Butler Williams & Skilling Blog

Cognitive Rehabilitation Helps People With Acquired Brain Injury

Researchers at the University of South Alabama and the University of North Carolina at Charlotte analyzed and updated the data found in systematic reviews of several hundred studies of cognitive rehabilitation. The researchers took those studies whose samples and methods were most amenable to rigorous statistical techniques and documented the extent to which various treatments improve the language, attention, memory and other cognitive problems that appear after acquired brain injury.

The meta-analysis examined 97 articles, comprising 115 studied treatment samples and 45 control samples. These samples collectively included 2,014 individuals who underwent cognitive rehabilitation after brain injury and 870 individuals in a variety of control conditions. The authors of the initial reviews had concluded there was enough evidence to generally support the use of a variety of rehabilitative treatments. To develop specific treatment guidelines, this new analysis documented the extent to which treatment type and timing, origin of the injury, recovery level, and participant age affected the odds of success.

Given the patterns they found, the authors offered initial treatment guidelines:

• Generally, it is better to start treating patients as early as possible, rather than waiting for a more complete neurological recovery.
• Even older patients (age 55 and up) may benefit from cognitive rehabilitation, particularly if the brain injury is due to stroke.
• Clinicians should focus their efforts on direct cognitive skills training in specific cognitive domains (such as attention or visuospatial processing). More holistic, non-targeted interventions appear to be less effective.

Especially if they were treated soon after the event, language training helped older people after stroke with aphasia, problems producing and/or comprehending language. However, language training was still effective, just not as much, when it started more than a year after the stroke.

Attention training helped people with acquired brain injury and seemed to work best with younger patients less than a year after injury. It was the most specific treatment, improving nothing but attention.

Visuospatial training helped stroke patients with visuospatial neglect, the inability to respond or orient to something shown on the side opposite to the site of the injury. Visuospatial training also tended to improve performance in other cognitive domains.

Memory treatment did not produce clear results. Nor did comprehensive treatments that attempted to treat cognitive problems holistically.

The authors also found that patients treated less than a year after injury did better than those treated more than a year later.

Think Twice About Holding Your Cell Phone to Your Ear

The lead researchers believe that the findings indicate that microwave radiation from cell phones can affect the so-called blood-brain barrier. This is a barrier that protects the brain by preventing substances circulating in the blood from penetrating into the brain tissue and damaging nerve cells.  The bottom line is the rats in the experiments suffered brain damage  from the microwave radiation, and the brain damage caused memory problems.

The research team also found certain nerve damage in the form of damaged nerve cells in the cerebral cortex and in the hippocampus, the memory center of the brain.  Moreover, they have discovered alterations in the activity of a large number of genes, not in individual genes but in groups that are functionally related.

Henrietta Nittby, one of the researchers, has cell phone herself, but never holds it to her ear, using hands-free equipment instead.

Brain Injury Association of America Teams Up With Journal of Head Trauma Rehabilitation

12 Athletes Leaving Brains to Concussion Study

Tackling Head Injuries Head-on

Excluding Dr. Gordon: Part 5

The final part of this series focuses on preventing Dr. Gordon from regurgitating at trial every salacious fact he can dig up from the plaintiff's medical, employment, educational, and other records.  He is particularly fond of following up his "functional component" opinion with a list of all references in the records to depression, anxiety, illicity drug use, prescriptions for anti-depressants, anti-anxiety medications, or any other reference to psychological or psychiatric issues.  He, of course, is typically doing this in cases where the plaintiff's mental health is not even in issue.  Dr. Gordon feels free to put her mental health in issue.

Counsel must slam shut the door on Dr. Gordon's efforts to interject inadmissilbe hearsay into the trial. On January 16, 2009, the Virginia Supreme court clarified that hearsay matters of opinion and fact are to be treated the same. In Wynn v. Commonwealth, 277 Va. 92, 99-101 (2009), the Court ruled that inadmissible hearsay does not become admissible simply because it is a hearsay matter of fact routinely relied upon by experts in the field.  The Court reasoned that no litigant should be required to contend with hearsay information from her medical records because the jury cannot observe the demeanor of the speaker and the statements cannot be tested by cross-examination. Id. at 100.

Many Virginia trial courts allowed defense counsel and their experts to repeat hearsay from the plaintiff's medical records as long as they deemed the hearsay to not be hearsay matters of opinion.  Counsel should bring the Wynn decision to the trial judge's attention long before Dr. Gordon testifies. 

