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
$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.
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.
The defendants dispensed a G.I. cocktail. The patient thereafter reported that he was no longer in pain and fell asleep. He was discharged home.
The next day, the patient returned to the emergency room with complaints of continuing chest pain. He was transferred by helicopter to MCV where he was found to have a 100% occlusion of the mid right coronary artery. The patient also suffered from and was treated for shock, transient paresthesias, respiratory failure, acute kidney injury and acute liver injury due to shock and a stroke.
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
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
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
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.
$1.25 Million Settlement
Motorcyclist lost leg, fractured pelvis in wreck
Type of case: Motor vehicle collision
Attorneys: Thomas J. McNally and Michael W. Lantz, Richmond
Plaintiff was riding through a rural town on his motorcycle when he was struck on the right side of his bike by a car exiting a fast-food restaurant. The impact knocked the plaintiff off the bike and sent him skidding across the roadway. Rider sustained fractures and soft tissue injuries to his right lower extremity that were so severe the surgeon recommended amputation of his right leg below the knee. Plaintiff also sustained a severe pelvic fracture that also required surgery. He was hospitalized twice and has yet to return to work; although he anticipates being able to continue working.
$1.02 Million Settlement
Passenger died after car collided with, flipped bull in road
In December 2014, the plaintiff’s decedent, a 49-year-old female, was the front seat passenger in a vehicle driven by a co-defendant. The co-defendant driver was driving on a rural, two-lane, country road at approximately 9:15 p.m. when he struck a bull in the road. The bull struck was one of two bulls that escaped from a pen located a short distance from the crash site. . As a result of being struck by the car, the bull was thrown on top of the roof of the car, which depressed the roof, and caused the plaintiff to sustain a T-4 burst fracture of her vertebral spine resulting in bilateral, lower extremity paralysis. The plaintiff subsequently underwent cervical spine surgery to stabilize her spine, but she wound up paralyzed from the T-2 level. The plaintiff died nine months later due to complications from the injury, including severe decubitus ulcers, systemic infections and respiratory failure. The plaintiff filed suit against the driver of the car for his negligent operation of the motor vehicle. The plaintiff also filed suit against the cattle owners who owned the farm from which the bulls escaped.
$1 Million Settlement
Movers hired to drive third party vehicle, one killed, another severely injured in cargo truck accident
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 26th 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 26th, 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
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.
$3.85 Million Settlement
Auto accident plaintiff suffered mild TBI, orthopedic injuries
The defendant, a college student, struck the plaintiff’s vehicle in the plaintiff’s lane of travel. Plaintiff suffered a mild traumatic brain injury, which caused intermittent persistent headaches that occur two to three times per month. Plaintiff also suffered numerous fractures, and underwent several surgeries for these injuries. Future hip replacements were projected.
$1.55 Million Settlement
Plaintiff underwent spinal fusion after auto accident
Case name: Tatum v. Taylor
Type of case: Personal injury, auto accident/workers’ compensation
Court: Richmond Circuit Court
Mediator: Frank N. Cowan
Attorneys: Michael W. Lantz, Richmond
While driving a large king cab pickup for his employer, the plaintiff was struck from behind by a van operated by and employee of an HVAC service company. Although there was minimal property damage to either vehicle, the plaintiff developed neck and back pain. An MRI revealed an instable bilateral pars fracture at L3-4, and plaintiff underwent a fusion. An initial FCE restricted the plaintiff to light to medium-duty work and assigned a 12 percent whole person impairment.
The case settled the night before trial. The settlement occurred only after the mediator sent a letter to the insurer’s claims manager, offering his assessment of the value of the case and explaining the potential for an excess verdict. The underlying workers’ compensation claim was also settled in exchange for reducing the subrogation lien by an additional $65,000.
$1.5 Million Settlement
6-year-old girl drowned at apartment complex pool
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.
$2.25 Million Settlement
Workman fell through roof opening, sustained brain injury
Type of case: Premises liability
Court: Baltimore City Circuit Court
Mediator: Thomas S. Shadrick
Attorneys: Walter H. Emroch and Thomas J. McNally, Richmond; Patrick Malone and Daniel Scialpi, Washington
Summary: The plaintiff was employed by a Virginia corporation that that been hired to power-wash and paint a building in Maryland. As the plaintiff was walking on the flat roof of the building, he fell through an unsupported opening that was covered by a fiberglass panel. The panel had been painted the same color as the roof. The plaintiff fell about 14 feet and landed on his head on a concrete floor. He sustained a traumatic brain injury and multiple fractures.
Plaintiff’s treating physicians opined that the plaintiff will experience permanent spinal and facial pain related to his orthopedic injuries, and is unable to return to competitive employment. The defense argued that the plaintiff was contributorily negligent and disputed the seriousness and permanence of plaintiff’s brain injury.
