Presenting Virginia’s largest verdicts 2019

Virginia Lawyers Weekly presents the survey of “Virginia’s Largest Verdicts of 2019,” 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 in a Virginia court.
3. The verdict was returned in the calendar year 2019.

The 2019 survey features 17 verdicts. If we have missed any million-dollar verdicts from 2019, 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 2020 list.

— Paul Fletcher, Publisher & Editor-in-Chief

1

$1 Billion

Cable company hit with $1 billion verdict

Type of case: Copyright

Court: U.S. District Court for the Eastern District of Virginia at Alexandria

Attorney: Scott A. Zebrak, Washington, DC.

A cadre of major U.S. music publishers won a $1 billion verdict from an Alexandria federal jury in December against cable giant Cox Communications. The music owners contended Cox ignored its obligation to limit illegal music downloads.

The jury returned its verdict Dec. 19 after a three-week trial, finding Cox liable for willful infringement of 10,017 recordings and compositions, with damages for each infringement set at $99,830.29.

It’s the fifth largest verdict in the U.S. in 2019, according to Bloomberg Law.

The plaintiffs were 53 music companies who sued in 2018, saying Cox ignored their infringement notices and turned a blind eye to violations, allowing repeat offenders to continue to use its service, according to Variety. The music companies said Cox refused to rein in customers who used BitTorrent and similar file-sharing services to download copyrighted music.

The music business hailed the verdict.

“The jury’s verdict sends a clear message – Cox and other ISPs that fail to meet their legal obligations to address piracy on their networks will be held accountable,” said Kenneth Doroshow of the Recording Industry Association of America.

Cox called the verdict “unjust and excessive.”

Sony Music Entertainment and other plaintiffs were represented by a team led by Scott A. Zebrak of Washington. The Cox defense team was led by Thomas M. Buchanan of Washington.

2

$35,620,902

Woman lost most of her blood during back surgery

Doe v. Roe, MD

Type of case: Medical Malpractice

Attorneys: Scott Perry, Arlington; Catherine Bertram and Joseph Cammarata, Washington, DC.

Plaintiff, 59, was a government employee, wife and mother of two teenage children. She underwent a lumbar laminectomy for intractable back pain. During the surgery, the iliac artery was disrupted, causing plaintiff to lose most of the blood in her body and subsequently suffer cardiac arrest. Emergency surgery saved plaintiff’s life; however, she was left with severe hypoxic injury that rendered her totally disabled and requiring 24/7 care for the rest of her life.

Plaintiff alleged the back surgeon lacerated the iliac artery with a surgical tool when he lost track of where he was. The surgeon denied negligence, causation and damages. Expert witnesses included neurosurgeons, neurologists, vascular surgeons, neuroradiologists, physical medicine, life care and economics.

Plaintiff presented a life care plan totaling $8.7 million and lost wages of $1 million. After seven days of testimony, the jury awarded $35,620,902.

3

$12 Million

Nursing aide died of deep vein thrombosis after no tests

Sheriff v. Kaiser Foundation Health Plan of the Mid-Atlantic States Inc. et al.

Type of case: Medical Malpractice

Court: Fairfax County Circuit Court

Attorneys: Scott M. Perry, Arlington; Catherine Bertram, Washington, DC.

Isatu Sheriff, 39, emigrated to the U.S. from Sierra Leone. For many years, she worked long hours in a nursing home as a certified nursing aide. As a result, she developed a bunion on her foot. A Kaiser podiatrist scheduled Sheriff for bunionectomy, and, recognizing she had factors making her susceptible to blood clot, placed her on post-surgical blood thinners. One week after finishing the blood thinners, Sheriff presented to Kaiser Urgent Care. There was a major dispute whether Sheriff presented with back pain or leg pain. The Kaiser Urgent Care doctor ordered no testing for deep vein thrombosis (DVT) and sent Sheriff home with a non-specific diagnosis of back pain.

Eight days later, Sheriff collapsed in her bedroom in front of her husband and young son. She was rushed to the hospital but resuscitation efforts were unsuccessful. She died from a pulmonary embolism that traveled from a clot in her surgical leg to her lung. She left behind a husband, a 17-year-old son and an 11-year-old daughter.

