Results

Since 1970 we’ve been helping victims of personal injury throughout Virginia get the compensation they need. In this section we highlight just a few of the thousands of examples of our success.

Note: The recoveries in these cases are not necessarily indicative of recoveries in similar cases in the future, since each case must be decided on its own facts and circumstances.

Since 1970 we’ve been helping victims of personal injury throughout Virginia get the compensation they need. In this section we highlight just a few of the thousands of examples of our success.

Note: The recoveries in these cases are not necessarily indicative of recoveries in similar cases in the future, since each case must be decided on its own facts and circumstances.

Settlements of Note

Confidential Settlement

Description of case: The plaintiff, an avid cyclist, was riding his bicycle to visit a friend. It was a summer afternoon, and the sun was brightly shining. As the plaintiff approached the intersection of the street on which his friend lived, he moved his bicycle onto the adjacent sidewalk and immediately sustained a significant and unexpected impact to the right side of his face due to elongated construction materials, which had been left hanging over a four-foot chain link fence and fully protruding into the sidewalk, at a house that was owned, and being renovated, by the defendant; however, the plaintiff never saw them prior to the impact, as the sun’s brightness obscured the materials visibility.

As a result, plaintiff sustained significant injuries, including a facial laceration, an inferior orbital wall blowout fracture with involvement of the infraorbital canal, comminuted fractures of the maxillary sinus, and post traumatic trigeminal neuropathy. Despite trying several different treatment modalities, the plaintiff continues to suffer from trigeminal neuropathy, and his treating providers were prepared to testify in support.

The Defense vigorously contested the permanency of the trigeminal neuropathy, arguing that the injuries were subjective. Ultimately, the parties were able to mediate the case to resolution just one week before the scheduled trial.

$1,075,000 Settlement

TBI Settlement

Type of case: Car Accident

Summary: In September of 2024 we settled achieved a settlement of 1,075,000 for a client who suffered a mild traumatic brain injury following a concussion he suffered as a passenger in a car accident involving multiple negligent defendants.

$1,200,000 Settlement

Type of case: Medical Malpractice

Injuries alleged: Perforation of the rear wall of the bladder, fistula, recurrent UTI’s, and permanent increased bladder urgency and frequency as a result of injured bladder.

Special Damages: $146,182.14- Past Damages

Settlement: $ 1,200,000

Attorney(s):

Howard Bullock, Richmond
William Kilduff, Richmond

Description of case:

Plaintiff, age 36, went to see the defendant gynecologist with complaints chronic female pelvic pain and complex ovarian cyst..

Thereafter, a abdominal hysterectomy with left salpingo-oopherectomy was planned. During the procedure, the defendant gynecologist sutured the entire posterior wall of the bladder to the vaginal cuff. The Defendant gynecologist failed to realize that the bladder had been sutured to the vaginal cuff and continued with closing the operation.

After the surgery, there was continued presence of frank blood in the plaintiff’s urine postoperatively and marked decline in urine output. Plaintiff was taken emergently for a cystogram which revealed a tear in the bladder. That same day the plaintiff had emergency surgery where it was discovered that the Plaintiff’s entire posterior wall of the bladder had been obliterated and
ruptured from being incorporated into the closure of the vaginal cuff. Plaintiff’s bladder was surgically repaired with a reduced bladder capacity.

The plaintiff has suffered multiple complications since the bladder repair surgery, including surgical repair of a fistula, loss of bladder sensation, multiple botox injections into the bladder, as well as permanent increased bladder urgency and frequency as a result of injured bladder.

$440,000 Settlement

Type of case: Car Accident
Injuries alleged: Lumbar Disc Bulge, Low back injuries, soft-tissue strain/sprain

Special Damages: $120,000.00 (past)

Settlement: $440,000.00
Attorney: Christopher L. Spinelli, Howard Bullock

Description of case:
The plaintiff, 55, a nurse, was injured when the defendant failed to stop at a red light and struck his car.  As a result of the impact, plaintiff suffered traumatic injuries, sprain, and strain to his lower back, including disc bulges.  He also suffered from depression and anxiety as a result of the crash.   Over the course of several years, the Plaintiff had over 20 lumbar steroid injections for pain relief.  Surgery at some future point is probable.

The defendant claimed that she tried to stop but that her brakes failed prior to the impact.  The defendant also contested the plaintiff’s injuries and the necessity and medical reasonableness of the injections.  The defendant also claimed that the need for the future surgery was not related to the crash.

