Virginia Injury Attorney Blog

Eason v. Sentara Hospitals [and] Sentara Careplex Hospital, No. 12000470 is an alleged wrongful death or survival case pending in Circuit Court for the City of Hampton, Virginia. On January 19, 2013, Plaintiff obtained a written expert opinion that both Sentara Defendants deviated from the nursing standard of care.

On April 23, 2013, Eason v. Sentara Defendants, Sentara Hospitals’ and Sentara Careplex Hospital, served Motion to Reduce Ad Damnum, trying to reduce Plaintiff’s patient fall suit from $10,350,000.00 to only $2,000,000.00 summarily. On May 2, 2013, Plaintiff served her Memorandum in Opposition, arguing Sentara Defendants’ dilatory Motion is without merit - indeed, conflicts with a plain reading of the applicable statute, plus two Virginia Supreme Court opinions.

Va. Code Ann. §8.01-581.1 controls and simply provides expressly: “In any verdict returned against a healthcare provider in an action for medical malpractice…, the total amount recoverable…shall not exceed the cap.” (emphasis added) Since §8.01-581.1 is in derogation of Virginia common law, hornbook law holds that it must be construed strictly, i.e., narrowly against its beneficiary Defendants, to apply only to “verdict” as stated.

§8.01-581.1 explicitly limits only the “amount recoverable,” not the amount the jury can award. §8.01-581.1 does not “cap” any ad damnum: if the General Assembly wanted to achieve that result in medical malpractice cases such as Eason v. Sentara, then it easily could and should have legislated so expressly.

Va. Code Ann. §8.01-379.1 guarantees Plaintiff the right to plead and argue above the cap, including in wrongful death suits like Eason v. Sentara. §8.01-581.1 does not purport to abrogate §8.01-379.1, and must be harmonized with it.

Circuit Courts have denied motions like that of Sentara Defendants in Eason v. Sentara. See, e.g., Exhibit 1, Marshall v. Moniz, No. CL08-2018, Order at 2 (York Mar. 28, 2011); Wright v. Eli Lilly & Co., 65 Va. Cir. 484, 499-504 (Portsmouth Sep. 21, 2004)(citing Morris v. Commonwealth, 46 Va. Cir 216, 223 (Albemarle Jul. 17, 1998)(Peatross, J.)); Benson v. Lowe, 44 Va. Cir. 85, 86-87 (Norfolk Nov. 25, 1997)(Jacobson, J.); Bennett v. Riverside, 43 Va. Cir. 13, 14 (Newport News Mar. 17, 1997)(Frank, J.); Dell v. French, 38 Va. Cir. 91, 100 (Fairfax Aug 2, 1995)(Roush, J.); Johnson v. Commonwealth, 51 Va. Cir. 311, 318 (Stafford Feb. 9, 2000)(Haley, J.). Correspondingly, Peninsula Circuit Courts have reduced jury verdicts in excess of the cap, including notably in 2 other patient fall trials of Mr. Waterman. See, e.g., Denton v. Chu, No. CL12-94 (Hampton Feb. 2013); Final Judgment Order, Burrell v. Riverside Hosp., Inc., No. CL1101633F-15 (Newport News Jan. 29, 2013)(patient fall); and Amended Judgment, Johnson v. Riverside Hosp., Inc., No. CL00-29638-DP c/w CL01-30571-DP (Newport News Nov. 30, 2005)(patient fall).

“Hence the appropriate procedure is to submit the case to the jury without informing the jury of the limit on recovery. Should the jury return a verdict in excess of the Medical Malpractice Cap, the trial judge will reduce the award to the amount of the Medical Malpractice Cap.” Wright, supra, 65 Va. Cir. at 503 (quoting Dell).

More fundamentally – dispositively in Eason v. Sentara - the Virginia Supreme Court opinion upholding the constitutionality of the medical malpractice cap in 1989 emphasizes that verdict, not ad damnum, should be reduced:

The limitation on medical malpractice recoveries contained in Code
8.01-581.15 does nothing more than establish the outer limits of a remedy
provided by the General Assembly. A remedy is a matter of law, not a matter
of fact. A trial court applies the remedy’s limitation only after the jury has
fulfilled its fact-finding function.

Etheridge v. Med. Ctr. Hosps., 237 Va. 87, 96 (1989)(italics in original)(underlining added) (citations omitted). Moreover, this language of the Virginia Supreme Court in Etheridge was reiterated by it a decade later in Supinger v. Stakes, 255 Va. 198, 205 (1998).

Defendants nonetheless try to cap Plaintiff’s ad damnum in Eason v. Sentara at $2,000,000.00 artificially, toward inappropriately trying to make that the jury’s chopping block. Doubtless Sentara Defendants are sensitive to this year’s record $25,000,000.00+ medical malpractice jury verdict in Denton, supra, in Hampton and to undersigned counsel’s $3,500,000.00 patient fall verdict in Burrell, supra, in Newport News last year; yet those very cases evince verdict, not ad damnum, is to be reduced.

With the ad damnum reduced to only $2,000,000.00, Plaintiff in the Eason v. Sentara wrongful death/survival case will not be able to argue adequate monetary value to her substantial general damages claim for jury consideration, which she avers is an abridgment of her Constitutional right to jury trial and other undue prejudice. Sentara Defendants’ Motion is not well-grounded in fact or in law.

Unbeknownst to patients and the general public, but well-known to Sentara Defendants and its nurses for decades, patient falls are a leading cause of injury in hospitals. Putting up all four bedrails of a patient - as in Eason v. Sentara - is a disfavored patient restraint known to cause and/or aggravate personal injury, particularly when not used in conjunction with a sitter, posey vest or wrist restraints.

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 5-6, 2013, Mr. Waterman attended “Reptile in Nursing Home Cases” at Disney World in Orlando, Florida. It was a 2-day legal seminar.

This special medical malpractice program featured Don Keenan and other plaintiff lawyers. It was developed after countless hours in Keenan’s exclusive Florida workshop focused on the important topic.

Reptile seminar agenda included case selection, rules (and more rules), focus groups, depositions, arbitration, and trial (voir dire, opening, experts, defenses, demonstrative exhibits, and closing). Nursing home case scenarios covered wrongful death.

Mr. Waterman currently is handling several nursing home cases. Most involve patient falls.

THE VIRGINIA STATE BAR REQUIRES ALL LAWYERS TO POST THE FOLLOWING DISCLAIMERS ON ALL CASE-RELATED POSTS. MR. WATERMAN'S CASE RESULTS AND CLIENT TESTIMONIALS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. THEY DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE BY HIM.

“DANGEROUS DRINKS” is another feature article in AAJ’s Trial magazine in March, 2013. It exposes wrongful deaths and personal injuries caused by popular “energy drinks”. Id. at 28-34.

“Energy drink warning labels lack the specificity that would allow consumers to make an informed choice whether to purchase the product,” id. at 30; making for failure-to-warn claims, a special case of product liability. “The strongest liability cases are those involving teenagers and young adults who consumed energy drinks with no presence of alcohol or drugs and who suffered a cardiac event or stroke with several hours of consumption,” id. at 32; and those “with undiagnosed [cardiac[ conditions may be partially vulnerable to serious injuries after consumption”. Id. at 31.

Mr. Waterman has been a member of AAJ for over two decades. He regularly handles cases of wrongful death, and has several types pending.

THE VIRGINIA STATE BAR REQUIRES ALL LAWYERS TO POST THE FOLLOWING DISCLAIMERS ON ALL CASE-RELATED POSTS. MR. WATERMAN'S CASE RESULTS AND CLIENT TESTIMONIALS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. THEY DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE BY HIM.

Trial magazine’s March 2013 issue publishes 5 vehicle accident matters. A $2,750,000.00 New Jersey settlement entitled “Port Worker Strikes Dockworker with Forklift” and a $2,000,000.00 Illinois settlement in another forklift case entitled “Company Settles Despite ‘Borrowed Servant’ Defense” are headlined under its “Verdicts and Settlements.” Id. at 12.

Feature article “Failure to Install Side Air Bags” highlights the special case of manufacturer product liability for failing to install such critical occupant protection in all automobiles. Id. at 40-45. “Side impacts are as common as they are deadly.” Id. at 42.

Lack of side air bags are a significant factor leading to wrongful death. “The National Highway Traffic Safety Administration (NHTSA) estimates that side air bags could save up to 1,791 lives each year if every vehicle on the road were equipped with them.” Id. at 41.

“Getting the Facts from Automaker Employees” is another feature article on the special case of product liability. Id. at 46-51. It focuses on how to outmaneuver auto manufacturers attempting to minimize the usefulness of deposition testimony by their corporate product designees, ostensibly their most knowledgeable personnel: “The most effective deposition of the automaker’s engineer is usually designed to gather damaging admissions and establish the foundation for admissibility of key corporate documents at trial, as well as to support your experts’ testimony.” Id. at 48.

In Trial’s “Spotlight,” “Jury Faults Walmart for Tire Inspection” chronicles a $27,500,000.00 Texas verdict apportioning 88% liability against Walmart and 12% against the driver for the wrongful death of a guest passenger. Id. at 52-53. “The plaintiff’s expert determined that Walmart measured the higher points of the tread [in its pricier 15-point oil change inspection], but some parts of the tires actually measured lower than the legal limit.” Id. at 52.

Mr. Waterman initially was trained as a product liability lawyer defending national vehicle and chemical manufacturers. However, for decades since then he has represented victims of vehicle accidents, and currently has multiple wrongful death and personal injury cases pending in Williamsburg, Newport News, Gloucester, and Loudoun County, Virginia.

THE VIRGINIA STATE BAR REQUIRES ALL LAWYERS TO POST THE FOLLOWING DISCLAIMERS ON ALL CASE-RELATED POSTS. MR. WATERMAN'S CASE RESULTS AND CLIENT TESTIMONIALS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. THEY DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE BY HIM.

On February 28, 2013, the Virginia Supreme Court handed down Osman v. Osman, No. 120291, and appeal of a case involving wrongful death from the Circuit Court of Virginia Beach. It construed Virginia’s “slayer” statute, Va. Code Ann. §55-401, to preclude a son from inheriting from his mother, whom he had killed.

Despite admitting her wrongful death by his hand, Defendant son in Osman criminally was found not guilty of murder by reason of insanity. Id. at *2-3. Nonetheless, under the civil preponderance of evidence standard, Osman found the son committed murder since he acted intentionally despite not understanding his actions were wrongful. Id. at *9.

On March 6, 2013, Mr. Waterman filed Plaintiff’s Motion to Enforce 1/23/13 Hearing Order in William M. Snovell, Executor of the Estate of Bernadette Teresa Connelly Snovell, Deceased v. Williamsburg Facility Operations, LLC, et al., No. CL12-4966 in Circuit Court for York County, Virginia. It is a medical malpractice case seeking $4,550,000.00 in damages.

The corporate Defendant in Snovell, Williamsburg Facility Operations, asserts it had a functioning chair alarm in place before the patient fall. However, it has failed to produce the chair alarm in question as ordered - indeed, it represents without explanation that the chair alarm in question “is no longer available”.

Snovell corporate Defendant, Williamsburg Facility Operations, also represents that it used only 2 different types of “bed/chair alarms” made by 1 manufacturer at its nursing home, Consulate Health Care of Williamsburg, when the patient fell. But it also has not offered examplars of each bed/chair alarm, or even identified the manufacturer’s name and models.

The victim patient in Snovell allegedly suffered wrongful death: after she fell, the corporate Defendant’s personnel put her back to bed with broken ribs and she suffered an ultimately fatal pneumothorax. There is no hearing date on Plaintiff’s Motion.

