Our Latest

Don’t Forget the Sudden Mechanical Change!

Written by Chris Wilson, Esq. Edited by Rachel Riordan, Esq. Many workers’ compensation cases in Virginia are defended on the basis that the claimant did not suffer an “injury by accident.” Because Virginia is an “actual risk” as opposed to a “positional risk” state, meaning an accident is not compensable merely because it happened at work, determining whether the claimant can establish an injury by accident is often the first step for both attorneys and adjusters when reviewing a new claim. One component of the “injury by accident” test in Virginia—the requirement that the claimant prove an “obvious sudden mechanical or structural change in the body”—is an often neglected but important means of defending injury by accident claims. Much of the black letter law explaining the meaning of the phrase “injury by accident” is blurred and even contradictory, particularly in light of the recent Court of Appeals decisions in  Van Buren v. Augusta County, 66 Va. App 441, 787 S.E.2d 532 (2016) and Dugger v. Riverside Regional Jail Authority, Record No. 0153-17-2  (July 25, 2017), but returning to the following four-part test can make the process more straightforward. Every claimant alleging an injury by accident is required to establish each of the following: (1) an identifiable incident; (2) that occurred at some reasonably definite time; (3) an obvious sudden mechanical or structural change in the body; and (4) a causal connection between the incident and the bodily change. Although each element of this four-part test must be shown, frequently the analysis of both claims adjusters and defense attorneys is focused on only the first two prongs of the test....

Defending Insurers from Direct Actions by Medical Providers

Written by Helen Jhun, Esq. Edited by Billpfund , Esq. When settling cases, liability insurers often have to deal with claims of various lienholders and assignees who also claim to have an interest in settlement proceeds. Medical providers have a statutory lien under Virginia Code Sections 8.01-66.2 and 8.01-66.5. In addition to the statutory liens, medical providers who commonly treat injuries related to personal injury cases will often require their patients sign an assignment of benefits. This allows treatment of individuals who may not be able to pay out-of-pocket medical expenses up front. Rather than receiving payment up front, providers agree to be paid upon settlement of a suit.   When a Plaintiff is represented by an attorney, there is an affirmative ethical duty on the Plaintiff’s attorney to ensure that all liens and assignments are protected. However, when a Plaintiff is pro se, insurers must deal with the question of who is responsible for protecting those claims.   The Supreme Court of Virginia very recently answered the question of whether an assignee can maintain an action against a liability carrier for failing to protect his assignment of benefits when settling with a pro se claimant. In the case Erie Insurance Company v. McKinley Chiropractic Center, VLW 017-6-072 (September 14, 2017) , the Supreme Court held, in very clear terms, that a medical provider, as the assignee of benefits, cannot maintain a direct action against a liability insurer for failing to honor the assignment.   The facts in the Erie case are very common in liability claims. A party claims he is injured in a motor vehicle accident and...

Recent Ruling Affecting Admissibility of Payments by Insurance Carrier to Medical Expert and Medical Expert Testimony

Written by Stephanie G. Cook, Esq. Edited by Bill Pfund, Esq. A recent, federal case significantly affects the admissibility in Virginia of medical expert information in personal injury cases in at least two ways. Rice v. Williams, 2017 U.S. Dist. Lexis 117504. In Rice, Judge Urbanski, sitting in the United States District Court for the Western District of Virginia, allowed plaintiff to introduce evidence showing the amount of fees that defendant’s medical expert had received from the defendant’s carrier, State Farm. The plaintiff was also allowed to introduce fees the defendant’s expert had received from other insurance carriers. Judge Urbanski found these payments were relevant and admissible because they tended to show show bias or prejudice of the expert witness. The court in Rice also examined the testimony of plaintiff’s treating, orthopedic surgeon and excluded the surgeon from testifying at trial about future surgery he recommended.   Rice v. Williams arose out of an automobile accident. The defendant, Williams, filed two pre-trial motions in limine. The first motion was to exclude the cost of future lumbar or cervical fusion surgeries on the basis that those surgeries were not medically necessary. The court sustained defendant’s motion, finding that the statements from the plaintiff’s treating, orthopedic surgeon during depositions were mere recommendations for the fusions. Consequently, the surgeries were not “reasonably probable.” Rice, 2017 U.S. Dist. LEXIS 117504, 1-2.   The testimony of the orthopedic surgeon is too detailed to go into in this article. However, it is worth reviewing in any case where a physician’s testimony as to future surgery or treatment is somewhat equivocal. During deposition questioning, the physician...

