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Virginia Lawyers Weekly presents the survey of “Virginia’s Largest Verdicts of 2013,” our annual compilation of big jury verdicts from across the commonwealth.
As in past years, our criteria for the list are simple:
1. The verdict must be for at least $1 million.
2. The verdict was returned by a jury in Virginia – not a judge.
3. The verdict was returned in calendar year 2013.
The 2013 survey features 18 verdicts, down from 20 last year. There were 20 million-dollar verdicts in 2011, 22 in 2010, 21 in 2009, 15 in 2008, 20 in 2007 and 29 in 2006.
#1 $25 Million
Cardiologist failed to detect artery blockage
Case name: Denton v. Chu, M.D.
Type of case: Medical malpractice
Court: Hampton Circuit Court
Attorneys: Jason W. Konvicka and Malcolm P. McConnell III, Richmond
Summary: A Hampton jury handed down a $25 million verdict last February to a man who suffered a massive heart attack after a cardiologist failed to detect an artery blockage. The award appears to be the largest personal injury award out of Hampton and the largest medical malpractice award in a Virginia state court.
The plaintiff was a fit, active 37-year-old at the time of his 2010 heart attack. Although he had no common risk factors or family history of heart disease, he was taken to the hospital after experiencing chest pain, shortness of breath, sweating and jaw pain. His EKGs were read as normal.
The following day, he was seen by the defendant cardiologist. The defendant performed a cardiac catheterization to rule out heart disease. Both during and following the procedure, the plaintiff was told that his arteries were clear, normal and free of disease. He was diagnosed with pericarditis, a viral infection of the heart sac, and instructed to take over-the-counter anti-inflammatory medication.
Plaintiff’s chest pain and shortness of breath continued for the two months, and doctors continued to treat him for pericarditis based on the defendant’s cath report. Plaintiff ultimately suffered a massive heart attack. During emergency treatment, doctors discovered a complete blockage of the plaintiff’s left anterior descending artery.
The plaintiff survived the heart attack, but has since undergone eight cardiac caths and coronary bypass surgery. He was in stage II or III heart failure at the time of trial, and had lost more than half of his heart function.
Plaintiff learned that his heart attack could have been prevented, as the doctor who treated his heart attack noted a 70 percent artery blockage in the defendant’s original cath report. Plaintiff claimed that, had the blockage been diagnosed two months prior to his heart attack, a stent procedure and course of medication would have allowed him to live a normal, healthy life.
During the four-day trial, plaintiff’s experts testified that he will need a future heart transplant and has only a 50 percent chance of living another 10 years. The jury deliberated for three and a half hours before returning a $25 million verdict, plus interest of $4.5 million.
#2 $14.14 Million
Side airbag in Hyundai vehicle failed to deploy in crash
Case name: Duncan v. Hyundai Motor Company Ltd., et al.
Type of case: Product liability
Court: Pulaski County Circuit Court
Attorneys: Ari Casper, Julie Mitchell and Ronald Kovner, Washington
Summary: A Pulaski County jury awarded $14 million to a man who suffered a traumatic brain injury blamed on alleged safety lapses in his Hyundai Tiburon. The verdict, handed down in late June, appears to be a record for a products claim in Southwest Virginia.
Plaintiff, who was 16 years old at the time of the 2010 auto accident, spent nearly a week in a coma after his 2008 Hyundai struck a tree. The teen’s parents, as guardians and conservators, filed suit against Hyundai on a breach of implied warranty of merchantability claim. Plaintiffs claimed that the airbag sensors in Hyundai’s 2003-2008 Tiburon models were in the wrong location and did not accurately detect when the side airbag should deploy. A properly designed sensor system, plaintiffs argued, would have deployed an airbag in the teen’s collision, and the airbag would have prevented serious injury.
Hyundai lawyers defended the car’s safety, and argued the teen’s injuries would have occurred regardless because the car’s roof was crushed in the accident.
