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Million-dollar verdicts from 2018

trophyPresenting the 2018 compilation

Virginia Lawyers Weekly presents the survey of “Virginia’s Largest Verdicts of 2018,” our annual compilation of big jury verdicts from across the commonwealth.

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 2018.

The 2018 survey features 19 verdicts. If we have missed any million-dollar jury verdicts from 2018, please let us know. We’ll be glad to add that information to the online version of the feature so it can be as complete as possible.

And during the coming year, we would greatly appreciate hearing about verdicts that will make it into the 2019 list.

– Paul Fletcher, Publisher & Editor-in-Chief

 

1. $58.6 Million

Verdict is $58.6M in contract and antitrust case

Steves and Sons Inc. v. JELD-WEN Inc.

Type of case: Contract/Antitrust

Court: U.S. District Court, Richmond

Attorneys: Lewis F. Powell III, Maya Eckstein, Jack Martin, Meghan Podolny, Josh Hanbury, and Allie Taylor, Richmond.

As originally reported by VLW on Feb. 22, 2018: A Richmond federal jury returned verdicts this month totaling $58.6 million for a door manufacturer that claimed it was getting unfairly squeezed by a supplier.

The jury found that Oregon-based JELD-WEN violated both antitrust law and a supply contract when it acquired a competing supplier and raised prices for materials it sold to Texas-based Steves & Sons.

Steves makes and sells interior molded doors. It has a major plant in the Richmond area. JELD-WEN, also a seller of doors, supplies doorskins to Steves. Doorskins are the exterior part of a molded door that can make it resemble a traditional solid wood door.

Steves sells doors, but does not make its own doorskins. It buys them from suppliers like JELD-WEN, according to facts cited in an opinion from Senior U.S. District Judge Robert E. Payne.

JELD-WEN, by contrast, is a vertically integrated door maker – it makes its own doorskins and uses them to turn out finished doors.

Before 2012, Steves bought doorskins from three main suppliers: JELD-WEN, CraftMaster Manufacturing Inc. and Masonite. That year, Steves signed a long-term supply agreement with JELD-WEN. A month and a half later, JELD-WEN announced it would acquire CMI.

Steves said the merger empowered JELD-WEN to raise prices, coordinate with Masonite to limit doorskin supplies to the market and, in 2014, to terminate the supply agreement with Steves.

Steves’ complaint also accused JELD-WEN of lowering the quality of the supplied product and withholding payments for defective products.

On Feb. 15, after an 11-day trial, a jury agreed with Steves. The jury said Steves was entitled to damages of $12,151,873 for past antitrust injuries and $46,480,581 for future lost profits.

The jury also said Steves suffered the same $12,151,873 in damages for breach of its contract with JELD-WEN.

 

2. $37,835,259.23

Truck driver badly hurt after tire failed

Robert Benedict v. Hankook Tire Company Limited, et al.

Type of case: Product Liability

Court: U.S. District Court, Richmond

Attorneys: Jonathan E. Halperin, Isaac A McBeth and Andrew Lucchetti; Jay Halpern.

Robert Benedict, the plaintiff, had been employed as a commercial truck driver for a company named Essex Concrete. On Nov. 14, 2014, plaintiff departed on his route for the day, which involved driving a fully loaded cement mixer to a delivery site. While traveling northbound on Route 288, the right front steer tire of the cement truck experienced a catastrophic tread separation and air-out. This caused the vehicle to pull to the right and collide with an embankment. As a result of the collision, plaintiff suffered numerous injuries to include fractures of 12 ribs, three vertebrae, and his arm; a ruptured spleen and collapsed lung; brain injury; and permanent spinal cord injury causing quadriplegia. The tire had been manufactured by defendant Hankook Tire Company, Ltd., and distributed in the United States by its domestic subsidiary, Hankook Tire America Corporation.

At trial, plaintiff contended that the tire had been defectively manufactured in that there was incomplete adhesion between the internal components of the tire and the tire’s inner liner was too thin to prevent excessive air permeation into the other rubber components of the tire – thereby further deteriorating those components over time. The evidence at trial revealed that the tire was still well within its useful tread life at the time of the tread separation.

Defendants claimed that the tire at issue was not defective and, in fact, had been well-manufactured. To this end, defendants also introduced evidence of their various quality assurance processes to further dispute any notion that the tire contained a manufacturing defect. Defendants contended that the cause of the catastrophic tread separation was the tire had suffered an impact with an unknown object approximately 200 miles prior to the tire’s failure on Nov. 14, 2014.

After deliberating for approximately six hours, the jury returned a verdict for the plaintiff in the amount of $37,835,259.23.

 

3. $20.5 Million

Fairfax jury gives $20.5M for failure to diagnose tumor

O’Connell v. Kaiser Foundation Health Plan of the Mid-Atlantic States, Mid-Atlantic Permanente Medical Group and Bassema Antabli, MD

Type of case: Medical Malpractice

Court: Fairfax County Circuit Court

Attorneys: William Wirt Brock IV and Douglas M. Coleman, Alexandria

The case involved a Kaiser Permanente oncologist providing poor follow-up care to a post-mastectomy patient with silicone implant reconstruction. Ultimately the patient developed a desmoid tumor, medial to her right implant, that grew uncontrollably to a large size and in the process swallowed up portions of three ribs and her sternum. Plaintiff was left with a large chest wall defect (11 cm x 7 cm) that is covered with surgical mesh.

