Virginia Injury Attorney Blog

The March 2013 issue of Trial, the monthly magazine of the American Association for Justice (“AAJ”), formerly the American Trial Lawyers Association (“ATLA”), is entitled “Protect the Innocent”. It marquees 3 crime victim writings, the first being “BULLYING BASICS,” which addresses school-related bullying of students as “an emerging area of law”. Id. at 14-19.

The next feature article is “A VIOLATION OF TRUST,” which covers child sexual abuse cases, particularly for negligent hiring, supervision and/or retention against institutions such as religious organizations and childcare centers. Id. at 20-26. Trial also reports a $3,000,000.00 California school settlement for alleged negligent security in “Special-Needs Student Raped”. Id. at 10.

Mr. Waterman successfully represented a student assaulted and battered unto brain injury at Gloucester High School, obtaining in 2010 a $6,100,000.00 jury verdict against the assailant, James Newsome, and high school assistant-principal that was remanded for retrial. Mr. Waterman also has represented Virginia victims of child sexual abuse successfully.

THE VIRGINIA STATE BAR REQUIRES ALL LAWYERS TO POST THE FOLLOWING DISCLAIMERS ON ALL CASE-RELATED POSTS. MR. WATERMAN'S CASE RESULTS AND CLIENT TESTIMONIALS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. THEY DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE BY HIM.

On January 29, 2013, Circuit Court for the City of Newport News, Virginia, entered Final Judgment Order in Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15. On December 7, 2012, the jury unanimously awarded $3,500,000.00 in damages against Defendant, Riverside Hospital, Inc., in favor of its brain injury victim.

Defendant Riverside Hospital, Inc., filed Notice of Appeal in the Burrell case on January 30, 2013; and must post a $1,900,000.00 appeal bond within 21 days to suspend collection by Plaintiff against it. Its medical malpractice victim also intends to file Notice of Appeal this month, cross-appealing against Riverside Hospital, Inc. on multiple points.

In Burrell, the then 81 year-old intermittently-confused in-patient at Riverside Regional Medical Center suffered a patient fall and resulting broken femur, head injury, and permanent hemiplegia. Suit was filed against Riverside Hospital, Inc. for its failure properly to assess its in-patient as a high unto extreme fall risk and for its failure properly to intervene, including by simple activation of her built-in bed alarm, use of a sitter and/or use of soft restraint (like it did for 5 days straight after its in-patient already was seriously injured permanently).

Previously by Fax Memorandum on January 22, 2013, Mr. Waterman was notified that a Summary of the Burrell brain injury case would be published electronically on LEXIS-NEXIS, on www.verdictsearch.com, and possibly in Metro Verdicts Monthly.

Trial is the monthly magazine of the American Association for Justice (“AAJ”), formerly American Trial Lawyers Association (“ATLA”), of which Mr. Waterman has been a member for decades. Its January 2013 issue reports Verdicts & Settlements.

Trial covered that on August 1, 2012, $117,000,000.00 was awarded a permanent spinal cord and brain injury victim against an ambulance service for negligently causing a two-vehicle crash in Louisiana (where Mr. Waterman also still is licensed to practice law). Id. at 8. Also, on March 6, 2012, a New Jersey jury awarded $3,980,000.00 to a victim who was disabled by permanently by elevator malfunction. Id. at 10.

Trial reported too that on June 11, 2012, a wrongful death plaintiff in Missouri settled for $3,100,000.00 a lawsuit for negligent hiring. Id. at 8. Additionally, on June 1, 2012, a Washington jury awarded $1,000,000.00 for another wrongful death in a special case alleging civil rights violations for inadequate police training. Id. at 8-9.

On January 21, 2013, Virginia Lawyer’s Weekly ranked Mr. Waterman’s $3,500,000.00 jury award as trying for 9th of “Virginia’s Largest Verdicts of 2012”. It was in the medical malpractice case of Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F in Circuit Court for the City of Newport News, Virginia.

In the same issue, Virginia Lawyer’s Weekly also reported his $3,500,000.00 jury award more extensively under its “Verdicts & Settlement”. That caption was “Plaintiff claims hospital fall led to brain injury”.

The deposition videotape of Patricia [Hoadley] Williams, Midas System Manager (formerly QMS Coordinator) for Defendant, Riverside Hospital, Inc., was taken on October 29, 2008. Hers is the third of 22 to be run on Mr. Waterman’s website from his patient fall jury trial, Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F in Circuit Court for the City of Newport News, Virginia.

In the Burrell brain injury lawsuit, Ms. Williams delineated the computerized incident reporting systems of Defendant, Riverside Hospital, Inc.: in its Quality Management System (“QMS”), data is input from paper incident reports; while in its newer Midas system operational since January, 2006, “witnesses” enter incident information directly into the database remotely from computer terminals anywhere, id. at 12-14 and 18-19; which Ms. Williams can and does revise ex post facto. Id. at 21-22 and 25. She also testified about Riverside Dep. Ex. 2, QMS Transaction Summary Report, id. at 8; Riverside Dep. Ex. 3, Midas System Printouts, id. at 10-11; and Riverside Dep. Ex. 4, Ames Dep. Ex. 6, Fall Quality Care Control Report (“QCCR”). Id. at 34.

The deposition videotape of Joann Rae “Jodi” Friend, Director of Risk Management for Riverside Health System, whose office is located at Riverside Regional Medical Center in Newport News, Virginia, was taken on October 29, 2008. It is the second of 22 to be launched on Mr. Waterman’s website from his medical malpractice trial during November 26-December 7, 2013, Burrell v. Riverside Hospital, Inc., No. CL1101633F in Newport News Circuit Court.

On November 27, 2012, Ms. Friend was called as one of Plaintiff’s early case-in-chief witnesses. In videotape deposition, Ms. Friend testified why and how she as Riverside’s Risk Manager “waived,” i.e., wrote off, the Burrell brain injury victim’s unpaid hospital bill balance by Authorization to Charge to Risk Management, id. at 12-14 - which Plaintiff at trial unsuccessfully sought to introduce as an admission or statement against by conduct under the circumstances, and which adverse ruling Plaintiff has preserved for cross-appeal.

Also in videotaped deposition, Ms. Friend identified a Quality Management System (“QMS”) Transaction Summary a/k/a the “expenditure report” printout of Riverside Hospital, Inc. for the Risk Management waiver re the patient fall victim in Burrell. QMS and Midas are computer program databases of Riverside Hospital, Inc., including for risk management purposes. Id. at 21-25.

The deposition videotape of Christopher Stolle, M.D., Vice-President of Medical Affairs at Riverside Regional Medical Center in Newport News, Virginia, taken on February 26, 2009, is the first of 22 deposition videotapes to be posted on Mr. Waterman’s website from Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F in the Circuit Court for the City of Newport News, Virginia. If Riverside Hospital, Inc. appeals the $3,500,000.00 brain injury verdict against it, VP/Dr. Stolle’s trial testimony transcript should be available by Spring for supplemental posting along with Plaintiff’s Trial Exhibit 30.

On November 27, 2012, the medical malpractice victim called VP/Dr. Stolle as an early case-in-chief fact witness at jury trial in Burrell. Notably, VP/Dr. Stolle testified about certain Riverside record-keeping re factual information of patient care not included expressly in its patient chart; and through him, the Burrell victim introduced into evidence Plaintiff’s Exhibit No. 30, the internal computer database printout of Riverside Hospital, Inc. that stated inter alia its high unto extreme fall risk patient’s mental status was “very confused”.

On January 7, 2012, Virginia Lawyers Weekly (“VLW”) newspaper headlined on the front page: “A return to ‘Riverside’: Patient’s $3.5M verdict for fall prompts comparisons to 2006 case”. VLW’s print version is substantially similar to its prior online reporting of Mr. Waterman’s Newport News brain injury case against Riverside Hospital, Inc.

However, VLW’s print article covered Mr. Waterman using his “2006 Riverside opinion to introduce into evidence four incident report documents with information not included in the patient’s chart”. Id. at 21. It also covered Newport News Circuit Court denying on January 2, 2013, the post-trial Motion of Riverside Hospital, Inc. to set aside the medical malpractice verdict against it. Id.

In the patient fall case of Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia, Mr. Waterman deposed on videotape 22 Riverside representatives, essentially all as “most knowledgeable persons” pursuant to Va. Sup. Ct. Rule 4:5(b)(6). They are: Ann Fox Andrews (12/3/09), Emily Theal Edwards (4/23/09), Tikishia Monique Everett (12/22/08), Joann Rae “Jodi” Friend (10/29/08), Deborah Lynn Gressett (10/30/08), Stephanie Hadley (12/22/08), Ramona English Hercules (10/30/08), Christine Frances Hill (12/17/08), Delores K. Kitchin (12/3/09), Lisa Michele Morgan (4/23/09), Michelle Walls Morris (12/22/08), Christina Marie O’Brien (2/26/09), Tricia O’Grady (2/26/09) Shrikant Lalaji Patel (2/26/09), Susan Sale (2/23/09), Christopher Stolle, M.D. (2/26/09), Michelle Thomas-Eckroade (12/3/09), Joyce Carolyn Turner (12/17/08), Deborah C. Walton (10/30/08), Jacqueline B. Ward (4/23/09), Patricia Williams (10/29/08), and Michelle Snyder Wooten (12/17/08).

Ultimately, Mr. Waterman plans to launch them on www.YouTube.com, having purchased a YouTube platform. Meanwhile, this Blog will highlight each Riverside deposition videotape from the Burrell brain injury lawsuit as they are posted on his website, beginning with Dr. Stolle.

On December 28, 2012, the Virginia Supreme Court quickly vacated a Fairfax Circuit Court Order that enjoined a litigant from maintaining past accusative postings online and from posting again during the pending lawsuit. The unpublished opinion in Record No. 122157, Perez v. Dietz Development, LLC, expressly finds inter alia “the preliminary injunction was not justified”.

The Virginia Supreme Court’s Perez ruling - issued only 2 days after the appeal pursuant to Va. Code Ann. 8.01-626 - vindicates the propriety of Mr. Waterman posting contemporaneous case developments on this Blog. In 2010, 2011, and 2012, 3 medical malpractice Defendants - including Sentara and Riverside Hospital, Inc. - unsuccessfully have tried to deny Mr. Waterman’s state and federal rights of “free speech” online in a wrongful death, a patient fall, and another case through Circuit Courts in Suffolk, York, and Newport News.

In Perez, the American Civil Liberties Union (“ACLU”) of Virginia at www.acluva.org and the Public Citizen at www.citizen.org appealed the injunction Order as violating the First Amendment of the United States Constitution in addition to Virginia state law. Since Riverside Hospital, Inc.’s attempt to abridge Mr. Waterman’s Constitutional rights of “free speech” was in November, 2012, in the still-pending brain injury lawsuit, he yet may call upon ACLU of Virginia and Public Citizen to intercede on the topic.

On January 2, 2013, the Court issued its letter opinion in favor of Mr. Waterman’s client on all post-trial motions in the patient fall case of Shirley Frazier Burrell v. Riverside Hospital, Inc., et al., No. CL1101633F-15 in Circuit Court for the City of Newport News, Virginia. Those motions were heard on December 27, 2012.

First, the Court denied Defendant Riverside Hospital, Inc.’s Motion to Set Aside Jury Verdict in the Burrell medical malpractice lawsuit. Riverside Hospital, Inc. had filed an 11-page Memorandum in Support with 4 Exhibits consisting of 29 pages on December 14, 2012; and also a 7-page Memorandum in Reply with 2 Exhibits consisting of 15 pages, immediately before hearing on December 27, 2012.

Second, the Court granted Plaintiff’s Motion for Costs in the Burrell brain injury suit. It awarded Plaintiff $4,533.65 against Riverside Hospital, Inc. for filing fees, service fees and videographer/reporter fees, atop the jury’s verdict of $3,500,000.00 (which on Plaintiff’s oral motion on December 7, 2012, already had been reduced to the applicable statutory “cap” of $1,800,000.00).

Third, the Court granted Plaintiff’s Motion for Appeal Bond in the Burrell medical malpractice proceeding. It required Riverside Hospital, Inc. to post a bond of $1,900,000.00 as a prerequisite for appealing the Judgment Order to be drafted by Mr. Waterman and entered against it shortly.

On January 3, 2013, www.VaLawyersWeekly.com initially headlined “Patient’s fall leads to $3.5 verdict,” then revised its headline to "A return to 'Riverside': Patient's $3.5M verdict prompts comparisons to 2006 case". That top article covers Burrell.

The www.VaLawyersWeekly.com coverage marquees Mr. Waterman in Burrell “using high resolution imaging to dramatize alleged brain injuries for the jury,” including “’cutting edge’ 3.0 Tesla Magnetic Resonance Imaging, applying ‘fractional anisotropy,’ also known as Diffusion Tensor Imaging, and NeuroQuant Analysis”. It also presages: “An appeal of Shirley Burrell’s verdict against the owner of Riverside Regional Medical Center could offer a ruling on the admission of hospital policies and protocols” and on the “admissibility of hospital write-offs of patients bills”.

Www.VaLawyersWeekly.com reported further from Mr. Waterman’s Blog that Burrell asserted Riverside Hospital, Inc. was guilty of medical malpractice because it “omitted preventative measures such as relocating the patient closer to the nurses’ station, activating a bed alarm, using a sitter to keep watch, and using soft restraints like a ‘posey vest’.” Re some nurses not liking to use bed alarms despite their proven effectiveness, the online newspaper quoted Mr. Waterman: “Some false positives are a worthwhile inconvenience.”

Www.VaLawyersWeekly.com recounted the Virginia Supreme Court upholding Mr. Waterman’s $1,600,000.00 Newport News jury verdict in another patient fall trial against Riverside Hospital, Inc. in 2005, Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006). It chronicled too that the “so-called Riverside [v. Johnson] standard [which clarified the law on admission of hospital incident reports] was codified by the General Assembly in 2011”.

If Riverside Hospital, Inc. ultimately seeks to appeal the jury verdict against it in the Burrell brain injury matter, then Mr. Waterman definitely will cross-appeal against both Defendants, Riverside Hospital, Inc. and Nurse Melanie Ames. Some of Plaintiff’s alternate grounds will be first “first impression” issues, as was the case in Riverside.

On December 21, 2012, Best Lawyers in America featured a 2013 “Washington, D.C. & Virginia’s Best Lawyers” supplement to The Washington Post, The Richmond Times-Dispatch, and The Virginian-Pilot. Its cover story is “The Powerful Trial Lawyers at Patten, Wornom, Hatten & Diamonstein,” including Mr. Waterman who was recognized individually for both “Medical Malpractice Law - Plaintiff” and “Personal Injury Litigation - Plaintiff”.

“’We stand toe to toe with any big-city defense lawyers in the state,’ says partner Avery Waterman, a precedent-setting medical malpractice lawyer known as one of the top in the state. “We offer a level of sophistication and success that really is only found in a few firms’,” quotes the Best Lawyers’ Supplement at 3.

“’The people that we represent are families of permanently disabled breadwinners and deceased breadwinners who would never be on equal footing if we weren’t there to help’, says Waterman. ‘We give it everything at trial’.” Id.

“Indeed, says partner Avery Waterman, whose plaintiffs’ practice centers on medical malpractice litigation and catastrophic personal injury cases (such as brain injury, automobile and trucking accidents and the like), PWHD is known for being a go-to firm for some of the toughest cases to litigate. ‘The cases we take on require a significant commitment that is difficult to overstate,’ says Waterman, who has been with the firm since 1986, one of Virginia’s top medical malpractice attorneys. ‘In plaintiff’s practice, as we say, you only eat what you kill. So the risk is enormous but the reward for our clients is even greater’.” Id. at 15.

On December 14, 2012, The Daily Press headlined “Jury awards #3.5M to woman, 87, who fell” and www.dailypress.com headlined “NN jury makes $3.5 million award to 87 year-old.” The identical articles cover Mr. Waterman’s recent patient fall trial, Burrell v. Riverside Hospital, Inc., No. CL1101633F-15 in the Circuit Court for the City of Newport News, Virginia.

The Daily Press quoted Mr. Waterman re his sizeable favorable verdict for the 87 year-old: “It’s vindication that the elderly aren’t throwaways.” Historically, there has been a defense mindset that medical malpractice cases involving older victims are not worth much.

The Daily Press also quoted Mr. Waterman about the magnitude of the patient fall problem beyond Riverside. “It happens in hospitals and nursing homes in every health system. It’s a chronic problem in every state nationwide. It’s rampant.”

Riverside’s Risk Manager declined The Daily Press’ interview request about the patient fall case. Instead, Riverside issued a prepared statement, expressing disappointment with the $3,500,00.00 jury award, considering its appeal options, and extolling its quality.

The Daily Press article recounts the preventative measures that should have been used by Riverside for its victim in-patient: (1) relocating the patient closer to the nurse’s station; (2) using a bed alarm; (3) using a sitter; and (4) using soft restraints, like a posey vest. It recounts further that some nurses do not like using bed alarms because of “false positives,” but quotes Mr. Waterman that “some false positives are a worthwhile inconvenience” toward avoiding such serious personal injuries and even wrongful death.

