The VLW Blog

At last, medical malpractice defense attorneys must be saying, a decision from the Supreme Court of Virginia in our favor – albeit in the form of an unpublished order.

To say that the case of Lindamood v. Jamshidi had languished in Fairfax County Circuit Court would be an understatement. The widow of Thomas C. Lindamood filed the complaint in May 2000, more than three years after her husband died from what she said was negligence in treating her husband’s neurological condition.

In October 2001, the plaintiff produced an expert medical opinion in response to discovery, after which, as the Supreme Court said gently, “the case went into a period of inactivity.”

Finally in April 2006, the defendant filed a motion to dismiss because nothing had happened in more than three years. The trial judge denied the motion but set a trial date in June 2007 and entered a uniform pretrial scheduling order that required the plaintiff to designate her experts three months before trial.

The plaintiff’s attorney missed the deadline, and the defendant filed a motion to dismiss the case with prejudice. The plaintiff admitted missing the deadline but contended that dismissal was too strong a sanction in light of a serious, prolonged illness by her attorney and the absence of prejudice to the defendant because he had known the nature of her expected expert testimony for more than five years.

Judge Arthrur B. Vieregg Jr., apparently deciding “enough is enough,” granted the motion and dismissed the case.

“Lindamood’s counsel became aware of his serious illness several months before the deadline for designation of her experts but failed to withdraw as counsel, associate another attorney, or request a continuance or an extension of the deadline,” the Supreme Court said today in affirming Vieregg’s ruling.

“Given the length of time the case had been pending, the court’s denial of a previous motion to dismiss for inactivity, and Lindamood’s failure to comply with the court’s order despite being given eight months to do so, we hold that the circuit court did not abuse its discretion by imposing that sanction.”

Fairfax attorneys Stephen L. Altman and Matthew D. Banks represented the defendant.

The ruling in the case argued last month follows two decisions in favor of plaintiffs on June 6, giving plaintiffs 11 straight published decisions in their favor from the court. Last week, the court issued an unpublished order that sided with a plaintiff.

By Alan Cooper

Medical malpractice plaintiffs continued their string of wins in the Supreme Court of Virginia in an unpublished order issued today.

The case, Kraina v. Carman, stemmed from the removal of ruptured breast implants by Norfolk physicians in November 2001. In her original complaint, the plaintiff specified injuries that she alleged were caused by the failure of the defendants to properly prescribe antibiotics to cure an infection after the surgery. In addition, she filed a general allegation of negligence based on her treatment from March 2001 though the date of the surgery.

In answers to interrogatories, plaintiff’s expert contended that the defendants were negligent in performing all aspects of implant removal and breast reduction in the same procedure. In her designation of the expert’s testimony, plaintiff said he would assert that defendants should have used a two-stage procedure that would have avoided the infection and loss of tissue. The designation did not allege negligence in treating the infection.

Defendants contended plaintiff had abandoned the original theory of negligence in treating the infection and presented an entirely new theory alleging negligence in planning and executing the surgery itself. The trial judge granted their motion to strike the designation and entered summary judgment because plaintiff did not have expert testimony on causation and the standard of care.

The Supreme Court ruled, however, that the general allegation of negligence was enough to put the defendants on notice that plaintiff was alleging negligence during the surgery itself. The court said the trial judge could properly have excluded the expert’s testimony about post-surgery treatment but erred in excluding it altogether.

The ruling in the case argued in June followed two decisions in favor of plaintiffs on June 6, giving plaintiffs 11 straight decisions in their favor from the court.

By Alan Cooper

Gov. Tim Kaine will have to fill judicial vacancies because the General Assembly adjourned this morning without filling any seats, just as it failed to reach agreement on transportation policy and funding.

A deal that would have put Chesterfield County Circuit Judge Cleo E. Powell on the State Corporation Commission and Chief Court of Appeals Judge Walter S. Felton Jr. on the Supreme Court of Virginia failed when Democrats balked at Felton, whom they remembered as a top advisor to Republican Gov. Jim Gilmore.

