Virginia Injury Attorney Blog

On January 13, 2012, the Virginia Supreme Court issues its opinion in DeMille v. Commonwealth, Record No. 110100, a case involving criminal sexual abuse. DeMille affirmed the judgment of Circuit Court for Fairfax County that the defendant rapist was a “sexual violent predator in need of treatment in a secure [civil] facility” after his scheduled release from the Department of Corrections. Id. at 14.

Specifically, DeMille found under Va. Code Ann. §37.2-900, et. seq., the Civil Commitment of Sexually Violent Predators Act (“SVPA”), that the “factual determination of whether a respondent is a sexually violent predator likely to engage in sexually violent acts is to be based on the totality of the record, including but not limited to expert testimony”. Id. at 1 (emphasis added). Mr. Waterman handles personal injury cases for sexual abuse and other crime victims.

The Bencher is the bi-monthly magazine of the American Inns of Court. Its current President is The Honorable Donald W. Lemons, presently the longest serving Justice on the Virginia Supreme Court.

The January/February 2012 issue features “Samuel Leibowitz: A Courageous Advocate”. Leibowitz was acclaimed for his defense of the “Scottsboro boys” in Alabama, a precedent-setting civil rights case that went to the United States Supreme Court.

Mr. Waterman is a member of the American Inns of Court, which as Justice Lemons observes is to “promote professionalism, civility, ethical behavior and excellent work product at the American Bench and Bar”. Mr. Waterman has handled special cases of civil rights violation.

The Winter 2011-2012 issue of The Safety Report features as an article “15 WAYS TO PROTECT YOUR CHILD FROM SEXUAL ABUSE”. “Some child abuse studies have reported that as many as 1 in 3 females and 1 and 6 males report experiencing some form of sexual abuse before age 17”. Id. at 38.

The article notes that the overwhelming percentage of child sexual abuse is perpetrated by someone the child knows, usually a relative. Id. at 39. It also notes that for a variety of reasons, such crime victims typically do not disclose sexual abuse for years if at all. Id.

On January 17, 2012, Mr. Waterman settled a client’s personal injury claim arising out of a two-car accident. A Mechanicsville resident broadsided a Williamsburg resident when disregarding a red light in Richmond, Virginia.

The vehicle crash victim received months of treatment from healthcare providers in the City of Williamsburg, James City County and York County. Mr. Waterman was able to resolve the claim favorably without filing suit.

Citing Va. Code Ann. §8.01-296, Defendant Riverside doctors emphasize that Plaintiff did not attempt to serve them at their homes in the birth-related personal injury lawsuit for medical malpractice of Andre L. Gibbons, Jr., et al. v. Riverside OB/GYN and Family Care, et al., No. CL10-2326T-01 in Circuit Court for the City of Newport News, Virginia. Under §8.01-296, however, service at home is permissible, but not required.

§8.01-296 permits service anywhere. Personal service commonly is effected at defendants’ places of business, including through their agents there – for example, Dr. James M. Mullins, III was served with medical malpractice suit papers at his place of business on August 9, 1999, in Shannon S. Fernandez, et al. v. James M. Mullins, III, No. CL9927106H-02 in Newport News Circuit Court, without any objection.

Plaintiff’s experienced professional process servers actually served Defendant Riverside doctors in the Gibbons medical malpractice case through their respective agents who represented that they could accept service at their regular places of business on December 5 and 6, 2011, respectively; which should be good service of process within 1 year of filing. That is reflected in the Service Returns properly filed with the Court Clerk.

Even if arguendo service of Defendant Riverside doctors in the Gibbons medical malpractice action within 1 year of filing was not effective (which is denied), that should not be fatal under the circumstances at bar. Plaintiff again served Defendant Riverside doctors promptly after they filed defensive pleadings, which comes within the “due diligence” exception ignored by Defendants.

Va. Code Ann. §8.01-275.1 cited by Defendant Riverside doctors in the Gibbons medical malpractice lawsuit also mandates: “Service of process on a defendant more than twelve months after the suit or action was commenced shall be timely upon a finding by the court that the plaintiff exercised due diligence to have timely service made on the defendant.” (emphasis added). Likewise, Va. Code Ann. §8.01-277(B) cited by Riverside Defendant doctors provides:

Upon finding that the plaintiff did not exercise due diligence to have timely service and sustaining the motion to dismiss, the court shall dismiss the action with prejudice. Upon finding that the plaintiff did exercise due diligence to have timely service and denying the motion to dismiss, the court shall require the person filing such motion to file a responsive pleading within 21 days of that ruling.

(emphasis added). To the same effect is Va. Sup. Ct. R. 3:5: “No order, judgment or decree shall be entered against a defendant who was served with process more than one year after the institution of the action against that defendant unless the court finds as a fact that plaintiff exercised due diligence to have timely service on that defendant.” (emphasis added).

Defendant Riverside doctors in the Gibbons medical malpractice suit assert that the Norfolk Circuit Court decision in Drewry v. Nottingham, 62 Va. Cir. 269 (Norfolk Mar. 22, 2004) is dispositive in their favor. But it is not. It is distinguishable on three (3) alternate grounds.

First, unlike Plaintiff in the Gibbons medical malpractice case, plaintiff in Drewry simply posted at the wrong home address for defendants. Second, unlike Plaintiff in Gibbons, plaintiff in Drewry never effected service on defendant. Third, unlike Plaintiff in Gibbons, plaintiff in Drewry made no showing of “due diligence”. Id. at 269-272.

Moreover, Drewry cited the Virginia Supreme Court for the following definition of “due diligence”: “such a measure of prudence, activity, or assiduity, as is properly to be expected from, and expected by, a reasonable and prudent man under the particular circumstances, not measured by any absolute standard, but depending on the relative facts of the special case.” Id. at 272 (quoting STB Marketing Corp. v. Zolfaghari, 240 Va. 140, 144 (1990))(emphasis added). Plaintiff in the Gibbons medical malpractice action exercised “due diligence” – was reasonably prudent – under STB. Plaintiff: (1) verified the places of business of Riverside Defendant doctors; (2) requested issuance of Summonses promptly after obtaining the prerequisite written expert certification under Va. Code Ann. 8.01-20.1; (3) promptly delivered the Summonses to a professional process server for service; and (4) understood and relied that process was served through doctors’ agents who advised they were authorized to accept such service.

Plaintiff in the Gibbons medical malpractice lawsuit is more closely akin Palum v. Quinn, 59 Va. Cir. 35 (Loudoun Mar. 18, 2002). In Palum, plaintiff attempted substituted service at what erroneously was believed to be defendant’s home address within 1 year of filing, which service was quashed; and then posted service at defendant’s actual home address 15 months after filing. Id. at 38. Finding that plaintiff in Palum “acted in good faith” and “had a reasonable belief,” Judge Chamblin found “due diligence” and denied the Motion to Dismiss. Id. at 39-40.

Judge Chamblin in Palum observed, “Since the trial court has the discretion to waive the rule [about serving within 1 year] where it finds the plaintiff to have behaved in good faith, the rule cannot be considered to be a jurisdictional rule; it is, rather, a administrative, quasi-penal one.” Id. at 39 (quoting W. Hamilton Bryson, Bryson on Virginia Civil Procedure (3d Edition) at 110). “While the definition of ‘due diligence’ approved in Dennis appears to impose upon a plaintiff a strong duty to accomplish timely service, I think that the duty needs to be considered in the relation to the reason for the rule and the statute.” Id. (emphasis added). Re the plaintiff in Palum like Plaintiff in the Gibbons medical malpractice suit having waited almost 1 year to attempt service, Judge Chamblin emphasized: “The law allows the Plaintiff the one-year window for service on defendant.” Id.

Judge Chamblin in Palum also emphasized, “The purpose of both [8.01-275.1 and the Virginia Supreme Court Rule] is to promote the timely prosecution of lawsuits and to avoid abuse of the judicial system.” Id. at 38. Plaintiff in the Gibbons medical malpractice case attempted “timely prosecution” and did not “abuse…the judicial system”. Conversely, the judicial system is subject to potential “abuse” when defendants disavow their office agent’s authority after they have accepted service right after 1 year has passed.

Flagler v. Liberty Mutual Ins. Co., 73 Va. Cir. 61 (Fairfax Mar. 9, 2007) and Goldstein v. Bourgad, 68 Va. Cir. 132 (Fairfax Jun. 7, 2005) also support Plaintiff in the Gibbons medical malpractice action. In Goldstein, the court found “due diligence” even though service within 1 year was defective because the Notice of Motion for Judgment was missing; where plaintiff re-served correctly within an extension of time after 1 year. In Flagler, plaintiff was granted an additional 2 months to serve, after failing to serve within the first 14 months; and subsequently was dismissed for still failing to serve at all.

The American Association for Justice (“AAJ”) posted TrialNews online this week. It featured a healthcare note bearing on medical malpractice.

“The Joint Commission [on Accreditation of Healthcare Organizations (“JCAHO”)] is urging hospitals to address the ongoing problem of health care worker fatigue as it relates to patient safety,” reported AAJ vis-à-vis potential medical malpractice. “In a recently issued ‘sentinel event alert,’ the predominant accrediting organization for U.S. hospitals suggested that administrators take specific actions, including conducting an assessment of staffing levels, shift schedules, and policies that may keep personnel from getting adequate rest.”

Trial is the monthly magazine of the American Association for Justice (“AAJ”) www.justice.org, formerly the American Trial Lawyer’s Association (“ATLA”), the premier national organization for plaintiff lawyers. Trial’s November 2011 issue focuses on “Products Liability” with the following articles: “Go Global for Stronger Safety Claims,” “Preemption’s Uncertain Path,” “A Closer Look at Asbestos Cases,” “Some Assembly Required,” and “A New Weapon in Pharma Cases”.

Mr. Waterman began his 30-year legal career in New Orleans, Louisiana, as a large defense firm lawyer focusing on product liability and medical malpractice. Since becoming a lawyer for victims, he has continued to handle such cases, including product liability claims for wrongful death against a national vehicle manufacturer in federal court and for personal injury against a national pharceutical company in multi-claimant litigation.

A number of other lawyers in Mr. Waterman’s firm have a products liability practice that is limited to asbestos victims. Many, but not all, of their clients were exposed to asbestos at the Newport News Shipyard on the Peninsula and/or the Norfolk Naval Base on the Southside of Hampton Roads, Virginia.

Trial is the monthly magazine of the American Association for Justice (“AAJ”) www.justice.org. Its December 2011 issue features an article on crime victims: “When Torts and Crimes Overlap”.

“When a civil suit involves a criminal act, the perpetrator’s prosecution can be an invaluable source of information,” highlight Trial’s crime victim coverage. “Building a good relationship with the prosecutor is the key to tapping into that resource and obtaining justice for the victim.” Id. at 19.

Mr. Waterman has been a member of AAJ since 1987. He regularly represents crime victims in tort cases, including particularly victims of sexual abuse and most recently a brain injury victim who was awarded $6,100,000.00 by a jury in Circuit Court for Gloucester County, Virginia.

The Fall 2011 issue of The Trial Lawyer, The National Trial Lawyers’ quarterly magazine, features as 12-page article: “2012 Mass Tort Drug Chart”. It tabulates the status of product liability litigation, principally against pharmaceutical manufacturers.

The following are the 37 prescription drugs and prosthetic devices covered: [1] Duragesic Pain Patch (Fentanyl); [2] Depakote; [3] Digitek (Digoxin); [4] Botox and Botox Cosmetic (Botulinum toxin Type B); [5] Crestor (rosuvastatin calcium); [6] Seroquel (quetiapine); [7] Heparin; [8] Cipro (Ciprofloxacin); [9] Yasmin, Yaz and Ocella; [10] Tasydol/Aprotinin; [11] Tequin; [12] DePuy ASR Hip Implant; [13] Zyprexa; [14] Gadolinium/NSF; [15] Avandia (rosiglitazone maleate); [16] Paxil; [17] Accutane (isotretinoin); [18] Propulsid (Cisapride); [19] Risperdal (risperidone); [20] Topamax (Topiramate); [21] Zicam; [22] Fosamax (alendronate); [23] Zelnorm; [24] NUVAR – ING; [25] Ortho Evra; [26] Levaquin; [27] Chantix; [28] Viagra (sildenafil); [29] Zoloft (sertraline hydrochloride); [30] Depo-Provera; [31] Provera (Medroxy-progesterone acetateis); [32] Ketek (telithromycin); [33] Permax (pergolide); [34] Prempro; [35] Premarin (conjugated estrogens); [36] Amiodarone (Cordarone and Pacerone); and [37] Darvocet. Mr. Waterman and his law firm have been involved with pharmaceutical and other class actions, collective actions, and other multi-party litigation.

Mr. Waterman is an inaugural member of The National Trial Lawyers’ “Top 100 Trial Lawyers in Virginia”. His practice focuses on vehicle accidents, medical malpractice, sexual abuse and other types of personal injury and wrongful death litigation such as product liability.

On December 19, 2011, Mr. Waterman settled another car accident claim against the offending motorist insured of State Farm Mutual Automobile Insurance Company. It is the companion claim for those of two other claimants in the same family.

The victim driver was relocating his family from New Jersey to Virginia, when the car accident occurred in Goochland County. He incurred significant hotel rooming and auto leasing in Richmond, since they had no home or other vehicle in Virginia, in addition to his medical substantial expenses at MCV Hospital with MCV physicians.

On November 23, 2011, Circuit Court for the City of Alexandria, Virginia, rejected defendant healthcare provider’s medical malpractice claim of privilege based on the 2011 Amendment of Va. Code Ann. §8.01-581.17, and ordered the hospital to produce its so-called “incident report”. The pivotal case is Mary Hamill v. INOVA Alexandria Hospital, No. CL-10004231.

Significantly, the healthcare provider in Hamill v. INOVA introduced testimony that the patient’s nurse “reported the incident electronically to Inova Alexandria Hospital’s quality department,” with the purpose ostensibly being “to initiate a peer review of the incident to determine if measures should be taken to improve the quality of care”. Defendant’s Memorandum at 3. INOVA unsuccessfully asserted by deposition that the medical malpractice incident report “automatically goes to Quality,” with the quality department doing a “post-event assessment”. Id. at 6.

Plaintiff patient in Hamill v. INOVA successfully relied chiefly on Mr. Waterman’s landmark medical malpractice appeal, Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006). Therein the Virginia Supreme Court upheld the discoverability and the admissibility of incident reports, rejecting that a healthcare provider routing facts about patient care through a covered committee created privilege. Id. at 532.

Hamill v. INOVA undercuts the medical malpractice defense viewpoint by W. Scott Johnson, Esq. of Hancock, Daniel, Johnson & Nagle, P.C. in his article “2011 General Assembly Amendments to Va. Code §8.01-581.17: Quality Assurance and Peer Review Protection,” Virginia Lawyer, Vol. 60 (Dec. 2011). Plaintiff counsel are invited to contact Mr. Waterman for a copy of the 11/23/11 Order in Hamill v. INOVA.

Mr. Waterman compromised a car wreck claim for personal injuries arising because the offending motorist from Yorktown traveling on Marcella Drive failed to yield the right-of-way and broadsided the victim from Newport News traveling on Executive Drive in Hampton, Virginia. It was not necessary to file suit; his negotiations with the insurance adjuster were successful.

The car accident victim treated 3 months in Hampton with the following healthcare providers: Sentara CarePlex, Peninsula Emergency Physicians, Tidewater Diagnostic Imaging, Sentara Urgent Care, and Dominion Physical Therapy. This was the second motor vehicle claim Mr. Waterman has handled for the victim family.

Mr. Waterman a car accident case arising out of a two-car collision involving residents of Newport News. The victim underwent healthcare treatment at Riverside Regional Medical Center and physical therapy.

Suit was filed for the vehicle collision claim. But the lawsuit did not have to be tried or served.

Mr. Waterman settled for tens of thousands of dollars a vehicle accident case arising in James City County, Virginia, because the offending motorist rear-ended the victim. A lawsuit was filed in Williamsburg to protect the statute of limitation, but did not have to be served.

The car collision victim underwent medical treatment and care in Williamsburg, James City County and York County for personal injuries over a 6-month period with the following healthcare providers: Sentara Williamsburg Regional Medical Center, Tidewater Physicians Multispeciality Group, Tidewater Diagnostic Imaging, Williamsburg Physical Therapy & Sports Therapy Center, and Tidewater Pain Management, Inc. Mr. Waterman usually is able to resolve motor vehicle accidents cases without resort to trial and often without even filing suit.

In December, 2011, the 2012 Edition of Virginia’s Best Lawyers featured on its cover Patten, Wornom, Hatten & Diamonstein as Virginia’s “lawyers of the year”. Five partners were recognized individually – Mr. Waterman, Mr. Patten, Mr. Hatten, Mr. Garnett, and Mr. Shoemaker – appearing on the cover and inside.

On December 5, 2011, Mr. Waterman filed Reply Brief in Gagnon v. Burns, No. 110767 c/w Burns v. Gagnon, No. 110754, in the Virginia Supreme Court at Richmond, Virginia. Those consolidated brain injury appeals raise issues of liability and damages on his $6,100,000.00 jury verdict in Circuit Court for Gloucester County, Virginia.

“We review matters of law de novo,” Banks v. Mario Indus. of Va., Inc., 274 Va. 438, 451 (2007); cites the crime victim in support of his appellate claim for joint and several liability in Gagnon v. Burns. “[C]ourts have the duty to correct a verdict that plainly appears to be unfair or would result in a miscarriage of justice”. Norfolk Bev. Co., Inc. v. Cho, 259 Va. 348, 353 (2000).

Another issue in the consolidated brain injury appeal before the Virginia Supreme Court in Burns v. Gagnon, No. 110754 c/w Gagnon v. Burns, No. 110767 is the admissibility of the key witness’ de bene esse deposition taken in the companion predecessor action that was non-suited. Va. Sup. Ct. Rule 4:7(a)(7) provides that depositions taken in a prior action may be used in a subsequent action “involving the same subject matter…between the same parties…as if originally taken therefore”.

Also pertinent to the Burns/Gagnon crime victim case is Rule 4:7(a)(4)(B), which provides that a witness’ deposition may be used at trial if the witness is “out of this Commonwealth”:

The deposition of a witness, whether or not a party, may be used by any party for any purpose in any action upon a claim arising at law…if the court finds: (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of this Commonwealth, unless it appears that the absence of the witness was procured by the party offering the deposition;

“[W]e adhere to the pain language used in the rule.” Thornton v. Glazer, 271 Va. 566, 570-571 (2006)(delineating that in King v. International Harvester Co., 212 Va. 78 (1971) “the absence of the witness was procured by the party offering the deposition” where the witness was the party plaintiff himself). Greater Richmond Transit Co. v. Massey, 268 Va. 354 (2004)(rejecting defense styling that eyewitness’ absence was “not the type of absence” allowing admission of deposition at trial under Rule 4:7(a)(4)); Lombard v. Rohrbaugh, 262 Va. 484, 500 (2001)(holding “Rule 4:7 of the Rules of the Virginia Supreme Court provides for use of depositions in court proceedings ‘against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof’.”); Willis v. Tenekjian, 68 Va. Cir. 203, 204-205 (Portsmouth Jul. 1, 2005)(holding deposition of retained medical expert located out-of-state and more than 100 from the Courthouse meets both independent criteria of Rule 4:7(a)(4)(B) for use as evidence at trial in lieu of witness live).

By contrast, Ayala v. Aggressive Towing and Transport, Inc., 276 Va. 169, 482-483 (2008) overturned introduction of a non-party’s “admission of responsibility in the form of a guilty plea on manslaughter charges,” explaining that its evidentiary use “is not governed by statute or Rule, but by hearsay exception doctrine governing declarations against a non-party’s penal interest.” But the prior testimony in the Burns/Gagnon brain injury action is distinguishable: it is a deposition governed by Rule 4:7(a) – plus the witness at bar was out-of-state and could not be commanded by Subpoena to return to Virginia for hearing or trial.

Moreover, even under the hearsay rule [which does not govern], admission is allowed when “a sufficient reason is shown why the original witness is not produced [at trial]”. Gray v. Graham, 231 Va. 1, 5 (1986); and in the Burns/Gagnon brain injury lawsuit, Plaintiff asserts the sufficient reason was stated by the witness in his de bene esse deposition: Diaz was active duty military on a 5-year hitch stationed out-of-state on a federal base enclave in Georgia awaiting deployment abroad during war-time. Further, this crime victim case also met the other requisites of Gray: “(1) that the party against whom the evidence is offered, or his privy, was a party on the former trial; (2) that the issue is substantially the same in the two cases; and (3) that the witness who proposes to testify to the former evidence is able to state it with satisfactory correctness”. 231 Va. at 5.

In the brain injury appeal of Burns v. Gagnon, No. 110754 c/w Gagnon v. Burns, No. 110767, the Defendant claims that the prior action deposition should not be admissible because it was defended by an associate instead of a partner. However, Virginia and Federal cases hold that the party’s choice or change of lawyers is an irrelevant consideration.

“The fact that counsel in the present case may have approached the pursuit of this motive from a different angle is not the test.” Green v. Doe, 1 Va. Cir. 118, 119-121 (Richmond May 10, 1972). “It may well be that [counsel in the current action] may have subjected [the witness] to perhaps a more rigorous cross-examination than did Plaintiff’s counsel in the prior case,” id.; but that should not make any difference in the Burns/Gagnon crime victim action.

Likewise, whether the prior action deposition was taken “by a different attorney is immaterial” under analogous forerunner Federal rules. Copeland v. Petroleum Transit Co., Inc., 32 F.R.D. 445, 447-448 (E.D.S.C. 1963). Consistent with the brain injury victim’s position in Burns/Gagnon out of Circuit Court for Gloucester County, Virginia, is the Federal holding that the “purpose of using prior depositions and testimony is to save time, effort and money of litigants and to expedite trials, with a view to achieving substantial justice”; that “whether prior depositions can now be offered into evidence rests within sound discretion of the Court”; and that the “test [of admissibility] is not whether [particular] attorney had opportunity to cross-examine the witness, but whether the party-opponent had the opportunity and the same interest and motive in his cross-examination [by a different attorney]”). Hertz v. Graham, 23 F.R.D. 17, 20, 23 (S.D.N.Y. 1958).

In Burns v. Gagnon, No. 110754 c/w Gagnon v. Burns, No. 110767, the $6,100,000.00 brain injury verdict on appeal to the Virginia Supreme Court, a sub-issue on admissibility of the prior action deposition is whether the current action involves the “same subject matter”. Plaintiff filed an action, non-suited, refiled, and amended in Circuit Court for Gloucester County, Virginia; taking a de bene esse deposition before non-suiting the prior action.

Plaintiff asserts that under Va. Sup. Ct. Rule 4:7(a)(7) “same subject matter” means that the “subject matter” must be substantially similar issues, not identical in every single allegation. E.g., Fed. R. Civ. P. 32(a); Rule v. Internal Ass’n of Bridge Structural and Ornamental Iron Workers, 568 F.2d 558, 568 (8th Cir. 1977)(“substantial identity of issues” under analogous forerunner federal rules); Copeland v. Petroleum Transit Co., Inc., 32 F.R.D. 445 (E.D.S.C. 1963)(“substantially the same issues”). Plaintiff asserts that the subject matter is substantially similar in the prior and current Burns/Gagnon crime victim actions; and the Judge found “substantially similar…issues”.

Significantly, the basic “subject matter” (issues) of the two actions being substantially similar does not necessarily change even where subsequent developments after the prior action deposition “could have served as a basis for more pointed and specific cross-examination, [where] the transcript does not disclose that there was any understanding on the record that [the witness] would be subject to further examination.” Tug Raven v. Trexler, 419 F.2d 536, 543 (4th Cir. 1969)(Virginia case under the analogous forerunner Federal rules). Hence Plaintiff asserts that Circuit Court for Gloucester County, Virginia, admitting the prior action deposition “on the facts as then known by counsel” in the Burns/Gagnon brain injury case is correct.

On November 23, 2011, Mr. Waterman filed Plaintiff’s Motion to Compel in the car crash case of Cooper v. Tigges, No. CL 63034 in Circuit Court for Loudoun County, Virginia. He seeks the contemporaneous witness statements of both drivers taken in the routine and ordinary course of insurance business by Defendant’s insurer, United Services Automobile Association (“USAA”), which has a $300,000.00 automobile liability insurance policy plus a $1,000,000.00 umbrella insurance policy for a total of $1,300,000.00 in insurance coverage.

Defendant’s initial discovery responses in Cooper did not even acknowledge the existence of either vehicle accident statement; although Defendant asserted blanket claims of privilege, no “privilege log” was provided. Moreover, when Mr. Waterman specifically inquired about the existence of such statements, Defendant’s counsel stated that by oversight they forgot to mention the contemporaneous statement of the driver of Plaintiff, who suffered more than $200,000.00 in medical expenses; but that there was not one for Defendant driver.

Mr. Waterman then underscored to Defendant’s counsel his expectation that USAA had a statement for Defendant too in Cooper, and that he would be deposing and subpoenaing USAA about the same and possible destruction if its existence continued to be denied. Twelve days later, Defendant’s counsel acknowledged the existence of Defendant’s car accident statement, but withheld it along with the other contemporaneous statement under continued claim of privilege.

Tentatively, Plaintiff’s Motion to Compel in Cooper is scheduled for hearing in Loudoun County on December 2, 2011. Mr. Waterman handles vehicle collision, medical malpractice, and other personal injury and wrongful death cases across Virginia.

On November 21, 2011, Mr. Waterman filed Brief in Opposition and in Support of Assignments of Cross-Error of Appellee/Cross-Appellant, Gregory Joseph Gagnon, with the Virginia Supreme Court in Richmond, Virginia. It is in the consolidated brain injury appeal, Burns v. Gagnon, No. 110754 c/w Gagnon v. Burns, No. 110767.

One of the points on appeal is so-called “consciouness of guilt,” which essentially is admission by conduct of a party and/or his representative. At jury trial of the brain injury case of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia, which resulted in a $6,100,000.00 verdict, Plaintiff introduced evidence that the Assistant Principal destroyed his personal school appointment calendar weeks after the attack; inexplicably “lost” after the attack the note that he had handwritten with the crime victim’s name on it and left on his desk; created and revised after the attack an internet document that he attributed to the victim; and privately spoke with a key witness about his imminent deposition testimony shortly before it.

Under Virginia law, “so far as it indicated his own belief in the weakness of his cause,” such conduct can be considered as “consciousness of guilt” evidence against the Defendant. Andrews v. Commonwealth, 280 Va. 231, 259 (2010)(witness tampering); Gray v. Graham, 231 Va. 1, 9-10 (1986)(“attempted to suppress or conceal evidence”); McMillan v. Commonwealth, !88 Va. 429, 432-433 (1948)(attempted witness tampering by party’s representative); Neece v. Neece, 104 Va. 343, 348-349 (1905)(intimidating witnesses, document destruction, and concealing evidence); and Wolfe v. Virginia Birth-Related Neurological Injury Compensation Program, 40 Va. App. 565, 580-581 (2003)(evidence spoliation). The Virginia Supreme Court in the brain injury case of Burns/Gagnon stands to decide what weight, if any, to place on such evidence in assessing “ministerial duty” for purposes of sovereign immunity and/or duty of care for negligence.

The December 2011 issue of Hampton Roads Magazine names Mr. Waterman to The Annual List of Super Lawyers, “The Top Attorneys in Hampton Roads”. He is 1 of only 7 Hampton Roads lawyers recognized for “PERSONAL INJURY PLAINTIFF: MEDICAL MALPRACTICE,” Id. at S-7 and S-9; and has been listed as such since the recognition was created for Hampton Roads.

“Super Lawyers uses a [multi-step evaluation and rigorous selection process, including] a system of nominations, peer evaluation and internal research, which acts as a system of checks and balances,” reports Hampton Roads Magazine. “You can find a detailed description of the selection process at www.superlawyers.com.” Id. at S-1.

Mr. Waterman also has been listed by Super Lawyers in the same practice area of medical malpractice for the entire Commonwealth of Virginia since 2009. He also regularly handles vehicle accident and other personal injury cases.

On November 9, 2011, Mr. Waterman served a car collision suit pending in Circuit Court for the City of Newport News, Virginia. The case is Reynolds v. Adair, No. CL1101523V-04.

Prior to having the Reynolds motor vehicle accident lawsuit served on the Defendant, Mr. Waterman made seven (7) amicable demands for settlement on the offending motorist’s automobile liability insurer, Trustguard Insurance Company, a member of the Grange Mutual Casualty Group, doing business in Virginia under Grange Mutual Casualty Company. Six (6) of his amicable demands were made even before he filed suit.

Significantly, Trustguard/Grange has only $50,000.00 in liability insurance coverage for its insured and the Reynolds lawsuit ad damnum is $1,000,000.00, which represents substantial uninsured exposure in excess of policy limits. The personal injury Plaintiff claims at least $218,211.50 in medical expenses due to the two-car vehicle accident, including without limitation for medical treatment and care with Newport News Emergency Medical Service, Mary Immaculate Hospital, Hampton Roads Radiology Associates, Commonwealth Family Practice, Riverside Regional Medical Center, Rebound Chiropractic, Peninsula Radiology Associates, Hampton Roads Neurosurgical & Spine Specialists, Orthopaedic & Spine Center, and Cardiovascular Center of Hampton Roads on the Peninsula.

The October 2011 issue of Trial, the monthly publication of the American Association for Justice (“AAJ”) www.justice.org, features “Benefits of a Grief Counselor’s Testimony.” The bottom line of that article is that a professional “grief counselor can put the loss [of wrongful death] in context to help jurors understand your client’s suffering.” Id. at 40.

Professional grief counselors usually are psychologists or psychiatrists. Hence as expert witnesses they must qualify in wrongful death cases under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and progeny. Id. at 43.

The Lawyer’s LogBook, a bi-monthly publication for plaintiff’s lawyers only, focused its June-July 2011 issue on trucking vehicle crashes. Titles of articles featured are: (1) Personal Injury & Wrongful Death Caused by Trucking Accidents; (2) Downhill Braking; (3) The Case of the ‘Dana Point Pirates’; (4) Improper Loading and Securement of Loads: Another Road to Liability Success in Trucking Cases; (5) Truck & Train Collisions; (6) How to Discover and Prove Medial Disqualifications in Commercial Truck Drivers; (7) The Chains I Put on You: When a Trucking Company Chooses Profits Over Safety; (8) Let’s Get Serious: Making the Most out of the Defendant Driver’s Prior Violations; and (9) The Multi-Million Dollar Shell Game – Finding Hidden Assets, Insurance Policies and Defendants in your Commercial Trucking Cases for Severely Injured People.

