April 8, 2010

Virginia: Auto Accident Settlements – a Lawyer’s Negotiation

On April 8, 2010, Mr. Waterman negotiated a pair of settlements in companion vehicle accident cases in Circuit Court for Mathews County, Virginia. They are Suzanne Sopko v. Phyllis Lewis and Patrick Sopko v. Phyllis Lewis, Nos. CL10-02 and CL10-01.

The underlying vehicle accident in Sopko occurred in 2007. The suits initially filed for their claims were non-suited and then refiled to allow for protracted medical treatment for continuing personal injuries

March 10, 2010

Virginia: Vehicle Accident Settlement – a Lawyer’s Compromise

Last week, Mr. Waterman obtained a six-figure settlement for a local vehicle accident victim. The case is Garrity v. Jones, No. 1341 in Circuit Court for York/Poquoson, Virginia.

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

February 25, 2010

Virginia Experts: Va. Sup. Ct. Rule 4:1(b)(4)(A)(i) – a Lawyer’s Disclosure

Garrity v. Jones is a motor vehicle accident lawsuit pending in Circuit Court for York County, Virginia, No. 1341. Significant issues surround the adequacy of pre-trial expert disclosures by the defense.

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

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

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

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

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January 27, 2010

Virginia: Auto Accident Settlement – a Lawyer’s Negotiation

This week attorney Avery T. “Sandy” Waterman, Jr., Esq. of Williamsburg/Newport News, Virginia, settled another out-of-state vehicle accident case. He negotiated the personal injury claim of a Peninsula resident involved in a Maryland collision. It was the companion claim of a mother whose daughter was victim of the same crash and whose own case was settled last year by Mr. Waterman too.

Modern technology streamlines client involvement and inconvenience, facilitating favorable resolutions of personal injuries occurring out-of-state. Occasionally Mr. Waterman retains co-counsel in the accident locality for his clients when necessary.

November 24, 2009

Virginia: Wrongful Death – a Lawyer’s Settlement

On November 24, 2009, Avery T. “Sandy” Waterman, Jr., Esq. settled a Virginia wrongful death suit arising out of a vehicular accident. The compromise was reached through mediation in Suffolk Circuit Court.

The wrongful death case is Burr v. R.C. Paving, No. CL08-947. Plaintiff’s deceased was a guest in an uninspected passenger vehicle rear-ended by a dump truck when traffic slowed because of a short-bed pickup truck spilling its unsecured load onto the undivided state highway.

As all wrongful death cases in Virginia, the Court in Burr must approve the dollar amount of the compromise settlement and its apportionment among statutory beneficiaries. Also by Virginia statute, a Committee must be appointed for one of the surviving siblings, because he is incarcerated; and there must be newspaper publication for another surviving sibling, because his whereabouts are unknown.

October 16, 2009

Virginia Motor Vehicle Accident – a Lawyer’s Settlement

Williamsburg and Newport News personal injury lawyer, Avery T. “Sandy” Waterman, Jr., Esq., just settled another motor vehicle accident claim. The case occurred in Newport News, Virginia.

October 15, 2009

Virginia Motor Vehicle Accident – a Lawyer’s Settlement

Williamsburg and Newport News personal injury lawyer, Avery T. “Sandy” Waterman, Jr., Esq., just settled a motor vehicle accident case involving a $100,000.00 liability insurance policy. The two car accident occurred in Hampton, Virginia, where a lawsuit currently is pending against the offending driver.

April 17, 2009

Virginia Auto Accident: Passenger Death or Injury – a Lawyer’s Liability

Virginia has codified driver liability for personal injury and/or wrongful death of a guest passenger. “Any person transported by the owner or operator of a motor vehicle as a guest without payment for such transportation and any personal representatives of any such guest so transported shall be entitled to recover damages against such owner or operator for death or injuries to the person or property of such guest resulting from the negligent operation of such motor vehicle.” Va. Code Ann. §8.01-63.

However, the Virginia statute does not render a negligent driver absolutely liable for death or injury to his guest passenger in a vehicle accident. §8.01-63 “does not limit any defense otherwise available to the owner or operator”. Id.

April 16, 2009

Virginia Auto Accident : Unattended Property Damage – a Lawyer’s Reporting

In Virginia, a driver in a vehicle accident causing only damage to unattended property must stop at the scene, make a reasonable effort to find the property owner or custodian, and report his identification. Va. Code Ann. §46.2-896. If the owner or custodian is not found, the driver must leave a conspicuous note at the scene and report the vehicle accident in writing within 24 hours to the state police or local law-enforcement agency. Id.

If injuries sustained in the vehicle accident prevent the driver from complying with the foregoing, the driver must report as soon as reasonably possible thereafter. Id. However, if the driver fails to report as required, then every passenger 16 years of age or older has a duty to report within 24 hours to the state police or local law-enforcement agency. §46.2-897.

