2006 Virginia Supreme Court Decisions

Digests of Virginia Supreme Court Decisions: 2006

Harris v. Kreutzer, Virginia Supreme Court, January 13, 2006

This case involves whether an IME doctor can be held liable for medical malpractice in the performance of his examination, and for what actions. The doctor in question is Dr. Jeffrey Kreutzer, a Ph. D clinical psychologist.

The plaintiff was involved in an automobile accident in 1991 and brought suit against the defendant in the personal injury action for injuries including traumatic brain damage and recovered a verdict of $300,000 plus significant interest. In the course of that action the plaintiff was required by the trial court to submit to an IME by Dr. Kreutzer pursuant to Rule 4:10. As a result of the conduct of the examination the plaintiff filed suit against Dr. Kreutzer alleging medical malpractice, defamation and intentional infliction of emotional distress. The trial court sustained a demurrer as to all three counts, and the plaintiff appealed the counts concerning malpractice and intentional infliction of emotional distress but not the defamation count. Because this was decided by the trial court on a motion sustaining a demurrer the facts as alleged were taken as true by the Supreme Court.

The plaintiff complained that Dr. Kreutzer verbally abused her, raised his voice to her, called her a faker and malingerer, and caused her to break down into tears, and as a result he aggravated her brain injury and post-traumatic stress disorder.

Dr. Kreutzer argued that there cannot be an action for malpractice without a physician-patient relationship, but the Virginia Supreme Court held that in the IME context there is a relationship by implication with respect to the patient and express consent by the physician. However, the Virginia Supreme Court limited the scope of the liability. There is no liability on the part of the physician for failure to properly diagnose, or treat or report. The sole duty is to perform the examination within the applicable standard of care and not do harm. The Supreme Court also held that the plaintiff had alleged sufficient facts to survive a demurrer.

With respect to the intentional infliction of emotional distress count the Supreme Court cited the four part Womack v. Eldridge , 215 Va. 338 (1974) which is:
1. The wrongdoer's conduct was intentional or reckless
2. The conduct was outrageous and intolerable
3. There is a causal connection between the conduct and the harm
4. The emotional distress is severe

The Supreme Court noted that these actions are not favored. It found that the plaintiff had not alleged facts sufficiently outrageous or that her resulting emotional distress, as alleged, was severe enough in such a disfavored action.

In conclusion the Virginia Supreme Court will allow an action for malpractice in an IME context but only where the physician breeches the applicable standard of care and actually causes harm to the plaintiff.

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Lyren v. Ohr, Virginia Supreme Court, January 13, 2006

The issue here is when a defendant who has been served with process more than one year after suit has been filed must raise the issue of timely service of process.

The plaintiff filed a motion for judgment involving an automobile accident of December 27, 2002. Process was not issued until December of 2003, and after a hearing it was determined that the private process server had not obtained actual service on the defendant until January 7, 2004, more than a year after the original filing. Note that plaintiff's counsel had told defense counsel before defense counsel filed the answer that service had been properly made and an affidavit properly filed when in fact this had not been done. Apparently these statements were made in good faith, but that issue was not addressed. The defendant filed a grounds of defense January 14, 2004. The trial court noted that the plaintiff presented no evidence that due diligence had been exercised.

A motion was made by defense counsel after August of 2004 citing Rule 3.3 which states that no judgment shall be entered against a party who was served with process more than one year after the commencement of the action unless due diligence has been exercised. The trial court granted the motion and dismissed the case. The plaintiff appealed.

The Virginia Supreme Court reversed. Basically the Court said that under 8.01-277 any defect in the service of process must be raised by a motion filed prior to or simultaneously with any pleading to the merits. The defendant pled to the merits without raising the one year issue. The reason, that plaintiff's counsel had asserted that such service had been made, did not serve as an appropriate excuse.


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Barnett v. Kite, Virginia Supreme Court, January 13, 2006

This is a venue case. The plaintiff, Kite, was involved in a physical altercation with Barnett, the defendant, in Powhatan County. Kite filed suit in the City of Richmond. Barnett filed a motion to transfer venue, asserting that the incident occurred in Powhatan, the plaintiff lived in Powhatan, the defendant lived in Chesterfield and owned real property in Powhatan, and all the witnesses lived in Powhatan or Chesterfield. Barnett also asserted that he did not personally regularly conduct business in the City of Richmond and only came to Richmond to meet with his attorneys regarding this case.

Kite responded by pointing out that Barnett was the majority shareholder of Barnett Heating and Air Conditioning and that entity did do substantial business in the City of Richmond although it maintained offices in Powhatan and Chesterfield. The trial court refused to grant the motion to transfer, holding that the heating and air conditioning business did sufficient business in the City of Richmond to retain venue. A trial was held and a verdict for the plaintiff in the amount of $260,000 plus $25,000 in punitive damages was obtained for the plaintiff.
On appeal the defendant asserted that the trial erred in considering the activities of the corporation rather than only the activities of the individual defendant, and the Virginia Supreme Court agreed. The Court noted that the venue statute which allows suit where "the defendant regularly conducts affairs or business activity" refers to "the defendant", not to activities conducted by a corporation in which the defendant is a major shareholder. The Supreme Court noted that unless there is proof that the corporate structure is a sham that the corporation is distinct from the individuals who own and operate it. Without the activities of the corporation there was insufficient evidence that the individual defendant exercised any activities in the City of Richmond sufficient to grant venue, and so the judgment of the trial court was reversed and the case sent back for a new hearing on venue.

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Bowie v. Murphy, Virginia Supreme Court, January 13, 2006

This case involves the interplay of religion and defamation.

The plaintiff was a deacon in a church in Fairfax.  A new pastor had been called and taken office, and there was considerable upset in the church about his service, to the point that the Board of Deacons had called for a vote of the congregation as to whether or not he should be removed as pastor.  During the actual voting the plaintiff was supervising the voting when the defendant came into the voting area and attempted to take pictures of the voters and voting.  The plaintiff tried to stop the defendant from so doing and a physical altercation occurred when, according to the plaintiff's pleadings, the defendant tried to strike the plaintiff with the camera and then struck the plaintiff in the chest with her other hand.  When the police were called the defendant allegedly told the police maliciously that the plaintiff had assaulted the defendant and repeated this to other church members including the pastor. The other church members and the pastor at a later time had the plaintiff removed from his status as a full church member by alleging that he had assaulted the defendant, and in the plaintiff's pleadings this was done with knowledge of the falsity of the statement or reckless disregard for the truth or falsity of the statement.  The plaintiff also alleged that the defendant had assaulted him.

The trial court sustained a demurrer to the case so that the facts as alleged in the pleadings had to be taken as true by the Virginia Supreme Court.  The trial court ruled that the case involved too closely matters of church governance and doctrine and therefore the civil courts did not have jurisdiction of the matter.  It also ruled that the assault claim could not stand because the plaintiff had not alleged any physical injury.

The Virginia Supreme Court reversed, holding that the defamation claim, that is, the allegedly false allegation of assault, could be evaluated without involving the church governance issues concerning the plaintiff's status as a deacon.  In short, the court could consider whether or not the defendant did or did not assault the plaintiff and if not what effect her false statement to that effect had on his reputation.  Furthermore the Supreme Court reversed the dismissal of the assault count because assault does not require physical injury or indeed even that the victim be physically touched, simply being placed in reasonable fear of bodily harm suffices.