This trucking vehicle collision publication is endorsed by The National Trial Lawyers (“NTL”), www.thenationaltriallawyers.org. For 2 years, Mr. Waterman has been listed by NTL as one of Virginia’s Top 100 Trial Lawyers.

“Invited error” is a specific waiver issue in Gagnon v. Burns, No. 110767 c/q No. 110754 in the Virginia Supreme Court in Richmond, Virginia. The brain injury victim argues that the opposition is estopped on appeal from complaining about the legal consequence the damage instructions and the verdict form he desired at trial; that he cannot be permitted to “approbate and reprobate – to invite error…and then to take advantage of the situation created by his own wrong.” Garlock Sealing Techs., Inc. v. Little, 270 Va. 381, 387-388 (2005)(upholding “joint and several liability” where the judge permitted the jury to apportion damages).

Analogously to the Gagnon crime victim case, at trial in Garlock Sealing, the defense “convinced the circuit court to permit the jury to apportion fault” for purposes of damages apportionment. Id. at 387. On appeal, Garlock Sealing complained it was error to apply “principles of joint and several liability” to require that it pay plaintiff for damages apportioned to insolvents, but the Virginia Supreme Court refused to consider its contentions: “We will not permit Garlock Sealing to obtain an apportionment of liability…and then complain about the method [consequences] of apportionment.” Id. at 387-388.

“The [United States] Supreme Court has held that the principle of joint and several liability is applicable in admiralty jurisdiction and that principle was not abrogated by the proportionate share approach rule,” continued the Virginia Supreme Court in Garlock Sealing. “And we note that the Supreme Court stated that this principle can result in ‘one defendant’s paying more than its apportioned share of liability when the plaintiff’s recovery from other defendants is limited by factors beyond the plaintiff’s control, such as a defendant’s insolvency’.” Id. at 388.

Happy Halloween! Amid all the costuming and merriment, remember to think safety.

Time-worn precautionary practices include buying fire-resistant costumes with reflective surfaces or accessories; using the “buddy” system, flashlights, and cell phones; warning against going inside homes visited; and carefully checking wrappers for tampering. Be wary of cars, strangers, and vandals.

Please make sure your children are not ghoulish victims of personal injury or wrongful death. Trick or treat!

On October 27, 2011, Mr. Waterman refiled a medical malpractice suit in Circuit Court for the City of Newport News, Virginia, captioned Shirley Frazier Burrell v. Riverside Hospital Inc. and Nurse M. Ames. The original suit was in the now – widowed patient’s then – married name, Shirley Frazier Shakshober v. Riverside Hospital, Inc. and Nurse M. Ames, No. CL0800296P-03.

Burrell/Shakshober is a patient fall case against Riverside and its nurse, alleging their failure to assess and to intervene properly for the patient as a known high fall risk. Despite the patient admittedly suffering from intermittent confusion, having a mobility problem, being under the influence of mind-altering narcotics, being elderly, being very anxious, and even constantly trying to get out of bed; Riverside and its nurse did not activate the patient’s bed alarm system or use any physical restraints before the patient fell (even though Riverside and its nurse did restrain the patient after she fell.

Mr. Waterman previously sued Riverside in Newport News Circuit Court in another patient fall case, Johnson v. Riverside Hosp., Inc., No. CL00-29638-DP. Mr. Waterman obtained a $1,600,000.00 jury verdict against Riverside in Johnson in 2005, which was upheld on appeal by the Virginia Supreme Court in Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006).

In the pending Burrell/Shakshober medical malpractice lawsuit, a UVA neuroradiologist, a MCV anesthesiologist, a Harvard neurologist, a Rothman Institute orhopaedic surgeon, the patient’s own orthopaedic surgeon, a Virginia nursing expert, and a national nursing expert are slated to testify against Riverside and its nurse on the standard of care and/or the causation of the permanent debilitating neurological injuries suffered by the patient fall victim. Jury trial on the merits is expected to be rescheduled for 2012.

On October 25, 2011, Mr. Waterman files Brief of Appellant in Gagnon v. Burns, No. 110767 c/w No. 110754 in the Supreme Court of Virginia in Richmond, Virginia. Waiver is an issue in that brain injury appeal of the jury’s $6,100,000.00 verdict in Circuit Court for Gloucester County, Virginia, CL08-572.

Under Virginia law, a proponent must “prove the elements of such waiver by clear and convincing evidence,” Baumann v. Capozio, 269 Va. 356, 361 (2005) (emphasis added); based on the opposition’s actions “when considered together,” Shelton v. Commonwealth, 274 Va. 121, 127 (2007)(motion and qualified endorsement of final order preserved) and “taken in context”. Wright v. Norfolk and W. Ry. Co., 245 Va. 160, 168 (1993)(lawyer voicing no objection to the “form” did not waive). Va. Sup. Ct. Rule 5:25 focus is whether the judge had “opportunity to rule intelligently on the issue,” Scialdone v. Commonwealth, 279 Va. 422, 437 (2010); so the Gagnon crime victim party need only have put the judge “on notice of his position,” not use a certain phrase, id. at 438; and the judge ruling on the issue evinces opportunity. Id. at 439 (and all cases therein).

Since 1992, it suffices that the Gagnon brain injury party “at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objections to the action the court therefore.” Va. Code Ann. §8.01-384 (A). “No party, after having made an objection or motion known to the court, shall be required to make such objection or motion again to preserve his right to appeal, challenge, or more for reconsideration of, a ruling, order, or action of the court. Arguments made at trial via written pleading, memorandum, recital of objections in a final order, oral argument reduced to transcript, or agreed written statements of facts shall, unless expressly withdrawn or waived, be deemed preserved therein for assertion on appeal.” Id. (emphasis added).

“Code §8.01-384(A)…is controlling of Rule 5:25, and we must apply the statutory provision.” Helms v. Manspile, 277 Va. 1, 7 (2009) (memo preserved). Brown v. Commonwealth, 279 Va. 210, 217, cert. denied, 131 S. Ct. 217 (2010)(oral argument preserved). “Under Code §8.01-384(A) and our analysis in Helms, if a trial court is aware of a litigant’s legal position and the litigant did not expressly waive such arguments, the arguments remain preserved for appeal.” Id. (emphasis added).

“While the doctrine of invited error remains good law, it simply has no application where, as here, the record shows that a party clearly objected to a specific ruling of the trial court to which error is assigned on appeal, even if the party failed to object to instructions applying or implementing the trial court’s prior ruling.” King v. Commonwealth, 264 Va. 576, 582 (2002). “The undeniable purpose of Code §8.01-384(A) is to relieve counsel of the burden of making repeated further objections to each subsequent action of the trial court that applies or implements a prior ruling to which an objection has already been noted.” Id. at 581 (not objecting to instruction not waiver).

Analogously to the Gagnon brain injury appeal, negligence issue was not waived by not objecting to jury submission, where before and after the judge was “fully apprised,” denied motion, and stated: “The objections to this ruling are preserved.” General Ins. of Roanoke, Inc. v. Page, 250 Va. 409, 412 (1995)(emphasis added). Likewise, there also was no waiver of underlying evidentiary objection maintained post-trial, even though plaintiff’s counsel replied, “‘That’s fine, Your Honor,’ when [disputed] tendered instruction was amended”. McMinn v. Rounds, 267 Va. 277, 280-281 (2004)(emphasis added)(and instruction cases cited therein).

The Summer 2011 issue of The Safety Report featured article “Brain Injury – Recognizing a ‘Hidden Disability’”. The Center for Disease Control and Prevention (“CDC”) estimates that annually there are 1,700,000 traumatic brain injury (“TBI”) victims in the United States, causing 1,370,000 emergency room visits, 255,000 hospitalizations, and 52,000 deaths. Id. at 42.

The CDC identifies the following most common causes of TBI: falls (35.2%), motor vehicle accidents (17.3%), assaults (10%), and other impact events (16.5%). The Brain Injury Association of America notes that TBI can have permanent physical, mental, emotional and psychological components, including personality changes. Id. at 42-43.

The crime victim represented by Mr. Waterman in Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia, on appeal before the Supreme Court of Virginia, No. 110767 c/w No. 110754, suffered such a multi-faceted TBI. That brain injury victim was assaulted on school premises and was awarded over $6,000,000.00 against his student assailant, another instigating student, and an Assistant Principal who did absolutely nothing after being forewarned and assuring he would notify school security.

On October 17, 2011, the Virginia Supreme Court granted in part and denied in part Appellant’s Motion for Writ of Certiorari in the brain injury action of Gagnon v. Burns, No. 110767 c/w 110754. Its Order made part of the appellate record the Jury Special Interrogatory forwarded by the Clerk, but not the Jury Verdict form offered by the Appellant and rejected by the Judge at trial (which apparently was destroyed).

Gagnon in on appeal from Circuit Court No. CL08-572 in Circuit Court for Gloucester County, Virginia. The jury awarded more than $6,000,000.00 to the crime victim represented by Mr. Waterman against former Assistant Principal Travis Burns, the student assailant, and the student encourager.

On October 14, 2011, Mr. Waterman filed a motor vehicle accident lawsuit for personal injury damages in Circuit Court for the City of Newport News, Virginia. The defendant was cited by Summons for failure to yield the right-of-way on Richneck Road in violation of Va. Code Ann. §46.2-825.

The vehicle crash caused several thousand dollars of damage to each party’s car. Since the collision, the victim has incurred more than $200,000.00 in healthcare expenses.

Despite apparent liability and substantial damages, the defendant’s liability insurance company repeatedly had refused the victim’s demands to tender its policy limits, forcing Mr. Waterman to proceed with suit. By failing to offer its $50,000.00 policy, Trustgard Insurance Company, a member of the Grange Mutual Casualty Group, doing business in Virginia under Grange Mutual Casualty Company, is exposing its insured, a Newport News resident, to ruinous liability in excess of its policy limits and, thereby, itself to a potential claim for insurance “bad faith.

The victim, another Newport News resident, has underinsured motorist (“UIM”) coverage with State Farm Mutual Automobile Insurance Company. But unfortunately, even her UIM policy limits atop the offending motorist’s liability policy limits probably would not cover the jury damages award expected for her magnitude of car collision personal injuries.

On October 12, 2011, Plaintiff, Shirley Frazier Burrell, non-suited Shirley Frazier Shakshober v. Riverside Hospital, Inc. and Nurse M. Ames, No. CL08-296 in the Circuit Court for the City of Newport News, Virginia. That was a medical malpractice lawsuit previously filed under her married name.

Va. Code Ann. §8.01-380 and Virginia Supreme Court jurisprudence provides that civil litigants can non-suit their case and then refile it within 6 months. Mr. Waterman will refile this patient fall cause for Ms. Burrell against Riverside and Nurse Melanie Ames within 30 days and promptly seek a 2-week jury trial in Newport News in 2012.

On October 6, 2011, Defendants filed Motions in Limine and Memorandum in Support in Shirley Frazier Shakshober v. Riverside Hospital, Inc., et al., No. CL08-296 in Circuit Court for he City of Newport News, Virginia, toward keeping from the jury twelve (12) points of evidence at trial. Since filing that patient fall lawsuit, Plaintiff has resumed her pre-marital name, Shirley Frazier Burrell.

1. Riverside Defendants seek to preclude evidence of other lawsuits, claims, and verdicts against Riverside. Riverside has been sued for medical malpractice on multiple occasions by Plaintiff’s lawyer (not to mention even more by numerous other attorneys), including particularly for another serious patient fall case that resulted in a roughly $1,670,000.00 verdict for that victim in 2005, which was upheld by the Virginia Supreme Court in 2006, Riverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006).

2. Riverside Defendants seek to preclude evidence of other patient falls at Riverside. For example, Riverside’s computer database in Riverside Hospital, Inc. v. Johnson indicates that literally hundreds of in-patients fall annually at Riverside Regional Medical Center alone, and that roughly 10% of those result in serious brain or other personal injury.

3. Riverside Defendants seek to preclude evidence its so-called Committee Meeting Minutes for Plaintiff’s patient fall. In addition to various so-called “incident reports” and like documents, Riverside kept minutes of its committee meeting about Plaintiff and her fall, some of which after evidentiary hearing the Court already ruled were not privileged from disclosure.

4. Riverside Defendants seek to preclude evidence of what was taught by nursing faculty to nursing students at Riverside School of Professional Nursing and at Riverside School of Practical Nursing in 2006 before, at, and after the patient fall of Plaintiff. Textbooks, syllabi, videotapes, handouts and/or other course materials of Riverside actually support what Plaintiff and her nursing expert state was the prevailing nursing standard of care in Virginia vis-à-vis fall risk assessment and fall risk intervention at the time of Plaintiff falling and being injured.

5. Riverside Defendants seek to preclude evidence of Riverside’s internal training and orientation materials about patient falls. The fact is that Riverside’s Orientation program, staff development instruction, in-services, and “computer based learning” (“CBL”) materials required for Riverside’s nurses in 2006 actually support what Plaintiff and her nursing expert state is the prevailing nursing standard of care in Virginia vis-à-vis fall risk assessment and fall risk intervention at the time of Plaintiff falling and being injured.

6. Riverside Defendants seek to preclude evidence related to complaints about nursing staffing, nursing shortages or like nursing deficiencies, such as about nurse-to-patient ratios. In particular, they seek to exclude from jury consideration in this medical malpractice case a prior complaint of another patient.

7. Riverside Defendants seek to preclude evidence regarding “causation” by Plaintiff’s standard of care nursing expert. Plaintiff’s expert nurse testified how Defendants giving the patient the narcotic Dilaudid shortly before her patient fall contributed to the patient falling by causing disorientation and confusion; plus Defendants also gave the patient Ambien the evening before.

8. Riverside Defendants seek to preclude from evidence Plaintiff’s orthopaedic surgeon providing causation opinions that are very favorable to her. Specifically, they want to exclude from jury consideration her orthopaedic surgery expert testifying that the repair surgery under general anesthesia necessitated by the patient fall aggravated her neurological condition and increased her neurological deficit.

9. Riverside Defendants seek to preclude from evidence Plaintiff’s anesthesia expert providing causation opinions that are very favorable to her. Specifically, they want to exclude from jury consideration her anesthesia expert testifying the patient suffered a stroke during the repair surgery under general anesthesia that she had to undergo because of the patient fall.

10. Riverside Defendants seek to preclude from evidence Plaintiff introducing testimony by their own nursing standard of care expert about whether physical restraints appropriately were used on her after the patient fall. One of Defendants’ nursing experts already has opined that it was appropriate for Defendants to use a posey vest on the patient after, but not before, she fell.

11. Riverside Defendants seek to preclude from evidence the fact that Defendant Nurse Ames and other healthcare providers of Plaintiff left the employment of Riverside at various points after the patient fall. Instead, they prefer jury expectation, assumption and/or speculation that all of the individual nurses and other healthcare providers of the patient still are (longtime) employees of Riverside.

12. Riverside Defendants seek to preclude from evidence a pharmacy medication issue involving Plaintiff while she was an in-patient of Riverside during 2000. Specifically, although Riverside destroyed all of her patient chart for that 2000 admission, an “incident report” survived and was discovered by Plaintiff after her patient fall in 2006.

On October 4, 2011, Mr. Waterman attended an ethics and professional program in Richmond, Virginia, presented by the Virginia State Bar and Attorney Liability Protection Society, Inc. (“ALPS”). The hot topic was “social media,” which surfaces with increasing frequency as key evidence in personal injury and wrongful death cases.

Rule 8:4(c) of Virginia’s Code of Professional Responsibility prohibits “dishonesty, fraud, deceit or misrepresentation” by a lawyer online; and companion Rule 8:4(a) prohibits a lawyer perpetrating the same through employees and contractors. But those limitations do not necessarily protect victims of personal injury and wrongful death against opposing parties, their insurers, and others “friending,” downloading and otherwise gaining material and information through social media such as Facebook, MySpace, LinkedIn, and the like.

Clients beware! Be circumspect!

Like the rest of America, Virginia is exploding with “social media” – from YouTube to Facebook to Myspace to Twitter to LinkedIn to Lester v. Alliance Concrete to you-name-it! Most of the younger generation and increasing numbers of the older generation are expressing themselves online – including after being victims of car accidents, medical malpractice, assault and battery, and other personal injury.

In the 2010 brain injury case of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia, which now is on appeal before the Virginia Supreme Court, Nos. 110754 and 110767; social media was a would-be cornerstone of the defense. Defendants introduced into evidence various printouts they claimed were threatening profane communications and image posting of Plaintiff on Myspace.com.

Ultimately, the jury was not persuaded by the social media claimed in Gagnon. But like some other personal injury and wrongful death victims, Plaintiff was put to substantial expense and risk in proving that he was not responsible for the supposed Myspace.com materials.

Extensive expert computer forensics costing Plaintiff over $10,000.00 were required to show that the supposed Myspace communications and image posting of the brain injury Plaintiff actually were created by others. Fortunately for Plaintiff in Gagnon (but unfortunately for plaintiffs in other personal injury and wrongful death cases), social media messages and postings leave trails of evidence on hard-drives that usually are recoverable.

It always is important to be very careful about use of social media, particularly when one is victim of car accident, medical malpractice, other personal injury, or wrongful death. But as in Gagnon, it also may be important for victims to preserve and analyze hard-drives.

On September 28, 2011, Mr. Waterman settled a car accident claim arising in Newport News, Virginia. His client suffered personal injuries from a rear-ender on Interstate 664 in 2010.

As a result of the two car collision, the victim was treated at Mary Immaculate Hospital in Newport News, Virginia and followed up with physical therapy in her home state of North Carolina. Coincidentally, the offending driver also was a North Carolina resident.

Using email, fax and phone, Mr. Waterman was able to resolve the car crash claim of that guest passenger without her having to return to Virginia. He regularly represents out-of-state clients for motor vehicle and other personal injury and wrongful death actions arising in Virginia.

On September 24, 2011, Mr. Waterman settled a car accident claim against the six-figure insurance policy of an out-of-state motorist. His client is a long-time resident of Williamsburg, Virginia.

The offending motorist allegedly ran a redlight on Airport Road and broadsided the victim on Richmond Road in James City County, Virginia. That vehicle collision caused the victim to run off the road and into an electric power control box.

Over a 9-month period, the car crash victim received medical treatment from James City County Fire & Emergency Medical Service, Sentara Williamsburg Community Hospital n/k/a Sentara Williamsburg Regional Medical Center, Williamsburg Emergency Physicians, Tidewater Diagnostic Imaging, Sentara Family Medicine, Sentara Orthopaedic & Sports Medicine Physicians, and Tidewater Physical Therapy. The victim’s injury caused 4 weeks of work loss.

Social media burst onto the radar of most lawyers in 2011 with repeated headline news coverage of a notorious truck accident case, Lester v. Allied Concrete. But Mr. Waterman has been wrangling with it for years.

In a confidential 2009 Williamsburg special case in Court, a party printed the other party’s Facebook photographs, surprised the opposition on cross-examination, and introduced them as key evidence. Since that social media irrefutably showed excessive drinking and apparent neglect, it carried the day.

Social media usually is intended for family and friends. But victims of car accidents, medical malpractice, other personal injury, and wrongful death seriously need to think twice and even thrice about what is posted by them innocently falling into enemy hands unwittingly.

Most victims of vehicle accidents and medical malpractice are unaware that anything posted may be held against them in Court. But defendants, defense lawyers, insurance companies, claim representatives, risk managers and other opponents now are very savvy to this and routinely search for, save, and download potentially incriminating information that is on social media.

All victims of personal injury or wrongful death immediately should consider privatizing all social media, scrutinizing all existing posts for content, and limiting all future posts. Of course, such prudence may be superseded by pending discovery requests, court orders, etc.

In Evans v. Evans, 280 Va. 76 (2010), the Virginia Supreme Court upheld the right of a child to sue through one parent as next friend the other parent who injured the child by negligence in a vehicle crash. A father had put his 4 year-old in a portable foam seat in his 1972 pickup truck floor board before getting into a head-on collision, going offroad, and hitting a fence.

The Virginia Supreme Court in Evans reversed the trial judge’s decision that the child’s suit for common law negligence was barred by the father being guilty of negligence per se in the truck accident under Va. Code Ann. §46.2-1095. That statute provides Virginia drivers ensure a child under 8 years old be “properly secured in a child restraint device” meeting USDOT standards.

“[W]e conclude that the General Assembly intended preclusion of a per se negligence action based upon Code §46.2-1095 and 46.2-1098,” declared the Virginia Supreme Court, “but did not abrogate a common law action for negligence.” Id. at 85. Further, the Court advised the trial judge on remand of the Evans vehicle collision case: (1) “a child of four is not legally capable on contributory negligence”; (2) “in a suit by an infant to recover damages for personal injury, the negligence of a parent will not be imputed to his infant child”; and (3) “a four-year-old child is unable, as a matter of law, to mitigate her damages”. Id.

On September 15, 2011, the Supreme Court of Virginia awarded appeals on the Petition filed and cross-errors assigned by Mr. Waterman’s client in Gagnon v. Burns, Record No. 110767; and on the Petition filed by the opposition in Burns v. Gagnon, Record No. 110754. The appeals arise out of the 2010 Gloucester brain injury case resulting in a $6,100,000.00+ jury verdict.

The jury in Gagnon awarded principal amounts of $1,250,000.00 against Travis Burns, then Assistant Principal at Gloucester High School (“GHS”) and now Acting Principal of Page Middle School; $3,250,000.00 against the assailant, then a GHS student; and $500,000.00 against the assailant’s sister, then a GHS student too. It also award the brain injury victim pre-judgment interest retroactive to the assault and battery at GHS on December 14, 2006; which amounted to roughly $1,100,000.00 at verdict on August 27, 2010, and which continued to accrue at the rate of approximately $30,000.00/month thereafter.

The judge in Gagnon entered each award against each Defendant separately, thereby limiting collection by the brain injury victim to those respective amounts against each individual Defendant. On appeal, Gagnon argues that judgment should have been joint and several, thereby allowing collection of all amounts against any defendant – a critical point since Burns has $6,000,000.00 insurance coverage, the sister has filed Bankruptcy, and the assailant has few assets.

Burns assigned four errors on appeal in Gagnon: use of a deposition from a prior action; denial of statutory immunity; recognition of special relationship importing duty of care; and denial of sovereign immunity. The brain injury victim cross-appealed on sovereign immunity: if the Virginia Supreme Court were to reverse the trial judge’s finding of “ministerial duty,” then Gagnon argues he is entitled to retrial on the “gross negligence” exception.

By September 30, 2011, Gagnon must post an Appeal Bond of $500.00 and Gagnon and Burns must file Joint Appendix designations for Gagnon with the Virginia Supreme Court. The brain injury victim anticipates oral argument around December or January in Richmond, Virginia.

This month, Mr. Waterman attended “The Ethics of Negotiation in Mediation” in Richmond, Virginia, sponsored by the Virginia ADR Joint Committee of the Virginia Bar Association and the Virginia State Bar. Topics included mediating out-of-state, mediator background and “bad faith” disclosures, lawyer mediation conduct, and mediation case evaluation and settlement enforcement.

Virginia statistics show a drastic reduction in the number of jury trials, which is attributed to the proliferation of mediation and other alternative dispute resolution (“ADR”). Only about one-half of one percent (00.50%) of all cases recently filed in Virginia resulted in jury trial.

On September 13, 2011, Mr. Waterman settled without having to file suit a medical malpractice claim against a Wal-Mart Pharmacy in Williamsburg, Virginia. It was a clear case of liability for the pharmacist dispensing 10 times the strength of a medication prescribed by a neurologist in Newport News, Virginia.

The over-medication immediately caused serious adverse effects on the patient from Williamsburg, Virginia, who had to miss work for a week. Fortunately, like most mis-prescription cases of medical malpractice, this one caused no permanent disability.

On September 3, 2011, Mr. Waterman again was selected by his peers for inclusion in the 2012 18th Edition of The Best Lawyers in America. His legal recognition was for the practice areas of Medical Malpractice Law – Plaintiffs, Personal Injury Litigation, and Personal Injury Litigation – Plaintiffs.

Mr. Waterman is in his 30th year of law practice. He has been with Patten, Wornom, Hatten & Diamonstein in Newport News for 25 years, which currently is the third longest active tenure with the law firm.

On September 1, 2011, a 32-page Order was entered in a car accident suit pending in Circuit Court for Charlottesville, Virginia. The consolidated personal injury and wrongful death cases are Lester v. Allied Concrete Co., No. CL08-150 c/w CL09-223.

The Lester auto accident litigation marquees the increasing importance of “social media” in personal injury and wrongful death matters. Plaintiff’s Facebook page became a discovery and post-trial battleground.

Plaintiff’s lawyer in Lester was found to have violated statute, rules and ethics and sanctioned for having his client delete Facebook photographs previously requested in discovery, for withholding related email from in camera inspection, and for misrepresenting information to the Court. The vehicle accident victim himself was found guilty of deactivating his Facebook and deleting its photos after discovery was requested and of making misrepresentation about the same and other facts; and was referred for criminal prosecution for perjury.

The Judge in Lester declared that “attorney-client privilege” and “work product doctrine” were inapplicable to the evidentiary spoliation and other misconduct. Finally, the Judge reduced Plaintiff’s damages award for the wrongful death of his wife by vehicle collision from $6,227,000.00 to $2,100,000.00 in what had been one of the largest Virginia jury verdicts in 2010.

On August 31, 2011, Mr. Waterman and opposing counsel argue Gagnon v. Burns before a writ panel of the Virginia Supreme Court in Richmond, Virginia. Both parties have petitioned to appeal different aspects of the brain injury case in which Gloucester County jury awarded approximately $6,100,000.00.

In Record No. 110754 of Gagnon, Defendant Travis Burns raises four points that he claims require reversal of his liability finding. In companion Record No. 110767, Mr. Waterman raised the issue of joint and several liability, arguing that the Plaintiff brain injury victim of assault and battery is entitled to collect the full damages award against the Defendant Assistant Principal at Gloucester High School, who enjoys $6,000,000.00 in insurance coverage.

In Virginia, parties to personal injury suits are not guaranteed an appeal from the trial court. The brain injury litigant in Gagnon likely will be advised in September which, if any, issues will be granted a writ of certiorari by the Virginia Supreme Court.

Cabiness v. Medical Facilities of Am. VIII (8), L.P., 80 Va. Cir. 425 (Danville Jun. 21, 2010) is a medical malpractice action. It overruled the Demurrer to plaintiff’s claim for punitive damages.

Cabiness found that the First Amended Complaint set forth sufficient facts supporting “willful and wanton negligence”. Id. at 433. Based on plaintiff’s pleading of medical malpractice, “a reasonable jury could conclude that the defendants were actually aware, from their knowledge of existing circumstances and conditions, that their contact probably would cause some injury to another and that despite such actual knowledge, they consciously disregarded the probably harm to the plaintiff.” Id.

This month Mr. Waterman settled a pending but unserved vehicle accident lawsuit. The two-car crash occurred in York County and involved residents of Yorktown and Newport News, Virginia.

The victim was traveling on State Route 622 (Brick Church Road) with the right-of-way through its intersection with State Route 17 (George Washington Highway) when broadsided by the offending motorists who ran a redlight. The car accident impact was severe enough to overturn the victim’s vehicle onto its roof.

Gibson v. Medical Facilities of America, Inc., 80 Va. Cir. 56 (Norfolk Jan. 22, 2010) is a medical malpractice case. It resolved issues of venue and an arbitration clause in favor of the nursing home resident, a victim of sexual molestation.

First, Gibson held there was permissive venue based on Medical Facilities of America (“MFA”) regularly conducting substantial business in Norfolk. It sufficed that MFA was sole general partner in the limited liability partnership that owned a healthcare facility in Norfolk, despite the alleged medical malpractice being committed at another facility in Chesapeake. Id. at 58.

Second, Gibson held: “The Court has discretion in determining whether the defendant has demonstrated good cause to transfer, and the plaintiff’s forum selection should be given favor.” Id. The requisite “good cause” for transferring the case to Chesapeake (where the medical malpractice occurred) was not shown because there was “no demonstration of substantial inconvenience to the parties or witnesses” by the case being in Norfolk. Id. at 59.

Third, Gibson held another defendant was not entitled to transfer venue of the medical malpractice case, despite not having any personal connection to Norfolk. “Venue is proper to all defendants if it is proper to one defendant.” Id.

Fourth, Gibson denied MFA’s motion to compel arbitration of the medical malpractice claim. “When the plaintiff brings an action in tort rather than contract, asserts no claim under the contract, and does not require the existence of the contract to proceed, the arbitration provision of the contract is not applicable to the controversy.” Id. at 63.

Gibson v. Medical Facilities of America, Inc., 80 Va. Cir. 56 (Norfolk Jan. 22, 2010) is a medical malpractice case. It resolved issues of venue and an arbitration clause in favor of the nursing home resident, a victim of sexual molestation.

First, Gibson held there was permissive venue based on Medical Facilities of America (“MFA”) regularly conducting substantial business in Norfolk. It sufficed that MFA was sole general partner in the limited liability partnership that owned a healthcare facility in Norfolk, despite the alleged medical malpractice being committed at another facility in Chesapeake. Id. at 58.

Second, Gibson held: “The Court has discretion in determining whether the defendant has demonstrated good cause to transfer, and the plaintiff’s forum selection should be given favor.” Id. The requisite “good cause” for transferring the case to Chesapeake (where the medical malpractice occurred) was not shown because there was “no demonstration of substantial inconvenience to the parties or witnesses” by the case being in Norfolk. Id. at 59.

Third, Gibson held another defendant was not entitled to transfer venue of the medical malpractice case, despite not having any personal connection to Norfolk. “Venue is proper to all defendants if it is proper to one defendant.” Id.

Fourth, Gibson denied MFA’s motion to compel arbitration of the medical malpractice claim. “When the plaintiff brings an action in tort rather than contract, asserts no claim under the contract, and does not require the existence of the contract to proceed, the arbitration provision of the contract is not applicable to the controversy.” Id. at 63.

Mr. Waterman’s Gloucester County brain injury case, Gagnon v. Burns, Record Nos. 110754 and 110767, has been scheduled for oral arguments before a writ panel of the Virginia Supreme Court on August 31, 2011. Both parties have been granted 10 minutes on their respective Petitions for Appeal.

Since there is no appeal of right to the Virginia Supreme Court in personal injury cases, a petitioning party must be granted a writ of certiorari for an appeal. The parties in the Gagnon brain injury lawsuit likely will receive decision on whether either or both will be granted an appeal (and, if so, on what issues) a couple months after their oral arguments.

In Gagnon, a Gloucester jury awarded $5,000,000.00 in principal and pre-judgment interest of approximately $1,100,000.00 to Mr. Waterman’s brain injury client. It found the assailant, his instigating sister, and a negligent Assistant Principal at Gloucester High School liable.

