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1 LITIGATION NEWS ~ PUBLlSH'ED BY THE LITIGATION SECTION OF THE VIRGINIA STATE BAR FOR ITS MEMBERS. o VOLUME VI NUMBER 1 SPRING 1999 The Lemon Law Revisited by Cary Powell Moseley Fourteen years after the enactment of the Virginia Motor Vehicle Warranty Enforcement Actl (the "Act" or "lemon law"), the Virginia Supreme Court issued its first written opinion involving this consumer protection statute in Subaru of America, Inc. v. Peters, 256 Va. 43 (1998). While the case is a significant consumer law decision, Peters is important for a number of issues resolved by the Court: (1) "consumer[s]" of certain "used" vehicles qualify for relief (refund or replacement) under the lemon law;2 (2) repair orders, that show the consumer plaintiff paid nothing for repairs, constitute evidence of warranty defects;3 (3) the vehicle need not be used by the consumer solely for personal, family or household purposes; instead the critical concern is that purpose for which the vehicle is substantially used, and some business use will not necessarily bar the plaintiff's claim; ( 4) the use for business purposes by a prior owner does not bar a claim by the subsequent consumer plaintiff; and (5) the consumer need not meet the lemon law "presumption" in order to qualify for relief. 4 "Consumer" is defined in the Act as the (1) purchaser, other than for purposes of resale, or ( Cary Powell Moseley is an attorney practicing with the _/ firm Davidson, Sakolosky, Moseley & Tille, P. C. of Lynchburg, VA. the lessee, of a motor vehicle used in substantial part for p~rsonal, family, or household purposes; (2) any person to whom such motor vehicle is transferred for the same purposes during the duration of any warranty applicable to such motor vehicle; or (3) any other person entitled by the terms of such warranty to enforce the obligations of the warranty. 5 What damages are recoverable? The Act provides for recovery of the purchase price and all incidental expenses and collateral charges, in addition to "[m]ileage, expenses, and reasonable loss of use" necessitated by repair attempts, less a mileage credit to the manufacturer for use by the consumer.6 The mileage rate "shall not exceed" one-half (1/2) of the amount allowed by the Internal Revenue Service? "Collateral charges" include any sales-related or lease-related charges including but not limited to Lemon Law - cont'd on page 3 Table of Contents The Lemon Law Revisited... 1 by Cary Powell Moseley Letter from the Chair The Supreme Court Revisits [and Limits] Bowers v. Sprouse by Philip W Parker The Virginia Medical Malpractice Cap: Can It Still Be Challenged on Constitutional Grounds? by John W Drescher and Latane Ware Brown StresS Relieffor LaWyers by Rick Beale Recent Law Review Articles Litigation Section Board of Governors Young LaWyers Committee ' 1

2 LITIGATION NEWS SPRING 1999 f i Letter from the Chairo " 0 " ( I n this era of vigorous competition among lawyers and law firms for business, of constant fee pressure by insurance companies and.institutional clients, of an increasing lack of civility among lawyers, and of the continuing focus on billable hours, it is understandable that many at~orneys are not having a wonderful time practicing law. In previous columns, I have commented upon the public's well-known lack of esteem for our profession. The slide in lawyers'standing in the polls of public opinion undoubtedly does little to bolster our feeling of self-worth and job satisfaction. In this column, I will suggest that there are steps that we, as attorneys,can take to have more fun in the practice of law and improve our image with the public in the process. I work at a firm which has historically represented business interests and institutional clients. Early in my career, I was fortunate to have the chance to try a lot of cases as defense counsel for our insurance clients. I loved trial work, and I enjoy it just as much today, although it seems that opportunities to try cases to a jury verdict are less and less frequent as my career continues. In 1986, as an associate, my firm assigned a plaintiff's personal injury case to me. The case was for an 80-year-old grandmother, Thelma Smith, who was an acquaintance of one of our senior partners. Our client had broken her hip by falling in an elevator which jolted when she stepped into it. At that time, our firm rarely handled personal injury claims for plaintiffs. The case was the most memorable and rewarding of my career. In December of1986, just before Christmas, after much work and investigation, we obtained a substantial six-figure verdict for Mrs. Smith in Norfolk Circuit Court. We proved that the elevator had been the subject of numerous complaints and that the failure to maintain and replace a 50 plastic part had caused the accident. The verdict provided enough money that my client could afford to place her elderly husband, who suf- We should... use our talent for the public good on occasions when there is no money to. pay for lawyers' fees. We should be willing to accept matters that we do not typically handle, where our services can make a difference. fered from Alzheimer's Disease and who had been residing in a low-rerit nursing home~ into an upscale retirement facility. Mrs. Smith also moved into the facility, had her own room, and was able to see her husband on a daily basis. She lived there happily for a number of years until she passed away. The trial judge, Leonard B. Sachs, asked me to stop by his chambers to speak with him a couple of days after the conclusion of the case. Judge Sachs complimented the victory on behalf of Mrs. Smith. He then went on to give me some advice, which I have thought of frequently over the years. Judge Sachs said that I should not use whatever talent I might have solely on behalf of wealthy clients who could afford large hourly' rates. Rather, he suggest ed that I be open to opportunities to serve clients who needed assistance but who could not afford to pay. Since then, I have not always done the greatest job of adhering ( to Judge Sachs' admonition. When I have heeded his advice, however, T have continued to have some of the most rewarding experiences of my career. Over the years, I have occasionally provided free legal services and advice to low-income members of a local church group. Last year, I defended the director of the church's children's choir, a single mother and teacher, against a felony charge of taking indecent liberties with a male student in a class that she taught. I did not charge for my time. With the assistance of another attorney who agreed to work at 50% of his normal fee and who has more experience in the state criminal system, we obtained an acquittal for our client. At trial, we proved that the complaining student (who was nearly 18 years old) had made the allegations against our client only after being convicted of a charge brought by the teacher of physically threatening her in class. Although the time that I spent on this case did nothing to improve my compensation at year-end, the reward of helping an innocent( person who could not afford to pay was signifi- ' 2

