Virginia Injury Attorney Blog

The May 2013 issue of Trial reported a half-dozen Verdicts & Settlements. Id. at 8-12. One is a medical malpractice lawsuit for negligent laparoscopy that settled for roughly $1,000,000.00 in California. Id. at 8-9.

Another is a special case of product liability involving after-market modifications of a motor vehicle, in which a RV owner, its customizer, an alarm system installer, and an inspector contributed more than $2,000,000.00 in a Michigan settlement with a permanently disabled occupant of the vehicle. Id. at 8. Mr. Waterman handles medical malpractice, product liability, vehicle accident, and other cases of wrongful death and personal injury.

Trial is the monthly magazine of the American Association for Justice (“AAJ”). Its May 2013 is its annual issue on “Medical Malpractice”.

Five articles are featured: “Dangers of Electronic Medical Systems,” id. at 14-19; “The Pros and Cons of Practice Guidelines,” id. at 20-25; “EMERGENCY ROOM MALPRACTICE,” id. at 26-32; “ALTERNATIVE APPROACHES IN RESPONDING TO MEDICAL ERRORS,” id. at 34-41; and “DAMAGES CAPS AND INVIOLATE RIGHTS”. Id. at 42-49. Another Medical Malpractice insert is “ELEMENTS OF EARLY OFFER PROGRAMS”. Id. at 38-39.

Mr. Waterman has been an AAJ member for decades. His practice includes patient fall, nursing home, and other medical malpractice cases involving wrongful death and permanent catastrophic injury.

This week a lawsuit scheduled for Court–facilitated mediation was settled by Mr. Waterman. It arose out of a 3–car crash on I-64 East near Victoria Boulevard in Newport News, Virginia, involving residents of Hampton, Yorktown, and Newport News.

Defendant offending motorist was cited and found guilty for following too closely and rear-ending Plaintiff’s car. The vehicle collision totaled Plaintiff’s car.

Plaintiff treated over 14 months and incurred over $15,000.00 for her vehicle accident injuries. She visited a dozen healthcare providers in Newport News and Hampton.

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

Eason v. Sentara Hospitals [and] Sentara Careplex Hospital, No. 12000470 is an alleged wrongful death or survival case pending in Circuit Court for the City of Hampton, Virginia. On January 19, 2013, Plaintiff obtained a written expert opinion that both Sentara Defendants deviated from the nursing standard of care.

On April 23, 2013, Eason v. Sentara Defendants, Sentara Hospitals’ and Sentara Careplex Hospital, served Motion to Reduce Ad Damnum, trying to reduce Plaintiff’s patient fall suit from $10,350,000.00 to only $2,000,000.00 summarily. On May 2, 2013, Plaintiff served her Memorandum in Opposition, arguing Sentara Defendants’ dilatory Motion is without merit - indeed, conflicts with a plain reading of the applicable statute, plus two Virginia Supreme Court opinions.

Va. Code Ann. §8.01-581.1 controls and simply provides expressly: “In any verdict returned against a healthcare provider in an action for medical malpractice…, the total amount recoverable…shall not exceed the cap.” (emphasis added) Since §8.01-581.1 is in derogation of Virginia common law, hornbook law holds that it must be construed strictly, i.e., narrowly against its beneficiary Defendants, to apply only to “verdict” as stated.

§8.01-581.1 explicitly limits only the “amount recoverable,” not the amount the jury can award. §8.01-581.1 does not “cap” any ad damnum: if the General Assembly wanted to achieve that result in medical malpractice cases such as Eason v. Sentara, then it easily could and should have legislated so expressly.

Va. Code Ann. §8.01-379.1 guarantees Plaintiff the right to plead and argue above the cap, including in wrongful death suits like Eason v. Sentara. §8.01-581.1 does not purport to abrogate §8.01-379.1, and must be harmonized with it.

Circuit Courts have denied motions like that of Sentara Defendants in Eason v. Sentara. See, e.g., Exhibit 1, Marshall v. Moniz, No. CL08-2018, Order at 2 (York Mar. 28, 2011); Wright v. Eli Lilly & Co., 65 Va. Cir. 484, 499-504 (Portsmouth Sep. 21, 2004)(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.). Correspondingly, Peninsula Circuit Courts have reduced jury verdicts in excess of the cap, including notably in 2 other patient fall trials of Mr. Waterman. See, e.g., Denton v. Chu, No. CL12-94 (Hampton Feb. 2013); Final Judgment Order, Burrell v. Riverside Hosp., Inc., No. CL1101633F-15 (Newport News Jan. 29, 2013)(patient fall); and Amended Judgment, Johnson v. Riverside Hosp., Inc., No. CL00-29638-DP c/w CL01-30571-DP (Newport News Nov. 30, 2005)(patient fall).

“Hence the appropriate procedure is to submit the case to the jury without informing the jury of the limit on recovery. Should the jury return a verdict in excess of the Medical Malpractice Cap, the trial judge will reduce the award to the amount of the Medical Malpractice Cap.” Wright, supra, 65 Va. Cir. at 503 (quoting Dell).

More fundamentally – dispositively in Eason v. Sentara - the Virginia Supreme Court opinion upholding the constitutionality of the medical malpractice cap in 1989 emphasizes that verdict, not ad damnum, should be reduced:

The limitation on medical malpractice recoveries contained in Code
8.01-581.15 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 function.

Etheridge v. Med. Ctr. Hosps., 237 Va. 87, 96 (1989)(italics in original)(underlining added) (citations omitted). Moreover, this language of the Virginia Supreme Court in Etheridge was reiterated by it a decade later in Supinger v. Stakes, 255 Va. 198, 205 (1998).

Defendants nonetheless try to cap Plaintiff’s ad damnum in Eason v. Sentara at $2,000,000.00 artificially, toward inappropriately trying to make that the jury’s chopping block. Doubtless Sentara Defendants are sensitive to this year’s record $25,000,000.00+ medical malpractice jury verdict in Denton, supra, in Hampton and to undersigned counsel’s $3,500,000.00 patient fall verdict in Burrell, supra, in Newport News last year; yet those very cases evince verdict, not ad damnum, is to be reduced.

With the ad damnum reduced to only $2,000,000.00, Plaintiff in the Eason v. Sentara wrongful death/survival case will not be able to argue adequate monetary value to her substantial general damages claim for jury consideration, which she avers is an abridgment of her Constitutional right to jury trial and other undue prejudice. Sentara Defendants’ Motion is not well-grounded in fact or in law.

Unbeknownst to patients and the general public, but well-known to Sentara Defendants and its nurses for decades, patient falls are a leading cause of injury in hospitals. Putting up all four bedrails of a patient - as in Eason v. Sentara - is a disfavored patient restraint known to cause and/or aggravate personal injury, particularly when not used in conjunction with a sitter, posey vest or wrist restraints.

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

Some medical malpractice defense lawyers have resorted to questioning patients’ experts in deposition whether their litigation testimony supposedly violates membership standards of their professional societies. Query: if the subsequent professional discipline of the patient’s expert by the society can result in a lawsuit verdict against the society, in Virginia can such a damages award also be against an instigating defense lawyer, law firm, and defendant client?

In a 45-page opinion entered on March 28, 2013, a Federal Court upheld a $196,000.00 jury damages verdict in favor of a Plaintiff’s medical malpractice expert against Defendants, American Academy of Orthopaedic Surgeons and American Association of Orthopaedic Surgeons (collectively “AAOS”), for engaging in “tortious conduct by portraying [plaintiff’s expert] in a false light”. Graboff v. The Colleran Firm, et al., No. 10-1710, *1 (E.D.Pa. Mar. 28, 2013). Denying AAOS’ Post-Trial Motion for Judgment as a Matter of Law, the Judge observed: “The evidence shows that the intrusion of the AAOS into the marketplace of expert orthopaedic surgeons is substantial and jeopardized Dr. Graboff’s source of income as an expert.” Id. at *45.

Virginia’s tort of civil conspiracy at common law potentially provides a cause of action against medical malpractice case participants who foster subsequent unfounded discipline of Plaintiff’s expert by his professional society. By separate Blog, Mr. Waterman will provide civil conspiracy authority.

Trial is the monthly magazine of the American Association for Justice (“AAJ”), of which Mr. Waterman has been a member for decades. Trial’s April 2013 issue marquees “False Claims for Unrendered Nursing Home Care” under its Verdicts and Settlements. Id. at 8.

The AAJ article reports how two former nursing home staff members successfully maintained a special case - qui tam lawsuit - against their former employer and facility owner, being awarded $28,110,000.00 by an Illinois jury. Their lawsuit exposed that the nursing home’s “owner was siphoning money received from Medicare and Medicaid and using it for his own purposes instead of patient care,” causing “patients to suffer infections, skin disorders, and deprivation of required medical care,” including “excessive pressure sores,… a scabies epidemic, and…inadequate attention to their personal hygiene, among other abuses”. Id.

On April 18, 2013, the Virginia Supreme Court issued The Doctors Company v. Women’s Healthcare Associates, Inc., No. 120702. That 7-2 decision found the medical malpractice insurer owed coverage for a breach of contract claim arising out of the healthcare provider’s failure to participate in the Virginia Birth-Related Neurological Injury Compensation Act, Va. Code Ann. 38.2-5000, et seq., as represented.

On de novo review, The Doctors Company held that the parents’ breach of contract claim was covered under the medical malpractice policy as “professional services”. It also held that the alleged breach of contract did not arise out of a statutory violation, an exception to coverage.

The Trial Lawyer is the quarterly magazine of The National Trial Lawyers: TOP 100 TRIAL LAWYERS. Its first issue of 2013 features a couple of articles on vehicle accidents.

“CREATING AND DEVELOPING THE LITIGATION PLAN AND STRATEGY In Interstate Truck Litigation Cases” among other things cautions lawyers new to such cases to associate experienced counsel. Id. at 14-17. “ELECTRONIC DEFECTS: The Next Generation of Automotive Product Liability Lawsuits” highlights re such special cases that “the rapid developments in automotive electronics is greatly outpacing regulatory oversight”. Id. at 26-30.

The National Trial Lawyers has named Mr. Waterman one of Virginia’s Top 100 Trial Lawyers. He handles vehicle accident cases, including ones involving product liability.

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

On March 20, 2013, Mr. Waterman filed Lamont v. Striggles, No. CL1301322V-04 in Circuit Court for the City of Newport News, Virginia. It is a suit for serious personal injuries arising out of a two-car collision on Warwick Boulevard near Curtis Drive the prior month.

According to the Defendant driver’s account in the Police Crash Report, the head-on auto crash occurred when the offending motorist “fell asleep at the wheel [and] drifted into the oncoming lane”. The “fatigued” motorist, who was charged with failing to maintain proper control of his vehicle, totaled the victim’s BMW and his own automobile.

The Plaintiff victim, a Williamsburg resident, already has incurred more than $60,000.00 in past medical expenses, remains incapacitated and is out of work. Although the offending motorist has only minimum liability insurance coverage of $25,000.00 with Alfa Vision Insurance Co. for the vehicle accident, fortunately his victim has underinsured (“UIM”) coverage of $300,000.00 with Nationwide Insurance Co. plus umbrella insurance coverage of $1,000,000.00 with Nationwide.

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

During April 5-6, 2013, Mr. Waterman attended “Reptile in Nursing Home Cases” at Disney World in Orlando, Florida. It was a 2-day legal seminar.

This special medical malpractice program featured Don Keenan and other plaintiff lawyers. It was developed after countless hours in Keenan’s exclusive Florida workshop focused on the important topic.

Reptile seminar agenda included case selection, rules (and more rules), focus groups, depositions, arbitration, and trial (voir dire, opening, experts, defenses, demonstrative exhibits, and closing). Nursing home case scenarios covered wrongful death.

Mr. Waterman currently is handling several nursing home cases. Most involve patient falls.

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

During April 1-2, 2013, Mr. Waterman resolved a multi-car crash case arising in Portsmouth, Virginia. The “rear-ender” occurred on the Western Freeway near the Town Point Road Exit and involved motorists from Suffolk and Chesapeake and their insurers, USAA and State Farm.

The car crash victim was seen at Sentara Belle Harbour in Suffolk, including by Emergency Physicians of Tidewater and by Suffolk Radiology. Settlement was reached without Mr. Waterman having to file suit, yet was complicated by State Farm.

Mr. Waterman negotiated a settlement with the victim’s UM/UIM insurer, USAA, for coverage of an alleged “phantom” offending motorist; reserving rights to proceed against the identified offending motorist, Cameron Driver, liability insured of State Farm. The State Farm claims adjuster unsuccessfully asserted that settlement payment by USAA alone or, alternatively, State Farm alone settled the entire vehicle collision for both offending drivers.

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

Hospitals and nursing homes decry and lobby against patient claims for medical malpractice. But Virginia Business’ 2013 “Big Book” shows 50 healthcare institution to be “big business” in Virginia - with at least a half-dozen healthcare systems and even stand-alones to have collected more than one billion dollars apiece from their patients back in 2011! Id. at 123-126.

The 900-pound gorilla of hospitals is Inova with combined patient net revenues of $1,650,425,809.00 based on 3 locations: $1,148,883,881.00 from Fairfax in Falls Church; $263,410,117.00 from Fair Oaks in Fairfax; and $238,131,811.00 from Loudoun in Leesburg. Weighing in at $1,072,063,368.00 is Bon Secours Health System based on 3 of its hospitals (not even counting Mary Immaculate in Newport News): $457,096,292.00 from St. Mary’s in Richmond; $310,769,214.00 from Maryview in Portsmouth; and $304,197,862.00 from Memorial in Mechanicsville. Third appears to be Sentara Health System, with patient revenue nets of $646,103,556.00 from Norfolk General in Norfolk, $271,248,011.00 from Virginia Beach in Virginia Beach, and unpublished amounts from its CarePlex in Hampton and its Community Hospital (now Regional Medical Center) in Williamsburg. A close fourth, if not third, is Carilion Health System, which collected patient revenues of $841,691,584.00 from its Medical Center in Roanoke alone.

Other substantial patient revenue stand-alones are: $1,022,764,802.00 for VCU Health System in Richmond, $264,595,293.00 for Chesapeake Regional Medical Center in Chesapeake, $251,457,085.00 for Children’s Hospital of the King’s Daughters (“CHKD”) in Norfolk, and $373,828,112.00 for Riverside Regional Medical Center in Newport News. Of course Riverside Health System derives significant additional patient revenues from the many physician practices and other facilities it controls on the Peninsula, including its upcoming Doctor’s Hospital in Williamsburg near the Kingsmill subdivision.

Mr. Waterman has sued Bon Secours, Sentara, and Riverside for medical malpractice. He is looking toward suit against Chesapeake Regional Medical Center too.

The Gardens at Warwick Forest in Newport News is reported as the nursing home getting the most patient revenues on the Peninsula. At $18,042,013.00 annually in 2011, The Gardens was not far behind top state’s nursing home at $30,704,731.00.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Trial is the monthly magazine of the American Association for Justice (“AAJ”), formerly American Trial Lawyers Association (“ATLA”), of which Mr. Waterman has been a member for decades. Its January 2013 issue reports Verdicts & Settlements.

Trial covered that on August 1, 2012, $117,000,000.00 was awarded a permanent spinal cord and brain injury victim against an ambulance service for negligently causing a two-vehicle crash in Louisiana (where Mr. Waterman also still is licensed to practice law). Id. at 8. Also, on March 6, 2012, a New Jersey jury awarded $3,980,000.00 to a victim who was disabled by permanently by elevator malfunction. Id. at 10.

Trial reported too that on June 11, 2012, a wrongful death plaintiff in Missouri settled for $3,100,000.00 a lawsuit for negligent hiring. Id. at 8. Additionally, on June 1, 2012, a Washington jury awarded $1,000,000.00 for another wrongful death in a special case alleging civil rights violations for inadequate police training. Id. at 8-9.

On January 21, 2013, Virginia Lawyer’s Weekly ranked Mr. Waterman’s $3,500,000.00 jury award as trying for 9th of “Virginia’s Largest Verdicts of 2012”. It was in the medical malpractice case of Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F in Circuit Court for the City of Newport News, Virginia.

In the same issue, Virginia Lawyer’s Weekly also reported his $3,500,000.00 jury award more extensively under its “Verdicts & Settlement”. That caption was “Plaintiff claims hospital fall led to brain injury”.

On January 23, 2013, the Motion to Quash of Williamsburg Facility Operations, LLC, d/b/a Consulate Health Care of Williamsburg, the Patient’s Motion to Enforce Va. Code Ann. §8.01-413(C) Subpoena, and the Plaintiff’s Motion to Compel were heard in the $4,550,000.00 wrongful death case of William M. Snovell, Executor of the Estate of Bernadette Teresa Connelly Snovell, Deceased v. Williamsburg Facility Operations, LLC, d/b/a Consulate Health Care of Williamsburg, et al., No. CL12-4966 in Circuit Court for York County, Virginia. The Court recessed during hearing for in camera review of the 2-page Root Cause Analysis for Fall and the 2-page Determination of Unavoidable Accident that Defendant healthcare provider was continuing to withhold from its deceased patient’s representative.

The Court in Snovell found that the nursing home’s 2-page Root Cause Analysis for Fall is factual in nature, except for its last question-and-answer paragraph on the second page entitled “How The Event Might Be Prevented In The Future,” which is deliberative analysis; that all such factual information is discoverable; and that the deliberative analysis is privileged. The Court found further that the 2-page Determination of Unavoidable Accident is entirely deliberative analysis, contains no factual information, and is privileged.

