Digests of 2008 Virginia Supreme Court Decisions


Coston v. Bio-Medical Applications - Virginia Supreme Court - January 11, 2008

This is a medical malpractice case that has been before the Virginia Supreme Court before.  In the earlier case the plaintiff did not have an expert, and the defense moved for summary judgment.  Argument was had before the trial Judge, and the argument of the two lawyers was concluded.  The Judge then began to announce his ruling, and as the trial judge was discussing how he might rule the plaintiff attempted to nonsuit, which was granted by the trial judge.  On appeal the Virginia Supreme Court reversed, saying that a nonsuit cannot be taken on a motion before the Judge once it has been submitted to him for a ruling.

The case thus went back to the trial court to rule on the motion on which he had not ruled.  That is, whether on the facts of this case the plaintiff, who had not designated a standard of care expert, needed such an expert.  The facts were that the plaintiff went to defendant's dialysis clinic and was placed in a chair which was allegedly defective.  She fell out of the chair, and the defendants placed her back in the same chair again, and she fell again, injuring herself.  As noted the plaintiff had not designated any standard of care expert, and after the time limit to so designate in the pretrial order expired the defense counsel moved for summary judgment.  As a result of the previous appeal the trial court now ruled on this motion, and granted the defense motion for summary judgment.  This case is the appeal of that grant of summary judgment by the trial Judge.

The Virginia Supreme Court noted that in many medical malpractice cases a standard of career expert is required.  However, there are some cases that are within the common experience of jurors and in those cases such an expert is not required.  They cited a case in which a needle had been left in the neck of the patient and not removed as an example of a case where an expert was not needed.  Here the Court decided that placing a person in a chair known to be defective, and then after the person had fallen placing them again in the same chair constituted acts which were within the common knowledge of jurors and a jury could decide negligence without the need for a standard of care expert.  Reversed.


Lloyd v. Kime - Virginia Supreme Court - January 11, 2008

This is a medical malpractice case with the chief issue whether the trial court erred in granting a motion in limine disallowing the testimony of plaintiff's only expert and then granting a motion for summary judgment because the plaintiff had no expert.

Briefly the defendant doctor performed spinal surgery of the plaintiff, an anterior cervical discectomy decompression.  Immediately after the operation the plaintiff noted an inability to move his right leg.  The defendant orthopedic surgeon did not start the plaintiff on heavy doses of steroids, an appropriate remedy, for almost a day.  The plaintiff ended up with a significant permanent disability from the surgery.

The plaintiff in the pleadings alleged that the defendant orthopedic breached the standard of care both by partly cutting the spinal cord in the process of the operation and secondly by not recognizing the injury and starting the plaintiff on steroids much sooner.  The plaintiff designated one expert, a neurologist, who would testify on these matters.  The defendant moved to exclude the plaintiff's expert in a motion in limine.  In the process of arguing the motion the defendant cited portions of the depositions of the plaintiff's expert.  The plaintiff cited portions of the depositions to oppose the motion.  The defendant won the motion and then moved for summary judgment, which was granted. The plaintiff appealed the defendant's use of depositions stating that this violated Rule 3:20 which states that "no motion for summary judgment...shall be sustained when based in whole or part upon any discovery depositions...unless all parties shall agree that such deposition may be so used."  While the motion in limine was not technically a motion for summary judgment, once it was granted the defendant moved for summary judgment, which was then also granted, so the Virginia Supreme Court held that the motion in limine under these circumstances was functionally a motion for summary judgment and therefore the rule applied.  The Court noted that while the rule forbids the use of deposition testimony to support such a motion with consent, it does not forbid the use of deposition testimony to oppose such a motion.  Therefore the plaintiff, in citing the depositions to oppose the motion did not thereby consent to the defendant's use of the depositions.  However, the plaintiff, by failing to object under these circumstances did consent to the use of the depositions.  The plaintiff claimed he did object, but the objection was never made part of the appellate record and so this objection was not considered by the Supreme Court.

The Supreme Court next considered whether the trial court had properly excluded the plaintiff's expert.  Making a long complicated story short, the plaintiff's expert was a practicing neurologist and not a surgeon.  He had been a surgeon, but had not practiced surgery since 1997.  Therefore, with respect to the surgery he could not opine that the standard of care concerning the surgery was breached.  However, the Virginia Supreme Court held that the plaintiff's expert could testify that the standard of care of post surgical care was breached since neurologists also treated such patients after surgery.  Therefore, reversed and sent back for trial.


