Virginia Injury Attorney Blog

AAJ’s monthly Trial magazine reports Verdicts & Settlements. Id. at 8-12. The lead report in its June 2013 issue is “Jury Finds Company Negligent in Installing 13-Year-Old Tire,” a vehicle crash case.

Pre-trial, the salvage lot that sold the tire paid $800,000.00 in settlement and Michelin as maker of the tire contributed a confidential amount. At trial, a California jury found the commercial installer of the weather-cracked tire 100% at fault and awarded the victim $7,900,000.00 for his spinal, head, bilateral arm, and brain injuries. Id. at 8.

Two other reports involved special cases of premises liability. In “Toddler Burned by Scalding Shower Water,” a New York settlement, the building owner/manager’s insurer paid $2,015,000.00, the plumber’s insurer paid $1,055,000.00, and the valve manufacturer’s insurer paid $300,000.00. Id. at 10.

In “Patron Slips in Liquid on Supermarket Floor,” a Massachusetts case, the parties settled for $1,750,000.00 pre-trial. Id. at 10-12. Mr. Waterman has been a member of AAJ for over 2- years, and handles wrongful death and personal injury cases.

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 is the monthly publication of American Association for Justice (“AAJ”). Its June 2013 issue covers “Business TORTS” with the following articles: “WEATHERING THE STORM of Causation Clauses,” id. at 14-21; “BATTLE WITH THE BANKS,” id. at 22-27; CALCULATING DAMAGES IN SECURITIES CLASS ACTIONS,” id. at 28-32; and “CYBER PIRATES.” Id. at 34-39.

Notably, it also features “Shedding Light on Peer Review Privilege”. Id. at 50-54. The article is pertinent to patient fall, nursing home, and other medical negligence cases.

Additionally, it features “BEWARE OF DOG,” an article on the special cases of dog bites covering inter alia Source of Recovery, Case Investigation, Breed Determination, Witness Interview, Documentation, Photographic Evidence, and Scene Inspection. Id. at 42-48. Mr. Waterman has been an AAJ member for over two decades.

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”), 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.

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.

“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.

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, 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.

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.

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 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.

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.

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 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.

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.

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.

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.

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.

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.

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.

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 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.

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

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

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

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

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

On May 16, 2011, Mr. Waterman filed Brief in Opposition to Petition and in Support of Assignments of Cross-Error of Appellee/Cross-Appellant, Mr. Gagnon, in Travis Burns v. Gregory Joseph Gagnon, et al, No. 110754 in the Virginia Supreme Court. The appeal is of his $6,100,000.00 jury verdict on August 27, 2011, in Circuit Court for Gloucester County, Virginia, for a brain injury victim of negligence, assault and battery.

In Burns v. Gagnon, Assistant Principal Burns assigns error on sovereign immunity, common law duty, statutory immunity, and de bene esse deposition admissibility. Cross-errors assigned by Mr. Gagnon in the brain injury appeal
are the trial court finding no gross negligence, as well as not submitting gross negligence to the jury.

On the duty issue in Burns v. Gagnon, Mr. Gagnon asserts that Va. S. Ct. R. 5:25 bars Assistant Principal Burns from complaining about jury instructions for the first time on appeal. At trial of the brain injury lawsuit, Assistant Principal Burns requested the negligence definition and finding instructions given, but not any other special “duty” instruction.

“It has been held that the failure to request an instruction at the trial bars any appeal on the point.” Friend, Law of Evidence in Virginia, §8-2 at 282 (6th ed. 2010 cumm supp.). Rose v. Jaques, 268 Va. 137, 158 (2004)(citing Va. S. Ct. R. 5:25 for not requesting instruction as failure to perfect in trial court and bar on appeal). “Accordingly, because [Defendant in Burns v. Gagnon] failed to pursue [any other instruction on duty to the brain injury student], we will not address the issue on appeal. Rule 5:25.” Oden v. Salch, 237 Va. 525, 531 (1989).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Continue reading "Virginia Personal Injury Communications: Va. Code Ann. §8.01-399 (Amended) – a Lawyer’s Privilege " »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Continue reading "Virginia Contracts: Statute of Limitation – a Lawyer’s Installment" »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Continue reading "Virginia Sovereign Immunity: Gross Negligence – a Lawyer’s Exception" »

This is the fourth in the five-part series from the brain injury case of Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Gloucester County Circuit Court. It concludes the ministerial act exception to Virginia sovereign immunity.

There are four additional sovereign immunity cases evincing that an individual employee like Defendant, Travis Burns, still is liable for “simple negligence in the performance of a ministerial act”. See, Exhibit A, Jennings v. Hart, No. 3:08CV00028, Memorandum and Order (W.D. Va. Mar. 17, 2009)(Virginia law); Hughes v. Lake Taylor City Hosp., 54 Va. Cir. 239 (Norfolk Dec. 13, 2000); Exhibit B, Fender v. Cendana, No. 96-6844, Op. Letter and Order (Albemarle Jan. 28, 1998); Deeds v. DiMercurio, 30 Va. Cir. 532 (Albemarle Sep. 4, 1991). They are dispositive of Gagnon.

In Jennings this year, sheriff department employees denied medical care to an inmate who ultimately died. Memorandum Op. at 1-3. United States District Court properly focused on the particular act in question (rather than the actor’s general position), principally citing James, and denied the motion to dismiss.

“The doctrine of sovereign immunity applies to acts that are discretionary, but not ministerial, in nature. * * * * The fact that the provision of medical care to Jennings initially involved the exercise of some judgment and discretion, however, does not necessarily mean that the Defendants should be entitled to sovereign immunity. Every act involves the exercise of at least some amount of discretion. See, Memorandum Op. at 5 (underlining added)(italics in original). Judge Moon in Jennings delineated, “Whether a matter is truly committed to the discretion of a government employee is therefore a question of degree and requires a analysis of the circumstances of a particular situation. * * * [W]ell before Jennings was taken to the hospital, the circumstances were such that the Defendants lacked the discretion to keep her at the jail and deny her the opportunity to be seen by a neurologist or other medical professional. Id. at 6. (emphasis added).

In Hughes in 2000, nurses and a therapist misclassified a patient as “DNR” versus “full code” status and failed to arrange her emergency transport as ordered, causing death. 54 Va. Cir. at 239. Norfolk Circuit Court correctly focused on the particular act in question (instead of the actor’s general positions), citing principally James, and overruled their special plea. Id. at 242-244.

Continue reading "Virginia Sovereign Immunity: Ministerial Acts – a Lawyer’s Exception (III)" »

This is the third in the five-part series from the brain injury case of Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Gloucester County Circuit Court. It continues the ministerial act exception to Virginia sovereign immunity.

Heider and Friday-Spivey have articulated and promoted the ministerial act exception to sovereign immunity, such that it increasingly has gained traction in the circuit courts throughout the Commonwealth. Not surprisingly, much of their progeny are cases about the ministerial act of driving. E.g., Lake, supra (law enforcement officer driving to suspected homicide scene in Prince George); Baker, supra (game warden driving on patrol for potential law breakers in Fauquier); Ferro, supra (social worker driving transport of an upset teenager in Prince William); Howard, supra (dump truck operator driving route in Richmond); Daddio, supra (fire fighter driving to station for fire call in Loudoun); and Diaz, supra (unspecified employee driving in Norfolk). However, various other cases exemplify the breadth of the ministerial act doctrine, including notably in circumstances apparently presenting more arguable judgment and discretion than the matter sub judice. E.g., Ford, supra (Commonwealth doctor leaving gauze in wound); Gray, supra (Commonwealth nurse placing line in wrong blood vessel); Habib, supra (Commonwealth transportation inspectors failing to correct defective roadway); MFC, supra (Commonwealth special agent destroying explosives); and Yassa, supra (City zoning administrator approving plot plan). In Gagnon, the brain injury victim asserts that Defendant Assistant Principal Burns failing to call the security officers as he needed and assured patently is a ministerial act.

In Ford, a 2002 malpractice case, the patient alleged that the defendant Commonwealth doctor negligently left infectious gauze in his hip would by “failing to fully explore the wound to remove foreign objects during dressing changes; by failing to suspect and search for a foreign body when the plaintiff showed signs of infection; and by failing to identify the hip wound as the site of infection”. 58 Va. Cir. at 429. Rappahannock County Circuit Court properly focused on the particular act in question (rather than the actor’s general position), citing James, Messina, and Heider; and overruled the plea in bar.