The case was defended on the theory that Sheriff’s symptoms were not classic for DVT in that she had no calf pain, no calf swelling and no erythema. Plaintiff showed through arteriorgrams that Sheriff’s DVT developed in her thigh, not her calf, and that one would not exhibit the “classic signs” with a thigh DVT. Further, given recent leg surgery, six weeks of immobilization, pre-disposing factors for blood clot and no other obvious cause of the pain, plaintiff argued that testing for DVT should have been performed. Such testing would have revealed a DVT when it was treatable.

After four hours of deliberation, the jury issued a note asking if they could establish a college scholarship for Sheriff’s two children. After being informed they could not, the jury awarded $12 million.

4

$6,598,313.10

Bank sought money it claimed ex-chairman diverted to sister

BTA Bank and John Milsom and David Standish, Receivers v. Gaukhar Kussainova

Type of case: Fraudulent Conveyance

Court: Fairfax Circuit Court

Attorneys: Alan D. Albert, Richmond; Ray W. King, Norfolk; William B. Porter, Fairfax; Matt Kirtland, Washington, DC; Katie Connolly, Washington, DC.

Fraudulent conveyance action, with additional claims for conversion, unjust enrichment, by BTA Bank  of the Republic of Kazakhstan, and John Milsom and David Standish, receivers, appointed by the High Court of Justice of England and Wales, against Gaukhar Kussainova, sister of Mukhtar Ablyazov, former chairman and CEO of BTA Bank.

Action sought recovery of monetary transfers to defendant Gaukhar Kussainova from offshore entities alleged to be sham entities utilized by Mukhtar Ablyazov to divert funds from bank. Ablyazov has been adjudicated by the High Court of Justice of England and Wales to have diverted at least $4.4 billion from the bank through a network of more than 1,000 sham companies utilizing financial institution accounts in jurisdictions regularly associated with money laundering, including Cyprus, Latvia and Russia. Kussainova allegedly utilized most of the transferred funds to purchase real estate in McLean and Alexandria.

Seven-day trial to jury and court sitting as chancellor in equity.

5

$4.5 Million

Amputation required after leg surgery

Dwayne Kenney v. Cyrus Kump II, MD, and OrthoVirginia

Type of case: Medical Malpractice

Court: Richmond City Circuit Court

Attorneys: Travis W. Markley and Richard L. Nagle, Reston

On Sept. 4, 2016, Dwayne Kenney suffered a leg fracture from a motorcycle accident, which defendant Cyrus Kump, II, MD, at OrthoVirginia in Richmond repaired by open reduction, internal fixation surgery on Sept. 8, 2016. On Dec. 16, 2016, Kump removed the plate and screws that he had placed due to concern that the hardware might be infected. However, Kump failed to ensure that the bone was stabilized after removal of the hardware, despite being aware that there was incomplete healing of the fracture. In addition, Kump was unable to close the skin over the exposed tibia at the conclusion of his Dec. 16, 2016, surgery, leaving the bone exposed and without tissue coverage.

Instead of timely involving a plastic surgeon for assistance in covering the exposed bone, Kump ordered nothing more than dressing changes for four weeks after his surgery. Kump eventually involved a wound care physician nearly a month of his surgery, but that specialist was predictably unable to cover the exposed bone with conservative measures.

When a plastic surgeon was first involved to address potential coverage of the exposed bone, he determined that he could not proceed because there were moving fracture ends visible through the wound. By the time that a plastic surgeon attempted tissue coverage of the exposed bone in June 2017, Kenney had contracted MRSA osteomyelitis and the flap coverage procedure failed in less than two weeks. Despite heroic measures by his other treating physicians, Kenney ultimately suffered a through-the-knee amputation of his left leg on Nov. 20, 2017.

Plaintiff’s experts testified that at the time of his Dec. 16, 2016, surgery, Kump failed to place an external fixator to ensure the ongoing stability of the bone after his hardware removal procedure. In addition, Dr. Kump failed to obtain tissue coverage of the exposed tibia within three to five days of his operation, such that it remained exposed and susceptible to infection like the MRSA osteomyelitis that Kenney ultimately contracted. Plaintiff’s experts testified that had Kump complied with the standard of care, Kenney would have been spared the 11-month course of belated efforts to cover his exposed bone and would have saved him from losing his lower leg to amputation.

