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Alexandria jury returns defense verdict in med-mal trial

Type of action: Medical malpractice

Injuries alleged: Wrongful death

Name of case: Webster v. Amoah

Court: Alexandria Circuit Court

Case no.: CL19-1909

Tried before: Jury

Name of judge or mediator: Judge Lisa Kemler

Date resolved: 7/22/2022

Special damages: $2,300,000

Verdict or settlement: Verdict

Amount: $0 (defense)

Attorneys for defendant (and city): Michael E. Olszewski and D. Michael Faust, Fairfax

Description of case: The patient, a 66-year-old man, was admitted to a skilled nursing home on Aug.10, 2016, after being discharged from a two-week admission to the hospital for a severe stroke. In addition, the patient had generalized weakness, gait instability, type 2 diabetes mellitus, congestive heart failure and dysphagia, among other things.

The defendant, an attending physician at the skilled nursing facility, performed an examination of the patient on the day of admission and ordered laboratory testing which was normal. On Aug. 23, 2016, the staff at the skilled nursing facility informed the defendant that the patient was having severe right shoulder pain. The defendant evaluated the shoulder, but did not review the patient’s chart, order laboratory tests or ensure the patient was receiving hydration. The plaintiff alleged the patient was dehydrated and lethargic during the exam.

On Aug. 24, 2016, the patient developed very low blood pressure and a low heart rate. The defendant ordered “STAT” labs that did not result for hours. When the lab results eventually came back, the defendant ordered the patient to be transferred to the hospital. Within hours, the patient passed away at the hospital.

The plaintiff argued that the defendant failed to ensure the patient was well-hydrated during the 13-day admission, and he eventually succumbed to dehydration. The defense was that the patient developed acute renal failure, not dehydration. After hearing five days of evidence and deliberating for less than two hours, the jury returned a verdict in favor of the defendant.

Michael Faust, counsel for the defendant, provided case information. [022-T-145]

Bank can be sued for failed PPP loan application

PPP loan application

A bank can be sued for allegedly misleading a company and failing to process its application under the federal Paycheck Protection Program.

Judge Norman K. Moon of the Western District of Virginia rejected the bank’s argument that it had no contract with the company.

The judge said the plaintiff sufficiently alleged that, because the bank failed to process its loan application as promised, the plaintiff could show contractual damages of almost $1 million in PPP money that would have been forgiven.

The opinion is Ironworks Development LLC v. Truist Bank (VLW 022-3-498).

Failed application

Ironworks Development received a first-round PPP loan after applying through Truist Bank. When the government offered another round of PPP loans in January 2021, Ironworks’ parent corporation again applied through Truist.

Truist sent a letter to Ironworks saying that it was “unable to process” the application in the amount requested. It offered two options: seek a lower loan amount or submit additional information.

Ironworks responded in writing that it would seek the lower amount and agreed to the terms of Truist’s offer, including that Ironworks couldn’t apply for a PPP loan with another lender because the government would automatically reject all of their pending applications.

Truist submitted Ironworks’ application at the end of February 2021. When the government pointed out that the parent corporation hadn’t received first round loans and was therefore ineligible for the second round, Ironworks submitted another application in early March 2021.

After an initial hold was quickly resolved, a second automated hold required that Truist check and select “Submit Lender Certification” in the government’s online system.

Ironworks claimed that, instead of doing so, Truist “‘repeatedly made misleading and false statements … about the PPP loan status.’”

Ironworks cited three times in March 2021 where Truist said the application was submitted, that it would provide updates or that it didn’t know why the government was holding up the process.

In July 2021, Ironworks learned in an email from Truist’s PPP portal that its application had been denied because the lender certification hadn’t been completed before the deadline.

Ironworks filed suit. In its breach of contract complaint, the company said that once it accepted the terms offered in Truist’s letter the bank was contractually bound to submit the company’s PPP loan application for the agreed amount.

Further, Ironworks said it would have been simple for Truist to resolve the second hold.

Ironworks claimed it was damaged by the loss of nearly $1 million in loans that would have been forgiven because Truist failed to process the application.

Truist moved to dismiss the claim.

Valid contract

Truist argued that Ironworks hadn’t suffered an injury because the alleged contract for the second loan was between it and Ironworks’ parent corporation and pertained solely to the initial application before Ironworks reapplied in its own name.

But Moon said the bank had already conceded the contract was between it and Ironworks.

