Issue: Jan. 30 2023

3D printing: New frontier in potential product liability claims

3D printing

Companies employ 3D printing technology now more than ever, leveraging devices in pioneering ways. Its widespread usage helps businesses cut costs and manufacture products efficiently.

At the same time, the legal landscape surrounding 3D printers is underdeveloped, so those who use the technology must be mindful of the potential for unintended and unforeseen consequences.

3D printers use digital blueprints, known as Computer-Aided Design or CAD, files to quickly and efficiently create nearly any object. Manufacturers in countless industries recognize the technology’s versatility.

Indeed, 3D printing is rapidly growing in popularity. According to market research firm SmarTech Analysis, the sector reported $10.6 billion in revenue last year, which includes sales for additive hardware, materials, software and outsourced services.

Nearly a decade before reaching that point, some had the foresight to accurately predict that 3D printing “has the potential to revolutionize the way we make almost anything.” The pervasive expansion spans every industry: 3D printing has become commonplace for those ranging from scientists printing microscopic human tissue to engineers printing large-scale, pre-fabricated construction modules.

The COVID-19 pandemic further expanded its use. When medical professionals faced shortages of equipment, facemasks, shields and ventilator components, they looked to 3D printing to fill the gaps. Such expansive use exemplifies the sheer quantity of industries that can benefit from 3D printing.

This exponential growth brings with it a host of legal concerns. Some issues, like the use of 3D printers to manufacture “ghost guns,” garner significant media attention. Other issues, such as the implication of intellectual property rights, are often overlooked. Product liability concerns also are too often absent from consideration by interested parties.

Historically, when a product harms a person, that individual could assign liability by identifying the product’s manufacturer. Use of 3D printing, however, blurs the lines and presents a complicated array of questions that traditional product liability laws may not answer.

With so many players involved, who should be held responsible when something goes wrong? The company that manufactured the 3D printer? The designer of the CAD file? The distributor? Or even the individual who prints the product? As a result of this ambiguity, there may be several possible defendants in a 3D product’s supply chain.

Similarly, manufacturers should also be aware of the potential liability from 3D printer emissions. According to the Environmental Protection Agency, “the 3D printing process releases gasses and particulates which could pose health risks to users.”

In 2019, the Underwriters Laboratory published a standard for testing 3D printer emissions. Yet, the federal government lacks standardized emission testing protocols to minimizing health risks. But scientists argue these protocols are necessary.

Regardless of whether standardized testing protocols are on the horizon, as 3D printing becomes even more commonplace, companies and individuals should work closely with counsel to navigate the largely unchartered territory of product liability issues from 3D printed objects to avoid unexpected lawsuits.

Mitchell R. Edwards, Timothy M. Zabbo and Mark D. Hochberg practice in Hinckley Allen’s litigation group.

4th Circuit: No implied right to record TSA agents

Airport security check

A lower court’s recognition of a new cause of action against Transportation and Security Administration, or TSA, officers who seized a man’s cell phone and prohibited him from recording his husband’s pat down at an airport has been grounded by the 4th U.S. Circuit Court of Appeals.

Claiming violations of his First and Fourth Amendment rights, the plaintiff successfully urged the Eastern District of Virginia to expand the narrow list of private causes of action against federal officials implied under 42 U.S.C. § 1983, known as Bivens actions.

But the Fourth Circuit disagreed.

“As ‘even a single sound reason to defer to Congress’ will be enough to require the court refrain from creating a Bivens remedy, we decline to extend an implied damages remedy pursuant to Bivens against Appellants based on the existence of an alternative remedial structure and/or the interest of national security,” Judge Stephanie D. Thacker wrote. “And since Appellee has presented no cognizable claim for damages, we need not address Appellants’ qualified immunity defense as to Appellee’s First Amendment claim.”

Thacker’s decision in Dyer v. Smith, (VLW 022-2-275) was joined by Judges Albert Diaz and A. Marvin Quattlebaum Jr.

Security checkpoint

In June 2019, Dustin Dyer was preparing to board a flight with his husband and their children at Richmond International Airport. Dyer and the children cleared the security checkpoint. His husband, however, did not; he was carrying infant formula that couldn’t be opened.

The TSA said Dyer’s husband needed to submit to a pat-down search. Dyer began video recording the search with his cell phone from about 10 feet away. After about a minute, a TSA officer approached Dyer and told him he was impeding their job.

When Dyer asked, “What are you talking about?” a TSA supervisor confirmed that he wasn’t allowed to record. Dyer stopped and then complied with their demand to delete the video.

Dyer and his family made their flight. He was later able to recover the deleted video.

Right to record

Dyer filed suit in December 2019, alleging that the TSA officers violated his First Amendment rights when they demanded he stop recording and delete the video. He also claimed that the TSA seizures of his husband and cell phone violated his Fourth Amendment rights.

The government moved to dismiss, but the district court found that no special factors counseled against recognizing implied damages remedies for Dyer’s claims.

The lower court held that qualified immunity didn’t protect the defendants because Dyer had a clearly established right to record government officials performing their duties.

The government sought interlocutory appeal.

New context

Thacker explained that Congress created a private cause of action for damages against a state official who violates an individual’s constitutional rights — but not against federal officials.

In 1971, though, the U.S. Supreme Court created an implied cause of action against federal officials in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. Under Bivens, a federal court has the “authority to imply a new constitutional tort, not expressly authorized by statute,” the judge said.

“But this authority is rarely invoked: in the 50 years since Bivens was decided, the Supreme Court has recognized only two additional contexts in which an individual may pursue damages against federal officials for violating the individual’s constitutional rights,” Thacker noted.

The first step in determining whether Bivens provides a remedy is to ask “‘whether a given case presents a new Bivens context,’ i.e., whether it is ‘different in [any] meaningful way from the three cases in which the [Supreme] Court has recognized a Bivens remedy.”

Neither party disputed and the court agreed that Dyer’s claims presented new Bivens contexts.

‘Special factors’

The next step required the court to consider if there are any special factors that might encourage hesitation in expanding Bivens remedies, Thacker said.

“In considering the special factors, we evaluate ‘whether Congress might doubt the need for an implied damages remedy,’… or if there is ‘reason to pause’ before extending Bivens to new contexts,” the judge wrote.

“Put another way, ‘the most important question is who should decide whether to provide for a damages remedy, Congress or the courts?’” she said citing 2022’s Supreme Court precedent in Egbert v. Boule.

The Supreme Court hasn’t provided a complete catalogue of special factors, so courts must consider “‘whether the judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed [and] whether ‘there is an alternative remedial structure present in a certain case.’”

Thacker added that an alternative remedy weighs against expanding Bivens even if it’s less effective or isn’t expressly identified by Congress as an alternative.

But national security is a special factor to ponder.

Thacker said the district court erred by holding that the Travelers Redress Inquiry Program, or TRIP, didn’t provide an alternative remedy.

She acknowledged that Dyer wasn’t identified as a threat or delayed, and that it wasn’t clear if he could file a complaint through TRIP.

But that was the wrong query, she said.

“[T]he question is not whether TRIP maps neatly onto Appellee’s claim,” Thacker explained. “The question is whether Congress has acted or intends to act. And in this context, Congress has acted by establishing TRIP. While TRIP may not squarely address complaints by an individual similarly situated to Appellee, that silence does not give this court license to usurp Congress’s authority in an area where Congress has previously legislated.”

The Fourth Circuit hasn’t yet addressed a Bivens claim against TSA agents. But Thacker agreed with the Third Circuit’s rejection of extending a Bivens remedy based upon TSA’s role in national security.