YOUR EMPLOYEE SAID WHAT??? Plaintiff Sanctioned for Undisclosed Communications with Defendant’s Employees

Written by Brian A. Cafritz, Esq. Edited by Christopher E. Bergin, Esq. In almost every case involving a corporate defendant, there comes a point where the company must wonder what damaging statements its employees may have made.  Despite training and educating employees not to talk to anyone but the company lawyers, it is practically and logistically impossible to prevent every employee from talking.   The fear is that an employee speaks without knowing the impact of his or her statement, and that statement winds up undermining the company’s defense to a major lawsuit. Recently, a Virginia State Circuit Court Judge refused to allow statements by a defendant company’s employee, when the statements were obtained in surreptitious methods.  The case was Jalal Haidar v. Toto U.S.A., Inc. et al., from the Circuit Court of Arlington County.   In Haidar, the plaintiff sued Toto and others in a products liability case claiming personal injuries sustained in a hotel room accident.  Mr. Haidar was represented by counsel in the lawsuit, but he began having direct communications with Toto’s technical support/customer service departments related to the litigation without identifying himself as a litigant.  Plaintiff wanted to use the statements made by Toto’s employees at trial, and Toto moved for sanctions, asking the court to exclude those statements. During the motion, the court learned that Mr. Haidar disclosed the contents of the communications to his attorneys, continued to have additional communications with department employees about the same subject matter, and again reported the contents to counsel.  Toto’s counsel ultimately learned of the illicit communications and contacted Haidar’s counsel demanding that Haidar cease and desist from any...

If my dog was a good boy, can I recover for emotional damages when he was hurt by someone else’s negligence?

Written by Christopher Bergin, Esq. Edited by Brian Cafritz, Esq. We love our pets. In some households, a companion animal might not be considered a “pet” at all, but rather a fully-fledged member of the family. In fact, we love our pets so much that even the Supreme Court of Virginia has recognized the deep and genuine bond that forms between a pet and owner: “An emotional bond may exist with a pet resembling that between parent and child, and the loss of such an animal may give rise to grief approaching that attending the loss of a family member.” Kondaurov v. Kerdasha, 271 Va. 646, 657, 629 S.E.2d 181, 186 (2006). For retailers who provide pet-grooming services and for dog-friendly restaurants, this raises an important question: if a pet is harmed by a defendant’s negligence, can the pet’s owner recover damages for emotional distress or loss of companionship? Generally speaking, the answer is no. The vast majority of states hold that pets—however beloved—are personal property. As such, most courts categorically refuse to allow damages for emotional distress, which arise from the negligent injury to or death of a pet. Kondaurov, 271 Va. at 657, 629 S.E.2d at 182 n. 4. A plaintiff’s recovery in these cases will be limited to the fair market value of the animal. At least two states (Illinois and Tennessee) have found the majority rule too harsh. These states have enacted legislation which specifically allows pet owners to recover emotional and non-economic damages for the loss of a pet under certain prescribed conditions. Nevertheless, even these sympathetic statutes are narrowly limited in their application....

Failure to Supervise Theory Fails Again

The United States Federal Courts in Virginia continue to interpret Virginia law as not recognizing an independent tort for negligent supervision. While it is contrary to some state circuit court decisions indicating that Virginia may yet recognize the tort under certain factual circumstances, recently decided cases seem to show the Virginia courts are moving  further away from recognizing negligent supervision as a cause of action. The claim for negligent supervision was most recently addressed by the United States District Court for the Western District of Virginia (Charlottesville) in the matter of MCI Communications Services, Inc. v. MasTec North America (Moon),No. 3:17cv00009  May 24, 2017.  In MCI Communications, the district court granted defendant’s 12(b)(6) motion to dismiss plaintiff’s negligence claim based on a failure to train or supervise theory.  Plaintiff MCI had fiber-optic cables buried in VDOT right of ways along certain railroad tracks.  MasTec North America, Inc., is an excavating company that was using excavation equipment near the right-of-way and severed the MCI cable which interrupted service.  MCI alleged that MasTec’s negligent acts included failing to train its employees on regulatory and safety standards and failing to supervise its employees to ensure compliance. Judge Moon noted that Virginia’s recognition of negligent supervision claims is uncertain.  He discussed recent Federal Court decisions which have construed Virginia Supreme Court precedent to hold that there is no cause of action for negligent supervision in Virginia while a minority of state courts limit that precedent to its facts.  The precedent to which Judge Moon referred to is Chesapeake & Potomac Tec. V. Dowdy, 235 Va. 55, 61, 365 S.E.2d 751, 754 (1988).  In...

YOUR COMPANY’S POLICIES, PROCEDURES AND SAFETY RULES:CAN THEY BE USED AGAINST YOU TO SET THE STANDARD?

Written by Randy Lenhart, Esq. Edited by Bill Pfund, Esq.   A company may create private polices, procedures and safety rules for use by its employees for a number of reasons, including but not limited to, establishing a culture of workplace safety, preventing accidents and reducing the number of lawsuits.  When these private rules are created companies expect that they will be followed by their employees and remain confidential.  But what happens after a lawsuit has been filed and the opposing party obtains copies of the private rules in discovery.  Can they be used against you in a Court of law to set the standard of care in meeting your duty to others? In Virginia, a company’s private rules cannot be used against it to set the standard of its duty to others.  This principle was first articulated in 1915 in the case of Virginia Ry. & Power Co. v. Godsey, 117 Va. 167 (1915).  In Godsey, a plaintiff was injured when she fell off of a moving street car.  She brought a personal injury action against the street car company and used the defendant’s private rules against it at trial arguing that its rules were an admission that reasonable care in her case required the exercise of all of the precautions identified in the rules.  On appeal, the Supreme Court of Virginia reversed the judgment and ordered a new trial in which the defendant’s private rules were excluded from evidence.  In doing so, it held that “a person cannot, by the adoption of private rules, fix the standard of his duty to others. That is fixed by law,...

