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

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

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 Aug. 18, 2009)(unpublished) reh.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 Jan. 30, 2007)(unpublished).

First, the judge in Moniz granted Plaintiff’s Motion to Set Trial Date. Second, he granted Plaintiff’s Motion for Entry of Order. Third, he granted Plaintiff’s Motion to Compel Deposition of Defendant. Dr. Moniz must submit to discovery deposition by April 30, 2010; and the Moniz medical malpractice suit is scheduled for jury trial on the merits during March 28-April, 2011, in Yorktown.

If you or a loved one are victim of medical malpractice, vehicle accident, or other personal injury, please contact Avery T. "Sandy" Waterman, Jr., Esq. in Newport News or Williamsburg, Virginia, at 888.881.7881, 757.881.9881 or contact him online.

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

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

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

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

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

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

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

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

To resolve the drafting impasse, Plaintiff’s Motion will be scheduled for Court hearing shortly. Companion blogs on the underlying uses ofSentara Incident # 20119 in the Mahone v. Sentara medical malpractice proceeding claiming $4,250,000.00 are posted on February 2, 5, 15, and 17, 2010.

The Mahone v. Sentara wrongful death suit and Sentara Incident Report # 20119 is the subject of significant companion blog posts on February 2, 5, 15, and 22, 2010. Posting of the full hearing transcript and of other companion blogs is anticipated shortly.

The Mahone v. Sentara medical malpractice lawsuit is the subject of significant companion blog posts on February 2, 5, 17, and 22, 2010. Posting of that full hearing transcription, as well as of other companion blogs, is expected soon.

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

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

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

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

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

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

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

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

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) his 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.

At "emergency" hearing on February 5, 2010, 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 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); Umphreyville v. Gittins, 2009 U.S. Dist. LEXIS 454, * 5 (W.D. Va. Jan 6, 2009); Monroe v. City of Charlottesville; 2006 U.S. Dist. LEXIS 20027, *5 (W.D. Va. 2006); Poullah v. Rzasa, 75 Va. Cir. 349, 352 (Fairfax Jul. 15, 2008); Cook v. Wayland, 64 Va. Cir. 386, 387 (Waynesboro Apr. 26, 2004); Odeneal v. Thompson, 63 Va. Cir. 71, 73 ( Fairfax Aug. 6, 2003); Green v. Barnes, 54 Va. Cir. 348, 350 (Portsmouth Jan 4. 2001).

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

Sentara’s attorney of record, Ted G. Yoakam, Esq. of Yoakam & Etheridge, PLC in 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.