Month: July 2008

A Prince William County jury has returned a $310,000 verdict for a couple who contended that they were told their new home would be built with a drainable exterior insulation and finish system (EIFS).

In fact, the house was built with a barrier EIFS, and moisture got behind the barrier and much of the wood structure of the house rotted or was damaged by mildew. EIFS is the acronym for synthetic stucco building systems manufactured under such brand names as Parex and Dryvit.

Rick and Susan Garmon spent about $220,000 to repair the damage on a home that they bought for $318,000.

The Garmons did not discover that the home had been constructed with a barrier system until August 2003, more than seven years after they had signed the contract for the home, well after the five-year statute of limitations for breach of contract had expired.

Their attorney, Dave Wise of Fairfax, filed suit against the contractor, Mike Garcia Construction Inc., alleging actual and constructive fraud and a violation of the Virginia Consumer Protection Act.

Rick Garmon testified that he was aware of problems with barrier EIFS systems and would not have signed the contract if he had known the house would be built with a non-drainable system. Susan Garmon testified that she recalled a conversation with Mike Garcia, the principal in the construction company, about weep holes and drainage, and the Garmons presented a home owner’s manual Garcia had given them that included a description of EIFS as a drainage system.

Garcia admitted he intended to use a barrier system when he built the house but denied making any misrepresentation to the Garmons. His attorney, Steve Bancroft of Fairfax, contended that the damage was the result of the failure of the Garmons to properly maintain their house.

Wise presented expert testimony that the damage would not have occurred if a drainable EIFS had been installed as originally promised.

A key issue at trial was the measure of damages. Wise contended that it should be the amount that the Garmons had spent to repair the home, while Bancroft contended that it should be the difference between the value of the property at the time of the contract and the value property would have had if the misrepresentation had been true.

Judge William D. Hamblen agreed with Bancroft, and Wise argued that the measure of damages should be the amount of the construction contract. The jury’s verdict was just $8,000 short of that amount.

The jury rejected the actual fraud and VCPA claims, but found in favor of the Garmons on the constructive fraud count, defined as “an innocent or negligent misrepresentation of a material fact.”

Hamblen entered judgment on the jury verdict on July 19, but Bancroft’s post-trial motion to set it aside is pending. Bancroft said the jury submitted questions that suggested that “they just got lost trying to figure out what would be the correct measure of damages.”

Wise and Bancroft said the case probably is among the last of residential barrier EIFS cases, which were a staple of consumer and construction litigation in the 1990s. Wise said he represented hundreds of homeowners who pursued breach of contract claims when their homes sustained damage similar to that of the Garmons’, and Bancroft represented a number of contractors.

As a consequence of that damage and resulting litigation, state law now generally prohibits use of non-barrier EIFS in new residential construction, although it allows it in commercial structures and in the repair of existing homes, and the statute of limitations for has expired for contract claims.

Fraud is much more difficult to prove than breach of contract, Wise said, and the Garmon case is somewhat unusual in that it involved an allegation of an explicit distinction between barrier and drainable EIFS.

Update: After press time for this article, Judge William D. Hamblen on July 25 concluded that the testimony of the homeowners did not support the amount of damages awarded. Hamblen affirmed the finding of liability for constructive fraud and ordered a new trial on damages. Dave Wise, the attorney for the plaintiffs, said he will file a motion for reconsideration of Friday’s ruling.

An electrician has won a $4.75 million settlement from the Missouri company that designed the overcurrent protection system for the Middle River Regional Jail in Augusta County.

Larry Shifflett suffered burns to his arms, torso and neck as he was attempting to connect a ground cable to an electrical switchboard in January 2005.

The cable slipped from his hand and struck an energized buss bar. The resulting arc generated heat in excess of 10,000 degrees and set his clothes on fire, according to Tom Oxenham, who represented Shifflett along with partners Brad Chandler and Steve Hammond.

Shifflett was flown to the University of Virginia Medical Center, where he was placed in a drug-induced coma for five weeks. He underwent painful skin grafts and physical therapy and continues to suffer from post-traumatic stress disorder, Oxenham said
Oxenham said Shifflett’s physicians have cleared him to return to restricted duty, “but he hasn’t been able to bring himself to do it” and has not worked since the incident.