3 SPRING 1999.~ cant. I had more fun cross-examining the com ()plaining witne.ss than I have had in ye~rs. I am certam that many of our Section members have had similar experiences. A number of our local bar associations sponsor programs to provide legal services to underprivileged persons. For example, the Virginia Beach Bar Association administers a "C.L.A.S.S." program ("Concerned Lawyers Advocating Spousal Safety") to provide free legal representation at hearings on behalf of battered spouses seeking restraining orders against their abusive partners. Participation in programs of this nature can be extremely rewarding, while giving something back to the public. As the largest section of the Virginia State Bar, we have many talents that we can volunteer to the public. We understand the court system. We know how to try cases. We often have contacts in the community that allow us to open doors and expedite solutions. We should all be mindful of Judge Sachs' admonition and use our talent for the public good on occasions when there is no money to pay lawyers' fees. We should be willing to accept matters that we do. not typically handle, where our ( ~~~)services can make a difference. By doing so, we / will make our own careers more rewarding and, hopefully, the public will form a better opinion of our profession. Jeffrey H. Gray, Chair Board of Governors, Litigation Section L'ITIGATION NEWS is edited by the Young Lawyers Committee of the Virginia State Bar Litigation Section. Chair Kevin W. Grierson Newsletter Editor R. Lee Livingston Statements or expressions of opinion or comments appearing herein are those of the editors, authors and contributors and not necessarily those of the Virginia State Bar or its Litigation Section. Lemon Law contjd from page 1 LITIGATION NEWS sales tax, license fees, registration fees, title fees (i.e. ail charges for "tax, title and tags" on the buyer's order), finance charges and interest, transportation charges, dealer preparation charges, charges for service contracts and charges for various options not recoverable from a third party, as well as damages specific to defective leased vehicles.8 "Incidental damages" include those same damages recoverable under the mysterious Uniform Commercial Code: [i]ncidental damages resulting from the seller's breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.9 The successful consumer has his or her unconditional choice of vehicle replacement or refund (repurchase) and "shall recover reasonable attorney's fees, expert witness fees and court costs... "IO There is some debate about whether vehicle insurance premiums, personal property taxes and other items are recoverable under these somewhat vague definitions. If the consumer resorts to the manufacturer's dispute resolution procedure and receives a favorable decision, the manufacturer has "forty [40] days from its receipt of the consumer's acceptance of the decision" to "comply" with the decision.ll Treble damages as well as "additional attorney's fees" are available for the manufacturer's failure to comply with the award.l2 What causes of action are involved? Generally these cases include counts for breach of warrantyl3 and violations of the Virginia Consumer Protection Act (VCPA).14 Allegations under the VCPA are almost always met with a demurrer. Although the averments may not have to meet the particularity requirement for fraud, many judges will analyze whether the allegations Lemon Law - contjd on page 4 3

4 LITIGATION NEWS ' SPRING 1999 Lemon Law contjd from page 3 fall under the specific "prohibi,ted practices" 15 in the "line items" in the VCPA. Do motor vehicle dealers have lemon law liability? Only "manufacturers,"16 defined as those who manufacturer, assemble or distribute motor vehicles, have potential liability under the lemon law. When dealer representatives make misrepresentations about the vehicle, claims may be made against the dealer for fraud, breach of warranty, violations of the Magnuson Moss Warranty Actl7. as well as violations of the VCPA. Claims may also be brought under the Automobile Repair Facilities Act.l8 Repair shops violate Virginia Code in failing to return parts to the consumer. Repair shops violate Virginia Code by not providing, for each repair attempt, proper invoices (l) clearly indicating the work performed; (2) identifying the warranty work and non-warranty work; and (3) identifying those parts which were used, rebuilt or reconditioned. These violations are actionable under Virginia Code (20) of the VCPA. Attorney's Fees The lemon law mandates an award of attorney's fees to the successful consumer plaintiff under Virginia Code The Magnuson Moss Act gives the court discretion to award attorney's fees under the "lodestar" fee calculation method (hours multiplied by hourly rate): If a consumer finally prevails in any action... he [she] may be allowed by the court to recover as part of the judgment... costs and expenses (including attorney's fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorney's fees would be inappropriate.l9 Fee awards have ranged from a few thousand dollars to tens of thousands of dollars. Two of the most prominent warranty litigators, Steve Swann20 of Arlington and John Cole Gayle, Jr., of (I Richmond, have recovered sizable fee awards. In Debrew, supra, the successful consumer plaintiff obtained a jury verdict of $53, in addition to an award of $28, for attorney's fees and expenses. Of the other reported cases that went to trial, Peters, supra, involved one of the lowest fee awards ($13, awarded based on fee request of over $30,000.00).21 However, in Hay v. Ford Motor Company, 35 Va. Cir. 176 (Fairfax Cir. Ct., 1994), following a jury verdict of $28,500.00, the court entered a sizable fee award of $30,372.00; although the award constituted less than 50% of the fee request, the award was nearly 100% of the time billed on a successful Magnuson Moss count after the court disa.llowed the time spent on an unsuccessful lemon law claim. Id.; see also Borrasca v. American Honda Motor Co., 30 Va. Cir. 5 (Fairfax Cir. Ct., 1992) (awarding $9, in expert witness fees and costs as well as $24, of a $38, fee request). Significant fees were recovered in a number of ' cases that did not go to trial and did not involve ( extensive discovery or in some cases any discovery. See Varisce v. Ford Motor Company, 13 Cir. LC2073 (Richmond Cir. Ct., 1998) (awarding $7, based on request of $11,025.00); Iuorno v. Ford Motor Company, 13 Cir. LB69la (Richmond Cir. Ct., 1996) (awarding $6, of $12, request); Morris v. Ford Motor Company, 13 Cir. LC26791 (Richmond Cir. Ct., 1998) (awarding $4, of request of $5,850.00). In consumer protection cases such as this, the monetary value of the case is typically low. If the courts focus only on the dollar value and result of the case when awarding attorney fees, the remedial purposes of the statutes in question will be thwarted. Simply put, if attorney fee awards in these cases do not provide a reasonable return, it will be economically impossible for attorneys to represent their clients. Thus, practically speaking, the door to the courtroom will be closed to all but those with either potentially substantial damages, or those with sufficient economic resources to afford the litigation expenses (, involved. Such a situation would be indeed ironic: it is but precisely those with 4

5 SPRING LITIGATION NEWS ordinary consumer complaints and those who cannot afford their attorney fees for whom these remedial acts are intended,22 In Hauth v. Bill Page Toyota, Law No (Fairfax Cir. Ct., 1995), the court, awarding a full lodestar fee, stated on the record that Magnuson Moss (and its lodestar fee method) was designed to level the playing field, by allowing the plaintiff to collect attorney's fees and costs from the losing party. Without that provision a car dealer could, and regularly did, thumb their nose at persons who had bought lemons, because everybody knew that no attorney could afford to take a case and work it to the level that the defendant could afford to work it... So the theory is, then, that the wronged party ought not to have to pay attorney's fees and costs. The losing party ought to have to pay... And I find the 152 hours to be reasonable. I think that the careful counsel these days will investigate all avenues of recovery, and the client shouldn't be penalized if some of those are not able to be proved. The same reasoning applies to the state lemon law (.' cases: if full f~es are not awarded in lemon law actions, manulacturers may continue to "thumb their noses" at consumers. While "fee-shifting statutes are not intended to replicate the fee an attorney could earn through a private fee arrangement with his [or her] client, "23 it is the consumer who suffers when courts refuse to enter a reasonable fee award. Some of the Virginia decisions have analyzed which services rendered should be payable,24 why certain fees are "reasonable" or "unreasonable" and how the "lodestar" method is utilized. Other courts have provided little reasoning or analysis for the calculation of an appropriate fee award. Must the consumer have possession of the vehicle in order to recover? While this question has not yet been addressed by the Virginia Supreme Court, numerous Circuit opinions have determined that the consumer need not have possession of the vehicle to qualify for.. relief. Cook v. Ford Motor Company, 24 Va. Cir. ~ 377 (Fairfax Cir. Ct., 1991) (Act does not require. possession as a condition precedent to recovery); Niday v. Mitsubishi, (unpublished opinion) 5 (Roanoke Cir. Ct., June 11, 1997) (citing Cook and holding that the "statute allows damages separate and apart from replacement or refund" and thus possession by the consumer is not required). This result makes sense, particularly where the "repossession" (or "dispossession") is preceded or even occasioned by the manufacturer's failure to fulfill its statutory obligations under the lemon law.25 The Statute of Limitations The statute of limitations for breach of warranty is generally four (4) years from the date of tender of delivery of the vehicle.26 However, under the lemon law, the limitations period is eighteen (18) months "following the date of original delivery of the motor vehicle to the consumer" although this period may be extended as follows: any consumer whose good faith attempts to settle the dispute have not resulted in the satisfactory correction or repair of the nonconformity, replacement of the motor vehicle or refund to the consumer... shall have twelve months from the date of the final action taken by the manufacturer in its dispute settlement procedure or within the lemon law rights period, whichever is longer, to file an action in the proper court, provided the consumer has rejected the manufacturer's final action.27 The 18-month "lemon law rights period" is the "period during which the consumer can report any nonconformity to the manufacturer and pursue any rights provided for under this chapter. "28 The lemon law rights period "shall be extended if the manufacturer has been notified but the nonconformity has not been effectively repaired by the manufacturer, or its agent, by the expiration of the lemon law rights period. "29 In Robertson v. Ford Motor Company, 19 Cir. L (Fairfax Co. Cir.- Ct., 1996), the Court acknowledged that there are two ways in which the Lemon Law rights period may be extended, as set out in of the Code. One way to toll the period is to provide "notification" to the manufacturer of the need for correction or repair of the alleged nonconformity within eighteen months after the delivery of the vehicle. Lemon Law - C01Jt'd 011 pll,!lt' 6