On the fifth day of trial, in closing arguments, plaintiff’s counsel asked the jury for a verdict in favor of Kenney in the amount of $2,500,000. After deliberating for an hour and 20 minutes, the jury returned a verdict for Kenney in the amount of $4,500,000.

6

$3,810,124.18

Loudoun jury awards $3.8M in fatal police shooting

Sierra v. Hood

Type of case: Wrongful Death

Court: Loudoun Circuit Court

Attorneys: Thomas K. Plofchan Jr. and Jacqueline A. Kramer, Potomac Falls

On May 24, 2014, 17-year-old Christian Sierra announced to his friends that he wanted to commit suicide and began cutting at his neck with a small kitchen paring knife. Sierra’s friends attempted to retrieve the knife from Sierra, and when they were unsuccessful in doing so, called 911 to report Sierra’s suicidal actions. Purcellville Police Department picked up the call and dispatched three officers to the scene of a “suicidal subject.” Meanwhile, Sierra left the residence on Fraser Drive in Purcellville, pursued by his friend Jarod Mingo. The two appeared sitting on the corner of Fraser Drive and Heaton Court when Officer Timothy Hood encountered the teens. Within 4.7 seconds of spotting Sierra and Mingo, Hood radioed to dispatch that he had located the individuals, parked and exited the vehicle, moved to the left of his door, shot Sierra four times in the chest and shoulder, and radioed back to dispatch “shots fired, put several rounds into him, got the knife.” Evidence revealed that Hood communicated his location at 1:31 on the dispatch record and finished that call at 1:32 on the record. Evidence from Hood’s own expert established that it would take Hood approximately one second to exit his vehicle, and two seconds to shoot the four shots, and radio back to dispatch announcing the shots at 1:35 into the dispatch record. Evidence revealed that Hood began shooting within one second of stopping his vehicle and no witness heard Hood give any commands.

Evidence at trial established that Sierra was attempting to walk past, not directly at Hood, and that Sierra was more than 20 feet away from Hood when he was shot. The paring knife held by Sierra was never pointed at Hood, nor was the knife ever raised above Sierra’s waist. Witness testimony revealed that no one heard Hood give any warnings to Sierra to “drop the knife,” and also indicated that Hood was much farther away from Sierra when he was shot than Hood alleged.

Plaintiffs’ expert witness, Gary A. Rini, concluded that it would have been “impossible” for the bullets to end up in a flowerpot at 221 Fraser Drive, given Hood’s alleged location at the time of the shooting. Rini further concluded that Hood must have shot from much further west on Fraser drive, in light of the bullet trajectory and the physical positioning of Sierra’s body. Photographs of the scene and the Virginia State Police investigation documented Sierra’s body at approximately 9.4 feet to the rear of Hood’s vehicle, despite all testimony, including Hood’s, stating that Sierra was in front of Hood’s cruiser when shot and that Sierra “dropped” straight backward. The jury accepted Rini’s conclusion that Hood moved his vehicle.

Plaintiffs also highlighted Hood’s extensive training in crisis intervention, management of suicidal subjects, and the use of force continuum, with the ultimate goal of preservation of life, all of which Hood abandoned and ignored. The jury rejected Hood’s self-defense argument, and awarded both compensatory and punitive damages for battery, and found in favor of Hood on the counts of gross negligence and willful and wanton negligence.

7

$2.8 Million

$100K demanded in tattoo removal case, $2.8M awarded

Champ v. Zap A Tat LLC

Type of case: Negligence

Court: Newport News Circucit Court

Attorney: Robert J. Haddad, Virginia Beach

Plaintiff desired to have a tattoo removed. She researched various tattoo removal facilities and selected one called “Zap A Tat.” The tattoo was removed on Feb. 28, 2015. Unfortunately, she was exposed to too much radiation during the removal and it left her with significant scarring. Suit was filed against the facility. The insurance company for the facility denied coverage on the claim. The matter went to trial on Feb. 4, 2019, and resulted in a verdict in the amount of $2.5 million compensatory damages and $300,000 punitive damages. The verdict is now final and suit is being filed against the insurance company for wrongful denial of the claim originally.