April 15, 2009

Virginia Auto Accident: Death, Injury or Damage Reporting – a Lawyer’s Passenger

In Virginia, a passenger in a vehicle accident is responsible for reporting if the driver fails to stop and report the resulting death, personal injury or property damage. Va. Code Ann. §46:2-895. The duty applies to a passenger 16 years of age or older who has knowledge of the vehicle accident.

Such a passenger has 24 hours from the vehicle accident to report to the state police or local law-enforcement agency. The passenger must report his identity and other vehicle accident information known. Id.

April 14, 2009

Virginia Auto Accident: Death, Injury and Damage Stop – a Lawyer’s Reporting

In Virginia, a driver involved in any vehicle accident “in which a person is killed or injured or in which an attended vehicle or other attended property is damaged shall immediately stop as close to the scene of the accident as possible without obstructing traffic”. Va. Code Ann. §46:2-894. Any such driver must provide his identification to the state police, a local law-enforcement agency, the person struck and injured, the driver or occupant of another involved vehicle, or the custodian of damaged property; and also shall “render reasonable assistance to any person injured in such accident, including taking such injured person to a physician, surgeon, or hospital if it is apparent that medical treatment is necessary or is requested by the injured person”. Id.

If his own vehicle accident injuries prevent immediate compliance with the foregoing, as soon as reasonably possible the driver shall report his identification to the state police or local law-enforcement agency and make a reasonable effort to locate the person struck, another involved vehicle driver or occupant, or the damaged property custodian. Violation constitutes a class 5 felony if a vehicle accident results in death, personal injury, or at least $1,000.00 property damage; and a class 1 misdemeanor if it only causes less than $1,000.00 property damage.

April 13, 2009

Virginia Vehicle Accidents: Death and Personal Injury Reporting – a Lawyer’s Notice

Va. Code Ann. §46.2-371 mandates: “The driver of any vehicle involved in an accident resulting in injury to or death of any person, or some person acting for him, shall immediately give notice of the accident to a law-enforcement officer. A willful failure to make the report required in this section shall constitute a Class 4 misdemeanor.”

Immediate auto accident reporting is important to all Virginia victims of wrongful death and personal injury as a practical matter too. Prompt law-enforcement response tends to identify witnesses, preserve evidence, note conditions, etc.

April 12, 2009

Virginia Vehicle Accidents: Collision and Bloodstain Evidence – a Lawyer’s Report

Va. Code Ann. §46.2-376 provides, “The person in charge of any garage or repair shop to which is brought a motor vehicle (i) that shows evidence of having been involved in a serious motor auto accident or (ii) with evidence of bloodstains shall report to the nearest police station or to the State Police within twenty-four hours after the motor vehicle is received, giving the engine number, registration number and the name and address of the owner or operator of the vehicle if known.”

Hence perpetrators and victims of motor vehicle accidents in Virginia alike should expect garage men and other repairmen to report serious motor vehicle damage to law-enforcement authorities promptly. Such third party reporting obviously can expose vehicle drivers to criminal liability under §46.2-371 for not reporting a vehicle accident resulting in injury or death to a law-enforcement officer first.

April 11, 2009

Virginia Auto Accident: Property Damages Proof – a Lawyer’s Affidavit

In vehicle accident cases, Virginia permits proof of vehicle property damages by affidavit. That is an exception to the general hearsay rule against affidavits.

“[E]vidence to [recover motor vehicle] damages may be presented by an itemized estimate or appraisal sworn to by a person who also makes oath (i) that he is a motor vehicle repairman, estimator or appraiser qualified to determine the amount of such damage or diminution in value; (ii) as to the approximate length of time that he has engaged in such work; and (iii) as to the trade name and address of his business and employer.” Va. Code Ann. §8.01-416(A). However, when the vehicle damages are in excess of $1,000.00, a true copy of the affidavit must be “mailed or delivered to the adverse party or his counsel not less than seven days prior to the date fixed for trial”. Id.

April 4, 2009

Virginia Auto Accidents: VSC Wrongful Death Damages – a Lawyer’s Limitation

On April 18, 2008, the Virginia Supreme Court opined on the propriety of a roughly $1,000,000.00 damages award to a surviving spouse arising out of a car accident.The wrongful death case is Wright v. Minnicks, 275 Va. 579 (2008).

In Wright, the surviving spouse was awarded damages for the decedent’s care, treatment and hospitalization, funeral expenses, and loss of income, services, protection, care and assistance; but absolutely nothing for sorrow, mental anguish and solace. Id. at 582. The Virginia Supreme Court held that the zero award for sorrow, mental anguish and solace was not inconsistent or inadequate on the facts of the particular wrongful death.

“Here…there was evidence to support a finding by the jury that the Wrights’ marriage was dysfunctional. *** The Defendants’ evidence was that the Wrights were permanently living apart, both were unhappy with their marriage and intended to ‘go see a lawyer [and] sign papers to be separated’.” Id. at 585. However, the surviving spouse “was entirely dependant upon her husband for support. The jury could reasonably infer that she could have continued to rely upon him for support despite their separation.” Id.