“And although Appellee claims he did not pose a national security risk, it is not our task to ask ‘whether Bivens relief is appropriate in light of the balance of circumstances in th[is] particular case,’” the judge said.

Finally, the judge said that “creating a cause of action against TSA agents could ‘increase the probability that a TSA agent would hesitate in making split-second decisions about suspicious passengers” or disturbances at security checkpoints.

“The nature and gravity of these risks, and whether they are outweighed by countervailing interests in judicial relief for passengers, make such a situation ill-suited to judicial determination,” she wrote.

‘Whims of Congress’

Los Angeles civil rights litigator Jonathan Corbett represented Dyer.

“This case crippled the Bivens doctrine, ending the self-executing nature of our founding document in nearly all cases, instead subjecting those guarantees to the whims of Congress,” he told Virginia Lawyers Weekly.

Corbett added that, “Last summer, the Supreme Court quite visibly destroyed abortion rights, but a lot more quietly limited our ability to enforce all of our Constitutional rights in the courts in Egbert v. Boule. Where there is a right, there must be a remedy, and we are considering our options at this time.”

Court tosses Title VII retaliation claim

Documents on desk

A former investigator with a university’s office of equity and compliance saw her Title VII claim against the university dismissed by a federal court.

The woman said the university retaliated against her after she claimed the school allegedly discriminated against a male student who said he was assaulted by his then-girlfriend.

Senior Judge Norman K. Moon of the U.S. District Court for the Western District of Virginia found in favor of the university, granting the school’s motion for summary judgment after determining the former investigator’s activity was not protected under Title VII.

Moon wrote the court’s 12-page opinion in Dufort v. Liberty University (VLW 023-3-010) earlier this month.

Background

Valerie Dufort was an investigator in the Liberty University Office of Equity and Compliance, or OEC. The office handles reports from students and employees of alleged discrimination, harassment or sexual misconduct. Investigators analyze evidence and conduct interviews before writing a draft investigation report on the findings.

In April 2019, Dufort conducted an initial interview with Student A, a male Liberty University student who claimed his then-girlfriend — Student B — “assaulted him when she became angry at him.” Per the opinion, Student A had “deep scratch marks down his neck” at the intake interview and produced text messages and emails supporting his account.

In a debrief with OEC Executive Director Nate Hopkins, Hopkins alleged Dufort said “she was going to be able to prove that what Student A was saying was true,” a statement Dufort denied making.

Hopkins approved a Title IX investigation to proceed, with Dufort as the investigator.

Following an interview with Student B, where she supposedly gave “extremely vague” answers, Dufort told Hopkins the student was likely to file a counter complaint.

In an email to Student A, Dufort said she was “not going to create a counter complaint” against him because of inconsistencies in Student A’s allegations.

Dufort emailed her draft investigation report to Hopkins in May 2019, which was later reviewed by Student B and her attorney. Student B sent evidence to Dufort following the review supporting her story, and asserted a counter complaint against Student A.

When Hopkins informed Student A of the counter complaint, he “became upset on the call because Dufort had told him in an email that no counter complaint would be brought against him.”

After receiving the email from Student A, Hopkins informed both students that Dufort was removed from the case and a new investigator was assigned.

At a meeting following her removal, Dufort “expressed concerns about Hopkins’ discriminatory treatment of Student A.” Dufort continued to have communications with Student A, unbeknownst to Hopkins or other OEC employees. She received a verbal disciplinary action from Hopkins in August 2019.

Student A filed a complaint against the OEC in October 2019, alleging gender discrimination and retaliation stemming from the Title IX investigation. Following this, Hopkins “limited the information that Dufort received about office business.” Hopkins later sought to terminate Dufort’s employment, but was advised to wait until an external investigation concluded.

In an interview with an investigator, Student A said Dufort “acknowledged he was being treated different” because of his gender, while Dufort later told the investigator that “she felt that … if a female student had claimed to have been assaulted like Student A, the OEC would have treated the female student differently.”

The investigator found Student A was not treated differently during the investigation. Dufort eventually resigned from the OEC in June 2020.

Oppositional activity

Dufort claimed she engaged in protected activity under Title VII “by opposing an unlawful discriminatory practice — namely, the OEC allegedly treating Student A differently during its Title IX investigation because of his gender.”

Liberty University moved for summary judgment, arguing Dufort did not engage in protected activity.

Moon sided with the university, noting that Title VII isn’t a “general bad acts statute.”

“Specifically, Title VII does ‘not prohibit sex discrimination against students; rather, Title IX protects students from sex discrimination’ and provides anti-retaliation protections for reporting sex discrimination of students,” he explained. “Thus, it was not reasonable for Plaintiff to believe that the perceived discrimination against Student A — who was not an employee — violated Title VII.”

Moon said Dufort never alleged the university treated her or any other employee differently due to their membership in a protected class. Rather, she “repeatedly complained about Defendant’s alleged discriminatory treatment of Student A,” which failed to constitute a Title VII unlawful employment practice since Student A was not employed by the university.

As such, Dufort didn’t “engage in protected oppositional conduct” under Title VII.

Dufort also contended she was retaliated against by the university after interviewing with the investigator regarding Student A’s claims of gender discrimination and that she engaged in protected activity when filing a complaint about Hopkins’ alleged retaliation.

Moon rejected both arguments.

“[S]he participated in an external investigation about the OEC’s alleged discrimination of Student A during its Title IX investigation, not a Title VII one,” he pointed out. “Thus, she fails to qualify as a participant in a Title VII investigation.”

An additional claim brought under the Virginia Human Rights Act by Dufort also failed. Moon said the code “uses almost identical language as Section 704(a) of Title VII’s anti-retaliation provision.” That claim, therefore, fails for the same reasons as the Title VII claim.

Having ruled Dufort was not engaging in protected activity, Moon granted Liberty University’s motion for summary judgment.

Presenting VLW’s million-dollar jury verdicts of 2022

Award

Virginia Lawyers Weekly compiles a feature each year that highlights the million-dollar verdicts of the prior year, usually run in late January.

Typically, there are between 15-20 jury verdicts reported to us where the jury awarded $1 million or more. That held true for 2022 as attorneys from across the commonwealth reported 18 million-dollar verdicts last year.

That was an increase from the 12 verdicts reported to VLW in 2021 and a considerable jump from 2020, when trial courts were closed for most of the year due to the COVID-19 pandemic. Of the 12 jury verdicts reported to VLW in 2020, only three were $1 million or more, while the number of million-dollar verdicts reported to us in 2019 was 17.

Our 2022 feature highlights the million-dollar jury verdicts we received, from a $15 million wrongful death matter from Charlottesville to a $1 million personal injury case.

For comparison, in 2021, the million-dollar jury verdicts we received ranged from a $10 million medical malpractice case to a $1 million personal injury matter.

The top verdict in 2020 was a $6.5 million recovery in a medical malpractice case, and a $1 billion copyright infringement matter received top billing in 2019.

We thank the lawyers who sent reports, and look forward to hearing from you this year.

1. $15 million — Charlottesville jury returns $15M wrongful death verdict

Name of case: Love v. Huguely

Type of case: Wrongful death

Court: Charlottesville Circuit Court

Attorneys: Paul Bekman, Baltimore, Maryland; Jeffrey Stedman and Irvin Cantor, Richmond; Kevin Biniazan, Virginia Beach

Yeardley Love first met George Huguely V during their freshman year at the University of Virginia (UVa.), where both played lacrosse. By the spring of 2010, the couple had been dating for two years—but friends witnessed a relationship that was rocky and, at times, abusive.

In April 2010, toward the end of their senior year, Love ended the relationship for good.