Excuding Dr. Gordon: Part 4

Excluding Dr. Gordon: Part 3

Excluding Dr. Gordon: Part 2

Excluding State Farm's Hired Gun

Retired orthopedic surgeon, Robert O. Gordon, M.D., State Farm's long-time hired gun in Maryland, D.C., and Northern Virginia, is apparently retiring to Williamsburg and doing record reviews and defense medical examinations in cases throughout Virginia. Dr. Gordon follows the same playbook in every case, and it goes something like this:
First, Dr. Gordon plays biomechanical engineer and tries to say either the forces from the collision were not sufficient to cause injury and/or the seat back did not break, therefore, the plaintiff could not be injured.  He divines the force of the collision from photographs and will testify that one cannot sustain a low back injury in a motor vehicle crash unless the seat back breaks.  Second, Dr. Gordon testifies that, if the plaintiff was injured in the crash, she suffered soft tissue muscle strains.  He testifies that even severe strains heal within six weeks.  Third, Dr. Gordon testifies that any complaints of pain beyond the magic six week cut-off have a functional component, i.e., the plaintiff is either malingering or has a psychological problem that makes her prone to believing she is hurt when she is not.  Dr. Gordon refuses to opine whether the plaintiff is lying/faking or crazy, but he supports his either/or speculation by repeating hearsay from the plaintiff's medical records.  Any reference to prior depression, anxiety, or use of anti-depressants will be cited by Dr. Gordon to support his insinuations.

In my opinion, the entire Gordon playbook is inadmissible.  This series of blogs will discuss how one might go about excluding Dr. Gordon's testimony.

Richmond, Va. Ranked Among Ten Deadliest Cities for Teen Auto Crashes

According to the Insurance Institute for Highway Safety, car crashes are the number one killer of American teenagers, causing more than 5,000 teen deaths every year.  Teen drivers lack experience behind the wheel.  This lack of experience combined with drinking at a New Year's party, texting or talking on the cell phone while driving, or both is often fatal.

Butler Williams is a proud sponsor of MADD Virginia.  Parents of teens should contact MADD to learn more about educating teen drivers about the danger of drinking and driving.

Virginia Amends Statute to Require Pre-litigation Disclosure Of Policy Limits In Context Of Motor Vehicle Accidents

Another Richmond Company Files for Bankruptcy

Like so many other towns and cities across the nation, the Richmond area has been hard hit by the weakened economy. Several Richmond corporate institutions have fallen prey to the softened business environment.  Companies like Land America and Circuit City who once employed thousands of Richmonders have sought bankruptcy protection or have been forced to liquidate and disappear entirely.  Unfortunately, this week we learned of yet another national company headquartered in Richmond which has been now forced to file for bankruptcy.  National discount men’s clothier S&K has filed for Chapter 11 protection. 

As the economy tightens and credit becomes more and more difficult to come by, a natural by-product will be difficulties for certain brands.  According to February 9^th Richmond Times Dispatch article, whether or not S&K owes its current predicament to its own failings or simple bad luck, remains uncertain.  What appears more certain is that the company looks to need substantial operational changes in order to be profitable.  Still more obvious is that the majority of the company’s creditors will now have to proceed before the federal bankruptcy court in Richmond if they hope to recoup monies owed them.

Renovation Cannot Come Quickly Enough for Richmond Landmark

Legal Fees: Billable Hours is Not the Only Option

At Butler Williams & Skilling, we recognize that our entrepreneurial clients are looking for a law firm that is willing to share some of the risks of commercial litigation.  Indeed, our willingness to handle a commercial litigation matter on a contigent fee, fixed fee, or blended contingent/hourly fee basis often affords the best opportunity to our clients to have their dispute litigated by a top-notch law firm.  According to the Washington Post, the current economic crisis is causing businesses, in-house counsel, and individuals to demand the same alternatives to the old billable hour structure for legal fees, including for commercial litigation matters.

Corporate legal department officials say fees to outside law firms have risen faster than energy costs, salaries and other expenditures. Hourly billing has been the subject of criticism by clients and debates by legal experts, who say they give lawyers incentive to work inefficiently. Most law firms have been slow to embrace alternative billing.

The current crisis may force those firms to change.

New efforts to jettison hourly billing are being driven by in-house corporate lawyers, who say they have grown frustrated seeing fees to outside firms soar even as they slash their own costs. They said they want more certainty in their legal budgets and worry that outside firms are spending unnecessary amounts of time on their matters.