Over a roughly two-year time period, Kaiser’s oncologist met with the patient on about 10 occasions. At each appointment over the relevant time period, the patient alerted the Kaiser oncologist to a lump and pain in her medial chest and asked about follow-up radiology studies. Kaiser’s oncologist assured her that it was just scar tissue, that it was nothing to worry about and that they would “continue to monitor it” without radiology studies.

After her cancer diagnosis, Kaiser had encouraged plaintiff to make a list of questions to ask her doctors and to bring it with her to her appointments. Fortuitously, plaintiff kept those notes in several binders. These notes show that plaintiff was asking about pain and a lump in her chest and requesting follow-up radiology.

Most of Kaiser’s oncologist’s appointment notes were about five-pages long. Of the five pages, approximately 2.5 pages was the copied pathology report from plaintiff’s original breast cancer diagnosis. Of the rest, Kaiser’s oncologist held out one-page as her newly created notes to memorialize each follow-up appointment.

At trial, plaintiff proved that Kaiser’s oncologist was dishonest and, contrary to what she said under oath, the overwhelming majority of her notes was copied and pasted. Word for word; typos included. She would infrequently add short notes in, but there was nothing taken out. Importantly, Kaiser’s oncologist did not record plaintiff’s complaints of pain and a lump until January 2014 when it was too late. On that day, plaintiff refused to leave Kaiser’s facility until a test was done to determine what was in her chest. Kaiser’s oncologist ordered an ultrasound.

 

4. $5 Million

Failure to diagnose cancer yields $5M verdict

Tiffany Pinto v. Hampton Roads Radiology Associates, PC

Type of case: Medical Malpractice

Court: Newport News Circuit Court

Attorneys: Amberley Gibbs Hammer and Allison S. Handler, Chesapeake

Plaintiff Tiffany Pinto, 42, presented to the emergency room at Mary Immaculate Hospital on March 27, 2015, with complaints of right lower quadrant abdominal pain. An abdominal CT scan was ordered by the ER physician and Stuart Goldwag, M.D., an employee of Hampton Roads Radiology Associates, read and interpreted the abdominal CT as showing acute colitis/diverticulitis, a benign inflammatory process. After several days, Pinto’s pain resolved and she was discharged home. She remained symptom free for approximately 10 months.

Approximately 10 months later, Pinto’s right lower quadrant abdominal pain returned but was much worse. She went back to Mary Immaculate Hospital where another abdominal CT was ordered. This abdominal CT was read and interpreted by another Hampton Roads Radiology radiologist on Feb. 3, 2016, as colitis. Pinto was much sicker during that hospitalization and required a blood transfusion for severe anemia. She was discharged after several days. After approximately three weeks, when Pinto did not improve, her primary care physician sent her for an evaluation by a Riverside surgeon. On Feb. 23, 2016, the surgeon ordered another abdominal CT that was read and interpreted by a Riverside radiologist as highly suspicious for colon carcinoma with concern for metastasis to the liver. Within three days, on Feb. 26, 2016, a colonoscopy was performed, but the mass in Pinto’s colon was so large that the scope could not be passed. On Feb. 29, 2016, Pinto underwent a partial colectomy with node removal. A Stage IV colon cancer diagnosis was confirmed with metastasis to her liver. Pinto has undergone extensive cancer treatment for Stage IV colon cancer. She cannot be cured, will require chemotherapy for life and is in palliative care.

The trial proceeded against Hampton Roads Radiology Associates for the negligence of its employee, Goldwag. The defendant contested liability, causation and damages.

 

5. $4 Million

Man’s femoral nerve was severed during hip replacement

Xavier A. Mickens v. G. Vincent Dalton, M.D., and OrthoVirginia Inc.

Type of case: Medical Malpractice

Court: Richmond Circuit Court

Attorney: R. Lee Livingston and Les S. Bowers, Charlottesville

An African-American male, 46, presented to Dr. Dalton for a hip replacement. He was persuaded to consent to an anterior approach total hip replacement. The procedure took twice as long as normal (4+ hours), involved four times the normal blood loss, and was described by Dr. Dalton as the “most difficult hip replacement” he’d ever done. He fractured the greater trochanter during the procedure and repeatedly acknowledged in his operative report that he failed to obtain sufficient exposure. Dr. Dalton did not recognize or suspect that he had caused an injury to the femoral nerve, and when he was asked during his deposition what he did during the procedure to protect the femoral nerve, he responded, “Nothing.”

The patient woke up from the procedure with complete left quadriceps motor loss, and sensory loss in the femoral nerve distribution. The patient was repeatedly informed by Dr. Dalton that he had merely suffered a “stretch injury” that would improve with time. This was in spite of the fact that the patient failed to show any improvement in his motor or sensory loss, and an EMG test provided objective proof of a severe femoral nerve injury and complete lack of recruitment of the quadriceps muscle. Nonetheless, at no point in time did Dr. Dalton entertain the possibility of a lacerated or transected femoral nerve, and at no point in time did Dr. Dalton consult a nerve specialist or consider a surgical exploration of the femoral nerve.