Plaintiff has a permanent brain injury, and his lifetime care was estimated at $11 million. During the nine-day trial, the jury heard technical testimony from engineers and analyzed dozens of crash test videos. The jury deliberated for approximately eight hours before returning a verdict of $14 million for the plaintiffs, plus past medical expenses of $140,000.
Roanoke attorney Bill Wallace and his firm provided assistance as local counsel.
#3 $11.25 Million
Walmart customer injured back in slip-and-fall
Case name: Walsh v. Wal-Mart Stores East LP
Type of case: Personal injury, slip-and-fall
Court: Stafford County Circuit Court
Attorneys: Edward E. Scher, Richmond; John P. Harris III, Fredericksburg
Summary: A Stafford County jury awarded $11.25 million to a doctor who suffered a permanent back injury when he slipped and fell in a Walmart store. The amount is apparently a record for the county.
The incident occurred in 2008 at a Fredericksburg Walmart. A Walmart employee had recently waxed the floor, and had left the area to retrieve a warning sign. While the employee was gone, the plaintiff, age 50, stepped on a patch of wet floor and took a hard fall. As a result, he fractured his spine and his elbow.
The injuries made it difficult for the plaintiff, a radiation oncologist, to run his cancer treatment practice. He claimed $1.74 million in past and future economic losses and treatment expenses.
Walmart did not defend on liability, but offered only $750,000 to settle the case.
The three-day trial netted a verdict of $11.25 million plus prejudgment interest, for a payout of more than $13.9 million.
#4 $6.7 Million
Diabetic lost arm and leg from undiagnosed infection
Case name: Ball v. Sentara Medical Group
Type of case: Medical malpractice
Court: Norfolk Circuit Court
Attorney: Judith M. Cofield, Virginia Beach
Summary: A diabetic was awarded $6.7 million after losing two limbs from an undiagnosed infection.
In 2007, plaintiff was hit by a car while a pedestrian. He suffered a tibial plateau and wrist fracture, which resulted in an open reduction and internal fixation. He was discharged within a week of the first admission, and had two follow-up appointments over the next 11 days. By that time, the wound and thigh had blistered, drained and left open red, beefy areas. Eschar had formed on the lateral thigh (which did not sustain any trauma) and the area surrounding it was boggy, mottled and grayish black. Also, skin sloughed on the medial thigh.
As an insulin dependent diabetic with blood sugars running into the 400s, plaintiff was at high risk for infection. This differential was not investigated on his second follow-up, allegedly because there were no signs or symptoms of infection. Plaintiff was taken emergently to the hospital four days later. Films showed the necrotizing fasciitis, and an irrigation and debridement revealed pus from his groin to his ankle. Bilaterally, both upper extremities were ‘hot’ and infected. Although a film was ordered in the emergency department, it was not reviewed for 24 hours. And although antibiotics were ordered for the MSA coverage, it was not administered for more than 27 hours after the initial operation. Plaintiff underwent 10 separate debridements: originally an AKA, then a hip disarticulation, then a left arm below the elbow amputation and finally a small finger amputation.
The defense argued that there was no reason to investigate the differential of infection, and by the time of the second admission, the virulent nature of the pathogen made the amputations inevitable. Plaintiff’s experts explained that the soft tissue infection progressed over time from the surface, through the fat, to the fascia and muscle beneath it, but that had it been timely diagnosed as a superficial infection, all amputations would have been avoided. Later, had it been emergently debrided and appropriate antimicrobial therapy timely commenced, an AKA would have sufficed. Instead, the delay in treatment permitted the infection to spread through the fascia, systemically, leaving him intubated, septic and with two limbs amputated.
#5 $5.75 Million
Once-imprisoned lawyer wins legal malpractice award
Case name: McLaughlin v. Shevlin Smith
Type of case: Legal malpractice
Court: Fairfax County Circuit Court
Attorney: Thomas K. Plofchan Jr., Sterling
Summary: A lawyer who spent four years in prison prevailed in his legal malpractice claim. A Fairfax jury returned a $5.75 million verdict last October after the plaintiff successfully proved his case within a case within a case.