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.

During February 22-23, 2012, Mr. Waterman attended the Wrongful Death Retreat of the Virginia Trial Lawyers Association (“VTLA”) entitled “Understanding and Proving Intangible Losses”. Its site was Kingsmill in Williamsburg, Virginia, his neighborhood.

VTLA’s Wrongful Death Retreat featured an innovative roundtable discussion format. Its small group setting forum was limited to 35 experienced plaintiff lawyers.

Presentations by speakers from around the state were thought-provoking, including several videos. All attendees received a seminal publication of Trial Guides - “Grief and Loss: Identifying and Proving Damages in Wrongful Death Cases”.

Trial magazine of the American Association of Justice reported a half-dozen notable “Verdicts and Settlements” in its February 2013 issue. Three were variants of medical negligence. Id. at 8-11.

A Georgia jury awarded $3,400,000.00 for medical malpractice against a clinic physician’s assistant using a dirty syringe needle that caused staph infection, painful sepsis, and ultimate suicide. Id. at 10. Also, a $1,000,000.00 settlement was paid in California for a jail suicide were a mental health professional returned a depressed schizoaffective detainee to the general prison population while awaiting transfer to a psychiatric hospital.

A confidential settlement was paid for a wrongful death in Greater Pittsburgh where ambulance crews failed to pick-up a heart attack victim during a heavy snow storm. The dispatcher required the immobile patient to walk his unplowed street to the ambulance instead of having the crew walk to the patient or use a four-wheel drive vehicle.

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 February 1, 2013, the corporate Defendant in the medical malpractice lawsuit of William M. Snovell, Executor of the Estate of Bernadette Teresa Connelly Snovell, Deceased v. Williamsburg Facility Operations, LLC, D/B/A Consulate Health Care of Williamsburg, and “Jane Roe/John Doe,” No. CL12-4966 in Circuit Court for York County, Virginia, served supplemental discovery responses as ordered by the Judge. It also produced its 2-page Root Cause Analysis for Fall, minimally redacted as Court-ordered.

Despite both of its pages bearing at the bottom the self-serving pre-printed legend “ATTORNEY/CLIENT PRIVILEGED CONFIDENTIAL WORK PRODUCE - QUALITY ASSURANCE,” Snovell Defendant’s Root Cause Analysis for Fall bears at the top of its first page the subheading “Data Collected at Time of Fall”. Thus, despite Defendant nursing home couching and arguing its basic data was supposedly privileged material, the truth is that on the face virtually all of it really was factual information of patient care that is discoverable.

In its supplemental discovery responses, Defendant Consulate Healthcare of Williamsburg claims that the patient’s “chair alarm was in place but the box didn’t alarm” before the patient fall. Assuming the chair alarm was “in place,” the remaining pivotal question in Snovell is whether the alarm was activated before the fall, particularly in light of the defense claim that it was “functioning”.

Conveniently for the corporate Defendant, it claims that the “particular alarm in use on Ms. Snovell’s chair is no longer available,” indicating that Consulate Healthcare of Williamsburg disposed of - or “lost” - that key evidence, knowing that an alleged wrongful death was involved. Under such suspect circumstances, the victim patient’s estate representative deserves and will seek an evidentiary spoliation instruction against Consulate Healthcare of Williamsburg in Snovell.

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.

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 January 23, 2013, the Motion to Quash of Williamsburg Facility Operations, LLC, d/b/a Consulate Health Care of Williamsburg, the Patient’s Motion to Enforce Va. Code Ann. §8.01-413(C) Subpoena, and the Plaintiff’s Motion to Compel were heard in the $4,550,000.00 wrongful death case of William M. Snovell, Executor of the Estate of Bernadette Teresa Connelly Snovell, Deceased v. Williamsburg Facility Operations, LLC, d/b/a Consulate Health Care of Williamsburg, et al., No. CL12-4966 in Circuit Court for York County, Virginia. The Court recessed during hearing for in camera review of the 2-page Root Cause Analysis for Fall and the 2-page Determination of Unavoidable Accident that Defendant healthcare provider was continuing to withhold from its deceased patient’s representative.

The Court in Snovell found that the nursing home’s 2-page Root Cause Analysis for Fall is factual in nature, except for its last question-and-answer paragraph on the second page entitled “How The Event Might Be Prevented In The Future,” which is deliberative analysis; that all such factual information is discoverable; and that the deliberative analysis is privileged. The Court found further that the 2-page Determination of Unavoidable Accident is entirely deliberative analysis, contains no factual information, and is privileged.

Hence the Court in the Snovell patient fall lawsuit ordered Williamsburg Facility Operations, LLC, d/b/a Consulate Health Care of Williamsburg to provide forthwith to its deceased patient’s representative its 2-page Root Cause Analysis for Fall, except for redaction of its last question-and-answer paragraph on the second page. The Court did not require it to provide the 2-page Determination of Unavoidable Accident.

In the Snovell medical malpractice proceeding, the Court also ordered that Defendant, Williamsburg Facility Operations, LLC, d/b/a Consulate Health Care of Williamsburg, provide discovery responses to Plaintiff in-hand by Monday, February 4, 2013. Such required information and materials includes the identity and addresses of current and former personnel; details underlying its discoverable 2-page Root Cause Analysis for Fall; the actual bed and chair alarms for inspection and photographing; and a corporate verification.

On December 28, 2012, the Virginia Supreme Court quickly vacated a Fairfax Circuit Court Order that enjoined a litigant from maintaining past accusative postings online and from posting again during the pending lawsuit. The unpublished opinion in Record No. 122157, Perez v. Dietz Development, LLC, expressly finds inter alia “the preliminary injunction was not justified”.

The Virginia Supreme Court’s Perez ruling - issued only 2 days after the appeal pursuant to Va. Code Ann. 8.01-626 - vindicates the propriety of Mr. Waterman posting contemporaneous case developments on this Blog. In 2010, 2011, and 2012, 3 medical malpractice Defendants - including Sentara and Riverside Hospital, Inc. - unsuccessfully have tried to deny Mr. Waterman’s state and federal rights of “free speech” online in a wrongful death, a patient fall, and another case through Circuit Courts in Suffolk, York, and Newport News.

In Perez, the American Civil Liberties Union (“ACLU”) of Virginia at www.acluva.org and the Public Citizen at www.citizen.org appealed the injunction Order as violating the First Amendment of the United States Constitution in addition to Virginia state law. Since Riverside Hospital, Inc.’s attempt to abridge Mr. Waterman’s Constitutional rights of “free speech” was in November, 2012, in the still-pending brain injury lawsuit, he yet may call upon ACLU of Virginia and Public Citizen to intercede on the topic.

Trial is the monthly magazine of the American Association for Justice (www.justice.org). Its December 2012 issue is dedicated to “RECLAIMING JUSTICE: BATTLING TORT ‘REFORM’,” which “reform” initiatives often result in medical malpractice legislation that limit victim rights.

Trial’s feature article, “The WEB of TORT ‘REFORM’,” exposes how Fortune 100 companies are trying to limit individual citizens’ legal recovery for product liability: “Major corporations have launched a concerted attack on the most basic tenets of civil justice. What they call tort ‘reform’ is in fact a disingenuous plot to convince Americans that corporations are on the side of ordinary citizens.” Id. at 15.

“The WEB” identifies a half-dozen corporate entities that campaign to restrict a person’s tort rights of redress for wrongful death and personal injuries:

1. Civil Justice Reform Group: CJRG, “comprising the general counsels of some of the largest and most profitable corporations in the world,” is at the “center of the campaign.” Id. at 16.

2. Institute for Legal Reform: “[M]ajor corporations hold the most sway” within the U.S. Chamber of Commerce’s ILR, which is “one of the largest players in the tort ‘reform’ movement” and whose “true goal is to benefit the interests of multinational corporations.” Id. at 16.

3. American Legislative Exchange Council: ALEC is “another secretive group of corporate lobbyists who write model legislation,” such as for “limiting access to the civil justice system for injured people [as] one of its top priorities.” Id. at 16.

4. American Tort Reform Association: ATRA “for many years functioned as the primary public relations arm of the tort ‘reform’ movement,” including with its “Judicial Hellholes project,” i.e., bashing of courts in which its members have lost big cases, and its “Astroturf organizing,” i.e., “faked grassroots support for limiting Americans’ legal rights.” Id. at 17.

5. Searle Civil Justice Institute: Based at George Mason University (“GMU”) in Arlington, Virginia, and affiliated with the Law & Economics Center there, the new SCJI turns focus of the tort reform movement to “academia,” commissioning on average $70,000.00-100,000.00 for the academic community to research and promote 10 suggested issue areas, “such as the ability of state attorneys general to contract with outside counsel, the use of pre-dispute mandatory binding arbitration clauses in contracts, the federal preemption of state tort laws, and class action litigation. Id. at 17.

6. Civil Justice Caucus Academy: Created by GMU’s Law & Economics Center in 2011, CJCA’s executive director immediately was the featured speaker at CJRG, attended by representatives of ILR, ALEC, ATRA, and major corporations. Id. at 17.

Major legislative initiatives of “tort reformers” include repeated attacks on the asbestos bankruptcy trust system and on state attorneys general retaining private law firms to prosecute product liability actions on contingency fees, such as was a success in the 1998 Tobacco Master Settlement Agreement. Id. at 17-20. Finally, “tort reformers” have focused efforts on the Federal Civil Rules Advisory Committee, toward imposing procedural restraints on the general public’s access to the civil justice system, particularly vis-à-vis spoliation of evidence and class action litigation. Id. at 22.

Trial’s companion feature article is “Spreading the Word about CIVIL JUSTICE.” Subtitled in part “As the civil justice system remains under attack, plaintiff lawyers are finding creative ways to highlight their role as defenders of public safety;” it highlights “BLOGGING for Justice,” “MARKETING that Matters,” and “Tell One Story at a Time.” Id. at 25-29.

Finally, Trial reports “Recap of Tort ‘Reform’ and Civil Justice Issues in the 112th Congress.” It recounts the historic defeat of H.R.5, the HEALTH Act, a Draconian medical malpractice bill that even a number of Republicans opposed and never got any traction in the Senate.

The December 2012 issue of Trial covers nursing home litigation. A feature article is “Weaving a NURSING HOME DEPOSITION STRATEGY.” Id. at 40-41. “When it comes to proving violations of the safety rules and resulting harm to the nursing home residents, you need to know the right questions to ask the defense witnesses, as well as how to dissect common defenses.” Id. at 40.

First, “Weaving” teaches that depositions must establish “standard of care” by developing the codified federal and state regulations and possibly the mirroring nursing home’s policies and procedures, per the following basic model: Assessment, Planning, Implementation, Reevaluation, and Communication. Id. at 41-42. Second, depositions must deconstruct the following general common medical malpractice defense arguments: (1) unavoidability (2) pointing the finger at the family or resident; (3) nursing judgment; (4) OBRA is not the standard of care; (5) policies and procedures are only guidelines; (6) poor documentation does not mean poor care; (7) custom and practice as evidence that care was provided; and (8) the unprepared witness. Id. at 42-44.

Third, depositions must marquee “systematic failures.” Id. at 44. “Once the deponent admits to a misstep in the nursing home model, the defense can no longer claim the injury was unavoidable.” Id. at 42.

Also, Trial’s “Verdict & Settlements” in December 2012 reported “Negligent Assistance to Nursing Home Resident.” A jury awarded $1,500,00.00 in a medical malpractice case of wrongful death. Id. at 10.

