May 15 2023 | Virginia Lawyers Weekly

Assault suit against TSA screener revived

The Federal Tort Claims Act, or FTCA, allows people who claim they were assaulted by Transportation Security Administration, or TSA, screeners to sue the federal government, the 4th U.S. Circuit Court of Appeals has held in an issue of first impression.

Joining with other U.S. Circuit Courts of Appeals, U.S. Circuit Judge Toby J. Heytens said the FTCA permitted a claim like the plaintiff’s and reversed the district court’s dismissal of her case.

The appeal came down to a single controlling question: Are TSA screeners “empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law?”

Heytens said the answer is yes.

“Congress has granted TSA the authority to ‘screen[] … all passengers and property … that will be carried aboard a passenger aircraft,’ and it has defined such ‘screening’ (at least in the context of cargo) as including a ‘physical examination’ or a ‘physical search,’” the judge explained. “What is more, federal regulations require an ‘aircraft operator’ to ‘refuse to transport’ any person ‘who does not consent to a search or inspection of his or her person’ by TSA screeners.”

U.S. Circuit Judge Stephanie D. Thacker and U.S. District Judge Joseph Dawson III, sitting by designation from the District of South Carolina, joined Heytens in Osmon v. United States, (VLW 023-2-108).

‘Groin search’

When Erin Osmon passed through a TSA security checkpoint at Asheville Regional Airport, a screener told her the body scanner “alarmed on her” and she needed to submit to a groin search.

Per the opinion, Osmon claimed the TSA screener forced her to spread her legs wider than necessary and fondled her genitals twice during the search.

Osmon sued the federal government for battery under the FTCA in the Western District of North Carolina.

A magistrate judge recommended the district court dismiss the suit. It was accompanied by a detailed memorandum about whether the FTCA waived sovereign immunity for Osmon’s claim. Osmon responded with a two-and-a-half page “Objection to Memorandum and Recommendation.”

Chief District Judge Martin K. Reidinger adopted the recommendation, saying “the Magistrate Judge’s proposed conclusions of law are correct and are consistent with current case law.” De novo review was unnecessary because Osmon failed to object with sufficient specificity, Reidinger held.

‘Modest bar’

According to the Federal Magistrate’s Act, district courts are required to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made,” Heytens noted.

“[A] party wishing to avail itself of its right to de novo review must be ‘sufficiently specific to focus the district court’s attention on the factual and legal issues that are truly in dispute,’” the judge wrote. “Osmon easily cleared that modest bar.”

Here, Osmon responded to the magistrate judge’s recommendation with a written objection that framed a “‘pure question of law,’ the resolution of which controlled the outcome of a single dispositive motion,” Heytens said.

In her objection, Osmon identified areas of agreement, summarized the competing positions and cited cases from other circuits. Where those circuits agreed with the government’s view, they did so for different reasons than the magistrate judge recommended, she pointed out.

“There was, in short, no doubt about ‘the true ground for [Osmon’s] objection’ to the magistrate judge’s recommendation,” Heytens wrote, adding that the district court erred by finding that Osmon merely summarized arguments and didn’t specifically object to the magistrate judge’s reasoning.

In fact, Osmon needed only to object to the magistrate’s recommendation rather than file a brief or memorandum of law and she didn’t need to frame her arguments anew.

“Such a requirement would require litigants to walk a tightrope between refining their existing arguments just enough to preserve them for de novo review but not so much to risk having them considered forfeited because they were never presented to the magistrate judge in the first place,” Heytens explained.

TSA authority

The FTCA contains a “law enforcement proviso” that allows claims for “assault” or “battery” arising out of “acts or omissions of investigative or law enforcement officers of the United States Government.”

Heytens said the government’s discussion about whether TSA screeners are “law enforcement officers” generally missed the mark.

“Congress has defined ‘investigative or law enforcement officer’ as ‘mean[ing] any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law,’” the judge wrote.

The government didn’t challenge the magistrate judge’s conclusion that TSA screeners are “officers of the United States” within the meaning of the law enforcement proviso.

“This means the only appellate decision favoring the government’s position — an unpublished and unsigned decision issued without oral argument — rested on grounds the government no longer advances,” Heytens noted.

Also, the Virginia Supreme Court has “emphasized that ‘[t]he plain text’ of the law enforcement proviso ‘confirms that Congress intended immunity determinations to depend on a federal officer’s legal authority, not a particular exercise of that authority,’” Heytens said.

As such, Osmon’s appeal came down to whether TSA screeners were “empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.”

Heytens said the answer was yes.