During divorce proceedings in the late 1990s, plaintiff was accused of sexually abusing three of his four children. He was convicted in November 1998, and sentenced to 13 years in prison. In 2002, plaintiff earned a second trial after the court found his criminal trial counsel ineffective. At the second trial, he was acquitted of all charges.
Plaintiff hired a law firm to sue his first set of criminal attorneys for malpractice. He alleged the two attorneys failed to explore evidence that would have undermined testimony against him. However, the civil suit went awry when a settlement with one lawyer inadvertently resulted in the discharge of all claims against the other lawyer.
The alleged mistake gave rise to a second legal malpractice claim. Judge Michael Devine ruled that the plaintiff had to prove to the jury (1) that he was actually innocent of the sexual abuse charges, (2) that his first criminal attorneys were negligent and caused his conviction and (3) that the attorneys in his first civil suit were negligent and caused him to lose his chance at recovery from the first set of lawyers.
In the second legal malpractice trial, the jury heard testimony from the plaintiff’s two sons, who claimed that their mother and other adults put them up to their accusations against their father. Plaintiff’s ex-wife and one of his daughters testified that they believed the abuse occurred, but their accounts proved inconsistent. The jury also heard expert testimony on breach of the standard of care by both the criminal and civil attorneys.
The jury deliberated for one and a half days before returning a verdict of $5.75 million.
#6 (tie) $5 Million
Two drunken drivers responsible for road worker’s death
Case name: Bratton v. Nininger and Dupree
Type of case: Wrongful death
Court: Roanoke County Circuit Court
Attorney: Neal Johnson, Roanoke
Summary: A fatal accident blamed on two drunken drivers has brought a $5 million verdict from a Roanoke County jury.
The accident occurred in 2008, when two intoxicated drivers entered a work zone and struck a blade implement hanging off the rear of a construction tractor. The impact pinned the decedent, a road crewman, between the blade and a dump truck.
One defendant’s blood alcohol content measured at .19. The other refused a test. Local media stations broadcasted footage of the two defendants drinking at a Roanoke bar prior to the accident. Both drivers were convicted of aggravated involuntary manslaughter.
During the five-day civil trial last March, defendants argued that the construction crew had misplaced its equipment and failed to warn traffic, causing an unavoidable hazard.
The decedent’s two children, ages 16 and 15 at the time of the death, were the statutory beneficiaries. An economist testified that the family’s economic loss was $279,000. Plaintiffs also claimed mental anguish and loss of solace.
After a five-day trial, the jury returned separate punitive damage awards of $500,000 for each defendant. Compensatory damages were $2 million against each driver. Under Virginia law, the punitive damage verdict will be reduced to a total of $350,000 for both defendants.
#6 (tie) $5 Million
Woman disabled in grocery store fall
Case name: Cousins v. Food Lion LLC
Type of case: Personal injury, slip-and-fall
Court: Gloucester County Circuit Court
Attorneys: P. Christopher Guedri, Richmond
Summary: A Gloucester County jury awarded a record-tying $5 million verdict to a woman who became disabled after falling in a supermarket in 2006.
Plaintiff was 64 years old when a stock cart allegedly knocked her to the floor at her local Food Lion store. She suffered severe traumatic brain injury.
Prior to the fall, the college-educated plaintiff was gainfully employed, but her injury left her with an IQ of 69 and made her dependent on 24-hour home care.
Her bid for recovery fell short in a 2009 Gloucester County jury trial. During that trial, the defense brought series of photos from an in-store camera into evidence. While Food Lion conceded the negligence of their employee who was pushing the cart, the defense argued that the plaintiff should have seen the dolly full of merchandise approaching her. Jurors concluded she was at fault for failing to see the stock cart.