The Daily Press highlighted Mr. Waterman calling 8 highly-credentialed experts among his more than 40 witnesses and him using new key technology to demonstrate the victim’s brain injury, including 3.0 Tesla MRI with its cutting-edge Diffusion Tensor Imaging (“DTI”) and NeuroQuant Analysis. Additionally, it marqueed Mr. Waterman’s reliance on his 2006 Virginia Supreme Court decision against Riverside - Riverside Hosp., Inc. v. Johnson, 272 Va. 518 (2006) - to introduce into evidence 4 “incident report” documents containing factual information of patient care that was not entered in the patient’s chart by Riverside personnel.

The Trial Lawyer, a magazine for trial lawyers and a voice for justice, features an article concerning brain injury. It is “Pradaxa: The Less Effective, More Dangerous Alternative to Coumadin.” The subheading is, “Pradaxa is revealing itself as less effective and disturbingly more dangerous than advertised.” Id. at 133.

Pradaxa presents the special case of product liability litigation against a national pharmaceutical drug manufacturer. “A second explanation for the severity and number of the adverse events is the fact that, unlike Coumadin, Pradaxa has no reversal agent or ‘antidote’.” Id. at 134.

On November 9, 2012, dailypress.com headlined: “Lawsuit filed in death of elderly Gloucester woman”. It reports the $4,450,000.00 medical malpractice suit filed by Mr. Waterman on November 5, 2012, Case No.: CL12000440-00 in Circuit Court for Gloucester County, Virginia, captioned Patrick Lee Cherrie, Administrator of the Estate of Gerda A Harvey, Deceased, v. Virginia Health Services, Inc., d/b/a Walter Reed Convalescent & Rehabilitation Center, Long Term Care of Tidewater, P.C. and Raina Winfrey, M.D.

The article recounts how the Defendants’ “high onto extreme” fall risk patient suffered a brain injury that proved to be fatal the 3rd time she fell in only 4 days. Defendants in Cherrie failed to give the victim the safety protection of a “bed alarm” – a highly effective pressure-sensitive system for beds and chairs – until after she suffered the fatal brain injury.

The Daily Press quoted Mr. Waterman, “It’s what they should have done previously, and not after the third [patient] fall.” Defendants in Cherrie also failed to move the victim closer to the nurse’s station after her 1st and 2nd falls.

The Daily Press notes that it was not able to get through to, or to hear back from, the corporate office of Virginia Health Services, Inc. for comment re its impending Cherrie newspaper coverage. Virginia Health Services is owner of the nursing home, Walter Reed Convalescent & Rehabilitation Services.

Defendants in the Cherrie wrongful death lawsuit have refused to turn over their complete incident reports for each of the 3 falls, providing only substantially redacted versions to the patient’s Estate Executor. Hence Mr. Waterman will issue a Subpoena Duces Tecum for the same, and seek enforcement vis-à-vis any “factual information of patient care” withheld by Virginia Health Services d/b/a Walter Reed.

On October 11, 2012, Mr. Waterman filed and noticed Plaintiff’s Plea of Law of the Case, Res Judicata, and Estoppel in the brain injury case of Gregory J. Gagnon v. Travis Burns, No. CL08-572 in the Circuit Court for Gloucester County, Virginia. His Reply Memorandum filed contemporaneously distinguished all cases cited by the opposition.

Burns’ core case in the Gagnon brain injury lawsuit is Nassif v. Board of Supervisors, 231 Va. 472 (1986), which along with its cited progeny, Baumann v. Capozio, 269 Va. 356 (2005); Ford Motor Co. v. Jones, 266 Va. 404 (2003); and Virginia Elec. and Power Co. v. Westmoreland-LG&E Partners, 259 Va. 319 (2000) [“VEPCO”]; is distinguishable on multiple independent grounds. Lockheed Info. Mgmt. Sys. v. Maximus, Inc., 259 Va. 92, 106-108 (2000), which Burns minimizes, instead is more on point and controlling.

Contrary to the Gagnon brain injury suit, however, in Nassif: (1) the Defendant was victor at trial and Appellee on appeal not [liability] loser at trial and Appellant on appeal; (2) Judgment was not also entered against Co-Defendants on common issues of liability, which nobody appealed; (3) the remand was not expressly “limited”; and (4) the “law of the case” was not raised.

"The Nassif case, at most, stands for the proposition that an appellee does not have to assign cross-error to the failure of the trial court to address additional arguments in order to reassert those arguments on remand. It does not, and cannot, stand for the proposition asserted by [the loser at trial], that an appellant [like Burns] does not have to assign error to a ruling disposing of a cause of action, and if the case is remanded, can then relitigate a dispositive ruling which was not appealed. Such a proposition contradicts the doctrine of the law of the case which provides that where no assignment of error or cross-error is taken to a part of a final judgment, the judgment becomes the law of the case and is not subject to relitigation. Searles’ Adm’r v. Gordon’s Adm’r, 156 Va. 289, 294-99, 157 S.E. 759, 761-62 (1931)."

Lockheed, 259 Va. at 108 (italics in original)(underlining added)(“trial court erred in denying Lockheeds’ motion for summary judgment on its [‘law of the case’] claim”).

VEPCO, Ford and Baumann all follow Nassif and likewise are distinguishable. Like Nassif and unlike Burns, VEPCO involved only a single defendant, not Co-Defendants against whom Judgment was entered on common issues that were unappealed and are final as in the Gagnon brain injury proceedings. Also like Nassif and unlike Burns, VEPCO’s remand was not “limited”.

Indeed, quoting Nassif, VEPCO emphasized that “when we limit issues on remand we do so with words of limitation or restriction,” 259 Va. at 323 (emphasis added); and accordingly that “consideration…on remand” in VEPCO was not limited because of the “absence of such limitations” in the Virginia Supreme Court’s opinion and order. Conversely, the Gagnon brain injury action is expressly “limited” remand to new trial on “Gagnon’s gross negligence claim against Burns” - thereby leaving intact and final as the “law of the case” Gagnon’s battery claim against James, Gagnon’s simple negligence claim against Christine, and Gagnon’s simple negligence claim against Burns, including all defenses against Gagnon necessarily and actually decided, unappealed, and final.

Like Nassif, Ford involved a single defendant, not Co-Defendants against whom Judgments on common issues was entered, went unappealed and are final as in the Gagnon brain injury matter. Also like Nassif, Ford remand was not expressly “limited” as in Gagnon. [BUT SEE 263 Va. 237, 263-264]. More particularly, Ford focused on and upheld plaintiff taking a nonsuit after remand, so it specifically is in the context of that unique situation the Virginia Supreme Court observed: “After a reversal of a circuit court’s judgment and remand for a new trial, the litigants are restored to their original rights as though no previous trial had occurred, including the right to dismiss or nonsuit a case.” 266 Va. at 407.

Moreover, citing Lockheed, Ford materially qualified the foregoing principle by noting exceptions which control the Gagnon brain injury remand: “Of course, this principle does not apply to issues which, under the ‘law of the case’ doctrine, are not subject to relitigation, see, Lockheed Info. Mgmt. Systems v. Maximus, Inc., 259 Va. 92, 108, 524 S.E. 2d 420, 429 (2000), or to parties and claims already dismissed with prejudice, or otherwise eliminated from a case, prior to a nonsuit, see Dalloul, 255 Va. at 514, 499 S.E.2d at 281.” Id. (emphasis added). At 2 of his Brief, Burns cites Dalloul v. Agbey, 255 Va. 511, 514 (1998) gratuitously, out of context.

Like Nassif and unlike the Gagnon brain injury case, Baumann involved one defendant, not Co-Defendants against whom Judgment were taken and not appealed on common issues. Also like Nassif and unlike Gagnon, Baumann involved the liability victor at trial and Appellee on appeal, not a liability loser at trial and Appellant on appeal like Burns.

Hence under materially distinguishable facts, Baumann (unlike Burns) correctly cites Nassif for the proposition that its particular defendant on “remand…may assert those defenses”. 269 Va. at 361. As Lockheed delineates, however, Nassif “at most” covers a liability “appellee” not liability “appellant” like Burns, 259 Va. at 108. See, supra; plus Nassif (and Baumann) does not apply where as in the Gagnon brain injury action Judgments were entered on common issues, were not appealed, and are final.

Burns’ citation of Evans v. Evans, 280 Va. 76, 84 (2010) is strictly for a general discussion of the “doctrine of negligence per se”. Substantively, Evans does not support negligence per se going to the jury on “limited” remand under the controlling “law of the case” in the Gagnon brain injury retrial.

Gagnon emphasizes, “The ‘law of the case’ doctrine applies both to issues that were actually decided by the court, and to issues ‘necessarily involved in the first appeal, whether actually adjudicated or not’.” Miller-Jenkins v. Miller-Jenkins, 276 Va. 19, 26 (2008)(emphasis added). See also, The Partnership Umbrella, Inc. v. Federal Ins. Co., 260 Va. 123, 132 n. 5 (holding that failure to assign error on appeal “prevents relitigation of these issues on remand as they are now ‘law of the case’. Lockheed”). The assault and battery of James, the simple negligence of Christine, the simple negligence of Burns, and the contributory negligence, provocation and other supposed fault of crime victim Gagnon were in fact raised, decided, unappealed, and final by the first trial and appeal in Gagnon - hence Burns’ current ostensible fault variants vis-à-vis were “necessarily involved,” even if arguendo not “actually adjudicated” - by the “law of the case” doctrine, so cannot be relitigated, on limited remand no less.

In summary:

1. The Virginia Supreme Court in VEPCO citing Nassif pronounced “when we limit issues on remand we do so with words of limitation or restriction,” 259 Va. at 323; and the Gagnon brain injury lawsuit violates the same if it ignores the mandate that “new trial [is] limited to Gagnon’s gross negligence claim against Burns,” Burns v. Gagnon, 283 Va. 657 (2012)(emphasis added), by relitigating Gagnon’s simple negligence claim against Christine, Gagnon’s simple negligence claim against Burns and/or Gagnon’s intentional tort claim against James, or any issues thereof;

2. The Virginia Supreme Court in Ford citing Lockheed pronounced the “principle [that ‘after a reversal of a circuit court’s judgment and remand for a new trial, the litigants are restored to their original rights as though no previous trial had occurred,’] does not apply to issues which, under the ‘law of the case’ doctrine, are not subject to relitigation,” 266 Va. at 407 (emphasis added); so the Gagnon brain injury suit violates the same if it ignores that the “law of the case” doctrine controls; and

3. The Virginia Supreme Court has pronounced in Miller-Jenkins that “the ‘law of the case’ doctrine applies both to issues that were actually decided by the court, and also to issues ‘necessarily involved in the first appeal, whether actually adjudicated or not’,” 276 Va. at 26 (emphasis added); so the Gagnon brain injury remand violates the same if it ignores that James’ assault and battery, Christine’s simple negligence, Burns’ simple negligence, and all fault and defenses vis-à-vis Gagnon already have been involved and decided and cannot be relitigated on remand - remand being limited to deciding “gross negligence”.

In the brain injury case of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia, Assistant Principal Burns at his leisure typed up 3 different revised accounts of what transpired: (1) Narrative on Gregory Gagnon, B-2 to B-5; (2) Narrative on Gregory Gagnon, B-6 to B-9; and (3) Statement on December 14, 2006, Greg Gagnon incident [February 14, 2008]. B-10 to B-14. His 3 accounts comprise Exhibit 1 of Defendant Burns’ deposition on April 30, 2009.

Va. Code. Ann. 8.01-404 admittedly prohibits the use of certain prior written statements to contradict a witness. Yet the Gagnon brain injury victim relies upon recent Virginia Supreme Court interpretations of §8.01-404, which actually uphold other use and even introduction of such prior witness statements at trial. E.g., Ruhlin v. Samaan, 282 Va. 371, 378-380 (2011); Gray v. Rhoads, 268 Va. 81, 88-90 (2004).

Gray indisputably upheld the introduction of prior transcribed witness statements as “party admissions in the plaintiff’s case-in-chief” - there being “an important distinction between a party admission and a prior statement used to impeach a witness’ present testimony”. 268 Va. at 88-90 (emphasis added). While the Gagnon brain injury case was on appeal last year, Ruhlin reaffirmed Gray and even upheld using a prior transcribed statement to “refresh recollection” of a party - “the act of refreshing a witness’s recollection does not involve contradicting that witness’s testimony”. 282 Va. at 378-380 (emphasis added).

Under authority of Gray, as proof of gross negligence on remand, the Gagnon crime victim definitely requests to introduce Burns’ 3 accounts “as party admissions in the plaintiff’s case-in-chief”. Under authority of Ruhlin, Gagnon also may request to use any or all of Burns’ 3 accounts for the “act of refreshing a witness’s recollection”.

As Ruhlin explains, §8.01-404 “does not…‘prohibit the proof of prior inconsistent statements by oral testimony,’ even when such statements were reduced to writing and signed by the witness”. 282 Va. at 378. Given the multiple inconsistencies in Burns’ statements on the core gross negligence matter of what Burns knew, thought, did, and didn’t do during the 2 hour window after Diaz warned him but before Gagnon was battered, denying admission and use of this unique evidence to the Gagnon brain injury victim is reversible error under Gray and Ruhlin.

On April 4, 2012, the Circuit Court for Rockingham County, Virginia, followed the Virginia Supreme Court’s controlling decisions in Gray and Ruhlin, just as the crime victim in Gagnon seeks Gloucester Circuit Court to do. “Based on the case law discussed above, and what is currently before the Court, the Court does not find sufficient basis to exclude the recorded statement at issue in this case,” concluded Judge Lane in Richards v. Reed, 2012, Va. Cir. LEXIS 33, *6 (Rockingham Apr. 4, 2010). “While there are limitations on how the recorded statement can be used at trial, the Court will not exclude the recorded statement at this time. The parties may object during trial should any part attempt to use the recorded statement in an impermissible manner.” Id. at *6-7. Richards also denied to Motion to Sever filed by the statement’s maker. Id.

The Virginia Supreme Court remanded Mr. Waterman’s brain injury case to Circuit Court for Gloucester County, Virginia, “for a new trial limited to Gagnon’s gross negligence claim against Burns,” Burns v. Gagnon, 2012 Va. LEXIS 93, *40 (Apr. 20, 2012). But the parties have disagreed over the scope of retrial.

“Pursuant to the ‘law of the case’ doctrine, when a party fails to challenge a decision rendered by a court at one stage of litigation, that party is deemed to have waived her right to challenge that same decision during the later stages of the ‘same litigation’.” Miller-Jenkins v. Miller-Jenkins, 276 Va. 19, 26 (2008). “The ‘law of the case’ doctrine applies both to issues that were actually decided by the court, and also to issues ‘necessarily involved in the first appeal, whether actually adjudicated or not’.” Id.

“Our decisions applying the ‘law of the case’ doctrine generally have involved litigation that has proceeded in a ‘linear’ sequence to trial, appeal, trial on remand, and second appeal, all under the same set of pleadings, see, e.g., Lockheed Info. Mgmt. Sys. Co. v. Maximus, Inc., 259 Va. 92, 108, 524 S.E.2d 420, 429 (2000)(stating that issue decided in first case and not appealed was not subject to relitigation on remand); Kemp, 160 Va. at 284, 168 S.E. at 431 (holding that issues decided on appeal were binding law of case on remand),” observes Miller-Jenkins, 276 Va. at 26. “However, we have never limited that ‘law of the case’ doctrine to litigation that occurs in such sequential fashion under one set of pleadings.” id.; evincing the doctrine’s applicability to the Gagnon brain injury litigation.

“In our decision in Kondaurov, we explains that our application of the ‘law of the case’ doctrine extends to ‘future states or the same litigation’,” explained Miller-Jenkins. “Thus, when two cases involve identical parties and issues, and one case has been resolved finally on appeal, we will not re-examine the merit of issues necessarily involved in the first appeal, because those issues have been resolved as part of the ‘same litigation’ and have become the ‘law of the case’.” Id. at 26-27.

“The mandate rule, itself an application of the law-of-the-case doctrine, forecloses further litigation of issues expressly of impliedly decided by the appellate court’,” Virginia Imports, Ltd. v. Kirin Brewery of America, LLC, 50 Va. App. 395, 407 (2007); “and relitigation of matters addressed by the trial court, but not addressed on appeal.” West v. West, 59 Va. App. 225, 233 (2011). Potentially significant to the Gagnon brain injury lawsuit, “[t]he refusal of the trial court to follow the appellate court mandate constitutes reversible error”. Virginia Imports, 50 Va. App. at 207.

Finally, for example, the Gagnon crime victim avers Defendant Burns “is bound by his agreement to the jury instructions given to the jury as the law of the case.” Ulloa v. QSP, Inc., 271 Va. 72, 80 (2006). “An instruction given without objection will not be disturbed on appeal, Rule 5:25, and becomes the law of the case, governing all subsequent proceedings.” Kondaurov v. Kerdash, 271 Va. 646, 658 (2006).

Additionally, collateral estoppel is “the preclusive effect impacting in a subsequent action based upon a collateral and different cause of action. In the subsequent action, the parties and their privies are precluded by litigation any issue of fact actually litigated and essential to a valid and final judgment personal judgment in the first action.” Lofton Ridge, LLC v. Norfolk So. Ry Co., 268 Va. 377, 381 (2004)(emphasis in original). It is analogous to the Gagnon brain injury action.