“In its Opposition … Defendant repeatedly referred to Plaintiff as the letter’s addressee [and] characterized the letter as ‘an agreement that Truist would adjust the amount of the proposed loan in Plaintiff’s application,’” the judge wrote.

Offer and acceptance

Moon also rejected Truist’s argument that Ironworks failed to plausibly allege a claim for breach of contract.

“At a minimum, Plaintiff has alleged that, through the SBA Letter, the Defendant gave it two options, and that Plaintiff accepted its second option, therein accepting Defendant’s offer to ‘process [Plaintiff’s] PPP loan in the above amount,’” the judge said. (Emphasis in the original.)

He found those facts sufficient to establish an offer, acceptance and bargained-for exchange constituting a benefit to both parties.

Moon further concluded that both parties incurred a detriment because Truist agreed to process the loan for a fee, while Ironworks agreed to apply for a lower amount and couldn’t apply with any other lenders.

Truist also argued that Ironworks failed to plausibly allege a breach of the bank’s obligations or that any injury suffered was caused by the alleged breach.

But Moon disagreed.

“Plaintiff alleges that the reason it never received the loan ‘had nothing to do with its failure to meet any requirements or eligibility, or anything to do with the SBA’ as ‘[a]ll those things were in order,’” the judge said. “Rather, Plaintiff never received the second-round loan because ‘Defendant failed to “process” Plaintiff’s application as it promised.’”

The judge also credited allegations that Ironworks was “damaged by the breach because the breach caused Plaintiff not to receive ‘nearly $1 million in PPP money that would have been forgiven.’”

Accountable stewards

Jonathan Jacobs, of counsel to Zoblaw in Washington, D.C., said he filed Ironworks’ complaint against Truist knowing it would be an uphill battle.

“There’s a lot of caselaw about how banks can do whatever they want with your money,” he told Virginia Lawyers Weekly.

Unlike a normal bank loan, Jacobs pointed out that PPP loans were “completely different because the money didn’t belong to the banks, who were acting as gatekeepers and stewards of free government money.”

He added that he’s confident his client isn’t the only one who lost out.

“Some people got hoodwinked because they chose banks that negligently took more applications than they could handle and those banks need to be held accountable as stewards over this public money,” he said.

And while he acknowledged this decision was specific to PPP, Jacobs said he’s “beyond pleased that we get to litigate some of these issues.”

Attorneys for Truist declined to comment about ongoing litigation.

Chauffeur forced to stop working after auto accident — $450,000 settlement

Type of action: Auto accident

Injuries alleged: Concussion and post-concussive symptoms including headaches, dizziness and loss of balance; low back injury with radiation into left leg

Name of case: Dinges v. Lim

Court: Page County Circuit Court

Case no.: CL20000171-00

Name of judge or mediator: Philip Blackburn

Date resolved: 8/2/2022

Special damages: $62,467.71 in medical expenses

Offer: $90,000

Verdict or settlement: Settlement

Amount: $450,000

Attorney for plaintiff (and city): John B. Krall, Harrisonburg

Description of case: The plaintiff had slowed to make a right turn in Page County and was rear-ended at approximately 60 mph. Initially, injuries included neck pain, back pain, right shoulder pain, right ankle pain and concussion. The plaintiff continued to treat for his concussion and back pain. Due to the concussion, the plaintiff could not continue working as a chauffeur. The plaintiff filed suit in Page County Circuit Court, and the case settled prior in mediation prior to trial.

Plaintiff’s attorney John B. Krall provided case information. [022-T-150]

Contractor defeats interfering homeowners’ fraud claims

Home renovation project

Despite a contractor’s failure to complete a multimillion-dollar home renovation by the deadline, a federal judge has dismissed fraud and consumer protection claims brought by the homeowners.

Judge Liam O’Grady of the Eastern District of Virginia agreed that the contractor was disorganized and ineffective.

However, “the Plaintiffs have not met their burden to demonstrate that the Defendant had the intent not to complete performance on the contract or intended to defraud the Plaintiffs,” he pointed out.

While the judge found the contractor was in breach of his agreement with the plaintiffs and awarded actual damages, he declined to award recission or consequential damages.

The opinion is Harrell v. Deluca (VLW 022-3-500).

Stymied renovation

John and Dawn Harrell lived in Washington, D.C., before they relocated to the Northern Virginia area in 2019. They were introduced by a realtor to Douglas Deluca, a general contractor who specialized in renovating residential properties.