Plaintiff appealed, arguing that the grainy photos failed to show whether the plaintiff was keeping a proper lookout. The Supreme Court of Virginia granted her a second trial after ruling that surveillance photos should not have been admitted into evidence because the defense did not establish the accuracy of the time stamps.
For the re-trial, defendants brought experts to testify about the time stamp accuracy. The circuit court ruled that the jury should again be allowed to see the photos. Unable to keep the images out of court, plaintiff’s counsel decided to treat the photos as if they were part of his own case.
The second jury trial lasted three days. Plaintiff rejected an offer of $1.25 million before the jury went out.
#8 (tie) $4 Million
Delivery complications led to kidney failure
Case name: Arbogast v. Summit Health Care Inc.
Type of case: Medical malpractice
Court: Chesterfield County Circuit Court
Attorneys: Stephanie E. Grana, Irvin V. Cantor and Elliott M. Buckner, Richmond
Summary: A 34-year-old woman who suffered kidney failure after a VBAC delivery won a $4 million award from a jury in Chesterfield County.
In 2010, the plaintiff gave birth to a healthy baby girl. Plaintiff had previously delivered one child via C-section, and was scheduled for the same procedure with her second baby. But she went into labor a week before the scheduled C-section, and the labor progressed so quickly she delivered vaginally instead.
Although the birth took place without any complications, plaintiff experienced several hours of pain and bleeding afterwards. As experts testified, uterine ruptures are a well-known risk of vaginal birth after Caesarean (VBAC) deliveries.
Plaintiff’s pain continued to worsen after delivery. Instead of taking the plaintiff into surgery to rule out uterine rupture, defendant administered morphine and performed a conservative exploratory procedure. Defendant ruled out uterine rupture and settled on the diagnosis of atony, where the uterus has not returned to its normal shape or firmed up.
Several hours after giving birth, the plaintiff coded. She was stabilized and sent to the ICU, but four hours passed before she underwent a hysterectomy to stop the bleeding. She coded during surgery, and twice afterwards.
Plaintiff suffered a brain injury and renal failure. She spent weeks recovering both in the hospital and in a rehab facility, unable to walk or speak properly when she first woke up. After recovering and returning to work, plaintiff learned that her kidneys were failing, and was placed on the national kidney donor list. One year later, she underwent a kidney transplant. She will likely need two more transplants during her life.
After five days of trial, the jury deliberated for five hours before returning a verdict of $4 million. The judgment, reduced to the statutory cap of $2 million, has been satisfied.
#8 (tie) $4 Million
Paralyzed teen recovers against former lawyer
Case name: Gilbert v. Paulson & Nace PLLC, et al.
Type of case: Legal malpractice
Court: Richmond Circuit Court
Attorneys: H. Aubrey Ford and Stephanie E. Grana, Richmond
Summary: A disabled teenager was awarded $4 million in a legal malpractice case against an attorney who let the statute of limitations run on her med mal claim. The verdict was handed down by a Richmond jury in September.
Plaintiff was an active and athletic 13-year-old when she was diagnosed with adolescent scoliosis. She underwent recommended surgery, which allegedly went awry when the surgeon inadvertently placed a metal hook into her spine. The plaintiff suffered permanent partial paraplegia whereby she lost all bladder and bowel function and virtually all use of her lower extremities.
Plaintiff hired a Washington attorney and his firm to pursue her medical malpractice claim. The attorney, who did not have a Virginia law license, asked a Virginia-licensed fifth-year associate at his firm to draft the case. The case was filed four days before the statute of limitations ran, and was styled in the name of the plaintiff’s parents. The court dismissed the complaint on the grounds that the real party did not bring the action. The plaintiff’s law firm filed a second case with the properly named plaintiff. But the court dismissed the second case because it was filed after the statute of limitations had run.