A major factor that contributed to the settlement of this case was that Maryland has a $750,000 cap on non-economic damages.
$7.75 Million Settlement
Slip & Fall Settlement
Type of case: Premises liability, slip & fall
Attorneys: Ward Marstiller, Michael Lantz and Walter Emroch, 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.
$6.234 Million Settlement
Type of case: Worker’s comp
Court: Virginia Workers’ Compensation Commission
Mediator: Brooke Anne C. Hunter
Summary: An 18-year-old construction worker was struck in the head by a heavy piece of equipment while on the job. He suffered a severe traumatic brain injury. Efforts to return the plaintiff to some form of gainful employment failed, and he was eventually placed in a residential brain injury rehabilitation facility.The employer’s workers’ compensation carrier agreed to plaintiff’s entry of permanent and total disability, so long as he agreed to engage in settlement negotiations. At mediation, the disability benefits and non-Medicare covered treatments were settled for a cash payment of $6 million. He received a Medicare Set-Aside of $234,989. A special needs trust was set up to incorporate the MSA. The payout is the largest reported workers’ compensation settlement in Virginia.
$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.
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.
$1.5 Million Settlement
Summary: Walter Emroch and Tom McNally represented a woman who had been driving in the left travel lane when the defendant, who was driving a 15-passenger work van, had suddenly swerved from the right lane into the left lane. The impact caused fractures in the plaintiff’s hip, hand and several ribs. She was hospitalized for close to 30 days.
Following the accident, the defendant driver told the police that at the time of the collision, he had gotten a cramp in his leg, jerked the steering wheel to the left and struck the plaintiff’s car. However, during the defendant’s deposition, he denied ever having made such a statement. He claimed that he had been in the right lane, safely moved into the left lane, slowed down to make a left turn and was struck by the plaintiff. The van had pre-existing damage, so it was difficult to determine where the van was impacted during the collision.
The defense contested liability, and challenged the plaintiff’s future medical costs and lost wage claim. They also claimed that she failed to mitigate her damages for years after the accident by making little or no effort to lose weight in order to undergo hip surgery.
The case was settled for $1.5 million.
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.
Unguarded Drain Leads to Injury Recovery
Type of case: Personal Injury
Summary: On January 20, 2007, the plaintiff injured his left knee when his foot shot out from under him and into an unguarded/uncovered drain hole. The injury occurred as he was wheeling a loaded handcart during an early morning delivery to the defendants’ restaurant. According to the plaintiff’s expert Charlie Crim, the uncovered drain and inadequate lighting to illuminate the drain were violations of the property maintenance code. The defendants actually admitted liability in response to requests for admission. Although an MRI of the plaintiff’s foot revealed a meniscus tear, this tear proved too small to repair, so a microfracture surgery was conducted to alleviate symptoms attributable to degenerative changes. The plaintiff had sustained a work injury to the same knee three months before the accident. That injury was also diagnosed as a meniscus tear. He had been released back to full duty prior to the drain hole accident.
Although Dr. O’Brien, the defendant’s expert witness physician, stated that only the first three to six weeks of treatment were related to the accident, he conceded in his deposition that the surgery and up to 12 weeks of treatment were related and reasonable. Meanwhile, after first testifying in his de bene esse deposition that the accident was a precipitating factor for the future total knee replacement he had recommended, Dr. Beach, another expert of the defendant, admitted on cross-examination that the plaintiff would have eventually required the knee replacement anyway based on pre-existing changes. Dr. Beach then offered on re-direct that the accident was one of multiple causative factors. The physician was cross-examined with an early, contradictory draft of a report he wrote in the underlying workers’ compensation claim.
The plaintiff’s wage loss claim was complicated by the fact that his employer subsequently fired him for alleged fraud related to his time clock usage. These allegations were rejected twice in the underlying workers’ compensation case, and a motion in limine to exclude this evidence was pending at the time of settlement.
Although the results of a Functional Capacity Evaluation showed that he should be limited to medium demand work, the plaintiff already had the same restrictions for a prior shoulder injury. Dr. Sinsabaugh, the plaintiff’s expert witness, found a future loss of earning capacity lasting five years, while Gray Broughton, an expert for the defense, testified that similar paying jobs were available, even though the plaintiff applied for more than 180 jobs after being terminated.
The plaintiff was simultaneously litigating both the workers’ compensation and personal injury claims. Despite having a subrogation lien, the compensation carrier aggressively defended the underlying claim. The personal injury case settled approximately two weeks after the original mediation, thanks to the efforts of mediator Mike Harman. Ultimately, the compensation carrier waived the subrogation lien of approximately $49,500.00, and the plaintiff was awarded $339,000.00.
