Virginia Injury Attorney Blog

“DANGEROUS DRINKS” is another feature article in AAJ’s Trial magazine in March, 2013. It exposes wrongful deaths and personal injuries caused by popular “energy drinks”. Id. at 28-34.

“Energy drink warning labels lack the specificity that would allow consumers to make an informed choice whether to purchase the product,” id. at 30; making for failure-to-warn claims, a special case of product liability. “The strongest liability cases are those involving teenagers and young adults who consumed energy drinks with no presence of alcohol or drugs and who suffered a cardiac event or stroke with several hours of consumption,” id. at 32; and those “with undiagnosed [cardiac[ conditions may be partially vulnerable to serious injuries after consumption”. Id. at 31.

Mr. Waterman has been a member of AAJ for over two decades. He regularly handles cases of wrongful death, and has several types pending.

THE VIRGINIA STATE BAR REQUIRES 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.

Trial magazine’s March 2013 issue publishes 5 vehicle accident matters. A $2,750,000.00 New Jersey settlement entitled “Port Worker Strikes Dockworker with Forklift” and a $2,000,000.00 Illinois settlement in another forklift case entitled “Company Settles Despite ‘Borrowed Servant’ Defense” are headlined under its “Verdicts and Settlements.” Id. at 12.

Feature article “Failure to Install Side Air Bags” highlights the special case of manufacturer product liability for failing to install such critical occupant protection in all automobiles. Id. at 40-45. “Side impacts are as common as they are deadly.” Id. at 42.

Lack of side air bags are a significant factor leading to wrongful death. “The National Highway Traffic Safety Administration (NHTSA) estimates that side air bags could save up to 1,791 lives each year if every vehicle on the road were equipped with them.” Id. at 41.

“Getting the Facts from Automaker Employees” is another feature article on the special case of product liability. Id. at 46-51. It focuses on how to outmaneuver auto manufacturers attempting to minimize the usefulness of deposition testimony by their corporate product designees, ostensibly their most knowledgeable personnel: “The most effective deposition of the automaker’s engineer is usually designed to gather damaging admissions and establish the foundation for admissibility of key corporate documents at trial, as well as to support your experts’ testimony.” Id. at 48.

In Trial’s “Spotlight,” “Jury Faults Walmart for Tire Inspection” chronicles a $27,500,000.00 Texas verdict apportioning 88% liability against Walmart and 12% against the driver for the wrongful death of a guest passenger. Id. at 52-53. “The plaintiff’s expert determined that Walmart measured the higher points of the tread [in its pricier 15-point oil change inspection], but some parts of the tires actually measured lower than the legal limit.” Id. at 52.

Mr. Waterman initially was trained as a product liability lawyer defending national vehicle and chemical manufacturers. However, for decades since then he has represented victims of vehicle accidents, and currently has multiple wrongful death and personal injury cases pending in Williamsburg, Newport News, Gloucester, and Loudoun County, Virginia.

THE VIRGINIA STATE BAR REQUIRES 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.

AAJ’s March 2013 Trial issue also reports 2 medical malpractice topics. One is under “Verdicts and Settlements,” the other a feature article.

“Oxycodone Overdose” details a Florida jury verdict for $5,330,000.00 for wrongful death. The victim patient had been prescribed hundred of Oxycodone pills before dying in his home. Id. at 10-11.

“Establish Elopement Liability” deals with nursing home responsibility for residents allowed to wander off-premises. More complex than they may seem, such professional negligence cases required experienced lawyers to evaluate facility assessment, intervention, responses, etc. Id. at 36-39.

Mr. Waterman has a wrongful death case no. CL11-1316 pending in Williamsburg, Myron M. Arshan, Executor of the Estate of Sharon L. Britt, Deceased v. Stephen E. Plotnick, M.D., et al. It seeks $10,350,000.00 for fatal overdose of Fentanyl, Methadone and Olanzapine.

He also currently has several nursing home cases locally. Most are patient falls, including at least two for wrongful death.

THE VIRGINIA STATE BAR REQUIRES 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.