For two years, the law firm attempted various procedural options to reverse the decision, to no avail. Plaintiff’s parents testified that they were not told for more than two years that the case had been dismissed.
Plaintiff sued the attorney and his firm for legal malpractice. At trial, the defendants admitted liability for the law firm, but contended that the attorney was not individually liable because he had delegated the drafting of the complaint to a Virginia-licensed associate and was not directly involved. The court denied that motion.
The trial involved presentation of the entire underlying med mal case. Expert witnesses testified for both sides on the standard of care and mechanism of injury. Plaintiffs presented a life care plan of $2.6 million. The jury deliberated for 90 minutes before returning a verdict for $4 million.
#10 $3 Million
Man struck by vehicle while crossing street
Case name: Cross v. Spears
Type of case: Personal injury
Court: Henry County Circuit Court
Attorneys: Douglas A. Lines and Amy Y.S. Lines, Richmond
Summary: A Henry County jury awarded $3 million to a man who was struck by a vehicle while crossing the street.
Plaintiff and five other individuals were walking across Virginia Avenue in Henry County when the defendant struck two individuals, including the plaintiff. The road consisted of five lanes with the center lane being a turn-only lane to be used by traffic from both directions. Testimony from several witnesses and a photograph were introduced at trial that supported plaintiff’s claim that he was struck in the center turn lane at night while the defendant did not have her headlights on. The defendant denied these assertions.
Defense counsel introduced evidence that the plaintiff had alcohol in his system at the time of the accident. Plaintiff’s counsel argued the alcohol consumption was not relevant and not a proximate cause of the motor vehicle accident.
Defendant offered $25,000 pre-trial. The offer was rejected and no other settlement offer was made. Plaintiff offered to settle for policy limits from all carriers pre-trial, and the offer was rejected. The three-day jury trial resulted in a $3,000,000 verdict.
#11 $2.5 Million
Untreated blood infection led to quadriplegia
Case name: Jackson v. Vanga, M.D.
Type of case: Medical Malpractice
Court: Norfolk Circuit Court
Attorney: Judith M. Cofield, Virginia Beach
Summary: The estate of a woman who was rendered quadriplegic due to an untreated blood infection was awarded $2.5 million.
The decedent, age 52, was admitted to the hospital with a normal white blood cell count, which started rising and went untreated with antibiotics. Defendant explored the GI etiology but not the infectious process, which required a simple blood culture and/or broad coverage antibiotics. However, he admitted that MRSA, which was epidemic, must be presumed present.
‘Stat’ blood draws and the antibiotic vancomycin were ordered, but the defendant chose not to enforce these orders, and discontinued all antibiotics. He testified that a central line was too invasive and fraught with complications.
The plaintiff’s white blood cell count went from normal to 16.5K, to 18.8K, to 30K the day she was sent to the ICU secondary to a hypotensive event from onset of septic shock. No blood was drawn the day before and no blood culture was obtained nothwithstanding a chest film which showed pneumonia.
The pneumonia likely seeded the spine causing an epidural abscess from her cervical to her upper thoracic spine. Had the vancomycin been given, the septic shock and need for intubation could have been avoided. Depending on when performed, decompression and drainage would have either prevented or minimized the paralysis. Instead, the neurological deficits appreciated.
Decedent was placed into a medical coma, and when she awoke, she learned she was rendered quadriplegic. She remained quadriplegic and vent-dependent until her death, two years later, at age 54.
#12 $2.1 Million
Teen thrown from hotel balcony during party
Case name: Remley v. Ruiz
Type of case: Personal injury
Court: Chesapeake Circuit Court
Attorneys: Carlton F. Bennett and Eric K. Washburn, Virginia Beach
Summary: A teenager who was thrown from a hotel balcony won $2.1 million from a Chesapeake jury.
According to the Virginian-Pilot, the incident occurred during a party at a Chesapeake hotel. The defendant intentionally picked the plaintiff up and threw him over a second-story balcony railing. He landed on a vehicle below, shattering his pelvis and fracturing his face in several places.