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Blue Ridge Services v. Saxon Shoes, Virginia Supreme Court, January 13, 2006

This case involves the great Saxon Shoe fire which occurred in Richmond in 2001 and burned out an entire Saxon Shoe store.  Saxon Shoe sued its independent contractor cleaning crew alleging that their negligence caused the fire and the jury agreed awarding damages of just over $5,000,000.  The cleaning crew appealed basically stating that the plaintiff's fire expert did not have sufficient facts to base his conclusion on, therefore it was inadmissible, and without that opinion the plaintiff's had no case.  The trial court (Daniel Balfour) disagreed and the defendants appealed.

The plaintiff had a fire expert who qualified, and his qualification as an expert was not challenged on appeal.  He stated that the fire was probably caused by human means since no other cause could be found.  He pointed to a specific room and area of a room as the probable place of the origin of the fire.  There was some evidence, disputed, that a trash container had been there and there was some evidence that there might have been trash in the container at the time of the origin of the fire.  The question was the source of ignition of the trash.

The plaintiff's expert stated that smoking materials placed into the trash can caused the fire.  He based this on the fact that one of the three cleaning crew people present was a smoker, and that he admitted smoking that night.  However the testimony from the smoker was that he smoked twice that evening both times outside the building and that he never smoked inside the building.  The other two workers said that he was within their sight the entire time and they agreed that he never smoked in the building.  No remnants of smoking materials were found after the fire, although given the size this would not be unexpected.

The trial court held that there was enough evidence for the expert to give his testimony that the discharge of smoking materials into the trash can caused the fire.  The Virginia Supreme Court disagreed and held the opinion of the expert did not have a sufficient foundation.  Without that opinion there was no evidence of the origin of the fire and so the case was reversed and dismissed.

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Cox v. Geary, Virginia Supreme Court, January 13, 2006

This is a legal malpractice case where the plaintiff is a wrongfully convicted felon who served time when he was actually innocent and is suing his defense attorneys in the original case.

The plaintiff is Jeffery Cox who was convicted in 1991 of several felonies and sentenced to life plus 50 years.  Robert Geary and John McGarvery represented him at trial as court appointed attorneys, and Michael Morchower and Lee Kilduff represented him on appeal.

After having served eleven years in jail he was released on motion for a writ of habeas corpus which was joined in by the Commonwealth.  The General Assembly then passed a bill granting him funds in the amount of $350,000 up front and an additional annuity in the cumulative amount of $400,000.  As part of the grant by the General Assembly the plaintiff executed a document releasing the Commonwealth and all of its employees from any liability.

The plaintiff then sued all four lawyers and the law firm for legal malpractice.  The trial court found that the plaintiff had suffered a single, indivisible injury for the wrongful incarceration and that thus there could be only one recovery.  On appeal the Virginia Supreme Court agreed.

The key point here is the old common law doctrine that the release of one who is jointly liable releases all.  There is a recently enacted exception that states that the release of one of two or more who are responsible in tort does not release all.  However, this exception is limited to tort cases only.  An action for legal malpractice, although it sounds in tort, is actually a breech of contract action.  Therefore that statute does not apply, and the release of the Commonwealth releases all the others.  Note that this would not be the case if the plaintiff had alleged damages against the attorney defendants different from those alleged against the Commonwealth, such as punitive damages or attorneys fees incurred in the habeas process.  However in this case that was not done, so the damages are exactly the same, there is one indivisible injury, and the release of one releases all.

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Micro Resources v. Jackson, Virginia Supreme Court, January 13, 2006

This is a case involving defamation and breech of contract.

The plaintiff was hired as CEO of a technology company.  After nine months he was fired for cause, with the Chairman of the Board accusing him of "gross mismanagement", of mismanaging the company and costing them a tremendous amount of money, and of losing for the company $3,000,000.  After the plaintiff was fired he went to another company and was hired.  The Chairman of the Board of the technology company called the President of the new company and repeated those statements, and as a result the plaintiff was hired by the new company but in a much reduced role.   The plaintiff filed suit alleging breach of contract and defamation and was awarded $200,500 in compensatory damages on the breech of contract claim and $5,000,000 in compensatory and $1,000,000 in punitive on the defamation claim.  The trial judge reduced the breech on contract damages to $112,500, the compensatory defamation claim to $1,000,000, and the punitive claim to $350,000 the latter pursuant to the cap on punitive damages in Virginia.  Both sides appealed.

The first question was whether the plaintiff had properly pleaded the defamation action.  In defamation cases the defamatory words should appear in the pleadings, although if the pleadings sufficiently apprise the defendant of their import the precise language may be given in a bill of particulars.  Note that if the defamatory words in a bill of particulars are not close enough to what was originally pled then that constitutes a separate action and must comply with the 1 year statute of limitations on defamation.  Here the trial court and the Virginia Supreme court held that the words had been properly pled.

Secondly the defendants argued that the alleged defamatory statements were matters of opinion only, and statements which are opinions do not constitute defamation because they cannot be proven false.  Here both the trial court and the Virginia Supreme Court held that the pled language was not opinion.

The defendants also challenged the finding that actual malice was proven.  Again the trial court and the Virginia Supreme Court found that there was substantial evidence that the defendant knew that the statements he was making were false at the time that he made them.

Note also that the defense claimed a qualified privilege, but the Supreme Court noted that qualified privileges are overcome by actual malice and since the jury here found actual malice in awarding punitive damages it didn't matter whether the defense had a qualified privilege or not.
Finally the Virginia Supreme Court reviewed the remittitur and held that this was in error, and that the trial court should not have granted this.  Therefore they restored the total verdict and entered final judgment.

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Thorton v. Glazer, Virginia Supreme Court, April 21, 2006

This is a medical malpractice case.

The plaintiff sought treatment from a podiatrist for severe deformity of his feet.  The podiatrist operated on the feet, but the plaintiff was left with a very painful condition that made it difficult for him to walk without significant pain.  After nearly two years he saw a different doctor and was told by that doctor that the podiatrist had committed malpractice in her treatment.  The second doctor treated the plaintiff, and after conservative measures, amputated a toe.  The plaintiff sued the podiatrist and her practice for malpractice.

The second doctor's deposition was taken before trial.  At trial he testified both as an expert and as the plaintiff's treating physician, which he had been and was at the time.  After testifying he was discharged by the court, released from the subpoena, and left the courtroom.  The defense expert later was called and testified that the plaintiff's problem was caused by his walking incorrectly for several months after the surgery.  The plaintiff sought to rebut this by reading a portion of the deposition of his treating doctor who had just testified but had left the courtroom to the effect that this was not possible.  The trial judge stated that the relevant portion of Rule 4:7 only applied where the witness was unavailable and refused to allow it to be read.

The plaintiff also, under the relevant rule, read part of the defendant's deposition into evidence as part of his case in chief.  At the conclusion of the trial he then asked for the standard "adverse witness" instruction relating to the testimony of the defendant which had been read into evidence.  The trial judge refused, stating that reading part of a deposition is not the same as calling a party as an adverse witness.  The jury found for the defendant and the plaintiff appealed.

The Virginia Supreme Court reversed.  It noted that Rule 4:7(a)(4)(E) reads in part:
The deposition of a witness...may be used for any purpose...if the court finds...that the witness is a physician...who, in the regular course of his profession, treated or examined any party..."

Giving the rule its plain meaning the deposition of a treating physician may, subject to the usual qualifications for a deposition, be used for any purpose at trial whether or not the physician is available or unavailable or has previously testified or not testified.

