Virginia Injury Attorney Blog

Destruction or other loss of crucial evidence by a wrongdoer is not uncommon, particularly in record-laden cases of medical malpractice. At trial in August, 2010, for example, the Defendant Assistant Principal admitted that he had destroyed his pertinent calendar entries and had lost his hand-written notes bearing on the brain injury Plaintiff in Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

Spoliation is the willful destruction of evidence or the failure to preserve potential evidence for another’s use in pending or future litigation. E.g., Trigon Ins. Co. v. United States, 204 F.R.D. 277 (E.D. VA. 2001). A court may instruct the jury with a spoliation instruction if at the time the evidence was lost or destroyed, a reasonable person in the defendant’s position should have foreseen that the evidence would be relevant and material to a potential civil action. E.g., Wolfe v. Va Birth-Related Neurological Injury Comp. Program, 40 Va. App. 565, 580 S.E.2d 467 (2003). See, Johnson v. Johnston Mem’l Hosp., Inc., No. CL0700176 (Washington County Jan. 12, 2010)(spoliation instruction for missing nurses notes, consent to treatment form, and discharge instructions). Cf., Blue Diamond Coal Co v. Airstop, 183 Va. 23, 25 (1944)(defendant’s failure to perform requested autopsy permitted inference the results would be adverse). But in the Gagnon brain injury case, Mr. Waterman elected not to seek a spoliation instruction, and instead simply argued Defendant’s misconduct to the jury in closing.

Va. Code Ann §17.1-600, et. seq. provides for recovery of “costs” in litigation. §17.1-601 states the general rule that a prevailing party given a final judgment shall recover costs. §17.1-626 leaves the taxing of most costs to Court discretion.

In addition to the common law of Virginia dictating joint and several liability for the whole amount for all joint tortfeasors, the Code of Virginia dictates the same thing. Va. Code Ann. §8.01-443. A jury has no authority to dictate separate versus joint and several liability as the legal consequence of its factual damages finding. See, e.g., Pulliam v. Coastal Emergency Servs. of Richmond, Inc., 257 Va. 1, 10-16 (1999); Etheridge v. Med Ctr. Hosps., 237 Va. 87, 95-98 (1989).

In Etheridge the Virginia Supreme Court delineated that the jury’s sole function as fact-finder “extends to the assessment of damages,” not to “the legal consequences of its assessment,” which party rights and “remedy is a matter of law, not a matter of fact”.

The resolution of disputed facts continues to be a jury’s sole function.
The province of the jury is to settle questions of fact and when the facts are
ascertained the law determines the rights of the parties. * * *

Without question the jury’s fact-finding function extends to the
assessment of damages. Once the jury has ascertained the facts and assessed
the damages, however, the constitutional mandate is satisfied.

The [Code of Virginia] does nothing more than establish the outer
limits of a remedy provided by the General Assembly. A remedy is a matter
of law, not a matter of fact. A trial court applies the remedy’s limitation
only after the jury has fulfilled its fact-finding mission. * * * *

Continue reading " Virginia: Jury Trial – a Lawyer’s Remedy " »

Virginia cases of joint and several liability for damages in tort are legion. Virginia’s damages rule of law is hornbook:

In the law of damages the proximate cause of an injury may in general
be stated to be that act or omission which immediately causes or fails to prevent
the injury; an act or omission occurring or concurring with another, where, had it
not happened, the injury would not have been inflicted, notwithstanding the latter.

It is not essential, therefore, for a plaintiff to show that an act, claimed to
have been the proximate cause of a certain result, was the only cause. It is
sufficient if it be established that the defendant’s act produced or set in motion
other agencies, which in turn produced of contributed to the final result.

If two defendants are negligent one of them cannot be exonerated by urging
and showing the negligence of the other. Where the concurring negligence of the
two produces a single injury and each is its proximate cause they are both liable.

Von Roy v. Whitescarver, 197 Va. 384, 352 (1955)(citation and asterisks omitted)(emphasis added). “It is well settled in Virginia that where separate and independent acts of negligence of two parties are the direct cause of a single injury to a third person and it is impossible to determine in what proportion each contributed to the injury, either or both are responsible for the whole injury.” Maroulis v. Elliott, 207 Va. 503, 511 (1966).