6 LITIGATION NEWS SPRING 1999 Lemon Law cont'd from page 5 "Notice" is given when either: (1) a written complaint of the defects has been mailed to the manufacturer; or (2) the manufacturer has responded to the consumer in writing regarding the complaint; or (3) a factory representative has either inspected the vehicle or met with the consumer or an authorized dealer regarding the nonconformity. In light of the Act's remedial purpose, the Act should be read broadly to effectuate legislative intent. Cook, supra. Thus, a variety of conduct may qualify as "good faith attempts to the settle the dispute," and a number of actions may constitute a "dispute settlement procedure" as well as "final action" by the manufacturer.30 In Smith v. General Motors Corporation, 35 Va. Cir. 112 (Fredericksburg Cir. Ct., 1994), the court stated that "no matter how reasonably broad one might define the term ["dispute settlement procedure"], merely returning the vehicle to the dealerships is not sufficient." The case contains an interpretation of what constitutes "notice" to the manufacturer as well as a discussion of the interplay of the 18-month and 12-month limitation periods. What constitutes a "dispute settlement procedure" is far from clear, and the courts and commentators have marveled at the apparent ambiguity in this Code section. See Smith, supra. Gayle has also commented on the ambiguities in the sections pertaining to the statute of limitations. See Gayle, How To Evaluate A Claim Under Vir.tJiniaJs Lemon Law, Journal of the Virginia Trial Lawyers Association, (Summer 1991). Is expert witness testimony necessary? There is some debate about this. While some Virginia attorneys believe that expert testimony is not necessary, the testimony of an expert should be offered on at least two issues: (1) significant impairment to use, market value and/or safety under the lemon law; and (2) diminution in value under the Magnuson Moss Act. Highschool automotive or "vo-tech" teachers make good expert witnesses and do not usually charge exorbitant wit- / ness fees. ' ( As noted by the Virginia Supreme Court, some ' of the best evidence of warranty defects or nonconformities can be found in the repair orders describing repairs for which the consumer was not charged. The repair orders should be examined with a fine tooth comb as there are almost always inaccuracies in these documents, particularly involving the dates of service or the mileage of the subject vehicle. Arbitration and Mediation In attempting to resolve warranty complaints, it is important that the consumer comply with the terms and guidelines contained in the manufacturer's written warranty which often contains reference to some form of dispute settlement mechanism. The consumer"s complaints may sometimes be quickly and efficiently resolved by utilizing the manufacturer's dispute settlement procedure. A number of manufacturers offer dispute settlement through the Dispute Settlement Board ( ), the National Center for Dispute(,' Settlement ( ), Better Business Bureau Autoline ( ), or other such arbitration/mediation entities. Refer to the warranty booklets for details. For more information on arbitration and other consumer issues, contact the National Consumer Law Center (NCLC) via the web at or by phone at The NCLC publishes an excellent book entitled Consumer Warranty Law with yearly supplements and companion disks with forms as well as discovery and form pleadings. 1 Va. Code through Va. Code Virginia Circuit Courts had previously held that consumers with used vehicles could pursue claims under the Act. See Patten V. Chrysler Corp., 19 Cir. Ll55311 (Fairfax Cir. Ct., 1997); see also Waldron V. Subaru of America, Inc., 20 Va. Cir. 355 (Richmond Cir. Ct., 1990) (subject vehicle owned by corporation prior to Mr. Waldron). 3The Act contains a subjective standard: the consumer canf testify to the impact of the defects on "use, market value and\ Lemon Law - cont'd on page 8 6

7 SPRING 1999 The Supreme Court Revisits [and Limits] Bowers v. Sprouse by Philip W. Parker I n 1997 in Bowers v. Sprouse, 254 Va. 428,492 S.E.2d 637 (1997), the Supreme Court of Virginia altered the long-standing rule of cases such as Bradner v. Mitchell, 234 Va. 483, 362 S.E.2d 718 (1987), by holding that a verdict in favor of a personal injury plaintiff in the exact amount of medical and other specials is inadequate as a matter of law, irrespective of whether the medical evidence was controverted. In the wake of Bowers v. Sprouse, lower courts seemed uncertain as to the applicability of Bowers when juries returned with verdicts for less than or slightly more than the exact amount of a plaintiff's special damages. The result was an array of seemingly inconsistent decisions. The confusion was ( clarified recently by the Virginia Supreme Court in '- ' Walker v. Mason, Record Nos , and (January 8, 1999), where the Court reversed three trial court rulings which had set aside jury verdicts as inadequate, using Bowers as the justification. The Court's analysis in Walker began with the Bowers ruling itself. The Court in Bowers stated, [ w]e are of opinion that the jury's verdict for the exact amount of the plaintiff's medical and special damages is inadequate as a matter of law. The jury's verdict for the exact amount of the plaintiff's medical expenses and special damages indicates that although the jury found the plaintiff was injured and had incurred special damages, the jury, for whatever reason, failed to compensate her for any other items of damage. 492 S.E.2d at 638. The Court in Bowers concluded that "[t]herefore we hold that a jury award in a personal injury action which compensates a plaintiff for the exact amount of the plaintiff's medical expenses and ~(l1 other special damages is inadequate as a matter of ~ Philip W. Parker is an attorney practicing with Woods, Rogers & Hazlegrove, P.c., Roanoke, VA. LITIGATION NEWS law, irrespective of whether those damages were controverted." 492 S.E.2d at 639. ~ When verdicts are in the exact amount of specials, Bowers presumes that the jury disregarded the court's instructions by failing to make any award for elements of recovery beyond medical bills and lost wages. This presumption falters, however, when attempting to apply Bowers to situations other than exact amount of specials verdicts. What if a verdict is less than specials? What if a verdict is a small amount above specials? Where are the lines, if any, to be drawn~ The recent opinion in Walker v. Mason answers such questions and clarifies the range of Bowers' application. In an opinion written by Justice Elizabeth Lacy, who wrote a dissenting opinion in Bowers, the Court makes clear that Bowers enunciates a "bright line ii.tle" and that Bowers is limited to "those factual situations in which the jury verdict is identical to the full amount of the special damages." The Court rendered decisions in three different appeals and consolidated them in one opinion. In the first case, Walker v. Mason, Record No , while the plaintiff sought $4,431.00, the jury returned a verdict for $230.00, the amount of the emergency room bill. The trial court found that because the verdict was in the exact amount of a portion of the special damages, the verdict was inadequate as a matter of law under Bowers. The trial court set aside the $ verdict and awarded additur in the amount of $7, The Court found that it was error for the trial court to rely on Bowers in setting aside the jury's verdict. Citing Doe v. West, 222 Va. 440, 281 S.E.2d 850 (1981), the Court then stated that, whether the verdict in Walker v. Mason was inadequate depends on the evidence presented. Here, the records show that the extent of Walker's injuries was controverted. After reviewing the evidence relating to the plaintiff's injuries, the Court reinstated the jury's $ verdict, concluding that, [t Jhis record is susceptible to varying interpretations regarding the extent of the injuries and expenses proximately caused by the automobile accident and, therefore, we cannot say that the verdict was based Bowers - cont'd on page 10 7