Secondly, the Supreme Court noted that deposition testimony is treated, for the purposes of trial, exactly like oral testimony.  If the defendant's deposition has been read then it is proper to ask for the adverse witness instruction even if the defendant has not been called by the plaintiff orally as a witness at trial.

Therefore the case is reversed for a new trial.

Practice pointer; in many personal injury cases the discovery depositions of the treating physicians are routinely taken.  This decision affirms that those depositions can be used "for any purpose" at trial whether the doctor is available or not.

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Baker v. Elmendorf, Virginia Supreme Court, April 21, 2006

This is a malicious prosecution case.  The plaintiff was charged with stalking the defendant.  He was convicted of the charge in general district court but appealed the result to the circuit court and there the conviction was reversed.  He then filed suit against those who had initiated the alleged false prosecution.

In order to prove malicious prosecution a plaintiff must prove that the prosecution was 1. Malicious 2. Instituted by, or with the cooperation of, the defendant 3.  Without probable cause and 4. Terminated in a manner not unfavorable to the plaintiff.  The issue here was the third element.  An old case, Ricketts v. J. G. McCrory Co. 138 Va. 548 (1924), held that if the plaintiff had been convicted in a court not of record there must have been probable cause, for surely no independent judge would have convicted someone without probable cause. This was true even if the case had been reversed on appeal.  Relying on this case the trial court in the case at bar dismissed the plaintiff's claim.

The Virginia Supreme Court reversed.  It noted in the intervening years that the rules had changed so that once a general district court result is appealed the case in the circuit court is fully de novo, the prior result not even being admissible.  The Court noted, for example,  its recent decision in Santen v. Tuthill, 265 Va. 492 (2003) in which the Virginia Supreme Court had held that even a guilty plea in general district court was not admissible in a later civil case once the general district court case had been appealed. In short the court ruled that once a general district court decision has been appealed not only the conviction below but the plea below disappear and cannot be used in a subsequent civil or criminal case.  In effect the lower court decision never occurred.   (Of course any testimony by the plaintiff in that court will be admissible as would any statement made by him.)

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Orndorff V. Commonwealth, Virginia Supreme Court, April 21, 2006

This is a very interesting criminal case that has application for all types of litigated cases because it discusses the standards for the granting of a new trial on the grounds of newly discovered evidence.

Briefly the defendant killed her husband by shooting him 5 times.  She called 911 and claimed self defense.  In the phone call she was alternately hysterical and quite calm.  Before trial she was examined by several mental health professionals who found that she had significant mental problems but was not insane under the Virginia standard.  She was convicted by the jury of the murder and a fire arms violation.  After trial her mental state deteriorated to the point that the trial judge felt that there was some doubt that she could properly participate in the sentencing phase of the trial and he sent her to Central State.  There she spent eight months being evaluated.  At the conclusion of the evaluation the mental health professionals disagreed as to whether she could participate in the sentencing phase of the trial.  The trial judge, on disputed evidence, found that she was competent to participate in the sentencing phase and she was sentenced, by the jury, to 32 years for the murder and an additional three for the firearms offenses.

The trial judge then entertained a motion to set aside the verdict on the grounds of newly discovered evidence.  This motion had been made after the trial on the merits but before the sentencing phase and had been deferred by the trial judge.  The evidence was that after she was found guilty she began to manifest symptoms of dissociative identity disorder (DID).  That is, she manifested multiple personalities different from her own.  One of them, it was claimed, committed the murder.  While this mental condition may have existed before the murder was committed, the evidence was that it did not manifest itself to the treating mental health professionals until after the guilt phase of the trial, and therefore could not have been diagnosed before the trial.  The trial judge denied the motion to order a new trial on the grounds of newly discovered evidence.

The case went up to the Court of Appeals which reversed by a divided court.  However, the matter was reheard by the Court of Appeals in banc which reversed its panel and affirmed the trial judge.

What is important for us is that the Virginia Supreme Court discussed the requirements for the granting of a new trial on the basis of alleged newly discovered evidence.  The four part test is that the evidence 1.  Appears to have been discovered subsequent to the trial 2.  Could not have been secured for use at the trial in the exercise of reasonable diligence by the movant 3.  Is not merely cumulative, corroboration or collateral and 4.  Is material, and as such should produce the opposite results at another trial.  Here 1 and 3 were conceded.

With respect to 2 the court noted that the due diligence is that of counsel, not counsel's experts.  "The reasonable diligence inquiry addresses the sufficiency of counsel's actions, not the actions of the medical professionals retained by counsel."   Secondly, the movant has not only to show that due diligence could not have provided the evidence, but that they actually tried to find it but were prevented for some reason.  Here the mental health professionals who testified were competent professionals properly retained by counsel and they testified that the diagnosis could not have been made until the multiple personalities manifested themselves which was after the guilty verdict.  Therefore on this issue the Court of Appeals was reversed.

With respect to the fourth test, materiality, the standard is whether the material was such that the opposite result should be produced at a new trial.  The determination of this is to be made by the trial judge as a fact matter.  In the case at bar the trial judge, noting that the same evidence was heard by the jury in the sentencing phase and the jury in sentencing the defendant to a long term obviously, in the opinion of the trial judge, didn't believe it, held that this standard was not met.  The Virgin Supreme Court stated that the jury is not to make the determination, the trial judge is, and sent the case back for a determination on that point by the trial judge.

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Montgomery v. McDaniel, Virginia Supreme Court, April 21, 2006

Very briefly, the plaintiff and her daughter both worked for the defendant, a doctor. It was alleged that the good doctor sexually harassed the daughter who eventually filed suit on this and other grounds. The doctor countersued against the daughter, her mother and several other employees alleging a conspiracy. The other employees sued back. Ultimately all the cases were resolved except the suit by the daughter against the doctor and the suits by the doctor against the daughter and the mother. Finally the doctor nonsuited the cases against the mother and daughter.
The mother filed this lawsuit alleging that the doctor had committed abuse of process. Upon motion of the doctor the trial court sustained a demurrer and dismissed the case and this appeal followed.
Abuse of process requires 1. The existence of an ulterior purpose and 2. An act in the use of process not proper in the regular prosecution of the proceedings. The mother alleged that the doctor filed the suit against her to put pressure on her daughter to drop that suit, which the court held was clearly an ulterior purpose so that part of the requirement was met. The question was whether the second part was met.
Among other things the mother alleged that the doctor nonsuited the case rather than dismissing it with prejudice to maintain the threat of a future suit as a pressure tactic against the mother. The Supreme Court held that the taking of a nonsuit does not qualify as "an act in the use of process not proper in the regular prosecution of the proceedings."
The mother also alleged that the failure of the doctor to produce the entirely of a document in discovery until ordered by the trial court was such an act, but the Supreme Court disagreed, holding that while discovery abuse may be sanctionable in some circumstances it does not rise to necessary level to support abuse of process. Justice Lemons and Chief Justice Hassell dissented on this last point.

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Pappas v. Virginia State Bar, Virginia Supreme Court, April 21, 2006

This is a disciplinary action appealed to the Virginia Supreme Court. The defendant, a lawyer of course, represented a woman who had been in an automobile accident. Some months after that accident she was in another accident with her boyfriend, who was at fault and charged with, among other things, DUI. On referral from the woman the lawyer represented the driver in the DUI hearing. The driver and girlfriend moved out of state and the lawyer offered a guilty plea to the trial judge on the driver's behalf which was accepted and the other charges were dismissed. After this the lawyer accepted  employment from the woman against the driver he had just represented in court. When that case came to be tried the defense lawyer moved to have the lawyer removed as counsel and the trial court agreed and ultimately the facts came to the attention of the Bar.

