Virginia Injury Lawyers Blog

November 27, 2017

Discovery Sanctions in Virginia Personal Injury Cases

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.”

October 25, 2017

“Fireman’s Rule” Prevents Police Officer from Pursuing Personal Injury Case

by Sidney Schupak, Esq.

When someone is injured in a Virginia car accident, they may pursue compensation for the injuries they sustained through a personal injury lawsuit. Depending on the type of accident and the relationship between the parties, there may be one or more defenses that can prevent the defendant from being found liable for the plaintiff’s injuries. One defense, called the “fireman’s rule,” is discussed in a recent appellate opinion involving a police officer who was injured in a car accident while responding to the scene of an accident.

The Facts of the Case

The plaintiff was on duty as a police officer when he received a radio call dispatching him to the scene of an accident where a motorist slid off the roadway, rolled, and ended up in a nearby field. The evidence presented showed that the motorist lost control of his vehicle when it encountered a patch of grass clippings. The clippings had been left behind when an employee of a nearby used car dealership mowed the grass and failed to clean up the clippings. A subsequent rain storm wet the clippings, which made a slick spot on the road.

As the plaintiff was responding to the scene, he encountered the area of the roadway with the wet grass clippings. The plaintiff lost control of his patrol car and ended up veering off the side of the road and into a tree, sustaining serious injuries as a result.

October 17, 2017

Expert Testimony in Virginia Medical Malpractice Cases

by Sidney Schupak, Esq.

Doctors and other medical professionals are held to a high standard when it comes to the level of care that is expected of them. Indeed, when a medical professional fails to live up to the standards to which society holds them, they may be held liable for any resulting injuries though a Virginia medical malpractice lawsuit. However, proving a case of medical malpractice requires knowledge of both the science behind the medicine and also the law that applies to medical malpractice cases.

One of the most important decisions any medical malpractice plaintiff must make is in the selection of their expert witnesses. Since most judges and jurors do not have advanced medical knowledge, courts often require plaintiffs to present an expert witness who can explain certain complex issues to the jury and offer their expert opinion. Of course, expert witnesses are also held to a high standard and must be accepted by the court before their testimony will be admissible.

A recent case illustrates the difficulties one plaintiff had when attempting to establish the elements of her medical malpractice case after the court determined that her expert witness’ testimony was not admissible.

October 12, 2017

Plaintiff’s Case Against Insurance Company Survives At-Fault Driver’s Bankruptcy Filing

by Sidney Schupak, Esq.

Insurance companies are supposed to make life after a Virginia car accident easier, although in reality, that is not always the case. In too many cases, insurance companies look for ways to avoid paying out on an accident victim’s claim, leaving the accident victim without any real means of recovery.

Earlier this month, an appellate court in Alabama issued a written opinion in a car accident case that provides valuable insight to Virginia car accident victims. The case illustrates how difficult it can be to deal with an insurance company following a car accident – even a driver’s own insurance company.

The Facts of the Case

The plaintiff was involved in a car accident with another driver and sustained serious injuries as a result of the accident. Believing that the other driver was at fault for the accident, the plaintiff filed a personal injury lawsuit against the other driver as well as that driver’s insurance company. Since the plaintiff was unsure whether the other driver’s insurance limits would cover all of his expenses, the plaintiff also named his own insurance company in the lawsuit, citing his policy’s underinsured motorist provision.

October 5, 2017

Statutes of Limitations in Virginia Personal Injury Cases

by Sidney Schupak, Esq.

When someone is injured due to the alleged negligence of another party, the injured party may be entitled to compensation for their injuries from the at-fault party through a Virginia personal injury case. All personal injury cases, however, must be filed within a certain amount of time. If a plaintiff files their case after the applicable statute of limitations has expired, the court will have no choice but to dismiss the case.

Often, when a Virginia personal injury case is filed more than two years after the date of the injury, there is significant litigation over statutes of limitations. This is because the general statute of limitations for all Virginia personal injury cases is two years. Of course, in some cases, there are exceptions to the two-year rule, but these exceptions are rarely obvious and often must be determined by the courts.

A recent appellate court opinion illustrates the difficulties two plaintiffs encountered when they filed a personal injury lawsuit after the two-year statute of limitations.

September 26, 2017

Plaintiff’s Lack of Diligence in Pursuing Claim Results in Dismissal with Prejudice

by Sidney Schupak, Esq.

When hearing Virginia medical malpractice cases, courts enforce a strict set of procedural rules to ensure that cases proceed through the system in an orderly and efficient manner. While perhaps most cases are resolved without significant litigation over one party’s compliance with a procedural rule, occasionally the question of whether a party complied with a rule is the focus of significant litigation.

Virginia procedural rules are very important because a party’s failure to follow the rules may result in serious sanctions, including the dismissal of a case or a judgment entered in favor of the opposing party. A recent appellate decision in a medical malpractice case illustrates how one plaintiff’s failure to diligently pursue her case resulted in her case’s dismissal.

The Facts of the Case

The plaintiff claimed that the defendant hospital was responsible for an injury she received while being treated at the hospital in 2003. In 2005, the plaintiff filed her first medical malpractice case against the hospital, but, since she failed to attached a required expert affidavit, the plaintiff voluntarily withdrew her case in 2007 with the intention of obtaining the affidavit and refiling the case.

September 18, 2017

Court Affirms Product Liability Case in Favor of Plaintiff, Despite Potentially Conflicting Jury Verdict

by Sidney Schupak, Esq.

When a Virginia personal injury trial has concluded, and after the jury’s verdict has been rendered, the parties have an opportunity to file post-trial motions seeking relief for perceived errors that occurred during the trial. Most often, these post-trial motions seek to preserve certain rights for appeal or seek judgment as a matter of law on claims that were not established by the evidence. A recent product liability case illustrates the complex issues that may arise when arguing post-trial motions.

The Facts of the Case

The plaintiff owned a van manufactured by the defendant. One day, as the plaintiff was driving his sons and their fellow Boy Scouts home from a camping trip, the van rolled, and the plaintiff was paralyzed as a result. The plaintiff filed a product liability lawsuit against the van’s manufacturer, claiming that the van’s seatbelt mechanism was defective and that the manufacturer was negligent for failing to conduct safety testing on the mechanism.

The case proceeded to trial, where the jury rendered a verdict in favor of the plaintiff on only the claim regarding the manufacturer’s failure to conduct safety testing. However, despite the very serious nature of the plaintiff’s injuries, the jury awarded him only $1 million for past damages. No award was provided for future damages, despite evidence that the plaintiff will suffer from permanent paralysis for the rest of his life.