“While it may be said that providing health care services necessarily involves the exercise of some discretion, such discretion may be so inconsequential as to be of little significance when considering a grant of immunity to the health care provider.” Judge Horne continued in Ford, “the procedure that gave rise to the instant action involves a routine medical procedure. For purposes of the analysis, the Court determines based on the experience of Dr. Danisa, that this was a ministerial act not requiring the exercise of judgment and discretion.” Id. at 331-432.

In Gray, a 1996 malpractice case, Commonwealth nurses allegedly inserted a medication line into the wrongful blood vessel. Richmond Circuit Court properly focused on the particular act in question (instead of the actors’ general positions), considering James and citing Heider.

Continue reading "Virginia Sovereign Immunity: Ministerial Acts – a Lawyer’s Exception (II)" »

In Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Circuit Court for Gloucester County, the brain injury victim is contesting the Assistant Principal’s Plea of Sovereign Immunity. One ground for opposition is that the Defendant’s alleged wrongful act is simply ministerial, which continues the five-part series.

Following James v. Jane, 221 Va. 43, 53 (1980) and Messina v. Burden, 228 Va. 301, 313, the Virginia Supreme Court in Lentz v. Morris, 236 Va. 78, 82 (1984)(emphasis added), focused the inquiry on “whether the alleged wrongful act involved the exercise of judgment and discretion” or simply was a ministerial one. Subsequently in First Va., the wrongful act was a Deputy Clerk’s indexing error. The Virginia Supreme Court reversed circuit court sustaining a demurrer, because “the negligence underlying the bank’s claim was malfeasance of a ministerial duty and ther cloak of sovereign immunity does not cover such torts.” 225 Va. at 77.

Again citing James, the Virginia Supreme Court in Heider again focused on the wrongful act and elaborated that some situations present only a “ministerial obligation,” while other instances involve “acts of judgment and discretion;” such that defendant’s claim of sovereign immunity must be scrutinized on the particular facts of the case. “The holding and principle announced fifty years ago in Wynn [v. Grandy, 170 Va. 590 (1938)] remain viable today. While every person driving a car must make myriad decisions, in ordinary driving situations the duty of due care is a ministerial obligation. The defense of sovereign immunity applies only to acts of judgment and discretion which are necessary to the performance of the governmental function itself.In some instances, the operation of an automobile may fall into this category, such as the discretionary judgment involvement in vehicular pursuit by a law enforcement officer. However, under the circumstances of this case, the simple operation of an automobile did not involve special risks arising from the governmental activity, or the exercise of judgment or discretion about the proper means of effectuating the governmental purpose of the driver’s employer. Thus, on the showing here, the trial court properly held that Heider was not entitled to the defense of sovereign immunity.” 241 Va. at 145 (citations omitted). In Heider, a deputy sheriff driving while serving judicial process had collided with a motorcyclist.

The Virginia Supreme Court reaffirmed Heider in Friday-Spivey in 2004, focusing on the wrongful act yet again. In Friday-Spivey, a fire truck operator unsuccessfully sought sovereign immunity for personal injuries caused in responding to rescue a child locked in a car. The defendant unpersuasively cited “as examples of discretion and judgment his determination of the route to be taken and the maneuvering of the 40,000 pound pumper truck through traffic [and] the inherent difficulty and special skills required in operating a specialized piece of equipment”. Id. at 388. “Despite a natural inclination to classify the report of a child in a locked car as an ‘emergency,’ the facts of the case do not support the conclusion that Collier’s driving involved the exercise of judgment and discretion beyond that required for ordinary driving in routine traffic situations. * * * * The special skill and training required to operate a fire truck under these circumstances is not the exercise per se of judgment and discretion for purposes of sovereign immunity.” Id. at 390. The defendant’s “driving was a ministerial act requiring no significant judgment and discretion beyond that of ordinary driving in routine traffic.” Id. Thus, the Virginia Supreme Court concluded in Friday-Spivey that the fire truck operator “did not exercise judgment and discretion beyond that necessary in a ordinary driving situation – a ministerial act. As such, he is not entitled to sovereign immunity for his alleged negligence.” Id. (reversing grant of plea in bar and remanding for further proceedings).

In Virginia, the Commonwealth, counties, cities, towns, school boards, agencies, and sometimes even their employees enjoy sovereign immunity from the wrongful deaths, brain injuries and other personal injuries they cause. Currently an Assistant Principal is claiming sovereign immunity for brain injuries suffered by a student who was attacked at Gloucester High School after the Assistant Principal allegedly was warned of the impending attack, assured he would notify security personnel on premises, and did nothing instead. See, Gregory J. Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Gloucester County Circuit Court.

This is the first in a five-part series on exceptions to Virginia sovereign immunity. The series will be followed by a related post on duties of school board employees and others.

Virginia law is clear that even if a governmental entity is immune, its employees individually still are liable for simple negligence in the performance of a ministerial act. E.g., Friday-Spivey v. Collier, 268 Va. 384, 388-391 (2004); Heider v. Clemons, 241 Va. 143, 145 (1991); First Va. Bank-Colonial v. Baker, 225 Va. 72, 78 (1983); Lake v. Mitchell, 2008 Va. Cir. LEXIS 118, * 1, 7-8 & 12, (Prince George May 23, 2008)(relied on by Defendant at bar at discovery hearing); Baker v. Miller, 74 Va. Cir. 98, 99-100 (Fauquier Aug. 7, 2007); Ferro v. Shifflett, 72 Va. Cir. 298, 302-303 (Prince William Nov. 29, 2006); Howard v. Streater, 71 Va. Cir. 61 (Richmond Apr. 24, 2006); Ford v. Commonwealth, 58 Va. Cir. 428, 429-431 (Rappahannock Apr. 3, 2002); Daddio v. Ashley, 43 Va. Cir. 283, 285 (Loudon Sep. 3, 1997); Gray v. Commonwealth, 40 Va. Cir. 419, 421-422 (Richmond Oct. 24, 1996); Diaz v. Mendoza, 46 Va. Cir. 491, 493 (Norfolk Aug. 16, 1995); Habib v. Blanchard, 25 Va. Cir. 451, 453-455 (Fairfax Nov. 13, 1991); MFC Partnership v. Foster, 6 Va. Cir. 349, 356-357 (Lee Jul. 16, 1986); and Yassa v. Moore, 3 Va. Cir. 189, 191-192 (Alexandria May 2, 1984). Additionally, it is clear that governmental employees also still are liable for gross negligence in the performance of any act, including one of judgment and discretion. E.g., B.M.H. v. The School Board of the City of Chesapeake, Virginia, 833 F. Supp. 560, 574 (E.D. Va. 1993) (Virginia law)(school board employee); Koffman v. Garnett, 265 Va. 12, 15 (2003)(school board employee); Verry v. Barry, 72 Va. Cir. 318, 321 (Fairfax Jul. 27, 2006); Kern v. Allee, 2006 Va. Cir. LEXIS 19, * 6-7 (Nelson Feb. 8, 2006)(school board employee); Daddio, supra, 43 Va. Cir. at 286; and Hawkins v. Pinkerton’s, Inc., 42 Va. Cir. 316, 319 (Petersburg May 27, 1997)(cited by Defendant). Cf., Altizer v. County of Tazewell, Va., 2008 Va. Cir. LEXIS 13, * 3-5 (Nelson Feb. 8, 2008).

Plaintiffs in Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Circuit Court for Gloucester County, Virginia, are the family of a student who suffered brain injuries. Defendant Assistant Principal additionally seeks to interpose Va Code Ann. §8.01-47.

§8.01-47 immunizes a “principal…who, in good faith with reasonable cause and without malice, acts to report, investigate or cause any investigation” of certain school activity vis-à-vis the “making of such report, investigation or disclosure”. §8.01-47 must be strictly construed because it is in derogation of common law. Morris, supra.

But Gagnon is not an action for slander, libel, invasion of privacy, etc. for “making of such a report, investigation or disclosure,” as contemplated by §8.01-47. §8.01-47 is not applicable to an action for physical personal injuries for not making an investigation and taking action, which is the facts of Gagnon.

In Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Circuit Court for Gloucester County, Virginia, inter alia Defendant Assistant Principal seeks to interpose Va. Code Ann. §15.2-209. But the statute’s “notice” requirement is inapplicable to this brain injury case on several independent grounds.

§15.2-209 was passed in the 2007 session of the General Assembly and did not become effective until July 1, 2007. Hence it does not apply retroactively to causes of action accruing before that date.

