Virginia’s Largest Verdicts of 2015

Virginia Lawyers Weekly presents its compilation of “Virginia’s Largest Verdicts of 2015.”

As in past years, the criteria for the list are simple:

1. The verdict must be for at least $1 million.
2. The verdict was returned by a jury in Virginia, not a judge.
3. The verdict was returned in the calendar year 2015.

The 2015 survey features 14 verdicts, down from 22 last year. There were 18 million-dollar verdicts in 2013, 20 in 2012, 20 in 2011, 22 in 2010, 21 in 2009, 15  in 2008, 20 in 2007 and 29 in 2006.

The largest verdict on the 2015 list is an intellectual property case out of the U.S. District Court in Alexandria. A jury handed down a $25 million against an Internet service provider in an online music piracy case. This was the only eight-figure verdict reported in 2015.

The largest personal injury case on this year’s list was awarded to a woman who was struck by a city bus while crossing the street. An Alexandria Circuit Court jury returned a verdict of $4.5 million to the plaintiff.

Three of this year’s top verdicts were tried in federal court. Three of the cases were tried in Fairfax Circuit Court, which was the only jurisdiction to appear more than once on the 2015 list.

Six of the 14 cases were medical malpractice actions, four of which involved allegations of surgical negligence.

Three cases stemmed from automobile accidents and two involved business disputes. Other cases included a maritime action, products liability case and a wrongful repossession. Three cases had a wrongful death element.

We compiled this list throughout the year and made a final appeal in December for qualifying verdicts. If you have a verdict that should be included, please let us know; we will include it in the online version of the 2015 survey.

#1     $25 Million

Cable company loses jury trial in music piracy case

BMG Rights Management v. Cox Communications
Type of case: Intellectual property
Court: U.S. District Court, Alexandria
Attorneys: Jeremy D. Engel, Michael Allen, et al., Washington

An Alexandria federal jury handed down a $25 million verdict against Cox Communications in an online piracy case.

Music company BMG alleged that the cable company knew its customers were downloading content illegally, but did not issue warnings or attempt to stop their behavior. In September, U.S. District Judge Liam O’Grady found that Cox was not protected by the Digital Millennium Copyright Act’s “safe harbor” provisions.

The jury found that Cox customers infringed on BMG copyrights by using BitTorrent systems to share BMG’s songs, and that Cox was liable.

Industry experts believe this verdict will lead to more copyright infringement notices from Internet service providers, and may even lead to ISPs cutting off service to repeat offenders.

#2     $4.864 Million

Telecom company alleged theft of trade secrets

Tulynet FZ LLC v. Nemetisheva v. Barmawi
Type of case: Business tort
Court: Fairfax County Circuit Court
Attorneys: Rebecca Bricken Segal, John H. Hawthorne, Aaron C. Cummings, James B. Kinsel and Brian F. Chandler, Tysons Corner

A Fairfax County jury found for a telecommunications company on allegations that its competitor stole confidential trade secrets and used them to interfere with existing business contracts.

The plaintiff, World Telecom Exchange Communications and its parent company Tulynet FZ, operate a business that buys and sells telephone minutes for calls connecting to developing countries. In January 2011, WTXC’s CEO, CFO and other key management left the company after starting a similar business designed to compete directly with WTXC.

WTXC and Tulynet sued the former employees and new companies for conspiring to put WTXC out of business by misappropriating confidential trade secrets, including business projections and information on their most profitable customers. While some of the defendants were still employed by WTXC, a dummy login was created to access WTXC’s proprietary pricing database, allowing the information to be accessed hundreds of times in the six months following the defendant employees’ departure. WTXC alleged that the defendants used this information to undercut WTXC’s prices with its key customers.

At trial, the jury found for the plaintiffs on the violation of the Virginia Business Conspiracy Statute, misappropriation of trade secrets and tortious interference with business expectancies, and awarded $2.682 million in compensatory damages; $500,000 in punitive damages; and $1.682 million in attorneys’ fees, subject to post-trial motions.

 # 3     $4.5 Million

Bus driver with accidents on record struck pedestrian

Galloway v. Alexandria Transit Company
Type of case: Personal injury
Court: Alexandria Circuit Court
Attorney: Joseph Cammarata, Washington

An Alexandria jury awarded $4.5 million to a woman who was struck in a crosswalk by a bus driver with multiple accidents on her record.

The plaintiff was about three-quarters into a crosswalk near the King Street Metro Station in Alexandria, when she was struck from behind by a left-turning bus. The impact forced the plaintiff under the front driver’s-side tire of the bus, where she remained trapped for about one minute. Due to the crushing injury, plaintiff suffered extensive nerve damage to her right leg, including an internal degloving injury. Plaintiff, a 55-year-old corporate relations specialist, was deemed unemployable due to her injuries.

