Recent Cases Archive 2009


Verdict Barely Above Medicals in Low Impact Rear-end Collision Case

September 4, 2009
Henry County Circuit Court

Ken Ries represented the defendant in two lawsuits which were consolidated for a bench trial, brought by plaintiffs who were driver and passenger in a vehicle which was rear-ended at a red light by the defendant on a rainy day.  Both plaintiffs incurred, at most, soft tissue injuries; the driver failed to inform her ER physician or her treating chiropractor that she had been involved in a much more serious accident six days earlier.  In fact, the plaintiffs were on their way back from the hospital where the driver had just had an MRI relating to the earlier accident, at the time the accident involving Ken’s client occurred.  The driver waited nearly three weeks to go to a chiropractor; at the driver’s urging, the passenger went to the same chiropractor.

The plaintiffs called the ER doctor and the chiropractor as live witnesses.  The Court heard evidence of the driver incurring $4,547.77 in medical expenses, and awarded judgment in the amount of $5,750.00.  The passenger incurred $2,726.35 in medical expenses, for which she was awarded $4,000.00.

These cases were previously filed, but non-suited within a few days of trial, because the Court granted a defense motion to exclude all of the plaintiffs’ medical experts for their failure to timely designate their experts pursuant to the Pretrial Scheduling Order.

Favorable Verdict for Defense in Soft Tissue Case

July 30, 2009
Pulaski County Circuit Court

This personal injury action arose out of a motor vehicle accident that occurred on July 7, 2002, at the bottom of the on ramp to Route 11 South from Route 100 in Pulaski County, Virginia. The plaintiff was a 37 year old female driving a Ford Escort. She was stopped at the yield sign at the bottom of the ramp waiting for oncoming traffic to clear when she was rear ended by the defendant, who was driving a Toyota Celica. Both vehicles sustained moderate damage in the accident.

The plaintiff claimed that she sustained soft tissue injuries to her neck and middle back, as well as a laceration above her left eye. The laceration left a faint vertical scar approximately 2 inches long.

The plaintiff’s complaint sought $200,000.00 in compensatory damages. The plaintiff claimed medical and chiropractic expenses in the amount of $8,103.48, and past and future lost wages of $31,000.00 from her job as the front end manager of a grocery store. The plaintiff alleged that, although she was able to return to her job after the accident for approximately 2 weeks, ultimately she had no choice but to leave that job because of her neck and back pain.

The case was tried to a jury on July 30, 2009. Prior to the trial, the plaintiff's bottom line settlement demand was $30,000.00, and the defendant's highest offer was $12,500.00. On the morning of trial, the defendant admitted liability for the accident, and the case was tried only on the issue of compensatory damages.

The plaintiff testified regarding the accident and her injuries and medical and chiropractic treatment. On cross-examination, the plaintiff was forced to acknowledge a prior medical history of neck and back complaints, including a cervical fusion in 1998 and three other motor vehicle accidents, as well as a subsequent injury to her spine when she fell ten to twelve feet from the balcony of a friend's home. The plaintiff also was forced to acknowledge that in one of her post-accident psychiatric records, she stated that she left her job at the grocery store because of a personal conflict with her supervisor (as opposed to her neck and back pain).

The plaintiff's only expert witness was her treating chiropractor, with whom she did not begin to treat until December 10, 2002, five months after the accident and four months after her last medical visit for complaints of neck or back pain. On direct, the chiropractor testified that in her opinion, the plaintiff's neck and back complaints for which she treated were caused by the accident. The chiropractor also testified, over the defendant's objections, that the plaintiff had suffered a 5% whole person impairment as a result of her accident-related injuries. On cross-examination, the chiropractor agreed that her opinion as to the cause of the plaintiff's neck and back complaints was based completely upon the history provided by the plaintiff. She acknowledged that the only history provided to her by the plaintiff was that the plaintiff had been in an automobile accident in July. The chiropractor also agreed that it is very important to her causation opinion that the history be accurate and complete, and that she be made aware of any prior motor vehicle accidents or neck and back complaints. The chiropractor testified that the only records she reviewed to prepare for trial were her own and that she had not been provided by the plaintiff or her attorney with any of the plaintiff's pre-accident medical records. After defense counsel disclosed to the chiropractor the plaintiff's prior history of accidents and neck and back complaints, the chiropractor agreed that her causation opinion during direct examination was not based upon a full, accurate, and complete history.