Plaintiff incurred medical expenses of $52,000 and suffered permanent facial injuries.
The defendant was charged with attempted second-degree murder and malicious wounding, according to news reports.
The verdict included punitive damages of $350,000.
#13 $1.937 Million
Military contractor recovers for non-payment of contract
Case name: Global Hub Logistics v. Tamerlane Global Services Inc.
Type of case: Breach of contract
Court: U.S. District Court, Alexandria
Attorney: Craig J. Franco, Reston
Summary: A federal jury in Alexandria awarded $1.9 million to a military contractor who sued for non-payment of an overseas contract.
Global Hub Logistics was an Afghanistan-based logistics contractor hired by Tamerlane Global Services Inc. to complete movements of military cargo out of Afghanistan during 2011.
Tamerlane refused to pay Global Hub for completed movements of cargo after the relationship between the contractors dissolved.
Global Hub sued for recovery. In response, Tamerlane filed counterclaims for defamation, tortious interference and breach of contract. Additional claims were disposed of in pre-trial rulings.
The jury heard six days of evidence, after which time, the court dismissed Tamerlane’s defamation and tortious interference claims.
The jury was asked only to decide on the competing contracts claims.
The jury returned a verdict of $1,937,559, which amounted to a full recovery by Global Hub.
#14 $1.762 Million
Man claims bomb shelter had serious defects
Case name: Cutaia v. Radius Engineering International Inc.
Type of case: Breach of contract
Court: U.S. District Court, Harrisonburg
Attorneys: Randall T. Perdue, Staunton
Summary: A New York investment advisor who hoped to build a large-scale bomb shelter in rural Virginia won a $1.762 million verdict against the Texas company that supplied the shelter components.
Plaintiff planned to build a hidden underground complex in the Shenandoah Valley to protect his family from weapons of mass destruction. In 2008, he purchased a large “underground shelter system” from Radius Engineering International. The shelter consisted of a central dome with three outlying shelters and up to 12 tunnels. The structure was supposed to be protected from electro-magnetic pulses associated with nuclear explosions. He paid more than $2.7 million to both the supplier and installer.
When parts of the dome arrived, the installer found that they did not fit properly together. The plaintiff learned then that the dome was a new product, never constructed before, and the installer was unprepared to assemble the components. Later, one of the “living pods” was damaged by a bulldozer.
The installer abandoned the project in March 2011. Plaintiff later learned that the shelter would not have protected against electro-magnetic pulses and had other deficiencies that would have made it impossible for people to live inside safely.
Radius Engineering claimed the damaged dome was reparable, and that the installer, Green Eye Technology LLC, should bear the blame for the problems with the project. However, the installer’s insurance company won a ruling that it owed no defense, and Green Eye consented to entry of default on the plaintiff’s claim of breach of contract before trial.
After an eight-day trial, a federal jury in Harrisonburg took about three hours to decide the case in the plaintiff’s favor. The jury spent an additional 40 minutes deciding that the plaintiff was entitled to $1,762,087.40.
#15 $1.28 Million
Patient suffered burns during cigarette break
Case name: Roberts v. Fredericksburg Healthcare LLC, et al.
Type of case: Nursing home malpractice
Court: Spotsylvania County Circuit Court
Attorneys: W. Charles Meltmar, Alexandria
Summary: A Spotsylvania County jury awarded $1.28 million to a nursing home patient who suffered severe burns during an unsupervised cigarette break.
At the time of his nursing home stay, plaintiff was wheelchair-bound and suffered from psychosis, left side paralysis due to a stroke, a fractured left hip, total left arm contractors, a bad back, left side neuropathy, impaired field of vision and partial immobility.
Plaintiff alleged that he was allowed to some unsupervised at 5:00 a.m. on June 3, 2011. While smoking, his clothing caught fire and he suffered third-degree burns on his left leg, from toe to mid-thigh.