In 2018, Deluca purchased a six-bedroom house that was constructed in the 1930s with a separate two-level garage in Arlington. In early April 2019, the Harrells contracted to buy the house and have Deluca renovate it.

After several addendums to the contract, including changes to the work to be completed, the Harrells moved to close the sale in early July 2019 and paid Deluca almost $4.5 million.

They also signed a post-closing construction agreement. It detailed what work needed to be completed by the first of August and outlined new work to be finished two weeks later.

Trouble arose in early August when the Harrells began have doubts about Deluca’s performance.

But according to Deluca, the Harrells kept changing their plans, neglected to give needed input and interfered with the subcontractors — one of whom they falsely accused of being a registered sex offender.

On Aug. 6, 2019, John Harrell told Deluca in an email to stop work and remove all equipment so that they could find a replacement contractor. Harrell warned Deluca of a coming lawsuit.

The Harrells, however, had difficulty replacing Deluca. They invited him back, but found that the relationship was irreconcilable. The renovation was never finished.

The Harrells filed suit in late January 2020, claiming Deluca was liable for fraudulent inducement, constructive fraud, breach of contract and violations of the Virginia Consumer Protection Act, or VCPA.

After a bench trial in July 2022, Deluca asserted several affirmative defenses, including failure to mitigate and that the prevention doctrine limited damages.

Unfulfilled promises

O’Grady explained that fraud “cannot be predicated on unfulfilled promises or statements as to future events,” and that the economic loss rule prevents tort actions based on contracts.

However, the judge also said that an exception applied if the defendant “‘did not intend to perform at the time of contracting.’”

The Harrells said Deluca made four statements that fraudulently induced them to enter into the contract: that the work was permitted, the roof was original slate, a custom tile deposit had been made and the square footage of the home was roughly 6,500 square feet.

They reasoned that Deluca’s extensive construction experience and alleged failure to apply for building permits were indicative of an intent to mislead, as was an allegedly false statement on an insurance application.

Deluca testified that he still wished he could finish the renovations, which was reinforced by emails he sent to the realtor, and that he stayed in contact with county officials about permitting after the relationship broke down.

O’Grady agreed with the Harrells that “the Defendant was incredibly unorganized, did not communicate effectively, and may have possibly cut corners in the building permitting process.”

However, he concluded, the plaintiffs had failed to show “that the Defendant had the intent not to complete performance on the contract or intended to defraud the Plaintiffs.”

The judge also dismissed the Harrells’ constructive fraud claim by applying the economic loss and source-of-duty rules, which prevent tort claims from arising where damages are solely “disappointed economic expectations” or where a duty is based on a contract.

Consumer Protection Act

The Harrells contended that Deluca’s misrepresentations and false promises established a violation of the VCPA.

For the same reasons that he dismissed the fraud claims, O’Grady found that Deluca didn’t have the requisite fraudulent intent about completing the work that would enable him to be found liable for promissory construction fraud.

“Further, there is zero evidence that the Defendant ever refused to complete construction until the Plaintiffs prevented his performance … and threated legal action to rescind the contract,” the judge wrote.

O’Grady rebuffed the Harrells’ argument that Deluca misrepresented the square footage of the home’s interior space, finding that it “was a general estimate of a future condition.”

“The evidence at trial undisputedly shows that the Defendant performed a substantial amount of work on the Property … especially in consideration of the amount that the Defendant’s performance was substantially hindered by the Plaintiffs.”

– U.S. District Judge Liam O’Grady

The judge also rejected allegations about the permitting process or tile deposits because the only resulting damages were not being able to move in on time and the Harrells weren’t entitled to consequential damages.

Finally, O’Grady found that because the Harrells could freely inspect the roof at all times, they couldn’t claim that Deluca misrepresented its condition.

Substantially hindered

The judge said the parties’ agreement to complete certain items by Aug. 1, 2019, was material to the contract and that Deluca’s failure to do so was a breach.

But recission wasn’t a proper remedy because the Harrells premised their argument on a finding of fraud, O’Grady said, noting that “unless a defendant’s failure of performance is ‘total or substantial’” recission will not be granted.

“The evidence at trial undisputedly shows that the Defendant performed a substantial amount of work on the Property … especially in consideration of the amount that the Defendant’s performance was substantially hindered by the Plaintiffs,” the judge said.

O’Grady then refused to award consequential damages because the prevention doctrine limits recovery of damages for a party who interferes with the completion of the performance of a contract.