Again, the damage awards were not appealed and, moreover, damages in this case are “distinctly separable” from the limited liability issue of gross negligence. Cf., Chappell v. White, 184 Va. 810 (1946). Thus, the Gagnon brain injury victim argues that all damages awarded are the “law of the case” on limited retrial. See, Northwestern Elec. Power Co-operative v. Am. Motorists Ins. Co.,451 S.W.2d 356 (Mo. Ct. App. 1969).

On July 10, 2012, Circuit Court for Gloucester County, Virginia, scheduled the brain injury case of Gagnon v. Burns, No. CL08-572, for Initial Pre-Trial Conference. Per the mandate of the Virginia Supreme Court, retrial before a jury for sovereign immunity on the issue of gross negligence will be set then.

Currently the parties anticipate 3-4 days of retrial. After a 2-week trial in 2010, the jury found Assistant Principal Travis Burns guilty of simple negligence and awarded the brain injury victim roughly $6,100,000.00 in damages against all Defendants.

On June 15, 2012, the Virginia Supreme Court in Richmond denied the Petitions for Rehearing of Travis Burns as Appellant and of Gregory Gagnon as Appellant/Cross-Appellant in the crime victim appeal of Burns v. Gagnon, No. 110754 c/w Gagnon v. Burns, No. 110767. That maintains the Court’s opinion handed down on April 20, 2012, Burns v. Gagnon, 283 Va. 657 (2012).

In 2010, a Gloucester jury found Burns guilty of simple negligence for the permanent brain injury suffered by Gagnon at Gloucester High School, and awarded aggregate damages of $6,100,000.00 against Defendants. The Virginia Supreme Court agreed with Gagnon that Burns also should have been tried on “gross negligence,” id. at 677-678 and 683; so another Gloucester jury will decide that, hopefully in 2012.

On May 21, 2012, Mr. Waterman filed Petition for Rehearing of Appellee/Cross-Appellant in Burns v. Gagnon, No. 110754 in the Virginia Supreme Court, the $6,100,000.00 brain injury jury award on appeal from the Circuit Court of Gloucester County, Virginia. It alleges manifest errors of law vis-à-vis: (1) Burns assumed a duty of care as a matter of law; (2) Burns’ obligation was ministerial under the facts of this case; and (3) Burns’ negligence was gross as a matter of law.

On May 21, 2012, Mr. Waterman also filed Appellant’s Petition for Rehearing in the companion crime victim appeal, Gagnon v. Burns, No. 110767 in the Virginia Supreme Court. That asserts manifest errors of law vis-à-vis the responsibility of Burns as negligent tortfeasor for James Newsome as intentional tortfeasor and/or for Christine Newsome as negligent tortfeasor, and of James Newsome for Burns and for Christine Newsome.

On May 18, 2012, Petition for Rehearing of Burns was filed in the Virginia Supreme Court under the consolidated captions of Burns and Gagnon. Thereby Burns claims in the brain injury appeal: (1) the court’s finding that as a public official Burns owed no special duties to Gagnon precludes any findings that Burns assumed any duties for supervision and care of Gagnon as a matter of law; (2) Gagnon waived remand to the jury of any findings of assumed duties; (3) the issue of gross negligence previously adjudicated by the trial court acting as the trier of fact and these decisions constitute res adjudicata; and (4) Gagnon agreed to have the issues of gross negligent adjudicated by the trial court, acting as trier of fact, and thus waived the trial of gross negligence at trial.

On April 30, 2012, brain injury victim Gregory J. Gagnon filed Notice of Intent for rehearing as Appellee/Cross-Appellant in Burns v. Gagnon, No. 110754 in the Virginia Supreme Court; and as Appellant in Gagnon v. Burns, No. 110767. On April 25, 2012, Appellant Travis Burns filed Notice of Intent for rehearing in Burns v. Gagnon, No. 110754.

Both parties seek rehearing on the Opinion of the Virginia Supreme Court entered April 20, 2012, Burns v. Gagnon, 2012 Va. LEXIS 93 (Apr. 20, 2012). That Opinion is on direct appeals and on cross-appeal of a 2010 jury verdict for $6,100,000.00 in favor of the crime victim in Circuit Court for Gloucester County, Virginia.

On April 20, 2012, the Associate Press reported the Virginia Supreme Court’s opinion in Burns v. Gagnon 283 Va. 657 (2012), Mr. Waterman’s brain injury appeal of his $6,000,000.00+ verdict in Gloucester Circuit Court, Virginia. Dailypress.com headlined “Virginia Supreme Court orders new trial in Gloucester school fight lawsuit,” and WVEC.com headlined “New trial ordered in Gloucester school fight lawsuit”.

Also on April 20, 2012, valawyersweekly.com marqueed “School principal faces gross negligence claim” in Burns/Gagnon. Like the other online articles, it noted that Assistant Principal Travis Burns was already found liable to the crime victim for $1,250,000.00 for “simple negligence by a Gloucester jury”.

On April 23, 2012, dailypress.com followed up with more in-depth coverage of the Burns/Gagnon brain injury decision, titled “State high court rules Gloucester student should get new trial”. As its reporter observed, a jury could conclude that Assistant Principal Burns was in “utter disregard of prudence amounting to complete neglect of Gagnon’s safety;” and that "if a jury finds Burns committed gross negligence, then the damage award against him will stand and be payable by a multi-million dollar insurance policy the school system holds for him”. (emphasis added).

Crime victim Gagnon cannot collect from the student assailant, who lacks assets. He also cannot collect against the student instigator, who filed Bankruptcy.

On April 24, 2012, Daily Press published the same dailypress.com article in newsprint, but with the crime victim subtitle “Circuit court faulted for ‘refusing to instruct the jury on gross negligence’” and with the bolded block, “A key issue at the trial focused on whether (Travis) Burns, in not investigating a student’s claim that a fight involving (Gregory) Gagnon was imminent, committed simple negligence or gross negligence.” As the article also reported: “Burns told the student he would alert security and look into it, according to court testimony.” (emphasis added).

On April 20, 2012, the Virginia Supreme Court opined “we reverse in part and remand the case to the circuit court for a new trial limited to Gagnon’s gross negligence claim against Burns” in Mr. Waterman’s brain injury appeal, Burns v. Gagnon, 2012 Va. LEXIS 93, *35 (Apr. 20, 2012). It held that “the circuit court erred in refusing to instruct the jury on gross negligence” vis-à-vis sovereign immunity under common law, as had been requested by Mr. Waterman. Id. at *28.

“Upon receiving Diaz’ report [that ‘Gagnon was going to get into a fight sometime that day’], Burns wrote down Gagnon’s name, and said he would ‘alert security,’ that ‘he would look into it,’ and that he would ‘take care of it’, noted the Burns/Gagnon crime victim opinion. “In our view, the fact that Burns did not respond to Diaz’ report – or at least did not respond in time to stop the fight – could possibly lead a jury to conclude that he acted in ‘utter disregard of prudence amounting to a complete neglect of [Gagnon’s] safety,’ and thus was grossly negligent,” concluded the Supreme Court of Virginia. Id. (emphasis added).

As a legal predicate, the Virginia Supreme Court found that “Burns owed a duty to supervise and care for Gagnon” and that Burns is “liable if he failed to ‘discharge his…duties as a reasonable prudent person would under the circumstances’.” Id. at *16 (emphasis added). “By law, Gagnon’s parents had to send Gagnon to school, where it was the responsibility of Burns and other school officials to supervise and ensure that ‘students could…have an education in an atmosphere conducive to learning, free of disruption, and threat to person,’” observed the Burns/Gagnon brain injury opinion. Id. (emphasis added).

Also, the Virginia Supreme Court rejected Burns’ attempts to exclude the pivotal testimony of Shannon Diaz against him, which was taken in the initial brain injury suit against Burns. Id. at *28-35. Burns/Gagnon held that Diaz was unavailable for trial in person; that his de bene esse deposition was taken in a previous “action involving the same subject matter” and “between the same parties”; and that Diaz’ affidavit clearly was used for “the sole purpose of refreshing his recollection,” and Diaz’ statements to which Burns objected “were either not hearsay or [were] admissible under a well-established exception to the rule against hearsay”. Id.

Additionally, the Virginia Supreme Court found that Burns did not have any statutory immunity for Gagnon’s brain injuries. Burns/Gagnon explained that Va. Code Ann. §8.01-220.1:2(A) applies only to “teachers,” not “principals”; and that Va. Code Ann. §8.01-220.1:2(B) applies to someone’s “good faith reporting,” not someone who “failed to respond to such a report.” Id. at *19-23.

Burns/Gagnon did not reach Gagnon’s cross-appeal on joint and several liability because of retrial on Gagnon’s gross negligence claim. Id. at *35. Finally, Justice Mims cogently dissented as to sovereign immunity under common law in the brain injury appeal opinion. Id. at *36-37.

Trial is the monthly magazine of the American Association for Justice (“AAJ”) www.justice.org, formerly the American Trial Lawyers Association (“ATLA”), of which Mr. Waterman has been a member for decades. The cover of its April, 2012 issue headlines “DAMAGES: WORKING TOWARD MAKING YOUR CLIENTS WHOLE”.

The lead article is “Rethink Cross-Exams in Traumatic Brain Injury Cases”. Id. at 16-20. Its teaching coincides with Mr. Waterman’s experience in Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

Another article is “Illuminate Damages with a Video Settlement Brochure”. Id. at 26-29. Mr. Waterman recently used such a video to obtain a Virginia recording-setting settlement at mediation of a medical malpractice case.

“Dealing with Low Ceilings” is another Trial article. Id. at 30-34. Mr. Waterman faces such a damages “cap” – roughly $2,000,000.00 – in all Virginia medical malpractice cases.

“Recovery for Damaged Credit” is a fourth damages article. Id. at 22-25. It may be applicable in wrongful death as well as personal injury cases.

On March 14, 2012, a jury in Circuit Court for Montgomery County, Virginia, found that Virginia Tech officials were liable for the 2007 fatal mass shooting of 32 on its campus. The jury in Christiansburg awarded $4,000,000.00 to surviving family members for the wrongful deaths of students, Julia Pryde and Erin Peterson.

The Virginia Tech case raises some of the same legal issues pending before the Virginia Supreme Court in Richmond in Mr. Waterman’s brain injury appeal, Burns v. Gagnon, No. 110754 c/w Gagnon v. Burns, No. CL08-572. Common legal points of both crime victim lawsuits include sovereign immunity, gross negligence, special relationship, and legal duty.

In Johnson v. Hart, 279 Va. 617, 624 (2010), the Virginia Supreme Court held that counsel did not waive objection to the adverse portion of the judge’s letter opinion by endorsing the Court’s Order “seen and consented to”. Lionizing Va. Code Ann. §8.01-384, the Court explained that there was no “express waiver” as required thereunder, as counsel “clearly stated his opposition to [the adverse] ruling in memoranda” before the Order was entered. Id.
Waiver is claimed by the defense in the brain injury appeal of Mr. Waterman’s $6,100,000.00 Gloucester jury verdict, Burns v. Gagnon, No. 110754 in the Virginia Supreme Court. Oral Argument on the merits of that crime victim case is Wednesday, February 29, 2012.

On February 29, 2012, Mr. Waterman argued in the brain injury appeals of Burns v. Gagnon and Gagnon v. Burns, Record Nos. 110757 & 110767 in the Supreme Court of Virginia. It likely will be weeks before a written opinion is handed down.

Burns is appealing his liability, while Gagnon is cross-appealing gross negligence, in Burns; and Gagnon is appealing collection of his damages award in Gagnon. On August 27, 2010, a jury in Circuit Court for the County of Gloucester, Virginia, awarded the crime victim approximately $6,100,000.00 in damages for his personal injuries.

On February 24, 2012, the Virginia Supreme Court entered Order in the brain injury appeal of Burns v. Gagnon, No. 110754, granting Gagnon’s Motion to Strike re Section 1 of Burns’ 12/5/11 Reply Brief. Gagnon asserted that procedurally Burns had exceeded the permissible scope of replying, and that substantively Burns had no factual or legal basis for that section; and by Response filed on February 21, 2012, Burns belatedly withdrew his argument in Section 1 and consented to the Court striking it.

Burns v. Gagnon is a 2010 crime victim case in which a Gloucester jury awarded Mr. Waterman’s client approximately $6,100,000.00 for an assault and battery on school premises and hours. Oral argument before the Court in Richmond on the merits is scheduled for one hour on Leap Day, February 29, 2012.

On February 10, 2012, the Supreme Court of Virginia scheduled oral argument for February 29, 2012, in Mr. Waterman’s brain injury appeal of Burns v. Gagnon and Gagnon v. Burns, Record Nos. 110754 & 110767. Each case appealed is accorded 30 minutes, split between the parties equally.

In Burns, Burns appealed 4 liability points – legal duty, sovereign immunity, statutory immunity, and deposition admissibility – and Gagnon cross-appealed on the liability issue of gross negligence. In Gagnon, Gagnon appealed on the joint and several liability of Burns for the roughly $6,100,000.00 awarded to the crime victim.

On February 9, 2012, Mr. Waterman filed Motion to Strike of Appellant/Appellee/Cross-Appellant, Gregory Joseph Gagnon, in Burns v. Gagnon, Record No. 110754 in the Supreme Court of Virginia. Burns is the brain injury appeal from the 2010 jury award of approximately $6,100,000.00 in Circuit Court for Gloucester County, Virginia.

Gagnon’s Motion in Burns seeks to strike Section 1 of Reply Brief of Appellant, Travis Burns. The Motion and Memorandum in Support argue that Section 1 impermissibly raises new argument and, moreover, that the argument was not preserved for appeal, was not raised in the trial court, and is not well-grounded in fact (because of Gagnon having been an adult entitled to file his brain injury lawsuit when he did).

On December 5, 2011, Mr. Waterman filed Reply Brief in Gagnon v. Burns, No. 110767 c/w Burns v. Gagnon, No. 110754, in the Virginia Supreme Court at Richmond, Virginia. Those consolidated brain injury appeals raise issues of liability and damages on his $6,100,000.00 jury verdict in Circuit Court for Gloucester County, Virginia.

“We review matters of law de novo,” Banks v. Mario Indus. of Va., Inc., 274 Va. 438, 451 (2007); cites the crime victim in support of his appellate claim for joint and several liability in Gagnon v. Burns. “[C]ourts have the duty to correct a verdict that plainly appears to be unfair or would result in a miscarriage of justice”. Norfolk Bev. Co., Inc. v. Cho, 259 Va. 348, 353 (2000).

Another issue in the consolidated brain injury appeal before the Virginia Supreme Court in Burns v. Gagnon, No. 110754 c/w Gagnon v. Burns, No. 110767 is the admissibility of the key witness’ de bene esse deposition taken in the companion predecessor action that was non-suited. Va. Sup. Ct. Rule 4:7(a)(7) provides that depositions taken in a prior action may be used in a subsequent action “involving the same subject matter…between the same parties…as if originally taken therefore”.

Also pertinent to the Burns/Gagnon crime victim case is Rule 4:7(a)(4)(B), which provides that a witness’ deposition may be used at trial if the witness is “out of this Commonwealth”:

The deposition of a witness, whether or not a party, may be used by any party for any purpose in any action upon a claim arising at law…if the court finds: (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of this Commonwealth, unless it appears that the absence of the witness was procured by the party offering the deposition;

“[W]e adhere to the pain language used in the rule.” Thornton v. Glazer, 271 Va. 566, 570-571 (2006)(delineating that in King v. International Harvester Co., 212 Va. 78 (1971) “the absence of the witness was procured by the party offering the deposition” where the witness was the party plaintiff himself). Greater Richmond Transit Co. v. Massey, 268 Va. 354 (2004)(rejecting defense styling that eyewitness’ absence was “not the type of absence” allowing admission of deposition at trial under Rule 4:7(a)(4)); Lombard v. Rohrbaugh, 262 Va. 484, 500 (2001)(holding “Rule 4:7 of the Rules of the Virginia Supreme Court provides for use of depositions in court proceedings ‘against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof’.”); Willis v. Tenekjian, 68 Va. Cir. 203, 204-205 (Portsmouth Jul. 1, 2005)(holding deposition of retained medical expert located out-of-state and more than 100 from the Courthouse meets both independent criteria of Rule 4:7(a)(4)(B) for use as evidence at trial in lieu of witness live).

By contrast, Ayala v. Aggressive Towing and Transport, Inc., 276 Va. 169, 482-483 (2008) overturned introduction of a non-party’s “admission of responsibility in the form of a guilty plea on manslaughter charges,” explaining that its evidentiary use “is not governed by statute or Rule, but by hearsay exception doctrine governing declarations against a non-party’s penal interest.” But the prior testimony in the Burns/Gagnon brain injury action is distinguishable: it is a deposition governed by Rule 4:7(a) – plus the witness at bar was out-of-state and could not be commanded by Subpoena to return to Virginia for hearing or trial.

Moreover, even under the hearsay rule [which does not govern], admission is allowed when “a sufficient reason is shown why the original witness is not produced [at trial]”. Gray v. Graham, 231 Va. 1, 5 (1986); and in the Burns/Gagnon brain injury lawsuit, Plaintiff asserts the sufficient reason was stated by the witness in his de bene esse deposition: Diaz was active duty military on a 5-year hitch stationed out-of-state on a federal base enclave in Georgia awaiting deployment abroad during war-time. Further, this crime victim case also met the other requisites of Gray: “(1) that the party against whom the evidence is offered, or his privy, was a party on the former trial; (2) that the issue is substantially the same in the two cases; and (3) that the witness who proposes to testify to the former evidence is able to state it with satisfactory correctness”. 231 Va. at 5.

