by KPMLAW | Oct 17, 2017 | KPMBlog, News, Profiles, Uncategorized
The United States Federal Courts in Virginia continue to interpret Virginia law as not recognizing an independent tort for negligent supervision. While it is contrary to some state circuit court decisions indicating that Virginia may yet recognize the tort under certain factual circumstances, recently decided cases seem to show the Virginia courts are moving further away from recognizing negligent supervision as a cause of action. The claim for negligent supervision was most recently addressed by the United States District Court for the Western District of Virginia (Charlottesville) in the matter of MCI Communications Services, Inc. v. MasTec North America (Moon),No. 3:17cv00009 May 24, 2017. In MCI Communications, the district court granted defendant’s 12(b)(6) motion to dismiss plaintiff’s negligence claim based on a failure to train or supervise theory. Plaintiff MCI had fiber-optic cables buried in VDOT right of ways along certain railroad tracks. MasTec North America, Inc., is an excavating company that was using excavation equipment near the right-of-way and severed the MCI cable which interrupted service. MCI alleged that MasTec’s negligent acts included failing to train its employees on regulatory and safety standards and failing to supervise its employees to ensure compliance. Judge Moon noted that Virginia’s recognition of negligent supervision claims is uncertain. He discussed recent Federal Court decisions which have construed Virginia Supreme Court precedent to hold that there is no cause of action for negligent supervision in Virginia while a minority of state courts limit that precedent to its facts. The precedent to which Judge Moon referred to is Chesapeake & Potomac Tec. V. Dowdy, 235 Va. 55, 61, 365 S.E.2d 751, 754 (1988). In...
by KPMLAW | Oct 17, 2017 | KPMBlog, News, Profiles, Uncategorized
Written by Randy Lenhart, Esq. Edited by Bill Pfund, Esq. A company may create private polices, procedures and safety rules for use by its employees for a number of reasons, including but not limited to, establishing a culture of workplace safety, preventing accidents and reducing the number of lawsuits. When these private rules are created companies expect that they will be followed by their employees and remain confidential. But what happens after a lawsuit has been filed and the opposing party obtains copies of the private rules in discovery. Can they be used against you in a Court of law to set the standard of care in meeting your duty to others? In Virginia, a company’s private rules cannot be used against it to set the standard of its duty to others. This principle was first articulated in 1915 in the case of Virginia Ry. & Power Co. v. Godsey, 117 Va. 167 (1915). In Godsey, a plaintiff was injured when she fell off of a moving street car. She brought a personal injury action against the street car company and used the defendant’s private rules against it at trial arguing that its rules were an admission that reasonable care in her case required the exercise of all of the precautions identified in the rules. On appeal, the Supreme Court of Virginia reversed the judgment and ordered a new trial in which the defendant’s private rules were excluded from evidence. In doing so, it held that “a person cannot, by the adoption of private rules, fix the standard of his duty to others. That is fixed by law,...
by KPMLAW | Oct 17, 2017 | KPMBlog, News, Profiles, Uncategorized
Written by Brian Snyder, Esq. Edited by Bill Pfund, Esq. Recently, Steven Brill published “America’s Bitter Pill” an acclaimed book on how the Affordable Care Act, or Obamacare, was written, how it is being implemented, and, most important, how it is changing—and failing to change—the rampant abuses in the healthcare industry. Many of the issues outlined in the book were first identified in his trailblazing Time magazine cover story “Bitter Pill – Why Medical Bills Are Killing Us”, which addresses a number issues about the way medical providers bill patients and common abuses in the industry. These issues become relevant to personal injury litigation because “on the defense side, it is commonplace for medicals to be the foundation for the evaluation of worst case exposure of a claim, and of a reasonable settlement range. Therefore if the medical bills are grossly inflated, the amount paid on the claim will be too. Its common knowledge that health care providers charge extra to cover the cost of care provided to the uninsured, but Brill’s article is shocking because it shows that medical bills are inflated many times beyond that.” Stratton, David B. “Bitter Pill article provides important insights for litigation” Insurance Defense Blog, Mar. 2013. This can be frustrating from a defense perspective because in Virginia and most of the surrounding jurisdictions, the collateral source rule bars a defendant from introducing evidence of payments or benefits a plaintiff received from a third party.[1] This makes it challenging for the defense to argue against the reasonability of a plaintiff’s medical bills and nearly impossible to do without retaining a medical expert. While...
by KPMLAW | Sep 18, 2017 | KPMBlog, News, Profiles, Uncategorized
Written by Brian A. Cafritz, Esq. With fires to hoverboards, cell phones, and other products routinely in the news, questions arise as to whether or not a retailer and manufacturer have a post-sale duty to warn consumers of dangers to its products. Virginia law on this point is muddled, and the Virginia Supreme Court has never provided a direct answer. However, the US District Court in the Eastern District of Virginia had a chance to grapple with this very question. In Estate of Rodriguez v. Diehl Woodworking & Machinery, Inc., 2016 U.S. Dist. LEXIS 103434, the Plaintiff was killed when a ripsaw produced a kickback, sending a sliver of wood out of the machine, and into his head. His estate sought recovery against the manufacturer under general negligence and for the failure to warn post sale. Under Virginia law, there are only three theories to recover under a products liability claim: 1) negligent manufacture; 2) negligent design; or 3) failure to warn. Morgan Indus., Inc. v. Vaughan, 252 Va. 60 (1996). When faced with a general negligence claim, a Virginia court will attempt to fit the plaintiff’s claims into one of those three categories. If the court cannot do so, the plaintiff’s claim must fail. Sykes v. Bayer Pharms. Corp., 548 F. Supp. 2d 208 (E.D. Va. 2008). Under a failure to warn claim, a plaintiff must show that the manufacturer knows or has reason to know that the product is dangerous for its anticipated use; has no reason to believe that users will know of the product’s dangerous condition, and fails to take reasonable care to warn of...
by KPMLAW | Sep 16, 2017 | KPMBlog, News, Profiles, Uncategorized
Written by Kevin Kennedy, Esq. Edited by Bill Pfund, Esq. Most companies that employ a fleet of vehicles have internal policies in the event of an accident. Drivers are often required to fill out an accident report describing how the incident in question occurred. While it is good practice for companies to gather as much information as possible and preserve evidence from an accident, incomplete accident descriptions contained in a driver’s report can become a sore spot in litigation. Plaintiff’s attorneys frequently attempt to use a limited written description of the accident as proof that additional accident details relating to the plaintiff’s actions or some other affirmative defense are invented facts. If a driver’s initial report omits a significant aspect of the defense’s theory of the case, it is worth exploring avenues for prohibiting use of the statement at trial. A preliminary question for the defense is whether the accident report is discoverable or privileged. Virginia courts have not provided a bright line rule that dictates when efforts by a defendant or the defendant’s insurer to preserve evidence related to an accident are deemed to be action taken in anticipation of litigation, and therefore privileged. Instead, a Virginia court will ask if “it was reasonably foreseeable that litigation would ensue at the time the statement was taken.” Whitehurst v. Lloyd, 37 Va. Cir. 224 (Loudoun 1995). This analysis depends on the facts of each case, but as a general rule “routine investigatory reports made and prepared without some minimal involvement of counsel are not protected.” Thompson v. Winn Dixie Raleigh, Inc., 49 Va. Cir. 115 (Chesterfield 1999). This precedent...