Video of the incident, which was captured by three busses, established that the defendant driver doubled her speed from the double yellow line to the moment of impact, and that she was not looking at the road ahead.

Initially, the plaintiff only alleged negligence against the driver and the defendant bus company. However, discovery revealed that the driver had been in four other preventable accidents – including one with a pedestrian – in a three-year span while employed by the bus company. Plaintiff amended her complaint to allege claims of negligent retention and entrustment.

Defense of the case focused on contributory negligence, and defense counsel argued that the plaintiff did not look before she stepped into the crosswalk.

At trial, the jury found for the plaintiff on all claims and awarded $4.5 million.

#4     $3.75 Million

Seaman prevails in retrial of rape case

Seaman Doe v. Maersk Line Ltd.
Type of case: Maritime law
Court: Portsmouth Circuit Court
Attorney: James L. Chapman IV, Norfolk

After the Supreme Court of Virginia ordered a new trial following a $25 million verdict, a former ship crew member who claimed he was raped in a foreign port won a $3.75 million verdict from a Portsmouth jury.

The seaman alleged the shipping company he worked for failed to provide treatment after he said he was beaten and raped by men who appeared to be police officers while he was on shore leave in South Korea. After returning to the ship, the plaintiff was fired for being intoxicated, but he claimed his tormentors had forced him to drink alcohol.

At his first trial in 2010, a Portsmouth jury awarded $20 million in compensatory damages and $5 in punitive damages. The trial judge set aside the punitive award and cut the compensatory damages to $2 million.

The following year, the Supreme Court of Virginia reversed the judgment and ordered a new trial, which was held in March 2015. The jury awarded the plaintiff $3.75 million.

#5     $3.5 Million

Teacher severely injured by drunken driver

Rios v. Hicks
Type of case: Personal injury
Court: Newport News Circuit Court
Attorneys: Edwin S. Booth and Erik C. Porcaro, Virginia Beach

A teacher who suffered massive injuries after being hit by a drunken driver has recovered $3.5 million.

The accident occurred on a residential street with a posted speed limit of 35 mph. The defendant crossed the double yellow line and struck the plaintiff head-on. The defendant admitted he had taken his eyes off the road to check his cell phone, but a responding police officer testified that the defendant exhibited signs of intoxication at the scene. An empty vodka bottle was recovered from the defendant’s backseat. Approximately two hours after the accident, the defendant’s blood was drawn at the hospital, revealing a blood alcohol content of .09. An expert forensic toxicologist opined that the defendant had a .11 to .13 BAC at the time of the crash.

The plaintiff suffered numerous orthopedic, internal and soft tissue injuries. She spent two weeks in the hospital, followed by several months in a rehabilitation facility. As a result of the accident, she was forced to take a one-year leave of absence from her work as a public school teacher. She has returned to teaching, but still suffers from constant pain and occasional seizures.

The jury returned a verdict of $3.5 million, $1 million of which represents a punitive award.

#6     $2.75 Million

Man died of pulmonary embolism weeks after ER visit

Bagheri v. Bailey
Type of case: Medical malpractice
Court: U.S. District Court, Abingdon
Attorneys: Benjamin D. Byrd, Charles H. Smith III and Andrew M. Bowman, Roanoke

An Abingdon federal jury awarded $2.75 million to family members of a patient who died of a pulmonary embolism despite an emergency room visit several weeks prior.

The decedent went to the Russell County Medical Center with complaints of chest and back pain, shortness of breath, nausea and fever. He was diagnosed with acute bronchitis and released that evening. Less than a week later, he and his family moved to Idaho. Two-and-a-half weeks after his hospital release, the decedent again had shortness of breath, and died shortly after his arrival at the hospital. An autopsy revealed pulmonary artery thromboembolism and bilateral pulmonary infarcts.

Plaintiff contended the emergency room physician at the Russell County hospital should have recognized the dangerous blood clot and resulting lung condition, and pursued further testing. The parties disputed whether the decedent had mentioned to the doctor that he was planning to move to Idaho in just a few days, as long travel is a risk for blood clots.

Earlier in the case, a jury imposed liability on the doctor’s staffing agency, along with the doctor. A federal judge determined that diversity jurisdiction existed to keep the case in federal court.

After a four-day trial, the jury handed down a $2.75 million verdict. The family’s recovery is limited to $2.05 million under Virginia’s medical malpractice cap.