Upper Occoquan v. Blake Construction - Virginia Supreme Court - January 11, 2008

This is hopefully the final chapter in a long running saga which has been to the Virginia Supreme Court several times before.  There have been several appeals to the Virginia Supreme Court, writs denied, petitions for rehearing denied, and two separate jury trial.  There are two jury verdicts for damages here, and the questions arise as to the way in which pre and post judgment interest is calculated, the jury verdicts having become final.  We will not here review the long history, but simply state the rules that the Virginia Supreme Court stated;

Post judgment interest runs from the date of the verdict, not the date of the final order, the end of appeals, or some other date.  When the fact finder renders a number, the interest begins to run from that day forward.  Here the final order was entered two years after the verdict, interest runs from the date of the verdict.

Pre judgment interest runs from the time set by the finder of fact to the verdict date only, and not beyond.

Because post judgment interest is mandatory by statute, the trial court need not recite in the final order the existence of the post judgment interest for it to exist.  The trial judge retains jurisdiction, even after the 21 days, to interpret its own order and calculate interest when a motion to mark the judgment satisfied is made.

Where the Prompt Payer Act applies (government entities), and the jury so finds under proper instructions, the post judgment rate of interest is 1% per month (the jury so found here) and not the statutory rate of interest.

Post judgment interest does NOT run on pre judgment interest, but only on the principal sum awarded by the fact finder.

When paying a sum of money on several debts the debtor may make allocation as to which debts he wants to be paid provided this allocation is made at the time of the payment. Several days later is not timely.  If the debtor fails to make allocation the creditor may make allocation as he chooses provided it is made promptly and before any controversy exists.  If no such allocation is made in a timely fashion then the debts will be satisfied in order of age, with the oldest being satisfied first.


Ford Motor Company v. Favinger - Virginia Supreme Court - January 11, 2008

This is a workers' compensation case involving overtime pay under comp.

The plaintiff was working for Ford when he was injured, and it was a compensable injury.  His regular job required heavy lifting.  As he recovered somewhat he was placed on light duty at the same hourly rate.  However the light duty job, unlike his regular job, offered far less opportunity for overtime pay.  Thus he earned less money than before the injury.  In a slip opinion in 2005 the Virginia Supreme Court, on appeal from the Court of Appeals, remanded the case to the Commission to determine whether or not the plaintiff had marketed his residual work capacity.  In other words, whether or not the plaintiff had sought a part time job in addition to the 40 hour work week at Ford to replace the lost overtime pay.  The Commission, on remand, found that it was unreasonable to expect the plaintiff to work additional hours at another employer after working 40 hours at Ford.  The Court of Appeals affirmed the decision of the Commission.

The Virginia Supreme Court reversed.  It holds that when an employee is seeking compensation for the wage differential between his new and old job he has the burden of proving that he has made a reasonable effort to market his full remaining work capacity.  That is the plaintiff must show that he made a reasonable effort to seek other employment to make up for the lost overtime.  The plaintiff testified that he made no such effort.  The Commission had found that this was reasonable and to expect him to get a part time job after working 40 hours a week at Ford was not reasonable and would interfere with his ability to accept overtime from Ford, when available, if he had a part time job.  However, the Virginia Supreme Court disagreed.  They said that he had to show that he tried to replace the ten hours of overtime that he lost with another part time job, and until he showed that he made an effort to find such and job and failed he could not collect for the lost overtime at Ford.


Phelps v. Commonwealth - Virginia Supreme Court - January 11, 2008

This is a criminal case.  The defendant was operating his motor vehicle on a highway when he committed a traffic infraction.  A police officer in a patrol car first activated his lights, and then his lights and siren.  The defendant accelerated rapidly and crashed his car in a curve overturning it.  He was later apprehended.  He was charged with 46.2-817(B) which states that a person is guilty of a class 6 felony if having received an audible or visible signal from a law-enforcement officer he disregards such signal and operates his vehicle to "endanger a person."  The officer was not endangered in this instance, and there were no other cars on the road, so no one else was endangered either.  The defendant, convicted below, argued that because no one else was endangered he could not be guilty of this crime.  However the Virginia Supreme Court affirmed the trial court and the Court of Appeals in holding that to endanger oneself is to endanger a person.