On May 2, 2010, after a day of heavy drinking, Huguely entered Love’s off-campus apartment, kicked open her locked bedroom door, violently shook her and assaulted her.

When Love’s roommate arrived home early the next morning, she found Love unresponsive. Medical examiners determined that Love died from blunt force trauma to her head.

When questioned by police, Huguely provided information that corroborated his presence in Yeardley Love’s bedroom and physical contact that ultimately led to her death. When police informed Huguely that Yeardley Love was deceased, he claimed to be unaware of her passing. Later, Huguely claimed to lack memory of his actions and crimes. But regardless of Huguely’s claimed memory loss of his crimes, a jury held Huguely responsible for Love’s death, convicting him of second-degree murder and sentencing him to 23 years in prison.

Huguely’s earliest possible release date is May 2030.

The Love family was represented by a team of attorneys including Paul Bekman, Jeffrey Stedman and Irvin Cantor. As the case neared trial in April 2022, Kevin Biniazan was added to the team to serve as trial counsel.

On May 2, 2022, a jury awarded $7.5 million each in compensatory damages to Sharon Love and Lexi Love Hodges, and found Huguely’s conduct did amount to willful and wanton conduct. The verdict provides much-needed closure to their 12-year ordeal. In closing arguments, Biniazan told jurors they couldn’t consider Huguely’s drinking a mitigating factor for his conduct. In other words, his voluntary intoxication in no way diminished his responsibility for Love’s death.

Sharon and Lexi expressed relief at the verdict. Although no amount of money will bring Yeardley Love back, holding Huguely both criminally and civilly liable for her death can provide some measure of justice. No appeal was filed by Huguely.

2. $11,919,358.38 — Jury awards nearly $12 million to Warren County EDA

Name of case: Industrial Development Authority for the County of Warren and Town of Front Royal, a/k/a the Warren County EDA v. McDonald, et al.

Type of case: Common law and statutory conspiracy, fraud, conversion

Court: Warren County Circuit Court

Attorneys: Cullen Seltzer, Lee Byrd, Dan Siegel, Karissa Keseorg and Jesse Bausch

The Warren County Economic Development Authority alleged that from approximately 2014 to approximately 2018, the EDA’s former executive director, Jennifer McDonald, on her own and acting with others, unlawfully diverted more than $21 million from the Warren EDA. The allegations were that Ms. McDonald created dummy limited liability companies, along with fraudulent invoices, billing statements, contracts, and other documents to buy land and other real estate for herself and others, pay off credit card, gambling, and tax debts, purchase land from the Warren EDA and others, and otherwise divert money and property from the Warren EDA to private interests. Some of these transactions were alleged to have been accomplished as a result of tricking the board into acting, but most transactions were accomplished without the board’s awareness or approval.

The board of the Warren EDA did not approve the unlawful transfers. That the EDA did not approve the transfers was the predicate for its ultra vires claim against all defendants who, by dint of those transfers, were enriched. The Warren EDA argued, and the court and juries that considered the question agreed, that EDA Board approval was statutorily required before payments from the EDA could lawfully be made. In the absence of that approval, the transfers were void ab initio.

The ultra vires claims were in addition to the EDA’s fraud, conspiracy, statutory conspiracy, unjust enrichment, conversion, and punitive damages claims. In the case against IT Federal LLC, the EDA further alleged that IT Federal had breached its promise to develop land given to it by the EDA for economic development purposes.

In this case, a jury found in favor of the EDA for most of its claims against IT Federal LLC and Truc “Curt” Tran. The jury deliberated for five hours before reaching a verdict of nearly $12 million on the sixth day of trial.

The case was one of five separate trials against the various defendants, which the parties consented to.

3. $10 million — Student impaled by bamboo on field trip

Type of case: Personal injury

Court: Charlottesville Circuit Court

Attorneys: Kevin Biniazan, Virginia Beach; Scott Perry, Arlington

The lawsuit arose after the plaintiff suffered a debilitating injury while in the care and supervision of a private coeducational and college preparatory day and boarding school for minor children grades 8 to 12 consisting of day-time academic classes and extra-curricular programs. The plaintiff at the time of injury was 15 years old and was a full-time boarding resident at the school.

The injury occurred while students were conducting a mandatory service project next to the Rivanna River on the property of the Veterans of Foreign Wars. The students were tasked with cutting bamboo to create an overlook to the river. Prior to the students’ arrival, other volunteer organizations and individuals had attempted to maintain the bamboo but as a result, created spear-like bamboo canes that the students had to navigate while conducting their service project. During the service project, the plaintiff lost his footing and was impaled by a partially cut bamboo cane.

Plaintiffs allege that the school was negligent in initiating the service project by having an inexperienced teacher to lead, what plaintiffs claim, never should have been conducted in the first place. The private school claimed that they acted within reasonable care with the selection and approval of the project, and while they were not perfect, they acted with reason.

All defendants filed pleas in bar asserting charitable immunity. In August, prior to the hearing on the pleas in bar, the VFW settled its claims with the plaintiff for the sum of $750,000. The court overruled the plea in bar raised by the private school.

The trial against the private school was disputed on liability and damages. Plaintiff called several witnesses to demonstrate that this was an unsafe activity with the use of dangerous equipment to show the negligence of the private school. Additionally, the plaintiff presented evidence of long-term physical and mental consequences of the injury including likely infertility, the future likelihood of incontinence and erectile disfunction, as well as post-traumatic stress disorder all resulting from the plaintiff’s impalement by the bamboo. The private school contested the plaintiff’s infertility and severity or likelihood of his incontinence, erectile disfunction and post-traumatic stress disorder claiming that with proper treatment and care the plaintiff would not suffer long-term consequences.

The jury deliberated for 4.5 hours and returned a $10 million verdict resulting in an overall recovery for the plaintiff of $10.75 million.

4. $6.7 million — Severed nerve resulted in permanent hand disability

Type of case: Medical malpractice

Court: Fairfax County Circuit Court

Attorneys: Thomas G. Smith and Michael J. Shevlin, Fairfax

Plaintiff, a 31-year-old political refugee from Iran, fell down her stairs and fractured the humerus bone in her non-dominant arm. She went to the emergency room, the fracture was diagnosed and she was referred to Dr. Fleeter, a general orthopaedic surgeon, for fracture repair. On initial examination by Fleeter, the plaintiff had no radial nerve function. The radial nerve wraps around the humerus. Fleeter performed an open reduction internal fixation, or ORIF, of the displaced fracture. In his operative note, Fleeter said he saw the intact radial nerve and that he protected the nerve intraoperatively. He concluded that the nerve had been bruised at the time of the fracture. For several months after the fracture repair, there was no return of radial nerve function. The plaintiff could not extend her wrist or independently use her fingers and thumb. This affected her work as a software engineer.

The plaintiff continued to see Fleeter for several months post-operatively, but Fleeter never mentioned the possibility of a nerve repair or graft. He simply offered “watchful waiting” for return of function, and when no nerve function returned, he offered a tendon transfer. A tendon transfer is an acceptable salvage operation, but it yields significantly less restoration of function than a primary nerve repair or nerve graft.

Dissatisfied with the passive care she was getting from Fleeter, the plaintiff went to Johns Hopkins for a second opinion. At Hopkins, she saw a peripheral nerve surgeon, Dr. Allan Belzberg. Belzberg told the plaintiff that too much time had passed since her injury to likely get a favorable result with a nerve graft but, due to her young age and good health, he was willing to try the graft. When Belzberg operated, he found that the radial nerve was not intact, but was completely cut in two. According to plaintiff, Belzberg told her that the nerve had either been cut when the bone was fractured — and Fleeter did not detect it when he operated — or Fleeter himself cut the nerve during his operation. There was no feasible third option. Belzberg confirmed this opinion in his trial testimony. The nerve graft done by Belzberg failed and a nerve transfer was ultimately done by Dr. Lee Osterman in Philadelphia. The plaintiff had a significant permanent partial disability of her hand.

