Virginia Injury Attorney Blog

On July 9, 2009, Rayford Lavaughn Parrott of Williamsburg, Virginia, followed too closely and rear-ended Lottie V. Merritt-Lewis in a car crash on Lafayette Street, knocking her car over a curb, through bushes, and into a parked car. During the following 2 years, the victim incurred medical expenses of more than $34,000.00 plus over $1,500.00 in lost wages.

Nonetheless, despite having $100,000.00 in automobile insurance coverage for the offending motorist, Progressive offered the victim only $5,800.00 in compensation for her medical expenses, loss wages, and other personal injury damages arising out of the car collision. Hence on April 24, 2012, Mr. Waterman effected service of process on the Defendant in Lottie V. Merritt-Lewis v. Rayford L. Parrott, No. 830CL11000575-00 in Circuit Court for the City of Williamsburg and James City County, Virginia.

On April 20, 2012, the Associate Press reported the Virginia Supreme Court’s opinion in Burns v. Gagnon 283 Va. 657 (2012), Mr. Waterman’s brain injury appeal of his $6,000,000.00+ verdict in Gloucester Circuit Court, Virginia. Dailypress.com headlined “Virginia Supreme Court orders new trial in Gloucester school fight lawsuit,” and WVEC.com headlined “New trial ordered in Gloucester school fight lawsuit”.

Also on April 20, 2012, valawyersweekly.com marqueed “School principal faces gross negligence claim” in Burns/Gagnon. Like the other online articles, it noted that Assistant Principal Travis Burns was already found liable to the crime victim for $1,250,000.00 for “simple negligence by a Gloucester jury”.

On April 23, 2012, dailypress.com followed up with more in-depth coverage of the Burns/Gagnon brain injury decision, titled “State high court rules Gloucester student should get new trial”. As its reporter observed, a jury could conclude that Assistant Principal Burns was in “utter disregard of prudence amounting to complete neglect of Gagnon’s safety;” and that "if a jury finds Burns committed gross negligence, then the damage award against him will stand and be payable by a multi-million dollar insurance policy the school system holds for him”. (emphasis added).

Crime victim Gagnon cannot collect from the student assailant, who lacks assets. He also cannot collect against the student instigator, who filed Bankruptcy.

On April 24, 2012, Daily Press published the same dailypress.com article in newsprint, but with the crime victim subtitle “Circuit court faulted for ‘refusing to instruct the jury on gross negligence’” and with the bolded block, “A key issue at the trial focused on whether (Travis) Burns, in not investigating a student’s claim that a fight involving (Gregory) Gagnon was imminent, committed simple negligence or gross negligence.” As the article also reported: “Burns told the student he would alert security and look into it, according to court testimony.” (emphasis added).

Virginia Business magazine recently published its “Virginia Business List of Leaders” for 2012. Notably, it documents under “Hospitals” that the Hampton Roads health systems Mr. Waterman sues for medical malpractice vis-à-vis their patients actually are “big business” – financial goliaths making hundred of millions of dollars of patient revenues every year!

Three Hospitals of Sentara’s system alone have annual revenues from patients of roughly $1 billion! Sentara Norfolk General (www.sentara.com) was $612,513,000.00; Sentara Virginia Beach General (www.sentara.com), $258,786,000.00; and Sentara CarePlex in Hampton (www.sentara.com), $226,709,000.00.

Indeed, three Hospitals in Bon Secours’ system top $1 billion in patient revenues annually: Bon Secours St. Mary’s in Richmond (www.bonsecours.com), $445,973,000.00; Bon Secours Memorial Regional Medical Center in Mechanicsville (www.bonsecours.com), $292,712,000.00; and Bon Secours Maryview Medical Center in Portsmouth (www.bonsecourshamptonroads.com), $279,500,000.00. Obviously this does not count the substantial patient revenues of Mary Immaculate Hospital in Newport News and Bon Secours nursing homes on the Peninsula.

Riverside Regional Medical Center in Newport News (www.riversideonline.com) – against which Mr. Waterman has litigated multiple patient fall cases – itself has $352,879,000.00 of yearly patient revenues, making it the 12th largest patient revenue Hospital in Virginia. Of course, numerous other facilities and practices of Riverside make it a roughly half-billion-dollar system.

Other “top ten” highest-revenue Virginia Hospitals include: first-place Inova Fairfax (www.inova.org/ifh), $1,149,521,000.00; University of Virginia Medical Center in Charlottesville (www.uvahealth.com), $994,099,000.00; VCU Health System in Richmond (vcuhealth.org), $963,682,000.00; Carilion Medical Center in Roanoke (carilionclinic.org), $788,712,000.00; Chippenham Johnston Willis Medical Center in Richmond (cjwmedical.com), $572,067,000.00; Mary Washington in Fredericksburg (marywashingtonhealthcare.com), $514,356,000.00; Winchester Medical Center (valleyhealthlink.com), $462,921,000.00; and Henrico Doctors’ (henricodoctorshospital.com), $418,838,000.00. Chesapeake Regional Medical Center (www.chesapeakeregional.com) at $264,458,000.00 ranks 19th; Children’s Hospital of the King’s Daughters in Norfolk (www.chkd.org) at $257,603,000.00 ranks 21st.

