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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 the “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. ...

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...

We’re Not In Kansas Anymore, Toto! Can PTSD Caused by Exposure to a Tornado Give Rise to WC Benefits?

Written by Francie Belton Georges, Esq. Edited by Rachel A. Riordan, Esq. In Virginia, post-traumatic stress disorder (“PTSD”) is considered a psychological injury that may be compensable as an injury by accident in two circumstances. The first is if the PTSD develops as a result of a compensable physical injury by accident; for example, when an employee is injured in an explosion at work and then develops PTSD as a result of the traumatic event. This can also occur in the reverse, wherein the claimant suffers a psychological injury that then serves to aggravate a physical condition or manifest itself in a physical condition. In instances like this where the employee has a physical injury along with the psychological injury, the Commission evaluates whether the psychological injury is causally related to the physical injury to determine if an award of benefits is appropriate. If so, the employee can receive benefits for the psychological injury. However, in instances where the injury is only psychological and there is no accompanying physical injury, the Commission evaluates whether the claimant’s psychological injury is causally related to an “obvious sudden shock or fright arising in the course of employment.” Chesterfield County v. Dunn, 9 Va. App. 475, 477 (1990). In a recent opinion, the Full Commission evaluated a situation wherein a registered nurse, who provided at home care to her patients, was entitled to benefits for PTSD with no accompanying physical injury that occurred when a tornado touched down while the nurse was providing care at a patient’s home. Mayberry v. Gentiva Health Serv. USA, LLC, JCN VA00001211550 (June 6, 2017). The nurse arrived...

INJURY BY ACCIDENT: A SHIFT AWAY FROM “SNAP, CRACKLE, POP?”

Written by Claire C. Carr, Esq. Edited by Rachel A. Riordan, Esq. It has been long held in Virginia that to prove an “injury by accident,” a claimant must prove: (1) an identifiable incident; (2) that occurs 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.  Additionally, it has long been held that injuries resulting from repetitive trauma or cumulative events and injuries sustained at an unknown time are not considered “injuries by accident.” Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989).   In the industry, it’s been referred to as a requirement that a claimant show a “snap, crackle, pop,” or a specific moment of injury at a specific moment in time. And then came Van Buren.   Several months ago we reported on the case of Van Buren v. August County, Court of Appeals, Record No. 1975-15-3 (July 19, 2016) which addressed what constitutes an “identifiable incident” at a “reasonably definite” point in time.   Van Buren was a firefighter injured during a 45 minute rescue operation which involved many different physical tasks.  Even though he could not identify a specific moment when his injury occurred, the Court of Appeals held the 45 minute rescue operation was sudden and specific enough to constitute an “identifiable incident occurring at a reasonably definite time.”  The Court referenced the adrenaline rush during the rescue which may have masked the exact moment of injury, and held that public policy favored treating the entire 45 minute rescue as “one piece of work.”...

Can You Exclude Plaintiff’s Medical Bills at Trial if They Have Been Discharged in Bankruptcy?

Written by Jessica Relyea, Esq. Edited by Brian A. Cafritz, Esq. The question of what amount of a plaintiff’s medical bills is recoverable is an issue that comes up with regularity in all personal injury cases.  Defendants need to know how they can reduce the amount of damages a plaintiff can blackboard at trial.  In Virginia, the collateral source rule prohibits a defendant from reducing or limiting the amount of medical damages being claimed because the bills were paid in whole or in part by an insurance company, other benefit, or otherwise written off by the provider.  Acuar v. Letourneau, 260 Va. 180, 189-193 (Va. June 9, 2000).  In other words, Plaintiff can present to a jury the full retail amount of billed medical specials that he is claiming were incurred as a result of the incident.  The principle behind the collateral source rule is that a plaintiff is entitled to compensation sufficient to make him whole, but without creating a windfall.  Id. In scenarios where the balance is difficult to strike, the courts have held its better to fall on the side of allowing a Plaintiff to receive double recovery than to allow a defendant to escape liability for his wrongs.  Id. However, what happens if Plaintiff has filed bankruptcy and the medical bills that were incurred as a result of an accident were discharged?  In that scenario, Plaintiff is absolved of paying any amount on the medical specials.  Does Virginia allow a Plaintiff to still recover for those damages in a personal injury lawsuit? The answer depends on whether you are in federal or state court.  The...

Defending Cases in a Social Media World

Written by Erin Slusser, Esq. Edited by Bill Pfund, Esq. Litigating cases in 2017 is ever changing given the growth of technology and its evolving use in people’s daily lives.  This is nowhere more apparent than in the use of social media.  According to the Pew Research Center, as of November 2016, 69 % of the American public uses social networking sites.  (Pew Social Media Update 2016).[1]  While new platforms seem to pop up on an almost hourly basis, Facebook remains the predominant favorite with approximately 79% of online Americans using this site, followed by Instagram, Twitter, LinkedIn and Pinterest. Id. This prevalent use of social media presents both great opportunities and risks in civil litigation.  Individuals often provide extensive personal information about themselves and their activities on these social media platforms.  This provides unrivaled access to background information, pictures, comments, wall posts and messages that previously was unavailable to litigants. Social media appears to be fair game in the discovery process under both the Rules of the Supreme Court of Virginia and the Federal Rules of Evidence.  While there are no rules specifically addressing social media, the rules governing e-discovery provide a good framework for litigants attempting to discover information from social media platforms.  Federal Rule of Evidence 34 and Rule 4:9 of the Supreme Court of Virginia both permit discovery of electronically stored information which encompasses social media information.[2] While social media is most likely discoverable under the state and federal discovery rules, the next step is getting the useful information you obtained admitted into evidence.  Again, there is no Virginia or local federal court case specifically...

Virginia Supreme Court Announces Important New Rule Regarding Statute of Limitations for Malpractice Claims Against Attorneys

Written by W. Barry Montgomery, Esq. Edited by William J. Pfund, Esq.           The Virginia Supreme Court recently issued an opinion favorable to all persons insuring and defending attorney malpractice claims in Virginia.  In the case of Moonlight Enters., LLC v. Mroz, 293 Va. 224, 797 S.E.2d 536 (March 30, 2017), plaintiff Moonlight Enterprise, LLC (“Moonlight”) sued two attorneys, including defendant Mroz, for legal malpractice arising out of a condominium purchase transaction.  Mroz represented Moonlight in the condo purchase transaction. Two years after Moonlight bought the condo units, attorney Mroz filed a lawsuit on Moonlight’s behalf against the condo association wherein Moonlight disputed certain condo association fees.  The condo association filed a counter-claim against Moonlight. One of Mroz’ s partners, Zachary, filed a response to the counterclaim.  Soon thereafter, Zachary took over handling the litigation from Mroz but Mroz was still noted as a counsel of record in the lawsuit. The condo association prevailed on all issues in the lawsuit in January 2012 and won an award of $59,000.00 in attorney’s fees and costs. Moonlight hired new counsel to handle the appeal of the adverse judgment. In 2013, Moonlight filed a legal malpractice lawsuit against Mroz and Zachary charging Mroz with malpractice in his handling of the 2008 condo purchase transaction and charging Zachary with malpractice in his handling of the 2010 litigation against the condo association.  The trial court dismissed the 2013 lawsuit based on a statute of limitations defense. Moonlight  filed a second legal malpractice lawsuit against Mroz and Zachary on February 20, 2015, exactly three years after the entry of the final order in the unsuccessful...