The 6th District Committee in its certification to the Virginia State Bar Disciplinary Board stated that the lawyer had with the drivers consent entered a guilty plea on his behalf. After a hearing had been started and continued at the Board level the deposition of the driver was taken and the driver said that he had not given such consent. Consequently the Board amended the certification to state that the lawyer had "allegedly" with the driver's consent entered the guilty plea. The Virginia Supreme Court held that the Disciplinary Board does not have the authority to make such a change. That change amounted to a new charge, and this meant that the proceeding had go back and start with the local committee and work its way up all over again. Furthermore, the rules that the 6th District Committee had noted were the rules involving fraud, deceit and dishonesty, and the Virginia Supreme Court held that the facts as proved in this case did not support those charges. Therefore it dismissed the case.
The point here us simply that the Disciplinary Board cannot change the certification it receives from the local district committee without violating the defendant's right to notice of what he has been charged with.

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Monahan v. Obici, Virginia Supreme Court, April 21, 2006

This is a medical malpractice cases with a couple of key issues that apply to all tort law.

The plaintiff was a construction worker who felt dizzy and weak and went to an outpatient clinic.  He was diagnosed by a nurse with high blood pressure and told to get medication.  He went to a pharmacy to get the medication and appeared to one of the clinic workers who saw him there to be in bad shape, and so she got the nurse again, who told him either to go home and go to bed or to go to an emergency room.  He went home to bed and shortly thereafter his wife found him after he had fallen out of bed and she took him to the hospital where she worked, which was about 20 minutes farther than the nearest hospital.  He was diagnosed with a stroke and suffered significant damage to the extent that he is no longer capable of gainful employment.

At trial the plaintiff obtained a verdict of $215,000, which apparently was much less than hoped for as it was the plaintiff who appealed.

There were three issues upon which the plaintiff appealed.  The first was that the trial judge gave a mitigation of damages instruction even though the defendant had not pled this as an affirmative defense.  The Virginia Supreme Court ruled that the trial judge was correct, that mitigation of damages is the one affirmative defense than need not be pled specifically.

Second the plaintiff had asked for an instruction that told the jury to disregard the evidence that the plaintiff was taken to a facility 20 minutes farther than necessary.  The trial judge refused, and the Supreme Court reversed.  The reason was that there was no medical testimony that the additional 20 minutes caused any of the damages that the plaintiff suffered.

Third, the Virginia Supreme Court said that while a mitigation of damages instruction could be given without being pled, it still had to be supported by the evidence  Here the nurse told the plaintiff either to go to the ER or go home and go to bed.  In choosing to go home and go to bed he was not refusing to follow her instructions, but rather was following one of two choices she gave him.  Thus there was no evidence of failure to follow medical advice and a failure to mitigate damages instruction was improper because there was no evidence to support it.

Therefore the Supreme Court reversed and, since liability had been found by the jury and not contested on appeal, the case was remanded for a new trial on damages only.

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Ogunde v. Commonwealth, Virginia Supreme Court, April 21, 2006

This case involves the apparent conflict between two statutes of limitations when a prisoner of the Commonwealth is suing the Commonwealth in tort.

The Virginia Tort Claims Act contains within it a statute of limitations and claims procedure which the prisoner complied with in this case.  However, there is also a statute, 8.01-243.2, which requires inmates to bring a personal action relating to the conditions of their confinement within six months after all administrative remedies have been exhausted.  This was not complied with, and the trial court ruled that this statute applied and the plaintiff had not complied with the statute of limitations and dismissed the case.

The Virginia Supreme Court reversed, holding that the Tort Claims Act statute of limitations is the correct statute of the two competing statutes.

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Burroughs v. Keffer, Virginia Supreme Court, June 8, 2006

This is an automobile accident case where the jury found for the plaintiff but the trial court set aside the verdict ruling that the plaintiff was guilty of contributory negligence as a matter of law.

The accident occurred on Route 460 which at the place of the accident was a four lane undivided highway running east and west.  One of the defendants, just south of the highway, attempted to load an excavator onto a low boy.  He goofed, and the excavator fell off of the low boy with part of the excavator, the boom part, sticking onto the right hand east bound travel lane of Route 460.  A friend came along, also driving a tractor low boy combination, saw the problem, and stopped with his vehicle in the right hand east bound lane.  He got out behind his vehicle and directed traffic into the left hand east bound lane which was clear.  Although he had flares he did not put them out.  The plaintiff came around a curve, allegedly with 1200 feet of visibility, and struck the rear of the low boy in the right east bound traffic lane.  The plaintiff testified that the sun was in her eyes and that was the reason that she didn't see either the defendant directing traffic or the low boy.  The trial judge, over objections of the defendants, let the case go to the jury which found for the plaintiff.  Upon motion at the end of the case the trial judge set aside the verdict stating that either the plaintiff had 1200 feet of visibility and failed to see the defendant who was clearly there or she traveled, given the admitted speed, some 18.5 seconds with the sun in her eyes unable to see and didn't take appropriate precautions.  The Virginia Supreme Court noted the jury verdict and also noted that the jury was presented with photographs of the scene which showed the highway twisting and curvy.  The Supreme Court concluded that the jury, viewing the photographs, did not have to believe the 1200 foot sight distance.  They also noted that the plaintiff had stated that traffic was heavy, that she was traveling the speed limit, and that the sun blinded her right before impact.  In short, there was enough here for a jury issue, and the trial court was reversed and judgment entered for the plaintiff.  Justice Lemons wrote the opinion.

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Bitar v. Rahman, Virginia Supreme Court, June 8, 2006

This is a very small medical malpractice case.  The plaintiff went in for a "tummy tuck" and the surgeon allegedly took too much tissue and the area became necrotic and the result was that several surgeries to repair the area were required and an unsightly appearing abdomen was left.  At trial the plaintiff had a physician from New York who stated this.  However, he never used the magic words "reasonable degree of medical probability" and the defendant never objected.  At the close of the plaintiff's case, after the plaintiff's only expert witness had finished testifying, been excused, and gone back to New York, the defendant moved to strike the evidence of the plaintiff on the grounds that the witness never testified to the standard of care issues using the magic words.  The trial judge refused to strike the evidence and the case went to the jury which awarded $20,000 to the plaintiff.  On appeal the Virginia Supreme Court affirmed the trial judge, noting that this went to the admissibility of the evidence, and such objections must be made contemporaneously.  To wait until the close of all the evidence was to wait too late.  [note that on brief that the defendant counsel tried to argue that if the objection had been made timely then the plaintiff would have been alerted to the problem and might have fixed it thereby depriving the defendant of his right to a motion to strike.  The Supreme Court held that this argument had "no merit."]

The court also, having established that the jury could consider the plaintiff's expert's testimony in spite of the magic words not being uttered because the defendant failed to object, also considered the issue of the sufficiency of the evidence, and held that there was enough to go the jury.  Affirmed for the plaintiff.