Hence the Court in the Snovell patient fall lawsuit ordered Williamsburg Facility Operations, LLC, d/b/a Consulate Health Care of Williamsburg to provide forthwith to its deceased patient’s representative its 2-page Root Cause Analysis for Fall, except for redaction of its last question-and-answer paragraph on the second page. The Court did not require it to provide the 2-page Determination of Unavoidable Accident.

In the Snovell medical malpractice proceeding, the Court also ordered that Defendant, Williamsburg Facility Operations, LLC, d/b/a Consulate Health Care of Williamsburg, provide discovery responses to Plaintiff in-hand by Monday, February 4, 2013. Such required information and materials includes the identity and addresses of current and former personnel; details underlying its discoverable 2-page Root Cause Analysis for Fall; the actual bed and chair alarms for inspection and photographing; and a corporate verification.

The deposition videotape of Patricia [Hoadley] Williams, Midas System Manager (formerly QMS Coordinator) for Defendant, Riverside Hospital, Inc., was taken on October 29, 2008. Hers is the third of 22 to be run on Mr. Waterman’s website from his patient fall jury trial, Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F in Circuit Court for the City of Newport News, Virginia.

In the Burrell brain injury lawsuit, Ms. Williams delineated the computerized incident reporting systems of Defendant, Riverside Hospital, Inc.: in its Quality Management System (“QMS”), data is input from paper incident reports; while in its newer Midas system operational since January, 2006, “witnesses” enter incident information directly into the database remotely from computer terminals anywhere, id. at 12-14 and 18-19; which Ms. Williams can and does revise ex post facto. Id. at 21-22 and 25. She also testified about Riverside Dep. Ex. 2, QMS Transaction Summary Report, id. at 8; Riverside Dep. Ex. 3, Midas System Printouts, id. at 10-11; and Riverside Dep. Ex. 4, Ames Dep. Ex. 6, Fall Quality Care Control Report (“QCCR”). Id. at 34.

The deposition videotape of Joann Rae “Jodi” Friend, Director of Risk Management for Riverside Health System, whose office is located at Riverside Regional Medical Center in Newport News, Virginia, was taken on October 29, 2008. It is the second of 22 to be launched on Mr. Waterman’s website from his medical malpractice trial during November 26-December 7, 2013, Burrell v. Riverside Hospital, Inc., No. CL1101633F in Newport News Circuit Court.

On November 27, 2012, Ms. Friend was called as one of Plaintiff’s early case-in-chief witnesses. In videotape deposition, Ms. Friend testified why and how she as Riverside’s Risk Manager “waived,” i.e., wrote off, the Burrell brain injury victim’s unpaid hospital bill balance by Authorization to Charge to Risk Management, id. at 12-14 - which Plaintiff at trial unsuccessfully sought to introduce as an admission or statement against by conduct under the circumstances, and which adverse ruling Plaintiff has preserved for cross-appeal.

Also in videotaped deposition, Ms. Friend identified a Quality Management System (“QMS”) Transaction Summary a/k/a the “expenditure report” printout of Riverside Hospital, Inc. for the Risk Management waiver re the patient fall victim in Burrell. QMS and Midas are computer program databases of Riverside Hospital, Inc., including for risk management purposes. Id. at 21-25.

The deposition videotape of Christopher Stolle, M.D., Vice-President of Medical Affairs at Riverside Regional Medical Center in Newport News, Virginia, taken on February 26, 2009, is the first of 22 deposition videotapes to be posted on Mr. Waterman’s website from Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F in the Circuit Court for the City of Newport News, Virginia. If Riverside Hospital, Inc. appeals the $3,500,000.00 brain injury verdict against it, VP/Dr. Stolle’s trial testimony transcript should be available by Spring for supplemental posting along with Plaintiff’s Trial Exhibit 30.

On November 27, 2012, the medical malpractice victim called VP/Dr. Stolle as an early case-in-chief fact witness at jury trial in Burrell. Notably, VP/Dr. Stolle testified about certain Riverside record-keeping re factual information of patient care not included expressly in its patient chart; and through him, the Burrell victim introduced into evidence Plaintiff’s Exhibit No. 30, the internal computer database printout of Riverside Hospital, Inc. that stated inter alia its high unto extreme fall risk patient’s mental status was “very confused”.

On January 7, 2012, Virginia Lawyers Weekly (“VLW”) newspaper headlined on the front page: “A return to ‘Riverside’: Patient’s $3.5M verdict for fall prompts comparisons to 2006 case”. VLW’s print version is substantially similar to its prior online reporting of Mr. Waterman’s Newport News brain injury case against Riverside Hospital, Inc.

However, VLW’s print article covered Mr. Waterman using his “2006 Riverside opinion to introduce into evidence four incident report documents with information not included in the patient’s chart”. Id. at 21. It also covered Newport News Circuit Court denying on January 2, 2013, the post-trial Motion of Riverside Hospital, Inc. to set aside the medical malpractice verdict against it. Id.

In the patient fall case of Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia, Mr. Waterman deposed on videotape 22 Riverside representatives, essentially all as “most knowledgeable persons” pursuant to Va. Sup. Ct. Rule 4:5(b)(6). They are: Ann Fox Andrews (12/3/09), Emily Theal Edwards (4/23/09), Tikishia Monique Everett (12/22/08), Joann Rae “Jodi” Friend (10/29/08), Deborah Lynn Gressett (10/30/08), Stephanie Hadley (12/22/08), Ramona English Hercules (10/30/08), Christine Frances Hill (12/17/08), Delores K. Kitchin (12/3/09), Lisa Michele Morgan (4/23/09), Michelle Walls Morris (12/22/08), Christina Marie O’Brien (2/26/09), Tricia O’Grady (2/26/09) Shrikant Lalaji Patel (2/26/09), Susan Sale (2/23/09), Christopher Stolle, M.D. (2/26/09), Michelle Thomas-Eckroade (12/3/09), Joyce Carolyn Turner (12/17/08), Deborah C. Walton (10/30/08), Jacqueline B. Ward (4/23/09), Patricia Williams (10/29/08), and Michelle Snyder Wooten (12/17/08).

Ultimately, Mr. Waterman plans to launch them on www.YouTube.com, having purchased a YouTube platform. Meanwhile, this Blog will highlight each Riverside deposition videotape from the Burrell brain injury lawsuit as they are posted on his website, beginning with Dr. Stolle.

On December 28, 2012, the Virginia Supreme Court quickly vacated a Fairfax Circuit Court Order that enjoined a litigant from maintaining past accusative postings online and from posting again during the pending lawsuit. The unpublished opinion in Record No. 122157, Perez v. Dietz Development, LLC, expressly finds inter alia “the preliminary injunction was not justified”.

The Virginia Supreme Court’s Perez ruling - issued only 2 days after the appeal pursuant to Va. Code Ann. 8.01-626 - vindicates the propriety of Mr. Waterman posting contemporaneous case developments on this Blog. In 2010, 2011, and 2012, 3 medical malpractice Defendants - including Sentara and Riverside Hospital, Inc. - unsuccessfully have tried to deny Mr. Waterman’s state and federal rights of “free speech” online in a wrongful death, a patient fall, and another case through Circuit Courts in Suffolk, York, and Newport News.

In Perez, the American Civil Liberties Union (“ACLU”) of Virginia at www.acluva.org and the Public Citizen at www.citizen.org appealed the injunction Order as violating the First Amendment of the United States Constitution in addition to Virginia state law. Since Riverside Hospital, Inc.’s attempt to abridge Mr. Waterman’s Constitutional rights of “free speech” was in November, 2012, in the still-pending brain injury lawsuit, he yet may call upon ACLU of Virginia and Public Citizen to intercede on the topic.

On January 2, 2013, the Court issued its letter opinion in favor of Mr. Waterman’s client on all post-trial motions in the patient fall case of Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia. Those motions were heard on December 27, 2012.

First, the Court denied Defendant Riverside Hospital, Inc.’s Motion to Set Aside Jury Verdict in the Burrell medical malpractice lawsuit. Riverside Hospital, Inc. had filed an 11-page Memorandum in Support with 4 Exhibits consisting of 29 pages on December 14, 2012; and also a 7-page Memorandum in Reply with 2 Exhibits consisting of 15 pages, immediately before hearing on December 27, 2012.

Second, the Court granted Plaintiff’s Motion for Costs in the Burrell brain injury suit. It awarded Plaintiff $4,533.65 against Riverside Hospital, Inc. for filing fees, service fees and videographer/reporter fees, atop the jury’s verdict of $3,500,000.00 (which on Plaintiff’s oral motion on December 7, 2012, already had been reduced to the applicable statutory “cap” of $1,800,000.00).

Third, the Court granted Plaintiff’s Motion for Appeal Bond in the Burrell medical malpractice proceeding. It required Riverside Hospital, Inc. to post a bond of $1,900,000.00 as a prerequisite for appealing the Judgment Order to be drafted by Mr. Waterman and entered against it shortly.

On January 3, 2013, www.VaLawyersWeekly.com initially headlined “Patient’s fall leads to $3.5 verdict,” then revised its headline to "A return to 'Riverside': Patient's $3.5M verdict prompts comparisons to 2006 case". That top article covers Burrell.

The www.VaLawyersWeekly.com coverage marquees Mr. Waterman in Burrell “using high resolution imaging to dramatize alleged brain injuries for the jury,” including “’cutting edge’ 3.0 Tesla Magnetic Resonance Imaging, applying ‘fractional anisotropy,’ also known as Diffusion Tensor Imaging, and NeuroQuant Analysis”. It also presages: “An appeal of Shirley Burrell’s verdict against the owner of Riverside Regional Medical Center could offer a ruling on the admission of hospital policies and protocols” and on the “admissibility of hospital write-offs of patients bills”.

Www.VaLawyersWeekly.com reported further from Mr. Waterman’s Blog that Burrell asserted Riverside Hospital, Inc. was guilty of medical malpractice because it “omitted preventative measures such as relocating the patient closer to the nurses’ station, activating a bed alarm, using a sitter to keep watch, and using soft restraints like a ‘posey vest’.” Re some nurses not liking to use bed alarms despite their proven effectiveness, the online newspaper quoted Mr. Waterman: “Some false positives are a worthwhile inconvenience.”

Www.VaLawyersWeekly.com recounted the Virginia Supreme Court upholding Mr. Waterman’s $1,600,000.00 Newport News jury verdict in another patient fall trial against Riverside Hospital, Inc. in 2005, Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006). It chronicled too that the “so-called Riverside [v. Johnson] standard [which clarified the law on admission of hospital incident reports] was codified by the General Assembly in 2011”.

If Riverside Hospital, Inc. ultimately seeks to appeal the jury verdict against it in the Burrell brain injury matter, then Mr. Waterman definitely will cross-appeal against both Defendants, Riverside Hospital, Inc. and Nurse Melanie Ames. Some of Plaintiff’s alternate grounds will be first “first impression” issues, as was the case in Riverside.

Trial’s December 2012 issue publishes “Elective Procedures, Not Elective Injuries.” That medical malpractice article covers holding “plastic surgeons accountable for clients’ injuries from elective cosmetic procedures.” Id. at 31.

It advocates, “If the plastic surgeon had reason to believe your client’s physical or mental condition would lead to complications or injury, the surgeon should be held liable.” Id. at 32. In addition to addressing other considerations, the Trial article evaluates each stage of a medical malpractice case for plastic surgery: Patient Candidacy, Preoperative Care, Intraoperative Care, and Postoperative Care. Id at 31-34.

Happy New Year!

Trial is the monthly magazine of the American Association for Justice (www.justice.org). Its December 2012 issue is dedicated to “RECLAIMING JUSTICE: BATTLING TORT ‘REFORM’,” which “reform” initiatives often result in medical malpractice legislation that limit victim rights.

Trial’s feature article, “The WEB of TORT ‘REFORM’,” exposes how Fortune 100 companies are trying to limit individual citizens’ legal recovery for product liability: “Major corporations have launched a concerted attack on the most basic tenets of civil justice. What they call tort ‘reform’ is in fact a disingenuous plot to convince Americans that corporations are on the side of ordinary citizens.” Id. at 15.

“The WEB” identifies a half-dozen corporate entities that campaign to restrict a person’s tort rights of redress for wrongful death and personal injuries:

1. Civil Justice Reform Group: CJRG, “comprising the general counsels of some of the largest and most profitable corporations in the world,” is at the “center of the campaign.” Id. at 16.

2. Institute for Legal Reform: “[M]ajor corporations hold the most sway” within the U.S. Chamber of Commerce’s ILR, which is “one of the largest players in the tort ‘reform’ movement” and whose “true goal is to benefit the interests of multinational corporations.” Id. at 16.

3. American Legislative Exchange Council: ALEC is “another secretive group of corporate lobbyists who write model legislation,” such as for “limiting access to the civil justice system for injured people [as] one of its top priorities.” Id. at 16.

4. American Tort Reform Association: ATRA “for many years functioned as the primary public relations arm of the tort ‘reform’ movement,” including with its “Judicial Hellholes project,” i.e., bashing of courts in which its members have lost big cases, and its “Astroturf organizing,” i.e., “faked grassroots support for limiting Americans’ legal rights.” Id. at 17.

5. Searle Civil Justice Institute: Based at George Mason University (“GMU”) in Arlington, Virginia, and affiliated with the Law & Economics Center there, the new SCJI turns focus of the tort reform movement to “academia,” commissioning on average $70,000.00-100,000.00 for the academic community to research and promote 10 suggested issue areas, “such as the ability of state attorneys general to contract with outside counsel, the use of pre-dispute mandatory binding arbitration clauses in contracts, the federal preemption of state tort laws, and class action litigation. Id. at 17.

6. Civil Justice Caucus Academy: Created by GMU’s Law & Economics Center in 2011, CJCA’s executive director immediately was the featured speaker at CJRG, attended by representatives of ILR, ALEC, ATRA, and major corporations. Id. at 17.

Major legislative initiatives of “tort reformers” include repeated attacks on the asbestos bankruptcy trust system and on state attorneys general retaining private law firms to prosecute product liability actions on contingency fees, such as was a success in the 1998 Tobacco Master Settlement Agreement. Id. at 17-20. Finally, “tort reformers” have focused efforts on the Federal Civil Rules Advisory Committee, toward imposing procedural restraints on the general public’s access to the civil justice system, particularly vis-à-vis spoliation of evidence and class action litigation. Id. at 22.

Trial’s companion feature article is “Spreading the Word about CIVIL JUSTICE.” Subtitled in part “As the civil justice system remains under attack, plaintiff lawyers are finding creative ways to highlight their role as defenders of public safety;” it highlights “BLOGGING for Justice,” “MARKETING that Matters,” and “Tell One Story at a Time.” Id. at 25-29.

Finally, Trial reports “Recap of Tort ‘Reform’ and Civil Justice Issues in the 112th Congress.” It recounts the historic defeat of H.R.5, the HEALTH Act, a Draconian medical malpractice bill that even a number of Republicans opposed and never got any traction in the Senate.

The December 2012 issue of Trial covers nursing home litigation. A feature article is “Weaving a NURSING HOME DEPOSITION STRATEGY.” Id. at 40-41. “When it comes to proving violations of the safety rules and resulting harm to the nursing home residents, you need to know the right questions to ask the defense witnesses, as well as how to dissect common defenses.” Id. at 40.

First, “Weaving” teaches that depositions must establish “standard of care” by developing the codified federal and state regulations and possibly the mirroring nursing home’s policies and procedures, per the following basic model: Assessment, Planning, Implementation, Reevaluation, and Communication. Id. at 41-42. Second, depositions must deconstruct the following general common medical malpractice defense arguments: (1) unavoidability (2) pointing the finger at the family or resident; (3) nursing judgment; (4) OBRA is not the standard of care; (5) policies and procedures are only guidelines; (6) poor documentation does not mean poor care; (7) custom and practice as evidence that care was provided; and (8) the unprepared witness. Id. at 42-44.

Third, depositions must marquee “systematic failures.” Id. at 44. “Once the deponent admits to a misstep in the nursing home model, the defense can no longer claim the injury was unavoidable.” Id. at 42.

Also, Trial’s “Verdict & Settlements” in December 2012 reported “Negligent Assistance to Nursing Home Resident.” A jury awarded $1,500,00.00 in a medical malpractice case of wrongful death. Id. at 10.

In the case reported, an 88 year-old died from complications of a patient fall. The facility nurse failed to take proper fall risk precautions and then to provide medical attention timely. Id.

Happy holidays!

On December 21, 2012, Best Lawyers in America featured a 2013 “Washington, D.C. & Virginia’s Best Lawyers” supplement to The Washington Post, The Richmond Times-Dispatch, and The Virginian-Pilot. Its cover story is “The Powerful Trial Lawyers at Patten, Wornom, Hatten & Diamonstein,” including Mr. Waterman who was recognized individually for both “Medical Malpractice Law - Plaintiff” and “Personal Injury Litigation - Plaintiff”.

“’We stand toe to toe with any big-city defense lawyers in the state,’ says partner Avery Waterman, a precedent-setting medical malpractice lawyer known as one of the top in the state. “We offer a level of sophistication and success that really is only found in a few firms’,” quotes the Best Lawyers’ Supplement at 3.

“’The people that we represent are families of permanently disabled breadwinners and deceased breadwinners who would never be on equal footing if we weren’t there to help’, says Waterman. ‘We give it everything at trial’.” Id.