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 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.

“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.

On October 25, 2011, Mr. Waterman files Brief of Appellant in Gagnon v. Burns, No. 110767 c/w No. 110754 in the Supreme Court of Virginia in Richmond, Virginia. Waiver is an issue in that brain injury appeal of the jury’s $6,100,000.00 verdict in Circuit Court for Gloucester County, Virginia, CL08-572.

Under Virginia law, a proponent must “prove the elements of such waiver by clear and convincing evidence,” Baumann v. Capozio, 269 Va. 356, 361 (2005) (emphasis added); based on the opposition’s actions “when considered together,” Shelton v. Commonwealth, 274 Va. 121, 127 (2007)(motion and qualified endorsement of final order preserved) and “taken in context”. Wright v. Norfolk and W. Ry. Co., 245 Va. 160, 168 (1993)(lawyer voicing no objection to the “form” did not waive). Va. Sup. Ct. Rule 5:25 focus is whether the judge had “opportunity to rule intelligently on the issue,” Scialdone v. Commonwealth, 279 Va. 422, 437 (2010); so the Gagnon crime victim party need only have put the judge “on notice of his position,” not use a certain phrase, id. at 438; and the judge ruling on the issue evinces opportunity. Id. at 439 (and all cases therein).

Since 1992, it suffices that the Gagnon brain injury party “at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objections to the action the court therefore.” Va. Code Ann. §8.01-384 (A). “No party, after having made an objection or motion known to the court, shall be required to make such objection or motion again to preserve his right to appeal, challenge, or more for reconsideration of, a ruling, order, or action of the court. Arguments made at trial via written pleading, memorandum, recital of objections in a final order, oral argument reduced to transcript, or agreed written statements of facts shall, unless expressly withdrawn or waived, be deemed preserved therein for assertion on appeal.” Id. (emphasis added).

“Code §8.01-384(A)…is controlling of Rule 5:25, and we must apply the statutory provision.” Helms v. Manspile, 277 Va. 1, 7 (2009) (memo preserved). Brown v. Commonwealth, 279 Va. 210, 217, cert. denied, 131 S. Ct. 217 (2010)(oral argument preserved). “Under Code §8.01-384(A) and our analysis in Helms, if a trial court is aware of a litigant’s legal position and the litigant did not expressly waive such arguments, the arguments remain preserved for appeal.” Id. (emphasis added).

“While the doctrine of invited error remains good law, it simply has no application where, as here, the record shows that a party clearly objected to a specific ruling of the trial court to which error is assigned on appeal, even if the party failed to object to instructions applying or implementing the trial court’s prior ruling.” King v. Commonwealth, 264 Va. 576, 582 (2002). “The undeniable purpose of Code §8.01-384(A) is to relieve counsel of the burden of making repeated further objections to each subsequent action of the trial court that applies or implements a prior ruling to which an objection has already been noted.” Id. at 581 (not objecting to instruction not waiver).

Analogously to the Gagnon brain injury appeal, negligence issue was not waived by not objecting to jury submission, where before and after the judge was “fully apprised,” denied motion, and stated: “The objections to this ruling are preserved.” General Ins. of Roanoke, Inc. v. Page, 250 Va. 409, 412 (1995)(emphasis added). Likewise, there also was no waiver of underlying evidentiary objection maintained post-trial, even though plaintiff’s counsel replied, “‘That’s fine, Your Honor,’ when [disputed] tendered instruction was amended”. McMinn v. Rounds, 267 Va. 277, 280-281 (2004)(emphasis added)(and instruction cases cited therein).

The Summer 2011 issue of The Safety Report featured article “Brain Injury – Recognizing a ‘Hidden Disability’”. The Center for Disease Control and Prevention (“CDC”) estimates that annually there are 1,700,000 traumatic brain injury (“TBI”) victims in the United States, causing 1,370,000 emergency room visits, 255,000 hospitalizations, and 52,000 deaths. Id. at 42.

The CDC identifies the following most common causes of TBI: falls (35.2%), motor vehicle accidents (17.3%), assaults (10%), and other impact events (16.5%). The Brain Injury Association of America notes that TBI can have permanent physical, mental, emotional and psychological components, including personality changes. Id. at 42-43.

The crime victim represented by Mr. Waterman in Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia, on appeal before the Supreme Court of Virginia, No. 110767 c/w No. 110754, suffered such a multi-faceted TBI. That brain injury victim was assaulted on school premises and was awarded over $6,000,000.00 against his student assailant, another instigating student, and an Assistant Principal who did absolutely nothing after being forewarned and assuring he would notify school security.

On October 17, 2011, the Virginia Supreme Court granted in part and denied in part Appellant’s Motion for Writ of Certiorari in the brain injury action of Gagnon v. Burns, No. 110767 c/w 110754. Its Order made part of the appellate record the Jury Special Interrogatory forwarded by the Clerk, but not the Jury Verdict form offered by the Appellant and rejected by the Judge at trial (which apparently was destroyed).

Gagnon in on appeal from Circuit Court No. CL08-572 in Circuit Court for Gloucester County, Virginia. The jury awarded more than $6,000,000.00 to the crime victim represented by Mr. Waterman against former Assistant Principal Travis Burns, the student assailant, and the student encourager.

Like the rest of America, Virginia is exploding with “social media” – from YouTube to Facebook to Myspace to Twitter to LinkedIn to Lester v. Alliance Concrete to you-name-it! Most of the younger generation and increasing numbers of the older generation are expressing themselves online – including after being victims of car accidents, medical malpractice, assault and battery, and other personal injury.

In the 2010 brain injury case of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia, which now is on appeal before the Virginia Supreme Court, Nos. 110754 and 110767; social media was a would-be cornerstone of the defense. Defendants introduced into evidence various printouts they claimed were threatening profane communications and image posting of Plaintiff on Myspace.com.

Ultimately, the jury was not persuaded by the social media claimed in Gagnon. But like some other personal injury and wrongful death victims, Plaintiff was put to substantial expense and risk in proving that he was not responsible for the supposed Myspace.com materials.

Extensive expert computer forensics costing Plaintiff over $10,000.00 were required to show that the supposed Myspace communications and image posting of the brain injury Plaintiff actually were created by others. Fortunately for Plaintiff in Gagnon (but unfortunately for plaintiffs in other personal injury and wrongful death cases), social media messages and postings leave trails of evidence on hard-drives that usually are recoverable.

It always is important to be very careful about use of social media, particularly when one is victim of car accident, medical malpractice, other personal injury, or wrongful death. But as in Gagnon, it also may be important for victims to preserve and analyze hard-drives.

On September 15, 2011, the Supreme Court of Virginia awarded appeals on the Petition filed and cross-errors assigned by Mr. Waterman’s client in Gagnon v. Burns, Record No. 110767; and on the Petition filed by the opposition in Burns v. Gagnon, Record No. 110754. The appeals arise out of the 2010 Gloucester brain injury case resulting in a $6,100,000.00+ jury verdict.

The jury in Gagnon awarded principal amounts of $1,250,000.00 against Travis Burns, then Assistant Principal at Gloucester High School (“GHS”) and now Acting Principal of Page Middle School; $3,250,000.00 against the assailant, then a GHS student; and $500,000.00 against the assailant’s sister, then a GHS student too. It also award the brain injury victim pre-judgment interest retroactive to the assault and battery at GHS on December 14, 2006; which amounted to roughly $1,100,000.00 at verdict on August 27, 2010, and which continued to accrue at the rate of approximately $30,000.00/month thereafter.

The judge in Gagnon entered each award against each Defendant separately, thereby limiting collection by the brain injury victim to those respective amounts against each individual Defendant. On appeal, Gagnon argues that judgment should have been joint and several, thereby allowing collection of all amounts against any defendant – a critical point since Burns has $6,000,000.00 insurance coverage, the sister has filed Bankruptcy, and the assailant has few assets.

Burns assigned four errors on appeal in Gagnon: use of a deposition from a prior action; denial of statutory immunity; recognition of special relationship importing duty of care; and denial of sovereign immunity. The brain injury victim cross-appealed on sovereign immunity: if the Virginia Supreme Court were to reverse the trial judge’s finding of “ministerial duty,” then Gagnon argues he is entitled to retrial on the “gross negligence” exception.

By September 30, 2011, Gagnon must post an Appeal Bond of $500.00 and Gagnon and Burns must file Joint Appendix designations for Gagnon with the Virginia Supreme Court. The brain injury victim anticipates oral argument around December or January in Richmond, Virginia.

On August 31, 2011, Mr. Waterman and opposing counsel argue Gagnon v. Burns before a writ panel of the Virginia Supreme Court in Richmond, Virginia. Both parties have petitioned to appeal different aspects of the brain injury case in which Gloucester County jury awarded approximately $6,100,000.00.

In Record No. 110754 of Gagnon, Defendant Travis Burns raises four points that he claims require reversal of his liability finding. In companion Record No. 110767, Mr. Waterman raised the issue of joint and several liability, arguing that the Plaintiff brain injury victim of assault and battery is entitled to collect the full damages award against the Defendant Assistant Principal at Gloucester High School, who enjoys $6,000,000.00 in insurance coverage.

In Virginia, parties to personal injury suits are not guaranteed an appeal from the trial court. The brain injury litigant in Gagnon likely will be advised in September which, if any, issues will be granted a writ of certiorari by the Virginia Supreme Court.

Mr. Waterman’s Gloucester County brain injury case, Gagnon v. Burns, Record Nos. 110754 and 110767, has been scheduled for oral arguments before a writ panel of the Virginia Supreme Court on August 31, 2011. Both parties have been granted 10 minutes on their respective Petitions for Appeal.

Since there is no appeal of right to the Virginia Supreme Court in personal injury cases, a petitioning party must be granted a writ of certiorari for an appeal. The parties in the Gagnon brain injury lawsuit likely will receive decision on whether either or both will be granted an appeal (and, if so, on what issues) a couple months after their oral arguments.

In Gagnon, a Gloucester jury awarded $5,000,000.00 in principal and pre-judgment interest of approximately $1,100,000.00 to Mr. Waterman’s brain injury client. It found the assailant, his instigating sister, and a negligent Assistant Principal at Gloucester High School liable.

On May 16, 2011, Mr. Waterman filed Brief in Opposition to Petition and in Support of Assignments of Cross-Error of Appellee/Cross-Appellant, Mr. Gagnon, in Travis Burns v. Gregory Joseph Gagnon, et al, No. 110754 in the Virginia Supreme Court. The appeal is of his $6,100,000.00 jury verdict on August 27, 2011, in Circuit Court for Gloucester County, Virginia, for a brain injury victim of negligence, assault and battery.

In Burns v. Gagnon, Assistant Principal Burns assigns error on sovereign immunity, common law duty, statutory immunity, and de bene esse deposition admissibility. Cross-errors assigned by Mr. Gagnon in the brain injury appeal
are the trial court finding no gross negligence, as well as not submitting gross negligence to the jury.

On the duty issue in Burns v. Gagnon, Mr. Gagnon asserts that Va. S. Ct. R. 5:25 bars Assistant Principal Burns from complaining about jury instructions for the first time on appeal. At trial of the brain injury lawsuit, Assistant Principal Burns requested the negligence definition and finding instructions given, but not any other special “duty” instruction.

“It has been held that the failure to request an instruction at the trial bars any appeal on the point.” Friend, Law of Evidence in Virginia, §8-2 at 282 (6th ed. 2010 cumm supp.). Rose v. Jaques, 268 Va. 137, 158 (2004)(citing Va. S. Ct. R. 5:25 for not requesting instruction as failure to perfect in trial court and bar on appeal). “Accordingly, because [Defendant in Burns v. Gagnon] failed to pursue [any other instruction on duty to the brain injury student], we will not address the issue on appeal. Rule 5:25.” Oden v. Salch, 237 Va. 525, 531 (1989).

On April 25, 2011, Mr. Waterman filed a Petition for Appeal with the Virginia Supreme Court. It arises out of the brain injury case in Circuit Court for Gloucester County, Virginia, Gregory Joseph Gagnon v. Travis Burns, et al., CL08-572.

In Gagnon, the jury awarded the brain injury victim $3,250,000.00 against the assailant, another $500,000.00 against the fellow student who encouraged the assailant, and another $1,250,000.00 against the Assistant Principal who failed to notify school security after bring warned beforehand and assuring he would do so; plus more than $1,000,000.00 in pre-judgment interest. However, the trial court ruled that the jury awards were separate and only could be collected against each Defendant.

The Petition for Appeal in Gagnon seeks the Virginia Supreme Court to find Defendants jointly and severally liable, i.e., to hold that the jury awards can be collected against all Defendants. Assistant Principal Travis Burns enjoys $6,000,000.00 insurance coverage for the brain injury, while the other Defendants have no insurance coverage or known assets.

On March 16, 2011, additional pre-trial motions were heard in Marshall v. Moniz, No. CL08-2018 in Circuit Court for York County, Virginia, which is scheduled for jury trial in Yorktown beginning March 28, 2011. Marshall is a medical malpractice lawsuit seeking $12,000,000.00 for a victim who after ostensible routine out-patient surgery, suffered 3 surgical injuries at the hands of Defendants; underwent 5 repair surgeries; was hospitalized for over 8 months; almost died several times while an in-patient; incurred about $1,000,000.00 in medical bills; and is permanently, painfully, and debilitatingly disabled with 4-appendage neuropathy.

Among other things, Defendants continued their Motion to Quash Trial Subpoena to Mr. F. Jay Sweeney, IV to a subsequent pre-trial hearing. Plaintiff subpoenaed Mr. Sweeney as a trial witness to prove financial interest and bias of Sentara, since Plaintiff had no choice but to call so many of his Sentara healthcare providers as his witnesses: as Claim Manager for Sentara, Mr. Sweeney knows that Sentara’s $2,000,000.00 in medical malpractice liability insurance is at risk, thereby giving Senatra a significant financial stake in Marshall’s outcome.

Also, the Court denied Mr. Marshall his request that a spoliation instruction be given about destruction of evidence by Defendant, Dr. Moniz; which explicitly would have entitled the jury to infer negatively about the evidence destruction in deciding liability for medical malpractice. Nonetheless, Mr. Marshall still is entitled in Marshall to have his daughter testify that after his third repair surgery on October 24, 2006, Dr. Moniz drew a picture of Mr. Marshall’s internal anatomy to illustrate his understanding and mistake, but then threw away the diagram.

Additionally in Marshall, the Court granted in part Mr. Marshall’s Second Motion in Limine, precluding the non-treating neurologist hired by Defendant’s from speculating about causation of Mr. Marshall’s 4-appendage neuropathy in this medical malpractice case, since that retained expert admitted he did not know the cause. But the Defendants’ paid expert still is allowed to venture that Mr. Marshall’s neuropathy was not caused by his prolonged hospitalization and its incidents (as opined adamantly by his regular treating neurologist of 4 years) and instead supposedly is just a coincidence with the same.

Further, the Court in Marshall denied Defendant’s Motion to Exclude Reliance on Additional Materials. Thereby, Defendant’s inequitably had sought to preclude Mr. Marshall’s long-time treating neurologist from reviewing and testifying in rebuttal about the same additional patient records on which Defendants’ hired neurologist relied so heavily in the medical malpractice suit.

Continue reading "Virginia: Medical Malpractice – a Lawyer’s Evidence" »

On January 25, 2010, dailypress.com headlined, “Judge’s ruling may mean smaller damages in Gloucester lawsuit,” and subtitled “Decision expected to head to the Supreme Court”. It covered hearing that day in the brain injury case of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

In August, 2009, a Gloucester jury in Gagnon awarded the permanent brain injury victim $1,250,000.00 against Assistant Principal Travis Burns; $3,250,000.00 against the assailant; $500,000.00 against his encouraging sister; and $1,100,000.00 in pre-judgment interest on all of those principal amounts collectively. Plaintiff unsuccessfully argued that he was entitled to collect all amounts against the Assistant Principal, who enjoys $6,000,000.00 of insurance coverage, versus the impecunious brother and sister student tortfeasors, both of whom have filed for Bankruptcy.

At hearing on January 25th, the Judge noted that Plaintiff’s authority of the Restatement (Third) of Torts: Apportionment of Liability §14 was compelling; but ruled that there was no “joint and several liability” between the Defendants to the brain injury victim. Both litigants in Gagnon intend to appeal to the Virginia Supreme Court, the Assistant Principal about him being liable at all and Plaintiff about joint and several liability.

On January 10, 2011, Virginia Lawyer’s Weekly recognized Mr. Waterman for obtaining the 8th largest jury verdict in the Commonwealth of Virginia during 2010. On August 26, 2010, he received a jury award of $6,100,000.00 (including pre-judgment interest of $1,100,00.00) for a brain injury victim in Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

This is the second time Mr. Waterman has been recognized by Virginia Lawyers Weekly for a top Virginia jury verdict. In 2005, his $1,600,000.00 jury award in the landmark medical malpractice case of Riverside Hosp., Inc. v. Johnson in Newport News, which he successfully defended on appeal to the Supreme Court of Virginia in 2006, was the 13th highest across the state and remains the largest ever in Virginia for a patient fall.

