Virginia Injury Lawyers Blog

January 10, 2018

Virginia’s Expert Affidavit Requirement in Medical Malpractice Cases

Medical malpractice cases are often complex, and in most instances, they require the testimony of at least one expert witness to explain certain medical or scientific issues to the jury. In an effort to ensure that only meritorious cases are filed and heard by the court, Virginia law makers passed a rule requiring Virginia medical malpractice plaintiffs to obtain a certification from an expert stating that the plaintiff’s case has merit.

Under section 8.01-20.1 of the Code of Virginia, the expert certification is required in all medical malpractice cases unless “the alleged act of negligence clearly lies within the range of the jury’s common knowledge and experience.” When a certification is required, it must state that the care provided by the named defendant “deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed.”

A plaintiff’s failure to include an expert’s certification can result in the dismissal of an otherwise meritorious case. A recent case served as a major warning to one medical malpractice plaintiff, whose case was nearly dismissed with prejudice for the failure to file the necessary expert affidavit.

January 3, 2018

Virginia Product Liability Claims

by Sidney Schupak, Esq.

When a consumer purchases a product, they expect not only that the product will function as it is supposed to function, but also that it will be safe and free from potentially harmful or dangerous defects. However, history has shown that not all products are safely designed or manufactured, and sometimes a product will be damaged in transit, making it unreasonably dangerous even when used for its intended purpose. In these situations, anyone who is injured as a result of the use of the product may be able to purse a claim for compensation through a Virginia product liability claim.

In Virginia, there are several types of product liability claims that can be brought against a number of parties. For example, a claim may be brought based on the defective design of a product, the negligent manufacturing of a product, or a company’s failure to warn the consumer about a known defect. As a general rule, a Virginia product liability claim can be brought against any person or business in the product’s chain of commerce, from the manufacturer to the retailer.

A recent case illustrates the trend toward holding all actors in the chain of commerce responsible for the safety of a product.

December 27, 2017

Court Rejects Argument That Non-Signing Party Was Bound by Arbitration Agreement

by Sidney Schupak, Esq.

Arbitration agreements have become more and more common over the years, especially in certain contexts. For example, many companies are beginning to include arbitration clauses into their contracts that are provided in advance of the service the company provides. For example, it is very common to see issues involving arbitration clauses come up in Virginia nursing home cases as well as Virginia car accident cases.

Arbitration agreements, if valid, are generally enforceable. However, before a court will hold a party to their obligation to arbitrate a claim, the court must determine that the party was bound by the agreement. Obviously, signing an agreement is usually sufficient. However, in some cases, a non-signing party may be bound by an arbitration agreement as well. A recent case discusses a rental truck company’s attempts to compel a non-signing party to arbitrate a claim against the company.

The Facts of the Case

The plaintiff was a warehouse worker. One day, the plaintiff’s employer rented a truck and asked that the plaintiff deliver some merchandise to the state fair. The employee had not performed delivery services for the employer in the past, but he agreed to do so on this occasion.

December 18, 2017

Court Permits Victim of “Horseplay” to Pursue Punitive Damages Against Fellow Student

by Sidney Schupak, Esq.

Earlier this month, a state appellate court issued a written opinion in an interesting personal injury case involving a student who ran over the feet of another student while engaging in what the court characterized as horseplay. The opinion is an interesting one and raises several issues that are relevant to Virginia car accident plaintiffs, including under which circumstances punitive damages may be available.

The Facts of the Case

The plaintiff was a teenage girl who was the manager of the school’s baseball team. The defendant, a senior at the school, was a player on the team. One day, before the team boarded a bus to go to an away game, the defendant went to move his car so that he would be closer to the bus stop once the team returned.

Once the defendant reached his car and was on his way to re-park it, he saw the plaintiff walking in the parking lot. He approached the plaintiff from behind, and the plaintiff stepped aside to avoid being hit. However, the defendant’s 1.5-ton truck ran over both of the plaintiff’s feet. Another student lifted the plaintiff into the defendant’s truck to get medical attention. The plaintiff claimed that the defendant told her he was “sorry” and that he “only intended to bump her.” The defendant denied making this statement.

December 11, 2017

Court Rejects City’s Assertion of Government Immunity in Recent Premises Liability Case

by Sidney Schupak, Esq.

Earlier this month, an appellate court in Illinois issued an opinion in an interesting case that presents relevant issues to victims who are considering filing a Virginia premises liability case against a government entity. Specifically, the case deals with the state’s recreational use statute and whether the trail where the plaintiff was injured was covered under the statute. Ultimately, the court concluded that the “mixed-use” trail at issue was not covered under the statute, and thus immunity did not apply.

The Facts of the Case

The plaintiff was injured while biking on a mixed-use trail. Evidently, an area of the pavement became cracked after weeds and other vegetation grew up through smaller cracks. The result was a bumpy patch of pavement.

As the plaintiff was riding in a group with her friends, one of the bicyclists ahead of her fell off her bike after running over the bumpy pavement. The plaintiff was unable to avoid a collision with her friend and ended up falling off her bike as well. She sustained serious injuries in the fall and filed a premises liability lawsuit against the city responsible for the maintenance of the trail.

December 5, 2017

Court Discusses Landowner Liability Relating to Injuries Occurring Off Premises

by Sidney Schupak, Esq.

