Virginia Injury Attorney Blog

In the brain injury appeal of Burns v. Gagnon, No. 110754 c/w Gagnon v. Burns, No. 110767, the Defendant claims that the prior action deposition should not be admissible because it was defended by an associate instead of a partner. However, Virginia and Federal cases hold that the party’s choice or change of lawyers is an irrelevant consideration.

“The fact that counsel in the present case may have approached the pursuit of this motive from a different angle is not the test.” Green v. Doe, 1 Va. Cir. 118, 119-121 (Richmond May 10, 1972). “It may well be that [counsel in the current action] may have subjected [the witness] to perhaps a more rigorous cross-examination than did Plaintiff’s counsel in the prior case,” id.; but that should not make any difference in the Burns/Gagnon crime victim action.

Likewise, whether the prior action deposition was taken “by a different attorney is immaterial” under analogous forerunner Federal rules. Copeland v. Petroleum Transit Co., Inc., 32 F.R.D. 445, 447-448 (E.D.S.C. 1963). Consistent with the brain injury victim’s position in Burns/Gagnon out of Circuit Court for Gloucester County, Virginia, is the Federal holding that the “purpose of using prior depositions and testimony is to save time, effort and money of litigants and to expedite trials, with a view to achieving substantial justice”; that “whether prior depositions can now be offered into evidence rests within sound discretion of the Court”; and that the “test [of admissibility] is not whether [particular] attorney had opportunity to cross-examine the witness, but whether the party-opponent had the opportunity and the same interest and motive in his cross-examination [by a different attorney]”). Hertz v. Graham, 23 F.R.D. 17, 20, 23 (S.D.N.Y. 1958).

In Burns v. Gagnon, No. 110754 c/w Gagnon v. Burns, No. 110767, the $6,100,000.00 brain injury verdict on appeal to the Virginia Supreme Court, a sub-issue on admissibility of the prior action deposition is whether the current action involves the “same subject matter”. Plaintiff filed an action, non-suited, refiled, and amended in Circuit Court for Gloucester County, Virginia; taking a de bene esse deposition before non-suiting the prior action.

Plaintiff asserts that under Va. Sup. Ct. Rule 4:7(a)(7) “same subject matter” means that the “subject matter” must be substantially similar issues, not identical in every single allegation. E.g., Fed. R. Civ. P. 32(a); Rule v. Internal Ass’n of Bridge Structural and Ornamental Iron Workers, 568 F.2d 558, 568 (8th Cir. 1977)(“substantial identity of issues” under analogous forerunner federal rules); Copeland v. Petroleum Transit Co., Inc., 32 F.R.D. 445 (E.D.S.C. 1963)(“substantially the same issues”). Plaintiff asserts that the subject matter is substantially similar in the prior and current Burns/Gagnon crime victim actions; and the Judge found “substantially similar…issues”.

Significantly, the basic “subject matter” (issues) of the two actions being substantially similar does not necessarily change even where subsequent developments after the prior action deposition “could have served as a basis for more pointed and specific cross-examination, [where] the transcript does not disclose that there was any understanding on the record that [the witness] would be subject to further examination.” Tug Raven v. Trexler, 419 F.2d 536, 543 (4th Cir. 1969)(Virginia case under the analogous forerunner Federal rules). Hence Plaintiff asserts that Circuit Court for Gloucester County, Virginia, admitting the prior action deposition “on the facts as then known by counsel” in the Burns/Gagnon brain injury case is correct.

On November 23, 2011, Mr. Waterman filed Plaintiff’s Motion to Compel in the car crash case of Cooper v. Tigges, No. CL 63034 in Circuit Court for Loudoun County, Virginia. He seeks the contemporaneous witness statements of both drivers taken in the routine and ordinary course of insurance business by Defendant’s insurer, United Services Automobile Association (“USAA”), which has a $300,000.00 automobile liability insurance policy plus a $1,000,000.00 umbrella insurance policy for a total of $1,300,000.00 in insurance coverage.

Defendant’s initial discovery responses in Cooper did not even acknowledge the existence of either vehicle accident statement; although Defendant asserted blanket claims of privilege, no “privilege log” was provided. Moreover, when Mr. Waterman specifically inquired about the existence of such statements, Defendant’s counsel stated that by oversight they forgot to mention the contemporaneous statement of the driver of Plaintiff, who suffered more than $200,000.00 in medical expenses; but that there was not one for Defendant driver.

