Virginia Injury Lawyer Blog

If you -- like many personal-injury victims -- are taking over-the-counter (OTC) pain medications, you need to be aware of new proposed FDA (Food and Drug Administration) warnings.

On January 2, 2007, the Washington Post reported that the FDA has proposed stronger warning labels on over-the-counter "painkiller" medications, especially because of the risk of liver and stomach damage. These warnings would apply to all OTC medicines containing acetaminophen and nonsteroidal anti-inflammatory drugs (NSAIDs), including aspirin, naproxen and ibuprofen (in popular products such as Tylenol, Aleve, Motrin, Advil and Tylenol Arthritis Pain).

These medications -- often used to treat headaches and muscle pain/discomfort -- should be taken at the lowest dose possible for the shortest time possible, especially if one is taking any other medicine(s). There are additional known hazards when mixing alcohol with any of these medicines.

One "take-away" from these proposed warnings, then, is to rid yourself of the common misconception that "over-the-counter" medications are "harmless" and without risk.

Traffic deaths in the United States in 2005 -- 43,443 -- reached their highest levels since 1990, according to government statistics cited by the Insurance Journal, The increase was more than 1 percent compared to 2004.

This increase was attributed in part to increased deaths from motorcycle and pedestrian accidents. One possible explanation for the spike in this particular segment of the population is that -- as our urban/suburban populations rise, and our roads and highways become more crowded -- we as drivers focus most on what endangers us -- the bigger, looming objects on the roads like trucks and SUV's -- and we don't look for or just don't see the smaller figures on the roads like motorcyclists and pedestrians.

The lessons to all of us? Driving is not just about protecting ourselves; it's also about looking for and protecting others, especially those who most need our protection -- like the elderly pedestrian who is not alert or the child running mindlessly across a neighborhood street.

No, Virginia, your jury verdicts for injured men, women and children are not excessive or "out-of-control."

The American Tort Reform Association -- "ATRA" -- has published its list of "Judicial Hellholes" of 2006 ... and, Virginia, you are not on its list. You are not even an "Honorable Mention," and you are not even on the "Watch List." One sure way to get on the list? Allow runaway jury verdicts.

No doubt Virginia's absence from this list will come as a great surprise to Virginia jurors who long have been besieged with the cries of ATRA and the insurance companies and corporations to the effect that jury awards for the injured are "everywhere" out-of-control.

The insurance companies have dropped tons of propaganda over the landscape of America: propaganda that tells prospective jurors that every plaintiff is a malingering fraud and that every plaintiff's lawyer is an "ambulance-chaser" ... propaganda that does not tell prospective jurors that the insurance companies' media blitz over the past twenty (20) or so years has saved them untold millions of dollars that under the law should have gone to compensate millions of victims of serious injury and wrongful death.

Virginia jurors still believe -- against all the evidence -- that runaway verdicts for the injured are rampant in Virginia and that they must take corrective action to even the scales of justice. Yet jurors understandably have no knowledge of actual jury verdicts in Virginia because the insurance companies that tell them of the horror stories of isolated runaway verdicts do not tell them the rest of the truth -- of the flood of inadequate verdicts.

How do we know that jurors still believe that runaway verdicts are rampant? First, jurors tell us so after their verdicts. Second, ask a juror how many times he has heard of an inadequate verdict. His response: "never."

Virginia jurors still believe that plaintiff's lawyers are the promulgators of all of the lawsuit abuse. Yet Virginia judges and trial lawyers know that frivolous defenses in Virginia are at least as common as frivolous lawsuits. Ask a juror how many times he has heard of a frivolous defense. His response: "never."

Virginia's not being on this list of "judicial hellholes" is no surprise to Virginia judges or the trial lawyers for the plaintiff and defense. Each of them knows that an injured plaintiff in Virginia has one hand tied behind his back and two strikes against him when he first comes to bat in court. Candidly, this does not apply to victims of medical malpractice in Virginia, who have two hands and two feet tied-up, and who can be seen limping-up to the plate and then simply heading back to the dugout without taking a swing.

What can the Virginia juror do about this? Simple: rid yourself -- honestly rid yourself -- of the insurance companies' propaganda ... and simply listen to the facts of each case and follow the law in that case. This guarantees favor to no one ... except "Lady Justice." The law does not provide for your allegiance to the insurance companies' self-interested propaganda. The law provides -- no, demands -- your allegiance to Lady Justice.