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Alcoy v. Valley Nursing Home, Virginia Supreme Court, June 8, 2006

This is a nursing home case.  The plaintiff, 79 years old, entered a nursing home after having suffered a stroke which rendered her physically helpless and unable to communicate.  While in the nursing home only 4 days she was sexually assaulted by a person never identified.  She died 8 months later, and this suit was brought by the administrator.  The suit alleged that the nursing home failed to provide adequate and proper personnel, failed to have proper visitor screening, and failed to have adequate security systems, among other things.

The nursing home argued in the trial court that this was a medical malpractice action under the statute, and since none of the plaintiff's witnesses could testify as to the proper medical standard of care, the case had to be dismissed.  The plaintiff argued that this was not malpractice as defined in the statute.  The trial court agreed with the defendant and struck the plaintiff's case and the plaintiff appealed.

The Virginia Supreme Court reversed.  It analyzed the statute and stated that in a nursing home situation the issues are complex, but that there are some issues which are medical and some, such as building security and employment protocols, which are not.  It noted that the statute allows, for example, a witness to testify as to the standard of care "if he has had an active clinical practice in...the defendant's specialty or a related field of medicine..."   This clearly indicates that the legislature intended experts to testify to medical standards and not building security or the like.  Therefore this is not a malpractice case but an ordinary tort case and the trial judge is reversed and the issue sent for a new trial.

Steve Emmert argued for the plaintiff in this case.

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Kone v. Wilson, Virginia Supreme Court, June 8, 2006

This is a medical malpractice case brought against Claude Wilson and others for actions that occurred in 1999.  The plaintiff died as the result, allegedly, of the malpractice.  An action was brought by Kone, the Administrator, by counsel on behalf of the beneficiaries.  After several years the case was nonsuited.  The attorney apparently left the case, because within the six month period the administrator refiled the case signing the motion for judgment himself.  The administrator was not licensed as an attorney in the State of Virginia.

The defense made a motion to strike the motion for judgment arguing that the administrator was engaged in the unauthorized practice of law by pursuing the wrongful death action without counsel.  The trial court agreed, but refused to strike the pleading and directed that the administrator get counsel, which was done, but the new counsel appeared and signed the pleadings well after the six month time limit on the nonsuit had expired.   The defense argued that the statute had run because no legally effective pleading had been filed which would toll the statute because a pleading improperly signed is a nullity and of no legal effect.  The trial judge, the Honorable Randall Johnson, agreed and dismissed the case, and the plaintiff appealed.

The Virginia Supreme Court affirmed.  It held that since the administrator represented the beneficiaries in a representative capacity he could not file a pro se pleading as he could have done if he had been representing himself.  Therefore the pleading that he alone signed that tolled the statute of limitations because it was filed within six months after the nonsuit had been taken was of no legal effect.  Furthermore a motion under the appropriate statute authorizing the trial judge to allow an amended pleading to relate back was properly denied by the trial judge under the language of the statutes.

Basically a pleading filed by a non licensed administrator is a legal nullity and has no effect at all on the statute of limitations.

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Shutler v. Augusta Health Care, Virginia Supreme Court, June 8, 2006

The plaintiff was a patient of a doctor who worked for the defendant, Augusta Health Care.  A medical malpractice action was brought against the doctor and also, under the theory of vicarious liability, against Augusta Health Care.  No independent theory of liability was pled against Augusta Health Care.  The day before trial the plaintiff moved to dismiss the doctor, with prejudice.  The requested motion also stated that "the matter will proceed against the co-defendant [Augusta] who is vicariously liable for any negligence of [the doctor].  The trial judge granted the motion and in the order provided that "[t]his matter shall proceed forward against the defendant [Augusta] based on the allegations pending herein."  Counsel for the defendant endorsed the order without objection.

Later the same day counsel for the defendant moved for summary judgment on the grounds that the dismissal of the doctor "with prejudice" acted as a dismissal of the employer in this situation, that is, when the only ground of liability alleged against the employer is the vicarious liability of the employee.  The trial judge granted the motion for summary judgment and this appeal followed.

The Virginia Supreme Court reversed 5-2.  The majority held that while the general rule is that the determination that the employee is not liable is also determinative of the liability of the employer in a vicarious liability situation, in this case the order indicated that the plaintiff had the right to proceed against the employer defendant.  The dissent argued that it is clear that once the employee's liability is determined adversely the case against the employer goes away in a vicarious liability situation.

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Huaman v. Aquino, Virginia Supreme Court, June 8, 2006

This case involves the distribution of the proceeds of a Maryland wrongful death and personal injury action under the will of a Virginian.

The plaintiff was severely burned in a fire in an apartment building in Washington, D.C. and after a long period of time died.  She had filed the personal injury action before her death, and after her death it was amended to include both survival and wrongful death counts, which is appropriate under Maryland law.  The case was settled for $1,700,000.  It was conceded that under the appropriate law that these proceeds were to pass under the will that the deceased plaintiff left.  The will contained two relevant clauses, one of which left the personal property to be divided equally among three brothers, and a residuary clause which left remaining assets to be divided equally among six brothers including the three named in the personal property clause.  The trial court decided that the proceeds were personal property and passed under that part of the will, and the Virginia Supreme Court affirmed, noting that this was unique because of the interplay between Virginia and Maryland law and therefore it did not really involve the settled law of Virginia.

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Judicial Inquiry & Review Commission v. Elliott, Virginia Supreme Court, June 8, 2006

This case involves the JIRC Commission and Judge Archie Elliott of the Third Judicial Circuit.  After some investigation it was determined by the JIRC Commission that Judge Elliot had committed several improper acts.  Some were;

Physically threatening his fellow JudgesVerbally threatening staffWriting letters to the Chief Justice deliberately designed to embarrass his fellow JudgesTelling defendants that he had a "DEA light" in his courtroom which would detect whether they were using drugsBasing sentencing decisions on whether or not the defendant was willing to take a drug testReviewing the past criminal records of defendants prior to a determination of their guiltForbidding the Commonwealth's attorney from prosecuting DUI cases in his courtroomNot being entirely truthful about some of the above to the JIRC Commission

The Commission issued an order suspending him from his job as Judge but offered him a supervision order which would allow him to return to the bench provided, among other things, he apologized where appropriate, cleaned up his act with respect to some matters, agreed to retire within about a year, and agreed not to tell anyone that the JIRC Commission had absolved him of the charges.    He agreed to these conditions.  There was some disagreement as to whether he followed the conditions, and a new agreement was proposed by counsel for the JIRC Commission which called for an earlier retirement. This was agreed to and signed by the Judge.  However the full Commission refused to accept this and demanded an even earlier retirement date, and the Judge refused.  Therefore the JIRC Commission filed a complaint pursuant to statute with the Virginia Supreme Court.

The Virginia Supreme Court held that the Judge and the JIRC Commission had reached an agreement allowing him to return to the bench and that the Judge had agreed and begun to implement the terms, and this would be enforced.  Therefore the complaint filed by the JIRC Commission was dismissed.

There was a dissent by three justices over whether the JIRC Commission had the authority to enter into such a supervising agreement or whether the Constitution required, once serious charges had been found, for the matter to be referred to the Supreme Court.  The analysis turned on the majority saying that "may" in the Constitution and Statutes was discretionary and that if the JIRC Commission decided not to refer it could issue a supervisory agreement, which, if agreed to, could take the place of a referral.  The three dissenters denied that the JIRC Commission was given that authority and the only options were to dismiss or to refer to the Virginia Supreme Court.

