Virginia Injury Attorney Blog

On February 29, 2012, Mr. Waterman argued in the brain injury appeals of Burns v. Gagnon and Gagnon v. Burns, Record Nos. 110757 & 110767 in the Supreme Court of Virginia. It likely will be weeks before a written opinion is handed down.

Burns is appealing his liability, while Gagnon is cross-appealing gross negligence, in Burns; and Gagnon is appealing collection of his damages award in Gagnon. On August 27, 2010, a jury in Circuit Court for the County of Gloucester, Virginia, awarded the crime victim approximately $6,100,000.00 in damages for his personal injuries.

During February 24-25, 2012, Mr. Waterman attended the “Reptile in Trial” Seminar in Raleigh, North Carolina. It featured noted jury consultant, David Ball, Ph.D.; and medical malpractice trial lawyer, Don Keenan, Esq.

Ball and Keenan authored Reptile: The 2009 Manual of the Plaintiff’s Revolution. Reptile also applies to vehicle accidents, product liability, premises liability, and other personal injury and wrongful death cases.

On February 24, 2012, the Virginia Supreme Court entered Order in the brain injury appeal of Burns v. Gagnon, No. 110754, granting Gagnon’s Motion to Strike re Section 1 of Burns’ 12/5/11 Reply Brief. Gagnon asserted that procedurally Burns had exceeded the permissible scope of replying, and that substantively Burns had no factual or legal basis for that section; and by Response filed on February 21, 2012, Burns belatedly withdrew his argument in Section 1 and consented to the Court striking it.

Burns v. Gagnon is a 2010 crime victim case in which a Gloucester jury awarded Mr. Waterman’s client approximately $6,100,000.00 for an assault and battery on school premises and hours. Oral argument before the Court in Richmond on the merits is scheduled for one hour on Leap Day, February 29, 2012.

Landrum v. Chippenham and Johnston-Willis Hospitals., Inc., 282 Va. 346 (2011) is a medical malpractice case. Therein the Virginia Supreme Court held that the Circuit Court for the City of Richmond, Virginia did not abuse its discretion in excluding expert witnesses for not obeying pretrial orders. Id. at 349.

“Pursuant to Rule 4:12(b)(2), a trial court may sanction a party for failing ‘to obey an order or provide or permit discovery’.” Id. at 352. The Court in the Landrum medical malpractice appeal rejected that the judge disregarded Va. Sup. Ct. Rule 4:1(g) in treating the unsigned expert designation as a nullity, because Va. Sup. Ct. Rule 1(A):4(2) was violated by out-of-state pro hac vice counsel, but not local Virginia-licensed counsel, signing the pleading. Id. at 353-355.

Significantly, Landrum held that Rule 4:12(b)(2) does not require a judge to “determine whether a party’s failure to obey an order has caused another party to suffer prejudice before it may impose a sanction.” Id. at 355. The Court in the Landrum medical malpractice decision upheld the judge’s discretion to exclude experts where counsel not only violated the scheduling order by 2 months delay, but also failed to heed the judge’s warning to cure within 1 week or face sanctions. Id. at 355-356.

Finally, Landrum also is noteworthy for finding that the medical malpractice plaintiff had preserved his Rule 4:1(g) argument for appeal. The Virginia Supreme Court observed that even though plaintiff did not cite Rule 4:1(g) to the judge, by the argument alone the judge was given “sufficient ‘notice of due substance of the objection’ to comply with the requirements of Rule 5:25”. Id. at 353 n.7.

On November 4, 2011, the Virginia Supreme Court issued its opinion in the automobile accident appeal of Ruhlin v. Samaan, 282 Va. 371 (2011). It upheld the Circuit Court of Chesterfield County allowing use of the transcript of an insurer’s recorded telephone statement “to refresh a witness’s recollection”. Id. at 377-380.

“Code §8.01-404 prevents the impeachment of a witness by use of an affidavit, statement or transcript made after an accident but before trial,” observed the Court in the Ruhlin car crash case. Id. at 378. “Code §8.01-404 only prohibits the use of a written statement itself to directly impeach a witness.” Id. at 379.