Hicks v. Mellis - Virginia Supreme Court - February 29, 2008

This case involves a trial court's order reinstating a case that had previously been dismissed for failure to take any action for three years without giving the required notice to a defendant.  The case had been on the court's docket a long time and under the statute that gives a court the right to dismiss a case in which no action had taken place for three years the trial court dismissed the action.  The plaintiff, under the appropriate statute, moved to reinstate the case on the docket.  The statute is 8.01-335(B).

Any court in which is pending a case wherein for more than three years there has been no order or proceeding, except to continue it, may, in its discretion, order it to be struck from its docket and the action shall thereby be discontinued. The court may dismiss cases under this subsection without any notice to the parties. The clerk shall provide the parties with a copy of the final order discontinuing or dismissing the case. Any case discontinued or dismissed under the provisions of this subsection may be reinstated, on motion, after notice to the parties in interest, if known, or their counsel of record within one year from the date of such order but not after.   (Emphasis added).

The key is the phrase in the statute which requires notice to the parties in interest.  It is clear that the defendant was known, although never, to this point in the litigation served, and also clear that he never received notice.  The trial judge noted this, but reinstated the case anyway.  After the defendant was finally served, he moved to dismiss the case on a plea of the statute of limitations asserting that the reinstatement was invalid because he had never received notice of the reinstatement as the statute required.  The trial court agreed that its order of reinstatement had been improvidently granted, declared its order of reinstatement void, and dismissed the case with prejudice.

On appeal the Virginia Supreme Court reversed.  It said that the order was indeed improvidently granted, but that only meant that the order was voidable, not void an initio.  An order is void ab initio if the court lacks jurisdiction to enter the order.  A wrong order is merely voidable.  In this case the court merely erred, and the remedy is a motion to set aside or an appeal, either timely made.   The time to challenge the order had long since expired so it was still valid.  The Supreme Court did note the irony that the defendant could not have timely challenged an order that he did not receive notice of until after the time to challenge it had expired, but said that was a problem for the legislature.


Brown v. Hoffman - Virginia Supreme Court - February 29, 2008

This case is a malpractice case where the trial judge struck the plaintiff's evidence and entered summary judgment for the defendant and the plaintiff appealed.

The plaintiff was properly diagnosed with a cancerous tumor on his left kidney.  An operation to remove it was done.   As part of the operative procedure the physician must identify and clamp the left renal vein, which was properly done, and the left renal artery.  The doctor clamped what he thought was the left renal artery but in fact it was the right renal artery.  Before cutting it he discovered the error, but in unclamping it a tear in the right renal artery was discovered, and although a vascular surgeon was called in and significant efforts were made to save the patient he ultimately died of complications from the procedures.

The plaintiff's expert testified that if the right renal artery was in its normal anatomical location then to clamp, cut or damage it was a breach of the standard of care.  However, he did note that if the right renal artery was behind the left renal vein then that "might be an understandable complication."  Of course he did not know if there were any anatomical abnormalities.  The vascular surgeon testified that he didn't see any anatomical abnormalities when he tried to fix the situation, but admitted that things had changed markedly by the time he was called in.  The pathologist who did the autopsy said that although the anatomy had changed as a result of the procedures, that the right renal artery appeared to be in its normal place.  The defendant testified that the right renal artery was in an abnormal place, behind the left renal vein.  His assistant concurred.  Note that the plaintiff's expert agreed that if the right renal artery were in the wrong place then the defendant did not violate the standard of care.

Thus the two doctors who performed the surgery testified that the right renal artery was in an abnormal place, but the testimony of the vascular surgeon and the pathologist was to the contrary.  This was an issue which the Virginia Supreme Court said should have been decided by the jury.  Reversed.

Note that the motions were made at the end of a three day trial.  Although the Virginia Supreme Court did not say so, it is clear that the case should have been sent to the jury so that even if the trial court then set aside a plaintiff's verdict the Virginia Supreme Court, on appeal, could have ended the case one way or the other.


University Health Services v. Morris - Virginia Supreme Court - February 29, 2008

This is the charitable immunity case.  The question is whether the University of Virginia Health Services Foundation is entitled to charitable immunity.

The Foundation is a "non-profit" group that employees physicians who work at the University of Virginia School of Medicine, which also employs them.  They teach, perform research and teach students as well as treat patients.  The Foundation bills the patients for the services.