The patient discontinued treatment with Dr. Dalton after approximately five months, and eventually self-referred to VCU Orthopaedics. After extensive workup, a surgical exploration of the femoral nerve revealed a roughly 6 cm gap between the ends of the nerve. Given the size of the injury and Dr. Dalton’s delay in obtaining a surgical repair, the patient’s femoral nerve transection could not be treated at that time. The patient awoke from the surgical exploration at VCU to learn, for the first time, that his condition was permanent and untreatable, and that he would never walk unaided again.

 

6 (Tie) $3.5 Million

Man died while anesthesiologist was called to handle two different patients

Sheila Wilson, as Administrator of the Estate of Matthew Lee Wilson v. Sheridan Anesthesia Services of Virginia, Inc.

Type of case: Wrongful Death/Medical Malpractice

Court: Prince William County Circuit Court

Attorney: Charles J. Zauzig, Melissa G. Ray, and Jill M. McCann, Woodbridge

This case involved the wrongful death of a 32-year-old man who was survived by his mother and adult brother. The individual anesthesiologist was nonsuited and the case proceeded to trial against his employer at the time of the events, Sheridan Anesthesia Services of Virginia Inc. The anesthesiologist was called to testify at trial during plaintiff’s case in chief as an adverse witness.

The events occurred in 2014 when the decedent presented to the ER with a dental infection, which had caused cellulitis of the soft tissues of the mouth, the cheek, the neck, and the epiglottis. He was admitted for treatment of the infection with antibiotics and steroids and also to monitor his airway because it was at risk of occluding. A CT scan demonstrated edema of the soft tissues as well as some mass effect on the airway without occlusion at that time. On day two of admission it was decided to discontinue the steroids because of the thought that it was masking the infection. At the time that decision was made, the patient’s condition had improved, and he was moved from the ICU to the step down unit.

A few minutes before 5 a.m. on day 3, the hospitalist on duty received a telephone call from the nurse regarding the patient and during the call the hospitalist could hear the patient gurgling in the background which was concerning to her. When she arrived at the patient’s room, the patient had increased secretions, was unable to speak, tripoding, and on exam had stridor and decreased breath sounds.  Because the hospitalist knew this would be a difficult intubation because of all of the swelling, she called the anesthesiologist in the hospital to come intubate the patient. At the time, he was the sole anesthesiologist on duty, but had call responsibilities for all patients in the hospital who needed anesthesia services, including emergent intubations. During the first call from the hospitalist, the anesthesiologist informed the hospitalist that he was unable to come intubate the patient at that time and that he was getting ready to take a patient to the OR for a D&C due to bleeding and a spontaneous early abortion. Although the defense argued the D&C patient was an emergency, she had stable vitals with some drop in her hematocrit and hemoglobin levels that were still within normal limits and never required her to have a transfusion. At the time of that first call, the anesthesiologist had not administered any drugs to the D&C patient.

 

6 (Tie) $3.5 Million

Family wins $3.5M med-mal verdict in Augusta

Smith v. Baca and Augusta Emergency Physicians, Ltd.

Type of case: Medical Malpractice

Court: Augusta County Circuit Court

Attorneys: Frank Hilton, Tripp Franklin, and Alexandra Humphreys, Harrisonburg

Forty year old mother of two teenagers, happily married to her high school sweetheart, had a sudden onset stroke at her parents’ home with slurred speech, facial droop, difficulty walking, flaccid arm and leg. 911 was called my her mother specifically for stroke response. the patient could be heard slurring her speech in the background of the recording. The patient could not be airlifted because of weather. Symptoms subsided during transport but resumed before arrival at the hospital. The emergency doctor diagnosed migraine headache and prescribed a migraine cocktail. He also ordered a head CT that left TPA as an option to treat ischemic stroke. Forty minutes later the symptoms broke through and the doctor prescribed another migraine cocktail. The doctor did not consult a neurologist or utilize the hospital’s telestroke neurology consultation system within the 4.5 hour window to order TPA, a clot busting drug for ischemic strokes. The patent’s symptoms continue to worsen until an MRI is ordered 50 minutes after the TPA window closed. The MRI showed a massive posterior circulation stroke. The patient was transferred to MCV. Following placement of an EVD and two attempts at craniotomy, the patient succumbed to brain stem herniation, the family having to make the decision to discontinue life support. Significantly, the ER doctor changed his note the day of her transfer to add information making it appear that he had considered stroke and TPA–notations that were not originally in the not. Also, the doctor testified falsely in his deposition that he had passed both parts of his board exam on his first attempt.