After reviewing expert testimony from both parties, the judge on balance sided with Deluca’s expert and awarded actual damages of $181,762.87 to the Harrells.

‘Nature of construction’

Andrew Burcher, a shareholder with Walsh Colucci in Prince William, represents Deluca.

“This case was never about a breach of contract, it was about fraud and recission,” he told Virginia Lawyers Weekly. “The fraud claims certainly diverted things in a way that the relationship deteriorated such that they couldn’t compromise or resolve the construction.”

He added that “it’s just not the nature of construction to expect the contractor to deliver exactly on a specific anticipated date.”

And while his client was liable for damages, Burcher felt the amount was de minimis compared to what the plaintiffs sought at trial — and was significantly less than what his client offered early in the case.

Whether that amount remains the extent of Deluca’s liability may be an open question, as the plaintiffs have appealed.

Attorneys for the plaintiffs did not respond to requests for comment before deadline.

Engineer injured in head-on collision — $3M settlement

Type of action: Personal Injury

Injuries alleged: Fractures of the ribs, L-spine, right humerus, left femur, left patella and left ankle; amputation of the left index fingertip; lacerations of intra-abdominal organs; subarachnoid hemorrhage

Court: Loudoun County Circuit Court

Tried before: Mediation

Name of judge or mediator: Judge Johanna Fitzpatrick (Ret.)

Date resolved: 10/26/2022

Verdict or settlement: Settlement

Amount: $3,000,000

Attorneys for plaintiff (and city): Juli M. Porto and Robert J. Stoney, Fairfax

Description of case: On Sept. 11, 2020, a young engineer was hit head-on by a driver who crossed the median. The man sustained fractures throughout his body, requiring several surgeries and inpatient rehabilitation. Despite his serious injuries, he made an improbable recovery, due mostly to his determination and dedication to closely following his treatment plan, physical therapy and exercise. He still suffers from residual pain in his left leg and ankle with movement but has returned to work full time without restrictions.

Plaintiff’s counsel Juli M. Porto provided case information. [022-T-182]

Fighting stigma: Speaking up

For so many of us, the goal of success is what drives us to sacrifice and persist through obstacles. However, this goal of success can take on a life of its own, leading toward perfectionism, becoming our identity, and sacrificing important values in pursuit of what we imagine will make us fulfilled.

When I see an example of a successful person who seems to have no struggles, I am not impressed or inspired; I am concerned.

I am truly inspired by stories of struggle, self-care and resilience. One such inspiring story is from Payal Salsburg. I can identify with a story that involves struggle, and I am inspired by Payal’s resilience and willingness to help others.

– Shawn Healy, Lawyers Concerned for Lawyers


 Early this year, my friend died by suicide at the age of 30. She was a brilliant lawyer, a passionate advocate, and a deeply caring person.

We had been on a Zoom call days earlier, talking about our families and our ever-growing to-do lists. Through it all, I had no idea how much she was struggling on the inside while living her successes on the outside. Like so many high-achieving lawyers, she never spoke up.

So here I am, speaking up and putting myself “out there” so others may speak up, too.

Nine years ago, on a Tuesday afternoon in October, I found myself on the floor of my office in a full panic attack — crying, hyperventilating and experiencing muscle spasms.

Something had gone terribly wrong. My colleague helped me off the floor and dragged me to the doctor’s office. That day, I was diagnosed with clinical depression and anxiety.

I come from a culture that places great importance on achievement. Your success defines you. As does failure.

At the age of 17, I moved, by myself, from India to the United States for college. My parents put me on a flight with two suitcases, a letter from the college telling me I had a full scholarship, and $500 to make ends meet. I was told to look for someone at the airport holding a board with my name on it, and to go with that person to begin my new life 7,500 miles away from home.

At 17, I learned how to support myself with four on-campus jobs, working at minimum wage. When minimum wage increased from $4.25 to $4.50, I converted the 25 cent raise into Indian rupees and felt that I had “made it.”

I juggled work with a full course load, got involved in every club and committee I had time for, and graduated summa cum laude. Success!

What next? Move to Colorado to work on a master’s and Ph.D. in computer science. Get married. More success!

But life soon started to unravel. I dropped out of the Ph.D. program. I moved to Florida for my husband’s job, and I started law school because I didn’t know what else to do with my life.

On Sept. 15, 2008, the day Lehman Brothers filed for bankruptcy and set off the global financial crisis, I started my legal career at a big law firm. Several of my first-year colleagues were laid off within days.