 #7 (tie)     $2.5 Million

Man burned to death while operating ride-on mower

Bilenky v. Ryobi
Type of case: Products liability, wrongful death
Court: U.S. District Court, Norfolk
Attorneys: Richard N. Shapiro, Virginia Beach; Rob C. Sullivan, Kansas City, Missouri; Patrick J. Austin, Virginia Beach

A jury in Norfolk federal court awarded $2.5 million for the wrongful death of an 88-year-old man who died when a Ryobi riding lawn tractor he was using exploded and burned him to death.

Plaintiff contended that Ryobi knew that the design of the plastic fuel tank and fuel line connection on the company’s ride-on mower was insecure, and Ryobi was aware of the risk of gas leakage and sudden fire. In fact, Ryobi made a newly designed fuel tank available within one year of the decedent’s purchase, but consumers were never told of the safer tank.

For two years, Ryobi denied that any other similar lawn mower fires occurred prior to the decedent’s death. However, evidence showed another Ryobi motor fire had occurred in Indiana five months before the fire that claimed the life of the decedent. This evidence was not produced until two business days prior to trial. A discovery abuse hearing was held the day before trial, which resulted in the court excluding one of Ryobi’s experts, who had testified in deposition that there were no prior fires. Plaintiff learned that the expert had, in fact, investigated the Indiana fire after opposing counsel hit “reply to all” and his email was sent to plaintiff’s counsel.

The trial lasted five days. In an unusual move, the plaintiff won the right to ask the jury for a definite amount of damages during closing arguments. The jury returned a $2.5 million verdict, finding Ryobi negligent. The jury found that Home Depot, which sold the mower to the plaintiff, was not liable.

#7 (tie)     $2.5 Million

Driver run off road by tractor-trailer

Earls v. Arthur Smith Trucking Inc.
Type of case: Personal injury
Court: Botetourt County Circuit Court
Attorneys: Jonathan S. Kurtin and Gordon H. Shapiro, Roanoke

A driver who was run off the road by a tractor-trailer was awarded $2.5 million by a Botetourt jury.

The plaintiff’s car was sideswiped twice by a tractor-trailer rig on I-81 North in Botetourt County. The impact caused the car to run off the road and run into a median strip.

The plaintiff suffered neck injury, headaches, a right knee injury that required surgery and the exacerbation of a pre-existing left knee and back condition, which required significant surgery.

#9     $2.092 Million

Wrongful repo damaged businessman’s reputation

Diggs v. Burke
Type of case: Wrongful repossession, trespass and conversion
Court: Richmond Circuit Court
Attorney: A. Blake Gayle, Richmond

Seventeen years after a vehicle repossession went awry, a Richmond jury awarded $2.092 million to a Williamsburg businessman who lost clients due to the repo company’s actions.

The plaintiff’s Jeep Cherokee was wrongfully possessed in 1998. The repossession stemmed from a dispute with the bank over whether the plaintiff had fully paid off the vehicle. When the defendant tow truck driver came onto the plaintiff’s property, the plaintiff made it clear that the defendant should cease and desist. However, the defendant proceeded to execute the repossession, using his tow truck to push another of the plaintiff’s vehicles out of the way and endangering the plaintiff’s 10-year-old daughter in the process. Plaintiff – a former sheriff’s deputy – drew his service weapon and fired a single shot into the tow truck’s rear tire.

False statements made to police by the defendants led to criminal charges against the plaintiff that were ultimately dropped, but not until after several articles had appeared in local newspapers outlining the charges against the plaintiff. Plaintiff testified he lost major business accounts as a result of the negative publicity. He estimated a loss of $1 million in gross income.

The jury returned a verdict of $2,092,750.80 against the tow company, the tow truck driver and the driver’s helper.

#10     $1.75 Million

Botched knee replacement resulted in amputation

Reeder v. Boatright
Type of case: Medical malpractice
Court: Augusta County Circuit Court
Attorneys: Lee Livingston, Yvonne T. Griffin and Lisa Brook, Charlottesville

A woman who lost her leg due to complications from a knee replacement was awarded $1.75 million. This is believed to be the largest verdict handed down in Augusta County.

Plaintiff underwent a bilateral knee replacement surgery, during which, her orthopedic surgeon lacerated the popliteal artery on the first knee. Injury was diagnosed in the recovery room but a vascular surgeon’s attempt at a repair failed, and the patient underwent amputation on postop day four.
On pretrial motions, evidence of “risks of procedure,” “known complication,” and similar terms were excluded from evidence. The court excluded evidence the defendant had never had this complication before.