 

8. $2.5 Million

Doctor stopped stroke protocol too soon

Devona Johnson v. Aamir Latif, MD

Type of case: Medical Malpractice

Court: Fairfax Circuit Court

Attorneys: Scott M. Perry and Mike D. Charnoff, Arlington

Devona Johnson, 45, collapsed at home. When she came to, she had a vision field cut and mental confusion. EMS brought her to a Primary Stroke Certified hospital where the stroke protocol was activated and she was evaluated by an emergency medicine physician, Dr. Aamir Latif. Johnson was well within the stroke treatment window. After evaluating Johnson and reviewing a negative CT Scan, Latif shut down the stroke protocol and assumed she had a migraine. An MRI ordered hours later demonstrated she suffered a significant posterior cerebral artery ischemic stroke. By the time the MRI was read, the stroke treatment window had passed.

Latif defended on two grounds. First, he argued that the signs and symptoms were more consistent with migraine than stroke. Second, he argued that tPA (the clot busting drug that was never given) works less than 50 percent of the time and thus plaintiff could not meet her causation burden. Plaintiff demonstrated that Latif shut the stroke protocol down too early, failed to perform an adequate NIH stroke scale exam, ordered a nurse not to perform her own stroke scale exam, and failed to employ a differential diagnosis analysis. Plaintiff also demonstrated through literature and radiology that her stroke would have responded to tPA.

 

9. $2,320,335

Baby’s shoulder injured during birth

A.H, a minor by his next friend v. Rodolfo Gonzalez M.D. and Rodolfo Gonzalez, M.D. P.C.

Type of case: Medical Malpractice

Court: Fairfax Circuit Court

Attorneys: Charles J. Zauzig, Melissa G. Ray, Jill M. McCann and Craig D. Miller, Woodbridge

The minor plaintiff’s mother was admitted to INOVA Fairfax Hospital on March 10, 2010, for labor and delivery. The prenatal course and labor were uneventful. At the time of delivery of the head, the defendant obstetrician recognized a shoulder dystocia due to a turtle sign. Certain obstetrical maneuvers were performed to attempt to release the impacted shoulder, but these were initially unsuccessful. The defendant OB applied traction on the fetal head multiple times in the face of an impacted shoulder, which was admitted by the defendant. After a second round of maneuvers and delivery of the posterior shoulder, the impacted anterior shoulder released and the baby delivered.

Plaintiffs alleged that the defendant used excessive traction (more than gentle traction) in the face of a shoulder dystocia and that this caused A.H’s permanent injury to his right brachial plexus. It was A.H.’s right shoulder that was impacted on the mother’s pubic bone. Plaintiffs’ experts testified that during delivery, the obstetrician moved the head away from the impacted shoulder, causing stretch to failure on the brachial plexus nerves. While the defendant never noted in his record at the time of the delivery anything about the amount of traction he used or the direction the traction was applied, his testimony evolved throughout the litigation from “gentle traction” in his deposition and then “gentle axial traction” by the time of trial. Plaintiffs’ experts said in his testimony that he used only gentle axial traction was inconsistent with A.H.’s severe permanent injuries. They also testified that excessive downward lateral traction would be required to cause the extent of nerve damage seen at the time of A.H.’s first surgery. The defendant OB also testified during his deposition that he used the traction “in order to dislodge the anterior shoulder,” which plaintiffs’ experts testified is not permitted under the standard of care.

The defendant OB put forth the usual causation defense – that the maternal forces of labor were the cause of this injury or, in other words, the mother’s pushing and contractions caused this injury even before the obstetrician touched the baby’s head. A.H.’s injuries and limitations were profound on his right side, and he is basically left with a helper arm that lacks function and strength.

 

10. $2 Million (Tie)

Towel left inside patient caused massive infection

Rebecca Garnett v. George Nowacek M.D. and Gynecological Associates of Fredericksburg

Type of case: Medical Malpractice

Court: Fredericksburg Circuit Court

Attorneys: Malcolm P. McConnell III and Derrick L. Walker, Richmond

The plaintiff was a 49-year-old woman who had abdominal surgery in February 2015. The defendant surgeon closed her wound but left a blue surgical towel, measuring 22” x 16”, in the wound. Such towels are NEVER to be introduced into a patient’s body. After the patient left the OR, the defendant ordered an x-ray “stat” to “rule out foreign body.” The x-ray revealed nothing because surgical towels are not radiopaque, as lap pads and sponges are. The towel caused pain, nausea, vomiting, fatigue and weight loss until it was found and removed by a surgical oncologist in December 2015. Since that time, due to massive infection, the plaintiff has had multiple surgeries, continues to have an open abdominal wound that requires daily dressing, and has multiple hospitalizations for blood loss, dehydration and sepsis. Her abdomen is catastrophically damaged and she is at high risk for complications and infection for the rest of her life. She will also have chronic pain for the rest of her life.

The plaintiff’s damages were not challenged, but the defendant physician testified that he did not place the towel in her abdomen, and that he did not see anyone else place the towel (even though he was at the table the entire time and never “broke scrub”).  His expert testified that the towel could have been “missed” on pre-closure inspection due to the plaintiff’s body habitus. He also testified that the towel could have “migrated” as a result of the plaintiff’s positioning.

 

10. $2 Million (Tie)

Woman lost leg after compomrised foot surgery

Adrian v. Fredericksburg Foot & Ankle, et al.