§15.2-209 as a statute “in derogation of the common law . . . must be ‘strictly construed and not . . . enlarged in [its] operation by construction beyond [its] express terms’.” Univ. of Va. Health Servs. Found v. Morris, 275 Va. 319, 332 (2008). It also must be strictly construed because §15.2-209 so states expressly. See, §15.2-209(G). Such strict construction limits the applicability of §15.2-209 in several significant ways.

First, by its own language, §15.2-209 is strictly limited only to a claim for simple “negligence”. See, §15.2-209(A). It does not apply to claims of recklessness or gross negligence.

Second, by its own language, §15.2-209 applies only to a “county, city, or town,” not to a “school board”. §8.01-222 was the predecessor of §15.2-209: §8.01-222 was repealed incident to §15.2-209 being enacted by 2007 Senate Bill 913, approved March 15, 2007. §8.01-222 covered only a “city” or “town”. §15.2-209 added only a “county”. If the General Assembly meant to cover a “school board,” it could, should and would have done so in its new enactment; but it did not.

Continue reading "Gloucester County Schools: Va. Code Ann. §15.2-209 – a Lawyer’s Notice " »

Sometimes an unscrupulous adversary lulls another into a false sense of security and inaction, and then seeks to capitalize on technicalities implicated thereby, such as time deadlines missed by the unsuspecting victim. Fortunately Virginia courts are empowered to resolve such injustices based on equity instead of on legal technicalities.

“Courts of equity will not permit a party by his or her words and conduct to manipulate judicial proceedings in a manner that will work an injustice by inducing the adverse party not to defend the cause. Estoppel by conduct, whereby a party will not be heard to deny that which he has induced others to rely upon as true, extends without limit throughout the law.” Emrich v. Emrich, 9 Va. App. 288, 293-294 (1989).

“The general rule of equitable estoppel, or, as it is frequently called, estoppel in pais, is that when one person, by his statements, conduct, action, behavior, concealment, or even silence, has induced another, who has a right to rely upon those statements, etc., and who does rely upon them in good faith, to believe in the existence of the state of facts with which they are compatible, and act upon that belief, the former will not be allowed to assert, as against the later [sic], the existence of a different state of facts from that indicated by his statements or conduct, if the latter has so far changed position that he would be injured thereby.” Id. at 294.

“Trial courts clearly have a duty to inquire further when allegations of fraud and deceit are alleged with specificity, as they were here.” Id. at 295. “While Rule 2:17 dispenses with notice to defendants of any subsequent proceedings against whom a bill of complaint is taken for confessed, a bill of complaint for divorce or annulment is never taken for confessed. Id. at 296.

The General Assembly enacted the Statute of Frauds, making certain oral contracts unenforceable. It explicitly required a contract be “in writing and signed by the party to be charged” in enumerated cases. Va. Code Ann. § 11-2.

For well over a century however, the Commonwealth’s Courts have relaxed that strict statutory requirement of a signed writing to avoid manifest injustice. Specifically, Courts have applied the equitable doctrine of partial performance to the Statute, ameliorating its harsh consequences. E.g., Runion v. Helvestine, 256 Va. 1, 6-8 (1998); Glovier v. Dingus, 173 Va. 268, 280-283 (1939); Clarke v. Collins, 73 Va. Cir. 12, 17 (Lynchburg Oct. 4, 2006); Grant v. Grant, 67 Va. Cir. 412, 414 (Roanoke Jun. 15, 2005); Net Connection v. GWBEH, L.L.C., 67 Va. Cir. 150, 152 (Fairfax Mar. 8, 2005); Fauntleroy v. Borden, 63 Va. Cir. 144, 145-147 (Richmond Sep. 23, 2003).

Following Wright v. Puckett, 63 Va. (22 Gratt) 370 (1872), the Virginia Supreme Court reiterated in Glovier and again in Runion. "[T]he principles upon which courts of equity have avoided the statute of frauds, upon the ground of part performance of a parol agreement, are now as well settled as any of the acknowledged doctrines of equity jurisprudence. From the numerous decisions on the subject the following principles may be extracted and briefly stated as follows: 1st. The parol agreement relied on must be certain and definite in its terms. 2nd. The acts proved in part performance must refer to, result from, or be made in pursuance of the agreement proved. 3rd. The agreement must have been so far executed that a refusal of full execution would operate a fraud upon the party, and place him in a situation which does not lie in compensation. Where these three things concur, a court of equity will decree specific execution." 256 Va. at 6; 173 Va. at 280. Fauntleroy, 63 Va. Cir. at 145. Therefore, grants of demurrers were reversed in Glovier and Runion.

Continue reading "Virginia Statute of Frauds: Va. Code Ann. § 11-2 – a Lawyer’s Equity" »

The purposes of the Statute of Frauds simply are to provide reliable evidence of the existence and terms of certain covered contracts and to reduce the likelihood that they can be created or altered by perjury or fraud. E.g., Lindsay v. McEnearney Assocs., 260 Va. 48 (2000). Consequently, the Statute of Frauds never is enforced when the effect thereof would be to perpetrate a fraud or other wrong. E.g., Troyer v. Troyer, 231 Va. 90 (1986); Murphy v. Nolte & Co., 226 Va. 76 (1983); T… v. T…, 216 Va. 867 (1976); and Reynolds v. Dixon, 187 Va. 101 (1948). Thus, even in actions at law, the doctrine of equitable estoppel bars the assertion of a Statute of Frauds defense where there has been reasonable material detrimental reliance. E.g., Tidewater Beverage Servs., Inc. v. Coca-Cola Co., 907 F.Supp. 943 (E.D. Va. 1995)(Virginia law); Nargi v. Camac Corp., 820 F.Supp. 253 (W.D. Va. 1992)(Virginia law); T… v. T…, 216 Va. 867 (1976).

The Statute of Frauds does not require any particular form of writing or other writing formality whatsoever. It simply mandates a “writing and signed by the party to be charged”. Va. Code Ann. §11-2. And for about 100 years, the Virginia Supreme Court liberally has accepted all manner of writings. E.g., Yaffe v. Heritage Sav. & Loan Assn., 235 Va. 577 (1988)(auctioneer’s memo); Troyer v. Troyer, 231 Va. 90 (1986)(divorce deposition); Fanney v. Virginia Inv. & Mtg. Corp., 200 Va. 642 (1959)(stockholder resolution); Browder v. Mitchell, 187 Va. 781 (1948)(court pleading); Horner v. Holt, 187 Va. 715 (1948)(payment receipt); Reynolds v. Dixon, 187 Va. 101 (1948)(letter); American Surety Co. of New York v. Commonwealth, 180 Va. 97 (1942)(bond receipt); Boston v. Dejarnette, 143 Va. 591 (1930)(land deed); Radford Water Power Co. v. Dunlap, 128 Va. 658 (1920)(telegram); Croghan v. Worthington Howe Co., 115 Va. 497 (1913)(acceptance letter); and Newport News, Hampton & Old Point Dev. Co. v. Newport News St. Ry, 97 Va. 19 (1899)(board resolution).

Also, the Statute of Frauds does not require the writing itself constitute the whole contract. It need only state essential terms. E.g., Troyer v. Troyer, 231 Va. 90 (1986); Murphy v. Nolte & Co., 226 Va. 76 (1983); Fanney v. Virginia Inv. & Mtg. Corp., 200 Va. 642 (1959); Browder v. Mitchell, 187 Va. 781 (1948); and Reynolds v. Dixon, 187 Va. 101 (1948).

Additionally, the Court does not even require that the “writing” actually be a single integrated writing. The “writing” can be several or more separate writings, only one of which is signed. E.g., In re LCS Homes, Inc., 103 B.R. 736 (E.D.Va. 1989)(Virginia law); Hewitt v. Hutter, 406, F.Supp. 976 (W.D.Va. 1975)(Virginia law); American Indus. Corp. v. First and Merchants Natl Bank, 216 Va. 396 (1975); Reynolds v. Dixon, 187 Va. 101 (1948); J. S. Salyer Co. v. Doss Coal Co., 157 Va. 144 (1931); and Radford Water Power Co. v. Dunlap, 128 Va. 658 (1920).

