BMHJ Blog: Legal Information, Resources, & News: Personal Injury / Wrongful Death Defense

Opposing Motions to Quash Medical Record Subpoenas As Overly Broad

Brendan Mullarkey, Esquire
December 3rd, 2013
By: Brendan Mullarkey, Esquire

In a Case of Physical and Mental Suffering, a Subpoena Duces Tecum for Medical Records should not be Quashed or Modified as to Length of Years

Recently, there has been a push to limit the scope of medical records subpoenas in personal injury cases. Attorneys rely on the “good cause” balancing test of Va. Code § 32.1-127.1:03(H) to say that a subpoena for medical records from birth to the present is too broad. However, the case law in conjunction with the Virginia Code shows that in a case involving physical and mental suffering, the broad scope of a subpoena duces tecum for medical records is appropriate.

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Virginia: Where the Defense of Contributory Negligence is Still Alive and Kicking

October 4th, 2013
By: Michelle Hundley, Esquire

Virginia – Where the Defense of Contributory Negligence is Alive and Kicking

The issue of whether and how Virginia should move from a contributory negligence state to a comparative negligence state remains hotly contested between plaintiff and defense counsel in the Virginia Bar. The Virginia General Assembly last decided the issue of comparative negligence in 1984 as House Bill 107. However, the bill was killed in the senate committee without reaching a floor vote in the Senate. Since that time, the Boyd Graves Conference has addressed the issue on numerous occasions. In 2012, John McGavin, Esq., partner at Bancroft, McGavin, Horvath and Judkins, PC, led the Boyd Graves Committee on this issue. The committee submitted a comprehensive report, however, a consensus was not met. The numerous variables that go into reaching such a consensus are described below.

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New Imaging Studies for Brain Injuries: Are They Peer Reviewed or Scientifically Reliable?

January 3rd, 2011
By: Bancroft McGavin Horvath & Judkins

The Virginia Lawyers Weekly had a blog and article posted recently regarding plaintiff’s bar advocating new imaging tests to prove brain injuries. The article quoted John D. McGavin, Esquire on behalf of the defense who advised that these tests should still be challenged and questioned.  He was quoted as follows:

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Failure to Properly Serve Incarcerated Convict Within One Year of When the Suit Was Filed Results in Dismissal of Lawsuit With Prejudice

Steven W. Bancroft, Esquire
August 23rd, 2010
By: Steven W. Bancroft, Esquire and Wesley D. Allen, Esquire

In a recent wrongful death case, the defendant was an incarcerated convict, the Arlington County Circuit Court dismissed, with prejudice, a $2 million compensatory claim, with an additional punitive damages claim, finding the plaintiff failed to properly serve the incarcerated defendant within one year of when the suit was filed.

This case arose out of an automobile/motorcycle accident with alcohol involved that resulted in the death of the decedent. As a result, the defendant was convicted of a felony and sentenced to a 20-year term, 5 years suspended. The Administrator of the Estate of the decedent filed an initial wrongful death suit against the defendant which it later non-suited. In the initial suit, the defendant was represented by Steven W. Bancroft, who had entered an appearance on his behalf.

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Motion to Dismiss when Amount Sued for is Increased

Melissa H. Katz, Esquire
January 15th, 2010
By: Melissa H. Katz, Esquire

Viability of Motion to Dismiss when new case filed with increase in amount sued for

There is now a conflict in circuit court opinions regarding whether a plaintiff brings a new action as a result of increasing the amount sued for after a nonsuit. Last summer, Judge James H. Chamblin of the Circuit Court of Loudoun County dismissed plaintiff’s action after she increased her ad damnum to $500,000.00 after the nonsuit of her original action in which she sought only $325,000.00. Judge Chamblin agreed with the defendant’s position that raising the amount sought makes it a new case which is subject to dismissal if the statute of limitation period has expired. The plaintiff appealed this decision to the Supreme Court of Virginia and filed her Petition for Appeal in December 2009. See Spear v. MWATA, Record No. 092451. Oral argument for a writ should occur sometime this Spring.

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This blog and the information provided has been prepared by Bancroft, McGavin, Horvath & Judkins, P.C. (“BMHJ”) for information purposes only and is not intended nor to be construed as legal advice. This blog may contain the opinions of the members and associates of this firm on various legal issues and is not legal advice. Read More