Type of case: Medical Malpractice

Court: Fredericksburg Circuit Court

Attorneys: Scott M. Perry and Mikhael D. Charnoff, Arlington

Plaintiff was a 54-year-old woman who saw defendant podiatrist for intractable foot pain. Defendant diagnosed a neuroma (a benign condition) and scheduled surgery to remove. On the morning of surgery, a nurse noted discoloration of the toes, swelling, and white marks on foot. She brought it to defendant’s attention but he proceeded with surgery. Patient called defendant’s office three days in a row after surgery to complain of continuing foot pain and discoloration. Defendant did not have patient come in. When defendant saw patient for post-operative visit, the foot was clearly vascularly compromised.  Defendant set up an appointment with a vascular surgeon for the next day, rather than emergently. Plaintiff alleged the defendant should have suspected a blood clot on the morning of surgery, postponed the surgery, and referred her immediately to a vascular specialist. Further, defendant had multiple opportunities after surgery to make the referral before the situation became critical. Defendant’s notes of the patient’s phone calls were written two and a half weeks after he learned of the amputation but dated as if written contemporaneously. Discovery of metadata revealed this, which was later confirmed via a corporate representative deposition.

 

12. $1,879,721

Oral surgeon tore nerve during tooth extraction

Case name confidential

Type of case: Confidential

Court: Alexandria Circuit Court

Attorneys: Michele Bartoli Cain and Wallace B. Wason Jr., Alexandria

On Jan. 3, 2013, the defendant oral surgeon undertook to perform an extraction of an impacted first molar, along with remaining wisdom teeth. At age 32, the patient was already old for the procedure, and was asymptomatic, but he had been advised by his general dentist to have an oral surgery consultation on three separate occasions. The procedure was high-risk due to the patient’s age and contraindicated due to the intimate proximity of the first molar tooth root to the inferior alveolar nerve. In trying to extract the roots of the first molar, the oral surgeon caused a traumatic tear injury to the inferior alveolar nerve. Plaintiff suffers from a disabling traumatic trigeminal neuropathy with significant allodynia requiring 23 pills per day to knock his pain level down from 10/10 to 7/10. He has tried everything to be cured of his injury, including neurrorhaphy, attempted implantation of a nerve stimulator and a brain surgery, but nothing has helped. Despite all this, he has a wonderful attitude and made a strong witness. Plaintiff’s past medical specials were approximately $309,000 and future medical expenses projected to be approximately $1.2 million. The jury deliberated more than nine hours over two days before returning a verdict for plaintiff of $1,879,721.00. Interest was not awarded.

 

13. $1.85 Million

Doctor injury spinal nerve during biopsy

Nikes v. Abidin, M.D., et al.

Type of case: Medical Malpractice

Court: Fairfax Circuit Court

Attorneys: Aaron L. Moore and Jeffrey S. Quinn, Baltimore, MD

The case involved a 33-year-old woman who underwent a lymph node biopsy in August 2011. During the procedure, the defendant ENT doctor transected the plaintiff’s spinal accessory nerve, causing permanent atrophy and paralysis of the trapezius muscle with significant pain, range of motion issues, and scapula winging.

The jury returned a verdict of $1.85 million in non-economic pain and suffering, along with pre-judgment interest dating back to August 2011.

 

14 (Tie) $1.5 Million

Appendicitis goes unreported initially, leads to complications

Alexander Nelson III v. Radiology Associates of Roanoke, P.C.

Type of case: Medical Malpractice

Court: Roanoke Circuit Court

Attorneys: Anthony “Tony” Russell and Charles “Charlie” Calton, Roanoke

On Aug. 15, 2016, Alexander Nelson underwent a colonoscopy after which he suffered abdominal pain, nausea and vomiting. The next day, Aug. 16,  Nelson saw his gastroenterologist who referred him to the Lewis-Gale Medical Center Emergency Department for a CT scan of his abdomen to find out what was causing his symptoms.  Nelson went to the emergency department as instructed and underwent a CT scan of his abdomen. This CT scan was interpreted and reported by Dr. Matthew Wagner, a radiologist who had only been practicing two weeks since finishing his training. Wagner found an abnormality in the right upper quadrant but did not report where  Nelson’s appendix and cecum were located, or whether there was a concern for appendicitis, even Wagner had a concern that  Nelson could have appendicitis. Also, even though Wagner had a concern for appendicitis, he did not directly communicate that concern to  Nelson’s clinicians via telephone. Wagner’s report was received by  Nelson’s clinicians, all of whom understood from the report that  Nelson did not have a surgical emergency, such as appendicitis.  Nelson was discharged home.

Two days later, on Aug. 18, Nelson returned to the emergency department where he underwent another CT scan of the abdomen. This was interpreted and reported by a different radiologist as showing ruptured appendicitis. On or about this day, Wagner’s senior partner, Dr. Peter Rosenfeld, confronted Wagner about missing the appendicitis on the Aug. 16 CT scan.

As a result of  Nelson’s ruptured appendicitis, he suffered intra-abdominal sepsis that led to ventilator dependent respiratory failure, strokes, pulmonary emboli, deep vein thromboses, ischemic kidney insult, and permanent aphasia.

