by KPMLAW | Jan 16, 2017 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Brian Cafritz, Esq. Recently, in Robinette v. Wal-Mart Stores, Inc., Case 2:15-cv-00003, the USDC Western District of Virginia barred a Plaintiff’s forensic engineer from testifying as to the safety of a merchandising display. This decision has helped reinforce Virginia’s rule against the method theory of liability and has further bolstered recent decisions preventing experts from expressing opinions that are not based on industry standards. In Robinette, a Plaintiff was injured when a kettlebell weight fell from a shelf onto the Plaintiff’s foot. The Plaintiff contended that Wal-Mart should have known of the dangers posed by displaying weights in this manner, and that the kettlebell shelf needed a guard railing to make it safe. Plaintiff’s expert opined that only a small amount of horizontal force was needed to tip over the kettlebell, and because there was no railing or other means to secure the kettlebells, the display was a “dangerous and defective” condition. The Court granted the Defendant’s motion to strike this expert witness and ruled that he was simply not qualified to offer opinions on whether Wal-Mart’s merchandising practices were appropriate. The Court noted that the Plaintiff’s expert was a forensic engineer. He had no specialized training or professional experience in retail sales. His training was strictly limited to engineering. The Court acknowledged that the expert had some experience working on other falling merchandise cases, but his involvement in those prior cases had been limited to calculating the impact force of the falling merchandise, not determining the general stability or safety of retail displays. As the expert did not have any relevant retail experience, he could not...
by KPMLAW | Dec 2, 2016 | Uncategorized
Busy Workers’ Compensation defense Practice Group is seeking an experienced Worker’s Compensation Legal Assistant to support attorney group. Must have 3+ years Worker’s Compensation experience. This position requires using Webfile, assisting with preparation of correspondence, discovery, motions, and pleadings; drafting subpoenas for medical records and other duties . Work is fast paced and attention to detail is critical. Duties include: Litigation support Monitoring files and dairying for deadlines Downloading and submitting documents through Webfile database Scheduling depositions and other meetings Processing and scanning mail, medical records and other documents into electronic database. Paying vendor invoices Answering phones Tracking billable time Other clerical duties, such as handling mail, faxing, scanning, using copying machine. Minimum Requirements: Motivated, strong work ethic, hard worker Organized, excellent attention to detail Good team worker, ability to work well with others Good verbal and written communication skills Computer literate Good phone etiquette Ability to work in high paced environment Work well under pressure Well-qualified applicants can submit a cover letter, resume and salary requirements to claire.carr@kpmlaw.com....
by KPMLAW | Nov 14, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Francie Belton Georges, Esq. In workers’ compensation cases, a file can remain open for years following an evidentiary hearing. In cases where the Commission enters an Award granting the employee wage-loss benefits for an indefinite period of time (referred to as an “open award”), the employee has the right to receive those wage-loss benefits for as long as the award remains outstanding or “open.” The employer and/or insurer bear the burden of filing an application with the Virginia Workers’ Compensation Commission to terminate the open award. So, how do you stop the bleeding? There are only two ways to terminate an open award: Termination by Agreement or Termination without Agreement. Termination by Agreement The easiest way to terminate the open award is by agreement. If you are lucky enough to have the employee agree that the open award should be concluded and if the employee is willing to sign a Termination of Wage Loss Award (“TWLA”), then the award can be terminated quickly and easily. Note, however, that a TWLA can be filed only when: (a) the employee has actually returned to work at a wage equal to or greater than the pre-injury average weekly wage, or (b) the employee was capable of returning to his pre-injury work (i.e., he was released to return to pre-injury work by the doctor. It does not matter if he actually does return to work. The release by the doctor is the key). In addition to the filing of the TWLA form, the employer/insurer will have to produce documentary proof of the employee’s release to return to pre-injury work. Without documentary...
