Virginia Injury Attorney Blog

On February 26, 2013, Mr. Waterman concluded a car accident case arising in James City County, Virginia. An out-of-state driver insured by State Farm and cited for “unsafe lane change” under Va. Code Ann. §46.2-804 allegedly forced a Newport News resident off of State Route 143 (Merrimac Trail) and into a roadside tree.

The car collision victim was transported by James City County Fire & Emergency Medical Services (“EMS”) to Mary Immaculate Hospital in Newport News, Virginia. That victim was treated by Hampton Roads Emergency Physicians, Hampton Roads Radiology Associates, Kingsley Lane Clinical Laboratory Associates, and Pinto Chiropractic & Rehabilitation.

THE VIRGINIA STATE BAR REQUIRED ALL LAWYERS TO POST THE FOLLOWING DISCLAIMERS ON ALL CASE-RELATED POSTS. MR. WATERMAN'S CASE RESULTS AND CLIENT TESTIMONIALS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. THEY DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE BY HIM.

During February 22-23, 2012, Mr. Waterman attended the Wrongful Death Retreat of the Virginia Trial Lawyers Association (“VTLA”) entitled “Understanding and Proving Intangible Losses”. Its site was Kingsmill in Williamsburg, Virginia, his neighborhood.

VTLA’s Wrongful Death Retreat featured an innovative roundtable discussion format. Its small group setting forum was limited to 35 experienced plaintiff lawyers.

Presentations by speakers from around the state were thought-provoking, including several videos. All attendees received a seminal publication of Trial Guides - “Grief and Loss: Identifying and Proving Damages in Wrongful Death Cases”.

Trial magazine of the American Association of Justice reported a half-dozen notable “Verdicts and Settlements” in its February 2013 issue. Three were variants of medical negligence. Id. at 8-11.

A Georgia jury awarded $3,400,000.00 for medical malpractice against a clinic physician’s assistant using a dirty syringe needle that caused staph infection, painful sepsis, and ultimate suicide. Id. at 10. Also, a $1,000,000.00 settlement was paid in California for a jail suicide were a mental health professional returned a depressed schizoaffective detainee to the general prison population while awaiting transfer to a psychiatric hospital.

A confidential settlement was paid for a wrongful death in Greater Pittsburgh where ambulance crews failed to pick-up a heart attack victim during a heavy snow storm. The dispatcher required the immobile patient to walk his unplowed street to the ambulance instead of having the crew walk to the patient or use a four-wheel drive vehicle.

The February 2013 issue of Trial, a monthly magazine of the American Association for Justice (“AAJ”), is titled “DANGER ON THE ROAD”. Its focus is on vehicle accidents.

There are five major articles: (1) “Discovery Issues in Distracted Driving Cases,” id. at 14-20; (2) “SMALL TRUCKS, BIG REGULATIONS,” id. at 22-25; (3) “Put the Brakes on ‘CURBSIDE’ Bus Abuse,” id. at 26-32; (4) ”HANDLING A DRIVER FATIGUE CASE,” id. at 34-38; and (5) “Sound Science in Low-Damage Collisions”. Id. at 40-44. They recount numerous cases of wrongful death and other serious personal injury attributable to offending drivers.

Mr. Waterman has been a member of AAJ (formerly American Trial Lawyers Association) for decades. On March 9, 2013, he speaks on patient falls at AAJ’s seminar on medical malpractice in Scottsdale, Arizona. Id. at 54.

On February 1, 2013, the corporate Defendant in the medical malpractice lawsuit of William M. Snovell, Executor of the Estate of Bernadette Teresa Connelly Snovell, Deceased v. Williamsburg Facility Operations, LLC, D/B/A Consulate Health Care of Williamsburg, and “Jane Roe/John Doe,” No. CL12-4966 in Circuit Court for York County, Virginia, served supplemental discovery responses as ordered by the Judge. It also produced its 2-page Root Cause Analysis for Fall, minimally redacted as Court-ordered.

Despite both of its pages bearing at the bottom the self-serving pre-printed legend “ATTORNEY/CLIENT PRIVILEGED CONFIDENTIAL WORK PRODUCE - QUALITY ASSURANCE,” Snovell Defendant’s Root Cause Analysis for Fall bears at the top of its first page the subheading “Data Collected at Time of Fall”. Thus, despite Defendant nursing home couching and arguing its basic data was supposedly privileged material, the truth is that on the face virtually all of it really was factual information of patient care that is discoverable.

In its supplemental discovery responses, Defendant Consulate Healthcare of Williamsburg claims that the patient’s “chair alarm was in place but the box didn’t alarm” before the patient fall. Assuming the chair alarm was “in place,” the remaining pivotal question in Snovell is whether the alarm was activated before the fall, particularly in light of the defense claim that it was “functioning”.

Conveniently for the corporate Defendant, it claims that the “particular alarm in use on Ms. Snovell’s chair is no longer available,” indicating that Consulate Healthcare of Williamsburg disposed of - or “lost” - that key evidence, knowing that an alleged wrongful death was involved. Under such suspect circumstances, the victim patient’s estate representative deserves and will seek an evidentiary spoliation instruction against Consulate Healthcare of Williamsburg in Snovell.