8

$2,434,959.56

Blood vessels cut during hip replacement procedure

Type of case: Medical Malpractice

Court: Winchester Circuit Court

Attorneys: Thomas G. Smith and Lisa D. Barnett, Fairfax

Plaintiff was 64 years old. She had multiple health problems. She fractured her hip, and after an unsuccessful attempted primary repair of the hip fracture, she presented to defendant orthopaedic surgeon for a total hip replacement, or THR.

During the THR operation, the surgeon encountered significant bleeding when he resected the femoral head. Plaintiff lost nearly three-fourths of her total blood volume. Due to the blood loss and a positive intraoperative blood culture, the operation was aborted, leaving plaintiff with no functional hip.

Plaintiff was taken to the post-anesthesia care unit, or PACU. Once there, plaintiff’s surgical wound continued to bleed. A vascular surgeon was called to evaluate plaintiff in the PACU, and he took her back to the operating room for emergency surgery.

The vascular surgeon found iatrogenic injuries to three major blood vessels: the common femoral vein, the superficial femoral artery and the proximal profunda femoris artery. All three vessels were transected. It was found that the primary issue in the case was how the vessels were injured. Plaintiff contended that the vessels had been negligently cut by defendant orthopaedic surgeon. The defense alleged that the vessels had been torn when the femur was manipulated to dislocate the hip joint. The treating vascular surgeon testified that the vessels appeared to have been cut, not torn.

As a result of the debilitating effects of the blood loss, plaintiff was not stable enough to undergo surgery to place an antibiotic spacer to maintain the length of her leg. When she became medically stable, it was too late to replace her hip. She is now left without a hip joint, is unable to ambulate and is confined to a rehabilitation facility for the rest of her life.

9

$1.6 Million

Woman died during elective spine surgery

Carolyn Pandolfo, as the Administrator of the Estate of Helen Doris Cubbage v. Robert Kime, III, MD, and Hess Orthopedic Center & Sports Medicine PLC

Type of case: Medical Malpractice

Court: Rockingham Circuit Court

Attorneys: Sidney Schupak, Rockville, Maryland; Charles B. Roberts, Woodbridge

This case arose out of the cardiac arrest and subsequent death of decedent, a 75-year-old woman during elective spine surgery. Plaintiff claimed that she suffered cardiac arrest as a result of hypovolemic shock from blood loss during the procedure that was not appropriately addressed. The defense claimed that it wasn’t the blood loss that caused the arrest, but rather DIC, or disseminated intravascular coagulation, that unexpectedly developed from the surgery itself.

Decedent was survived by her adult daughter and three grandchildren, all of whom were awarded damages. The jury deliberated for two hours and returned a verdict of $1.6 million.

10

$1.51 Million

Man died in crash involving oncoming vehicle and tractor-trailer

Estate of White v. Estate of Webster

Type of case: Wrongful Death

Court: Albemarle Circuit Court

Attorneys: Richard C. Armstrong and David M. Irvine, Richmond

The family of the deceased brought a wrongful death action that arose out of a two-collision crash in Albemarle County. At the time of the crashes, the decedent was driving home from working with cattle on his farm. As he was driving his vehicle west on Route 250, he was struck by an oncoming vehicle that crossed the center line. The decedent’s vehicle slowed from this impact and was then struck by a tractor-trailer, which was also traveling westbound. The decedent died at the scene. Suit was filed against both the driver of the oncoming vehicle and the driver of the tractor trailer. After a three-day jury trial, the jury returned a verdict against the driver of the side-swiping vehicle.

The decedent was a 75-year-old man, survived by his five grown children. There were no economic damages other than the $10,000 funeral bill.

11

$1,274,949.06

Debtor wins case over breach of note and deed of trusst

Hunter Mill West LC v. Catjen LLC

Type of case: Breach of Promissory Note and Deed of Trust

Court: Fairfax Circuit Court

Attorneys: J. Chapman Petersen and David L. Amos, Fairfax

The case concerns a dispute between a secured creditor, Catjen LLC, and a debtor, Hunter Mill West LC, HMW, as the amounts due and owing under a $2.7 million promissory note and a deed of trust securing the note, which collateralized real property of approximately 17.72 acres located off the Dulles Toll Road.