$3 Million Settlement
Medical Malpractice Case
Type of case: Medical Malpractice
Summary: Walter H. Emroch and Thomas J. McNally obtained a $3 million settlement for a 50-year-old woman who was the victim of medical malpractice.
The plaintiff, a resident of Emporia, Virginia, traveled to Washington, DC, to undergo a gynecological operation to remove a large cyst that had developed in her abdomen. The defendant doctor had previously treated the plaintiff for obstetrical and gynecological conditions and had successfully handled a previous high-risk pregnancy for the plaintiff.
Unfortunately, during the surgery, the defendant doctor, believing that he might have cut and/or ligated the plaintiff’s right ureter, performed what is referred to as an indigo carmine dye test. After performing the indigo carmine dye test, which is not adequate to rule out a ligated ureter, the defendant doctor erroneously concluded that the ureter was not ligated or damaged, and closed the plaintiff’s operative site.
Over the course of the next several days, the plaintiff developed post-operative signs and symptoms of ureteral damage, including complaints of back pain, elevated creatinine, blood in her urine, nausea and fever. Despite being aware of her post-operative signs and symptoms of ureteral damage, the defendant failed to investigate the cause of those symptoms in a timely manner, and failed to request a consult with a urologist to rule out ureteral damage. Eight days after the surgery, the doctor obtained a consultation by a urologist, who concluded that the plaintiff had a right ureteral obstruction. Twelve days after the initial surgery, the urologist, along with a transplant specialist, attempted to repair the ureter; however, by that time, the ureter was beyond repair and had to be removed, along with her right kidney. The kidney could not be relocated due to extensive swelling, scarring and adhesions from the ligation. Within several months, due to the loss of the right kidney, the plaintiff’s kidney function, which had been relatively stable, began a precipitous decline resulting in a six- to seven-year reduction in life expectancy, and she was compelled to begin dialysis treatment.
The defense experts said that the defendant did not violate the standard of care and suggested that the right ureteral blockage was not caused by a stitch or ligature, but was due to pre-existing disease.
$4.8 Million Settlement
Type of case: Automobile Accident
Summary: Walter H. Emroch and Thomas J. McNally successfully represented a Richmond man in an automobile collision that settled for $4.8 million two months before trial. The plaintiff was injured when he was a 25-year-old employee of a landscaping company. He was working on a sidewalk when the defendant drove a pickup truck up onto the sidewalk, striking the plaintiff, backing up, striking the plaintiff again, and leaving the scene of the accident.
The plaintiff sustained serious and permanent injuries, including mild to moderate traumatic brain injury; loss of vision in the left eye, as well as right field of vision in the right eye; damage to his pituitary gland, requiring the plaintiff to remain on certain hormones for various functions; and some facial scarring. In spite of his injuries, the plaintiff had obtained an unrestricted driver’s license, was able to converse well with others, and had made a remarkable recovery given his initial injuries.
The defendant’s insurance carrier filed a declaratory judgment action, alleging that they did not owe coverage in the case because the driver did not have permission to drive the pickup truck that struck the plaintiff. The vehicle was owned by a car dealer, and had dealer tags on it. The vehicle had been kept at the home of the car dealer. Prior to the accident, the car dealer and his wife had separated, and he had lent his wife the vehicle to move furniture into her new home. The dealer testified that his wife was aware of the company policy that no one else was supposed to drive a company vehicle with dealer tags on it, except in the case of an emergency or with the permission of the owner. She denied any such knowledge of restrictions on her. On the morning of the accident, she removed the dealer tags from the vehicle, replaced them with her tags, and lent the vehicle to the driver, whom she had known for years, and whom, she believed, her husband would not have wanted to drive the vehicle.
Upon learning of the accident, the car dealer’s wife initially advised the police and the manager of the dealership that the vehicle had been stolen, but shortly thereafter, admitted that she had lent the vehicle to the defendant. Based on the testimony of the car dealer and his manager, as well as the removal of the plates and the initial statement that the vehicle had been stolen, the defendant’s insurance company took the position in the declaratory judgment action that there was no permission to drive the vehicle. In such a case, the plaintiff would have been left with $25,000 primary coverage on the defendant and $100,000 uninsured motorist coverage.
$9 Million Settlement
Truck Accident Case
Summary: Walter H. Emroch and Thomas J. McNally of Emroch & Kilduff successfully represented a Richmond man in a truck collision that settled on the second day of trial for $9 million.
While the plaintiff was driving a truck for his employer, he had the bones in both of his legs crushed. The accident occurred when the driver of a vehicle failed to yield the right of way at an intersection and pulled in front of the plaintiff, causing a T-bone collision.