For the next six years, I put my head down and chugged along, working intensely while balancing married life. I had to succeed, no matter the cost.

At 34, I was diagnosed with thyroid cancer. At 35, my marriage ended. I lost 30 pounds in a few months. I couldn’t sleep more than a few hours each night. My work suffered. My relationships suffered. Something had to give.

That October afternoon, everything gave way at once.

Sitting on the floor of my office, I was lost. I had no identity. Nearly 20 years of pushing myself to succeed had come at the cost of my mental health and well-being.

I decided to take a year off from the practice of law to work on building myself back up. Fortunate enough to have the financial cushion to take the next year off, I relied on savings to stay afloat. I went to individual therapy; I went to group therapy. I reconnected with family and friends. I made new friends. I volunteered. I disconnected from the practice of law, which had (by then) become my only identity.

Payal SalsburgThe old adage goes: If you love something, let it go. If it comes back, it is yours. In early 2016, I felt ready enough to come back to work. This time, I was going to do it right.

When I interviewed with my current firm, I told them about my year off and how I was a better person and a better lawyer for having taken the break.

Six years later, I am a partner at the same firm. I’m involved in the legal community and bar associations. I spend hours each week volunteering. My identity is now defined not only by my profession but by what I do outside of it.

On Sundays, I’m the girl who preps and serves meals at a local homeless shelter. On the second Saturday of every month, I’m the girl who assembles grocery and pantry items to distribute to low-income immigrant families.

What used to be a quick six-minute walk to the office now takes 20 minutes because I stop and chat with my friends on the street.

Success today means something very different than what it did at the age of 17 or even at the age of 35. So does failure. Dropping out of the Ph.D. program did not make me a failure. Getting divorced did not make me a failure. Taking a year off from being a lawyer did not make me a failure. Having gone through the struggle and speaking up, I am better for it.

I encourage those who are struggling to seek help — whether through therapy or otherwise. If you feel like your workplace is not the right venue to raise the red flag, talk to a friend in confidence. Talk to someone, like me, who has been where you are.

Having gone through the ups and downs of dealing with my mental health and well-being, I realize that speaking up and taking a break was not a failure. In fact, it helped me become a more successful human being in all parts of my life that matter.

(Editor’s note: For information on available resources and support in the legal community, visit

Payal Salsburg is a partner at Laredo & Smith in Boston, practicing business litigation and white-collar criminal defense. She can be contacted at [email protected].

Norfolk-based firm makes donation to legal aid society

As demand for legal aid services grows following the effects of the COVID-19 pandemic, a Norfolk-based personal injury firm has continued to aid in the cause.

Cooper Hurley Injury Lawyers donated $5,000 to the Norfolk-based Legal Aid Society of Eastern Virginia on Nov. 7, according to a press release from the firm. The donation is the largest single donation made by the firm to the society.

“The Legal Aid Society of Eastern Virginia has provided a vital service to our community for decades,” Cooper Hurley Injury Lawyers founding partner Jim Hurley said via press release. “Without it, vulnerable people would slip through the legal safety net.”

In the last decade, Cooper Hurley Injury Lawyers has donated nearly $20,000 to the Legal Aid Society of Eastern Virginia.

Hurley presented the check to Legal Aid Society of Eastern Virginia Executive Director Ray Hartz in a November ceremony. During a previous check donation ceremony, Hartz stated that funding at the society was cut “by over a third a few years ago during the years of the recession.”

“While we have had some increases, we are nowhere near where we were five or 10 years ago,” Hartz said. “We have relied on the community to keep us going.”

The Legal Aid Society of Eastern Virginia is a non-profit law firm founded in 1966 to provide representation in civil matters to low-income residents in the Hampton Roads region. According to their website, the society deals in cases across a wide range of subject matters, including landlord/tenant issues, family law, estate planning, domestic violence, and civil rights and discrimination matters, among other areas.

“In a variety of civil matters we provide free lawyers so that people are treated fairly in the courts here in Virginia,” Hartz said via release.

The society’s current initiatives include the Campaign to Reduce Evictions, where the society is present at public housing dockets at several cities across the region. The society is also partnered with Equal Justice Works in the Housing Justice Fellowship Program, which “fight[s] for safe, sanitary, and affordable housing in partnership with our client communities in Portsmouth, South Norfolk and the East End of Newport News,” according to the society’s website.