The jury deliberated for three hours before reaching a unanimous verdict for Nelson in the amount of $1.5 million. The defendant’s insurance company had refused to discuss settlement prior to trial.

 

14 (Tie) $1.5 Million

Abscess costs woman capacity to carry another child

Case name confidential

Type of case: Medical Malpractice

Court: Richmond Circuit Court

Attorneys: William B. Kilduff, Christopher L. Spinelli and W. Randolph Robins, Jr., Richmond

The patient went to the emergency room with complaints of abdominal pain two days after being discharged following the birth of her first child via C-section. A CT scan was read as possibly showing an abscess on her uterus, and she had an elevated white blood count and a fever. The ER physician believed the patient had an abscess. The defendant OBGYN admitted the patient and believed abscess was unlikely, and instead chose to treat her for a common post-partum infection. The patient was placed on IV antibiotics. While some of her lab results improved from her admission, she had not showed significant improvement 48-72 hours after IV antibiotics were started. The defendant continued to discount the imaging study showing a fluid collection with gas bubbles and an enhancing rim for several more days. By the seventh day of the admission the patient’s condition had deteriorated and a consulting infectious disease doctor ordered a repeat CT scan, which showed that the fluid collection was almost certainly an abscess. Shortly after those results were read, the patient underwent a complex laparotomy to remove uterine tissue that had become necrotic as a result of the abscess. She will not carry another child. She works as a teacher for preschool children with special needs. The defendant contested liability, causation, and damages through expert testimony. The jury returned a verdict of $1,500,000.00 after deliberating for an hour and a half. The parties later settled the case for $1,450,000.00 to avoid an appeal.

 

14 (Tie) $1.5 Million

Woman injured during root canal surgery

Sara Brenner v. Joseph Khalil, DDS and Youssef A. Khalil, DDS, PC d/b/a Arlington Dentistry by Design

Type of case: Dental Malpractice

Court: Arlington Circuit Court

Attorneys: Michele Bartoli Cain and Wallace B. Wason Jr., Alexandria; Edwin J. Zinman, DDS, JD, San Francisco

On June 18, 2015, the defendant general dentist, Joseph Khalil, DDS, performed an unnecessary root canal retreatment procedure on a lower molar tooth of a woman in her mid-50s. After the defendant perforated outside the root of the tooth, he negligently injected a disinfectant caustic chemical known as calcium hydroxide into the inferior alveolar nerve canal. The inferior alveolar nerve was penetrated and affected by the chemical and began sending pain signals.

Plaintiff required surgery to attempt removal of the neurotoxic chemical.  However, the subsequent treating oral surgeon could not safely remove all of the calcium hydroxide overfill from her inferior alveolar nerve, which was damaged the width of three teeth.

Plaintiff has persistent pain and numbness as permanent sequelae of the gross overfill of calcium hydroxide. Pain is exacerbated during exercise or exposure to cold windy weather. This is a significant loss for plaintiff who had been a highly competitive athlete her entire life and was actively competing up to the point of her injury.

Plaintiff’s past medical specials were approximately $40,000. Future medical expenses projected to be approximately $300,000.

Defendants admitted liability shortly before trial. The jury deliberated for four hours over two days before returning a verdict for $1,500,000 without pre-judgment interest.

 

17. $1,429,275

Investor seeking ownership sues after terms changed

Bochkova v. Akira Technologies Inc. and Chennamaraja

Type of case: Breach of Contract

Court: Fairfax Circuit Court

Attorneys: Jeffrey Rhodes, Michael Smith and Abigail Reigle, Arlington

The case involved claims of fraudulent inducement, breach of contract, and quantum meruit arising from defendant Akira Technologies Inc.’s solicitation of a $250,000 investment from plaintiff Inna Bochkova in the spring 2011. Akira is a small government contractor that was registered in the U.S. Small Business Administration 8(a) program at that time.

The parties had extensive communications regarding the terms of Bochkova’s investment, including that she would receive 12.5 percent of Akira’s stock and serve as a member of its board of directors. The investment was part of a round of financing to restructure Akira to grow through new bid proposals and an application for HUBZone status.

The parties signed a convertible promissory note which stated that they intended to convert the investment into shares, and that Akira would submit an ownership change request to the SBA concerning Bochkova’s investment. The note attached a shareholder agreement and statement of good governance principles that defined Bochkova’s rights as a shareholder upon conversion. Bochkova paid her $250,000 investment to Akira ahead of schedule.

Defendants claimed that they submitted an ownership change request to the SBA, but that the SBA lost it. The SBA denied having any record of such a request. When Akira graduated from the 8(a) program in November 2015, defendants told Bochkova that SBA approval was no longer needed for her ownership interest and they would soon convert her investment into shares.

Defendants delayed providing Bochkova with conversion documents until 2017. Those proposed conversion documents sought to change her shareholder rights from those found in the attachments to her note and added new financial obligations. When defendants refused to convert her in accordance with her original terms in August 2017, Bochkova sued.