Plaintiff’s experts testified that it was a breach of the standard of care for Fleeter to fail to detect a transected nerve during his operation or, in the alternative, Fleeter was negligent in cutting the nerve in two intraoperatively. To counter Fleeter’s assertion that he saw the nerve intact and did not cut it during his operation, plaintiff’s experts offered a third alternative opinion. If the nerve was not cut, but instead was severely bruised to the extent that it did not function — as Fleeter contended — Fleeter was required by the standard of care to timely refer the plaintiff to a hand surgeon for a nerve graft because a nerve graft is the recognized treatment for severely bruised, but intact, non-functional radial nerves, as it is for nerves that have been cut. Defense experts agreed with plaintiff’s experts on this point latter point.

During the long pendency of the case due to COVID-19, the plaintiff gave birth. The plaintiff testified that the disability to her hand prevented her from picking up her toddler, holding and feeding her daughter, bathing her daughter or dressing her daughter. Her independence was affected in that she could not take her daughter to the doctor or to the store by herself. Her inability to take care of her child caused her to feel like she was an inadequate mother and caused her significant emotional distress.

No evidence of medical bills or lost income was offered. The jury deliberated for 40 minutes before returning its verdict.

5. $5 million — Jury sides with prominent public figure in defamation suit

Name of case: Oliver v. Cohen

Type of case: Defamation

Court: Virginia Beach Circuit Court

Attorneys: Jeremiah A. Denton III and Christopher W. Palermo-Re, Virginia Beach

Deona Branch Oliver, 62, a Virginia Beach resident with deep family roots in the community, ran for city council in November 2018. Local political activist James Haskel Cohen, 59, who formerly had been a long-time supporter of Oliver, published a scandalous accusation on a popular local Facebook group suggesting Oliver had sex with a gym trainer in a public bathroom within the hearing of the man’s family, while the man was hospitalized for heart surgery.

During her testimony, Oliver (and the alleged correspondent) denied the hospital sex had occurred and Oliver spoke about the devastating impact Cohen’s statement had on her reputation and emotional state. Plaintiff’s damage testimony was corroborated by witnesses, prominent in Virginia Beach business and politics, who testified to Oliver’s excellent prior reputation and to the injury to reputation caused by the defamatory statement. Three distinguished character witnesses also testified to Cohen’s “poor” and “questionable” reputation for truth and veracity in the community.

The case was politically sensitive because most of the parties and witnesses involved were prominent in local politics. Consequently, the entire Virginia Beach Circuit Court bench recused itself. Retired Judge and McCammon Group mediator Beverly W. Snukals heard the case and conducted a three-day jury trial on short notice.

As a “public figure,” Oliver had to prove by clear and convincing evidence that Cohen had published with actual malice, i.e., reckless disregard for the truth. This was made possible, in part, through a trove of malicious “private messages” between him and third parties, obtained through fiercely contested discovery, motions to compel, and show cause hearings.

Suit was filed for $10 million. After a year and a half of litigation, defendant offered to settle for $100,000. Plaintiff did not counter. Defendant increased his offer to $250,000 a few days before trial. Plaintiff did not counter.

The jury returned with a verdict of $5 million after deliberating less than two hours. Plaintiff’s counsel argued in closing that half of the ad damnum would probably be adequate compensation.

6. $4.24 million — Woman injured by intoxicated driver, required colostomy

Name of case: Vera v. Algie

Type of case: Auto accident

Court: Fairfax County Circuit Court

Attorney: Brian Glass, Fairfax

On Sept. 16, 2018, the defendant went for dinner and drinks at MGM Casino in National Harbor. After three hours of drinking, he drove 17 miles home to Fairfax. Less than a mile from his house, he lost control of his car and entered the plaintiff’s lane of travel, causing a horrific crash. When tested, his blood alcohol concentration was 0.15 mg/DL.

The plaintiff, a 28-year-old woman, suffered great injury. Her most serious injuries were tears to her colon and ileum, which required resection in emergency surgery. Following that surgery, a wound vac was applied to her abdomen so that surgeons could reenter the field to check for infection and further injury. Within a few days, it was determined that the anastomosis at the colon surgical site was leaking and the plaintiff required a colostomy.

She ultimately would endure 10 surgeries during her 33-day hospital stay. Because surgeons had been in and out of her abdomen so many times, she was left with a 22cm x 22cm hernia at the surgical site. She has been unable to work at her calling as an HR manager for a dog walking company since the time of the crash.

At trial, the defense conceded that all the medical care and lost earnings were related to the crash. The punitive damages claim was vigorously defended on the grounds that the blood alcohol level was below a 0.15 because the blood test was performed on blood serum and not whole blood and that the defendant’s speed, rather than his intoxication, was what caused him to lose control of the car and was the sole proximate cause of the crash.

The defendant testified at trial that he had consumed only two drinks at the casino over the course of three hours. The plaintiff’s toxicology expert told the jury that it would have required 9-11 drinks to elevate the defendant’s blood alcohol concentration to 0.15. The plaintiff’s expert testified that even if the test had been performed on blood serum, a retrograde analysis of the blood alcohol levels put him above 0.15.

After two days of evidence, the jury deliberated for only 75 minutes before rejecting both of those defenses and returning a verdict of $3.24 million in compensatory damages and $1 million in punitive damages. The jury further awarded prejudgment interest on the $1 million from the date of the crash.

7. (tied) $4 million — Man died after staff allegedly disregarded chest pain

Name of case: James A. Boley Jr., Administrator of the Estate of Robert Lee Boley, Deceased v. Armor Correctional Health Services, Inc., Arleathia Peck, Emmanuel Bynum

Type of case: Wrongful death, civil rights

Court: U.S. District Court for the Eastern District of Virginia, Richmond Division

Attorneys: Mark J. Krudys and Danny Zemel, Richmond

Plaintiff alleged that Robert Boley, an inmate at the Deerfield Men’s Work Center, sought care for acute chest pain, but was disregarded by correctional and medical staff. Boley was found dead the following morning. An autopsy report determined that Boley died of a “ruptured aortic aneurysm due to hypertensive and atherosclerotic cardiovascular disease.”

7. (tied) $4 million — Man suffered permanent spinal cord damage after surgery

Name of case: Wolfe v. Lim, M.D. and Atlantic Brain & Spine, LLC

Type of case: Medical malpractice

Court: Fairfax County Circuit Court

Attorneys: Anthony M. “Tony” Russell, Roanoke; Les S. Bowers, Charlottesville

David Wolfe, a 58-year-old male, presented to Dr. Jae Lim with mid-thoracic pain and bilateral leg weakness with associated balance issues and difficulty standing and walking. An MRI revealed a T9-10 disc herniation which had caused compressive thoracic myelopathy. Dr. Lim recommended surgical intervention that he termed a “modified or combined posterior/costotransverse approach” with interbody fusion and insertion of pedicle screws as needed. The spine surgery was performed at Reston Hospital Center utilizing neuromonitoring.

During the initial part of the decompression, Wolfe’s motor evoked potentials and SSEPs were lost completely with reportedly partial return approximately 10 minutes later. After the loss of neuromonitoring signals, Dr. Lim continued to proceed with the bilateral diskectomy and decompression along with the fusion. Postoperatively, Wolfe had almost no movement in his legs. Due to his paralysis, he was transferred to the intensive care unit. A postoperative MRI of the thoracic spine showed cord signal change consistent with an intraoperative injuryand severe canal stenosis with cord compression at the T9-10 level, despite the surgery.