April 3, 2009

Virginia Auto Accidents: VSC Unavoidable Accident & Sudden Emergency – a Lawyer’s Instructions

On January 16, 2009, the Virginia Supreme Court issued an opinion rejecting the “unavoidable accident” and “sudden emergency” doctrines and upholding a $490,000.00 jury award in a car accident scenario. The death and personal injury case is Hancock-Underwood v. Knight, 277 Va. 127 (2009).

Hancock-Underwood abrogated the “unavoidable accident” doctrine in Virginia. “In consideration of the prevailing concerns of the [majority] states that have rejected the instruction – that it merely restates the law of negligence, overemphasizes the defendant’s case and is apt to confuse and mislead – we join those states and hold that it is error to grant an unavoidable accident instruction.” Id. at 136.

Also, the Virginia Supreme Court upheld the “sudden emergency” doctrine in vehicle accident cases, but found that the “particular instruction tendered by Administrator concerning sudden emergency was not supported by the evidence”. Id. at 139. Specifically, the defendant driver experiencing a medical event that rendered him unconscious did not fit the following formulation: “when the driver of an automobile, without prior negligence on his part, is confronted with a sudden emergency and acts as an ordinarily prudent person would have done under the same or similar circumstances, he is not guilty of negligence.” Id. at 726.

March 26, 2009

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

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.

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March 25, 2009

Virginia Personal Injury Bills: Va. Code Ann. §8.01-413 (Amended) – a Lawyer’s Charges

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.

March 21, 2009

Virginia Life Expectancy: Va. Code Ann. §8.01-419 (Amended) – a Lawyer’s Table

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.

March 20, 2009

Virginia MVA Reports: Va. Code Ann. §46.2-373 (Amended) – a Lawyer’s Witness

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.

March 19, 2009

Virginia MVA Texting: Va. Code Ann. §46.2-1078.1 (Amended) – a Lawyer’s Prohibition

House Bill 1876 passed the 2009 Virginia General Assembly. Effective July 1, 2009, it amends Va. Code Ann. §46.2-1078.1.

Toward avoiding vehicle accidents, the new amendment prohibits operating a motor vehicle while using any hand held personal communication device to enter or read a text message. However, it exempts GPS, reporting an emergency, or reading caller identification information.

The new law will carry a traffic fine of $20.00 for first-time offenders and $50.00 for repeat offenders. More importantly, violating it while involved in a vehicle accident will constitute negligence per se.

March 12, 2009

Personal Injury: Virginia Trial Lawyer’s Association – a Lawyer’s Convention

Today begins the annual convention of the Virginia Trial Lawyer’s Association (“VTLA”) in Williamsburg, Virginia. Avery T. “Sandy” Waterman, Jr., Esq. is one of its Williamsburg Society members and will be attending.

VTLA is an association of trial lawyers from throughout Virginia, many of whom practice vehicle accident, medical malpractice, premises liability, and other personal injury litigation. The Association meets once a year, rotating sites with The Homestead in Hot Springs, Virginia, and The Greenbrier in White Sulphur Springs, West Virginia.

The annual convention spans a four-day weekend early each Spring. Members enjoy the wonderful surroundings amid days of continuing legal education (“CLE”).

CLE offerings cover personal injuries such as wrongful death, brain injuries, limb paralysis, and skin burns. Mr. Waterman soon will post new learning from it.

February 21, 2009

Virginia Auto Accidents: Motion to Strike – a Lawyer’s Pleading

Virginia defense counsel can file a Motion to Strike various aspects of a lawsuit in vehicle accident, sexual abuse, product liability, premises liability, and all other personal injury cases. Such Motions may strike at particular claims, exhibits, etc.

A Motion to Strike “requires the trial court to accept as true all the evidence favorable to the plaintiff as well as any reasonable inference a jury might drawn therefrom which would sustain the plaintiff’s cause of action.” Green v. Ingram, 269 Va. 281, 290 (2005)(grant of motion to strike for sovereign immunity on claim of gross negligence reversed and remanded). The court “is not to judge the weight and credibility of the evidence, and many not reject any inference from the evidence favorable to the plaintiff unless it would defy logic and common sense.” Id. “At trial court should resolve any reasonable doubt as to the sufficiency of the evidence in the plaintiff’s favor and should grant the motion only when ‘it is conclusively apparent that [the] plaintiff has proven no cause of action against defendant’.” Id.

February 20, 2009

Virginia Auto Accidents: Demurrer – a Lawyer’s Pleading

Virginia defense lawyers can demur that a lawsuit fails to state a legally cognizable claim in vehicle accident, wrongful death, brain injury, and all other personal injury cases. Although a Demurrer does not admit purely legal conclusions, it does admit all pleaded facts, and inferences therefrom; and plaintiffs need not show that they will prevail on the merits. E.g., Tronfeld v. Nationwide Mutual Ins. Co., 272 Va. 709, 713 (2006)(grant of demurrer reversed and remanded); Koffman v. Garnett, 265 Va. 12, 14 (2003)(reversing demurrer to second amended motion for judgment alleging gross negligence exception to sovereign immunity of school board employee).