“Because the law enforcement proviso ‘speaks in the disjunctive,’ TSA screeners need be empowered only to do one of the three listed things — that is, execute searches, seize evidence, or make arrests,” he said.

The government contended that the language only covered searches that were criminal and investigatory, unlike an “administrative search” which takes the form of an “inspection” or “screening.”

Heytens pointed to a flaw in the argument — the word “criminal” appears nowhere in the law enforcement proviso.

“Here, as elsewhere, we ‘may not narrow a provision’s reach by inserting words Congress chose to omit,’” Heytens said.

Similarly, the proviso didn’t imply police powers in criminal investigations.

“True, the words ‘make arrests’ are limited to the criminal context, and ‘seiz[ing] evidence’ is often — and likely most often — used in that context,” Heytens said. “But government officials investigate plenty of violations of law that are civil, not criminal, in nature, and there is nothing linguistically strange about using the words ‘seize evidence’ in that context.”

Nor was the judge persuaded by the government’s focus on the word “execute.”

“[T]his statute — unlike all the others referenced in the opinion the government relies on for this point — does not contain the word ‘warrant,’” Heytens said. “Nor is this a trivial distinction, because the ability to execute a search does not necessarily imply power to execute a search warrant.”

Heytens acknowledged that the law enforcement proviso was added to the FTCA more than 40 years ago, and that it didn’t contemplate people working for an agency created more than 25 years after that.

“[T]he fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth,” the judge concluded, citing Pennsylvania Dep’t of Corr. v. Yeskey. “Because the words of this statute cover the claim Osmon brought, we reverse the district court’s judgment and remand for further proceedings.”

Confused about federal COVID-19 emergencies ending? You’re not alone

As the two federal COVID-19 emergency declarations — the public health emergency and the national emergency — end, employers who sponsor benefit plans must deal with changes in group health plan (GHP) requirements and must navigate and administer the wind-down of deadline delays.

The public health emergency

The secretary of Health and Human Services declared the COVID-19 public health emergency in January 2020. This declaration is scheduled to end on May 11, 2023. Ending the public health emergency also ends GHP coverage mandates for COVID-19 testing and vaccination, along with some telehealth relief.

Testing

During the public health emergency, GHPs must cover most COVID-19 testing for diagnostic purposes without cost sharing or other medical management requirements. As of Jan. 15, 2022, this included coverage of over-the-counter (OTC) tests — up to eight tests per person per month.

With the end of the public health emergency, insurers and self-insured GHP sponsors must decide:

which deductibles and copays will apply, if any, to COVID-19 testing at a doctor’s office, in and out of network, and
whether to continue to cover OTC COVID-19 tests.

Insured GHP sponsors should check with their insurer on anticipated design changes, if any, and related participant communications.

Vaccination

During the public health emergency, GHPs are required to cover COVID-19 vaccines (including boosters), both in and out of network, without cost sharing. Once the public health emergency ends, non-grandfathered GHPs will still be required to provide COVID-19 vaccines (including boosters) without cost sharing as preventive care. However, GHPs will no longer be required to cover vaccination by out-of-network providers.

Telehealth

The end of the public health emergency impacts telehealth benefit design. During the public health emergency, employers could offer stand-alone telehealth benefits to employees who were otherwise ineligible for the employer’s major medical plan. Absent further relief, stand-alone telehealth plans will need to be terminated by 2024 to avoid a non-compliant GHP.

However, the relief allowing high deductible health plans (HDHPs) to offer first dollar coverage of telehealth services without adversely impacting health savings account (HSA) eligibility will be unaffected by the end of the public health emergency. Congress has extended the option for HDHPs to continue to waive the deductible and cost sharing for any telehealth services without causing a loss of HSA eligibility through 2024.

The national emergency

On March 13, 2020, by Proclamation 9994, the president declared a national emergency concerning the COVID-19 pandemic.

As federal COVID-19 emergency relief draws to an end, employers who sponsor benefit plans need to work with their third-party administrators, insurers and counsel to confirm post-public health emergency GHP coverage terms and post-Outbreak Period deadline administration, as well as properly document and communicate any changes.

Pursuant to statutory authority relating to this declaration, federal agencies tolled certain deadlines for ERISA benefit plans during the “Outbreak Period,” a period beginning March 1, 2020 and ending 60 days after the end of the national emergency or another date announced by the Department of Labor, Treasury Department, and Internal Revenue Service.

Deadlines delayed for up to one year during the Outbreak Period include:

HIPAA special enrollment deadlines,
certain ERISA claims and appeals deadlines, and
most COBRA deadlines.

