Virginia Injury Attorney Blog

On June 7, 2012, in Mansfield v. Bernabei, No. 111314 (Va. Jun. 7, 2012), the Virginia Supreme Court upheld the doctrine of absolute judicial privilege vis-à-vis “communications made before the filing of an action”. Id. at 1. That Fairfax County special case rejected a retaliatory personal injury suit for pre-filing defamation after the underlying action was dismissed on summary judgment despite being in “good faith” and “not frivolous, unreasonable or without foundation”. Id. at 2.

“In the Commonwealth, it is well settled that words spoken or written in a judicial proceeding that are [material,] relevant and pertinent to the matter under inquiry are absolutely privileged against actions on the basis of defamation”. Id. at 6 (internal citations omitted). Mansfield observed further, “Absolute privilege clearly extends outside the courtroom.” Id. at 7.

“Thus, regarding the applicability of absolute privilege to communications preliminary to a proposed judicial proceeding, this Court adopts the rule expressed in the Restatement (Second) of Torts §586, 587 as well as the additional requirement that the disclosure be made only to interested persons.” Id. at 12-13. Mansfield reiterated: “For absolute privilege to attach, the communications must be ‘material, relevant or pertinent’ to the judicial process.” Id. at 13 (emphasis added).

“Applying this requirement to communications prelimary to proposed judicial proceedings requires a reviewing court to examine whether: (1) the statement was made preliminary to a proposed proceeding; (2) the statement was related to a proceeding contemplated in good faith and under serious consideration, and (3) the communication was disclosed to interested persons.” Id. In Mansfield, plaintiff’s counsel satisfied the test where the defamatory draft complaint was marked “For Settlement Purposes Only,” was sent under demand letter threatening to “initiate a formal legal action,” and was followed by filing of a substantially similar complaint within a week of demand. Id. at 13-14.

On June 7, 2012, the Virginia Supreme Court held in the 4-3 split decision of Cline v. Dunlora South, LLC, No. 110650 (Va. Jun. 7, 2012) that a landowner was not responsible for an auto accident caused by a tree on private land falling on a public highway in Albemarle County, Virginia. Despite the motorist suffering “severe and permanent injuries, including fractures of his cervical spine,” the Virginia Supreme Court ruled that the “duty owed by adjoining property owners is to refrain from engaging in any act that makes the highway more dangerous than in a state of nature or in the state in which it has been left,” id. at 9; not an affirmative “duty to protect travelers on an adjoining public road from natural conditions on his or her land”. Id. at 10.

Cline found no car collision liability notwithstanding that the tree was “’dying, dead and/or rotten’ at the time it fell, and had been in this condition for a period of ‘many years and exhibited visible signs of decay, which were open, visible and/or obvious,’… ‘the tree’s dead or decaying condition was or should have been known, by Defendant Dunlora’ and ‘Dunlora knew or should have known of the hazards presented by the dead, dying and/or rotten tree adjacent the public highway’.” Id. at 2-3. However, a lengthy dissent in Cline urges that “[w]ell known and ordinary principles of negligence should control this case,” including Restatement Second or Torts §363(2). Id. at 10-19.

On April 20, 2012, the Virginia Supreme Court split 4-3 in a case of first impression, recognizing as a civil cause of action “tortious interference with parental or custodial rights”. That special case, Wyatt v. McDermott, 283 Va. 685 (2012), was “upon questions of law certified by the United States District Court for the Eastern District of Virginia”.

Wyatt delineated a 4-prong test for a prima facie cause of action. Id.*19. In this special case it also identified at least two specific affirmative defenses: (1) “substantially equal rights”; and (2) “reasonable, good faith belief”. Id.*21-24.

Wyatt concluded that “this common law tort encompasses both tangible and intangible damages, including compensatory damages for the expenses incurred in seeking recovery of the child, lost services, lost companionship, and mental anguish.” Id.*20. Further, although injunction and custody orders cannot be awarded in such special cases, if a tortfeasor’s tort was intentional rather than negligent, i.e., deliberately committed with intent to harm the victim… and if the evidence is sufficient to support an award of compensatory damages, the victim’s right to punitive damages and the quantum thereof are jury questions.” Id.

Mr. Waterman again was selected for inclusion in “Virginia Super Lawyers” for 2012. This legal recognition marks the fourth time consecutively since 2009 that Mr. Waterman has been so honored.