“The purpose of a demurrer [simply] is to determine whether a Motion for Judgment states a cause of action upon which the requested relief may be granted.” Tronfeld, 272 Va. at 712. “A demurrer tests the legal sufficiency of facts alleged in pleadings, not the strength of proof. We accept as true all facts properly pleaded in the bill of complaint and all reasonable and fair inferences that may be drawn from those facts.” Hubbard v. Dresser, Inc., 271 Va. 117, 119 (2006)(grant of demurrer reversed and remanded)(quoting Glazebrook v. Board of Supervisors of Spotsylvania County reversing and remanding grant of demurrer).

February 19, 2009

Virginia Auto Accidents: Plea in Bar – a Lawyer’s Pleading

Virginia defense attorneys can interpose a wide variety of potentially dispositive issues on Special Plea in Bar in vehicle accident, brain injury, wrongful death, and all other personal injury cases. On Plea, the asserting party bears the burden of proof on the issue raised. E.g., Geographic Network Affiliates-Int’l, Inc. v. Enterprise for Empowerment Fund at Norfolk St. Univ., 68 Va. Cir. 185, 187 (Norfolk Jan. 27, 2005); Robinson v. McLeod & Co., 59 Va. Cir. 154 (Roanoke Jun. 4, 2002).

“Upon agreement of the parties, [the plea] issue may be submitted, with an identified body of facts, for the trial court’s determination.” The Kroger Co. v. Appalachian Power Co., 244 Va. 560, 562 (1992). Where the Plea is decided on the pleadings, “we state as true the facts alleged in the motions for judgment and all reasonable inferences to be drawn therefrom.” Adkins v. Dixon, 253 Va. 275, 277 (1997). Geographic Network; Robinson.

Of course, the Constitution of Virginia guarantees a party that “a jury will resolve disputed facts”. Bethel Investment Co. v. City of Hampton, 272 Va. 765, 769 (2006). Hence a trial judge errs if he decides disputed facts on Plea when plaintiff demands a jury. Id. at 770 (reserving and remanding a plea sustained).

February 18, 2009

Virginia Car Accidents: Negligent Entrustment – a Lawyer’s Advice

Virginia jurisprudence holds that an owner may be liable for “negligent entrustment” by permitting an unfit driver to use his vehicle if it causes a vehicle accident. “The correct test of liability is whether the owner knew, or had reasonable cause to know, that he was entrusting his car to an unfit driver likely to cause injury to others.” Denby v. Davis, 212 Va. 836, 838 (1972).

In Denby, weak, though not inherently incredible, testimony was “sufficient to show that Denby turned over his car to Pretlow with reason to know that Pretlow would use it and with knowledge that Pretlow had no operator's permit and was physically unfit to drive an automobile without endangering himself and others [because of his impaired vision]”. Id. at 839. By its verdict for the plaintiff, the jury impliedly found that both Pretlow’s impaired vision and Denby’s negligent entrustment were proximate causes of the accident. Id.

The Virginia Supreme Court found sufficient evidence and jury instructions to uphold the jury verdict. Hence the vehicle owner was held liable for the wrongful death resulting from the vehicle accident in Denby.

February 17, 2009

Virginia Car Accidents: Va. Code Ann. §8.01-64 & 65 – a Lawyer’s Warning

Some parents and others allow underage children to drive the family car. But by Virginia statute, that exposes them to personal liability for vehicle accidents.

Va. Code Ann. §8.01-64 reaches any owner who allows and any other person who furnishes a minor who is under 16 years old and lacks a valid driver’s permit a motor vehicle to use. Such owners and others are liable with the minor for all damages negligently caused by vehicle accident.

Under Va. Code Ann. §8.01-65, proof of vehicle use without the owner’s “knowledge or consent, express or implied,” is a defense to liability. But the owner bears the burden of proving that.

Such vehicle entrustment to underage children also may implicate insurance coverage for vehicle accidents. Speak to the insurance agent – better yet, never entrust so!

February 16, 2009

Virginia Car Accidents: Va. Code Ann. §8.01-44.5 – A Lawyer’s Punitives

Under Virginia common law, motor vehicle operators are liable for all wrongful death, personal injury, and property damages caused by their negligence. Under Virginia statute, they also are liable for exemplary (or punitive) damages for malicious or willful or wanton conduct showing a conscious disregard for the rights of others. Va. Code Ann. §8.01-44.5.

Significantly, willfulness or wantonness under §8.01-44.5 can be satisfied by proof of intoxication under certain circumstances. Specifically, a motor vehicle operator is sufficiently willful or wanton if: (1) he has a blood alcohol concentration of at least 0.15 percent; (2) knew or should have known his ability to operate was impaired; and (3) his intoxication proximately caused wrongful death or personal injury.

A plaintiff bears the burden of proving intoxication. However, if a motor vehicle operator unreasonably refuses a blood alcohol test required by §18.2-268.2, then a plaintiff still may prove intoxication by the operator’s conduct or condition.