8 LITIGATION NEWS SPRING 1999 Lemon Law contjd from page 6 safety of the motor vehicle to the consumer." Va. Code (A) (emphasis added). 4The vehicle is presumed to be defective (and the consumer entitled to damages) if it is subject to repair three or more times for a noncsafety defect, one or more times for a safety defect, or where the vehicle has been in the shop 30 days or more for any number of problems or defects. See Va. Code (B). 5Va. Code Va. Code (A). 7Va. Code Id. 9Va. Code defines incidentals by reference to Va. Code of the UCC. lova. Code Va. Code (B). 12Va. Code (C). Although there is no written opinion in the case, in Wollma n 17. Ford Motor Company, Case No. CL and Case No. CL (Lynchburg Cir. Ct., 1997), the Court indicated that "comply" means to "give her [the consumer] a check." 13The breach of warranty count may be bifurcated into claims pursuant to the Virginia lemon law and under the Magnuson Moss Warranty Act, 15 U.S.C et seq., which is sometimes known as the "federal lemon law" although it applies to the sale of a variety of consumer products in addition to motor vehicles. Where the use of the vehicle is primarily ("substantially") for business purposes, the consumer may still prevail on the Magnuson Moss count. 14Va. Code et seq. 15 See Va. Code ; see also Patten, supra; Debrew v. Plexus, 19 Cir. Ll54017 (Fairfax Cir. Ct., 1997). 16Va. Code U.S.C etseq. 18Va. Code et seq U.S.C (d). 20Swann has an excellent web site at The site has a number of links to the Magnuson Moss Act and other sites with information on consumer warranty laws. 21As the Magnuson Moss Act allows an award of all litigation expenses to the consumer who "finally prevails" in any litigation, plaintiff, Mrs. Peters, filed a second suit to recover her attorney's fees and.~osts in defending Subaru's appeal to the Virginia Supreme Court. Subaru has refused to pay appellate litigation expenses and has threatened sanctions against plaintiff's counsel. The case, Peters v. Subaru of America, Inc., Law No (Fairfax Cir. Ct., 1998), is pending. 22Jordan v. Transnational Motors, Inc., 537 N.W.2d 471 (Mich. App. 1995). 23Iuorno 17. Ford Motor Company, supra (citation omitted). This conservative perspective is nonsensical: as attorney's fees are often the bulk of the damages in these cases and as fees sometimes exceed the refunded amount, there are no analogous private fee agreements to "replicate." This perspective is also contrary to the letter, spirit and intent of remedial consumer legislation. Where a full fee is not awarded, this wjll not only make it "economically impossible" for attorneys to handle these cases, 8 but also "realistically impossible" for consumers because the #\. award to the consumer must then be paid the attorney pursuant \J to the "private fee agreement" which is not typically a pure con-! tingency fee contract. 24 See Morris, supra; Hay, supra; Borrasca, supra. 25 See Cook, supra (manufacturer "cannot now take advantage of its own failure to adhere to the requirements imposed by law to absolve itself of potential liability").. 26Va. Code Va. Code Va. Code L 29Va. Code (C). 30SeeVa. Code 59.l (

9 ----, _.-. ~ SPRING 1999 The Virginia Medical Malpractice Cap: Can It Still Be Challenged on Constitutional Grounds? by John W Drescher and Latane Ware Brown Introduction On January 8, 1999 the Supreme Court of. Virginia announced. Pulliam v. Coastal Emergency Services, which reaffirmed its seminal decision, Etheridge v. Medical Center Hospitals, 237 Va. 87, 376 S.E. 2d 525 (1989), upholding the constitutionality of the medical malpractice cap which, by statute, limits the amount of recovery in medical negligence cases to $1 million. Va. Code Legislative reaction to this decision remains uncertain as of this writing.! While Pulliam has reaffirmed Etheridge, the opinion leaves unresolved perhaps the most compelling constitutional challenge to the medical malpractice cap: whether the Supreme Court, if presented with a properly-prepared trial record, would find the cap violative of Virginia's constitutional prohibition of special legislation? Background Elnora R. Pulliam, a forty-one year old elementary school teacher, died at Southside Regional Medical Center in Petersburg after Thomas A. DiGiovanna, M.D., an emergency physician, sent her home from the hospital without ordering chest x-rays or prescribing antibiotics. Shortly after leaving the hospital, Ms. Pulliam died from group A streptococcal pneumonia and septicemia. A Petersburg Circuit Court jury awarded her family a $2 million judgment, which Judge James A. Dalton reduced to $1 million consistent with the Virginia statutory cap on medical malpractice awards. On appeal the plaintiff argued that the medical malpractice cap violated the Virginia Constitution's due process guaranty, jury trial guaranty, separation of powers doctrine, prohibitions against special legislation and equal protectl~ r}-o-h-n-.w-.-. -P-r-~s-ch-e-r-~-n-d-La-ta-n-e-w;-a-re-B-ro-w-n--ar-e-a-tt-o-r-ne-y~s practtcmg wtth Brett) Drescher & Breit) Norfolk) VA. LITIGATION NEWS tion guaranty, as well as certain parallel provisions of the federal Constitution. The Supreme Court considered and rejected each of these arguments and again upheld the statute's constitutionality. Although the Court concluded that the medical malpractice cap was not unconstitutional, the majority opinion declined to consider two of the plaintiff's arguments urging that the malpractice cap constituted impermissible special legislation, not because they lacked merit, but because the plaintiff had failed to properly raise them at trial: The difficulty with these two arguments is that they first surfaced during oral argument before this Court. They do not app,ear i~ ~he record below, in the plaintiff s p~tition for appeal, or in his appellate bnefs. Consequently we will not consider them. Pulliam v. Coastal Emergency Services, No , slip op. at 18 (Va. 1999) (citing Rule 5 :25 of the Rules of the Supreme Court of Virginia.) Accordingly, the Pulliam decision does not address whether a properly-preserved argument and developed trial record regarding special legislation would result in a finding that the medical malpractice cap is unconstitutional. However, a careful reading of the concurrence authored by Justice Hassell, to which Justices Keenan and Koontz joined, suggests that had the record before the Court contained the information that was before the General Assembly when it' enacted the medical malpractice cap, the statute may have been. successfully challenged as speciallegislation.2 Special Legislation Article IV Section 14 of the Constitution of Virginia provides that "[ t]he General Assembly shall not enact any local, special or private law... [g]ranting to any private corporation, association or individual any special or exclusive right, privilege or immunity." The Supreme Court first addressed the issue of whether the medical malpractice cap violated the Constitution's prohibition against special legislation in Etheridge, restating the following well-established legal standards regarding special legislation: Laws may be made to apply to a class only, and that class may be in point of fact a small one, provided the classification itself Malpractice Cap - cont)d on page 14 9