Dr. Lim improperly performed the surgery by taking a straight posterior approach (i.e., laminectomy) when he should have taken a lateral or anterior approach. This negligence resulted in Wolfe suffering permanent damage to his spinal cord.

Wolfe never recovered sensation or motor function in his lower extremities, bowel or bladder. He was discharged home after a short stay in inpatient rehabilitation. At home, he was unable to access any room but the living room. As such, the family converted the living room into his living quarters. He cannot go upstairs or downstairs and cannot fit into any of the bathrooms in the house with his wheelchair. His wife, who was trained as an attorney and works in nonprofit public health for seniors, performs all of his care including changing his adult diapers, emptying his suprapubic catheter bag and giving him sponge baths.

Plaintiff’s two orthopedic spine surgeons testified that Dr. Lim (a neurosurgeon) did not perform his self-termed “modified costotransversectomy” (which is a lateral/posterolateral approach) but that he instead performed a mere laminectomy (posterior approach). They explained with references to about a dozen pieces of designated literature dating back to the late 1800s that a laminectomy alone was absolutely contraindicated for thoracic disc herniations because the approach does not permit the surgeon to be lateral enough to avoid injury to the spinal cord. They testified that Dr. Lim’s approach (in which he removed only the lamina and part of the facet joint) was a forbidden posterior approach.

The defense designated no literature. Instead, the defense argued that a surgeon could “modify” any surgical procedure to his liking, and that Dr. Lim did not violate the standard of care and did not touch or injure the spinal cord.

No medical bills, lost wages or future lost earnings were introduced. Counsel elected during trial not to call a life care planning expert. The only special damages put before the jury came in the form of testimony from the plaintiff’s wife regarding her knowledge of certain medical bills, transportation expenses and necessary home modifications.

After approximately four hours of negotiations, the jury returned with a verdict of $4 million plus interest from the date of the malpractice, which was exactly the amount requested in both opening and closing. The trial court entered judgment for the plaintiff in the amount of the applicable medical malpractice cap of $2.25 million with interest from the date of the verdict.

9. $2.5 million — Plaintiff sustained injury after fall on stairs

Name of case: Taylor v. Harlow

Type of case: Personal injury

Court: Chesterfield Circuit Court

Attorneys: Bill Shields and Jennifer Wilkie, Richmond; Corine Bailey, Petersburg

The plaintiff fell on a defective step and then down a flight of stairs, rupturing the membrane between her vagina and rectum.

10. $2,465,259.33 — Plaintiff sustained multiple fractures in head-on crash

Name of case: Williams v. Billeter

Type of case: Motor vehicle tort

Court: Norfolk Circuit Court

Attorney: Griffin M. O’Hanlon, Norfolk

The plaintiff was a front-seat passenger in a vehicle traveling on Interstate 64 in Norfolk when the defendant crossed the grassed, center median and struck plaintiff’s vehicle head-on. The plaintiff was asleep at the time of the wreck and awoke with immense pain in his lower left leg. EMS transported the plaintiff to Sentara Norfolk General Hospital where he was diagnosed with a comminuted tibial plafond fracture, left talus fracture and fibula fracture. Essentially, the plaintiff’s left ankle was shattered as a result of the impact. Surgeons stabilized the fractures with an external fixator that subsequently lost fixation and required revision. The plaintiff was discharged from the hospital approximately two weeks later. He thereafter developed osteomyelitis, a bone infection, at the insertion sites of the external fixator screws. The plaintiff underwent several operative procedures for the placement of antibiotic beads to treat the infection, as well as a month-long admission at a rehabilitation center for intravenous treatment of the infection.

The plaintiff’s left ankle bones healed in such a way as to fuse his ankle joint resulting in a lack of range of motion. The positioning of the autofusion left the plaintiff with a plantar flexed foot meaning that his foot was fused at a slightly downward angle causing significant gait impairments. The plaintiff’s medical expert opined that the left ankle injury supported a permanent, 100% impairment rating of the plaintiff’s left lower extremity. The medical evidence presented at trial also included testimony that, while potential operative treatments exist to treat the left ankle condition, the plaintiff’s chronic osteomyelitis make him a poor candidate for those treatment options. Approximately $415,000 in past medical bills were presented at trial, along with a contested claim for a future cervical surgery at a cost of approximately $130,000.

The defendant was intoxicated at the time of the wreck. However, the facts of the case did not support a claim for statutory or common law punitive damages. The defense admitted liability pre-trial to preclude presentation of evidence regarding the defendant’s intoxication. The trial was conducted in a single day resulting in a verdict in favor of the plaintiff in the amount of $2,465,259.33 with an award of pre-judgment interest on the medical bills to run from the date of the wreck in January 2019. The verdict will exhaust all available insurance coverage which had been tendered prior to trial

11. $1,653,369.86 — Woman died after pulmonary embolism

Name of case: Lori and Danielle Norfleet, Co-Administrators of the Estate of Nicole Norfleet, Deceased v. Valley Physician Enterprise, Inc.

Type of case: Medical malpractice

Court: Winchester Circuit Court

Attorneys: Travis W. Markley, Richard L. Nagle, James N. Knaack and Benjamin M. Wengerd, Reston

Decedent Nicole Norfleet, a 34-year-old female, broke the tibia and fibula of her left leg when she slid off her horse on Oct. 17, 2020. She was taken to Winchester Medical Center and upon evaluation it was determined that she needed open reduction and internal fixation of the tibia and fibula. That surgical repair was completed on Oct. 19, 2020, without complication. Her remaining inpatient and outpatient post-op care was deferred to the surgeon’s PA. During her in-patient stay, the orthopedic surgeon ordered DVT prophylaxis post-operatively, which the orthopedic PA did not continue for the patient after her discharge on Oct. 21, 2020, despite her inability to timely meet her physical therapy discharge goals.

When the patient presented for her two-week post-op appointment on Nov. 2, 2020, she reported difficulty ambulating as expected. Based on that history and his in-office examination and observation, the orthopedic PA documented that the patient was at increased risk for DVT formation. Despite that, he still did not order DVT prophylaxis, but instead encouraged her to move more and to perform range of motion exercises.

Despite the decedent’s compliance with the orthopedic PA’s direction to move more and perform range of motion exercises, the patient collapsed in her bathroom on Nov. 21, 2020, and was pronounced dead upon arrival to the nearest hospital. Autopsy confirmed that she had succumbed to a massive bilateral pulmonary embolism that proliferated from the extensive DVT in her left leg.

Trial involved extensive debate between the experts over the decedent’s risk factors for DVT, including her activity level at various points and whether she was using hormonal birth control at the time of her hospitalization and the post-op appointment. The defense argued that the anticipated risks of DVT prophylaxis outweighed any anticipated benefits.

The five-day jury trial culminated with deliberations of approximately three hours before the jury awarded $1,500,000: $500,000 apiece to the parents and $250,000 apiece to the two sisters of the decedent, plus prejudgment interest from Nov. 21, 2020, the date of the decedent’s death, bringing the total to $1,653,369.86.