February 15, 2009

Virginia Vehicle Accidents: Bicyclists, Brain Injury & Wrongful Death – A Lawyer’s Case

A Virginia motorist faces potential liability for a vehicle accident that injures bicyclist. Avery T. “Sandy” Waterman, Jr., Esq. has filed suit in the Newport News Division of United States District Court and recovered $350,000.00 for wrongful death of a bicyclist struck by a York County bus. McCormick v. White, No 4:97cv44 (E.D. Va.).

The recumbent bicyclist in McCormick just had dipped his wheels in the Atlantic to start a cross-country trek to the Pacific when he was rear-ended by a school bus on the Colonial Parkway near Yorktown. The victim suffered a fatal brain injury.

The only surviving witness to the McCormick vehicle accident was the bus driver. Roadway, bicycle, and bus data controverted the self-serving account of the Defendant.

Mr. Waterman retained a civil engineer to survey the Colonial Parkway, bicycle and bus, and a physicist/animator to input and calculate data. The end-product was an extraordinary video that convincingly animated the vehicle accident scenario.

The McCormick wrongful death suit settled promptly after the video animation was provided to the defense by Mr. Waterman. The settlement was reported by Virginia Lawyers Weekly.

February 14, 2009

Virginia Vehicle Accidents: Va. Code Ann. § 46.2-800 & 46.2-903, et seq. – A Lawyer’s Bicycling

Many motorists have a bad attitude about bicyclists, horsemen, and others non-motorists riding on the state highways, incorrectly thinking they have no business being on the road. But Virginia law is clear that bicyclists, horsemen, and some other vulnerable riders have equal rights to the road, so a vehicle accident with them may be the motorist’s fault.

"Every person riding a bicycle, electric personal assistive mobility device, electric power-assisted bicycle, moped, or an animal or driving an animal on a highway shall . . . have all of the rights and duties applicable to the driver of a vehicle . . . .” See, Va. Code Ann. § 46.2-800. Indeed, in Virginia local ordinance may prohibit bicyclists from riding on sidewalks and crosswalks, forcing them onto the highways. See, e.g., § 46.2-904.

Of course, bicyclists have some special highway limitations. Generally, they must “ride as close as safely practicable to the right,” must “move into a single file formation as quickly as practicable when being overtaken,” see, § 46.2-905; must not carry any article that “prevents… keeping at least one hand on the handle bars,” or “carry more persons at one time than the number of persons for which [the bicycle] was designed” (except a child under 6 years old in special seat or trailer), see, § 46.2-906; and by local ordinance if under 14 years old may have to wear a special helmet. See, § 46.2-906.1.

February 13, 2009

Car Accidents, Wrongful Death & Brain Injury – A Lawyer’s Facts

Despite overwhelming statistics that seatbelt use greatly reduces wrongful death and brain injuries in car accidents, some drivers and passengers make up unfounded excuses for not wearing them. Some common erroneous thinking is:

A. I am, or am riding with, a good driver;

B. I am not driving far from home;

C. I am not driving on the highway; and

D. I rather be thrown away from the crash than trapped inside the vehicle.

A military “Safety Training 2005” publication based on statistics from the National Highway Transportation Safety Administration states the real facts:

1. Even good drivers have vehicle accidents beyond their control due to vehicle, weather, road and/or other driver conditions;

2. Most vehicle accidents happen within 25 miles of home;

Continue reading "Car Accidents, Wrongful Death & Brain Injury – A Lawyer’s Facts" »

February 12, 2009

Car Accidents, Wrongful Death & Brain Injury – A Lawyer’s Statistics

Car accidents occur constantly. But many crash-related wrongful deaths and brain injuries can be avoided by wearing seatbelts.

In September, 2008, the National Highway Transportation Safety Administration (“NHTSA”) noted for passenger vehicle accidents: “Research has found that lap/shoulder seat belts, when used reduce the risk of fatal injury by front-seat passenger car occupants by 45 percent and the risk of moderate-to-critical injury by 50 percent. In 2006 alone, seat belts saved an estimated 15,383 lives.”

NHTSA statistics show general seat belt usage up incrementally and wrongful deaths decreasing. This Valentine’s Day, be sure that your loved ones and you “buckle up” to minimize the chance of wrongful death and brain injury.

February 9, 2009

Medical Malpractice, Wrongful Death, Vehicle Accidents, & Other Personal Injury: Va. Code Ann. §8.01-413 - a Lawyer's Records

Despite refusing to comply with Va. Code Ann. §8.01-413(B) in medical malpractice, wrongful death, vehicle accident, and other personal injury cases, some healthcare providers try to avoid enforcement by companion §8.01-413(C). Their threshold argument that statutory enforcement under §8.01-413(C) constitutes impermissible litigation discovery is unfounded.