In the case reported, an 88 year-old died from complications of a patient fall. The facility nurse failed to take proper fall risk precautions and then to provide medical attention timely. Id.

Happy holidays!

On December 20, 2012, the medical malpractice lawsuit of Myron Arshan, Executor of the Estate of Sharon Lorrie Britt, Deceased v. Stephen Plotnick, M.D., et al., No. CL11-1316 in Circuit Court for the City of Williamsburg and James City County, Virginia, came on for hearing on various Demurrers and Motions. Most issues were raised by the Plotnick Defendants, represented by Tracy T. Hague, Esq. of 349-lawyer LeClair Ryan based in Richmond.

First, the Court in the Arshan wrongful death suit granted Plaintiff’s Motion for Leave to Extend and denied Plotnick Defendants’ request for attorney’s fees and costs in opposition. Ms. Hague in her affirmative defenses of contributory negligence and assumption of risk requested a Reply under Va. Sup. Ct. Rule 3:11, which went unnoticed until 35 days after the deadline without Leave.

The Court in Arshan found no prejudice or bad faith and instead excusable neglect and prompt follow-up. Nonetheless, such Rule 3:11 pleading in medical malpractice and other cases remains a potentially serious trap for the unwary.

Va. Sup. Ct. Rule 3:11 provides plaintiffs “shall within twenty-one days” file a reply. It parallels Rule 3:8, which provides defendants “shall within twenty-one days” file a responsive pleading.

The Virginia Supreme Court mandates that the 21-day rule of Rule 3:5 (now Rule 3:8) must “be read in connection with Rule of Court 3:13,” Herndon v. Willis, 198 Va. 824, 826 (1957); and it must be the same with Rule 3:11. Rule 1:9 (formerly Rule 3:13) provides: “The time allowed for filing pleadings may be extended by the court in its discretion, and such extension may be granted though the time fixed already has expired….” Cf, Lennon v. Virginia Board of Dentistry, 2007 Va. App. LEXIS 475, *3-4 (2007).

The Virginia Supreme Court holds that the purpose of the 21-day rule for filing a responsive pleading by defendants is:

"[P]rescribing a time within which a defendant may and shall file his answer or other defense, is not to cut off the orderly presentation of defenses, or to set a trap for the unwary defendant by which a plaintiff may be delaying the prosecution of his cause cut off the defendant from a full defense or escape the necessity of providing his case. Its purpose is to prevent unconscionable delay in an orderly procedure … being caused by dilatory tactics on the part of the defendant or by the neglect of the defendant, where the plaintiff has shown due diligence on his part in the prosecution of the cause."

Worsham v. Nadon, 156 Va. 438, 446 (1931). The same salutary considerations underpin the 21-day rule for filing a reply by plaintiffs.

Hence, routinely numerous circuit courts have granted, and appellate courts have upheld, extensions of the 21-day rules. E.g., Lennon, supra at *5; Emrich v. Emrich, 9 Va. App. 288, 291-295 (1989)(“trial court abused its discretion in denying the request to file [late] answer”); Arshan v. Plotnick, No. CL11-1316, Order (Williamsburg/James City County Dec. 20, 2012)(Rule 3:11); Tarpley v. City of Martinsville, 82 Va. Cir. 222, 224 (Martinsville Feb. 9, 2011)(“lack of prejudice to the opposing party and the existence of a substantial defense”); Brown’s Buick, Inc. v. Granite State Ins. Co., 78 Va. Cir. 22, 23-24 (Alexandria Oct. 29, 2008); Sanders v. Shuttle America, 75 Va. Cir. 378, 379-381 (Loudoun Aug. 15, 2008)(motion for leave granted, despite being filed after motion for default); Nauman v. Samuels, 73 Va. Cir. 411, 412-416 (Charlottesville Jul. 10, 2007)(motion for default denied where defense “counsel’s inadvertence did not cause an ‘unconscionable delay’,” despite no responsive pleading being filed for more than 5 months); Fletcher v. Inova Health Care Servs., 71 Va. Cir. 331, 331-332 (Fairfax Aug. 2, 2006); Brown v. Allen, 64 Va. Cir. 349, 351-352 (Fairfax Apr. 8, 2004)(motion for default denied despite defendant filing responsive pleading a month late and seeking leave for the same more than 2 months later); Kohl v. Amerigas Propane, Inc., 64 Va. Cir. 49, 49-52 (Madison Feb. 4, 2004)(“ends of justice” required extension, despite no “excusable neglect”); Vasquez v. Commonwealth, 63 Va. Cir. 106, 107 (Fairfax Sep. 8, 2003); Jay-Ton Constr. Co., Inc. v. Bowen Constr. Servs., Inc., 62 Va. Cir. 414, 424-436 (Portsmouth Aug. 13, 2003)(Rule 3:12, currently Rule 3:11); Jay-Ton Constr. Co., Inc. v. Bowen Constr. Servs., Inc., 62 Va. Cir. 530, 531 (Hampton Nov. 22, 2002)(Rule 3:12, currently Rule 3:11); Northland Ins. Co. v. Reichold, Inc., 58 Va. Cir. 271, 273 (Portsmouth Feb. 27, 2002); Mack v. Starwood Hotels and Resorts Worldwide, Inc., 57 Va. Cir. 390, 392-395 (Norfolk Feb 26, 2002); Riddle v. CARS, 45 Va. Cir. 236, 238-239 (Rockingham Mar. 26, 1998)(default judgment set aside and late responsive pleading permitted for “ends of justice”); Grant v. Doe, 31 Va. Cir. 254, 255 (Louisa Jul. 1, 1993)(default judgment set aside and late responsive pleading permitted); Richardson v. Wheeled Coach Corp., 20 Va. Cir. 458, 459 (Loudoun Aug. 21, 1990); Parker v. 900 East Marshall Street Assocs., 17 Va. Cir. 426, 427-428 (Richmond Dec. 6, 1989); Consolidated Healthcare, Inc. v. Overseas Partners, Inc., 14 Va. Cir. 241, 241-242 (Henrico Dec. 27, 1988); Chittum v. Chittum, 4 Va. Cir. 280, 282-283 (Frederick Apr. 4, 1985)(“interest of justice”); Greene v. Smith, 4 Va. Cir. 488, 489-490 (Sep. 25, 1979)(“ends of justice” permitted filing responsive pleading almost 1 year late)(Stephenson, J.); and Standard Farms, Inc. v. Alexander, 4 Va. Cir. 463, 463-464 (Augusta Jan. 31, 1978)( “permitting late filings would ends of justice”)(Stephenson, J.). Judge Stephenson’s opinions granting late pleadings for “justice” in Standard Farms in 1978 and in Greene in 1979 undercut Plotnick Defendants’ attempted reliance on his earlier adverse decision in 1976 in Nida v. Hooker, 4 Va. Cir. 430 (Allegheny Nov. 29, 1976). Indeed, a circuit court’s exercise of discretion may be improper if it limits late responsive pleading. E.g., Westfall v. Westfall, 196 Va. 97, 100-105 (1954)(error for circuit court to impose condition on party filing responsive pleading 8 months late where it had not “delayed the progress of the case”).

Nonetheless, Plotnick Defendants in the Arshan wrongful death suit cite the Court of Appeals’ 1989 opinion in Emrich (which granted leave for late pleading) and several random circuit court decisions. Plotnick Defendants ignore the Court of Appeals’ 2007 opinion in Lennon, which explains that Emrich’s list of “several ‘circumstances which support the exercise of discretion to extend the time of filing’,” however, “clearly … is not exhaustive or necessarily determinative; the application of the rule ‘rests within the sound judicial discretion of the trial court, it being impossible to lay down a rule which will be binding in all cases’.” Id. (quoting Eagle Lodge v. Hofmeyer, 193 Va. 864, 870, 71 S.E.2d 195, 198 (1952)).” 2007 Va. App. LEXIS 475, *4 (emphasis added).

The decision in Executive Homes Realty Corp. v. Mathews, 38 Va. Cir. 486 (Williamsburg/James City Mar. 27, 1996), cited by Plotnick Defendants, is readily distinguishable and inapposite on the facts. Unlike Plaintiff in the Arshan medical malpractice case, the late party in Executive Homes never filed a late reply - or even sought leave to do so - and instead simply let their delinquency unto default be decided against them on summary judgment. Id. at 490-491.

Likewise, Spradling v. W.O. Grubb Steel Erection, Inc., 61 Va. Cir. 607, 608 (Newport News Mar. 11, 2002), also cited by Plotnick Defendants in the Arshan wrongful death lawsuit, similarly is distinguishable and inapposite for the delinquent party never filing a late reply or even seeking leave to do so. More fundamentally, the Court in Spradling explicitly stated that the point of dicta cited by Plotnick Defendants at bar was “moot”. Id.

Bates v. Merritt, 83 Va. Cir. 134, 135-136 (Loudoun Jun. 29, 2011), additionally cited by Plotnick Defendants, is distinguishable and inapposite on the facts too. Unlike Plaintiff in the Arshan medical malpractice case, plaintiff in Bates did not request an extension, plus violated an existing Court Order that set a deadline for filing an Amended Complaint. Id.

Notably, the defense Memorandum in Opposition to Plaintiff’s Motion for Leave to Extend filed in the Arshan wrongful death case on December 17, 2012, may be used against LeClair Ryan in the future. If one of its Defendant clients fails to file a timely pleading in response to a Complaint, Counterclaim and/or Cross-claim, then Ms. Hague's Memorandum in Opposition would be good authority for entry of a default judgment instead of an extension of time.

Finally, the Arshan Court also overruled Plotnick Defendants’ Demurrer re punitive damages, finding Plaintiff sufficiently pleaded his wrongful death claim that Plotnick Defendants’ conduct was “so reckless as to evince a conscious disregard for the safety of others”. See, Va. Code Ann. §8.01-52; Virginia Model Jury Instruction No. 9.105 (Punitive Damages: Death by Wrongful Act); and Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128, 144 (1992). The Court also granted Plotnick Defendants’ Demurrer to Plaintiff’s “negligent retention” claim and Amended Complaint Paragraph 24(N); granted in part (in light of its ruling on “negligent retention”) and denied in part their Motion to Strike; and found moot Defendants’ Motion to Sever the "negligent retention" claim.

On December 14, 2012, The Daily Press headlined “Jury awards #3.5M to woman, 87, who fell” and www.dailypress.com headlined “NN jury makes $3.5 million award to 87 year-old.” The identical articles cover Mr. Waterman’s recent patient fall trial, Burrell v. Riverside Hospital, Inc., No. CL1101633F-15 in the Circuit Court for the City of Newport News, Virginia.

The Daily Press quoted Mr. Waterman re his sizeable favorable verdict for the 87 year-old: “It’s vindication that the elderly aren’t throwaways.” Historically, there has been a defense mindset that medical malpractice cases involving older victims are not worth much.

The Daily Press also quoted Mr. Waterman about the magnitude of the patient fall problem beyond Riverside. “It happens in hospitals and nursing homes in every health system. It’s a chronic problem in every state nationwide. It’s rampant.”

Riverside’s Risk Manager declined The Daily Press’ interview request about the patient fall case. Instead, Riverside issued a prepared statement, expressing disappointment with the $3,500,00.00 jury award, considering its appeal options, and extolling its quality.

The Daily Press article recounts the preventative measures that should have been used by Riverside for its victim in-patient: (1) relocating the patient closer to the nurse’s station; (2) using a bed alarm; (3) using a sitter; and (4) using soft restraints, like a posey vest. It recounts further that some nurses do not like using bed alarms because of “false positives,” but quotes Mr. Waterman that “some false positives are a worthwhile inconvenience” toward avoiding such serious personal injuries and even wrongful death.