$1,000,000 Confidential Settlement

Type of Case: Medical Malpractice

Injuries alleged: Transection of right ureter and bladder perforation with resulting kidney damage, including loss of kidney function and possible kidney transplant as well as urinary incontinence. These injuries occurred during an open hysterectomy. The injuries were not appreciated by the defendant surgeon intraoperatively.

Special Damages: $237,395.73

Verdict: Case settled confidentially for $1 million

Attorney(s): Philip S. Marstiller, Jr, Esq. & Edward J. McNelis, III, Esq.

Description of case:

Plaintiff was a 46-year-old woman who was experiencing menorrhagia and was diagnosed with uterine fibroids.  The defendant, a gynecological surgeon, recommended plaintiff undergo a total abdominal hysterectomy with bilateral salpingectomy.  During the procedure, the defendant transected plaintiff’s right ureter and also mistakenly sutured her bladder wall to the vaginal cuff, causing a complete perforation of plaintiff’s bladder.  Importantly, the defendant failed to recognize the transected ureter or bladder perforation intra-operatively.  Several days after the surgery, the plaintiff went to the emergency room where she reported leaking from her surgical incision.  On exam the plaintiff was noted to have a distended abdomen and hypoactive bowel sounds.   A CT found showed 4 cm of fluid collected in her right posterior pelvis and air in the bladder.  Upon being advised of these findings by the ED physician, the defendant ordered plaintiff to be admitted for an exploratory procedure to be performed the following morning with a urologist.  The following morning the defendant was advised that there was no on-call urologist available at that hospital.  The defendant ordered a transfer to another hospital for a urologic repair of the damage.   At the receiving facility diagnostic testing revealed perforation of the right posterior bladder wall.  Plaintiff underwent repair surgery with a urologist and a urological oncologist.  The surgeons confirmed that the defendant had sutured the bladder wall to the vaginal cuff, that the defendant had transected the right ureter and had further created multiple perforations in the bladder during the total hysterectomy.  Although these injuries were repaired, the plaintiff had a long and protracted recovery with multiple episodes of ureteral obstruction and kidney infections.  She still suffers with urinary frequency, urgency and leakage, and may have to undergo a nephrectomy in the future.  Plaintiff’s designated experts opined that the defendant breached the standard of care by causing such extensive damage to plaintiff’s bladder and ureters and from failing to recognize the bladder injuries intraoperatively.   They further opined that intraoperative repair of the injuries by a urologist would have avoided the short and long-term morbidity the plaintiff experienced.   The case was resolved before experts were designated.

$1,025,000 Confidential Settlement

Type of case: Car Accident
Injuries alleged: Traumatic brain injury, neck & back injuries

Settlement: $1,025,000.00
Attorney: Ward Marstiller

Description of case:

Ward Marstiller settled a case involving a car collision in
Chesterfield County in which the Plaintiff was sideswiped while sitting at a
stoplight on the way to work. Plaintiff claimed a mild traumatic brain injury
as well as neck and low back injuries resulting in chronic pain and
permanent impairments. All aspects of plaintiff’s damages evidence were
vigorously contested by the defense. After extensive discovery and
designation of experts, the case settled for $1,025,000.00 less than a month
before trial.

$1,500,000 Verdict

Type of case: Medical Malpractice
Injuries alleged: Bilateral ureter injury, perforation of the bladder, fistula, nerve damage to bladder, recurrent UTI’s, recurrent kidney infections, and post-operative ileus

Special Damages: $528,423

Verdict: $1,500,000.00
Attorney: William Kilduff, Howard Bullock

Description of case:
Plaintiff, age 36, went to see the defendant gynecologist with complaints of chronic pelvic pain, and was diagnosed with chronic pelvic pain and stage II endometriosis.

Thereafter, a Laparoscopic hysterectomy and bilateral salpingo-oophorectomy was planned. During the procedure, the defendant gynecologist entered the bladder, failed to realize that they had entered the bladder, and continued with the procedure, causing injury to the trigone area of the bladder. The Defendant gynecologist then clamped, transected, and suture ligated one of the ureters; and obstructed the other. The Defendant failed to realize any of these complications, despite the continued presence of frank blood in the plaintiff’s urine postoperatively. The plaintiff was discharged on the day following the procedure.

Plaintiff returned to the defendant’s office approximately five days post-operatively complaining of nausea, vomiting, high temperature and decreased voiding. The Defendant gynecologist did not order the Plaintiff to receive any follow up imaging or go to the hospital. Later that evening the Plaintiff drove herself to the emergency room where a CT scan confirmed the presence of fluid in the plaintiff’s abdomen and hydronephrosis. It was ultimately determined that both of the ureters and the entire trigone area of the plaintiff’s bladder had been injured during the hysterectomy causing urine to leak into her abdomen and acute renal failure.