Legal recognition in “Virginia’s Super Lawyer’s” is limited to no more than 5% of lawyers practicing in Virginia. Mr. Waterman was selected by his legal peers after an extensive polling and nomination process.

Mr. Waterman is 1 of only 27 lawyers honored in the entire state for "PERSONAL INJURY PLAINTIFF: MEDICAL MALPRACTICE"; and he is the first lawyer on the Peninsula so honored. This week The Virginia Gazette featured him under "NEWSMAKERS" for this legal recognition.

Washington Lawyer is the official monthly publication of the District of Columbia Bar. Mr. Waterman has been an active member in good standing of the D.C. Bar from 1995 to present.

The cover story in its June 2012 issue is “Beyond the Penn State Scandal: Child Abuse Reporting Laws”. That lead article about child sexual abuse includes the following sub-topics: A Culture Divided, Frightening Statistics, Society Mobilized, Mandatory Reporting, False Accusations, Call for Tougher Laws, Public Reluctance, Fostering Culture of Openness, and National Awareness Campaign. Id. at 22-30.

Toward helping such sexual crime victims, “We need to change the norm of silence and standing by to one of openness and engagement,” proclaims the President and Chief Executive of Prevent Child Abuse America. Id. at 25. Yet there is a countervailing fear: “The concern is that if everyone is a mandatory reporter, and if we get the public so enflamed, they may start seeing child abuse everywhere,” observes Thomas I. Hafemeister, Associate Professor specializing in health care law and policy at the University of Virginia School of Law. Id. at 26.

Under D.C., Virginia and other laws, in additional to being criminal, sexual abuse is actionable civilly for monetary damages. Mr. Waterman represents such crime victims.

On June 7, 2012, the Virginia Supreme Court issued a wrongful death opinion arising from a vehicle fire in Albemarle County, Funkhouser v. Ford Motor Co., No. 111207. By 4-3 decision, it found admissible prior vehicle fires and expert testimony thereon.

Re the admissibility of 4 prior similar occurrences, the pivotal point in the Funkhouser special case is plaintiff predicating his product liability claim solely on “failure to warn”. “Funkhouser does not advance a design defect theory and is not required to do so in order to introduce evidence of other similar occurrences.” Id. at 19-20.

“[S]ince Funkhouser does not assert that his minivan was defectively manufactured or designed, the specific mechanical cause of the Funkhouser minivan fire is not an element of his failure to warn claim,” explained the Virginia Supreme Court in the Funkhouser wrongful death appeal. “Rather, Funkhouser must establish the Funkhouser’s minivan was unreasonably dangerous for its untended use.” Id. at 14.

In turn, “Funkhouser was not required to allege a specific mechanical defect to establish the [requisite substantial] similarity of the fires [in the prior occurrences].” Id. at 16-17 n. 8. The Funkhouser special case opinion concluded, “Whether the Funkhouser minivan is unreasonably dangerous and whether Ford knew or should have known of the unreasonably dangerous condition are essential elements of Funkhouser’s failure to warn claim and were not proper issues for the court to resolve of Ford’s motion to exclude evidence of the other Windstar van fires.” Id. at 16.

Re the admissibility of expert testimony about prior similar occurrences, the Funkhouser wrongful death decision relied on Va. Code. Ann. §8.01-401.1. It held that plaintiff’s product liability expert could testify on direct examination about the 4 “substantially similar” prior occurrences and possibly about having relied upon (though not the details of) 3 other prior occurrences that were not substantially similar, and that the defense could cross-examine about the expert’s basis for the foregoing. Id. at 22-25.

The foregoing wrongful death opinion was reported at 284 Va. 214 (2012), but was withdrawn after a Petition for Rehearing was granted by Order dated September 17, 2012. On January 10, 2012, the Virginia Supreme Court effectively "reversed" its inital opinion, this time affirming the trial court's exclusionary evidentiary rulings by a 4-3 margin.

Mr. Waterman again was selected for inclusion in “Virginia Super Lawyers” for 2012. This legal recognition marks the fourth time consecutively since 2009 that Mr. Waterman has been so honored.

Legal recognition in “Virginia’s Super Lawyer’s” is limited to no more than 5% of lawyers practicing in Virginia. Mr. Waterman was selected by his legal peers after an extensive polling and nomination process.