The Daily Press highlighted Mr. Waterman calling 8 highly-credentialed experts among his more than 40 witnesses and him using new key technology to demonstrate the victim’s brain injury, including 3.0 Tesla MRI with its cutting-edge Diffusion Tensor Imaging (“DTI”) and NeuroQuant Analysis. Additionally, it marqueed Mr. Waterman’s reliance on his 2006 Virginia Supreme Court decision against Riverside - Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006) - to introduce into evidence 4 “incident report” documents containing factual information of patient care that was not entered in the patient’s chart by Riverside personnel.

In the medical malpractice case of McKinney v. Virginia Assocs., P.C., No. 111869 (Sep. 14, 2012), the Virginia Supreme Court interpreted Va. Code Ann, 8.01-229(E)(3) and 8.01-380. A survival action filed within six months of non-suit of a wrongful death action was held timely. Id. at *7.

McKinney found that the underlying “cause of action was the defendant’s alleged medical malpractice resulting in injury to the decedent.” Id. at *6. “From this cause of action, two rights of action arose: (1) the decedent’s right to bring an action for personal injury during his lifetime, which survived to be carried on by his personal representative after his death, and (2) the personal representative’s right to bring an action for wrongful death.” Id.

Upon rehearing of John Crane, Inc. v Hardick, No. 101909 (Sep. 14, 2012), the Virginia Supreme Court reinstated a $2,000,000.00 damages award for pre-death pain and suffering. The award was by a Newport News Circuit Court jury in an asbestos wrongful death case handled by the asbestos lawyers in Mr. Waterman’s firm, Patten, Wornom, Hatten & Diamonstein.

The Richmond-based 349-lawyer 21-office law firm of LeClair Ryan, a professional corporation, is representing the Defendants in Mr. Waterman’s medical malpractice case for a patient fall victim, Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia, which is scheduled for 2-week jury trial during November 26-December 7, 2012. The law firm of LeClair Ryan also is representing Defendants in Mr. Waterman’s medical malpractice claim of patient wrongful death, Myron M. Arshan, Executor of the Estate of Sharon Lorrie Britt, Deceased v. Stephen E. Plotnick, M.D., et al., No. CL11-1316 in Circuit Court for the City of Williamsburg, Virginia, a primary Defendant of which is a doctor who lost his Virginia medical license.

On November 15, 2012, Tracy T. Hague, Esq. of LeClair Ryan served on Mr. Waterman in the Arshan wrongful death case 143 Requests for Admission plus a supplemental Interrogatory demanding details for any Request not admitted, and on November 16, 2012, she also served on him in Arshan Amended and Additional Requests for Admission; Responses and Answers to all of which are due at the end of Mr. Waterman’s trial with LeClair Ryan in Burrell. Under these disruptive circumstances, today Mr. Waterman is seeking from Ms. Hague of LeClair Ryan a 3-week extension of time to respond to her numerous discovery requests in the Arshan medical malpractice lawsuit simply to cover his 2-week jury trial in Burrell and his final pre-trial preparation during Thanksgiving holiday week beforehand; otherwise, Mr. Waterman will be forced to move the Arshan Court in Williamsburg for emergency relief, which Motion may have to be heard during his Burrell jury trial in Newport News with LeClair Ryan.

November 20, 2012, postscript: Mr. Waterman filed Plaintiff’s Motion for Extension of Time and for Emergency (Telephonic) Hearing in the Arshan wrongful death case. Shortly thereafter, Ms. Hague of LeClair Ryan agreed to the requested extension of 21 days after Mr. Waterman’s medical malpractice trial with LeClair Ryan in Burrell is scheduled to end.

On November 9, 2012, dailypress.com headlined: “Lawsuit filed in death of elderly Gloucester woman”. It reports the $4,450,000.00 medical malpractice suit filed by Mr. Waterman on November 5, 2012, Case No.: CL12000440-00 in Circuit Court for Gloucester County, Virginia, captioned Patrick Lee Cherrie, Administrator of the Estate of Gerda A Harvey, Deceased, v. Virginia Health Services, Inc., d/b/a Walter Reed Convalescent & Rehabilitation Center, Long Term Care of Tidewater, P.C. and Raina Winfrey, M.D.

The article recounts how the Defendants’ “high onto extreme” fall risk patient suffered a brain injury that proved to be fatal the 3rd time she fell in only 4 days. Defendants in Cherrie failed to give the victim the safety protection of a “bed alarm” – a highly effective pressure-sensitive system for beds and chairs – until after she suffered the fatal brain injury.

The Daily Press quoted Mr. Waterman, “It’s what they should have done previously, and not after the third [patient] fall.” Defendants in Cherrie also failed to move the victim closer to the nurse’s station after her 1st and 2nd falls.

The Daily Press notes that it was not able to get through to, or to hear back from, the corporate office of Virginia Health Services, Inc. for comment re its impending Cherrie newspaper coverage. Virginia Health Services is owner of the nursing home, Walter Reed Convalescent & Rehabilitation Services.

Defendants in the Cherrie wrongful death lawsuit have refused to turn over their complete incident reports for each of the 3 falls, providing only substantially redacted versions to the patient’s Estate Executor. Hence Mr. Waterman will issue a Subpoena Duces Tecum for the same, and seek enforcement vis-à-vis any “factual information of patient care” withheld by Virginia Health Services d/b/a Walter Reed.

On September 28, 2012, Mr. Waterman argued Plaintiff’s Motion for Leave to Amend in the wrongful death suit of Arshan v. Stephen E. Plotnick, M.D., et al., No. CL11-1316 in the Circuit Court for the City of Williamsburg and James City County, Virginia. The Judge granted the Motion over the objection of Defendants, Dr. Plotnick and his PLLC, which formerly practiced medicine in Virginia Beach, Virginia.

This medical malpractice matter is controlled by Rule 1:8 of the Rules of the Virginia Supreme Court of Virginia. “Leave to amend shall be liberally granted in furtherance of the ends of justice.” Va. Sup. Ct. R. 1:8 (emphasis added).

Over 50 years ago the Virginia Supreme Court embraced its Rule’s liberality toward amendment as the modern trend, which governs the Arshan wrongful death case. “The tendency of modern decisions is reflected in our Rule”. Goode v. Courtney, 200 Va. 804, 807 (1959).

Accordingly, where as in the Arshan medical malpractice action there really is no undue prejudice or previous amendment, the amendment should be granted. E.g., Mortarino v. Consultant Eng’g Sevs., Inc. 251 Va. 289 (1996); Kole v. City of Chesapeake, 247 Va. 51 (1994). Indeed, in Gray v. Rhoads, 55 Va. Cir. 362, 377-378 (Charlottesville Jul. 2, 2001), upon dismissing claims for negligent supervision and training, sua sponte the judge granted leave to amend for claims of negligent hiring and retention.

Virginia Circuit Courts routinely grant leave to amend to further justice, this Arshan wrongful death lawsuit being no exception. E.g., Gagnon v. Burns, No. CL08-572 (Gloucester Jun. 16, 2009); Seibert v. Riverside Hosp., Inc., No. 40366-DP (Newport News Nov. 13, 2007)(medical malpractice); Pedigo v. Flattop Mountain Landowner’s Assn., Inc, 73 Va. Cir. 26, 33 (Greene Dec. 7, 2006); PMG Invs., LLC v. Gravely-Robinson, 71 Va. Cir. 140, 141 (Roanoke Jun. 14, 2006). In PMG, the circuit court granted an amendment on an appeal de novo from General District Court. In Pedigo, the circuit court granted leave to amend after sustaining a demurrer.

“A trial court that fails to allow amendments is likely to have abused its discretion. See, e.g., Peterson v. Castano, 260 Va. 299, 534 S.E. 2d 736 (2000); Mortarino v. Consultant Eng’g Servs., Inc., 251 Va. 289, 467 S.E. 2d 778 (1996).” Drewery v. City of Roanoke, 63 Va. Cir. 609, 619 (Roanoke Sep. 7, 2001). Kole v. City of Chesapeake, 247 Va. 51 (1994); XL Specialty Ins. Co. v. Commonwealth, 47 Va. App. 424 (2006); and Dirtselis v. Dirtselis, 2005 Va. App. LEXIS 451 (Nov. 8, 2005). The Supreme Court of Virginia and the Court of Appeals of Virginia regularly have reversed and remanded for denial of leave to amend. E.g., Peterson, 260 Va. at 303-304; Mortarino, 251 Va. at 295-296; Kole, 247 Va. at 57; XL, 47 Va. App. at 437-438; and Dirtselis, 205 Va. App. LEXIS 451 at *11-14. Unlike the judge in the Arshan medical malpractice hearing, the circuit court in Mortarino properly had sustained a demurrer, but “abused its discretion in failing to allow the filing of the amended motion for judgment”. 251 Va. at 296.

In Booher v. Botetourt County Board of Supervisors, 65 Va. Cir. 53, 59-61 (Botetourt Apr. 29, 2004), Defendants variously opposed the motion for leave to amend on grounds of it being unseasonable, the movant not showing it would not be futile, and the movant not having tendered the proposed amendment. But the court found no untimeliness despite months having past since initial filing, where there was no trial date or discovery. Id. at 60. Next the court in Booher rejected the futility assertion: “There is no technical burden upon a party seeking leave to amend to demonstrate that the amendment will not be futile. Nothing within the Rules of Virginia’s jurisprudence calls for such a showing.” Id. Then the Court held that although producing the proposed amendment at hearing “may be preferable and is often done, it is not required.” Id. Finally, Booher observed that the burden instead was on defendant opposing the Motion, who could not show undue prejudice. Id. at 61. When asked in the Arshan wrongful death argument, Defendants could not articular any undue prejudice.

Although Plaintiff’s amendment in the Arshan medical malpractice proceeding certainly reflects very badly on Plotnick Defendants, as did the 2007 record alteration/fraud allegations against Riverside Hospital in Seibert, supra, they are not unduly prejudicial to them. Like Riverside Hospital, Plotnick Defendants have nobody to blame for their underlying misconduct or their discovery misconduct besides themselves.

The Arshan wrongful death lawsuit granting amendment is “in furtherance of the ends of justice,” as mandated. Denial of amendment denies justice.

On September 24, 2012, The Wall Street Journal (www.wsj.com) headlined “How to Stop Hospitals from Killing Us,” subtitled: “Medical errors kill enough people to fill four jumbo jets a week. A surgeon with five simple ways to make health care safer.” Authored by a doctor who trained as a surgeon at one of Harvard Medical School’s prestigious affiliated teaching hospitals, is a surgeon at Johns Hopkins hospital, and developed the surgical checklists adopted by the World Health Organization; the article exposes rampant medical malpractice - and doctors’ unspoken “code of silence” about it.

Dr. Makary elucidates that doctors “absorb another unspoken rule: to overlook the mistakes of our colleagues.” The undeniable national statistics of medical malpractice are scary: U.S. surgeons operate on the wrong body part 40 times per week, 25% of all hospital patients are victims of medical errors, and medical errors are the 6th leading cause of death in the U.S. (with 98,000 wrongful deaths annually)!

Dr. Makary recounts medical residents joke about, and institutions protect, charming “Dr. Hodad” - whose fictive last name is acronym for Dr. “Hands of Death and Destruction”. Hence the author advocates 5 “relatively simple - but crucial - reforms” to minimize medical malpractice: (1) Online Dashboards; (2) Safety Culture Scores; (3) Cameras; (4) Open Notes; and (5) No More Gagging.