“Indeed, says partner Avery Waterman, whose plaintiffs’ practice centers on medical malpractice litigation and catastrophic personal injury cases (such as brain injury, automobile and trucking accidents and the like), PWHD is known for being a go-to firm for some of the toughest cases to litigate. ‘The cases we take on require a significant commitment that is difficult to overstate,’ says Waterman, who has been with the firm since 1986, one of Virginia’s top medical malpractice attorneys. ‘In plaintiff’s practice, as we say, you only eat what you kill. So the risk is enormous but the reward for our clients is even greater’.” Id. at 15.

On December 20, 2012, the medical malpractice lawsuit of Myron Arshan, Executor of the Estate of Sharon Lorrie Britt, Deceased v. Stephen Plotnick, M.D., et al., No. CL11-1316 in Circuit Court for the City of Williamsburg and James City County, Virginia, came on for hearing on various Demurrers and Motions. Most issues were raised by the Plotnick Defendants, represented by Tracy T. Hague, Esq. of 349-lawyer LeClair Ryan based in Richmond.

First, the Court in the Arshan wrongful death suit granted Plaintiff’s Motion for Leave to Extend and denied Plotnick Defendants’ request for attorney’s fees and costs in opposition. Ms. Hague in her affirmative defenses of contributory negligence and assumption of risk requested a Reply under Va. Sup. Ct. Rule 3:11, which went unnoticed until 35 days after the deadline without Leave.

The Court in Arshan found no prejudice or bad faith and instead excusable neglect and prompt follow-up. Nonetheless, such Rule 3:11 pleading in medical malpractice and other cases remains a potentially serious trap for the unwary.

Va. Sup. Ct. Rule 3:11 provides plaintiffs “shall within twenty-one days” file a reply. It parallels Rule 3:8, which provides defendants “shall within twenty-one days” file a responsive pleading.

The Virginia Supreme Court mandates that the 21-day rule of Rule 3:5 (now Rule 3:8) must “be read in connection with Rule of Court 3:13,” Herndon v. Willis, 198 Va. 824, 826 (1957); and it must be the same with Rule 3:11. Rule 1:9 (formerly Rule 3:13) provides: “The time allowed for filing pleadings may be extended by the court in its discretion, and such extension may be granted though the time fixed already has expired….” Cf, Lennon v. Virginia Board of Dentistry, 2007 Va. App. LEXIS 475, *3-4 (2007).

The Virginia Supreme Court holds that the purpose of the 21-day rule for filing a responsive pleading by defendants is:

"[P]rescribing a time within which a defendant may and shall file his answer or other defense, is not to cut off the orderly presentation of defenses, or to set a trap for the unwary defendant by which a plaintiff may be delaying the prosecution of his cause cut off the defendant from a full defense or escape the necessity of providing his case. Its purpose is to prevent unconscionable delay in an orderly procedure … being caused by dilatory tactics on the part of the defendant or by the neglect of the defendant, where the plaintiff has shown due diligence on his part in the prosecution of the cause."

Worsham v. Nadon, 156 Va. 438, 446 (1931). The same salutary considerations underpin the 21-day rule for filing a reply by plaintiffs.

Hence, routinely numerous circuit courts have granted, and appellate courts have upheld, extensions of the 21-day rules. E.g., Lennon, supra at *5; Emrich v. Emrich, 9 Va. App. 288, 291-295 (1989)(“trial court abused its discretion in denying the request to file [late] answer”); Arshan v. Plotnick, No. CL11-1316, Order (Williamsburg/James City County Dec. 20, 2012)(Rule 3:11); Tarpley v. City of Martinsville, 82 Va. Cir. 222, 224 (Martinsville Feb. 9, 2011)(“lack of prejudice to the opposing party and the existence of a substantial defense”); Brown’s Buick, Inc. v. Granite State Ins. Co., 78 Va. Cir. 22, 23-24 (Alexandria Oct. 29, 2008); Sanders v. Shuttle America, 75 Va. Cir. 378, 379-381 (Loudoun Aug. 15, 2008)(motion for leave granted, despite being filed after motion for default); Nauman v. Samuels, 73 Va. Cir. 411, 412-416 (Charlottesville Jul. 10, 2007)(motion for default denied where defense “counsel’s inadvertence did not cause an ‘unconscionable delay’,” despite no responsive pleading being filed for more than 5 months); Fletcher v. Inova Health Care Servs., 71 Va. Cir. 331, 331-332 (Fairfax Aug. 2, 2006); Brown v. Allen, 64 Va. Cir. 349, 351-352 (Fairfax Apr. 8, 2004)(motion for default denied despite defendant filing responsive pleading a month late and seeking leave for the same more than 2 months later); Kohl v. Amerigas Propane, Inc., 64 Va. Cir. 49, 49-52 (Madison Feb. 4, 2004)(“ends of justice” required extension, despite no “excusable neglect”); Vasquez v. Commonwealth, 63 Va. Cir. 106, 107 (Fairfax Sep. 8, 2003); Jay-Ton Constr. Co., Inc. v. Bowen Constr. Servs., Inc., 62 Va. Cir. 414, 424-436 (Portsmouth Aug. 13, 2003)(Rule 3:12, currently Rule 3:11); Jay-Ton Constr. Co., Inc. v. Bowen Constr. Servs., Inc., 62 Va. Cir. 530, 531 (Hampton Nov. 22, 2002)(Rule 3:12, currently Rule 3:11); Northland Ins. Co. v. Reichold, Inc., 58 Va. Cir. 271, 273 (Portsmouth Feb. 27, 2002); Mack v. Starwood Hotels and Resorts Worldwide, Inc., 57 Va. Cir. 390, 392-395 (Norfolk Feb 26, 2002); Riddle v. CARS, 45 Va. Cir. 236, 238-239 (Rockingham Mar. 26, 1998)(default judgment set aside and late responsive pleading permitted for “ends of justice”); Grant v. Doe, 31 Va. Cir. 254, 255 (Louisa Jul. 1, 1993)(default judgment set aside and late responsive pleading permitted); Richardson v. Wheeled Coach Corp., 20 Va. Cir. 458, 459 (Loudoun Aug. 21, 1990); Parker v. 900 East Marshall Street Assocs., 17 Va. Cir. 426, 427-428 (Richmond Dec. 6, 1989); Consolidated Healthcare, Inc. v. Overseas Partners, Inc., 14 Va. Cir. 241, 241-242 (Henrico Dec. 27, 1988); Chittum v. Chittum, 4 Va. Cir. 280, 282-283 (Frederick Apr. 4, 1985)(“interest of justice”); Greene v. Smith, 4 Va. Cir. 488, 489-490 (Sep. 25, 1979)(“ends of justice” permitted filing responsive pleading almost 1 year late)(Stephenson, J.); and Standard Farms, Inc. v. Alexander, 4 Va. Cir. 463, 463-464 (Augusta Jan. 31, 1978)( “permitting late filings would ends of justice”)(Stephenson, J.). Judge Stephenson’s opinions granting late pleadings for “justice” in Standard Farms in 1978 and in Greene in 1979 undercut Plotnick Defendants’ attempted reliance on his earlier adverse decision in 1976 in Nida v. Hooker, 4 Va. Cir. 430 (Allegheny Nov. 29, 1976). Indeed, a circuit court’s exercise of discretion may be improper if it limits late responsive pleading. E.g., Westfall v. Westfall, 196 Va. 97, 100-105 (1954)(error for circuit court to impose condition on party filing responsive pleading 8 months late where it had not “delayed the progress of the case”).

Nonetheless, Plotnick Defendants in the Arshan wrongful death suit cite the Court of Appeals’ 1989 opinion in Emrich (which granted leave for late pleading) and several random circuit court decisions. Plotnick Defendants ignore the Court of Appeals’ 2007 opinion in Lennon, which explains that Emrich’s list of “several ‘circumstances which support the exercise of discretion to extend the time of filing’,” however, “clearly … is not exhaustive or necessarily determinative; the application of the rule ‘rests within the sound judicial discretion of the trial court, it being impossible to lay down a rule which will be binding in all cases’.” Id. (quoting Eagle Lodge v. Hofmeyer, 193 Va. 864, 870, 71 S.E.2d 195, 198 (1952)).” 2007 Va. App. LEXIS 475, *4 (emphasis added).

The decision in Executive Homes Realty Corp. v. Mathews, 38 Va. Cir. 486 (Williamsburg/James City Mar. 27, 1996), cited by Plotnick Defendants, is readily distinguishable and inapposite on the facts. Unlike Plaintiff in the Arshan medical malpractice case, the late party in Executive Homes never filed a late reply - or even sought leave to do so - and instead simply let their delinquency unto default be decided against them on summary judgment. Id. at 490-491.

Likewise, Spradling v. W.O. Grubb Steel Erection, Inc., 61 Va. Cir. 607, 608 (Newport News Mar. 11, 2002), also cited by Plotnick Defendants in the Arshan wrongful death lawsuit, similarly is distinguishable and inapposite for the delinquent party never filing a late reply or even seeking leave to do so. More fundamentally, the Court in Spradling explicitly stated that the point of dicta cited by Plotnick Defendants at bar was “moot”. Id.

Bates v. Merritt, 83 Va. Cir. 134, 135-136 (Loudoun Jun. 29, 2011), additionally cited by Plotnick Defendants, is distinguishable and inapposite on the facts too. Unlike Plaintiff in the Arshan medical malpractice case, plaintiff in Bates did not request an extension, plus violated an existing Court Order that set a deadline for filing an Amended Complaint. Id.

Notably, the defense Memorandum in Opposition to Plaintiff’s Motion for Leave to Extend filed in the Arshan wrongful death case on December 17, 2012, may be used against LeClair Ryan in the future. If one of its Defendant clients fails to file a timely pleading in response to a Complaint, Counterclaim and/or Cross-claim, then Ms. Hague's Memorandum in Opposition would be good authority for entry of a default judgment instead of an extension of time.

Finally, the Arshan Court also overruled Plotnick Defendants’ Demurrer re punitive damages, finding Plaintiff sufficiently pleaded his wrongful death claim that Plotnick Defendants’ conduct was “so reckless as to evince a conscious disregard for the safety of others”. See, Va. Code Ann. §8.01-52; Virginia Model Jury Instruction No. 9.105 (Punitive Damages: Death by Wrongful Act); and Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128, 144 (1992). The Court also granted Plotnick Defendants’ Demurrer to Plaintiff’s “negligent retention” claim and Amended Complaint Paragraph 24(N); granted in part (in light of its ruling on “negligent retention”) and denied in part their Motion to Strike; and found moot Defendants’ Motion to Sever the "negligent retention" claim.

On December 14, 2012, The Daily Press headlined “Jury awards #3.5M to woman, 87, who fell” and www.dailypress.com headlined “NN jury makes $3.5 million award to 87 year-old.” The identical articles cover Mr. Waterman’s recent patient fall trial, Burrell v. Riverside Hospital, Inc., No. CL1101633F-15 in the Circuit Court for the City of Newport News, Virginia.

The Daily Press quoted Mr. Waterman re his sizeable favorable verdict for the 87 year-old: “It’s vindication that the elderly aren’t throwaways.” Historically, there has been a defense mindset that medical malpractice cases involving older victims are not worth much.

The Daily Press also quoted Mr. Waterman about the magnitude of the patient fall problem beyond Riverside. “It happens in hospitals and nursing homes in every health system. It’s a chronic problem in every state nationwide. It’s rampant.”

Riverside’s Risk Manager declined The Daily Press’ interview request about the patient fall case. Instead, Riverside issued a prepared statement, expressing disappointment with the $3,500,00.00 jury award, considering its appeal options, and extolling its quality.

The Daily Press article recounts the preventative measures that should have been used by Riverside for its victim in-patient: (1) relocating the patient closer to the nurse’s station; (2) using a bed alarm; (3) using a sitter; and (4) using soft restraints, like a posey vest. It recounts further that some nurses do not like using bed alarms because of “false positives,” but quotes Mr. Waterman that “some false positives are a worthwhile inconvenience” toward avoiding such serious personal injuries and even wrongful death.

The Daily Press highlighted Mr. Waterman calling 8 highly-credentialed experts among his more than 40 witnesses and him using new key technology to demonstrate the victim’s brain injury, including 3.0 Tesla MRI with its cutting-edge Diffusion Tensor Imaging (“DTI”) and NeuroQuant Analysis. Additionally, it marqueed Mr. Waterman’s reliance on his 2006 Virginia Supreme Court decision against Riverside - Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006) - to introduce into evidence 4 “incident report” documents containing factual information of patient care that was not entered in the patient’s chart by Riverside personnel.

In Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F15 in Circuit Court for the City if Newport New, Virginia, the deadline for filing post-trial motions is December 14, 2012. In anticipation of Defendant Riverside appealing versus paying Mr. Waterman’s client the statutory medical malpractice “cap” of $1,800,00.00, Plaintiff is filing Motion for Recovery of Costs and Motion to Set Appeal Bond.

If Defendant Riverside does notice an appeal, the patient fall victim will cross-appeal against Riverside and Co-Defendant, Nurse Melanie Ames. Plaintiff’s appellate grounds will feature “first impression” questions such as the admissibility of Riverside’s restraint policy, its fall protocol, and its bill write-off as evidence.

Mr. Waterman has been invited to speak at AAJ’s Seminar on Winning Medical Negligence Cases with Rules of the Road in Scottsdale, Arizona, during March 8-9, 2013. The seminar is based on Rule of the Road (2d ed.) authored by CLE organizer, Patrick Malone, and Rick Friedman.

This morning in Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., Case No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia, a jury awarded Mr. Waterman’s 87 year-old client $3,500,000.00 against Riverside Hospital, Inc. for her in-patient fall. For liability, Riverside relied on Nurse Janet Willersdorf of MCV; and for causation on Dr. Joel Bowers of Providence Hospital in DC.

In the Burrell medical malpractice trial, Mr. Waterman introduced cutting-edge 3.0 Tesla MRI, its "fractional anisotropy" a/k/a Diffusion Tensor Imaging ("DTI"), and NeuroQuant Analyisis. The Burrell jury verdict more than doubles Mr. Waterman’s 2005 Newport News jury verdict of $1,600,000.00 against Riverside Hospital, Inc. for another patient fall victim, which culminated in a landmark opinion of the Virginia Supreme Court, Riverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006).

In the medical malpractice case of McKinney v. Virginia Assocs., P.C., No. 111869 (Sep. 14, 2012), the Virginia Supreme Court interpreted Va. Code Ann, 8.01-229(E)(3) and 8.01-380. A survival action filed within six months of non-suit of a wrongful death action was held timely. Id. at *7.

McKinney found that the underlying “cause of action was the defendant’s alleged medical malpractice resulting in injury to the decedent.” Id. at *6. “From this cause of action, two rights of action arose: (1) the decedent’s right to bring an action for personal injury during his lifetime, which survived to be carried on by his personal representative after his death, and (2) the personal representative’s right to bring an action for wrongful death.” Id.

Upon rehearing of John Crane, Inc. v Hardick, No. 101909 (Sep. 14, 2012), the Virginia Supreme Court reinstated a $2,000,000.00 damages award for pre-death pain and suffering. The award was by a Newport News Circuit Court jury in an asbestos wrongful death case handled by the asbestos lawyers in Mr. Waterman’s firm, Patten, Wornom, Hatten & Diamonstein.

The Trial Lawyer, a magazine for trial lawyers and a voice for justice, features an article concerning brain injury. It is “Pradaxa: The Less Effective, More Dangerous Alternative to Coumadin.” The subheading is, “Pradaxa is revealing itself as less effective and disturbingly more dangerous than advertised.” Id. at 133.

Pradaxa presents the special case of product liability litigation against a national pharmaceutical drug manufacturer. “A second explanation for the severity and number of the adverse events is the fact that, unlike Coumadin, Pradaxa has no reversal agent or ‘antidote’.” Id. at 134.

On November 9, 2012, Circuit Court for Gloucester County, Virginia, denied the written Motion of American Home Assurance Company to substitute for it a related insurer, Illinois National Insurance Co.; and instead accepted Mr. Waterman's opposition argument that Illinois National simply should be added to the vehicle crash litigation. The personal injury case is Lyles v. Calloway, No. CL 10000070.

For the Enterprise company truck being driven by Plaintiff, Illinois National issued Plaintiff's employer a $1,000,000.00 commercial fleet policy effective April 1, 2007, which was amended by the endorsement of American Home Assurance effective February 11, 2008, shortly before the Lyles vehicle collision in Gloucester, Virginia. Plaintiff also has $50,000.00 of underinsured motorist ("UIM") coverage through his own personal auto insurer, Progressive Gulf Insurance Co.

Liability is apparent and Plaintiff's vehicle accident-related past medical expenses already exceed $155,000.00. Hence the offending motorist's auto liability insurer, Victoria Insurance, already has tendered it Virginia minimum coverage limits of $25,000.00 in Lyles.

On November 12, 15 and 19, 2012, first, second and third Final Pre-Trial Conferences were held in Shirley Frazier Burrell v. Riverside Hospital Inc., No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia. That lawsuit arising from a serious patient fall in 2006 finally will be tried before a jury during November 26-December 7, 2012.