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Saks Fifth Avenue v. James, Virginia Supreme Court, June 8, 2006

This case involves a damages issue.  The person involved was a clothing salesman who worked for James under an at will contract.  He was extremely successful.  His contract, although at will, contained a not to compete clause.  Saks approached him and hired him away.  James sued on many grounds but prevailed on breach of fiduciary duty (against the salesman) and under the statute prohibiting conspiracy to injure another's business.  $500,000 in damages was awarded, which was tripled under the appropriate statute.

The only evidence on damages came from a forensic accountant.  The method he used was to estimate the total lost sales that occurred because the salesman no longer worked for James.  Roughly, he looked at the past sales, deducted from that the amounts spent by his customers who after the transfer continued to shop at James, averaged, and multiplied out over 15 years.  This is the amount that James "lost" because the salesman no longer was there.  This is what the trial Judge ruled was proper as proof of evidence.

The Virginia Supreme Court disagreed.  It noted that the salesman could have left at any time so the measure of damages that the store lost because the salesman left was not proper, because it did not show proximate cause.  The proper analysis would have included the amounts spent by the salesman's former customers at Saks, for example, which was ignored by the forensic accountant.  The "because he left we lost sales" approach was not enough, because he could have left at any time.  It appears that the Virginia Supreme Court would have required that there be proof of old customers of his now doing business with him at Saks and some measure of that damage value for their to be a recovery.

Unfortunately since there was no prove of causation of damages the case was dismissed entirely.

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Wilson v. Commonwealth, Virginia Supreme Court, June 8, 2006

This case involves a criminal case where the trial judge was found to be guilty of prejudice.

The criminal defendant was charged with numerous counts mostly involving being in the distribution of drugs.  The Virginia Supreme Court found the evidence sufficient to convict.

However, the Supreme Court also reviewed the actions of the trial Judge, Judge Charles Griffin.  The case started in the courtroom of Judge Posten, and a bench trial was requested.  However, the case was then transferred to Judge Griffith's courtroom.  On the way down the hall the lawyer, privately retained counsel, advised his client that with Judge Griffith as the Judge a jury trial would be advisable.  Consequently when they appeared before Judge Griffith and asked for a jury trial the Judge asked the defendant why and was told that his lawyer had so recommended.  Judge Griffith tried at that moment to remove the lawyer from the case, but since he was privately retained could not do so.  He ordered the defendant's counsel removed from the court appointed list forthwith however.  The next scheduled hearing was before a third Judge, and the defendant's lawyer waived his right to trial by jury before that judge and the case was set down for a bench trial.  Upon hearing of this Judge Griffith went to the chief Judge and had the case reassigned back to him, refused to consider a plea bargain offered by the parties, refused to grant a motion for a jury trial, heard the case at a bench trial and sentenced the defendant to many years in jail.

On appeal the Virginia Supreme Court held that this was clear evidence of prejudice on the part of the trial judge and reversed and sent the case back for a new trial by a different judge.  The Commonwealth tried to argue that the prejudice of the trial judge was against the attorney and not the defendant himself, but the Virginia Supreme Court didn't buy this, noting that prejudice against the litigant's attorney gives rise in the perception of the public that the trial judge might not be fair and impartial in the proceedings.

Reversed for a new trial.

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Dreher v. Budget Rent-A-Car, Virginia Supreme Court, September 15, 2006

This case involves choice of law. The defendant apparently rented a vehicle in New York from the rent-a-car company and was involved in an accident in Virginia, injuring two Virginia plaintiffs. The plaintiffs alleged that New York statutory law states that the owners of vehicles are fully responsible for the acts of permissive users even in the absence of negligence of the owners. Thus a New York rent-a-car company would be fully responsible for acts of its renters in New York. In Virginia, of course, this is not the case, an owner being responsible for the acts of a permissive user only in special circumstances such as negligent entrustment.

Since the accident occurred in Virginia the question was whether Virginia tort law, which states that the rent-a-car company is not liable of the acts of its renters, applies or whether New York law which says that the rent-a-car company is responsible applies.

The Virginia Supreme Court analyzed this as a tort versus contract problem. If the New York law is characterized as tort law then it would not apply as Virginia in tort situations applies the lex loci standard, and with the accident in Virginia Virginia law would apply. However, if the New York law is characterized as a contract provision, then under the choice of law rules that the place of contracting governs the New York rule would apply even to an accident in Virginia.

The Virginia Supreme Court looked to the case of Buchanan v. Doe which is the case of a Virginia being in an accident In West Virginia with a John Doe vehicle. There was no contact, and West Virginia law requires contact for there to be insurance coverage, Virginia UM law does not. The Court held that Virginia law applied, that this was a contract provision.

Similarly, the New York statute was closer to a contract provision than a tort provision, and so it applied. The lower court decision for the rent-a-car company was reversed.

The Congress of the United States has, by a newly enacted statute, changed the probable result of many future cases like this.

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Bio-Medical Applications v. Coston, Virginia Supreme Court, September 15, 2006

This case discusses when a motion to take a nonsuit is too late.
The plaintiff sued the defendant alleging that she had suffered several falls at the defendant's clinic as the result of the defendant's negligence, in particular due to the malfunctioning of certain equipment. The plaintiff alleged that the defendant had failed to meet the standard of care required of it as a health care provider. The trial court and in pre trial discovery ordered that the plaintiff disclose her experts, and this was done. However, as discovery proceeded it became clear that none of the designated experts were prepared to testify as to the standard of care. The defendant made a motion for summary judgment and this is the motion that was under consideration when the motion for the nonsuit was made.
The arguments of counsel had been made. Indeed, the court had asked for the "final word" from defense counsel. The court then began to explain its ruling that expert testimony was required and stated "and that's the court's ruling." The court then asked if either counsel had any motions to make or anything further to say, and at that point the plaintiff moved for a nonsuit. After research the trial court granted the nonsuit and the defendant appealed.

The Virginia Supreme Court noted that the nonsuit statute did not allow a nonsuit to be taken in three situations;
1. where a motion to strike had been sustained
2. where the jury had retired to reach its decision
3. where the action has been submitted to the court for decision
In the first situation the court has allowed counsel to move for a nonsuit in the middle of the court's explanation of its ruling as long as the court has not actually sustained the motion. However, this luxury does not occur in the third situation. Once the motion has been submitted to the court it is too late to take a nonsuit. If the court is explaining its ruling before actually making it one cannot leap up and nonsuit.

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Janiver v. Arminio, Virginia Supreme Court, September 15, 2006

This case involves the taking of a second nonsuit without the defendant ever having been notified. The case is a medical malpractice case.

The plaintiff filed suit about 18 months after the last date she was treated by the defendant. No service was requested. More than one year went by without service being requested, and the plaintiff took a voluntary nonsuit, without notice to the defendant, 13 months after suit had been filed. Four months after the nonsuit the suit was refilled, again without service being requested. Fourteen months after the second suit had been filed the plaintiff, by counsel, appeared in the Judge's chambers and requested a second nonsuit. The order did not state that the nonsuit was a subsequent one, and the trial judge has no recollection of the matter and so cannot state whether he was informed that this was a second nonsuit or not. The plaintiff's counsel stated that he did tell the court that this was a second nonsuit, but believed that notice to counsel was not necessary because the defense had not been served. Five and a half months later the plaintiff refilled the lawsuit, for a third time. The defense was served, finally some three months after the third lawsuit was filed. Since the third lawsuit was filed almost five years after the accrual of the action the defense filed a plea of the statute of limitations and in discovery the entire series of suits became apparent.