10 LITIGATION NEWS SPRING 1999 Bowers contjdjrom page 7 on an unreasonable interpretation of the evidence or a failure to consider elements of damages under the court's instructions. In the second case considered by the Court, Williams v. Simmons, Record No , the plaintiff claimed $1, in medical bills and lost wages. The jury returned a verdict in the amount of the lost wages, $ In setting aside the jury's' verdict, the trial court, citing Bowers, determined that the jury improperly failed to consider all com-, pensable elements (pain, suffering, inconvenience and medical bills). The Court again concluded that the trial court misapplied Bowers, stating that "[ t]he amount of the jury verdict, although equivalent to the lost wages claimed, does not of itself justify the inference that the jury did not consider all elements of the damage instruction." The Court determined that "the testimony regarding the seriousness of the injuries and the damages suffered by the plaintiff as a result of the accident was subject to conflicting interpretations." Mter reviewing the evidence of plaintiff's injuries, the Court concluded that "[ w ]hile one may speculate as to the components of the damage amount awarded on this conflicting evidence, such speculation is not sufficient to warrant the conclusion, as a matter of law, that the jury did not consider all the elements of damage in reaching the amount of its verdict." (citing Doe v. West and Richardson v. Braxton-Bailey, 257 Va. _,_,_S.E.2d_,_(1999). In the third appeal, Walker v. Creasy, Record No , the jury returned a verdict of $2,700.00, which was approximately $86.00 over the specials claimed. The trial court set aside the jury's verdict, relying on Bowers, finding that the jury had simply rounded up the claimed specials to the next one hundred dollars. The Court held that the facts of the case "do not bring it within the ambit of the narrow rule promulgated in Bowers, and the trial court erred in setting aside the verdict on that basis." The Court reinstated the jury's $2, verdict. Reiterating its decision, the Court concluded by stating, [ w]hen the jury verdict is not in the exact amount of all the special damages claimed, Bowers is not applicable, and the trial court must review the evidence under traditional principles relating to the adequacy of jury verdicts. See e.g., Bradner v. Mitchell, 234 Va. 483, 362 S.E.2d 718 (1987), and cases cited therein. Thus, the purview of Bowers has been significantly limited. A personal injury jury verdict is no longer subject to being set aside based on Bowers unless that verdict is in the exact amount of the full amount of claimed specials. While Bowers does not render suspect a verdict which is less' than, slightly more than or for an exact amount of only one medical bill claimed, such verdicts remain subject to the trial court's traditional discretionary analysis when there are assertions of excessiveness and insufficiency. 10

11 SPRING 1999 Stress Relief for Lawyers by Rick Beale As I sit down to write this column on the subject.of stress relief for lawyers, I am hoping that doing so will provide some immediate relief for the author. It is Sunday morning August 16, and I plan to leave for vacation in one week. The list of items to be accomplished before I go is imponderable. Nevertheless, I experience some temporary relief when imagining the anxiety being experienced' by President Clinton at this moment as he contemplates his testimony before the grand jury tomorrow regarding his relationship with "that woman." Further reflection suggests that this type of comparative rationalization is not much of an answer for the problem of dealing with stress in the lives of lawyers today. I make no claim of being an expert on the subject of stress relief. Fortunately, the business of.- stress control is a booming industry, and reams of.?{il material are available on the subject from the. American Bar Association, Virginia State Bar and elsewhere. Let me say from the outset that nothing set forth within this column approaches anything close to an original thought (hopefully disclosure will get me out of the type of dilemma recently experienced by Mike Barnicle of the Boston Globe). If I can pass on some wisdom of others on the subject, I will have met my goal for this discourse. What is stress, anyway? It is your physical and emotional response toa situation. It is necessary, to a degree. If you did not experience some stress, you wouldn't bother to get out of bed in the morning and meet the challenges of the day. The problem comes when the feeling of positive stress crosses the line into the n'egative zone. Negative stress affects your immune and nervous systems, heart functions and metabolism and may lead to illness or an inability to recover from an illness. It is often a precursor to depression.. In a 1991 university study, it was found that of ~11 occupations, lawyers rank number one on the t.:v Rick Beale is the president of the Virginia Beach Bar Association. LITIGATION NEWS list of most depressed. A North Carolina Bar Association survey that same year found that 26% of the bar members responding exhibited signs of clinical depression, and 12% said they contemplated suicide at least once a month. Burnout and dissatisfaction with the profession are also on the rise. A recent poll of the California Bar indicated that 70% of those lawyers responding would start a new career outside the law if they could, and 73% said they did not want their children to become lawyers. These facts are disturbing. A complete analysis of these studies is beyond the scope of this article, but hopefully a few observations will provide some help to those who have not responded to the following classic signs of stress: Problems eating or sleeping Fatigue Increased use of alcohol and drugs Problems making decisions; increased procrastination Inability to concentrate Becoming anxious or confused over unimportant events Continued frustration or anger over minor annoyances A feeling of worthlessness or other forms of negative thinking Problems with memory and becoming easily distracted Close acquaintances are telling you that you appear to be stressed out. Lawyers are sitting ducks for stress, burnout or whatever label you want to put on it for any number of reasons, including: Emphasis on being aggressive and emotion'ally detached advocates Training that emphasizes finding the negative or worst case in any situation A proclivity to assume our client's burdens A sapping of energy from the high demands placed on the lawyer to stay focused at all times Stress Relief ~ contjd on page 16 11

