2012 Boyd-Graves Conference Committee Report on Improper Use of Demurrers –attached

2012 Boyd-Graves Conference Committee Report on Misuse of Demurrers

Discoverability of Policies and Procedure –Compilation of Rulings Provided by Avery Waterman – Click on the link here to download—Compilation of Rulings on Discoverability of Policies and Procedures 

John Crane Motion to Exclude or Limit Defense Experts, With Memorandum in Support

Roger T. Creager and Barbara S. Williams wrote and filed this John Crane Motion to Exclude or Limit Defense Experts, With Memorandum in Support recently and have posted it here.  John Crane Motion to Exclude/Limit Defense Experts; John Crane Motion to Exclude/Limit Defense Experts, Memo in Support.

William W. Helsley of Harrisonburg Wins Important Nonsuit Decision

William W. Helsley of Harrisonburg, Virginia, has won an important nonsuit decision from a Virginia 26th Judicial Circuit Court Judge which refuses to follow the holding of the Loudoun County Circuit Court in the Spear case.   A copy of the favorable opinion and a copy of William Helsley’s excellent brief are posted here (both documents are combined in a single PDF document).    Judge Lane Opinion on Nonsuit Issue; William W. Helsley’s Brief.
Thomas J. Curcio and Roger T. Creager Win Ruling Rejecting Immunity Defense of Fairfax County Police Officer Who Ran Red Light and Caused Fatal Collision with Motorist On August 12, 2009, the Fairfax County Circuit Court denied a Plea in Bar asserting immunity on behalf of a police officer.  The officer contended she was immune from liability for simple negligence because she was responding to a 911 call reporting a fight at the entrance to a grocery store.  The officer testified that she believed that people might be in danger and for that reason ran the red light at the intersection where the collision (which killed the plaintiff’s decedent) occurred.  Thomas J. Curcio and Roger T. Creager filed a brief and exhibits opposing the Plea in Bar and tried the issue to the Court on August 11 and 12, 2009.  The Court denied the Plea in Bar.  The defense Brief in Support of Plea in Bar, the Brief in Opposition to the Plea in Bar written and filed by Curcio and Creager, the pages from the Transcript which contain the Court’s announcement and discussion of its ruling, and the Court’s Order denying the Plea in Bar are posted here.   2009 Order, Ruling, Briefs in Fairfax Circuit Court Case Rejecting Immunity Plea of Police Officer

The Creager Law Firm Files Brief in Major AppealThe Creager Law Firm has been retained as co-counsel and filed an opening brief in an appeal of major importance by Douglas K.W. Landau, Esquire, of the Abrams Landau Ltd., Hernon, Virginia.  Mr. Landau won a judgment of $21 million in Alexandria federal district court against Long & Foster Real Estate for catastrophic injuries his client suffered when a Long & Foster real estate salesperson pulled out from behind a stop sign into the path of the motorcycle on which Mr. Landau’s client was riding.  The federal court held before trial, however, that Long & Foster could not be held liable even though the Long & Foster salesperson was working on company business at the time of the collision.  The court ruled that the particular nature of the relationship between the salesperson and Long & Foster established that no jury could reasonably conclude that the salesperson was an agent of Long & Foster instead of an independent contractor.  The opening brief filed by Roger T. Creager in the Fourth Circuit of Appeals argues that the lower court erred because there was more than sufficient evidence to allow jurors to reasonably conclude that Long & Foster had the power to control the activities of the salesperson.  Opening Brief of Appellant Horst SchwinnReply Brief of Appellant Horst Schwinn.

Malingering, ‘Fake Bad Scale,’ etc.

Forty-three questions from a test known as the MMPI-2 (Minnesota Multiphasic Peronality Inventory-2) have been selected by certain neuropsychologists for use in what they have called the “Fake Bad Scale.”  They claim that the answers given by a test subject to these questions can be used to determine whether the subject is “faking” deficiencies in his mental functioning performance.  The “Fake Bad Scale” scores one point towards “faking” or malingering, for example, if the test subject answers questions like these “false”:  “I seldom or never have dizzy spells,” and “I have very few headaches.”  The “Fake Bad Scale” scores one point towards “faking” or malingering if the test subject answers questions like these “true”:  “I find it hard to keep my mind on a task or job,” and “I have more trouble concentrating than others seem to have.”  Thus, completely honest and truthful answers by brain-injured patients regarding the well-known symptoms and consequences of brain injury would score points towards classifying the test subjects as “fakers” and malingerers.  “Fake Bad Scale” testimony and malingering testimony has been vigorously challenged as “junk science” by plaintiffs’ attorneys in Virginia and elsewhere.  In one of the earliest Circuit Court rulings on the issue in Virginia, Roger T. Creager won favorable rulings on malingering testimony in Fairfax Circuit Court. Fairfax Circuit Court 2002 Malingering Etc Rulings.  In 2006, Peter Everett won another favorable ruling from the Fairfax Circuit Court excluding malingering testimony.  Fairfax Circuit Court Order 2006 Excluding Malingering Testimony.  Dorothy Scott Sims of Florida is a leading attorney fighting ’Fake Bad Scale’ testimony.  She has won numerous favorable rulings which she has generously shared with Mr. Creager for posting on the Creager Law Firm, PLLC website.  Florida Orders from Dorthoy Scott Sims Rejecting Testimony Regarding Fake Bad Scale, Malingering.

