Virginia Injury Attorney Blog

On May 20, 2013, Mr. Waterman filed the lawsuit entitled Cynthia M. Ray v. Spencer M. Smith and India V. Parker, No. CL1302098T-01 in Circuit Court for the City of Newport News, Virginia. Defendants’ insurer, USAA, ignored repeated demands to tender its liability policy limits of $50,000.00 to protect its two insureds from excess exposure for substantial continuing vehicle accident damages of the victim.

While under the influence of alcohol and while having no valid driver’s license on September 9, 2011, Defendant Smith was operating on Warwick Boulevard at its intersection with Lee’s Mill Drive a motor vehicle owned and entrusted by Defendant Parker. In Ray, Defendant Smith ran a red light, caused the vehicle collision in which Plaintiff was a guest passenger, fled the accident scene, and evaded police officers for a day.

On February 29, 2012, Defendant Smith pleaded guilty in Newport News Circuit Court to the following offenses arising out of her car crash:

A. (Va. Code Ann. 18.2-272) Driving After Forfeiting License

B. (Va. Code Ann. 18.2-852) Reckless Driving

C. (Va. Code Ann. 42.6-894) Hit and Run

D. (Va. Code Ann. 46.2-817) Evading Police Officer

In Ray, Defendant Parker allegedly is liability independently for entrusting her motor vehicle to Defendant Smith: Defendant Smith had no valid driver’s license and was legally intoxicated or otherwise under the influence of alcohol when she drove.

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.

This week a lawsuit scheduled for Court–facilitated mediation was settled by Mr. Waterman. It arose out of a 3–car crash on I-64 East near Victoria Boulevard in Newport News, Virginia, involving residents of Hampton, Yorktown, and Newport News.

Defendant offending motorist was cited and found guilty for following too closely and rear-ending Plaintiff’s car. The vehicle collision totaled Plaintiff’s car.

Plaintiff treated over 14 months and incurred over $15,000.00 for her vehicle accident injuries. She visited a dozen healthcare providers in Newport News and Hampton.

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.

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.

On March 20, 2013, Mr. Waterman filed Lamont v. Striggles, No. CL1301322V-04 in Circuit Court for the City of Newport News, Virginia. It is a suit for serious personal injuries arising out of a two-car collision on Warwick Boulevard near Curtis Drive the prior month.

According to the Defendant driver’s account in the Police Crash Report, the head-on auto crash occurred when the offending motorist “fell asleep at the wheel [and] drifted into the oncoming lane”. The “fatigued” motorist, who was charged with failing to maintain proper control of his vehicle, totaled the victim’s BMW and his own automobile.

The Plaintiff victim, a Williamsburg resident, already has incurred more than $60,000.00 in past medical expenses, remains incapacitated and is out of work. Although the offending motorist has only minimum liability insurance coverage of $25,000.00 with Alfa Vision Insurance Co. for the vehicle accident, fortunately his victim has underinsured (“UIM”) coverage of $300,000.00 with Nationwide Insurance Co. plus umbrella insurance coverage of $1,000,000.00 with Nationwide.

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.

During April 1-2, 2013, Mr. Waterman resolved a multi-car crash case arising in Portsmouth, Virginia. The “rear-ender” occurred on the Western Freeway near the Town Point Road Exit and involved motorists from Suffolk and Chesapeake and their insurers, USAA and State Farm.

The car crash victim was seen at Sentara Belle Harbour in Suffolk, including by Emergency Physicians of Tidewater and by Suffolk Radiology. Settlement was reached without Mr. Waterman having to file suit, yet was complicated by State Farm.

Mr. Waterman negotiated a settlement with the victim’s UM/UIM insurer, USAA, for coverage of an alleged “phantom” offending motorist; reserving rights to proceed against the identified offending motorist, Cameron Driver, liability insured of State Farm. The State Farm claims adjuster unsuccessfully asserted that settlement payment by USAA alone or, alternatively, State Farm alone settled the entire vehicle collision for both offending drivers.

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 26, 2013, Mr. Waterman concluded a car accident case arising in James City County, Virginia. An out-of-state driver insured by State Farm and cited for “unsafe lane change” under Va. Code Ann. §46.2-804 allegedly forced a Newport News resident off of State Route 143 (Merrimac Trail) and into a roadside tree.

The car collision victim was transported by James City County Fire & Emergency Medical Services (“EMS”) to Mary Immaculate Hospital in Newport News, Virginia. That victim was treated by Hampton Roads Emergency Physicians, Hampton Roads Radiology Associates, Kingsley Lane Clinical Laboratory Associates, and Pinto Chiropractic & Rehabilitation.

THE VIRGINIA STATE BAR REQUIRED 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.

The February 2013 issue of Trial, a monthly magazine of the American Association for Justice (“AAJ”), is titled “DANGER ON THE ROAD”. Its focus is on vehicle accidents.

There are five major articles: (1) “Discovery Issues in Distracted Driving Cases,” id. at 14-20; (2) “SMALL TRUCKS, BIG REGULATIONS,” id. at 22-25; (3) “Put the Brakes on ‘CURBSIDE’ Bus Abuse,” id. at 26-32; (4) ”HANDLING A DRIVER FATIGUE CASE,” id. at 34-38; and (5) “Sound Science in Low-Damage Collisions”. Id. at 40-44. They recount numerous cases of wrongful death and other serious personal injury attributable to offending drivers.

Mr. Waterman has been a member of AAJ (formerly American Trial Lawyers Association) for decades. On March 9, 2013, he speaks on patient falls at AAJ’s seminar on medical malpractice in Scottsdale, Arizona. Id. at 54.

On January 10, 2013, the Virginia Supreme Court upheld 4 separate jury awards totaling $10,577,000.00 in a two-vehicle accident trial in Circuit Court for the City of Charlottesville, Virginia. The case is Allied Concrete Co. v. Lester, Record No. 120074.

First, Allied Concrete held the trial court did not abuse its discretion in denying defendant motorist a new trial in the truck crash case based on admitted “party misconduct”, i.e., a plaintiff’s “dishonest conduct” and his lawyer’s “unethical conduct”. The record demonstrated a “fair trial on the merits,” including “ample evidence that the trial court mitigated any prejudice”: “When it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached, we will affirm the judgment notwithstanding the potential for a defect or imperfection in the process by which the judgment was obtained.” Id. at 12-14 and 23.

Second, Allied Concrete also found no abuse of discretion in the trial court refusing to grant a mistrial of the truck-car collision case for alleged juror misconduct. The finding of insufficient evidence to prove a “dishonest” answer to a voir dire question was affirmed. Id. at 14-18 and 23.

Third, Allied Concrete reversed the trial court’s grant of remittitur and reinstated the jury’s award on the wrongful death claim. Id. at 22-23. It held that the trial court impermissibly compared the jury’s damage awards of $1,000,000.00 to each of the deceased’s parents and of $6,227,000.00 to the surviving husband as a supposed measure of disproportion and excessiveness of the latter. Id. at 20-21.