Further, although the Statute of Frauds recites that the writing must be “signed,” an actual signature is not necessary. E.g., Barber & Ross Co. v. Lifetime Doors, Inc., 810 F. 2d 1276 (4th Cir.)(1987), cert. denied 108 S. Ct. 86, 484 U.S. 823, 98 L.E. 2d 48 (1988); Radford Water Power Co. v. Dunlap, 128 Va. 658 (1920). In Barber, printed sales brochures with the maker’s trademark sufficiently authenticated the documents. Similarly, Radford Water Power involved telegrams bearing the name of the maker. Indeed, final delivery of the “signed” writing is not even required. E.g., Boston v. Dejarnette, 153 Va. 591 (1930); and Chiles v. Bowyer, 127 Va. 249 (1920).

Continue reading "Virginia Statute of Frauds: Va. Code Ann. §11-2 – a Lawyer’s Overview." »

On February 23, 2009, Gloucester Circuit Court ruled that a Plaintiff brain injury victim was entitled to all school records concerning his attack, despite Gloucester High School keeping them solely in the files of his attacker, another student named Co-Defendant with its Assistant Principal. The case is Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572.

Assistant Principal Burns and the Gloucester County School Board had sought to keep the investigative records secret, claiming Va. Code Ann. § 22.1-287 imbued them with “privilege”. However, §22.1-287 only subjects such records to certain limitations (versus absolute privilege), and specifically excepts involved students, their parents, and judicial discovery.

Plaintiff brain injury victim successfully relied on Bunch v. Artz, 71 Va. Cir. 358 (Portsmouth Aug. 15, 2006), the leading opinion applying §22.1-287. In Bunch, school pupil records were subject to the ordinary rules of discovery and ordered produced.

Patients have a fundamental right to know the facts of what a commissioned third-party did to his or her body and mind. Patient care inherently is an invasion of privacy interests, the medical malpractice of which denies life, liberty and/or the pursuit of happiness. Because these patient rights are of constitutional proportions, they are inalienable and cannot be abrogated, abridged and/or infringed by statute or common law for the special interest benefit of those hired third-parties. The fact that healthcare providers are paid servants of the patients cuts against any protectionism. §8.01-581.17 is unconstitutional as drafted and as applied. It impacts most the class of patients who need disclosure most. It also denies them procedural and substantive due process.

Claimed “privilege does not permit a litigant to commit a fraud upon a court.” Owens-Corning Fiberglass Corp. v. Watson, 243 Va. 128, 141 (1992). Peterson v. Fairfax Hosp. Sys., Inc., 32 Va. Cir. 294 (Fairfax 1993)(medical malpractice misrepresentation vitiates privilege). Moreover, defense discovery frauds are admissible in evidence. John Crane, Inc. v. Jones, 274 Va. 581, 589-590 (2007); Owens-Corning, 243 Va. at 141-142. “[W]hen deciding whether a fraud has been committed . . . a controlling factor is ‘whether the misconduct tampers with the judicial machinery and subverts the integrity of the court’.” Id. at 142.

Eppard v. Kelly, 62 Va. Cir. 57, 59-61 (Charlottesville 2003), another medical malpractice case, exposed the “quality” scheme of the University of Virginia Medical Center (“UVMC”). In 1991, UVMC’s “Incident/Occurrence Reports” summarily were retitled “Quality Reports” and claimed “generated to initiate quality review of Health System processes, practices, and procedures for quality assurance purposes.” Id. at 60. Retitled Reports were routed to various committees ostensibly concerned “primarily with health care improvement activities,” but whose membership included and/or was reported to by “risk management and insurance” and “legal” personnel. Id. at 60-61. UVMC and PLT also maintained “patient databases” and “incident report with medical chart review material in a database format” accessible by the Risk Manager. Id. at 60, 65.

Eppard found “there may be incentives to immediately commingle the creation of an incident report with healthcare evaluation by using § 8.01-581.17 to avoid discovery of damaging information or documents.” Id. at 64. Further, “since the University’s Risk Management staff as well as the PLT staff assigned to the healthcare committees have become part of the healthcare improvement process, the system appears to be designed to wrap large segments of the patient treatment review investigation under a blanket of privilege.” Id. “However, ‘peer review’ should not be used to shield from disclosure medical records not generated initially for peer review objectives.” Id. at 63. Eppard held “commingling” the “healthcare improvement committee” with legal, risk management and insurance interests did not create privilege under § 8.01-581.17. Id. at 64. Eppard ordered discovery of “Case Notes,” i.e., “an incident report with medical chart review material in a database format,” and “Database Notes,” including “medical discussions [that] list investigative facts unearthed by the various parties involved.” Id. at 65.

In a recent medical malpractice case, Judge Tench in Newport News seized upon the old scam: “It seems to be that what the healthcare providers does is they try to couch all this as confidential and say the only thing that the patient gets is the patient’s chart … .” See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 38.16-23 (emphasis added). After in camera review, Judge Tench and redacted and disseminated Riverside records. See, 10/31/07 Licare v. Riverside Judge’s Letter.

The sufficiency of §1983 civil rights wrongful death and other federal suits is scrutinized in the light most favorable to the plaintiff, particularly when the initial complainant is pro se. Avery T. “Sandy” Waterman, Jr., Esq. recently prevailed on the point against Rule 12 Motions to Dismiss in Webb v. Stevens, 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008), a civil rights wrongful death case under 42 U.S.C. §1983.

The United States Supreme Court has declared that the general “inartfully pleaded” allegations of a pro se §1983 civil rights complaint are held to “less stringent standards”. See, e.g., Haines v. Kerner, 404 U.S. 519, 520-521 (1972) (reversing Fed. R. Civ. P. 12 dismissal). “It is now established doctrine that pleadings should not be scrutinized with such technical nicety that a meritorious claim should be defeated, and even if the claim is insufficient in substance, it be amended to achieve justice. [A] complaint, especially a pro se complaint, should not be dismissed summarily unless ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief….” Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.), cert. denied, 439 U.S. 970 (1978) (emphasis in original) (reversing Rule 12 dismissal of pro se §1983 civil rights complaints). “The Fourth Circuit takes the position that its district courts must be especially solicitous of civil rights plaintiffs….This solicitude for a civil rights plaintiff with counsel must be heightened when a civil rights plaintiff appear pro se.” Id.

Since “a pro se complaint must be read liberally,” the “power summarily to dismiss…is limited”. See, e.g., Hudspeth v. Figgins, 584 F.2d 1345, 1347 (4th Cir. 1978) (reversing Rule 12 dismissal of pro se §1983 civil rights complaint). See also, e.g., Bolding v. Hoshouser, 575 F.2d 461 (4th Cir.), cert. denied, 439 U.S. 837 (1978)(manifest that broad sweeping pro se complaint of constitutional deprivations is immune from Rule 12 dismissal). “Pro se complaints and petitions should be construed liberally by this court. Such pro se complaints and petitions are held to a less stringent standard than those drafted by attorneys. A federal district court is charged with liberally construing a complaint or petition file by a pro se litigant to allow the development of a potentially meritorious case. Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 66 L.Ed.2d. 163 (1980).” Phomphackdi v. Spartanburg County, 2007 U.S. Dist. LEXIS 19895, *4 (D.S.C. Mar. 20, 2007)(citation omitted).

Rule 12 tests the sufficiency of a Complaint. On 12(b)(6) motion, “we accept as true the allegations of the complaint.” Adams v. Bain, 697 F.2d 1213, 1217 (4th Cir. 1982) (reversing and remanding dismissal of §1983 civil rights action). In addition, the court also may consider “matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint.” Wu v. Tseng, 2007 U.S. Dist. LEXIS 5025 (E.D. Va. 2007)(quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure §1357 (1990). See, Anheuser Busch, Inc. v. Schmoke, 63 F.3d 1305, 1312 (4th Cir. 1995), vacated on other grounds, 517 U.S. 1206 (1996). “The same standard is applied to a Rule 12(c) motion as for a Rule 12(b)(6) motion to dismiss.” See, e.g., Syngenta Crop Protection, Inc. v. United States, 444 F.Supp.2d 435, 444 (M.D. N.C. 2006).

It is hornbook law that the Court cannot consider Exhibits submitted by Defendant without converting the 12(b)(6) motion to a Rule 56 motion, giving Plaintiff sufficient advance notice of the same, and permitting full discovery with which to oppose it. A 12(b)(1) motion is “critically different” than a 12(b)(6) motion: “Unlike the procedure in a 12(b)(6) motion where there is a presumption reserving the truth finding role to the ultimate fact finder, the court in 12(b)(1) hearing weighs the evidence to determine jurisdiction.” See, e.g., Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (§1983 civil rights dismissal reversed and remanded). “A trial court may consider evidence [on a 12(b)(1) motion] by affidavit, depositions or live testimony without converting the proceeding to one for summary judgment.” Id. Significantly, however, 12(b)(1) motions should be denied where underlying “jurisdictional facts are intertwined with the facts central to the merits of the dispute. It is the better view that in such cases the entire factual dispute is appropriately resolved only be a proceeding on the merits.” Adams.

