by the party offering the deposition;
“[W]e adhere to the pain language used in the rule.” Thornton v. Glazer, 271 Va. 566, 570-571 (2006)(delineating that in King v. International Harvester Co., 212 Va. 78 (1971) “the absence of the witness was procured by the party offering the deposition” where the witness was the party plaintiff himself). Greater Richmond Transit Co. v. Massey, 268 Va. 354 (2004)(rejecting defense styling that eyewitness’ absence was “not the type of absence” allowing admission of deposition at trial under Rule 4:7(a)(4)); Lombard v. Rohrbaugh, 262 Va. 484, 500 (2001)(holding “Rule 4:7 of the Rules of the Virginia Supreme Court provides for use of depositions in court proceedings ‘against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof’.”); Willis v. Tenekjian, 68 Va. Cir. 203, 204-205 (Portsmouth Jul. 1, 2005)(holding deposition of retained medical expert located out-of-state and more than 100 from the Courthouse meets both independent criteria of Rule 4:7(a)(4)(B) for use as evidence at trial in lieu of witness live).
By contrast, Ayala v. Aggressive Towing and Transport, Inc., 276 Va. 169, 482-483 (2008) overturned introduction of a non-party’s “admission of responsibility in the form of a guilty plea on manslaughter charges,” explaining that its evidentiary use “is not governed by statute or Rule, but by hearsay exception doctrine governing declarations against a non-party’s penal interest.” But the prior testimony in the Burns/Gagnon brain injury action is distinguishable: it is a deposition governed by Rule 4:7(a) – plus the witness at bar was out-of-state and could not be commanded by Subpoena to return to Virginia for hearing or trial.
Moreover, even under the hearsay rule [which does not govern], admission is allowed when “a sufficient reason is shown why the original witness is not produced [at trial]”. Gray v. Graham, 231 Va. 1, 5 (1986); and in the Burns/Gagnon brain injury lawsuit, Plaintiff asserts the sufficient reason was stated by the witness in his de bene esse deposition: Diaz was active duty military on a 5-year hitch stationed out-of-state on a federal base enclave in Georgia awaiting deployment abroad during war-time. Further, this crime victim case also met the other requisites of Gray: “(1) that the party against whom the evidence is offered, or his privy, was a party on the former trial; (2) that the issue is substantially the same in the two cases; and (3) that the witness who proposes to testify to the former evidence is able to state it with satisfactory correctness”. 231 Va. at 5.