By letter dated December 21, 2010, the trial judge in the brain injury case of Gagnon v. Burns, No. 08-572 in Circuit Court for Gloucester County, Virginia, directed an additional hearing prior to entry of Final Judgment. The continuing issue is Defendant Burns’ joint and several liability for the $6,100,000.00+ jury award on August 27, 2010.

The judge found sufficient merit to the points raised by Mr. Waterman in Plaintiff’s Supplemental Motion and Memorandum for Joint and Several Liability on December 16, 2010. His Motion in the Gagnon brain injury lawsuit will be scheduled after the New Year and allow Defendants opportunity to file a memorandum and argue in opposition.

On December 16, 2010, Mr. Waterman filed Plaintiff’s Supplemental Motion and Memorandum for Joint and Several Liability in the brain injury lawsuit of Gagnon v. Burns, Case No. 08-572 in Circuit Court for Gloucester County, Virginia. He found substantial new legal authority for a negligent joint tortfeasor being liable for the intentional torfeasor’s portion of the victim’s damage.

For at least 70 years, the Virginia Supreme Court has embraced the Restatement of Torts as authoritative. Example cases follow. Dunn, McCormack & MacPherson v. Connolly, 2010 Va. LEXIS 158 (April 20, 2010)(intentional tort); Kellermann v. McDonough, 278 Va. 478, 489 (2009)(assumed duty); Koffman v. Garnett, 265 Va. 12, 16 (2003)(assault elements)(sovereign immunity case); Dadato v. Strehler, 262 Va. 617, 628 (2001)(assumed duty); Infant C. v. Boy Scouts of America, Inc., 239 Va. 572, 583 (1990)(intentional misconduct); and Bloxom v. McCoy, 178 Va. 343, 349 (1941)(third persons).

The Restatement (Third) of Torts: Apportionment of Liability §14 at 117-121 (Cumm. 2010) is on point with the Gagnon brain injury case, and recognizes the joint and several liability of a negligent tortfeasor such as Defendant Burns for intentional tort. “Tortfeasors Liable for Failure to Protect the Plaintiff from the Specific Risk of an Intentional Tort – A person who is liable to another based on a failure to protect the other from the specific risk of an intentional tort is jointly and severally liable for the share of comparative responsibility assigned to the intentional tortfeasor in addition to the share of comparative responsibility assigned to that person.”

Like Virginia, sister-state West Virginia is one of the few remaining “pure joint and several liability” states. In 2004, the West Virginia Supreme Court followed Restatement (Third) of Torts §14; held on point that “tortfeasors whose wrongful acts or omissions, whether committed intentionally or negligently, concur to cause injury are joint tortfeasors who are jointly and severally liable for the damages which result from the wrong so committed”; and upheld that the negligent tortfeasor was jointly and severally liable for the entire verdict despite the jury “apportioning thirty percent liability to Appellant based on negligence and seventy percent liability to Robert Cleavenger based on his intentional act”. Strahin v. Cleavenger, 216 W.Va. 175 (2004)(emphasis added).

Further, for the definition of “joint tortfeasors,” the West Virginia Supreme Court in Strahin looked to Black’s Law Dictionary. Likewise, the Virginia Supreme Court looks to Black’s for its definition; and so too should Gagnon for the brain injury victim.

On December 10, 2010, the Newport News Division of Bankruptcy Court for United States District Court for the Eastern District of Virginia entered companion Orders in Chapter 7 proceedings for discharge, In re Christine D. Newsome, No. 10-51792-SCS, and In re James S. Newsome, Jr., No. 10-51881-SCS. Those Orders lifted the automatic stay of Bankruptcy for purposes of entering final judgment and setting appeal bond against both Debtors in the brain injury case of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

On August 26, 2010, a Gloucester jury in Gagnon awarded the brain injury victim $6,100,000.00: $3,250,000.00 against Mr. Newsome, $500,000.00 against Ms. Newsome, and $1,250,000.00 against the Assistant Principal, William Robert Travis Burns; plus $1,100,000.00 in pre-judgment interest on each of those principal amounts. At hearing on November 9, 2010, the Judge in Gagnon tentatively set appeal bonds of $4,000,000.00 for Mr. Newsome, $750,000.00 for Ms. Newsome, and $1,700,000.00 for Assistant Principal Burns.

On November 9, 2010, Circuit Court for Gloucester County, Virginia, heard the brain injury case of Gagnon v. Burns, No. CL08-572. The judge tentatively refrained from entering a Judgment Order to await hearing of Plaintiff’s pending motions for relief from automatic stays enjoyed by the pro se Defendants, James S. Newsome, Jr. and Christine D. Newsome, filing for Bankruptcy protection. If the stays are lifted as expected in December, Ms. Newsome will have to post a bond of $750,000.00 to appeal, while Mr. Newsome faces an appeal bond of $4,000,000.00.

Meanwhile the Court approved a $1,700,000.00 cash bond being posted by Virginia Municipal Liability Pool, which insures Assistant Principal Travis Burns for $6,000,000.00. The Court also entered Orders from hearing in the brain injury suit on June 22, July 15, and August 12, 2010.

Bicyclists frequently are victims of vehicle accidents, so should wear bicycle helmets to minimize wrongful death and brain injuries. Although Virginia does not have a statewide law, the following Hampton Roads and other localities have ordinances mandating bike helmets based on age: Albemarle County, City of Alexandria, Amherst County, Arlington County, Clarke County, City of Falls Church, Floyd County, City of Hampton, James City County, Town of Luray, City of Manassas, City of Manassas Park, City of Norfolk, Orange County, City of Petersburg, Prince William County, Stafford County, City of Vienna, Town of Wise, and York County.

Virginia law does require a bicycle light and reflector statewide to avoid vehicle accidents. A bike must have a white headlight visible 500 feet away when ridden from sunset to sunrise. Also, a bike must have a red reflector visible 600 feet away at all times.

Maintaining visibility at all times remains critical since being struck by motorists is by far the leading cause of wrongful death to bicyclists in Virginia and elsewhere. Hundreds of bicyclists are killed and injured every year by cars, trucks, and other vehicles across the United States.

On post-trial motion in the brain injury case of Gagnon v. Burns, No. CL08-572 in Gloucester Circuit Court, Virginia, the Defendant Assistant Principal unsuccessfully sought reversal of the jury’s finding of contributory negligence against him. Defendant Burns relied on a trio of VEPCO. Kelly v. VEPCO, 238 Va. 32 (1989); Smith v. VEPCO, 204 Va. 128 (1963); and VEPCO v. Wright, 170 Va. 442 (1938).

But those VEPCO cases uniquely were suspectible to judgment on contributory negligence being rendered as a matter of law by the Court. That is because the danger of electricity is a matter of common knowledge to all and especially because there were no material facts in dispute.

Those VEPCO cases were readily distinguishable. E.g., Bedford v. Zimmerman, 262 Va. 81 (2001); Love v. Schmidt, 239 Va. 357 (1990)(reversed and final judgment); and Cromer v. Johnson Village, L.L.C., 68 Va. Cir. 442 (Sep. 2, 2005 Charlottesville). Contrary to Defendant Burns’ incredible assertion that there was “no conflict in the evidence” in Gagnon; the material facts were hotly disputed at trial, the jury clearly found the brain injury Plaintiff’s account most credible, and a court is not free to substitute its judgment instead under the circumstances.

For example, the contemporaneous witness statements of Charles Buchanan and Defendant James Newsome himself along with the trial testimony of Buchanan, Ronnie Miller and Plaintiff show the brain injury victim simply going about his business at lunch, declaring a misunderstanding, refusing to fight, not fighting, and not even swearing. That does not constitute negligence as a matter of law in Gagnon.

On October 13, 2010, the Daily Press headlined “Judge upholds verdict” and subtitled “Defendants are liable for $5 million in damages to student”. It covers Mr. Waterman’s jury award in the brain injury trial of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

The Daily Press article recounted how at hearing in Gagnon on October 4, 2010, the Judge: (1) denied Defendant Burns’ post-trial motions; (2) upheld the jury awards of $1,250,000.00 against Assistant Principal Burns, $3,250,000.00 against James S. Newsome, Jr., and $500,000.00 against Christine D. Newsome, with more than $1,100,000.00 in pre-judgment interest on those principal amounts collectively; (3) awarded an additional $4,857.90 in Court costs against all Defendants jointly; and (4) ruled that to appeal Defendant Burns must post a bond of $1,700,000.00 and James Newsome must post a bond of $4,000,000.00. The Gloucester County School Board has met in closed session, presumably at least in part about how to proceed in this brain injury case.

The Defendant Assistant Principal opposed the imposition of joint and several liability against him at post-trial motions hearing in the brain injury suit of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia. But in so doing, Defendant Burns misstated the applicable negligence law.

He cited Finley, Inc. v. Waddell, 207 Va. 602 (1996) and Panther Coal Co. v. Looney, 185 Va. 758 (1946) ostensibly for the proposition that all tortfeasors acting independently versus in concert only are liable separately for brain injury. But Defendant Burns failed to disclose in Gagnon that Finley and Panther are “nuisance,” not “negligence,” cases.

Finley actually distinguishes between “nuisance” and “negligence”. “The torts of nuisance and negligence are distinct and differ in their nature and consequences. And the rules which have been formulated by the courts for determining joint liability for nuisance are not the same as those applicable to negligence. Joint liability for negligence may be imposed even though there is no concert of action between the joint tortfeasors and even though it is impossible to determine in what proportions each contributed to the injury. But in nuisance cases, joint liability depends upon whether there is concert of action between the joint contributors, unless the independent act of the one sought to be held is sufficient to cause the whole loss.” 207 Va. at 610-611.

Panther too delineates the same special “nuisance,” not “negligence,” formulation. 185 Va. at 770. To the same effect is Pillis v. Nash, 2 Va. Cir. 377, 380-381 (Jul. 16, 1973 Richmond)(quoting Finley).

Conversely, Gagnon is a “negligence” case of brain injury. Hence Defendant Burns’ citation of “nuisance” law is irrelevant and misleading.

Sullivan v. Robertson Drug Co., Inc., 273 Va. 84 (2007), a contribution action, reaffirms the application of joint and several liability in “negligence” cases like Gagnon. “If separate and independent acts of negligence of two parties directly cause a single indivisible injury to a third person, either or both wrongdoers are responsible for the whole injury. Thus, in determining the liability of a person whose concurrent negligence results in such an injury, comparative degrees of negligence shall not be considered and both wrongdoers are equally liable irrespective whether one may have contributed in greater degree to the injury.” Id. at 92.

Moreover, Sullivan concluded that inviting the jury to apportion damages between Defendants is erroneous. “We also conclude that the circuit court erred in giving Instruction O. This instruction was erroneous because it directed the jury to apportion damages based on the joint tortfeasors’ relative degrees of negligence. By improperly directing the jury to compare the negligence of the wrongdoers, Instruction O violated the established principle that comparative degrees of negligence are not to be considered in determining the liability of persons whose concurrent negligence results in an injury. Id. at 93.

On October 5, 2010, WAVY-TV Channel 10 featured on its evening news a special brain injury presentation at Carver Elementary School and Crittenden Middle School in Newport News that day. Mr. Waterman and the Virginia Trial Lawyers Association (“VTLA”) co-sponsored a pair of so-called Bike Helmet Programs, which gave the estimated 500 fifth and sixth graders in attendance free helmets for bicycling, skate-boarding, etc.

The main speakers at Carver and Crittenden were Dr. Paul Aravich of Eastern Virginia Medical School and Officer A.J. Matthews of the Newport News Police Department. VTLA, Mr. Waterman, Dr. Aravich and Officer Matthews emphasized that prevention – notably, always wearing a helmet – was the best protection against brain injury for children.

Dailypress.com had publicized the brain injury program shortly before the presentation. It headlined “Newport News students to learn about brains, get means to protect them,” recognizing Mr. Waterman as a co-donor with VTLA.

Afterward on October 5th wavy.com, the online publication of WAVY-TV 10, likewise covered the brain injury presentation. It headlined “Brain safety program for students” and subtitled “Some Newport News students get free helmets”.

On October 4, 2010, post-trial motions were heard in the brain injury suit of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia. Notably, the 7 issues raised by the Defendant Assistant Principal did not include any dispute about the amount of the $6,100,000.00+ jury verdict.

In Gagnon, the Judge summarily denied the Defendant Assistant Principal’s Motion for Reconsideration of Plea in Bar and Motion for Entry of Judgment in Favor of Defendant Burns Notwithstanding Verdict, upholding the jury verdict in favor of Plaintiff against all Defendants. After extended oral argument, the Judge also denied Plaintiff's Motion for Judgment of Joint and Several Liability against Joint Tortfeasor Defendants, holding that the jury award for the brain injury victim against each Defendant was separate.

Also after argument, the Judge in Gagnon granted in part and denied in part Plaintiff's Motion for Recovery of Costs, awarding $4,856.90 to the brain injury victim. Those awarded costs included a filing fee of $202.00, all trial subpoena service fees of $411.00, court reporter fees of $813.76 for de bene esse deposition of out-of-state witnesses, and (progressively) additional court reporter fees of $3,430.14 for trial appearance.

Additionally, the Gagnon Judge ordered that to appeal Assistant Principal William Robert Travis Burns and James S. Newsome, Jr. have to post bonds of $1,700,000.00 and $4,000,000.00, respectively. But the Judge declined to order an appeal bond for Christine D. Newsome, since she filed a Chapter 7 Petition for Bankruptcy in the Eastern District of Virginia on October 1, 2010, for discharge of her debt to the brain injury victim.

Details remain in the Gagnon brain injury case about bond requirements, order drafting, etc. So there will be another hearing on November 9, 2010.

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.

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 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.”

On August 29, 2010, PilotOnline.com and HamptonRoads.com headlined “Gloucester student wins $5M for lunchroom-fight injuries.” The post covers the brain injury verdict on Friday in Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

Defendant, Assistant Principal Travis Burns, enjoys $6,000,000.00 of liability insurance coverage through Gloucester High School. But his insurer refused to make any settlement offer whatsoever in Gagnon and instead forced the brain injury victim’s lawsuit to jury trial on its substantial merits.

On August 28, 2010, Richmond Times Dispatch headlined “Gloucester student injured in lunchroom fight wins $5 million” about Mr. Waterman’s brain injury case. It also subtitled “Jurors have awarded a former Gloucester High School student $5 million for permanent injuries he suffered in 2006 lunchtime fight” and “The jury on Friday also awarded Gregory Gagnon interest dating back to the fight, which could increase the award by $1 million.”

Also on August 28th, The Daily Press headlined “Former student awarded $5 million,” and subtitled “High school assistant principal, assailant and his sister will pay award to Gregory Gagnon”. Additionally on August 28th, Channel 13 in its evening news covered the brain injury trial of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

As to his liability, Assistant Principal Burns could not overcome 5 witnesses’ consistent testimony that he previously had admitted he “screwed up,” “made a big mistake,” and “dropped the ball”; and his own testimony that he “lost” his note about being forewarned, that he “threw out” his personal calendar, and that he created and repeatedly revised an internet document he ascribed to the Plaintiff. Regarding damages in Gagnon, Assistant Principal Burns abruptly withdrew as witnesses all 6 of his retained medical experts on the day that they were to testify, effectively conceding that the Plaintiff’s 10 medical experts and half-dozen or more fact witnesses were correct about his brain injury and other traumatic injuries.

On August 27, 2010, dailypress.com posted “Jury awards former Gloucester student $5 million” and “Assistant high school principal, assailant and his sister to pay award”. A jury in Circuit Court for Gloucester County, Virginia, awarded $6,100,000.00 to a brain injury victim after deliberating only 2 ½ hours in the “no offer” case is Gagnon v. Burns, No. CL08-572.

The jury award in Gagnon was for 1,250,000.00 against Travis Burns, Assistant Principal at Gloucester High School; $3,250,000.00 against James S. Newsome, Jr., the attacking GHS student; and $500,000.00 against Christine D. Newsome, an instigating GHS student who is the assailant’s older sister. The jury award also included $1,100,000.00 in pre-judgment interest for the brain injury Plaintiff.

Another student, Shannon Diaz, had warned Assistant Principal Burns of the impending altercation; and the Assistant Principal assured he would notify security, but then did absolutely nothing. Two hours later, after being egged on by his sister, the assailant in Gagnon sucker-punched the victim, who thereby was staggered into a brick pillar, hit his head, and suffered permanent brain injury and other traumatic damages.

On August 26, 2010, The Daily Press covered the brain injury trial for $9,350,000.00 in Gagnon v. Burns, No. CL08-572 in Gloucester Circuit Court, Virginia. It headlined: “Witnesses: Assailant insulted in school fight,” and subtitled “Friends say prior to throwing a punch, assailant started to walk away from fight”; after having posted the same on dailypress.com on August 25, 2010.

But the limited defense witnesses’ testimony covered by the newspaper was inconsistent internally, with one another, and with other witnesses and even the Defendants themselves. The most significant development in Gagnon actually occurred at the beginning of that day and was not covered: in a stunning turn of events, the defense abruptly withdrew all of its medical experts, thereby effectively conceding that the Plaintiff suffered permanent brain injury and multiple other deteriorating traumatic conditions.

On August 16, 2010, dailypress.com headlined “Former Gloucester student’s civil trial under way,” and subtitled “Jury selection included arguments over attorney’s question.” The coverage is for the $9,350,000.00 brain injury lawsuit of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia; which is being defended by Gloucester High School’s insurer.