Shifflett’s attorneys contended in the product liability action that Electric Power Systems International Inc. had failed to follow industry standards in setting the overcurrent protection system to cut power when there was a surge for three-tenths of a second. The proper setting should have been a tenth of a second, which would have cut the power before Shifflett could have been so seriously injured, Oxenham said.

The defendant’s attorneys contended that the longer delay in cutting power was necessary to reduce nuisance power outages because the jail operated an emergency health care system.

Shifflett’s attorneys countered with testimony from jail personnel that the facility only had an infirmary and immediately transferred any inmate with an emergency condition to a nearby hospital. Moreover, the attorneys said, the jail had battery and generator backup in the case of a power failure.

Defense attorneys also contended that Shifflett was contributorily negligent and assumed the risk of being shocked when he didn’t cut power to the switchboard before starting to work on it.

Greg Booth, an electrical engineer licensed in Virginia, testified that Shifflett had not violated any industry standards and that the settings the defendant had on the equipment were inconsistent with industry practice and engineering standards.
The company acknowledged that it was not licensed as an electrical engineering firm in Virginia, and its expert who contended that Shifflett violated industry regulations was not licensed in Virginia either.

The case was tried last month in two phases before U.S. District Judge Glen E. Conrad in Harrisonburg. A jury deliberated less than an hour after hearing testimony and arguments for three days before finding Electrical Power Systems liable for Shifflett’s injuries.

The parties reached the settlement shortly after Shifflett’s attorneys began presenting their damages case the next day.

HOT SPRINGS (AP) Democrat Mark Warner and Republican Jim Gilmore feuded July 19 over energy policy and trustworthiness in a debut debate in their race for the U.S. Senate, but neither former governor scored a breakthrough.

Gilmore, trailing significantly in polls and fundraising and badly needing a break, attacked Warner’s veracity pointedly and often, mostly on the issue of energy and the damage high fuel prices have inflicted on the economy.

Advocating aggressive oil production on the nation’s coasts and Alaska’s virgin wilderness, Gilmore labeled Warner’s murky positions as deceptive.

“Clarity is what’s necessary,” Gilmore said. “Without that clarity, you can’t trust what Mark Warner will do in the United States Senate.”

Warner said his rival’s mantra of “drill here, drill now” off the nation’s outer continental shelf and in the Arctic National Wildlife Refuge for oil and natural gas is more of Gilmore’s trademark bumper-sticker sloganeering and governance by gimmick.

Just as Gilmore’s “No Car Tax” pledge won him the 1997 governor’s election but wreaked havoc on the state budget after it was enacted, Warner claimed, Gilmore’s energy plan is simplistic, unworkable and sure to further U.S. dependency on foreign oil.

Warner last month offered measured support for lifting a federal moratorium on offshore oil exploration with states having the final say. He has stood steadfast against drilling in Alaska, a position he shares with Republican presidential candidate John McCain. His positions on producing oil offshore, however, have been more elastic.

“I favor the exploration piece but not the development piece because you’ve still got to go through the environmental hurdles,” Warner in mid-June.

A campaign ad Warner began televising last week, however, featured footage of a deep-sea oil platform as an announcer said Warner would “expand oil and gas production at home.”

So, before a crowd of several hundred lawyers attending the Virginia Bar Association debate at The Homestead, Gilmore asked Warner whether he would vote to lift the federal offshore drilling ban if elected.

“My position is that Congress should lift the moratorium on offshore oil and natural gas drilling (and) leave that decision to the states,” Warner countered. “It’s the same position I believe Senator McCain has. I don’t believe we should be drilling in ANWR because Congress has set it aside as a pristine area.”

Warner’s energy plan, however, is much broader and more detailed than Gilmore’s. He advocates cracking down on commodities speculators, expanded fuel mileage standards and greater use of telecommuting. His alternative energy ideas include solar and wind power, but also ideas that put him at odds with many other Democrats: expanded use of coal with technology to remove greenhouse gases and greater use of nuclear power.

Warner also highlighted a conspicuous difference between the two candidates’ offshore drilling proposals: states would have no say on whether oil derricks would spring up off their coastlines, or how many.