It also held that the trial court failed to make a “reasoned evaluation of the damages” - to even “examine the damages specific” to each plaintiff - and simply equated the wrongful death damages of each plaintiff impermissibly, despite “the inherent differences in the two types of relationships,” i.e., spousal and parental. Id. at 22-24. The Allied Concrete dissent proclaimed “the last nail in the coffin of remittitur has been driven, sounding a death knell”. Id. at 23-29.

During February 7-9, 2013, Mr. Waterman attends the annual conference of the Southern Trial Lawyers Association (“STLA”) in New Orleans, Louisiana, which coincides with Mardi Gras. It features 3 days of continuing legal education on vehicle accidents, medical malpractice, product liability, and other special cases, including brain injury and wrongful death.

Mr. Waterman began his legal career in New Orleans, practicing automobile product liability and medical malpractice. He has been a member of STLA for more than a decade.

STLA publishes a glossly quarterly entitled JUSTLAW. Its issue for First Quarter 2013 features “Maximizing Economic Damages,” “The Jones Act,” “Punitive Damages in the Interstate Trucking Unsafe Equipment Case,” and “How To Spot a Product Liability Case: A Method for Analyzing [Auto] Accidents”.

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.

On December 21, 2012, Best Lawyers in America featured a 2013 “Washington, D.C. & Virginia’s Best Lawyers” supplement to The Washington Post, The Richmond Times-Dispatch, and The Virginian-Pilot. Its cover story is “The Powerful Trial Lawyers at Patten, Wornom, Hatten & Diamonstein,” including Mr. Waterman who was recognized individually for both “Medical Malpractice Law - Plaintiff” and “Personal Injury Litigation - Plaintiff”.

“’We stand toe to toe with any big-city defense lawyers in the state,’ says partner Avery Waterman, a precedent-setting medical malpractice lawyer known as one of the top in the state. “We offer a level of sophistication and success that really is only found in a few firms’,” quotes the Best Lawyers’ Supplement at 3.

“’The people that we represent are families of permanently disabled breadwinners and deceased breadwinners who would never be on equal footing if we weren’t there to help’, says Waterman. ‘We give it everything at trial’.” Id.

“Indeed, says partner Avery Waterman, whose plaintiffs’ practice centers on medical malpractice litigation and catastrophic personal injury cases (such as brain injury, automobile and trucking accidents and the like), PWHD is known for being a go-to firm for some of the toughest cases to litigate. ‘The cases we take on require a significant commitment that is difficult to overstate,’ says Waterman, who has been with the firm since 1986, one of Virginia’s top medical malpractice attorneys. ‘In plaintiff’s practice, as we say, you only eat what you kill. So the risk is enormous but the reward for our clients is even greater’.” Id. at 15.

On November 9, 2012, Circuit Court for Gloucester County, Virginia, denied the written Motion of American Home Assurance Company to substitute for it a related insurer, Illinois National Insurance Co.; and instead accepted Mr. Waterman's opposition argument that Illinois National simply should be added to the vehicle crash litigation. The personal injury case is Lyles v. Calloway, No. CL 10000070.

For the Enterprise company truck being driven by Plaintiff, Illinois National issued Plaintiff's employer a $1,000,000.00 commercial fleet policy effective April 1, 2007, which was amended by the endorsement of American Home Assurance effective February 11, 2008, shortly before the Lyles vehicle collision in Gloucester, Virginia. Plaintiff also has $50,000.00 of underinsured motorist ("UIM") coverage through his own personal auto insurer, Progressive Gulf Insurance Co.

Liability is apparent and Plaintiff's vehicle accident-related past medical expenses already exceed $155,000.00. Hence the offending motorist's auto liability insurer, Victoria Insurance, already has tendered it Virginia minimum coverage limits of $25,000.00 in Lyles.

On October 25, 2012, Mr. Waterman settled a car accident claim for personal injuries of his client without having to file suit. The two-car collision occurred on Lightfoot Road in Williamsburg, Virginia, and involved residents of Toano and James City County.

The car crash victim was taken by ambulance to the Emergency Room at Sentara Williamsburg Regional Medical Center. The victim was treated by Williamsburg Emergency Physician, Tidewater Diagnostic Imaging, Ltd., Tidewater Physicians Multispecialty Group, and Sentara Medical Group.

Trial is the monthly magazine of the American Association for Justice (“AAJ”), of which Mr. Waterman has been a member for over two decades. Its August 2012 issue focuses on “Recreational Torts,” including recreational vehicle crashes.

Lead articles of Trial cover several recreational circumstances of personal injury. “Injuries on Deck” navigates passengers injured on cruise ships; “Mayhem in the Park” addresses carnival, water park and other amusement park injuries; "Ringing the Bell on Concussions" tees up coach and physician mismanagement of traumatic brain injuries in youth sports; and “Danger on the Open Road” surveys design and manufacturing defects in recreational and other modified vehicle crashes

On July 6, 2012, Mr. Waterman appeared in Circuit Court for Gloucester County, Virginia, on Plaintiff’s Motion to Compel Defendant. Over defense Objection, the Judge ordered that Defendant’s insurer had to produce any contemporaneous witness statements taken for the auto accident underlying Lyles v. Calloway, No. CL10000070-00.

On June 7, 2012, the Virginia Supreme Court held in the 4-3 split decision of Cline v. Dunlora South, LLC, No. 110650 (Va. Jun. 7, 2012) that a landowner was not responsible for an auto accident caused by a tree on private land falling on a public highway in Albemarle County, Virginia. Despite the motorist suffering “severe and permanent injuries, including fractures of his cervical spine,” the Virginia Supreme Court ruled that the “duty owed by adjoining property owners is to refrain from engaging in any act that makes the highway more dangerous than in a state of nature or in the state in which it has been left,” id. at 9; not an affirmative “duty to protect travelers on an adjoining public road from natural conditions on his or her land”. Id. at 10.

Cline found no car collision liability notwithstanding that the tree was “’dying, dead and/or rotten’ at the time it fell, and had been in this condition for a period of ‘many years and exhibited visible signs of decay, which were open, visible and/or obvious,’… ‘the tree’s dead or decaying condition was or should have been known, by Defendant Dunlora’ and ‘Dunlora knew or should have known of the hazards presented by the dead, dying and/or rotten tree adjacent the public highway’.” Id. at 2-3. However, a lengthy dissent in Cline urges that “[w]ell known and ordinary principles of negligence should control this case,” including Restatement Second or Torts §363(2). Id. at 10-19.

On April 20, 2012, the Virginia Supreme Court issued its opinion in Arnold v. Wallace, 283 Va. 709 (2012), a Fairfax County auto accident case. Appeal focused on admission of Plaintiff’s patient’s medical records and of Defendant’s medical expert testimony.

