Insurance Defense Blog

Failure to order complete trial transcript results in dismissal of Virginia appeal of $8.3 million verdict

A simple clerical error -- failing to order the complete trial transcript -- resulted in the dismissal of the Virginia appeal of a $8.3 million verdict and also spawned two other lawsuits.  These events and their consequences are worth reviewing, as many lawyers will have to admit "there but for the grace of God . . . ."

A 17 year old girl sustained severe injuries, including brain injuries, when skiing in Virginia.  Essentially she collided with a snow grading machine that was being driven up the intermediate slope to reach a snow tubing run.  On July 16, 2004, after a week long trial, a jury returned a verdict in the amount of $8.3 million against the resort.  Read the plaintiff's counsel's closing argument: Download Grigg closing argument 

The defendant and its insurer certainly anticipated a possible bad result, as they retained  prominent appellate counsel shortly before the trial had even begun.

An appeal was noted to the Virginia Supreme Court.  Somehow, someway, at least one trial transcript was apparently not timely filed on the appellant's behalf.  For that reason, the Virginia Supreme Court ultimately dismissed the appeal in July 2005.

Subsequently, the insurer of the ski resort filed a legal malpractice suit against the trial defense counsel in the Circuit Court for the City of Richmond in July, 2007.  Shortly thereafter, the case took on political overtones, as it was revealed in a newspaper story that one of the attorneys involved in the failed appeal was under nomination to the U.S. Court of Appeals for the Fourth Circuit.

On September 10, 2008, one of the defendants in the legal malpractice case filed his own suit against the involved insurers and their counsel, for defamation, abuse of process, and conspiracy to injure the plaintiff in his business.  Essentially, he claimed that he had no involvement in the post-trial matters in the skiing accident case, since it was all turned over to appellate counsel.

The latter suit was recently dismissed on Jan. 6, 2009 by U.S. District Court Judge Norman K. Moon, in part due to the absolute litigation privilege and the statute of limitations.

An appeal was taken to the Fourth Circuit concerning the latter ruling.  Apparently while on appeal, a settlement was worked out, and as part of the settlement it was agreed that there would be a vacatur of Judge Moon's opinion.  Judge Moon, however, denied the request for vacatur.Download Spencer-denial of vacatur

Meanwhile, the legal malpractice suit arising from the failed appeal was non-suited on March 30, 2009.

 

 

Defamation per se in Virginia arising from summary of a judicial opinion

In Vaile v. Willick, 2008 U.S. Dist. LEXIS 53619 (W.D. Va. July 14, 2008), a law student's defamation action against two lawyers survived the defendants' motion for summary judgment.

The defendants practiced family law in Nevada, and represented the plaintiff law student's ex-wife.  The defendants represented the ex-wife and their children in a series of lawsuits in state and federal courts in Nevada to recover damages from Vaile's removal of the children from their mother's custody without her consent.

The plaintiff, who was in law school, decided to cease his defense to one of the civil actions in Nevada federal court, and as a result, the federal judge found against him and awarded compensatory damages of $688,500 and attorneys' fees and costs of $272, 255.

One of the defendants subsequently wrote to the plaintiff's law school to advise that had been found guilty of multiple violations of State and Federal law, including kidnapping, passport fraud, felony non-support of children and violation of RICO.  The letter requested the law school to reconsider the plaintiff's fitness for continued enrollment, and attached a copy of the federal court's decision.

When the law school seemingly took no action, the co-defendant, who was an attorney with the same firm, sent a letter to the ABA to inform it of the law school's recalcitrance, repeated the summary of the Nevada decision, and attached a copy of the Nevada opinion.  The letter called for the ABA to rescind the law school's accreditation as a result of the law school's failure to act.

The plaintiff filed an action for defamation, on the grounds that the letters were false and defamatory.

On cross-motions for summary judgment, the plaintiff argued that the letters were sent with malice and an intent to defame.  Plaintiff argued that he has never been convicted of criminal offenses under state or federal law, and the letters were false and defamatory because they suggested that he was.

Defendants argued that the letters were true or at worst, substantially true, do not necessarily suggest a criminal conviction, and that when read as a whole with the attached judicial opinion, cannot be construed as defamatory per se.

The Court found that the letters were defamatory per se, because they impute the commission of a crime upon the plaintiff that he did not commit.  Further, the letters were defamatory per se as a whole because they suggested that the plaintiff is unfit to continue at law school or lacks the integrity to continue in the study of the law or to perform the duties of a lawyer.

The Court found that the absolute privilege to publish matters of public record applied to the letters.  The publication of public records to which everyone has a right of access is absolutely privileged in Virginia.  The privilege is not lost if the record is incorrect or if it contains falsehoods.  The privilege exists so long as the published account of the public record is a fair and substantially accurate account of the public record or proceeding.  If the publication substantially departs from the proceeding or record, then the privilege is lost.

The Court found that the issue whether the letters substantially departed from the Nevada opinion, such that the privilege was lost, is a question left for the jury, because reasonable people could disagree whether the letters are an impartial and accurate account of the opinion.

Recent legal malpractice cases

I have blogged about a bunch of recent legal malpractice cases here. 

Protective Order to allow ex parte communications by defense counsel with treating physicians

As the attached order shows, in the Superior Court for the District of Columbia, it is possible to obtain such an order.  This one was obtained by Farrell & Gunderson.