Plaintiff alleged the defendant facility readmitted him for the second time in 2011, knowing that he was a smoker who had previously violated their non-smoking policy during a prior admission. He claimed he was readmitted solely because the defendant nursing home had too many empty beds.
Defendant alleged assumption of the risk and contributory negligence.
#16 $1.2 Million
Rear-ender led to traumatic brain injury
Case name: Barnaby v. Hawk
Type of case: Personal injury – auto accident
Court: Richmond Circuit Court
Attorney: Jonathan E. Halperin, Glen Allen
Summary: Although plaintiff’s traumatic brain injury was strongly contested at trial, a Richmond jury handed down a verdict of $1.2 million.
In 2009, plaintiff was stopped at a red light when the defendant rear-ended her pick-up truck, totaling both vehicles and pushing the plaintiff into the car in front of her. The plaintiff refused medical treatment at the scene, but was taken by ambulance to the hospital several hours later as she began to have vision problems, headaches and dizziness. After many visits to several physicians and neuropsychologists, the plaintiff was diagnosed with a mild traumatic brain injury, thoracic outlet syndrome and a shoulder impingement.
Prior to the accident, the plaintiff worked as a bank teller and was described by supervisors as competent, outgoing, well-organized and a role model. After the accident, plaintiff could no longer do math, carry on conversations and organize at her pre-accident level. The highest offer received prior to trial was $500,000.
During the three-day trial, the defendant admitted liability but contested all of the plaintiff’s injuries except the thoracic outlet syndrome. Defense experts claimed that all of the plaintiff’s symptoms were due to somatic tendencies and sleep apnea.
Plaintiff’s experts told the jury that the plaintiff was a significantly different person after the collision, and that despite having normal MRI and CT scans, the plaintiff did suffer an MTBI.
The jury deliberated for three hours before returning a verdict in favor of the plaintiff for $1.2 million.
#17 $1.121 Million
Spinal surgery led to permanent nerve damage
Case name: Jacobs v. Mudit Sharma MD & James Melisi MD PLLC
Type of case: Medical malpractice
Court: Fairfax County Circuit Court
Attorneys: Donna Miller Rostant and Ann LaCroix Jones, Fairfax
Summary: A man who suffered nerve damage after a questionable spinal procedure has recovered $1.121 million from a Fairfax jury.
The 32-year-old plaintiff suffered a minor L-1 fracture as a result of an ATV accident. He was prescribed pain medication and put in a back brace for the first six weeks following the accident. In that time, his pain and need for pain medicine decreased, and he was back to work full time as a construction superintendent.
When he attended his second post-fracture follow-up visit with the defendant, a CT scan revealed “possibly slightly more compression” of the fracture. The defendant recommended the plaintiff undergo a spine surgery called kyphoplasty in order to prevent kyphosis (hunchback) in the future.
Kyphoplasty is a minimally invasive surgery during which cement is injected into the spinal bones through hollow needles. The procedure is typically used for patients with spinal fractures cause by bone cancers, osteolysis or osteoporosis, and people with conditions the prevent normal bone healing. According to published professional guidelines, kyphoplasty was “absolutely contraindicated” for patients like the plaintiff. During the surgery, the defendant misplaced razor sharp instruments and bone drills, which caused hot cement to deposit into the plaintiff’s spinal canal.
In addition to his allegation that the surgery was performed incorrectly, plaintiff claimed that kyphoplasty was an unnecessary surgery for which he was an improper candidate. At the time of the surgery, the defendant was seven months out of his neurosurgery residency, had recently taken a one-day training course on kyhpoplasty, and was in the process of gathering the surgical cases he needed to complete his neurosurgical board certification. The plaintiff argued that this was a case of a surgeon needing a patient, not just a patient needing surgery. Defendant argued that the plaintiff was a proper candidate.