Va. S. Ct. Rule 4:9 (c) is inapplicable to a statutory enforcement proceeding under §8.01-413(C). Most Subpoenas are issued pursuant to Rule 4:9(c) as litigation discovery. But a §8.01-413(C) Subpoena is different. Contrary to Rule 4:9(c) subpoenas, it enforces patient’s pre-service statutory right to healthcare provider “records or papers” without resort to ordinary litigation discovery after service. Significantly, §8.01-413(C) specifically directs issuance of this Subpoena pursuant to it as the sole remedy for non-compliance with §8.01-413(B).

It is hornbook law that a specific statute of the General Assembly takes precedence over general Rules of the Court. See, e.g., Virginia Constitution, Art. ¬6, Sec. 5. Indeed, Riverside and Mary Immaculate have so conceded on point in medical malpractice cases. See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 29.3-14; 1/30/08 Morel v. Mary Immaculate Hearing Transcript at 18.18-21. Further, it also is hornbook law that §8.01-413(C) and Rule 4:9(c) should be harmonized; and the only way to harmonize them is to recognize §8.01-413(C) as an entirely different and independent source of authority for issuance of a Subpoena from Rule 4:9(c) or, at the least, that §8.01-413(C) is a limited statutory exception to the general, Rule 4:9(c).

Holding Rule 4:9(c) superior and preemptive would eviscerate the clear letter and intent of §8.01-413(B&C), thereby encouraging, facilitating and countenancing potential and/or actual defendants to withhold all or at least key records or papers of victim patient plaintiffs in violation of statute. Also, in medical malpractice cases, it inequitably would force a patient plaintiff to meet his statutory pre-service expert certification requirements under §8.01-20.1 and/or §8.01-50.1 without the benefit of the facility records and papers to which he is entitled by statute, frustrating the same. Additionally, it violates the procedural and substantive due process rights of victim patients against offending defendants.

February 8, 2009

Medical Malpractice, Wrongful Death, Vehicle Accidents, & Other Personal Injury: Va. Code Ann. §8.01-413 - a Lawyer's Enforcement

Medical malpractice, vehicle accident, wrongful death, product liability, premises liability, sexual abuse, and all other personal injury cases depend on complete prompt access of victims to their healthcare records. That critical access is guaranteed by Va. Code Ann. §8.01-413.

§8.01-413(B) requires provision of “records or papers” to a patient: “copies of hospital, nursing facility, physician’s or other health care provider’s records or papers should be furnished within 15 days of receipt of such request to the patient….” Notably, §8.01-413(B) speaks of all “records or papers,” not some amorphous “patient chart”. The latter just is an artificial construct of facilities, insurers and their lawyers; and self-servingly excludes whatever they choose. As Judge Tench observed in a recent medical malpractice case, “Medical records are much more than just the chart hanging there.See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 38.16-23 (emphasis added). §8.01-413(B) is broad, encompassing and not susceptible of such convenient defense abuse.

§8.01-413(C) requires the patient in a pending civil case to issue a Subpoena for his records or papers if the healthcare provider fails to comply with a written request under §8.01-413(B). “[U]pon the failure … to comply with any written request made in accordance with subsection B…, the patient …may cause a subpoena duces tecum to be issued. The subpoena may be issued…in a pending civil case .... *** The subpoena shall be returnable within 20 days of proper service, directing the [healthcare provider] … to produce and furnish copies of the reports and papers to the clerk who shall then make the same available to the patient....” (emphasis added). The letter of §8.01-413(C) mandating enforcement through a “pending” case evinces the intent of companion §8.01-413(B) mandating provision of records and papers during a “pending” case. Also, the Court can award attorney’s fees, court costs and all other expenses for non-compliance. §8.01-413(C).

§8.01-413 is analogous to §2.1-340, et seq., with purpose, motivation and litigation status likewise being irrelevant. Va. Code Ann. §2.1-340, et seq. is the Virginia Freedom of Information Act (“FOIA”). The Virginia Supreme Court held “the purpose or motivation behind a [FOIA] request is irrelevant to citizen’s entitlement to requested information.” Associated Tax Servs., Inc. v. Fitzpatrick, 236 Va. 181, 187 (1988). Following Fitzpatrick, Justice Lemons ruled a requestor’s status as medical malpractice plaintiff was irrelevant to and did not disqualify her Virginia FOIA request. Stevens v. Lemmie, 40 Va. Cir. 499, 513-514 (Petersburg 1996). “The broad policy of FOIA mandates that public information be made available to all citizens regardless of their interest in the information,” wrote Justice Lemons. “This Court finds no exception to FOIA that precludes its use where the information sought may become evidence in a pending or contemplated civil suit.” Id. at 514. §8.01-413 is analogous to §2.1-340: it too reflects a broad exception-less policy mandating availability of information. A requestor’s litigation status under §8.01-413 likewise is irrelevant.

January 13, 2009

Virginia Traumatic Brain Injuries – a Lawyer’s Non-Malingerer

The defense may dispute mild and even moderate traumatic brain injury, particularly where neuroimaging is inconclusive. The defense opportunistically may contest the fact of brain injury and, alternatively, may assert that the victim is malingering.