12 LITIGATION NEWS, SPRING 1999 Recent Law Review Articles by R. Lee Livingston The following are recently published Law Review articles that may prove useful to you in your practice: Agency Deanne M. Mosley and William C. Walter. The Significance of the Classification of Employment Relationships in Determining Exposure to Liability. 67 MISS. L.J (1998). Contracts David A. Grooters, Comment. Express Employment Contracts in a Close Corporation After Nagy v. Riblet Products, Inc.: to Put Them in Writing or Not to Put Them in Writing, That is the Question. 24 J. CORP. L (1998). Courts Kent D. Syverud. ADR and the Decline of the American Civil Jury. 44 UCLA L. REv (1997). A.C. Johnstone, Comment. Peremptory Pragmatism: Religion and the Administration of the Batson Rule U. CHI. LEGAL F Charles W. Carpenter, Jr. The No-citation Rule for Unpublished Opinions: Do the Ends of Expediency for Overloaded Appellate Courts Justify the Means of Secrecy? 50 S.C. L. REv (1998). Evidence Laura E. Boeschen, Bruce D. Sales and Mary P. Koss. Rape Trauma Experts in the Courtroom. 4 PSYCHOL. PUB. POL'y &: L (1998). Beth E. Bookwalter, Note. Throwing the Bath Water Out With the Baby: Wrongful Exclusion of Expert Testimony on Neonaticide Syndrome. 78 B.U. L. REv (1998). Daniel A. Cantu, Comment. When Should Federal Courts Require Psychotherapists to Testify About Their Patients? An Interpretation of Jaffee v. Redmond U. CHI. LEGAL F Cathryn M. Sadler, Note. The Application of the Attorney-Client Privilege to Communications Between Lawyers Within the Slime Firm: Evaluating... (United States v; Rowe, 96 F. 3d 1294, 9th Cir ) 30 ARIz. ST. L.J (1998). Bart S. Wilhoit, Comment. Spoliation of Evidence: the Viability of Four Emerging Torts. 46 UCLA L. REv (1998). Nissa M. Ricafort, Note. The Supreme Court's Dramatic Shift Supports the Recognition of a Federal Parent-Child Privilege. (Jaffe v. Redmond, 518 U.S. 1, 1996.) 32 IND. L. REv (1998). Marilyn J. Ireland. Deconstructing Hearsay's Structure: Toward a Witness Recollection Definition of Hearsay. 43 VILL. L. REv (1998). Jay E. Rivlin, Note. Recognizing An Independent Tort(} Action Will Spoil a Spoliator's Splendor. 26 HOFSTRA L. REv (1998). Insurance Law Brent R. Lindahl, Comment. Insurance Coverage for An Innocent Co-Insured Spouse. 23. WM. MITCHELL L. REv (1997). Jurisdiction Christopher E. Friel, Comment. Downloading a Defendant: Is Categorizing Internet Contracts a Departure From the Minimum Contacts Test? 4 ROGER WMS. U. L. REv (1998). Medical Jurisprudence Amy M. Jurevic. When Technology and Health Care Collide: Issues With Electronic Medical Records and Electronic Mail. 66 UMKC L. REv (1998). Phyllis Coleman and Ronald A. Shellow. Extending Physician's Standard of Care to Non- Physician{ Prescribers: The Rx for Protecting Patients. 35 IDAHO L. '. REv (1998). 12

13 SPRING 1999 LITIGATION NEWS Law Review Articles (cont'd), Medical Jurisprudence (cont'd) Frank J. Vandall. An Examination of the Duty Issue in Health Care Litigation: Should HMO)s be Liable in Tort for ((Medical Necessity)) Decisions? 71 TEMP. L. REv (1998). Andrew R. Klein. Rethinking Medical Monitoring. 64 BROOK L. REv (1998). Practice and Procedure Kenneth R. Margolis. Responding to the Value Imperative: Learning to Create Value in the Attorney Client Relationship. 5 CLIN. L. REv (1998). Matthew B. Free, Note. Torts: The Oklahoma Supreme Court Recognizes the Tort of Intentional Infliction of Severe Emotional Distress in a New Context.' (Kraszewski v. Baptist Medical Center of Oklahoma,' 916 P.2d 241, Okla ) 51 OKlA. L. REv (1998). Lisa A. Hanson, Case Note. Dramshop Suit Can Proceed Without Intoxicated Defendant: The Michigan Supreme Court Expands the Exception to the ((Name and Retain)) Provision... (Green v. Wilson, 565 N.W.2d 813, Mich ) 15 T.M. COOLEY L. REv (1998). ~ Mandee Broussard Baumer, Comment. Eminent Domain: Should an Expert)s Appraisal Report be Subject to Pretrial Discovery? 67 MISS. L. J (1998).,,\I~ Hon. Larry A. Kl~in. Allowing. Impr~per At;gument of.~ Counsel to be Ratsed for the Ftrst Ttme on Appeal as Fundamental Error: Are Florida Courts Throwing Out the Baby With the Bath Water? 26 FlA. ST. U. L. REv (1998). Remedies Heidi Albers, Note. Preliminary Injunction of Arbitration Proceedings. (Six Clinics Holding Corporation, II v. Cafcomp Systems, Inc., 119 F.3d 393, 6th Cir ) 1998 J. DISP. REsoL (1998). Patrick D. Wilson, Case Note. Punitive Damages May be Awarded for Bank)s Wrongful Charge-Back. (Gordon v. Planters & Merchants Bancshares, 935 S.W. 2d 544, Ark ) 51 ARK. L. REv (1998). Torts Michael J. Polelle. Best v. Taylor Machine Works: A Resounding «No)) to the Tort Reform Act. 22 S. ILL. u. L.J (1998). 13

14 LITIGATION NEWS SPRING 1999 Malpractice Cap cont'd from page 9 be a reasonable and not an arbitrary one, and the law be made to apply to all persons belonging to the class without distinction. Moreover, if the classification bears a reasonable and substantial relation to the object sought to be accomplished by the legislation, it will survive a special laws constitutional challenge. Id. at 102 (internal quotations omitted). Etheridge upheld the medical malpractice cap concluding that the classification was not arbitrary, that it applied to all persons belonging to the class without distinction and that it bore a reasonable and substantial relation to the object sought to be accomplished. In reaching this conclusion, the Court unequivocally accepted the legislation's assertion that increasing medical malpractice claims necessitated a limit on recoveries by injured plaintiffs. The plaintiff in Pulliam advanced two arguments in support of his special legislation challenge to the medical malpractice cap. The first argument, based on the dissent in Fairfax Hospital System, Inc. v. Nevitt, 249 Va. 591,457 S.B. 2d 10 (1995), urged that the medical malpractice cap, when applied in conjunction with the release statute, has the effect of making the cap applicable to those other than healthcare providers where the plaintiff settles with a non healthcare defendant before verdict. Such a result is, of course, "foreign to [the cap's] purpose and consequent constitutional justification of fostering affordable medical malpractice insurance." Id. at 600, 457 S.B. 2d at 15. The second and more compelling argument was based upon the information actually before the legislature at the time the medical, malpr:actice cap was enacted. Prior to the enactment of the cap the General Assembly requested that the State Corporation Commission ("SeC") conduct a study of Virginia's medical malpractice environment. The resulting sec report prepared in 1975, entitled Medical Malpractice Insurance in Virginia, calls into doubt the legislature's conclusion that increasing medical malpractice claims necessitated a limit on recoveries by injured plaintiffs. See, Bureau of Insurance, State Corporation Commission, Medical Malpractice in Virginia, the Scope and Severity of the Problem and Alternative 14 Solutions (hereirtafter "sec Report"). The plain- tiff contended that this report established that the., cap does not bear a reasonable and substantial relation to the objects sought to be accomplished by the statute which, therefore, constituted special legislation. In fact, the SCC Report concluded that "[ e ]xisting evidence indicates that several of the more popular solutions (e.g. a $500,000 limit on the amount recovered) will not reduce the cost of malpractice premiums in a jurisdiction like Virginia where awards or settlements seldom exceed $250,000." Id. at 92. The three-justice Pulliam concurrence suggests that the record needed to establish that the medical malpractice cap does not bear a reasonable and substantial relation to the objects sought to be accomplished by the legislation. Justice Hassell noted (1) that the plaintiff failed to establish that the cap's limitation of damages was unsupported by any reasonably conceivable state of facts at the time the statute was enacted; and (2) that the plaintiff presented no evidence to rebut the presumption that the legislative classification limiting damages was reasonable. Pulliam at 39.. Due process requires that legislation bear a ~ rational relationship to a proper state purpose. The Court must inquire whether there was any basis for the legislature reasonably to believe that the legislation would actually further its stated purpose. The courts of other states have examined the facts before their legislatures to determine whether an asserted malpractice insurance "crisis" actually existed in those states. See e.g., Jones v. State Board, 97 I d a h , P. 2 d (Ka n ) ; Arneson v. Olson, 270 N.W. 2d 125 (N.D. 1978). In the preamble to the Medical Malpractice Act, the legislature asserts that it has become so difficult for health care providers to obtain insurance at affordable rates that the public health, safety and welfare were being adversely affected. The Court in Etheridge did not inquire into whether there was a rational relationship between the cap on damages and maintaining adequate health care services in Virginia but simply deferred to the legislative conclusion. The analysis in Pulliam went no further because the record on this issue had not been developed at trial. In order for the Supreme Court to even con- ~ sider whether the medical malpractice cap constitutes special legislation, the record before it must