The jury deliberated for two and a half hours before returning a verdict for the plaintiff.
#18 $1 Million
Caregiver sexually assaulted during home visit
Case name: Confidential
Type of case: Sexual assault
Attorneys: Benjamin D. Byrd, Roanoke; H. David Natkin, Lexington
Summary: A woman who was sexually attacked while providing care to the defendant at his home has recovered $1 million.
The plaintiff was assaulted just before her shift ended. The defendant approached her and forced himself on her. Plaintiff managed to call her employer during the struggle, and then managed to get away from the defendant. The employer called 911. Before the plaintiff could get out of the house, the defendant attacked her again and digitally penetrated her vagina and anus.
The defendant let go of the plaintiff as the police approached. Plaintiff was taken to a nearby hospital, where she underwent a SANE examination. She later underwent psychological counseling and received medication.
Plaintiff suffered emotional damages as a result of the attack. She can no longer work and struggles to get out of bed. She cries at random times for no apparent reason and no longer feels safe at home. She also experiences terrifying dreams of the attack and wakes up screaming.
Plaintiff presented evidence of $5,427 in medical expenses, and past and future wage losses of $110,788. The only health care provider who testified for the plaintiff was the SANE nurse. The plaintiff asked for, and received, $1 million plus pre-judgment interest from the date of the attack.
Other large verdicts of note
Editor’s note: Several cases from 2013 caught our attention, but didn’t quite meet the criteria we use for our list of the top Virginia jury verdicts.
Developer entitled to $19 million in additional tax credits
An Albemarle County judge found that a developer who sold his land to the state was eligible for millions of dollars of additional tax credits. In 2009, the plaintiff conveyed nearly 1,200 acres of undeveloped real estate to the Virginia Department of Conservation for a state park. The commonwealth paid plaintiff $9,800,000.
Because the land was sold at a discounted price, the plaintiff was eligible for conservation tax credit under Virginia law. However, the parties did not agree on the fair market value of the land. The plaintiff had the land appraised for $87 million, but the state appraiser valued the land at $39 million. The commonwealth issued roughly $11 million in tax credits.
Plaintiff sued to establish fair market value. The court ruled that the property had a fair market value of $86.5 million. The ruling in Forest Lodge LLC v. Commonwealth of Virginia, Department of Taxation entitles plaintiff to an additional $19 million in tax credits.
Lender gets summary judgment of $11.6 million
Years of litigation, an unpaid loan and fraud on the court all added up to more than $11 million awarded by a Gloucester County judge on a summary judgment motion.
In 2005, the plaintiff lending company loaned money to a seafood company. Before the plaintiff could collect the debt, the company’s owner died and his co-executors turned to a man who claimed he could grow the operation. The new business manager allegedly spent the company’s remaining assets for personal use while the high-interest loan kept ticking. When pressed on the stand, defendant repeatedly changed his answers about various bank accounts and documents.
The court found that the business manager and his company obtained funds under false pretenses and committed fraud against the court. Judge Thomas B. Hoover granted summary judgment in favor of the plaintiff, ordering the defendants to pay principal, lost profits, real estate taxes, attorney’s fees and punitive damages.
Nursing home lessor recovers $2.7 million for breach of lease
In this litigation involving a nursing home lease, assignment of the lease and nonpayment of rent, the Lynchburg U.S. District Court ruled that plaintiff lessor may recover $2.74 million in damages for defendant’s breach of the lease and abandonment of the facility in question.
During a three-day bench trial, the parties contested issues relating to their rights and obligations under the original lease and lease amendment. Judge Norman K. Moon entered a memorandum opinion resolving all issues in favor of the plaintiff and finding defendants liable for all damages claimed.
If we have missed any million-dollar verdicts from 2013, please let us know. We’ll be glad to add that information to the online version of the story so it can be as complete as possible. And during the coming year, we would greatly appreciate hearing about verdicts that will make it on next year’s list.