Suit vs. federal judge tossed

A litigant’s suit against a federal judge was dismissed after the U.S. District Court for the Eastern District of Virginia found the plaintiff lacked standing as Virginia law does not allow private individuals to bring an action in Virginia courts to discipline an attorney.

The court also determined that the judge was subject to judicial immunity in this case.

Senior U.S. District Judge Deborah K. Chasanow of the U.S. District Court for the District of Maryland authored the opinion in Spanos v. Gibney (VLW 022-3-524) last month.


The issue in this case pertains to a prior proceeding handled by U.S. District Judge John A. Gibney in his capacity as a judge for the Eastern District of Virginia.

In that proceeding, Nickolas Spanos filed an action in the Henrico County Circuit Court against the then-state attorney for Henrico County, seeking discipline or disbarment.

That action was removed to federal court and assigned to Gibney, who denied a motion to recuse filed by Spanos.

Gibney dismissed the action, holding that Spanos lacked standing on federal claims. The judge remanded the state law claims back to the county court. Spanos did not appeal the decision.

Spanos then filed a lawsuit against Gibney in Henrico County Circuit Court, seeking “either revocation of Judge Gibney’s license to practice law in Virginia, or that Judge Gibney be disciplined under the Virginia Code of Professional Conduct.”

The action was removed to federal court, and Gibney filed a motion to dismiss.


Gibney sought dismissal under Federal Rule of Civil Procedure 12(b)(1) and (6), and claimed Spanos lacked standing under Virginia law, that no private right of action exists under Virginia’s Rules of Professional Conduct and that he was entitled to judicial immunity.

In his response, Spanos argued that judicial immunity did not apply “in cases alleging unethical conduct. His action, he said, was “an ‘action filed to protect the Public’” rather than a private cause of action.

Chasanow first addressed the issue of standing, pointing out that “whether Virginia law allows a private individual to bring a state court action seeking to have an attorney disciplined or disbarred” was the primary issue.

“If the answer to this question is no,” Chasanow wrote, “then Mr. Spanos lacks standing because a court cannot provide him with the relief he seeks.”

The argument that Spanos filed a “public cause of action” fails, the judge said, because “there is no basis in law for Mr. Spanos to bring an action for the public welfare. He does not have standing to act in the public interest.”

Spanos’s argument relied on Virginia Code § 54.1-3915, which states “Supreme Court shall not … promulgate any rule or regulation or method of procedure which eliminates the jurisdiction of the courts to deal with the discipline of attorneys.” According to Spanos, this allows private individuals to bring an action in Virginia’s state courts to discipline attorneys.

Chasanow rejected the argument.

“[T]here is no authority construing this provision to mean that an individual cause of action exists,” she pointed out.

The judge then noted that the Virginia Supreme Court “has clear authority” to specify a code of ethics governing attorney conduct — and for barring methods for disciplining, suspending and disbarring attorneys.

“[T]he Virginia Supreme Court has adopted extensive procedures for disciplining, suspending, and disbarring attorneys,” she explained. “None of these procedures allow for a private individual to institute such an action.”

Moreover, Chasanow said, the statute Spanos relied on “simply protects the authority of a state court to ban an attorney from practicing before that particular court.”

Judicial immunity

Having found that Spanos lacked standing as an individual to bring an action seeking attorney discipline, Chasanow turned to the judicial immunity issue. She ruled in Gibney’s favor.

“Even if the court were to find that Mr. Spanos has both prudential and statutory standing to bring his complaint, Judge Gibney would have judicial immunity for acts taken in his official or individual capacity,” Chasanow wrote.

The judge made that determination by noting that, while Spanos alleged Gibney’s actions were unethical, he did not claim Gibney acted beyond the scope of the litigation.

“Regardless of Mr. Spanos’ claims, he provides no grounds to defeat the judicial immunity that applies to Judge Gibney’s determinations in Spanos v. Vick,” Chasanow wrote. “Judge Gibney is entitled to judicial immunity for his actions.

Citing the U.S. Supreme Court’s 1988 decision in Forrester v. White, Chasanow noted the reasoning behind the use of judicial immunity.

“If judges were personally liable for erroneous decisions, the resulting avalanche of suits, most of them frivolous but vexatious, would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits,” Chasanow wrote.

Chasanow granted Gibney’s motion to dismiss and dismissed the complaint for lack of standing.