At first FPTC on November 12th, the Court among other things ruled that Defendants’ expert, Nurse Willersdorf, could testify about bed alarms even though she asserts not having used any within a year of the medical malpractice alleged in Burrell. Much more significantly, the Court in Burrell followed the Virginia Supreme Court’s landmark opinion in Riverside Hospital, Inc. v. Johnson, 262 Va. 518 (2006) (“Riverside I”) and denied Defendant Riverside’s motion to exclude the “factual information of patient care” that it segregated from the patient chart in its claimed “peer review” records, including Plaintiff’s Exhibit No. 3 2/17/06 Midas “Unwitnessed Fall” Incident Report and 3/14/06 Midas “Additional Surgery” Incident Report; Plaintiff’s Exhibit No. 4, 2/16/06 Falls Abstraction Data Tool; Plaintiff’s Exhibit No. 11, 2/17/06 Procedures/ Practices Quality Care Control Report (“QCCR”); and Plaintiff’s Exhibit 30, 3/7/08 #67606 Summary Report Quality Management System (“QMS”) Printout, 6/28/06 #460610 Surgical Quality Patient Care (“QPC”) Committee Minutes, and 9/27/06 #460610 Surgical Quality Patient Care (“QPC”) Committee Minutes.

At second FPTC on November 15th, the Court in Burrell again followed the Riverside I patient fall case, overruled Riversides motion to exclude, and ruled that Plaintiff was entitled to introduce as “corroboration” of her nursing experts’ opinions that independently establish the prevailing “standard of care” (“SOC”) various materials taught to nursing students at Riverside’s own School of Health Careers, in addition to materials taught to nurses by Riverside in its hospital orientations, skills fairs, in-services, computer-based learning (“CBL”) and/or preceptorships. Those Riverside materials include, but are not limited to, Plaintiff Exhibit No. 39, 2003 nursing textbook from Riverside’s own School of Practical Nursing (L.P.N); Plaintiff’s Exhibit No. 47, 2003 nursing textbook from its own School of Professional Nursing (R.N.); Plaintiff’s Exhibit No. 33, JCAHO Prep 2004 CBL; Plaintiff Exhibit No. 36, Riverside’s “Patient Restraints,” CBL and; Plaintiff Exhibit No. 38, Riverside’s “Patient Safety Goals 2006”.

Additionally, the Court in the Burrell medical malpractice lawsuit yet again followed Riverside I, in which a Newport News jury awarded $1,600,000.00, overruled Riverside’s motion to exclude, and ruled Plaintiff also was entitled to introduce as “corroboration” of her independently-established nursing SOC opinions 3 hospital-wide policies of Riverside, 1 of which included a hospital-wide protocol. Those Riverside policies in Burrell are Plaintiff’s Exhibit 17, 4/04 Policy #01-01 “Patient Care Documentation”; Plaintiff’s Exhibit 18, 7/19/04 Policy #235 “Restraint Seclusion”; and Plaintiff’s Exhibit 19, 8/05 Policy #231 “Fall Prevention,” which includes “Risk Assessment” and “Precaution Protocol”.

Moreover, the Court in Burrell once again followed Riverside I, overruled Riverside’s motion to exclude, and held Plaintiff was entitled to introduce inter alia the incident report and Risk Manager’s testimony from Riverside I as “notice,” if improbably Plaintiff’s claim for punitive damages survives in Burrell; provided, however, that Plaintiff cannot mention punitive damages in opening, and any punitive damages evidence will not be admitted until after Plaintiff’s nursing SOC experts have testified. Plaintiff’s nursing expert testimony in Burrell is expected to be that Defendants’ alleged medical malpractice of not using a bed alarm, a sitter and/or soft restraints for the safety protection of high fall risk patient was a “wide deviation” from Virginia’s SOC, that it was “blatant” and a “no-brainer”.

Further, Riverside in Burrell was unsuccessful in trying to exclude substantial testimony of 5 Plaintiff retained experts. With little or no change, however, Nurse Cheeley of Chesterfield, Dr. Trieshmann of Hampton VA, Dr. Evans of UVA, Nurse Levin of Mass General, and Dr. Parvizi of Rothman Institute are permitted to testify at the Burrell patient fall trial as they had in their depositions.

Finally, at third FTCP on November 19th, in response to Riverside seeking “clarification” of the prior week’s medical malpractice rulings, the Court in Burrell reiterated the admissibility of Riverside’s 3 policies as “corroboration” and, subject to Plaintiff presenting a prima facie case of punitive damages, of Riverside I evidence as “notice” to Riverside. Notably the Court accepted the parties’ stipulation admitting cutting-edge NeuroQuant Analysis into evidence.

Tayloe Associates of Norfolk, Virginia (www.tayloeassociates.com) reported all 3 Final Pre-Trial Conference, plus other aspects of this patient fall case. Happy Thanksgiving!

The Richmond-based 349-lawyer 21-office law firm of LeClair Ryan, a professional corporation, is representing the Defendants in Mr. Waterman’s medical malpractice case for a patient fall victim, Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia, which is scheduled for 2-week jury trial during November 26-December 7, 2012. The law firm of LeClair Ryan also is representing Defendants in Mr. Waterman’s medical malpractice claim of patient wrongful death, Myron M. Arshan, Executor of the Estate of Sharon Lorrie Britt, Deceased v. Stephen E. Plotnick, M.D., et al., No. CL11-1316 in Circuit Court for the City of Williamsburg, Virginia, a primary Defendant of which is a doctor who lost his Virginia medical license.

On November 15, 2012, Tracy T. Hague, Esq. of LeClair Ryan served on Mr. Waterman in the Arshan wrongful death case 143 Requests for Admission plus a supplemental Interrogatory demanding details for any Request not admitted, and on November 16, 2012, she also served on him in Arshan Amended and Additional Requests for Admission; Responses and Answers to all of which are due at the end of Mr. Waterman’s trial with LeClair Ryan in Burrell. Under these disruptive circumstances, today Mr. Waterman is seeking from Ms. Hague of LeClair Ryan a 3-week extension of time to respond to her numerous discovery requests in the Arshan medical malpractice lawsuit simply to cover his 2-week jury trial in Burrell and his final pre-trial preparation during Thanksgiving holiday week beforehand; otherwise, Mr. Waterman will be forced to move the Arshan Court in Williamsburg for emergency relief, which Motion may have to be heard during his Burrell jury trial in Newport News with LeClair Ryan.

November 20, 2012, postscript: Mr. Waterman filed Plaintiff’s Motion for Extension of Time and for Emergency (Telephonic) Hearing in the Arshan wrongful death case. Shortly thereafter, Ms. Hague of LeClair Ryan agreed to the requested extension of 21 days after Mr. Waterman’s medical malpractice trial with LeClair Ryan in Burrell is scheduled to end.

On November 9, 2012, dailypress.com headlined: “Lawsuit filed in death of elderly Gloucester woman”. It reports the $4,450,000.00 medical malpractice suit filed by Mr. Waterman on November 5, 2012, Case No.: CL12000440-00 in Circuit Court for Gloucester County, Virginia, captioned Patrick Lee Cherrie, Administrator of the Estate of Gerda A Harvey, Deceased, v. Virginia Health Services, Inc., d/b/a Walter Reed Convalescent & Rehabilitation Center, Long Term Care of Tidewater, P.C. and Raina Winfrey, M.D.

The article recounts how the Defendants’ “high onto extreme” fall risk patient suffered a brain injury that proved to be fatal the 3rd time she fell in only 4 days. Defendants in Cherrie failed to give the victim the safety protection of a “bed alarm” – a highly effective pressure-sensitive system for beds and chairs – until after she suffered the fatal brain injury.

The Daily Press quoted Mr. Waterman, “It’s what they should have done previously, and not after the third [patient] fall.” Defendants in Cherrie also failed to move the victim closer to the nurse’s station after her 1st and 2nd falls.

The Daily Press notes that it was not able to get through to, or to hear back from, the corporate office of Virginia Health Services, Inc. for comment re its impending Cherrie newspaper coverage. Virginia Health Services is owner of the nursing home, Walter Reed Convalescent & Rehabilitation Services.

Defendants in the Cherrie wrongful death lawsuit have refused to turn over their complete incident reports for each of the 3 falls, providing only substantially redacted versions to the patient’s Estate Executor. Hence Mr. Waterman will issue a Subpoena Duces Tecum for the same, and seek enforcement vis-à-vis any “factual information of patient care” withheld by Virginia Health Services d/b/a Walter Reed.

In the patient fall case of Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15, in Circuit Court for the City of Newport News, Virginia, Plaintiff’s orthopaedic surgeon was her attending physician during her Riverside hospital stay. He performed her initial and her repair orthopedic surgeries under general anesthesia and followed her before, during, and after the same.

That treating orthopaedic surgeon is designated as a medical malpractice expert in Burrell, in addition to what is stated in his chart entries. But Defendants do not want him telling the jury that his own “post-fall repair surgery worsened her pre-existing neurological [acute stroke] problems.”

Defendants in Burrell cite CNH Am., LLC v. Smith, 281 Va. 60, 68 (2011) and Tazewell Oil Co. v. United Virginia Bank, 243 Va. 94, 110 (1992). Both of those cases – which do not involve a medical doctor or even medical causation – are distinguishable from the particular patient fall facts at bar.

In Tazewell, the Virginia Supreme Court upheld qualification of an expert in “troubled businesses,” but not the “banking industry” with which he was not even “familiar generally”; and it is unclear whether that distinction in qualification really limited the parameters of his testimony versus simply his stature/weight before the jury. id.; which differs from what Defendants seek in the Burrell medical malpractice case. In CNH, the Court rejected an individual with only some experience in mining industry hydraulic systems testifying as manufacturing and design expert re agricultural disc mowers, where he “admitted that he was not an expert in the hydraulic systems of mowers and had no experience in the design or manufacture of mowers or any other agricultural equipment [and] lacked specific expertise in the hydraulics of disc mowers and was unfamiliar with the hydraulic system of this mower.” 281 Va. at 68.

For Defendants’ CNH quotation in Burrell (“expert’s qualifications must correlate to the opinions for which the expert is being offered”), see, Defendants’ Memorandum at 4; CNH cites as its authority, King v. Sowers, 252 Va. 71, 78 (1996). Unlike CNH or Tazewell, King actually is on point with the matter sub judice and favorable to the patient fall victim at bar, upholding a pathologist’s testimony about his radiological interpretation and rheumatological diagnosis - despite him admittedly not being an expert in the fields of radiology or rheumatology:

"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.” *** 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).

Consistent with the patient fall position in Burrell, Lo v. Burke, 249 Va. 311, 318 (1995) and Butler v. Greenwood, 180 Va. 456, 462 (1942) uphold qualification of “orthopedic surgeon” and “general surgeon”. “[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.” Id. (emphasis added) (“orthopedic surgeon…was permitted to answer a hypothetical question touching the brain condition of Mr. Greenwood,” who “was under the care of another doctor”).

Analogously to the medical malpractice Plaintiff in Burrell, the Lo Defendant argued “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.” 249 Va. at 318 (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).

Thomas v. Builders Transp., Inc., 28 Va. Cir. 93, 95 (Amherst Apr. 3, 1992) also is on point with the Burrell patient fall victim’s position: “the 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.” Id. (emphasis added).

Hollingsworth v. Norfolk So. Ry. Co., 279 Va. 360, 364 (2010) holds “a medical doctor is qualified to give expert testimony about the cause of human physical injury.” Supporting Plaintiff’s medical malpractice experts’ opinions in Burrell, the Virginia Supreme Court has “never required positive proof by scientific testing to establish a factual basis for medical diagnosis and opinion.” Bussey v. E.S.C. Restaurants, Inc., 270 Va.531, 537-538 (2005) (emphasis added)(“lay testimony is admissible to prove proximate causation” and “the lay testimony coupled with the doctor’s diagnosis was sufficient to support the jury verdict”).

Unlike the Tazewell expert who was not “familiar generally” with the banking industry or the would-be CNH expert who was not experienced with the product or its industry, Plaintiff’s treating orthopaedic surgeon in the Burrell patient fall lawsuit is very familiar and experienced with Plaintiff and her procedures/conditions at the pertinent time. Indeed, as her admitting physician, her attending physician, her orthopedic surgeon, and her prior orthopedic surgeon (for the identical procedure on the other hip in 2000), he clearly was the medical doctor most familiar, experienced and involved with Plaintiff, her procedures/conditions and various interactions during February 14-22, 2006.

In person on October 18, 2012, and by telephone on November 6, 2012, the Court heard Plaintiff’s Motion to Enforce Subpoenas Duces Tecum, VCU Health System’s Objections and Response to Subpoena Duces Tecum, and Defendants’ Motion to Quash Subpoenae Duces Tecum in the patient fall lawsuit of Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., CL1601633F-15 in Circuit Court for the City of Newport News, Virginia. It made two rulings favorable to Mr. Waterman’s client.

First, the Burrell Court ordered, pursuant to Va. Sup. Ct. R. 4:5(b)(4)(A)(iii), that medical malpractice Defendants’ expert, Nurse Janet Willersdorf (who claimed that MCV/VCU’s Orthopaedic Unit did not have any “bed alarms” until 2009), had to respond to Sections I (B) and II (D) of her Subpoena Duces Tecum as modified to “bed alarms/alerts”. Second, the Court ordered pursuant to Va. Sup. Ct. R. 4:9(A) that non-party, VCU Health System, had to respond to Section D of its Subpoena Duces Tecum as modified to “bed alarms/alerts,” but only with responsive materials applicable to its Orthopaedic units on an individual and/or hospital-wide basis, i.e., MCV/VCU’s 10-page hospital-wide Fall Prevention Policy/Falling Star Protocol and its 6 pages of orientation training text booklets from its Orthopaedic Unit employee files.

MCV/VCU’s hospital-wide Fall Prevention Policy/Falling Star Protocol was effective in 2003 into at least 2006. Notably, it references use of “bed alarms” for high risk individuals to avoid having patient fall victims.

At discovery hearing on November 5, 2012, the Circuit Court for the City of Newport News, Virginia, granted the patient fall victim’s Motion to Compel against Defendant, Riverside Hospital, Inc., in Shirley F. Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15. Since August, 2012, Riverside had resisted tendering for Va. Sup. Ct. Rule 4:5(b)(6) deposition its corporate representatives most knowledgeable about exemplar bed with bed-alarm, posey-vest, and wrist restraint.

The disabled medical malpractice Plaintiff in Burrell seeks $10,350,000.00 in damages for Riverside’s alleged failure to assess and intervene properly for the high fall risk patient. Two-week jury trial is scheduled to begin November 26, 2012.

In Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia, the patient fall victim suffered broken femur, head injury, and disabling stroke due to allegedly substandard fall risk assessment and intervention by her nurses at Riverside Regional Medical Center. Pre-trial, Riverside moves to keep from the jury the fact that it wrote off the portion of its billing that Tricare refused to cover because of it suspected third-party (Riverside) liability - which write-off under the circumstances the patient argues is an admission of liability or against interest by Riverside.

Riverside’s write-off of Plaintiff’s balance for the hospitalization at issue was subject of Rule 4:5(b)(6) deposition by Riverside’s two most knowledgeable persons: RHS Risk Manager, Joann Friend; and Patient Accounting Manager, Deborah Gressett. Identified in their medical malpractice depositions were Riverside Deposition Exhibits 1 and 2.

Riverside Dep. Ex. 1 is 2/14-22/06 Statement for $75,036.08 (Bates-stamp nos. 77–83), and 10/27/06 RHS Authorization to Charge to Risk Management for $1234.00 (Bates-stamp nos. 84–85). Riverside Dep. Ex. 2 is 10/27/06 QMS Transaction # 68137 Summary Report re the write-off for the patient fall.

On March 13, 2006, Medicare payments/adjustments of $73,802.08 left a balance due of $1,234.00. On May 12, 2006, Plaintiff’s secondary coverage, Tricare, denied the remaining claim for $1,234.00 “due to lack of response of [sic] the third party liability questionnaire” vis-à-vis medical malpractice; and Plaintiff was referred to Ms. Gressett.

Tricare’s Third Party Liability Questionnaire is “a form that Tricare is sending to the patient, questioning whether there’s other liability involved.” See, Gressett at 8.4–6. In this patient fall case, the other third party liability is Riverside’s liability as Plaintiff claimed.

On October 27, 2006, while still facing the medical malpractice specter of Tricare’s Third Party Liability Questionnaire (256 days after the patient’s fall), Defendants’ Risk Manager unilaterally “waived” internally the $1,234.00 remaining unpaid. See, e.g., Friend at 13. Patient Accounting implemented the Risk Manager’s Authorization, resolving the third party liability issue with Tricare. See, Gressett at 8-9

Defendants’ Risk Manager admits that all Riverside write-offs do not come from Risk Management. See, Friend at 21. She also admits that some of her write-offs are for medical malpractice “errors”. Id. at 19.

After-the-fact, Defendants’ Risk Manager frames it that by her unilateral internal write-off she was “hoping that maybe we could mitigate some of [Plaintiff’s family] anger or convince them maybe not to sue us.” Id. at 14. But the fact is that Defendants’ Risk Manager never ever communicated with the patient or her family, e.g., id. at 15; that Defendants’ QMS Summary Report indicated the “$1,234 WAIVED FOR … FALL/ FX,” [fracture], i.e., patient fall and resulting fracture; and that no documentation has any indication of the ostensible “expression of sympathy” now claimed.

A. ADMISSION OF LIABILITY

Defendants fail to cite its counsel’s pre-statute case on point with undersigned counsel, upholding the admissibility of unilateral write-offs, Schuster v. Posner, No. LA-134-3 (Richmond Mar. 24, 1997). In another medical malpractice suit, Richmond Circuit Court 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.

Also, in 2011 the post-statute medical malpractice case of Marshall v. Moniz, No. CL08-2018 in Circuit Court for York County, Virginia, held the defendants’ write-off and no-charge were admissible. Both were admitted at trial and plaintiff was entitled to argue they were admissions of liability.