On September 21, 2012, Mr. Waterman filed Plaintiff’s Memorandum in Opposition to Defendants’ Demurrers and to Defendants’ Motion to Strike, plus lodged Amended Complaint with Exhibits, in Arshan v. Stephen E. Plotnick, M.D., et al., No. CL11-1316 in Circuit Court for the City of Williamsburg and James City County, Virginia. The underlying Demurrers and Motion, Memo, and Amended Complaint concern Plaintiff’s medical malpractice claim.

Plaintiff “correctly notes that the independent tort of negligent retention is recognized in Virginia.” Niese v. City of Alexandria, 264 Va. 230, 240 (2002). “[T]his cause of action is based on the principle that an employer…is subject to liability for harm resulting from the employer’s negligence in retaining a dangerous employee who the employer knew or should have known was dangerous and likely to harm [patients],” Southeast Apartments Mgmt., Inc. v. Jackman, 257 Va. 256, 260 (1999)(emphasis added), as Plaintiff’s Amended Complaint in the Arshan wrongful death suit alleges.

As authority for negligent retention, Southeast Apartments relies upon Phillip Morris, Inc. v. Emerson, 235 Va. 380, 401 (1988). Significantly, Philip Morris holds liability for “one who negligently retains an incompetent independent contractor,” 235 Va. at 401 (emphasis added); which Dr. Plotnick may be in the Arshan wrongful death lawsuit.

Any employer, even a charitable organization, is liable “for the negligent of its employees if it fails to exercise ordinary care in the selection and retention of those employees.” Infant C. v. Boy Scouts of America, Inc., 239 Va. 572 (1990)(citing J . . . v. Victory Tabernacle Baptist Church, 236 Va. 206, 208 (1988); Hill v. Memorial Hosp., Inc., 204 Va. 501, 507 (1963); Memorial Hosp. v. Oakes, Adm’x., 200 Va. 878, 885, 108 S.E.2d 388, 393 (1959); Norfolk Prot. Hospital v. Plunkett, 162 Va. 151, 153 (1934); and Weston’s Adm’x. v. St. Vincent, etc., 131 Va. 587, 610 (1921)). Importantly, that includes a closely-held healthcare entity being liable for negligent retention of a doctor, Hazzis v. Modjadidi, 69 Va. Cir. 385, 390-391 (Norfolk Dec. 19, 2005); such as the PLLC in the Arshan medical malpractice lawsuit being liable for alleged negligent retention of Dr. Plotnick.

Numerous Virginia Circuit Courts have permitted negligent retention claims to go forward. E.g., Hazzis (medical malpractice), supra; Gray v. Rhoads, 55 Va. Cir. 362, 377-378 (Charlottesville Jul. 2, 2001); Flanary v. Roanoke Valley Soc’y for the Prevention of Cruelty to Animals, 53 Va. Cir. 134, 135 (Roanoke Jun. 26, 2000); Courtney v. Ross Stores, Inc., 45 Va. Cir. 429, 431-432 (Fairfax May 1, 1998); Tremel v. Reid, 45 Va. Cir. 364, 383-385 (Albemarle Apr. 20, 1998); Berry v. Scott & Stringfellow, 45 Va. Cir. 240, 244-247 (Norfolk Mar 27, 1998); and Johnson-Kendrick v. Sears, Roebuck & Co., 39 Va. Cir. 314, 319-321 (Norfolk May 31, 1996). In fact, this Honorable Court was one of the earliest ones to do so. Doe v. Bruton Parish Church, 42 Va. Cir. 467, 481-482 (Williamsburg/James City County Jul. 10, 1997).

Sitting in this Honorable Court by special designation of the Virginia Supreme Court in Doe v. Bruton Parish Church, Justice Lemons pronounced: “Based upon what is alleged in the pleadings, the factual basis for the claim of negligent retention appears weak but it is sufficient to withstand demurrer.” Id. at 482. In Flanary, supra, a single prior complaint sufficed as “actual notice” to support a negligent retention claim, while in the Arshan wrongful death case Plaintiff alleges actual notice of multiple prior complaints and incidents. 53 Ca. Cir. at 135. See also, Berry, supra, 45 Va. Cir. at 247 (plaintiff’s factual allegations “indicate that the [corporate defendant] had actual notice of [the individual defendant’s] propensity”).

Federal Courts likewise have upheld negligent retention claims under Virginia law. E.g., Blair v. Defender Servs., Inc., 386 F.3d 623, 629-630 (4th Cir. 2004)(Virginia law); Thompson v. Town of Front Royal, 117 F.Supp.2d 522, 531-532 (W.D.Va. Oct. 3, 2000)(Virginia law); and Call v. Shaw Jewellers d/b/a Sterling, Inc., 1999 U.S. Dist. LEXIS 636, *4-5 (E.D.Va. Jan. 7, 1999)(Virginia law). The Fourth Circuit in Blair reversed dismissal of a negligent retention claim, 386 F.3d at 629-630; while notably the Eastern District in Call also ordered discovery on the negligent retention claim. 1999 U.S. Dist. LEXIS 636, *5-7.

On September 19, 2012, The Virginia Gazette headlined “No alarms alerted that patient fell,” and subheadlined “Chart was allegedly ‘laundered’”. The article covers the $4,500,000.00 medical malpractice suit, William M. Snovell, Executor of the Estate of Bernadette Teresa Connelly Snovell, Deceased v. Williamsburg Facility Operations, LLC, et al., Case No.: CL12004966, in the Circuit Court for York County, Virginia.

As the Snovell lawsuit and The Virginia Gazette article recount, the patient was “high-risk” for falling and allegedly should have had the benefit of a bed alarm as protection against falling. Yet she was not provided a bed alarm by Consulate Health Care of Williamsburg, predictably suffered a patient fall, and fortuitously was heard yelling for help by a visitor (not by Consulate Health Care nurses).

As the Snovell lawsuit and The Virginia Gazette also state, the patient suffered multiple rib fractures and a serious lung injury; but Consulate Health Care nurses simply put the patient back to bed, charted “fall without injury” that night and charted “no pain or discomfort” the next morning. In truth, however, the patient was complaining of severe pain, but was not rushed to the Emergency Room at Sentara Williamsburg Regional Medical Center until the following afternoon, and suffered allegedly wrongful death days later.

The Virginia Gazette quoted Mr. Waterman in Snovell: patient “falls are a chronic problem at nursing facilities and most are predictable and avoidable. He added that some manufacturers even build bed alarms . . . into hospital beds.” Id. at 12A.

Mr. Waterman has been a legal pioneer in Virginia patient falls, handling such cases for two decades. His 2005 $1,650,000.00 jury verdict for a patient fall victim in Newport News was upheld by the Virginia Supreme Court in Riverside v. Johnson, 272 Va. 518 (2006).

The August 2012 issue of Trial, the monthly magazine of the American Association for Justice (“AAJ”) www.justice.org, reports key “Verdicts and Settlements”. One entitled “Court Sanctions Supermarket for Destroying Video of Slip and Fall” recounts a $2,300,000.00 Georgia jury verdict after the judge struck all defenses of Kroger Co. for Kroger erasing incident footage in a special case of premises liability.

Trial’s “College Student Dies After Fraternity Pledge Activity” reported a $4,660,000.00 settlement of a North Carolina case against the national Theta Chi Fraternity for its alleged failure to enforce anti-hazing policy, resulting in wrongful death at the hands of its local chapter. Another negligence article, “Failure to Provide Helmets at Segway Event,” covered a $10,000,000.00 Connecticut jury verdict against Segway, Inc. for not having or even warning about helmets at a “Segway Challenge” demonstration/competition.

On July 12, 2012, Mr. Waterman served plaintiff's Second Motion to Compel in the medical malpractice lawsuit captioned Arshan v. Plotnick, et al., No. CL11-1316 in Circuit Court for the City of Williamsburg and James City County, Virginia. The Motion seeks answers and responses from the defendant doctor and corporation to the Discovery Requests of the plaintiff executor for the estate of the deceased patient, Sharon Britt.

Re the Second Discovery Requests in the Plotnick wrongful death case, Dr. Plotnick and his professional corporation still are withholding their billings and any write-offs and write-downs from the deceased patient. Their billings evince what patient services they represented to third-party payors they provided to Ms. Britt, while any write-off/write-down arguably evinces an admission of fault/liability by them.

On July 10, 2012, Mr. Waterman served Plaintiff's Motion to Compel in the medical malpractice case of Myron M. Arshan, Executor of the Estate of Sharon L. Britt v. Stephen E. Plotnick, M.D., et al., No. CL11-1316 in the Circuit Court for the City of Williamsburg and James City County, Virginia. The deceased Williamsburg resident was found dead by her 8 year-old son in 2008 after accidentally overdosing on very powerful narcotics - Fentanyl, Methadone, and Olanzapine - prescribed her by the Defendant Virginia Beach doctor, whose medical license was suspended by Virginia's Board of Medicine shortly thereafter.

On June 7, 2012, the Virginia Supreme Court issued a wrongful death opinion arising from a vehicle fire in Albemarle County, Funkhouser v. Ford Motor Co., No. 111207. By 4-3 decision, it found admissible prior vehicle fires and expert testimony thereon.

Re the admissibility of 4 prior similar occurrences, the pivotal point in the Funkhouser special case is plaintiff predicating his product liability claim solely on “failure to warn”. “Funkhouser does not advance a design defect theory and is not required to do so in order to introduce evidence of other similar occurrences.” Id. at 19-20.

“[S]ince Funkhouser does not assert that his minivan was defectively manufactured or designed, the specific mechanical cause of the Funkhouser minivan fire is not an element of his failure to warn claim,” explained the Virginia Supreme Court in the Funkhouser wrongful death appeal. “Rather, Funkhouser must establish the Funkhouser’s minivan was unreasonably dangerous for its untended use.” Id. at 14.

In turn, “Funkhouser was not required to allege a specific mechanical defect to establish the [requisite substantial] similarity of the fires [in the prior occurrences].” Id. at 16-17 n. 8. The Funkhouser special case opinion concluded, “Whether the Funkhouser minivan is unreasonably dangerous and whether Ford knew or should have known of the unreasonably dangerous condition are essential elements of Funkhouser’s failure to warn claim and were not proper issues for the court to resolve of Ford’s motion to exclude evidence of the other Windstar van fires.” Id. at 16.

Re the admissibility of expert testimony about prior similar occurrences, the Funkhouser wrongful death decision relied on Va. Code. Ann. §8.01-401.1. It held that plaintiff’s product liability expert could testify on direct examination about the 4 “substantially similar” prior occurrences and possibly about having relied upon (though not the details of) 3 other prior occurrences that were not substantially similar, and that the defense could cross-examine about the expert’s basis for the foregoing. Id. at 22-25.

The foregoing wrongful death opinion was reported at 284 Va. 214 (2012), but was withdrawn after a Petition for Rehearing was granted by Order dated September 17, 2012. On January 10, 2012, the Virginia Supreme Court effectively "reversed" its inital opinion, this time affirming the trial court's exclusionary evidentiary rulings by a 4-3 margin.

The 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.

Trial is the monthly magazine of the American Association for Justice (“AAJ”) www.justice.org, formerly the American Trial Lawyers Association (“ATLA”), of which Mr. Waterman has been a member for decades. The cover of its April, 2012 issue headlines “DAMAGES: WORKING TOWARD MAKING YOUR CLIENTS WHOLE”.

The lead article is “Rethink Cross-Exams in Traumatic Brain Injury Cases”. Id. at 16-20. Its teaching coincides with Mr. Waterman’s experience in Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

Another article is “Illuminate Damages with a Video Settlement Brochure”. Id. at 26-29. Mr. Waterman recently used such a video to obtain a Virginia recording-setting settlement at mediation of a medical malpractice case.

