Firm donates $20K to legal aid organizations

Attorneys David Irvine and Richard Armstrong present a check to the Legal Aid Justice Center
Attorneys David Irvine and Richard Armstrong present a check to the Legal Aid Justice Center. (Photo courtesy of Allen & Allen)

A Virginia personal injury firm donated $20,000 to a trio of legal aid organizations throughout the commonwealth earlier this year.

Allen, Allen, Allen & Allen donated $7,500 each to the Legal Aid Justice Center in Charlottesville and the Central Virginia Legal Aid Society in Richmond and $5,000 to Legal Aid Works in Fredericksburg.

David M. Williams Jr., managing partner of the firm’s Fredericksburg and Stafford offices, presented the donation to Legal Aid Works at the conclusion of the organization’s most recent board meeting.

“It was really near and dear to my heart to be able to present that to Legal Aid Works because I’ve been privileged to serve as a member of their board of directors,” Williams said.

Attorneys Ashley Davis and Scott Fitzgerald presented the donation to the Virginia Legal Aid Society, while Richard Armstrong and David Irvine presented the donation to the Legal Aid Justice Center.

“We are proud to support the important efforts of Legal Aid Justice Center and Central Virginia Legal Aid Society,” Armstrong said in a press release. “Both of these organizations aim to ensure fairness in the justice system for low-income individuals that cannot afford legal support. We are thankful for their work.”

Williams said Allen & Allen’s involvement with donating to legal aid organizations goes back to the firm’s mission to protect the injured and serve the community.

“It’s important to us to support organizations that work to provide civil legal services to low-income individuals because we see that as part of protecting the injured and therefore supporting our community,” Williams said.

“That’s the biggest thing — it champions fairness. For those who have the least access to the civil justice system, it gives them representation, and I think that’s important to leveling the playing field.”

— David M. Williams Jr.

Williams noted another common thread between the missions of the firm and legal aid — “protecting the little guy from the powerful guy.”

“In my work, we’re protecting injured people against these powerful insurance companies, and in legal aid, they’re giving a voice to the little guy as well — typically the most marginalized in our society,” Williams said. “And so in that sense, that’s why we do it, because I think it’s important and our missions are very much aligned.”

The firm has regularly contributed to legal aid organizations for years. According to Williams, the most recent donation was one of the firm’s largest donations to date.

Williams noted that the constitutional right to have representation does not exist like it does in criminal cases dealing with imprisonment. As such, legal aid can fill that gap and provide representation for those who may otherwise go without.

Attorneys Ashley Davis and Scott Fitzgerald present a check to the Central Virginia Legal Aid Society
Attorneys Ashley Davis and Scott Fitzgerald present a check to the Central Virginia Legal Aid Society. (Photo courtesy of Allen & Allen)

“I think that’s the biggest thing — it just champions that fairness. For those who have the least access to the civil justice system, it gives them representation, and I think that’s important to leveling the playing field,” he said.

Williams added that he is hopeful other attorneys and firms will get involved in helping legal aid.

“Hopefully they will make donations to whatever legal aid is serving their community or donate their services,” he said. “I know legal aid offices are always looking for pro bono work.”

In addition to the donations to legal aid, Williams noted that Allen & Allen has a variety of projects in the works to give back to the community. These include the George E. Allen Academic Scholarship, named after the firm’s founder, which awards 15 $2,000 scholarships to graduating Virginia high school seniors.

Other projects include the firm’s Hometown Heroes program, which recognizes “unsung heroes who live and work among us to show the good work that they’re doing for the community” and the Allen & Allen Cares program, which awards $1,000 to organizations of prior Hometown Heroes.

“We’re always looking to support our local communities where we serve,” Williams said. “We just want to solidify that partnership with the community and demonstrate our commitment.”

Litigation line item: Deposing parties must pay expert travel, prep time

Deposition room

In what some could see as a shock to their litigation budgets, a Virginia circuit court judge has ruled that a litigant who chooses to depose an opponent’s expert witness must also pay for the expert’s reasonable preparation and travel time.

Judge David A. Oblon of the Fairfax Circuit Court noted that, despite the frequency of expert witness depositions, there is no Virginia authority that explains Rule 4:1(b)(4)(C)’s boundaries.