12. $1.5 million — Doctor allegedly groped teen at home visit

Name of case: Aboulhosn v. Forman

Type of case: Intentional tort

Court: Loudoun Circuit Court

Attorneys: James P. Magner, Leesburg; Barbara J. Prasse-Anderson, Tampa, Florida

The defendant doctor was accused of groping a teenaged patient in her home during a purported home visit that he initiated on his own without any invitation by the parents

13. $1.4 million — Woman died months after pressure sore infections

Name of case: Nelson/Donaway v. Halifax Regional Long term Care, Inc. t/a The Woodview

Type of case: Negligence

Court: Halifax County Circuit Court

Attorneys: Robert W. Carter Jr. and Mary Estfanous, Appomattox/Lynchburg/Richmond

An 86-year-old, triple stroke, female patient was admitted to the defendant’s nursing home with total left hemiparesis, unable to verbalize, and dysphagia. She was a patient of the nursing home for four months. She developed a bone-deep stage IV sacral pressure ulcer that required two surgical debridements. She also developed a left heel pressure ulcer that later, following hospitalization and transfer to a second nursing home, became unstageable. Both pressure ulcers became infected at different times, but both were documented at the second nursing home to have been clean and improving without infection at the time of the patient’s death three months after leaving the defendant nursing home. Patient had underlying COPD. Her local treating physician at the second nursing home completed the patient’s death certificate, which identified the patient’s primary cause of death as COPD. The sacral pressure ulcer was listed on the death certificate with several other diagnoses as a contributing cause of death. The local treating physician explained at trial that she listed the sacral pressure ulcer on the death certificate not because it contributed to the patient’s death but because she was identifying medical conditions the patient died “with,” not “from.” Defense called the patient’s local treating physician, expert James Foster, III, M.D. (wound expert) and expert Dennis O’Neill, M.D. (internist/geriatrician) to testify the sacral/left heel pressure ulcers did not cause the patient’s death. The trial judge refused the defendant’s request to bifurcate survival and wrongful death claims. Those claims were tried together with a single verdict form. The jury awarded $1.4 million compensatory damages on the wrongful death claim to four statutory beneficiaries (two daughters and two grandchildren) for their loss of solace/grief, an additional $100,000 for medical/funeral expenses, and prejudgment interest from date of death. Total verdict exceeded the applicable med mal cap of $2.05 million.

14. $1.25 million — Surgeon clipped, cut bile duct during procedure

Name of case: Davis v. Sanders and Virginia Surgery Associates

Type of case: Medical malpractice

Court: Fairfax County Circuit Court

Attorneys: Travis W. Markley, James N. Knaack and Benjamin M. Wengerd, Reston

Plaintiff Geraldine Davis, a 61-year-old female, presented to Inova Mount Vernon Hospital on the night of April 11, 2020, with acute abdominal pain and persistent emesis, which led to a fairly quick diagnosis of acute cholecystitis. Late in the morning of April 12, 2020, general surgeon Dr. Enoch Sanders Jr. took Davis to surgery for a laparoscopic cholecystectomy, which was charted as uneventful and without complication. Later, at his deposition, Sanders would characterize the surgery as “textbook” and confirm that he had absolutely no difficulty visualizing the relevant anatomy. Davis was discharged from the hospital the next day, despite continuing to suffer abdominal pain and dark urine.

Eight days after her discharge home from Inova Mount Vernon Hospital on April 13, Davis returned to the hospital emergency department for evaluation of her deteriorating condition. Mrs. Davis was admitted, and diagnostic testing confirmed a bile leak secondary to common bile duct injuries. During that hospitalization, Davis underwent multiple drainage procedures by interventional radiology, placement of multiple drains and planning for a future significant reconstruction of her biliary tree.

Davis underwent an exploratory laparotomy on June 1. Her hepatobiliary surgeon confirmed that during the index laparoscopic cholecystectomy, Sanders had clipped and cut the common bile duct and cut the common hepatic duct, resulting in the removal of a segment of her common duct between the two transections. To repair these injuries, he performed a Roux-en-Y hepaticojejunostomy, rerouting a portion of her small bowel to replace the segment injured common duct. By the end of her treatment for her biliary injuries, Davis had been hospitalized for an additional 13 days in April and June 2020, undergone multiple inpatient bile drainage procedures, had to live with and maintain drains for eight weeks, and underwent the Roux-en-Y hepaticojejunostomy for definitive repair of the damage done.

Each party elected to call a single general surgery expert on the standard of care issues at trial. The parties’ experts offered starkly different perspectives on the required surgical technique for laparoscopic cholecystectomy, known as the Critical View of Safety. Causation and damages were essentially uncontested in the case and both experts agreed that the more than $258,000 in medicals that Davis incurred were a direct result of Sanders’ surgery. The defense argued to the jury that Davis made a good recovery from the repair and has suffered no complications requiring further medical intervention to date. Despite that position, the experts both agreed that Davis remains at heightened risk for significant medical problems going into the future because of having to undergo the hepaticojejunostomy.

The five-day jury trial culminated with deliberations of approximately three hours before the jury awarded $1.25 million to Davis.

15. $1,245,037.22 — Former executive director allegedly diverted funds to private parties

Name of case: Industrial Development Authority for the County of Warren and Town of Front Royal, a/k/a the Warren County EDA v. McDonald, et al.

Type of case: Common law and statutory conspiracy, fraud, conversion

Court: Warren County Circuit Court

Attorneys: Cullen Seltzer, Lee Byrd, Dan Siegel, Karissa Kaseorg and Jesse Bausch, Richmond

The Warren EDA alleged that from approximately 2014 to approximately 2018, the EDA’s former executive director, Jennifer McDonald, on her own and acting with others, unlawfully diverted more than $21 million from the Warren EDA. The allegations were that McDonald created dummy limited liability companies, along with fraudulent invoices, billing statements, contracts, and other documents to buy land and other real estate for herself and others, pay off credit card, gambling, and tax debts, purchase land from the Warren EDA and others, and otherwise divert money and property from the Warren EDA to private interests. Some of these transactions were alleged to have been accomplished as a result of tricking the board into acting, but most transactions were accomplished without the board’s awareness or approval.

The board of the Warren EDA did not approve the unlawful transfers. That the EDA did not approve the transfers was the predicate for its ultra vires claim against all defendants who, by dint of those transfers, were enriched.

One of five separate trials stemming from this action claimed Donald F. Poe and his company, Earth Right Energy Solar-Commercial LLC, conspired with McDonald to use authority money without permission to engage in three schemes – two involving the company.

The jury returned the verdict in favor of the Warren EDA on the fourth day of trial.

16. (tied) $1.1 million — Patient sustained nasal injury during surgery

Name of case: Wall v. Princess Anne ENT & Allergy, P.C.

 Type of case: Medical malpractice

Court: Virginia Beach Circuit Court

Attorney: Amberley Gibbs Hammer, Currituck, North Carolina

Plaintiff Melissa Wall, 33, presented to Princess Anne ENT & Allergy with sinus related complaints and difficulty breathing out of the right side of her nose. The ENT recommended that Ms. Wall undergo surgery. On April 8, 2019, Ms. Wall underwent an open septorhinoplasty with the placement of spreader grafts. During the surgery, bipolar cautery was used to stop her bleeding. Ms. Wall suffered cautery injuries to her nose during the surgery. One month after her surgery, the ENT dictated his operative report and documented that at the conclusion of the surgery there was small epithelial skin loss presumed to be related to incidental cautery contact of the skin with bipolar cautery, which was considered minor at the time.

The defendant contested liability, causation and damages. At trial, plaintiff alleged that her cautery injuries were caused by the use of excessive cautery in violation of the standard of care. The cautery injuries were so severe that they resulted in full thickness tissue loss in the right soft tissue triangle of her nose and the columella region. Ms. Wall had to undergo a pedicled forehead flap reconstruction with a composite graft of her ear to her nose and an adjacent tissue transfer to the ear to repair the nasal defect. Ms. Wall incurred approximately $110,000 in medical bills.