The robots are here: Take care when using AI in the workplace

When used effectively, artificial intelligence, or AI, can eliminate much bias in decision-making. However, when misused, AI may actually promote the same bias it should thwart.

Generally, employers use AI in the workplace through supervised machine learning, or SML, during the hiring process. SML uses algorithms to analyze applicant data and recommend which candidates will likely succeed. The algorithms must be programmed with training data to make accurate recommendations.

A typical example of training data is common words in a résumé. An employer gathers the résumés of their successful employees (“benchmark résumés”), and the SML will catalog all the words and key phrases. The software then compares all applicant résumés to these benchmark résumés. If words from the benchmark résumés appear in the applicant résumés, then those applicant résumés are “good.”

The pitfalls of SML

Employers must administer SML carefully; it is too easy for SML to exclude members of a protected class. This exclusion is a consequence of skewed or limited data sets.

For example, an employer could have benchmark résumés only from men that likely don’t have words commonly found in women’s résumés, such as involvement in a women’s soccer league or attendance at an all-girls high school.

Therefore, a woman’s résumé that contains these examples will not register as valuable or beneficial to the job because the words “women” or “girl” doesn’t appear in the benchmark résumés.

Here, the SML hinders women from getting a job; it applies bias rather than eliminating it from the hiring process.

What the law says about SML

There is no federal law and few state laws governing employer use of SML. Both the Equal Employment Opportunity Commission and the Department of Justice have provided guidance that reminds employers of their duties under the Americans with Disabilities Act. The guidance advises employers to do several things:

  • have a process to provide reasonable accommodations when using “algorithmic decision-making tools”;
  • avoid screening out individuals with disabilities who can do the job with reasonable accommodation;
  • take care to not participate in prohibited disability-related inquiries using algorithmic tools;
  • consider the impact when designing or choosing technological tools; and
  • remember the obligation to provide reasonable accommodations under the ADA.

Are you violating the ADA?

The EEOC and DOJ describe several instances where an employer may be in violation.

One example is if there isn’t provision of a “reasonable accommodation” necessary for the algorithm to rate the applicant fairly.

If an employer relies on an algorithmic tool that screens out an individual with a disability, it is likely in violation. It does not matter if the screening out was intentional or unintentional; it only matters that it occurs.

Lastly, an employer may be in violation if it adopts an algorithmic decision-making tool that violates the ADA restrictions on disability-related inquiries and medical examinations.

Complying with the EEOC and DOJ

There are two simple ways to ensure compliance with the EEOC & DOJ guidance and avoid an ADA violation.

The first is to conduct a bias audit. A bias audit is an impartial evaluation that tests the artificial intelligence tool’s disparate impact on protected classes. Conducting a bias audit provides tangible evidence of an active attempt to comply with the guidance.

Another step is to consider whether the algorithmic tool was made with individuals who have disabilities in mind. Employers can set up a systematic process to determine the answer to this question. The process would ask questions like: was special attention made to the user interface so that it is accessible to as many individuals with disabilities as possible? Are any materials provided to applicants presented in several alternative formats? Was there a determination of whether the algorithm disadvantages individuals with disabilities?

Conducting a bias audit and considering the algorithm’s impact on people with disabilities do not guarantee compliance with the EEOC and DOJ. However, they are tangible and objective steps that can be taken to protect applicants and the company.

Preparing for future legislation

Colorado, California and Mississippi have laws that regulate AI in the workplace and schools. Alabama established the Council on Advanced Technology and Artificial Intelligence. New York City has created a robust law that regulates automated employment decision tools for candidates and employees who reside in the city.

The national trend indicates that other states may see similar legislation in the future. So what can employers do to prepare?

First, seek advice from employment experts when designing or purchasing an SML. Next, ensure that any tools comply with the ADA by asking the following:

  • Is the interface as inclusive as possible?
  • Is my company providing any necessary materials to applicants in various available formats?
  • Is my company providing reasonable accommodation to applicants?
  • Has there been a recent bias audit conducted on the tool?
  • Does the proposed SML screen out members of a protected class?

Finally, submit any proposed SML to trusted legal counsel before implementing the tool.

Blayne Soleymani-Pearson is an attorney with Barran Liebman LLP. He can answer questions about AI in hiring and other employment matters. Contact him at 503-276-2190 or [email protected].