 

18. $1.3 Million

Woman suffered back injury in wreck with student

Kimberli Vida v. Sarah Farney

Type of case: Personal Injury

Court: Henrico County Circuit Court

Attorneys: Trent S. Kerns, Richmond; Bridget N. Long, Petersburg

On May 27, 2015, Kimberli Vida, 50, was a back-seat passenger in an SUV driven by her husband when they were struck on East Ridge Road by an SUV driven by defendant, Sarah Farney, who pulled out from Freeman High School making a left turn in front of them. Photos of the vehicles showed modest damage.

Vida began having pain in the middle of her back immediately after the crash; however, she did not obtain medical treatment until three weeks later when she saw Dr. Chester Sharps. He prescribed anti-inflammatories and physical therapy but plaintiff elected to undertake a home exercise program. Vida had been diagnosed with scoliosis as a child and was followed for that condition at Johns Hopkins Hospital until she reached age 18. She had never received any treatment for her scoliosis or any thoracic back pain before the collision. Plaintiff played sports in college and prior to the collision she was extremely active as a volunteer in her children’s schools and in the community.

When she returned to Sharps a few months later complaining of worsened pain, he recommended a spinal fusion surgery which fused her thoracic spine from T-3 to T-12 with two rods and 16 screws. She was hospitalized for six days following the surgery and confined to her bed for three weeks after she returned home. She could not bend, lift or twist her back for at least six months following the surgery. She is left with permanent lack of mobility in her spine and remains unable to return to many of her normal activities. Sharps testified she will need yearly follow up visits in the future and possibly intermittent rounds of physical therapy.

The jury deliberated approximately two hours before returning a verdict for $1,300,000. The verdict exceeded defendant’s coverage of $1,250,000 and State Farm paid the full verdict amount.

 

19. $1.25 Million

Man suffers brain injury in physical assault by commercial driver

Leonard Mullins v. Charles Lee Webb and C.P. Anderson Trucking, Inc.

Type of case: Assault and Battery/Tort

Court: King William County Circuit Court

Attorneys: Geoffrey R. McDonald, Frank H. Hupfl, Justin M. Sheldon, Richmond

Plaintiff was a 57-year-old who drove a tractor-trailer hauling logs. At about 4:50 am the morning of June 11, 2015 he pulled into Milby’s Oil in West Point to fill up his truck. Milby’s has two diesel pumps. He was the only person there, so he decided use both pumps and fill both of his tanks at the same time. About five minutes later, another trucker, defendant Webb, pulled up. Plaintiff told defendant Webb that he was using both pumps and would be done soon, but defendant Webb essentially ordered plaintiff to shut it down and give him one of the pumps. Plaintiff walked away, but did not give up use of both pumps. Defendant Webb ultimately had to wait a little less than three minutes until the pump was free.

As the parties’ paths crossed, they exchanged words, and ultimately ended up with defendant Webb, who was 42, 6’3” and outweighed the plaintiff by approximately 100 pounds, punching plaintiff in the face one time and throwing him around a few times. Plaintiff was 57, 5’10” and approximately 185 pounds. That single punch resulted in (1) comminuted, displaced fracture through left zygomatic arch, (2) non-displaced fracture of left lateral orbital wall, and (3) fractures through the left maxillary wall. Plaintiff went to the emergency room the day of the assault and was released, but went back two days later with a headache, dizziness, and blurry vision. Plaintiff was taken out of work while the fractures healed. Six weeks later he had his Department of Transportation physical examination, which he failed because of balance problems and photophobia. That was the first time he was diagnosed with possible post-concussive symptoms. Plaintiff treated with a neurologist in Virginia Beach who diagnosed him with post-concussive syndrome until he was transferred to VCU’s brain rehabilitation unit under the care of Dr. William Walker in January 2017. Plaintiff remained on light duty work restrictions and attempted to perform his regular duties, without success. In May 2017, doctors put him on permanent sedentary work restriction, and he hasn’t worked since.

 

20. $1,249,979

Jury returns verdict for hurt woman in less than an hour

Case name confidential

Type of case: Personal Injury, Auto Accident

Court: Richmond Circuit Court

Attorneys: Emmet D. Alexander and Michael R. Krol, Richmond

This was a T-bone motor vehicle collision in which the plaintiff was the front-seat passenger and suffered various injuries, including anosmia, a mild-traumatic brain injury and a neuroma to her hip. Only the hip injury and some soft tissue strains and sprains were uncontested at trial. Plaintiff was a retired homemaker. The jury returned a verdict in less than one hour.

 

21. $1,161,482

Man took business partner’s life insurance proceeds

Case name confidential

Type of case: Breach of contract/Conversion

Court: Chesapeake Circuit Court

Attorney: Gregory S. Larsen, Chesapeake

Two business owners had purchased life insurance through their corporation to provide funds for stock redemption in the event of death of a partner, as well as life insurance for estate. Originally, each partner was the owner and beneficiary of the policy insuring the life of the other partner. Shortly after policies were acquired, the shareholder agreement called for the corporation to serve as owner and beneficiary of both policies. Partners executed the appropriate change of ownership and change of beneficiary forms but local agent failed to transmit forms to the insuring company. One shareholder died and the other (Bartee) received the proceeds and promptly attempted to conceal the fact of the policy from the widow; he then spent $800K within a few months of receiving the funds. It took several years to get to trial as defendant sought bankruptcy the night before his deposition. The jury was out for more than two hours but returned a verdict in the amount requested plus punitive damages of $450K. In post-trial motions the court granted remitter to conform the punitive damage award to the statutory cap and imposed a constructive trust.