Mr. Waterman then underscored to Defendant’s counsel his expectation that USAA had a statement for Defendant too in Cooper, and that he would be deposing and subpoenaing USAA about the same and possible destruction if its existence continued to be denied. Twelve days later, Defendant’s counsel acknowledged the existence of Defendant’s car accident statement, but withheld it along with the other contemporaneous statement under continued claim of privilege.

Tentatively, Plaintiff’s Motion to Compel in Cooper is scheduled for hearing in Loudoun County on December 2, 2011. Mr. Waterman handles vehicle collision, medical malpractice, and other personal injury and wrongful death cases across Virginia.

On November 21, 2011, Mr. Waterman filed Brief in Opposition and in Support of Assignments of Cross-Error of Appellee/Cross-Appellant, Gregory Joseph Gagnon, with the Virginia Supreme Court in Richmond, Virginia. It is in the consolidated brain injury appeal, Burns v. Gagnon, No. 110754 c/w Gagnon v. Burns, No. 110767.

One of the points on appeal is so-called “consciouness of guilt,” which essentially is admission by conduct of a party and/or his representative. At jury trial of the brain injury case of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia, which resulted in a $6,100,000.00 verdict, Plaintiff introduced evidence that the Assistant Principal destroyed his personal school appointment calendar weeks after the attack; inexplicably “lost” after the attack the note that he had handwritten with the crime victim’s name on it and left on his desk; created and revised after the attack an internet document that he attributed to the victim; and privately spoke with a key witness about his imminent deposition testimony shortly before it.

Under Virginia law, “so far as it indicated his own belief in the weakness of his cause,” such conduct can be considered as “consciousness of guilt” evidence against the Defendant. Andrews v. Commonwealth, 280 Va. 231, 259 (2010)(witness tampering); Gray v. Graham, 231 Va. 1, 9-10 (1986)(“attempted to suppress or conceal evidence”); McMillan v. Commonwealth, !88 Va. 429, 432-433 (1948)(attempted witness tampering by party’s representative); Neece v. Neece, 104 Va. 343, 348-349 (1905)(intimidating witnesses, document destruction, and concealing evidence); and Wolfe v. Virginia Birth-Related Neurological Injury Compensation Program, 40 Va. App. 565, 580-581 (2003)(evidence spoliation). The Virginia Supreme Court in the brain injury case of Burns/Gagnon stands to decide what weight, if any, to place on such evidence in assessing “ministerial duty” for purposes of sovereign immunity and/or duty of care for negligence.

The December 2011 issue of Hampton Roads Magazine names Mr. Waterman to The Annual List of Super Lawyers, “The Top Attorneys in Hampton Roads”. He is 1 of only 7 Hampton Roads lawyers recognized for “PERSONAL INJURY PLAINTIFF: MEDICAL MALPRACTICE,” Id. at S-7 and S-9; and has been listed as such since the recognition was created for Hampton Roads.

“Super Lawyers uses a [multi-step evaluation and rigorous selection process, including] a system of nominations, peer evaluation and internal research, which acts as a system of checks and balances,” reports Hampton Roads Magazine. “You can find a detailed description of the selection process at www.superlawyers.com.” Id. at S-1.

Mr. Waterman also has been listed by Super Lawyers in the same practice area of medical malpractice for the entire Commonwealth of Virginia since 2009. He also regularly handles vehicle accident and other personal injury cases.

The October/November 2011 issue of the Louisiana Bar Journal features “Camera Phones, Patient Privacy and HIPAA: The Growing Problem of Camera Phone Abuse in Health-Care Facilities”. That legal article chronicles that “the majority of the reported cases of camera phone abuse in health-care facilities involve employee breaches” by unauthorized photographing patient records and even the patients themselves id. at 182; which constitutes medical malpractice.

Although currently based in Virginia, Mr. Waterman has been licensed to practice law and in good standing in Louisiana since 1982. He occasionally handles medical malpractice cases out-of-state, including prior ones in Texas and Pennsylvania.

On November 9, 2011, Mr. Waterman served a car collision suit pending in Circuit Court for the City of Newport News, Virginia. The case is Reynolds v. Adair, No. CL1101523V-04.