At the end of January 2023, a Statement of Administration Policy announced the COVID-19 national emergency would end on May 11, 2023. Subsequently, House Joint Resolution 7 terminated the national emergency as of April 10, 2023. However, federal agencies have taken the position that the Outbreak Period will still end on July 10, 2023 (60 days from May 11, 2023), rather than 60 days from April 10, 2023.

The Outbreak Period relief will remain relevant for some time before ERISA benefit plans can return to pre-COVID-19 timelines. When calculating delayed deadlines, the Outbreak Period is disregarded; to calculate a deadline that occurs after July 9, 2022, the new deadline will be the earlier of the following:

calculation using a beginning date of July 10, 2023, or
one year after the original deadline.

For example, a request for a HIPAA special enrollment due to marriage that would have been due on May 1, 2023 without the Outbreak Period relief will now be due by Aug. 9, 2023 (30 days after July 10, 2023).

Conclusion

As federal COVID-19 emergency relief draws to an end, employers who sponsor benefit plans need to work with their third-party administrators, insurers and counsel to confirm post-public health emergency GHP coverage terms and post-Outbreak Period deadline administration, as well as properly document and communicate any changes.

Bethany Bacci is a Stoel Rives LLP partner and a member of the firm’s employee benefits practice group. Contact her at 503-294-9837 or [email protected].

Howard Bye-Torre is of counsel at Stoel Rives LLP and a member of the firm’s employee benefits practice group. Contact him at 206-386-7631 or [email protected].

Gabrielle Hansen is a Stoel Rives LLP associate and a member of the firm’s employee benefits practice group. Contact her at 503-294-9482 or [email protected].

Delay dooms VWPL claim

A former employee’s retaliation claim against her employer was dismissed as untimely despite arguments that the statute of limitations under the Virginia Whistleblower Protection Law, or VWPL, accrued on her last day of work, rather than the day she was given notice of termination, the Eastern District of Virginia has held in a matter of first impression.

U.S. District Judge T.S. Ellis III noted that the Supreme Court of Virginia hasn’t ruled on the VWPL’s statute of limitations but found “helpful and persuasive guidance” from other settled precedent from the high court about the accrual of causes of actions.

“Although no court has directly addressed when the statute of limitations begins to run under the VWPL, other state and federal precedent interpreting similar employment statutes indicates that the statute of limitations for Plaintiff’s VWPL claim began to run when Plaintiff received her written Notice of Termination, not on the later date when her employment actually ended,” Ellis wrote.

The opinion is Kulshrestha v. Shady Grove Reproductive Center (VLW 023-3-186).

‘Not a good fit’

A medical doctor who specializes in reproductive endocrinology and infertility, Sunita Kulshrestha joined Shady Grove Reproductive Center in 2014. She eventually began seeing patients at offices in Maryland and Virginia.

Between 2018 and 2020, Kulshrestha’s husband, father and father-in-law passed away. She also gave birth to her first child in 2020. In addition to caring for her child and elderly family, the doctor maintained a full workload with high patient satisfaction scores.

After her mother fell ill in August 2021, Kulshrestha asked Shady Grove for permission to conduct telemedicine. During a Zoom call with her director, the doctor asked to work from home for two weeks and for leave under the Family and Medical Leave Act, or FMLA.

Shady Grove’s director was concerned that Kulshrestha was “doing three full-time jobs at once … mom to a fifteen-month-old, caregiver to [Plaintiff’s] mother, and full-time physician.” The doctor asked if she was being treated differently based on her gender and caregiver status.

Kulshrestha received written notice on Aug. 30, 2021, that her employment was ending on Feb. 27, 2022, because “it was not a good fit,” per the opinion.

The doctor sued Shady Grove for multiple counts in the Eastern District — including retaliation in violation of the VWPL — in December 2022. Shady Grove moved to dismiss the VWPL claim, arguing that it was filed more than one year after the statute of limitations passed.

Kulshrestha contended that her VWPL claim was timely because her cause of action accrued when she sustained the damage from Shady Grove’s retaliation on her final day of work. She also moved to certify the novel issue of law to the Supreme Court of Virginia.

Accrual rule

Ellis pointed out that, under the VWPL, “[a] person who alleges a violation of this section may bring a civil action in a court of competent jurisdiction within one year of the employer’s prohibited retaliatory action.” (Emphasis added.)

In other words, the employer’s “retaliatory action” — not the later consequences of that action — is the relevant focus for starting the one-year statute of limitations period, the judge said.