The victim’s lawyer must protect his brain injury client against any such unfounded ploy with motions in limine, objections at trial, etc. As gatekeeper, Virginia Courts must be vigilant against introduction of malingering testimony, which is highly prejudicial and variously inadmissible.

Although the Virginia Supreme Court has not ruled substantively on malingering testimony, many of its opinions provide ample general guidance such evidence. For example, the defense bears the burden of proving that such testimony is founded on proper expert qualifications, assists the jury, does not invade the jury’s province, does not violate physician-patient confidentiality, is not speculative, is not missing variables, does not include hearsay, is based on scientifically reliable methods, is to the appropriate degree of certainty, is not cumulative, is more probative than prejudicial, etc.

January 12, 2009

Virginia Traumatic Brain Injuries – a Lawyer’s Diagnostic

Use of neuroradiology is critical to diagnosis of traumatic brain injuries in general. Use of the best imaging techniques may be crucial to accurate evaluation of mild and diffuse axonal injury in particular.

Computerized Axial Tomography (“CAT”), renamed Computer Tomography (“CT”), scans still are entrenched as the front-line neuroradiological imaging for many because of their relative availability and low cost. But “CAT fever” has its limitations and detractors, with CT scans showing false negatives in virtually all cases of mild traumatic brain injuries and in some others too.

Magnetic Resonance Imaging (“MRI”) is more sensitive than CT. But most traditional clinical MRI also show mild traumatic brain injuries as normal, because it relies on signs of edema and structural abnormalities, which are just the tip-of-the-iceberg fordiffuse axonal injury.

The vast majority of MRIs are low resolution 0.15-1.5 Tesla (“T”); relatively few are the “gold standard” high-resolution 3T available by 2004. In the United States, there are only a half-dozen 7T (located in Boston, New York City, Philadelphia, Pittsburgh, Minneapolis and Portland); and a single 9.4T in Chicago, the world’s most powerful medical one, which hopefully soon will offer real-time view of metabolic processes safely.

New MRI-based diffusion tensor imaging (“DTI”) advances sensitivity toward micro-structural lesions and changes implicated thereby. This brilliant cutting-edge technique measures fractional anisotropy variations and fiber bundle discontinuity in white matter locations.

Functional imaging techniques of positron emission tomography (“PET”) Single Photo Emission Computed Tomography (“SPECT”) and MRI-based spectroscopy (“MRS” or “MRSI”) are complementary to the foregoing anatomical imaging. PET measures cellular function, SPECT measures blood flow, and MRS/MRSI measures chemical changes – all as metabolic markers of neuronal integrity or damage.

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January 11, 2009

Virginia Accidental Brain Injuries – a Lawyer’s Overview

Traumatic brain injuries frequently are closed-head sequelae of high-velocity acceleration, deceleration and/or rotational force incidents, such as vehicle accidents or patient falls. Significantly, no direct impact is necessary for causation, although often it is present and intensifies injury.

Rapid external acceleration, deceleration and/or rotational forces propel the unprotected soft brain within the hard bony skull. Those forces strain, stretch and finally shear delicate minute blood vessels and nerve fibers irrepairably, and are followed by biochemical degradation.

Much traumatic brain injury consists of diffuse axonal injury. Lesions and lacerations dispersed throughout the brain are the observable tip-of-the-iceberg of such injury and ultimately result in permanent degeneration, scarring and/or cavities.

With injury occurring at the neuronal level, the damage may not be discernable using only a CT scan, particularly in cases of mild traumatic brain injury. That primary diagnostic technique may have to be supplemented with other more expensive neuroimaging, such as MRI and even PET, SPECT or EEG; so not to overlook demonstrable injury.

Despite many victims having an outwardly normal appearance, clinically-observable damages flowing from traumatic brain injury are numerous, wide-ranging, and frequently permanent, increasing and disabling, such as persistent postconcussive syndrome – hence the national Center for Disease Control refers to it as the “silent epidemic”. Classic neurobehavioral symptoms, deficits and disorders include but are not limited to: physical (headaches, neck/back pain, tinnitus, hearing loss, aural-sensitivity, blurred vision, diplopia, photo-sensitivity, diminished taste, diminished smell, fatigue, drowsiness, seizures, tremors, sleep disturbance, vertigo/dizziness, imbalance, decreased appetite, and increased risk of altzheimer’s disease and morbidity); psychological/affective (personality change, depression, anxiety, irritability, agitation, aggression, impulsivity, moodiness, disinhibition, altered sexuality, and limited self-awareness); cognitive (visual-perceptual alteration, attention/concentration impairment, memory dysfunction, decreased processing/reaction, decreased understanding/insight, decreased reasoning/judgment, language/communication difficulties and learning problems); and socioeconomic (increase risks of interpersonal disputes, regression/dependency, suicide, divorce, substance abuse, vocational problems, occupational problems, chronic unemployment/underemployment, and economic strain).