During closing arguments, counsel for the plaintiff asked the jury to return a verdict of $100,000.00. Defense counsel conceded medical expenses totaling $4,300.00, and disputed all of the plaintiff's claim for lost income. The jury deliberated almost two hours before returning a verdict in favor of the plaintiff for $13,500.00.


Verdict for Plaintiff in Boundary Line Dispute

June 29 , 2009
Wythe County Circuit Court

On behalf of the plaintiffs, Lori Bentley filed a trespass action after the plaintiffs’ adjoining neighbor attempted to construct a fence along an old fence line that crossed the plaintiffs’ property.  The corporate defendant defended the action by asserting that it owned the property south of the old fence line by virtue of adverse possession.  The amount of property in question was approximately one acre.  Lori presented evidence that the plaintiffs held record title to the property and that it remained in a state of nature, with no obvious signs of adverse possession on behalf of the defendant or its predecessors in title.  In addition, she was able to present expert testimony from two surveyors who had previously surveyed the property and were of the opinion that the boundary line was located where the plaintiffs claimed.  After a bench trial before Judge Showalter, the Court recently entered a final order in favor of the plaintiffs on all issues.  The defendant has noted an appeal to the Virginia Supreme Court. 


Successful Defense in Personal Injury Action

June 29 , 2009
Patrick County Circuit Court

Lori Bentley successfully represented an elderly defendant whose car, stopped to make a left turn, was rear-ended by the plaintiff’s motorcycle.  The plaintiff alleged that the defendant did not use her turn signal or brake lights.  The plaintiff suffered injuries to her neck, back and knee, as well as a broken tooth.  Due to recent health problems, the defendant was unable to attend the trial, but testified via video deposition.  Testimony of the investigating trooper established that the plaintiff had sight distance of at least a tenth of a mile within which to see the defendant’s vehicle stopped in the roadway.  The defendant testified that she had her turn signal on and her foot on the brake at the time she was struck, but both the plaintiff and an eyewitness testified that they saw no turn signal or brake lights.  The jury deliberated approximately 25 minutes before returning a verdict in favor of the defendant.


Successful Slippery Road Defense

June 18 , 2009
Pulaski County Circuit Court

David Carson defended a Pulaski businessman whose car slid on an icy driveway and struck the plaintiff's stopped vehicle.  Both vehicles were totaled as a result of the accident.  The plaintiff claimed injuries to her neck, shoulder, hands, and knees.  Three treating physicians supported the plaintiff's injury claims, as well as the need for bilateral carpal tunnel surgery.  The plaintiff presented past medical expenses of approximately $14,000 and future surgical expenses of approximately $5,000. 

Notwithstanding damaging testimony from the investigating state trooper regarding the "obvious" icy condition of the roads, the jury took 42 minutes to return a defendant's verdict.

Defendant's Verdict in Rear-End Accident

May 21, 2009
Roanoke County Circuit Court

The defendant was a high-school student who rear-ended the plaintiff while in a McDonald’s drive-thru.  The plaintiff claimed substantial injury to her left shoulder with substantial medical bills and two months of lost wages as a result of the accident.  On behalf of the defendant, who was not present at the trial, Lori Bentley admitted liability.  After deliberating for approximately 20 minutes, the jury returned a verdict in favor of the defendant. 


Successful Verdict in Parking Lot Accident

May 5, 2009
Roanoke City Circuit Court

The individual defendant, driving an SUV owned by his employer, the corporate defendant, backed out of a parking space and struck the passenger side of the car in which the plaintiff was a front seat passenger. The plaintiff, in her seventies, had a lengthy pre-accident history, including symptoms in her left shoulder. Allegedly because of the accident, the plaintiff required three surgeries on her shoulder, the last being a complete shoulder replacement. The plaintiff's treating orthopedic surgeon supported the plaintiff's claim. Lindsay Grindo called as the defendants' expert witness, Dr. Robert Widmeyer, who stated his opinion that none of the plaintiff's post-accident treatment was attributable to the accident.