Young mother killed after SUV struck by tractor-trailer — $988,782.82 settlement

Type of action: Auto accident

Injuries alleged: Wrongful death

Name of case: National Liability & Fire Insurance Co., et. al v. Lawson

Court: Fairfax County Circuit Court

Case no.: 2022-01162

Name of judge or mediator: Judge Randy I. Bellows

Verdict or settlement: Settlement

Amount: $988,782.82

Attorneys for plaintiff (and city): Joseph A. Blaszkow, Alexandria; Carlos Lopez, Washington, D.C.

Description of case: On Sept. 5, 2020, a young mother of two was driving her SUV south on Interstate 95 with her boyfriend, anticipating a holiday weekend in Myrtle Beach. On the southbound approach to Occoquan, overhead video caught the young woman’s car pulling off the highway onto the left-hand shoulder. Her passenger was ill, and the video shows him exiting the car and climbing over the guardrail onto the grassy median, where he promptly throws up. Shortly, he climbs back over the guardrail, and re-enters the car. The car remains stationary on the shoulder for another five minutes.

At the same time, a tractor-trailer, fully loaded with cargo, is also southbound approaching the same location. Dash cam and other instrumentation establishes the truck is consistently exceeding the speed limit. The cab is occupied by a driver, and a second individual who later identifies himself as either the “co-driver” or the “trainer.” Audio on the dash cam suggests this individual was sleeping at critical moments.

The tractor-trailer, traveling in the far right lane, crests a hill and is confronted by slowing and stopping traffic ahead. Responding to this, overhead video shows the truck traversing all four lanes of the highway, from right to left, one by one. The truck then proceeds onto the shoulder, overtaking and sideswiping a car traveling in the far-left lane, and then strikes 511 feet of guardrail before striking the back end of the SUV, propelling it some 386 feet up the highway. The tractor-trailer travels a total of 1,202 feet from the point where it first hit the guardrail until it finally comes to rest.

The driver is charged with reckless driving and convicted. The mother and her boyfriend are transported to the hospital, where the mother is pronounced DOA.

A wrongful death case was pursued in the name of the deceased mother. Her two minor children were the primary and automatic beneficiaries of any wrongful death claim. These daughters each resided with their respective fathers, neither of whom had ever been married to the decedent and, accordingly, neither had any claim to assert on their own. The decedent was also survived by her parents. The decedent’s father chose to forego any claim, while the decedent’s mother vacillated on whether she would assert any claim; under the wrongful death statute she was potentially eligible to assert a claim provided she could satisfy the court that she had received some persistent level of support from the daughter in the last year of her life.

In anticipation of possible family conflict over the distribution of any wrongful death proceeds, counsel sought the appointment of a member of the bar to be the administrator of the deceased mother’s estate, solely for purposes of litigation, pursuant to Va. Code § 64.2-454. Counsel then took the position that it was the administrator’s task to maximize any recovery for wrongful death, leaving it to potential beneficiaries to contest any apportionment of the proceeds.

Additional claims were also asserted in connection with this accident. The passenger of the SUV had a significant personal injury claim of his own. Additionally, a claim in the approximate amount of $11,000 was asserted by GEICO for the property damage sustained by the vehicle that was sideswiped. Finally, VDOT asserted a claim for approximately $34,000 for damage to the guardrail.

The passenger’s injury claim was handled by Washington attorneys Doug Stevens and Lou Schoeneke. The wrongful death claim was handled by Joseph A. Blaszkow in Alexandria, assisted by Washington attorney Carlos Lopez and Blaszkow’s paralegal Matt McMullen. All counsel agreed that, after payment of the GEICO and VDOT claims, any further proceeds would be divided equally between the wrongful death claim and the passenger’s claim.

Early indications were that the only defendant would be the trucking company, who employed the driver. And it was represented that they were covered by a million-dollar single limit liability policy that would have to be utilized to cover all claims. Further investigation revealed that the so-called co-driver/trainer was employed by a second trucking company with a second million-dollar single limit liability policy.

Both policies were tendered in their entirety. GEICO and VDOT each agreed to reduce their claims by half. A hearing to approve the settlement was held on June 29, 2022, in Fairfax Circuit Court before Judge Randy I. Bellows. Judge Bellows decided he would conduct an evidentiary hearing that day to determine whether the mother would participate in the wrongful death settlement. The immediacy of that proposal prompted the mother of the decedent to agree with her granddaughters, assisted by guardian ad litem Bruce Levine, to limit her claim to $30,000. Each granddaughter then received slightly more than $300,000.

Plaintiff’s counsel Joseph A. Blaszkow provided case information. [022-T-140]