The trial judge, who was not the trial judge who granted the second nonsuit, was asked by the defense to rule that the second nonsuit was obtained by fraud, which he refused to do on the facts that appeared before him, basically the uncontradicted testimony of the plaintiff's attorney. Second, the defense asked the trial judge to rule the second nonsuit void for failure to notify the defense, which he did. The third suit was dismissed because it was well after the statute, and the second, now pending because the nonsuit was declared void, was dismissed for failure to serve within the one year. The plaintiff appealed.

The Virginia Supreme Court ruled that the order granting the second nonsuit was not void ab initio for failure to notify the defense. To so rule would be to add words to the statute. The trial court does have the discretion to grant such a motion without notice. However, in the opinion it also strongly suggested that justice is not done unless the defense is notified and has an opportunity to be heard. Thus the Court is in effect instructing the trial judges to require notification of the defense when a second or subsequent nonsuit is requested. Therefore the order was valid and the plaintiff's case is still alive.

The Supreme Court also suggested that the legislature take a look at this statutory scheme and all but invited them to require notice.

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Herr v. Wheeler, Virginia Supreme Court, September 15, 2006

The case involves when it is proper to give a sudden emergency instruction.

The plaintiff and the defendant were traveling in opposite directions on Route 250, which at the place was a two lane road with one lane in each direction. It was pouring down rain, and had been raining for a considerable time. The speed limit was 55, but both vehicles were traveling at a somewhat reduced speed due to the conditions. The defendant vehicle hydroplaned on the water and came across the line into the lane where the vehicle in which the plaintiff was a passenger was traveling. The plaintiff was injured and filed suit. Over the objection of the plaintiff the court granted a sudden emergency instruction. The jury found for the defendant, the trial court affirmed, and the plaintiff appealed.

The Virginia Supreme Court reversed. Basically they said that a sudden emergency is a sudden, unexpected and unforeseen happening or condition. A wet road in a driving rainstorm is not unexpected, not is a puddle or pool of water on the road that may have caused the hydroplaning in such circumstances. They also note that such an instruction, like the unavoidable accident instruction, is disfavored. Therefore, reversed for a new trial.

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Barrett v. Virginia State Bar, Virginia Supreme Court, September 15, 2006

This is another appeal in the saga of Timothy Barrett. He represented himself in a divorce matter and it was found by The Virginia State Bar Disciplinary Board that he committed several ethical violations, including giving legal advice to a person not represented by a lawyer, insulting other counsel repeatedly, threatening other counsel with disciplinary action unless certain things were done, etc. This was discussed by the Virginia Supreme Court in Barrett v. Virginia State Bar, decided April 22, 2005. There the Board was partly affirmed and partly reversed, and a three year suspension set aside for reconsideration. Timothy Barrett now comes before the Supreme Court again, this time on a 30 month suspension, for other charges, and this time they are assessed by a three judge court.

Barrett first asserted that some of the rule violations did not apply because they do not apply to a person representing himself, but only when representing someone else. The Virginia Supreme Court stated that a lawyer cannot conduct behavior unethical for a lawyer and say that he is immune because he is representing himself. In representing himself he acts both as lawyer and client.

In a divorce proceeding Barrett subpoenaed his ex-wife's employer allegedly seeking information on her earning capacity. However, in two letters sent to the employer Barrett offered to release the subpoena if the employer would release an attorney's lien. This, the three judge court and the Virginia Supreme Court, showed that the real purpose of the subpoena was to harass, and thus was unethical.

Secondly, in the divorce proceeding he called the opposition attorney as a witness to question him about the relationship of that attorney to the ex-wife, alleging that it was romantic and therefore relevant.  Upon getting a denial he dropped the matter.  The Board and the Virginia Supreme Court both felt that this was unethical conduct in that Barrett did not apparently have a good faith basis for making the accusation that the opposing attorney was having an affair with his ex-wife.  Therefore calling the opposing counsel as a witness in these circumstances was harassing.

However, the Virginia Supreme Court reversed on the third of the three charges.  Barrett had let the statute run on a personal injury claim, which he admitted.  He also did not read a memorandum supporting a motion filed by the other side until the morning of the hearing on the motion.  The Board charged Barrett with incompetence, among other things, and the Supreme Court reversed.  The Court said that missing a statute of limitations is negligence, it does, without more, not constitute unethical conduct.  While reading a memorandum filed by the other side, which had been pending for a month, on the morning of the hearing is not good practice, it is not without more unethical.

Therefore, since the Virginia Supreme Court had sustained two of the charges but reversed the third it sent the matter back to the Board for reconsideration of the total penalty.

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Parson v. Carroll, Virginia Supreme Court, November 3, 2006

This is a defamation case.  The plaintiff was a 50 year old man who met the defendant, a 16 year old, in church.  The plaintiff paid the defendant for work around the house and to help take care of an aging relative.  During these visits the plaintiff allegedly made inappropriate sexual advances and inappropriately touched the defendant, who reported it to their minister, and it got reported to the police, who prosecuted.  Shortly before trial a plea bargain was worked out whereby the plaintiff, in an Alford plea, admitted that the evidence against him was sufficient for conviction, and he was found guilty by the court and several suspended sentences were handed out to him.

After this the plaintiff 50 year old sued the defendant 16 year old for defamation for telling the minister and others that there had been sexual advances and inappropriate touchings by the plaintiff, and claiming that those statements were false and that those activities had never occurred.  The defendant filed for summary judgment stating that the Alford plea meant that the plaintiff had judicially admitted the facts against him and thereby was judicially estopped from proceeding.  The trial court agreed and this appeal followed.

The Virginia Supreme Court reversed.  It noted that an Alford plea merely admits that the evidence against the charged person is sufficient for a court to find guilt; it does not admit that the evidence is true.  An Alford plea does not admit the underlying facts.  Therefore judicial estoppel does not apply and the plaintiff's case can proceed.

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Castle v. Lester, Virginia Supreme Court, November 3, 2006

This case involves damages to a mother in a medical malpractice case involving the birth of an impaired infant.  The plaintiff is the mother of an infant who was born severely impaired allegedly as the result of birth injuries caused by the negligence of the attending physician.  The infant's case, with all the damages including medical bills and physical injuries was settled prior to trial, and the case at bar is the mother's case for her injuries.  Liability was admitted, and the case went to trial on damages to the mother only.

At trial, over the objection of the defendant, the plaintiff was allowed to testify in great detail as to her post birth situation.  As the mother of a severely impaired child her life was significantly changed, with near constant feedings and medical procedures being called for.  The estimated life expectancy of the infant was 7 years, but it was testified to that he would never reach the mental capacity of a 6 month old, and probably not that of a three month old.

The defendant appealed the trial court's admission of this evidence claiming that it amounted to a double recovery on the same damages, once in the child's case and once in the mother's case.  The Virginia Supreme Court agreed with the trial court and affirmed.  It was asked to overrule Bulala v. Boyd which held that there were two cases when an infant was damaged in the birth process, one for the infant's injuries and one for the mother's.  The Virginia Supreme Court refused to overrule that case.  Of more concern was what damages were to be admitted in the mother's case as opposed to what were admitted in the infant's case.  Obviously the medical bills for the continuing treatment of the impaired infant were admissible in the infant's case only.  However, the trial court allowed the mother to testify as to what she had to do for the infant on a daily basis for the child including feeding tubes, respiratory massages and the like, and allowed testimony as to the mental impairment of the infant as part of her case as well.  The Virginia Supreme Court affirmed all of this, and affirmed the verdict of $1,600,000.