The March 2013 issue of Trial, the monthly magazine of the American Association for Justice (“AAJ”), formerly the American Trial Lawyers Association (“ATLA”), is entitled “Protect the Innocent”. It marquees 3 crime victim writings, the first being “BULLYING BASICS,” which addresses school-related bullying of students as “an emerging area of law”. Id. at 14-19.

The next feature article is “A VIOLATION OF TRUST,” which covers child sexual abuse cases, particularly for negligent hiring, supervision and/or retention against institutions such as religious organizations and childcare centers. Id. at 20-26. Trial also reports a $3,000,000.00 California school settlement for alleged negligent security in “Special-Needs Student Raped”. Id. at 10.

Mr. Waterman successfully represented a student assaulted and battered unto brain injury at Gloucester High School, obtaining in 2010 a $6,100,000.00 jury verdict against the assailant, James Newsome, and high school assistant-principal that was remanded for retrial. Mr. Waterman also has represented Virginia victims of child sexual abuse successfully.

THE VIRGINIA STATE BAR REQUIRES 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.

On March 4, 2013, the United States Supreme Court decided the medical malpractice case of Levin v. United States, No. 11-1351. It upheld a military veteran’s suit for intentional tort against the United States for a Navy surgeon allegedly operating on a patient without consent in the course and scope of his employment.

Justice Ginsburg authored the Levin medical malpractice opinion. It decided that the Gonzalez Act abrogated the intentional tort exception of the Federal Tort Claims Act for medical battery.

On February 28, 2013, the Virginia Supreme Court issued Tharpe v. Saunders, No. 120985, an appeal from the Circuit Court of Halifax County. In that special case, the Court held that the allegedly false attribution of a statement constituted defamation regardless whether the statement was true. Id. at *1.

Tharpe ruled that the false attribution itself was “false statement of fact, not any expression of opinion, that subjected him to potential liability.” Id. at *8. Tharpe explained that false attribution, or “fabricated quotations,” are “actionable as defamation regardless of the truth or falsity of the substance of the quotation when it injures the plaintiff’s reputation,” id. at *9, i.e., if believed by the hearer as coming from the alleged maker, by its very nature reflects negatively. Id.

On February 28, 2013, the Virginia Supreme Court handed down Osman v. Osman, No. 120291, and appeal of a case involving wrongful death from the Circuit Court of Virginia Beach. It construed Virginia’s “slayer” statute, Va. Code Ann. §55-401, to preclude a son from inheriting from his mother, whom he had killed.

Despite admitting her wrongful death by his hand, Defendant son in Osman criminally was found not guilty of murder by reason of insanity. Id. at *2-3. Nonetheless, under the civil preponderance of evidence standard, Osman found the son committed murder since he acted intentionally despite not understanding his actions were wrongful. Id. at *9.

During March 8-9, 2013, Mr. Waterman was a speaker and a panelist at the national “Winning Medical Negligence Cases” seminar in Scottsdale, Arizona. The 2-day seminar was presented by the American Association for Justice (“AAJ”), the nation’s largest association of plaintiff trial lawyers.

Mr. Waterman’s topic was “Falls in Hospitals and Nursing Homes: Getting Institutional Discovery to Prove Fault”. He was invited to be seminar faculty based on his recent $3,500,000.00 jury verdict for an 88 year-old patient fall victim of Riverside Hospital, Inc. in Newport News, Virginia.

On March 23, 2013, The Virginia Gazette reported his medical malpractice presentation. Likewise on April 3, 2013, TidewaterBiz!, the new online weekday business publication of dailypress.com headlined his legal recognition.

On February 28, 2013, a divided Virginia Supreme Court opined in Hunter v. Virginia State Bar, No. 121472, an appeal from the Circuit Court for the City of Richmond. It addressed a special case of blogging by a lawyer in which “[n]owhere in these [trademarked blog] posts or on his website did Hunter include disclaimers”. Id. at *2.

First, Hunter found the non-interactive “blog posts, while containing some political commentary, are commercial speech.” Id. at *11. One factor was “the blog is on his law firm’s commercial website rather than an independent site dedicated to the blog”. Id.

Second, Hunter found the blog posts had “the potential to be misleading,” though were not “inherently misleading”. “States may not place an absolute prohibition on certain types of potentially misleading information,…if the information also may be presented in a way that is not deceptive,” notably by the posting of disclaimers. Id. at *15.