After foreclosing on the property, Catjen, through its substitute trustee, filed an accounting of foreclosure with the Commissioner of Accounts. HMW filed suit against Catjen, challenging the accounting of foreclosure, disputing millions of dollars in legal fees, interest and taxes. HMW also filed suit against the trustee for a breach of the fiduciary duty of impartiality during the foreclosure process. All of HMW’s counts were either dismissed or struck except Count I – breach of promissory note and deed of trust.

The court granted judgment in HMW’s favor on Count I, holding that Catjen is indebted to HMW in the amount of $1,274,949.06.

12

$1,255,875.63

Subcontractor entitled to compensatory damages

Faneuil v. 3M

Type of case: Contract

Court: Richmond Circuit Court

Attorneys: Brendan D. O’Toole, Joseph R. Pope, Jonathan T. Lucier, Joseph E. Blackburn III, Richmond

This case arose out of 3M’s alleged breach of a tolling subcontract relating to the Elizabeth River Tunnels Tolling Project in Hampton Roads. The concessionaire for the Project was Elizabeth River Crossings Opco LLC, or ERC, 3M was the general contractor, and Faneuil was the subcontractor. ERC retained 3M to design, operate and maintain a properly functioning tolling system for the Project. 3M, in turn, hired Faneuil (among other things) to maintain the customer service center for the Project. Faneuil’s complaint alleged that it provided both contractual and extra-contractual services to 3M for which it had not been paid. 3M counterclaimed, alleging that Faneuil breached various terms of the subcontract and that Faneuil caused 3M to default under its tolling contract with ERC. 3M sought $1,716,778 in damages.

Following a bench trial held in May 2018, the Richmond Circuit Court awarded Faneuil $0 on its claims and 3M $0 on its counterclaim. Faneuil appealed to the Virginia Supreme Court; 3M cross-appealed. The Supreme Court denied 3M’s cross-appeal but granted a writ to Faneuil.

On Oct. 3, 2019, the Supreme Court reversed and held the circuit court committed “manifest error,” entered judgment for Faneuil in the amount of $1,255,875.63, and remanded the matter to the circuit court to consider an award of pre-judgment interest and attorneys’ fees. On remand, a confidential settlement was reached.

13

$1.25 Million

Surgical pad left inside cancer patient nets $1.25M

Adcock v. Blue Ridge Radiologists Inc.

Type of case: Medical Malpractice

Court: Staunton Circuit Court

Attorneys: Brewster S. Rawls and Christopher P. Yakubisin, Richmond

Having been diagnosed with colon cancer, plaintiff Waverly Adcock, a 47-year-old male, underwent a colon resection on Aug. 31, 2016, at Augusta Regional Medical Center. A week later he presented to the hospital, where an anastomotic leak was diagnosed. Adcock underwent emergency surgery on Sept. 7, 2016. A colostomy was done at that time. At the conclusion of the surgery, the counts of surgical pads were reported as correct. It was anticipated that six to 12 months later, the colostomy would be reversed.

Following the emergency surgery, Adcock remained an in-patient for more than 30 days and was in a rehabilitation unit for another month. He was discharged in mid-November 2016, but he continued to have problems and his wound did not heal. In early January 2017, Adcock noticed something protruding from his ostomy site. He went to the University of Virginia Medical Center emergency room and learned that the protruding object was a laparotomy pad from the Sept. 7, 2016, surgery. The pad was removed and Adcock improved quickly. Unfortunately, because of the extended inflammation and infection, his colostomy could not be reversed.

On four occasions following the Sept. 7, 2016, surgery, Adcock underwent abdominal CT scans. Two were read by one radiologist with the group and two were read by another. Although the radiopaque marker on the lap pad was clearly visible, neither of the defendant radiologists mentioned it in their reports. Plaintiff’s expert opined that what was seen was an abnormal finding that needed to be reported as such. At trial, the doctors and their experts took the position that the area on the CT appeared to be “normal post-surgical changes” (suture line or staples) and therefore did not need to be mentioned in their reports.