On January 10, 2013, the Virginia Supreme Court upheld 4 separate jury awards totaling $10,577,000.00 in a two-vehicle accident trial in Circuit Court for the City of Charlottesville, Virginia. The case is Allied Concrete Co. v. Lester, Record No. 120074.

First, Allied Concrete held the trial court did not abuse its discretion in denying defendant motorist a new trial in the truck crash case based on admitted “party misconduct”, i.e., a plaintiff’s “dishonest conduct” and his lawyer’s “unethical conduct”. The record demonstrated a “fair trial on the merits,” including “ample evidence that the trial court mitigated any prejudice”: “When it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached, we will affirm the judgment notwithstanding the potential for a defect or imperfection in the process by which the judgment was obtained.” Id. at 12-14 and 23.

Second, Allied Concrete also found no abuse of discretion in the trial court refusing to grant a mistrial of the truck-car collision case for alleged juror misconduct. The finding of insufficient evidence to prove a “dishonest” answer to a voir dire question was affirmed. Id. at 14-18 and 23.

Third, Allied Concrete reversed the trial court’s grant of remittitur and reinstated the jury’s award on the wrongful death claim. Id. at 22-23. It held that the trial court impermissibly compared the jury’s damage awards of $1,000,000.00 to each of the deceased’s parents and of $6,227,000.00 to the surviving husband as a supposed measure of disproportion and excessiveness of the latter. Id. at 20-21.

It also held that the trial court failed to make a “reasoned evaluation of the damages” - to even “examine the damages specific” to each plaintiff - and simply equated the wrongful death damages of each plaintiff impermissibly, despite “the inherent differences in the two types of relationships,” i.e., spousal and parental. Id. at 22-24. The Allied Concrete dissent proclaimed “the last nail in the coffin of remittitur has been driven, sounding a death knell”. Id. at 23-29.

During February 7-9, 2013, Mr. Waterman attends the annual conference of the Southern Trial Lawyers Association (“STLA”) in New Orleans, Louisiana, which coincides with Mardi Gras. It features 3 days of continuing legal education on vehicle accidents, medical malpractice, product liability, and other special cases, including brain injury and wrongful death.

Mr. Waterman began his legal career in New Orleans, practicing automobile product liability and medical malpractice. He has been a member of STLA for more than a decade.

STLA publishes a glossly quarterly entitled JUSTLAW. Its issue for First Quarter 2013 features “Maximizing Economic Damages,” “The Jones Act,” “Punitive Damages in the Interstate Trucking Unsafe Equipment Case,” and “How To Spot a Product Liability Case: A Method for Analyzing [Auto] Accidents”.

On January 29, 2013, Circuit Court for the City of Newport News, Virginia, entered Final Judgment Order in Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15. On December 7, 2012, the jury unanimously awarded $3,500,000.00 in damages against Defendant, Riverside Hospital, Inc., in favor of its brain injury victim.

Defendant Riverside Hospital, Inc., filed Notice of Appeal in the Burrell case on January 30, 2013; and must post a $1,900,000.00 appeal bond within 21 days to suspend collection by Plaintiff against it. Its medical malpractice victim also intends to file Notice of Appeal this month, cross-appealing against Riverside Hospital, Inc. on multiple points.

In Burrell, the then 81 year-old intermittently-confused in-patient at Riverside Regional Medical Center suffered a patient fall and resulting broken femur, head injury, and permanent hemiplegia. Suit was filed against Riverside Hospital, Inc. for its failure properly to assess its in-patient as a high unto extreme fall risk and for its failure properly to intervene, including by simple activation of her built-in bed alarm, use of a sitter and/or use of soft restraint (like it did for 5 days straight after its in-patient already was seriously injured permanently).

Previously by Fax Memorandum on January 22, 2013, Mr. Waterman was notified that a Summary of the Burrell brain injury case would be published electronically on LEXIS-NEXIS, on www.verdictsearch.com, and possibly in Metro Verdicts Monthly.

The Trial Lawyer is a quarterly magazine for trial lawyers and a voice for justice. A lead article in its late Fall 2012 issue focuses on vehicle accidents: “THE INTERSTATE TRUCKING ‘Wheel-off’ Case And The ‘We’re Not A Motor Carrier’ Defense’.” Id. at 12-16.

Another leading article in The Trial Lawyer is “THE ROLE OF CORPORATE REPRESENTATIVES AT TRIAL”. Id. at 34-37. In Mr. Waterman’s recent patient fall case that resulted in a $3,500,000.00 jury verdict, Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F in the Circuit Court for the City of Newport News, Virginia, he deposed 23 corporate representatives of Defendant, Riverside Hospital, Inc., many of whom he called in Plaintiff’s case-in-chief at trial.

Four other articles in The Trial Lawyer cover the special case of product liability. They are “VEHICLE ELECTRONICS: The Next Generation of Defects,” id at 22-24; “INJECTION WELLS: THE POISON BENEATH US,” id at 42-48; “PHARMACEUTICALS INDUSTRY NEGLIGENCE LEADS TO RECORD FINES,” id. at 64-65; and “PRADAXA: THE NEXT FRONTIER”. Id. at 79-80.