“Thus, Plaintiff’s cause of action accrued, and the one-year statute of limitations began to run, when Plaintiff received her Notice of Termination on August 30, 2021, because at that point Defendant committed a ‘prohibited retaliatory action’ against her as required by the statute,” Ellis explained.

This conclusion is in agreement with the Supreme Court of Virginia’s interpretations of when a cause of action accrues under other statutes.

“As the Supreme Court of Virginia put this point, ‘[t]he general observation, applicable to all claims, [is] that the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date.’”

— U.S. District Judge T.S. Ellis III

“The Supreme Court of Virginia has repeatedly held that a cause of action accrues, and the statute of limitations begins to run, ‘when any injury, though slight, is sustained as the consequence of an alleged wrong, despite the fact that greater damage from the same wrong may be sustained at a later date,’” Ellis said. “… As the Supreme Court of Virginia put this point, ‘[t]he general observation, applicable to all claims, [is] that the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date.’”

The judge then described how other federal and state courts have reached the same result in cases interpreting claims brought under federal employment statutes. He noted that, in Delaware State College v. Ricks, the Supreme Court held that the statute of limitations for a professor’s retaliation claim began to run when the college formally voted to deny his tenure rather than when his teaching position expired.

“As the Fourth Circuit has explained in applying the Ricks accrual rule, this rule has a strong rationale because it encourages ‘a potential charging party to raise a discrimination claim before it gets stale, for the sake of a reliable result and a speedy end to any illegal practice that proves out,’ and it also serves to ‘protect employers from the burden of defending claims arising from employment decision that are long past,’” Ellis wrote. “Thus, Supreme Court and Fourth Circuit precedent makes clear that ‘a discriminatory discharge claim accrues when the employee receives notice of the termination, not on the last day of employment.’”

Thus, the judge said, it follows that Virginia’s Supreme Court would employ this accrual rule to the VWPL’s statute of limitations.

Ellis dismissed Kulshrestha’s VWPL retaliation claim and refused to certify the question to the Supreme Court of Virginia.

‘Apples-to-apples’

Fairfax employment litigator Broderick Dunn represents Kulshrestha. He thought Ellis would punt the accrual question to the Virginia Supreme Court because interpretation of state law generally isn’t the Eastern District’s purview.

“These new labor and employment laws that took effect July 2020 aren’t like your traditional Title VII employment discrimination claims and it’s not an apples-to-apples comparison,” he told Virginia Lawyers Weekly. “Some don’t require plaintiffs to exhaust administrative remedies. I think that differentiates these laws.”

Dunn added there was a need for the Supreme Court “to comment on and have cases proceed through state court to set forth what the contours of these laws are going to be.”

The litigator was hopeful the fresh slate of Virginia legislators would address issues with the new employment laws.

“I don’t think it was ever the legislators’ intent for somebody not to be able to file suit based on when they were actually terminated, and not just when they found out,” Dunn said. “Let’s say you receive notice that you’ll be terminated when your contract expires in six months, you go through the hassle of filing suit, but then the termination is reversed. Anything can happen.”

Delay in angiogram resulted in below the knee amputation — $900,000 settlement

Type of action: Medical malpractice

Injuries alleged: Below the knee amputation

Date resolved: 11/15/2022

Name of judge or mediator: Judge Michael C. Allen, Ret.

Verdict or settlement: Settlement

Amount: $900,000

Attorney for plaintiff: David J. Pierce, Virginia Beach

Description of case: Plaintiff, a 61-year-old male, presented to his primary care physician with complaints of left great toe pain and a toenail that had fallen off. The PCP referred him for a vascular evaluation of his left leg. The patient presented to a vascular surgery practice for evaluation five days later where he was seen by a nurse practitioner. He reported pain in the left lower leg and foot which was worse at night and better when the leg was in a dependent position. It was noted that he was a diabetic and had an ulcer of the great toe with necrosis of muscle. His bilateral lower extremities were warm with no palpable pedal or popliteal pulses. The left ankle/foot was noted with 1+ edema. It was further noted that the patient had left great toe gangrene that was positive for foul odor and purulent drainage. X-ray of the left foot demonstrated soft tissue swelling and subcutaneous air in the first digit consistent with infection and possible early osteomyelitis. The nurse practitioner’s plan, which was approved by her supervising physician, included “angiogram as soon as feasible.” For reasons that could not be explained, the angiogram was scheduled to be performed 29 days later.