15 SPRING 1999 'f." ~\ contain su~ficient i~formation to allow the Court (~.,:). to make Its own mdependent assessment of '.. whether there existed a rational basis for the legislature to believe that the statute was reasonably tailored to accomplish its stated objective. Accordingly, the record must contain the SCC Report and other information that was before the General Assembly prior to the enactment of the medical malpractice cap. The SCC Report, sought and received by the General Assembly, as well as testimony provided by Virginia's Department of Insurance, clearly established that no crisis then existed in Virginia. The Virginia Insurance Commissioner and Assistant Insurance Commissioner both testified before the General Assembly that liability insurance was readily available to Virginia physicians. See, Edward W. Taylor and William G. Shields, The Limitation on Recovery in Medical Negligence Cases in Vi1l]inia, 16 U. Rich L. Rev. 799 (1982). Moreover, St. Paul (then the state's primary medical malpractice insurer) had assured that it would continue to provide coverage for members of the Medical Society and no difficulty in obtaining insurance was antici-.:~j~) pated. Id. Insurance CommissiQne: John Da~ told '. House and Senate Courts of Justice Committees that there were very few problems related to the availability of medical malpractice insurance in the Commonwealth. John Day, Medical Malpractice Insurance: Insurance Commissioner Proposes New Concept, Va. Bar News, Nov.-Dec. 1975, at 19. He concluded that the problems experienced in other parts of the country did not exist in Virginia and were not expected in the foreseeable future. Id. Virginia's Assistant Commissioner of Insurance testified that there was never any insurance availability problem with respect to Virginia physicians. See, M. Margaret Branham Kimmel, The Constitutional Attack on Virginia)s Medical Malpractice Cap: Equal Protection and the Right to Jury Trial, 22 U. Rich. L. Rev. 95, 96 n.6 (1987). He said that any problem in $ concerned availability for hospitals for basic limits of up to $300,000. Id. Resident General Counsel for St. Paul, Warren Bessler, testified before the SCC on Mar. 26, 1976 that there was never any lack of availability of coverage for limits to over $750,000, (.) even for hospitals. Id. at 96 n.7. It is difficult to comprehend how, in the face of this information, the General Assembly concluded that a crisis exist- LITIGATION NEWS ed justifying the enactment of a legislative cap on malpractice recovery. Unfortunately, the Court has never been presented with a record sufficiently developed to allow it to examine the legislature's basis for its enactment of this legislation. If such a recoid is developed, the court has left open the possibility that the medical malpractice cap might yet be found to be unconstitutional. Conclusion Unfortunately, one of the most compelling constitutional challenges to the medical malpractice cap has yet to be fully addressed by the Virginia Supreme Court. The Supreme Court may be willing to reconsider the medical malpractice cap if a case is appealed with an appropriate record demonstrating facts the legislature had before it in 1976 when Senate Bill 115 was introduced. In reality, those facts.establish that the medical malpractice cap was the product of special interest lobbying rather than a rational reaction to a legitimate crisis related to the availability and affordability of medical malpractice insurance in Virginia. 1 Senate Bill 1230 has been approved by the Senate and currently is under consideration by the House Courts of Justice Committee as of this publication This bill raises the medical malpractice cap from $1 million to $1.5 million, exclusive of interest, The $1 million limit will increase by $50,000 annually until July 1, 2009, The annual increase will apply only to causes of action arising after July 1 of that year, 2 Justice Kinser concurred separately commenting that although she agreed with the majority's dedsion that the malpractice cap did not violate the Constitution, it was her strong opinion that the malpractice cap worked the greatest hardship on those who are the most severely injured, She expressed her views separately with the hope that the General Assembly would adopt a more equitable method to insure the availability of health care. 15

16 LITIGATION NEWS' SPIUNG 1999 Stress Relief cont)djrom page 11 Our peers announced admiration of the "workaholic" approach The pressure of the billable hour quota The tendency of lawyers to be intense perfectionists Any of this sound like anyone you know? If you think about it for a moment you can probably add several more itemsto this list. The experts tell us that even though lawyers are ideal candidates to experience stress and burnout, there are measures we can take in response. Here are a few, some traditional and some a little new age: Exercise regularly (my personal favorite) - some exercise is better than none, even if it's just walking up the stairs rather than taking the elevator. Get the sleep your body requires - a midday "power nap" may help (it worked for Winston Churchill and John Kennedy). Eat balanced meals, limit alcohol and caffeine, avoid drugs. Insist on taking time for yourself to relax every day, even if you have to schedule it on your calendar -, meditation and visualization techniques may prove useful. Learn to live more in the present - you can learn from the past and use the future to inspire, but don't obsess on these. Think positive - self-fulfilling. negative thinking can be Accept what you cannot change. Live according to your own goals, not those of others. Get a massage (but not in the vicinity of the Navy base). Laugh more often - medical science has shown that humor has a positive effect on health (although I have to admit that all the "turning 50" jokes I've been hearing during this-my 49th-year haven't helped much). Unfortunately, our profession is, by nature, ' stressful. Mix in the fact that lawyers are the typetl of individuals who are reluctant to seek help for their personal problems, and you have a recipe for an unhealthy group of people. It is comforting to know, however, that both the American Bar Association and Virginia Bar Association have numerous publications and programs to assist those who have chronic needs as wen as those who simply want some ideas on prevention of stress. I encourage our membership to avail themselves of these resources as the need arises. If you take good care of yourself first and foremost, both you and your clients will be better served. 16

