BMHJ Blog: Legal Information, Resources, & News

The DSM – 5: Will It Impact Litigation?

Melissa H. Katz, Esquire
July 29th, 2013
By: Melissa H. Katz, Esquire

The American Psychiatric Association’s DSM (Diagnostic and Statistical Manual of Mental Disorders) serves as a universal authority for the diagnosis of psychiatric disorders. Recently, a new version (DSM -5)(5th edition) was published; it supersedes DSM-IV-TR. The new publication is significant as it is the first since 1994. Additionally, it is likely that this latest edition will have an impact on litigation.

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Discovery: Protecting the Insured’s Recorded Statement As Material Prepared in Anticipation of Litigation

Martin Schubert, Esquire
May 18th, 2013
By: Martin Schubert, Esquire

Circuit Courts continue to split on the discovery of an insured’s own statement

The scope of discovery in Virginia is dictated by Rule 4:1 of the Rules of Supreme Court. That rule includes the commonly known exceptions of attorney work product and material prepared in anticipation of litigation. That exception continues to lead to different results when a plaintiff seeks the insured’s own statement made to the insured’s insurance carrier.

The scenario is rather simple. At some point after an accident, a potential defendant provides the insurance adjuster with a statement of the insured’s version of the events. Subsequently, a lawsuit is filed and the plaintiff seeks that same statement in discovery.

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Tort Reform in Virginia

Nicholas J. Lawrence, Esquire
March 31st, 2013
By: Nicholas J. Lawrence, Esquire

Two bills involving tort reform have recently passed the Virginia General Assembly, and are expected to be become law. One addresses the use of discovery depositions in support of a motion for summary judgment, and the other addresses the award of expert witness fees when a nonsuit is taken shortly before trial.

House Bill 1708 amends Va. Code § 8.01-420 to allow limited use of discovery depositions under some circumstances in support of a motion for summary judgment. The amendment clarifies the statute to allow summary judgment to be based on requests for admission that are in turn based on deposition testimony, so long as the deposition testimony is not referenced in the request for admission, and the party is not required to admit having testified to specific facts.

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Insurers to Give Notification of Settlement to Claimants

Melissa H. Katz, Esquire
March 19th, 2013
By: Melissa H. Katz, Esquire

Insurers Required to Notify Claimants of Settlement Payment

The Virginia General Assembly passed a law, effective July 1, 2013, which requires an insurer to send notification to the claimant that a settlement check has been sent out to his attorney in satisfaction of a third party claim. The notice must be sent within five days of the issuance of a settlement check of at least $5,000 and which arises out of an insurance policy issued or delivered in the Commonwealth. The language of the notice and the mailing procedures are set forth in the new code section listed below. The new law also holds the insurer harmless if the notice is not given or is defective.

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Funkhouser v. Ford Motor Company: Reversal by the Va. Supreme Court – the substantial similarity test is alive and well.

Julia B. Judkins, Esquire
Jennifer E. White, Esquire
January 29th, 2013
By: Julia B. Judkins, Esquire and Jennifer E. White, Esquire

On January 10, 2013, the Supreme Court of Virginia issued its opinion in the case of Funkhouser v. Ford Motor Company. The court withdrew its June 7, 2012 opinion, decided 4-3, following rehearing of the matter on the defendants’ petition.

The recent decision, authored by Justice Powell, represents the view of the formerly dissenting justices, who were joined by Justice Millette to create a new majority which upheld the circuit court’s decision excluding the plaintiff’s expert testimony regarding other Ford Windstar fires. In its 4-3 decision, the majority holds that none of the fires identified by the plaintiff’s expert were admissible to prove the manufacturer knew or had reason to know of a dangerous condition because none met the elements of the substantial similarity test. The Court clarifies that the substantial similarity test requires proof (1) that the incidents occurred under substantially the same circumstances as the incident at issue in the lawsuit and (2) that the incidents were caused by the same or similar defects. (Pages 10 and 11.) The Court reasons that ignoring the importance of a same or similar defect, as advocated by the plaintiff, “would allow a plaintiff to attribute notice and actual knowledge to a manufacturer based on the mere existence of a generalized danger; there would be no requirement for the danger to be attributable to the manufacturer in any way.” (Page 11.)

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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