Third, Hunter found that the Virginia State Bar (“VSB”) “has a substantial government interest in protecting the public,” id. at 16; and that required disclaimers are “not more extensive than is necessary to serve that interest”. Id. at *17. Accordingly, Hunter concluded that VSB’s Rules 7.1 and 7.2 “do not violate the first Amendment” and are constitutional “[a]s applied to Hunter’s blog posts”. Id.

Fourth, Hunter held that the Richmond Circuit Court erred under the circumstances by imposing on Hunter only a single disclaimer that conflicted with the VSB Rule. Significantly, however, in so holding the Virginia Supreme Court emphasized that the lawyer “does not argue that the disclaimer required by the circuit court is an appropriate, less restrictive means of regulating his speech and, therefore, we decline to so hold”. Id. at *21-23.

Finally, Hunter held that the Richmond Circuit Court “did not err in determining that the VSB’s interpretation of Rule 1.6 violated the First Amendment.” Id. at *23. VSB cannot prohibit Hunter “from discussing information about a client or former client that is not protected by attorney-client privilege without express consent from the client”. Id. at 18-19.

Hunter noted, “State action that punishes the publication of truthful information can rarely survive constitutional scrutiny.” Id. *20. The Virginia Supreme Court noted too as “unsupported by the evidence” VSB’s concerns that an “attorney repeating [truthful information made in a public judicial proceeding] could inhibit clients from freely communicating with their attorneys or…would undermine the public confidence in the legal profession”. Id. at *21.

Mr. Waterman uses VSB’s disclaimer on his website and his blog - indeed, was doing so before Hunter. He also gratuitously obtains client consent when undertaking legal representation, and likewise was doing so before Hunter.

Healthcare providers, insurers and so-called “tort-reformers” are wont to attribute high rising healthcare costs to medical malpractice claims. However, such self-serving cries belie statistics that put medical negligence claims at less than 1% - possibly less than ½ of 1% - of all healthcare costs.

TIME’s Special Report, “Bitter Pill: Why Medical Bills are Killing Us” by Steven Brill, exposes huge drug mark-ups, hefty executive salaries, and more institutional excesses. The following is a link to that publication on February 20, 2013, as revised February 26, 2013: http://healthland.time.com/2013/02/20/bitter-pill-why-medical-bills-are-killing-us/.

On February 21, 2013, Brill was interviewed at length by Jon Stewart on The Daily Show, per the following link: http://www.thedailyshow.com/full-episodes/thu-february-21-2013-steven-brill. Brill also was interviewed recently on National Public Radio (“NPR”).

On March 1, 2013, New York Times published “Shocked, Shocked, Over Hospital Bills,” by Uwe E. Reinhardt of Princeton, arguably the most respected healthcare economist in America. The link to his article, which amplifies some of Brill’s illustrations of healthcare gouging, follows: http://economix.blogs.nytimes.com/2013/03/01/shocked-shocked-over-hospital-bills/?ref=business.

On March 6, 2013, Mr. Waterman filed Plaintiff’s Motion to Enforce 1/23/13 Hearing Order in William M. Snovell, Executor of the Estate of Bernadette Teresa Connelly Snovell, Deceased v. Williamsburg Facility Operations, LLC, et al., No. CL12-4966 in Circuit Court for York County, Virginia. It is a medical malpractice case seeking $4,550,000.00 in damages.

The corporate Defendant in Snovell, Williamsburg Facility Operations, asserts it had a functioning chair alarm in place before the patient fall. However, it has failed to produce the chair alarm in question as ordered - indeed, it represents without explanation that the chair alarm in question “is no longer available”.

Snovell corporate Defendant, Williamsburg Facility Operations, also represents that it used only 2 different types of “bed/chair alarms” made by 1 manufacturer at its nursing home, Consulate Health Care of Williamsburg, when the patient fell. But it also has not offered examplars of each bed/chair alarm, or even identified the manufacturer’s name and models.

The victim patient in Snovell allegedly suffered wrongful death: after she fell, the corporate Defendant’s personnel put her back to bed with broken ribs and she suffered an ultimately fatal pneumothorax. There is no hearing date on Plaintiff’s Motion.

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.