Kudos to the Honorable Ronald E. Wilson, Judge of the 1st Judicial Circuit, sitting as temporary Justice on the Supreme Court of Appeals of West Virginia! On July 21, 2011, he authored a most courageous cogent dissent in the medical malpractice case of MacDonald v. City Hospital, Inc., No. 35543.

Judge/Justice Wilson in MacDonald wrote a no-holds-barred dissenting opinion that exposed medical malpractice “cap” legislation for exactly what it is. He also appropriately challenged the state’s highest court to uphold its judicial responsibility and declare the statute unconstitutional on multiple grounds.

There has been some suggestion that his brilliant dissent may prompt West Virginia’s Supreme Court to reconsider the constitutionality. Better yet, perhaps the MacDonald medical malpractice appeal will be taken to the United States Supreme Court!

On August 2, 2011, Mr. Waterman was invited by the Honorable Stephen C. Moore to join as a Master member of the I’Anson-Hoffman American Inn of Court XXVII. Membership is extended only to a select few within the Hampton Roads legal community.

I’Anson-Hoffman is our region’s Inn and is affiliated with the Marshall-Wythe School of Law at the College of William and Mary. Its membership levels are Judicial, Masters, Barristers, Associates, Professors, and Students.

The Inn is dedicated to, and has a long distinguished history of, promoting the goals of excellence, civility, professionalism and ethics within the legal profession. Members attend socials, dinners, speakers and programs.

The first Inn of Court was established in 1292 in England by King Edward I. The American Inns of Court Foundation was organized in 1985, and I’Anson-Hoffman was chartered in 1987.

Mr. Waterman now is slated to speak on February 15, 2012, in New Orleans, Louisiana at the Annual Convention of the Southern Trial Lawyers Association (“STLA”). His personal injury topic is “Cameos for Neutralizing the Defense Expert” within the theme of “Tactics, Techniques or Strategies I Developed in a Recent Case and How It Affected Outcome”.

Mr. Waterman has been a member of STLA for over a decade. Its select membership is drawn from Virginia and a dozen other southeast states.

In Lagumen v. Richardson, 80 Va. Cir. 51 (Chesapeake Jan. 21, 2010), Chesapeake Circuit Court adjudicated the degree of certainty or probability required for a medical expert opinion to be admissible. In that medical malpractice case, the treating physician equated the legal touchstone of “reasonable degree of medical certainty” with being “more likely than not”. Id.

Lagumen cited Graham v. Cook, 278 Va. 233, 246 (2009)(medical malpractice)(“fifty-one percent”); Fairfax Hosp. Sys. v. Curtis, 249 Va. 531, 535-536 (1995)(medical malpractice)(“into the realm of reasonable probability”); Hoffman v. Carter, 50 Va. App. 199, 215 (2007)(workers’ compensation)(“equivalent to the preponderance of the evidence standard”); Black’s Law Dictionary at 1273 (8th ed. 2004)(“more likely than not”); and various out-of-state cases and journals. Id. at 52-55. It upheld the admissibility of the doctor opining “more likely than not”.

In Lents v. Vetter, 80 Va. Cir. 268 (Fairfax Apr. 2, 2010); Fairfax County Circuit Court applied Va. Code Ann. §8.01-20.1 in a medical malpractice action. Section 8.01-20.1 requires plaintiffs to have medical expert certification of a prima facie case before requesting service of process.

In Lents, defendant answered the pending medical malpractice complaint voluntarily without plaintiff ever having requested service. Holding that “Section 8.01-20.1 is in derogation of the common law and should be strictly construed,” the court found that by voluntarily answering defendant had waived service of process and thereby could not demand expert certification. Id. at 270-271.

In Salzman v. Kanchev, 80 Va. Cir. 139 (Chesapeake Feb. 4, 2010), Chesapeake Circuit Court addressed stacking of uninsured and underinsured liability insurance coverage. The declaratory judgment action involved a car crash on Military Highway in Chesapeake, Virginia.

“When a disputed policy term is unambiguous, a court applies its plain meaning as written.” Virginia Farm Bureau Mut. Ins. Co. v. Williams, 278 Va. 75, 81(2009). “However, if disputed policy language is ambiguous and can be understood to have more than one meaning, a court must construe the language in favor of coverage and against the insurer.” Id. (finding insurance policy ambiguous and coverage for a vehicle accident).

In Salzman, the Court opined the policy of Progressive Specialty Insurance Company was unambiguous. Hence the UIM coverage for the car wreck injuries was only $50,000.00.

Christine M. Tigges of Hamilton, Virginia, was covered by United States Automobile Association (“USAA”) for $300,000.00 of personal injury damages under an automobile liability insurance policy. She then also apparently was covered by USAA for car accident under an umbrella insurance policy for an additional $1,000,000.00.

On August 9, 2008, in Loudoun County, Virginia, Ms. Tigges was cited for failing to yield the right of way to Rebecca M. Cooper of Berryville, Virginia, into whom she crashed. That car crash victim suffered multiple serious injuries requiring surgeries and numerous other medical treatments and care continuing through the present and costing more than $213,225.78.

Despite repeated amicable demand by Mr. Waterman for full fair compensation for Ms. Cooper, USAA haughtily tendered only the limits of its first layer of insurance coverage, $300,000.00. Unfairly, that amount is a little more than the victim’s mounting $213,225.78+ medical bills, not full compensation for her car collision pain, suffering, inconvenience, permanency, and other damages; so is unacceptable.

Accordingly, Mr. Waterman is pursuing a personal injury lawsuit against USAA’s offending insured motorist in Cooper v. Tigges, No. CL-63034 in Circuit Court for Loudoun County, Virginia. Jury trial of that car accident action likely will be in 2012.

The victim also is covered for personal injuries sustained in the car wreck by at least another $250,000.00 of underinsured motorist insurance (“UIM”) with her own insurer, State Farm Mutual Automobile Insurance Company (“State Farm”), which by Virginia law is stacked on top of the offending driver’s $1,300,000.00 of combined automobile liability/umbrella insurance. But State Farm has not tendered any of its UIM coverage, so necessarily has been named and served as an adverse party in Cooper v. Tigges too.

Continue reading "Virginia: Car Accident – a Lawyer’s Intolerance" »

On July 15, 2011, Mr. Waterman settled the car accident claim of a Williamsburg resident. The victim was a guest passenger in Fairfax County, Virginia, when an inattentive offending motorist from Great Falls rear-ended the vehicle from Annandale in which he was riding.

The Williamsburg victim suffered significant personal injuries that necessitated emergency medical attention at INOVA in Northern Virginia and follow-up back on the Peninsula. Mr. Waterman was able to resolve the car crash claim with the insurance adjuster based in Rhode Island without suit, simply using mail, telephone, telefax and email.

In Government Employees Insurance Co. v. United Services Automobile Association, No. 100332 (Apr. 21, 2011), the Virginia Supreme Court found no insurance coverage in a declaratory judgment action for a car accident in Hampton, Virginia; based on the offending driver not being a permissive user. Both the owner’s liability policy with GEICO and the unauthorized driver’s uninsured/underinsured “(UM/UIM”) policy with GEICO Indemnity predicated coverage on permissive use. Id. at 1-2.

In GEICO, recounted Justice Mims, the owner’s daughter was a permittee, but the driver who caused the car accident was not a legitimate “second permittee” of her under the particular case facts. Id. at 11-18. That left United Services Automobile Association (“USAA”), the victim’s UM/UIM carrier, as the only insurance for the collision injuries.

House Bill 1605 passed during the General Assembly’s 2011 Session, and became effective July 1, 2011. It made fraudulent falsification of patient records a class 1 versus a class 3 misdemeanor; but does not alter any commonlaw jurisprudence about fraudulent falsification in civil medical malpractice cases.

Notably, House Bill 1605 also added an “intent to fraud” requirement to the criminal offense; so although now criminal penalties are stiffer, threshold criminal liability is more difficult to prove. But in a medical malpractice case, plaintiff still need only prove falsification by the traditional preponderance of the evidence standard.

During its 2011 Session, Virginia’s General Assembly passed companion House Bill 1746 and Senate Bill 1145. They extend from 2 to 20 years the limitation period within which an infant or incapacitated victim of sexual abuse can file a civil personal injury lawsuit.

This statutory amendment recognizes that many sexual abuse victims suffer protracted delays in reporting and suing due to a variety of factors such as fear, guilt, repression and/or otherwise caused by the underlying criminal offense. It became effective on July 1, 2011.

In Addison v. Jurgelsky, No. 092361 (Jan. 13, 2011), the Virginia Supreme Court reversed dismissal of a medical malpractice action. It held that a single co-administrator acting alone as Plaintiff could file, but not maintain, suit under Virginia’s Wrongful Death Act, Va. Code Ann. §8.01-50, et seq. Id. at 3-5.

Justice Mims in Addison continued that the initial filing by the one co-administrator tolled the statute of limitation for the wrongful death claim in Tazewell County, Virginia; and that it was permissible to join the other co-administrator as Plaintiff after the statute of limitation had run. Hence it was error to grant the motion to abate for nonjoinder and the plea of the statute of limitations. Id. at 9.

At 9:00 p.m. tonight, June 27, 2011, HBO premiers in Virginia the critically-acclaimed film, “Hot Coffee,” as part of its Summer Documentary Series. It exposes the truth behind the $2,900,000.00 personal injury award against McDonald’s that insurance and defense interests have spin-doctored for years to massage the public psyche against victims fighting for justice in Court.

“Hot Coffee” is an official selection at the 2011 Sundance, Silverdocs, HotDocs, Full Frame, Nantucket, Provincetown, Los Angeles, Seattle, Atlanta, Boston, Little Rock, and Gasparilla International Firm Festivals. Click http://hotcoffeethemovie.com/ for more information about the personal injury expose of big business.

“Stunning debut,” proclaims Washington Post! “Sends audiences out of the theatre thinking in a brand new way.”

In the medical malpractice miscellaneous proceeding, In re Carla J. Jones, Nos. CM10-911 and CM10-710 of Circuit Court for Chesapeake, Virginia, petitioner sought pre-suit discovery pursuant to Va. Sup. Ct. Rule 4:2(a)(3). The judge granted pre-litigation depositions of the individual healthcare provider who allegedly was responsible for the conduct in question and of the most knowledgeable person (“MKP”) of Chesapeake Regional Hospital.

Jones found that perpetuating the depositions would “promote judicial efficiency” and might “prevent a delay or a failure of justice”. It also found that the medical malpractice expert certification requirements of Va. Code Ann. §8.01-20.1 could not “reasonably be met without additional information”.

The judge in Jones issued a letter opinion dated July 29, 2010. He also entered a corresponding Order in the medical malpractice proceeding on August 9, 2010.

Mr. Waterman was selected for inclusion on the 2011 list of Virginia Super Lawyers. The selection process includes peer nominations, a “blue ribbon” panel review, and independent research of candidates.

Only 5% of Virginia attorneys are named each year. Mr. Waterman also was chosen for 2009 and 2010.

In Chalifoux v. Radiology Assocs. of Richmond, Inc., No. 100052 (Apr. 21, 2011), the Virginia Supreme Court applied the “continuing treatment rule” in a medical malpractice case. It reversed the trial court finding upon evidentiary plea hearing that Defendant’s serial comparative diagnostic imagings of Plaintiff’s brain were “single, isolated acts,” were episodic care” versus a “care continuum”. Id. at 5,16.

The Virginia Supreme Court looked to Arkansas, Connecticut and especially Missouri precedent in applying the rule to radiologists in Chalifoux. Id. at 12-15. On the facts of this medical malpractice action, it found the requisite “continuous and substantially uninterrupted course of treatment;” and remanded. Id. at 16.

In Volpe v. City of Lexington, No. 092583 (Apr. 21, 2011), the Virginia Supreme Court delineated the duty to warn of a governmental entity and its alleged gross, willful and wanton negligence for a case of wrongful death in Rockbridge County, Virginia. It reversed a court judgment finding no duty to an invitee and striking gross negligence; affirmed there was no willful and wanton negligence; and remanded for retrial. Id. at 15.

Writing for the Virginia Supreme Court in Volpe, Justice Mims observed that a landowner’s duty of ordinary care to an invitee included warning of “any hidden dangers,” id. at 8; relied upon West Virginia and Missouri precedent, id. at 9-10’; and held that it was for the jury to decide whether the danger was hidden versus open and obvious. Id. at 11. Further, because the municipality had “knowledge of these dangers,” but “did not take any safety precautions for its invitee” prior to his wrongful death; there was “credible evidence to support a jury finding of gross negligence,” though not willful and wanton negligence. Id. at 12-15.

Mr. Waterman additionally resolved another companion personal injury claim on June 10, 2011. Yet another guest passenger was an I-664 car accident victim in Newport News, Virginia, because the offending USAA motorist was following too closely.

Despite sustaining a 25-35 m.p.h. impact, the car accident victim experienced increasing delayed symptoms after returning to North Carolina. Mr. Waterman simply collected and submitted the medical bills and records across state lines from his law office without his client having to return to Newport News, Virginia.

Mr. Waterman also settled the companion personal injury claim against a USAA insured on June 10, 2011. It was a guest passenger injured when rear-ended in an I-664 car accident in Newport News, Virginia.

That claimant initially was treated at Mary Immaculate Hospital in Newport News, Virginia, then followed with physicians in her home state, North Carolina. The victim located Mr. Waterman through his website, and he was able to handle the car accident claim across state lines using modern technology.

On June 10, 2011, Mr. Waterman settled a driver’s personal injury claim against an insured of United States Automobile Association. It arose out of a car accident on Interstate 664 in Newport News, Virginia.

The car accident victim resided in North Carolina. Despite her being out-of-state, Mt. Waterman was able to investigate, package, and negotiate the personal injury claim using email, telefax, and telephone without the client having to travel to his law office in Newport News, Virginia.

In CNH America, LLC v. Smith, No. 091991 (Jan. 13, 2011), the Virginia Supreme Court reversed a $1,750,000.00 jury verdict for Plaintiff in a special case of product liability in Smyth County, Virginia. Plaintiff’s expert opinion testimony lacked adequate foundation. Id. at 9-11.

CNH America “remanded” for “full trial on the merits”, as CNH America has requested on appeal. Id. at 12. Had Defendant instead requested the Virginia Supreme Court to “render,” presumably final judgment for CNH America would have been entered in this special case.

In Harris v. Commonwealth, 279 Va. 123 (2010), the Virginia Supreme Court addressed Virginia’s Civil Commitment of Sexually Violent Predators Act, Va. Code Ann. §37.2-900, et seq., In a victory for crime victims, it upheld the civil commitment of an incarcerated sex offender to the custody of Virginia’s Department of Mental Health, Mental Retardation and Substance Abuse Services for “appropriate treatment and confinement in a secure facility”. Id. at 127, 129.

The Commonwealth of Virginia had identified the wrong predicate criminal offense in its Petition for inclusion in its “database as a prisoner incarcerated for a sexually violent offense”. Id. at 126-127. But Harris found no error in the trial court allowing the Commonwealth to amend and not dismissing the Petition, id. at 129-130; thereby safeguarding potential crime victims from a potential recidivist being released after serving his criminal sentence.

In Simpson v. Virginia Municipal Liability Pool, 279 Va. 694 (2010), the Virginia Supreme Court held that a Nottoway County Sherriff’s Office road Deputy was not covered by any automobile insurance policy where there was no car accident or use when he was injured apprehending a fleeing motorist. Although the Deputy had used his cruiser to chase down the suspect and left its siren and flashing lights in operation, he was hurt after exiting his cruiser while subduing the arrestee in the highway median.

Significantly, in Simpson there was “no evidence that [the siren or lights] were used or relied upon in any way to accomplish Simpson’s purpose at the time he was injured.” Id. at 701. Thus Simpson may have enjoyed insurance coverage under the Virginia Municipal Liability Pool, Government Employees Insurance Company (GEICO) and/or National Grange Mutual Insurance policies implicated if he simply had testified at the declaratory judgment hearing that he had left his cruiser, siren and lights on to avoid potential car accident by alerting oncoming motorists while taking the criminal into custody.

Kimble v. Carey, 279 Va. 652 (2010) applied the “rescue doctrine” a/k/a the “humanitarian doctrine” in the context of a car accident in Interstate 64 in Henrico County, Virginia. The Virginia Supreme Court opined on the particular case facts that pre-rescue misconduct of the helpless party was irrelevant and that the rescuer’s alleged contributory negligence should have been decided by the jury.

“Most of the cases in our jurisprudence are based upon the branch of the rescue doctrine concerning suits brought by the rescuer against a third-party whose negligence placed a victim in a situation of imminent peril and the rescuer is injured by the third-party during the rescue attempt,” observed the Virginia Supreme Court in the Kimble car accident appeal. Id. at 659. “Based upon the facts of this case, we apply the branch of the rescue doctrine in which the victim may be liable to the rescuer based on the negligent acts of the victim which placed him or her in peril if those negligent acts also proximately caused the rescuer’s injuries during the attempted rescue.” Id. at 660.

“It makes no difference to rescue doctrine analysis whether the victim was guilty of simple negligence, gross negligence, or willful or wanton conduct in creating his or her peril, because the rescuer’s right to recover for injuries sustained during the rescue attempt rises or falls with the determination whether the rescuer acted rashly or recklessly,” explained Kimble in the car accident appeal. “If the rescuer acted rashly or recklessly, he or she is barred from recovery. However, if the rescuer did not act rashly or recklessly, and the victim was negligent in placing himself or herself in ‘apparent immediate peril of death or serious bodily harm’ the rescuer may recover.” Id. at 662.

“[A]s a general rule whether a person is guilty of contributory negligence in rushing into a place of danger to save another from imminent death or injury is a question for the jury,” pronounced the Kimble car accident opinion. Id. at 663. “[T]he rule is well settled that one who sees a person in imminent and serious peril caused by the negligence of another cannot be charged with contributory negligence, as a matter of law, in risking his own life or serious injury in attempting to effect a rescue, provided the attempt is not recklessly or rashly made.” Id. at 663-664 (emphasis added).

In Rascher v. Friend, 279 Va. 370, 373 (2010), the Virginia Supreme Court reversed the trial judge striking the evidence of a bicyclist in Prince William County, Virginia, who suffered personal injury in a car accident. It held that the jury could have found Plaintiff not negligent or, alternatively, that any negligence of his was not a proximate cause of the collision.

After delineating contributory negligence, proximate causation and proof burdens, the Virginia Supreme Court in the Rascher car accident appeal took “opportunity to again stress the principle of tort litigation that issues of negligence and proximate cause ordinarily are questions of fact for the jury to determine, rather than questions to be determined by the trial court as a matter of law. The trial court should overrule a motion to strike the evidence in every case in which there is any doubt that the party with the burden to do so has failed to prove negligence, contributory negligence, and proximate cause, as the case may be.”

Hawthorne v. VanMarter, 279 Va. 566, 571 (2010) involved a vehicle accident in which a Roanoke County Policy Department Officer allegedly caused wrongful death and personal injuries to other motorists. The Virginia Supreme Court upheld grant of sovereign immunity for ordinary negligence based on Defendant’s uncontradicted testimony and the judge’s finding at evidentiary Plea hearing that he was “pursuing a speeding vehicle at the time of the accident,” an act involving judgment and discretion.

“The party asserting a plea in bar bears the burden of proof on the issue presented,” opined the Virginia Supreme Court in the Hawthorne car accident case. “The issue raised by a plea in bar may be submitted to the circuit court for decision based on a discrete body of facts identified by the parties through their pleadings, or developed through the presentation of evidence supporting or opposing the plea. If the parties present evidence on the plea ore tenus, the circuit court’s factual findings are accorded the weight of a jury finding and will not be disturbed on appeal unless they are plainly wrong or without evidentiary support.” Id. at 577 (citations omitted).

“[I]f the facts are disputed and no demand for a jury is made, the ‘whole matter of law and fact’ may be decided by the court,” continued Hawthorne in the car accident appeal. “By submitting the entire decision on the plea in bar to the circuit court judge, Guthrie effectively agreed to have the judge decide all legal and factual questions underlying the single issue whether sovereign immunity shielded VanMarter from Guthrie’s allegations of ordinary negligence. Thus, we hold that Guthrie waived his right to have the jury at trial decide the factual issues pertaining to the question of sovereign immunity. Additionally, we note that the circuit court’s decision declining to reopen the issues pertaining to its sovereign immunity holding fully reflected the function of the plea in bar, which is to narrow the litigation by resolving an issue that will determine whether a plaintiff may proceed to trial on a particular cause of action. This function would have been undermined in the present case had the circuit court set aside its ruling and permitted Guthrie an opportunity to relitigate the issues already addressed without objection at the hearing on the plea in bar.” Id. at 578 (citations omitted).

On May 18, 2011, United States Court of Appeal for the Fourth Circuit by Order and Judgment of 3-justice panel summarily dismissed without opinion the appeal that had been prosecuted against Mr. Waterman’s client. The special case is United States of America, ex rel., Joseph M. Russell v. Michael J. Gennari, Evonne Fei, and Nancy Lynne Russell, and United States of America, No. 11-1329.

Appellees in Russell had moved to dismiss the appeal from the Newport News Division of United States District Court for the Eastern District of Virginia on the alternative grounds that Mr. Russell could not appear pro se on behalf of the United States of America and that he filed the appeal too late. Mr. Russell still can seek rehearing of this special case en banc by the Fourth Circuit and/or writ of certiorari to the United States Supreme Court.

The recent letter opinion in Hairston v. Eliacin of Honorable David A. Melesco, Judge for Circuit Court of Danville, Franklin County and Pittsylvania County, Virginia, reaffirms the continuing vitality of Mr. Waterman’s landmark medical malpractice case, Riverside Hosp., Inv. v. Johnson, 272 Va. 518 (2006), and its progeny. The Virginia Supreme Court in Riverside and numerous circuit courts subsequently pronounce that “factual information of patient care” is not privileged under Va. Code Ann. §8.01-581.17 and, concomitantly, uphold the discoverabililty and even admissibility of facts contained in incident reports, electronic databases, and other materials of peer review and other quality care committees.

Distraught over the transparency ushered by Riverside and its progeny, medical malpractice defense interests spearheaded the Virginia General Assembly’s passage of a compromise amendment to §8.01-581.17 in its 2011 Session. That becomes effective on July 1, 2011.

Significantly, however, Judge Melesco in Hairston opined that all of the patient care factual information in a medical center’s Peer Review and Quality Control Committee (“PR&QCC”) document was not privileged under Riverside or the new §8.01-581.17 amendment. Interestingly, the medical center in the Hairston medical malpractice case unsuccessfully attempted to use a self-serving Affidavit of its PR&QCC head to float its privilege claim; and the medical center moved to quash plaintiff’s witness subpoena for its “most knowledgeable person” on the topic, plus its counsel of record even refused to answer any questions about how the patient’s factual information came to be parked in its PR&QCC document.

Medical malpractice defense counsel have sought to rely on Muhammad v. Commonwealth, 269 Va. 451, 518-519 (2005), the so-called “Capital beltway sniper” case, as authority for introducing self-serving videotape or computer “simulations” created for their own civil cases. But Muhammad obviously is a singular criminal prosecution for 16 serial murders, which in 6 years never has been followed or even cited for the proposition raised by defendants.

In addition to Muhammad being a truly extraordinary case, its opinion discloses at least two distinctions. First, the Muhammad videotape simulation was predicated on independent eyewitness testimony of what occurred; while in most medical malpractice cases, defendants’ simulation less reliably (more biasedly) will be attested by defendants themselves and/or their experts.

Second, in Muhammad the jury got to scrutinize the real thing first hand “by an actual inspection of the trunk,” not simply to see the videotape stimulation. Conversely, in most medical malpractice cases, the jury will not get an actual corroborating inspection of plaintiff’s body, condition and/or process; and instead only will have the defense’s vivid unilateral re-creation imprinted in their psyche.

Besides those significant legal distinctions between the two cases, realistically most defendants cannot duplicate plaintiffs’ idiosyncratic physical conditions medically as of the pertinent times. Hence courts summarily should exclude defense videotape simulations as was done in the medical malpractice suit of Norman v. Williams, No. CL07-4554 (Norfolk May 19, 2009), despite the defense offering to redact video and to abandon audio in unsuccessful last-ditch attempts to salvage simulation.

Finally, less than 2 months after handing down Muhammad, the Virginia Supreme Court found the trial court’s allowance of a defense videotape in a medical malpractice case to be erroneous. Holley v. Pambianco, 270 Va. 180, 185-186 (2005). Thus, despite Muhammad, videotape evidence remains a “hot button” topic in Virginia, the admission of which may constitute reversible error.

On April 27, 2011, Mr. Waterman was invited to speak for the Seminar Program at the Annual Convention of the Southern Trial Lawyers Association (“STLA”) in New Orleans, Louisiana, during the week of Mardi Gras 2012. His topic will be “Tactics, Techniques or Strategies I Developed in a Recent Case and How Each Affected the Outcome”. For more than a decade, he has belonged to STLA, the membership of which is drawn from Virginia and 12 other states in the Southeast.

Mr. Waterman has been licensed to practice law and in good standing in Louisiana since 1982. He resided in New Orleans during 1982-1986. His practice focused on production liability, medical malpractice, and other personal injury.

On April 25, 2011, Mr. Waterman filed a Petition for Appeal with the Virginia Supreme Court. It arises out of the brain injury case in Circuit Court for Gloucester County, Virginia, Gregory Joseph Gagnon v. Travis Burns, et al., CL08-572.

In Gagnon, the jury awarded the brain injury victim $3,250,000.00 against the assailant, another $500,000.00 against the fellow student who encouraged the assailant, and another $1,250,000.00 against the Assistant Principal who failed to notify school security after bring warned beforehand and assuring he would do so; plus more than $1,000,000.00 in pre-judgment interest. However, the trial court ruled that the jury awards were separate and only could be collected against each Defendant.

The Petition for Appeal in Gagnon seeks the Virginia Supreme Court to find Defendants jointly and severally liable, i.e., to hold that the jury awards can be collected against all Defendants. Assistant Principal Travis Burns enjoys $6,000,000.00 insurance coverage for the brain injury, while the other Defendants have no insurance coverage or known assets.

Mr. Waterman settled a medical malpractice matter for $1,000,000.00. Additional case details are confidential.

The 2009 landmark Virginia Supreme Court decision of Wynn v. Commonwealth, 277 Va. 92 (2009), severely limited the testimony of expert witnesses who rely on hearsay, particularly facts and opinions from other non-testifying experts. §8.01-401.1 does not allow “the introduction of otherwise inadmissible hearsay evidence during the direct examination of an expert witness merely because the expert relied on the hearsay information in formulating an opinion.” Id. at 100. “The Commonwealth, however, asserts that our holding in McMunn should be limited to ‘hearsay matters of opinion’ upon which an expert relied. We do not agree whether an expert relies upon the opinion of others or allegations of sexual misconduct in formulating an opinion, both constitute hearsay. [T]he trier of fact cannot observe the demeanor of the speaker and the statements cannot be tested by cross-examination. Id. (emphasis added). The trial court properly excluded hearsay facts, in addition to hearsay opinions, of non-testifying experts. Id. at 101 (citations omitted). See, Exhibit 5(attached). “In Wynn, this Court specifically rejected the argument that the details of adjudicated allegations of sexual misconduct offered by an expert on direct examination, supposedly to show the factual basis of an expert’s opinion, are not hearsay.” Lawrence v. Commonwealth, 279 Va. 490, 497 (2010).

In 2007, the Virginia Supreme Court pronounced that application of its Rule 4:1(b)(4)(A)(i) “begins with determining whether the opinion at issue was disclosed in any form.” John Crane, Inc. v. Jones, 274 Va. 581, 591 (2007). “Furthermore, a party is not relieved from its disclosure obligation under the Rule simply because the other party has some familiarity with the expert witness or the opportunity to depose the expert. Such a rule would impermissibly alter a party’s burden to disclose and impose an affirmative burden on the non-disclosing party to ascertain the substance of the experts testimony. We reject this reading of Rule 4:1(b)(4)(A)(i).” Id. at 592 (emphasis added). “Rule 4:1(b)(4)(A)(i) requires that the substance of opinions to be rendered be disclosed. Here, while Crane did disclose the topic of Buccigross’ testimony, Crane did not disclose the substance of Buccigross’ opinions in the disclosure or through Buccigross’ report. Crane thus failed to comply with the Rule.” Id. at 593 (emphasis added). John Crane upheld two defense experts’ opinions being excluded by Newport News Circuit Court, where their substance was not disclosed and their reports were not provided.

Va. Code Ann. §8.01-379.1 guarantees Plaintiff the right to plead and argue his pleaded ad damnum to the jury. The weight of Circuit Court jurisprudence, especially more recent cases, support Plaintiff not having to reduce his ad damnum in a medical malpractice case. See, e.g., Wright v. Eli Lilly & Co., 65 Va. Cir. 484, 499-504 (Portsmouth Sep. 21, 2004)(attached)(Davis, J.)(citing Morris v. Commonwealth, 46 Va. Cir 216, 223 ( Albemarle Jul. 17, 1998)(Peatross, J.); Benson v. Lowe, 44 Va. Cir. 85, 86-87 (Norfolk Nov. 25, 1997)(Jacobson, J.); Bennett v. Riverside, 43 Va. Cir. 13, 14 (Newport News Mar. 17, 1997)(Frank, J.); Dell v. French, 38 Va. Cir. 91, 100 (Fairfax Aug 2, 1995)(Roush, J.); Johnson v. Commonwealth, 51 Va. Cir. 311, 318 (Stafford Feb. 9, 2000)(Haley, J.); and see, Amended Judgment, Johnson v. Riverside Hosp., Inc., No. CL00-29638-DP c/w CL01-30571-DP (Newport News Nov. 30, 2005)(attached).

Actually, the medical malpractice opinion of the Virginia Supreme Court upholding the constitutionality of Va. Code Ann. §8.01-581.15 in 1989 suggests that ad damnum should not be reduced prior to trial. Etheridge v. Med. Ctr. Hosps., 237 Va. 87, 96 (1989)(italics in original)(underlining added) (citations omitted). This Etheridge language was reiterated in Supinger v. Stakes, 255 Va. 198, 205 (1998).

As recent Virginia Supreme Court case pronounced “a medical doctor is qualified to give expert testimony about the cause of human physical injury.” Hollingsworth v. Norfolk So. Ry. Co., 279 Va. 360, 364 (2010)(emphasis added). “Code §8.01-581.20 addresses only the qualifications of experts to testify on the standard of care and whether the standard of care is breached in a medical malpractice case. The requirements do not address whether an expert witness is qualified to testify on proximate causation.” Therefore, the trial court abused its discretion by holding that Dr. Corkill was not qualified to testify on proximate causation…” Lloyd v. Kime, 275 Va. 98, 112 (2008)(citation omitted)(emphasis added).