On April 20, 2012, the Virginia Supreme Court opined “we reverse in part and remand the case to the circuit court for a new trial limited to Gagnon’s gross negligence claim against Burns” in Mr. Waterman’s brain injury appeal, Burns v. Gagnon, 2012 Va. LEXIS 93, *35 (Apr. 20, 2012). It held that “the circuit court erred in refusing to instruct the jury on gross negligence” vis-à-vis sovereign immunity under common law, as had been requested by Mr. Waterman. Id. at *28.

“Upon receiving Diaz’ report [that ‘Gagnon was going to get into a fight sometime that day’], Burns wrote down Gagnon’s name, and said he would ‘alert security,’ that ‘he would look into it,’ and that he would ‘take care of it’, noted the Burns/Gagnon crime victim opinion. “In our view, the fact that Burns did not respond to Diaz’ report – or at least did not respond in time to stop the fight – could possibly lead a jury to conclude that he acted in ‘utter disregard of prudence amounting to a complete neglect of [Gagnon’s] safety,’ and thus was grossly negligent,” concluded the Supreme Court of Virginia. Id. (emphasis added).

As a legal predicate, the Virginia Supreme Court found that “Burns owed a duty to supervise and care for Gagnon” and that Burns is “liable if he failed to ‘discharge his…duties as a reasonable prudent person would under the circumstances’.” Id. at *16 (emphasis added). “By law, Gagnon’s parents had to send Gagnon to school, where it was the responsibility of Burns and other school officials to supervise and ensure that ‘students could…have an education in an atmosphere conducive to learning, free of disruption, and threat to person,’” observed the Burns/Gagnon brain injury opinion. Id. (emphasis added).

Also, the Virginia Supreme Court rejected Burns’ attempts to exclude the pivotal testimony of Shannon Diaz against him, which was taken in the initial brain injury suit against Burns. Id. at *28-35. Burns/Gagnon held that Diaz was unavailable for trial in person; that his de bene esse deposition was taken in a previous “action involving the same subject matter” and “between the same parties”; and that Diaz’ affidavit clearly was used for “the sole purpose of refreshing his recollection,” and Diaz’ statements to which Burns objected “were either not hearsay or [were] admissible under a well-established exception to the rule against hearsay”. Id.

Additionally, the Virginia Supreme Court found that Burns did not have any statutory immunity for Gagnon’s brain injuries. Burns/Gagnon explained that Va. Code Ann. §8.01-220.1:2(A) applies only to “teachers,” not “principals”; and that Va. Code Ann. §8.01-220.1:2(B) applies to someone’s “good faith reporting,” not someone who “failed to respond to such a report.” Id. at *19-23.

Burns/Gagnon did not reach Gagnon’s cross-appeal on joint and several liability because of retrial on Gagnon’s gross negligence claim. Id. at *35. Finally, Justice Mims cogently dissented as to sovereign immunity under common law in the brain injury appeal opinion. Id. at *36-37.

Trial is the monthly magazine of the American Association for Justice (“AAJ”) www.justice.org, formerly the American Trial Lawyers Association (“ATLA”), of which Mr. Waterman has been a member for decades. The cover of its April, 2012 issue headlines “DAMAGES: WORKING TOWARD MAKING YOUR CLIENTS WHOLE”.

The lead article is “Rethink Cross-Exams in Traumatic Brain Injury Cases”. Id. at 16-20. Its teaching coincides with Mr. Waterman’s experience in Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

Another article is “Illuminate Damages with a Video Settlement Brochure”. Id. at 26-29. Mr. Waterman recently used such a video to obtain a Virginia recording-setting settlement at mediation of a medical malpractice case.

“Dealing with Low Ceilings” is another Trial article. Id. at 30-34. Mr. Waterman faces such a damages “cap” – roughly $2,000,000.00 – in all Virginia medical malpractice cases.

“Recovery for Damaged Credit” is a fourth damages article. Id. at 22-25. It may be applicable in wrongful death as well as personal injury cases.

Askew v. Collins, No. 110323 (Va. Mar. 2, 2012) is a special caseof defamation and offset. The Virginia Supreme Court affirmed the trial court entering judgment on the full jury verdict of $350,000.00.

First, “as a matter of law, the jury needed no proof of damages suffered by Collins on which to predicate its compensatory award based upon the per se defamation negligence challenged by Askew. The reputational damages to Collins resulting from Askew’s statement was properly presumed, and the jury’s award of compensatory damages to Collins was appropriate under established common law principles of per se defamation.” Id. at 6.

Second, the January 8th “statement, for which Askew was found liable by the jury, was never alleged to have been made by any other defendant. The injury resulting from the [January 8th] statement was separate and distinct from the injury resulting from the publication of the newspaper article on January 21st, therefore making Code §8.01-35.1(A) inapplicable in this case,” Id. at 7; and Askew not entitled to any reduction for the $120,000.00 settlement paid by The Daily Press, City of Hampton and its employee.