Earlier this month, an appellate court in California issued a written opinion in a personal injury case that required the court to discuss an issue that often arises in Virginia premises liability cases. The case involved a plaintiff who was injured while crossing the street from an off-site parking lot to the church that owned the lot. The court had to determine if the church could be held liable for the plaintiff’s injuries despite the fact that the accident occurred on a public street that was not controlled by the church.

The Facts of the Case

The plaintiff was a member of the defendant church. One evening, the plaintiff planned on attending an evening service at the church. He drove to the church and upon his arrival found that the church’s regular parking lot was full. A volunteer parking attendant directed the plaintiff to the church’s off-site parking lot across a five-lane road.

The plaintiff entered the off-site lot and parked his car. The parking lot was located mid-block, about 100 feet away from either intersection. The plaintiff exited the parking lot and, rather than walk over to the intersection to cross the street, crossed the street mid-block. As the plaintiff was crossing, he was struck by a passing motorist and seriously injured.

November 27, 2017

Discovery Sanctions in Virginia Personal Injury Cases

by Sidney Schupak, Esq.

Before a Virginia truck accident case reaches trial, it goes through several other stages. One of the most important stages of a personal injury case is the pre-trial discovery phase. During pre-trial discovery, each party is able to request certain information that the requesting party believes the opposing party has in its possession. While certain information and documents are privileged, in most cases, parties must provide what is ordered by the judge.

Of course, much of the information sought during pre-trial discovery may be considered harmful to the party ordered to release it. However, that does not change the requirement that ordered evidence be handed over to the opposing side. Indeed, under Virginia Supreme Court Rule 4:12, a court can impose a number of sanctions against a party that fails to comply with a court’s discovery order, including precluding the party from making certain arguments, admitting certain evidence, or in some cases, striking the party’s filings.

A recent appellate decision illustrates how seriously courts take discovery requests and the serious consequences one plaintiff faced when she filed notice of her expert witnesses four months after the deadline.

November 20, 2017

Plaintiff’s Lawsuit Dismissed Under Equine Liability Statute

by Sidney Schupak, Esq.

Earlier this month, an appellate court in Montana issued a written opinion in a personal injury case that arose when the plaintiff fell off a horse that was outfitted by the defendant. The case is of particular relevance to Virginia accident victims because the Virginia Equine Activity Liability Act is substantially similar to the statute in the court’s opinion.

Generally speaking, when a company provides a service, such as outfitting, the company assumes a duty to make sure the customer is kept reasonably safe. However, specific statutes may apply in certain situations, limiting a company’s duty in those situations. This case analyzed a statute specific to horseback riding.

The Facts

The plaintiff was an inexperienced rider who arranged to go horseback riding with the defendant company. The plaintiff informed the company that he did not have much experience and relied on the company to outfit him with a horse that best fit his size and experience.

November 13, 2017

Court Mandates Enforcement of Arbitration Clause in Recent Nursing Home Case

by Sidney Schupak, Esq.

One of the most hotly debated issues in personal injury law is the enforceability of arbitration contracts in cases against nursing homes and assisted living facilities. These clauses, when enforceable, prevent victims of Virginia nursing home abuse or neglect from filing a complaint in a court of law, and they require that they resolve the claim through binding arbitration.

Arbitration in and of itself is not necessarily a bad thing. However, the fact that nursing homes are able to choose the arbitrator who will hear the case leaves many wondering whether the forum is as neutral as it is claimed. There are other problems with arbitration clauses as well. For example, many times, they are buried deep in paragraphs of small text, making it unlikely that someone will see and understand what exactly they are giving up by agreeing to arbitrate their future claims.

For these reasons, courts across the country have expressed a hesitancy to enforce some arbitration clauses. However, a court will enforce arbitration clauses in some cases, especially when the clause is clearly designated, the person signing the agreement was of sound mind, and the clause itself is not substantively against public policy. A recent case illustrates the type of clause that may be upheld by the courts; however, it is important to realize that these cases are decided on a case-by-case basis, and even the most seemingly insignificant difference in facts can result in a different outcome.

November 6, 2017

Plaintiff Enters into Broad Settlement Agreement, Inadvertently Excusing Multiple Parties

by Sidney Schupak, Esq.

Last month, an appellate court in Mississippi issued an interesting opinion that should act as a word of caution to victims who are considering bringing an Indiana personal injury case. The opinion discusses the breadth of a settlement agreement entered into by the plaintiff and one of the parties she named as a defendant. Ultimately, due to the broad language included in the agreement, the court concluded that the agreement excused an additional party from the plaintiff’s case, despite that not being her intention.

The Facts of the Case

The plaintiff was walking on the sidewalk in front of an auto parts store when she stepped into a sunken hole where a utility box had been placed. The plaintiff sustained serious injuries as a result of her fall, and she filed a premises liability lawsuit against the city where the accident occurred, the utility commission that placed the box, and the auto parts store.

During pre-trial negotiations, the plaintiff entered into settlement agreements with the city as well as the auto parts store. Relevant to this case is the agreement between the plaintiff and the city. That agreement included language that released the city from liability, as well as its “successors, agents, attorneys, insurers, subsidiaries, sister or parent companies, assigns, employees, representatives, [and] stockholders.”