“[B]y the great weight of authority, a physician or surgeon is not incompetent to testify as an expert merely because he is not a specialist in the particular branch of his profession involved in the case; although this fact may be considered as affecting the weight of his testimony.” Butler v. Greenwood, 180 Va. 456, 462 (1942)(emphasis added)(“orthopedic surgeon of Richmond, Virginia, was permitted to answer a hypothetical question touching the brain condition of Mr. Greenwood,” who “was under the care of another doctor”).

“[T]he fact that Dr. Rodman [a ‘family’ physician’ treating some patients with heart ailments,] is not a cardiologist’ or cardiothoracic surgeon does not prevent him from giving an expert opinion on this issue [whether the vehicle collision caused the heart attack]. The fact that Dr. Redman may not be a member of one of these specialties only goes to the weight which the trier of fact may place on his testimony.” Thomas v. Builders Transp., Inc., 28 Va. Cir. 93, 95 (Amherst Apr. 3, 1992)(emphasis added).

Defendant in another medical malpractice case “argues that since Dr. Hall is a general surgeon and is not a radiologist or a pathologist, his opinion [that Defendant’s ‘negligence was a proximate cause of Burke’s death’] rested on mere conjecture and improperly was based on subjects on which he was not qualified to offer an expert opinion. We disagree.” Lo v. Burke, 249 Va. 311, 318 (1995) (emphasis added). “In reaching this conclusion, we reject Dr. Lo’s argument that Dr. Hall improperly was allowed to offer opinion testimony on subjects involving radiology and pathology. Dr. Hall testified that while he is not qualified to examine pathology slides or read radiography films, the duties of a general surgeon include the review of reports of all the medical specialists involved in a case. * * * Therefore, we conclude that Dr. Hall’s evaluation of pathology and radiology reports in formulating his expert opinion did not constitute improper opinion testimony.” Id. (emphasis added).

“Dr. Zimmerman testified that he regularly reviews CT scans, X-ray films, and other tests in evaluating tissue samples for the presence of disease. He explained that, although he has not had formal training in radiology and does not consider himself an expert in that field, he is able to read and interpret CT scans. Dr. Zimmerman further stated that, if he is unable to read a CT scan, he consults with a radiologist. However, he testified that he was able to read and interpret the CT scans of King’s eye without requesting a radiologist’s opinion. Dr. Zimmerman also indicated that, as a pathologist, he is familiar with the cellular manifestations that are characteristic of Sjogren’s syndrome.” King v. Sowers, 252 Va. 71, 78 (1996)(emphasis added). We conclude that the trial court did not err in permitting Dr. Zimmerman’s testimony on these issues, since the evidence showed that he regularly evaluated CT scans in his pathology practice, and that he has skills and experience in recognizing Sjogren’s syndrome. The fact that Dr. Zimmerman did not qualify as an expert in radiology or rheumatology is relevant only to the weight to be given his testimony by the trier of fact.” Id. (citation omitted)(emphasis added).

The Virginia Supreme Court construes Va. Code Ann. §8.01-401.1 strictly, as it is a statute in derogation of the common law against admission of hearsay:

In enacting the 1994 amendments to Code §8.01-401.1, the General Assembly was clearly aware of those dangers and sought to avoid them by inserting two preconditions to the admission of hearsay expert opinions as substantive evidence of direct examination. First, the testifying witness must have ‘relied upon’ the statements contained in the published treatises….

See, Bostic v. About Women OB/GYN, P.C., 275 Va. 567, 576 (2008)(emphasis added)(attached). The Virginia Supreme Court in its Bostic medical malpractice opinion emphasized that “relied upon” means “in forming his opinion,” not “to talk to this jury”:

The statutory standard is not met by an expert’s testimony that he relied upon it only to use ‘to talk to this jury,’ as the testifying witness did in the present case. The statutory term means that the witness must testify that he relied on the article in forming his opinion, which is consistent with the views expressed by the absent author.

Id. at 577 (emphasis added). Bostic follows another medical malpractice decision, May v. Caruso, 264 Va. 358, 361 (2002)(emphasis added), which also speaks in terms of “relied upon” to reach opinion in advance of trial, not just at it: “In that motion [in limine, which was granted and upheld on appeal], he asserted that the executor had failed to identify, as required by Code §8.01-401.1, the specific statements Dr. Waldo had relied upon to reach his opinion….”

Continue reading "Virginia: Medical Malpractice – a Lawyer’s Reliance " »

A Plaintiff once provided Defendants the precise “statements” and citations of his reliable authority more than 30 days before trial in a medical malpractice case. Also, more than 30 days before trial, he gratuitously provided them the full pages of the textbooks and articles in which each of those “statements” appeared.

Va. Code Ann. §8.01-401.1 does not even mention the word “article,” though Defendants still claimed it must be provided. §8.01-401.1 only requires that the discrete specific “statements” relied by a party upon be provided in a medical malpractice suit.

In the medical malpractice trial of May v. Caruso, 264 Va. 358, 361 (2002) (emphasis added), the only authority cited by Defendants, the party “failed to identify, as required by Code 8.01-401.1, the specific statements Dr. Waldo had relied upon to reach his expert opinion.” May simply upheld exclusion for the party failing “to adequately identify the statements,” id. at 363 (emphasis added); it did not hold that the only way to identify statements is to underline/highlight them in an article.

Five years after May, another medical malpractice decision, Budd v. Punyanitya, 273 Va. 583, 588 (2007) (emphasis added), observed that underlining or highlighting is not the only way to adequately identify “statements”. “Budd conceded that he did not provide counsel for Dr. Punyanita with copies of the designated article or otherwise indicate the statement…” Id.

In Healy v. Shegog, No. 00-1249 (Hampton August 2004) (Lerner, J.) and Johnson v. Riverside Hosp., Inc., No. CL002963B-DP c/w No. CL01-30571-DP (Newport News March 2005) (Pugh, J.), Mr. Waterman adequately identified the “statements” simply by providing defendants the typed “statements” with citations. Plaintiffs did not even provide the pages on which the “statements” appeared in those medical malpractice actions, let alone textbooks or articles.

In the medical malpractice case of Johnson v. Riverside Hosp., Inc., No. CL00-29638-DP c/w CL01-30571-DP (Newport News Mar. 7, 2005)(Pugh, J.), defense counsel unsuccessfully objected to Mr. Waterman subpoenaing the corporate Defendant as a trial witness to testify through its most knowledgeable representatives designated by it in discovery. See¸ 3/7/05 Johnson v. Riverside, Final Pre-Trial Order at 2 and 5 (“Plaintiff is entitled to call Defendant through its previously identified Rule 4:5(b)(6) designated representatives” and even new “testimony…outside the scope of the new corporate designation is taken under advisement,” and subsequently was granted at trial). In Johnson, Plaintiff’s first several trial witnesses were Defendant, Riverside Hospital, testifying through its personnel.

“A litigants’ attendance upon the trial may be compelled by the issuance and service upon him of a subpoena …, as is the case with any other witness.” Robertson v. Commonwealth, 181 Va. 520, 532 (1943). Va. Code Ann. §8.01-407. Of course, common sense dictates it must be so that Plaintiff can subpoena the corporate Defendant to testify at trial; otherwise, Plaintiff would be precluded from calling the corporate Defendant in person to testify ore tenus, and instead would be limited to only a deposition.

Court hearing in the medical malpractice lawsuit of Marshall v. Moniz, No. CL08-2018 in Circuit Court for York County and Town of Poquoson, Virginia, showed there is no dispute that: (1) Defendants never charged Plaintiff anything for the 10/5/06 repair surgery, despite charging him for the other 4 surgeries before and after it [“No-Charge”]; and (2) Defendants wrote off as “bad debt” $1,963.53 of bills for the other 4 surgeries [Write-offs”]. That information comes from Defendants’ office computer and is summarized by Plaintiff. See, Defendants’ Charges/No Charges/Write-offs Composite.

First, Defendants’ counsel previously represented to the Court at prior hearing in Marshall that the 10/5/06 no-charge supposedly was “bundling of services” by Defendants, despite none of the other 4 surgeries having been “bundled” with one another. Moreover, the corporate Defendants’ designated representative, Ms. Schwartzlow, had testified she conferred with and received authorization from Dr. Moniz about Write-Offs, prior to any medical malpractice suit being filed. See, Williamsburg Surgery (by Schwartzlow) Deposition at 63-66.

Second, the two cases cited by Defendants are distinguishable on their facts. Both involve “offers” of compromise or remedial assistance in cases not involving medical malpractice. See, Lewis v. Kim, 46 Va. Cir. 227 (Alexandria Jul. 22, 1998) and Novick v. Dillon, 44 Va. Cir. 111 (Richmond Nov. 24, 1997); But in Marshall, the Write-Offs were unilateral conduct by Defendants.

Third, contrary to Defendants’ representation in Marshall, Richmond Circuit Court actually upholds the admissibility of write-offs, where as here, they are unilateral by Defendants versus “offers” to Plaintiff. In another medical malpractice action of Mr. Waterman, Schuster v. Posner, No. LA-134-3 (Richmond Mar. 24, 1997), Judge Markow ruled that Defendants’ medical bill write-off was admissible against interest, that Defendants were free to try explaining it away, and that “it’s up to the jury to decide who to believe”. See, 3/24/97 Schuster v. Posner Transcript at 75. 11-96.20.

Fourth, the day before hearing in Marshall Defendants inconsistently filed to admit their Write-Offs in evidence to reduce Plaintiff’s medical bills at their medical malpractice trial beginning on March 28, 2011. See, Defendants’ Memorandum in Opposition to Plaintiff’s Second Motion in Limine regarding Write-Offs. But it is hornbook law that Defendants cannot approbate and reprobate.

On March 24, 2011, various pre-trial motions again were heard in Circuit Court for York County and the Town of Poquoson, Virginia, in the medical malpractice suit of Marshall v. Moniz, No. CL08-2018. The case goes to jury trial at the Yorktown Courthouse during March 28-April 7, 2011.

The Marshall Court denied Defendants’ Motion to Strike Claim based on Surgery for Lack of Causation. Defendants wanted to keep from the jury evidence supporting the medical malpractice allegation that in the face of patient complaints Defendants delayed in seeing and operating on Plaintiff; but the Court ruled Plaintiff was entitled to present that evidence.

The Court in Marshall also denied Defendants’ Motion to Quash Rule 4:5(b)(6) Trial Subpoena of Williamsburg Surgery, P.C. Defendants tried to prohibit Plaintiff from calling corporate Defendant in person at trial through its most knowledgeable persons previously designated in deposition, but the Court ruled that Williamsburg Surgery, P.C. must honor the subpoena and testify at the medical malpractice trial through its representatives.

Additionally, the Court denied Defendants’ Motion to Reduce Plaintiff’s ad damnum. Defendants unsuccessfully attempted to limit the patients’ medical malpractice suit to $1,850,000.00 instead of the $12,000,000.00 he claimed, but the Court ruled Plaintiff was entitled to maintain and argue for the full amount pleaded in his lawsuit.

Further, the Court granted Defendants’ Motion in Limine concerning Neurology Testimony by Dr. Swartz and Dr. Morgan. That means in the Marshall medical malpractice suit Plaintiff’s general surgeons will not be allowed to corroborate Plaintiff and his neurologist that the patient’s protracted hospitalization and its incidents caused his permanent painful disabling peripheral neuropathy, despite Sr. Swartz and Dr. Morgan having knowledge of and experience with other surgical patients sustaining substantially similar neuropathy from the same cause.

Continue reading "Virginia: Medical Malpractice – a Lawyer’s Pre-Trial" »

On March 25, 2011, additional pre-trial motions were heard in the medical malpractice lawsuit of Marshall v. Moniz, No. CL08-2018 in Circuit Court for York County and the Town of Poquoson, Virginia. Among other things, the Court denied Defendants’ Motion regarding Blog of Plaintiff’s Counsel filed by Jason R. Davis, Esq. and Mary Elizabeth Sherwin, Esq. of Kaufman & Canoles, P.C., a defense-oriented law firm based in Norfolk, Virginia.

Defendants through their counsel sought “during the course of trial to require plaintiff’s counsel to immediately remove all information this case from his website and any other public material, discontinue blogging or otherwise publishing about this case, and deactivate the blog.” Jury trial of the Marshall medical malpractice case on the merits is scheduled for March 28 – April 7, 2011, at the Yorktown Courthouse.

The Marshall Court denied the aggressive Motion of the defense, which is covered by Sentara’a $1,850,000.00 medical malpractice policy, as Sentara has purchased the assets of the corporate Defendant, Williamsburg Surgery, P.C., and Sentara employs the individual Defendant, Dr. Moniz. York Circuit Court followed Suffolk Circuit Court in finding the blog postings of plaintiff’s counsel outside of its purview.

In an earlier medical malpractice matter, Mahone v. Sentara Hospitals, No. CL-09-560 in Suffolk, Sentara similarly filed an Emergency Petition to terminate the blog postings by Plaintiff’s counsel about his fruits of a hearing against it. That Petition was denied, and Mr. Waterman was free to continue posting on his blog.

Mr. Waterman proudly congratulates his partner, Robert R. “Bobby” Hatten, Esq., on his firm record-setting jury verdict of $25,000,000.00 for an asbestos victim today in Circuit Court for the City of Newport News, Virginia! Increasingly, Peninsula jurors have become savvy to disingenuous attempted defenses to plain liability and permanent damages by deep-pocketed Defendants, their hired-gun experts, and out-of-town lawyers.

For over three decades, Mr. Hatten has dedicated his law practice to representing victims of asbestos with great success. Go Bobby!

On March 15, 2011, Mr. Waterman was recognized for membership in the prestigious Multi-Million Dollar Advocates Forum. This follows a Gloucester jury verdict for $3,250,000.00 for assault and battery, which was coupled with companion jury verdicts of $1,250,000.00 and $500,000.00 plus pre-judgment interest of approximately $1,100,000.00.

Membership is exclusive, strictly limited to those lawyers who have obtained a multi-million dollar verdict or settlement that is final. Initially, Mr. Waterman had been a member of the Million Dollar Advocates Forum for a decade based on a $1,250,000.00 jury verdict he was awarded for a medical malpractice lawsuit in Hampton, Virginia.

In the medical malpractice lawsuit of Marshall v. Moniz, No. CLO8-2018 in Circuit Court for York County and the Town of Poquoson, Virginia, seeking $12,000,000.00 in alleged damages, Defendants have hired a Massachusetts doctor, David W. Rattner, to testify about the “standard of care” here in Virginia. Among other things, Defendants hope to impress the jury by Dr. Rattner being a Harvard doctor with a big resume.

Defendants also hope to keep from the jury in Marshall that Dr. Rattner himself has been sued successfully unto settlement recovery for medical malpractice in Massachusetts. Defendants have moved in limine requesting the Judge to exclude from evidence at trial Dr. Rattner admitting that around 2004-2005 he operated on the wrong site of his patient; that he was sued for his mistake; that approximately $1,000,000.00 was paid to the victim patient; and that the Court record of his case has been sealed from public view.

Conversely, Plaintiff argues that such evidence of mistake by a “standard of care” expert is relevant and even material to the jury in Marshall evaluating the credibility of Dr. Rattner from standpoints of bias, proficiency and/or otherwise. Historically, Dr. Rattner testifies in favor of Defendants at least 85-90% of the time, and is not happy and even has repressed about having been sued by a patient for medical malpractice.

Tellingly, Defendants in Marshall cite no Virginia case excluding the admitted medical malpractice, huge payment, record sealing, and personal humiliation of an expert. Instead, Defendants cite Virginia authority excluding “prior bad acts” of the defendant on “collateral” matters, and just overgeneralize them as supposedly pertaining to any “physician”. E.g., Graham v. Stottlemeyer, 268 Va. 7, 13 (2004).

Significantly, another medical malpractice cited by Defendants, Smith v. Frenkel, No. L03-2784 (Norfolk 2004), underscores the material distinction on this point between a “party” and an “expert”: the Order obtained by Defendants’ counsel in Smith expressly was based on “the representation that the defense does not intend to elicit standard of care testimony from Dr. Frenkel” (emphasis added); whereas conversely in Marshall, the defense intends to elicit “standard of care” plus “causation” testimony from Dr. Rattner. Defendants’ counsel impliedly concedes in Smith that a “standard of care” and “causation” expert committing a mistake, a huge payment being made for it, and being so self-conscious as to a sealed record, is not just a “collateral” matter, but rather is a core one going to credibility, bias, proficiency, etc.

Continue reading "Virginia: Medical Malpractice Expert Bias – a Lawyer’s Impeachment" »

On March 1, 2011, United States District Court for the Eastern District of Virginia entered Judgment in favor of Mr. Waterman’s client. The special case is United States of America, ex rel., Joseph M. Russell v. Michael J. Gennari, Evonne Fei, and Nancy Lynne Russell, civil action no.4:09cv88 in the Newport News Division, which was set for 2-day trial during May 3-4, 2011.

Relator had filed a qui tam action, alleging fraud and conspiracy to defraud. But for the reasons set forth in its 11-page Memorandum Opinion, the federal court found that Relator failed to allege fraud and conspiracy sufficiently; that it thereby lacked jurisdiction over the special case; and that dismissal in Russell should be with prejudice without leave to amend, since Relator already had amended once with the benefit of counsel.

In Russell, Mr. Waterman made a rare appearance as counsel for a Defendant. His able co-counsel was a medical malpractice defense lawyer no less.

On February 28, 2011, pre-trial Motions were heard in the medical malpractice lawsuit of Marshall v. Moniz, No. CL08-2018 in Circuit Court for the County of York and Town of Poquoson, Virginia. The patient claims $12,000,000.00 in damages arising from a supposedly routine out-patient incisional hernia repair at Sentara Williamsburg Community Hospital allegedly leading to 5 surgeries in 30 days, hospitalization for 8 months, several near-death experiences, approximately $1,000,000.00 in medical expenses, and permanent painful disabling neuropathy.

The Court granted Plaintiff’s Third Motion for Entry of Order in Marshall, memorializing its rulings at hearing on February 14, 2011. Sentara Hospitals and Sentara Williamsburg Community Hospital (collectively “Sentara”) unsuccessfully sought entry of a short Order that did not cover all facets of the medical malpractice “privilege” issue decided previously, versus the comprehensive Order drafted by Mr. Waterman that was factually correct.

The Court also granted Plaintiff’s Motion for Order for Original Records in Marshall, which required Sentara to produce the patient’s original records at the Courthouse in Yorktown for the medical malpractice jury trial beginning on March 28, 2011. Sentara had opposed the patient, even though Defendants admitted that Sentara providing only copies might preclude the patient from being able to bear his burden of proof due to lack of dates on the copies.

Additionally, the Marshall Court required Sentara promptly to identify and provide Plaintiff last known contact information for all requested past and present staff of Sentara. Without timely production by Sentara, the patient may not have been able to subpoena the necessary witnesses to the 2-week medical malpractice trial.

At hearing, Defendants withdrew a doctor who had been named by them as a medical malpractice expert, but who never submitted to discovery deposition by Plaintiff. Plaintiff agreed that one of his key wound care nurses from Riverside would not give opinions in Marshall about dexterity problems that his post-hospitalization neuropathy had caused him.

Continue reading "Virginia: Medical Malpractice – a Lawyer’s Hearing" »

On February 23, 2011, Mr. Waterman settled a Virginia six-figure vehicle accident claim. The victim should receive net proceeds in March.

In February, 2011, Mr. Waterman appeared in Lancaster, Virginia, to protect the interests of a minor who was victim of sexual abuse. The Court details of this special case are confidential.

On February 14, 2011, St. Valentine’s Day, Mr. Waterman prevailed in substantial part against Sentara Hospitals and Defendants at medical malpractice “privilege” hearing pursuant to Va. Code Ann. § 8.01-581.17. The case is Marshall v. Moniz, No.CL08-2018 in Circuit Court for the County of York and Poquoson, Virginia.

The Surgical Management Committee (“SMC”) of Sentara Williamsburg Community Hospital reviewed the treatment and care of the Plaintiff patient by Dr. Moniz, who operated on him 5 times within a 30-day period. Sentara, Dr. Moniz and his Defendant practice, Williamsburg Surgery, P.C., sought to keep the SMC’s 3-page document from Plaintiff in the Marshall medical malpractice lawsuit.

But the Court in Marshall found that Plaintiff was entitled to all of the factual patient care information in the SMC document, despite accepting that the SMC was a protected peer review committee under §8.01-581.16. It followed Mr. Waterman’s landmark medical malpractice case, Riverside Hosp., Inc. v Johnson, 272 Va. 518 (2006), and its progeny before Judge Pugh in Newport News Circuit Court.

Notably, the favorable ruling by York County Circuit Court effectively reversed the contrary 2008 letter opinion on the identical point by the Circuit Court for the City of Williamsburg and James City County. The predecessor suit to the current Marshall medical malpractice action in York was Marshall v. Sentara, No. 07-614 in Williamsburg/James City, which was non-suited after refiling in York.

Continue reading "Virginia: Medical Malpractice – a Lawyer’s Valentine" »

On February 2, 2011, discovery and other pre-trial matters were heard at the Yorktown Courthouse in the medical malpractice case of Marshall v. Moniz, No. CL08-2018 in Circuit Court for York County and Poquoson, Virginia. That suit seeks more than $12,000,000.00.

The Court granted Defendants’ Motion to Exclude Veterinarian Experts in Marshall, precluding both Dr. Leonard and Dr. Alexander from testifying as expert or even fact witnesses concerning the medical malpractice alleged. Plaintiff noted his exceptions of grounds of relevance, materiality and undue prejudice, as those veterinarians had disabused Plaintiff’s daughter regarding the assurances given by Defendants about Plaintiff’s deteriorating post-operative condition.

The Court in Marshall also denied Plaintiff’s Motion to Exclude Extra Defense S.O.C. Expert “at this time”. Significantly, however, it ruled further that in all likelihood Defendants would be limited to calling 2 medical malpractice “standard of care” (“SOC”) experts at trial; and that Defendants must pay the costs (including expert fees, court reporter fees, transportation and lodging expenses, and attorneys fees) associated with Mr. Waterman deposing one of the two out-of-state SOC retained by Defendants.

Additionally, the Court in Marshall granted Plaintiff’s Motion to Compel Discovery regarding certain “prior expert consultation history” for Defendants’ experts. Because they had been retained as medical malpractice experts by Defendants’ counsel before, Defendants were required to identify those prior cases.

Further, the Court granted Plaintiff’s Motion to Compel as to Virginia Supreme Court Rule 4:5(b)(6) deposition of the corporate Defendant, Williamsburg Surgery P.C., vis-à-vis it having to tender co-Defendant, Dr. Moniz, as its most knowledgeable person (“MKP”) on multiple topics noticed. Following the medical malpractice precedent of Woodcock v. O’Connell, No. 32067, Order at 2 (Hampton Mar. 25, 1997) and Seibert v. Riverside Hosp., Inc., No. 40366-DP, Second Order at 2 (Newport News Jul. 23, 2007) and Third Order at 1 (Newport News Jul. 23, 2007); the Court in Marshall accepted Defendants stipulating the prior individual deposition testimony of Dr. Moniz as deposition testimony of the Williamsburg Surgery, P.C., but allowed Plaintiff to depose the Defendant corporation through Dr. Moniz on “new items”.

Continue reading "Virginia: Medical Malpractice – a Lawyer’s Rulings" »

On January 25, 2010, dailypress.com headlined, “Judge’s ruling may mean smaller damages in Gloucester lawsuit,” and subtitled “Decision expected to head to the Supreme Court”. It covered hearing that day in the brain injury case of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

In August, 2009, a Gloucester jury in Gagnon awarded the permanent brain injury victim $1,250,000.00 against Assistant Principal Travis Burns; $3,250,000.00 against the assailant; $500,000.00 against his encouraging sister; and $1,100,000.00 in pre-judgment interest on all of those principal amounts collectively. Plaintiff unsuccessfully argued that he was entitled to collect all amounts against the Assistant Principal, who enjoys $6,000,000.00 of insurance coverage, versus the impecunious brother and sister student tortfeasors, both of whom have filed for Bankruptcy.

At hearing on January 25th, the Judge noted that Plaintiff’s authority of the Restatement (Third) of Torts: Apportionment of Liability §14 was compelling; but ruled that there was no “joint and several liability” between the Defendants to the brain injury victim. Both litigants in Gagnon intend to appeal to the Virginia Supreme Court, the Assistant Principal about him being liable at all and Plaintiff about joint and several liability.

On January 24, 2011, Virginia Lawyers Weekly headlined “Details scant in settlement of shoulder dystocia case,” and subtitled “987,500 Settlement”. Mr. Waterman and co-counsel resolved that medical malpractice action.

Their $987,500.00 settlement negotiated on September 7, 2010, was for “Brachial plexus injury caused by shoulder-dystocia delivery”. It was believed to be the largest settlement in Virginia for that type of medical malpractice case.

Typically in Virginia, jurors receive the Virginia Model Jury Instructions about what damages they can award victims of wrongful death, vehicle accidents, medical malpractice, defective products, and other personal injury. Those pattern instructions inform jurors that they should consider pain, suffering, inconvenience, disfigurement, medical bills, lost earnings, etc.

Significantly, however, Virginia jury instructions do not cover two other “losses” unavoidably borne by every victim of wrongful death, vehicle accident, medical malpractice, product liability, or other personal injury. One is attorney fees; the other is litigation expenses.

In Virginia and elsewhere, cases of wrongful death, vehicle accidents, medical malpractice, product liability, and other personal injury are handled on a “contingency fee” basis, whereby the attorney is compensated by receiving a percentage of the recovery obtained at trial (or by settlement), if any. That is because victims usually cannot afford to pay an attorney a standard hourly rate for time expended, particularly when the amount, timing, and even the fact of recovery is disputed and uncertain.

Traditionally the contingency fee is one-third of the (gross) recovery in vehicle accident cases. However, in more complex time-consuming expensive risky litigation like medical malpractice and product liability, the contingency fee typically is 40%.

In addition to attorneys fees, the Virginia Code of Professional Responsibility mandates that a victim of wrongful death, vehicle accident, medical malpractice, product liability, and other personal injury must bear his litigation expenses. Usually the most significant expenses are expert fees, court reporter fees, and travel expenses, which generally are not recoverable from the wrongdoer.

Even in a modest vehicle accident case, such litigation expenses easily can amount to several or more thousand dollars. In complex litigation like medical malpractice and product liability and even in some hard-fought wrongful death and vehicle accident cases, such expenses are $25,000.00 - $50,000.00 to upwards of $100,000.00.

Thus after payment of attorneys fees and litigation expenses – not to mention liens for any medical expenses covered by private insurance or government programs – a victim of vehicle accident actually may receive only 60% of the jury’s award, while a victim of medical malpractice or product liability may be lucky to get 50% of the jury’s award. Legislative change is needed so jurors are instructed to consider attorneys fees and litigation expenses in awarding full fair compensation to victims.

Many Virginians qualify for Workers’ Compensation when killed or injured on-the-job by a third-party wrongdoer. But under Virginia law, victims of on-the-job wrongful death, vehicle accidents, product liability, and other personal injury still are entitled – and need – to be compensated fully by the wrongdoer for their lost wages, medical expenses, disability and/or death.

Many, if not most, jurors are unaware that on-the-job victims awarded compensation at trial are liable for reimbursement of all Workers’ Compensation benefits they have received, including all wage, medical, disability and/or death payments. Specifically, employers by law have a lien against any jury awards to be repaid in full in preference and priority to all victims of wrongful death, vehicle accidents, product liability, and other personal injury.

Such a lien exists regardless whether the jury actually included anything in its award for the on-the-job victim’s wages, medicals, disability and/or death. Hence on-the-job victims of wrongful death, vehicle accidents, product liability, and other personal injury will be under-compensated grossly if a jury fails to award for wages, medicals, disability and/or death on the assumption that there is Workers’ Compensation or otherwise.

During January 29-February 1, 2011, Mr. Waterman travels to Montana for the discovery deposition of one of his medical malpractice experts in Marshall v. Moniz, et al., No. CL08-2018 in Circuit Court for the County of York and Town of Poquoson, Virginia. Plaintiff patient in Marshall went in for routine out-patient surgery for incisional hernia repair, but instead ended up hospitalized for 8 months straight, incurred $1,000,000.00 in medical bills, and was disabled permanently; for which he seeks $12,350,000.00 in damages.

The Montana expert deposition in Marshall highlights two significant impediments to a patient maintaining a medical malpractice lawsuit in Virginia and elsewhere. The first is the relative scarcity of quality experts who are willing to testify for patients; the second is the substantial cost of pursuing a claim.

It has been coined that there is a “conspiracy of silence” and a “circling of wagons” by doctors, nurses, and other healthcare providers when it comes to testifying as a patient expert in a medical malpractice case. Most Virginia doctors will not even consider testifying for any patient, regardless the case’s merits; such that victim patients often have to rely upon experts who reside and practice out-of-state.

Second, when serving as experts, doctors typically charge $300.00 - $1,000.00 per hour for all time spent on a medical malpractice case, from record review to conference, from deposition to travel, and everything else. Moreover, experts being located afar incurs significant cost to the Plaintiff patient for travel, accommodations, etc., in addition to valuable attorneys time.

Conversely, Virginia and other healthcare defendants in a medical malpractice case have a comparatively easy time with experts. Doctors, nurses, and other healthcare providers will testify in favor of a colleague much more readily; plus the defendant is backed financially by the much deeper pockets of his insurance company and/or healthcare institution.

On January 11, 2011, The Virginian-Pilot headlined “Deal Would Raise Cap on Malpractice Suits in VA”. It covers a compromise hammered out between the Medical Society of Virginia and the Virginia Trial Lawyers Association to increase the Commonwealth’s statutory limitation of $2,000,000.00 on medical malpractice awards by $50,000.00 per year beginning in 2012 to a maximum of $3,000,000.00 in 2031.

On January 12, 2011, the General Assembly came into session. House Bill 1459 (which may be heard on the house floor by January 21st) and Senate Bill 771 are identical bills incorporating the medical malpractice agreement, which have been filed.

The Virginian-Pilot reported that a Senior Vice President of the Virginia Medical Society said it did not see a pressing need to increase the medical malpractice cap, because only 7, claims in 2008 were greater than $1,500,000.00. But that self-serving angle ignores the caps perennial chilling effect: as defense interests know and intend, the cap tends to operate a “glass ceiling” on many settlements, depressing the dollar amounts of awards and settlements alike versus what they would have been without any cap.