“Dealing with Low Ceilings” is another Trial article. Id. at 30-34. Mr. Waterman faces such a damages “cap” – roughly $2,000,000.00 – in all Virginia medical malpractice cases.

“Recovery for Damaged Credit” is a fourth damages article. Id. at 22-25. It may be applicable in wrongful death as well as personal injury cases.

On March 14, 2012, a jury in Circuit Court for Montgomery County, Virginia, found that Virginia Tech officials were liable for the 2007 fatal mass shooting of 32 on its campus. The jury in Christiansburg awarded $4,000,000.00 to surviving family members for the wrongful deaths of students, Julia Pryde and Erin Peterson.

The Virginia Tech case raises some of the same legal issues pending before the Virginia Supreme Court in Richmond in Mr. Waterman’s brain injury appeal, Burns v. Gagnon, No. 110754 c/w Gagnon v. Burns, No. CL08-572. Common legal points of both crime victim lawsuits include sovereign immunity, gross negligence, special relationship, and legal duty.

In Conger v. Barrett, 280 Va. 627 (2010), the Virginia Supreme Court vindicated Plaintiff’s right to reinstate her wrongful death suit within 1 year of its dismissal under Va. Code Ann. §8.01-335(B). The court rejected the defense assertion that Va. Code Ann. §8.01-244(B) two-year limitation for filing a new action barred reinstatement.

“Conger’s motion to reinstate her earlier case did not create ‘another action’ and therefore is not subject to the limitation period in Code §8.01-244(B),” wrote Justice Mims. Id. at 633. Accordingly, Conger reversed the trial Court’s dismissal of Plaintiff’s medical malpractice case. Id.

In the medical malpractice case of Mahone v. Sentara Hospitals, et al., No. CL10-1122 in Circuit Court for the City of Suffolk, Virginia, certain defendants filed Demurrer and Motion for Bill or Particulars while refusing to submit to discovery deposition. On March 6, 2012, Mr. Waterman filed Memoranda in Opposition.

Mahone alleges inter alia that the patient suffered wrongful death because of defendants failing to test, monitor, diagnose, consult, refer, transfer, treat and/or care for TTP. The aforesaid Motions are scheduled for hearing in Court on March 13, 2012.

Trial is the monthly magazine of the American Association for Justice (“AAJ”) www.justice.org, formerly the American Trial Lawyer’s Association (“ATLA”), the premier national organization for plaintiff lawyers. Trial’s November 2011 issue focuses on “Products Liability” with the following articles: “Go Global for Stronger Safety Claims,” “Preemption’s Uncertain Path,” “A Closer Look at Asbestos Cases,” “Some Assembly Required,” and “A New Weapon in Pharma Cases”.

Mr. Waterman began his 30-year legal career in New Orleans, Louisiana, as a large defense firm lawyer focusing on product liability and medical malpractice. Since becoming a lawyer for victims, he has continued to handle such cases, including product liability claims for wrongful death against a national vehicle manufacturer in federal court and for personal injury against a national pharceutical company in multi-claimant litigation.

A number of other lawyers in Mr. Waterman’s firm have a products liability practice that is limited to asbestos victims. Many, but not all, of their clients were exposed to asbestos at the Newport News Shipyard on the Peninsula and/or the Norfolk Naval Base on the Southside of Hampton Roads, Virginia.

The October 2011 issue of Trial, the monthly publication of the American Association for Justice (“AAJ”) www.justice.org, features “Benefits of a Grief Counselor’s Testimony.” The bottom line of that article is that a professional “grief counselor can put the loss [of wrongful death] in context to help jurors understand your client’s suffering.” Id. at 40.

Professional grief counselors usually are psychologists or psychiatrists. Hence as expert witnesses they must qualify in wrongful death cases under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and progeny. Id. at 43.

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.

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.

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.

In Lagumen v. Richardson, 80 Va. Cir. 51 (Chesapeake Jan. 21, 2010), Chesapeake Circuit Court adjudicated the degree of certainty or probability required for a medical expert opinion to be admissible. In that medical malpractice case, the treating physician equated the legal touchstone of “reasonable degree of medical certainty” with being “more likely than not”. Id.

Lagumen cited Graham v. Cook, 278 Va. 233, 246 (2009)(medical malpractice)(“fifty-one percent”); Fairfax Hosp. Sys. v. Curtis, 249 Va. 531, 535-536 (1995)(medical malpractice)(“into the realm of reasonable probability”); Hoffman v. Carter, 50 Va. App. 199, 215 (2007)(workers’ compensation)(“equivalent to the preponderance of the evidence standard”); Black’s Law Dictionary at 1273 (8th ed. 2004)(“more likely than not”); and various out-of-state cases and journals. Id. at 52-55. It upheld the admissibility of the doctor opining “more likely than not”.

House Bill 1605 passed during the General Assembly’s 2011 Session, and became effective July 1, 2011. It made fraudulent falsification of patient records a class 1 versus a class 3 misdemeanor; but does not alter any commonlaw jurisprudence about fraudulent falsification in civil medical malpractice cases.

Notably, House Bill 1605 also added an “intent to fraud” requirement to the criminal offense; so although now criminal penalties are stiffer, threshold criminal liability is more difficult to prove. But in a medical malpractice case, plaintiff still need only prove falsification by the traditional preponderance of the evidence standard.

In Addison v. Jurgelsky, No. 092361 (Jan. 13, 2011), the Virginia Supreme Court reversed dismissal of a medical malpractice action. It held that a single co-administrator acting alone as Plaintiff could file, but not maintain, suit under Virginia’s Wrongful Death Act, Va. Code Ann. §8.01-50, et seq. Id. at 3-5.

Justice Mims in Addison continued that the initial filing by the one co-administrator tolled the statute of limitation for the wrongful death claim in Tazewell County, Virginia; and that it was permissible to join the other co-administrator as Plaintiff after the statute of limitation had run. Hence it was error to grant the motion to abate for nonjoinder and the plea of the statute of limitations. Id. at 9.

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.

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).

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.

On November 8, 2010, The Daily Press and dailypress.com headlined “Woman’s death sparks lawsuit against Gloucester surgeon”. That media coverage is of Mr. Waterman’s $4,350,000.00 wrongful death suit Martha Sue Norville, Executor of the Estate of Ethelone M. Chamber, Deceased v. Melvin Wayne Ressler, M.D., et al., No. CL10000470-00 filed in Circuit Court for Gloucester County, Virginia, on October 4, 2010.

Among other things, the Norville lawsuit alleges medical malpractice at Riverside Walter Reed Hospital. The suit alleges further that the deceased suffered massive blood loss and other complications after her intestine and a blood vessel were cut by her surgeon.

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.

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

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

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

On 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.

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

In medical malpractice suits alleging wrongful death and brain injury, Circuit Court for the City of Newport News, Virginia, has granted plaintiffs leave to amend their Complaints, including after the statute of limitation has run. The cases are Licare v. Riverside Health System, No. 0702452T-01, and Morel v. Mary Immaculate Nursing Center, Inc., No. CL0703905P-03.

Both medical malpractice decisions were predicted on three independent grounds: (1) Plaintiff not being provided all factual patient care records and papers voluntarily; (2) Plaintiff being delayed by defense pleading; and (3) Plaintiff having originally alleged generally “such other tortious acts and/or omissions as may be investigated, discovered and proved”. Orders were entered in the wrongful death case of Licare on February 1, 2008, and in the brain injury case of Morel on September 2, 2008.

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 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.

On April 18, 2008, the Virginia Supreme Court addressed the admissibility of “reliable authority” under Va. Code Ann. §8.01-401.1. The medical malpractice case is Bostic v. About Women OB/GYN, P.C., 275 Va. 567 (2008).

In Bostic, defense counsel read article quotes and questioned his client about the same while on the stand as a fact witness. Defense counsel overcame plaintiff’s objection by representing that the defense expert subsequently would lay the necessary evidentiary foundation for the article. Id. at 572-573.

The Virginia Supreme Court in Bostic recounted that the 1994 Ammendment to §8.01-401.1 inserted “two preconditions to the admission of hearsay expert opinions as substantive evidence on direct examination: First, the testifying witness must have ‘relied upon’ the statements contained in the published treatises; Second, the statements must be established as ‘a reliable authority’ by testimony or by stipulation.” Id. at 576. “The statutory term means that the witness must testify that he relied on the article in forming his opinion….” Id. at 577.

Thus, in Bostic the defendant’s foundation was insufficient where her medical malpractice expert accepted the article “only partially” and was “candidly uncertain”. Id. Moreover, the Virginia Supreme Court ruled that plaintiff’s request for a cautionary instruction after that expert’s insufficient testimony was not too late, where plaintiff had objected to the article when first introduced. Id. at 577-578 (reversing and remanding defense verdict).

On June 6, 2008, the Virginia Supreme Court addressed the superseding intervening cause instruction. The medical malpractice case of wrongful death is Williams v. Le, 276 Va. 161 (2008).

In Williams, the defendant radiologist failed to communicate directly to the treating physician a positive Dopplar ultrasound, and the patient later died from pulmonary embolism. Asserting arguendo that the alleged proximate causation of any failure to communicate directly was broken completely by the treating physician’s subsequent failure to read the diagnostic report, the defendant radiologist obtained a jury instruction on superseding intervening cause.

The Virginia Supreme Court in Williams delineated for medical malpractice cases: “In order to relieve a defendant of liability for his negligent act, the negligence intervening between the defendant’s negligent act and the injury must so entirely supersede the operation of the defendant’s negligence that it alone, without any contributing negligence of the defendant in the slightest degree, causes the injury.” Id. at 167. But an “intervening cause does not operate to exempt a defendant from liability if that cause is put into operation by the defendant’s wrongful act or omission.” Id.

“On this record,” observed the Virginia Supreme Court in Williams, “it cannot be said that Dr. Le’s alleged negligence was not contributing ‘in the slightest degree’ to the death of Williams. The trial court therefore erred in granting the superseding intervening causation instruction.” Id. at167-168 (reversing and remanding defense verdict).

On June 6, 2008, the Virginia Supreme Court upheld a medical malpractice verdict for roughly $100,000.00 unsupported by a medical expert. The case is Webb v. Smith, 276 Va. 305 (2008).

The Virginia Supreme Court in Webb reiterated that “in medical malpractice cases, ‘expert testimony is ordinarily necessary to establish the appropriate standard of care, to establish a deviation from the standard, and to establish that such a deviation from the proximate cause of the claimed damages’.” Id. at 308. “Exceptions to this rule exist only in ‘those rare cases in which a healthcare provider’s act or omission is clearly negligent within the common knowledge of laymen’.” Id.

Such a “rare case” involves the medical malpractice doctrine of res ipsa loquitur. That translates to “the thing speaks for itself”.

In Webb, a surgeon was supposed to perform a hysterectomy and a bilateral salpingo oophorectomy, but simply forgot to perform the latter. In upholding the medical malpractice award, the Virginia Supreme Court concluded in Webb: “A reasonably intelligent juror did not need an expert to explain why Dr. Smith’s negligence was the proximate cause of Webb’s damages because the issue of causation was within the common knowledge of laymen.” Id.

On October 31, 2008, the Virginia Supreme Court decided issues of physician-patient relationship and damages proximate causation. The “wrongful birth” medical malpractice case is Fruiterman v. Granata, 276 Va. 629 (2008).