Inflated Medical Bills and Virginia’s Collateral Source Rule

Written by Brian Snyder, Esq. Edited by Bill Pfund, Esq. Recently, Steven Brill published “America’s Bitter Pill” an acclaimed book on how the Affordable Care Act, or Obamacare, was written, how it is being implemented, and, most important, how it is changing—and failing to change—the rampant abuses in the healthcare industry.   Many of the issues outlined in the book were first identified in his trailblazing Time magazine cover story “Bitter Pill – Why Medical Bills Are Killing Us”, which addresses a number issues about the way medical providers bill patients and common abuses in the industry. These issues become relevant to personal injury litigation because “on the defense side, it is commonplace for medicals to be the foundation for the evaluation of worst case exposure of a claim, and of a reasonable settlement range.  Therefore if the medical bills are grossly inflated, the amount paid on the claim will be too.  Its common knowledge that health care providers charge extra to cover the cost of care provided to the uninsured, but Brill’s article is shocking because it shows that medical bills are inflated many times beyond that.”  Stratton, David B. “Bitter Pill article provides important insights for litigation” Insurance Defense Blog, Mar. 2013. This can be frustrating from a defense perspective because in Virginia and most of the surrounding jurisdictions, the collateral source rule bars a defendant from introducing evidence of payments or benefits a plaintiff received from a third party.[1]  This makes it challenging for the defense to argue against the reasonability of a plaintiff’s medical bills and nearly impossible to do without retaining a medical expert.  While...

When is There a Post-Sale Duty to Warn?

Written by Brian A. Cafritz, Esq. With fires to hoverboards, cell phones, and other products routinely in the news, questions arise as to whether or not a retailer and manufacturer have a post-sale duty to warn consumers of dangers to its products. Virginia law on this point is muddled, and the Virginia Supreme Court has never provided a direct answer. However, the US District Court in the Eastern District of Virginia had a chance to grapple with this very question. In Estate of Rodriguez v. Diehl Woodworking & Machinery, Inc., 2016 U.S. Dist. LEXIS 103434, the Plaintiff was killed when a ripsaw produced a kickback, sending a sliver of wood out of the machine, and into his head.  His estate sought recovery against the manufacturer under general negligence and for the failure to warn post sale. Under Virginia law, there are only three theories to recover under a products liability claim: 1) negligent manufacture; 2) negligent design; or 3) failure to warn. Morgan Indus., Inc. v. Vaughan, 252 Va. 60 (1996).   When faced with a general negligence claim, a Virginia court will attempt to fit the plaintiff’s claims into one of those three categories. If the court cannot do so, the plaintiff’s claim must fail. Sykes v. Bayer Pharms. Corp., 548 F. Supp. 2d 208 (E.D. Va. 2008).  Under a failure to warn claim, a plaintiff must show that the manufacturer knows or has reason to know that the product is dangerous for its anticipated use; has no reason to believe that users will know of the product’s dangerous condition, and fails to take reasonable care to warn of...

Will an employee driver’s report of an accident be used against him at trial? The discoverability and admissibility of prior written statements by a party

Written by Kevin Kennedy, Esq. Edited by Bill Pfund, Esq. Most companies that employ a fleet of vehicles have internal policies in the event of an accident.  Drivers are often required to fill out an accident report describing how the incident in question occurred.  While it is good practice for companies to gather as much information as possible and preserve evidence from an accident, incomplete accident descriptions contained in a driver’s report can become a sore spot in litigation.  Plaintiff’s attorneys frequently attempt to use a limited written description of the accident as proof that additional accident details relating to the plaintiff’s actions or some other affirmative defense are invented facts.  If a driver’s initial report omits a significant aspect of the defense’s theory of the case, it is worth exploring avenues for prohibiting use of the statement at trial. A preliminary question for the defense is whether the accident report is discoverable or privileged.  Virginia courts have not provided a bright line rule that dictates when efforts by a defendant or the defendant’s insurer to preserve evidence related to an accident are deemed to be action taken in anticipation of litigation, and therefore privileged.  Instead, a Virginia court will ask if “it was reasonably foreseeable that litigation would ensue at the time the statement was taken.”  Whitehurst v. Lloyd, 37 Va. Cir. 224 (Loudoun 1995).  This analysis depends on the facts of each case, but as a general rule “routine investigatory reports made and prepared without some minimal involvement of counsel are not protected.”  Thompson v. Winn Dixie Raleigh, Inc., 49 Va. Cir. 115 (Chesterfield 1999).  This precedent...