Finally an instruction was given over objection that stated that "injury to an unborn child in the womb of the mother is to be considered as physical injury to the mother."  The argument of the defendant was that this could confuse the jury and allow a double recovery.  However, the Virginia Supreme Court noted that the trial judge in his remarks had clarified the issues as to the two cases to the jury, as had both counsel in their opening and closing remarks, and thus the jury could not have been confused.  Furthermore the defendant had not asked for a clarifying instruction.  Therefore, affirmed.

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Baker v. Poolservice, Virginia Supreme Court, November 3, 2006

This involves a death by drowning of a 7 year old in a spa due to suction from a drain.

The facts are that shortly before the incident the spa owners called Poolservice and asked them to perform routine annual maintenance, clean the spa, and determine why the pump was not working at full capacity.  This Poolservice did, cleaning out a clog which reduced the capacity of the pump and returning it to its normal functioning capacity.  Poolservice never touched the drain cover.

The plaintiff's alleged that Poolservice had a duty to warn them that returning the pump to its designed and normal operating capacity would increase the suction and therefore the danger.  The trial judge and the Virginia Supreme Court held that there is no such duty, and also that a repairer has no duty to warn of conditions that it did not create.

The plaintiffs also sued the manufacturer of the drain cover.  The manufacturer moved to dismiss under the statute of repose, which states that no suit may be brought for defects in an ordinary building materials after 5 years, but exempts from this protection machinery and equipment installed in a structure.  The trial court and the Virginia Supreme Court agreed that the drain cover was an ordinary building material and thus subject to the 5 year statute of repose and so the case was dismissed.

The case contains a good summary of 8.01-250, the statute of repose, and when it applies and doesn't apply in a materials context.

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Bristol v. Commonwealth, Virginia Supreme Court, November 3, 2006

This case involves when a person in the hospital is "arrested" for the purposes of Virginia's implied consent statute.

The defendant here was operating a motorcycle when he ran into a crowd of people seriously injuring one of them and him also.  The police were called and noted certain indicia of intoxication.  The defendant was taken to the hospital.  The police officer, at the hospital, told the defendant he was under arrest and informed him of Virginia's implied consent law.  The defendant indicated that he understood and agreed to have his blood taken, and it ultimately showed .11. The police officer left the hospital after the blood was drawn and the defendant left the hospital on his own after treatment and was not taken into custody until after he was indicted two months later.  He was convicted in court and sentenced to several years in jail for the various offenses.

The defendant argued that the .11 blood alcohol test was not admissible because the defendant had not been arrested within the three hour time frame called for in the implied consent statute, and indeed was not formally arrested for a couple of months.  The defense pointed out that merely stating that one is under arrest is not sufficient to actually arrest someone, but in addition their liberty must be restrained or they must consent to the arrest.  The Commonwealth argued that telling a person lying in a hospital bed that he was under arrest and staying with him until his blood was drawn was sufficient.

The trial court agreed with the Commonwealth, the Court of Appeals reversed, the Commonwealth asked for an en banc hearing and the Court of Appeals panel was reversed.  On appeal the Virginia Supreme Court reversed the trial court and the en banc panel and found for the defense by a vote of 5-2.  Justice Keenan notes that while the officer told the defendant he was under arrest, he took no further steps to restrain him.  Indeed, the defendant later walked out of the hospital on his own and despite several contacts with the police was not taken into actual custody for two more months.  Justice Lemons asked, in dissent, what was the officer to do.  Handcuff an injured man under treatment to the bedrails.

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Uninsured Employer's Fund v. Gabriel, Virginia Supreme Court, November 3, 2006

This case involves the three employee rule for Workers' Compensation.

The plaintiff's decedent was an unfortunate victim of 9/11, being a passenger on the flight that crashed into the Pentagon.  He was traveling for business at the time.  His company had two offices, one in Virginia with a total of two employees, and another in Massachusetts with another two employees.  The statute requires a minimum of three employees in a business for the Workers' Compensation Act to cover.  One of the two employees in Massachusetts was a director and officer of the Corporation, and the Full Commission ruled that "a corporate director assumes certain responsibilities with regards to that corporation that constitutes rendering regular service in the Commonwealth" thus meeting the statutory definition.  The Virginia Supreme Court reversed.  It noted factually that the Massachusetts officer and director did not come regularly to Virginia and had no clients in Virginia and was not regularly in service in Virginia.  Thus reversed, no coverage.

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Bethel v. City of Hampton, Virginia Supreme Court, November 3, 2006

This case involves the City of Hampton and a private land developer. The City owned land adjacent to that of the private developer and by the use of dams converted some of its own land to wetlands to meet a requirement of the Army Corps of Engineers. Some of the water spilled over into the land owned by the private developer, turning it into wetlands and ruining it for residential use. The private developer sued, and the City asserted the bar of the statute of limitations. When the damage occurred was a factual issue, and the developer demanded a jury trial on the issue. The trial judge, without impaneling a jury, heard the evidence and ruled that the statute barred the action by the developer.

The Virginia Supreme Court reversed. Citing the provision in the Virginia State Constitution favoring jury trials, it held that when there is a factual issue involving the statute of limitations in a damages case a jury trial is required if requested. It also stated that the burden of proof is on the party asserting the statute of limitations as a bar. Reversed.

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Riverside Hospital v. Johnson, Virginia Supreme Court, November 3, 2006

The plaintiff was an elderly lady sent to a hospital. There she was not, allegedly, properly evaluated as a person likely to fall and proper precautions were not taken.  She fell and severely broke her hip. The hospital was sued and a jury verdict returned for the plaintiff in the amount of $1,000,000. There were several key evidentiary rulings.

The plaintiff in opening statement referred to statistical evidence involving falls as reported in medical journal articles. This was done over the objection of the defendant. However, when the articles were actually discussed during testimony no objection was made nor was any objection made during reference to the material in closing argument. The Virginia Supreme Court held that in failing to object when the evidence was actually introduced the defendant had waived their objection.

The plaintiff also introduced evidence of other falls at the same hospital. The plaintiff had, as part of the claim, filed a claim for punitive damages. The trial court, over objection properly made, allowed the evidence of prior falls to go to the notice requirement on the punitive damages claim. At the conclusion of the evidence the plaintiff nonsuited the punitive damages claim, but the defendant, at that point, did not renew its objection to that evidence nor did they seek a cautionary instruction from the trial Judge. The Virginia Supreme Court held that the objection not being renewed was waived. There was a dissent on this point by Justices Agee and Keenan, who held that it had not been waived, and on reaching the merits of the issue stated that the statistical evidence should not have been admitted and was so prejudicial that no cautionary instruction would cure its admission.

The defendant has a nursing school as part of it operation. The plaintiff sought to introduce materials contained in the nursing school orientation program and in the nursing school curriculum, not for the standard of care, but as background information for its standard of care expert. When the evidence was actually entered at trial the defendant did not renew its objection. The Virginia Supreme Court held that this was within the discretion of the trial court under the circumstances.

The plaintiff, over objection, got admitted the incident report filled out by the nurse at the time of the fall. The defendant stated that this was a Quality Care Report, and, by statute, inadmissible. The Virginia Supreme Court disagreed with the defendant, and agreed with the trial court.



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