Mr. Waterman is 1 of only 27 lawyers honored in the entire state for "PERSONAL INJURY PLAINTIFF: MEDICAL MALPRACTICE". He is the first lawyer on the Peninsula so honored.

On June 15, 2012, the Virginia Supreme Court in Richmond denied the Petitions for Rehearing of Travis Burns as Appellant and of Gregory Gagnon as Appellant/Cross-Appellant in the crime victim appeal of Burns v. Gagnon, No. 110754 c/w Gagnon v. Burns, No. 110767. That maintains the Court’s opinion handed down on April 20, 2012, Burns v. Gagnon, 283 Va. 657 (2012).

In 2010, a Gloucester jury found Burns guilty of simple negligence for the permanent brain injury suffered by Gagnon at Gloucester High School, and awarded aggregate damages of $6,100,000.00 against Defendants. The Virginia Supreme Court agreed with Gagnon that Burns also should have been tried on “gross negligence,” id. at 677-678 and 683; so another Gloucester jury will decide that, hopefully in 2012.

On April 20, 2012, the Virginia Supreme Court issued its opinion in Arnold v. Wallace, 283 Va. 709 (2012), a Fairfax County auto accident case. Appeal focused on admission of Plaintiff’s patient’s medical records and of Defendant’s medical expert testimony.

Arnold found that the auto collision Defendant satisfied the “business record” exception for admission of Plaintiff’s patient chart, and that “objection to the foundation of an entire chart does not encompass an objection to specific opinions in individual documents”. Hence the Virginia Supreme Court held Plaintiff had “waived” objection to hearsay opinions in the patient chart being admitted, as “it is incumbent, open the objecting party to identify the passages within a business record offered into evidence that contain inadmissible opinions.” Id.*1-7.

Arnold also found no abuse of discretion in the trial judge not disqualifying Defendant’s retained expert simply because she was in the same medical practice as Plaintiff’s consulting expert. Justice Mims wrote: “[A]s the party seeking disqualification, [the car crash Plaintiff] bore the burden of offering sufficient evidence that [Plaintiff’s expert] revealed confidential information to [Defendant’s expert].” Id.*7-9.

The Safety Report Spring 2012 issue covers “SEXUAL HARASSMENT: STILL A PROBLEM IN THE WORKPLACE”. A form of sexual abuse, it is reported by a recent AOL Jobs Survey that “one in six persons has been sexually harassed in the workplace” and that of those victims “43 percent say it was by a manager” – yet 65% of sexual harassment victims report it. Id. at 16.

Prohibited workplace sexual harassment occurs “when one employee makes continued, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, to another employee against his or her wishes.” See, Title VII of the Civil Rights Act of 1964. By Federal law, victims of such job-related sexual abuse can “recover damages for loss of income, emotional pain and mental anguish, inconvenience, loss of enjoyment of life and other damages”. Id. at 17.

In certain instances of work-related sexual harassment, Virginia law may entitle the victim additional restitution. Mr. Waterman handles select special cases like these.

The final article in The Safety Report’s Spring 2012 issue is “A Story of Disfigurement and Deception”. It recounted a Colorado medical malpractice case in which a young woman was misdiagnosed with breast cancer by pathologists, recommended to undergo immediate removal of both breasts by her surgeon, and post-removal informed by other reviewing doctors that she never had cancer. Id. at 62.

“That is when [the patient] learned for the first time that she had been the victim of medical malpractice and a victim of the ‘code of silence,’ which dominates the medical community.” Id. Such professional negligence likewise may constitute medical malpractice under Virginia law.

An article in the Spring 2012 issue of The Safety Report is “GET INVOLVED… STOP NURSING HOME ABUSE”. It observes that “while nursing homes are supposed to offer a safe haven for our elderly, all too often these homes offer a bastion for abuse.” Id. at 16.

“Based on the best estimates available to the National Center on Elder Abuse [www.ncea.aoa.gov], between 1 and 2 million Americans age 65 or older have been injured or abused by someone on whom they depended for care or protection.” Id. Odds are that those numbers will continue to rise, as the Centers for Disease Control and Prevention estimates the average American currently lives to be roughly 78 years old, id., which is likely acturial to increase and with it the use of nursing homes.

Nursing home abuse may manifest in many different ways, e.g., patient falls, chronic bedsores, inadequate hydration/diet, and medication errors. In Virginia, such neglect constitutes medical malpractice for which the patient and/or survivors may be entitled to compensation.