Plaintiff’s vascular surgery expert undermined defense causation arguments based on the treating vascular surgeon’s notes saying the patient had significant peripheral vascular disease, which complicated part of a bypass procedure designed to bypass the injury and save the leg.
The carrier refused to make an offer for months, arguing the plaintiff’s demand of $1.7 million was too high for Augusta County. The jury returned a verdict of $1.75 million after a five-day trial, almost a full day of which was deliberations.

#11     $1.7 Million

Podiatrist severed tibial nerve during foot surgery

Mahoney v. Simon
Type of case: Medical malpractice
Court: Virginia Beach Circuit Court
Attorney: Robert J. Haddad, Thomas B. Shuttleworth and Edwin J. Rafal, Virginia Beach

A Virginia Beach jury returned a $1.7 million verdict in favor of a man whose tibial nerve was severed during an ankle replacement.

The defendant podiatrist performed the total ankle replacement on the plaintiff. The allegation in the case was that the defendant lost control of the saw during the procedure and inadvertently severed the nerve. Plaintiff ended up with significant residual pain in the affected foot.

The defense in the case was that the nerve was in an aberrant anatomical position, and although the defendant maintained control of the saw, the nerve was severed due to its unusual position.

Plaintiff’s expert testified that there was no evidence that the nerve was in an aberrant anatomical position.

After two and a half days of trial, the jury deliberated for approximately two hours before returning a verdict of $1.7 million.

#12     $1.6 Million

Unnecessary surgery led to vision impairment

Type of case: Medical malpractice
Court: Fairfax County Circuit Court
Attorney: Michael J. Shevlin, Fairfax

A woman who lost her job due to vision impairment from an unnecessary surgery has recovered $1.6 million from a Fairfax jury.

The plaintiff suffered permanent central vision loss in her right eye following a vitrectomy performed by the defendant. The medical literature and the plaintiff’s experts supported the view that the surgery was only necessary if a patient suffered a decrease in visual activity and/or visual distortion. It was undisputed that the plaintiff suffered neither of these two symptoms.

The defendants admitted liability prior to trial, so the trial focused solely on the scope of the plaintiff’s damages. The plaintiff, a pharmaceutical sales rep, was required to drive a company-provided car daily to service sales accounts. After suffering vision loss, the plaintiff was involved in two minor accidents while driving the company car for work purposes. In response, the company asked her not to return to work and placed her on short-term disability.

At trial, the plaintiff alleged that she would not be able to return to her employment. A vocational rehabilitation expert opined that the plaintiff was employable in other capacities in which she was not expected to drive as an essential function of her employment. The defense argued that Virginia law permitted driving with single eye vision loss.

#13     $1.5 Million

Infant delivered stillborn after unsuccessful VBAC attempt

Type of case: Medical malpractice
Court: Chesapeake Circuit Court
Attorney: Charles J. Zauzig III, Melissa G. Ray and Alexandra E. Busch, Woodbridge; Lisa O’Donnell, Virginia Beach

A Chesapeake jury awarded $1.5 million to a mother who delivered a stillborn fetus after an unsuccessful VBAC attempt.

Plaintiff had previously delivered by Caesarean section and decided to attempt a vaginal birth after Caesarean section. As the plaintiff started pushing and labor continued to progress, numerous signs of fetal distress were documented on the fetal heart rate tracings. The defendant ordered the plaintiff to stop pushing, but an hour and a half later, a nurse told the defendant that the unborn baby was having variable heart decelerations. The defendant did not review the fetal monitoring strips himself. Instead, he gave orders for the plaintiff to begin pushing again. Nearly an hour later, the defendant gave orders for the plaintiff to stop pushing due to a non-reassuring fetal heart rate, and ordered a Caesarean section. The plaintiff delivered a stillborn male, and efforts to resuscitate the baby were unsuccessful.

Plaintiff’s expert testified that the defendant should have closely watched the fetal heart rate monitoring after he first advised the plaintiff to stop pushing. Plaintiff’s experts further testified that the defendant should have ordered a Caesarean section around the time he ordered her to begin pushing again. Had the baby been delivered approximately an hour earlier, experts claimed, the baby would have been born alive and well.

#14     $1.3 Million

Surgeon operated on wrong breast during reconstruction

Brown v. Allison
Type of case: Medical malpractice
Court: Fairfax County Circuit Court
Attorney: Edward L. Weiner, Fairfax; Scott M. Perry, Arlington

A Fairfax jury handed down $1.3 million to a woman who required multiple additional surgeries after the defendant operated on the wrong breast. The case was a retrial from a jury that hung 5-1 in the plaintiff’s favor.