“The court holds a litigant who chooses to depose an opposing expert witness must pay a reasonable fee for the expert’s time spent and expenses incurred, absent a resulting manifest injustice,” he wrote. “This fee may include the time spent in the deposition, reasonable time spent traveling to the deposition, and reasonable time preparing for the deposition.”

The opinion is Saphilom v. USAA General Indemnity Company (VLW 023-8-002).

Expert fees

Keolattana Tootoo Saphilom sued USAA General Indemnity Company for breach of contract after the insurer refused to honor a claim for mold damage to her property. Saphilom designated several experts, including Carlos Elizondo and Linda McKoy.

USSA noticed depositions and deposed Elizondo and McKoy in December 2022. In January 2023, the parties argued several pretrial motions, including Saphilom’s motion for fees for expert witness depositions under Virginia Supreme Court Rule 4:1(b)(4)(C).

Elizondo billed two hours preparing and five hours at the deposition — including travel time to and from the deposition — at a billable rate of $300 per hour, for a total cost of 2,100.

McKoy, meanwhile, billed eight hours preparing at $195 per hour, and four hours at the deposition at $295 per hour, for a total cost of $2,740. Following McKoy’s deposition, Saphilom withdrew her as an expert.

USAA said there aren’t any Virginia cases requiring a defendant to pay for a plaintiff’s expert witnesses’ deposition preparation or travel time. Even if there was, the insurer added, deposition preparation is a benefit to the party offering the expert, not the opposing side.

USAA also said a fee shift would be unfair since Saphilom waited until after the experts prepared for the depositions to request that USAA pay those costs, and she withdrew McKoy’s deposition.

Logical standpoint

“Plainly, [Rule 4:1(b)(4)(C)] means a party who deposes an expert witness must pay the expert ‘a reasonable fee’ and ‘expenses incurred’ for such a deposition absent a resulting ‘manifest injustice,’” Oblon wrote. “Both parties are correct that no Virginia court further explained this Rule, and the Court accepts USAA’s representation that as a matter of custom litigants only pay for the time the expert spends in the deposition.”

But Oblon offered a caveat — specifically, the court can’t ignore that the rule’s plain language isn’t as limiting as the insurer would like.

The judge said Virginia’s rule is almost identical to the federal rule concerning payment of expert witness fees.

“While no Virginia court has yet interpreted Va. Sup. Ct. R. 4:1(b)(4)(C), federal courts have explained FRCP 26(b)(4)(E),” the judge added.

Looking to Fleming v. US, a 2000 decision from the Western District of Virginia, he noted that “‘[t]he goal of Rule 26(b)(4)(C) is to calibrate expert fees, so that plaintiffs will not be unduly burdened in their efforts to hire quality experts, while defendants will not be hampered by unreasonably high fees which prevent feasible discovery. Ultimately, it is in the court’s discretion to set an amount that it deems reasonable.’”

The Fleming court found that it is “well established that time spent by an expert preparing for his or her deposition by opposing counsel is part of a reasonable fee.”

Although the court in Fleming didn’t shift the expert’s travel fees to the defendant, it was only because the deposition was taken at the plaintiff’s offices. The court said it would have been logical for defense counsel to pay if the expert had to travel to their offices.

“Various federal courts have recognized a variety of helpful factors to determine what would be a reasonable fee for an expert under the federal rule,” Oblon said, including areas of expertise, education and training, prevailing expert rates, complexity, the fee actually charged, traditional charges and any other factors likely to assist the court with a balancing of interests.

The judge said federal courts have determined whether manifest injustice exists by weighing the possible hardships imposed on respective parties and balancing the need for doing justice on the merits between them against the need for maintaining orderly and efficient procedural arrangements.

Both the federal and Virginia rules encourage experts to prepare for their depositions, Oblon explained, which results in experts “who can confidently answer those questions at a deposition that will help the party taking the deposition prepare for trial.”

The judge rejected USAA’s position that deposition preparation only benefited Saphilom.

“Without adequate deposition preparation the witness will likely provide less complete answers to counsel’s questions, diminishing the value of the deposition,” the judge explained. “Allowing the expert to charge fees for their preparation time increases the likelihood that the answers at the deposition will be correct and complete, reducing the need of the expert to correct themselves later, supplement their answers, or interrupt the deposition itself to look up information to fully answer an inquiry by the deposing party.”