Gilmore’s advisers note the tracts off the outer continental shelf are federal land outside the jurisdictions of states. Giving states power to veto offshore production, Gilmore said, would allow them to “hold federal energy policy hostage.” But the prospect of oil rigs offshore is unsettling to Florida and other states heavily dependent on tourism.

Both men disputed each other’s gubernatorial records, President Bush’s record and their criteria for confirming U.S. Supreme Court nominees.

Warner noted that under Gilmore’s watch, the state returned more than $50 million in federal money to provide health insurance for children of poor families. He also blamed Gilmore’s zeal in advancing the car tax rollback in 2001 for exacerbating a fiscal crisis that eventually blossomed into a cumulative revenue shortfall of $6 billion over three years.

Gilmore defended his resolve to continue the car tax phase-out and accused Warner of pursuing a $1.4 billion tax hike in 2004 while hiding news from his finance secretary that the state was expecting budget surpluses from a resurgent economy.
Gilmore, whom Bush appointed in 2000 to head the Republican National Committee, defended the unpopular president, including his handling of the worsening economy.

“I believe the president has worked very hard to make sure the economy is running well with the tax cuts he put into place,” Gilmore said.

“I take that, then, as an endorsement of the last years of the Bush economic policies. I take that, then, as an endorsement of … America’s decline in standing in the world. I take that, then, as an endorsement of the fact that in the last years under the Bush administration, we have had no comprehensive energy policy,” Warner replied.

With several aging justices likely to leave the high court soon and possibly altering its ideological balance for a generation, each candidate was asked his criteria for confirming federal court nominees.

Warner said he opposed litmus tests on the most contentious issues of the time such as abortion. He also said the criteria for confirming Supreme Court candidates should focus on nominees’ records and judicial temperament.

Gilmore, however, named the court’s most conservative justices as the nominees he would support.

“Who are the judges I would try to appoint? People like (Antonin) Scalia, (Samuel) Alito, (Chief Justice John) Roberts and (Clarence) Thomas,” he said.

While one Virginia dentist celebrates his apparent vindication in a three-year struggle with the state Board of Dentistry, another plans to take his case to the Supreme Court of Virginia after rejection by the Court of Appeals in a case of alleged poor record keeping.

The exonerated dentist, Dr. Farid A. Zurmati of Fairfax County, did more than simply rebut allegations during his regulatory battle with the Board of Dentistry. He went on the offensive, filing two lawsuits against the prosecutors that he claimed had become his persecutors. He also sued his original accuser for defamation.

Although he began the contest facing allegations of dental negligence and verbal abuse in the workplace, by the time Zurmati’s case reached the Court of Appeals, the only serious allegation concerned documentation of fees charged by Zurmati. The court last month found that it was not deceptive for Zurmati to list his “customary” fee as required on insurance forms, even though patients were informed only about the reduced fee that Zurmati expected to be paid based on his agreements with health insurers.

That favorable ruling from the Court of Appeals in June led to an agreement by the state to drop the single remaining record-keeping allegation against Zurmati, according to his attorney. August McCarthy said that the deal calls for Zurmati to drop his lawsuits against state officials while the Board of Dentistry will update or remove records of its allegations from public access on the board’s Web site. “Every scrap of this has been or will be dismissed,” McCarthy said.

An assistant attorney general, Christy W. Monolo, confirmed that the case against Zurmati had been resolved, but she said that she could not provide details. Later, a spokesman for the Office of Attorney General said that several issues in Zurmati’s cases were still pending and, therefore, the office would have no comment on the matter.

The Board of Dentistry in 2005 accused Zurmati of two instances of improper dental treatment, one instance of verbal abuse to a patient, deceptive billing practices, and technical record keeping violations. After an initial hearing, the board voted to put Zurmati on probation for 18 months and fine him $1,500.

After a formal hearing, however, the board found evidence to support only the allegations relating to billing and record keeping.

After an appeal to Fairfax Circuit Court, only the billing issue and one minor record-keeping issue remained in the case.

McCarthy, Zurmati’s lawyer, said that he was shocked by the persistence of the regulators in their pursuit of Zurmati. “He was steamrolled. He had the board coming after him based on some completely unfounded allegations – and they kept coming after him,” McCarthy said.