That same day the plaintiff had surgery to reimplant both ureters and repair her bladder.

The plaintiff has suffered multiple complications since the re-implantation surgery, including surgical repair of a fistula, loss of bladder sensation, recurrent UTI’s and kidney infections.

$300,000 Verdict

Type of case: Motorcycle Accident
Injuries alleged: Abrasions/Avulsion to left kneecap and arm, injury to left toe,
and left maxillary sinus fracture, soft-tissue strain/sprain

Special Damages: $65,000.00

Defense Pre-Trial Settlement Offer: $85,000.00
Verdict: $300,000.00
Attorney: Christopher L. Spinelli

Description of case:
On Dec. 30, 2019, the plaintiff was operating his motorcycle on Staples Mill Road when a John Doe defendant abruptly changed lanes in front of the plaintiff, who attempted to avoid contact between the vehicles. The front wheel of the plaintiff’s motorcycle grazed the rear end of the defendant’s vehicle, causing the plaintiff to crash. The plaintiff was immediately treated at Henrico Doctor’s Hospital and received multiple imaging and wound abatement and was discharged later that evening. He followed up with his primary care physician and a specialist.

The defense contested liability and also the reasonableness of the ER bill, which alone was over $60,000.00. The defense identified a “billing expert” who would testify that the ER bill should have been about $25,000.00. After two hearings on motions filed by the plaintiff seeking to exclude her testimony, on the morning of trial the billing expert was ultimately excluded from testifying. The jury deliberated for less than an hour.

$925,000 Confidential Settlement

Type of Case: Motor vehicle collision
Attorneys: William B. Kilduff

The plaintiff, 46, a teacher, was injured while driving when the defendant made a left turn immediately in front of her vehicle, causing a crash at approximately 55 miles per hour.

The plaintiff’s head struck her steering wheel during impact. Consequently, she suffered a concussion, significant dental injuries to her front teeth, and fractures on both maxilla and mandible.

As a result of the injuries, the plaintiff subsequently had five dental surgeries over the course of two years, including the removal of all of her upper teeth. She was left with a permanent prosthesis. Additionally, she suffers TMJ dysfunction, and she will have to be seen regularly by a prosthodontist to attempt to preserve the implants.

The defendant argued that the plaintiff’s alleged lack of dental care and need for extensive dental work prior to the accident was what drove the need for several of the surgeries post-accident.

$850,000 Confidential Settlement

Type of Case: Medical Malpractice

Attorneys: William B. Kilduff, Christopher L. Spinelli

The plaintiff, 60, was treated by the defendant surgeon for long-standing right knee pain. She had a complex medical history that included a left knee arthroplasty two years prior. Her height was 4’9”. The defendant determined that she was a candidate for a right knee arthroplasty and she was cleared for surgery.

At the time of the arthroplasty, the defendant surgeon selected the knee replacement device. The device’s tibial portion comes in multiple sizes, divided into a macrotray, a standard tray with multiple sizes, and a microtray, depending on the size of the tibia at issue. It was alleged that the defendant did not ensure he had the appropriate trays readily available, and only had the standard tray in the OR. The defendant proceeded with the surgery anyway, in the process fracturing the posteromedial tibial condyle. At that point, the defendant needed both a smaller tray and a long-stemmed cemented tibial component to accommodate the fracture, neither of which he had on hand.

The defendant surgeon then had the patient extubated pending the arrival of the necessary component parts. Upon their arrival, he then re-intubated her to complete the right total knee replacement.

Over the course of the next year, the patient suffered severe pain in her right knee and shin, caused by the long-stemmed component which was made necessary by the fracture. Accordingly, she underwent a revision surgery at that time, and her recovery thereafter was favorable.

The plaintiff alleged a failure to template her knee prior to surgery and a failure to adequately plan prior to surgery. The defendants argued that the first tibial implant was appropriately sized for the patient and that intraoperative fractures are known risks of the procedure.

$775,000.00 Settlement

Type of Case: Medical Malpractice – Negligent Foot Surgery
Attorneys: William B. Kilduff, Christopher L. Spinelli

The plaintiff, 55, sought medical care from the defendant podiatrist in late 2018, who relayed that he could fix her bunion with surgical intervention.