B. EXPRESSION OF SYMPATHY

Va. Code Ann. §8.01–581.20:1, the “expression of sympathy” statute, provides:

"In any civil action brought by an alleged victim of an unanticipated outcome of health care, or in any arbitration or medical malpractice review panel proceeding related to such civil action, the portion of statements, writings, affirmations, benevolent conduct, or benevolent gestures expressing sympathy, commiseration, condolence, compassion, or a general sense of benevolence, together with apologies that are made by a health care provider or an agent of a health care provider to the patient, a relative of the patient, or a representative of the patient, shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest. A statement of fault that is part of or in addition to any of the above shall not be made inadmissible by this section."

On its face, §8.01–581.20:1 does not apply to this patient fall case on 2 independent grounds.

First, there is nothing in the medical malpractice matter sub judice “expressing sympathy, commiseration, condolence, compassion, or a general sense of benevolence.” Second, nothing at bar was “made by a health care provider to the patient, a relative of the patient, or a representative of the patient.”

Moreover, on the particular facts of this patient fall case, §8.01–581.20:1 does not apply either. Faced with Tricare’s insurance coverage denial and the specter of Riverside’s “third party liability” – 256 days after its medical malpractice – Defendants’ Risk Manager quietly ponied up for the remaining costs of patient’s fall, did not express any sympathy to anyone, and did not even communicate with patient or family.

Under the circumstances, that constitutes an admission of medical malpractice liability or against interest by Riverside. Of course, Defendants remain free to claim otherwise to the jury.

Even medical malpractice defense lawyers commenting on the then-new statute shortly after its enactment emphasized that the “expressions of sympathy” contemplated were those made “to” the patient and family.

"E. Expressions of Sympathy

The effect of a health care provider's apology to a patient is a topic of much debate in both the legal and medical communities. The Veteran's Administration Hospital in Lexington, Kentucky adopted a novel disclosure policy concerning possible negligence, including requirements to notify patients of potential problems with their care and to hold face-to-face meetings with patients and their families to fully disclose all aspects of these problems. Several states have taken legislative approaches to this issue, enacting laws that provide civil immunity for those health care providers who express sympathy and benevolence to their patients. ***

Virginia is following the trend; health care providers in the commonwealth can now say "I'm sorry" to patients without fear of these sentiments being construed as an admission of liability at trial. The Virginia General Assembly incorporated into the Medical Malpractice Act a section focused solely on expressions of sympathy by health care providers. Virginia Code section 8.01- 581.20:1 provides that any ‘statements, writings, affirmations, benevolent conduct, or benevolent gestures expressing sympathy, or general sense of benevolence’ made by a health care provider are inadmissible as evidence of liability or an admission against interest when suit is brought against the health care provider by the patient to whom such expressions of sympathy were made."

Kathleen M. McCauley and Dana A. Dews, “Annual Survey of 2006: Medical Malpractice Law,” 41 U. Rich. L. Rev. 231, 243-244 (2006)(emphasis added).

A cornerstone of Plaintiff’s medical malpractice claim in Burrell v. Riverside Hosp., Inc., No. CL11-01633F-15 in Circuit Court for the City of Newport News, Virginia, is Riverside’s failure to use a “bed alarm” for the high fall risk patient. Use of a “bed alarm” is one of the relevant medical procedures per Plaintiff’s specific allegation in her Complaint at Paragraph 11 (B and C); specific itemizations in her Expert Designations; and repeated specifications in her experts’ depositions, including particularly that use of a “bed alarm” was the necessary first step preceding use of a sitter and/or restraint.

For the 2000 patient fall in Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2005), Riverside similarly resorted to a nursing expert who claimed very limited exposure to “bed alarms,” toward undercutting them as standard of care: according to Nurse Vickers, her supposed “limited personal experience with bed alarms was [her] hospital finally getting around to trying [portable] bed alarms,” which “might have been in 1999”. Appeal Appendix at 2859. But Plaintiff successfully moved in limine to limit Vickers’ testimony because she thereby was “not qualified to testify on bed alarms”.

“The Estate argued that because Vickers had not had experience in activating bed alarms, she did not fulfill the active clinical practice requirement for a testifying expert. Code §8.01-581.20,” recounted the Virginia Supreme Court in the 2006 Riverside v. Johnson patient fall appeal. The trial court agreed with the Estate and allowed Vickers to testify about fall-risk assessment and fall-risk intervention measures other than bed alarms.” Id. at 534.

At deposition in the current Burrell v. Riverside case, Nurse Willersdorf, who has worked full-time at VCU/MCV for decades, testified that VCU/MCV in general and her Orthopaedic and its other units in particular (except possibly for its ICU) had no “bed alarms” until 2009. Hence by her own account, Nurse Willersdorf has not had any “active clinical practice” in “bed alarms” anywhere close to 1 year of Riverside’s 2006 medical malpractice.

As Johnson briefed to the Virginia Supreme Court in Riverside patient fall case, this Court determines “whether a proffered expert witness satisfies the active clinical practice requirement by referring to the ‘relevant medical procedure’ at issue in a case.” Hinkley v. Koehler, 269 Va. 82, 89 (2005)(citing §8.01-581.20). “‘Actual performance of the procedures at issue’ must be read in the context of the actions by which the defendant is alleged to have deviated from the standard of care.” Id. (emphasis added).

If a proffered expert has an active clinical practice in most, but not all, of the procedures at issue within one year of the duty breaches, a motion to disqualify as to the unproven procedure should be sustained before medical malpractice trial. Hartman v. Kleiner, 69 Va. Cir. 246 (2005). “The question whether a witness is qualified to testify as an expert is ‘largely within the sound discretion of the trial court’. * * * A decision to exclude a proffered expert opinion will be reversed on appeal only when it appears clearly that the witness was qualified.” Perdieu v. Blackstone Family Practice Ctr., Inc., 264 Va. 408, 418 (2002)(emphasis added).

Since the landmark Riverside v. Johnson decision, Virginia Supreme Court and Federal Court alike have reaffirmed the “active clinical practice” requirement. E.g., Workman v. Baker, 2010 U.S. Dist. LEXIS 110022 (W.D.Va. Oct. 13, 2010)(Virginia law); Jackson v. Qureshi, 277 Va. 114, 124-125 (2009); and Lloyd v. Kime, 275 Va. 98, 110-111 (2008). That disqualifies Nurse Willersdorf from testifying vis-à-vis “bed alarms” in the pending Burrell v. Riverside patient fall lawsuit.

Lloyd reiterated: “The purpose of the requirement in §8.01-581.20 that an expert have an active practice…is to prevent testimony by an individual who has not recently engaged in the actual performance of the procedures at issue;” and “[T]he term ‘actual performance of the procedures at issue’ must be read in the context of the actions by which the defendant is alleged to have deviated from the standard of care.” 275 Va. at 110 (emphasis added). The Lloyd medical malpractice opinion affirmed that plaintiff’s expert “was not qualified to testify as an expert witness on standard of care as to Lloyd’s allegation of intraoperative negligence” because the expert had “no active clinical practice in performing spinal surgery”; despite him being qualified “as to Lloyd’s allegation of postoperative negligence”. Id. at 111.

Jackson emphasized that de minimis clinical practice of a procedure at issue does not satisfy the medical malpractice requirement of “active”: “Certainly, there may be instances when the expert’s clinical practice with regard to the medical procedure at issue is so de minimis that the witness would not meet the ‘active clinical practice’ requirement.” 277 Va. at 125. In Jackson, plaintiff’s expert performing the same sole procedure at issue in “’very similar’ clinical settings” satisfied the requirement. Id. at 124-125.

Applying Virginia medical malpractice law in Workman, United States District Court observed that it looks “both to plaintiff’s pleadings and to the allegations in her motion for judgment in order to determine that ‘the acts [plaintiff] claims form the basis of her action and violate the standard of care are medical procedures applicable’;” and that “[s]imply because the expert may be qualified to testify with regard to a medical procedure that is potentially relevant to the case at hand but not actually in dispute between the parties does not grant the court license to declare his competence on the issue.” 2010 U.S.Dist. LEXIS 110022, *18-19 (emphasis added). Workman rejected plaintiff’s argument that the particular medical procedure at issue “should be construed more broadly,” where plaintiff (like Plaintiff at bar) “targets the performance of the specific procedure, not just the general procedure which is inclusive of the specific” and, moreover, establishes a “significant medical distinction.” Id. at *20-27.

On October 25, 2012, Mr. Waterman settled a car accident claim for personal injuries of his client without having to file suit. The two-car collision occurred on Lightfoot Road in Williamsburg, Virginia, and involved residents of Toano and James City County.

The car crash victim was taken by ambulance to the Emergency Room at Sentara Williamsburg Regional Medical Center. The victim was treated by Williamsburg Emergency Physician, Tidewater Diagnostic Imaging, Ltd., Tidewater Physicians Multispecialty Group, and Sentara Medical Group.

On October 15, 2012, Mr. Waterman filed Plaintiff’s Reply Memorandum in Shirley Frazier Burrell v. Riverside Hospital, Inc. and Nurse M. Ames, No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia. Plaintiff victim in Burrell suffered a broken hip and disabling stroke following a patient fall at Riverside.

By her underlying Motion to Compel, Plaintiff seeks to depose Riverside through its most knowledgeable persons to identify the bed alarm and soft restraints customarily used by Riverside for its nursing orientation, nursing preceptorships, nursing in-services, nursing NetLearning and computer-based learning, and nursing schools as safety interventions to protect high-risk patients from falling. Plaintiff in Burrell seeks $10,350,000.00 in damages for Riverside’s alleged medical malpractice.

On October 11, 2012, Mr. Waterman filed and noticed Plaintiff’s Plea of Law of the Case, Res Judicata, and Estoppel in the brain injury case of Gregory J. Gagnon v. Travis Burns, No. CL08-572 in the Circuit Court for Gloucester County, Virginia. His Reply Memorandum filed contemporaneously distinguished all cases cited by the opposition.

Burns’ core case in the Gagnon brain injury lawsuit is Nassif v. Board of Supervisors, 231 Va. 472 (1986), which along with its cited progeny, Baumann v. Capozio, 269 Va. 356 (2005); Ford Motor Co. v. Jones, 266 Va. 404 (2003); and Virginia Elec. and Power Co. v. Westmoreland-LG&E Partners, 259 Va. 319 (2000) [“VEPCO”]; is distinguishable on multiple independent grounds. Lockheed Info. Mgmt. Sys. v. Maximus, Inc., 259 Va. 92, 106-108 (2000), which Burns minimizes, instead is more on point and controlling.

Contrary to the Gagnon brain injury suit, however, in Nassif: (1) the Defendant was victor at trial and Appellee on appeal not [liability] loser at trial and Appellant on appeal; (2) Judgment was not also entered against Co-Defendants on common issues of liability, which nobody appealed; (3) the remand was not expressly “limited”; and (4) the “law of the case” was not raised.

"The Nassif case, at most, stands for the proposition that an appellee does not have to assign cross-error to the failure of the trial court to address additional arguments in order to reassert those arguments on remand. It does not, and cannot, stand for the proposition asserted by [the loser at trial], that an appellant [like Burns] does not have to assign error to a ruling disposing of a cause of action, and if the case is remanded, can then relitigate a dispositive ruling which was not appealed. Such a proposition contradicts the doctrine of the law of the case which provides that where no assignment of error or cross-error is taken to a part of a final judgment, the judgment becomes the law of the case and is not subject to relitigation. Searles’ Adm’r v. Gordon’s Adm’r, 156 Va. 289, 294-99, 157 S.E. 759, 761-62 (1931)."

Lockheed, 259 Va. at 108 (italics in original)(underlining added)(“trial court erred in denying Lockheeds’ motion for summary judgment on its [‘law of the case’] claim”).

VEPCO, Ford and Baumann all follow Nassif and likewise are distinguishable. Like Nassif and unlike Burns, VEPCO involved only a single defendant, not Co-Defendants against whom Judgment was entered on common issues that were unappealed and are final as in the Gagnon brain injury proceedings. Also like Nassif and unlike Burns, VEPCO’s remand was not “limited”.

Indeed, quoting Nassif, VEPCO emphasized that “when we limit issues on remand we do so with words of limitation or restriction,” 259 Va. at 323 (emphasis added); and accordingly that “consideration…on remand” in VEPCO was not limited because of the “absence of such limitations” in the Virginia Supreme Court’s opinion and order. Conversely, the Gagnon brain injury action is expressly “limited” remand to new trial on “Gagnon’s gross negligence claim against Burns” - thereby leaving intact and final as the “law of the case” Gagnon’s battery claim against James, Gagnon’s simple negligence claim against Christine, and Gagnon’s simple negligence claim against Burns, including all defenses against Gagnon necessarily and actually decided, unappealed, and final.

Like Nassif, Ford involved a single defendant, not Co-Defendants against whom Judgments on common issues was entered, went unappealed and are final as in the Gagnon brain injury matter. Also like Nassif, Ford remand was not expressly “limited” as in Gagnon. [BUT SEE 263 Va. 237, 263-264]. More particularly, Ford focused on and upheld plaintiff taking a nonsuit after remand, so it specifically is in the context of that unique situation the Virginia Supreme Court observed: “After a reversal of a circuit court’s judgment and remand for a new trial, the litigants are restored to their original rights as though no previous trial had occurred, including the right to dismiss or nonsuit a case.” 266 Va. at 407.

Moreover, citing Lockheed, Ford materially qualified the foregoing principle by noting exceptions which control the Gagnon brain injury remand: “Of course, this principle does not apply to issues which, under the ‘law of the case’ doctrine, are not subject to relitigation, see, Lockheed Info. Mgmt. Systems v. Maximus, Inc., 259 Va. 92, 108, 524 S.E. 2d 420, 429 (2000), or to parties and claims already dismissed with prejudice, or otherwise eliminated from a case, prior to a nonsuit, see Dalloul, 255 Va. at 514, 499 S.E.2d at 281.” Id. (emphasis added). At 2 of his Brief, Burns cites Dalloul v. Agbey, 255 Va. 511, 514 (1998) gratuitously, out of context.

Like Nassif and unlike the Gagnon brain injury case, Baumann involved one defendant, not Co-Defendants against whom Judgment were taken and not appealed on common issues. Also like Nassif and unlike Gagnon, Baumann involved the liability victor at trial and Appellee on appeal, not a liability loser at trial and Appellant on appeal like Burns.

Hence under materially distinguishable facts, Baumann (unlike Burns) correctly cites Nassif for the proposition that its particular defendant on “remand…may assert those defenses”. 269 Va. at 361. As Lockheed delineates, however, Nassif “at most” covers a liability “appellee” not liability “appellant” like Burns, 259 Va. at 108. See, supra; plus Nassif (and Baumann) does not apply where as in the Gagnon brain injury action Judgments were entered on common issues, were not appealed, and are final.

Burns’ citation of Evans v. Evans, 280 Va. 76, 84 (2010) is strictly for a general discussion of the “doctrine of negligence per se”. Substantively, Evans does not support negligence per se going to the jury on “limited” remand under the controlling “law of the case” in the Gagnon brain injury retrial.

Gagnon emphasizes, “The ‘law of the case’ doctrine applies both to issues that were actually decided by the court, and to issues ‘necessarily involved in the first appeal, whether actually adjudicated or not’.” Miller-Jenkins v. Miller-Jenkins, 276 Va. 19, 26 (2008)(emphasis added). See also, The Partnership Umbrella, Inc. v. Federal Ins. Co., 260 Va. 123, 132 n. 5 (holding that failure to assign error on appeal “prevents relitigation of these issues on remand as they are now ‘law of the case’. Lockheed”). The assault and battery of James, the simple negligence of Christine, the simple negligence of Burns, and the contributory negligence, provocation and other supposed fault of crime victim Gagnon were in fact raised, decided, unappealed, and final by the first trial and appeal in Gagnon - hence Burns’ current ostensible fault variants vis-à-vis were “necessarily involved,” even if arguendo not “actually adjudicated” - by the “law of the case” doctrine, so cannot be relitigated, on limited remand no less.

In summary:

1. The Virginia Supreme Court in VEPCO citing Nassif pronounced “when we limit issues on remand we do so with words of limitation or restriction,” 259 Va. at 323; and the Gagnon brain injury lawsuit violates the same if it ignores the mandate that “new trial [is] limited to Gagnon’s gross negligence claim against Burns,” Burns v. Gagnon, 283 Va. 657 (2012)(emphasis added), by relitigating Gagnon’s simple negligence claim against Christine, Gagnon’s simple negligence claim against Burns and/or Gagnon’s intentional tort claim against James, or any issues thereof;

2. The Virginia Supreme Court in Ford citing Lockheed pronounced the “principle [that ‘after a reversal of a circuit court’s judgment and remand for a new trial, the litigants are restored to their original rights as though no previous trial had occurred,’] does not apply to issues which, under the ‘law of the case’ doctrine, are not subject to relitigation,” 266 Va. at 407 (emphasis added); so the Gagnon brain injury suit violates the same if it ignores that the “law of the case” doctrine controls; and

3. The Virginia Supreme Court has pronounced in Miller-Jenkins that “the ‘law of the case’ doctrine applies both to issues that were actually decided by the court, and also to issues ‘necessarily involved in the first appeal, whether actually adjudicated or not’,” 276 Va. at 26 (emphasis added); so the Gagnon brain injury remand violates the same if it ignores that James’ assault and battery, Christine’s simple negligence, Burns’ simple negligence, and all fault and defenses vis-à-vis Gagnon already have been involved and decided and cannot be relitigated on remand - remand being limited to deciding “gross negligence”.