During jury selection, the Court appropriately permitted Plaintiff’s lawyer, Mr. Waterman, to ask whether prospective jurors would believe an assistant principal over a student because of his status. Mr. Waterman also appropriately was allowed to ask prospective jurors in the Gagnon brain injury case whether they likewise would believe a doctor over the patient based on his status.

By the end of the trial’s first day, a fine jury comprised by 2 men and 7 women was impaneled by the parties and their lawyers. But 2 of those jurors in Gagnon were alternates, who ultimately would not decide the brain injury victim’s fate.

On July 15, 2010, the brain injury case of Gagnon v. Burns, No. CL08-572, was heard in Circuit Court for Gloucester County, Virginia, on various pre-trial Motions. In Gagnon, the Plaintiff student was injured seriously when he was attacked by another student at Gloucester High School, despite yet another student having warned Assistant Principal Burns of the impending hours beforehand.

Defendant Burns had moved the Court to keep from the jury a SPECT scans, which showed an abnormality in the Plaintiff brain injury victim. Among other things, however, Mr. Waterman presented medical literature in Gagnon supporting that the SPECT scan was accepted and reliable for diagnosing brain injury; so the defense conceded that the SPECT scan presented a jury issue.

A damage claim of $9,350,000.00 is at issue in Gagnon. Trial of the merits of the brain injury claim is scheduled for August 16-27, 2010.

On June 23, 2010, The Daily Press headlined “Gloucester schools trial set for August” and subtitled “Former student seeking millions after fight left him injured”. The article covered hearing on June 23, 2010, for the brain injury case of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.

At prior companion hearing in the Gagnon brain injury suit on June 10, 2010, Defendant Burns unsuccessfully tried to resist Plaintiffs’ Motion for Reconsideration, which the Court granted. At follow-up hearing on June 22, 2010, Defendant Burns unsuccessfully tried again to resist the Court entering the Order that memorialized its ruling in favor of Plaintiff on June 10, 2010.

Defendant Burns repeatedly had sought to have the Court deem admitted his assertion that the Plaintiff brain injury victim had sent offensive instant messaging on his MySpace account to his assailant, James Newsome. Significantly, however, the Court instead found that the evidence presented by Mr. Waterman at the day-long hearing on December 16, 2009, actually strongly indicated that his client, Greg Gagnon, did not send the disputed instant messaging.

First, Plaintiff’s expert attested on December 16th that the brain injury victim’s computer was infected with Spyware. Such Spyware permitted remote access to the victim’s MySpace, Yahoo and all other accounts by any third-party hacker.

Second, the testimony of the brain injury victim, both of his parents, his girlfriend and another friend on December 16th – which was unopposed and unopposable in fact – proved that it was physically impossible for Gagnon to have sent the disputed MySpace instant messaging on the day he was attacked. All witnesses testified consistently that at the time the instant messaging was launched on his MySpace account, the brain injury victim had just returned from the Emergency Room and was with them, laying on the couch in the living room (versus on the computer in his bedroom,), recovering from severe head injuries suffered in the attack, under the influence of prescription medication, and not even thinking or talking straight.

On June 10, 2010, multiple discovery issues were heard in the brain injury suit of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia. The Court first granted Plaintiffs’ Motion for Reconsideration and vacated its prior ruling that incorrectly had deemed certain Requests for Admission admitted when, in fact, the evidence presented by Mr. Waterman at hearing on December 16, 2009, strongly indicated that Plaintiff victims had a reasonable basis for denying the Requests as they did.

The Court in the Gagnon brain injury case also granted in part a Motion to Quash Subpoenas to NetZero and Verizon Wireless. The federal Stored Communication Act, 18 U.S.C. §2702-2703, prohibits producing the contents of a user’s private mail messages or stored content files.

On January 14, 2010, the brain injury case of Gagnon v. Burns was reconsidered in Circuit Court for Gloucester County, Virginia. Sovereign immunity still was denied the Defendant Assistant Principal.

The Judge reaffirmed his findings that the testimony of Shannon Diaz and other witnesses of Plaintiffs was more persuasive than the testimony of all Defendants; that the act of notifying school security of the reported impending physical attack of Greg Gagnon or otherwise investigating the report of Shannon Diaz omitted by Assistant Principal Burns was a ministerial act; and that the Plaintiffs have made out a sufficient case that Defendant Burns’ act constituted negligence in the non-performance of that ministerial act. The Judge also reaffirmed the admission into evidence of the deposition of a key independent eye witness, Shannon Diaz.

The brain injury case was scheduled for trial by jury on all issues for the week of August 16-20, 2010, at Gloucester Courthouse. Meanwhile the parties resume discovery.

In the Virginia brain injury case of Gagnon v. Burns, No. CL08-572 in Gloucester Circuit Court, the defendant assistant principal alternatively claims sovereign immunity by statute, Va. Code Ann. §8.01-220.1:2(A). Defendant argues that “teachers” in that statute actually means “principals” and “assistant principals” too.

It is hornbook law that statutes in general in derogation of the common law are to be construed narrowly. Further, it also is hornbook law that immunities in particular are disfavored and must be construed narrowly. §8.01-220.1:2(A) is no exception to those tandem rules of construction.

No jurisprudence construes §8.01-220.1:2(A). Tazewell County School Bd. v. Brown, 267 Va. 150 (2004), cited by the brain injury defendant, actually involved Va. Code Ann. §22.1-308, not §8.01-220.1:2(A). His reliance on 16 M.J. Schools §18 at 365 to extend “teachers” to “principals” likewise is misplaced: because Mitchie’s cites Tazewell County as its only Virginia jurisprudence on the definitional point, it necessarily falls with Tazewell County.

Tazewell County does not define “teachers” as including “principals” for all purposes. Tazewell County delineated that under the State Grievance Procedure “teacher” meant only classroom instructors and other non-supervisory personnel (non-principals) under Part II, while “teacher” expressly was broadened to include principals only under Part III. Id. at 159 and 162. Thus, since §8.01-220.1:2(A) does not expressly define “teachers” broadly to cover supervisory personnel like principals, §8.01-222.1:2(A) is analogous to Part II versus Part III of §22.1;308, i.e., covers classroom instructors versus principals too.

Further, other statutes clearly distinguish between “teachers,” on the one hand, and “assistant principals” or “principals,” on the other hand. For example, Va. Code Ann. §22.1-293 applies only to principals and assistant principals, while Va. Code Ann. §22.1-295 is limited to teachers.

In the brain injury case of Gagnon v. Burns, No. CL08-572 in Gloucester, Virginia, plaintiffs introduced as evidence at trail on sovereign immunity the de bene esse deposition of a key witness taken in the initial proceeding that was non-suited. Defendant Burns objected, referring generally to Va. Sup. Ct. Rule 7.

But Rule 4:7(a)(7) provides "when an action in any court of the United States or of this or any other state has been dismissed and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the one action may be used in the other as if originally taken therefore". Moreover, the Virginia Supreme Court has ruled on point in favor of Plaintiffs.

“[P]rior testimony is admissible if the court is satisfied: (1) that the party against whom the evidence is offered, or his privy, was a part to the former trial; (2) that the issue is substantially the same in the two cases; (3) that the witness who proposes to testify to the former evidence is able to state it with satisfactory correctness; and (4) that a sufficient reason is shown why the original witness is not produced.” Gray v. Graham, 231 Va. 1, 5 (1986). The salutary rule of Gray is followed by its progeny. E.g., Morgan v. Commonwealth, 50 Va. App. 369, 376 (2007); Jones v. Commonwealth, 22 Va. App. 46, 51 (1996); and Commonwealth Transp. Comm’r v. Wee Folks Nursery, Inc., 371 Va. Cir. 463, 464 (1996).”

In Gagnon v. Burns, No. 049352 in Gloucester Circuit Court, the brain injury victim alleges gross negligence as an exception to the sovereign immunity claimed by the defendant Assistant Principal. Plaintiffs allege that his failure to exercise any prudence, diligence or care for the safety of the student constitutes gross negligence as a matter of law.

“Gross negligence” is “that degree of negligence which shows indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety of [another].” Koffman v. Garnett, 265 Va. 12, 15 (2003). “A claim of gross negligence, which involves the ‘absence of slight diligence, or the want of even scant care,’ will not lie if the defendant exercised some degree of care with regard to the plaintiff. Colby v. Boyden, 241 Va. 125, 133, 400 S.E. 2d 184, 189 (1991).” Whitley v. Commonwealth, 260 Va. 482, 490 (2000). Jennings v. Hart, 602 F. Supp. 2d 754, 758 n.6 (W.D. Va. 2009)(Virginia law).

Thus, the Court in Colby held there was no gross negligence where the trial court found defendant “exercised ‘some degree’ of care for the safety of others.” 241 Va. at 133 (emphasis added). Likewise in Whitley there was no gross negligence where the trial court’s “findings show that defendants exercised at least some degree of care” toward the victim. 260 Va. at 490.

Conversely in Jennings, however, the Court ruled defendants were not entitled to sovereign immunity for “any alleged acts of negligence [gross or simple]” based on defendants having showed no degree of care for the victim. 602 F. Supp. 2d at 759 (emphasis added). “Holding otherwise would imply that [defendants] have complete discretion to ignore… and disregard….” Id. (denying sovereign immunity on Rule 12(b)(6) motion).

Moreover, the case cited by Gloucester Circuit Court at hearing on December 16, 2009, B.M.H. v. The School Board of the City of Chesapeake, Virginia, 833 F. Supp. 560 (E.D. Va. 1993)(Virginia law), supports Plaintiffs’ position too. In B.M.H., school teachers “failed to take action [about a threat…] even though they had stated an intention to do so”; and this allegation alone sufficed to support the claim of gross negligence. Id. at 562, 574.

POST 12/30 Attorneys Forum, Brain Injuries

In the brain injury case of Gagnon v. Burns, No. CL07-557-00 in Gloucester, Virginia, plaintiffs argue that defendant’s conduct in destroying evidence and approaching witnesses should be considered some evidence of gross negligence. The Virginia Supreme Court has declared that “a party’s conduct, ‘so far as it indicates his own belief in the weakness of his cause,’ is admissible as an admission against interest.” Gray v. Graham, 231 Va. 1, 9-10 (1986)(avoidance of being photographed). Such “acts or conduct of a party may be admitted into evidence, because they show a ‘consciousness of guilt’ and thus constitute, in effect, an admission by conduct. Charles E. Friend, The Law of Evidence in Virginia, §18-49(9)(1)(6th ed. 2003).” Commonwealth v. Wallace, 70 Va. Cir. 341, 343 (Portsmouth Mar. 29, 2006)(subsequent imposing statements to a prospective witness).

On December 18, 2009, The Daily Press again marqueed Hampton Roads attorney, Avery T. “Sandy” Waterman, Jr., Esq., under a headline entitled, “Judge says assistant principal negligent.” Mr. Waterman prevailed in a brain injury case in Gloucester Circuit Court, Gagnon v. Burns, No. CL08-572.

The article reports the witnesses’ testimony and judge’s ruling adverse to the Defendant Assistant Principal in this special case. It also notes that Defendant Burns has $6,000,000.00 of insurance coverage in Gagnon.

On December 16, 2009, Gloucester Circuit Court heard the Demurrer and the Plea in Bar of Virginia sovereign immunity in the brain injury case of Gagnon v. Burns, No.
CL08-572. At 9:15 p.m., after a 12-hour trial, Judge Long ruled in favor of Plaintiffs, who are represented by Avery T. “Sandy” Waterman, Jr., Esq.

The only witnesses Defendant Burns called in this special case besides himself were his self-interested co-Defendants: James Newsome, the admitted attacker who was prosecuted criminally for his offense against the victim; and his sister, Christine Newsome, who at least one witness says egged on her brother to punch the victim, Greg Gagnon. The self-serving accounts of the Newsomes about a supposedly demeaning profane remark being made by the victim were refuted by a non-party witness for Plaintiffs, fellow student eyewitness, Ronnie Miller; and by James Newsome’s own contemporaneous signed statement admitted into evidence, which showed no such remark at all.

Conversely, Plaintiffs called 10 witnesses on their behalf, mostly non-parties. Five witnesses testified that in Gagnon Assistant Principal Burns at Gloucester High School (“GHS”) admitted his fault to each of them independently in strong terms shortly after the attack. Former student Shannon Diaz testified Burns “apologized for dropping the ball”. Gloucester County Deputy Carwell testified Burns admitted, “I screwed up.” Gloucester County Sergeant Shuster testified Burns admitted, “I made a big mistake. I thought I had told you guys about it.” The brain injury victim’s father testified Burns admitted, “I feel I owe you an apology because I ‘dropped the ball’. I could have done something to stop this but didn’t.” The victim’s mother testified Burns admitted, “I know that you know that I talked to Shannon Diaz, and I am very sorry because I dropped the ball.”

Further, Burns admitted in Gagnon that he disposed of his handwritten note about his meeting with Diaz and his school calendar for the day of the attack. Plaintiffs asserted that was contemporaneous evidence spoliation in the special case.

In closing, Mr. Waterman stressed that Burns simply had failed to perform a “ministerial act,” i.e., a “no-brainer” (requiring no real discretion). He analogized that Burns ignoring the warning and brain injury following was like an Emergency Room doctor failing to address chest pains as a potential heart attack and instead wrongfully blowing them off summarily as only indigestion.

The Gloucester Court in Gagnon sat as trier of fact without a jury, including as to the issues of negligence of Burns; as requested by Defendant and Plaintiffs. The Court believed that the most persuasive authority was B.M.H. v. The School Board of the City of Chesapeake, Virginia, 833 F.Supp. 560 (E.D.Va. 1993)(Virginia law), and applied the four-factor test of Virginia sovereign immunity enunciated in Messina v. Burden, 228 Va. 301 (1984), relied upon therein. In this special case, only the test’s fourth prong was in issue: whether the act was discretionary or ministerial and whether there was any gross or simple negligence.

The Gagnon Court expressly found the testimony of Diaz and other witnesses of Plaintiffs more credible than the testimony of Burns and his Co-Defendant witnesses; found that the act of notifying GHS Security of the reported impending physical altercation omitted by Burns was a ministerial act; found that Burns was guilty of simple negligence, but not gross negligence, in the non-performance of that ministerial act; and found that the aforesaid findings are dispositive and preclusive as to the liability of Burns to Plaintiffs on the Amended Complaint. The Court overruled the Demurrer; denied the Plea in Bar; and ordered that Plaintiffs’ cause against Burns be set for separate trial forthwith only on the amount of damages for the brain injury as the sole remaining issue.

The Court denied Burns’ oral post-trial motion to strike the de bene esse deposition in this special case, which deposition was taken in the non-suited predecessor suit of a witness unavailable for this trial, Diaz. Burns participated in that companion suit deposition through his same counsel of record as in Gagnon.

Fortunately for Burns, as Assistant Principal at GHS, he enjoys $6,000,000.00 of liability insurance coverage for negligence in Gagnon. He is covered by a $1,000,000.00 liability policy, plus a $5,000,000.00 excess policy, for Gagnon’s brain injury.

On October 13, 2009, Gloucester Circuit Court ruled Plaintiffs were entitled to have their expert review first-hand the Defendant’s disputed computer documents and history of creation, modification, etc. The case is Gagnon v. Burns, involving a brain injury victim.

The Court also imposed deadlines in this brain injury case for document production, expert review and identification, and discovery depositions. Hearing on sovereign immunity is scheduled for December 16, 2009.

In medical malpractice suits alleging wrongful death and brain injury, Circuit Court for the City of Newport News, Virginia, has granted plaintiffs leave to amend their Complaints, including after the statute of limitation has run. The cases are Licare v. Riverside Health System, No. 0702452T-01, and Morel v. Mary Immaculate Nursing Center, Inc., No. CL0703905P-03.

Both medical malpractice decisions were predicted on three independent grounds: (1) Plaintiff not being provided all factual patient care records and papers voluntarily; (2) Plaintiff being delayed by defense pleading; and (3) Plaintiff having originally alleged generally “such other tortious acts and/or omissions as may be investigated, discovered and proved”. Orders were entered in the wrongful death case of Licare on February 1, 2008, and in the brain injury case of Morel on September 2, 2008.

On May 28, 2009, Gloucester Circuit Court granted over Objection the Plaintiff’s Motion to amend their complaint and to depose the primary Defendant for additional time. The case, Gagnon v. Burns, involves brain injury to a student attacked at Gloucester High School.

On May 8, 2009, Gloucester Circuit Court granted the Motion for Reconsideration of a brain injury plaintiff. The Court Order entered on May 28, 2009, required Gloucester High School to produce the office computer of the defendant Assistant Principal.

Previously the plaintiff brain injury victim had been denied discovery of the defendant’s computer. The case is Gagnon v. Burns.

Today begins the annual convention of the Virginia Trial Lawyer’s Association (“VTLA”) in Williamsburg, Virginia. Avery T. “Sandy” Waterman, Jr., Esq. is one of its Williamsburg Society members and will be attending.

VTLA is an association of trial lawyers from throughout Virginia, many of whom practice vehicle accident, medical malpractice, premises liability, and other personal injury litigation. The Association meets once a year, rotating sites with The Homestead in Hot Springs, Virginia, and The Greenbrier in White Sulphur Springs, West Virginia.