In a recent survey conducted by the Arlington-based Corporate Executive Board, a for-profit organization that does research on best practices, 800 in-house lawyers said they spent 50 percent more last year on large outside law firms than in 2002. They said the hourly rates they paid jumped 70 percent between 1996 and 2005.  Those increases obviously cannot continue in the current market.

The Association of Corporate Counsel, which represents 23,000 in-house corporate lawyers, last month launched the "Value Challenge," an initiative aimed at spurring corporate lawyers and outside law firms to develop alternative pricing plans, including fixed rates, volume discounts and lower hourly rates blended with performance bonuses or a contingency fee component.

Most people who purchase a service want to know, "how much is this going to cost?"  In the past, the answer from those selling a legal service has been "x dollars an hour for how ever many hours we work on your case, regardless of whether the result is favorable to you."  This paradigm is no longer acceptable to many clients.  They would prefer their lawyer to either quote a fixed rate or take some of the risk, when appropriate, by taking as their fee a percentage of the recovery.  

With Rough Economy Comes Increase In Construction Litigation

As the credit markets tighten and the economy seemingly grinds to a halt, a corresponding uptick in construction litigation has resulted.  For the first half of this decade ambitious builders and developers experienced something of a golden age.  While large scale construction inevitably leads to disagreement and disputes, during this “boom” period those involved understood that delaying a project due to litigation worked to no one’s benefit.  Now, however, as those involved with a project face an uncertain future, we find that construction disputes more and more often make it all the way court.  

In the past, parties to a construction lawsuit could typically assume a settlement would be reached prior to trial, but the economic downturn has drastically altered the equation.  When the prospect of settlement no longer represents a realistic or profitable option, litigation necessarily emerges.  A recent article published in the Virginia Lawyers Weekly describes several construction lawsuit scenarios which in the past would likely have settled.  Such situations include;

            -Defective Construction

            -Construction Delays

            -Foreclosure

Certainly, there are other reasons for a construction lawsuit, especially breach of contract for nonpayment.  However, that type of suit might find its way into court even under the best economic conditions. 

Non-Solicitation Agreement During Merger Talks May Be Useless

Are Timeshare Sales Employees Entitled to Overtime Pay?

Supreme Court Reaffirms Retaliation Protection

President Obama to Sign Lilly Ledbetter Fair Pay Act of 2009 on January 29, 2009

Lilly Ledbetter Fair Pay Act Passes Senate!

WellPoint Age Discrimination Collective Action (Class) Moves Forward

Defamatory Job Evaluation Statements: Virginia Supreme Court Clarifies Actionable Defamation Cases

We all know that employers can ruin reputations by creating false impressions of poor job performance.  However, when employers mix partially true statements and opinion with false statements, some courts have been reluctant to enforce the rule that requires the statements to be viewed as a whole to discern the underlying defamatory message or content conveyed.  Now, the Virginia Supreme Court has delivered a clear message that an alleged defamatory statement must be viewed as a whole to determine the truth or falsity of the statement – and this includes the falsity created by accompanying inference and innuendo.

On January 16, 2009, the Virginia Supreme Court reiterated that damaging defamation can occur in the workplace when untrue statements are combined with partially true statements and opinion.  The Supreme Court again reviewed the case of defamatory statements made in a performance review which, when read together with all the circumstances, inferences and innuendo, were alleged to have a defamatory meaning.  The case, decided Friday, January 16, 2009 is Hyland v. Raytheon Technical Services Company, et al, Record No. 080157.  The case may be read in its entirety at http://www.courts.state.va.us/opinions/opnscvwp/1080157.pdf

In Cynthia Hyland v. Raytheon Technical Services Company, et al, the Virginia Supreme Court held that a claim for defamation is stated when one makes a false factual statement that concerns and harms a person’s reputation.  Ms. Hyland’s case arises out of defamation that occurred in the workplace.  Cynthia Hyland worked for Raytheon for about 21 years and was a senior VP and general manager of a Raytheon division when the statements which she contends were defamatory were made.  Ms. Hyland oversaw a division that bid for government contracts.  While her division lost government contract bids in 2000 and 2002, Ms. Hyland continued to receive positive performance evaluations - and was even appointed senior VP and general manager for her division and two additional units.  However, after Ms. Hyland made critical statements about the leadership style of the president, Bryan Even, in a supposedly confidential internal job assessment, she saw a dramatic change.  Apparently, Mr. Even learned of the critical comments.  Ms. Hyland’s next performance appraisal was negative and her employment was later terminated.  She filed suit for defamation.  A jury returned a verdict for $1,850,000 (including $350,000 punitive damages), based on five allegedly defamatory statements, and a judgment was entered for Ms. Hyland.  Raytheon appealed.

