Plaintiff’s Motion To Amend Ad Damnum Clause

V I R G I N I A :

IN THE CIRCUIT COURT OF THE COUNTY OF FAIRFAX
Plaintiff


v.


Defendants


Case No.
PLAINTIFF'S MOTION TO AMEND AD DAMNUM CLAUSE

COMES NOW the plaintiff, by counsel, and moves this Court for leave to amend the complaint to increase the ad damnum from $400,000.00 to $800,000.00, and to add an allegation of willful and wanton negligence. Pursuant to Virginia Supreme Court Rule 1:8 and §8.01-377, leave to amend should be liberally granted in furtherance of the ends of justice.

THE AD DAMNUM NEEDS TO BE INCREASED IF PLAINTIFF IS TO BE FULLY COMPENSATED FOR HIS INJURIES

Plaintiff's treating health care providers have disclosed opinions that Plaintiff's back injuries are permanent, that he will require either surgery or a series of epidural injections every year for life, and that his future medical expenses will exceed $250,000.00. Plaintiff's rehabilitation counselor and life care planner has disclosed an opinion that Plaintiff's expected future wage loss exceeds $. Plaintiff's treating physicians have expressed opinions that his past medical expenses of over $48,000.00 are reasonable and necessary expenses. Plaintiff is 31 years old and has a life expectancy of an additional 45.6 years. Virginia Code §8.01-419. The current ad damnum of $400,000.00 is clearly insufficient to fully compensate Plaintiff for his injuries.

The Virginia Supreme Court has held that:

When deciding whether to grant a motion to amend a motion for judgment to increase an ad damnum clause, a circuit court must consider whether the defendant will be prejudiced and whether such prejudice will affect the defendant's ability to have a fair trial. The circuit court must also consider the plaintiff's right to be compensated fully for any damages caused by the defendant's acts or omissions.

Peterson v. Castano , 260 Va. 299, 303, 534 S.E.2d 736, 738 (2000). Given the facts of this case, the Defendants do not have good grounds to demonstrate prejudice. Trial is not until October 4, 2010. The basis for the amendment has already been disclosed to Defendants through Plaintiff's expert disclosures, which were filed on February 3, 2010.

The Virginia Supreme Court has previously held that it is not an abuse of discretion to grant such an amendment on the eve of trial. See Bell v. Kirby, 226 Va. 641, 646, 311 S.E.2d 799, 802 (1984) (holding no abuse of discretion to grant amendment to double ad damnum two days before trial). Certainly there is no abuse of discretion to grant such an amendment more than four months before trial. For these reasons, the motion should be granted and the ad damnum increased to $800,000.00.

WHEREFORE these premises considered, Plaintiff requests that this Court grant the motion to amend, increase the ad damnum, and deem the attached proposed amended complaint to be filed as of the date of entry of the order granting the motion.

By: _________________________________

Law Offices of Jeremy Flachs

Jeremy Flachs, Esq.

Jeremy.Flachs@Flachslaw.com

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