In Fruiterman, the plaintiff mother claimed medical malpractice for her Ob/Gyn failing to inform her about first trimester testing for genetic defects for which she would have elected to terminate her pregnancy. The plaintiff father in Fruiterman made a parallel claim. Id. at 633.

The Virginia Supreme Court dismissed the mother’s medical malpractice claim for her failing to prove proximate causation by expert testimony. Specifically, she “did not prove to a reasonably degree of medical probability that, if she had undergone CVS, the result would have shown the chromosomal abnormality indicative of Down syndrome.” Id. at 638.

Additionally, the Virginia Supreme Court that the father failed to prove the requisite physician-patient relationship requisite for a medical malpractice claim, since he never entrusted, and the Ob/Gyn never accepted, his treatment. Id. at 644. Significantly, however, Fruiterman may leave open the possibility of a medical malpractice claim by a father if and to the extent that a Ob/Gyn advised “as a couple about genetic counseling or … recommend[ed] genetic screening tests that either [the father] alone or both of them would need to undergo. Id.

On January 16, 2009, the Virginia Supreme Court handed down an opinion on qualification of out-of-state experts pursuant to Va. Code Ann. §8.01-581.20. The medical malpractice case of wrongful death is Jackson v. Qureshi, 277 Va. 114 (2009).

Jackson addressed the statutory presumption, “knowledge” requirement, and “active clinical practice” requirement for medical malpractice standard of care experts. First, the out-of-state expert was presumed to know Virginia’s statewide standard of care by having met the “educational and examination requirements of the statute,” per the “letter from the Commonwealth of Virginia Department of Health Professions”. Id. at 122. Second, the statutory “knowledge” requirement was shown by the out-of-state expert’s “area of qualification and certification” having “certain overlapping and medical practices and similar standards of care” with the defendant’s “area of qualification and certification”; which essentially was established by the out-of-state expert’s own testimony. Id. at 122-123. Third, the out-of-state expert satisfied the statute’s “active clinical practice” requirement where in his “clinical practice the expert performs the procedure at issue and the standard of care for performing the procedure is the same,” with no “minimum threshold amount of time” beyond deminimis being required. Id. at 124-125.

On January 16, 2009, the Virginia Supreme Court resolved a wrongful death action and a survival action for personal injuries. The medical malpractice case is Centra Health, Inc. v. Mullins, 277 Va. 59 (2009).

Centra Health upheld an estate representative maintaining concurrent damage causes of action for wrongful death and for survival for personal injuries through jury verdict. “In this particular [medical malpractice] case, the circuit court correctly determined that compelling an election [prior to or even at trial] would put the administrators in the untenable, and manifestly unjust, position of having to elect between two potentially viable claims, which Centra Health was contesting on separate and independent grounds.” Id. at 79.

Additionally, Centra Health upheld the survival action award of $325,000.00 for personal injury damages as not reflecting any confusion, undue sympathy, or other excessiveness. The Virginia Supreme Court found that the trial court was painstaking in its instructions and that the defendant’s characterization of the personal injuries arising from medical malpractice minimized them unduly. Id. at 81-82.

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.

House Bill 2057 passed the Virginia General Assembly in 2009. Effective July 1, 2009, it amends Va. Code Ann. §8.01-52.1 and §8.01-581.20:1.

Prior to amendment, the statute rendered certain so-called “gestures expressing sympathy or general sense of benevolence” inadmissible against a healthcare provider in cases of nursing home abuse and other medical malpractice. The amendment expands that to include “commiseration, condolence, compassion . . . together with apologies.”

At common law and in court rules, such admissions of liability or other statements against interest by a wrongdoer could be introduced in cases of nursing home abuse and other medical malpractice. Hence, the statute and its amendment is protectionist legislation enjoyed by healthcare providers and no other citizens of Virginia.

Studies have shown that healthcare providers guilty of nursing home abuse and other medical malpractice who admit liability to their patients after-the-fact are less likely to be sued for their wrongdoing and resulting damages. Thus, this special interest legislation essentially lets all offending healthcare providers admit liability with impunity toward avoiding being sued, but then to duplicitously deny liability to unknown jurors and to gag the knowing victims at trial if still sued.

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.

Defendants routinely oppose motions for leave to amend in wrongful death, brain injury and other cases against them. But Virginia courts routinely grant leave, consistent with the liberal mandate of Virginia Supreme Court Rule 1:8.

“Leave to amend shall be liberally granted in furtherance of the ends of justice.” Va. Sup. Ct. R. 1:8 (emphasis added). Fifty years ago the Virginia Supreme Court embraced its Rule’s liberality toward amendment as the modern trend. “The tendency of modern decisions is reflected in our Rule”. Goode v. Courtney, 200 Va. 804, 807 (1959).

Virginia Circuit Courts routinely grant leave to amend to further justice. E.g., Pedigo v. Flattop Mountain Landowner’s Assn., Inc, 73 Va. Cir. 26, 33 (Greene Dec. 7, 2006); PMG Invs., LLC v. Gravely-Robinson, 71 Va. Cir. 140, 141 (Roanoke Jun. 14, 2006). In PMG, the circuit court granted an amendment on an appeal de novo from General District Court. In Pedigo, the circuit court granted leave to amend after sustaining a demurrer.

“A trial court that fails to allow amendments is likely to have abused its discretion. See, e.g., Peterson v. Castano, 260 Va. 299 534 S.E. 2d 736 (2000); Mortarino v. Consultant Eng’g Servs., Inc., 251 Va. 289 467 S.E. 2d 778 (1996).” Drewery v. City of Roanoke, 63 Va. Cir. 609, 619 (Roanoke Sep. 7, 2001). Kole v. City of Chesapeake, 247 Va. 51 (1994); XL Specialty Ins. Co. v. Commonwealth, 47 Va. App. 424 (2006); and Dirtselis v. Dirtselis, 2005 Va. App. LEXIS 451 (Nov. 8, 2005). The Supreme Court of Virginia and the Court of Appeals of Virginia regularly have reversed and remanded for denial of leave to amend. E.g., Peterson, 260 Va. at 303-304; Mortarino, 251 Va. at 295-296; Kole, 247 Va. at 57; XL, 47 Va. App. at 437-438; and Dirtselis, 205 Va. App. LEXIS 451 at *11-14. In Mortarino, the circuit court properly had sustained a demurrer, but “abused its discretion in failing to allow the filing of the amended motion for judgment”. 251 Va. at 296.

In Booher v. Botetourt County Board of Supervisors, 65 Va. Cir. 53, 59-61 (Botetourt Apr. 29, 2004), Defendants variously opposed the motion for leave to amend on grounds of it being unseasonable, the movant not showing it would not be futile, and the movant not having tendered the proposed amendment. But the court found no untimeliness despite months having past since initial filing, where there was no trial date or discovery. Id. at 60. Next the court in Booher rejected the futility assertion: “There is no technical burden upon a party seeking leave to amend to demonstrate that the amendment will not be futile. Nothing within the Rules of Virginia’s jurisprudence calls for such a showing.” Id. Then the Court held that although producing the proposed amendment at hearing “may be preferable and is often done, it is not required.” Id. Finally, Booher observed that the burden instead was on defendant opposing the Motion, who could not show undue prejudice. Id. at 61.

Continue reading "Virginia Amendment: Va. Sup. Ct. Rule 1:8 – a Lawyer’s Motion " »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.

In a §1983 civil rights wrongful death suit, Avery T. “Sandy” Waterman, Jr., Esq. recently survived a federal court challenge to 755 days elapsing from filing to service of the pro se complaint. One unsuccessful defense line of attack was that the clerk’s multiple extensions were not granted within the original time periods for service. Webb v. Stevens, No. 5:05-CV-33-BO(1) Decision and Order (Mar. 17, 2008) aff’d Order (May 22, 2008),2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008).

Fed. R. Civ. P. Rule 4(m) is not subject to Fed. R. Civ. P. 6(b). Specifically, Rule 6(b) does not superimpose onto Rule 4(m) the ostensible requirement of moving for an extension prior to expiration of the 120-day time period. That would be contrary the plain clear language of Rule 4(m) and Rule 6(b)(2). It also ignores that the Court can act “on its own initiative” under Rule 4(m).

Rule 4(m), which pertains solely to service, provides in pertinent part: “If service is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative [shall ‘dismiss’ or ‘extend’].” Thus, Rule 4(m) explicitly: (1) is wholly self-enabling, does not reference Rule 6(b) and is not dependent upon it; (2) is triggered if and when the time already has expired without service, i.e., must not be invoked prior to expiration of the time; and (3) always is subject to the Court acting sua sponte. Per 1993 Amendment, a Rule 4(m) extension may be for “good cause” or no good cause.

Conversely, Rule 6(b) provides for general enlargement of time since, unlike Rule 4(m), most Rules with time periods do not contain their own provisions for enlargement. Rule 6(b) allows enlargement: (1) within court discretion prior to expiration of the time period; and, significantly, (2) for “excusable neglect” even after expiration of the time period.

Hence specific Rule 4(m) and general Rule 6(b) both provide for enlargement, yet have difference structure, timing and standards. Although Rule 6(b) may apply generally to service under Rule 4 – just as it does to other Rules – it does not rewrite (eviscerate) Rule 4(m), which since its 1993 Amendment is a much more liberal standard for enlargement of time for service.

Continue reading "Federal Wrongful Death Suit Service – a Lawyer’s Extension (FRCP 6)" »

In a §1983 civil rights suit for wrongful death, Avery T. “Sandy” Waterman, Jr., Esq. recently withstood challenge in federal court to the pro se complaint not having been served for 755 days after filing. In Webb v. Stevens, 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008), the clerk had granted multiple extensions of time under Fed R. Civ. P. 4(m) to effect service, including without any finding of good cause.

It is not necessary for a court to find “good cause” for a discretionary extension of time to be valid under Rule 4(m). In 1996 the United State Supreme Court pronounced: “Most recently, in 1993 amendments to the Rules, courts have been accorded discretion to enlarge the 120-day period ‘even if there is no good cause shown.’ See, Advisory Committee’s Notes on Fed. R. Civ. Proc. 4, 28 U.S.C. App.” Henderson v. United States, 517 U.S. 654, 662 (1996)(dicta)(emphasis added). Contrarily, in 1995, a Fourth Circuit panel erroneously had upheld the old “good cause” requirement, reciting incorrectly that “Rule 4(j) was edited without a change in substance and renumbered as Rule(m),” Mendez v. Elliot, 45 F.3d 75, 78 (4th Cir. 1995); falling out of step with every other circuit in the country. See, e.g., Horenkamp v. Van Winkle and Co., 402 F.3d 1129, 1132-1133 (11th Cir. 2005)(and cases cited therein).