That judgment was reversed by the Virginia Supreme Court in a 2007 Virginia Supreme Court case, Raytheon Tech. Servs. Co. v. Hyland, 273 Va. 292 (2007) and the Supreme Court sent the case back to the trial court because 3 of the 5 statements relied on by Ms. Hyland at trial were determined to not be actionable defamation (the Supreme Court determined that 3 statements were opinion).  Because the jury considered all 5 statements in its verdict, the Supreme Court could not determine which statements the jury had relied upon: the 2 statements of defamation or the 3 statements of opinion. 

The second trip to the Supreme Court involves the trial court’s dismissal of the case.  On remand to the trial court, the Fairfax Circuit Court (the trial court) granted judgment to Raytheon, this time holding that the 2 defamatory statements contained true elements of fact and opinion and, therefore, were true - and that Ms. Hyland admitted as much.  Ms. Hyland took the position that she had not conceded this, relying on the full inferences and defamatory implications of the entire statements as a whole, and she appealed. 

Last week, handing down an opinion in its second review of this case, the Virginia Supreme Court reversed and again returned the case for trial on the 2 statements Hyland relied on as defamatory.  The Supreme Court stated that the trial court was wrong when it parsed the defamatory statements to separate factual portions and when it failed to consider the statements as a whole.  Defamation may be stated by inference, implication or insinuation.  While opinion is not considered actionable defamation, factual statements made in support of an opinion can form the basis for a defamation action.  A court may not isolate one portion of the statement from another portion of the statement to sanitize it or insulate it from a defamation claim.  A court must consider the statement as a whole.  Factual portions of an allegedly defamatory statement must not be viewed in isolation, but must be considered in view of accompanying opinion and other stated facts.  The key is what message is conveyed and whether the facts used to support the message may be proved false.  Once a court determines that an allegedly defamatory statement is capable of being proved false it is the jury’s function to evaluate the evidence presented and determine whether the plaintiff has proven that the statement is false.     

            The Virginia Supreme Court recognized the following performance evaluation statements as stating a claim for actionable defamation:

Cynthia lead [sic] [Raytheon] in the protest of the FAA’s evaluation selection process for the TSSC contract and through a difficult procurement for the TSA, both of which demanded her constant attention.  These visible losses created significant gaps in our strategic plans and in her business unit financial performance.

Cynthia and her team met their cash goals, but were significantly off plan on all other financial targets including Bookings by 25%, Sales by 11.5%, and profit by 24%.

The employer’s use of the word “significantly” did not make the statements non-actionable opinion because the factual statements used addressed Hyland’s responsibility for the losses and purportedly missing goals.  Raytheon convinced the trial judge that the case should be dismissed because, it alleged, Ms. Hyland admitted the truth of aspects of the two allegedly defamatory statements.  By improperly limiting its consideration to the separate factual portions of statements (and excluding consideration of the statements as a whole) the trial court denied Ms. Hyland the opportunity to demonstrate that the messages conveyed, “including any implications, inferences or insinuations that could reasonably be drawn from each statement,” were defamatory.  Ms. Hyland returns to Fairfax Circuit Court to have a jury determine whether her employer defamed her – under the rule of law that allegedly defamatory statements must be viewed in their entirety, as a whole, for defamatory content.

The Bottom Line:

• Virginia law protects employees from defamatory employer statements in the workplace, even in performance appraisals;

• Defamatory statements must be viewed as a whole, with all defamatory inferences and innuendo;

• Employees’ reputations are not legally subject to an employer’s whim when it mischaracterizes facts to convey that the employee has failed to perform, has cost the employer money or to otherwise falsely paint an employee as a poor performer;

• Situations where employers dramatically change position on performance to retaliate against employees for some reason are often the starting point for such false statements – this may occur when, for example, an employee has taken legally protected actions such as reporting illegal or unethical conduct by the employer, has responded honestly to an internal request for information (as it appears was the case with Ms. Hyland) or has reported sexual harassment, gender discrimination or racially based discrimination or harassment;

• Virginia trial courts should be expected to follow this clarification of defamation law where someone makes false statements to harm one’s reputation.  Under our legal system, employers should not escape the harmful result of their actions by arguing to judges that portions of their statements were true or were opinion.  Under the clear rule in Virginia, juries should be permitted to determine the falsity and reputational damage done to employees in workplace situations and in other situations involving reputational damage.