by KPMLAW | Oct 17, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Danny Royce, Esq. Edited by Janeen Koch, Esq. Virginia law allows for compensatory and punitive damages against drunk drivers in motor vehicle accident cases. In order to recover punitive damages, the conduct of the defendant must be willful and wanton. There are two types of punitive damages that can be awarded in these cases – statutory and common law. This article will focus on statutory punitives and a recent amendment to the Virginia Code allowing for evidence of defendant’s post-accident conduct in affixing the amount of punitive damages to be awarded. As a preliminary matter, Virginia Code Sec. 8.01-44.5 permits awards of punitive damages for persons injured by intoxicated drivers. The statute states in pertinent part, “[i]n any action for personal injury or death arising from the operation of a motor vehicle…the finder of fact may, in its discretion, award punitive damages to the plaintiff if the evidence proves that the defendant acted with malice toward the plaintiff or the defendant’s conduct was so willful or wanton as to show a conscious disregard for the rights of others.” The statute goes on to set forth conditions, which proven at trial, are sufficient to constitute willful and wanton conduct. Pursuant to the statute, a defendant’s conduct “shall” be deemed “sufficiently willful or wanton as to show a conscious disregard for the rights of others” under the following circumstances: a) the defendant had a blood alcohol concentration of 0.15 percent or more by weight by volume or 0.15 grams or more per 210 liters of breath; b) at the time the defendant began drinking alcohol (or during the time...
by KPMLAW | Oct 17, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Brian A. Cafritz, Esq. Earlier this month the Eastern District of Virginia released its opinion in Snider-Jefferson v. Amigo Mobility Int’l, Inc., 2016 U.S. Dist. LEXIS 109319, which reaffirmed that expert witnesses cannot simply opine on their own ideas about product safety, but must instead base their evaluations upon specific industry standards. In Snider-Jefferson, a plaintiff at a Virginia Wal-Mart store was injured by another customer who was riding a motorized cart, when a sharp metal edge on the cart’s platform struck the plaintiff’s ankle. The plaintiff filed suit against Wal-Mart and the cart manufacturer, alleging that the cart had been defectively designed. Specifically, plaintiff contended the cart platform needed a soft rubber edge or other protective guard to shield the cart from customers. In support of these theories, Plaintiff designated a mechanical engineer, Dr. Bawab, who inspected the cart and created a computer model of the accident. Dr. Bawab concluded that adding a rubber bumper to Wal-Mart’s carts would have been a simple and cost effective solution which would have greatly mitigated the risk of harm caused by Wal-Mart’s carts. Defendant moved to exclude Dr. Bawab and sought summary judgment. Judge Lawrence Leonard of the USDC EDVA (Norfolk Division) granted the motion and dismissed the case. The Court noted that, “[i]n his report, Dr. Bawab did not consider any industry or government standards when assessing the cart’s design . . . . Dr. Bawab failed to perform the recommended [Underwriters Laboratory (“UL”) standard] sharpness testing on the cart’s edge, and Dr. Bawab never indicated whether UL standards required a rubber bumper.” Id. at *13. In depositions,...
by KPMLAW | Sep 12, 2016 | KPMBlog, News, Uncategorized
Written by Claire Carr, Esq. Recently, the Virginia Court of Appeals ruled that activity taking place over 30-45 minutes constituted an identifiable incident occurring at a reasonably definite time. To prove an “injury by accident” under the Virginia Workers’ Compensation Act, a claimant must show (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.” Hoffman v. Carter, 50 Va. App. 199, 212, 648 S.E.2d 318, 325 (2007). The Court of Appeals addressed this definition in Van Buren v. August County, Record No. 1975-15-3 (July 19, 2016). Robert Van Buren was a firefighter who responded to a call to aid a 400 lb. man who fell in the shower and broke his leg. Van Buren and another rescue worker used a sheet to make a sling and lifted the man out of the shower, lowered him to the floor, then onto a flat stretcher. They dragged the stretcher down the hall, hoisted him up onto a wheeled stretcher, pushed it down a hill and finally lifted the stretcher up into an ambulance. The events lasted 30-45 minutes. At no point during the actual events did the claimant feel any pain. He first noticed pain in his arm after he closed the ambulance doors. He suggested the delay was due to the adrenaline rush during the rescue. Four days later he reported pain in his shoulder, citing a 2 week history of pain which had become worse after lifting patients all day at work. He...