         Attorneys Michael Phelan of Richmond and Leila Kilgore of Fredericksburg have won an excellent Order (dated November 18, 2009, from the Circuit Court of Spotsylvania County) containing numerous rulings on important pretrial motion in limine issues regarding testimony of defense experts.  The Order is posted at the end of this note.  Mike and Leila have done all injured persons seeking justice in Virginia a real service by winning this Order which addresses a number of the issues that arise very frequently regarding defense expert testimony.  The Order holds that Dr. Edward A. Peck, Ph.D. (a neuropsychologist): a) cannot testify regarding plaintiff’s vocational capabilities; b) cannot testify regarding medication interactions; c) “shall not be permitted to testify about the credibility or veracity of the plaintiff, however he may testify as to his diagnosis of major depression with somatization”; and d) “shall be permitted to testify about his neuropsychological test data, but in accordance with John v. Im, 263 Va. 315 (2002), he shall not be permitted to provide causation testimony concerning Plaintiffs alleged brain injury, including whether Dr. Peck’s test data is consistent with a concussive head injury or brain injury.”  The Order also addresses testimony of defense expert Jed S. Vanichkachorn, M.D., an orthopedic surgeon, and provides:  “a. Dr. Vanichkachorn may testify in his area of expertise – orthopedic surgery. In accordance with McMunn v. Tatum, 237 V. 558 (1989) and Commonwealth v. Wynn, 277 Va. 92 (2009), Dr. Vanichkachorn’s testimony on direct examination shall be limited to identifying the records he reviewed and relied upon and stating his opinions. He may rely upon hearsay matters of opinion and fact from the records reviewed and base his opinions thereon, but may not repeat any hearsay matters of opinion or fact in course of his direct examination. [and] b. Provided, however, that Dr. Vanichkachorn’s opinion that “[m]ost cervical and lumbar strains after motor vehicle accidents resolve within a period of approximately 3-6 months” shall be excluded on the grounds that Dr. Vanichkachorn’s opinion is simply an average and does not apply specifically to the Plaintiff. Dr. Vanichkachorn will be allowed, if so disclosed in a supplemental expert designation that complies with Rule 4:1 (b)(4)(A)(i), to testify if his opinion is that the cervical and lumbar strains of Plaintiff . . .  should have resolved within a period of approximately 3-6 months after the accident.”  Spotsylvania Order 2009 Limiting Defense Experts.

Chesterfield County Circuit Court Excludes Malingering Testimony

On May 1, 2009, the Chesterfield County Circuit Court entered an order (won by Plaintiff’s counsel Michael Phelan) ruling that a medical doctor designated as a defense expert “shall not be permitted to testify about the credibility or veracity of the plaintiff or any other witness, including testifying that there is a functional component to plaintiff’s complaints of pain beyond July 2007 which may be explained by malingering, lying, a motivation for secondary gain, a history of depression, or any other psychiatric or psychologic trait or condition.” A copy of the Order is posted here.  Chesterfield Circuit Court Order Excluding Malingering Testimony

Somatoform Testimony Excluded

The United States District Court for the Eastern District of Virginia (Richmond Division, Lauck, J.) on November 12, 2009 entered an Order sustaining a motion filed by Philip S. Marstiller, Jr. of Emroch & Kilduff, LLP, to exclude testimony by two defense experts regarding whether the plaintiff has somatoform disorder.  The Court held:  “Such testimony far too easily invades the province of the jury or comments on the credibility of the Plaintiff.”  This holding will be helpful to counsel for injured persons when seeking to exclude so-called “expert testimony” regarding “malingering, symptom validity, exaggeration, symptom magnification, secondary gain” and similar matters.  This type of testimony is not scientifically reliable and furthermore directly, and improperly, comments on the veracity and credibility of the plaintiff.  Judge Lauck’s Memorandum Opinion states:   

“Where expert testimony seeks to comment on the credibility of a witness, such testimony answers “the very question at the heart of the jury’s task.” Nichols v. Am. Nat ‘I Ins. Co., 154 F.3d 875, 883 (8th Cir. 1998). Thus, an expert may not testify as to a witness’s veracity because such testimony “improperly invades the province of the jury to determine the reliability of the witness.” Pritchett v. Commonwealth, 557 S.E.2d 205, 208 (Va. 2002); see Jackson v. Commonwealth, 587 S.E.2d 532, 544 (Va. 2003) (”Expert witnesses may not, however, render an opinion on the defendant’s veracity or reliability ofa confession because whether a confession is reliable is a matter in the jury’s exclusive province.”); see also United States v. Lester, 254 F. Supp. 2d 602, 608 (E.D. Va. 2003) (”[T]rial courts should be extremely reluctant to allow testimony under Rule 702 as to conclusions that are consistent with the common knowledge of juries.”). An expert may, however, “testify to a witness’s or defendant’s mental disorder and the hypothetical effect of that disorder on a person in the witness’s or defendant’s situation, so long as the expert does not opine on the truth of the statement at issue.” Pritchett, 557 S.E.2d at 208.