The annual convention spans a four-day weekend early each Spring. Members enjoy the wonderful surroundings amid days of continuing legal education (“CLE”).

CLE offerings cover personal injuries such as wrongful death, brain injuries, limb paralysis, and skin burns. Mr. Waterman soon will post new learning from it.

Defendants routinely oppose motions for leave to amend in wrongful death, brain injury and other cases against them. But Virginia courts routinely grant leave, consistent with the liberal mandate of Virginia Supreme Court Rule 1:8.

“Leave to amend shall be liberally granted in furtherance of the ends of justice.” Va. Sup. Ct. R. 1:8 (emphasis added). Fifty years ago the Virginia Supreme Court embraced its Rule’s liberality toward amendment as the modern trend. “The tendency of modern decisions is reflected in our Rule”. Goode v. Courtney, 200 Va. 804, 807 (1959).

Virginia Circuit Courts routinely grant leave to amend to further justice. E.g., Pedigo v. Flattop Mountain Landowner’s Assn., Inc, 73 Va. Cir. 26, 33 (Greene Dec. 7, 2006); PMG Invs., LLC v. Gravely-Robinson, 71 Va. Cir. 140, 141 (Roanoke Jun. 14, 2006). In PMG, the circuit court granted an amendment on an appeal de novo from General District Court. In Pedigo, the circuit court granted leave to amend after sustaining a demurrer.

“A trial court that fails to allow amendments is likely to have abused its discretion. See, e.g., Peterson v. Castano, 260 Va. 299 534 S.E. 2d 736 (2000); Mortarino v. Consultant Eng’g Servs., Inc., 251 Va. 289 467 S.E. 2d 778 (1996).” Drewery v. City of Roanoke, 63 Va. Cir. 609, 619 (Roanoke Sep. 7, 2001). Kole v. City of Chesapeake, 247 Va. 51 (1994); XL Specialty Ins. Co. v. Commonwealth, 47 Va. App. 424 (2006); and Dirtselis v. Dirtselis, 2005 Va. App. LEXIS 451 (Nov. 8, 2005). The Supreme Court of Virginia and the Court of Appeals of Virginia regularly have reversed and remanded for denial of leave to amend. E.g., Peterson, 260 Va. at 303-304; Mortarino, 251 Va. at 295-296; Kole, 247 Va. at 57; XL, 47 Va. App. at 437-438; and Dirtselis, 205 Va. App. LEXIS 451 at *11-14. In Mortarino, the circuit court properly had sustained a demurrer, but “abused its discretion in failing to allow the filing of the amended motion for judgment”. 251 Va. at 296.

In Booher v. Botetourt County Board of Supervisors, 65 Va. Cir. 53, 59-61 (Botetourt Apr. 29, 2004), Defendants variously opposed the motion for leave to amend on grounds of it being unseasonable, the movant not showing it would not be futile, and the movant not having tendered the proposed amendment. But the court found no untimeliness despite months having past since initial filing, where there was no trial date or discovery. Id. at 60. Next the court in Booher rejected the futility assertion: “There is no technical burden upon a party seeking leave to amend to demonstrate that the amendment will not be futile. Nothing within the Rules of Virginia’s jurisprudence calls for such a showing.” Id. Then the Court held that although producing the proposed amendment at hearing “may be preferable and is often done, it is not required.” Id. Finally, Booher observed that the burden instead was on defendant opposing the Motion, who could not show undue prejudice. Id. at 61.

Continue reading "Virginia Amendment: Va. Sup. Ct. Rule 1:8 – a Lawyer’s Motion " »

This is the last of three posts covering duties of care for protection under Virginia law against criminal conduct of third-parties causing wrongful death, brain injury, and other personal injuries. Virginia recognizes (gratuitously) assumed duties of care.

The Virginia Supreme Court recently reaffirmed that one can assume a duty of care when otherwise none would exist. “As the plaintiffs correctly point out, and the defendants do not dispute, we have cited with approval the legal principal that ‘[i]t is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all’.” Didato v. Strehler, 262 Va. 617, 628 (2001)(emphasis added)(and cases cited therein). Significantly, Didato held that even if plaintiffs were unable to establish the prevailing medical standard of care (duty) required the defendant doctors to act, i.e., to notify; the defendants having undertaken in fact to notify properly constituted that they “assumed the duty”. Id. at 629.

This is the second in a three-post series covering Virginia legal duties of care to protect against third-party criminal acts resulting in wrongful death, brain injury, and other personal injuries. In Taboada v. Daly Seven, Inc., 271 Va. 313, 327-328 (2006) on reh. 273 Va. 269 (2007), the Virginia Supreme Court held circuit court erred in sustaining a demurrer to an amended motion for judgment predicated on the duty and responsibility of an innkeeper to a “guest” (versus “business invitee”) for injuries sustained in a criminal assault by a third party on the innkeeper’s premises, where the innkeeper was on notice of its guests being in general danger of injury from prior similar criminal acts, making the act in question “reasonably foreseeable” (even though there was no warning in particular about it).

On an “issue of first impression,” the Virginia Supreme Court in Taboada found that innkeeper and guest presented a special relationship with an elevated “duty of ‘utmost care and diligence’ to protect the guest against reasonably foreseeable injury from the criminal conduct of a third party.” 271 Va. at 327. Taboada first observed that a common carrier’s duty of care to passengers was justified “because the passenger entrusts their safety to the carrier,” which his superior knowledge and ability about conditions and dangers. “This imbalance of knowledge and control warrants imposition of a duty on a common carrier ‘to protect its passengers against violence or disorderly conduct on the part of its own agents, or other passengers or strangers, when such violence or misconduct may be reasonably expected and prevented”. Id. at 325.

Taboada then likened common carrier passengers to innkeeper guests to impose the same duty of care.“[T]he guest of an innkeeper entrusts his safety to the innkeeper and has little ability to control his environment. The guest relies upon the innkeeper to make the property safe and the innkeeper’s knowledge of the neighborhood in taking the reasonably necessary precautions to do so. In this regard, it is reasonable for the law to impose upon the innkeeper, as a common carrier, a duty to take reasonable precautions to protect his guests against any injury caused by the criminal conduct on the part of other guests or strangers if the danger of injury by such conduct is known to the innkeeper or reasonably foreseeable.” Id. at 325-326. The Virginia Supreme Court in Taboada delineated that the requisite “notice of a specific danger” equated to the “concept of a reasonably foreseeable danger,” not the heightened degree of foreseeability if an “imminent probability of harm”. Id. at 327 (emphasis added). The plaintiff’s allegations of repeated prior criminal incidents on-premises over a protracted period satisfied the requirement of “notice that its guests were in danger of injury caused by similar criminal acts of third parties”. Id.

This concludes the five-part series on Virginia sovereign immunity pleaded in the brain injury case of Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Gloucester County Circuit Court. It covers the gross negligence exception, which the victim Plaintiff also was alleged.

In a 2003 school board employee case, the Virginia Supreme Court reversed and remanded the trial court’s judgment that a student plaintiff’s allegation for gross negligence against his football coach was factually insufficient as a matter of law. In Koffman, “gross negligence” was defined as “that degree of negligence which shows indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety of [another].” 265 Va. at 15. “Because reasonable persons could disagree on this issue” of alleged gross negligence in the tackling demonstration, the Virginia Supreme Court ruled in Koffman that “a jury issue was present”. Id. at 16.

Even Green v. Ingram, 269 Va. 281, 291-292 (2005), relied upon by the Assistant Principal in Gagnon, found plaintiff raised a jury question on the sovereign immunity issue of gross negligence, noting that the difference between gross negligence and ordinary negligence (versus recklessness willfulness or wantonness) simply was “one of degree” (versus a “matter of kind”). doing absolutely nothing at all after unequivocally assuring that he would alert security for the impending altercation about which he warned and his protection was sought presents a prima facie case of gross negligence to be decided by a jury.

The Assistant Principal in Gagnon claims that “Banks v. Sellers [ 224 Va. 168 (1984)] concerned facts almost identical to the facts alleged in this case”. But the brain injury victim in Gagnon asserts that Banks actually is distinguishable on multiple grounds.

First, Banks was handed down before the seminal opinions of the Virginia Supreme Court in Koffman, Friday-Spivey, Heider, and Lentz, when in general the then-evolving law of sovereign immunity still was not settled completely, when in particular the focus was on the judgment and discretion of the general position versus on the specific wrongful act as it is now. Second, Banks involved the “principal,” not an “assistant principal” as in the matter sub judice. Third, Banks only alleged simple negligence, not gross negligence as in the matter sub judice. Fourth, Banks involved a sharply divided Court, with three dissents and a “concur in result” as the swing vote; times in general and schools in particular unfortunately have changed materially for the worse in the 27 years since Banks was decided, school administration of necessity now routinely involves physical safety measures metal detectors, on-premises security, etc. as in the matter sub judice; and Taboada v. Daly Seven, Inc., 271 Va. 313 (2006) on reh. 273 Va. 269 (2007) calls into question the continuing viability of Banks even on its own facts.

Continue reading "Virginia Sovereign Immunity: Gross Negligence – a Lawyer’s Exception" »

This is the fourth in the five-part series from the brain injury case of Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Gloucester County Circuit Court. It concludes the ministerial act exception to Virginia sovereign immunity.

There are four additional sovereign immunity cases evincing that an individual employee like Defendant, Travis Burns, still is liable for “simple negligence in the performance of a ministerial act”. See, Exhibit A, Jennings v. Hart, No. 3:08CV00028, Memorandum and Order (W.D. Va. Mar. 17, 2009)(Virginia law); Hughes v. Lake Taylor City Hosp., 54 Va. Cir. 239 (Norfolk Dec. 13, 2000); Exhibit B, Fender v. Cendana, No. 96-6844, Op. Letter and Order (Albemarle Jan. 28, 1998); Deeds v. DiMercurio, 30 Va. Cir. 532 (Albemarle Sep. 4, 1991). They are dispositive of Gagnon.

In Jennings this year, sheriff department employees denied medical care to an inmate who ultimately died. Memorandum Op. at 1-3. United States District Court properly focused on the particular act in question (rather than the actor’s general position), principally citing James, and denied the motion to dismiss.

“The doctrine of sovereign immunity applies to acts that are discretionary, but not ministerial, in nature. * * * * The fact that the provision of medical care to Jennings initially involved the exercise of some judgment and discretion, however, does not necessarily mean that the Defendants should be entitled to sovereign immunity. Every act involves the exercise of at least some amount of discretion. See, Memorandum Op. at 5 (underlining added)(italics in original). Judge Moon in Jennings delineated, “Whether a matter is truly committed to the discretion of a government employee is therefore a question of degree and requires a analysis of the circumstances of a particular situation. * * * [W]ell before Jennings was taken to the hospital, the circumstances were such that the Defendants lacked the discretion to keep her at the jail and deny her the opportunity to be seen by a neurologist or other medical professional. Id. at 6. (emphasis added).

In Hughes in 2000, nurses and a therapist misclassified a patient as “DNR” versus “full code” status and failed to arrange her emergency transport as ordered, causing death. 54 Va. Cir. at 239. Norfolk Circuit Court correctly focused on the particular act in question (instead of the actor’s general positions), citing principally James, and overruled their special plea. Id. at 242-244.

Continue reading "Virginia Sovereign Immunity: Ministerial Acts – a Lawyer’s Exception (III)" »

This is the third in the five-part series from the brain injury case of Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Gloucester County Circuit Court. It continues the ministerial act exception to Virginia sovereign immunity.

Heider and Friday-Spivey have articulated and promoted the ministerial act exception to sovereign immunity, such that it increasingly has gained traction in the circuit courts throughout the Commonwealth. Not surprisingly, much of their progeny are cases about the ministerial act of driving. E.g., Lake, supra (law enforcement officer driving to suspected homicide scene in Prince George); Baker, supra (game warden driving on patrol for potential law breakers in Fauquier); Ferro, supra (social worker driving transport of an upset teenager in Prince William); Howard, supra (dump truck operator driving route in Richmond); Daddio, supra (fire fighter driving to station for fire call in Loudoun); and Diaz, supra (unspecified employee driving in Norfolk). However, various other cases exemplify the breadth of the ministerial act doctrine, including notably in circumstances apparently presenting more arguable judgment and discretion than the matter sub judice. E.g., Ford, supra (Commonwealth doctor leaving gauze in wound); Gray, supra (Commonwealth nurse placing line in wrong blood vessel); Habib, supra (Commonwealth transportation inspectors failing to correct defective roadway); MFC, supra (Commonwealth special agent destroying explosives); and Yassa, supra (City zoning administrator approving plot plan). In Gagnon, the brain injury victim asserts that Defendant Assistant Principal Burns failing to call the security officers as he needed and assured patently is a ministerial act.

In Ford, a 2002 malpractice case, the patient alleged that the defendant Commonwealth doctor negligently left infectious gauze in his hip would by “failing to fully explore the wound to remove foreign objects during dressing changes; by failing to suspect and search for a foreign body when the plaintiff showed signs of infection; and by failing to identify the hip wound as the site of infection”. 58 Va. Cir. at 429. Rappahannock County Circuit Court properly focused on the particular act in question (rather than the actor’s general position), citing James, Messina, and Heider; and overruled the plea in bar.

“While it may be said that providing health care services necessarily involves the exercise of some discretion, such discretion may be so inconsequential as to be of little significance when considering a grant of immunity to the health care provider.” Judge Horne continued in Ford, “the procedure that gave rise to the instant action involves a routine medical procedure. For purposes of the analysis, the Court determines based on the experience of Dr. Danisa, that this was a ministerial act not requiring the exercise of judgment and discretion.” Id. at 331-432.

In Gray, a 1996 malpractice case, Commonwealth nurses allegedly inserted a medication line into the wrongful blood vessel. Richmond Circuit Court properly focused on the particular act in question (instead of the actors’ general positions), considering James and citing Heider.

Continue reading "Virginia Sovereign Immunity: Ministerial Acts – a Lawyer’s Exception (II)" »

In Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Circuit Court for Gloucester County, the brain injury victim is contesting the Assistant Principal’s Plea of Sovereign Immunity. One ground for opposition is that the Defendant’s alleged wrongful act is simply ministerial, which continues the five-part series.

Following James v. Jane, 221 Va. 43, 53 (1980) and Messina v. Burden, 228 Va. 301, 313, the Virginia Supreme Court in Lentz v. Morris, 236 Va. 78, 82 (1984)(emphasis added), focused the inquiry on “whether the alleged wrongful act involved the exercise of judgment and discretion” or simply was a ministerial one. Subsequently in First Va., the wrongful act was a Deputy Clerk’s indexing error. The Virginia Supreme Court reversed circuit court sustaining a demurrer, because “the negligence underlying the bank’s claim was malfeasance of a ministerial duty and ther cloak of sovereign immunity does not cover such torts.” 225 Va. at 77.

Again citing James, the Virginia Supreme Court in Heider again focused on the wrongful act and elaborated that some situations present only a “ministerial obligation,” while other instances involve “acts of judgment and discretion;” such that defendant’s claim of sovereign immunity must be scrutinized on the particular facts of the case. “The holding and principle announced fifty years ago in Wynn [v. Grandy, 170 Va. 590 (1938)] remain viable today. While every person driving a car must make myriad decisions, in ordinary driving situations the duty of due care is a ministerial obligation. The defense of sovereign immunity applies only to acts of judgment and discretion which are necessary to the performance of the governmental function itself.In some instances, the operation of an automobile may fall into this category, such as the discretionary judgment involvement in vehicular pursuit by a law enforcement officer. However, under the circumstances of this case, the simple operation of an automobile did not involve special risks arising from the governmental activity, or the exercise of judgment or discretion about the proper means of effectuating the governmental purpose of the driver’s employer. Thus, on the showing here, the trial court properly held that Heider was not entitled to the defense of sovereign immunity.” 241 Va. at 145 (citations omitted). In Heider, a deputy sheriff driving while serving judicial process had collided with a motorcyclist.

The Virginia Supreme Court reaffirmed Heider in Friday-Spivey in 2004, focusing on the wrongful act yet again. In Friday-Spivey, a fire truck operator unsuccessfully sought sovereign immunity for personal injuries caused in responding to rescue a child locked in a car. The defendant unpersuasively cited “as examples of discretion and judgment his determination of the route to be taken and the maneuvering of the 40,000 pound pumper truck through traffic [and] the inherent difficulty and special skills required in operating a specialized piece of equipment”. Id. at 388. “Despite a natural inclination to classify the report of a child in a locked car as an ‘emergency,’ the facts of the case do not support the conclusion that Collier’s driving involved the exercise of judgment and discretion beyond that required for ordinary driving in routine traffic situations. * * * * The special skill and training required to operate a fire truck under these circumstances is not the exercise per se of judgment and discretion for purposes of sovereign immunity.” Id. at 390. The defendant’s “driving was a ministerial act requiring no significant judgment and discretion beyond that of ordinary driving in routine traffic.” Id. Thus, the Virginia Supreme Court concluded in Friday-Spivey that the fire truck operator “did not exercise judgment and discretion beyond that necessary in a ordinary driving situation – a ministerial act. As such, he is not entitled to sovereign immunity for his alleged negligence.” Id. (reversing grant of plea in bar and remanding for further proceedings).

