Beach lawyer beats discipline charge

A Virginia Beach lawyer charged with misconduct by the Virginia State Bar has been exonerated by the VSB’s disciplinary board.

Edward F. Halloran submitted a group of medical bills for two different personal injury claims for a single client, only to have the duplicate bills disallowed by a judge in the second action. The opposing attorney cried foul, leading to the misconduct charge.

At a Jan. 25 hearing, however, a unanimous five-member VSB disciplinary panel found a lack of clear and convincing evidence of misconduct. The charges were dismissed.

Halloran was “very relieved” by the decision, according to his lawyer, Thomas B. Shuttleworth II of Virginia Beach, who said Halloran is a long-time practitioner with a good record.

The misconduct charge arose from Halloran’s representation of a Virginia Beach woman, Samantha Heare, who had the misfortune to be injured in two separate accidents about eight months apart in 2005. The first incident was a motor vehicle accident. In the second accident, Heare was riding a bicycle when she was struck by a motor vehicle.

Heare hired Halloran to represent her for both claims. He first sought compensation for the motor vehicle crash, where Heare claimed soft tissue injuries, mainly in her hip and neck.

Both Heare and Halloran acknowledged the later bicycle accident, but sought to minimize the damages from that second incident. The bike accident caused only a “small laceration and discomfort in her left knee,” according to interrogatory answers. Heare gave a similar report in a deposition.

Heare, through Halloran, claimed almost $25,000 in medical expenses for treatment received after the second accident, according to the VSB’s certification of charges.

At her deposition in 2007, Heare denied making any claim for the second accident, but one week later she filed suit based on that bicycle accident.

A few months later, the claim for the first accident settled for $35,000.

When Halloran answered discovery requests for Heare’s second accident, he included all of the medical expenses Heare had claimed in the first suit for treatment provided following the second accident, according to the VSB charge.

At a deposition in the second action, Heare described lower back pain radiating to her hips and upper legs she attributed to the second accident.

The opposing lawyer was Thomas C. Dawson Jr. of Virginia Beach. When he learned that many of the medical bills being claimed by Heare were also claimed in the first lawsuit, he asked Norfolk Circuit Louis A. Sherman to ban the use of those expenses.

Sherman did so in a March 25, 2011 opinion in Heare v. Porreca (VLW 011-8-056).

The judge did not, however, take Halloran to task or suggest he had engaged in improper practice. Halloran argued the injuries from the two accidents were “indivisible” and Heare should be allowed to submit all of the medical bills from after the second accident to let a jury apportion the damages.

Halloran pointed to a Texas Supreme Court opinion allowing joint and several liability against two separate wrongdoers, but the case involved damage to real property and the claims were brought in a single lawsuit.

“There is no reported case this Court is aware of where a plaintiff has been allowed a double recovery for the same medical expenses against separate defendants in separate cases for separate motor vehicle cases occurring approximately eight months apart,” Sherman wrote, citing three Virginia Supreme Court opinions.

Sherman cut the claimed medical expenses from $30,292.24 to $5,828.74.

The judge also allowed the defense to make reference to the first accident, saying the “claim of indivisible injuries from the first and second accidents clearly makes both accidents and the damages claimed by Plaintiff highly relevant in this case.”

Dawson, the defense lawyer for Heare’s second claim, filed the discipline complaint with the VSB, according to Shuttleworth. Dawson died in July 2011. The case remains pending with a June trial date, Shuttleworth said.

The double recovery issue is a “unique legal question yet to be resolved by the Supreme Court, Shuttleworth said. Because the case is still active, Shuttleworth said neither he nor Halloran were comfortable commenting further.

The lawyer who defended the first case, James A. Patterson, said he had no comment.

Asked about the frequency of VSB discipline charges being dismissed, VSB Counsel Edward L. Davis said the bar does not have that information.