The medical malpractice cap is “pork barrel” legislation for the monied privileged healthcare and insurance industries. The other citizens of Virginia do not get to limit their liability for wrongdoing, and the cap re-victimizes the most severely injured victims of medical malpractice.

Significantly, The Virginian-Pilot also reported in the same article that the Virginia Hospital and Healthcare Association (“VHHA”) still seeks special legislation to “address a 2006 decision by the Virginia Supreme Court that allows factual documents about hospital incidents to be admitted as evidence at trial.” More specifically, VHHA wants the General Assembly legislatively to overrule Mr. Waterman’s landmark medical malpractice case of Riverside v. Johnson, 272 Va. 518 (2006).

Continue reading "Virginia: Medical Malpractice Legislation – a Lawyer’s Perspective " »

On January 10, 2011, Virginia Lawyer’s Weekly recognized Mr. Waterman for obtaining the 8th largest jury verdict in the Commonwealth of Virginia during 2010. On August 26, 2010, he received a jury award of $6,100,000.00 (including pre-judgment interest of $1,100,00.00) for a brain injury victim in Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

This is the second time Mr. Waterman has been recognized by Virginia Lawyers Weekly for a top Virginia jury verdict. In 2005, his $1,600,000.00 jury award in the landmark medical malpractice case of Riverside Hosp., Inc. v. Johnson in Newport News, which he successfully defended on appeal to the Supreme Court of Virginia in 2006, was the 13th highest across the state and remains the largest ever in Virginia for a patient fall.

Most Virginians have some form of private health insurance or at least qualify for public health coverage in the form of Champus, Medicare and/or Medicaid. But under Virginia law, victims of wrongful death, vehicle accidents, medical malpractice, and other personal injury still are entitled – and need – to be compensated for their medical expenses by the wrongdoer.

Many, if not most, jurors are unaware that victims awarded compensation at trial are liable to reimburse medical expense benefits they have received. Specifically, the government and most private insurers by law have a lien against any jury awards to be repaid in full in preference and priority to all victims of wrongful death, vehicle accidents, medical malpractice, and other personal injury.

That lien exists regardless whether the jury actually factored anything into its award for the victim’s medical expenses. Hence victims of wrongful death, vehicle accidents, medical malpractice, and other personal injury stand to be under-compensated if a jury fails to award anything for medical expenses on the assumption that there is healthcare coverage or otherwise.

In Virginia, victims of medical malpractice are entitled to know the dollar amount and other terms of liability insurance covering a defendant healthcare provider. However, as a general rule such victims and their lawyers are prohibited from disclosing such insurance coverage at trial.

Virginia’s approach to insurance coverage in personal injury cases is not followed by all states. Indeed, for differing policy reasons, other states not only allow jurors to know about the defendant’s insurance coverage, some even allow the insurer to be named as a defendant.

Despite the courtroom shroud of secrecy, it is truly rare in Virginia for a medical malpractice defendant not to have sufficient coverage. The overwhelming majority of Virginia doctors, nurses, and other individual healthcare providers either have their own insurance policies or are covered by the entity for which they work.

Insurance polices typically are in the full amount of the so-called medical malpractice “cap,” which by Virginia law is the most money for which a negligent healthcare can be held liable, regardless how much actually is awarded by the jury as fair compensation. Currently, Virginia’s “cap” for medical malpractice liability is $2,000,000.00, though that inequitable limit is expected to be increased later in 2011.

By letter dated December 21, 2010, the trial judge in the brain injury case of Gagnon v. Burns, No. 08-572 in Circuit Court for Gloucester County, Virginia, directed an additional hearing prior to entry of Final Judgment. The continuing issue is Defendant Burns’ joint and several liability for the $6,100,000.00+ jury award on August 27, 2010.

The judge found sufficient merit to the points raised by Mr. Waterman in Plaintiff’s Supplemental Motion and Memorandum for Joint and Several Liability on December 16, 2010. His Motion in the Gagnon brain injury lawsuit will be scheduled after the New Year and allow Defendants opportunity to file a memorandum and argue in opposition.

On December 16, 2010, Mr. Waterman filed Plaintiff’s Supplemental Motion and Memorandum for Joint and Several Liability in the brain injury lawsuit of Gagnon v. Burns, Case No. 08-572 in Circuit Court for Gloucester County, Virginia. He found substantial new legal authority for a negligent joint tortfeasor being liable for the intentional torfeasor’s portion of the victim’s damage.

For at least 70 years, the Virginia Supreme Court has embraced the Restatement of Torts as authoritative. Example cases follow. Dunn, McCormack & MacPherson v. Connolly, 2010 Va. LEXIS 158 (April 20, 2010)(intentional tort); Kellermann v. McDonough, 278 Va. 478, 489 (2009)(assumed duty); Koffman v. Garnett, 265 Va. 12, 16 (2003)(assault elements)(sovereign immunity case); Dadato v. Strehler, 262 Va. 617, 628 (2001)(assumed duty); Infant C. v. Boy Scouts of America, Inc., 239 Va. 572, 583 (1990)(intentional misconduct); and Bloxom v. McCoy, 178 Va. 343, 349 (1941)(third persons).

The Restatement (Third) of Torts: Apportionment of Liability §14 at 117-121 (Cumm. 2010) is on point with the Gagnon brain injury case, and recognizes the joint and several liability of a negligent tortfeasor such as Defendant Burns for intentional tort. “Tortfeasors Liable for Failure to Protect the Plaintiff from the Specific Risk of an Intentional Tort – A person who is liable to another based on a failure to protect the other from the specific risk of an intentional tort is jointly and severally liable for the share of comparative responsibility assigned to the intentional tortfeasor in addition to the share of comparative responsibility assigned to that person.”

Like Virginia, sister-state West Virginia is one of the few remaining “pure joint and several liability” states. In 2004, the West Virginia Supreme Court followed Restatement (Third) of Torts §14; held on point that “tortfeasors whose wrongful acts or omissions, whether committed intentionally or negligently, concur to cause injury are joint tortfeasors who are jointly and severally liable for the damages which result from the wrong so committed”; and upheld that the negligent tortfeasor was jointly and severally liable for the entire verdict despite the jury “apportioning thirty percent liability to Appellant based on negligence and seventy percent liability to Robert Cleavenger based on his intentional act”. Strahin v. Cleavenger, 216 W.Va. 175 (2004)(emphasis added).

Further, for the definition of “joint tortfeasors,” the West Virginia Supreme Court in Strahin looked to Black’s Law Dictionary. Likewise, the Virginia Supreme Court looks to Black’s for its definition; and so too should Gagnon for the brain injury victim.

On December 10, 2010, when the insurance company representatives failed to recommend paying policy limits to the vehicle accident victim by the deadline given, Mr. Waterman sent the case to suit. The next business day, December 13th, the insurer belatedly tendered its policy limits.

Its policy limits for the vehicle accident was $100,000.00. That was approaching twice the maximum it had low-balled previously.

On December 10, 2010, the Newport News Division of Bankruptcy Court for United States District Court for the Eastern District of Virginia entered companion Orders in Chapter 7 proceedings for discharge, In re Christine D. Newsome, No. 10-51792-SCS, and In re James S. Newsome, Jr., No. 10-51881-SCS. Those Orders lifted the automatic stay of Bankruptcy for purposes of entering final judgment and setting appeal bond against both Debtors in the brain injury case of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

On August 26, 2010, a Gloucester jury in Gagnon awarded the brain injury victim $6,100,000.00: $3,250,000.00 against Mr. Newsome, $500,000.00 against Ms. Newsome, and $1,250,000.00 against the Assistant Principal, William Robert Travis Burns; plus $1,100,000.00 in pre-judgment interest on each of those principal amounts. At hearing on November 9, 2010, the Judge in Gagnon tentatively set appeal bonds of $4,000,000.00 for Mr. Newsome, $750,000.00 for Ms. Newsome, and $1,700,000.00 for Assistant Principal Burns.

On December 2, 2010, another insurance company re-victimized a vehicle accident victim of its insured. In a clear case of liability and significant damages in York County, the offender’s insurer low-balled the Virginia victim motorist.

For years, insurance companies and other defense interests have massaged public thinking with advertizing campaigns, legislative agendas, political contributions, etc. Their deep-pocket tactics have conditioned citizens to view vehicle accident victims and other personal injury claimants as greedy, unsavory, and frivolous – despite most victims having legitimate claims.

Having predisposed people negatively toward claimants, many insurers play hardball against personal injury victims. They make subpar settlement offers to genuine vehicle accident victims, confident that they have poisoned the jury pool sufficiently in case the claimant does not knuckle under and instead files suit for fair compensation.

Mr. Waterman recounts a current vehicle accident case of lowballing. On February 4, 2010, a Yorktown motorist failed to yield the right of way while turning on State Route 17, cutting in front of an oncoming Gloucester motorist and causing a serious collision.

That vehicle accident victim sustained closed head and other injuries; required medical treatment and care and was disabled from work for more than 4 months; and 10 months after-the-fact still suffers some residual limitations. His past medical bills are more than $20,000.00 and his past lost wages are almost $25,000.00, totaling approximately $45,000.00 in fully-documented undeniable special damages alone!

Continue reading "Virginia: Insurers Re-Victimizing the Victim - a Lawyer’s Example" »

On December 1, 2010, Mr. Waterman reached a settlement agreement on a local vehicle accident claim without having to file suit. It was a two-car collision in Newport News, Virginia, involving residents of Yorktown and Newport News.

The vehicle accident victim initially was treated in the Emergency Room at Mary Immaculate Hospital. Subsequently the victim was treated by Sentara providers.

On November 11, 2010, Mr. Waterman settled a vehicle accident claim arising in Newport News, Virginia, involving residents of Newport News and Hampton. Suit had been filed on the two-car accident within the statute of limitation, but the lawsuit did not have to be served due to the deal reached.

On November 9, 2010, Circuit Court for Gloucester County, Virginia, heard the brain injury case of Gagnon v. Burns, No. CL08-572. The judge tentatively refrained from entering a Judgment Order to await hearing of Plaintiff’s pending motions for relief from automatic stays enjoyed by the pro se Defendants, James S. Newsome, Jr. and Christine D. Newsome, filing for Bankruptcy protection. If the stays are lifted as expected in December, Ms. Newsome will have to post a bond of $750,000.00 to appeal, while Mr. Newsome faces an appeal bond of $4,000,000.00.

Meanwhile the Court approved a $1,700,000.00 cash bond being posted by Virginia Municipal Liability Pool, which insures Assistant Principal Travis Burns for $6,000,000.00. The Court also entered Orders from hearing in the brain injury suit on June 22, July 15, and August 12, 2010.

On November 8, 2010, The Daily Press and dailypress.com headlined “Woman’s death sparks lawsuit against Gloucester surgeon”. That media coverage is of Mr. Waterman’s $4,350,000.00 wrongful death suit Martha Sue Norville, Executor of the Estate of Ethelone M. Chamber, Deceased v. Melvin Wayne Ressler, M.D., et al., No. CL10000470-00 filed in Circuit Court for Gloucester County, Virginia, on October 4, 2010.

Among other things, the Norville lawsuit alleges medical malpractice at Riverside Walter Reed Hospital. The suit alleges further that the deceased suffered massive blood loss and other complications after her intestine and a blood vessel were cut by her surgeon.

Va. Code Ann. 46.2-1156.1 promotes the safety of certain children in vehicle accidents involving pickup trucks. It forbids the transportation of minors under 16 years of age in the rear cargo area of any pickup truck on a Virginia highway. However, some organized parades and forming operations are exempted.

Bicyclists frequently are victims of vehicle accidents, so should wear bicycle helmets to minimize wrongful death and brain injuries. Although Virginia does not have a statewide law, the following Hampton Roads and other localities have ordinances mandating bike helmets based on age: Albemarle County, City of Alexandria, Amherst County, Arlington County, Clarke County, City of Falls Church, Floyd County, City of Hampton, James City County, Town of Luray, City of Manassas, City of Manassas Park, City of Norfolk, Orange County, City of Petersburg, Prince William County, Stafford County, City of Vienna, Town of Wise, and York County.

Virginia law does require a bicycle light and reflector statewide to avoid vehicle accidents. A bike must have a white headlight visible 500 feet away when ridden from sunset to sunrise. Also, a bike must have a red reflector visible 600 feet away at all times.

Maintaining visibility at all times remains critical since being struck by motorists is by far the leading cause of wrongful death to bicyclists in Virginia and elsewhere. Hundreds of bicyclists are killed and injured every year by cars, trucks, and other vehicles across the United States.

Halloween! It is a time for fun, particularly for young children. It also is a time for safety, particularly with young children.

Parental vigilance assures that young trick-o-treaters do not become crime victims. Older children playing serious pranks, unsavory residents giving tampered snacks, and other unexpected mischief unfortunately are ghoulish specters.

But vehicle accidents loom as greater haunts. Adult supervision, well-fitting attire and lighting devices help protect young kids darting into traffic, tripping on roadways, etc.

Also, costumes should be flame resistant, especially when young ones will be around fireworks, candles, fires, and other combustibles. If a store-bought costume proves not to be flame resistant, a burn victim may have a defective products claim against the manufacturer and seller.

Finally, alcohol, drugs, and other intoxicants do not mix well with youngsters needing supervision. All too often substance abuse transforms good celebration into wrongful death.

Virginia’s Child Restraints law, Va. Code Ann. 46.2-1095(A), protects children under 8 years old in vehicle accidents. It requires all drivers to ensure that children 7 years of age or younger be provided with and properly secured in a child restraint device – a so-called “safety seat” – approved by the United States Department of Transportation. That safety seat must be placed in the rear passenger seat; or if there is no back seat, in the front passenger seat only if it does not have an operational side airbag.

Section 46.2-1095(B) of Virginia’s Child Restraint law also protects older minors in vehicle accidents. It requires all drivers to ensure that children over 7 and under 18 years of age are provided with and properly secured by an appropriate safety belt system consisting of lap belts, shoulder harnesses, combinations thereof, or similar devices.

The Journal of the Virginia Trial Lawyers Association for Fall 2010 features “Virginia’s new amendment to UIM statute will benefit clients”. Effective July 1, 2010, an amendment to Virginia’s Uninsured Motorist Coverage statute, Va. Code Ann.§38.2-2206(L), gives underinsured motorist (“UIM”) policy providers much-needed financial incentive to do the right thing for vehicle accident victims.

Historically, UIM carriers have refused to negotiate with and pay vehicle accident victims reasonably without forcing them to trial. Now, after the primary liability carrier has tendered its policy limits, a resistant UIM carrier automatically assumes full responsibility for the attorney’s fees and all other costs of defending the case thereafter.

On post-trial motion in the brain injury case of Gagnon v. Burns, No. CL08-572 in Gloucester Circuit Court, Virginia, the Defendant Assistant Principal unsuccessfully sought reversal of the jury’s finding of contributory negligence against him. Defendant Burns relied on a trio of VEPCO. Kelly v. VEPCO, 238 Va. 32 (1989); Smith v. VEPCO, 204 Va. 128 (1963); and VEPCO v. Wright, 170 Va. 442 (1938).

But those VEPCO cases uniquely were suspectible to judgment on contributory negligence being rendered as a matter of law by the Court. That is because the danger of electricity is a matter of common knowledge to all and especially because there were no material facts in dispute.

Those VEPCO cases were readily distinguishable. E.g., Bedford v. Zimmerman, 262 Va. 81 (2001); Love v. Schmidt, 239 Va. 357 (1990)(reversed and final judgment); and Cromer v. Johnson Village, L.L.C., 68 Va. Cir. 442 (Sep. 2, 2005 Charlottesville). Contrary to Defendant Burns’ incredible assertion that there was “no conflict in the evidence” in Gagnon; the material facts were hotly disputed at trial, the jury clearly found the brain injury Plaintiff’s account most credible, and a court is not free to substitute its judgment instead under the circumstances.

For example, the contemporaneous witness statements of Charles Buchanan and Defendant James Newsome himself along with the trial testimony of Buchanan, Ronnie Miller and Plaintiff show the brain injury victim simply going about his business at lunch, declaring a misunderstanding, refusing to fight, not fighting, and not even swearing. That does not constitute negligence as a matter of law in Gagnon.

For waiver at trial, defense counsel has cited Wright v. Norfolk & W. Ry. Co., 245 Va. 160, 168 (1993) and Hilton v. Fayen, 196 Va. 860, 867 (1955). But Hilton simply holds that “a party cannot complain of an instruction given at his instance,” and that parties cannot question a verdict where they “asked for and have induced the court to give an instruction upon a given theory of the law,” id. at 866-867; and Wright holds that a party clearly maintaining a litigation position as a matter of substance does not waive it by not objecting to adverse jury instruction as a matter of “form”. 245 Va. at 168.

Moreover, Va. Code Ann. 8.01-384 was amended materially in 1970, 1977 and 1992; after Hilton and before Wright. 8.01-384(A) provides in pertinent part “it shall be sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objections to the action the court therefore;” and that: “No party, after having made an objection or motion known to the court, shall be required to make such objection or motion again to preserve his right to appeal, challenge, or more for reconsideration of, a ruling, order, or action of the court.”

The progeny of Wright and 8.01-384(A) are legion. Where appellate courts have found no waiver, they have affirmed and rendered final judgment, e.g., WJLA-TV v. Levin, 264 Va. 140 (2002); Rozario v. Commonwealth, 50 Va. App. 142 (2007); Croxton v. Commonwealth, 2005 Va. App. LEXIS 166 (2005); and Princiotto v. Gorrell, 42 Va. App. 253 (2004); reversed and rendered final judgment, e.g., Nationwide Mutual Ins. Co. v. Housing Opportunities Made Equal, Inc., 259 Va. 8 (2000); Gen. Ins. of Roanoke, Inc. v. Page, 250 Va. 409 (1995); The Pinkerton Tobacco Co. v. Melton, 246 Va. 356 (1993); and Kingrey v. Hill, 245 Va. 76 (1993); or reversed and remanded. E.g., McMinn v. Rounds, 267 Va. 277 (2004); King v. Commonwealth, 264 Va. 576 (2002); Chawla v. Burgerbusters, Inc., 255 Va. 616 (1998); Stuarts Draft Shopping Ctr., L.P. v. S-D Associates, 251 Va. 483 (1996); Luckett v. Jennings, 246 Va. 303 (1993); McManus v. Neuschulz, 2002 Va. App. LEXIS 695 (2002); Murray v. Commonwealth, 2001 Va. App. LEXIS 182 (2001); Brown v. Commonwealth, 23 Va. App. (1996), aff’d on reh’g en banc, 25 Va. App. 171 (1997); and Griffin v. Sprouse, 18 Va. App. 859, rev’d on other grounds 250 Va. 46 (1995).

During October 14-17, 2010, Mr. Waterman attends the Fall Retreat of the Southern Trial Lawyers Association (“STLA”). This year its legal conference is in Charleston, South Carolina at the grand Charleston Place Hotel.

Membership in STLA is by nomination and approval of its Board of Directors. Mr. Waterman is 1 of 30-plus Virginia members and has been a member over a decade.

STLA’s mission is to promote fellowship, learning, and networking among trial lawyers throughout 13 states. They are Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas, Virginia, and West Virginia.

STLA is on web at southerntriallawyers.com. Membership, history, event, and other current information is posted.

On October 13, 2010, the Daily Press headlined “Judge upholds verdict” and subtitled “Defendants are liable for $5 million in damages to student”. It covers Mr. Waterman’s jury award in the brain injury trial of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

The Daily Press article recounted how at hearing in Gagnon on October 4, 2010, the Judge: (1) denied Defendant Burns’ post-trial motions; (2) upheld the jury awards of $1,250,000.00 against Assistant Principal Burns, $3,250,000.00 against James S. Newsome, Jr., and $500,000.00 against Christine D. Newsome, with more than $1,100,000.00 in pre-judgment interest on those principal amounts collectively; (3) awarded an additional $4,857.90 in Court costs against all Defendants jointly; and (4) ruled that to appeal Defendant Burns must post a bond of $1,700,000.00 and James Newsome must post a bond of $4,000,000.00. The Gloucester County School Board has met in closed session, presumably at least in part about how to proceed in this brain injury case.

The Defendant Assistant Principal opposed the imposition of joint and several liability against him at post-trial motions hearing in the brain injury suit of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia. But in so doing, Defendant Burns misstated the applicable negligence law.

He cited Finley, Inc. v. Waddell, 207 Va. 602 (1996) and Panther Coal Co. v. Looney, 185 Va. 758 (1946) ostensibly for the proposition that all tortfeasors acting independently versus in concert only are liable separately for brain injury. But Defendant Burns failed to disclose in Gagnon that Finley and Panther are “nuisance,” not “negligence,” cases.

Finley actually distinguishes between “nuisance” and “negligence”. “The torts of nuisance and negligence are distinct and differ in their nature and consequences. And the rules which have been formulated by the courts for determining joint liability for nuisance are not the same as those applicable to negligence. Joint liability for negligence may be imposed even though there is no concert of action between the joint tortfeasors and even though it is impossible to determine in what proportions each contributed to the injury. But in nuisance cases, joint liability depends upon whether there is concert of action between the joint contributors, unless the independent act of the one sought to be held is sufficient to cause the whole loss.” 207 Va. at 610-611.

Panther too delineates the same special “nuisance,” not “negligence,” formulation. 185 Va. at 770. To the same effect is Pillis v. Nash, 2 Va. Cir. 377, 380-381 (Jul. 16, 1973 Richmond)(quoting Finley).

Conversely, Gagnon is a “negligence” case of brain injury. Hence Defendant Burns’ citation of “nuisance” law is irrelevant and misleading.

Sullivan v. Robertson Drug Co., Inc., 273 Va. 84 (2007), a contribution action, reaffirms the application of joint and several liability in “negligence” cases like Gagnon. “If separate and independent acts of negligence of two parties directly cause a single indivisible injury to a third person, either or both wrongdoers are responsible for the whole injury. Thus, in determining the liability of a person whose concurrent negligence results in such an injury, comparative degrees of negligence shall not be considered and both wrongdoers are equally liable irrespective whether one may have contributed in greater degree to the injury.” Id. at 92.

Moreover, Sullivan concluded that inviting the jury to apportion damages between Defendants is erroneous. “We also conclude that the circuit court erred in giving Instruction O. This instruction was erroneous because it directed the jury to apportion damages based on the joint tortfeasors’ relative degrees of negligence. By improperly directing the jury to compare the negligence of the wrongdoers, Instruction O violated the established principle that comparative degrees of negligence are not to be considered in determining the liability of persons whose concurrent negligence results in an injury. Id. at 93.

On October 5, 2010, WAVY-TV Channel 10 featured on its evening news a special brain injury presentation at Carver Elementary School and Crittenden Middle School in Newport News that day. Mr. Waterman and the Virginia Trial Lawyers Association (“VTLA”) co-sponsored a pair of so-called Bike Helmet Programs, which gave the estimated 500 fifth and sixth graders in attendance free helmets for bicycling, skate-boarding, etc.

The main speakers at Carver and Crittenden were Dr. Paul Aravich of Eastern Virginia Medical School and Officer A.J. Matthews of the Newport News Police Department. VTLA, Mr. Waterman, Dr. Aravich and Officer Matthews emphasized that prevention – notably, always wearing a helmet – was the best protection against brain injury for children.

Dailypress.com had publicized the brain injury program shortly before the presentation. It headlined “Newport News students to learn about brains, get means to protect them,” recognizing Mr. Waterman as a co-donor with VTLA.

Afterward on October 5th wavy.com, the online publication of WAVY-TV 10, likewise covered the brain injury presentation. It headlined “Brain safety program for students” and subtitled “Some Newport News students get free helmets”.

On October 4, 2010, post-trial motions were heard in the brain injury suit of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia. Notably, the 7 issues raised by the Defendant Assistant Principal did not include any dispute about the amount of the $6,100,000.00+ jury verdict.

In Gagnon, the Judge summarily denied the Defendant Assistant Principal’s Motion for Reconsideration of Plea in Bar and Motion for Entry of Judgment in Favor of Defendant Burns Notwithstanding Verdict, upholding the jury verdict in favor of Plaintiff against all Defendants. After extended oral argument, the Judge also denied Plaintiff's Motion for Judgment of Joint and Several Liability against Joint Tortfeasor Defendants, holding that the jury award for the brain injury victim against each Defendant was separate.

Also after argument, the Judge in Gagnon granted in part and denied in part Plaintiff's Motion for Recovery of Costs, awarding $4,856.90 to the brain injury victim. Those awarded costs included a filing fee of $202.00, all trial subpoena service fees of $411.00, court reporter fees of $813.76 for de bene esse deposition of out-of-state witnesses, and (progressively) additional court reporter fees of $3,430.14 for trial appearance.

Additionally, the Gagnon Judge ordered that to appeal Assistant Principal William Robert Travis Burns and James S. Newsome, Jr. have to post bonds of $1,700,000.00 and $4,000,000.00, respectively. But the Judge declined to order an appeal bond for Christine D. Newsome, since she filed a Chapter 7 Petition for Bankruptcy in the Eastern District of Virginia on October 1, 2010, for discharge of her debt to the brain injury victim.

Details remain in the Gagnon brain injury case about bond requirements, order drafting, etc. So there will be another hearing on November 9, 2010.

Destruction or other loss of crucial evidence by a wrongdoer is not uncommon, particularly in record-laden cases of medical malpractice. At trial in August, 2010, for example, the Defendant Assistant Principal admitted that he had destroyed his pertinent calendar entries and had lost his hand-written notes bearing on the brain injury Plaintiff in Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

Spoliation is the willful destruction of evidence or the failure to preserve potential evidence for another’s use in pending or future litigation. E.g., Trigon Ins. Co. v. United States, 204 F.R.D. 277 (E.D. VA. 2001). A court may instruct the jury with a spoliation instruction if at the time the evidence was lost or destroyed, a reasonable person in the defendant’s position should have foreseen that the evidence would be relevant and material to a potential civil action. E.g., Wolfe v. Va Birth-Related Neurological Injury Comp. Program, 40 Va. App. 565, 580 S.E.2d 467 (2003). See, Johnson v. Johnston Mem’l Hosp., Inc., No. CL0700176 (Washington County Jan. 12, 2010)(spoliation instruction for missing nurses notes, consent to treatment form, and discharge instructions). Cf., Blue Diamond Coal Co v. Airstop, 183 Va. 23, 25 (1944)(defendant’s failure to perform requested autopsy permitted inference the results would be adverse). But in the Gagnon brain injury case, Mr. Waterman elected not to seek a spoliation instruction, and instead simply argued Defendant’s misconduct to the jury in closing.

Va. Code Ann §17.1-600, et. seq. provides for recovery of “costs” in litigation. §17.1-601 states the general rule that a prevailing party given a final judgment shall recover costs. §17.1-626 leaves the taxing of most costs to Court discretion.

In addition to the common law of Virginia dictating joint and several liability for the whole amount for all joint tortfeasors, the Code of Virginia dictates the same thing. Va. Code Ann. §8.01-443. A jury has no authority to dictate separate versus joint and several liability as the legal consequence of its factual damages finding. See, e.g., Pulliam v. Coastal Emergency Servs. of Richmond, Inc., 257 Va. 1, 10-16 (1999); Etheridge v. Med Ctr. Hosps., 237 Va. 87, 95-98 (1989).

In Etheridge the Virginia Supreme Court delineated that the jury’s sole function as fact-finder “extends to the assessment of damages,” not to “the legal consequences of its assessment,” which party rights and “remedy is a matter of law, not a matter of fact”.

The resolution of disputed facts continues to be a jury’s sole function.
The province of the jury is to settle questions of fact and when the facts are
ascertained the law determines the rights of the parties. * * *

Without question the jury’s fact-finding function extends to the
assessment of damages. Once the jury has ascertained the facts and assessed
the damages, however, the constitutional mandate is satisfied.

The [Code of Virginia] does nothing more than establish the outer
limits of a remedy provided by the General Assembly. A remedy is a matter
of law, not a matter of fact. A trial court applies the remedy’s limitation
only after the jury has fulfilled its fact-finding mission. * * * *

Continue reading "Virginia: Jury Trial – a Lawyer’s Remedy" »

Virginia cases of joint and several liability for damages in tort are legion. Virginia’s damages rule of law is hornbook:

In the law of damages the proximate cause of an injury may in general
be stated to be that act or omission which immediately causes or fails to prevent
the injury; an act or omission occurring or concurring with another, where, had it
not happened, the injury would not have been inflicted, notwithstanding the latter.

It is not essential, therefore, for a plaintiff to show that an act, claimed to
have been the proximate cause of a certain result, was the only cause. It is
sufficient if it be established that the defendant’s act produced or set in motion
other agencies, which in turn produced of contributed to the final result.

If two defendants are negligent one of them cannot be exonerated by urging
and showing the negligence of the other. Where the concurring negligence of the
two produces a single injury and each is its proximate cause they are both liable.

Von Roy v. Whitescarver, 197 Va. 384, 352 (1955)(citation and asterisks omitted)(emphasis added). “It is well settled in Virginia that where separate and independent acts of negligence of two parties are the direct cause of a single injury to a third person and it is impossible to determine in what proportion each contributed to the injury, either or both are responsible for the whole injury.” Maroulis v. Elliott, 207 Va. 503, 511 (1966).

Continue reading "Virginia: Joint and Several Liability – a Lawyer’s Argument " »

On September 14, 2010, Circuit Court for the City of Suffolk, Virginia approved a wrongful death settlement. The case is Burr v. R.C. Paving, No. CL08-947 C/W CL08-955.

The Court in Burr, which arose out of a motor vehicle accident, also apportioned the settlement proceeds among the statutory beneficiaries. By consent, the known surviving siblings shared the net proceeds equally.

On September 13, 2010, Virginia Lawyers Weekly headlined Mr. Waterman’s recent brain injury verdict on its front page “Lunchroom punch nets $5M award in Gloucester”. It subtitled: “One punch in the Gloucester High School cafeteria has resulted in a $5 million jury verdict against a student, his sister and an assistant principal at the school”.

Virginia Lawyers Weekly covered extensively the brain injury lawsuit of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia. On August 27, 2010, a Gloucester jury actually awarded a total of $6,100,000.00, including $1,100,000.00 in pre-judgment interest.

On September 7, 2010, Mr. Waterman and his co-counsel settled a medical malpractice case of brachial plexus injury caused during shoulder-dystocia delivery for $987,500.00. It is understood to be the largest settlement payment of its kind in Virginia ever.

On September 2, 2010, the Gloucester-Mathews Gazette-Journal headlined “GHS administrator, 2 others found liable for student injuries; jury awards $5M”. Trial in the brain injury case of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia, is the subject.