Arnold found that the auto collision Defendant satisfied the “business record” exception for admission of Plaintiff’s patient chart, and that “objection to the foundation of an entire chart does not encompass an objection to specific opinions in individual documents”. Hence the Virginia Supreme Court held Plaintiff had “waived” objection to hearsay opinions in the patient chart being admitted, as “it is incumbent, open the objecting party to identify the passages within a business record offered into evidence that contain inadmissible opinions.” Id.*1-7.

Arnold also found no abuse of discretion in the trial judge not disqualifying Defendant’s retained expert simply because she was in the same medical practice as Plaintiff’s consulting expert. Justice Mims wrote: “[A]s the party seeking disqualification, [the car crash Plaintiff] bore the burden of offering sufficient evidence that [Plaintiff’s expert] revealed confidential information to [Defendant’s expert].” Id.*7-9.

The Spring 2012 issue of The Safety Report marquees vehicle accidents. Its cover story is “Distracted Driving: 1 Second Can Change Everything”.

The article notes that distracted driving is responsible for almost 450,000 vehicle accidents, including more than 5,000 wrongful death (or 16% of all fatal crashes in 2009), annually – and that the numbers are trending upward. Id. at 33. EndDD.org reports that “18 percent of all distracted driving fatalities occur because of cellphone use;” and “a 2011 Virginia Tech study found that a driver is 23 times more likely to crash if he/she is texting while driving”. Id.

The Safety Report highlights other disturbing statistics that show young adults in general and teenagers in particular have substantial risks of car crashes and wrongful death associated with drivers using cellphones. For example, “10 percent of drivers aged 16 to 24 years old are on their phone at any one time,” and “40 percent of American teens say thay have been in a car when the driver used a cellphone in a way that put people in danger”. Id. at 35.

In 2010, an online survey of teens ages 16-19 by AAA (www.aaa.com) and Seventeen Magazine (www.seventeen.com) “found that 86% had driven while distracted even though 84% know it’s dangerous”. Id at 37. A harbinger for car collisions is a troubling 2011 Ad Council statistic that “77% of young adult drivers are very/somewhat confident that they can safely text while driving”. Id.

On April 20, 2012, the Virginia Supreme Court upheld the non-suit rights of car crash victims. Specifically, Lewis v. McIlroy, No. 110485 (Va. Apr. 20, 2012) held that the tolling provision of Va. Code Ann. §8.01-229(E)(3) applied whether plaintiff refiled suit within 6 months after or before entry of non-suit order on the previously filed lawsuit. Id. at 7.

Plaintiffs’ uninsured/underinsured automobile (“UM/UIM”) carriers, Government Employee Insurance Company (“GEICO”) and State Farm Mutual Automobile Insurance Company (“State Farm”), had sought to avoid potential financial responsibility for the auto collision personal injury damages. But Laws held the circuit court erred in granting State Farm and defendant’s motion to dismiss and GEICO’s plea in bar. Id. at 12.

In May, 2012, Mr. Waterman obtained a $100,000.00 settlement for a Newport News car accident victim. Trustgard Insurance Company paid its liability policy limits of $50,000.00 and State Farm paid its underinsured motorist (UIM) policy limits of $50,000.00.

The offending driver was cited for failure to yield, causing the two-car collision. The victim motorist was treated by Newport News Emergency Medical Service, Mary Immaculate Hospital, Hampton Roads Radiology Associates, Commonwealth Family Practice, Riverside Regional Medical Center, Rebound Chiropractic, Riverside Emergency Physicians, Peninsula Radiology Associates, Hampton Roads Neurosurgical & Spine Specialists, Orthopaedic & Spine Center, and Cardiovascular Center of Hampton Roads.

On May 8, 2012, Mr. Waterman implemented the Court-approved settlement of a minor’s car accident claim against the offending driver insured by State Farm Mutual Automobile Insurance Company. Like his mother, the child was a guest passenger in the victim family automobile being driven by his father in Goochland County, Virginia.

All of the victim family members were rushed to the Emergency Room at VCU’s Medical College of Virginia in Richmond. The child and father were discharged after 2 days, but the mother was hospitalized for a protracted period because of personal injuries caused in the car accident by the allegedly drunk driver being on the wrong side of State Route 250.

On December 29, 2009, young Jacob Fletcher Boarman-Spivey of Williamsburg, Virginia, rear-ended another vehicle which rear-ended yet another vehicle on South England Street. That multi-car collision injured Mr. Waterman’s client, who claims over $23,000.00 in medical expenses after the same.

The offending motorist’s insurer, Safeco, has $100,000.00 of automobile liability coverage for the car crash injuries, but offered to pay only $30,000.00 for all medical expenses, pain, suffering, inconvenience, and other personal injury damages of the victim. Hence on May 7, 2012, Mr. Waterman had legal summons served on the Defendant in Linda Bryan v. Jacob Fletcher Boarman-Spivey, No. 830CL11001486-00 in the Circuit Court for the City of Williamsburg and James City County, Virginia.

On July 9, 2009, Rayford Lavaughn Parrott of Williamsburg, Virginia, followed too closely and rear-ended Lottie V. Merritt-Lewis in a car crash on Lafayette Street, knocking her car over a curb, through bushes, and into a parked car. During the following 2 years, the victim incurred medical expenses of more than $34,000.00 plus over $1,500.00 in lost wages.

Nonetheless, despite having $100,000.00 in automobile insurance coverage for the offending motorist, Progressive offered the victim only $5,800.00 in compensation for her medical expenses, loss wages, and other personal injury damages arising out of the car collision. Hence on April 24, 2012, Mr. Waterman effected service of process on the Defendant in Lottie V. Merritt-Lewis v. Rayford L. Parrott, No. 830CL11000575-00 in Circuit Court for the City of Williamsburg and James City County, Virginia.

In the automobile accident case of Wakole v. Barber, No. 102176 (Va. Mar. 2, 2012), the Virginia Supreme Court held that “as long as there is evidence to support an award of non-economic damages, plaintiff is allowed to break the lump sum amount into its component parts and argue a ‘fixed amount’ for each element of damages claimed as long as the amount is not based on a per diem or other fixed basis.” Id. at 8. It explained further that argument did not violate the “unambiguous…plain meaning” of Va. Code Ann. §8.01-379.1: “Nothing in this provision states when addressing the jury regarding the total amount sought, the plaintiff may only do so in terms of one lump sum.” Id. at 9.

“During Barber’s closing argument, she presented a chart from which the jury could calculate damages, which she called a formula.” Id. at 3 (emphasis added). Nonetheless the Wakole car crash opinion held that reference to “formula” acceptable: “It is clear from reading the record that the formula to which counsel referred was derived from Virginia Model Jury Instructions – Civil, No 9.000.” Id. at 8.