Coma, confusion and character. Mark Schluter had all three. In Richard Powers' powerful novel The Echo Maker -- recent winner of the prestigious National Book Award -- Mark is the victim of a mysterious crash that leaves him comatose and confused, and needing every bit of his toughness and character.

In the first few hours of his living nightmare, an anonymous person leaves Mark a note at his hospital bedside:

I am No One but Tonight on North Line Road GOD led me to you so You could Live and bring back someone else.

Mark and his caregivers attempt to find the author of this mysterious note, in hope of answers to how and why Mark's life suddently turned tragic. Mark not only suffers from Traumatic Brain Injury (TBI) -- he has a specific subset known as Capgras in which the victim cannot identify certain people, including loved ones (here Mark's beloved sister). The tragedy expands -- Mark's sister gives him constant care, but Mark wonders who she is and why his sister is for the first time not there when he really needs her.

All readers will be intrigued by the mysteries of the book -- the mystery of who authored the note, and why; the mystery of Capgras and the vagaries of the traumatized human brain: and the mystery of what happens to a burned-out journalist and an ivory-tower cognitive neurologist when they realize that they are living their own version of taking photographs of human misery without seeing the human in misery.

I read this book as a trial lawyer representing victims of brain injury, but at the book's end I -- like the journalist and neurologist in The Echo Maker -- was challenged once again to embrace and not ignore the human in human misery. We trial lawyers representing victims of brain injury have duties but also a real blessing in accompanying these courageous victims in their struggles and triumphs. The blessing is not that God leads us to them for their sake, but that God leads them to us for our sake. We see them live, and we even see them "bring back someone else."

For additional details, comments or questions, please call me -- Doug Wessel -- at 703-904-7900, or send your e-mail to me at DOUGWESSEL@aol.com.

On October 6, 2006, the Virginia Supreme Court reinstated a Fairfax County jury's $1,800,000 verdict in a mild traumatic brain injury case that I tried in August of 2005. In Wu v. Wirthlin Worldwide, the trial court had found after the verdict that at the time of this accident Defendant Wirthlin's employee was not within the scope of employment because at the time of this accident she was doing nothing more than merely traveling to work.

The Supreme Court rejected the trial court's analysis that an employer cannot be vicariously liable when the employee is traveling to work at the time of the accident; instead, the Court focused on whether there was sufficient evidence of the employee's intent to benefit the employer at the time of the accident. While the employee had testified that she was returning to the office to pick up her glasses and "other items," her boss testified that the employee had told her that she was returning to the office in order "to pick up project files in preparation for" a meeting the next day. The Court held that:

Because the record shows conflicting credible testimony regarding (the employee's) intent at the time of the accident, there existed a sufficient question of fact concerning whether she was acting within the scope of her employment to submit the issue of Wirthlin's liability to the jury. The trial court thus erred in substituting its judgment for that of the jury.

The Supreme Court reversed the trial court, reinstated the $1.8 million verdict and entered final judgment for Mrs. Wu.

The key to victory in this case was our extensive discovery and argument of direct and circumstantial evidence, and reasonable inferences, of the employee's intent to benefit her employer at the time of this accident.

See the front-page article in the October 16, 2006 edition of Virginia Lawyers Weekly, which quotes my reaction to the decision -- that the Virginia Supreme Court once again has shown "utmost deference to juries."

For additional details, comments or questions, please call me -- Doug Wessel -- at 703-904-7900, or send your e-mail to me at DOUGWESSEL@aol.com.

On October 5, 2006, the Insurance Institute for Highway Safety in Arlington, Virginia -- a non-profit organization focused on reducing injuries and deaths on our roadways -- published the results of a new study on the safety benefits of side airbags.

The study's findings included:

1) side airbags substantially reduce the risk of death;

2) side airbags that protect people's heads are especially effective;

3) side airbags that protect only the chest and abdomen (but not the head) reduce risks at a significantly lower rate;

4) side airbags protect at a higher rate against deaths from crashes not only with cars but also with the higher-riding vehicles such as SUVs and pickups (occupants' heads are especially vulnerable in collisions with SUVs or pickups).

5) since 2003 all car models with good ratings in the crash tests have had side airbags, and very few poor performers in the crash tests have had side airbags.

The Institute's VP for research and an author of the study has stated that:

We found lower fatality risks across the board — among older and younger drivers, male and female drivers, and drivers of both small cars and larger passenger vehicles.

Moral of the story: when you choose a new riding machine, it's OK to spend some time on ordering color, horsepower and the like, but don't forget to order air bags "on the side." It's the smart, brainy thing to do, and it may be a death-defying act.