Early on, most Fourth Circuit district courts blindly followed Mendez, either ignorant of Henderson or deferential to Mendez. But the current has shifted, swamping Mendez increasingly. Some courts expressly have rejected Mendez. See, e.g., Scruggs v. Spartanburg Reg. Med. Ctr., 1999 U.S. App. LEXIS 26227, *5-7 (4th Cir. 1999); Yongo v. Nationwide Affinity Ins. Co. of Am., 2008 U.S. Dist. LEXIS 14684, *25(E.D.N.C. Feb. 25, 2008); Cane Creek Cycling Components, Inc. v. Tien Hsin Indus. Co., Ltd., 2007 U.S. Dist. LEXIS 79957, *19 (W.D.N.C. Oct. 15, 2007); Bethae v. S.P. Richards Co., 2007 U.S. Dist. LEXIS 71170, *1-4 (D.S.C. Sep. 24, 2007) (plaintiff did not serve within 120 days, Magistrate recommended additional 90 days, and Judge granted additional 270 days as “reasonable”); Cochran v. Waldrop, 2007 U.S. Dist. LEXIS 13213, *3 (D.S.C. 2007); Bonds v. Electrolux Home Prods. Inc., 2006 U.S. Dist. LEXIS 88392, *10-12 (D.S.C. 2006); Bey v. Stamp, 2006 U.S Dist. LEXIS 70298, *4 (W.D.N.C. 2006), aff’d 2007 U.S. App. LEXIS 15186 (4th Cir. 2007); Lane v. Lucent Techs., Inc., 388 F.Supp.2d 590, 596-597 (M.D.N.C.2005); Melton v. Tyco Valves & Controls, Inc., 211 F.R.D. 288, 289-290 (D. Md. 2002); Tracy v. Angelone, 2002 U.S. Dist. LEXIS 16682 (W.D. Va. 2002); and Hammad v. Tate Access Floors, Inc., 31 F. Supp. 2d 524, 527-528 (D. Md. 1999). Others less confrontationally have rejected Mendez impliedly, expressly following Henderson and/or other courts without referring to Mendez. See, e.g., Giacomo-Tano v. Levine, 1999 U.S. App. LEXIS 26997, *4 (4th Cir. 1999); Shekhem v. Norfolk So. Corp., 2008 U.S. Dist. LEXIS 15819 *3-4 (W.D.Va. Feb. 28, 2008); Fabriko Acquisition Corp. v. Advisco Capital Corp., 2007 U.S. Dist. LEXIS 11882, *2 (W.D. Va. 2007); Atkins v. Winchester Homes, Inc., 2007 U.S. Dist. LEXIS 5791 (D. Md. 2007); Huber v. Maxim Healthcare Servs., 2006 U.S. Dist. LEXIS 8315, *1 (D. Md. 2006); Life Ins. Co. of N. Am. v. Batson, 2004 U.S. Dist. LEXIS 4305 *5 (D. Md. 2004); Coates v. Shalala, 914 F. Supp. 110, 112-113 (D. Md. 1996); and Fultz v. Rittlemeyer, 1995 U.S. Dist. LEXIS 5379, *4-6 (W.D. Va. 1995). Given the “stealth” rejection, it is difficult to know just how many other Fourth Circuit district courts are not following Mendez.

The Eastern District of Virginia has eroded its support for Mendez. Compare Reliable Tax & Fin. Servs., Inc. v. H&R Block E. Tax Servs., Inc., 212 F.Supp.2d 592, 595 (E.D. Va. 2002)(Smith, J.)(following Mendez) with United States v. Gulf Ins. Co., 225 F.R.D. 526, 528 (E.D. Va. 2005)(Smith, J.)(“some question”) and United States v. Sea Bay Dev. Corp., 2007 U.S. Dist. LEXIS 33734, *19 (E.D. Va. 2007)(Jackson, J.)(“questionable nature of Mendez”). The District of Maryland repeatedly has rejected Mendez over time. Compare Braithwaite v. Johns Hopkins Hosp., 160 F.R.D. 75 (D. Md. 1995) with Atkins, Huber, Batson, Melton, Hammad and Coates.

“Circumstances in which the advisory committee suggests that the Court should exercise its discretion include pro se claims and cases in which ‘the application of statute of limitation would bar the refiled actions.’ Fed. R. Civ. P. 4(m) advisory committee’s note (1993).” Coates, 914 F.Supp. at 113 (emphasis added). Hence a number of courts have applied Rule 4(m) in those circumstances extending the time for service without requiring “good cause”. “In certain cases, extension of time for service is warranted because the Plaintiff’s claims would otherwise automatically be barred by application of the statute of limitations.*** The absence of a limitations issue does not, of course, preclude the extension given the other considerations discussed.” Yongo,* 29 (emphasis added). See also, e.g., id., Lane, Tracy and Fultz. Indeed, in Tracy, the Western District of Virginia vacated a prior dismissal order, reinstated the case on the docket and then extended the time for service with no “due diligence” or other “good cause”.

Continue reading "Federal Wrongful Death Suit Service – a Lawyer’s Extension (FRCP 4)" »

Recently, wrongful deaths were reduced by almost 50% and untoward personal injuries were reduced by over 35% by a 19-item non-cardiac surgical safety checklist. The New England Journal of Medicine reported this on January 29, 2009, by article, “A Surgical Safety Checklist to Reduce Morbility and Mortality in a Global Population.”

During October 2007-September 2008, roughly 4,000 patients in 8 urban hospitals worldwide participated in the World Health Organization’s Safe Surgery Saves Lives program. The study findings proved its premised, thereby indicating prevalent medical malpractice: “Surgical complications are common and often preventable.”

The checklist principally consists of verifying patient identity, allergies and blood type; surgical site, procedure, and critical events; and access to blood, imaging, and certain instrumentalities. Verification occurs before anesthesia induction, before skin incision, and before leaving the operating room.

The implication is that many wrongful deaths and personal injuries are caused by medical malpractice in non-cardiac surgery due to healthcare providers neglecting simple routine verification procedures. Fortunately, these serious untoward consequences are readily avoidable.

The standard of review by a District Judge for a nondispositive motion decided by a Magistrate is whether the decision is “clearly erroneous or is contrary to law”. See, Fed. R. Civ. P. 72(a); and 28 U.S.C. §636(b)(1)(A). In Webb v. Stevens, No. 5:05-CV-33-BO(1) Order (E.D.N.C. May 22, 2008), a §1983 civil rights wrongful death suit, the Judge summarily affirmed under that standard an appeal from a grant of leave to amend by the Magistrate.

“A motion to amend is generally considered a nondispositive pretrial motion, subject to Rule 72(a) standard of review.” Young v. James, 168 F.R.D. 24, 26 (E.D. Va. 1996). In Young, the amendment sought to rename one of the plaintiffs, destroying the court’s jurisdiction over the cause; and defendants opposed, claiming bad faith, prejudice and futility. The District Judge followed the liberal amendment mandate of Fed. R. Civ. P. Rule 15(a) and Foman v. Davis, 371 U.S. 178, 182 (1962), and affirmed the analysis and holding of the Magistrate in Young as not “clearly erroneous or contrary to the law”. Id. at 27-28.

The Magistrate is “clearly erroneous” only if “the reviewing court…is left with the definite and firm conviction that a mistake has been committed”. United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). This “clearly erroneous and contrary to law” standard has been followed by North Carolina and other sister Fourth Circuit courts in affirming Magistrates. E.g., Neuberger Berman Real Estate Income Fund, Inc. v. Lola Brown Trust Co., 1B, 2006 U.S. Dist. LEXIS 11358, *5 (D. Md. Mar. 20, 2006). Gardendance, Inc. v. Woodstock Copperworks, Ltd., 230 F.R.D. 438, 447-448 (M.D.N.C. 2005).

Under the applicable standard of review, a District Judge substituting his personal decision-making or that of a “reasonable person” on de novo review is reversible error. “Since it does not appear that Judge Spiegel applied the clearly erroneous standard, the case is remanded for consideration under that standard. It seems that Judge Spiegel weighed the evidence de novo and decided that a reasonable person could conclude that there was a coverup. Whether a reasonable person could find evidence of a coverup that may support a finding of the crime-fraud exception to the attorney-client privilege is irrelevant for the purposes of Judge Spiegel’s decision. What is relevant for Judge Spiegel to consider is whether the Magistrate Judge was clearly erroneous when he found that no crime-fraud exception could be found. Therefore, we remand this case to the district court for determination of whether the Magistrate Judge clearly erred in his rejection of crime-fraud exception.” Chesher v. Allen, 122 Fed. Appx. 184, 187-188 (6th Cir. 2005).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A federal civil rights suit for wrongful death under 42 U.S.C. §1983 was cleared for discovery and Court-facilitated mediation at Status Conference earlier this month. The case is Webb v. Stevens, No. 5:05-CV-33-BO(1) in the Eastern District of North Carolina, with Avery T. “Sandy” Waterman, Jr., Esq. as lead counsel.

Webb alleges multiple civil rights violations, including objectively unreasonable: (1) use of deadly force; (2) denial of first responding emergency medical attention; and (3) conspiracy to tamper with evidence and deny court access. Such implicates the Fourth, Eighth and Fourteenth Amendments to the U.S. Constitution.

The defendant Caucasian North Carolina state trooper stopped an African-American motorist in rural North Carolina on Martin Luther King Day in 2003 for claimed seatbelt violation. After being placed under arrest and attempting to flee, the Virginia motorist was subdued, handcuffed improperly, and put in a running cruiser alone.

As the arrestee slowly backed the cruiser straight in reverse to leave, the trooper ran along side and repeatedly fired at point blank range through the driver’s window into the driver’s torso. The earliest EMT responders initially were not allowed by encircling officers to attend the victim, and another officer removed a telltale dangling handcuff from the victim’s wrist as he lay dying.

Defendant trooper was terminated by the North Carolina State Highway Patrol over the incident. His firing was upheld on appeal after a two-day evidentiary hearing.

Continue reading "§1983 Civil Rights Wrongful Death Suit – a Lawyer’s Case" »

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

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

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

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

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

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

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

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

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

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

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

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

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

Continue reading "§1983 Civil Rights: Excessive Force & Qualified Immunity – a Lawyer’s Standard" »

You do not have to rely on the good word of patient trial lawyers alone. Read about medical malpractice causing wrongful deaths in To Err is Human: Building a Safer Health System from the Institute of Medicine, which was established by the National Academy of Sciences.

First published by the National Academy Press in June 2000 and in its sixth printing by May 2007, To Err is Human exposes the actual high incidence of deadly medical error that prevails throughout the United States. It reveals too how the general public misperceives what really is going on.

Experts estimate that as many as 98,000 wrongful deaths occur in any given year from medical errors that occur in hospitals. That’s more deaths than from motor vehicle accidents, breast cancer, or AIDS – three causes that receive far more public attention. Indeed, more people die annually from medication errors alone than from workplace injuries.

Despite would-be “tort reformers” railing about so-called frivolous lawsuits, the fact is that medical errors remain underreported. The Institute of Medicine prefaces that medical errors are “a serious concern in health care that, if discussed at all, is discussed behind closed doors.” That is the “conspiracy of silence” about which patient attorneys have complained for years.

Do not be misled by the propaganda and hysteria of insurance companies, healthcare providers, and other conspirators. Get the true facts from an impartial non-profit leading authority, the Institute of Medicine.

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

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

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

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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.

On November 7, 2008, Avery T. “Sandy” Waterman, Jr., Esq. provided Virginia’s Attorney General and its Division of Risk Management Director notice of alleged wrongful death. The Virginia State Police shot to death an arrestee escaping by vehicle on November 18, 2007, for which the administratrix of the victim’s estate is making a claim under 42 U.S.C. §1983 for alleged use of excessive (deadly) force.

Under common law, the sovereign – in this case, the state – enjoys immunity from suit for wrongful death and personal injuries. But in Virginia, that harsh rule of sovereign immunity has been relaxed a bit by statute. See, Va. Code Ann. §8.01-195.1, et seq.

Enacted in 1981, the Virginia Tort Claims Act (“VTCA”) permits certain wrongful death, personal injury and property damages claims against the Commonwealth. Currently, however, the VTCA maximum amount of recovery is $100,000.00, regardless the actual amount of damages suffered by the victim.

But the key prerequisite to filing suit for wrongful death, personal injury and/or property damages is first providing a very specific notice to the appropriate governmental officials within one year of the casualty. Otherwise, the victim’s claim is barred forever, regardless its merits. See, §8.01-195.6.