 


 

Sidebar

Virginia lawyers with major verdicts across state lines

While the rules for being included in the annual compilation of Virginia’s largest verdicts stipulate that a verdict must be handed down from a jury in the commonwealth, Virginia Lawyers Weekly does receive verdict reports or write stories on Virginia attorneys who secure large verdicts across state lines.

From our research, two verdicts came to light:

$289 Million

California

Virginia lawyer helps secure major verdict over “Roundup” weed killer parent company

Attorneys: Timothy Litzenburg, Jeffrey Travers and David J. Dickens, Orange; R. Brent Wisner, Los Angeles

As reported by VLW on Aug. 27: Timothy Litzenburg was among a handful of “rag-tag 30 year olds,” as he put it, who took on a chemical industry giant and won a watershed victory for a man who claimed he was fatally poisoned by the weed killer sold as “Roundup.”

A San Francisco jury on Aug. 10 awarded $2.3 million for past and future economic losses and $37 million for pain and emotional distress. The remaining $250 million represented punitive damages based on malicious or oppressive conduct.

It’s a victory Litzenburg hopes will change the regulatory environment for manufacturer Monsanto, which has steadfastly maintained that its weed killers do not cause cancer. The verdict also is vindication for a “speedy trial” strategy favored by Litzenburg’s firm in the normally slow-going world of mass tort litigation.

Litzenburg and fellow lawyers at The Miller Firm LLC in Orange had hundreds of plaintiffs to choose from for an initial trial on Roundup cancer claims. They picked Dewayne “Lee” Johnson, a California school groundskeeper suffering from non-Hodgkin’s lymphoma.

Litzenburg and his team took advantage of a unique California law that guarantees a quick trial when death is imminent for a plaintiff. Similar laws elsewhere were not so absolute, Litzenburg said.

The heart of the case was a failure to warn claim, the lawyer said. Three years ago, a branch of the World Health Organization determined that the key ingredient in Roundup and related products was a probable carcinogen. Research linked the ingredient – glyphosate – to non-Hodgkin’s lymphoma, the disease that afflicted Johnson.

Monsanto never acknowledged the possibility of harm, Litzenburg said.

Johnson – the plaintiff – said he and other professional groundskeepers are trained to pay careful attention to product warning labels. Johnson reportedly called Monsanto’s hotline twice after he was diagnosed with cancer to ask if there could be any connection. He was told, “No,” according to Litzenburg.

Litzenburg found that response “appalling.”

The case was a battle of experts, and Litzenburg said he had a good one. An epidemiologist who had worked in the Actos cases came off as a knowledgeable “nutty professor,” the lawyer said. “Juries really like him,” he said.

Litzenburg was doubtful about Monsanto’s chances on appeal.

 

$1.6 Million

Oklahoma

Woman, rear-ended on bridge, suffered TBI, PTSD

Attorneys: Stephen M. Smith and David B. Holt, Hampton; Tony Laizure, Tulsa, Oklahoma; and Monty Cain, Oklahoma City, Oklahoma

Plaintiff suffered a traumatic brain injury and severe post-traumatic stress disorder after a CRST, Inc. tractor-trailer, being driven by the defendant, Charles Hitchcock, slammed into her small, disabled vehicle as it sat on the side of a highway bridge at night with its hazards illuminating the roadway. Testimony from witnesses proved the car could be seen from a mile away on the open highway.

She was 21 at the time and the mother of a 20-month-old, who was also in the vehicle in the back in his car seat.

While liability was conceded only just before trial, defendants continued to argue at trial to the jury that the accident was somehow unavoidable. Contrary to that argument, however, was the defendant driver’s vacillating story of whether he saw plaintiff’s hazard lights in time to avoid the crash. Initially, he testified he never saw anything. He later admitted under cross examination that he did see flashers at the last second and attempted to swerve his rig to avoid the crash. Another truck driver behind him witnessed the crash and testified she could see the flashers from a mile away and could not understand why he did not move over.

The CRST truck slammed into the rear of plaintiff’s vehicle while she was inside calling for help. She watched helplessly as the truck’s headlights rapidly approached and the truck never made any attempts to avoid crashing into her. The CRST truck hit her at 65 miles an hour and dragged her small vehicle under the trailer, with her child in the back seat, 100 feet down the road, eventually coming to a rest at the precipice of the ravine 50 feet below, after crashing through the concrete barrier. Both truck and car dangled precipitously off the bridge. Her testimony was that she was trapped and thought she and her baby were going to die.

CRST vigorously disputed plaintiff’s damages, arguing to the jury that the attorneys involved in the matter directed her medical treatment. They claimed that the plaintiff’s lawyer and doctor travelled around the country making up phony brain injury claims. Yet several doctors diagnosed her with a closed head injury or concussion and a mild traumatic brain injury, coupled with significant symptoms of PTSD.