In the brain injury case of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia, Assistant Principal Burns at his leisure typed up 3 different revised accounts of what transpired: (1) Narrative on Gregory Gagnon, B-2 to B-5; (2) Narrative on Gregory Gagnon, B-6 to B-9; and (3) Statement on December 14, 2006, Greg Gagnon incident [February 14, 2008]. B-10 to B-14. His 3 accounts comprise Exhibit 1 of Defendant Burns’ deposition on April 30, 2009.

Va. Code. Ann. 8.01-404 admittedly prohibits the use of certain prior written statements to contradict a witness. Yet the Gagnon brain injury victim relies upon recent Virginia Supreme Court interpretations of §8.01-404, which actually uphold other use and even introduction of such prior witness statements at trial. E.g., Ruhlin v. Samaan, 282 Va. 371, 378-380 (2011); Gray v. Rhoads, 268 Va. 81, 88-90 (2004).

Gray indisputably upheld the introduction of prior transcribed witness statements as “party admissions in the plaintiff’s case-in-chief” - there being “an important distinction between a party admission and a prior statement used to impeach a witness’ present testimony”. 268 Va. at 88-90 (emphasis added). While the Gagnon brain injury case was on appeal last year, Ruhlin reaffirmed Gray and even upheld using a prior transcribed statement to “refresh recollection” of a party - “the act of refreshing a witness’s recollection does not involve contradicting that witness’s testimony”. 282 Va. at 378-380 (emphasis added).

Under authority of Gray, as proof of gross negligence on remand, the Gagnon crime victim definitely requests to introduce Burns’ 3 accounts “as party admissions in the plaintiff’s case-in-chief”. Under authority of Ruhlin, Gagnon also may request to use any or all of Burns’ 3 accounts for the “act of refreshing a witness’s recollection”.

As Ruhlin explains, §8.01-404 “does not…‘prohibit the proof of prior inconsistent statements by oral testimony,’ even when such statements were reduced to writing and signed by the witness”. 282 Va. at 378. Given the multiple inconsistencies in Burns’ statements on the core gross negligence matter of what Burns knew, thought, did, and didn’t do during the 2 hour window after Diaz warned him but before Gagnon was battered, denying admission and use of this unique evidence to the Gagnon brain injury victim is reversible error under Gray and Ruhlin.

On April 4, 2012, the Circuit Court for Rockingham County, Virginia, followed the Virginia Supreme Court’s controlling decisions in Gray and Ruhlin, just as the crime victim in Gagnon seeks Gloucester Circuit Court to do. “Based on the case law discussed above, and what is currently before the Court, the Court does not find sufficient basis to exclude the recorded statement at issue in this case,” concluded Judge Lane in Richards v. Reed, 2012, Va. Cir. LEXIS 33, *6 (Rockingham Apr. 4, 2010). “While there are limitations on how the recorded statement can be used at trial, the Court will not exclude the recorded statement at this time. The parties may object during trial should any part attempt to use the recorded statement in an impermissible manner.” Id. at *6-7. Richards also denied to Motion to Sever filed by the statement’s maker. Id.

On October 4, 2012, Riverside Hospital, Inc. brought two Motions on for “emergency” telephonic hearing before the Judge in the patient fall case of Shirley Frazier Burrell v. Riverside Hospital, Inc. and Nurse M. Ames, No. CL11-1633 in the Circuit Court for the City of Newport News, Virginia. They were not well-founded, and Mr. Waterman prevailed on both Motions.

The Judge denied Riverside’s Motion to interpose one of its retained experts into Plaintiff’s case-in-chief. Riverside withdrew its other Motion to confine Plaintiff’s case-in-chief to the first week of the two-week Burrell medical malpractice jury trial, which is scheduled from November 26-December 7, 2012.

The patient fall victim in Burrell seeks $10,350,000 in damages for the broken leg and permanent debilitating stroke she sustained while under the care of Riverside and its nurses. In 2005, Mr. Waterman secured a $1,650,000 jury verdict against Riverside in another patient fall case in the same Court, which the Virginia Supreme Court upheld in Riverside v. Johnson, 272 Va. 518 (2006).

The Virginia Supreme Court remanded Mr. Waterman’s brain injury case to Circuit Court for Gloucester County, Virginia, “for a new trial limited to Gagnon’s gross negligence claim against Burns,” Burns v. Gagnon, 2012 Va. LEXIS 93, *40 (Apr. 20, 2012). But the parties have disagreed over the scope of retrial.

“Pursuant to the ‘law of the case’ doctrine, when a party fails to challenge a decision rendered by a court at one stage of litigation, that party is deemed to have waived her right to challenge that same decision during the later stages of the ‘same litigation’.” Miller-Jenkins v. Miller-Jenkins, 276 Va. 19, 26 (2008). “The ‘law of the case’ doctrine applies both to issues that were actually decided by the court, and also to issues ‘necessarily involved in the first appeal, whether actually adjudicated or not’.” Id.

“Our decisions applying the ‘law of the case’ doctrine generally have involved litigation that has proceeded in a ‘linear’ sequence to trial, appeal, trial on remand, and second appeal, all under the same set of pleadings, see, e.g., Lockheed Info. Mgmt. Sys. Co. v. Maximus, Inc., 259 Va. 92, 108, 524 S.E.2d 420, 429 (2000)(stating that issue decided in first case and not appealed was not subject to relitigation on remand); Kemp, 160 Va. at 284, 168 S.E. at 431 (holding that issues decided on appeal were binding law of case on remand),” observes Miller-Jenkins, 276 Va. at 26. “However, we have never limited that ‘law of the case’ doctrine to litigation that occurs in such sequential fashion under one set of pleadings.” id.; evincing the doctrine’s applicability to the Gagnon brain injury litigation.

“In our decision in Kondaurov, we explains that our application of the ‘law of the case’ doctrine extends to ‘future states or the same litigation’,” explained Miller-Jenkins. “Thus, when two cases involve identical parties and issues, and one case has been resolved finally on appeal, we will not re-examine the merit of issues necessarily involved in the first appeal, because those issues have been resolved as part of the ‘same litigation’ and have become the ‘law of the case’.” Id. at 26-27.

“The mandate rule, itself an application of the law-of-the-case doctrine, forecloses further litigation of issues expressly of impliedly decided by the appellate court’,” Virginia Imports, Ltd. v. Kirin Brewery of America, LLC, 50 Va. App. 395, 407 (2007); “and relitigation of matters addressed by the trial court, but not addressed on appeal.” West v. West, 59 Va. App. 225, 233 (2011). Potentially significant to the Gagnon brain injury lawsuit, “[t]he refusal of the trial court to follow the appellate court mandate constitutes reversible error”. Virginia Imports, 50 Va. App. at 207.

Finally, for example, the Gagnon crime victim avers Defendant Burns “is bound by his agreement to the jury instructions given to the jury as the law of the case.” Ulloa v. QSP, Inc., 271 Va. 72, 80 (2006). “An instruction given without objection will not be disturbed on appeal, Rule 5:25, and becomes the law of the case, governing all subsequent proceedings.” Kondaurov v. Kerdash, 271 Va. 646, 658 (2006).

Additionally, collateral estoppel is “the preclusive effect impacting in a subsequent action based upon a collateral and different cause of action. In the subsequent action, the parties and their privies are precluded by litigation any issue of fact actually litigated and essential to a valid and final judgment personal judgment in the first action.” Lofton Ridge, LLC v. Norfolk So. Ry Co., 268 Va. 377, 381 (2004)(emphasis in original). It is analogous to the Gagnon brain injury action.

Again, the damage awards were not appealed and, moreover, damages in this case are “distinctly separable” from the limited liability issue of gross negligence. Cf., Chappell v. White, 184 Va. 810 (1946). Thus, the Gagnon brain injury victim argues that all damages awarded are the “law of the case” on limited retrial. See, Northwestern Elec. Power Co-operative v. Am. Motorists Ins. Co.,451 S.W.2d 356 (Mo. Ct. App. 1969).

On September 28, 2012, Mr. Waterman argued Plaintiff’s Motion for Leave to Amend in the wrongful death suit of Arshan v. Stephen E. Plotnick, M.D., et al., No. CL11-1316 in the Circuit Court for the City of Williamsburg and James City County, Virginia. The Judge granted the Motion over the objection of Defendants, Dr. Plotnick and his PLLC, which formerly practiced medicine in Virginia Beach, Virginia.

This medical malpractice matter is controlled by Rule 1:8 of the Rules of the Virginia Supreme Court of Virginia. “Leave to amend shall be liberally granted in furtherance of the ends of justice.” Va. Sup. Ct. R. 1:8 (emphasis added).

Over 50 years ago the Virginia Supreme Court embraced its Rule’s liberality toward amendment as the modern trend, which governs the Arshan wrongful death case. “The tendency of modern decisions is reflected in our Rule”. Goode v. Courtney, 200 Va. 804, 807 (1959).

Accordingly, where as in the Arshan medical malpractice action there really is no undue prejudice or previous amendment, the amendment should be granted. E.g., Mortarino v. Consultant Eng’g Sevs., Inc. 251 Va. 289 (1996); Kole v. City of Chesapeake, 247 Va. 51 (1994). Indeed, in Gray v. Rhoads, 55 Va. Cir. 362, 377-378 (Charlottesville Jul. 2, 2001), upon dismissing claims for negligent supervision and training, sua sponte the judge granted leave to amend for claims of negligent hiring and retention.

Virginia Circuit Courts routinely grant leave to amend to further justice, this Arshan wrongful death lawsuit being no exception. E.g., Gagnon v. Burns, No. CL08-572 (Gloucester Jun. 16, 2009); Seibert v. Riverside Hosp., Inc., No. 40366-DP (Newport News Nov. 13, 2007)(medical malpractice); 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. Unlike the judge in the Arshan medical malpractice hearing, the circuit court in Mortarino 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. When asked in the Arshan wrongful death argument, Defendants could not articular any undue prejudice.

Although Plaintiff’s amendment in the Arshan medical malpractice proceeding certainly reflects very badly on Plotnick Defendants, as did the 2007 record alteration/fraud allegations against Riverside Hospital in Seibert, supra, they are not unduly prejudicial to them. Like Riverside Hospital, Plotnick Defendants have nobody to blame for their underlying misconduct or their discovery misconduct besides themselves.

The Arshan wrongful death lawsuit granting amendment is “in furtherance of the ends of justice,” as mandated. Denial of amendment denies justice.

On September 24, 2012, The Wall Street Journal (www.wsj.com) headlined “How to Stop Hospitals from Killing Us,” subtitled: “Medical errors kill enough people to fill four jumbo jets a week. A surgeon with five simple ways to make health care safer.” Authored by a doctor who trained as a surgeon at one of Harvard Medical School’s prestigious affiliated teaching hospitals, is a surgeon at Johns Hopkins hospital, and developed the surgical checklists adopted by the World Health Organization; the article exposes rampant medical malpractice - and doctors’ unspoken “code of silence” about it.

Dr. Makary elucidates that doctors “absorb another unspoken rule: to overlook the mistakes of our colleagues.” The undeniable national statistics of medical malpractice are scary: U.S. surgeons operate on the wrong body part 40 times per week, 25% of all hospital patients are victims of medical errors, and medical errors are the 6th leading cause of death in the U.S. (with 98,000 wrongful deaths annually)!

Dr. Makary recounts medical residents joke about, and institutions protect, charming “Dr. Hodad” - whose fictive last name is acronym for Dr. “Hands of Death and Destruction”. Hence the author advocates 5 “relatively simple - but crucial - reforms” to minimize medical malpractice: (1) Online Dashboards; (2) Safety Culture Scores; (3) Cameras; (4) Open Notes; and (5) No More Gagging.

On September 21, 2012, Mr. Waterman filed Plaintiff’s Memorandum in Opposition to Defendants’ Demurrers and to Defendants’ Motion to Strike, plus lodged Amended Complaint with Exhibits, in Arshan v. Stephen E. Plotnick, M.D., et al., No. CL11-1316 in Circuit Court for the City of Williamsburg and James City County, Virginia. The underlying Demurrers and Motion, Memo, and Amended Complaint concern Plaintiff’s medical malpractice claim.

Plaintiff “correctly notes that the independent tort of negligent retention is recognized in Virginia.” Niese v. City of Alexandria, 264 Va. 230, 240 (2002). “[T]his cause of action is based on the principle that an employer…is subject to liability for harm resulting from the employer’s negligence in retaining a dangerous employee who the employer knew or should have known was dangerous and likely to harm [patients],” Southeast Apartments Mgmt., Inc. v. Jackman, 257 Va. 256, 260 (1999)(emphasis added), as Plaintiff’s Amended Complaint in the Arshan wrongful death suit alleges.

As authority for negligent retention, Southeast Apartments relies upon Phillip Morris, Inc. v. Emerson, 235 Va. 380, 401 (1988). Significantly, Philip Morris holds liability for “one who negligently retains an incompetent independent contractor,” 235 Va. at 401 (emphasis added); which Dr. Plotnick may be in the Arshan wrongful death lawsuit.

Any employer, even a charitable organization, is liable “for the negligent of its employees if it fails to exercise ordinary care in the selection and retention of those employees.” Infant C. v. Boy Scouts of America, Inc., 239 Va. 572 (1990)(citing J . . . v. Victory Tabernacle Baptist Church, 236 Va. 206, 208 (1988); Hill v. Memorial Hosp., Inc., 204 Va. 501, 507 (1963); Memorial Hosp. v. Oakes, Adm’x., 200 Va. 878, 885, 108 S.E.2d 388, 393 (1959); Norfolk Prot. Hospital v. Plunkett, 162 Va. 151, 153 (1934); and Weston’s Adm’x. v. St. Vincent, etc., 131 Va. 587, 610 (1921)). Importantly, that includes a closely-held healthcare entity being liable for negligent retention of a doctor, Hazzis v. Modjadidi, 69 Va. Cir. 385, 390-391 (Norfolk Dec. 19, 2005); such as the PLLC in the Arshan medical malpractice lawsuit being liable for alleged negligent retention of Dr. Plotnick.

Numerous Virginia Circuit Courts have permitted negligent retention claims to go forward. E.g., Hazzis (medical malpractice), supra; Gray v. Rhoads, 55 Va. Cir. 362, 377-378 (Charlottesville Jul. 2, 2001); Flanary v. Roanoke Valley Soc’y for the Prevention of Cruelty to Animals, 53 Va. Cir. 134, 135 (Roanoke Jun. 26, 2000); Courtney v. Ross Stores, Inc., 45 Va. Cir. 429, 431-432 (Fairfax May 1, 1998); Tremel v. Reid, 45 Va. Cir. 364, 383-385 (Albemarle Apr. 20, 1998); Berry v. Scott & Stringfellow, 45 Va. Cir. 240, 244-247 (Norfolk Mar 27, 1998); and Johnson-Kendrick v. Sears, Roebuck & Co., 39 Va. Cir. 314, 319-321 (Norfolk May 31, 1996). In fact, this Honorable Court was one of the earliest ones to do so. Doe v. Bruton Parish Church, 42 Va. Cir. 467, 481-482 (Williamsburg/James City County Jul. 10, 1997).

Sitting in this Honorable Court by special designation of the Virginia Supreme Court in Doe v. Bruton Parish Church, Justice Lemons pronounced: “Based upon what is alleged in the pleadings, the factual basis for the claim of negligent retention appears weak but it is sufficient to withstand demurrer.” Id. at 482. In Flanary, supra, a single prior complaint sufficed as “actual notice” to support a negligent retention claim, while in the Arshan wrongful death case Plaintiff alleges actual notice of multiple prior complaints and incidents. 53 Ca. Cir. at 135. See also, Berry, supra, 45 Va. Cir. at 247 (plaintiff’s factual allegations “indicate that the [corporate defendant] had actual notice of [the individual defendant’s] propensity”).

Federal Courts likewise have upheld negligent retention claims under Virginia law. E.g., Blair v. Defender Servs., Inc., 386 F.3d 623, 629-630 (4th Cir. 2004)(Virginia law); Thompson v. Town of Front Royal, 117 F.Supp.2d 522, 531-532 (W.D.Va. Oct. 3, 2000)(Virginia law); and Call v. Shaw Jewellers d/b/a Sterling, Inc., 1999 U.S. Dist. LEXIS 636, *4-5 (E.D.Va. Jan. 7, 1999)(Virginia law). The Fourth Circuit in Blair reversed dismissal of a negligent retention claim, 386 F.3d at 629-630; while notably the Eastern District in Call also ordered discovery on the negligent retention claim. 1999 U.S. Dist. LEXIS 636, *5-7.

On September 19, 2012, The Virginia Gazette headlined “No alarms alerted that patient fell,” and subheadlined “Chart was allegedly ‘laundered’”. The article covers the $4,500,000.00 medical malpractice suit, William M. Snovell, Executor of the Estate of Bernadette Teresa Connelly Snovell, Deceased v. Williamsburg Facility Operations, LLC, et al., Case No.: CL12004966, in the Circuit Court for York County, Virginia.

As the Snovell lawsuit and The Virginia Gazette article recount, the patient was “high-risk” for falling and allegedly should have had the benefit of a bed alarm as protection against falling. Yet she was not provided a bed alarm by Consulate Health Care of Williamsburg, predictably suffered a patient fall, and fortuitously was heard yelling for help by a visitor (not by Consulate Health Care nurses).

As the Snovell lawsuit and The Virginia Gazette also state, the patient suffered multiple rib fractures and a serious lung injury; but Consulate Health Care nurses simply put the patient back to bed, charted “fall without injury” that night and charted “no pain or discomfort” the next morning. In truth, however, the patient was complaining of severe pain, but was not rushed to the Emergency Room at Sentara Williamsburg Regional Medical Center until the following afternoon, and suffered allegedly wrongful death days later.