• With this case and other helpful case law, Virginia employment lawyers and civil rights lawyers can better protect employees whose reputations have been damaged by malicious defamatory statements in the workplace. 

Fixing a Systemic Problem - Discriminatory Race and Gender Pay Claims May Become Easier to Prove

On Friday, January 9, 2009, the U.S. House of Representatives passed legislation which could make proving race or gender based pay practices a little easier.  The Ledbetter Fair Pay Act and the Paycheck Fairness Act were passed by the House of Representatives as combined H.R. 11. 

This legislation, if enacted and signed into law, will overrule a hurdle to proving race or gender pay practices erected by the U.S. Supreme Court in Lilly Ledbetter v. Goodyear Tire & Rubber Co., Inc.  That 2007 U.S. Supreme Court decision erected a wall to proving such cases that meant many people receiving lesser pay than their white or male peers, would effectively, be out of court.  The Ledbetter rule states that if an employee fails to challenge the discriminatory pay practice or plan within a short time after the first notice or indication of the discriminatory pay practices, the case is untimely – and a discriminating employer is not legally responsible. 

But when was the last time an employer who was shorting women or minorities sent a memo around to bring attention to the fact that it is paying women or African American employees less, or providing lesser promotional or advancement opportunities to such workers?  Let’s face it - many, many employers do pay women and minority employees less than they pay comparably situated male or white employees.  Often, this fact does not come to light until the pay structure is examined more carefully, such as when a termination is questioned, or some other, more apparent differential treatment is observed – say the failure to promote or advance minorities or women.  But, under the Ledbetter rule, if that challenge is too late, then too bad – you cannot enforce the laws that prohibit pay discrimination based on gender or race.

Prior to the Ledbetter decision, most courts accepted a ‘paycheck accrual’ rule that held that every paycheck under a discriminatory pay plan was a separate actionable event, allowing an employee to go back in time to capture the underpayment once the discrimination becomes apparent.  Under such a rule, all discriminatory payments would be due under a theory which recognizes that an employer must be responsible for past, as well as present, violations under a ‘continuing violation’ theory. 

The Ledbetter decision rejects such a ‘paycheck accrual’ rule and makes it much more difficult for a women, African American, Hispanic, Asian American or other racial or religious minority to challenge the discriminatory pay practice.  H.B. 11, the legislation currently identified as the Ledbetter Fair Pay Act and the Paycheck Fairness Act, will reaffirm the prior ‘paycheck accrual’ rule and will allow underpaid women and minorities the ability to enforce the laws which prohibit such discriminatory pay practices.  It will eliminate artificial time barriers to challenge these illegal pay practices and will remove the employer defense that a person did not challenge the discrimination soon enough!  Please contact your U.S. Senator to encourage them to vote in favor of this legislation.  There is no legal excuse for paying women or minorities lesser wages for performing the same work – and there should be no legal incentive to avoid the law (or for keeping illegal pay systems in place) because some woman or racial minority failed to ‘beat the clock’ to challenge the practice.  Our laws should encourage following the law – not avoiding it!

President-Elect Obama and Congress Working to Overturn Supreme Court Ruling on Equal Pay

Congressional Democrats are working to legislatively overrule the Supreme Court's controversial decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., which severely limits a woman's right to bring a claim for unequal pay under federal law.  In its ruling the Court held that the statute of limitations on a claim made by a female employee for unequal pay begins when the employer decides that it will pay her less than male employees, and requires that a female employee bring a claim for unequal pay within 180 days of the employer's decision regardless of whether the female employee had any knowledge of the pay disparity during that time.  In other words, a female employee who does not discover that her employer is paying her less than male employees performing the same work is forever barred from being able to protect her rights to equal pay under Title VII. This is precisely what happened to Lily Ledbetter, who filed her discrimination claim within 180 days of learning of the pay disparity.  The Court's ruling is out of touch with the American working world, where most people are not aware of the salary or wages that their employer is paying other workers.

Under the Lily Ledbetter Fair Pay Act, a female employee who is a victim of wage discrimination would have 180 days from the date of each paycheck to file a claim.  The Act has already passed the House of Representatives, and the Senate is preparing for a vote.