Six days prior to the scheduled angiogram, the patient’s niece became concerned about the condition of her uncle’s left foot and thus took him to a hospital emergency department. Upon presentation, the foot was noted to be gangrenous from the mid-foot to the toes. The patient was diagnosed with ischemic necrosis of the foot and sepsis. An orthopedic consult found necrotizing soft tissue infection to the left lower extremity with subcutaneous erythema tracking up the distal tibia. The patient underwent surgical debridement and a below the knee amputation the following day to prevent the further spread of a potentially life-threatening infection.

Plaintiff’s experts opined that upon initial presentation, the vascular practitioners should have understood that the patient was likely suffering from peripheral vascular disease as well as an infection that had the potential to spread rapidly. This condition required urgent evaluation and treatment of the left lower extremity including an angiogram and treatment of the suspected infection. The practitioners should have further understood that, as a diabetic, the patient was at a heightened risk for vascular compromise of his lower extremities. They should have further understood that peripheral vascular disease may predispose a patient to poor wound healing which could lead to a serious and limb threatening infection. The vascular practitioners negligently failed to evaluate and treat the patient in a timely manner.

Plaintiff’s vascular surgery expert opined that while the patient would have needed the amputation of his toe and possibly a transmetatarsal amputation of all toes and part of his foot, he would not have suffered the below the knee amputation. Plaintiff’s forensic pathologist reviewed the surgical pathology tissue slides from the amputation. He opined that microscopic examination of the slides demonstrated open channels in the vessels in the left lower extremity that were not occluded by atherosclerosis or clotting. As such, the pathologist opined that the patient had distal circulation just prior to his amputation thus supporting the vascular surgeon’s opinion that the left lower extremity was salvageable given timely treatment. The pathologist prepared a series of photomicrograph exhibits to explain and support his opinions.

Defendant’s experts and treating physicians opined that upon his initial presentation to the vascular practice, the plaintiff’s gangrene was isolated to his left great toe and did not show any signs of spreading or an ongoing infection and thus did not require urgent treatment. They also argued that the plaintiff was told to return if the condition of his foot worsened and he clearly failed to do so. Additionally, defendants opined that the plaintiff was suffering from extensive peripheral vascular disease of his left lower extremity and that he would have required a below the knee amputation regardless of when the angiogram was performed. They further contended that given his numerous and longstanding comorbid conditions including diabetes mellitus, type 2, requiring insulin, stage 3 chronic kidney disease, severe peripheral vascular disease, neuropathy, proliferative diabetic retinopathy, hypertension and hyperkalemia, coupled with noncompliance with his physician’s recommended treatment, he had a life expectancy of less than two years.

The plaintiff was disabled from a prior back injury and had not worked for several years. As such, there was no loss of income claim. Following the completion of all expert depositions, this case was resolved at mediation a few weeks prior to trial.

Plaintiff’s law firm provided case information.

[023-T-021]

Jury sides with woman injured in rear-end collision — $300,000 verdict

Type of action: Auto accident

Injuries alleged: Concussion with headaches, photosenstitvity, difficult with concentration and neck pain

Name of case: Hicks v. Johnson

Court: Henrico County Circuit Court

Case no.: CL20002597

Tried before: Jury

Name of judge or mediator: Judge Richard S. Wallerstein Jr.

Date resolved: 2/1/2023

Special damages: $34,520.60 in past medicals; $157,635 in contested future damages

Demand: $350,000

Offer: $50,000

Verdict or settlement: Verdict

Amount: $300,000

Attorneys for plaintiff: Jonathan E. Halperin and Darrell J. Getman, Glen Allen

Description of case: On Feb. 1, 2023, plaintiff Melanie Hicks secured a jury verdict in Henrico County against the defendant, Luke Johnson, in a case involving a rear-end motor vehicle collision. On April 23, 2018, defendant was driving a Ford F250 pickup truck when he rear-ended Hicks’ SUV at the intersection of Staples Mill Road and Old Staples Mill Road in Henrico County. The impact of the collision produced very little damage to the vehicles — only a few scuff marks were visible on the rear bumper of Hicks’ vehicle. Plaintiff alleged that Hicks sustained a mild traumatic brain injury, or MTBI, from the collision, which caused Hicks to experience headaches, neck pain, photosensitivity and difficulty in concentration in the four-plus years since the collision took place. Hicks worked a full day on the date of the collision, only seeking medical treatment at Patient First when she returned home in the evening.

Plaintiff presented $34,520.60 in past medical bills and $157,635 in hotly contested future bills. Plaintiff argued that she would require occipital and facial nerve-block injections for the rest of her life. The need for these injections was supported by the testimony of Dr. Anthony Julius, plaintiff’s treating neurologist.