The plaintiff was trapped in the truck until rescue personnel were able to remove him from the vehicle. He was immediately flown to Inova Fairfax Hospital in Northern Virginia. Unfortunately, the plaintiff, a diabetic, developed an infection in his right leg, which required amputation above the knee. As a result of the amputation, he is required to have a prosthetic leg and to use a cane. He is no longer able to do the same type of work he did before the accident, which involved driving a truck and moving furniture. Currently, he is limited to doing sedentary work with the likelihood of earning only $6.50 per hour. Prior to his injuries, he had been earning $11.50 per hour. He also incurred medical bills totaling $467,000.
$1.5 Million Settlement
Natural Gas Explosion
Type of case: Personal Injury
Summary: Walter H. Emroch and Thomas J. McNally represented a four-year-old girl injured by a natural gas explosion. The plaintiff was visiting her grandmother when she and two other small children were playing near a sewer manhole. One of the children with her dropped a lighted match into the sewer manhole, resulting in an explosion that literally blew the manhole cover off the hole.
As a result of the explosion, she sustained first- and second-degree burns to her legs, requiring hospitalization for nine days. She underwent split-thickness skin grafts, which were harvested from her thighs. As a result of the burns, she incurred permanent scarring to the burn sites and to the skin grafts sites. There were no future medical expenses claimed by the plaintiff. The plaintiff incurred medical bills totaling $40,487.06.
During discovery, it was learned that several months earlier, city workers had received a complaint of a gas leak on the block of the explosion. The city immediately responded and did not find a gas leak there, but did find a natural gas leak approximately 50 yards away in a sewer that ran underneath an abandoned street. Having determined that there was natural gas leaking into the sewer system, the city attempted to identify the source of the natural gas leak over the next 15 days. They found several leaks in the area and repaired them. However, even after the initial repairs were done, city officials still were aware that natural gas continued to leak into the sewer system.
The city’s defense was that the explosion was not caused by a natural gas leak but was from some other source of gas in the sewer system. Additionally, the city would have argued that it had taken all reasonable precautions to identify and fix the gas leak prior to the explosion.
The plaintiff’s gas experts testified that the old cast-iron pipes, which had been installed by the city more than 60 years prior to the explosion, were prone, over time, to develop leaks, and that this leak was foreseeable, particularly since the city was already on notice that the cast-iron pipes were leaking gas into the sewer system before the explosion occurred. The plaintiff’s experts also would have testified that fugitive natural gas is a well-known hazard and contact with an ignition source is particularly dangerous if the gas escapes into a sewer system.
The case settled one month before trial for $1.5 million.
$3.3 Million Settlement
Summary: The plaintiff was a passenger in a truck driven by a coworker when they were victims of a broadside collision. The two were trapped inside the truck when mechanical structures in the vehicle were forced into the passenger compartment.
The plaintiff’s injuries included bilateral tibial fractures and bilateral patella fractures. While hospitalized, he underwent open reduction internal fixation procedures on both tibias as well as his left kneecap. Subsequently, he developed post-traumatic arthritis in both knees. He has already undergone a total knee replacement on his right leg and he is expected to need a total knee replacement in the future on his left leg. Additionally, the plaintiff’s orthopedic expert said that he will need two additional total knee revisions on each leg during his lifetime.
Due to his injuries, the plaintiff is limited to performing sedentary work. He also needs a cane for ambulation and can walk only relatively short distances. The case settled for $3.3 million on the morning of trial.
$1.3 Million Settlement
Bicycle Accident Case
Type of case: Bicycle Accident
Attorneys: Mr. Emroch
Summary: Mr. Emroch represented the estate of a 60-year-old mother of two adult children. The woman had been riding her bicycle, along with her 65-year-old husband, on a cross-country trip from Virginia Beach to San Francisco. She was rear-ended by the defendant.
She was killed instantly when she broke her neck after striking the ground. She had been in excellent condition for her age and had participated in numerous marathons. Her close-knit family was devastated by her loss.
After commencing litigation, the firm obtained a settlement in the amount of $1.3 million for the woman’s family.
Type of case: Medical Malpractice
Summary: Walter H. Emroch and Thomas J. McNally won a $900,000 verdict, which at that time was believed to be the largest medical malpractice verdict ever awarded in the city of Fredericksburg Circuit Court.
The plaintiff, a DEA agent, sustained a complicated stress fracture of the right femur and was sent to the hospital, where he came under the care of the defendant, a physician.
During the surgical repair of the plaintiff’s leg, the leg was placed in traction for more than five hours. The standard of care allows for two and one-half hours of continuous traction. Due to excessive use of traction, the plaintiff sustained permanent nerve damage affecting both legs and permanent sexual dysfunction.
The jury deliberated two hours before returning their verdict.