“It took a herculean effort” to fight the allegations, according to McCarthy. “He was just one man with one lawyer and he completely vindicated himself.”

McCarthy notes that a practitioner has an uphill fight on an appeal of regulatory action. The standard is whether there was any substantial evidence to support the board’s regulatory action. “That’s a very hard standard,” he said. “They give great deference to the board.”

A three-judge Court of Appeals panel, in an opinion written by Judge Elizabeth A. McClanahan, concluded “[t]here was no substantial evidence to support the Board’s finding” that Zurmati was charging insurance companies more than the amounts he disclosed to patients.

While that decision apparently signals the end of Zurmati’s struggle with state regulators, he still has a court fight underway against a former office manager who, he claims, set the entire process in motion. In a defamation lawsuit in Fairfax Circuit Court, Zurmati accuses Alicia Gailliot of deliberately bringing false allegations to the dentistry board.

Zurmati alleges that, based on romantic rejection, Gailliot vowed to “make his life a living hell.” She went to work for another dentist who was a member (and later president) of the Board of Dentistry. She allegedly reported that Zurmati verbally abused patients and was violent in the workplace. Zurmati claims she recruited a patient to make false allegations against Zurmati and used an office employee to get copies of confidential documents.

Gailliot’s lawyer, Ben Glass, said that the outcome of the regulatory battle is not likely to affect the defamation case. One critical issue, he said, is whether Gailliot made her complaint based on malice or bad faith. If not, a statute may provide immunity.

“I don’t think the outcome of the case affects whether she had malice in the first place,” Glass remarked. As for the allegations made by Gailliot, Glass said, “We have witnesses who support her side of the story.”

Glass said the case could prove interesting because a Virginia statute states that confidential information from a health regulatory board investigation shall not “be available for discovery or court subpoena or introduced into evidence in any civil action.” Glass said that it’s not clear how the evidence of what his client said could be considered by the court.

Moreover, Glass argues that the defamation suit, if allowed to proceed, could have a chilling effect on patients and others who want to report misconduct against a health care provider. He noted that most insurance policies do not cover claims of deliberate conduct. “Why would you even make a complaint against a health care provider with that risk there?” he queried.

Cautionary tale

Another dental regulation case decided the same day by the Court of Appeals, Doe v. Virginia Board of Dentistry, sounds a cautionary note for practitioners – health and legal – before the health boards.

Proceeding under the pseudonym “John Doe,” the dentist was undermined on most of his appellate arguments. The Court of Appeals refused to consider four of Doe’s six points because he had not raised those issues when the case was still before the Board of Dentistry. The court seemed to suggest that doctors who disagree with procedures used in their board hearings would be well-advised to file motions for reconsideration when they discover procedural problems, instead of rushing off to file an appeal at the next level.

One issue that was considered involved two dental hygienists who participated in the board’s decision. Doe argued that, since not all board members were dentists, an expert was required to explain the standard of care to the non-dentist decision makers.
Writing for the entire Court of Appeals, Judge Robert J. Humphreys reviewed the laws that include dental hygienists in the regulation of dentists. “[T]hese statutes contemplate that all Board members are competent to participate in Board matters….,” he wrote.

The court found adequate support for the dentistry board’s finding that Doe’s diagnosis “lacks an adequate medical history and consists of gross generalizations lacking the detail needed to describe the … course of treatment.”

On another issue, Doe complained about procedures in his initial, informal hearing before a discipline committee. The Court of Appeals said the issue was moot. In essence, the court ruled, whatever happened in the informal hearing was annulled when Doe requested a formal hearing, where the evidence is heard over again with no regard for what happened in the first hearing.
Doe this month filed a notice of appeal to request a review by the Supreme Court of Virginia.

The “John Doe” pseudonym was allowed under the general confidentiality provisions that apply to health care regulation cases. Nevertheless, the decision gives a clue to the dentist’s identity. Humphreys’ decision notes that the case against “Doe” started with a newspaper article about a malpractice suit filed by a former patient. Based on that article and documents available on the dentistry board Web site, “John Doe” is Dr. James M. Coleman of Williamsburg.

Coleman’s attorney did not return a call for comment by press time.