The defendant negligently elected to perform an unnecessarily complex double fusion on the plaintiff’s right foot on January 30, 2018, fusing the first TMT tarsometatarsal in a lapidus procedure as well as an MTP first metatarsal phalangeal joint fusion. The defendant placed screws and a plate on the gap between the metatarsal and the medial cuneiform, but the bone staples only penetrated the metatarsal. Consequently, there was inadequate fusion of the metatarsal back to the medial cuneiform.

As a result of the lack of fusion, the plaintiff’s right big toe and the metatarsal remained slightly elevated.

On August 17, 2018, the defendant performed revision surgery on the first metarsal-phalangeal osteotomy and an osteotomy of the second metatarsal. But in performing the revision, his screw missed the bone, which passed through the soft tissues plantar to the proximal and distal phalanges of the right first toe. He also failed to provide any hardware to fixate a midpoint lateral incision of the second metatarsal, leaving half of the metatarsal essentially “floating.”

Now the plaintiff’s first metatarsal and second metatarsal both elevated upon application of pressure on the foot. Consequently, additional pressure now shifted to the third metatarsal.

Accordingly, on April 11, 2019, the plaintiff underwent a third surgery, this time consisting of osteotomies of the right third and fourth metatarsals. She subsequently had two additional surgeries in an attempt to rectify the problem caused by the first two procedures.

The defense argued that the outcome was a risk of the procedure. The defense focused on damages, contending that the plaintiff’s continuing pain derived from other health conditions, including a disabling full-body injury from years before, for which she was already under pain management.

$725,000.00 Settlement

$700,000 Settlement

Settled Through Mediation: The Honorable Diane M. Strickland (Ret.).

Type of Case: Medical Malpractice – Robotically-Assisted Laparoscopic Cholecystectomy (Gallbladder Removal Surgery)
Plaintiff’s Attorneys: William B. Kilduff and Thomas J. McNally, Richmond

Summary of the Case:

Plaintiff, a 56-year-old male, began experiencing abdominal pain and nausea in the spring of 2019.  An ultrasound showed a constricted gallbladder and a HIDA scan showed a lack of filling of the gallbladder consistent with an obstructed cystic duct.

Plaintiff subsequently consulted with the defendant, a general surgeon, for evaluation of his gallbladder.  The general surgeon diagnosed the plaintiff to have chronic cholecystitis and recommended surgical removal of the gallbladder.  Based on preoperative radiographic studies, the surgeon expected to find significant inflammation intraoperatively and that it would be a difficult surgical procedure.  The surgeon recommended that the surgery be performed with the assistance of a DaVinci robot.

Once the surgery was underway, the surgeon encountered dense adhesions and was not able to visualize the “critical view of safety”, which is a benchmark used to identify the critical structures surrounding the gallbladder.  Not being able to obtain the critical view of safety, the surgeon then attempted to perform a dome-down dissection hoping to identify the appropriate relevant anatomical structures, including the cystic artery and cystic duct.  Unfortunately for the plaintiff, the surgeon transected the common hepatic duct during the dissection.  The surgeon became aware of the error when she noticed a trickle of bile from the liver.  The surgeon confirmed the bile leak through use of the “Firefly technology” used in robotic surgeries.

Upon suspecting the ductal injury, the surgeon performed a cholangiogram, which confirmed the bile duct injury during the surgery.

The surgeon immediately contacted another surgeon who specialized in repairing bile duct injuries.  That surgeon performed repair surgery the following day that involved repair of the biliary injury by way of a Roux-en-Y hepaticojejunostomy.  During that surgery the surgeon confirmed that the general surgeon had completely lacerated the common hepatic duct during the initial robotic surgery.

Plaintiff was hospitalized for approximately 20 additional days rather than being discharged on the date of the original surgery as was planned.  Subsequently, the plaintiff also developed a wound abscess and was hospitalized for approximately four days seven months following the surgery.

The plaintiff’s two experts opined that the general surgeon violated the standard of care in performing the gallbladder removal surgery by the surgeon’s failure to properly appreciate the anatomy of the plaintiff’s gallbladder and related structures; failure to obtain a proper view of the structures before dissecting or cutting around the ductal structures; failing to discontinue the surgery or change the procedure to an open cholecystectomy; failing to perform a subtotal (partial) cholecystectomy when proper visualization could not be obtained; and failing to perform a cholangiogram once it became apparent that the patient’s anatomy was inflamed or aberrant.

The plaintiff’s experts further opined that if the defendant had used proper dissection techniques and/or employed alternate surgical techniques rather than simply marching on when confronted with the inflamed anatomy and aberrant structures, the plaintiff would not have sustained the common hepatic duct injury.

