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

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

“While plaintiff’s choice of forum is not entitled to absolute deference, it ‘should not be lightly defeated’.” Champigny v. Bagly, 55 Va. Cir 381, 382 (Norfolk Jul. 2, 2001)(citations omitted). “A rebuttable ‘presumption of correctness attaches to a plaintiff’s choice of forum’.” Kollman v. Jordan, 60 Va. Cir. 293, 294 (Chesterfield Oct. 29, 2002).

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

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

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

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

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

Sentara’s Emergency Petition accused that the related blog post of February 2, 2010, was “inappropriate conduct”. It prayed in the Mahone v. Sentara wrongful death suit: (a) That plaintiff’s counsel, Avery T. Waterman, Jr., be ordered to immediately remove the blog posted by plaintiff’s counsel on February 2, 2010, in its entirety; (b) That plaintiff prove to this Court, and Sentara, that the blog has been removed and that a diligent search to remove all “cached” versions of the entry that could be found on the internet were removed; (c) That the Court issue an Order on plaintiff’s counsel to take no further actions in regard to this case until such time as a full formal hearing can be had before the Court to determine if plaintiff’s counsel can continue representing the Estate of Felicia T. Madison in this matter; and (d) That Plaintiff’s counsel be ordered to secure Incident Report # 20119, and all copies thereof, and return them to the Court pending a ruling from the Court as to these earlier requested matters given his public disgorgement of confidential information.

Plaintiff filed a Memorandum in Opposition in the Mahone v. Sentara medical malpractice proceedings. Mr. Waterman advances multiple grounds justifying the blog posting, including particularly without limitation that: (1) the underlying Sentara Incident Report # 20119 was not privileged in fact; (2) the “substantial need” exception applied to any claimed privilege; (3) any claimed privilege without exception was waived by Mr. Yoakam’s voluntary production; (4) production was in open Court without any protective order; (5) Plaintiff would not have agreed to any restriction on production; and (6) ex post facto censure violates and chills Constitutional rights of free speech and Court access.

The presiding Judge in the Mahone v. Sentara wrongful death action was “disturbed” by Sentara’s Emergency Petition; found that Williamsburg/Newport News attorney Avery T. “Sandy” Waterman, Jr., Esq. “acted fully professionally in turning the document [Sentara Incident Report # 20119] over” and, moreover, was “free to publish whatever he wants”; and denied Sentara’s Emergency Petition and all relief. The Judge also denied the repeated oral Motion of Ted G. Yoakam, Esq. to prohibit further disclosure on this topic.

Ironically, Ted G. Yoakam, Esq., as plaintiff’s counsel has made numerous public disclosures for almost a year about his pending multi-party “coal ash dump” lawsuits filed in Circuit Court for the City of Chesapeake, Virginia, No. CL09000710-00 Fentress Family Trust v. Virginia Electric and Power Company and No. CL09001914-00 Darryl Sears v. Virginia Electric & Power Co. Indeed, Mr. Yoakam’s own pending “coal ash dump” litigation disclosures were made in City Council meetings, The Virginian-Pilot articles, and even “60 Minutes” television broadcasts.

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

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

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

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

Sentara’s attorney of record, Ted G. Yoakam, Esq. of Virginia Beach, Virginia, at hearing characterized Incident Report # 20119 as a blood bank protocol document that was irrelevant to the medical malpractice. But on its face, Sentara’s Incident Report #20119 actually records material factual patient care information that the Virginia Supreme Court opined was discoverable and admissible in its landmark decision, Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006), litigated by Plaintiff’s counsel, Avery T. “Sandy” Waterman, Jr., Esq. of Williamsburg and Newport News, Virginia.

Sentara Incident Report # 20119 proves that the exsanguinating patient in Mahone v. Sentara never was transfused the unit of blood she was ordered hours earlier by her doctor due to Sentara nursing staff’s failure to restart an IV site, contributing to patient demise. Among other things, Sentara Incident Report # 20119 also documents the dying patient’s diagnosis (hemolytic anemia, thrombocytopenia) in this ostensibly mysterious case of wrongful death, plus identifies three Sentara employees with pertinent knowledge.

Like most if not all secreted incident reports, Sentara Incident Report # 20119 contains relevant factual patient care information missing from and at variance with Nursing Notes of the limited so-called “patient chart” to which hospitals seek to limit patient access for review. Patient charts are sanitized healthcare industry-wide by the systematic institutional laundering of key harmful patient care facts into incident reports that are segregated from the patient chart (often in computer databases).

Sentara Incident Report #20119 is particularly significant in the medical malpractice lawsuit of Mahone v. Sentara because suspiciously there are no contemporaneous Nursing Notes from 11:05 p.m. through and beyond the patient’s death at 5:38 a.m.. Instead, post-death, from 5:40 a.m. to 9:32 a.m., a Sentara L.P.N. created fifteen (15) Notes and one (1) Addendum of purportedly what happened from 12:15 a.m. to 4:10 a.m.

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

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

In Stanardsville Vol. Fire Co. v. Berry, 229 Va. 578, 587(1985), the Virginia Supreme Court emphasized than an evidentiary hearing on Plea could not be aborted mid-stream and that its finding is “binding and conclusive” on the issue submitted. “In the case of an issue on a plea in equity, not only does either party have the right to a jury trial, but the jury may not be discharged before verdict and its verdict, when returned, is as binding and conclusive upon the factual issue submitted to it as is a jury verdict in an action at law.’ Although Stanardsville focuses on a jury sitting as trier of fact on a Plea, where as in the Gagnon brain injury case the parties elect to have the judge sit as the trier of fact, the judge’s verdict and findings likewise are equally mandated, binding and conclusive.

Cooper Indus., Inc. v. Melendez, 260 Va. 578, 594 (2000) reaffirmed that a “plea in bar is a defensive pleading that reduces the litigation to a single issue,” the findings on which are preemptive for the litigation. In Cooper, defendants interposed a Plea in Bar on statute of repose, the trial court tried the same ore tenus and found plaintiff was not time-barred, id. at 581; which finding was not subject to relitigation before the jury subsequently. Id. at 594-595. “When the trial court hears the evidence ore tenus, its findings are entitled to the weight accorded a jury verdict . . . .” Id. at 595.

“Pleas in bar are also designated peremptory pleas ….”M.J. Pleading §45 at 364 (emphasis added). “A plea in bar is one to the substantial merits of the case….” Id. at 363.

“A plea of sovereign immunity presents distinct issues of fact that, if proved, create a bar to a parties’ alleged right of recovery.” Gambrell v. City of Norfolk, 267 Va. 353, 357 (2004). Under the fourth prong of Virginia’s test for sovereign immunity, the trier is required to make findings whether the Defendant’s act in question was one of “gross negligence” or “simple negligence” and was “ministerial” or involved “judgment and discretion,” which findings were the focus of the Gagnon brain injury case.

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

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

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

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

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

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

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

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

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

POST 12/30 Attorneys Forum, Brain Injuries

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

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

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

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

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

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

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

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

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

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

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