The Virginia Gazette quoted Mr. Waterman in Snovell: patient “falls are a chronic problem at nursing facilities and most are predictable and avoidable. He added that some manufacturers even build bed alarms . . . into hospital beds.” Id. at 12A.

Mr. Waterman has been a legal pioneer in Virginia patient falls, handling such cases for two decades. His 2005 $1,650,000.00 jury verdict for a patient fall victim in Newport News was upheld by the Virginia Supreme Court in Riverside v. Johnson, 272 Va. 518 (2006).

The monthly magazine of the American Association for Justice (“AAJ”), Trial, features in its September 2012 issue a medical malpractice article entitled “10 Red Flags in General Surgical Malpractice Cases”. It recommends considering the following topics in evaluating a surgical case for the source, diagnosis, and treatment of postoperative infections and other complications: CBC abnormalities, postoperative radiographs, biliary anatomy abnormalities, postoperative ileus, atypical operative durations, abscess or infection, OR returns, hospital returns, abnormal postoperative pain, and pathology. Id. at 40-45.

September 2012 Trial also features “Doubling Time in Delay-in-Diagnosis Cancer Cases”. The article recommends challenging the following defense theories in a medical malpractice case: assumption of a constant growth rate, heterogeneity in tumor doubling time, variability in estimates of mean doubling time, measurement error in tumor volume, tumor composition, lack of routine use in clinical practice, and persuasiveness of the theory. Id. at 34-38.

The September 2012 issue of Trial highlights “Science and the Law,” including nanotechnology and medical malpractice. Trial is the monthly magazine of the American Association for Justice (“AAJ”), formerly the American Trial Lawyers Association, of which Mr. Waterman has been a member for over two decades.

A feature article is “Defense Expert Distortious”. Id. at 22-25. It follows a legal book updated in 2012 - Exposing Deceptive Defense Doctors - that counsels about misrepresented science, misstated credentials, and other deceptive practices of medical doctors and other experts hired by Defendants.

On August 31, 2012, Mr. Waterman filed William M. Snovell, Executor of the Estate of Bernadette Teresa Connelly Snovell, Deceased v. Williamsburg Facility Operations, LLC, d/b/a Consulate Health Care of Williamsburg, and “Jane Roe/John Doe” in Circuit Court for York County and the Town of Poquoson, Virginia. It is another patient fall case.

The State Medical Examiner has certified that the death of 81 year-old Bernadette Snovell was caused by her fall, fractured ribs, and pneumothorax suffered as a patient at Consulate Health Care of Williamsburg. Hence her husband as Executor of the Estate has alleged wrongful death.

Snovell claims medical malpractice arising principally from the alleged failure of Consulate Health Care of Williamsburg to engage bed/chair alarms ordered for her safety by her attending physician. Snovell also claims numerous other shortcomings, including inaccurate record-keeping, failure to relocate her near the nursing station, and material treatment delays.

The nursing home lawsuit seeks $4,550,000.00 in damages. In 2005, Mr. Waterman got a jury award of $1,600,000.00 for another fall victim at Riverside Hospital, Inc.’s Riverside Regional Medical Center in Newport News Circuit Court, which then record-setting verdict was upheld by the Virginia Supreme Court in 2006 in Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006).

On August 23, 2012, Mr. Waterman was selected by his legal peers for inclusion in The Best Lawyers in America for 2013. This legal recognition is the 7th consecutive time since 2007 that he has been named to Best Lawyers.

His legal recognition in 2013 Best Lawyers is for his work in 2 separate practice areas: Medical Malpractice Law - Plaintiff and Personal Injury Litigation - Plaintiff. In addition to representing patients for medical malpractice, Mr. Waterman also represents victims of vehicle accidents, sexual abuse, and other cases of personal injury and wrongful death.

Selection for Best Lawyers is based on an exhaustive rigorous peer-review survey comprising more than 4,000,000 confidential evaluations by the top attorneys in the United States. The American Lawyer has coined Best Lawyers as “the most respected referral list of attorneys in practice,” making its legal recognition a singular honor.

The August 2012 issue of Trial, the monthly magazine of the American Association for Justice (“AAJ”) www.justice.org, reports key “Verdicts and Settlements”. One entitled “Court Sanctions Supermarket for Destroying Video of Slip and Fall” recounts a $2,300,000.00 Georgia jury verdict after the judge struck all defenses of Kroger Co. for Kroger erasing incident footage in a special case of premises liability.

Trial’s “College Student Dies After Fraternity Pledge Activity” reported a $4,660,000.00 settlement of a North Carolina case against the national Theta Chi Fraternity for its alleged failure to enforce anti-hazing policy, resulting in wrongful death at the hands of its local chapter. Another negligence article, “Failure to Provide Helmets at Segway Event,” covered a $10,000,000.00 Connecticut jury verdict against Segway, Inc. for not having or even warning about helmets at a “Segway Challenge” demonstration/competition.

Trial is the monthly magazine of the American Association for Justice (“AAJ”), of which Mr. Waterman has been a member for over two decades. Its August 2012 issue focuses on “Recreational Torts,” including recreational vehicle crashes.

Lead articles of Trial cover several recreational circumstances of personal injury. “Injuries on Deck” navigates passengers injured on cruise ships; “Mayhem in the Park” addresses carnival, water park and other amusement park injuries; "Ringing the Bell on Concussions" tees up coach and physician mismanagement of traumatic brain injuries in youth sports; and “Danger on the Open Road” surveys design and manufacturing defects in recreational and other modified vehicle crashes

On August 10, 2012, Mr. Waterman filed Plaintiff’s Second Motion to Compel against Defendants in the medical malpractice case of Shirley F. Burrell v. Riverside Hospital, Inc., No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia. Among other things, Riverside now objects to answering about and to producing it’s fall risk assessment and intervention materials that it taught to its nursing students, its new nursing employees, and its existing nursing employees – which materials support the Plaintiff fall victim’s position and contradict Riverside’s position in Burrell.

In an earlier patient fall case, Riverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006), the Virginia Supreme Court upheld the discovery and the admissibility of Riverside’s similar nursing school, orientation, preceptorship, and in-service materials. Mr. Waterman obtained a $1,600,000.00 jury verdict against Riverside in Newport News Circuit Court in Johnson.

On July 30, 2012, Mr. Waterman served Plaintiff’s Expert Designations in Burrell v. Riverside Hosp. Inc., No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia. That medical malpractice suit is scheduled for trial during November 26-December 7, 2012.

Plaintiff re-designated as retained experts Nurse Cheeley of Chesterfield Technical Center, Dr. Green of MCV, Dr. Parvizi of Jefferson Hospital, Dr. Rordorf of Harvard, and Dr. Trieshmann of Newport News. She also newly designated for her medical malpractice case Nurse Levin and Dr. Evans.

Nurse Levin, who opines Riverside committed multi-prong medical malpractice, is an orthopaedic trauma nurse and the Director of the National Association of Orthopaedic Nurses. Dr. Evans, who opines that Riverside’s alleged malpractice caused the patient’s hospital fall, stroke and permanent disability, holds a joint appointment at the University of Virginia School of Medicine as Professor of Radiology and Neurosurgery.

On July 12, 2012, Mr. Waterman served plaintiff's Second Motion to Compel in the medical malpractice lawsuit captioned Arshan v. Plotnick, et al., No. CL11-1316 in Circuit Court for the City of Williamsburg and James City County, Virginia. The Motion seeks answers and responses from the defendant doctor and corporation to the Discovery Requests of the plaintiff executor for the estate of the deceased patient, Sharon Britt.

Re the Second Discovery Requests in the Plotnick wrongful death case, Dr. Plotnick and his professional corporation still are withholding their billings and any write-offs and write-downs from the deceased patient. Their billings evince what patient services they represented to third-party payors they provided to Ms. Britt, while any write-off/write-down arguably evinces an admission of fault/liability by them.

On July 10, 2012, Mr. Waterman served Plaintiff's Motion to Compel in the medical malpractice case of Myron M. Arshan, Executor of the Estate of Sharon L. Britt v. Stephen E. Plotnick, M.D., et al., No. CL11-1316 in the Circuit Court for the City of Williamsburg and James City County, Virginia. The deceased Williamsburg resident was found dead by her 8 year-old son in 2008 after accidentally overdosing on very powerful narcotics - Fentanyl, Methadone, and Olanzapine - prescribed her by the Defendant Virginia Beach doctor, whose medical license was suspended by Virginia's Board of Medicine shortly thereafter.

On July 10, 2012, Circuit Court for Gloucester County, Virginia, scheduled the brain injury case of Gagnon v. Burns, No. CL08-572, for Initial Pre-Trial Conference. Per the mandate of the Virginia Supreme Court, retrial before a jury for sovereign immunity on the issue of gross negligence will be set then.

Currently the parties anticipate 3-4 days of retrial. After a 2-week trial in 2010, the jury found Assistant Principal Travis Burns guilty of simple negligence and awarded the brain injury victim roughly $6,100,000.00 in damages against all Defendants.

The July 2012 issue of Trial reports a favorable verdict entitled “CLERGY NEGLIGENCE: Archdiocese Fails to Protect Student from Abusive Priest”. The jury awarded $1,000,000.00 for the sexual abuse victim’s “post-traumatic stress, depression, and other psychological problems”. Id. at 10.

Over a 2-year period, a Roman Catholic priest allegedly molested the crime victim 21 times. The priest’s archdiocese - a corporation! - was found “negligence and reckless” because it allegedly “failed to supervise [the priest], prevent his access to children, and warn of his history of pedophilia despite a previous sexual abuse complaint against him at another assignment.” Id.

Trial is the monthly magazine of American Association Justice (“AAJ”), www.justice.org, formerly known as the American Trial Lawyer’s Association (“ATLA”). Mr. Waterman has been a member of AAJ for decades, and has represented sexual abuse and other crime victims.

On July 6, 2012, Mr. Waterman appeared in Circuit Court for Gloucester County, Virginia, on Plaintiff’s Motion to Compel Defendant. Over defense Objection, the Judge ordered that Defendant’s insurer had to produce any contemporaneous witness statements taken for the auto accident underlying Lyles v. Calloway, No. CL10000070-00.

On June 7, 2012, the Virginia Supreme Court in Napper v. ABM Janitorial Servs. - Mid Atlantic, Inc., No. 111300 (Va. Jun. 7, 2012), held that an Arlington County tenant’s employee was entitled to maintain a personal injury suit against the building janitors for slipping and falling in a lobby puddle. In that special case, Defendants unsuccessfully sought to interpose a Workers’ Compensation bar, claiming the tenant and janitorial employees were “statutory employees”.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A leading article in the May 2012 issue of Trial magazine is “ROBOTS Holding the Scalpel”. Its subheading is: “As surgeons and hospitals turn to robotic surgery, these systems will become a factor in more medical malpractice cases. Although cases involving robotic surgery resemble other malpractice suits, there was several unique considerations you must keep in mind.” Id. at 36.

Potential medical malpractice liability considerations include evolving standard of care, informed consent, learning curve, longer surgical time, open conversion, and (staff) machine setup. Id. at 38-40. “Because robotic surgery is so young and has little supporting data, the standard of disclosure of the risks and benefits that hospitals must provide each patient is fluid and evolving.” Id. at 38.

“Every new technology carries a learning curve.” Id. at 39. “Medical professionals have said it could take anywhere from 200 to 700 robotic-assisted surgeries for a surgeon to become highly proficient,” id.; which may have medical malpractice implications.

A feature article in Trial magazine’s May 2012 issue focusing on medical malpractice is “TAINTED Transplants”. Its subtitle is: “Patients may wait for years to be matched with a donor organ, but sometimes they contract diseases and infections from the organs that were intended to save their lives”. Id. at 28-29.

The Center for Disease Control (CDC) has made major changes to its 1994 Public Health Service guidelines, and its Office of Blood, Organ and other Tissue Safety has drafted 2011 guidelines. However, the Trial article observes that healthcare industry “emphasis has always been on monitoring transplant availability rather than unintentional disease transmission [and] precautions are not fail-safe,” thus raising the specter of medical malpractice. Id. at 31.

“The Uniform Organ Gift Act varies from state to state.” Id. at 34. “Under these acts, providers may be immune in performing transplantation surgeries with signed documentation, but they may not be shielded for poor decision-making, such as transplanting an HIV-infected liver,” id.; so medical malpractice lawsuits still may “help the victims seek financial compensation for medical bills, permanent disabilities, decreased quality of life, and pain and suffering – as well as help promote safer health care”. Id. at 30.

Trial is the monthly magazine of American Association for Justice (www.justice.org), of which Mr. Waterman has been a member for decades, and which annually devotes an issue to medical malpractice. Its May 2012 cover marquees “MEDICAL NEGLIGENCE: Cut to the heart of health care cases”.

The lead article is “The Problem with PRIVILEGES”. Its subheading is: “Medical malpractice may reveal another tortfeasor – the hospital that negligently granted credentials and privileges to the physician. Because the tort may not be apparent when the malpractice case is file, thorough discovery is important.” Id. at 15.

The second Trial article is “Why Words, Values, and Beliefs Matter,” by Mr. Waterman’s colleague Patrick Malone, co-author of Rules of the Road: A Plaintiff Lawyer’s Guide to Winning Liability and of Winning Medical Malpractice Cases with the Rules of the Road Technique. The article subheading is: “The facts may be on your client’s side, but facts alone won’t convince the jury in a medical malpractice case. Take the next step by appealing to jurors’ core values and principles and placing the facts in context.” Id. at 22.

The Verdicts & Settlements section of Trial also published a $750,000.00 settlement for “MEDICAL NEGLIGENCE,” captioned “Failure to Diagnose, Treat Teen’s Heart Failure”. A 17 year-old California victim suddenly died from congestive heart failure 6 days after being discharged from the local Emergency Room with a misdiagnosis of gastritis. Id. at 12.

The Court of Appeals of Virginia’s Opinion in Beshah v. Commonwealth, No. 2070-10-4 (Va. app. May 8, 2012) proves what Plaintiff medical malpractice lawyers have complained for decades: despite the criminality of it, healthcare providers in Virginia fabricate patient charts to cover their tracks! Beshah upheld the multiple forgery convictions of a licensed practical nurse (“LPN”) who made at least 50 documented false entries in the neglected patient’s records, plus offered “perjured testimony” at trial in her defense.

Defendant LPN in Beshah perpetrated her frauds while working at a Medicaid-certified skilled nursing home in Arlington. Id. at 2. “During [2-month FBI] surveillance, as shown on video, [the LPN] did not administer some medications as prescribed, but she recorded having administered those medications. [The LPN] also failed to perform nursing care she documented she had performed. [The LPN] recorded vital signs when she had not taken them, recorded turning and repositioning [the patient] when she had not done so, and recorded performing incontinence care when she had not. She fabricated entries in [the patient’s] medical records numerous times during the surveillance period.” Id. at 3.

The LPN’s “failure to accurately document was not an isolated event, but was a pattern of behavior to misrepresent that status of the patient’s treatment and medication.” Id. at 8. Beshah observed that the LPN’s misrepresentations were “potentially dangerous” to the patient crime victim, who was “high risk” as elderly, infirm, immobile, and demented. Id. at 2-4.

Although the LPN was the focus of the Beshah Opinion, a Grand Jury also indicted “a number of other employees of Potomac Center for crimes involving [the patient’s] care”! Id. at 4. One criminal defense lawyer represented 6 of the healthcare employees alone! Id.

On May 21, 2012, Mr. Waterman filed Petition for Rehearing of Appellee/Cross-Appellant in Burns v. Gagnon, No. 110754 in the Virginia Supreme Court, the $6,100,000.00 brain injury jury award on appeal from the Circuit Court of Gloucester County, Virginia. It alleges manifest errors of law vis-à-vis: (1) Burns assumed a duty of care as a matter of law; (2) Burns’ obligation was ministerial under the facts of this case; and (3) Burns’ negligence was gross as a matter of law.

On May 21, 2012, Mr. Waterman also filed Appellant’s Petition for Rehearing in the companion crime victim appeal, Gagnon v. Burns, No. 110767 in the Virginia Supreme Court. That asserts manifest errors of law vis-à-vis the responsibility of Burns as negligent tortfeasor for James Newsome as intentional tortfeasor and/or for Christine Newsome as negligent tortfeasor, and of James Newsome for Burns and for Christine Newsome.

On May 18, 2012, Petition for Rehearing of Burns was filed in the Virginia Supreme Court under the consolidated captions of Burns and Gagnon. Thereby Burns claims in the brain injury appeal: (1) the court’s finding that as a public official Burns owed no special duties to Gagnon precludes any findings that Burns assumed any duties for supervision and care of Gagnon as a matter of law; (2) Gagnon waived remand to the jury of any findings of assumed duties; (3) the issue of gross negligence previously adjudicated by the trial court acting as the trier of fact and these decisions constitute res adjudicata; and (4) Gagnon agreed to have the issues of gross negligent adjudicated by the trial court, acting as trier of fact, and thus waived the trial of gross negligence at trial.

The Spring 2012 issue of The Safety Report marquees vehicle accidents. Its cover story is “Distracted Driving: 1 Second Can Change Everything”.

The article notes that distracted driving is responsible for almost 450,000 vehicle accidents, including more than 5,000 wrongful death (or 16% of all fatal crashes in 2009), annually – and that the numbers are trending upward. Id. at 33. EndDD.org reports that “18 percent of all distracted driving fatalities occur because of cellphone use;” and “a 2011 Virginia Tech study found that a driver is 23 times more likely to crash if he/she is texting while driving”. Id.