He continued that Virginia’s rule “rightfully, when appropriate, places the burden of payment on the party requesting the deposition. From a logical standpoint, this makes sense — the party taking the deposition is the party who wants the expert’s time, and therefore causes the expert to spend time preparing, traveling, and attending the deposition.”

Oblon then said the party who designated the expert gains little from the deposition of their own witness by the opposing party. Thus, USAA should be responsible for the fees that result from Saphilom’s expert being deposed.

In the end, Elizondo’s $2,100 fee was reasonable, considering his expertise as a mold expert, the short preparation time, the nature of the case, negligible travel time and the ratio of his preparation to the actual deposition time.

However, Oblon found that it would result in manifest injustice to require USAA to pay the fees McKoy incurred preparing for a deposition because Saphilom withdrew her shortly thereafter.

Chilling effect?

Paul T. Walkinshaw, a shareholder at Wharton Levin in Fairfax, has litigated numerous federal and state cases involving complex, expert-driven facts.

“In my experience, the rule regarding payment of expert deposition fees has not been interpreted in this manner by most attorneys on either side,” he told Virginia Lawyers Weekly. “This ruling has the potential to drastically change expert witness discovery.”

He warned of a chilling effect on requesting expert depositions.

“You’d be taking an enormous financial risk to request an expert deposition because you cannot know in advance how much time the expert will spend preparing for it,” he noted.

Even the statutory guardrail against unreasonable fees was cold comfort, he cautioned.

“In practice an unreasonable fee would have to be litigated, which costs time and money, too,” he said.

Minor struck by vehicle while crossing busy intersection — $250,000 settlement

Type of action: Personal injury

Injuries alleged: Significant facial and lower extremity orthopedic injuries

Court: Frederick County Circuit Court

Date resolved: 10/12/2022

Verdict or settlement: Settlement


Amount: $250,000

Attorney for plaintiff (and city): Matthew E. Bass, Winchester

Description of case: Plaintiff, a minor, was crossing a busy intersection in broad daylight, albeit not in a marked crosswalk. The liability carrier initially contested liability on the grounds that plaintiff was not in the crosswalk. According to plaintiff’s mother, four attorneys previously turned down the case for that reason. Investigation revealed that notwithstanding plaintiff’s actions, defendant likely had the last clear chance to avoid the crash. Plaintiff suffered severe injuries to his face and lower extremities and was transported by helicopter from the scene. Before litigation commenced, plaintiff provided the liability carrier and its retained counsel, at their request, a thorough analysis of liability. After consideration, the liability carrier tendered policy limits of $250,000.

The case was subject to infant settlement approval which also involved a petition to the Virginia Department of Medical Assistance Services for lien reduction, with the finally-negotiated amount becoming part of the court’s final order. With the assistance of counsel and the sound advice of his mother, soon-to-be-18-year-old plaintiff wisely opted to place a significant portion of his settlement funds into a structured annuity which will pay out almost double the amount of his portion of the settlement proceeds over the following decades.

Matthew E. Bass, plaintiff’s counsel, provided case information.


Misread mammograms resulted in late diagnoses, death — $8.65M settlement

Type of action: Medical malpractice


Injuries alleged: Injuries and death

Tried before: Mediation

Name of judge or mediator: Judge Jane Marum Roush (Ret.)

Date resolved: 8/1/2022

Verdict or settlement: Settlement


Amount: $8,650,000

Attorneys for plaintiff (and city): Stephanie E. Grana and Dascher Pasco, Richmond

Description of case: The 10 women were patients of a defendant radiologist and his practice group. The patients all alleged that their mammograms had been misread over multiple years resulting in a late diagnosis of breast cancer – at an advanced stage with lymph node involvement. Three of the patients died during the pendency of their respective cases. The cases were all resolved at mediation or arbitration after the aggregate limits of coverage were tendered.

Plaintiff’s counsel Stephanie E. Grana provided case information.


Plaintiff injured in collision with box truck — $1.2M settlement

Type of action: Personal injury

Injuries alleged: Mild traumatic brain injury, cervical and thoracic pain with disc bulges at several levels, lumbar pain

Court: Norfolk Circuit Court


Tried before: Mediation

Name of judge or mediator: Judge Thomas S. Shadrick (Ret.)

