Medical Malpractice Statute of Limitations Decision

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.

Toyota Problems Continue

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.

Asbestos - Railroad Work and Mesothelioma Cancer

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.

If you hit a deer?

Right now, the roads around Charlottesville, Virginia, are littered with roadkill. Are there just too many deer or are we drivers not paying attention? Keeping a lookout for deer can help avoid such accidents. If you a deer does dart out in front of you, the experts suggest that you not swerve. Rather, you should apply the brakes and try to stop in your lane. If you hit the deer, do not approach it if you are not sure that it is dead. Then, contact your local game official or the VDOT for carcass removal. What if you hit a deer and your car is damaged and you also have a personal injury. Do you have a claim? The deer probably did not have insurance and its estate is likely worthless, just a hide and some bones. So what should you do? The first order of business is to locate your insurance policy? Most likely, your property damage is covered. You may even have applicable medical payments coverage. Unfortunately, insurance coverage often does not cover a personal injury resulting from a collision with a deer. For a policy review, we offer a free consultation. Don't wait until you hit a deer. Check your policy today.

Toyota and Recall Issues in Virginia

Here in Charlottesville, Virginia, the local Toyota dealership is staying open longer and adding staff to handle the recall of many late model Toyota and Lexus brand cars. Mr Toyoda, the grandson of the car company's founder, has appeared before Congress to explain, and apologize for, the unexplained acceleration defects which have caused accidents, injuries, and several deaths. All of this leaves the owners and drivers of Toyotas in a quandry. Should you continue to drive your Toyota? To be on the safe side, you should have your vehicle serviced immediately. But will the recall service solve the problem? Several experts have stated that they do not believe that the proposed fix is the right one. They believe that we still do not know the cause of the problem, only the result. Such uncertainty is maddening and frustrating. But, only time will tell if one side or the other is right. Let us all hope that no one is injured in the future. The only possible benefit for Toyota drivers that I can think of is that if you are stopped for speeding, you might have a good defense.

Class Action News from Charlottesville

The Supreme Court unanimously held that a corporation's principal place of business is where its executives reside, not where it does a significant amount of business. The underlying facts of the case concerned a class action against Hertz by employees asserting an overtime wage claim. The case was filed in state court, but Hertz removed the case to federal court asserting diversity jurisdiction. The Supreme Court agreed with Hertz and sent the case back to federal court. Why does this decision matter? It makes it harder for plaintiffs to choose where their case against a large corporation will be heard. Most plaintiffs prefer state courts and avoid federal courts because of a number of factors. Corporations now have a greater ability to shift the forum to federal court because a corporation usually has its headquarters in a different state, even if it does a lot of business in the state where the plaintiff lives. Interestingly, this decision does not affect claims made by railroad employees who are injured on the job as they enjoy the protection of the Federal Employer's Liability Act. Thew FELA gives a railroad employee plaintiff the ability to choose to proceed in state or federal court and the claim cannot be removed by the employer, even if it is headquartered in a different state. For instance, Norfolk Southern employees who live in West Virginia can file their suit in state court and keep it there, even though Norfolk Southern has its headquarters in Norfolk, Virginia. But for most other plaintiffs, a new set of rules is now in effect.

What Recession?

Virginia newspapers reports this morning reveal that the top 400 tax filings reported average earnings of $345 million each, an increase of nearly one third over the previous year. Amazingly, this same group of high earners only paid taxes at an average rate of 16.6%, the lowest amount since 1992. I don't think the average citizen had wage growth of 33% and taxes of only 16%. I guess it pays to be super rich, even in a recession. On the bright side, if you receive an injury settlement as a result of an accident, the monies you put in your pocket are generally tax free. There are some exceptions to this rule so it is a good idea to have your personal injury lawyer advise you on this issue.