Commonwealth v. Blaxton, No. 102360 (Va. Mar. 2, 2012) involved the Sexual Violent Predators Act (“SVPA”), Va. Code Ann. 37.2-900, et seq. Defendant committed rape, forcible sodomy and attempted sodomy on a crime victim.

Since his criminal sexual abuse rendered him a sexually violent predator, the Virginia Supreme Court held that as a matter of law that he was ineligible for transfer out-of-state for supervised probation. Id. at 3-4. Hence rules of the Interstate Commission for Adult Supervision (“ICAOS”) under the Interstate Compact, Va. Code Ann. §53.1-176.2, applicable to a mere “sex offender” did not control. Id. at 4.

John Crane, Inc. v. Hardick, No. 101909 (Va. Mar. 2, 2012) is a wrongful death case under maritime law handled by Mr. Waterman’s law firm. That asbestos case appeal addressed 3 points.

First, Hardick held “the trial court erred by allowing the jury to award Mrs. Hardick non-pecuniary damages for the wrongful death of Hardick, a seaman.” Id. at 31. Specifically, the Virginia Supreme Court found plaintiff not entitled to “the $2 million award for Hardick’s pain and suffering and the $1.15 million award for Mrs. Hardick’s loss of society” under maritime law. Id. at 11-25.

Second, Hardick held defendant “waived part of its second assignment of error by failing to include any ‘argument’ or ‘authorities’ relating to the admissibility of Mrs. Hardick’s evidence regarding asbestos exposing from gasket removal in violation of Rule 5:27”. Id. at 31-32. In its wrongful death appeal, defendant assigned error to the “introduction” of such evidence, but instead fatally briefed error on the “sufficiency” of evidence. Id. at 25-26.

Third, Hardick held “the trial court did not abuse its discretion when it excluded Hewitt’s testimony” related to the United States Navy from the wrongful death trial. Id. at 32. “In this case, the trial court found that Hewitt’s testimony and the documents upon which his testimony would have been based were irrelevant and speculative because Hewitt could tie neither the documents at issue nor any of his personal experience directly to Hardick.” Id. at 26-31.

Notably, Mr. Waterman’s firm has filed for rehearing on 1 point of the Hardick wrongful death opinion. Plaintiff argues that even if the deceased is a “seaman,” under the Jones Act she was entitled to maintain her survival claim for the deceased’s pre-death pain and suffering for which the jury awarded $2,000,000.00.

Galumbeck v. Lopez, No. 102416 (Va. Mar. 2, 2012) is a medical malpractice appeal. It rejected all 4 of the defendant doctor’s assignments of error.

First, Galumbeck found no juror misconduct despite a juror nodding to plaintiff, shaking the hand of his expert, and telling the expert “good job” re his testimony. Id. at 4. The Virginia Supreme Court observed that at the medical malpractice trial the juror “explained his actions and those explanations were found to be credible by the trial court”. Id. at 7.

Second, the medical malpractice defendant was deemed to have waived his objections about a surgical log not being admitted. Id. at 7-10. Galumbeck found an insufficient appellate record was made because: (1) “all of the relevant discussions related to this issue were held off the record in a sidebar conference”; and (2) “Dr. Galumbeck’s ‘proffer’ was recorded after the court had adjourned for the day and outside of the presence of opposing counsel”. Id. at 9.

Third, Galumbeck held the admissibility of board certification evidence also was waived on medical malpractice appeal. The grounds were (1) defendant not requesting a ruling on his pre-trial motion in limine; (2) his trial objection being made off-record in another sidebar conference; and (3) he himself introduced the same evidence as part of his own exhibit. Id. at 9-12.

Fourth, Galumbeck upheld the admissibility of medical bills despite plaintiff not claiming medical expenses as damages. At medical malpractice trial, the medical bills were “arguably relevant” because they only “were offered to contrast the level of emphasis Dr. Galumbeck placed on the financial aspect of the transaction with the quality of the medical care he delivered.” Id. at 12-13.

In the automobile accident case of Wakole v. Barber, No. 102176 (Va. Mar. 2, 2012), the Virginia Supreme Court held that “as long as there is evidence to support an award of non-economic damages, plaintiff is allowed to break the lump sum amount into its component parts and argue a ‘fixed amount’ for each element of damages claimed as long as the amount is not based on a per diem or other fixed basis.” Id. at 8. It explained further that argument did not violate the “unambiguous…plain meaning” of Va. Code Ann. §8.01-379.1: “Nothing in this provision states when addressing the jury regarding the total amount sought, the plaintiff may only do so in terms of one lump sum.” Id. at 9.

“During Barber’s closing argument, she presented a chart from which the jury could calculate damages, which she called a formula.” Id. at 3 (emphasis added). Nonetheless the Wakole car crash opinion held that reference to “formula” acceptable: “It is clear from reading the record that the formula to which counsel referred was derived from Virginia Model Jury Instructions – Civil, No 9.000.” Id. at 8.