Continue reading " Virginia: Joint and Several Liability – a Lawyer’s Argument " »

On September 14, 2010, Circuit Court for the City of Suffolk, Virginia approved a wrongful death settlement. The case is Burr v. R.C. Paving, No. CL08-947 C/W CL08-955.

The Court in Burr, which arose out of a motor vehicle accident, also apportioned the settlement proceeds among the statutory beneficiaries. By consent, the known surviving siblings shared the net proceeds equally.

On September 13, 2010, Virginia Lawyers Weekly headlined Mr. Waterman’s recent brain injury verdict on its front page “Lunchroom punch nets $5M award in Gloucester”. It subtitled: “One punch in the Gloucester High School cafeteria has resulted in a $5 million jury verdict against a student, his sister and an assistant principal at the school”.

Virginia Lawyers Weekly covered extensively the brain injury lawsuit of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia. On August 27, 2010, a Gloucester jury actually awarded a total of $6,100,000.00, including $1,100,000.00 in pre-judgment interest.

On September 7, 2010, Mr. Waterman and his co-counsel settled a medical malpractice case of brachial plexus injury caused during shoulder-dystocia delivery for $987,500.00. It is understood to be the largest settlement payment of its kind in Virginia ever.

On September 2, 2010, the Gloucester-Mathews Gazette-Journal headlined “GHS administrator, 2 others found liable for student injuries; jury awards $5M”. Trial in the brain injury case of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia, is the subject.

The G-M G-J article recounts how Assistant Principal Burns admitted he “dropped the ball” to both the student who forewarned him and to the brain injury victim’s parents. But it omits the significant corroborating evidence in Gagnon that Defendant Burns also admitted to Deputy Carwell he “screwed up” and additionally admitted to Sergeant Shuster he “made a big mistake,” as both of those Resource Officers at Gloucester High School then on full-time assignment from the Gloucester Sheriff’s Office testified.

The G-M G-J article also omits that fellow GHS Assistant Principal Green testified further in Gagnon that the attacker, Defendant James S. Newsome, Jr., in his initial signed statement did not state the victim swore at him; and that Defendant Newsome only claimed profanity was used after Assistant Principal Green had given Newsome an immediate 10-day suspension, recommended him for long-term suspension too, and telephoned his mother about everything. Moreover, Rita Cargill-Brown, Director of Student Services for Gloucester County Public Schools, the GCPS Superintendant’s designee for all student discipline, testified consistently that at his long-term suspension hearing Defendant Newsome did not claim the brain injury victim used profanity.

Additionally, the G-M G-J article omits that the supposed MySpace.com printouts produced by Defendant Newsome’s mother the day after her son’s attack and suspension were hotly disputed by the brain injury victim in Gagnon. Substantial evidence questioned the genuiness of the communications, plus that the Plaintiff sent them.

Four witnesses testified it was impossible for the brain injury victim to have sent the second supposed MySpace.com document while they were watching him convalesce with his injuries and confusion under medication only hours after the attack; and Plaintiff’s computer forensics expert testified that the victim’s computer then had “Spyware” on it, which allowed unknown third-party access to his MySpace.com and all other accounts at all times. More fundamentally, Gagnon exposed that the two documents produced by Defendant Newsome’s mother did not appear to be regular MySpace.com on their face and, importantly, were missing the print date characteristically appearing on all documents actually printed from the internet (versus Word documents typed up by an individual).

Continue reading " Virginia: Brain Injury – a Lawyer’s Responses " »

On September 1, 2010, the Virginia Trial Lawyers Association posted “Kid Injured in School Fight Awarded $5Mil” under “LAWS/CASES” of VTLA Eclips. This listserve covered Gagnon v. Burns, the Virginia brain injury trial in Gloucester Circuit Court, No. CL08-572.

Also on September 1st, the Gloucester-Mathews Gazette-Journal posted “GHS administrator, 2 others found liable for student injuries; jury awards $5M”. This previews its newspaper publication about the Gagnon brain injury verdict tomorrow.

The G-M G-J post quotes Defendant’s counsel that Gagnon is “an important case for the future of school administration and teachers.” Obviously, the jury verdict in Gagnon providing redress for the brain injury victim equally or more so is an important case for “student safety.”