During February 24-25, 2012, Mr. Waterman attended the “Reptile in Trial” Seminar in Raleigh, North Carolina. It featured noted jury consultant, David Ball, Ph.D.; and medical malpractice trial lawyer, Don Keenan, Esq.

Ball and Keenan authored Reptile: The 2009 Manual of the Plaintiff’s Revolution. Reptile also applies to vehicle accidents, product liability, premises liability, and other personal injury and wrongful death cases.

On November 4, 2011, the Virginia Supreme Court issued its opinion in the automobile accident appeal of Ruhlin v. Samaan, 282 Va. 371 (2011). It upheld the Circuit Court of Chesterfield County allowing use of the transcript of an insurer’s recorded telephone statement “to refresh a witness’s recollection”. Id. at 377-380.

“Code §8.01-404 prevents the impeachment of a witness by use of an affidavit, statement or transcript made after an accident but before trial,” observed the Court in the Ruhlin car crash case. Id. at 378. “Code §8.01-404 only prohibits the use of a written statement itself to directly impeach a witness.” Id. at 379.

But “[t]he act of refreshing a witness’s recollection does not involve contradicting that witness’s testimony,” delineated the Court in the Ruhlin vehicle collision matter. Id. (emphasis added). “Rather, ‘when a witness has a memory lapse on the stand and forgets some portion (or even all) of the facts of the matter about which [he or she is] called to testify, a party may attempt to refresh the witness’s memory by having the witness examine materials relating to the matter for which they are testifying’.” Id.

“After examining such [refreshing] materials, a witness may then ‘speak to the facts from his own recollection’.” Id. Indeed, the Ruhlin auto accident opinion noted that in 2004 the Virginia Supreme Court “held that Code §8.01-404 did not preclude the introduction of a witness’s prior written statement as a party admission in a plaintiff’s case-in-chief because, at that point in the trial, the statements were not being used to ‘contradict’ the witness.” Id.

The February 2010 issue of Trial, the monthly magazine of the American Association for Justice (“AAJ”), marquees “Moving Violations”. It features such vehicle accident topics as “When Seat Belts Stop Short of Safety,” “Gear Up for Bicycle Accident Cases,” “Driving toward Justice in a Dram Shop Case,” and “Teaching Teens about Safe Driving”; plus a product liability one entitled “Toxic Hip Replacements”.

Mr. Waterman has been a member of AAJ since 1987. He regularly handles vehicle accident, product liability, and other personal injury and wrongful death cases.

On January 17, 2012, Mr. Waterman settled a client’s personal injury claim arising out of a two-car accident. A Mechanicsville resident broadsided a Williamsburg resident when disregarding a red light in Richmond, Virginia.

The vehicle crash victim received months of treatment from healthcare providers in the City of Williamsburg, James City County and York County. Mr. Waterman was able to resolve the claim favorably without filing suit.

On December 19, 2011, Mr. Waterman settled another car accident claim against the offending motorist insured of State Farm Mutual Automobile Insurance Company. It is the companion claim for those of two other claimants in the same family.

The victim driver was relocating his family from New Jersey to Virginia, when the car accident occurred in Goochland County. He incurred significant hotel rooming and auto leasing in Richmond, since they had no home or other vehicle in Virginia, in addition to his medical substantial expenses at MCV Hospital with MCV physicians.

Mr. Waterman compromised a car wreck claim for personal injuries arising because the offending motorist from Yorktown traveling on Marcella Drive failed to yield the right-of-way and broadsided the victim from Newport News traveling on Executive Drive in Hampton, Virginia. It was not necessary to file suit; his negotiations with the insurance adjuster were successful.

The car accident victim treated 3 months in Hampton with the following healthcare providers: Sentara CarePlex, Peninsula Emergency Physicians, Tidewater Diagnostic Imaging, Sentara Urgent Care, and Dominion Physical Therapy. This was the second motor vehicle claim Mr. Waterman has handled for the victim family.

Mr. Waterman a car accident case arising out of a two-car collision involving residents of Newport News. The victim underwent healthcare treatment at Riverside Regional Medical Center and physical therapy.

Suit was filed for the vehicle collision claim. But the lawsuit did not have to be tried or served.

Mr. Waterman settled for tens of thousands of dollars a vehicle accident case arising in James City County, Virginia, because the offending motorist rear-ended the victim. A lawsuit was filed in Williamsburg to protect the statute of limitation, but did not have to be served.

The car collision victim underwent medical treatment and care in Williamsburg, James City County and York County for personal injuries over a 6-month period with the following healthcare providers: Sentara Williamsburg Regional Medical Center, Tidewater Physicians Multispeciality Group, Tidewater Diagnostic Imaging, Williamsburg Physical Therapy & Sports Therapy Center, and Tidewater Pain Management, Inc. Mr. Waterman usually is able to resolve motor vehicle accidents cases without resort to trial and often without even filing suit.

On November 23, 2011, Mr. Waterman filed Plaintiff’s Motion to Compel in the car crash case of Cooper v. Tigges, No. CL 63034 in Circuit Court for Loudoun County, Virginia. He seeks the contemporaneous witness statements of both drivers taken in the routine and ordinary course of insurance business by Defendant’s insurer, United Services Automobile Association (“USAA”), which has a $300,000.00 automobile liability insurance policy plus a $1,000,000.00 umbrella insurance policy for a total of $1,300,000.00 in insurance coverage.

Defendant’s initial discovery responses in Cooper did not even acknowledge the existence of either vehicle accident statement; although Defendant asserted blanket claims of privilege, no “privilege log” was provided. Moreover, when Mr. Waterman specifically inquired about the existence of such statements, Defendant’s counsel stated that by oversight they forgot to mention the contemporaneous statement of the driver of Plaintiff, who suffered more than $200,000.00 in medical expenses; but that there was not one for Defendant driver.

Mr. Waterman then underscored to Defendant’s counsel his expectation that USAA had a statement for Defendant too in Cooper, and that he would be deposing and subpoenaing USAA about the same and possible destruction if its existence continued to be denied. Twelve days later, Defendant’s counsel acknowledged the existence of Defendant’s car accident statement, but withheld it along with the other contemporaneous statement under continued claim of privilege.

Tentatively, Plaintiff’s Motion to Compel in Cooper is scheduled for hearing in Loudoun County on December 2, 2011. Mr. Waterman handles vehicle collision, medical malpractice, and other personal injury and wrongful death cases across Virginia.

On November 9, 2011, Mr. Waterman served a car collision suit pending in Circuit Court for the City of Newport News, Virginia. The case is Reynolds v. Adair, No. CL1101523V-04.

Prior to having the Reynolds motor vehicle accident lawsuit served on the Defendant, Mr. Waterman made seven (7) amicable demands for settlement on the offending motorist’s automobile liability insurer, Trustguard Insurance Company, a member of the Grange Mutual Casualty Group, doing business in Virginia under Grange Mutual Casualty Company. Six (6) of his amicable demands were made even before he filed suit.