At trial, plaintiff’s expert testified that the cautery used during the surgery was so excessive that it caused an irreversible interruption of blood supply to the tip of Ms. Wall’s nose causing it to become completely necrotic. He further testified that in his 26 years of practice, he has never seen this type of injury in a septoplasty. He further testified that this injury could not be caused by incidental cautery contact.

At trial, the defendant’s expert testified that Ms. Wall’s injuries were not caused by excessive cautery, but instead, were the result of her failure to properly heal because she had bad vascularization in part due to smoking. However, he conceded that he has never seen this type of injury in septoplasty nor has he read about it occurring, even when there is a smoking history.

The ENT who performed the surgery testified that he did not injure Ms. Wall’s nose with cautery. However, there was evidence at trial that he had called her nasal injuries “cautery” injuries multiple times during his care and treatment of Ms. Wall, including text messages he had written to the facial plastic reconstructive surgeon he referred her to for the repair.

The jury deliberated for approximately three hours before returning a verdict for the plaintiff.

16. (tied) $1.1 million — Motorcyclist injured trying to avoid vehicle in wrong lane

Name of case: Blue v. Foster

Type of case: Personal injury

Court: Spotsylvania County Circuit Court

Attorney: Christopher J. Toepp, Richmond

The plaintiff was injured in a non-contact motorcycle crash that occurred on Courthouse Road in Spotsylvania County on Oct. 26, 2014. Nearly all of the pertinent facts surrounding the event were in dispute and liability was denied. The plaintiff, Leroy Blue, was traveling as the third vehicle in a four-vehicle procession with the intention of taking his Harley Davidson for a ride around Lake Anna. As the group wound through a series of curves and crested a hill on Courthouse Road, they encountered the defendant, who was driving her sedan in the opposing travel lane facing the wrong direction. The plaintiff claimed that as he got closer to the defendant’s vehicle and realized that she was driving the wrong way down the two lane road, she suddenly began to merge into his travel lane, which caused him to lock up his brakes. The plaintiff claimed the defendant then hesitated before merging completely into his lane which forced him to lock up his brakes a second time. He then lost control of his motorcycle and crashed into a ditch on the side of the road.

The defendant acknowledged that her driveway sits at the top of the hill proximate to the location where this event occurred. Her sight distance for vehicles approaching the mouth of her driveway from the right is limited because of the hill and the curves, however, the road is flat and straight to the left of the drive and her sight distance in that direction is substantial. On occasion she would pull out of her driveway into the oncoming travel lane to build additional sight distance before merging into the proper lane of travel. Her contention was that on the date in question she was stopped in the oncoming travel lane when the first motorcycle flew by her at a high rate of speed. A second vehicle then passed her. Thereafter both the plaintiff’s son and the operator of the second vehicle slammed on their brakes, presumably with the intention of confronting the defendant for being in the wrong lane of travel. The plaintiff then came by her vehicle at a high rate of speed, didn’t notice that the vehicles he was following were coming to a stop, locked up his brakes to avoid causing a rear end collision and crashed off the road. She denied primary negligence, proximate causation and asserted the affirmative defense of contributory negligence. The responding crash team documented 91 feet of skid mark attributable to the plaintiff and attributed fault to the plaintiff on the basis of speed.

As a result of the crash, the plaintiff sustained a fractured collar bone, six broken ribs and two thoracic compression fractures. He was kept in patient overnight but self-discharged the following day against his doctor’s advice. As a non-surgical candidate, he testified at trial that if he had to be in pain, he would rather be at his house. He returned to work as a master mechanic five days later. The plaintiff’s attending neurosurgeon testified that the plaintiff’s resultant injuries were permanent and characterized by a lifetime of at times debilitating pain. He found it shocking yet admirable that the plaintiff was able to return to work within such a short period of time. The associated medical costs were not contested and the defense presented no medical evidence.

The hard-fought case was initially tried in 2018. The first jury returned a verdict for the plaintiff in the amount of $0. After post-trial motions, that verdict was set aside and a new trial on both the issues of liability and damages was ordered. The case was subsequently continued twice as a result of the pandemic before the second trial was held on March 18, 2022. After 50 minutes of deliberation, that jury returned a verdict in the plaintiff’s favor for $1.1 million. The case subsequently settled for the liability policy limits of $500,000.

18. $1 million — Plaintiff fractured leg after being rear ended

Name of case: Simpson v. Llab Trucking Inc. et al.

Type of case: Personal injury

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

Attorneys: Kevin L. Locklin and Brian P. Coleman, Manassas

The plaintiff was stopped at a red light when he was rear-ended by a commercial vehicle on Prince William Parkway on May 20, 2020. The defendant’s vehicle struck several other vehicles and injured multiple people. The plaintiff was taken to Sentara Northern Virginia Medical Center where it was determined that he had a tibial plateau fracture along with comminuted fractures of the lower part of the tibia and fibula. A tibial nail was placed, but it was removed when the tibial nail began to back out into the knee joint. The plaintiff then developed a bow in his left leg due to a non-union. Ultimately, the plaintiff was referred to an orthopedic trauma specialist, who placed the plaintiff into an external fixator device for several months in an attempt to correct the deformity of the leg and non-union. Plaintiff suffered from infections while in the external fixator.

The plaintiff was still actively treating at the time of trial and even set for another surgery the week after the trial. After an exhaustive search for coverage, it became clear that the defendants only carried a single limits $1 million commercial policy and were considered judgment proof. The plaintiff had no applicable underinsured coverage. Given the multiple other claimants, the plaintiff sought to be the first to file in federal court to obtain the first trial date. A global mediation was attempted but failed. The defendants filed a motion to stay and another claimant filed a motion to consolidate — which the plaintiff opposed. After the motions were denied, the plaintiff was successful in obtaining a verdict in the amount of $1 million. The judgment was paid by Progressive and exhausted the full available coverage.

Sanctions levied after discovery violations

Lawyer experiencing stress

A party’s discovery delays resulted in a default judgment and an award of more than $80,000 in compensatory and punitive damages to its opponent.

On appeal, the sanctioned party argued that the harsh sanctions were an abuse of discretion because they responded to discovery — albeit more than 200 days late — and their opponent wasn’t prejudiced by the delay.

The Court of Appeals of Virginia wasn’t persuaded.

“A trial court may conclude that the lack of prejudice warrants a lesser sanction than the striking of a pleading or the entry of a default judgment. For instance, an award of attorney fees may be appropriate ‘[i]n lieu of’ such a sanction,” Judge Stuart A. Raphael wrote. “But our Supreme Court has never required that prejudice must be shown before the most severe sanctions may be imposed for disobeying a discovery order.”

Judges Clifford L. Athey Jr. and Vernida R. Chaney joined Raphael’s opinion in Pine Hill Group v. Nass Group (VLW 023-7-002).

Sanctions

Nass Group rented commercial space from Pine Hill Group under a written two-year lease that was orally renewed for another two-year term. Although it paid several months’ rent at the beginning of the new term, Nass said Pine Hill changed the locks anyway.

Nass sued Pine Hill for breach of contract, conspiracy and conversion of their equipment and inventory. Pine Hill’s attorney filed an answer denying liability. Nass served discovery in June 2021; Pine Hill didn’t respond.

Instead, Pine Hill’s attorney moved to withdraw when the discovery responses were 40 days overdue. Three weeks later, Nass moved to compel discovery.

The judge allowed Pine Hill’s attorney to withdraw. Pine Hill was given 10 days to send discovery responses that were now 92 days late.