Prior to having the Reynolds motor vehicle accident lawsuit served on the Defendant, Mr. Waterman made seven (7) amicable demands for settlement on the offending motorist’s automobile liability insurer, Trustguard Insurance Company, a member of the Grange Mutual Casualty Group, doing business in Virginia under Grange Mutual Casualty Company. Six (6) of his amicable demands were made even before he filed suit.

Significantly, Trustguard/Grange has only $50,000.00 in liability insurance coverage for its insured and the Reynolds lawsuit ad damnum is $1,000,000.00, which represents substantial uninsured exposure in excess of policy limits. The personal injury Plaintiff claims at least $218,211.50 in medical expenses due to the two-car vehicle accident, including without limitation for medical treatment and care with Newport News Emergency Medical Service, Mary Immaculate Hospital, Hampton Roads Radiology Associates, Commonwealth Family Practice, Riverside Regional Medical Center, Rebound Chiropractic, Peninsula Radiology Associates, Hampton Roads Neurosurgical & Spine Specialists, Orthopaedic & Spine Center, and Cardiovascular Center of Hampton Roads on the Peninsula.

The October 2011 issue of Trial, the monthly publication of the American Association for Justice (“AAJ”) www.justice.org, features “Benefits of a Grief Counselor’s Testimony.” The bottom line of that article is that a professional “grief counselor can put the loss [of wrongful death] in context to help jurors understand your client’s suffering.” Id. at 40.

Professional grief counselors usually are psychologists or psychiatrists. Hence as expert witnesses they must qualify in wrongful death cases under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and progeny. Id. at 43.

The Lawyer’s LogBook, a bi-monthly publication for plaintiff’s lawyers only, focused its June-July 2011 issue on trucking vehicle crashes. Titles of articles featured are: (1) Personal Injury & Wrongful Death Caused by Trucking Accidents; (2) Downhill Braking; (3) The Case of the ‘Dana Point Pirates’; (4) Improper Loading and Securement of Loads: Another Road to Liability Success in Trucking Cases; (5) Truck & Train Collisions; (6) How to Discover and Prove Medial Disqualifications in Commercial Truck Drivers; (7) The Chains I Put on You: When a Trucking Company Chooses Profits Over Safety; (8) Let’s Get Serious: Making the Most out of the Defendant Driver’s Prior Violations; and (9) The Multi-Million Dollar Shell Game – Finding Hidden Assets, Insurance Policies and Defendants in your Commercial Trucking Cases for Severely Injured People.

This trucking vehicle collision publication is endorsed by The National Trial Lawyers (“NTL”), www.thenationaltriallawyers.org. For 2 years, Mr. Waterman has been listed by NTL as one of Virginia’s Top 100 Trial Lawyers.

“Invited error” is a specific waiver issue in Gagnon v. Burns, No. 110767 c/q No. 110754 in the Virginia Supreme Court in Richmond, Virginia. The brain injury victim argues that the opposition is estopped on appeal from complaining about the legal consequence the damage instructions and the verdict form he desired at trial; that he cannot be permitted to “approbate and reprobate – to invite error…and then to take advantage of the situation created by his own wrong.” Garlock Sealing Techs., Inc. v. Little, 270 Va. 381, 387-388 (2005)(upholding “joint and several liability” where the judge permitted the jury to apportion damages).

Analogously to the Gagnon crime victim case, at trial in Garlock Sealing, the defense “convinced the circuit court to permit the jury to apportion fault” for purposes of damages apportionment. Id. at 387. On appeal, Garlock Sealing complained it was error to apply “principles of joint and several liability” to require that it pay plaintiff for damages apportioned to insolvents, but the Virginia Supreme Court refused to consider its contentions: “We will not permit Garlock Sealing to obtain an apportionment of liability…and then complain about the method [consequences] of apportionment.” Id. at 387-388.

“The [United States] Supreme Court has held that the principle of joint and several liability is applicable in admiralty jurisdiction and that principle was not abrogated by the proportionate share approach rule,” continued the Virginia Supreme Court in Garlock Sealing. “And we note that the Supreme Court stated that this principle can result in ‘one defendant’s paying more than its apportioned share of liability when the plaintiff’s recovery from other defendants is limited by factors beyond the plaintiff’s control, such as a defendant’s insolvency’.” Id. at 388.