Copies of the District Court’s Order and Memorandum Opinion are posted here.  Nov 12 2009 Opinion of ED Va Excluding Somatoform Testimony;  Nov 12, 2009 Order of ED Va Excluding Somatoform Testimony.  

The John Crane Decision: What It Means and What It Does Not Mean  

Since the Virginia Supreme Court issued its decision in 2007 in John Crane,  Inc. v. Jones, Virginia attorneys have been evaluating the meaning and impact of the case.  Increasingly, defense attorneys hoping to exclude necessary or important aspects of the testimony of plaintiff’s experts have relied upon the case as the basis for exclusionary motions.  Insuring that the plaintiff’s expert disclosures are sufficient in the first instance, and responding to exclusionary motions, require achieving a thorough understanding of the decision and its implications.  Toward that end, Mr. Creager has written an article entitled, The John Crane Decision: What It Means and What It Does Not Mean (September 2008).

Testimony of Grief Experts Should Be Allowed  

Tragically, Virginia citizens are often killed in motor vehicle collisions caused by the negligence of other drivers.  Under Virginia law, the surviving family members can bring what is known as a ”wrongful death action” against the negligent driver or drivers.  Because people have great difficulty talking about death, the surviving family members often are evaluated by a grief expert who is then called to testify at trial.  In 2006, Roger T. Creager published an article entitled, Grief Expert Testimony Is Admissible When Helpful.  In June 2008, VTLA President-Elect Sandra Rohrstaff won a ruling from Fairfax County Circuit Court Judge L. Terrence Ney denying a defense motion in limine to exclude testimony of grief expert, Mila R. Tecala.  See Fairfax County Circuit Court Order entered June 2, 2008.

Negligent Supervision.

Although numerous trial court judges in Virginia state and federal courts have ruled that there is no claim for negligent supervision under Virginia law, the better arguments are probably that Virginia law will recognize such a claim, according to Mr. Creager’s article entitled, “Is the Tort of Negligent Supervision Alive and Well in Virginia?” Winter 2006.

Appeals and Post-Judgment Motions

Filing appeals and making post-trial motions in Virginia Circuit Courts depends upon a clear understanding of what constitutes a final judgment or final order.  In August of 2008, Roger T. Creager made a presentation on this topic at the Virginia State Bar Appellate Advocacy Summit.  His presentation materials were entitled, Some Principles of Finality.

Discovery of Electronically-Stored Information

For the past two years, Roger T. Creager has served as Chair of the Boyd-Graves Conference Subcommittee Regarding Discovery of Electronically-Stored Information, September 2008. More.

Medical malpractice actions, Spring 2008

In medical malpractice actions, doctors, hospitals, and other healthcare providers frequently argue that even though they were governed by written medical protocols, policies, and procedures when they provided services, the lawyers for persons injured as a result of their medical malpractice should be denied access to those protocols, policies, and procedures.  More.

Evidentiary Principles Governing the Admissibility of “Accident Reconstruction” Testimony In Virginia Courts, June 2008

An issue that arises frequently in personal injury case trials in Virginia courts is whether evidence from experts regarding how a collision occurred is admissible as evidence. More.

Otis Elevator Company, April 2008

In a case involving a woman injured when an elevator stopped abruptly when the elevator emergency-stop “safeties” suddenly applied, Otis Elevator Company contended that they could not possibly be held liable under Virginia law.  More.

Results of Tests and Experiments, November 2007

An issue that frequently arises in personal injury litigation is when and to what extent the results of tests and experiments are admissible. More.

Medical Malpratice Brief on Opposition to Petition for Appeal, August 2006

In this medical malpractice case after a trial in Page County Circuit Court the jury returned a verdict in favor of the Plaintiff in the amount of over $922,000.00.  The defendants appealed to the Supreme Court of Virginia.  More.

Triathalon Case, Brief in Oppostion, March 2003

A young man in a bicycle race was struck by a car and killed while he was participating in the Greater Blacksburg Triathalon.  His parents sued the Town of Blacksburg and the race director claiming they failed to provide sufficient security and safety measures at road intersections during the race.  More.

Inherent Risk Doctrine, July 2002

In a case involving a woman who was injured while snow-tubing at Massanutten ski resort, attorneys defending the resort argued that Virginia courts should adopt the “inherent risk doctrine” used in many other states under which a participant in recreational activity is automatically deemed to have accepted the ”inherent risks” normally associated with the activity. More.

Role of Neuropsychologists, Fall 2002

In cases involving traumatic brain injuries, defense attorneys frequently hire experts known as neurospsychologists to give written tests to the injured person to determine whether the traumatic event has affected their mental functioning.  Roger T. Creager is a leading authority in Virginia regarding excluding this type of testimony from evidence at trial. More.

“Write-offs Argument,” 2000

In the late 1990s, insurance defense attorneys came up with an argument which, if successful, would have reduced injured person’s medical bill recoveries by as much as one-third to one-half of the amount of the medical bills. More.