Adcock’s surgical expert had also been his treating doctor at U.Va. He testified both as to standard of care for the surgeon and causation issues. He testified that the surgeon had his own duty to review the CT scans and that a surgeon should have readily identified the retained foreign body. He also testified with regard to the issues pertaining to the pad being left in the patient. The surgeon defended his care, asserting reliance on the nursing staff for having reported the counts as correct, as well as the radiologists having interpreted the CTs but not reporting the object.

By the time of trial, Adcock’s colon cancer had progressed, and he had a terminal diagnosis. This information became known to the jury. Adcock opted not to introduce evidence of medical expenses.

Over the course of two days, the jury deliberated for close to seven hours before returning a verdict in favor of Adcock against the radiology defendants and awarded damages of $1,250,000. The jury found in favor of the surgeon and his group.

The radiology defendants moved to set aside the verdict claiming there was no evidence of causation. The court overruled that motion about a month after trial.

14

$1.2 Million

Errors in reading ultrasounds prompt verdict

Sara Solis v. Michael Yuzefovich, MD, and Millennium Gynecology PLLC

Type of case: Medical Malpractice

Court: Prince William Circuit Court

Attorneys: Richard L. Nagle and Travis W. Markley, Reston

In December 2017, Sara Solis was receiving prenatal care at Millennium Gynecology for her pregnancy. On Dec. 13, 2017, she underwent a prenatal anatomy scan conducted by ultrasound evaluation, performed by Millennium Gynecology employee, Gisella Campbell, RDMS, and purportedly interpreted by Michael Yuzefovich, MD. However, only Campbell actually reviewed the images and interpreted that the baby’s umbilical cord contained three vessels, a normal finding. When Solis underwent a follow-up ultrasound at Millennium Gynecology on Jan. 10, 2018, the sonographer, Campbell, again was the only individual to actually review the ultrasound images. Yuzefovich reviewed the report only and mistakenly concluded that a cardiac finding was again indicative that the baby’s umbilical cord had three vessels.

Despite these findings made by the sonographer and claimed by Yuzefovich as his own, the umbilical cord in fact had only two vessels. As the pregnancy progressed, the fetus became growth restricted and died in utero at approximately 34 weeks. Shortly after the time of the stillbirth delivery on March 19, 2018, the treating pathologist reviewed both placental pathology and conducted fetal autopsy and determined that the umbilical cord contained only two vessels, contrary to the reports that Campbell authored and that Yuzefovich simply signed off from the Dec. 13, 2017, and Jan. 10, 2018, ultrasounds.

At trial, Solis’ experts explained that the standard of care requires a physician to review ultrasound images and assume responsibility for making diagnoses. Yuzefovich admitted at his deposition that he did not feel qualified to interpret ultrasound images, then attempted to walk back the testimony at trial. Acknowledging that he did not actually review the images, Yuzefovich instead claimed that Millennium Gynecology had a robust “quality control” system which excused him from having to do so. Plaintiff’s standard of care experts explained that this was unacceptable. On causation, plaintiff’s obstetric expert testified that had the two-vessel umbilical cord been diagnosed timely, Solis would have been provided heightened prenatal monitoring so that the growth restriction could have been detected and the fetus delivered prior to her in utero death. Defense experts argued that the ultrasound images did, in fact, show a three-vessel cord despite the pathological evidence to the contrary and that earlier detection of a two-vessel cord (if it existed) would not have prevented the stillbirth.

On the fourth day of trial, the jury deliberated for approximately four hours after closing arguments and returned a verdict for Solis and the father of the stillborn baby in the amount of $1,200,000.

15

$1,010,910

Woman’s bladder injured during hysterectomy

Type of case: Medical Malpractice

Court: Hampton Circuit Court

Attorneys: Mark J. Favaloro, Virginia Beach; Gregory L. Sandler, Virginia Beach

Plaintiff, a 48-year-old female, underwent a laparoscopic hysterectomy, later converted to an open procedure, on Oct. 3, 2013, performed by the defendant OB-GYN and his partner.