January 6, 2009

Virginia Vehicle Accidents & Premises Liability – a Lawyer’s Discovery

The Virginia Supreme Court long has held that routine accident reports and statements are not privileged under Virginia’s “work product” doctrine." A statement made by an employee to his employer, in the course of his ordinary duty, concerning a recent accident, and before litigation has been brought or threatened, is not privileged either in the hands of the employer or in the hands of the latter’s possessed by insurer attorney to whom it has been transmitted. We so held in Virginia-Carolina Chem. Co. v. Knight, 106 Va. 674, 679, 680, 56 S.E. 725 [1907]." Robertson, 181 Va. at 539 (emphasis added). “The trial court correctly ruled that the [statement] was not a privileged communication.” Id. at 541. In Virginia-Carolina, “the [written accident] report was made by an official of the defendant in the course of his ordinary duty immediately after the accident, before any action had been brought or threatened. A report made under these circumstances . . . is not a privileged communication within the reason of the rule under the authorities.” 106 Va. at 680 (emphasis added).

The spirit of Virginia-Carolina and Robertson has been embodied by the clear majority of Circuit Courts. Internal premises liabilityaccident reports” prepared contemporaneously have been ruled “not work product immune from discovery.” See, e.g., Assaid v. Food Lion, Inc., No. 95-1201-R, Order at 1 (W.D.Va., May 7, 1997)(“Notice to Counsel form”); Lott v. Food Lion, Inc., (E.D.Va.); Blough v. Food Lion, Inc., 142 F.R.D. 622, 624 nn. 1-3 (E.D.Va. 1992)(Virginia), vacated and remanded on other grounds, No. 93-1169 (4th Cir. 1993)(unpublished opinion) (“General Liability Claim Notice to Counsel”); Lewis v. Ukrop’s Super Markets, Inc., No. CL01-9480, Bench Ruling (Williamsburg Jul. 30, 2001)(7 fall victims’ statements); Clark, 40 Va. Cir. at 230 (material captioned “prepared in anticipation of litigation”); Moore v. Farm Fresh, No. CL94-20624-RF, Order (Newport News Oct. 30, 1995); Whitehead v. Harris-Teeter, Inc., 28 Va. Cir. 367, 368 (Amherst 1992).

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January 5, 2009

$50,000.00 Auto Accident Settlement – a Lawyer’s Negotiation

Proper auto accident case work-up, evaluation, and negotiation by an experienced local personal injury lawyer often can result in attractive settlement without having to file suit – even for an out-of-state vehicle accident. Last month, Avery T. “Sandy” Waterman, Jr., Esq. obtained a $50,000.00 personal injury settlement for a Peninsula resident victim of an auto accident in Maryland. His client seamlessly attended college out of the area and communicated by email while he negotiated with the insurance adjuster by telefax and telephone.

Using modern technology, client involvement is streamlined, minimizing inconvenience whenever possible. When wrongful death or other catastrophic personal injuries are involved out-of-state, Mr. Waterman may retain local counsel for his clients and is admitted to practice there as co-counsel.

January 4, 2009

Virginia Vehicle Accidents – a Lawyer’s Advice

What really happens in a vehicle accident should govern case outcome. But too often liability and/or damages for personal injuries in Virginia actually are affected by what happens after the accident.

For example, aggressive claims adjusters can shape accident accounts for posterity, settle cases for paltry quick money, etc. Victims needlessly can lose valuable case evidence, suffer lapses in medical treatment, etc.

So I advise all personal injury clients, especially vehicle accident victims:

1. Immediately notify authorities about the accident and the wrongdoer;

2. Do not decline medical attention offered at the accident scene;

3. Comply with all medical prescriptions, restrictions, and follow-up;

4. Do not discuss the accident with the wrongdoer’s insurer or investigator;

5. Cooperate with your personal insurance company representatives;

6. Photograph physical injuries, property damage, and accident scene;

7. Write down what happened in the accident and what problems you are having;

8. Do not sign any agreement or accept any check;

9. Save all receipts and other documents; and

10. Contact an experienced lawyer as soon as possible to discuss your case.

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December 17, 2008

Virginia Wrongful Death Law - a Lawyer's Commentary

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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December 2, 2008

Suffolk Orders Vehicle Accident Statements – a Lawyer’s Discovery

On December 2, 2008, Suffolk Circuit Court ordered Progressive Specialty Insurance Company and its insured Defendants to provide auto accident statements to a wrongful death Plaintiff. The victim was the guest passenger of an auto rear-ended by a dumptruck driver. Unconscious at the scene, he soon was brain dead and had life support terminated. Two Progressive claims adjusters recorded a half-dozen statements of their insured drivers and an independent eyewitness within one to six days of the accident.

The insurance company and its insureds withheld their contemporaneous statements and sought to keep them secret throughout the case. That would have allowed them to change their story and/or to claim lack of recollection at will, leaving Plaintiff at their mercy with their victim silenced by wrongful death.

But Suffolk Circuit Court rejected the Progressive claim of special privilege. It considered “possible impeachment” and the “possible suppression of relevant evidence which could relate to witness credibility,” as well as Plaintiff’s need. The pending wrongful death vehicle accident case is Burr v. R.C. Paving and should be tried later this year.