The defense disputed plaintiff’s future medical treatment through an expert neurosurgeon, Donald G. Hope, M.D., from Northern Virginia. Hope testified that plaintiff did not sustain any brain injury from the collision. However, during cross examination, Hope admitted that he has earned well over $7 million in the past six years working for defense lawyers. In closing, plaintiff asked the jury to accept Julius’ testimony and reject the testimony of the “$7 million man.” The jury returned a verdict of $300,000 in approximately 55 minutes.

Jonathan E. Halperin, plaintiff’s counsel, provided case information.

[023-T-016]

Music festival bartenders’ FLSA suit proceeds

The Western District of Virginia conditionally certified a class of bartenders and barbacks who claimed a rock festival violated the Fair Labor Standards Act, or FLSA, and Virginia laws in 2021 and 2022.

The defendants argued that class certification wasn’t warranted because the plaintiffs didn’t prove they were all similarly situated. And even if they did, the case would be unmanageable; the court would have to inquire about each claimant’s experience working at the festivals.

U.S. District Judge Norman K. Moon disagreed.

“At bottom, Plaintiffs’ evidentiary showing suffices at this stage of the case to establish that Plaintiffs and the other proposed collective action members are ‘similarly situated’ for purposes of the FLSA, and further, that no individualized inquiry would render inefficient their proceeding as a collective action,” he wrote. “Plaintiffs have established their entitlement to conditional certification of their FLSA collective action.”

The opinion is Sands, et al. v. Blue Ridge Rock Festival, et al. (VLW 023-3-223).

Unpaid wages

Jonathan Slye is the primary owner and managing member of the Virginia company that operated the Blue Ridge Rock Festival in 2021 and 2022. Fifteen people employed to work as bartenders and barbacks sued the defendants in September 2022.

The plaintiffs alleged that the defendants failed to pay minimum wage, overtime and tips required under the FLSA as well as Virginia’s Wage Payment Act and Minimum Wage Act.

In addition to themselves, the plaintiffs asserted their claims on behalf of at least 50 other tipped employees of the festivals. The plaintiffs say they worked 10-14 hours each day in beer tents; tips were to be pooled and divided among the tipped workers at each tent.

Instead, the plaintiffs say the defendants used a significant amount of the tips to pay managers, non-tipped employees and other vendors. The defendants paid them “for some, but not all hours worked” at a rate of $5 per hour, they claimed.

The plaintiffs later moved for conditional certification of their case as an FLSA collective action. Each of the plaintiffs — including several more who opted-in — submitted affidavits describing their experiences.

One plaintiff attested that he was a bartender at the 2021 festival and had personal knowledge that all of the class members were subject to the defendants’ unlawful payroll policies and unpaid wages and tips. The other declarations regarding each festival were similar.

To facilitate notice to the potential collective-action members, the plaintiffs requested an order for the defendants to produce names and contact information for all potential class members.

The defendants opposed class certification. After a hearing on the motion, the parties narrowed the scope of their disputes about the proposed notice.

Similarly situated

Moon said courts in this circuit generally follow a two-stage approach at the conditional certification stage of an FLSA claim. Only the first stage was discussed here, as the second stage occurs if the defendant moves for decertification after discovery.

“At the first stage, the court must determine whether ‘there is sufficient evidence to reasonably determine that the proposed class members are similarly situated enough to conditionally certify the collective action and provide potential class members with initial notice of the action and the opportunity to ‘opt-in,’” he described.

The judge noted that the FLSA doesn’t define the term “similarly situated” and the 4th U.S. Circuit Court of Appeals hasn’t yet interpreted its meaning.

“However, district courts in the Fourth Circuit have generally held that plaintiffs are similarly situated under § 216(b) if they ‘raise a similar issue as to coverage, exemption, or nonpayment of minimum wages or overtime arising from at least a manageably similar factual setting with respect to the job requirements and pay provisions,’” Moon wrote.

This “fairly lenient” standard requires “only minimal evidence, such as factual evidence by affidavits or other means,” the judge added.

Here, Moon found the plaintiffs “more than met” that standard as their claims and “highly similar” affidavits “overlap to a great degree.”

“To be sure, Plaintiffs’ declarations could be supported by more detail,” Moon pointed out. “But they are more than sufficient to satisfy the minimal evidentiary burden to show plaintiffs and the other putative collective action members ‘raise a similar legal issue as to coverage, exemption, or nonpayment of minimum wages or overtime arising from at least a manageably similar factual setting with respect to their job requirements and pay provisions.’”