The legislators apparently had no interest in filling vacancies on other courts when they were unable to start at the top, so Kaine will have to fill not only the Supreme Court and SCC vacancies but seats in Norfolk, Virginia Beach and Hampton where partisan divisions are bitter and strong.

The discord may limit the field because some judges and attorneys will be unwilling to risk their positions or practices for an appointment that is only good until February, when the General Assembly will have another opportunity to fill the seats.

Today, the Virginia Trial Lawyers Association became the final statewide bar group to send Kaine endorsements for the Supreme Court vacancy created by the appointment of Justice G. Steven Agee to the 4th U.S. Circuit Court of Appeals.

The trial lawyers found Fairfax Circuit Judge R. Terrence Ney and Roanoke Circuit Judge Clifford R. Weckstein to be highly qualified and Arlington Circuit Judge Joanne F. Alper; Felton; Circuit Judge Colin R. Gibb, who sits in Pulaski and Giles counties; Loudoun County Circuit Judge Thomas D. Horne; Court of Appeals Judge Leroy F. Millette, Jr.; and Chief Deputy Attorney General William C. Mims to be qualified.

By Alan Cooper

Virginia Court of Appeals Judges D. Arthur Kelsey and LeRoy F. Millette Jr. and Fairfax County Circuit Judge R. Terrence Ney have won the endorsement of both the Virginia Bar Association and the Virginia Association of Defense Attorneys for a vacancy on the Supreme Court of Virginia.

The VBA also endorsed Arlington Circuit Judge Joanne F. Alper, Chief Court of Appeals Judge Walter S. Felton Jr., Loudoun County Circuit Judge Thomas D. Horne, Chief Deputy Attorney General William C. Mims and Roanoke Circuit Judge Clifford R. Weckstein.

The VADA endorsed only one other candidate, Chesterfield Circuit Judge Michael C. Allen.

The Virginia State Bar, the Virginia Women Attorneys Association and the Old Dominion Bar Association had scheduled interviews of candidates for today and are expected to announce their endorsements next week as is the Virginia Trial Lawyers Association.

Gov. Timothy M. Kaine has asked the statewide bar groups to submit recommendations to him in case he has to fill the vacancy created by the appointment of Justice G. Steven Agee to the 4th U.S. Circuit Court of Appeals.

The General Assembly is in session and could appoint someone to a 12-year term. If it adjourns without doing so, the task will fall to Kaine to make an appointment that will be effective only until February, when the General Assembly would have another opportunity to fill the seat.
By Alan Cooper

You’ve briefed and argued your Virginia circuit court case. Weeks go by and the judge still has it under advisement. Your client wants to know what’s taking so long.

The remedy under the Virginia Code: tell it to the Chief.

That’s right. Under Virginia Code § 17.1-107, if Chief Justice Leroy Hassell, or his designee on the high court, believes a circuit or appellate judge is taking “an unreasonable length of time” to rule in a case, he “shall inquire into the cause of such delay” and can designate another judge to help out.

Now we have a number for “reasonable.” It’s 90 days.

This year the General Assembly amended the statute to provide that if a circuit judge holds a civil case under advisement for more than 90 days after its final submission, the court has to tell the parties or their counsel, in writing, when they may expect a decision.

If the trial judge fails to report to the parties, or to issue a decision within the promised time frame, any party can notify the Chief, who then can apply the “reasonableness standard” and assign help for the slow-poke.

Richmond litigator Ben Ackerly, who mentioned the statutory change at the June 19 “Recent Developments in the Law” update at Virginia Beach, said he’s “not sure this solves the problem.”

If you’re waiting for the trial judge to presumably make a decision in your client’s favor, you don’t want to harass the judge.

But under the statute, the trial judge probably is going to know who gave the nod that led to a nudge from the Supreme Court.