A woman who claims that a surgical device malfunctioned during an operation, resulting in severe damage to both her uterus and her colon, may be prevented from suing the manufacturer of the device.

A February decision by the U.S. Supreme Court bars product liability claims against the makers of most medical devices. In that decision, the court reasoned that federal regulations preempted state law, including tort claims.
Following that high court decision, Senior U.S. District Judge Jackson L. Kiser this month dismissed the major claims in the lawsuit filed by Lois Lorraine Adkins.

The case is Adkins v. Cytyc Corp. (VLW 008-3-244).

The Pennsylvania woman sued Cytyc Corporation, alleging that she was injured permanently in a procedure using its “NovaSure” device, designed to correct heavy menstrual bleeding. As explained on Cytyc’s Web site, the NovaSure device uses radio frequency energy to permanently remove the lining of the uterus, reducing or eliminating future bleeding.

Prior to that procedure, according to Adkins’ suit, the device is designed to perform a test to ensure that the uterus is strong enough to tolerate the procedure. The suit alleged that, in a pre-surgical test, the device improperly gave a green light for surgery — it failed to show conditions that should have precluded the procedure.

Adkins’ doctor went ahead with the surgery, resulting in a thermal burn to her colon, according to the suit. Several additional surgeries allegedly were required, including a hysterectomy and a colon resection with a colostomy.

Adkins’ lawsuit alleged both that the device was faulty and that a manufacturer’s representative, who was present during the procedure, failed to ensure that the device was operating correctly and that the gynecologist was following appropriate procedures.

Cytyc’s lawyers responded by citing the recent Supreme Court decision, Riegel v. Medtronic Inc., 128 S.Ct. 999 (2008), and argued that Adkins’ product defect claims were preempted by federal regulation. Kiser agreed. He threw out those portions of the lawsuit relating to the design, manufacturing, and labeling of the device.

As the judge remarked in a footnote, the “main focus” of the suit was on a standard products liability negligence theory, and that theory was “effectively destroyed by the intervening Riegel decision.”

Nevertheless, Kiser ruled that Adkins could go ahead with her claims involving the manufacturer’s representative. Because those allegations were not as thoroughly described as the product liability claim, Kiser allowed Adkins’ lawyers to file an amended complaint to flesh out the case against the representative.

Kiser warned, however, that Adkins may shoulder a heavy burden in building a case solely on the actions of the manufacturer’s representative. Adkins’ lawyers will have to show that negligent instruction by the representative, rather than any faults in the device, was the more likely cause of the injuries.

One of Adkins’ lawyers, W. Wirt Brock of Roanoke, said that he was working on an amended complaint and hoping to prevail. “We plan to make it stick,” he said.

Brock acknowledged that the new legal landscape for medical product claims makes it tough for injured patients. He said the Adkins legal team will be closely watching another preemption case now pending before the U.S. Supreme Court. That case, Wyeth v. Levine, involves a claim against a pharmaceutical maker.

The Adkins case is scheduled for a jury trial in Danville beginning Dec. 8.

Joseph V. Gartlan Jr.

Joseph V. Gartlan Jr., an attorney and an unabashed liberal in a conservative Virginia Senate for 28 years, died July 18 from sepsis at a Fairfax hospital. He was 82.

“He was a tireless and effective advocate for the environment, the mentally and physically disabled, and for abused and neglected children,” Gov. Timothy M. Kaine said in a statement. The governor ordered state flags flown at half staff in Mr. Gartlan’s honor.

Mr. Gartlan was elected to the Senate from Fairfax in 1972 and served as chairman of three committees – Courts of Justice, Privileges and Elections, and Rehabilitation and Social Services. He also served on the Finance and Rules committees.

When he retired in 2002, he was co-chairman of the Northern Virginia delegation and was second in seniority in the Senate.

He was born in Great Neck, N.Y., and served in the Navy during World War II before earning undergraduate and law degrees from Georgetown University. He was a lawyer in the Washington firm of Melrod, Redman & Gartlan from the mid-1950s until 1986, when he retired to spend more time on his legislative work.

Mr. Gartlan is survived by his wife of 58 years, Fredona, six children and seven grandchildren.

