Virginia Injury Lawyer Blog

According to Consumer Reports, car seats for infants (the rear-facing seats for infants up to about one year in age) usually fail in broadside crashes -- 10 of 12 models tested failed, some "disastrously" (the seat often separated completely from its base). One popular model -- the Evenflo Discovery -- failed not just in broadside collisions but also in head-on collisions.

One possible explanation for the failures: the manufacturers are only required to test infant seats in head-on collisions, despite that about 30 infants in the United States die each year in broadside collisions.

Parents are cautioned, however, that holding an infant in your arms during car travel is not a safe alternative.

While it appears that some work is being done to improve these infant seats, we need quick action -- including legislation or regulation requiring that these infant seats withstand side-impact collisions -- if we want to save our precious children from death, brain injury and other unspeakable tragedies .

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.

A Circuit Court Judge in Virginia recently commented to me and other counsel that the defense of sudden emergency is "dead" in Virginia. I think the Judge was being somewhat facetious in order to underscore the significance of a recent Virginia Supreme Court decision, but the question remains -- does sudden emergency still exist in Virginia?

On September 15, 2006, the Supreme Court of Virginia announced its decision in Herr v. Wheeler , 272 Va. 310, 634 S.E.2d 317. In that case Wheeler loses control of her vehicle in heavy rain when it hydroplanes on the wet roadway and suddenly crosses into Herr's lane of travel. Wheeler had known of the slipperiness of the roadway, and was being "cautious." The Herr Court (at 288) found that the trial court erred in granting Wheeler's request for a "sudden emergency" instruction, holding that:

[W]hen abnormal conditions are known and the heightened hazards they create are reasonably foreseeable, the standard of ordinary care the law imposes is higher. Where nature has created hazardous conditions on a highway, and such hazardous conditions are open and obvious, the operator of a motor vehicle is required to take care in the operation of his vehicle proportionate to the known dangerous condition of the highway.

Wheeler had admitted knowing the general dangerous conditions and argued that the sudden emergency was not the known generally dangerous conditions but instead was "one isolated spot" of standing water that she had not known about. The Supreme Court rejected Wheeler's argument:

The occurrence of standing water on a roadway during a heavy rainstorm is simply another matter of common experience. The hazard this occurrence presents, including the possibility of hydroplaning, is one the driver of a vehicle along the roadway must anticipate and exercise reasonable care to avoid. Although Wheeler had not encountered standing water on the roadway as she traveled along Route 250 and may not have seen the accumulation of water at the point on the roadway her vehicle began to hydroplane, just as in Harrah, such an occurrence was not an "unexpected happening."

So, is sudden emergency dead in Virginia? The answer is no. But in the many cases in which a defendant claims that weather conditions created a sudden emergency, that defendant better be able to say that "my day was sunny and bright when the sky suddenly opened-up right before my eyes and my car took on a life of its own." If that defendant knew of the dangerous conditions generally and was merely suprised by an isolated spot of the same condition, he has a sudden emergency not of God's making but of his own making. The Supreme Court did not drop the guillotine on the doctrine of sudden emergency, but the Court did drop the guillotine on any driver who knew of the dangerous conditions and comes to court claiming a "sudden" emergency.

Virginia defendants, take it from Virginia plaintiffs -- don't make excuses and don't make frivolous claims.

If you are a personal-injury lawer in the conservative state of Virginia or elsewhere in the land of tort reform, this is my admittedly provocative view -- employed by my firm over the past six (6) years or so -- of how to obtain just personal-injury settlements for your clients:

1. Don't just dabble in personal-injury cases; the insurance defense lawyer is too good for that, and he will only smile as he runs over you while you are dabbling.

2. Study and read about how to be a better trial lawyer. If you don't enjoy much of what you are reading, try something else (not just another book; try another line of work).

3. Select good cases -- this does not mean: select only those cases that are "sure winners;" he who does not take risk is not a real trial lawyer.

4. Investigate the facts, and keep investigating: a) it's fun; b) the insurance companies are great at doing a lousy job at this; c) facts (if wound into a good story) win cases.

5. File suit in every case (with extremely rare exceptions; I told you this would be provocative). You have little leverage over insurance companies without litigation. They don't really ever pay you "voluntarily." They only pay justly you when trial is closing in on them and you are an imminent threat to their money. When they pay you "voluntarily," you have been had.

6. Cerebrate about your case and your client. In the beginning. In the middle. In the end. About the good believeable facts, and the bad. If you don't cerebrate about your case, one among many serious casualties will be your ability to sincerely, powerfully and spontaneously talk with the jury in closing argument. Juries know when you have not lived the case, and when you don't know your client and what her injuries mean to her and her life.

7. Don't attempt settlement until the insurance company smells trial in the next room, in its back pocket, at its bottom-line.

8. Give the insurance company a firm deadline for settlement, and stick to it (unless the client changes his mind). Pre-trial settlement deadlines -- if enforced by your firm over much time and many cases -- pressure all sides to hear an early version of "the-jury's-knocking-on-the-door," and thus pressure the parties into staring headlong into the possibility of a much worse result at trial.