The G-M G-J article recounts how Assistant Principal Burns admitted he “dropped the ball” to both the student who forewarned him and to the brain injury victim’s parents. But it omits the significant corroborating evidence in Gagnon that Defendant Burns also admitted to Deputy Carwell he “screwed up” and additionally admitted to Sergeant Shuster he “made a big mistake,” as both of those Resource Officers at Gloucester High School then on full-time assignment from the Gloucester Sheriff’s Office testified.

The G-M G-J article also omits that fellow GHS Assistant Principal Green testified further in Gagnon that the attacker, Defendant James S. Newsome, Jr., in his initial signed statement did not state the victim swore at him; and that Defendant Newsome only claimed profanity was used after Assistant Principal Green had given Newsome an immediate 10-day suspension, recommended him for long-term suspension too, and telephoned his mother about everything. Moreover, Rita Cargill-Brown, Director of Student Services for Gloucester County Public Schools, the GCPS Superintendant’s designee for all student discipline, testified consistently that at his long-term suspension hearing Defendant Newsome did not claim the brain injury victim used profanity.

Additionally, the G-M G-J article omits that the supposed MySpace.com printouts produced by Defendant Newsome’s mother the day after her son’s attack and suspension were hotly disputed by the brain injury victim in Gagnon. Substantial evidence questioned the genuiness of the communications, plus that the Plaintiff sent them.

Four witnesses testified it was impossible for the brain injury victim to have sent the second supposed MySpace.com document while they were watching him convalesce with his injuries and confusion under medication only hours after the attack; and Plaintiff’s computer forensics expert testified that the victim’s computer then had “Spyware” on it, which allowed unknown third-party access to his MySpace.com and all other accounts at all times. More fundamentally, Gagnon exposed that the two documents produced by Defendant Newsome’s mother did not appear to be regular MySpace.com on their face and, importantly, were missing the print date characteristically appearing on all documents actually printed from the internet (versus Word documents typed up by an individual).

Continue reading "Virginia: Brain Injury – a Lawyer’s Responses" »

On September 1, 2010, the Virginia Trial Lawyers Association posted “Kid Injured in School Fight Awarded $5Mil” under “LAWS/CASES” of VTLA Eclips. This listserve covered Gagnon v. Burns, the Virginia brain injury trial in Gloucester Circuit Court, No. CL08-572.

Also on September 1st, the Gloucester-Mathews Gazette-Journal posted “GHS administrator, 2 others found liable for student injuries; jury awards $5M”. This previews its newspaper publication about the Gagnon brain injury verdict tomorrow.

The G-M G-J post quotes Defendant’s counsel that Gagnon is “an important case for the future of school administration and teachers.” Obviously, the jury verdict in Gagnon providing redress for the brain injury victim equally or more so is an important case for “student safety.”

On August 29, 2010, PilotOnline.com and HamptonRoads.com headlined “Gloucester student wins $5M for lunchroom-fight injuries.” The post covers the brain injury verdict on Friday in Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

Defendant, Assistant Principal Travis Burns, enjoys $6,000,000.00 of liability insurance coverage through Gloucester High School. But his insurer refused to make any settlement offer whatsoever in Gagnon and instead forced the brain injury victim’s lawsuit to jury trial on its substantial merits.

On August 28, 2010, Richmond Times Dispatch headlined “Gloucester student injured in lunchroom fight wins $5 million” about Mr. Waterman’s brain injury case. It also subtitled “Jurors have awarded a former Gloucester High School student $5 million for permanent injuries he suffered in 2006 lunchtime fight” and “The jury on Friday also awarded Gregory Gagnon interest dating back to the fight, which could increase the award by $1 million.”

Also on August 28th, The Daily Press headlined “Former student awarded $5 million,” and subtitled “High school assistant principal, assailant and his sister will pay award to Gregory Gagnon”. Additionally on August 28th, Channel 13 in its evening news covered the brain injury trial of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

As to his liability, Assistant Principal Burns could not overcome 5 witnesses’ consistent testimony that he previously had admitted he “screwed up,” “made a big mistake,” and “dropped the ball”; and his own testimony that he “lost” his note about being forewarned, that he “threw out” his personal calendar, and that he created and repeatedly revised an internet document he ascribed to the Plaintiff. Regarding damages in Gagnon, Assistant Principal Burns abruptly withdrew as witnesses all 6 of his retained medical experts on the day that they were to testify, effectively conceding that the Plaintiff’s 10 medical experts and half-dozen or more fact witnesses were correct about his brain injury and other traumatic injuries.

On August 27, 2010, dailypress.com posted “Jury awards former Gloucester student $5 million” and “Assistant high school principal, assailant and his sister to pay award”. A jury in Circuit Court for Gloucester County, Virginia, awarded $6,100,000.00 to a brain injury victim after deliberating only 2 ½ hours in the “no offer” case is Gagnon v. Burns, No. CL08-572.

The jury award in Gagnon was for 1,250,000.00 against Travis Burns, Assistant Principal at Gloucester High School; $3,250,000.00 against James S. Newsome, Jr., the attacking GHS student; and $500,000.00 against Christine D. Newsome, an instigating GHS student who is the assailant’s older sister. The jury award also included $1,100,000.00 in pre-judgment interest for the brain injury Plaintiff.

Another student, Shannon Diaz, had warned Assistant Principal Burns of the impending altercation; and the Assistant Principal assured he would notify security, but then did absolutely nothing. Two hours later, after being egged on by his sister, the assailant in Gagnon sucker-punched the victim, who thereby was staggered into a brick pillar, hit his head, and suffered permanent brain injury and other traumatic damages.

On August 26, 2010, The Daily Press covered the brain injury trial for $9,350,000.00 in Gagnon v. Burns, No. CL08-572 in Gloucester Circuit Court, Virginia. It headlined: “Witnesses: Assailant insulted in school fight,” and subtitled “Friends say prior to throwing a punch, assailant started to walk away from fight”; after having posted the same on dailypress.com on August 25, 2010.

But the limited defense witnesses’ testimony covered by the newspaper was inconsistent internally, with one another, and with other witnesses and even the Defendants themselves. The most significant development in Gagnon actually occurred at the beginning of that day and was not covered: in a stunning turn of events, the defense abruptly withdrew all of its medical experts, thereby effectively conceding that the Plaintiff suffered permanent brain injury and multiple other deteriorating traumatic conditions.

On August 16, 2010, dailypress.com headlined “Former Gloucester student’s civil trial under way,” and subtitled “Jury selection included arguments over attorney’s question.” The coverage is for the $9,350,000.00 brain injury lawsuit of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia; which is being defended by Gloucester High School’s insurer.

During jury selection, the Court appropriately permitted Plaintiff’s lawyer, Mr. Waterman, to ask whether prospective jurors would believe an assistant principal over a student because of his status. Mr. Waterman also appropriately was allowed to ask prospective jurors in the Gagnon brain injury case whether they likewise would believe a doctor over the patient based on his status.

By the end of the trial’s first day, a fine jury comprised by 2 men and 7 women was impaneled by the parties and their lawyers. But 2 of those jurors in Gagnon were alternates, who ultimately would not decide the brain injury victim’s fate.

In August, 2010, Avery T. “Sandy” Waterman, Jr., Esq., was selected by his legal peers for inclusion in the 2011 Edition of “The Best Lawyers in America” in 2 practice areas: Medical Malpractice Law and Personal Injury Litigation. This legal recognition marks the 5th year in a row that Mr. Waterman has been chosen by rigorous survey comprising more than 3,100,000 confidential evaluations by the nation’s top lawyers.

On July 15, 2010, the brain injury case of Gagnon v. Burns, No. CL08-572, was heard in Circuit Court for Gloucester County, Virginia, on various pre-trial Motions. In Gagnon, the Plaintiff student was injured seriously when he was attacked by another student at Gloucester High School, despite yet another student having warned Assistant Principal Burns of the impending hours beforehand.

Defendant Burns had moved the Court to keep from the jury a SPECT scans, which showed an abnormality in the Plaintiff brain injury victim. Among other things, however, Mr. Waterman presented medical literature in Gagnon supporting that the SPECT scan was accepted and reliable for diagnosing brain injury; so the defense conceded that the SPECT scan presented a jury issue.

A damage claim of $9,350,000.00 is at issue in Gagnon. Trial of the merits of the brain injury claim is scheduled for August 16-27, 2010.

On June 23, 2010, The Daily Press headlined “Gloucester schools trial set for August” and subtitled “Former student seeking millions after fight left him injured”. The article covered hearing on June 23, 2010, for the brain injury case of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

At prior companion hearing in the Gagnon brain injury suit on June 10, 2010, Defendant Burns unsuccessfully tried to resist Plaintiffs’ Motion for Reconsideration, which the Court granted. At follow-up hearing on June 22, 2010, Defendant Burns unsuccessfully tried again to resist the Court entering the Order that memorialized its ruling in favor of Plaintiff on June 10, 2010.

Defendant Burns repeatedly had sought to have the Court deem admitted his assertion that the Plaintiff brain injury victim had sent offensive instant messaging on his MySpace account to his assailant, James Newsome. Significantly, however, the Court instead found that the evidence presented by Mr. Waterman at the day-long hearing on December 16, 2009, actually strongly indicated that his client, Greg Gagnon, did not send the disputed instant messaging.

First, Plaintiff’s expert attested on December 16th that the brain injury victim’s computer was infected with Spyware. Such Spyware permitted remote access to the victim’s MySpace, Yahoo and all other accounts by any third-party hacker.

Second, the testimony of the brain injury victim, both of his parents, his girlfriend and another friend on December 16th – which was unopposed and unopposable in fact – proved that it was physically impossible for Gagnon to have sent the disputed MySpace instant messaging on the day he was attacked. All witnesses testified consistently that at the time the instant messaging was launched on his MySpace account, the brain injury victim had just returned from the Emergency Room and was with them, laying on the couch in the living room (versus on the computer in his bedroom,), recovering from severe head injuries suffered in the attack, under the influence of prescription medication, and not even thinking or talking straight.

On June 15, 2010, Sentara Williamsburg Community Hospital finally provided the Plaintiff patient its 12-page computer database printout by Risk Management. Sentara produced that patient record the week before Patient’s Motion to Enforce Va. Code Ann. §8.01-413(C) Subpoena was scheduled to be heard in the medical malpractice case of Marshall v. Moniz, No. CL08-2018 in Circuit Court for York County and Poquoson, Virginia.

Sentara’s 12-page computer database printout initially was protected in the patient’s predecessor suit, until Mr. Waterman sought rehearing. That companion medical malpractice suit was Marshall v. Sentara Health Sys. in Circuit Court for the City of Williamsburg and James City County, Virginia.

Marshall v. Moniz is scheduled for jury trial in mid-2011. Plaintiff patient has incurred more than $1,000,000.00 in medical bills and seeks $12,350,000.00 in compensation for alleged medical malpractice.

On June 10, 2010, multiple discovery issues were heard in the brain injury suit of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia. The Court first granted Plaintiffs’ Motion for Reconsideration and vacated its prior ruling that incorrectly had deemed certain Requests for Admission admitted when, in fact, the evidence presented by Mr. Waterman at hearing on December 16, 2009, strongly indicated that Plaintiff victims had a reasonable basis for denying the Requests as they did.

The Court in the Gagnon brain injury case also granted in part a Motion to Quash Subpoenas to NetZero and Verizon Wireless. The federal Stored Communication Act, 18 U.S.C. §2702-2703, prohibits producing the contents of a user’s private mail messages or stored content files.

On May 26, 2010, Mr. Waterman filed the medical malpractice suit of Myron M. Arshan, Executor of the Estate of Sharon Lorrie Britt, Deceased v. Stephen E. Plotnick, M.D., et al., No. CL10000619-00 in Circuit Court for the City of Williamsburg and James City County, Virginia. On May 29, 2010, The Daily Press headlined “$10.35 million malpractice suit filed against doctor in James City woman’s death: Complaint alleges doctor prescribed powerful narcotic cocktail that led to death of 44-year old woman;” and The Virginia Gazette variously headline “Suit: Prescriptions killed local woman $10 million sought from Va. Beach doctor” on its front page and “Suspended” on page 7A.

On May 26, 2010, a Consent Order was entered in the special case of Parker v. Parker, No.CL09-1403 in the Circuit Court for the City of Williamsburg and James City County, Virginia. Prior to hearing on the merits, the defense capitulated to Mr. Waterman’s Plaintiff client, consenting to the termination of spousal support sought.

On April 26, 2010, Mr. Waterman prevailed on Motion to Correct Award Calculation and for Additional Attorney’s Fees at telephone hearing in the special case of Gary W. Routson v. Helen E. Routson, No. CL09-2620 in York County and Poquoson Circuit Court. His client was awarded an additional $3,004.00 in attorneys fees plus $1,601.05 in out-of-pocket costs advanced.

That brings the total net award of attorneys, costs and expenses in Routson to $25,579.18. Plaintiff in that Yorktown special case also was awarded a net principal amount of $66,482.07 and was relieved of another $100,000.00+ in future tax-free payment liability.

On April 13, 2010, after a two-day trial, Mr. Waterman prevailed in the special case of Gary W. Routson v. Helen E. Routson, No. CL09-2620 in Circuit Court for York County, Virginia. His client was refunded almost $85,000.00 in payments made under protest, awarded over $20,000.00 in attorneys fees, and relieved of more than $100,000.00 in potential future payments.

Plaintiff in Routson had been required by agreement to make substantial tax-free monthly payments, except if his ex-spouse habitually cohabitated in a relationship analogous to marriage for a year. That disqualifying cohabitation was proved by a preponderance of the evidence in this special case, as the Court refused to reward Mrs. Routson for temporary separation that camouflaged her ongoing romantic relationship.

On April 8, 2010, Mr. Waterman negotiated a pair of settlements in companion vehicle accident cases in Circuit Court for Mathews County, Virginia. They are Suzanne Sopko v. Phyllis Lewis and Patrick Sopko v. Phyllis Lewis, Nos. CL10-02 and CL10-01.

The underlying vehicle accident in Sopko occurred in 2007. The suits initially filed for their claims were non-suited and then refiled to allow for protracted medical treatment for continuing personal injuries

Last week, Mr. Waterman obtained a six-figure settlement for a local vehicle accident victim. The case is Garrity v. Jones, No. 1341 in Circuit Court for York/Poquoson, Virginia.

The underlying collision in Garrity occurred in Yorktown, Virginia. The vehicle accident victim underwent physical therapy and orthopaedic surgery.

The consolidated cases in Routson v. Routson involve approximately $200,000.00 in disputed tax-free disability payments, plus roughly $25,000.00 in attorneys fees, costs and expenses. These special cases being decided on cohabitation are Nos. CL09-2283 and CL09-2620 in Circuit Court for York County and Poquoson, Virginia.

“Only if and until a court makes such a determination [of disqualifying cohabitation], is husband entitled to discontinue making support payments under the terms of the agreement [‘ratified, affirmed, and incorporated’ by final decree].” Stroud v. Stroud, 54 Va. App. 231, 238 (2009)(“Stroud II”). Thus, the Court of Appeals held “the provision of the PSA regarding termination of spousal support was not a self-executing provision and that husband was not entitled to unilaterally terminate support payments without seeking entry of a proper court order.” Id. at 239. Since in the special case of Routson the recipient did not relinquish monthly payments voluntarily, Plaintiff under Stroud II “had no choice but to seek a judicial remedy and have the trial court determine if she was cohabitating in a situation analogous to marriage.” Id. Successful enforcement of a Property Settlement Agreement providing for attorneys fees entitles the prevailing party to an award of the same. E.g., O’Machel v. O’Machel, 2000 Va. Cir. LEXIS 153 (Fairfax Jul. 6, 2000).

Regarding the amount of attorneys fees to be awarded, Carr v. Carr, No. CH05-378, Letter Op. (Hampton Cir. Ct. Mar. 8, 2007) aff’d No. 0096-09-1 (Va. App. Aug. 18, 2009)(unpublished) reh. denied (Sep. 22, 2009)(en banc) is instructive. The losing party in Carr “displayed an extraordinary reluctance to accept and speak the plain and simple truth,” and with such “obdurate behavior and testimony” caused “protracted litigation”. An itemized statement for $43,318.83 in attorneys fees engaged and performed by Williamsburg/Newport News lawyer “Avery T. “Sandy” Waterman, Jr., Esq. was introduced in evidence. Id. at 2-3. “A line-by-line analysis of Mr. Waterman’s fees is consistent with what he was required to do to represent his client appropriately,” found Judge Hutton in Carr. “The bill for services should be fully borne by the [losing party]. I award the [prevailing party] $43,318.85 in attorneys fees.” Id. at 3. See also, Bullano v. Bullano, No. 0577-06-2 (Va. Ct. App. Jan. 30, 2007)(unpublished).

On March 4, 2010, Plaintiff’s three pending Motions were granted at hearing in Marshall v. Moniz, No. CL08-2018 in Circuit Court for York/Poquoson, Virginia. The plaintiff patient alleges medical malpractice and more than $1,000,000.00 in medical bills for which he seeks damages of $12,000,000.00.

First, the judge granted Plaintiff’s Motion to Set Trial Date. The Marshall medical malpractice suit is scheduled for jury trial on the merits during March 28-April 1, 2011, in Yorktown.

Second, he granted Plaintiff’s Motion for Entry of Order. The judge entered Mr. Waterman's draft Order for the prior hearing on February 9, 2010, for which there is a companion blog in the Marshall medical malpractice case (and of which Order a true copy will be forwarded to you upon request).

Third, the judge granted Plaintiff’s Motion to Compel Deposition of Defendant. Dr. Moniz must submit to discovery deposition in the Marshall medical malpractice proceeding by April 30, 2010.

The companion cases in Routson v. Routson, Nos. CL09-2283 and CL09-2620 in Circuit Court for York County and Poquoson, Virginia, are consolidated for trial. At issue in these special cases are roughly $200,000.00 in tax-free disability payments, the entitlement to which turns on cohabitation.

Va. Code Ann. §20-109(A) requires proof of cohabitation by “clear and convincing” evidence. But it is well settled that in an action on a Property Settlement Agreement (“PSA”) which does not reference §20-109(A), as in the special case of Routson, “husband’s burden was to prove by a preponderance of the evidence that wife habitually cohabitated with another person in a relationship analogous to a marriage for one year or more, not to prove cohabitation by clear and convincing evidence.” O’Hara v. O’Hara, 45 Va. App. 788, 796 (2005)(reversed, vacated, and remanded for applying the incorrect evidentiary standard).

On appeal after remand in O’Hara, the Court of Appeals affirmed the trial court finding the requisite one-year habitual cohabitation by a preponderance of the evidence, despite the relationship being “dysfunctional”. Wife and boyfriend testified that he used her address as his on numerous document and that they were sexually intimate, resided together “on and off” over three years, and lived together continuously for only 10 months. O’Hara v. O’Hara, 2006 WL 1814849 (Va. App. Jul. 5, 2006)(unpublished).

Subsequently, the Court of Appeals found disqualifying cohabitation “as a matter of law” after analyzing the following four “non-exclusive” factors: (1) common residence; (2) intimate or romantic involvement; (3) provision of financial support; and (4) duration and continuity of the relationship and other indicia of permanency. Stroud v. Stroud, 49 Va. App. 359 (2007)(“Stroud I”). Significantly, even though the PSA required cohabitation “for a period of thirty (30) or more continuous days,” Stroud I still found a “common residence” where the couple simply “spent five nights a week for over a year” together and only “spent 34 consecutive days, with the exception of the four-day business trip”. Id. at 373-374. “Intimate or romantic involvement” was satisfied by sexual acts and an exchange of rings. Id. at 374. Notably, Stroud I found “provision of financial support” where the non-owner lived residentially for free, thereby being able to rent out another property. Id. Finally, “duration and continuity of the relationship and other indicia of permanency” was established by a long relationship of about three years, ring exchange and some co-parenting. Id. at 374-375. Nonetheless, Stroud I emphasized that a finding of cohabitation “must be based upon evidence concerning the overall nature of the relationship, not merely a piecemeal consideration of individual factors”. Id. at 376-377.

Following Stroud I, Waugh v. Waugh, 2009 Va. Cir. LEXIS 43 (Fairfax Jun. 25, 2009) recently found disqualifying cohabitation – even under §20-190(A)’s elevated “clear and convincing” evidence standard. Like the ex-wife in the special case of Routson, the ex-wife in Waugh “places a heavy emphasis on the lease agreement between her and [her live-in] and argues that this agreement is probative of the fact that there is no financial support between her and [him].” Id. at *12-13. Waugh emphasized that “the Court of Appeals has stated that financial support is merely one factor that may make a living arrangement ‘analogous to a marriage.’ See, Frey v. Frey, 14 Va. App. 270, 272, 416 S.E. 2d. 40, 42, 8 Va. Law Rep. 2606 (Va. Ct. App. 1992).” Id. at *13. Moreover, Waugh analyzed that the live-in’s monthly rent payment provided the owner money to pay bills; and that the live-in’s rent had not increased and financially was the best living situation available. Id. at *14. “Thus, as both persons received a substantial economic benefit from the living situation, Husband has [proved] that Wife and [her live-in] provide financial support for one another.” Id.

On February 19, 2010, Plaintiff’s Motion for Entry of Order was filed in the medical malpractice case of Marshall v. Moniz, No. CL08-2018 in Circuit Court for York County, Virginia. The presiding Judge had requested Plaintiff as prevailing party on three issues on February 9, 2010, to draft and circulate the Order memorializing the hearing; but Defendant’s counsel refused to sign as drafted.

Plaintiff’s Motion is scheduled for Court hearing on March 4, 2010. Companion blogs about the three underlying issues and the hearing in the Marshall v. Moniz medical malpractice lawsuit claiming $12,000,000.00 are posted on February 4,6, 8, and 9, 2010.

Garrity v. Jones is a motor vehicle accident lawsuit pending in Circuit Court for York County, Virginia, No. 1341. Significant issues surround the adequacy of pre-trial expert disclosures by the defense.

In her First Motion in Limine, Plaintiff seeks to exclude the defense retained expert from referring to any Cincinnati Veterans Administration (“VA”) records because of them not being identified or even possessed at the time of her required expert disclosure by the defense. Simarily, in her Third Motion in Limine, Plaintiff seeks to exclude any use of Cincinnati, Richmond, Hampton, Roanoke and/or other VA records containing expert opinions because of those expert opinions not being disclosed in the defense expert designation as required.

The Virginia Supreme Court recently underscored the gravity of the expert disclosure requirement under Virginia Supreme Court Rule 4:1(b)(4)(A)(i) in John Crane, Inc. v. Jones, 274 Va. 581 (2007) writ denied 552 U.S. 1184 (2008) (copy attached). Crane upheld what the defense claimed was a “dramatic and unfair limitation of expert testimony” by Judge Peter C. Tench in Newport News. Id. at 591.

In Crane, nothing in Defendant's expert disclosure or report referred to the disputed point of testimony objected by plaintiff. Id. at 592. The Virginia Supreme Court found unavailing defense arguments that plaintiff already was familiar with the topic and/or could have deposed the defense doctor. Id.

”Such a rule would impermissibly alter a party’s burden to disclose and impose an affirmative burden on the non-disclosing party to ascertain the substance of the expert’s testimony. We reject this reading of Rule 4:1(b)(4)(A)(i).” Id. (emphasis added). See also, id at 593.

Continue reading "Virginia Experts: Va. Sup. Ct. Rule 4:1(b)(4)(A)(i) – a Lawyer’s Disclosure" »

On February 9, 2010, the medical malpractice lawsuit of Marshall v. Moniz, No. CL08-2018 in Circuit Court for the County of York and the Town of Poquoson, Virginia, was heard on the Defendants’ three dilatory pleadings. Plaintiff seeks $12,000,000.00 in compesatory damages, alleging that various surgery-related acts and/or omissions caused him grievous permanent personal injuries, over $1,000,000.00 in medical expenses, and loss of his lucrative career.

First, Defendants’ Motion to Transfer Venue to the Circuit Court for the City of Williamsburg/James City County, Virginia, was denied. The Court found in the Marshall v. Moniz medical malpractice case that York County was permissible venue based on tortious acts and/or omissions occurring there at the new Sentara Williamsburg Community Hospital and Defendants regularly conducting substantial business activity there at the hospital, pursuant to Va. Code Ann. §8.01-262(3 & 4). The Court in Marshall v. Moniz found that Defendants failed to bear their burden of proving “substantial inconvenience” to witnesses, despite Defendants claiming a 13-mile difference in driving distance. Plaintiff initially having filed suit in Williamsburg was not pertinent to forum non conveniens pursuant to Va. Code Ann. §8.01-265.

Second, Defendants’ Demurrer and Special Pleas of Statute of Limitations, Res Judicata, and Autre Action did not defeat the proceedings and was overruled. The Court in the Marshall v. Moniz medical malpractice case found that the doctrine was not self-executing, only applied if two identical suits were pending at the time of filing and, in and event, did not require that the initial action be the one maintained.

Third, Defendants’ Demurrer for allegations of unspecified negligence was overruled too. The Court in the Marshall v. Moniz medical malpractice suit found that Plaintiff’s negligence itemization of “such other acts and/or omissions as may be discovered, investigated and proved at trial” was gratuitous and, if anything, subject to a Motion to Bill of Particulars and not a Demurrer.

Plaintiff already has requested the discovery deposition of Defendant, Dr. Moniz. Plaintiff is moving to schedule the medical malpractice lawsuit in Marshall v. Moniz for jury trial on the merits in early 2011 at Yorktown Courthouse.

Marshall v. Moniz, No. CL08-2018 in York Circuit Court is a medical malpractice action. Defendants have moved to transfer venue to Williamsburg, Virginia.

Va. Code Ann. §8.01-261 provide “Category A or preferred venue”. There is no preferred venue in the Marshall medical malpractice lawsuit .

Va. Code Ann. §8.01-262(3&4) provide “Category B permissible venue,” wherein “the defendant regularly conducts substantial business activity” and/or “the cause of action, or any part thereof, arose”. York County is permissible venue under both of those subsections in the Marshall medical malpractice suit.

“While plaintiff’s choice of forum is not entitled to absolute deference, it ‘should not be lightly defeated’.” Champigny v. Bagly, 55 Va. Cir 381, 382 (Norfolk Jul. 2, 2001)(citations omitted). “A rebuttable ‘presumption of correctness attaches to a plaintiff’s choice of forum’.” Kollman v. Jordan, 60 Va. Cir. 293, 294 (Chesterfield Oct. 29, 2002). When “considerations are equal or even close, the plaintiff’s choice of forum must prevail.” Wray v. Floyd & Beasley Transfer Co., 29 Va. Cir. 126, 130 (Richmond Sep. 17, 1992).

“Plaintiff does not need to explain his reasons for placing venue in any particular forum that §8.01-262 allows.” Id. “According to the plain language of the statute [§8.01-265], Defendant has the burden to show good cause for a transfer.” Id.

Continue reading "Virginia: Medical Malpractice Va. Code Ann. §8.01-265 – a Lawyer’s Venue" »

Marshall v. Moniz is a medical malpractice lawsuit pending in Circuit Court for York County, Virginia. Defendants have filed a Demurrer to strike Plaintiff’s “catch-all” allegation of negligence: “Such other tortious acts and omissions as may be investigated, discovered and proved”.

Yet, it is hornbook law that Virginia is a “notice” pleading state. “Every pleading shall state facts on which the party relied in numbered paragraphs, and it shall be sufficient if it clearly informs the opposite party of the true nature of the claim or defense.” Va. Sup. Ct. Rule 1:4(d)(emphasis added).

Conversely, Virginia pleading does not require plaintiffs to itemize details of negligence. “An allegation of negligence. . . is sufficient without specifying the particulars of the negligence.” Va. Sup. Ct. Rule 3:18(b)(emphasis added).

A Demurrer is used to make “the contention that a pleading does not state a cause of action or that such pleading fails to state facts upon which the relief demanded can be granted.” Va. Code Ann. §8.01-273(A). “[I]t is unnecessary for the pleader to descend into statements giving the details of the proof in order to withstand demurrer” if the complaint informs the defendant of the nature and character of the claim. Catercorp, Inc. v. Cathering Concepts, Inc., 246 Va. 22, 24 (1993).

Thus, in Ragsdale v. Jones, 202 Va. 278, 284 (1960), the Virginia Supreme Court upheld the admission of intoxication evidence, even through negligence in general and not intoxication in particular was pleaded. Likewise, in Moore v. Jefferson Hosp., Inc., 208 Va. 438, 439 (1967)(reversing a supposed failure to state), the Virginia Supreme Court found sufficient plaintiff’s pleading of negligence that defendant “proximately caused injury to the plaintiff, both mental and physical”. Likewise, Moore v. Payless Supermarket, Inc., 18 Va. Cir. 197, 200 ( Wise Sep. 15, 1989) found the “general allegation of negligence is sufficient”. Similarly, Cunningham v. Roanoke Reg. Airport Comm’n, 70 Va. Cir. 273, 276 ( Roanoke Mar. 8, 2006) held “pleadings are not required to assert anything more than a general allegation of negligence”.

Continue reading "Virginia: Medical Malpractice – a Lawyer’s Pleading" »

The medical malpractice lawsuit of Marshall v. Moniz, No. CL08-2018 in York Circuit Court, initially was filed in Williamsburg/James City County and non-suited after the refilling in York County, Virginia. Defendants have filed a Special Plea and Demurrer for dismissal with prejudice based on that litigation history.

The Supreme Court of Virginia already has countenanced the exact procedure postural of the Marshall medical malpractice suit. Plaintiffs are entitled to file one action, file a second action in another jurisdiction, non-suit the first action, and proceed with the second action in the different jurisdiction. Moore v. Gills¸ 239 Va. 239 (1990). Cf., Smith v. Ellis, 28 Va. Cir. 180 (Richmond May 21, 1992).

“An ‘action’ and a ‘cause of action’ are quite different. ‘Action’ is defined [as ‘all civil proceedings whether at law, in equity, or statutory in nature’]. We defined ‘cause of action’ . . . as ‘a set of operative facts which under substantive law, may give rise to a right of action’.” Trout v. Commonwealth Transp. Comm’r of Virginia, 241 Va. 69, 73 (1991).