Otis W. Nuckols

Otis Willis Nuckols, a retired attorney and insurance executive, died July 21 at his Richmond home. He was 87.

After serving in the Army in World War II, Mr. Nuckols graduated from the University of Richmond law school and began working for Virginia Farm Bureau Mutual Insurance Companies in 1951.

He retired from the company as executive vice president in 1986 and formed what is now Sinnott, Nuckols & Logan with his son-in-law, Raymond Sinnott III. The firm has a civil-litigation practice that focuses on insurance-related matters. Mr. Nuckols retired from the firm earlier this year.

Survivors include, his wife, Dorothy, a son, two daughters, six grandchildren and a great-grandchild.

The Virginia Law Foundation this month received its largest bequest ever: a $25,000 gift from the estate of attorney Ken McFarlane Smith.

Mr. Smith, a longtime Arlington lawyer, was a member of the Fellows Class of 1998 and served on the VLF board of directors from 2004-2007. He died in January of this year.

“Ken was a firm believer in supporting charitable organizations and he did throughout his long and illustrious career in both word and deed,” said John D. McGavin, executor of the Smith estate, in a statement.

The University of Richmond and the state’s Department of Criminal Justice Services is conducting Virginia’s first victim assistance academy this week. The academy will train service providers and advocates to more effectively help crime victims regain control of their lives.

Modeled after the National Victim Assistance Academy, the program will make Virginia one of 34 states to offer state-specific victim assistance training.

A multidisciplinary committee spent two years designing the program. It included representatives of the university’s schools of Arts and Sciences and Continuing Studies, the Department of Criminal Justice Services, law enforcement, prosecution, the Virginia Sexual and Domestic Violence Action Alliance, the Virginia Network for Victims and Witnesses of Crime, the Department of Corrections, the Parole Board, the Attorney General’s Office, the Criminal Injuries Compensation Fund, local victim assistance programs and crime victims. University of Richmond criminal justice professor Joan Neff chaired the curriculum development subcommittee.

“One of the first things we did was to survey over 1,300 people connected to victims’ services in Virginia. We asked them about their backgrounds and training needs. The results helped narrow our focus, concentrating on training individuals with less than three years working in the field,” said Neff.

The six-day, residential academy, which runs from July 27 to Aug. 1, will take place on the UR campus. Admission was competitive – more than 120 service providers applied for 30 slots.

The curriculum will include presentations on the history of the victims’ rights movement, the scope of crime and its impact on victims, understanding trauma, domestic violence, sexual assault, homicide, child victimization and working with special populations. Other topics range from crisis intervention and trauma assessment to bereavement, communication skills and ethics.
Plans are underway to bring the academy back to the university in 2009 and add an advanced academy for providers with more than three years of experience. Applications for the 2009 academy will be available in the spring.

Half a century after black schoolchildren and civil rights champions struggled to desegregate Virginia’s schools, statues honoring them desegregated the state Capitol grounds.

Thousands of people crowded Capitol Square in 95-degree heat last week for the dedication of the civil rights monument alongside those of Confederate icons.

The Capitol a few steps away was once the seat of Confederate government.

When a gray drape was pulled from the massive, rectangular monument, some in the crowd clapped and cheered. Some dabbed away tears.

Gov. Tim Kaine called it a proud moment in Virginia’s tragic and triumphant history. Poet Nikki Giovanni hailed it as “a celebration of the road we have traveled.”

A bronze figure featured on the monument is that of the late Barbara Johns. As a schoolgirl, she led the 1951 student walkout at all-black Robert Russ Moton High School.

Several Virginia Commonwealth University administrators are stepping down following an investigation into the improper awarding of a bachelor’s degree to Richmond’s former police chief.

University officials aren’t linking the resignations to the investigation.

Robert Holsworth is resigning as interim dean of the College of Humanities and Sciences. Michael Pratt is stepping down as interim director of the L. Douglas Wilder School of Government and Public Affairs and director of the VCU Center for Public Policy. Both will remain on the faculty.

Both were critical of the investigation into the improper awarding of a degree to Rodney Monroe, who is now police chief in Charlotte, N.C.

S. Jon Steingass resigned as dean of VCU’s University College, which awarded Monroe the degree, despite his not having met requirements for transfer students.