Plaintiff had a double mastectomy for unilateral breast cancer. She subsequently underwent breast reconstruction, which required multiple surgeries. During the last surgery, the defendant operated on the wrong breast.

The central defense was that the plaintiff had signed a consent form allowing “revision of bilateral breast reconstructions,” and thus had consent to work on both breasts. Plaintiff was able to show that a broad consent form meant nothing, especially where many other medical records supported plaintiff’s contention that the surgery was only to be on one side. Most damaging was the doctor’s own operative report, which indicated he only marked one breast prior to surgery while the patient was awake.

Plaintiff proceeded on two theories: battery (no consent) and lack of informed consent. The jury deliberated for a little over one hour before awarding more than the plaintiff asked for in closing.

Other large verdicts of note

Editor’s note: Several cases submitted in 2015 caught our attention, but didn’t quite meet the criteria we use for our list of the top Virginia jury verdicts.

Bankruptcy judge hits U.S. business partner $2.6 million

Two Afghani businessmen have recovered $2.6 million from their Fairfax-based partner, who allegedly used company money for online stock trading.

Plaintiffs and defendant co-owned Rosta Construction Company. Rosta won a subcontract to build out seven buildings at the Kabul International Airport. Construction was managed and overseen by the two plaintiffs in Afghanistan. The defendant handled the finances from the U.S. side.

Defendant, on behalf of Rosta, received $7,331,633 from the general contractor. Defendant transferred $2,644,500 of Rosta money to a TD Ameritrade trading account in his name. Over the course of two and a half years, defendant lost more than $2 million on options contracts.

Defendant alleged that that the partners had full knowledge of his investment of the funds, and argued that the reason the account was not in the name of Rosta was because the two plaintiffs did not have Social Security numbers.

Evidence at trial showed that while there were more than 10,000 emails between the parties, there were no email communications mentioning the TD Ameritrade account. The court found that the Afghani partners had no knowledge of the defendant’s use of the Rosta money.

The case was tried in U.S. Bankruptcy court before Judge Robert Mayer. Plaintiffs were represented by Fairfax attorneys Nathan D. Baney and J. Chapman Petersen.

After a three-day trial, the court ruled that the defendant owed plaintiffs $2,644,500, and found that amount to be nondischargeable under 11 U.S.C. § 523(a)(4).

Judge awards $9.4 million in corporate merger case

A Fairfax County circuit judge awarded $9.4 million to an aircraft manufacturer burned in a merger deal.

Airbus Americas Inc. purchased Metron Holdings in 2011 for about $75 million. In the merger agreement, Metron made representations and warranties to Airbus about Metron’s financial condition. The shareholders agreed to indemnify Airbus for any breaches of those representations and warranties.

In 2012, Airbus became concerned that Metron was not performing as expected after the merger, and that the company was losing money. Airbus claimed it found undisclosed liabilities related to a Metron software agreement.

After hearing evidence in an 11-day trial, then-Fairfax Circuit Judge Jane Marum Roush awarded Airbus $9,414,700 in indemnification.

In her last court hearing as a Fairfax County judge, Roush, now a Virginia Supreme Court justice, allowed $3.86 million in fees and expenses to the legal team representing Airbus.

Local counsel for Airbus was Blankingship & Keith of Fairfax.

Calif. appeals court reinstates $6.5 million verdict

In 2006, the plaintiff, a 79-year-old San Diego man with borderline type II diabetes, was prescribed the oral antidiabetic drug Actos, manufactured and sold by Takeda Pharmaceutical Company. Unknown to physicians and the public at the time, long-term ingestion of Actos causes bladder cancer.

Takeda’s own clinical studies showed up to a 600 percent increase in bladder cancer risk from taking the drug. However, the defendant allegedly altered the results to destroy statistical significance of the cancer risk, and was successful in fighting the inclusion of a bladder cancer warning on the drug label until 2011.Once the warning was added, the plaintiff’s physician discontinued the prescription. Unfortunately, it was too late for the plaintiff, who was diagnosed with bladder cancer.

Plaintiff’s Virginia-based attorneys were Michael Miller, Timothy Litzenburg and Jeffrey Travers of Orange. Plaintiff’s counsel opted to take advantage of a California statute mandating trial for litigants with less than six months to live.

The trial was held in Los Angeles Superior Court and lasted approximately nine weeks. The jury returned a verdict of $6.5 million, including $1.5 million in loss of consortium damages for plaintiff’s wife. The trial court overturned the jury’s decision, but two years later, the California Court of Appeals reversed the trial court’s decision and reinstated the $6.5 million verdict.