“Nonsuit remains. . . distinctly a weapon in the arsenal of a plaintiff.” Id. “The effect of a nonsuit is simply to put an end to the present action, but is no bar to a subsequent action for the same cause.” Gemmell, Inc. v. Svea Fire and Life Ins. Co., 166 Va. 95, 97 (1936). Cf., Virginia Concrete Co. v. Bd. of Sup’rs, 197 Va. 821, 826 (1956). “[T]he only effect of a non-suit is to put an end to the pending litigation without prejudice to either party.” Tysons Toyota, Inc. v. Globe Life Ins. Co., 1994 U.S. App. LEXIS 36692, * 19 (4th Cir. 1994); Winchester Homes, Inc. v. Osmose Wood Preserving, Inc., 37 F.3d 1053, 1058 (4th Cir. 1994); Umphreyville v. Gittins, 2009 U.S. Dist. LEXIS 454, * 5 (W.D. Va. Jan 6, 2009); Monroe v. City of Charlottesville; 2006 U.S. Dist. LEXIS 20027, *5 (W.D. Va. 2006); Poullah v. Rzasa, 75 Va. Cir. 349, 352 (Fairfax Jul. 15, 2008); Cook v. Wayland, 64 Va. Cir. 386, 387 (Waynesboro Apr. 26, 2004); Odeneal v. Thompson, 63 Va. Cir. 71, 73 ( Fairfax Aug. 6, 2003); Green v. Barnes, 54 Va. Cir. 348, 350 (Portsmouth Jan 4. 2001).

Thus in the medical malpractice case of Marshall, Plaintiff’s non-suit of his first action was not a dismissal with prejudice of his underlying cause of action. It simply put an end to that first action without prejudice to Plaintiff pursuing his subsequent action on the same cause of action.

Continue reading "Virginia: Medical Malpractice – a Lawyer’s Non-Suit" »

On January 14, 2010, the brain injury case of Gagnon v. Burns was reconsidered in Circuit Court for Gloucester County, Virginia. Sovereign immunity still was denied the Defendant Assistant Principal.

The Judge reaffirmed his findings that the testimony of Shannon Diaz and other witnesses of Plaintiffs was more persuasive than the testimony of all Defendants; that the act of notifying school security of the reported impending physical attack of Greg Gagnon or otherwise investigating the report of Shannon Diaz omitted by Assistant Principal Burns was a ministerial act; and that the Plaintiffs have made out a sufficient case that Defendant Burns’ act constituted negligence in the non-performance of that ministerial act. The Judge also reaffirmed the admission into evidence of the deposition of a key independent eye witness, Shannon Diaz.

The brain injury case was scheduled for trial by jury on all issues for the week of August 16-20, 2010, at Gloucester Courthouse. Meanwhile the parties resume discovery.

In the Virginia brain injury case of Gagnon v. Burns, No. CL08-572 in Gloucester Circuit Court, the defendant assistant principal alternatively claims sovereign immunity by statute, Va. Code Ann. §8.01-220.1:2(A). Defendant argues that “teachers” in that statute actually means “principals” and “assistant principals” too.

It is hornbook law that statutes in general in derogation of the common law are to be construed narrowly. Further, it also is hornbook law that immunities in particular are disfavored and must be construed narrowly. §8.01-220.1:2(A) is no exception to those tandem rules of construction.

No jurisprudence construes §8.01-220.1:2(A). Tazewell County School Bd. v. Brown, 267 Va. 150 (2004), cited by the brain injury defendant, actually involved Va. Code Ann. §22.1-308, not §8.01-220.1:2(A). His reliance on 16 M.J. Schools §18 at 365 to extend “teachers” to “principals” likewise is misplaced: because Mitchie’s cites Tazewell County as its only Virginia jurisprudence on the definitional point, it necessarily falls with Tazewell County.

Tazewell County does not define “teachers” as including “principals” for all purposes. Tazewell County delineated that under the State Grievance Procedure “teacher” meant only classroom instructors and other non-supervisory personnel (non-principals) under Part II, while “teacher” expressly was broadened to include principals only under Part III. Id. at 159 and 162. Thus, since §8.01-220.1:2(A) does not expressly define “teachers” broadly to cover supervisory personnel like principals, §8.01-222.1:2(A) is analogous to Part II versus Part III of §22.1;308, i.e., covers classroom instructors versus principals too.

Further, other statutes clearly distinguish between “teachers,” on the one hand, and “assistant principals” or “principals,” on the other hand. For example, Va. Code Ann. §22.1-293 applies only to principals and assistant principals, while Va. Code Ann. §22.1-295 is limited to teachers.

In the brain injury case of Gagnon v. Burns, No. CL08-572 in Gloucester, Virginia, plaintiffs introduced as evidence at trail on sovereign immunity the de bene esse deposition of a key witness taken in the initial proceeding that was non-suited. Defendant Burns objected, referring generally to Va. Sup. Ct. Rule 7.

But Rule 4:7(a)(7) provides "when an action in any court of the United States or of this or any other state has been dismissed and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the one action may be used in the other as if originally taken therefore". Moreover, the Virginia Supreme Court has ruled on point in favor of Plaintiffs.

“[P]rior testimony is admissible if the court is satisfied: (1) that the party against whom the evidence is offered, or his privy, was a part to the former trial; (2) that the issue is substantially the same in the two cases; (3) that the witness who proposes to testify to the former evidence is able to state it with satisfactory correctness; and (4) that a sufficient reason is shown why the original witness is not produced.” Gray v. Graham, 231 Va. 1, 5 (1986). The salutary rule of Gray is followed by its progeny. E.g., Morgan v. Commonwealth, 50 Va. App. 369, 376 (2007); Jones v. Commonwealth, 22 Va. App. 46, 51 (1996); and Commonwealth Transp. Comm’r v. Wee Folks Nursery, Inc., 371 Va. Cir. 463, 464 (1996).”

In Gagnon v. Burns, No. 049352 in Gloucester Circuit Court, the brain injury victim alleges gross negligence as an exception to the sovereign immunity claimed by the defendant Assistant Principal. Plaintiffs allege that his failure to exercise any prudence, diligence or care for the safety of the student constitutes gross negligence as a matter of law.

“Gross negligence” is “that degree of negligence which shows indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety of [another].” Koffman v. Garnett, 265 Va. 12, 15 (2003). “A claim of gross negligence, which involves the ‘absence of slight diligence, or the want of even scant care,’ will not lie if the defendant exercised some degree of care with regard to the plaintiff. Colby v. Boyden, 241 Va. 125, 133, 400 S.E. 2d 184, 189 (1991).” Whitley v. Commonwealth, 260 Va. 482, 490 (2000). Jennings v. Hart, 602 F. Supp. 2d 754, 758 n.6 (W.D. Va. 2009)(Virginia law).

Thus, the Court in Colby held there was no gross negligence where the trial court found defendant “exercised ‘some degree’ of care for the safety of others.” 241 Va. at 133 (emphasis added). Likewise in Whitley there was no gross negligence where the trial court’s “findings show that defendants exercised at least some degree of care” toward the victim. 260 Va. at 490.

Conversely in Jennings, however, the Court ruled defendants were not entitled to sovereign immunity for “any alleged acts of negligence [gross or simple]” based on defendants having showed no degree of care for the victim. 602 F. Supp. 2d at 759 (emphasis added). “Holding otherwise would imply that [defendants] have complete discretion to ignore… and disregard….” Id. (denying sovereign immunity on Rule 12(b)(6) motion).

Moreover, the case cited by Gloucester Circuit Court at hearing on December 16, 2009, B.M.H. v. The School Board of the City of Chesapeake, Virginia, 833 F. Supp. 560 (E.D. Va. 1993)(Virginia law), supports Plaintiffs’ position too. In B.M.H., school teachers “failed to take action [about a threat…] even though they had stated an intention to do so”; and this allegation alone sufficed to support the claim of gross negligence. Id. at 562, 574.

POST 12/30 Attorneys Forum, Brain Injuries

In the brain injury case of Gagnon v. Burns, No. CL07-557-00 in Gloucester, Virginia, plaintiffs argue that defendant’s conduct in destroying evidence and approaching witnesses should be considered some evidence of gross negligence. The Virginia Supreme Court has declared that “a party’s conduct, ‘so far as it indicates his own belief in the weakness of his cause,’ is admissible as an admission against interest.” Gray v. Graham, 231 Va. 1, 9-10 (1986)(avoidance of being photographed). Such “acts or conduct of a party may be admitted into evidence, because they show a ‘consciousness of guilt’ and thus constitute, in effect, an admission by conduct. Charles E. Friend, The Law of Evidence in Virginia, §18-49(9)(1)(6th ed. 2003).” Commonwealth v. Wallace, 70 Va. Cir. 341, 343 (Portsmouth Mar. 29, 2006)(subsequent imposing statements to a prospective witness).

On December 18, 2009, The Daily Press again marqueed Hampton Roads attorney, Avery T. “Sandy” Waterman, Jr., Esq., under a headline entitled, “Judge says assistant principal negligent.” Mr. Waterman prevailed in a brain injury case in Gloucester Circuit Court, Gagnon v. Burns, No. CL08-572.

The article reports the witnesses’ testimony and judge’s ruling adverse to the Defendant Assistant Principal in this special case. It also notes that Defendant Burns has $6,000,000.00 of insurance coverage in Gagnon.

On December 16, 2009, Gloucester Circuit Court heard the Demurrer and the Plea in Bar of Virginia sovereign immunity in the brain injury case of Gagnon v. Burns, No.
CL08-572. At 9:15 p.m., after a 12-hour trial, Judge Long ruled in favor of Plaintiffs, who are represented by Avery T. “Sandy” Waterman, Jr., Esq.

The only witnesses Defendant Burns called in this special case besides himself were his self-interested co-Defendants: James Newsome, the admitted attacker who was prosecuted criminally for his offense against the victim; and his sister, Christine Newsome, who at least one witness says egged on her brother to punch the victim, Greg Gagnon. The self-serving accounts of the Newsomes about a supposedly demeaning profane remark being made by the victim were refuted by a non-party witness for Plaintiffs, fellow student eyewitness, Ronnie Miller; and by James Newsome’s own contemporaneous signed statement admitted into evidence, which showed no such remark at all.

Conversely, Plaintiffs called 10 witnesses on their behalf, mostly non-parties. Five witnesses testified that in Gagnon Assistant Principal Burns at Gloucester High School (“GHS”) admitted his fault to each of them independently in strong terms shortly after the attack. Former student Shannon Diaz testified Burns “apologized for dropping the ball”. Gloucester County Deputy Carwell testified Burns admitted, “I screwed up.” Gloucester County Sergeant Shuster testified Burns admitted, “I made a big mistake. I thought I had told you guys about it.” The brain injury victim’s father testified Burns admitted, “I feel I owe you an apology because I ‘dropped the ball’. I could have done something to stop this but didn’t.” The victim’s mother testified Burns admitted, “I know that you know that I talked to Shannon Diaz, and I am very sorry because I dropped the ball.”

Further, Burns admitted in Gagnon that he disposed of his handwritten note about his meeting with Diaz and his school calendar for the day of the attack. Plaintiffs asserted that was contemporaneous evidence spoliation in the special case.

In closing, Mr. Waterman stressed that Burns simply had failed to perform a “ministerial act,” i.e., a “no-brainer” (requiring no real discretion). He analogized that Burns ignoring the warning and brain injury following was like an Emergency Room doctor failing to address chest pains as a potential heart attack and instead wrongfully blowing them off summarily as only indigestion.

The Gloucester Court in Gagnon sat as trier of fact without a jury, including as to the issues of negligence of Burns; as requested by Defendant and Plaintiffs. The Court believed that the most persuasive authority was B.M.H. v. The School Board of the City of Chesapeake, Virginia, 833 F.Supp. 560 (E.D.Va. 1993)(Virginia law), and applied the four-factor test of Virginia sovereign immunity enunciated in Messina v. Burden, 228 Va. 301 (1984), relied upon therein. In this special case, only the test’s fourth prong was in issue: whether the act was discretionary or ministerial and whether there was any gross or simple negligence.

The Gagnon Court expressly found the testimony of Diaz and other witnesses of Plaintiffs more credible than the testimony of Burns and his Co-Defendant witnesses; found that the act of notifying GHS Security of the reported impending physical altercation omitted by Burns was a ministerial act; found that Burns was guilty of simple negligence, but not gross negligence, in the non-performance of that ministerial act; and found that the aforesaid findings are dispositive and preclusive as to the liability of Burns to Plaintiffs on the Amended Complaint. The Court overruled the Demurrer; denied the Plea in Bar; and ordered that Plaintiffs’ cause against Burns be set for separate trial forthwith only on the amount of damages for the brain injury as the sole remaining issue.

The Court denied Burns’ oral post-trial motion to strike the de bene esse deposition in this special case, which deposition was taken in the non-suited predecessor suit of a witness unavailable for this trial, Diaz. Burns participated in that companion suit deposition through his same counsel of record as in Gagnon.

Fortunately for Burns, as Assistant Principal at GHS, he enjoys $6,000,000.00 of liability insurance coverage for negligence in Gagnon. He is covered by a $1,000,000.00 liability policy, plus a $5,000,000.00 excess policy, for Gagnon’s brain injury.

On November 17, 2009, Avery T. “Sandy” Waterman, Jr., Esq. filed a wrongful death suit in Richmond Circuit Court. Defendants are a Trooper and the Superintendant of the Virginia State Police.

The alleged wrongful death occurred when at least one Trooper fatally shot multiple times at close range a motorist who was trying to flee an interstate stop and arrest in Stafford County, Virginia.

Permissive Court venue is based on at least one Defendant having his place of business in Richmond. Plaintiff predicates his wrongful death claims under Virginia statute, including the Virginia Tort Claims Act; and under federal statute, including Section 1983 violation of civil rights for excessive use of deadly force.

On December 10, 2009, the Chief Judge of Hampton Circuit Court entered Contempt Order against Ricky E. Carr after supplemental hearing for reconsideration at his request. In the special case of Carr v. Carr, No. 05-378, Mr. Carr was ordered to pay in full arrearages of $40,318.85 by February 26, 2010, under penalty of serving 10 days in jail, being fined $250.00, and still having to pay his arrearages.

The week before hearing in Carr, Mr. Carr interposed the following in a vain attempt to avoid entry of the Order: Notice to Strike, Amended Notice to Strike, two Motions to Quash, and Notice and Motion to Show Cause. Moreover, at hearing of his special case, Mr. Carr unsuccessfully sought to claim credit for $24,000.00 of attorney fees that he actually had not paid!

On December 9, 2009, Mr. Waterman obtained confidential settlement of a sexual abuse case. It resolved the Federal civil lawsuit of Zaruba v. Brooks, No. 4:09cv86 in the Newport News Division of United States District Court for the Eastern District of Virginia.

The sexual abuse victim in Zaruba sued for being molested as a child. The Defendant previously had pleaded guilty criminally to the reduced offense of “aggravated sexual battery”.

The victim having a criminal guilty plea by the accused is invaluable to a successful civil suit. Otherwise, the sexual abuse alleged stands to be a hotly disputed core issue at civil trial.

On November 24, 2009, Avery T. “Sandy” Waterman, Jr., Esq. settled a Virginia wrongful death suit arising out of a vehicular accident. The compromise was reached through mediation in Suffolk Circuit Court.

The wrongful death case is Burr v. R.C. Paving, No. CL08-947. Plaintiff’s deceased was a guest in an uninspected passenger vehicle rear-ended by a dump truck when traffic slowed because of a short-bed pickup truck spilling its unsecured load onto the undivided state highway.

As all wrongful death cases in Virginia, the Court in Burr must approve the dollar amount of the compromise settlement and its apportionment among statutory beneficiaries. Also by Virginia statute, a Committee must be appointed for one of the surviving siblings, because he is incarcerated; and there must be newspaper publication for another surviving sibling, because his whereabouts are unknown.

On October 14, 2009, Newport News Circuit Court denied defendants’ Motion for Reconsideration in this medical malpractice case. In Andleton v. Connolly, No. 31197, the Judge construed Va. Code Ann. §8.01-335(B) on a matter of first impression.

On October 13, 2009, Gloucester Circuit Court ruled Plaintiffs were entitled to have their expert review first-hand the Defendant’s disputed computer documents and history of creation, modification, etc. The case is Gagnon v. Burns, involving a brain injury victim.

The Court also imposed deadlines in this brain injury case for document production, expert review and identification, and discovery depositions. Hearing on sovereign immunity is scheduled for December 16, 2009.

By letter dated October 9, 2009, Rev. Ricky E. Carr sought Hampton Circuit Court to reconsider the contempt finding and sanctions against him. The Chief Judge ruled against Rev. Carr on October 8, 2009, in the special case of Carr v. Carr, No. 05-378.

Rev. Carr has not accepted adverse Court rulings previously either. In his special case, he unsuccessfully sought modification of the support order against him in Hampton Circuit Court, and thereafter he unsuccessfully has sought rehearing en banc of the per curiam affirmance against him in the Virginia Court of Appeals.

On October 8, 2009, Hampton Circuit Court found Rev. Ricky E. Carr in contempt of court for chronic failure to pay court-ordered spousal support and attorney’s fees. The special case is Carr v. Carr, No. 05-378.

Rev. Carr was granted leave to purge himself of his contempt by being current on all future support and attorney's fees obligations and by paying his entire arrearage by February 26, 2010. Otherwise, he faces going to jail for up to 10 days and a fine of $250.00.

On September, 30, 2009, Avery T. “Sandy” Waterman, Jr., Esq. obtained an Amended Judgment for $500,000.00 in a §1983 civil rights suit for wrongful death. It was entered pursuant to Fed. R. Civ. P. 52(b) in Webb v. Stevens, no. 5:05-CV-33-BO(1) of the United States District for the Eastern District of North Carolina in the Western Division at Raleigh, North Carolina.

On September, 23, 2009, Avery T. “Sandy” Waterman, Jr., Esq. again prevailed on a Motion to Compel in Circuit Court for York County in Routson v. Routson, No. CL09-002283-0. In that special case, the Court ruled St. Luke’s United Methodist Church was required to produce all attendance and donation materials responsive to a Subpoena Duces Tecum.

On September 22, 2009, Avery T. "Sandy" Waterman, Jr., Esq. again prevailed before the Virginia Court of Appeals, as it denied the Petition for Rehearing En Banc of Reverend Carr. That renders the decisions adverse to him in this special case of the appellate court and the trial court before it final and unappealable.

This special case is Ricky E. Carr v. Joanne O. Carr, No. 0096-09-1. It still is pending in Circuit Court for the City of Hampton.

On September 16, 2009, Newport News Circuit Court denied a Motion to Dismiss in a medical malpractice case of first impression, Andleton v. Connolly, No. 31197. It construed Va. Code Ann. §8.01-335(B).

Section 8.01-335(B) permits reinstatement of a plaintiff’s case within one year of its dismissal under that statute for three-plus years of inactivity. In Andleton, the Court made new law in holding that the claimant was entitled to reinstate within one year of dismissal under §8.01-335(B) even though the statute of limitation for filing the underlying medical malpractice claim had run at the time.

On September 3, 2009, Avery T. “Sandy” Waterman, Jr., Esq., prevailed on pending Motions in Circuit Court for York County. The lead special case is Gary W. Routson v. Helen E. Routson, No. CL09-002283-00, and its companion case is Helen E. Routson v. Gary W. Routson, No. CL09-002620-00.

The Court ruled that the two special cases should be consolidated. It also ruled that Gary W. Routson entitled to discover records from the out-of-state employer and bank of Helen E. Routson’s betrothed.

On August 28, 2009, Reverend Carr as pro se Appellant petitioned the Virginia Court of Appeals for hearing en banc. He seeks reversal of the appellate court’s per curiam affirmance of the ruling of the Hampton Circuit Court against him in this special cases.

Petitioner to hear en banc are granted sparingly. His Petition is opposed by his ex-wife Appellee.

On August 18, 2009, the Virginia Court of Appeals of Virginia affirmed a special case taken by Avery T. “Sandy” Waterman, Jr., Esq. The opinion is Carr v. Carr, No. 0096-09-1, arising out of Hampton Circuit Court.

In Carr, an adulterous pastor unsuccessfully sought modification of the spousal support and attorney fees award in favor or Mr. Waterman’s client. The appellate court upheld both awards, finding no abuse of discretion in the trial court rejecting the adulterer’s evidence as “incredible” because Mr. Waterman exposed his claimed income reduction was “voluntary and orchestrated by him”.

In medical malpractice suits alleging wrongful death and brain injury, Circuit Court for the City of Newport News, Virginia, has granted plaintiffs leave to amend their Complaints, including after the statute of limitation has run. The cases are Licare v. Riverside Health System, No. 0702452T-01, and Morel v. Mary Immaculate Nursing Center, Inc., No. CL0703905P-03.

Both medical malpractice decisions were predicted on three independent grounds: (1) Plaintiff not being provided all factual patient care records and papers voluntarily; (2) Plaintiff being delayed by defense pleading; and (3) Plaintiff having originally alleged generally “such other tortious acts and/or omissions as may be investigated, discovered and proved”. Orders were entered in the wrongful death case of Licare on February 1, 2008, and in the brain injury case of Morel on September 2, 2008.

On June 9, 2009, Gloucester Circuit Court ordered over Objection discovery of various person financial records. The Order was entered on June 22, 2009, in a breach of contract case, Altizer.

On May 28, 2009, Gloucester Circuit Court granted over Objection the Plaintiff’s Motion to amend their complaint and to depose the primary Defendant for additional time. The case, Gagnon v. Burns, involves brain injury to a student attacked at Gloucester High School.

On May 8, 2009, Gloucester Circuit Court granted the Motion for Reconsideration of a brain injury plaintiff. The Court Order entered on May 28, 2009, required Gloucester High School to produce the office computer of the defendant Assistant Principal.

Previously the plaintiff brain injury victim had been denied discovery of the defendant’s computer. The case is Gagnon v. Burns.

Virginia has codified driver liability for personal injury and/or wrongful death of a guest passenger. “Any person transported by the owner or operator of a motor vehicle as a guest without payment for such transportation and any personal representatives of any such guest so transported shall be entitled to recover damages against such owner or operator for death or injuries to the person or property of such guest resulting from the negligent operation of such motor vehicle.” Va. Code Ann. §8.01-63.

However, the Virginia statute does not render a negligent driver absolutely liable for death or injury to his guest passenger in a vehicle accident. §8.01-63 “does not limit any defense otherwise available to the owner or operator”. Id.

In Virginia, a driver in a vehicle accident causing only damage to unattended property must stop at the scene, make a reasonable effort to find the property owner or custodian, and report his identification. Va. Code Ann. §46.2-896. If the owner or custodian is not found, the driver must leave a conspicuous note at the scene and report the vehicle accident in writing within 24 hours to the state police or local law-enforcement agency. Id.

If injuries sustained in the vehicle accident prevent the driver from complying with the foregoing, the driver must report as soon as reasonably possible thereafter. Id. However, if the driver fails to report as required, then every passenger 16 years of age or older has a duty to report within 24 hours to the state police or local law-enforcement agency. §46.2-897.

In Virginia, a passenger in a vehicle accident is responsible for reporting if the driver fails to stop and report the resulting death, personal injury or property damage. Va. Code Ann. §46:2-895. The duty applies to a passenger 16 years of age or older who has knowledge of the vehicle accident.

Such a passenger has 24 hours from the vehicle accident to report to the state police or local law-enforcement agency. The passenger must report his identity and other vehicle accident information known. Id.

In Virginia, a driver involved in any vehicle accident “in which a person is killed or injured or in which an attended vehicle or other attended property is damaged shall immediately stop as close to the scene of the accident as possible without obstructing traffic”. Va. Code Ann. §46:2-894. Any such driver must provide his identification to the state police, a local law-enforcement agency, the person struck and injured, the driver or occupant of another involved vehicle, or the custodian of damaged property; and also shall “render reasonable assistance to any person injured in such accident, including taking such injured person to a physician, surgeon, or hospital if it is apparent that medical treatment is necessary or is requested by the injured person”. Id.

If his own vehicle accident injuries prevent immediate compliance with the foregoing, as soon as reasonably possible the driver shall report his identification to the state police or local law-enforcement agency and make a reasonable effort to locate the person struck, another involved vehicle driver or occupant, or the damaged property custodian. Violation constitutes a class 5 felony if a vehicle accident results in death, personal injury, or at least $1,000.00 property damage; and a class 1 misdemeanor if it only causes less than $1,000.00 property damage.

Va. Code Ann. §46.2-371 mandates: “The driver of any vehicle involved in an accident resulting in injury to or death of any person, or some person acting for him, shall immediately give notice of the accident to a law-enforcement officer. A willful failure to make the report required in this section shall constitute a Class 4 misdemeanor.”

Immediate auto accident reporting is important to all Virginia victims of wrongful death and personal injury as a practical matter too. Prompt law-enforcement response tends to identify witnesses, preserve evidence, note conditions, etc.

Va. Code Ann. §46.2-376 provides, “The person in charge of any garage or repair shop to which is brought a motor vehicle (i) that shows evidence of having been involved in a serious motor auto accident or (ii) with evidence of bloodstains shall report to the nearest police station or to the State Police within twenty-four hours after the motor vehicle is received, giving the engine number, registration number and the name and address of the owner or operator of the vehicle if known.”

Hence perpetrators and victims of motor vehicle accidents in Virginia alike should expect garage men and other repairmen to report serious motor vehicle damage to law-enforcement authorities promptly. Such third party reporting obviously can expose vehicle drivers to criminal liability under §46.2-371 for not reporting a vehicle accident resulting in injury or death to a law-enforcement officer first.

In vehicle accident cases, Virginia permits proof of vehicle property damages by affidavit. That is an exception to the general hearsay rule against affidavits.

“[E]vidence to [recover motor vehicle] damages may be presented by an itemized estimate or appraisal sworn to by a person who also makes oath (i) that he is a motor vehicle repairman, estimator or appraiser qualified to determine the amount of such damage or diminution in value; (ii) as to the approximate length of time that he has engaged in such work; and (iii) as to the trade name and address of his business and employer.” Va. Code Ann. §8.01-416(A). However, when the vehicle damages are in excess of $1,000.00, a true copy of the affidavit must be “mailed or delivered to the adverse party or his counsel not less than seven days prior to the date fixed for trial”. Id.

On April 18, 2008, the Virginia Supreme Court addressed the admissibility of “reliable authority” under Va. Code Ann. §8.01-401.1. The medical malpractice case is Bostic v. About Women OB/GYN, P.C., 275 Va. 567 (2008).

In Bostic, defense counsel read article quotes and questioned his client about the same while on the stand as a fact witness. Defense counsel overcame plaintiff’s objection by representing that the defense expert subsequently would lay the necessary evidentiary foundation for the article. Id. at 572-573.

The Virginia Supreme Court in Bostic recounted that the 1994 Ammendment to §8.01-401.1 inserted “two preconditions to the admission of hearsay expert opinions as substantive evidence on direct examination: First, the testifying witness must have ‘relied upon’ the statements contained in the published treatises; Second, the statements must be established as ‘a reliable authority’ by testimony or by stipulation.” Id. at 576. “The statutory term means that the witness must testify that he relied on the article in forming his opinion….” Id. at 577.

Thus, in Bostic the defendant’s foundation was insufficient where her medical malpractice expert accepted the article “only partially” and was “candidly uncertain”. Id. Moreover, the Virginia Supreme Court ruled that plaintiff’s request for a cautionary instruction after that expert’s insufficient testimony was not too late, where plaintiff had objected to the article when first introduced. Id. at 577-578 (reversing and remanding defense verdict).

On June 6, 2008, the Virginia Supreme Court addressed the superseding intervening cause instruction. The medical malpractice case of wrongful death is Williams v. Le, 276 Va. 161 (2008).

In Williams, the defendant radiologist failed to communicate directly to the treating physician a positive Dopplar ultrasound, and the patient later died from pulmonary embolism. Asserting arguendo that the alleged proximate causation of any failure to communicate directly was broken completely by the treating physician’s subsequent failure to read the diagnostic report, the defendant radiologist obtained a jury instruction on superseding intervening cause.

The Virginia Supreme Court in Williams delineated for medical malpractice cases: “In order to relieve a defendant of liability for his negligent act, the negligence intervening between the defendant’s negligent act and the injury must so entirely supersede the operation of the defendant’s negligence that it alone, without any contributing negligence of the defendant in the slightest degree, causes the injury.” Id. at 167. But an “intervening cause does not operate to exempt a defendant from liability if that cause is put into operation by the defendant’s wrongful act or omission.” Id.

“On this record,” observed the Virginia Supreme Court in Williams, “it cannot be said that Dr. Le’s alleged negligence was not contributing ‘in the slightest degree’ to the death of Williams. The trial court therefore erred in granting the superseding intervening causation instruction.” Id. at167-168 (reversing and remanding defense verdict).

On June 6, 2008, the Virginia Supreme Court upheld a medical malpractice verdict for roughly $100,000.00 unsupported by a medical expert. The case is Webb v. Smith, 276 Va. 305 (2008).

The Virginia Supreme Court in Webb reiterated that “in medical malpractice cases, ‘expert testimony is ordinarily necessary to establish the appropriate standard of care, to establish a deviation from the standard, and to establish that such a deviation from the proximate cause of the claimed damages’.” Id. at 308. “Exceptions to this rule exist only in ‘those rare cases in which a healthcare provider’s act or omission is clearly negligent within the common knowledge of laymen’.” Id.

Such a “rare case” involves the medical malpractice doctrine of res ipsa loquitur. That translates to “the thing speaks for itself”.

In Webb, a surgeon was supposed to perform a hysterectomy and a bilateral salpingo oophorectomy, but simply forgot to perform the latter. In upholding the medical malpractice award, the Virginia Supreme Court concluded in Webb: “A reasonably intelligent juror did not need an expert to explain why Dr. Smith’s negligence was the proximate cause of Webb’s damages because the issue of causation was within the common knowledge of laymen.” Id.

On October 31, 2008, the Virginia Supreme Court decided issues of physician-patient relationship and damages proximate causation. The “wrongful birth” medical malpractice case is Fruiterman v. Granata, 276 Va. 629 (2008).

In Fruiterman, the plaintiff mother claimed medical malpractice for her Ob/Gyn failing to inform her about first trimester testing for genetic defects for which she would have elected to terminate her pregnancy. The plaintiff father in Fruiterman made a parallel claim. Id. at 633.

The Virginia Supreme Court dismissed the mother’s medical malpractice claim for her failing to prove proximate causation by expert testimony. Specifically, she “did not prove to a reasonably degree of medical probability that, if she had undergone CVS, the result would have shown the chromosomal abnormality indicative of Down syndrome.” Id. at 638.

Additionally, the Virginia Supreme Court that the father failed to prove the requisite physician-patient relationship requisite for a medical malpractice claim, since he never entrusted, and the Ob/Gyn never accepted, his treatment. Id. at 644. Significantly, however, Fruiterman may leave open the possibility of a medical malpractice claim by a father if and to the extent that a Ob/Gyn advised “as a couple about genetic counseling or … recommend[ed] genetic screening tests that either [the father] alone or both of them would need to undergo. Id.

