Virginia Injury Attorney Blog

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 June 9, 2008, Avery T. “Sandy” Waterman, Jr., Esq. served suit under Virginia’s Multiple Claimant Litigation Act. The case is Gilliam v. Hampton University, et al., No. CL07-1562, pending in the Circuit Court for the City of Hampton, Virginia.

The multi-claimant action in Gilliam involves Doctor of Physical Therapy students suing their former college for lack of program accreditation. They allege that Hampton University committed breach of contract and/or constructive fraud by failing to obtain accreditation as promised, bargained and agreed.

Due to lack of accreditation, the students could not graduate on schedule and were subject to remediation workshops in Hampton and to additional courses in Florida. Thereby they suffered substantial inconvenience and earnings loss.

Hampton University moved for summary dismissal of multi-claimant action counts, asserting that the students did not have the causes of actions alleged. But those dilatory defensive pleadings were denied by Order entered on September 20, 2008; so the case currently is proceeding through discovery unto trial.

Public notice, particularly Court-facilitated notice, of a class action, collective action or multi-claimant action often is critical to the lawsuit maximizing the number of victims obtaining redress. Avery T. “Sandy” Waterman, Jr., Esq. recently has obtained such favorable notice in Newport News and Williamsburg, Virginia.

The Norfolk Division of the United State District Court for the Eastern District of Virginia entered Notice of Pendency of Collective Action Lawsuit on June 20, 2007. The consolidated cases were Choimbol v. Fairfield Resorts, Inc., No. 2:05cv463 c/w Gombosuren v. Fairfield Resorts, Inc., No. 4:06cv055 c/w Bahamolau v. Fairfield Resorts, Inc., No. 4:06cv147, filed in Newport News and Norfolk, Virginia.

The Court-facilitated notice was published in local newspapers, The Daily Press and The Virginia Gazette. Both publications were full-page versions of the notice in two languages, English and Cyrrillic, to reach the most foreign victims.

Plaintiffs’ counsel initially has to bear the substantial expense of such newspaper publication. Ultimately in settlement all such costs may be shifted to the Defendant.

In Choimbol, Gombosuren and Bahamolau, the published notice was effective. It encouraged additional victims to join the collective action lawsuit.

Avery T. “Sandy” Waterman, Jr., Esq. recently settled collective actions in Newport News and Norfolk federal courts on behalf of primarily Hampton Roads residents, one involving 115 workers. He also is handling a multi-party lawsuit in Hampton state court.

The Virginia Multiple Claimant Litigation Act allows six or more similarly situated victims to join together in a single lawsuit against the same defendant in state court. See, Va. Code Ann. §8.01-267.1, et. seq.. In federal court in Virginia similarly situated victims likewise together can file a single collective action against a defendant. See, e.g., 29 U.S.C. §216(b). Also in Virginia federal court similarly situation victims can file a single class action against a defendant for themselves individually and as representatives of like victims not named in the lawsuit. See, Federal Rule of Civil Procedure 23.

Multi-Claimant personal injury lawsuits in Virginia frequently involve recalled prescription drugs or mass accidents involving airplanes, trains, buses, subways, ships, boats, and other watercrafts and vehicles; poisonings, contaminating water, food or products; and even amusement rides. Virginia multi-claimant lawsuits also may involve widespread employment practices, such as failure to pay overtime, sexual harassment, and other discrimination. Almost any sort of common misconduct can result in a multi-claimant lawsuit, the key simply being that the victims were damaged similarly by the same defendant.

There are many benefits to similarly situated victims being represented jointly in the same lawsuit by a common lawyer. Benefits include substantial efficiencies of time and money, consistency of outcomes, and safety and power in numbers. Such complex litigation is a veritable legal minefield for the inexperienced.