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Highway Safety/Roadside Hazard and Motor Vehicle Collision with mild traumatic brain injury with pervasive short term memory impairment.

Aug 02, 2011 Article Source:

Date: 06-19-2011
Case Style: Confidential
Case Number:
Court: Circuit Court, Fairfax County, Virginia
Plaintiff's Attorney: Peter S. Everett, Mark A. Towery and Chidi I. James, Blankingship & Keith, P.C., Fairfax, Virginia
Defendant's Attorney:
Description: Highway Safety/Roadside Hazard and Motor Vehicle Collision wit mild traumatic brain injury with pervasive short term memory impairment.

Past Medical Bills of $35,000+; No Past lost wages; claims made for reduction in earning capacity and future medical and other expenses, both contested.

The collision occurred as the plaintiff was driving northbound on Dumfries Road, a divided primary highway with a speed limit of fifty-five miles per hour. A landscaping company truck pulled out from a side road and the two vehicles collided.

Each driver complained that his view of the other vehicle was obstructed by a dump truck and other construction equipment on the roadside south of the intersection.

The construction work on the roadside was undertaken pursuant to a VDOT land use permit. The construction company’s principal was a residential developer that had previously obtained the permit to install several hundred feet of sanitary force main along the east shoulder of the right-of-way. Having no employees of its own, it had hired the construction contractor to perform the work. Both the developer and the contractor were experienced with VDOT-permitted projects, and the developer had an onsite representative monitoring the project each day.

There was no written maintenance-of-traffic plan for the project. The VDOT permit required the permittee to comply with the signage and flagging requirements of the Manual on Uniform Traffic Control Devices and the Virginia Work Area Protection Manual. It required the use of signs, flagmen, and other protective devices such as barricades and lights as needed for protection of traffic and workers. The contract between the developer and its contractor, however, did not require the use of flagmen.

All members of the pipe laying crew had flagging certification cards. The contractor testified in deposition that its flagmen were assigned to assist the dump truck in moving on and off the road from the work area, and were not prepared to control traffic on Dumfries Road. Once the dump truck was in position on the shoulder and being loaded, the flagman was expected to stand there and wait until he had to do something, “because that is what flagmen do.” In short, the defendants had flagmen at the scene capable of helping motorists but elected not to do so.

The plaintiff asserted a negligence claim against the other driver and his employer, and negligence and public nuisance claims against the construction company and the developer. The developer denied liability for the negligence of its independent contractor, and along with the contractor it denied the creation of a nuisance. All defendants denied negligence in causing the collision and alleged that the plaintiff was contributorily negligent. In deposition testimony the contractor’s foreman, who witnessed the crash, effectively exonerated the plaintiff from any claim of contributory negligence. If the case had gone to trial, the plaintiff would have presented evidence that the roadside work area constituted a nuisance; that the location, nature and character of the work performed on the roadside posed risks of harm to motorists that were peculiar to the work being performed and that called for special precautions to protect against the harm, including the use of flagmen; and that the developer’s onsite representative should have recognized the need for flagmen and required their use. Admissibility of evidence that the contractor had complied with the requirements of the Virginia Work Area Protection Manual and that the manual did not require the use of flagmen would have been the subject of a motion in limine.

The plaintiff, a 52 year old executive, returned to work part time a week after the wreck. He resumed “full time” work after a year, but frequently had to leave work early with headaches. Colleagues on his management team made excellent lay witnesses, and in his supervisor’s deposition she testified that before the accident he was one of the smartest individuals she had known, but afterwards she had to implement new polices to address his memory impairments for new information.

His adult children confirmed significant changes in his emotional state, and memory. His post TBI neuropsych testing reflected a patient with superior pre-morbid IQ, but dramatically impaired memory for new learning. The defense argued that he had suffered no brain injury, as evidenced by his questionable loss of consciousness, his ability to move his car out of the roadway after the crash, his ability to converse at the scene, his refusal of medical treatment and his apparent ability to continue working.

Outcome: $1,600,000 (Mediated through McCammon Mediation)

Plaintiff's Experts:
Ted W. Kalriess, P.E., C.C.M. Engineer, Construction Manager, Paeonian Springs, Virginia (standard of care applicable to contractor and developer)
Dr. Peter Bernad, Neurology, Richmond, Virginia (nature and extent of brain injury, cognitive deficits, Post Concussion Syndrome)
Frank Butts, PhD, Audiologist, Richmond, Virginia (nature and extent of central auditory processing disorder)
Sharon Reavis, Life Care Planner/TBI Rehabilitation Expert, Glen Allen, Virginia (future medical expenses and other care costs)
Dr. Will Cobb, Economist, Charleston, West Virginia (present value of lost earnings and future care costs)

Defendant's Experts:
Dr. Joseph Novello, Psychiatrist, Washington, D.C. (mild depression only)
William Ling, PhD, Neuropsychologist, Ashburn Virginia (neuropsychological test data do not show cognitive impairment from TBI)
Dr. Donald Hope, Neurosurgeon, Fairfax, Virginia (no traumatic brain injury)
Dr. Charles Citrin, Radiologist, Bethesda, Maryland (no positive imaging showing TBI)

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