9. Never, ever "beg," "keep after"or try to cajole an insurance company to settle. The appearance of weakness is weakness. Relax. It's their money they're about to lose.

10. Try cases to verdict and get good results -- insurance companies do not respect an attorney with a track record of not going to verdict.

11. Try cases to verdict and get good results -- your track record precedes you, and each good "We the jury find our verdict in favor of plaintiff and award damages in the amount of ..." is wind at your back in your next effort to settle.

12. Try cases to verdict and get good results -- the insurance companies' reasonable fear of a "runaway" verdict or a too-sympathetic jury is a very, very good friend of yours.

13. You cannot worry -- at all -- about your own financial state or about turning down substantial sums of money. You and your client never had it to lose. It's not your money. Money-hungry lawyers are scared lawyers, not great trial lawyers willing to risk.

14. Be honest with your client, not proud or self-indulgent. Your client needs to know your unvarnished professional opinion on settlement and the chances of reasonable-high and reasonable-low verdicts at trial, not your self-indulgent invective about how unfair are the insurance company, insurance defense counsel and Virginia juries.

15. Be completely ready for trial. Completely ready. And ready early. Many a bad verdict results from the assumption of settlement; many a bad settlement results from not being ready to try your case.

16. If the case does not settle within your deadline, try the case, and try it with focus and determination until you hear the knock on the door and the foreman speaking. Then put your arm around your client and feel good about what you have done.

Marlo said she was injured in the accident. As her attorney, I believed her. But Allstate Insurance Company just knew that it could push her around. Allstate's insured said that her car was barely moving when it hit Marlo's. The only exterior damage to Marlo's car were scratches on her rear bumper, without dents. Marlo claimed back pain, but she had complained about back pain a couple of months before the accident. Marlo had no medical expenses or lost wages. Her treating doctors largely dismissed her injuries and would not cooperate or testify at the Loudoun County, Virginia trial. Marlo went to a doctor outside her plan who told her that she would need some medical treatment -- not now, but as she got older.

Allstate's insured swore in writing that she had $100,000 of liabililty coverage. Marlo demanded settlement for the coverage limits. Allstate did not respond and made no offer.

Shortly before trial its insured swore in writing that her liability coverage was not $100,000 but only $25,000; and Allstate produced a declaration page verifying $25,000 in coverage. Marlo then demanded the $25,000 coverage, giving Allstate a short deadline by which to respond and stating that after the deadline she would not extend or respond to any settlement offers. Allstate did not respond and made no offer.

Marlo and I were offended by Allstate's treatment. I told Marlo that if we could get a verdict of more than $25,000 she may have a case of Allstate's bad-faith refusal to settle or to protect its insured's personal assets, and that she (Marlo) may be able to recover the full amount of any award, even above Allstate's contractual obligation of $25,000. We took the case to trial.

The jury did not take long, and returned to announce a verdict of $112,000.

Allstate filed an appeal, no doubt hoping that Marlo -- she of modest means -- would be scared of a still longer and more costly battle, and scared into accepting the policy limits. After trial Allstate offered its full $25,000 in coverage. We reminded Allstate that the deadline for negotiation had passed and that we expected full payment on the verdict, with interest.

I told Marlo that she was in the driver's seat but that this time the Allstate vehicle was in front of her and that she was picking-up speed.

Allstate abandoned its appeal, never even filing a Petition for Appeal.

I received a call "out-of-the-blue" from the Allstate insured. I suggested she obtain personal counsel. She said that she wanted this over. She retained personal counsel, who said that she would assign her rights to sue Allstate (for bad-faith) to Marlo. On my advice, Marlo did not respond.

Shortly after the insured's and Allstate's counsel conferred, we received a letter from the insured's counsel withdrawing the offer to assign rights to Marlo. On my advice, Marlo did not respond. I sensed that the insured was feeling more and more squeezed by the "good hands" of Allstate; that the Allstate and insured's counsel were having "open and candid" discussions; that Allstate knew that it had "wrung its own neck;" and that Allstate probably had decided -- depending on young Marlo's strength -- that it may have to pay more than its coverage in order to rid itself of Marlo and its own insured.

After a number of months, we received a request to negotiate. On my advice, Marlo responded that she had a judgment, that she expected full payment on the judgment, that Allstate was guilty of bad faith, and that she was in a position to execute on her judgment against the insured's assets at any time.

Within days we received an unsolicited offer of $75,000. On my advice, Marlo indicated that she expected full payment on the judgment.

Within a week or so, I received a letter from Allstate's counsel offering to pay $123,000 -- the entire judgment of $112,000 and interest of $11,000. Marlo was not in much need of advice at this point, and immediately said yes. A few weeks ago we received full payment.

The moral of the story? There may be a number of morals here, but one is ... if you are injured, and the insurance company is dismissive and arrogant ... fight hard, be patient and let the behemoth trip over itself: arrogance makes mistakes.

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.