17 SPRING 1999 LITIGATION NEWS Don't miss the Litigation Section program at this year's Annual Convention Lawyer Advertising: Who's Paying the Price? The program will include a summary of the law and ethical guidelines governing attorney advertising by Thomas E. Albro, and a lively panel discussion including attorneys who advertise and those who are opposed to advertising. Friday, June 18, :45 AM - 12:30 PM 17

18 LITIGATION NEWS SPruNG 1999 Virginia State Bar Litigation Section Board of Governors. ( '''.~.'', i Jeffrey Hugh Gray Chair Willcox & Savage, P.C. One Columbus Center, Suite 1010 P.O. Box Virginia Beach, VA / Fax: 757/ Susan Carol Armstrong Vice Chair Mays & Valentine, L.L.P. P.O. Box~1122 Richmond, VA / Fax: 804/ Glenn Walthall Pulley Secretary Clement & Wheatley, P.C. 549 Main Street P.O. Box 8200 Danville, VA / Fax: 804/ John J. Sabourin, Jr. Immediate Past Chair Hazel & Thomas, P.C Fairview Park Drive, Suite 1400 P.O. Box Falls Church, VA / Fax: 703/ Kevin W. Grierson Chair - Litigation YLC Jones, Blechman, Woltz & Kelly, P.C. 600 Thimble Shoals Boulevard P.O. Box Newport News, VA / Fax: 757/ R. Lee Livingston Newsletter Editor Tremblay & Smith, L.L.P East High Street P.O. Box 1585 Charlottesville, VA / Fax: 804/ Melissa Warner Scoggins Chair - Appellate Practice Subcommittee Attorney at Law P.O. Box 9035 Chesapeake, VA / Fax: 757/ Thomas E. Albro Tremblay & Smith, L.L.P East High Street P.O. Box 1585 Charlottesville, va / Fax: 804/ Ronald M. Ayers Johnson, Ayers & Matthews 302 Second Street, S.W. P.O. Box 2200 Roanoke, VA / Fax: 540/ Paul Markham Black Wetherington Melchionna, et al. 310 First Street, Suite 1100 Roanoke, VA / Fax: 540/ Jacqueline G. Epps Morris and Morris, P.C. P.O. Box 30 Richmond, VA / Fax: 804/ Frank Kenneth Friedman Woods, Rogers & Hazlegrove, PLC 10 St. Jefferson Street, Suite 1400 P.O. Box Roanoke, VA / Fax: 540/ James A. Gorry, III DMZ Law Group, L.L.P. 300 East Main Street, 13th Floor Norfolk, VA / Fax: 757/ Robert T. Hall Hall & Sickels Sunset Hills Road, Suite 150 Reston, VA / Fax: 703/ Thomas Moore Lawson 20 South Cameron Street, Suite 301 Winchester, VA / Fax: 540/ Hon. Mosby Garland Perrow III Ex-Officio Judicial Lynchburg Circuit Court Twenty-Fourth Judicial Circuit 900 Court Street Lynchburg, VA M/ Fax: 804/ Hon. Lydia Calvert Taylor Ex-Officio Judicial Norfolk Circuit Court Fourth Judicial Circuit 100 St. Paul's Boulevard Norfolk, VA / Fax: 757/ Patricia Sliger Liaison Virginia State Bar 707 East Main Street, Suite 1500 Richmond, VA / Fax: 804/ (...; ;, '"-,,.., 18

19 SPRING 1999 Virginia State Bar Litigation Section Young Lawyers Committee LITIGATION NEWS Kevin W. Grierson Chair Jones, Blechman, Woltz & Kelly, P.C. 600 Thimble Shoals Boulevard P.O. Box Newport News, VA / Fax: 757/ Jimese Pendergraft Sherrill Past Chair Assistant City Attorney City of Portsmouth, Virginia 801 Crawford Street P.O. Box 820 Portsmouth, VA / Fax: 757/ John Wilson --'\ Secretary,(._ )' Willcox & Savage 1800 NationsBank Center One Commercial Place Norfolk, VA / Fax: 757/ R. Lee Livingston Newsletter Editor Tremblay & Smith, L.L.P East High Street P.O. Box 1585 Charlottesville, VA / Fax: 804/ Candace A. Blydenburgh Mays and Valentine P.O. Box 1122 Richmond, VA / Fax: 804/ Megan E. Burns Clark & Stant, P.C. One Columbus Center, Suite 900 Virginia Beach, VA / Fax: 757/ David B. Carson Johnson, Ayers & Matthews P.O. Box 2200 Roanoke, VA / Fax: 540/ D. Jeffrey Coale Deputy Commonwealth's Attorney Washington County 191 Main Street Abingdon, VA / Fax: 540/ Sean Copeland Hunton & Williams Riverfront Plaza, East Tower 951 East Byrd Street Richmond, VA / Fax: 804/ Laurie Hand McGuire, Woods, Battle & Boothe, L.L.P. Tysons Corner 8280 Greensboro Drive, Suite 900 McLean, VA /71~,:5415 Fax: 703(712-50,50 Brian J. Lubkeman Roeder and Associates, P.C Greensboro Drive, Suite 601 McLean, VA / Fax: 703/ Kevin E. Martin-Gayle Stallings & Richardson, P.C. Pavilion Center, Suite 801 P.O. Box 1687 Virginia Beach, VA / Fax: 757/ Steven W. Morris LeClair Ryan 707 East Main Street, Eleventh Floor Richmond, VA / Fax: 804/ Christopher J. Robinette Tremblay & Smith, L.L.P East High Street P.O. Box 1585 Charlottesville, VA / Fax: 804/ William B. Tiller Morris & Morris, P.C. P.O. Box 30 Richmond, VA / Fax: 804/ Mark T. Williams Williams, Stillwell, Morrison, Williamson & Light 317 B Patton Street Danville, VA / Fax: 804/

20 LITIGATION NEWS SPItiNG Q]IQ]IQ]IQ]IQ]IQ]IQ]IQ]IQ]IQ]IQ]IQ]IQ]IQ]IQ]IQ]IQ]IQ]IQ]IQ]IQ]IQ]IQ]IQ]IQ]Ior IQ] oc IQ] Publish Your Work (gj 101 Litigation News welcomes the submission of litigation-oriented articles. If you have researched or argued an interesting point of Virginia law, or have practice tips to share, consider condensing them into an article for Litigation News. The contact for submission of these articles is: R. Lee Livingston, Esq nl.0 Tremblay & Smith, L.L.P. I[jl I.!.;!I East High Street I..!..!J IQ] PO Box 1585 IQ] IQ] Charlottesville, VA IQ] Inl 804/ IA1 a.q fax 804/ ibl 101 IQ]. (gj 1Q]1Q]1Q]1Q]1Q]1Q]1Q]1Q]1Q]1Q]1Q]1Q](gJ(gJ(gJ(gJ(gJ(gJIQ]IQ]IQ](gJ(gJIQ](gJ(gJ (;. ~LITIGATION NEWS Virginia State Bar Eighth & Main Building 707 E. Main Street, Suite 1500 Richmond, VA Bulk Rate U.S. Postage PAID Richmond, VA Permit No. 709 Ii, I j 1,,1 i 1,.. 11 J.. I.., 1,1" I,ll, " III"" II,,1,1" 1,1..,,

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