The defense retained two general surgeons who had extensive experience performing robotically-assisted laparoscopic cholecystectomies.  In sum, the defense experts opined that the general surgeon complied with the standard of care in every way during the surgery, and that the common hepatic duct injury was unavoidable based on the size of the shrunken gallbladder as well as the inflamed structures and dense adhesions in the surgical plane.  The defendants’ experts also opined that the subsequent abscess that developed seven months after the robotically-assisted laparoscopic cholecystectomy was not related to the transection of the common hepatic duct, but was more likely the result of an inflamed and infected gallbladder that did not develop as a result of the general surgeon’s care and treatment of the plaintiff.

This case presented a classic case of a “battle of the experts” wherein the plaintiff’s experts and the defendant’s experts reached diametrically opposite conclusions regarding whether or not the general surgeon breached the standard of care doing the robotically-assisted laparoscopic cholecystectomy surgery.

$2.0 Million Settlement

Through mediation

Type of case: Automobile collision and anesthesia medical malpractice
Attorneys: William B. Kilduff, and Thomas J. McNally, Richmond

On April 24, 2017, the decedent was a passenger in a vehicle driven by a friend that was traveling on an interstate roadway. The driver lost control of the vehicle, which caused the vehicle to leave the roadway and crash into a ditch. The decedent sustained several cervical bone fractures.

The decedent was transported from the scene to a hospital where he underwent posterior cervical surgery to repair the cervical fractures.

At the conclusion of the surgery, as the decedent was being extubated from the anesthesia equipment, the decedent began to flail and he reached toward his endotracheal tube (ET tube) as if he intended to pull out the ET tube out of his throat. Fearing that the decedent would injure himself if he removed the ET tube, one of the anesthesia providers pulled the ET tube from the decedent’s throat. Within approximately a minute thereafter, the decedent’s heart stopped beating and he did not have a pulse. Due to the mismanaged extubation, the decedent sustained a hypoxic brain injury that required him to be placed on life support. The decedent never regained consciousness and he died approximately a week after the surgery when he was removed from life support.

The surviving family hired Emroch & Kilduff.

An investigation of the medical malpractice claim showed that the CRNA who was responsible for the anesthesia at the beginning of the surgery did not realize when the surgery started that the anesthesia equipment was not plugged into the electrical outlet in the wall, but was being powered by the battery back-up system. Approximately an hour into the surgery, unbeknownst to the CRNA, the battery died and the CRNA noticed that the decedent was not being well ventilated. An emergency code was called and one of the anesthesia providers discovered shortly thereafter that the anesthesia equipment was not plugged into the wall socket, but was being operated on battery power and the battery had died. They plugged the equipment into the wall socket and the operation continued. The decedent was not injured due to that error, but the failure of the anesthesia providers to document that the battery died during the surgery and that a code was called suggested a cover-up of the anesthesia error.

Plaintiff’s counsel made wrongful death claims against the automobile driver and against the anesthesiology team that attended the decedent during his cervical surgery. The automobile claim settled before suit was filed for the combined liability and UIM limits of $100,000. The medical malpractice claim settled at mediation, after suit was filed, for $1.9 million. The combined settlement was $2 million for the decedent’s wrongful death.

$3 Million Settlement

Failure to timely deliver child, treat high blood pressure

Type of case: Medical Malpractice
Attorneys: William Kilduff, and Christopher L. Spinelli, Richmond

Our client was admitted to a hospital with signs of placental abruption and preeclampsia. Although the fetal monitor allegedly revealed signs of distress, no action was taken to promptly deliver our client’s baby, who later died in the womb.

That night, our client experienced hypertension and later developed HELLP syndrome. The child was subsequently delivered, and our client suffered a stroke. She now experiences balance, cognitive, and physical issues and cannot return to her job, at which she had earned $32,000 annually.

On behalf of our client, Emroch & Kilduff sued an obstetrician and the hospital, alleging her baby’s wrongful death resulted from failure to perform a prompt delivery and that the defendants failed to treat her elevated blood pressure.

$1.65 Million Settlement

Failure to timely diagnose and correct bowel perforation

Type of case: Medical malpractice
Attorneys: William Kilduff, and Christopher Spinelli, Richmond

The patient underwent a routine laparoscopic cholecystectomy. During the laparoscopy, defendant surgeon thought he might have perforated the small bowel and told his partners to investigate this if the patient returned.