In the three days following surgery, plaintiff was unable to void, with suspicion of a bladder or ureteral injury. On Oct. 6, 2013, after an inconclusive cystogram on Oct. 5, 2013, a urologist took the plaintiff back to surgery, and discovered a 5 cm laceration in plaintiff’s bladder, as well as suture existing in the bladder. The bladder was repaired at this time, and bilateral ureteral stents were placed.

Thereafter, plaintiff was discharged from the hospital on Oct. 9, 2013, with a Foley catheter in place, which remained in place for approximately a four-month period.

After the bladder repair, the plaintiff developed a vesicovaginal fistula, which was ultimately repaired by another urologist in January 2014.

Plaintiff continues to experience difficulty in voiding, increased frequency of urinary tract infections, as well of overactive bladder conditions.

The jury deliberated for about two hours before returning with a plaintiff’s verdict.

16

$1 Million (tie)

Driver pulled over to change tire, then was struck by motorist

Type of case: Auto Accident

Court: Norfolk Circuit Court

Attorneys: Adam H. Lotkin and Georgina D. Montgomery, Norfolk

The plaintiff had a flat tire prior to the accident. He testified that he pulled over to the side of the road when a commercial vehicle came from behind and struck the back of the plaintiff’s car. The force of the impact shot the plaintiff’s vehicle across the highway to the opposite side of the road. The defense denied liability, asserting contributory negligence. Specifically, the location of the plaintiff’s vehicle prior to the accident was vigorously contested.

The plaintiff’s face hit the steering wheel during the impact causing multiple lacerations and fractures of nasal and orbital bones and significant visual disturbances. He underwent four surgeries over the course of a year. Medical bills totaled $139,607.50. Lost wages totaled $20,520. The jury returned a verdict for the plaintiff in the amount of $1 million. The matter was ultimately settled for a confidential amount during post-trial motions.

16

$1 Million (tie)

Estate of rail car serviceman exposed to asbestos nets $1M verdict

Danielle M. Caraco, Administratrix of the Estate of Stephen F. Fowlkes v. Norfolk Southern Railway Co.

Type of case: FELA/Wrongful Death

Court: Norfolk Circuit Court

Attorneys: Randy E. Appleton, Richard N. Shapiro and Seth D. Scott, Virginia Beach

Stephen Fowlkes worked at Norfolk Southern’s car repair shop at Lambert’s Point between 1979 and 1990, often servicing and changing out asbestos-containing brake shoes at the shop. He also claimed he was exposed to other asbestos products, including pipe insulation, in the large Lambert’s Point railroad car shop in Norfolk. In 1988, Norfolk Southern hired abatement contractors to remove asbestos from the car shop.

Once Fowlkes became critically ill and was in hospice care during 2017, he suspected asbestos had caused his lung disease and after his death his daughter obtained an autopsy, which revealed asbestos in his lung tissue, according to a medical examiner and a second pathologist.

His estate sued Norfolk Southern, claiming it was aware of the asbestos-containing brake shoes and other asbestos-containing insulation at Lambert’s Point, but never provided him any warnings and never did any air tests during his entire career.

The railroad denied negligence and claimed Fowlkes never suffered asbestosis but instead developed pulmonary fibrosis from an unknown cause, or that his long-term cigarette smoking had caused his lung disease. The railroad argued that there was little to no risk of developing asbestosis from the railroad brake shoe dust, but the jury received considered evidence that hundreds of thousands of invisible asbestos fibers become airborne during brake servicing, when up to 100 asbestos containing brake shoes were handled in a single day by railroad carmen. Railroad brake shoes were manufactured with asbestos for about 20 years and the lifespan of asbestos brake shoes on railcars extended many years after the manufacturing was discontinued in the 1980s.

Following a six-day trial, a Norfolk Circuit Court jury returned a $5 million verdict on March 4, 2019, in favor of the estate. The jury also found that Mr. Fowlkes’ long history of cigarette smoking had contributed to his death, finding 80% contributory fault on the verdict form, meaning that the jury verdict in favor of his estate was reduced to a $1 million net verdict.

The highest offer prior to trial was $25,000.