ANALYSIS OF JUNE 4, 2020 SUPREME COURT OPINION
(Posted June 4, 2020) After last week’s bumper crop of opinions, the Supreme Court of Virginia today hands down a single decision. Green v. Diagnostic Imaging Associates is a wrongful-death claim involving medical malpractice. The decedent’s personal representative filed separate suits in Virginia and Kentucky, as the decedent had received medical care in both states from separate providers.
The Kentucky defendants settled, leaving the Virginia lawsuit pending. The Virginia defendants moved the court to dismiss the case, asserting that a plaintiff can only get one recovery for a given set of injuries, and the personal rep had received that recovery in Kentucky. The circuit court judge agreed and dismissed the case. The court ruled that a Virginia statute requires an election of remedies, and the plaintiff had made that election by settling in Kentucky. It went on to hold that judicial estoppel barred any recovery in the Virginia case.
This morning, the Supreme Court unanimously reverses and sends the case back for trial. Unlike in Virginia, Kentucky law permits a plaintiff to recover for both personal injuries and wrongful death, even if the injuries lead to the death. The Virginia statute isn’t an election of remedies; the law makes the choice for the plaintiff once the evidence establishes whether those injuries caused the death.
The justices go on to rule that this isn’t a case of claim-splitting, because the defendants in the two lawsuits were different. If the circuit court perceives that an award in Virginia compensates the personal rep for some of the same injuries as the Kentucky settlement did, it can reduce the Virginia judgment by that amount. And the doctrine of judicial estoppel doesn’t apply here, again because the parties in the two suits are different.
I noticed one detail in today’s opinion that reflects the modern reality of appellate practice in Virginia. The circuit court entered final judgment in November 2018. That means that this case took over 18 months to reach final decision on appeal. It took just over ten months to get to the writ grant, and another 8½ from that point to today.
Twenty or so years ago, 15-18 months was roughly the norm for a fully matured appeal (one where the full court decided the case by opinion or order). When Justice Hassell became chief justice in 2003, that time lag rankled him. He made it a priority to accelerate the pace at which the court processed its caseload.
I’m not sure how Chief Justice Hassell did it, but he lit a fire under the court and the pace picked up noticeably. I don’t have firm statistics on this, by my clear sense back then was that he had reduced the average lifespan of an appeal – the time from final circuit court judgment to Supreme Court merits decision – to about 11 months.
I infer that that need for speed hasn’t carried over to his successors. To be sure, Green is a bit of an outlier at 18 months. But in my experience, 15 months is close to the average these days; 13 is a lightning decision. The time factor isn’t related to caseload; the 2005 court, for example, received almost 2,700 new filings and granted 182 writs. Last year, in comparison, the court received 1,740 and accepted just 98. Today’s court is taking noticeably longer to process a much smaller docket.
I’m not writing this to be critical. I have enormous respect for the justices and for their highly professional support crew, both the Clerk of Court and the Chief Staff Attorney and their very capable staffs. I write this because you may need to know this if you’re advising your client on the prospect of an appeal. A client who’s mulling whether to appeal generally wants to know three things: What are our chances? How long will it take? And how much will it cost?
I’ve written elsewhere about the odds of securing a reversal on appeal (Reader’s Digest version: not very good). The cost is a matter for each appellate lawyer to shape for individual cases; there’s no standard appellate attorney’s fee. The “pace of play” considerations I’ve discussed here answer the remaining question.