Date resolved: 1/28/2022

Special damages: $124,661.36

Verdict or settlement: Settlement

Amount: $1,200,000


Attorneys for plaintiff (and city): Stephen M. Smith and C. Stewart Gill Jr., Hampton

Description of case: This case concluded with a confidential settlement; certain details are redacted. The defendant’s box truck crossed over the center lane of traffic into oncoming traffic. There was nothing the plaintiff could do to avoid the other vehicle as there was no shoulder at the location of the collision. The defendant’s vehicle struck the side of the plaintiff’s vehicle. The plaintiff suffered a mild traumatic brain injury and other soft tissue injuries.

Plaintiff’s law firm provided case information.


Tell the whole truth? I’ll do better than that

Lawyer talking to client during deposition

My high school coach told me that for every advantage you gain, there are disadvantages. I remember this clearly — as a bench warmer, I wasn’t distracted by playing when the coach was philosophizing. A tall basketball player rarely dribbles as well as one whose hands are closer to the floor. I was the short exception who couldn’t dribble, and I was slow to boot.

During a Zoom deposition, my coach’s words came back to me. I was able to defend my client’s remote deposition from my office — no driving or uncomfortable conference room chairs to deal with. Unfortunately, there was a jackhammer tearing up the street by my office. Literally. Those of us who practice in the suburbs are fortunate to have small, quaint offices. In a downtown high-rise office building, the noises on the street are missed. They were unmissable today.

Trying to hear, let alone object to a question, over a jackhammer is difficult. Add in a difficult case and an unnecessarily talkative client and things got out of control. My client was on a mission to stretch her two-hour deposition into four hours. Mission accomplished. She may have been more annoying than the jackhammer.

Lawyers ask direct questions to gather specific information. I always tell clients to listen to the question and then answer it, and only it.  Answering more than the question asked inevitably leads to another question — open a door and the opposing lawyer will bring more questions through it. Today’s witness saw her role as less of a question answerer and more of a tour guide through a maze that went nowhere.

One challenging part of defending a deposition is staying in the moment and not getting lost in the minutia. About the third “and where did you live before that” and my mind wanders. Today, it wandered to the different types of deposition witness.

Yes, and…

Good trial lawyers know how and when to improvise. Some of us take classes to get better at quick thinking, assuming that being able to think on your feet is a skill that can be taught. In improv comedy, we are taught to build on the statements of other players in the comedy game “Yes, and.” To play, you accept the previous player’s statement and add to it to build a funny story. The “Yes, and” witness takes a question and not only answers it, but offers up another inquiry. It isn’t funny for their lawyer.

“Yes, I was stopped at the red light. And I was thinking of the last time I had gotten hit at a stoplight.”

“Yes, my back hurt. And it hurt like it did after my surgery ten years ago.”

The “Yes, and” witness thinks he is helping his case. He is rarely right.

Yes, but…

Some witnesses think they are smarter than the questioning lawyer. They may be, but they are unlikely to be better in a deposition. The “Yes, but” witness thinks she can control the discussion by showing the other lawyer that they don’t know what the case is about.

Some witnesses think they are smarter than the questioning lawyer. They may be, but they are unlikely to be better in a deposition. The “Yes, but” witness thinks she can control the discussion by showing the other lawyer that they don’t know what the case is about.

“Yes, I had a prior neck injury, but it wasn’t bothering me that day because I was on pain medication.”

“Yes, I hit the other car, but I didn’t see it because I was texting my mom that I was driving safely.”

“Yes, but” witnesses get kicked right in the … yes, you know.

The Rambler

A ramblin’ man is a romantic archetype of a person with no destination in mind as they travel. The Rambler is not the least bit romantic. This witness starts to answer a straightforward question but takes so many twists and turns that they don’t arrive at a responsive answer. They take a lot of time to get there, and the “there” answer has nothing to do with the question. Even lawyers who are billing by the hour get frustrated with this type of witness. Court reporters who bill by the page, conversely, enjoy the trip.

The Angry Man

Twelve Angry Men was an enjoyable cinematic classic about jurors. The Angry Man is not the least bit enjoyable. They are the smartest person in the room and think the whole judicial process is a waste of their precious time. This person is mad that they are being deposed and they make sure everyone knows it.

“State your name.”