1.       The Articles of Incorporation appear to meet the legal standard for a charity
2.      The Foundation does treat indigent patients, and loses about $22,000,000 treating such.  However, the Foundation only collects 35%-38% from insured patients, so the actual real loss is closer to $7-8,000,000.  Furthermore the Foundation is reimbursed about $5,500,000 from the Commonwealth of Virginia for treating indigent patients so its total actual loss is really about $1,500,000.
3.      The Foundation does the billing and after expenses pays 7% to the Medical School and distributes the rest by department in accordance with the revenue generated by each department.
4.      The physicians are paid a combination of modest salary from the University and a variable stipend from the Foundation, the combination of which results in market wages being paid.
5.      The Foundation, by agreement with the Medical School, is not allowed to receive charitable gifts.
6.      The Foundation is tax exempt under 501(c) (3)

The trial courts considered several cases consolidated, some of which ruled in favor of the charitable immunity status and some ruled that the Foundation did not enjoy such immunity.

The Virginia Supreme Court ruled:

1.       8.01-38 does not apply as the Foundation is not a hospital
2.      The Articles of Incorporation do raise the presumption that the Foundation is a charity
3.      The Court then considered the 10 part Ola test and stated that while the Foundation met some of the criteria, it failed overall because it did not meet the following;

a.        The original purpose was billing and collections
b.      The ratio of revenue to the cost of its charitable work was disproportionate ($200,000,000 to $1,500,000 approximately)
c.       Its payment, that is incentive structure, was more like that of a profit making organization that a charitable organization
d.      The Foundation did not accept charitable gifts

Therefore there is no charitable immunity.


Board of Zoning Appeals v. Board of Supervisors - Virginia Supreme Court - February 29, 2008

The technical issue decided here is whether the nonsuit statute, 8.01-380(B), applies to a writ of certiorari proceeding involving an appeal from the Board of Zoning Appeals of Fairfax County to the Circuit Court of Fairfax County by the Board of Supervisors of Fairfax County.  There was some question as to whether the writ had been timely filed by the Board of Supervisors, which was resolved by a decision of the Virginia Supreme Court in another case while the issue was pending.  The trial judge then wrote counsel and pointed out that the result in that case may have resolved the pending issue as to timeliness, but before the Circuit Court judge could actually rule on the case the Board took a nonsuit.  The Board of Zoning Appeals dissented arguing that the Circuit Court did not have the power to grant a nonsuit.

The Virginia Supreme Court agreed with the Board of Zoning Appeals and reversed the trial judge.  The Virginia Supreme Court held that a nonsuit may not be taken in appellate matters, but only in trial courts.  The appeal from the Board of Zoning Appeals to the Circuit Court is more in the nature of an appeal than a new trial so a nonsuit is not available.


Wright v. Minnicks - Virginia Supreme Court - April 18, 2008

This is a wrongful death case.  The decedent was killed in a motorcycle accident and left a wife but no children.  At trial the jury was given a damages instruction which required the jury to award damages for several categories including solace, expected loss of income, loss of services, medical bills for the pre-death hospitalization and funeral expenses.  By agreement of counsel a special verdict form was given to the jury requiring them to itemize the elements of damages they found.  The jury came back with a verdict for funeral expenses and medical bills, $942,535 for loss of income and services, and nothing for solace for a total verdict of $961,065.89.  The plaintiff was apparently very pleased with the verdict.  The trial judge, on motion of the defendant, set the verdict aside ruling that the jury could not award zero for solace, and therefore must have misunderstood the instructions.  A motion by the plaintiff to retry the solace issue only was denied. A second trial was held on damages only and the second jury awarded the same amounts for funeral bills and medical bills but awarded one dollar for solace and nothing for loss of income and services for a total verdict of $18,530.89.  The trial judge, over the objection of the plaintiff, entered judgment on the second verdict and the plaintiff appealed.

The trial judge had relied on the case of Johnson v. Smith, 241 Va. 396, 403 S.E.2d 685 (1991).  In  Johnson the trial verdict had also contained no award for sorrow, mental anguish and solace for either the wife or the children despite the fact that the evidence described the relationship as a loving, caring one and the deceased as an ideal father.  The Virginia Supreme Court described the result as "incomprehensible" and, feeling that the jury surely must not have understood the instructions, sent the case back for a new trial.  However, in the case at bar while there was evidence from the wife of a good relationship there was also evidence from the defense that the husband and wife were, in fact, separated, and that the husband was about to go to lawyers to get papers drawn legally acknowledging the factual separation.  Under these circumstances the jury was permitted to find that there was no sorrow, mental anguish and solace and award nothing for this element of damages.  Thus the first jury verdict was reinstated.

