Virginia Lawyers Weekly

Sherman Whitaker was a longshoreman injured while working on the defendant’s vessel at Portsmouth Marine Terminal on Aug. 14, 2002. Plaintiff fell seven feet onto the deck of a the vessel through a catwalk while unlashing cargo. He sustained a neck and back injury and was treated at the emergency room and released.

Plaintiff was later treated by Dr. Arthur Wardell, an orthopedic surgeon, for multiple injuries including neck strain and was out of work for 29 weeks. On March 2, 2003, the plaintiff returned to work on light duty as a longshoreman.

He was subsequently diagnosed with two herniated discs in his neck at C5-C6 and C6-C7. Dr. Abbott Byrd, spine surgeon, recommended surgery and the plaintiff refused and continued to work light duty until he could no longer perform his duties as a longshoreman.

On June 1, 2005, he retired as a longshoreman as a result of the disability due to the ruptured discs in his neck. The plaintiff was 60 years old at the time of trial and is permanently disabled from work as a longshoreman.

Plaintiff originally filed an action in Portsmouth Circuit Court for $74,000 to avoid diversity jurisdiction of the federal court.

Plaintiff was represented by other counsel who failed to have the trial court enter an order to increase the amount sued for prior to trial. The trial court refused to allow an amendment increasing the amount sued for on the grounds the amount sued for effectively denied the defendant the substantive right of removal to federal court.

Plaintiff discharged his attorney and retained William D. Breit to represent him. The trial court again refused to increase the amount sued for and the case was tried in Portsmouth Circuit Court, at which time the court found in favor of the plaintiff and assessed his damages at $74,000.

On appeal, the Supreme Court of Virginia reversed the judgment and remanded the case for a new trial on the issue of damages only. The Supreme Court found that the defendant was not prejudiced by the amendment to increase the amount sued for and the defendant’s failure to remove the case to federal court was a result of defense counsel’s failure to do so in a timely manner. Whitaker v. Heinrich Schepers (VLW 008-6-066).

At the subsequent trial in Portsmouth Circuit Court, plaintiff’s treating physicians testified that the plaintiff was totally disabled from work as a longshoreman as a result of two herniated discs in the neck. Other orthopedic experts corroborated the testimony of the treating physician, including Dr. J. Abbott Byrd III and Dr. David Goss, both of whom testified that the plaintiff would probably require cervical fusion sometime in the future.

Dr. John Wagner, an orthopedic surgeon had been retained by the employer to conduct annual physical examinations, and determined on a yearly basis that Mr. Whitaker continued to be unfit for employment as a longshoremen. The defense called Dr. Steven Blasdell, orthopedic surgeon, who testified the plaintiff never sustained a neck injury as a result of the fall, and all of his medical problems were a result of a pre-existing condition of cervical disc disease.

After a three-day trial, the jury returned a verdict in favor of the plaintiff in the amount of $5,000,000. There is an outstanding workers’ compensation lien with P&O Ports of Virginia, Inc. in the amount of $360,000, which benefits will continue subject to a credit for proceeds received by the plaintiff as a result of the jury verdict.

[09-T-099]

Type of Action: Personal injury – longshoreman
Type of Injuries: Herniated cervical disc C5-C6, C6-C7
Name of Case: Sherman Whitaker v. Henrich Schepers GMBH & Co. KG
Court: Portsmouth Circuit Court
Case No.: CL04-0201
Tried Before: Jury
Name of Judge: The Honorable James C. Hawks
Special Damages: $62,000 medical; $66,000 future medical;, $157,000 lost wages; $800,000 projected future lost wages
Verdict/Settlement: Verdict
Amount: $5,000,000
Plaintiff’s Experts: Dr. J. Abbott Byrd III, Dr. David Goss, Dr. John S. Wagner, Dr. Arthur W. Wardell
Defendant’s Experts: Dr. Steven C. Blasdell, Dr. Felix M. Kirven
Highest Offer: None
Lowest Demand: $3,000,000
Plaintiff’s Attorney: William D. Breit, Virginia Beach

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