The judge found nothing in the record disclosing any aspect of the plaintiffs’ claims or the underlying facts requiring any “highly individualized” inquiry, as the defendants argued.

“Numerous other courts have similarly held that bartenders can be similarly situated for purposes of joining together in an FLSA collective action,” he wrote.

Moon was unconvinced that the case was “unmanageable and inappropriate for collective treatment or adjudication.” He rejected the defendants’ belief that the case would “require this Court to inquire into each putative claimant’s experiences at the festival(s) with the sign-in and sign-out process, tip pool procedure, and with his or her managers at a painstaking level of detail.”

‘Cookie jar’

Gregg Greenberg, a Maryland employment lawyer, represents what is now a class of 17 plaintiffs who worked at the music festivals. He told Virginia Lawyers Weekly he looks forward to fleshing out the existence and nature of the defendants’ violations in discovery.

Under the FLSA, employers must show that a violation was the product of objective good faith, “meaning not what they thought was a reasonably prudent business decision, but what affirmative steps were taken to comply with the law,” he pointed out.

Both the FLSA and Virginia’s laws have similar liquidated damages provisions to multiply the amount of unpaid wages awarded to a claimant, as well as mandatory fee shifting, the litigator noted.

“If an employer were to stick their hand in the cookie jar and take pooled tips to pay non-tipped employees, even if it’s just a dollar, then they’ve tainted the entire process,” Greenberg explained.

He cautioned that a non-compliant employer could lose their entire tip credit for calculating the minimum wage a tipped worker should have been paid.

“That would mean the employee would be owed the differential plus the potential for multiple damages,” Greenberg pointed out.

He recommended that practitioners pay close attention to the notices required by the FLSA for employees who would earn the $2.13 hourly minimum tipped wage.

“Virginia’s notice requirements for tipped employees are unclear, but it’s well-settled with the FLSA,” he said.

Patient died after failure to diagnose cancer recurrence — $1.4M settlement

Type of action: Medical malpractice

Injuries alleged: Progression of cancer

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

Date resolved: 9/27/2022

Verdict or settlement: Settlement

Amount: $1,400,000

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

Description of case: After being diagnosed with prostate cancer, the patient underwent a radical prostatectomy. Following the surgery, he was followed by his surgeon for several years, then released to his primary care provider for serial monitoring.

For patients who have had their prostate removed, the PSA test results should be < .2 ng/ml. Initially, the patient’s PSA was within that range. Over a period of years, the PSA rose but the patient was not informed of the rising PSA results or their significance. Eventually, the patient logged in to his patient portal and found his elevated test results. That led to his diagnosis with extensive metastatic disease.

Plaintiff alleged that the defendant breached the standard of care by failing to order enough PSA testing and by failing to properly interpret and act upon the abnormal PSA test results that were reported to the defendant. Plaintiff’s evidence would have been that the cancer was highly curable if treatment had been initiated when the abnormal PSA test results were first reported.

The case was mediated prior to any depositions being taken. The patient passed away at age 65, approximately five weeks after the case was resolved at mediation. Achieving the settlement within his lifetime was an important consideration during the negotiations.

Wallace Wason Jr., counsel for the plaintiff, provided case information.

[023-T-006]

Scope of expertise exceeded: Court tosses life care planner’s report

A life care planner’s expert report was excluded from an auto accident trial after a federal judge ruled that the planner rendered medical opinions that she was not qualified to in her report.

U.S. District Judge Thomas T. Cullen handed down the opinion in Norman v. Leonard’s Express Inc. (VLW 023-3-219) for the U.S. District Court for the Western District of Virginia.

“[B]y selecting which medications, treatments, therapies, or modalities she believed Norman would require in the future, she rendered medical opinions without sufficient medical grounding or expert support,” Cullen wrote.

The judge decided to exclude the life care planner’s entire report, noting that, after the exclusions dealing with medical opinions are made, the report would “be incomplete, contradictory, and, at bottom, wholly unreliable.”

Background

The case stemmed from a serious motor vehicle accident involving Yvette Norman and a semitruck owned by Leonard’s Express Inc.

Norman filed a motion to exclude the expert report and testimony of Shelby Dubato, a life care planner retained by the defendant to “present a life-care plan forecasting the cost of Norman’s future care needs stemming from the motor vehicle accident that gave rise to this lawsuit.”

Norman sought to exclude Dubato’s report and testimony, preclude defense experts from offering opinions related to Norman’s care needs and “compel production of Dubato’s statement of compensation.”