Significantly, Trustguard/Grange has only $50,000.00 in liability insurance coverage for its insured and the Reynolds lawsuit ad damnum is $1,000,000.00, which represents substantial uninsured exposure in excess of policy limits. The personal injury Plaintiff claims at least $218,211.50 in medical expenses due to the two-car vehicle accident, including without limitation for medical treatment and care with Newport News Emergency Medical Service, Mary Immaculate Hospital, Hampton Roads Radiology Associates, Commonwealth Family Practice, Riverside Regional Medical Center, Rebound Chiropractic, Peninsula Radiology Associates, Hampton Roads Neurosurgical & Spine Specialists, Orthopaedic & Spine Center, and Cardiovascular Center of Hampton Roads on the Peninsula.

The Lawyer’s LogBook, a bi-monthly publication for plaintiff’s lawyers only, focused its June-July 2011 issue on trucking vehicle crashes. Titles of articles featured are: (1) Personal Injury & Wrongful Death Caused by Trucking Accidents; (2) Downhill Braking; (3) The Case of the ‘Dana Point Pirates’; (4) Improper Loading and Securement of Loads: Another Road to Liability Success in Trucking Cases; (5) Truck & Train Collisions; (6) How to Discover and Prove Medial Disqualifications in Commercial Truck Drivers; (7) The Chains I Put on You: When a Trucking Company Chooses Profits Over Safety; (8) Let’s Get Serious: Making the Most out of the Defendant Driver’s Prior Violations; and (9) The Multi-Million Dollar Shell Game – Finding Hidden Assets, Insurance Policies and Defendants in your Commercial Trucking Cases for Severely Injured People.

This trucking vehicle collision publication is endorsed by The National Trial Lawyers (“NTL”), www.thenationaltriallawyers.org. For 2 years, Mr. Waterman has been listed by NTL as one of Virginia’s Top 100 Trial Lawyers.

The Summer 2011 issue of The Safety Report featured article “Brain Injury – Recognizing a ‘Hidden Disability’”. The Center for Disease Control and Prevention (“CDC”) estimates that annually there are 1,700,000 traumatic brain injury (“TBI”) victims in the United States, causing 1,370,000 emergency room visits, 255,000 hospitalizations, and 52,000 deaths. Id. at 42.

The CDC identifies the following most common causes of TBI: falls (35.2%), motor vehicle accidents (17.3%), assaults (10%), and other impact events (16.5%). The Brain Injury Association of America notes that TBI can have permanent physical, mental, emotional and psychological components, including personality changes. Id. at 42-43.

The crime victim represented by Mr. Waterman in Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia, on appeal before the Supreme Court of Virginia, No. 110767 c/w No. 110754, suffered such a multi-faceted TBI. That brain injury victim was assaulted on school premises and was awarded over $6,000,000.00 against his student assailant, another instigating student, and an Assistant Principal who did absolutely nothing after being forewarned and assuring he would notify school security.

On October 14, 2011, Mr. Waterman filed a motor vehicle accident lawsuit for personal injury damages in Circuit Court for the City of Newport News, Virginia. The defendant was cited by Summons for failure to yield the right-of-way on Richneck Road in violation of Va. Code Ann. §46.2-825.

The vehicle crash caused several thousand dollars of damage to each party’s car. Since the collision, the victim has incurred more than $200,000.00 in healthcare expenses.

Despite apparent liability and substantial damages, the defendant’s liability insurance company repeatedly had refused the victim’s demands to tender its policy limits, forcing Mr. Waterman to proceed with suit. By failing to offer its $50,000.00 policy, Trustgard Insurance Company, a member of the Grange Mutual Casualty Group, doing business in Virginia under Grange Mutual Casualty Company, is exposing its insured, a Newport News resident, to ruinous liability in excess of its policy limits and, thereby, itself to a potential claim for insurance “bad faith.

The victim, another Newport News resident, has underinsured motorist (“UIM”) coverage with State Farm Mutual Automobile Insurance Company. But unfortunately, even her UIM policy limits atop the offending motorist’s liability policy limits probably would not cover the jury damages award expected for her magnitude of car collision personal injuries.

Like the rest of America, Virginia is exploding with “social media” – from YouTube to Facebook to Myspace to Twitter to LinkedIn to Lester v. Alliance Concrete to you-name-it! Most of the younger generation and increasing numbers of the older generation are expressing themselves online – including after being victims of car accidents, medical malpractice, assault and battery, and other personal injury.

In the 2010 brain injury case of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia, which now is on appeal before the Virginia Supreme Court, Nos. 110754 and 110767; social media was a would-be cornerstone of the defense. Defendants introduced into evidence various printouts they claimed were threatening profane communications and image posting of Plaintiff on Myspace.com.

Ultimately, the jury was not persuaded by the social media claimed in Gagnon. But like some other personal injury and wrongful death victims, Plaintiff was put to substantial expense and risk in proving that he was not responsible for the supposed Myspace.com materials.

Extensive expert computer forensics costing Plaintiff over $10,000.00 were required to show that the supposed Myspace communications and image posting of the brain injury Plaintiff actually were created by others. Fortunately for Plaintiff in Gagnon (but unfortunately for plaintiffs in other personal injury and wrongful death cases), social media messages and postings leave trails of evidence on hard-drives that usually are recoverable.

It always is important to be very careful about use of social media, particularly when one is victim of car accident, medical malpractice, other personal injury, or wrongful death. But as in Gagnon, it also may be important for victims to preserve and analyze hard-drives.

On September 28, 2011, Mr. Waterman settled a car accident claim arising in Newport News, Virginia. His client suffered personal injuries from a rear-ender on Interstate 664 in 2010.

As a result of the two car collision, the victim was treated at Mary Immaculate Hospital in Newport News, Virginia and followed up with physical therapy in her home state of North Carolina. Coincidentally, the offending driver also was a North Carolina resident.

Using email, fax and phone, Mr. Waterman was able to resolve the car crash claim of that guest passenger without her having to return to Virginia. He regularly represents out-of-state clients for motor vehicle and other personal injury and wrongful death actions arising in Virginia.

On September 24, 2011, Mr. Waterman settled a car accident claim against the six-figure insurance policy of an out-of-state motorist. His client is a long-time resident of Williamsburg, Virginia.

The offending motorist allegedly ran a redlight on Airport Road and broadsided the victim on Richmond Road in James City County, Virginia. That vehicle collision caused the victim to run off the road and into an electric power control box.

Over a 9-month period, the car crash victim received medical treatment from James City County Fire & Emergency Medical Service, Sentara Williamsburg Community Hospital n/k/a Sentara Williamsburg Regional Medical Center, Williamsburg Emergency Physicians, Tidewater Diagnostic Imaging, Sentara Family Medicine, Sentara Orthopaedic & Sports Medicine Physicians, and Tidewater Physical Therapy. The victim’s injury caused 4 weeks of work loss.

