Monday, March 22, 2010
The U.S. Chamber of Commerce ranks Virginia as one of the friendliest places for businesses because it is perceived to have a tort liability system that is not favorable for plaintiffs. Coming in at number 6, Virginia is in stark contrast to its neighbor. West Virginia is at the bottom of the list, just below Louisiana, as the state with the least friendly laws and courts for business. Are these perceptions and rankings based in reality? Having tried many cases in both states and being a licensed lawyer in both states, I think the answer is a qualified yes. I qualify my answer because there are a few cities in Virginia where the juries are not going to side automatically with business. But, Virginia's laws favor business and are very tough on individuals. The shining example of the bias against the individual is Virginia's adherence to the bar of contributory negligence. A Virginia plaintiff who is one percent contributorily negligent as a matter of law, is barred from a recovery. Most people who learn of this have trouble believing that this is the law in Virginia. Only two other states have not adopted the principles of comparative negligence. So while Virginia might rank more highly, it may not be the more admirable state.
Tuesday, March 16, 2010
In a well reasoned but fairly complicated decision, Judge Ellis, from the Eastern District of Virginia federal court, has held that after a plaintiff takes a non-suit and then refiles her medical malpractice claim, the assertion of new theories of recovery in the refiled medical malpractice action are not barred by the statute of limitations as long as they arise from the same occurrence as the original claim. Have I lost you yet? Well, let's start with the concept of the non-suit. Virginia law permits a plaintiff to dismiss his or her case at any time before a final decision in the case and then refile the case within six months. And, here is the cool part, even if the statute of limitations has expired or will expire in the time before the case is refiled, it does not apply to the refiled action. There is a major exception to this rule, cases under the Federal Employer's Liability Act or FELA do not get the benefit of this statute. So if you are an injured railroad worker, your case must be filed within the appropriate statute of limitations period and you can not dismiss it if the period has expired without giving up your claim forever. Now let's go back to the medical malpractice case. In that case, the plaintiff dismissed her case and then refiled several months later. When the case was refiled, the statute of limitations period had expired, but the non-suit statute preserved her claim. In the refiled action, the plaintiff asserted two new theories of recovery that had not been raised in the earlier filing. The defendant asked the court to dismiss the new theories of recovery claiming that they were barred by the statute of limitations. The court disagreed and held that since the theories of recovery all arose out of the same operative body of facts, in other words, the same transaction or occurrence, the claims could be asserted. The underlying reasoning is that the cause of action, which was dismissed using the non-suit statute, includes all theories of recovery that could be asserted based on the facts. The decision seems to be a fair limitation on the use of the non-suit statute and it establishes the transaction or occurrence test as the standard for judging refiled actions. But, at a length of twelve pages, it is not the type of light reading that you want to take to the beach. Instead, you will have to put on your thinking cap and use your brain.
Wednesday, March 10, 2010
Although there have been no reports of Toyota car accidents caused by accelerator problems in Charlottesville, Virginia or in Virginia Beach, Virginia, it appears that the biggest problem for Toyota is going to be all the class actions which have been filed claiming a loss in the value of all the Toyota automobiles in the country. The number of class actions filed is reported to be approaching one hundred. Yes, you read that correctly, close to one hundred class actions hoping to hold Toyota accountable for a perceived loss in the value of all those Toyota cars on the road. The stakes are huge. Estimates of the potential cost to Toyota are in the billions of dollars. As a lawyer, I find the situation fascinating. The courts are going to have to decide which actions go forward and which will be consolidated. Most significantly, a decision will be made as to which law firms are going to control the cases and reap the potential rewards of representing American Toyota owners. Are we going to have a shootout at the OK corral? I am certain that the contest will be hard fought since there can only be a few winners. As for me, I am content to watch the show because I enjoy representing my clients one at a time. I actually know all of their names and the details of their cases. I am happy to let others represent millions of people at a time.
Monday, March 1, 2010
Asbestos is still causing problems for people who were exposed to it in their workplace, even if the exposure was decades ago. This problem is particularly pronounced for railroad workers, whether the work was for CSX, or Norfolk Southern, or any railroad. The problem is also nationwide. The reason that asbestos disease, including mesothelioma, a cancer, is still showing up is that once you are exposed to asbestos, the problems can take decades to show up. in fact, studies have shown that the majority of asbestos disease problems do not show up for over 20 years. So even if you haven't been around asbestos in 30 years, your exposure way back then could cause cancer today. If you were exposed to asbestos in the course of working for the railroad, it is wise to be screened for asbestos disease. All it takes is an x-ray and a competent doctor who is qualified to make a B-reading of that x-ray. If you have a problem, please contact us at our Charlottesville, Virginia or our Virginia Beach, Virginia office for a free consultation.