$1 Million Settlement

Movers hired to drive third party vehicle, one killed, another severely injured in cargo truck accident

Type of case: Cargo Truck Accident
Attorneys: William B. Kilduff and Christopher L. Spinelli

The plaintiff, 53, agreed to help a friend, Defendant Driver, with a for-hire moving project in the summer of 2016.  (Defendant Driver operated an occasional moving company service that would, on occasion, rent a Cargo Truck at issue from Defendant Local Dealer.)

Defendant Driver offered to pay the plaintiff if the plaintiff would help load a Cargo Truck Defendant Driver rented from Defendant Local Dealer.   Along with Defendant Driver and one other, (now deceased), the plaintiff was to help drive the Cargo Truck to its destination point in Texas, unload it, and drive it back to Richmond.

The plaintiff agreed, and on July 26, 2016, Defendant Driver rented the 2013 Isuzu NPR Cargo Truck from Defendant Local Dealer in Richmond, Virginia.  Defendant Driver was familiar with the Cargo Truck, having sat as a passenger in it before.  Defendant Driver testified that he had previously complained to Defendant Local Dealer about the Cargo Truck’s tendency to vibrate at high speeds.  Defendant Local Dealer told Defendant Driver on the 26^th that Defendant Driver would be okay taking the truck and Defendant Driver could always call roadside assistance if a problem developed on the road.

The plaintiff then assisted with loading the truck with a third-party’s furniture.   Defendant Driver and the now-deceased companion began taking turns driving the truck to Texas, while plaintiff drove the third-party’s vehicle, following behind the Cargo Truck, because the third-party’s vehicle was to be transported to Texas as well.

On the evening of the 26^th, the plaintiff and his companions stopped at a motel in Charlotte, North Carolina for the night.  Defendant Driver testified that on that evening Defendant Driver called the Corporate Defendant’s service numbers and complained about the Cargo Truck’s tires.  Accordingly two representatives came to the motel parking lot, examined the truck tires, and concluded that the tires were not worn enough to cause operational problems.

The three travelling companions continued the next morning, and eventually arrived at their destination in Texas.  They unloaded and began their return trip, this time with the plaintiff in the cab of the Cargo Truck along with Defendant Driver and the third individual.  While Defendant Driver was driving, the plaintiff was seated between the third individual and the Defendant Driver, and the plaintiff fell asleep.

At about 6:50 am on July 29, 2016, on I-10 near Mobile, Alabama, the Defendant Driver lost control of the Cargo Truck while traveling at highway speeds.  According to the Defendant Driver, the Cargo Truck pulled off the road to the right, crossing directly over March Road which runs as an underpass under I-10 and then collided with an embankment.

As a result of the crash, the plaintiff, who was asleep at the time Defendant Driver lost control, suffered broken ribs, legs, and back.

The plaintiff contended that both Defendant Local Dealer and Corporate Defendant shared in liability in this matter.  Plaintiff’s expert Lance Watt, after examining the remains of the Cargo Truck, testified that the front steering wheels were in a toe-out condition at the time of the rental, and this toe-out condition had existed for a lengthy period prior to the rental and crash.  The toe-out condition was consistent with the distinctive wear pattern across the face of the tires. Additionally the front tires were never properly balanced.  According to Watt, the Cargo Truck was not in a suitable condition to be rented, and the shaking that would manifest at highway speeds was directly caused by these conditions.

Plaintiff’s expert also opined that the vehicle inspection checklist supplied by Corporate Defendant and allegedly completed by Defendant Local Dealer prior to Defendant Driver’s rental is inadequate.  It affords all local dealers too much leeway in evaluating the condition of tires on their rental trucks.

The Corporate Defendant and Defendant Local Dealer relied in part upon the Alabama police officer’s report, consideration of the approximate angle of departure of the Cargo Truck from the roadway prior to the crash, and other elements to argue that the Defendant Driver simply fell asleep before the crash.  Additionally, in discovery the Corporate Defendant identified a driver who operated the Cargo Truck immediately prior to this crash who reported no problems.

The Corporate Defendant and Defendant Local Dealer identified two experts who opined that the tire tread would not have contributed to the Cargo Truck running off the road and colliding with an embankment.  These defendants’ liability experts in this case both testified in deposition that the tire treads were within reasonable operational standards.  One of the two defense experts contended that the unusual wear pattern along the side of the tires only developed after the crash, when the Cargo Truck was towed and transported from Mobile, Alabama to Mandeville, Louisiana.

The plaintiff had $82,921.20 in incurred medical bills and a lifetime lost wages claim of $368,795.00, which was disputed.  As a result of the crash, the plaintiff suffered fractures of his left hip and vertebral body, and developed chronic low back, dorsal hip, and radiating leg pain.