“You know my name. The court reporter just said it.”

“How old are you?”

“What does that matter?”

“Sir, these are just background questions.”

“You don’t need to know my background, just ask me about this case.”

The Angry Man is contagious and by the end of his or her deposition, everyone else is angry.  At trial, the Angry Man leaves even angrier than they started because angry jurors show their anger with their verdict.

The Secret Agent

The (alleged) goal of discovery is to eliminate mysteries and uncover the truth in a case. The Secret Agent takes the oath “to tell the whole truth” with fingers crossed. Sometimes it is a corporate witness who comes to testify without looking at any of the documents that have been produced so that it is impossible to give any meaningful testimony. Other times it is someone making specific claims that she can’t support, like the amount of wages she lost or why she missed work. Without a smokescreen button, the Secret Agent rarely escapes a deposition unscathed.

My “yes, and” client’s deposition finally ended, about the same time as the jackhammer stopped. I don’t know if aspirin makers sponsor jackhammer operators, but those guys working downstairs should have a patch on their jackets if they do. In fairness, I don’t know if my pounding headache was all their fault.

©2023 With All Due Respect. Spencer Farris is the founding partner of The S.E. Farris Law Firm. His best improv character was Blind as a Bat Man, a superhero who bumped into everything. Comments or criticisms about this column may be sent c/o this publication or directly to me via email at [email protected].

Treadmill class action suit keeps running

Woman running on treadmill

A class action lawsuit alleging that a treadmill manufacturer violated warranties and fraudulently misrepresented its horsepower capabilities outran dismissal in the Western District of Virginia.

After allowing the plaintiff to sidestep a jurisdictional roadblock, Judge Elizabeth K. Dillon refused to dismiss all but one of the claims and granted leave to amend the express warranty claim.

A treadmill’s lifetime and the duration of workouts were too imprecise to establish a written warranty for performance over time.

“Not every workout will be same amount of time, and even if that were somehow true, plaintiff has not specified what that amount of time would be,” Dillon wrote.

The opinion is Prince v. Johnson Health Tech Trading Inc. (VLW 023-3-033).

Low performance

Johnson Health Tech Trading manufactured treadmills under the name “Horizon Fitness” and advertised that its Horizon 7.8 AT Treadmill could deliver 4.0 continuous duty horsepower, or CHP.

Not according to Wendy Prince, who owns one of those treadmills.

CHP is a measurement of a treadmill’s ability to maintain power over time. While possible for the Horizon treadmill to meet its advertised CHP in a lab, it would only provide a fraction of that for the average user due to its onboard circuit breaker and household electrical limits in the U.S.

Prince bought the treadmill on Horizon’s website for $1,999. Had she known its true horsepower capabilities, she either wouldn’t have bought it or would have paid less.

On behalf of herself, as well as putative state and federal classes of purchasers, Prince sued Horizon for breaches of express and implied warranties, constructive fraud and consumer protection.

Johnson Health moved to dismiss on subject matter and jurisdictional grounds.

Majority view

Dillon rejected Johnson Health’s argument that Prince didn’t have standing to assert claims related to treadmills she didn’t buy.

Recent cases suggested that the 4th U.S. Circuit Court of Appeals wouldn’t follow the minority view presented by Johnson Health, which requires identical products.

“Therefore, the court finds that plaintiff has standing to assert claims related to treadmills she did not purchase because the treadmill she purchased is substantially similar to all Horizon treadmills and her claims are substantially similar to those of the other class members,” Dillon wrote.


Prince claimed she had jurisdiction to seek warranty damages in federal court under the Magnuson-Moss Warranty Act, or MMWA, even though she didn’t have the requisite hundred or more named plaintiffs.

Instead, she relied on the Class Action Fairness Act, or CAFA, which required only that the sum in controversy exceed $5 million and that any plaintiff be a citizen of a different state than any defendant.

“At least one court of appeals has held that the MMWA requirements must be met separately from CAFA’s jurisdictional requirements,” Dillon pointed out. “However, most courts, including those within Fourth Circuit, have held that a class action based on violations of the MMWA may be brought under CAFA even if it may not be brought directly under the MMWA.”

She added that congress’s purpose in enacting CAFA “was ‘to expand subject matter jurisdiction in the federal courts.’ So, once CAFA’s requirements have been satisfied, MMWA’s additional jurisdictional requirements need not also be satisfied.”