Note that the plaintiff had objected to the defendant's raising of the issue of no award for solace describing this as a motion to set aside a verdict as inadequate and stating that only the plaintiff could make this motion.  The Virginia Supreme Court, in reversing the trial judge, said it did not have to reach this issue.


Bostic v. About Women - Virginia Supreme Court - April 18, 2008

This is a medical malpractice case and the primary issue discussed was the use of medical literature at trial.  The plaintiff's child was born with Erb's palsy which is a condition resulting in permanent paralysis of the arm.  The cause was determined to be shoulder dystocia which occurred during delivery when the child's shoulder became trapped behind the mother's pubic bone.  The force stretches the nerves which causes the palsy.  The issue for the jury was whether the cause was negligence on behalf of the nurse midwife who delivered the child or whether it was caused by the natural propulsive forces of nature and thus was not caused by negligence.

During the defense presentation the nurse midwife was called as a fact witness, but not as an expert.  During redirect she was presented with several medical texts and asked whether she agreed with statements in the articles that stated that Erb's palsy was caused by propulsive forces of nature over which the medical attendant has no control.  The plaintiff's counsel objected in a timely fashion correctly pointing out that the proper foundation had not been laid, that no expert had yet testified and laid the proper foundation for the medical literature.  The defense counsel stated that his expert would so testify later in the trial and the trial judge permitted the questions subject to giving a limiting cautionary instruction if the defense expert did not so testify. However, when called to testify the defense expert stated that he was unable to form an opinion as to the cause of the child's Erb's palsy.  When asked about several articles from literature he refused to say he agreed with their statements that Erb's palsy was caused by propulsive forces of nature, but only that it might be so caused, that he couldn't be sure one way or the other in this case.  This witness was the last to testify at the end of the day, and the next morning the plaintiff's attorney asked for the curative instruction stating that a proper foundation had not been laid.  The trial court held that the request came too late and the defense was allowed to argue the literature to the jury and did so at length.  There was a defense verdict and the plaintiff appealed.

The Virginia Supreme Court noted that the case was governed by 8.01-401.1 which allows medical literature to be read into evidence on direct if it is both established as a reliable authority and has been "relied upon" by the expert.  The Virginia Supreme Court here defined "relied upon" as including the expert's agreeing with the statements beings read into evidence.  Otherwise, as the Court noted, the opinion would not be subject to cross examination.  However, if the testifying witness agreed with the opinion, then he stands before the jury defending it and he can be cross examined as to that opinion.  The Supreme Court, citing prior cases, spoke about the great danger of expert testimony which is not subject to cross examination. As far as the timeliness of the objection the Supreme Court noted that the plaintiff had objected during the testimony of the nurse midwife and the trial judge had agreed that the statements could be read in at that time subject to a curative instruction being given if the defendant's expert did not support those statements.  This could not be determined until the end of the defendant's expert's testimony, and since that expert finished a day of trial an objection made the first thing the next morning was timely.

Reversed for a new trial.


McNally v. Rey - Virginia Supreme Court - April 18, 2008

This case involved a suit by a plaintiff suing the defendant for, among other things, breach of contract for failure to remove lead paint from a home.  The defendant, through its attorney, filed responsive pleadings and discovery commenced.  Several days before the trial date the defense counsel, in accord with the pretrial order, filed witness designation and exhibits lists with the court and counsel.  However, the evening before trial, defense counsel, acting for his client, filed a petition in bankruptcy with the local Federal Bankruptcy Court, the filing being done online.  Counsel for the plaintiff was promptly notified.

The next morning, the day on which the trial was supposed to begin, the plaintiff's counsel moved for sanctions against the defense counsel for filing pleadings in bad faith.  In other words, the plaintiff's counsel alleged that defense counsel had continued to file pleadings, in particular the witness and exhibit designation, even though he had no intention of proceeding with the trial thereby causing the plaintiff's counsel and his client needless expense.  The defense counsel refused to answer the questions of the trial judge concerning when he and his client had decided to file for bankruptcy citing attorney client privilege.  The Circuit Court Judge ultimately awarded attorney's fees and costs in the amount of $14,000 against the defendant's counsel and in favor of the plaintiff's attorney.  Defense counsel appeals.

The Virginia Supreme Court ruled that a person has an absolute right to take bankruptcy at any time and that such a filing does stop, pursuant to federal law, any related proceedings in state court.  It is not bad faith to file such an action at any time.  Furthermore there was no evidence in the record that at the time the defense counsel filed any pleadings that he at that time had already decided not to proceed with the trial.  Therefore reversed.


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