Specifically, Norman noted that Dubato “rebut[ed] and challeng[ed]” the plaintiff’s expert’s calculation of Norman’s future care needs, which Norman contended Dubato was “not qualified to render” an expert opinion on.

Further, Norman argued that Dubato’s report “was expressly conditioned on endorsement by a qualified medical expert and that, since that requested endorsement was never obtained and Leonard’s Express’s expert disclosure has passed, Dubato’s report and testimony should be excluded at trial.”

The plaintiff also stated that in Dubato’s report, she made determinations that “various medical opinions endorsed” by Norman’s medical expert were “indicated” or “not indicated,” which Norman claimed were “the province of a medical expert.”

Leonard’s Express countered by stating Dubato’s background made the life care plan admissible and that the report did not require a physician’s endorsement to be admissible.

Analysis

Cullen pointed out that physician endorsement isn’t necessarily required for admission of a life care plan, but medical treatments and therapies included within the plan “must be predicated on expert medical opinion.”

Here, the judge agreed with the plaintiff that Dubato’s plan extended beyond expert medical opinion.

“Despite Dubato expressly listing the extensive documents, medical records, and medical expert reports on which she relied …, fairly thoroughly reviewing them …, drawing on her education, training, and experience … , and her repeatedly expressing that she relied on medical records…, Dubato’s opinions exceed the scope of her expertise,” Cullen wrote. “And by selecting which medications, treatments, therapies, or modalities she believed Norman would require in the future, she rendered medical opinions without sufficient medical grounding or expert support.”

The judge specifically cited the “medications” category of her report, where Dubato wrote that three headache drugs are “not indicated,” while deeming a different headache drug necessary.

“[N]either Dr. Richmond nor Dr. DeRight (the defense medical experts) opined that Norman would not need Nurtec, Prazosin, or Voltaren to treat her headaches in the future,” Cullen wrote.

Cullen also pointed out that, under the “projected evaluations” section, Dubato noted physical therapy, occupational therapy and speech therapy evaluations as “not indicated” and assigned them “a $0 lifetime value.”

“In other words, Dubato does not — and on the record before the court, cannot — point to a medical expert or treating physician who opines that Norman will need what Dubato says is ‘indicated,’ and nothing more,” the judge wrote. “After closely reviewing the defense medical expert’s reports, the court finds that only some of Dubato’s opinions can be supported by reference to a proper medical opinion.”

As such, Cullen found the defendant did not meet the burden to show that more than half of the “non-indicated” items in the report were “adequately grounded in the medical expert reports.”

As for those items marked as “indicated,” Cullen noted that, if Dubato’s report had been grounded in the findings of DeRight and Richmond’s reports, “she would, as a matter of logic and common sense, have concluded that nothing was ‘indicated.’”

“Dubato’s report is even more unreliable because her pick-and-choose approach is incompatible with the defendant’s own medical experts’ opinions,” the judge wrote. “As the plaintiff aptly put it, Leonard’s Express cannot have its cake and eat it too.”

Having found “no reliable basis for most of her ‘indicated’ or ‘not indicated’ determinations,” Cullen ruled that all portions of the report that constitute medical opinions “without very specific founding in a treating physician’s or medical expert’s opinion” be excluded under “the court’s gatekeeping obligation.”

And, following those exclusions, Cullen held that Dubato’s entire report must be excluded.

“After those exclusions, the Life Care Plan is effectively gutted, and what remains — whether presented with line-by-line redactions or other impracticable method — would be incomplete, contradictory, and, at bottom, wholly unreliable,” Cullen concluded.

Norman’s motion to preclude Leonard’s Express’s experts from offering undisclosed opinions related to Norman’s future care needs was denied.

“To the extent that this portion of Norman’s motion is intended to cover Dubato’s Addendum, it will be denied as moot because Dubato’s Addendum will be excluded on Rule 702 grounds,” Cullen wrote.

Since Norman did not move to exclude any other specific report or testimony, the court did not render an opinion on the issue beyond Dubato’s addendum.

VSB Disciplinary Actions: May 15, 2023, issue

Effective April 28, 2023, the Virginia State Bar Disciplinary Board issued a public reprimand with terms to Patrick Lynn Edwards of Arlington for violating Maryland’s professional rules that govern fees and safekeeping property and Virginia rules governing safekeeping property.

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Effective April 28, 2023, the Virginia State Bar Disciplinary Board issued a public reprimand with terms to Charles Allen Butler Jr. of Luray for violating professional rules that govern candor toward the tribunal, fairness to opposing party and counsel and misconduct.

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Issue: May 15 2023