On January 16, 2009, the Virginia Supreme Court handed down an opinion on qualification of out-of-state experts pursuant to Va. Code Ann. §8.01-581.20. The medical malpractice case of wrongful death is Jackson v. Qureshi, 277 Va. 114 (2009).

Jackson addressed the statutory presumption, “knowledge” requirement, and “active clinical practice” requirement for medical malpractice standard of care experts. First, the out-of-state expert was presumed to know Virginia’s statewide standard of care by having met the “educational and examination requirements of the statute,” per the “letter from the Commonwealth of Virginia Department of Health Professions”. Id. at 122. Second, the statutory “knowledge” requirement was shown by the out-of-state expert’s “area of qualification and certification” having “certain overlapping and medical practices and similar standards of care” with the defendant’s “area of qualification and certification”; which essentially was established by the out-of-state expert’s own testimony. Id. at 122-123. Third, the out-of-state expert satisfied the statute’s “active clinical practice” requirement where in his “clinical practice the expert performs the procedure at issue and the standard of care for performing the procedure is the same,” with no “minimum threshold amount of time” beyond deminimis being required. Id. at 124-125.

On January 16, 2009, the Virginia Supreme Court resolved a wrongful death action and a survival action for personal injuries. The medical malpractice case is Centra Health, Inc. v. Mullins, 277 Va. 59 (2009).

Centra Health upheld an estate representative maintaining concurrent damage causes of action for wrongful death and for survival for personal injuries through jury verdict. “In this particular [medical malpractice] case, the circuit court correctly determined that compelling an election [prior to or even at trial] would put the administrators in the untenable, and manifestly unjust, position of having to elect between two potentially viable claims, which Centra Health was contesting on separate and independent grounds.” Id. at 79.

Additionally, Centra Health upheld the survival action award of $325,000.00 for personal injury damages as not reflecting any confusion, undue sympathy, or other excessiveness. The Virginia Supreme Court found that the trial court was painstaking in its instructions and that the defendant’s characterization of the personal injuries arising from medical malpractice minimized them unduly. Id. at 81-82.

On April 18, 2008, the Virginia Supreme Court opined on the propriety of a roughly $1,000,000.00 damages award to a surviving spouse arising out of a car accident.The wrongful death case is Wright v. Minnicks, 275 Va. 579 (2008).

In Wright, the surviving spouse was awarded damages for the decedent’s care, treatment and hospitalization, funeral expenses, and loss of income, services, protection, care and assistance; but absolutely nothing for sorrow, mental anguish and solace. Id. at 582. The Virginia Supreme Court held that the zero award for sorrow, mental anguish and solace was not inconsistent or inadequate on the facts of the particular wrongful death.

“Here…there was evidence to support a finding by the jury that the Wrights’ marriage was dysfunctional. *** The Defendants’ evidence was that the Wrights were permanently living apart, both were unhappy with their marriage and intended to ‘go see a lawyer [and] sign papers to be separated’.” Id. at 585. However, the surviving spouse “was entirely dependant upon her husband for support. The jury could reasonably infer that she could have continued to rely upon him for support despite their separation.” Id.

On January 16, 2009, the Virginia Supreme Court issued an opinion rejecting the “unavoidable accident” and “sudden emergency” doctrines and upholding a $490,000.00 jury award in a car accident scenario. The death and personal injury case is Hancock-Underwood v. Knight, 277 Va. 127 (2009).

Hancock-Underwood abrogated the “unavoidable accident” doctrine in Virginia. “In consideration of the prevailing concerns of the [majority] states that have rejected the instruction – that it merely restates the law of negligence, overemphasizes the defendant’s case and is apt to confuse and mislead – we join those states and hold that it is error to grant an unavoidable accident instruction.” Id. at 136.

Also, the Virginia Supreme Court upheld the “sudden emergency” doctrine in vehicle accident cases, but found that the “particular instruction tendered by Administrator concerning sudden emergency was not supported by the evidence”. Id. at 139. Specifically, the defendant driver experiencing a medical event that rendered him unconscious did not fit the following formulation: “when the driver of an automobile, without prior negligence on his part, is confronted with a sudden emergency and acts as an ordinarily prudent person would have done under the same or similar circumstances, he is not guilty of negligence.” Id. at 726.

House Bill 1799 passed the Virginia General Assembly in 2009. Effective July 1, 2009, it amends Va. Code Ann. §2.2-3705.3.

The amendment adds the Virginia Fraud and Abuse Whistle Blower Protection Act. A “whistle blower” is a state employee who reports or testifies about fraud or abuse.

The act prohibits employers from retaliating or otherwise discriminating against a whistle blower. State employers also are required to post notices of the protections.

Progressively, the Act creates a Reward Fund. Whistle blowers who disclose information of fraud or abuse saving at least $10,000.00 are entitled to a monetary award of 1% of the cost savings (up to a total reward of $5,000.00).

Senate Bill 843 failed to pass the 2009 Virginia General Assembly. It was defeated by the wealthy powerful healthcare industry, including the Virginia Hospital and Healthcare Association (“VHHA”), which represents the one hundred leading hospitals and other healthcare institutions in Virginia.

Va. Code Ann. §8.01-581.15, the so-called “medical malpractice cap,” limits the amount that any victim patient actually can recover from an offending healthcare provider, regardless how much appropriately is awarded by a jury or judge at trial. Virginia’s cap has been fixed at $2,000,000.00 since July 1, 2008.

Virginia’s medical malpractice cap is protectionist special interest legislation of healthcare providers, which no other citizen of Virginia enjoys. It inequitably limits the fair compensation awarded by juries and judges to victim patients who have been injured most profoundly by nursing home abuse and other medical malpractice.

The VHHA and other healthcare providers successfully lobbied against increasing the current inequitable limit of victim compensation for nursing home abuse and other medical malpractice. In fact, if the VHHA and others in the health industry had their way, the amount recoverable by victim patients would be decreased regardless how disabling and otherwise severe the injuries inflicted upon them.

Indeed, as a foil to Senate Bill 843, health industry proponents sought passage of their own special interest legislation, House Joint Resolution 658. That would have commissioned a sub-committee to study the supposed “current and impending severe shortage” of medical doctors ostensibly due to “the effect of excessive malpractice insurance premiums, malpractice laws and caps…”.

House Bill 2057 passed the Virginia General Assembly in 2009. Effective July 1, 2009, it amends Va. Code Ann. §8.01-52.1 and §8.01-581.20:1.

Prior to amendment, the statute rendered certain so-called “gestures expressing sympathy or general sense of benevolence” inadmissible against a healthcare provider in cases of nursing home abuse and other medical malpractice. The amendment expands that to include “commiseration, condolence, compassion . . . together with apologies.”

At common law and in court rules, such admissions of liability or other statements against interest by a wrongdoer could be introduced in cases of nursing home abuse and other medical malpractice. Hence, the statute and its amendment is protectionist legislation enjoyed by healthcare providers and no other citizens of Virginia.

Studies have shown that healthcare providers guilty of nursing home abuse and other medical malpractice who admit liability to their patients after-the-fact are less likely to be sued for their wrongdoing and resulting damages. Thus, this special interest legislation essentially lets all offending healthcare providers admit liability with impunity toward avoiding being sued, but then to duplicitously deny liability to unknown jurors and to gag the knowing victims at trial if still sued.

Senate Bill 1275 passed the 2009 Virginia General Assembly. Effective July 1, 2009, it amends Va. Code Ann. §8.01-399.

That statute codifies the so-called “physician-patient” privilege. That privilege renders confidential from disclosure communications between patients and physicians in the course of treatment for brain injuries and other personal injuries.

Before the amendment, overly aggressive physicians asserted that the privilege was theirs to waive, and disclosed confidential information of their patients to help defense-oriented interests, such as other healthcare providers committing medical malpractice, vehicle accident offenders, defective product manufacturers, defective premises owners, sexual abuse perpetrators and other criminals. But the statutory amendment is clear that the patient alone will control whether any privilege is waived and confidential communication is disclosed.

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Senate Bill 1154 passed Virginia General Assembly in 2009. Effective July 1, 2009, It amends Va. Code Ann. §8.01-413.

Prior to the amendment, healthcare providers routintely were charging a flat fee of $10.00 plus $0.50-$1.00 per page for providing their patients their account statements. That obviously cost victims of vehicle accidents, nursing home abuse, other medical malpractice, product or premises defect, sexual abuse or other crimes who simply were trying to get their bills paid.

After the amendment, healthcare providers must provide all patients an itemized listing of charges and account balance at no cost. Indeed, a victim patient will be entitled to request free printouts up to three times every twelve months.

For many patients the cost savings will be multiplied across numerous healthcare providers. Most victims of vehicle accidents, nursing home abuse, other medical malpractice, product or premises defect, sexual abuse or other crimes have to consult the variety of healthcare providers.

On March 24, 2009, Gloucester Circuit Court denied an Amended Motion to Dismiss, which asserted that an Amended Complaint seeking installment and other payments was time-barred upon the statues of limitation for breach of contract and fraud. The case is Altizer v. Altizer, No. CL08-584.

The Gloucester Circuit Court also overruled on Amended Demurrer to the Amended Complaint. Among other things, Defendant has asserted that the suit failed to state a claim on a valid enforceable contract.

In Virginia, the statute of limitation for a fraud is two years from the time when a reasonable person should have discovered it. But when exactly the statute begins to run depends on whether there were multiple occurrences.

“A cause of action for breach of a contract or duty accrues on the date of breach. Va. Code Ann. §8.01-230. Virginia recognizes that multiple breaches or occurrences can give rise to separate causes of action.” Park v. Alcon Surgical, Inc., 1993 U.S. App. LEXIS 8419, * 9 (4th Cir. 1993).

“Adopting [Plaintiff’s] contention,” the Virginia Supreme Court observed, “the trial court ruled that ‘each [tortious] discharge was a separate actionable event’ for which [Plaintiff] was entitled to seek recovery ‘during the 5 years preceding the filing of suit’. We agree.” Hampton Roads Sanitation Dist. v. McDonnell, 234 Va. 235, 239 (1987)(repeated trespass). “If the wrongful act is of a permanent nature and one that produces all the damage which can ever result from it, then the entire damages must be recovered in one action, and the statute of limitations begins to run from the date of the wrongful act. Conversely, when wrongful acts are not continuous but occur only at intervals, each occurrence inflicts a new injury and gives rise to a new and separate cause of action. In the latter situation, a plaintiff’s right of recovery . . . is limited by the statute of the damages sustained during the five years preceding the institution of the suit.” Id. (emphasis added)( brackets omitted).

The Virginia Supreme Court recently embraced Hampton Roads in Am. Physical Therapy Ass’n v. Fed’n of State Bds. of Physical Therapy [“APTA”], 271 Va. 481, 484-485 (2006). In reversing and remanding a trial court that incorrectly had applied a single unitary statute of limitation period to discrete occurrences, the Virginia Supreme Court in APTA reiterated “if the wrongful acts are not continuous and ‘occur only at intervals, each occurrence inflicts a new injury and gives rise to a new and separate cause of action’.” Id. at 484.

“Since the statute of limitations is an affirmative defense, [Defendant] has the burden of proving facts that bar [Plaintiff’s] claim.” Park, supra, 1993 U.S. App. LEXIS 8419, * 11. When there is conflict over when a plaintiff should have discovered that the defendant committed fraud, the defensive pleading must be denied. See, Bd. of Dirs. of the Lessner Pointe Condominium on the Chesapeake Bay Ass’n, Inc. v. Harbour Point Bldg. Corp., 2002 Va. Cir. LEXIS 422, * 27-28 (Virginia Beach Jun. 18, 2002).

In Virginia, the statute of limitation for a breach of written contract is five years and of oral contract is three years. But when exactly the statute starts to run depends on whether there are multiple breaches.

Over half a century ago, the Supreme Court of Virginia declared, “It is well settled that in the absence of [an acceleration] provision [obligations payable in installments] are payable as they are written, and the time of payment is not accelerated by the happening of other events not specifically agreed upon.” Holcomb v. Webley, 185 Va. 150, 156 (1946). Correspondingly, the applicable statute of limitation runs from the time each individual installment payment matures and falls due according to its terms. Id. at 158. Hence, the Virginia Supreme Court in Holcomb overruled a plea of the statute of limitations as to each individual installment payment falling due within the pertinent limitation period preceding the filing of suit, reversing and remanding the trial court’s decision to the contrary. Id. at 159.

Prior Virginia Supreme Court decisions and subsequent Virginia Circuit Court decisions embody Holcomb. “Courts generally have agreed that for [breach of contract] claims based on an installment contract, a cause of action accrues, and the statute of limitations begins to run, when each installment becomes due. See, 15 Richard A. Lord & Samuel Williston, Williston on Contracts §45:20 (4th Ed. 2000).” Gilliam v. Gilliam, 2003 Va. Cir. LEXIS 173, * 3 (Fairfax Aug. 14, 2003).

“Virginia follows this general rule. See, Ten Braak v. Waffle Shops, Inc., 542 F.2d 919, 924 n.6 (4th Cir. 1976)(‘We note that Virginia does follow the majority rule recognizing contracts for installment payments are divisible, thereby permitting separate actions to be maintained to recover installment as they fall due.’ (citation omitted)); Jones v. Morris Plan Bank of Portsmouth, 168 Va. 284, 191 S.E. 608 (1937)(stating that Virginia does follow the majority rule recognizing that contracts for installment payments are divisible, thereby permitting separate actions to maintain to recover installment payments as they fall due); Williams v. Matthews, 103 Va. 180, 48 S.E. 861 (1904)(holding that the statute of limitations on claim to recover five unpaid installments of stock subscription land from dates on which unpaid installments were due).” Gilliam, 2003 Va. Cir. LEXIS 173, * 3-4.

Thus, in the Virginia domestic law case of Gilliam, where one spouse promised to pay the other monthly installment payments over twenty years, it was “a divisible installment contract, and the statute of limitations for each payment due under the Note began to run when each installment became due.” Id. at * 4. “As a result,” concluded Gilliam, “the statute of limitations has not yet run for any installments or other payments due from [five years prior to suit filing] to the present date, which include any unpaid principal and interest”. Id.

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House Bill 2035 passed the 2009 Virginia General Assembly. Effective July 1, 2009, it amends Va. Code Ann. §8.01-419.

That statute routinely is introduced unto evidence in cases of vehicle accidents, nursing home abuse, other medical malpractice, product liability, premises liability and other cases involving wrongful death, brain injury and other personal injuries. Its actuarial table of life expectancy helps a jury or judge quantify the duration of a victim’s damages.

Virginia citizens generally living longer translates into higher life expectancy figures. That means victims of wrongful death, brain injury and other personal injury generally will suffer longer and deserve greater damage awards.

Senate Bill 39 passed the Virginia General Assembly in 2009. Effective July 1, 2009, it amends Va. Code Ann. §46.2-373.

The new amendment increases the threshold at which motor vehicle accidents are subject to written reports by the police. The vehicle damage threshold moves from $1,000.00 to $1,500.00 to be reportable.

From a personal injury standpoint, the amended statute stands to create more “he said, she said” disputes after-the-fact, because no independent officer will be taking statements or otherwise recording facts independently. Hence, the onus will be on victim’s of such vehicle accidents to identify witnesses themselves, which may prove a daunting if not impossible task given the accident circumstances and their personal injuries.

House Bill 1876 passed the 2009 Virginia General Assembly. Effective July 1, 2009, it amends Va. Code Ann. §46.2-1078.1.

Toward avoiding vehicle accidents, the new amendment prohibits operating a motor vehicle while using any hand held personal communication device to enter or read a text message. However, it exempts GPS, reporting an emergency, or reading caller identification information.

The new law will carry a traffic fine of $20.00 for first-time offenders and $50.00 for repeat offenders. More importantly, violating it while involved in a vehicle accident will constitute negligence per se.

In 1986, Virginia codified the Uniform Arbitration Act. Va. Code Ann. §8.01-581.01, et seq. The 16-section Act presumptively governs arbitration agreements in Virginia absent clear contractual provisions to the contrary.

Arbitration is a binding dispute resolution procedure whereby a “judge” agreed upon by the parties decides a controversy based on a summary hearing with relaxed evidentiary rules; and generally is a cheaper and faster alternative to litigation. However, it sacrifices the parties’ Constitutional right to jury trial and comprehensive pre-trial discovery; so parties should not enter an arbitration agreement lightly.

Courts generally favor and enforce arbitration agreements and awards. The Act enumerates few bases for vacating, modifying and/or appealing an arbitration award.

Arbitration agreements are prevalent in certain commercial settings, e.g., securities, architecture, etc. To the extent that arbitration agreements control an entire industry, so that a consumer has no real free choice to contract or deal otherwise, it could be argued that such arbitration agreements collectively and individually are unconstitutional as an abridgement the right to jury trial or, at the least, are unconscionable.

Lawsuits for wrongful death, brain injury, and other personal injuries contain an ad damnum, i.e., the dollar amount of damages sought by the plaintiff victim. Unlike some other states, Virginia allows a plaintiff’s lawyer to mention the ad damnum to jurors during trial.

By statute, a plaintiff’s lawyer in state court is entitled to mention the ad damnum (or, alternatively, a lesser amount sought at trial) in both opening statement and closing argument in every case. “Notwithstanding any other provision of law, any party in any civil action may inform the jury of the amount of damages sought by the plaintiff in the opening statement or closing argument, or both. The plaintiff may request an amount which is less than the ad damnum in the motion for judgment.” Va. Code Ann. §8.01-379.1.

Conspicuously, however, the Virginia Supreme Court has held that statutory right does not extend to mentioning the ad damnum in voir dire, i.e., the examination of prospective jurors in the jury selection process. Mentioning the ad damnum during voir dire rest within the sound discretion of the trial court. Speet v. Bacaj, 237 Va. 290, 293 (1989).

Not surprisingly, circuit courts in Virginia are divided on mentioning the ad damnum during voir dire. Hence, to avoid potential mistrial, a savvy personal injury lawyer needs to determine the prevailing local practice.

Also, a prudent personal injury lawyer must be mindful that the Virginia statutory right does not apply in federal courts in Virginia. Mentioning the ad damnum in even opening statement and/or closing argument is discretionary with a federal judge.

Virginia Supreme Court Rules 4:8 and 4:9 specify time deadlines – usually 21 but sometimes 28 days – for a party to object or to answer and produce. Thus, a failure to object on time maybe deemed a waiver of the objection, particularly in medical malpractice cases where counsel tend be more picayune.

Plaintiffs and Defendants alike have suffered waivers where they failed to object to Interrogatories and/or Responses for Production on time. See, e.g., Waterman v. Halverson, No. 26466-RW, Order at 2 (Newport News Sep. 21, 1999); Keeble v. Webb, No. L98-714, Order (Norfolk May 14, 1999); and Passmore v. Sentara Hosp.- Norfolk, No. L96-1641, Order (Norfolk Jun. 17, 1997). Passmore, a medical malpractice action, declares “by not filing objections to Plaintiff’s Request for Production of Documents within twenty-one (21) days after that discovery pleading was served, this Court is of the opinion that Sentara Hospitals – Norfolk has waived any objections….” See also, Garner v. Sentara Gen. Hosp., No. CL00-1107, Order at 2 (Norfolk Feb. 12, 2001); and Jennings v. O’Shanick, No. LT2097-3, Order at 1 (Richmond Nov. 12, 1991).

Principles of equitable estoppel apply to all areas of Virginia law. Virginia’s Premarital Agreement Act (“Act”), Va. Code Ann. § 20-147, et. seq., is no exception.

Under the Act, a spouse need not sign the agreement at the same time as the other spouse, or even before suit is filed. In Wilson v. Wilson, 2004 Va. App. LEXIS 17, *2-4 (2004), husband alone signed the agreement and delivered it to wife on February 25, 1999; filed a bill of complaint more than two years later on December 31, 2001, alleging no agreement; and was met with a cross-bill asserting the agreement. Husband unsuccessfully contended that “the agreement was invalid because wife signed it only after husband filed his bill of complaint.” Id. at 5. Wilson upheld the commissioner’s finding that “the agreement was a valid, enforceable contract,” observing “no requirement that the execution of the agreement by wife be contemporaneous with that of husband.” Id. at 3-5.

“The principle of equitable estoppel applies to antenuptial agreements.” Miller v. Miller, 2007 Va. App. LEXIS 340, *9 (2007). “Elements necessary to establish equitable estopppel, absent a showing of fraud and deception, are a representation, reliance, a change of position, and detriment.” Id. at *10. “[I]t is a well established principle in Virginia jurisprudence that marital agreements are, when all is said and done, contracts which must be interpreted and enforced in accordance with the general rules of contract law. McCall v. McCall, 43 Va. Cir. 296, 301 (Rockingham Sep. 4, 1997). “The Courts in Virginia have long held that the doctrine of estoppel or equitable estoppel is available in all proceedings including those relating to property settlement agreements . . . .” Id. “In fact the Premarital Agreement Act itself provides [and] does not abolish all of the other equitable defenses, such as laches or estopppel that are available to litigants in a court of equity.” Id. McCall applied the “equitable estoppel defense” where the “wife relied to her clear detriment upon the implied representation of the [husband]” Id. at 302.

Defendants routinely oppose motions for leave to amend in wrongful death, brain injury and other cases against them. But Virginia courts routinely grant leave, consistent with the liberal mandate of Virginia Supreme Court Rule 1:8.

“Leave to amend shall be liberally granted in furtherance of the ends of justice.” Va. Sup. Ct. R. 1:8 (emphasis added). Fifty years ago the Virginia Supreme Court embraced its Rule’s liberality toward amendment as the modern trend. “The tendency of modern decisions is reflected in our Rule”. Goode v. Courtney, 200 Va. 804, 807 (1959).

Virginia Circuit Courts routinely grant leave to amend to further justice. E.g., Pedigo v. Flattop Mountain Landowner’s Assn., Inc, 73 Va. Cir. 26, 33 (Greene Dec. 7, 2006); PMG Invs., LLC v. Gravely-Robinson, 71 Va. Cir. 140, 141 (Roanoke Jun. 14, 2006). In PMG, the circuit court granted an amendment on an appeal de novo from General District Court. In Pedigo, the circuit court granted leave to amend after sustaining a demurrer.

“A trial court that fails to allow amendments is likely to have abused its discretion. See, e.g., Peterson v. Castano, 260 Va. 299 534 S.E. 2d 736 (2000); Mortarino v. Consultant Eng’g Servs., Inc., 251 Va. 289 467 S.E. 2d 778 (1996).” Drewery v. City of Roanoke, 63 Va. Cir. 609, 619 (Roanoke Sep. 7, 2001). Kole v. City of Chesapeake, 247 Va. 51 (1994); XL Specialty Ins. Co. v. Commonwealth, 47 Va. App. 424 (2006); and Dirtselis v. Dirtselis, 2005 Va. App. LEXIS 451 (Nov. 8, 2005). The Supreme Court of Virginia and the Court of Appeals of Virginia regularly have reversed and remanded for denial of leave to amend. E.g., Peterson, 260 Va. at 303-304; Mortarino, 251 Va. at 295-296; Kole, 247 Va. at 57; XL, 47 Va. App. at 437-438; and Dirtselis, 205 Va. App. LEXIS 451 at *11-14. In Mortarino, the circuit court properly had sustained a demurrer, but “abused its discretion in failing to allow the filing of the amended motion for judgment”. 251 Va. at 296.

In Booher v. Botetourt County Board of Supervisors, 65 Va. Cir. 53, 59-61 (Botetourt Apr. 29, 2004), Defendants variously opposed the motion for leave to amend on grounds of it being unseasonable, the movant not showing it would not be futile, and the movant not having tendered the proposed amendment. But the court found no untimeliness despite months having past since initial filing, where there was no trial date or discovery. Id. at 60. Next the court in Booher rejected the futility assertion: “There is no technical burden upon a party seeking leave to amend to demonstrate that the amendment will not be futile. Nothing within the Rules of Virginia’s jurisprudence calls for such a showing.” Id. Then the Court held that although producing the proposed amendment at hearing “may be preferable and is often done, it is not required.” Id. Finally, Booher observed that the burden instead was on defendant opposing the Motion, who could not show undue prejudice. Id. at 61.

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Virginia defendants may cite Pulte Home, Inc. v. Parex, 265 Va. 518 (2003) for allegedly impermissible conclusory pleading, in hopes of a quick summary dismissal without addressing the merits of a suit. But Pulte Home usually is readily distinguishable on its extreme facts.

In Pulte Home, the plaintiff’s “allegation merely parroted the language of Code §8.2-313, which sets fourth several legal bases for the creation of express warranties, and amounted to no more than a legal conclusion.” 265 Va. at 523 (italics in original). Subsequently, the Virginia Supreme Court rejected a defendant attempting to rely on Pulte Home when taken out of its narrow context. “Here , unlike the pleading in Pulte Home, [plaintiff’s] pleading alleged [facts], rather than merely stating the legal bases.” Hubbard v. Dresser, 271, Va. 117, 123 (2006).

Even if arguendo plaintiffs have not pleaded enough facts, that should not be fatal. Plaintiffs should be granted leave to amend to plead additional facts in support of their theory of liability if they can legitimately. E.g., Altizer v. County of Tazewell, 2008 Va. Cir. LEXIS 13, * 2-5 (Tazewell Jan. 22, 2008)(leave to amend to plead additional facts granted sua sponte).

This is the last of three posts covering duties of care for protection under Virginia law against criminal conduct of third-parties causing wrongful death, brain injury, and other personal injuries. Virginia recognizes (gratuitously) assumed duties of care.

The Virginia Supreme Court recently reaffirmed that one can assume a duty of care when otherwise none would exist. “As the plaintiffs correctly point out, and the defendants do not dispute, we have cited with approval the legal principal that ‘[i]t is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all’.” Didato v. Strehler, 262 Va. 617, 628 (2001)(emphasis added)(and cases cited therein). Significantly, Didato held that even if plaintiffs were unable to establish the prevailing medical standard of care (duty) required the defendant doctors to act, i.e., to notify; the defendants having undertaken in fact to notify properly constituted that they “assumed the duty”. Id. at 629.

This is the second in a three-post series covering Virginia legal duties of care to protect against third-party criminal acts resulting in wrongful death, brain injury, and other personal injuries. In Taboada v. Daly Seven, Inc., 271 Va. 313, 327-328 (2006) on reh. 273 Va. 269 (2007), the Virginia Supreme Court held circuit court erred in sustaining a demurrer to an amended motion for judgment predicated on the duty and responsibility of an innkeeper to a “guest” (versus “business invitee”) for injuries sustained in a criminal assault by a third party on the innkeeper’s premises, where the innkeeper was on notice of its guests being in general danger of injury from prior similar criminal acts, making the act in question “reasonably foreseeable” (even though there was no warning in particular about it).

On an “issue of first impression,” the Virginia Supreme Court in Taboada found that innkeeper and guest presented a special relationship with an elevated “duty of ‘utmost care and diligence’ to protect the guest against reasonably foreseeable injury from the criminal conduct of a third party.” 271 Va. at 327. Taboada first observed that a common carrier’s duty of care to passengers was justified “because the passenger entrusts their safety to the carrier,” which his superior knowledge and ability about conditions and dangers. “This imbalance of knowledge and control warrants imposition of a duty on a common carrier ‘to protect its passengers against violence or disorderly conduct on the part of its own agents, or other passengers or strangers, when such violence or misconduct may be reasonably expected and prevented”. Id. at 325.

Taboada then likened common carrier passengers to innkeeper guests to impose the same duty of care.“[T]he guest of an innkeeper entrusts his safety to the innkeeper and has little ability to control his environment. The guest relies upon the innkeeper to make the property safe and the innkeeper’s knowledge of the neighborhood in taking the reasonably necessary precautions to do so. In this regard, it is reasonable for the law to impose upon the innkeeper, as a common carrier, a duty to take reasonable precautions to protect his guests against any injury caused by the criminal conduct on the part of other guests or strangers if the danger of injury by such conduct is known to the innkeeper or reasonably foreseeable.” Id. at 325-326. The Virginia Supreme Court in Taboada delineated that the requisite “notice of a specific danger” equated to the “concept of a reasonably foreseeable danger,” not the heightened degree of foreseeability if an “imminent probability of harm”. Id. at 327 (emphasis added). The plaintiff’s allegations of repeated prior criminal incidents on-premises over a protracted period satisfied the requirement of “notice that its guests were in danger of injury caused by similar criminal acts of third parties”. Id.

This concludes the five-part series on Virginia sovereign immunity pleaded in the brain injury case of Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Gloucester County Circuit Court. It covers the gross negligence exception, which the victim Plaintiff also was alleged.

In a 2003 school board employee case, the Virginia Supreme Court reversed and remanded the trial court’s judgment that a student plaintiff’s allegation for gross negligence against his football coach was factually insufficient as a matter of law. In Koffman, “gross negligence” was defined as “that degree of negligence which shows indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety of [another].” 265 Va. at 15. “Because reasonable persons could disagree on this issue” of alleged gross negligence in the tackling demonstration, the Virginia Supreme Court ruled in Koffman that “a jury issue was present”. Id. at 16.

Even Green v. Ingram, 269 Va. 281, 291-292 (2005), relied upon by the Assistant Principal in Gagnon, found plaintiff raised a jury question on the sovereign immunity issue of gross negligence, noting that the difference between gross negligence and ordinary negligence (versus recklessness willfulness or wantonness) simply was “one of degree” (versus a “matter of kind”). doing absolutely nothing at all after unequivocally assuring that he would alert security for the impending altercation about which he warned and his protection was sought presents a prima facie case of gross negligence to be decided by a jury.

The Assistant Principal in Gagnon claims that “Banks v. Sellers [ 224 Va. 168 (1984)] concerned facts almost identical to the facts alleged in this case”. But the brain injury victim in Gagnon asserts that Banks actually is distinguishable on multiple grounds.

First, Banks was handed down before the seminal opinions of the Virginia Supreme Court in Koffman, Friday-Spivey, Heider, and Lentz, when in general the then-evolving law of sovereign immunity still was not settled completely, when in particular the focus was on the judgment and discretion of the general position versus on the specific wrongful act as it is now. Second, Banks involved the “principal,” not an “assistant principal” as in the matter sub judice. Third, Banks only alleged simple negligence, not gross negligence as in the matter sub judice. Fourth, Banks involved a sharply divided Court, with three dissents and a “concur in result” as the swing vote; times in general and schools in particular unfortunately have changed materially for the worse in the 27 years since Banks was decided, school administration of necessity now routinely involves physical safety measures metal detectors, on-premises security, etc. as in the matter sub judice; and Taboada v. Daly Seven, Inc., 271 Va. 313 (2006) on reh. 273 Va. 269 (2007) calls into question the continuing viability of Banks even on its own facts.

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