The Safety Report highlights other disturbing statistics that show young adults in general and teenagers in particular have substantial risks of car crashes and wrongful death associated with drivers using cellphones. For example, “10 percent of drivers aged 16 to 24 years old are on their phone at any one time,” and “40 percent of American teens say thay have been in a car when the driver used a cellphone in a way that put people in danger”. Id. at 35.

In 2010, an online survey of teens ages 16-19 by AAA (www.aaa.com) and Seventeen Magazine (www.seventeen.com) “found that 86% had driven while distracted even though 84% know it’s dangerous”. Id at 37. A harbinger for car collisions is a troubling 2011 Ad Council statistic that “77% of young adult drivers are very/somewhat confident that they can safely text while driving”. Id.

On April 20, 2012, the Virginia Supreme Court upheld the non-suit rights of car crash victims. Specifically, Lewis v. McIlroy, No. 110485 (Va. Apr. 20, 2012) held that the tolling provision of Va. Code Ann. §8.01-229(E)(3) applied whether plaintiff refiled suit within 6 months after or before entry of non-suit order on the previously filed lawsuit. Id. at 7.

Plaintiffs’ uninsured/underinsured automobile (“UM/UIM”) carriers, Government Employee Insurance Company (“GEICO”) and State Farm Mutual Automobile Insurance Company (“State Farm”), had sought to avoid potential financial responsibility for the auto collision personal injury damages. But Laws held the circuit court erred in granting State Farm and defendant’s motion to dismiss and GEICO’s plea in bar. Id. at 12.

In May, 2012, Mr. Waterman obtained a $100,000.00 settlement for a Newport News car accident victim. Trustgard Insurance Company paid its liability policy limits of $50,000.00 and State Farm paid its underinsured motorist (UIM) policy limits of $50,000.00.

The offending driver was cited for failure to yield, causing the two-car collision. The victim motorist was treated by Newport News Emergency Medical Service, Mary Immaculate Hospital, Hampton Roads Radiology Associates, Commonwealth Family Practice, Riverside Regional Medical Center, Rebound Chiropractic, Riverside Emergency Physicians, Peninsula Radiology Associates, Hampton Roads Neurosurgical & Spine Specialists, Orthopaedic & Spine Center, and Cardiovascular Center of Hampton Roads.

On May 8, 2012, Mr. Waterman implemented the Court-approved settlement of a minor’s car accident claim against the offending driver insured by State Farm Mutual Automobile Insurance Company. Like his mother, the child was a guest passenger in the victim family automobile being driven by his father in Goochland County, Virginia.

All of the victim family members were rushed to the Emergency Room at VCU’s Medical College of Virginia in Richmond. The child and father were discharged after 2 days, but the mother was hospitalized for a protracted period because of personal injuries caused in the car accident by the allegedly drunk driver being on the wrong side of State Route 250.

On December 29, 2009, young Jacob Fletcher Boarman-Spivey of Williamsburg, Virginia, rear-ended another vehicle which rear-ended yet another vehicle on South England Street. That multi-car collision injured Mr. Waterman’s client, who claims over $23,000.00 in medical expenses after the same.

The offending motorist’s insurer, Safeco, has $100,000.00 of automobile liability coverage for the car crash injuries, but offered to pay only $30,000.00 for all medical expenses, pain, suffering, inconvenience, and other personal injury damages of the victim. Hence on May 7, 2012, Mr. Waterman had legal summons served on the Defendant in Linda Bryan v. Jacob Fletcher Boarman-Spivey, No. 830CL11001486-00 in the Circuit Court for the City of Williamsburg and James City County, Virginia.

Virginia Business magazine recently published its “Virginia Business List of Leaders” for 2012. Mr. Waterman’s law office (Patten, Wornom, Hatten & Diamonstein, L.C.) was named under “Law Firms”. Id. at 89.

Patten Wornom in Newport News boasts 24 lawyers, making it the largest law firm based on the Peninsula. In addition to business and asbestos, its practice includes vehicle accident, medical malpractice, brain injury, and other personal injury and wrongful death litigation – the focus of Mr. Waterman’s caseload.

The same Virginia Business issue reported that after a two-year absence a LPGA tournament would return to Kingsmill Resort during September 6-9, 2012, the new $1,300,000.00 purse Kingsmill Championship. Id. at 38-40. For over two decades, Mr. Waterman has resided in Kingsmill Resort, which is undergoing a $6,000,000.00 long-term expansion and upgrade.

On April 30, 2012, brain injury victim Gregory J. Gagnon filed Notice of Intent for rehearing as Appellee/Cross-Appellant in Burns v. Gagnon, No. 110754 in the Virginia Supreme Court; and as Appellant in Gagnon v. Burns, No. 110767. On April 25, 2012, Appellant Travis Burns filed Notice of Intent for rehearing in Burns v. Gagnon, No. 110754.

Both parties seek rehearing on the Opinion of the Virginia Supreme Court entered April 20, 2012, Burns v. Gagnon, 2012 Va. LEXIS 93 (Apr. 20, 2012). That Opinion is on direct appeals and on cross-appeal of a 2010 jury verdict for $6,100,000.00 in favor of the crime victim in Circuit Court for Gloucester County, Virginia.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Trial Lawyer is the quarterly magazine of The National Trial Lawyers, an organization of premier vehicle accident, medical malpractice, and other wrongful death and personal injury lawyers of which Mr. Waterman is a member. Its Winter 2012 issued is titled “Occupy the Courts,” harkening the Occupy Wall Street movement.

Feature articles include “The Commercial Motor Vehicle Equipment Lease Agreement and Defense: You Need to be Aware,” “Medical Spas Acting Beyond Their Expertise: Adverse Complications Resulting in Potential Litigation,” “Hernia Repair Mesh Litigation Ongoing in Spite of Large-Scale Settlements,” and “Yaz – Blockbuster Drug, Blockbuster Lies”. Another article spotlights child abuse.

On March 20, 2012, Circuit Court for the City of Newport News, Virginia, entered a Scheduling Order in the medical malpractice suit of Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15. Two-week jury trial on the merits is scheduled for November 26-December 7, 2012.

In the Burrell patient fall case, Riverside and its nurse allegedly failed to assess and to intervene properly for the patient being a high fall risk. Riverside already has lost in a similar medical malpractice suit, in which another Newport News jury awarded approximately $1,600,000.00 to a patient fall victim and the Virginia Supreme Court upheld that plaintiff verdict in a precedent-setting decision. Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006).

Trial is the monthly magazine for the American Association for Justice (“AAJ”), formerly the American Trial Lawyer’s Association (“ATLA”), of which Mr. Waterman has been a member for decades. Its March 2012 issue titled “Countdown to Trial” includes Verdicts & Settlements about crime victims.

One case report is entitled “School Fails to Protect Student from Sexual Abuse”. Another is “Sexual Abuse of Minor”.

In the vehicle accident case of Kocher v. Campbell, 282 Va. 113 (2011), the Virginia Supreme Court addressed the standing of plaintiff to maintain his personal injury suit.

The car collision victim had filed Bankruptcy prior to filing his lawsuit. Kocher held that the action was time-barred because at the time of filing, Trustee had not abandoned the underlying claim from the Bankruptcy estate and the Bankruptcy Court had not exempted the claim from it either.

On March 14, 2012, a jury in Circuit Court for Montgomery County, Virginia, found that Virginia Tech officials were liable for the 2007 fatal mass shooting of 32 on its campus. The jury in Christiansburg awarded $4,000,000.00 to surviving family members for the wrongful deaths of students, Julia Pryde and Erin Peterson.

The Virginia Tech case raises some of the same legal issues pending before the Virginia Supreme Court in Richmond in Mr. Waterman’s brain injury appeal, Burns v. Gagnon, No. 110754 c/w Gagnon v. Burns, No. CL08-572. Common legal points of both crime victim lawsuits include sovereign immunity, gross negligence, special relationship, and legal duty.

Dabney v. Augusta Mutual Ins. Co., 282 Va. 78 (2011) addressed the timeliness of notice to defendant’s insurer. Augusta Mutual asserted that the insured not sending notice until 254 days after being served with the personal injury lawsuit was untimely.

“Given the extenuating circumstances presented in this case, whether Jackson’s notice was timely under the Augusta policy was a question of fact upon which reasonable minds could disagree,” wrote Justice Millette. Id. at 89. Hence Dabney reversed the trial court’s dismissal of the lawsuit and remanded. Id.

In Conger v. Barrett, 280 Va. 627 (2010), the Virginia Supreme Court vindicated Plaintiff’s right to reinstate her wrongful death suit within 1 year of its dismissal under Va. Code Ann. §8.01-335(B). The court rejected the defense assertion that Va. Code Ann. §8.01-244(B) two-year limitation for filing a new action barred reinstatement.

“Conger’s motion to reinstate her earlier case did not create ‘another action’ and therefore is not subject to the limitation period in Code §8.01-244(B),” wrote Justice Mims. Id. at 633. Accordingly, Conger reversed the trial Court’s dismissal of Plaintiff’s medical malpractice case. Id.

In Johnson v. Hart, 279 Va. 617, 624 (2010), the Virginia Supreme Court held that counsel did not waive objection to the adverse portion of the judge’s letter opinion by endorsing the Court’s Order “seen and consented to”. Lionizing Va. Code Ann. §8.01-384, the Court explained that there was no “express waiver” as required thereunder, as counsel “clearly stated his opposition to [the adverse] ruling in memoranda” before the Order was entered. Id.
Waiver is claimed by the defense in the brain injury appeal of Mr. Waterman’s $6,100,000.00 Gloucester jury verdict, Burns v. Gagnon, No. 110754 in the Virginia Supreme Court. Oral Argument on the merits of that crime victim case is Wednesday, February 29, 2012.

In the medical malpractice case of Mahone v. Sentara Hospitals, et al., No. CL10-1122 in Circuit Court for the City of Suffolk, Virginia, certain defendants filed Demurrer and Motion for Bill or Particulars while refusing to submit to discovery deposition. On March 6, 2012, Mr. Waterman filed Memoranda in Opposition.

Mahone alleges inter alia that the patient suffered wrongful death because of defendants failing to test, monitor, diagnose, consult, refer, transfer, treat and/or care for TTP. The aforesaid Motions are scheduled for hearing in Court on March 13, 2012.

Mr. Waterman is a proud Co-Sponsor of Jamestown High School’s 11th Annual Swamp Run 5k Run/Walk on March 10, 2012. Please register now through the JHS Athletic Booster Club or Colonial Road Runners to support the school children – first 200 get free commemorative t-shirts!

It features the 5k run, a 5k walk, a 1-mile fun run, and a ¼-mile run for youngsters. The course is the Greensprings Trail at Jamestown High School used for cross-country meets.

On February 29, 2012, Mr. Waterman argued in the brain injury appeals of Burns v. Gagnon and Gagnon v. Burns, Record Nos. 110757 & 110767 in the Supreme Court of Virginia. It likely will be weeks before a written opinion is handed down.

Burns is appealing his liability, while Gagnon is cross-appealing gross negligence, in Burns; and Gagnon is appealing collection of his damages award in Gagnon. On August 27, 2010, a jury in Circuit Court for the County of Gloucester, Virginia, awarded the crime victim approximately $6,100,000.00 in damages for his personal injuries.

During February 24-25, 2012, Mr. Waterman attended the “Reptile in Trial” Seminar in Raleigh, North Carolina. It featured noted jury consultant, David Ball, Ph.D.; and medical malpractice trial lawyer, Don Keenan, Esq.

Ball and Keenan authored Reptile: The 2009 Manual of the Plaintiff’s Revolution. Reptile also applies to vehicle accidents, product liability, premises liability, and other personal injury and wrongful death cases.

On February 24, 2012, the Virginia Supreme Court entered Order in the brain injury appeal of Burns v. Gagnon, No. 110754, granting Gagnon’s Motion to Strike re Section 1 of Burns’ 12/5/11 Reply Brief. Gagnon asserted that procedurally Burns had exceeded the permissible scope of replying, and that substantively Burns had no factual or legal basis for that section; and by Response filed on February 21, 2012, Burns belatedly withdrew his argument in Section 1 and consented to the Court striking it.

Burns v. Gagnon is a 2010 crime victim case in which a Gloucester jury awarded Mr. Waterman’s client approximately $6,100,000.00 for an assault and battery on school premises and hours. Oral argument before the Court in Richmond on the merits is scheduled for one hour on Leap Day, February 29, 2012.

Landrum v. Chippenham and Johnston-Willis Hospitals., Inc., 282 Va. 346 (2011) is a medical malpractice case. Therein the Virginia Supreme Court held that the Circuit Court for the City of Richmond, Virginia did not abuse its discretion in excluding expert witnesses for not obeying pretrial orders. Id. at 349.

“Pursuant to Rule 4:12(b)(2), a trial court may sanction a party for failing ‘to obey an order or provide or permit discovery’.” Id. at 352. The Court in the Landrum medical malpractice appeal rejected that the judge disregarded Va. Sup. Ct. Rule 4:1(g) in treating the unsigned expert designation as a nullity, because Va. Sup. Ct. Rule 1(A):4(2) was violated by out-of-state pro hac vice counsel, but not local Virginia-licensed counsel, signing the pleading. Id. at 353-355.

Significantly, Landrum held that Rule 4:12(b)(2) does not require a judge to “determine whether a party’s failure to obey an order has caused another party to suffer prejudice before it may impose a sanction.” Id. at 355. The Court in the Landrum medical malpractice decision upheld the judge’s discretion to exclude experts where counsel not only violated the scheduling order by 2 months delay, but also failed to heed the judge’s warning to cure within 1 week or face sanctions. Id. at 355-356.

Finally, Landrum also is noteworthy for finding that the medical malpractice plaintiff had preserved his Rule 4:1(g) argument for appeal. The Virginia Supreme Court observed that even though plaintiff did not cite Rule 4:1(g) to the judge, by the argument alone the judge was given “sufficient ‘notice of due substance of the objection’ to comply with the requirements of Rule 5:25”. Id. at 353 n.7.

On November 4, 2011, the Virginia Supreme Court issued its opinion in the automobile accident appeal of Ruhlin v. Samaan, 282 Va. 371 (2011). It upheld the Circuit Court of Chesterfield County allowing use of the transcript of an insurer’s recorded telephone statement “to refresh a witness’s recollection”. Id. at 377-380.

“Code §8.01-404 prevents the impeachment of a witness by use of an affidavit, statement or transcript made after an accident but before trial,” observed the Court in the Ruhlin car crash case. Id. at 378. “Code §8.01-404 only prohibits the use of a written statement itself to directly impeach a witness.” Id. at 379.

But “[t]he act of refreshing a witness’s recollection does not involve contradicting that witness’s testimony,” delineated the Court in the Ruhlin vehicle collision matter. Id. (emphasis added). “Rather, ‘when a witness has a memory lapse on the stand and forgets some portion (or even all) of the facts of the matter about which [he or she is] called to testify, a party may attempt to refresh the witness’s memory by having the witness examine materials relating to the matter for which they are testifying’.” Id.

“After examining such [refreshing] materials, a witness may then ‘speak to the facts from his own recollection’.” Id. Indeed, the Ruhlin auto accident opinion noted that in 2004 the Virginia Supreme Court “held that Code §8.01-404 did not preclude the introduction of a witness’s prior written statement as a party admission in a plaintiff’s case-in-chief because, at that point in the trial, the statements were not being used to ‘contradict’ the witness.” Id.

The February 2010 issue of Trial, the monthly magazine of the American Association for Justice (“AAJ”), marquees “Moving Violations”. It features such vehicle accident topics as “When Seat Belts Stop Short of Safety,” “Gear Up for Bicycle Accident Cases,” “Driving toward Justice in a Dram Shop Case,” and “Teaching Teens about Safe Driving”; plus a product liability one entitled “Toxic Hip Replacements”.

Mr. Waterman has been a member of AAJ since 1987. He regularly handles vehicle accident, product liability, and other personal injury and wrongful death cases.

On February 10, 2012, the Supreme Court of Virginia scheduled oral argument for February 29, 2012, in Mr. Waterman’s brain injury appeal of Burns v. Gagnon and Gagnon v. Burns, Record Nos. 110754 & 110767. Each case appealed is accorded 30 minutes, split between the parties equally.

In Burns, Burns appealed 4 liability points – legal duty, sovereign immunity, statutory immunity, and deposition admissibility – and Gagnon cross-appealed on the liability issue of gross negligence. In Gagnon, Gagnon appealed on the joint and several liability of Burns for the roughly $6,100,000.00 awarded to the crime victim.

On February 9, 2012, Mr. Waterman filed Motion to Strike of Appellant/Appellee/Cross-Appellant, Gregory Joseph Gagnon, in Burns v. Gagnon, Record No. 110754 in the Supreme Court of Virginia. Burns is the brain injury appeal from the 2010 jury award of approximately $6,100,000.00 in Circuit Court for Gloucester County, Virginia.

Gagnon’s Motion in Burns seeks to strike Section 1 of Reply Brief of Appellant, Travis Burns. The Motion and Memorandum in Support argue that Section 1 impermissibly raises new argument and, moreover, that the argument was not preserved for appeal, was not raised in the trial court, and is not well-grounded in fact (because of Gagnon having been an adult entitled to file his brain injury lawsuit when he did).

On January 13, 2012, the Virginia Supreme Court issued its opinion in DeMille v. Commonwealth, 2012 Va. LEXIS 13, 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 *16.

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).