The plaintiff settled with the Defendant Driver for $125,000.00, which was the limits of his coverage, and after extended mediation efforts the plaintiff settled with both the Defendant  Local Dealer and the Corporate Defendant for an additional $875,000.00.

$1 Million Settlement

Cancer patient has complications following surgical error

Type of case: Medical malpractice
Name of mediator: Thomas S. Shadrick
Attorneys: William Kilduff, and Christopher L. Spinelli, Richmond

The plaintiff underwent a laparoscopic lower anterior resection of the colon to remove a cancerous lesion in 2014. However the defendant surgeon and surgical assistant attached the colon to the plaintiff’s vagina, rather than properly to the plaintiff’s rectum. During the period of time from the surgery, through the repair surgery that was performed 10 days later, the plaintiff was unable to defecate through her rectum, but was passing feces through her vagina. The repair procedure performed was a laparoscopic colovaginal fistula take-down, a laparoscopic splenic flexure mobilization and a loop ileostomy. The ileostomy pouch on the outside of the plaintiff’s body had to be replaced frequently, and she required help from home health care nurses from her discharge more than a month later. During that period of time, the home health care notes reflected that the plaintiff was at times extremely emotional.

$1.5 Million Settlement

6-year-old girl drowned at apartment complex pool

Type of case: Premises liability, wrongful death
Court: Richmond Circuit Court
Mediator: Frank N. Cowan
Attorneys: Walter H. Emroch (retired)

The 6-year-old decedent was being watched at an apartment complex swimming pool by her aunt. She was last seen by witnesses holding on to the side of the swimming pool, moving towards the deep end. Several minutes later, the decedent was found dead in the deep end of the swimming pool. A resident who was sitting with the lifeguard testified that they were positioned too far back to see the part of the swimming pool where the decedent’s body was found.

The lifeguard, who was a resident of Russia, was hired, trained and newly certified by the defendant pool management company. The defendant took the position that they had no liability, as the pool management company was an independent contractor. Plaintiff argued that under Virginia law, the duty of the owner and manager of the swimming pool in regard to safety was non-delegable.

The case was settled after extensive discovery was completed.

$7.75 Million Settlement

Slip & Fall Settlement

Type of case: Premises liability, slip & fall

Attorneys: Ward Marstiller, Michael Lantz and Walter Emroch (retired), Richmond

Summary: An apartment tenant slipped and fell on a sheet of black ice while walking from the building to his car. He suffered tibia and fibula fractures and developed complications due to an underlying diabetic condition. He may eventually need a below-the-knee amputation.Plaintiff alleged that the defendant apartment owner and property manager failed to pre-treat the area prior to a major snowstorm, and failed to properly remove the snow and treat with salt or sand in the aftermath of the storm and during the “melt and re-freeze” cycle. Defendants contended they adequately maintained the premises, and plaintiff was contributorily negligent. The case settled at mediation.

$1.75 Million Settlement

Car Accident Settlement

Type of case: Automobile accident
Court: U.S. District Court, Richmond

Summary: The 75-year-old plaintiff was struck from behind at a high rate of speed by a full size pick-up truck after he slowed for backed up traffic. Liability was never contested, as the defendant left a note for the plaintiff at the hospital, in which he admitted fault for the accident and expressed his remorse. The plaintiff suffered multiple internal injuries, a spinal fracture and a traumatic brain injury.Prior to the accident, he had been extremely active and was performing daily farm work. He made an exceptional physical recovery and discontinued treatment for his cognitive impairment. No specific future medical treatment could be attributed to the accident even though plaintiff’s physicians agreed the trauma exacerbated pre-existing conditions.The case settled for available coverage limits, which included both liability and umbrella policies maintained by the defendant’s parents.

$650,000 Settlement

Injured Street Sweeper

Attorneys: William B. Kilduff & Mr. Carr

Summary: Mr. Kilduff and Mr. Carr represented a street sweeper who was rear-ended by the driver of a Ford Expedition and experienced a herniated disc and right knee osteophytosis. Following the accident, the plaintiff did not seek immediate medical attention, but went two days later to his primary care physician who initially suspected he had sustained right knee and lumbar strain/sprains. Within two weeks, the plaintiff began experiencing radiating right leg pain. He underwent two surgical procedures: a microdiscectomy and a posterior lumbar fusion. However, his pain continued. His pain management physician concluded that his condition could improve only with a spinal cord stimulator.