Thus, Dillon said the court had jurisdiction under CAFA.

‘Inherently imprecise’

Johnson Health argued that Prince’s MMWA express warranty allegations were deficient because they didn’t identify a warranty that specifically said the treadmill would “meet a specified level of performance over a specified period of time.”

Prince claimed the treadmill was expected to perform at a specific CHP for a particular period of time each time the machine was used.

According to Johnson Health, however, a representation of lifetime or even a single workout’s performance couldn’t create an express warranty because those are inherently imprecise measurements and not a “specified period of time” under the MMWA.

Dillon agreed.

“Just like the representation of a lifetime warranty, a warranty that a specific horsepower would last the duration of a person’s workout is ‘an inherently imprecise measurement’ because people tend to work out for different amounts of time,” she wrote.

The court granted Johnson Health’s motion to dismiss, with leave to amend.

Remaining claims

Dillon explained that warranty claims in Virginia require a plaintiff to demonstrate that they gave notice to the seller within a reasonable time after discovering a breach.

Here, even though Prince didn’t say when she discovered the treadmill’s deficiency, the judge found Prince’s allegations were sufficient and denied Johnson Health’s motion to dismiss Prince’s state-law warranty claims.

Dillon also found that Prince sufficiently pled constructive fraud and VCPA actions and rejected Johnson Health’s argument that Prince’s constructive fraud claim was barred by the economic loss rule.

“While the economic loss rule may prohibit a constructive fraud claim which ‘essentially alleges negligent performance of contractual duties,’ it will not bar a constructive fraud claim which goes beyond mere ‘disappointed economic expectations assumed only by agreement,’” the judge wrote. “Plaintiff describes herself and others similarly situated as more than disappointed consumers but, instead, as victims of an unlawful scheme of false advertising and misrepresentation.”

Because Prince credibly asserted a claim that can’t be barred by the economic loss rule, Dillion denied Johnson Health’s motion to dismiss this claim.

VSB Disciplinary Actions: Feb. 20, 2023, issue

On Feb. 6, 2023, the Virginia State Bar Disciplinary Board suspended Brittani Nata’lita Baldwin of Williamsburg’s license to practice law on impairment grounds.


Effective Feb. 9, 2023, the Virginia State Bar Disciplinary Board revoked Harry Tun of Washington, D.C.’s license to practice law in Virginia based on his affidavit consenting to the revocation. By tendering his consent to revocation at a time when a disciplinary complaint, investigation or proceeding is pending, Tun acknowledges that the material facts upon which the disciplinary complaint, investigation or proceeding are predicated are true.


Effective Jan. 26, 2023, the Virginia State Bar Second District, Section I Subcommittee issued a public reprimand with terms to Jenifer Shirley of Virginia Beach for violating professional rules that govern safekeeping property and declining or terminating representation. This was an agreed disposition of misconduct charges.

Woman fractured ankles during physical therapy — $500,000 settlement

Type of action: Medical malpractice

Injuries alleged: Fractured ankles

Name of judge or mediator: Judge Thomas S. Shadrick (Ret.)

Date resolved: 9/8/2022

Special damages: $100,000

Demand: $850,000

Offer: $500,000

Verdict or settlement: Settlement


Amount: $500,000

Attorney for plaintiff (and city): Carlton F. Bennett, Virginia Beach

Description of case: Doe had suffered a spinal cord injury and was wheelchair bound. She was admitted to Woe’s healthcare facility for physical therapy and during a physical therapy session the therapist attempted to have her stand in parallel bars and Doe slid forward from her wheelchair and onto the floor, fracturing both ankles. The physical therapist should have had assistance in this activity to prevent Doe from falling.

Plaintiff’s counsel Carlton F. Bennett provided case information.


‘Almost identical’ mold torts survive

Mold in apartment

Claims that a tenant and her children suffered lasting health consequences due to her landlord’s negligent failure to remediate mold have survived dismissal.

It was a relatively simple decision for the trial court. The facts were nearly identical to a decision from Virginia’s high court, which held that a landlord’s statutory duty to remediate mold didn’t abrogate a plaintiff’s right to seek relief in tort.