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 Evans v. Evans, 280 Va. 76 (2010), the Virginia Supreme Court upheld the right of a child to sue through one parent as next friend the other parent who injured the child by negligence in a vehicle crash. A father had put his 4 year-old in a portable foam seat in his 1972 pickup truck floor board before getting into a head-on collision, going offroad, and hitting a fence.

The Virginia Supreme Court in Evans reversed the trial judge’s decision that the child’s suit for common law negligence was barred by the father being guilty of negligence per se in the truck accident under Va. Code Ann. §46.2-1095. That statute provides Virginia drivers ensure a child under 8 years old be “properly secured in a child restraint device” meeting USDOT standards.

“[W]e conclude that the General Assembly intended preclusion of a per se negligence action based upon Code §46.2-1095 and 46.2-1098,” declared the Virginia Supreme Court, “but did not abrogate a common law action for negligence.” Id. at 85. Further, the Court advised the trial judge on remand of the Evans vehicle collision case: (1) “a child of four is not legally capable on contributory negligence”; (2) “in a suit by an infant to recover damages for personal injury, the negligence of a parent will not be imputed to his infant child”; and (3) “a four-year-old child is unable, as a matter of law, to mitigate her damages”. Id.

On September 1, 2011, a 32-page Order was entered in a car accident suit pending in Circuit Court for Charlottesville, Virginia. The consolidated personal injury and wrongful death cases are Lester v. Allied Concrete Co., No. CL08-150 c/w CL09-223.

The Lester auto accident litigation marquees the increasing importance of “social media” in personal injury and wrongful death matters. Plaintiff’s Facebook page became a discovery and post-trial battleground.

Plaintiff’s lawyer in Lester was found to have violated statute, rules and ethics and sanctioned for having his client delete Facebook photographs previously requested in discovery, for withholding related email from in camera inspection, and for misrepresenting information to the Court. The vehicle accident victim himself was found guilty of deactivating his Facebook and deleting its photos after discovery was requested and of making misrepresentation about the same and other facts; and was referred for criminal prosecution for perjury.

The Judge in Lester declared that “attorney-client privilege” and “work product doctrine” were inapplicable to the evidentiary spoliation and other misconduct. Finally, the Judge reduced Plaintiff’s damages award for the wrongful death of his wife by vehicle collision from $6,227,000.00 to $2,100,000.00 in what had been one of the largest Virginia jury verdicts in 2010.

This month Mr. Waterman settled a pending but unserved vehicle accident lawsuit. The two-car crash occurred in York County and involved residents of Yorktown and Newport News, Virginia.

The victim was traveling on State Route 622 (Brick Church Road) with the right-of-way through its intersection with State Route 17 (George Washington Highway) when broadsided by the offending motorists who ran a redlight. The car accident impact was severe enough to overturn the victim’s vehicle onto its roof.

In Salzman v. Kanchev, 80 Va. Cir. 139 (Chesapeake Feb. 4, 2010), Chesapeake Circuit Court addressed stacking of uninsured and underinsured liability insurance coverage. The declaratory judgment action involved a car crash on Military Highway in Chesapeake, Virginia.

“When a disputed policy term is unambiguous, a court applies its plain meaning as written.” Virginia Farm Bureau Mut. Ins. Co. v. Williams, 278 Va. 75, 81(2009). “However, if disputed policy language is ambiguous and can be understood to have more than one meaning, a court must construe the language in favor of coverage and against the insurer.” Id. (finding insurance policy ambiguous and coverage for a vehicle accident).

In Salzman, the Court opined the policy of Progressive Specialty Insurance Company was unambiguous. Hence the UIM coverage for the car wreck injuries was only $50,000.00.

Christine M. Tigges of Hamilton, Virginia, was covered by United States Automobile Association (“USAA”) for $300,000.00 of personal injury damages under an automobile liability insurance policy. She then also apparently was covered by USAA for car accident under an umbrella insurance policy for an additional $1,000,000.00.

On August 9, 2008, in Loudoun County, Virginia, Ms. Tigges was cited for failing to yield the right of way to Rebecca M. Cooper of Berryville, Virginia, into whom she crashed. That car crash victim suffered multiple serious injuries requiring surgeries and numerous other medical treatments and care continuing through the present and costing more than $213,225.78.

Despite repeated amicable demand by Mr. Waterman for full fair compensation for Ms. Cooper, USAA haughtily tendered only the limits of its first layer of insurance coverage, $300,000.00. Unfairly, that amount is a little more than the victim’s mounting $213,225.78+ medical bills, not full compensation for her car collision pain, suffering, inconvenience, permanency, and other damages; so is unacceptable.

Accordingly, Mr. Waterman is pursuing a personal injury lawsuit against USAA’s offending insured motorist in Cooper v. Tigges, No. CL-63034 in Circuit Court for Loudoun County, Virginia. Jury trial of that car accident action likely will be in 2012.

The victim also is covered for personal injuries sustained in the car wreck by at least another $250,000.00 of underinsured motorist insurance (“UIM”) with her own insurer, State Farm Mutual Automobile Insurance Company (“State Farm”), which by Virginia law is stacked on top of the offending driver’s $1,300,000.00 of combined automobile liability/umbrella insurance. But State Farm has not tendered any of its UIM coverage, so necessarily has been named and served as an adverse party in Cooper v. Tigges too.

Continue reading "Virginia: Car Accident – a Lawyer’s Intolerance" »

On July 15, 2011, Mr. Waterman settled the car accident claim of a Williamsburg resident. The victim was a guest passenger in Fairfax County, Virginia, when an inattentive offending motorist from Great Falls rear-ended the vehicle from Annandale in which he was riding.

The Williamsburg victim suffered significant personal injuries that necessitated emergency medical attention at INOVA in Northern Virginia and follow-up back on the Peninsula. Mr. Waterman was able to resolve the car crash claim with the insurance adjuster based in Rhode Island without suit, simply using mail, telephone, telefax and email.

In Government Employees Insurance Co. v. United Services Automobile Association, No. 100332 (Apr. 21, 2011), the Virginia Supreme Court found no insurance coverage in a declaratory judgment action for a car accident in Hampton, Virginia; based on the offending driver not being a permissive user. Both the owner’s liability policy with GEICO and the unauthorized driver’s uninsured/underinsured “(UM/UIM”) policy with GEICO Indemnity predicated coverage on permissive use. Id. at 1-2.

In GEICO, recounted Justice Mims, the owner’s daughter was a permittee, but the driver who caused the car accident was not a legitimate “second permittee” of her under the particular case facts. Id. at 11-18. That left United Services Automobile Association (“USAA”), the victim’s UM/UIM carrier, as the only insurance for the collision injuries.