The timeliness of §1983 civil rights wrongful death and other federal suits depends on when the complaint physically was delivered to a Court officer, not when it is stamped “filed” and/or its fees are paid. Avery T. “Sandy” Waterman, Jr., Esq. recently has survived the point in Webb v. Stevens, No. 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008), a civil rights wrongful death case under 42 U.S.C. §1983. In Webb, the pro se plaintiff timely delivered the complaint, but did not pay the filing fee; and then was denied his petition to proceed in forma puaperis (such that his complaint was not stamped “filed” until he belatedly paid the filing fee).

The “Federal Rules of Civil Procedure govern the commencement of this suit for purposes of tolling the state statute of limitations.” Lewis v. Richmond City Police Dept., 947 F.2d 733, 735 (4th Cir. 1991)(holding pro se litigant timely “filed” by depositing his §1983 complaint in prison mailbox). “As long as the complaint is deemed filed within the limitations period, the action is timely.” Id. (citing Fed. R. Civ. P. 3) (emphasis added). “The phrase ‘filing a complaint’ as used in Rule 3, means nothing more than delivery of the complaint to an officer of the court authorized to receive it – under Rule 5, the clerk of court or a judge thereof.” See, Robinson v. Waterman S.S. Co., 7 F.R.D. 51, 54 (D.N.J. 1947) (amended complaint delivered to judge, but not clerk, timely). See also, e.g., Robinson v. Yellow Freight Sys., 892 F.2d 74 (4th Cir. 1989)(pro se complaint); Ladd Furniture, Inc. v. Ernst & Young, 1998 U.S. Dist. LEXIS 173 45, *20 (M.D.N.C. 1998)(third-party complaint attached to motion for leave to amend filed timely despite grant after statute of limitations ran).

Wells v. Appel, 103 F.Supp.2d 893 (W.D. Va. 2000) is on point. In Wells, plaintiff timely delivered the clerk a complaint and an application to proceed in forma pauperis on November 29, 1999; but the court denied her application, and she did not pay her filing fee and correspondingly her complaint was not marked “filed” until January 12, 2000, after the statute of limitation had run. Id. 894-895. Nonetheless, Wells followed the “better rule” that a Complaint be deemed “filed” as of “the date on which it was first received by the clerk’s office,” regardless “the untimely payment of the required filing fee”. Id. at 896-899. See, also, e.g., Parissi v. Telechron, Inc., 349 U.S. 46, 47 (1955)(untimely filing fee payment did not “vitiate the validity” of appeal notice); Hunt v. Stone, 39 F.3d 1177 (4th Cir. 1994) (“Appellant’s petition should have been deemed filed on the date that the district court clerk received it along with what Appellant reasonably believed was the filing fee.”); Robinson v. Poe, 272 F.3d 921, 922-923 (2001), reh. en banc denied 2002 U.S. App. LEXIS 585 (7th Cir. 2002)(pro se §1983 complaint timely “filed” upon receipt by clerk, despite its return for lack of required filing fee; as local rule “cannot defeat a right, which in this case is the right to arrest the running of the statue of limitation by filing a complaint in the district court, that is conferred by the national rules”); McDowell v. Delaware State Police, 88 F.3d 188, 190-191 (3d Cir. 1996) (“Although a complaint is not formally filed until the filing fee is paid, we deem a complaint to be constructively filed as of the date that the clerk received the complaint – as long as the plaintiff ultimately pays the filing fee or the district court grants the plaintiff’s request to proceed in forma pauperis.”); Cintron v. Union Pac. R.R. Co., 813 F.2d 917, 919-921 (9th Cir. 1987)(complaint constructively filed upon delivery to clerk despite rejection for non-compliance with local rules and filing fee statute); Rodgers v. Bowen, 790 F.2d 1550, 1551-1553 (11th Cir. 1986); Lyons v. Goodson, 787 F.2d 411, 412 (8th Cir. 1986); Leggett v. Strickland, 640 F.2d 774, 776 (5th Cir. 1981); In re Horob, 54 B.R. 693, 696 (Bankr. D.N.D. 1985); Johnson v. The Univ. of Va. Med. Ctr., 2007 U.S. Dis. LEXIS 3122, * 9 (W.D.Va. Jan. 17, 2007) (in forma pauperis Complaint is deemed “filed” when physically delivered to the Clerk’s office, not when formally docketed subsequently upon payment of fee); Cornett v. Weisenburger, 454 F.Supp.2d 544 (W.D. Va. 2006); and In re Emory, 219 B.R. 703, 708 (Bankr. D.S.C. 1998).

Fed. R. Civ. P. 15(a) strongly favors leave to amend being granted, including in §1983 civil right suits for wrongful death. Avery T. “Sandy” Waterman, Jr., Esq. recently was granted leave to amend a wrongful death suit against a former North Carolina state trooper with Rule 12 motions to dismiss pending. Webb v. Stevens, No. 5:05-CV-33-BO(1) Decision and Order (Mar. 17, 2008), aff’d Order (E.D.N.C. May 22, 2008).

Webb held that amendment was not futile, unduly prejudicial, or in bad faith. See, Decision and Order at 4-7. Adding “an additional theory of recovery to the facts already pled…before any discovery has occurred” is permissible. Id. at 3.

Mr. Waterman’s success in Webb follows the Fourth Circuit reaffirming the liberal mandate of Rule 15 in 2006 and 2007, twice vacating and remanding for district court denials of leave to amend for abuse of discretion, even in the face of delay. “Delay alone… is an insufficient reason to delay the plaintiff’s motion to amend.” Laber v. Harvey, 438 F.3d 404, 427 (4th Cir. 2006)(en banc). Sitting en banc, the Fourth Circuit in Laber concluded that it was an abuse of discretion to deny Plaintiff’s Motion for Reconsideration and to Amend because Plaintiff’s amendment was not in bad faith, prejudicial or futile. Id. at 429. To the same effect is the Fourth Circuit’s more recent decision following Laber in Sciolino v. City of Newport News, Virginia, 480 F.3d 642, 651 (4th Cir. 2007)(Rule 15 motion to file a second amended §1983 civil rights complaint after entry of judgment of dismissal was appropriate).

“Rule 15(a) directs that leave to amend ‘shall be freely given when justice so requires.’ This liberal rule gives effect to the federal policy in favor of resolving cases on their merits instead of disposing of them on technicalities. See, Conley v. Gibson, 355 U.S. 41,48, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)(‘The Federal Rules reject the approach that pleading is a game of skill in which one misstep counsel may be decisive to the out outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.’); Ostrzenski v. Seigel, 177 F. 3d 245, 252-53 (4th Cir. 1999)(‘The Federal Rule policy of deciding cases on the basis of substantive rights involved rather on technicalities requires [the] Plaintiff be given every opportunity to cure a formal defect in his pleading.’(quoting 5(A) Charles Allen Wright & Arthur R. Miller, Federal Practice & Procedure § 357(2d ed. 1999))).”

Earlier, the Fourth Circuit reversed a district court that denied amendment because of “a change in the theory of recovery.” Wards Elecs. Serv. Inc. v. First Commercial Bank, 819 F.2d 496 (4th Cir. 1987). The “fact than an amendment changes the plaintiff’s theory of the case will not suffice as a reason for denial absent a showing of prejudice, bad faith, futility, or dilatoriness.” Id. At 497. “Under the circumstances, we think that Foman’s spirit required permitting this second amendment still early in the pre-trial process.” Id. (emphasis in original).

Continue reading "Federal Wrongful Death Suit Amendment – a Lawyer’s Complaint (FRCP 15)" »

Federal wrongful death suits properly are amended to substitute the correct estate representative after the limitation period has run. The leading Virginia case was litigated by Avery T. “Sandy” Waterman, Jr., Esq. Zhu v. Rocco Farms, Inc., 1998 U.S. Dist. LEXIS 21781 (W.D. Va. 1998). A leading North Carolina case also was litigated by Mr. Waterman. Webb v. Stevens, No. 5:05-CV-33-BO(1) Decision and Order (Mar. 17, 2008), aff’d Order (E.D.N.C. May 22, 2008).