But the judge struck language from Nass’s proposed order that default would automatically be entered against Pine Hill if they violated the order. The deletion was “without prejudice” to future relief.

Again, Pine Hill didn’t respond. This time, Nass moved for sanctions.

In November 2021, the judge struck Pine Hill’s answer, entered default judgment against them on liability and scheduled a damages hearing. At this point, the responses were 120 days overdue.

Pine Hill retained counsel who moved for reconsideration of the sanctions order in February 2022. Pine Hill claimed it sent discovery responses weeks earlier and that Nass would suffer minimal prejudice if the default were withdrawn. It also asserted that the unwritten lease extension was invalid.

Pine Hill also said it was unaware that its attorney moved to withdraw until days before the November hearing. Rather than bad faith, Pine Hill said its discovery failures were a genuine misunderstanding by a representative who wasn’t proficient in English and didn’t understand the U.S. legal system.

The judge refused to reconsider the sanctions. In March 2022, the judge awarded Nass compensatory damages of $60,190.92 and punitive damages of $20,000.

Pine Hill appealed.

No relief

Supreme Court Rule 4:12 addresses how to enforce discovery orders and provides that a court may strike pleadings or render a default judgment against a party who disobeys a discovery order or fails to respond to discovery.

“The Supreme Court of Virginia held in 2000 ‘that Rule 4:12(d), when read with the other provisions in Rule 4:12, authorizes a circuit court to dismiss [a pleading] only when the [disobedient party] fails to comply with a court’s order to provide or permit discovery,” Raphael wrote. “The Court acknowledged that its interpretation of Rule 4:12(d) conflicted with how most federal courts had construed the identically worded language of Rule 37(d) of the Federal Rules of Civil Procedure. It noted, however, that ‘federal courts’ interpretations of their rules’ were only ‘informative, … not binding on this Court’s interpretation of our Rules.’”

But the Supreme Court amended that rule in 2018 and “clarified that if a party completely fails to respond to discovery, the trial court can impose the severe sanctions available … even ‘without prior entry of a Rule 4:12(b) order to compel,’” Raphael noted.

Here, Nass could have demanded more severe sanctions against Pine Hill and it didn’t object to having its automatic default language removed. Further, Pine Hill’s attorney endorsed that the deletion was “without prejudice” before withdrawing from the case.

Also, Raphael pointed out, discovery responses were 209 days overdue by the time Pine Hill retained new counsel and responded to interrogatories and document requests.

“We disagree with Pine Hill that a trial court abuses its discretion if it imposes a default judgment as a discovery sanction when the opposing party has not been prejudiced by the delay,” he wrote.

The court then declined Pine Hill’s request to contextually apply a different rule that allows relief from default for good cause if the defendant moves for relief before the court enters the default judgment.

“The failure to file a responsive pleading by the deadline imposed by court rules is different in kind from disobeying a court order compelling discovery, entered after the disobedient party has already violated a deadline imposed by court rules,” he wrote. “Rule 4:12 contains no similar ‘for good cause shown’ language and, as just explained, our Supreme Court has squarely rejected claims that the movant must show prejudice before the court enters the severest discovery sanctions.”

Raphael acknowledged that a trial court’s sanction authority has limits.

“But the circuit court here could properly find that Pine Hill failed to justify its failure to respond to Nass’s discovery requests, particularly during the months in which Pine Hill was represented by its original counsel,” he pointed out. “The circuit court also did not act precipitously or without warning. Under the 2018 amendment to Rule 4:12(d), the court could have struck Pine Hill’s answer and entered a default judgment as a sanction for not responding to Nass’s discovery requests.”

Rather than enter default immediately, the trial court ordered that Pine Hill respond to discovery within 10 days and declined Nass’s automatic default language.

“It was only after Pine Hill missed that deadline and Nass moved for default judgment that the circuit court granted that relief as a sanction under Rule 4:12(b)(2),” Raphael wrote.

There was no abuse of discretion by the lower court when it refused to reconsider the default judgment entered against Pine Hill as a discovery sanction for disobeying the court’s order compelling discovery.

‘Cascade of errors’

John Chapman “Chap” Petersen said Pine Hill called his Fairfax office for representation after default had been entered. He told Virginia Lawyers Weekly it came down to whether the trial court had discretion under Rule 4:12.

“Given that default was the equivalent of the death penalty, I argued that there had to be some showing of prejudice and asked the court to import some type of standard,” he said. “Obviously, they declined and just said ‘proper discretion’, which was very harsh. Usually, you have all kinds of discovery controls and dates, but there was no scheduling order in place yet.”

Petersen added that “it’s just one of those things where you get a client that didn’t hire counsel when there was an order compelling discovery, didn’t do anything and then showed up to their default hearing without counsel. It was a cascade of errors.”

Jerome Friedlander II of Friedlander & Friedlander in McLean represented Nass Group from the start of litigation.

The harsh sanctions “certainly weren’t the fault of the lawyers as much as the fault of the clients for not listening to their lawyers,” he noted. “And of course, that’s the bane of our existence, isn’t it?”

He added that “by the time Chap tendered Pine Hill’s discovery responses along with a motion for reconsideration, they’d already received the biggest strike against them.”

Friedlander noted that the judge said there was “no evidence other than attorney representations as to what explanation may exist. There probably wasn’t an explanation and Chap’s not going to make something up, so they did the best they could with what the client was giving them, which was nothing.”

Damages could have been worse for Pine Hill.

“We originally asked for $65,715 but the judge didn’t give us lost income for the remaining seven months of the lease,” Friedlander said.

VSB Disciplinary Actions: Jan. 30 issue

Effective Jan. 13, 2023, pursuant to Virginia Rule of Professional Conduct 8.5(a), the Virginia State Bar Disciplinary Board issued a public reprimand with a term to Robert Overbey Jr. of Lorton for violating professional rules that govern the unauthorized practice of law; multijurisdictional practice of law and misconduct. This was an agreed disposition of misconduct.

VWCC names new Virginia Victims Fund director

Dion

The Virginia Workers’ Compensation Commission has announced a new director of the Virginia Victims Fund.

The VWC named Shannon Dion as the fund’s new director in a press release earlier this month. Dion joined the fund after previously serving as the director of the Virginia Department of Criminal Justice Services.

“I am honored to join this great agency as leaders in victims services throughout the Commonwealth for over 45 years,” Dion said via press release. “I look forward to continuing to strengthen our strategic partnerships and building on this incredible legacy which has already contributed so much to our community.”

Dion earned her bachelor’s degree from the University of Virginia and her law degree from the University of Richmond. She has previously held leadership positions at the Virginia Office of the Attorney General, the U.S. Department of Justice and the Richmond Commonwealth Attorney’s Office.

Cornett

A division of the VWC, the Virginia Victims Fund — also known as the Criminal Injuries Compensation Fund — is a program designed to help victims of violent crime with out-of-pocket expenses including medical bills and funeral expenses.

The fund is “a payor of last resort” and compensates applicants for eligible expenses that will not be compensated from other sources. Money for the fund comes from fines and fees collected from offenders.

New mediators

Earlier this month, the VWC announced that a pair of deputy commissioners are now certified mediators.

Wulf

Deputy Commissioners John T. Cornett and Josh Wulf were recently certified by the Supreme Court of Virginia as certified mediators. According to a VWC press release, Cornett and Wulf will serve in mediator roles within the commission’s Alternative Dispute Resolution program.

The commission currently has more than 20 certified mediators who conduct mediations every day in nine locations throughout the commonwealth. Per the commission, ADR’s goal “is to provide the workers’ compensation system with an expeditious and efficient alternative to litigation for the resolution of disputes.”