In Volpe v. City of Lexington, No. 092583 (Apr. 21, 2011), the Virginia Supreme Court delineated the duty to warn of a governmental entity and its alleged gross, willful and wanton negligence for a case of wrongful death in Rockbridge County, Virginia. It reversed a court judgment finding no duty to an invitee and striking gross negligence; affirmed there was no willful and wanton negligence; and remanded for retrial. Id. at 15.

Writing for the Virginia Supreme Court in Volpe, Justice Mims observed that a landowner’s duty of ordinary care to an invitee included warning of “any hidden dangers,” id. at 8; relied upon West Virginia and Missouri precedent, id. at 9-10’; and held that it was for the jury to decide whether the danger was hidden versus open and obvious. Id. at 11. Further, because the municipality had “knowledge of these dangers,” but “did not take any safety precautions for its invitee” prior to his wrongful death; there was “credible evidence to support a jury finding of gross negligence,” though not willful and wanton negligence. Id. at 12-15.

Mr. Waterman additionally resolved another companion personal injury claim on June 10, 2011. Yet another guest passenger was an I-664 car accident victim in Newport News, Virginia, because the offending USAA motorist was following too closely.

Despite sustaining a 25-35 m.p.h. impact, the car accident victim experienced increasing delayed symptoms after returning to North Carolina. Mr. Waterman simply collected and submitted the medical bills and records across state lines from his law office without his client having to return to Newport News, Virginia.

Mr. Waterman also settled the companion personal injury claim against a USAA insured on June 10, 2011. It was a guest passenger injured when rear-ended in an I-664 car accident in Newport News, Virginia.

That claimant initially was treated at Mary Immaculate Hospital in Newport News, Virginia, then followed with physicians in her home state, North Carolina. The victim located Mr. Waterman through his website, and he was able to handle the car accident claim across state lines using modern technology.

On June 10, 2011, Mr. Waterman settled a driver’s personal injury claim against an insured of United States Automobile Association. It arose out of a car accident on Interstate 664 in Newport News, Virginia.

The car accident victim resided in North Carolina. Despite her being out-of-state, Mt. Waterman was able to investigate, package, and negotiate the personal injury claim using email, telefax, and telephone without the client having to travel to his law office in Newport News, Virginia.

In Simpson v. Virginia Municipal Liability Pool, 279 Va. 694 (2010), the Virginia Supreme Court held that a Nottoway County Sherriff’s Office road Deputy was not covered by any automobile insurance policy where there was no car accident or use when he was injured apprehending a fleeing motorist. Although the Deputy had used his cruiser to chase down the suspect and left its siren and flashing lights in operation, he was hurt after exiting his cruiser while subduing the arrestee in the highway median.

Significantly, in Simpson there was “no evidence that [the siren or lights] were used or relied upon in any way to accomplish Simpson’s purpose at the time he was injured.” Id. at 701. Thus Simpson may have enjoyed insurance coverage under the Virginia Municipal Liability Pool, Government Employees Insurance Company (GEICO) and/or National Grange Mutual Insurance policies implicated if he simply had testified at the declaratory judgment hearing that he had left his cruiser, siren and lights on to avoid potential car accident by alerting oncoming motorists while taking the criminal into custody.

Kimble v. Carey, 279 Va. 652 (2010) applied the “rescue doctrine” a/k/a the “humanitarian doctrine” in the context of a car accident in Interstate 64 in Henrico County, Virginia. The Virginia Supreme Court opined on the particular case facts that pre-rescue misconduct of the helpless party was irrelevant and that the rescuer’s alleged contributory negligence should have been decided by the jury.

“Most of the cases in our jurisprudence are based upon the branch of the rescue doctrine concerning suits brought by the rescuer against a third-party whose negligence placed a victim in a situation of imminent peril and the rescuer is injured by the third-party during the rescue attempt,” observed the Virginia Supreme Court in the Kimble car accident appeal. Id. at 659. “Based upon the facts of this case, we apply the branch of the rescue doctrine in which the victim may be liable to the rescuer based on the negligent acts of the victim which placed him or her in peril if those negligent acts also proximately caused the rescuer’s injuries during the attempted rescue.” Id. at 660.

“It makes no difference to rescue doctrine analysis whether the victim was guilty of simple negligence, gross negligence, or willful or wanton conduct in creating his or her peril, because the rescuer’s right to recover for injuries sustained during the rescue attempt rises or falls with the determination whether the rescuer acted rashly or recklessly,” explained Kimble in the car accident appeal. “If the rescuer acted rashly or recklessly, he or she is barred from recovery. However, if the rescuer did not act rashly or recklessly, and the victim was negligent in placing himself or herself in ‘apparent immediate peril of death or serious bodily harm’ the rescuer may recover.” Id. at 662.

“[A]s a general rule whether a person is guilty of contributory negligence in rushing into a place of danger to save another from imminent death or injury is a question for the jury,” pronounced the Kimble car accident opinion. Id. at 663. “[T]he rule is well settled that one who sees a person in imminent and serious peril caused by the negligence of another cannot be charged with contributory negligence, as a matter of law, in risking his own life or serious injury in attempting to effect a rescue, provided the attempt is not recklessly or rashly made.” Id. at 663-664 (emphasis added).

In Rascher v. Friend, 279 Va. 370, 373 (2010), the Virginia Supreme Court reversed the trial judge striking the evidence of a bicyclist in Prince William County, Virginia, who suffered personal injury in a car accident. It held that the jury could have found Plaintiff not negligent or, alternatively, that any negligence of his was not a proximate cause of the collision.

After delineating contributory negligence, proximate causation and proof burdens, the Virginia Supreme Court in the Rascher car accident appeal took “opportunity to again stress the principle of tort litigation that issues of negligence and proximate cause ordinarily are questions of fact for the jury to determine, rather than questions to be determined by the trial court as a matter of law. The trial court should overrule a motion to strike the evidence in every case in which there is any doubt that the party with the burden to do so has failed to prove negligence, contributory negligence, and proximate cause, as the case may be.”

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 February 23, 2011, Mr. Waterman settled a Virginia six-figure vehicle accident claim. The victim should receive net proceeds in March.

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.

Most Virginians have some form of private health insurance or at least qualify for public health coverage in the form of Champus, Medicare and/or Medicaid. But under Virginia law, victims of wrongful death, vehicle accidents, medical malpractice, and other personal injury still are entitled – and need – to be compensated for their medical expenses by the wrongdoer.

Many, if not most, jurors are unaware that victims awarded compensation at trial are liable to reimburse medical expense benefits they have received. Specifically, the government and most private insurers 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, medical malpractice, and other personal injury.

That lien exists regardless whether the jury actually factored anything into its award for the victim’s medical expenses. Hence victims of wrongful death, vehicle accidents, medical malpractice, and other personal injury stand to be under-compensated if a jury fails to award anything for medical expenses on the assumption that there is healthcare coverage or otherwise.

Mr. Waterman and his legal assistants wish clients and everyone else in Hampton Roads and throughout Virginia a very merry holiday season. Hopefully all will have a wonderful time with family and friends.

