Note To Defendants: Judges Don’t Like It When You Miss Their Deadlines

More importantly, they might just rule against you by default. Such was the case when Salem Orthopaedics, a clinic, was sued for a whopping $3 million by Kimberly Salyers and her attorneys, Anthony Segura and Jonathan Rogers. They also sued two members of its staff directly, Mark Hagy and Christopher Deneault. 

According to the lawsuit, Salyers underwent surgery at Salem Orthopaedics in 2017 in order to repair a torn ACL. The lawsuit contends that doctors made the injury worse than before, trapping her peroneal nerve with a surgical suture. Her lawyers said the damage was likely permanent and would eventually require a knee replacement.

When Salem Orthopaedics failed to respond to the lawsuit by the required deadline, a judge gave Salyers $2.3 million.

But spokespeople for Salem Orthopaedics say the summons was never acquired. 

Timing may have been the problem. Salem Orthopaedics was technically a new company that had been Virginia Orthopaedics until late last year. The man who was a registered agent during this time, Jeff Dorsey, apparently failed to file the requisite paperwork with his client — meaning that Salem Orthopaedics didn’t even know their company was under suit. This prompted them to ask the court system to vacate the previous judgement so they could respond properly.

But Roanoke Circuit Court Judge William Alexander decided to deny the request on October 7. The $2.3 million original judgement will be allowed to stand.

Everyone agrees that Dorsey received the summons, which required a response within three weeks. The due date was June 27. It never came.

Salem Orthopaedics’ attorneys said, “Mr. Dorsey did not, however, forward the Summons and Complaint to Salem Orthopaedics. Nor did he otherwise apprise Salem Orthopaedics of the pending action against it…Because it had no actual notice of the lawsuit, Salem Orthopaedics did not retain counsel and did not file responsive pleadings.”

When an individual or institution fails to respond to a court summons, the Virginia Supreme Court says that individual or institution need no longer receive any notice about the ongoing case. This rule prompted Salyers to pivot from suing the two doctors and the clinic to just suing the clinic. 

The amount that Salyers and her lawyers requested exceeded the Virginia state legally mandated cap on medical malpractice awards, and so the presiding judge reduced the verdict from $3 million to $2.3 million. 

When Dorsey found out about the verdict, he finally notified the clinic. “This was the first notice that anyone affiliated with Salem Orthopaedics had ever received about the present suit,” the subsequent request to vacate judgement said.

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