Zhu found that Federal procedural rules plainly provided for such amendment and relation back in wrongful death suits. “Under the federal rules, when the wrong party has brought a suit, the federal court may substitute the real party in interest in order to avoid forfeiture and injustice. See Levinson v. Denpree, 345 U.S. 648, 97 L.Ed. 1319, 73 S. Ct. 914 (1953); Fed. R. Civ. P. 15 and 17. The court may ‘continue the action, even though the state law under its statute of limitations might not allow relation back and would require dismissal.’ 3A James Wm. Moore et al., Moore’s Federal Practice §17.15 (2d ed. 1982). The statute of limitation does not pose an obstacle to the change in parties since Rule 17 states that ‘substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.’ Fed. R. Civ. P. 17(a); see also 6A Charles Alan Wright, et al. Federal Practice Procedure §1555 (2d ed. 1990).” Id. at *3-4. Indeed, lenient Fed. R. Civ. P. 17(a) prohibits dismissal “on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for . . . substitution of the real party in interest”. Id. at *4 (emphasis added). Zhu concluded: “The court believes that substituting personal representatives, absent a showing of improper or deceitful conduct by the plaintiff, constitutes just cause for abating an action until appointed.” Id. at *5.

Recently in Webb, a §1983 civil rights case for wrongful death, the court granted amendment and substitution of estate representatives with motions to dismiss over the point pending. Webb substituted an ancillary estate administrator qualified in the forum state of North Carolina instead of the estate administrator qualified in Virginia. See, Decision and Order at 4.

Earlier in McNamara v. Kerr-McGee Chem. Corp., 328 F.Supp. 1058 (E.D.N.C. 1971), this Court reached the same result. It did so despite holding incorrectly that North Carolina law must be applied to another wrongful death action under diversity jurisdiction, because North Carolina had adopted the relevant Federal rules. “The court is of the opinion that the North Carolina Supreme Court would hold that the enactment of Rule 15(c) changes the North Carolina law to conform to the majority state court rule and to the established rule in the Federal courts. The court is further of the opinion that the requirements of Rule 15(a) and (c) are met, and therefore, in the interest of justice, plaintiff’s motion to amend the complaint…is hereby granted. The court is also of the opinion that plaintiff’s motion to substitute a party plaintiff and to ratify the complaint must be granted [under North Carolina Rule 17(a)].” Id. at 1059. Subsequent to McNamara, consistent with Zhu, the Fourth Circuit held that Federal procedure governed in a diversity action, even if State procedure otherwise would command a different result. Davis v. Piper Aircraft Corp., 615 F.2d 606, 611 (4th Cir.), cert. denied 448 U.S. 911 (1980).

“Indeed, amendments to pleadings which substitute the real party in interest for a person who did not enjoy that capacity when he brought the claim is a more drastic change in the kind of claimant than an amendment which merely changes the capacity in which the same named individual is suing. Rule 17(a) expressly authorizes the former substitution of one party for another.” Burcl v. North Carolina Baptist Hosp., Inc., 306 N.C. 214, 230, 293 S.E.2d 85, 95 (1982). The Western District sua sponte has stayed a motion to dismiss to “permit Plaintiff or a similarly situated substitute … reasonable time to seek proper qualification as ancillary administrator or personal representative, to file a supplemental pleading establishing such qualification, and thereby to ratify the commencement of this action,” see, e.g., Janean v. Pitman Mfg. Co., 1991 U.S. Dist. LEXIS 19322 (W.D.N.C. 1991); and the Fourth Circuit even has raised the possibility of remand for that purpose. See, e.g., Messer v. American Gems, Inc., 612 F.2d 1367, 1374 (4th Cir. 1980).

An estate representative filing a federal suit for wrongful death pro se is not impermissible per se and does not constitute unauthorized practice of law. 28 U.S.C. §1654 expressly provides for pro se representation in Federal Court. Moreover, even assuming arguendo that such a temporary practice is disallowed, it is not just grounds for dismissal where the litigant subsequently retains legal counsel. See, e.g., Witherspoon v. Jeffords Agency, Inc., 120 Fed. Appx. 999 (4th Cir. 2005); Webb v. Stevens, No. 5:05-CV-33-BO(1) Decision and Order (E.D.N.C. Mar. 17, 2008) and 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008); Gallo v. United States, 331 F.Supp.2d 446 (E.D. Va. 2004); Brown v. Ortho Diagnostic Sys., Inc., 868 F.Supp. 168, 172 (E.D. Va. 1994); and Wolford v. The Budd Co., 149 F.R.D. 127, 129-131 (W.D. Va. 1993)(North Carolina lawyer filing in Virginia federal court “mere technical defect” cured by retaining Virginia “to do substantial justice” versus “lock the courthouse door”).

The Fourth Circuit addressed an estate representative appearing pro se in a wrongful death suit. It found “no reversible error” in dismissal, but only after plaintiff was given opportunity to retain counsel of record and failed to do so. See, e.g., Witherspoon.

More recently in Webb, a §1983 civil rights suit for wrongful death, the court denied summary dismissal of the pro se complaint where the estate representative retained counsel of record. Avery T. Waterman, Jr., Esq. of Newport News and Williamsburg, Virginia, appeared, briefed and argued in Webb in North Carolina.

Earlier, in Gallo, a parent filed a personal injury action pro se in a representative capacity for a child. The Gallo court concurred with other courts that dismissal would be “unwarranted” because “appointment retention of counsel would solve the defect”; and also “would be a particularly harsh result in this case because any subsequent claim filed…after dismissal of this action would be effectively barred by the statues of limitation”. 331 F.Supp.2d at 448. Thus, Gallo concluded “the proper course is not to dismiss [the] case, but rather to allow Ms. Gallo to take measures to retain an attorney for her daughter.” Id. at 449. Brown, which likewise involved a parent appearing pro se for a child, holds the same. “And dismissal of [plaintiff’s] claim on this ground is certainly unwarranted. Rather, all that is required is for the Court to appoint counsel for [plaintiff], which now has been done.” 868 F.Supp. at 172.

Limiting access to courts by wrongful death and other personal injury victims and/or conspiring to abridge their constitutional protections under color of state law may violate federal civil rights under 42 U.S.C. §1983. Avery T. “Sandy” Waterman, Jr., Esq. recently withstood Fed. R. Civ. P. 12 motions to dismiss such claims on allegations that officers tampered with evidence of a wrongful death victim in Webb v. Stevens, No. 5:05-CV-33-BO(1) Order (Mar. 17, 2008) and 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008).

In 1978, the Fourth Circuit established that citizens “have a constitutional right of meaningful access to the courts which a state may not abridge nor impair, nor may it impermissibly burden its exercise.” Hudspeth v. Figgins, 584 F.2d 1345, 1347 (4th Cir. 1978)(§1983 claim stated). “It is enough that the [constitutional misconduct] was intended to impose a limitation upon the [citizen’s] right of access to the court and was reasonably calculated to have that effect.” Id. at 1348.

In 1987, the Fourth Circuit established that a police officer had a “duty to act,” i.e., a duty “to protect [a citizen] from illegal excesses perpetrated by [another officer present];” and that tacit conspiratorial liability for a §1983 civil rights claim could be predicated on an officer’s failure to protect in such circumstances. Further, the Fourth Circuit established that engagement in “concerted activity” could be inferred from minimal participatory physical conduct by an officer even in the absence of an oral agreement with another officer to deprive constitutional rights. Jackson v. Pantazas, 810 F.2d 426, 430 (4th Cir. 1987)(§1983 excessive force conspiracy claim). Browning v. Snead, 886 F.Supp. 547, 552 (S.D. W.Va. 1995) followed Jackson.

In 1992, the Fourth Circuit outlined, “The district judge did not err by instructing the jury that a claim of conspiracy under 42 U.S.C § 1983 can succeed by a mere showing of acquiescence.” Hafner v. Brown, 983 F.2d 570, 576 (4th Cir. 1992)(§1983 excessive force conspiracy claim). The Fourth Circuit in Hafner emphasized, “Acquiescence can amount to a conspiracy agreement when, as here, one police officer watches an open breach of the law and does nothing to seek its prevention.” Id. at 578. Mere participation in unconstitutional conduct can constitute “concerted activity” without any explicit agreement. Id. at 577. Thus, it is not necessary expressly to show or even allege a specific conspiratorial agreement; it suffices simply to allege and show “mere acquiescence” to prove a conspiracy.