After deliberating just 35 minutes, the jury returned a verdict for the defendants.


Successful Defense 0f Claimed Cervical Neck Injury and Surgery in Workers' Compensation Case

March 27, 2009
Virginia Workers' Compensation Commission

The claimant, in his 60’s, suffered injuries in a compensable accident, but claimed that he also injured his neck in the accident and required expensive cervical neck surgery. The claimant’s treating orthopedic surgeon supported the claimant’s allegations that he injured his neck in the compensable accident, precipitating the need for the surgery. The claimant had a lengthy and complicated pre-accident history. Jonnie Speight retained Dr. James Leipzig, orthopedic spine specialist, to perform a records review and independent medical examination. Dr. Leipzig opined that there was no indication of a cervical injury resulting from the compensable accident and no need for any cervical neck surgery. The Commission agreed with Dr. Leipzig and ruled in favor of the employer and its carrier on the claim relating to the cervical surgery.

(Another significant aspect of the case was the Commission’s acceptance of the defense that K-1 earnings were not properly includible in the calculation of the preinjury average weekly wage of the claimant, who was the sole owner of his S-Corporation’s stock.)


Successful Defense in Rear-End Accident

March 12, 2009
Page County Circuit Court

Our client was a college student charged and convicted in juvenile court of reckless driving when involved in an accident in which the vehicle he was driving hit another vehicle from behind. 

The plaintiff filed suit in Circuit Court, presenting over $100,000 in accident-related medical bills.  At trial, the jury returned a defense verdict despite the adverse liability facts.  Ken Ries focused on not only the plaintiff’s medical history, but also on the fact that her sworn deposition testimony revealed that she had turned on her left turn signal only two car lengths from the intersection, in violation of the statutory 50-foot requirement, thus making her guilty of contributory negligence.


Defendant’s Verdict in Personal Injury Case

March 9, 2009
Alleghany County Circuit Court

The plaintiff was a passenger in the defendant’s truck.  They had stopped the vehicle during a disagreement, and when they started again, the door opened and the plaintiff fell out onto the pavement, tearing her ear off.  The plaintiff incurred substantial medical expenses for the plastic surgery necessary to repair her ear.  The plaintiff alleged that the dome light was cut off without her knowledge and that the defendant began moving the vehicle without determining that the door was securely shut.  After short deliberation, the jury returned a defendant’s verdict. 

One interesting aspect of this case was that the plaintiff was not wearing a seat belt at the time of the accident, but the judge did not allow this fact into evidence at the trial, based on a Virginia statute.  This precluded Joe Matthews from arguing that the plaintiff was contributorily negligent because she was not using the seat belt.


Virginia Supreme Court Decision Aids Verdict for Defendant

March 3, 2009
Franklin County Circuit Court

Robert Ballou represented a local farmer who was accused of allowing a bull to run free on Route 220.  The vehicle driven by the plaintiff’s decedent struck the bull, and she suffered severe injuries.  The decedent died eight (8) days later.  The personal representative of her estate brought an action seeking damages in excess of $1,350,000.  A recent Virginia Supreme Court decision enabled Robert to persuade the trial court to bifurcate the trial.  The first phase was to determine liability only.  The jury heard all of the evidence relating to liability and returned a verdict for the defendant.


Successful Defense in Slip and Fall Case

March 2, 2009
Campbell County Circuit Court

The plaintiff filed suit against two adolescents and their mothers, alleging that the boys had taken products off the shelf at a Food Lion store and, through horseplay, had spread slippery substances on the floor.  The plaintiff, who had a prior knee replacement, fell when she stepped in the substances.  Her treating physician determined that the injury required a second knee replacement. 

The case went to trial on the liability of the adolescents, and Bill Wallace represented one of the boys who had admittedly been engaged in horseplay.  The jury found in favor of the defendants.


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