But “[t]he act of refreshing a witness’s recollection does not involve contradicting that witness’s testimony,” delineated the Court in the Ruhlin vehicle collision matter. Id. (emphasis added). “Rather, ‘when a witness has a memory lapse on the stand and forgets some portion (or even all) of the facts of the matter about which [he or she is] called to testify, a party may attempt to refresh the witness’s memory by having the witness examine materials relating to the matter for which they are testifying’.” Id.

“After examining such [refreshing] materials, a witness may then ‘speak to the facts from his own recollection’.” Id. Indeed, the Ruhlin auto accident opinion noted that in 2004 the Virginia Supreme Court “held that Code §8.01-404 did not preclude the introduction of a witness’s prior written statement as a party admission in a plaintiff’s case-in-chief because, at that point in the trial, the statements were not being used to ‘contradict’ the witness.” Id.

The February 2010 issue of Trial, the monthly magazine of the American Association for Justice (“AAJ”), marquees “Moving Violations”. It features such vehicle accident topics as “When Seat Belts Stop Short of Safety,” “Gear Up for Bicycle Accident Cases,” “Driving toward Justice in a Dram Shop Case,” and “Teaching Teens about Safe Driving”; plus a product liability one entitled “Toxic Hip Replacements”.

Mr. Waterman has been a member of AAJ since 1987. He regularly handles vehicle accident, product liability, and other personal injury and wrongful death cases.

On February 10, 2012, the Supreme Court of Virginia scheduled oral argument for February 29, 2012, in Mr. Waterman’s brain injury appeal of Burns v. Gagnon and Gagnon v. Burns, Record Nos. 110754 & 110767. Each case appealed is accorded 30 minutes, split between the parties equally.

In Burns, Burns appealed 4 liability points – legal duty, sovereign immunity, statutory immunity, and deposition admissibility – and Gagnon cross-appealed on the liability issue of gross negligence. In Gagnon, Gagnon appealed on the joint and several liability of Burns for the roughly $6,100,000.00 awarded to the crime victim.

On February 9, 2012, Mr. Waterman filed Motion to Strike of Appellant/Appellee/Cross-Appellant, Gregory Joseph Gagnon, in Burns v. Gagnon, Record No. 110754 in the Supreme Court of Virginia. Burns is the brain injury appeal from the 2010 jury award of approximately $6,100,000.00 in Circuit Court for Gloucester County, Virginia.

Gagnon’s Motion in Burns seeks to strike Section 1 of Reply Brief of Appellant, Travis Burns. The Motion and Memorandum in Support argue that Section 1 impermissibly raises new argument and, moreover, that the argument was not preserved for appeal, was not raised in the trial court, and is not well-grounded in fact (because of Gagnon having been an adult entitled to file his brain injury lawsuit when he did).

Toward evaluating a potential medical malpractice claim, pursuant to Va. Code Ann. §8.01-413(B) Mr. Waterman sought a patient’s “records or papers” from Maryview Nursing Care Center in Suffolk, Virginia. His request was made without any suit pending and included inter alia any so-called incident reports.

Through legal counsel on January 19, 2012, that Bon Secours nursing home provided 16 Quality Care Reports, but redacted from each of them everything under the general heading of “NATURE OF THE INCIDENT” – which constituted more than one-third the informational content of all 16 forms – ostensibly “to remove deliberative analysis” that supposedly was “privileged by Va. Code §8.01-587.17” as amended in 2011. Naturally Mr. Waterman objected to such obviously overbroad redactions.

On January 31, 2012, Maryview/Bon Secours belatedly provided all 16 Quality Care Reports unredacted. Significantly, the unredacted forms disclosed 10 subsections headed “BEHAVIORAL,” “BLOODY/BODY FLUID EXPOSURE,” “BURN,” “COMPLAINT,” “EQUIPMENT RELATED,” “FALL,” “IV/MEDICATION RELATED,” “PROPERTY LOSS/DAMAGE,” “SKIN INTEGRITY” and “TREATMENT/PROCEDURE RELATED” – the format of which was check-the-preprinted-boxes and reflected core facts pertinent inter alia to a patient fall at issue.