Denial of medical care under color of state law may state a claim for wrongful death or personal injuries under 42 U.S.C. §1983. A leading civil rights case of Avery T. “Sandy” Waterman, Jr., Esq., clearly establishes “deliberate indifference to serious medical needs” as a constitutional violation. Kane v. Hargis, 987 F.2d 1005, 1008-1009 (4th Cir. 1993).

“A duty to render medical care is generally thought of as arising under the Due Process Clause or the Eighth Amendment.” See, e.g., DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 200, 109 S. Ct. 998, 103 L.Ed.2d. 1134, 1139 (D. Minn. 2005). Under the Fourteenth Amendment, pretrial detainees are entitled to at least as much protection as under the Eighth Amendment.” Id. at 1141. Where an officer arrests by shooting and disabling and then denies the arrestee medical care, there is “no reason to carve out a separate standard for arrestees, a subset of pretrial detainees. Bell v. Wolfish, 441 U.S. 520, 523, 99 S. Ct. 1861, 1865-66, 60 L.Ed.2d. 249 (1989). Patrick v. Lewis, 397 F.Supp.2d. 447 (1979).” Nerren v. Livingston Police Dep’t, 86 F.3d. 469, 472-473 (9th Cir. 1996).

Hence, cases have denied qualified immunity for §1983 civil rights claims where defendants have denied arrestees medical attention. For example, in Nerren, supra, the arrestee had fled the scene of an automobile accident and unlawfully was denied requested medical attention upon apprehension. In Torres v. The City of Chicago, 123 F.Supp.2d. 1130 (N.D. Ill. 2000), plaintiff stated a §1983 claim where the police failed to secure a shooting victim the necessary immediate medical attention and he died. In Penilla v. City of Huntington Park, 115 F.3d. 707 (9th Cir. 1997), the police actually frustrated and delayed the victim receiving gravely needed medical care from paramedics, causing his death. To the same effect is Webb v. Stevens, 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008), a wrongful death case litigated by Mr. Waterman, in which qualified immunity was denied under Rule 12 for allegedly conspiring officers delaying emergency medical treatment. Also, “G.S. 15A-503 imposes a duty on police who arrest an unconscious or semi-conscious person to make a reasonable effort to provide appropriate medical care.” Doerner v. City of Asheville, 90 N.C. App. 128, 130, cert. denied 323 N.C. 172 (1988).

No specific precedent for unconstitutionality is necessary for a §1983 civil rights claim where the unlawfulness indisputably is apparent. Factually dissimilar precedent does not entitle an offender qualified immunity where his misconduct is obviously unconstitutional. See, e.g., United States v. Lanier, 520 U.S. 259, 271 (1997). “[W]e must also keep in mind the Supreme Court’s warning that this is not a mechanical exercise, and that the test is not whether ‘the very action in question has previously been held unlawful,’ but rather whether pre-existing law makes the unlawfulness of an act ‘apparent.’ Accordingly, a constitutional right is clearly established for qualified immunity purposes not only when it has been ‘specifically adjudicated’ but also when it is ‘manifestly included with in more general applications of the core constitutional principle invoked.’ Thus, ‘when the defendants’ conduct is so patently violative of the constitutional right that reasonable officials would know without guidance from the courts that the action was unconstitutional, closely analogous pre-existing case law is not required to show that the law is clearly established.’ And to hold otherwise would allow an officer who understood the unlawfulness of his actions to escape liability simply because the incident case could be distinguished on some immaterial facts, or worse, because the illegality of the action was so clear that it had seldom before had been litigated.” Clem v. Corbeau, 282 F.3d. 543, 553 (4th Cir. 2002)(italics in original)(citations omitted).

“N.C.G.S. §15A-401(d) abrogated any public officer immunity for the use of deadly force by creating a state-law privilege for the use of deadly force but specifically providing that nothing in the statute justified willful, malicious or criminally negligent conduct or excused or justified the use of unreasonable or excessive force.” Thompson v. Farmer, 645 F. Supp. 109, 111 (W.D.N.C. 1996). Thus, §15A-401(d)(2) does not insulate officers from all liability for wrongful death and serious personal injury.

§15A-401(d) does not trump Federal law. It codifies not only rights and privileges of officers, but also their “duties” to arrestees, consistent with §1983. See, e.g., J. Michael McGuiness, Law Enforcement Use of Force: The Objective Reasonableness Standards Under North Carolina and Federal Law, 24 Campbell L. Rev. 201, 210 (Spring 2002). “N.C. Gen. Stat. 15A-401 provides both a statutory standard and a privilege for law enforcement officers which is consistent with common law as well as contemporary decisions by the United States Supreme Court regarding the use of force.” Id. Thus, Defendant’s immunity or liability under §15A-401(d) simply tracks his immunity or liability under the United States Constitution. See, e.g., Thompson, 945 F. Supp. at 110-111.

Even if arguendo North Carolina doctrine of public official immunity survives §15A-401(d), it applies only if the action involves the “exercise of judgment and discretion” and is not “corrupt, malicious or beyond the scope of authority”. See, e.g., McGuiness at 211 n. 26 (and North Carolina cases cited therein); Abney v. Cox, 2005 U.S. Dist. LEXIS 41890, *41 (M.D.N.C. 2005); Lea v. Kirby, 171 F.Supp.2d 579, 584 (M.D.N.C. 2001), aff’d in part and dism’d in part, 39 Fed. Appx. 901 (4th Cir. 2002). Showalter v. North Carolina Dept. of Crime Control and Pub. Safety, 2007 N.C. App. LEXIS 836, *8, 643 S.E. 2d 649, 652 (2007); Glenn-Robinson v. Acker, 140 N.C. App. 606, 626, 538 S.E. 2d 601, 615 (App. 2000) cert. den., 353 N.C. 372, 547 S.E. 2d 811 (2001). Further, public officer immunity at most applies only to state law claims. Federal civil rights claims are affected only by the qualified immunity doctrine. See, e.g. Massasoit v. Carter, 439 Supp.2d. 463, 480 (M.D.N.C. 2006).

Wrongful death and personal injury victims are entitled to discover case facts underlying their 42 U.S.C. §1983 civil rights claims before adverse adjudication of a dispositive motion, even if a defendant claims qualified immunity. On January 2, 2009, Avery T. “Sandy” Waterman, Jr., Esq. was ordered discovery in a §1983 civil rights wrongful death suit despite motions to dismiss on qualified immunity in Webb v. Stevens, No. 5:05-CV-33-BO(1) Order (E.D.N.C. Jan. 2, 2009).

“A trial court may consider evidence [on a Fed. R. Civ. P. 12(b)(1) motion for qualified immunity] by affidavit, depositions or live testimony without converting the proceeding to one for summary judgment.” Adams v. Bain, 697 F.2d. 1213, 1219 (4th Cir. 1982). However, a defendant’s 12(b)(1) motion should be denied where the underlying “jurisdictional facts are intertwined with the facts central to the merits of the dispute. It is the better view that in such cases the entire factual dispute is appropriately resolved only by a proceeding in the merits.” Id. (§1983 dismissal reversed and remanded for lack of discovery unto merits).

Indeed, discovery on qualified immunity should be permitted even if a motion for summary judgment is filed under Rule 56. For example, the Fourth Circuit reversed a grant of summary judgment on qualified immunity on the mere possibility that one of the police cruisers at the scene may have had a camera with videotape. Ingle v. Yelton, 439 F.3d., 191, 196-198 (4th Cir. 2006). “Although [plaintiff] could not determine whether any of the vehicles present that night had cameras installed, the new policy provided sufficient basis to conclude that a videotape of the incident might exist. Such a videotape might have provided [plaintiff] with an opportunity to contradict the affidavits upon which the district court relied. For this reason, we remanded for further discovery as to the existence of a videotape of the incident; our mandate specifically noted that the district court could reconsider the defendants’ motion for summary judgment again after completion of discovery.” Id. at 197. Ingle v. Yelton, 2008 U.S. App. LEXIS 3184, *3-4 (4th Cir. Feb. 14, 2008).