The defense attempted to develop the theory that the plaintiff had actually injured his back in a subsequent on-the-job accident following the automobile accident. They filed a motion seeking to exclude the testimony of his physician concerning the placement of a spinal cord stimulator. They also sought to exclude testimony concerning loss of earning capacity and the costs of the spinal cord stimulator, and they questioned the plaintiff’s candidacy for the procedure. They also suggested that the injury was due to plantar fasciitis of the right foot.

The court refused to limit the doctor’s testimony and ruled that testimony concerning the costs of the device and procedure would be admissible once a proper foundation was established. The court took the motion concerning loss of earnings capacity under advisement. Following the hearing, settlement negotiations resumed and the case was settled two days before trial.

$600,000 Settlement

Disputed Brain Injury & PTSD Victim

Type of case: Brain Injury

Attorneys: Bill Kilduff

Summary: Bill Kilduff recently represented a woman who experienced a mild traumatic brain injury (MTBI) and post-traumatic stress disorder (PTSD), among other medical issues, due to a highway collision in Northern Virginia.

The plaintiff’s vehicle had been struck on an off-ramp for I-95 after the defendant had veered sharply to the right, across three lanes of traffic on I-495. The collision resulted in several impacts between the vehicles before the plaintiff struck a concrete retaining wall. Although initial EMT and ER records indicated there had been no head or facial trauma, photographs taken the following day revealed facial swelling and abrasions, which were also recorded in the first follow-up visit with the plaintiff’s primary care doctor. Following reports of panic attacks, nightmares, crying spells, flashbacks, and smelling gas fumes and burning tires, our client was diagnosed with PTSD. Based upon reports of headaches, memory loss and word finding difficulties within a month after the accident, she underwent neuropsychological testing and was diagnosed with a mild traumatic brain injury in addition to PTSD. She also was under the care of an orthopaedic surgeon for her knee and spinal complaints, and received counseling and neurorehabilitation therapy for her brain injury and PTSD for approximately a year. After relocating to Maryland, our client received additional care from a neurologist, a chiropractor and a neuropsychologist who performed follow-up neuropsychological testing.

A noted expert on the combined effects of MTBI and PTSD was retained as a medical expert on the plaintiff’s behalf. This physician produced medical literature and research supporting his opinion that our client’s brain injury made her PTSD worse and more difficult to treat, and visa versa. He also worked with a visual artist to develop medical illustrations and other demonstrative evidence.

All elements of the case were contested. Liability was disputed because the defendant claimed that a “mystery vehicle” had swerved into her lane. Physicians hired by the defendant’s insurance company said our client did not sustain a brain injury, claimed her symptoms were exaggerated and suggested that she was malingering. The defense attorney attempted to exclude loss of earning capacity evidence because our client had not finished her Masters in Public Health degree from VCU and had no pre-accident experience as a policy analyst. The severity of our client’s brain injury was also contested because of our client’s ability after the accident to complete work for the degree, graduate with a 4.0 average and be selected as her class’s graduation speaker. Likewise, she made no effort to secure employment or obtain treatment recommended for her brain injury in the two years prior to trial. In that time she also became engaged, was married, moved to Maryland and gave birth to her first child.

The insurance carrier withdrew from a scheduled mediation and made only a minimal settlement offer of $60,000. Only minimal negotiations occurred thereafter until the night before trial, when the settlement offer was increased to $600,000.

$540,000 Settlement

Bycicle Accident Injury

Type of case: Personal injury

Attorneys: Bill Kilduff, Harrison Long, Howard Bullock

Summary: The plaintiff, an avid cyclist, was riding his bicycle to visit a friend. It was a summer afternoon, and the sun was brightly shining. As the plaintiff approached the intersection of the street on which his friend lived, he moved his bicycle onto the adjacent sidewalk and immediately sustained a significant and unexpected impact to the right side of his face due to elongated construction materials, which had been left hanging over a four-foot chain link fence and fully protruding into the sidewalk, at a house that was owned, and being renovated, by the defendant; however, the plaintiff never saw them prior to the impact, as the sun’s brightness obscured the materials visibility.

As a result, plaintiff sustained significant injuries, including a facial laceration, an inferior orbital wall blowout fracture with involvement of the infraorbital canal, comminuted fractures of the maxillary sinus, and post traumatic trigeminal neuropathy. Despite trying several different treatment modalities, the plaintiff continues to suffer from trigeminal neuropathy, and his treating providers were prepared to testify in support.

The defense vigorously contested the permanency of the trigeminal neuropathy, claiming the injuries were subjective. Ultimately, the parties were able to mediate the case to resolution just one week before the scheduled trial.

Settlements of Note