“It is not often that a case brought before this court is so similar to recent Virginia Supreme Court precedent that the logic of the Supreme Court can almost be restated without change and fit the fact pattern before this court,” Judge Carson E. Saunders Jr. of the Hopewell Circuit Court wrote. “However, that is not to say that this never happens, and this case is proof of that fact. Therefore, this court finds, just as the Supreme Court of Virginia, that Plaintiff may proceed with their claims both in tort and in contract and denies Defendant’s demurrer.”

The opinion is Hall v. Aacorn Properties, LLC (VLW 023-8-001).

Failure to act

In November 2018, Arianna Hall and her two children rented a single-family house in Hopewell from Aacorn Properties. Eventually, Hall noticed that a leaky air conditioner caused visible mold to appear in her home.

Hall said she made several complaints in August 2019, but Aacorn did nothing. She sued in November 2021, alleging that Aacorn’s failure to act caused her and her children to suffer ongoing health consequences and emotional distress.

Specifically, she sued for breach of contract, common law and per se negligence, misrepresentation and violations of the Virginia Residential Landlord Tenant Act, or VRLTA.

Aacorn moved to dismiss Hall’s negligence claims.

‘Substantially similar’

Saunders outlined the facts from 2018’s Cherry v. Lawson, where the Supreme Court of Virginia faced a substantially similar question.

In Cherry, a clogged air conditioner led to water damage and mold for renters in an apartment complex. The landlord tried to remediate but several residents said the attempts were insufficient and sued for tort and contract damages.

The trial court dismissed the tort claims, holding that “‘with the enactment of … Code Section 8.01-226.12 [the General Assembly] intended to abrogate the application of all common law claims for personal injury involving landlord/tenant relationships.’”

The Cherry plaintiffs appealed and the Supreme Court of Virginia reversed.

“In their decision, the Supreme Court took a different position on the relationship between Virginia Code Section 8.01-226.12 (VRTLA) and the common law, stating that the two ‘… operate[] in conjunction,’” Saunders described.

The Supreme Court in Cherry also restated a prior holding that “‘a statutory provision will not be held to change the common law unless the legislative intent to do so is plainly manifested.’”

Finally, the Cherry court said it could “‘perceive no intent by the General Assembly to abrogate common law tort liability beyond narrow confines of what is plainly expressed in Code [Section] 8.01-226.12.’”

In the instant case, Saunders noted that Hall’s facts were substantially similar to those in Cherry; the only major difference was that Hall lived in a single-family dwelling while the Cherry plaintiffs lived in an apartment complex.

“Other than this discrepancy, the facts of a broken air conditioning unit leading to an allegation of mold on the premises followed by an allegation of substandard remediation leading to ongoing health concerns are almost identical,” the judge pointed out. “Thus, the court does not see how, in light of the recent precedent set out by the Supreme Court on this very issue, it could sustain Defendant’s Demurrer as to counts three and four of the complaint. The court withholds comment on Defendant’s Demurrer as to count five of the complaint and simply recognizes Defendant’s withdrawal of the Demurrer as to this count.”

Hall’s claims in tort and contract may proceed.


Dale W. Pittman, a consumer protection attorney in Petersburg, told Virginia Lawyers Weekly he needed to find an attorney with experience in residential mold cases after hearing about Hall’s problems.

With help from the Virginia Trial Lawyers Association, he found Harvey J. Volzer of Shaughnessy & Volzer in Alexandria. Volzer had been litigating mold and whistleblower cases around Washington, D.C., for years.

“I have former clients calling me with such dramatic mold problems, so I connected with Harvey and found that there’s a pretty strong consumer protection hook with these cases,” Pittman said.

Volzer was happy to assist.

“I knew that the people down there couldn’t afford these cases, so I volunteered and I helped with the costs,” Volzer said. “That’s how we’re able to help people.”

The pair are currently working on roughly 20 mold cases together in courts from Virginia Beach to Covington.

“These cases are all sad because there’s always a very poor person and their children who are affected a lot faster and more dramatically than adults,” Pittman said.

While the VTLA has been referring mold clients to them, the attorneys say there a many more who never find representation.

“It’s hard and I feel sorry because a lot of people can’t afford a computer, so they can’t even Google for an attorney,” Volzer said, while Pittman added that “a lot of people don’t feel like they have options, so they get frustrated and depressed.”