Likewise, last year a Virginia district court twice deferred consideration of defendants’ motions in favor of discovery, following Fourth Circuit precedent. “[T]he United States Court of Appeals for the Fourth Circuit has held that ‘ordering discovery on the issues of immunity…[is] well within the discretion of the district court.’ American Civil Liberties Union, Inc. v. Wicomico County, 999 F.2d. 780, 787 (4th Cir. 1993). Indeed, most often ‘qualified immunity is tested at the summary judgment stage after the facts have been developed through discovery.’ Alford v. Cumberland County, No. 06-1569, 2007 U.S. App. LEXIS 24138, 2007 W.L. 2985297, at *3 (4th Cir. Oct. 15, 2007).” Turner v. Kinder, 2008 U.S. Dist. LEXIS 18143, *8 (W.D.Va. Mar. 10, 2008) and 2008 U.S. Dist. LEXIS 39709, * 6-10 (W.D.Va. May 15, 2008).

Specifically, Turner initially upheld various discovery requests on §1983 civil rights claim for denial of medical attention and extent of injuries. “The court finds that the discovery requested by [plaintiff] could contribute to the determination of whether defendants acted maliciously and sadistically for the very purpose of causing harm, whether [plaintiff] injuries were more than de minimis, and whether defendants were deliberately indifferent to [plaintiff’s] allegedly serious medical needs.***The court further determines that the discovery requested by [plaintiff] could contribute to the determination of the extent of [plaintiff’s] injuries and whether or not defendants offered [plaintiff] medical care. Accordingly, as the discovery requests are relevant to qualified immunity, the court finds that [plaintiff] has made an adequate showing of his need to engage in discovery and will grant him the opportunity to do so.” 2008 U.S. Dist. LEXIS 18143 at 10-11. Subsequently, Turner ordered production concerning “any relevant complaints, investigations, civil rights or criminal actions, and disciplinary reports,” including ones post-incident and/or related to the suit. 2008 U.S. Dist. LEXIS 39709 at 7 and 10.

Qualified immunity does not insulate all officers from wrongful deaths or other personal injury claims under 42 U.S.C. §1983 for excessive force. See, e.g., Tennessee v. Garner, 471 U.S. 1 (1985); Massasoit v. Carter, 253 Fed. Appx. 295 (4th Cir. 2007); Schultz v. Braga, 455 F.3d 470 (4th Cir. 2006); Clem v. Corbeau, 284 F.3d 543 (4th Cir. 2002); Haddaway v. Ellerbusch, 1993 U.S. App. LEXIS 16039 (4th Cir. 1993); Kane v. Hargis, 987 F.2d 1005 (4th Cir. 1993); Webb v. Stevens, 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008); Phomphackdl v. Spartansburg County, 2007 U.S. Dist. LEXIS 19895 (D.S.C. Mar. 20, 2007); Russo v. United States, 37 F.Supp.2d 450 (E.D. Va. 1999); Thompson v. Farmer, 945 F. Supp. 109 (W.D.N.C. 1996); Jordan v. Civil Service Board for the City of Charlotte, 153 N.C. App. 691, 570 S.E.2d 912 (2002), cert. denied 356 N.C. 672, 577 S.E.2d 672 (2003); and Glenn-Robinson v. Acker, 140 N.C. App. 606, 538 S.E. 2d 601 (2002), cert. denied, 353 N.C. 372, 547 S.E.2d 811 (2001). See also, e.g., J. Michael McGuiness, Law Enforcement Use of Force: The Objective Reasonableness Standards Under North Carolina and Federal Law, 24 Campbell L. Rev. 201, 227 n.157 (Spring, 2002) (“McGuiness I”) (“Edwards v. City of Goldsboro, 178 F.3d 231 (4th Cir. 1999)(denying qualified immunity in law enforcement personnel cases)”). “Officers are subject to civil, civil rights and criminal liability for excessive force,” see, e.g., McGuiness I at 206-207; despite the existence of qualified immunity.

Tennessee v. Garner, 471 U.S. at 11, clearly establishes that “the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.” McGuiness I at 230. Schultz, 455 F.3d 477. “Generally, mere flight alone without more is not sufficient to warrant deadly force. Without some implied threat of harm to officers or others, fleeing suspects cannot be shot.” Id.

“The intrusiveness of a seizure by means of deadly force is unmatched.” Tennessee v. Garner, 471 U.S. at 9. “And it is clearly established principle of law that law enforcement officers may employ deadly force ‘[w]here the officer has probably cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.’ Id. at 11. ‘Where [a] suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.’ Id. But ‘if the suspect threatens the officer with a weapon or there is probably cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible some warning has been given.’ Id. at 11-12.” Schultz, 455 F. 3d at 477.

“The evolving body of use of force law mandates a complete assessment of the facts, circumstances and reasonable beliefs of the officer….” See, e.g., J. Michael McGuiness, “Supreme Court Further Defines Police Use of Force Standards,” The Connecticut Lawyer (February 2002) (“McGuiness II”); J. Michael McGuiness, “Shootings by Police Officers are Analyzed under Standards Based on Objective Reasonableness”, 72 N.Y.S. Bar J. 17 (September 2000)(“McGuiness III”). See also, McGuiness I at 226 (stating “careful attention to the facts and circumstances of each particular case” is required). In “Tennessee v. Garner, 471 U.S. 1, 8-9 (1985),…the Court relied upon the ‘totality of the circumstances” in assessing reasonableness, see, e.g., McGuiness I at 219 n.89, 230; and a “literal application of this [so-called ‘reasonableness of the moment’ concept] may strain logic and the ‘totality of the circumstances’ framework because the course of events leading up to the use of force may further support or negate the need for force.” See, e.g., id. at 219. Hence the Fourth Circuit properly has applied the Court’s “totality of the circumstances’” analysis instead of the myopic “reasonableness of the moment” concept. Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994). This determination must include an evaluation of the full context of the situation, evaluating all the relevant factors. See id.” McClain v. Cumberland County, 1998 U.S. Dist. LEXIS 18592 (E.D. N.C. 1998). Cf., Scott v. Harris, 127 S.Ct. 1769 (2007)(determining qualified immunity based on a six-minute videotape “capturing the events in question,” a ten-mile vehicle chase).

On motion for summary dismissal, the facts must be viewed “in the light most favorable” to the injured party. Massasoit, 253 Fed. Appx. at 297; Clem, 284 F.3d at 550-551; Webb, 2008 U.S. Dist. LEXIS 61480, * 2-3. The defendant officer on a traffic stop in Massasoit twice shot and killed a suspect after he “tussled” and pepper-sprayed the suspect, and also twice shot another fleeing suspect; all “without warning”. Under these facts, the Fourth Circuit found the deadly force unreasonable, unjustified and clearly unconstitutional. 253 Fed. Appx. at 297. Similarly, because the plaintiff in Clem proffered that he was not a serious threat and “firing three shots are close range was an application of force that could have killed him;” the Fourth Circuit explained that “on the basis of Garner alone…, we would have to conclude that the constitutional right at issue in this case was ‘clearly established’.” 284 F.3d at 554. See, Phomphackdl, supra, 2007 U.S. Dist. LEXIS 19895, *7-11 (Magistrate’s Report and Recommendation that “accepted defendants’ accounts of the incident” was rejected by district judge and summary judgment on excessive force was denied); Russo, supra, 37 F.Supp.2d at 455 (“At this early stage of the proceedings, where the court is limited to the allegations contained in the complaint and must accord every reasonable inference to the plaintiff as the non-moving party, the court cannot determine [the unconstitutionality or constitutionality of the use of deadly force].”)

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Virginia law provides compensation for wrongful death caused by vehicle accidents, patient falls, other medical malpractice, defective products or other negligence. A wrongful death action must be brought by the personal representative of the deceased’s estate, i.e., the administrator, administratrix, executor or executrix. Generally any Virginia wrongful death lawsuit must be filed within two years of death, though there are some very limited exceptions.

Virginia statute specifies a jury or judge may award compensation for the damages of wrongful death. Those include, but are not limited to: (1) sorrow, mental anguish and solace of certain family members; (2) loss of income of the deceased; (3) services, protection, care and assistance of the deceased to those family members; (4) hospital and other healthcare expenses of the deceased; (5) funeral expenses; and for willfulness, wantonness or recklessness showing conscious disregard for the deceased’s safety (6) punitive damages up to $350,000.00. Solace of family members includes loss of society, companionship, comfort, guidance, kindly offices and advice of the deceased.

Family members entitled to compensation in Virginia wrongful death cases are classes of so-called “statutory beneficiaries”. The primary class consists of any surviving spouse, all surviving children and any child of a predeceaseing child of the deceased. If nobody is in that class, the secondary class is any parent, any sibling, and any other relative living with and finically dependent on the deceased. Adopted children and step-siblings are covered. See generally, Va. Code Ann. 8.01-50, et seq.

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