.Download Retchin - Order Permitting Ex Parte Communications

Medical research on the internet

Thanks to Bespacific.com for the link to a fine up-to-date article about medical research on the internet.

The article itself is here.  My only criticism of it is that I don't think it covers the British medical sites.

However, in my opinion, if you consider the value of your time, your best bet is to sign up for MDConsult.com, which is not free, but is reasonably priced.

I've recently posted some other Research Links on this blog, some medical, which I rescued from my firm's website when it was redesigned.  Law firms don't offer pages and pages of research links on their websites anymore, it seems.  It's a pain in the neck to maintain them, as a certain number of the links "go dead" every year.  It takes a lot of work to put them together and maintain them, and it is pretty much a thankless task.  Also, the reasoning goes, why offer the reader a multitude of paths leading away from your site?   With Google and other powerful search engines, directories of research links are arguably obsolete anyway.  On the other hand, there are so many websites now that the researcher's problem is more likely to be sorting out the valuable websites from the chaff.  So there's value to a guide to doing medical research on the internet.  In the end I couldn't bear to just delete all of mine with the old website, so I copied them here, where they will be of continued use to me at least.   

Selected law school websites

Regional Law School Sites	Description
Georgetown University Law Center	Wide array of internet links, attractively organized, but takes some time to drill down.
American University
Catholic University	Useful links for internet research.
George Washington University	Most notably, at this site you can find U.S. Court of Federal Claims On Line (formerly Court of Claims), plus Armed Services Board of Contract Appeals info.
University of Virginia	UVA internet services include links to scores of online databases, covering science, psychology, and much more.
George Mason School of Law
Howard University Law School	Library site
University of Maryland
University of Baltimore
John Marshall School of Law	Extensive internet links put together by this Chicago law school
Washburn University (Kansas)	A leader in online legal research.

Employment Law

Resource	Description
EEOC site	New regulations, etc.
U.S. Merit Systems Protection Board	Recent decisions and searchable database of decisions
Findlaw
Law Journal Extra	See the employment page
National Employment Lawyers Association
ABA Law and Employment Law Section
Disability and the Workplace: An Internet Primer	Index of Internet resources dealing with law of disabilities in the workplace
Cornell's Legal Information Institute's collection on employment law
Employment Law Information Network

Insurance websites

The following are insurance-related links of interest to us.

Site	What's There
Reinsurance Association of America	You can order their directory of arbitrators
National Association of Insurance Commissioners	Keep abreast of regulatory developments.
Captive Insurers	Organization for captive insurers and self-insurers
Property and Casualty	A site geared towards those in the property and casualty insurance fields
Claims Magazine	Articles for claims professionals
Insurance Fraud	National Insurance Crime Bureau site -- education about detection of insurance fraud
Insurance Services Office	Supplier of standard policy language throughout the industry
International Risk Management Institute (IRMI)
Business Insurance Magazine
TitleWeb.com	Portal for the title insurance industry and title companies
Reinsurance News
National Underwriter Company portal	The National Underwriter Company publishes a broad array of print, e-media and software products for the insurance and financial services industries. Its key publications include the two weekly magazines, National Underwriter, Property & Casualty/Risk & Benefits Management and National Underwriter, Life & Health/Financial Services, as well as the multi-volume loose-leaf FC&S Bulletins service and the very popular Tax Facts desk references

Regional government websites

District of Columbia Sites	What's There
D.C. Government's Home Page	Links to online agencies; contact information for all government agencies
Department of Consumer and Regulatory Affairs	Where one can apply and pay for, and receive, 18 different business licenses, and download business forms, such as limited liability partnership registration forms.
Department of Human Services
Department of Employment Services	DOES handles unemployment and workers compensation, among other things.   Some worker's compensation forms available.
Department of Health
Department of Motor Vehicles	Summaries of registration requirements
Metropolitan Police Department
Office of the Chief of Police	Graphics load slow and are not worth the wait.  Map of police districts, and crime statistics available.
Office of Tax and Revenue
D.C. Code	Free--Courtesy of Lexis.  In HTML format, and Java format
Maryland Sites	What's There
Maryland State Department of Assessment and Taxation	A wonderful site.  Online access to information about Maryland corporations and businesses. A welcome improvement over trying to do it by telephone.
Maryland Rules (including Maryland Rules of Evidence), other court rules	Free -- Courtesy of Lexis.  Includes also local rules of District of Maryland, Bankruptcy Court, 4th Circuit
Maryland Electronic Capital	Links to state, county, and city websites
Maryland Insurance Commissioner
Montgomery County, Md.
Prince George's County, Md.	Circuit Court Judges' bios on Prince George's Judiciary page
Howard County
Frederick County
Baltimore County
Baltimore City
Virginia Sites	What's There
Virginia Legislative Service's Links to Local Governments	Organizes the links by regions of the State, e.g., Northern Virginia
City of Alexandria
Virginia Workers' Compensation Commission	Includes searchable database of opinions since 1995; an overview of the Act and the text of the Act; forms
Arlington, Va.
City of Fairfax
Fairfax County
Loudoun County
Prince William County

Fairfax County, Va.'s Online Real Estate Assessment Database	Allows access to assessed values of a property and other properties in the neighborhood
Maryland Real Estate Assessment Records	This site allows access to assessments for entire State of Maryland

Weather

Resource	Description
Weather.com	Weather forecasts
NOAA Historical Weather Data	Find out if it was snowing the day the plaintiff said it was
Accuweather.com	another weather site