Hopefully too all will be safe over the break. Take care behind the wheel in particular, as unfortunately major holidays are always the major days for vehicle accidents in Virginia and nationally.

On December 10, 2010, when the insurance company representatives failed to recommend paying policy limits to the vehicle accident victim by the deadline given, Mr. Waterman sent the case to suit. The next business day, December 13th, the insurer belatedly tendered its policy limits.

Its policy limits for the vehicle accident was $100,000.00. That was approaching twice the maximum it had low-balled previously.

On December 2, 2010, another insurance company re-victimized a vehicle accident victim of its insured. In a clear case of liability and significant damages in York County, the offender’s insurer low-balled the Virginia victim motorist.

For years, insurance companies and other defense interests have massaged public thinking with advertizing campaigns, legislative agendas, political contributions, etc. Their deep-pocket tactics have conditioned citizens to view vehicle accident victims and other personal injury claimants as greedy, unsavory, and frivolous – despite most victims having legitimate claims.

Having predisposed people negatively toward claimants, many insurers play hardball against personal injury victims. They make subpar settlement offers to genuine vehicle accident victims, confident that they have poisoned the jury pool sufficiently in case the claimant does not knuckle under and instead files suit for fair compensation.

Mr. Waterman recounts a current vehicle accident case of lowballing. On February 4, 2010, a Yorktown motorist failed to yield the right of way while turning on State Route 17, cutting in front of an oncoming Gloucester motorist and causing a serious collision.

That vehicle accident victim sustained closed head and other injuries; required medical treatment and care and was disabled from work for more than 4 months; and 10 months after-the-fact still suffers some residual limitations. His past medical bills are more than $20,000.00 and his past lost wages are almost $25,000.00, totaling approximately $45,000.00 in fully-documented undeniable special damages alone!

Continue reading "Virginia: Insurers Re-Victimizing the Victim - a Lawyer’s Example" »

On December 1, 2010, Mr. Waterman reached a settlement agreement on a local vehicle accident claim without having to file suit. It was a two-car collision in Newport News, Virginia, involving residents of Yorktown and Newport News.

The vehicle accident victim initially was treated in the Emergency Room at Mary Immaculate Hospital. Subsequently the victim was treated by Sentara providers.

On November 11, 2010, Mr. Waterman settled a vehicle accident claim arising in Newport News, Virginia, involving residents of Newport News and Hampton. Suit had been filed on the two-car accident within the statute of limitation, but the lawsuit did not have to be served due to the deal reached.

Va. Code Ann. 46.2-1156.1 promotes the safety of certain children in vehicle accidents involving pickup trucks. It forbids the transportation of minors under 16 years of age in the rear cargo area of any pickup truck on a Virginia highway. However, some organized parades and forming operations are exempted.

Bicyclists frequently are victims of vehicle accidents, so should wear bicycle helmets to minimize wrongful death and brain injuries. Although Virginia does not have a statewide law, the following Hampton Roads and other localities have ordinances mandating bike helmets based on age: Albemarle County, City of Alexandria, Amherst County, Arlington County, Clarke County, City of Falls Church, Floyd County, City of Hampton, James City County, Town of Luray, City of Manassas, City of Manassas Park, City of Norfolk, Orange County, City of Petersburg, Prince William County, Stafford County, City of Vienna, Town of Wise, and York County.

Virginia law does require a bicycle light and reflector statewide to avoid vehicle accidents. A bike must have a white headlight visible 500 feet away when ridden from sunset to sunrise. Also, a bike must have a red reflector visible 600 feet away at all times.

Maintaining visibility at all times remains critical since being struck by motorists is by far the leading cause of wrongful death to bicyclists in Virginia and elsewhere. Hundreds of bicyclists are killed and injured every year by cars, trucks, and other vehicles across the United States.

Halloween! It is a time for fun, particularly for young children. It also is a time for safety, particularly with young children.

Parental vigilance assures that young trick-o-treaters do not become crime victims. Older children playing serious pranks, unsavory residents giving tampered snacks, and other unexpected mischief unfortunately are ghoulish specters.

But vehicle accidents loom as greater haunts. Adult supervision, well-fitting attire and lighting devices help protect young kids darting into traffic, tripping on roadways, etc.

Also, costumes should be flame resistant, especially when young ones will be around fireworks, candles, fires, and other combustibles. If a store-bought costume proves not to be flame resistant, a burn victim may have a defective products claim against the manufacturer and seller.

Finally, alcohol, drugs, and other intoxicants do not mix well with youngsters needing supervision. All too often substance abuse transforms good celebration into wrongful death.

Virginia’s Child Restraints law, Va. Code Ann. 46.2-1095(A), protects children under 8 years old in vehicle accidents. It requires all drivers to ensure that children 7 years of age or younger be provided with and properly secured in a child restraint device – a so-called “safety seat” – approved by the United States Department of Transportation. That safety seat must be placed in the rear passenger seat; or if there is no back seat, in the front passenger seat only if it does not have an operational side airbag.

Section 46.2-1095(B) of Virginia’s Child Restraint law also protects older minors in vehicle accidents. It requires all drivers to ensure that children over 7 and under 18 years of age are provided with and properly secured by an appropriate safety belt system consisting of lap belts, shoulder harnesses, combinations thereof, or similar devices.

The Journal of the Virginia Trial Lawyers Association for Fall 2010 features “Virginia’s new amendment to UIM statute will benefit clients”. Effective July 1, 2010, an amendment to Virginia’s Uninsured Motorist Coverage statute, Va. Code Ann.§38.2-2206(L), gives underinsured motorist (“UIM”) policy providers much-needed financial incentive to do the right thing for vehicle accident victims.

Historically, UIM carriers have refused to negotiate with and pay vehicle accident victims reasonably without forcing them to trial. Now, after the primary liability carrier has tendered its policy limits, a resistant UIM carrier automatically assumes full responsibility for the attorney’s fees and all other costs of defending the case thereafter.

On September 14, 2010, Circuit Court for the City of Suffolk, Virginia approved a wrongful death settlement. The case is Burr v. R.C. Paving, No. CL08-947 C/W CL08-955.

The Court in Burr, which arose out of a motor vehicle accident, also apportioned the settlement proceeds among the statutory beneficiaries. By consent, the known surviving siblings shared the net proceeds equally.

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

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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).

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.

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!

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.

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.

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.

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" »

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.

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.

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.

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.

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.

Continue reading "Virginia Traumatic Brain Injuries – a Lawyer’s Diagnostic" »

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).

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 liability “accident 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).

Continue reading "Virginia Vehicle Accidents & Premises Liability – a Lawyer’s Discovery " »

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.

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.

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

Continue reading "Virginia Vehicle Accidents – a Lawyer’s Advice" »

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.

Continue reading "Virginia Wrongful Death Law - a Lawyer's Commentary" »

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.

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.