The General Assembly appears poised to fill at least three judicial vacancies, but legislators are still scrambling to find a Supreme Court justice, an SCC member and judges in Hampton and Norfolk.

Likely to be appointed are Fredericksburg Commonwealth’s Attorney Charles S. Sharp to replace Circuit Judge John W. Scott Jr., who died in April; Stafford sole practitioner Michael E. Levy to a general district seat in the 15th Circuit to replace Judge J. Overton Harris, who was elevated to the circuit court; and Uley M. Norris, a partner in the firm of Damiani & Damiani in Alexandria, to a juvenile and domestic relations district court seat created by the elevation of Judge Nolan B. Dawkins to Alexandria Circuit Court.

There was talk yesterday of elevating Chief Judge Walter S. Felton Jr. to the Supreme Court vacancy created by the appointment of Judge G. Steven Agee to the 4th U.S. Circuit Court of Appeals and of appointing Richmond Circuit Judge Richard D. Taylor Jr. to the SCC.

Some legislators had qualms about Taylor’s lack of experience in regulatory matters, which led to talk of Chesterfield Circuit Judge Cleo E. Powell for the SCC and Taylor to the court of appeals. Powell was a staff attorney for Dominion Power and also did regulatory work while in private practice. Powell also is a candidate for the court of appeals. She and Taylor are black, and the state has never had a black SCC member, and the court of appeals has no black judges now.

The movement for Taylor was strong enough that Courts of Justice Committee members interviewed three candidates to replace him: General District Judges Joi Jeter Taylor and Gregory L. Rupe and McGuireWoods partner Steve C. McCallum.
By Alan Cooper

“This is not a game of ‘Gotcha,’ ” insisted Senior Virginia Supreme Court Justice Elizabeth B. Lacy. “We want to deal with substantive issues.”

But she acknowledged that the two state appellate courts are refusing to address more and more of those issues because of procedural defaults. She said she didn’t know whether the blame lay with sloppier lawyering or increased pickiness by the courts.

Lacy said one factor is that the appellees “are doing a better job of scouring the record” to emphasize the defaults.

Whatever the reason, “We can’t just blink and pretend it didn’t happen,” she said. “I can assure you it’s not going to go away.”

Lacy offered the comments Friday at a program at the Virginia State Bar annual meeting on “The Bermuda Triangle of New Litigation Pitfalls – Sanctions, Waivers and Pleadings.”
By Alan Cooper

Washington & Lee Law School has announced that Virginia Supreme Court Justice Donald Lemons will teach appellate practice in the school’s third year program. From the news release: “The outstanding faculty at Washington and Lee University School of Law are pursuing a bold new dynamic in legal education that is long overdue,” said Justice Lemons. “W&L has the courage to be on the leading edge of this educational reform, and I am thrilled to be a part of this enterprise.”

The Salem-Roanoke County Bar Association has recommended veteran Roanoke Circuit Judge Clifford Weckstein for a pending seat on the Supreme Court of Virginia. As noted by WDBJ, Gov. Kaine gets to make the pick on who to succeed Salem’s Steven Agee, who will join the 4th Circuit later this summer.

A judge erred in telling jurors that he could lower their sentencing recommendation but not increase it, the Supreme Court of Virginia ruled today.

The judge’s comment came in response the question, “Can the [judge] alter the sentence[?]” Justice Barbara Milano Keenan said the Supreme Court draws a distinction between instructions that further the goal of “truth in sentencing” and those that invite speculation “concerning the likelihood of future actions that may ultimately affect the length of a defendant’s incarceration.”

Instructing a jury that a defendant must serve 85 percent of any sentence imposed is in the first category while telling it that the judge can reduce its recommendation encourages speculation on “whether the circuit court later would reduce [the defendant’s] sentence given the nature of his crimes, the other evidence in the case, or factors unknown to the jury at the time it imposed its sentence,” Keenan wrote in Booker v. Commonwealth.