In Virginia, the Commonwealth, counties, cities, towns, school boards, agencies, and sometimes even their employees enjoy sovereign immunity from the wrongful deaths, brain injuries and other personal injuries they cause. Currently an Assistant Principal is claiming sovereign immunity for brain injuries suffered by a student who was attacked at Gloucester High School after the Assistant Principal allegedly was warned of the impending attack, assured he would notify security personnel on premises, and did nothing instead. See, Gregory J. Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Gloucester County Circuit Court.

This is the first in a five-part series on exceptions to Virginia sovereign immunity. The series will be followed by a related post on duties of school board employees and others.

Virginia law is clear that even if a governmental entity is immune, its employees individually still are liable for simple negligence in the performance of a ministerial act. E.g., Friday-Spivey v. Collier, 268 Va. 384, 388-391 (2004); Heider v. Clemons, 241 Va. 143, 145 (1991); First Va. Bank-Colonial v. Baker, 225 Va. 72, 78 (1983); Lake v. Mitchell, 2008 Va. Cir. LEXIS 118, * 1, 7-8 & 12, (Prince George May 23, 2008)(relied on by Defendant at bar at discovery hearing); Baker v. Miller, 74 Va. Cir. 98, 99-100 (Fauquier Aug. 7, 2007); Ferro v. Shifflett, 72 Va. Cir. 298, 302-303 (Prince William Nov. 29, 2006); Howard v. Streater, 71 Va. Cir. 61 (Richmond Apr. 24, 2006); Ford v. Commonwealth, 58 Va. Cir. 428, 429-431 (Rappahannock Apr. 3, 2002); Daddio v. Ashley, 43 Va. Cir. 283, 285 (Loudon Sep. 3, 1997); Gray v. Commonwealth, 40 Va. Cir. 419, 421-422 (Richmond Oct. 24, 1996); Diaz v. Mendoza, 46 Va. Cir. 491, 493 (Norfolk Aug. 16, 1995); Habib v. Blanchard, 25 Va. Cir. 451, 453-455 (Fairfax Nov. 13, 1991); MFC Partnership v. Foster, 6 Va. Cir. 349, 356-357 (Lee Jul. 16, 1986); and Yassa v. Moore, 3 Va. Cir. 189, 191-192 (Alexandria May 2, 1984). Additionally, it is clear that governmental employees also still are liable for gross negligence in the performance of any act, including one of judgment and discretion. E.g., B.M.H. v. The School Board of the City of Chesapeake, Virginia, 833 F. Supp. 560, 574 (E.D. Va. 1993) (Virginia law)(school board employee); Koffman v. Garnett, 265 Va. 12, 15 (2003)(school board employee); Verry v. Barry, 72 Va. Cir. 318, 321 (Fairfax Jul. 27, 2006); Kern v. Allee, 2006 Va. Cir. LEXIS 19, * 6-7 (Nelson Feb. 8, 2006)(school board employee); Daddio, supra, 43 Va. Cir. at 286; and Hawkins v. Pinkerton’s, Inc., 42 Va. Cir. 316, 319 (Petersburg May 27, 1997)(cited by Defendant). Cf., Altizer v. County of Tazewell, Va., 2008 Va. Cir. LEXIS 13, * 3-5 (Nelson Feb. 8, 2008).

Plaintiffs in Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Circuit Court for Gloucester County, Virginia, are the family of a student who suffered brain injuries. Defendant Assistant Principal additionally seeks to interpose Va Code Ann. §8.01-47.

§8.01-47 immunizes a “principal…who, in good faith with reasonable cause and without malice, acts to report, investigate or cause any investigation” of certain school activity vis-à-vis the “making of such report, investigation or disclosure”. §8.01-47 must be strictly construed because it is in derogation of common law. Morris, supra.

But Gagnon is not an action for slander, libel, invasion of privacy, etc. for “making of such a report, investigation or disclosure,” as contemplated by §8.01-47. §8.01-47 is not applicable to an action for physical personal injuries for not making an investigation and taking action, which is the facts of Gagnon.

In Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Circuit Court for Gloucester County, Virginia, inter alia Defendant Assistant Principal seeks to interpose Va. Code Ann. §15.2-209. But the statute’s “notice” requirement is inapplicable to this brain injury case on several independent grounds.

§15.2-209 was passed in the 2007 session of the General Assembly and did not become effective until July 1, 2007. Hence it does not apply retroactively to causes of action accruing before that date.

§15.2-209 as a statute “in derogation of the common law . . . must be ‘strictly construed and not . . . enlarged in [its] operation by construction beyond [its] express terms’.” Univ. of Va. Health Servs. Found v. Morris, 275 Va. 319, 332 (2008). It also must be strictly construed because §15.2-209 so states expressly. See, §15.2-209(G). Such strict construction limits the applicability of §15.2-209 in several significant ways.

First, by its own language, §15.2-209 is strictly limited only to a claim for simple “negligence”. See, §15.2-209(A). It does not apply to claims of recklessness or gross negligence.

Second, by its own language, §15.2-209 applies only to a “county, city, or town,” not to a “school board”. §8.01-222 was the predecessor of §15.2-209: §8.01-222 was repealed incident to §15.2-209 being enacted by 2007 Senate Bill 913, approved March 15, 2007. §8.01-222 covered only a “city” or “town”. §15.2-209 added only a “county”. If the General Assembly meant to cover a “school board,” it could, should and would have done so in its new enactment; but it did not.

Continue reading "Gloucester County Schools: Va. Code Ann. §15.2-209 – a Lawyer’s Notice " »

On February 23, 2009, Gloucester Circuit Court ruled that a Plaintiff brain injury victim was entitled to all school records concerning his attack, despite Gloucester High School keeping them solely in the files of his attacker, another student named Co-Defendant with its Assistant Principal. The case is Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572.

Assistant Principal Burns and the Gloucester County School Board had sought to keep the investigative records secret, claiming Va. Code Ann. § 22.1-287 imbued them with “privilege”. However, §22.1-287 only subjects such records to certain limitations (versus absolute privilege), and specifically excepts involved students, their parents, and judicial discovery.

Plaintiff brain injury victim successfully relied on Bunch v. Artz, 71 Va. Cir. 358 (Portsmouth Aug. 15, 2006), the leading opinion applying §22.1-287. In Bunch, school pupil records were subject to the ordinary rules of discovery and ordered produced.

Newport News Circuit Court ruled on discovery matters in a patient fall suit, Shakshober v. Riverside Hospital, Inc., alleging medical malpractice and resulting brain injury. That was at contradictory hearing on February 9, 2009.

The primary sweep of the impending Discovery Order was disgorging from Riverside materials and of its Nursing Schools. Included were materials, other information and witnesses on Nursing School policies, procedures, protocols, presentations, and all teaching or instruction about patient falls.

Having its Nursing Schools’ material, information and testimony helps greatly in exposing the truth about what goes on vis-à-vis nursing error and holds Riverside to it. Evidence which otherwise arguably may not be introduced in a medical malpractice case when offered as that of the Riverside entity employing a substandard nurse, still may be admissible as that of Riverside’s Nursing Schools. Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 528-530 (2006).

Secondarily, but importantly, the Discovery Order compels Riverside to tender appropriate corporate representatives for deposition. Riverside unfairly continues not to tender its most knowledgeable personnel for its deposition, which dodges patient fall and other medical malpractice victims pinning down the corporation in testimony.

A Virginia motorist faces potential liability for a vehicle accident that injures bicyclist. Avery T. “Sandy” Waterman, Jr., Esq. has filed suit in the Newport News Division of United States District Court and recovered $350,000.00 for wrongful death of a bicyclist struck by a York County bus. McCormick v. White, No 4:97cv44 (E.D. Va.).

The recumbent bicyclist in McCormick just had dipped his wheels in the Atlantic to start a cross-country trek to the Pacific when he was rear-ended by a school bus on the Colonial Parkway near Yorktown. The victim suffered a fatal brain injury.

The only surviving witness to the McCormick vehicle accident was the bus driver. Roadway, bicycle, and bus data controverted the self-serving account of the Defendant.

Mr. Waterman retained a civil engineer to survey the Colonial Parkway, bicycle and bus, and a physicist/animator to input and calculate data. The end-product was an extraordinary video that convincingly animated the vehicle accident scenario.

The McCormick wrongful death suit settled promptly after the video animation was provided to the defense by Mr. Waterman. The settlement was reported by Virginia Lawyers Weekly.

Despite overwhelming statistics that seatbelt use greatly reduces wrongful death and brain injuries in car accidents, some drivers and passengers make up unfounded excuses for not wearing them. Some common erroneous thinking is:

A. I am, or am riding with, a good driver;

B. I am not driving far from home;

C. I am not driving on the highway; and

D. I rather be thrown away from the crash than trapped inside the vehicle.

A military “Safety Training 2005” publication based on statistics from the National Highway Transportation Safety Administration states the real facts:

1. Even good drivers have vehicle accidents beyond their control due to vehicle, weather, road and/or other driver conditions;

2. Most vehicle accidents happen within 25 miles of home;

Continue reading "Car Accidents, Wrongful Death & Brain Injury – A Lawyer’s Facts" »

Car accidents occur constantly. But many crash-related wrongful deaths and brain injuries can be avoided by wearing seatbelts.

In September, 2008, the National Highway Transportation Safety Administration (“NHTSA”) noted for passenger vehicle accidents: “Research has found that lap/shoulder seat belts, when used reduce the risk of fatal injury by front-seat passenger car occupants by 45 percent and the risk of moderate-to-critical injury by 50 percent. In 2006 alone, seat belts saved an estimated 15,383 lives.”

NHTSA statistics show general seat belt usage up incrementally and wrongful deaths decreasing. This Valentine’s Day, be sure that your loved ones and you “buckle up” to minimize the chance of wrongful death and brain injury.

The defense may dispute mild and even moderate traumatic brain injury, particularly where neuroimaging is inconclusive. The defense opportunistically may contest the fact of brain injury and, alternatively, may assert that the victim is malingering.

The victim’s lawyer must protect his brain injury client against any such unfounded ploy with motions in limine, objections at trial, etc. As gatekeeper, Virginia Courts must be vigilant against introduction of malingering testimony, which is highly prejudicial and variously inadmissible.

Although the Virginia Supreme Court has not ruled substantively on malingering testimony, many of its opinions provide ample general guidance such evidence. For example, the defense bears the burden of proving that such testimony is founded on proper expert qualifications, assists the jury, does not invade the jury’s province, does not violate physician-patient confidentiality, is not speculative, is not missing variables, does not include hearsay, is based on scientifically reliable methods, is to the appropriate degree of certainty, is not cumulative, is more probative than prejudicial, etc.

Use of neuroradiology is critical to diagnosis of traumatic brain injuries in general. Use of the best imaging techniques may be crucial to accurate evaluation of mild and diffuse axonal injury in particular.

Computerized Axial Tomography (“CAT”), renamed Computer Tomography (“CT”), scans still are entrenched as the front-line neuroradiological imaging for many because of their relative availability and low cost. But “CAT fever” has its limitations and detractors, with CT scans showing false negatives in virtually all cases of mild traumatic brain injuries and in some others too.

Magnetic Resonance Imaging (“MRI”) is more sensitive than CT. But most traditional clinical MRI also show mild traumatic brain injuries as normal, because it relies on signs of edema and structural abnormalities, which are just the tip-of-the-iceberg fordiffuse axonal injury.

The vast majority of MRIs are low resolution 0.15-1.5 Tesla (“T”); relatively few are the “gold standard” high-resolution 3T available by 2004. In the United States, there are only a half-dozen 7T (located in Boston, New York City, Philadelphia, Pittsburgh, Minneapolis and Portland); and a single 9.4T in Chicago, the world’s most powerful medical one, which hopefully soon will offer real-time view of metabolic processes safely.

New MRI-based diffusion tensor imaging (“DTI”) advances sensitivity toward micro-structural lesions and changes implicated thereby. This brilliant cutting-edge technique measures fractional anisotropy variations and fiber bundle discontinuity in white matter locations.

Functional imaging techniques of positron emission tomography (“PET”) Single Photo Emission Computed Tomography (“SPECT”) and MRI-based spectroscopy (“MRS” or “MRSI”) are complementary to the foregoing anatomical imaging. PET measures cellular function, SPECT measures blood flow, and MRS/MRSI measures chemical changes – all as metabolic markers of neuronal integrity or damage.

Continue reading "Virginia Traumatic Brain Injuries – a Lawyer’s Diagnostic" »

Traumatic brain injuries frequently are closed-head sequelae of high-velocity acceleration, deceleration and/or rotational force incidents, such as vehicle accidents or patient falls. Significantly, no direct impact is necessary for causation, although often it is present and intensifies injury.

Rapid external acceleration, deceleration and/or rotational forces propel the unprotected soft brain within the hard bony skull. Those forces strain, stretch and finally shear delicate minute blood vessels and nerve fibers irrepairably, and are followed by biochemical degradation.

Much traumatic brain injury consists of diffuse axonal injury. Lesions and lacerations dispersed throughout the brain are the observable tip-of-the-iceberg of such injury and ultimately result in permanent degeneration, scarring and/or cavities.

With injury occurring at the neuronal level, the damage may not be discernable using only a CT scan, particularly in cases of mild traumatic brain injury. That primary diagnostic technique may have to be supplemented with other more expensive neuroimaging, such as MRI and even PET, SPECT or EEG; so not to overlook demonstrable injury.

Despite many victims having an outwardly normal appearance, clinically-observable damages flowing from traumatic brain injury are numerous, wide-ranging, and frequently permanent, increasing and disabling, such as persistent postconcussive syndrome – hence the national Center for Disease Control refers to it as the “silent epidemic”. Classic neurobehavioral symptoms, deficits and disorders include but are not limited to: physical (headaches, neck/back pain, tinnitus, hearing loss, aural-sensitivity, blurred vision, diplopia, photo-sensitivity, diminished taste, diminished smell, fatigue, drowsiness, seizures, tremors, sleep disturbance, vertigo/dizziness, imbalance, decreased appetite, and increased risk of altzheimer’s disease and morbidity); psychological/affective (personality change, depression, anxiety, irritability, agitation, aggression, impulsivity, moodiness, disinhibition, altered sexuality, and limited self-awareness); cognitive (visual-perceptual alteration, attention/concentration impairment, memory dysfunction, decreased processing/reaction, decreased understanding/insight, decreased reasoning/judgment, language/communication difficulties and learning problems); and socioeconomic (increase risks of interpersonal disputes, regression/dependency, suicide, divorce, substance abuse, vocational problems, occupational problems, chronic unemployment/underemployment, and economic strain).

On January 8, 2009, The Daily Press covered a successor suit for traumatic brain injury filed by Avery T. “Sandy” Waterman, Jr., Esq. in Gloucester. Its headline is titled “New suit seeks $9M over fight”.

In December, 2006, a Gloucester High School student was victim of a vicious unprovoked assault and battery by another student, who allegedly was encouraged to attack by his older sister. The siblings recently were named as Defendants since both now have graduated and are adults.

Gloucester Assistant Principal Travis Burns remains the primary Defendant for his alleged gross negligence in completely abdicating his ministerial duty to intervene as specifically requested and promised hours beforehand. By Deposition attached as an exhibit, a fellow student already has testified under oath that Burns assured he would alert Gloucester High School, security hours before the attack; and by separate Affidavits attached as exhibits, the victims parents have averred further under oath Burns subsequently admitted to each of them independently that he “dropped the ball” in not protecting their child at school.

The attack victim suffered traumatic brain injuries which persist and increase, including among other things memory loss; balance, vision and learning problems; seizures; and psychological issues. As averred, he needed special academic accommodation to graduate Gloucester High School; cannot attend college or even drive; and has limited employment and other prospects.

Although the suit has requested $9,350,000.00 for the victim’s damages, Mr. Waterman previously sought unsuccessfully to settle case with Assistant Principal Burns and the Gloucester County School Board within their very substantial insurance coverage limits and remains open to such a resolution. So far, Mr. Waterman has discovered two insurance policies covering Burns that can provide at least $6,000,000.00 in coverage for his client’s traumatic brain injuries.

The suit also alleges that Gloucester officials have secreted all school investigative materials in the attacker’s records to keep them from the assault and battery victim. Any such withholding of key facts enables Defendants to deny them without impeachment.

On January 7, 2009, the Gloucester Gazette reported a brain injury suit filed by Avery T. “Sandy” Waterman, Jr., Esq. The article is titled “Suit seeks $9 million in GHS incident”.

Virginia Municipal League Insurance Programs retained Richmond counsel for Defendant, Assistant Principal Burns, who was new on the job in 2006. Burns enjoys $6,000,000.00 in insurance coverage for the GHS assault and battery.

The Plaintiff suffered permanent brain injuries in 2006 from being attacked by another student, who reportedly was encouraged by his older sister. Gloucester High School made accommodations to allow the victim to graduate in 2007.

By deposition, another Gloucester High student testified that he warned Assistant Principal Burns the victim was being targeted for an altercation, that Burns promised he would alert security, and that Burns took absolutely no action instead. By affidavits, both of the victims’ parents swore under oath Burns admitted his fault, that he had “dropped the ball”.

On January 16, 2008, The Daily Press reported a $2,350,000.00 suit filed by Avery T. "Sandy" Waterman, Jr., Esq. for traumatic brain injury suffered by a Gloucester High student attacked at school. New Assistant Principal Travis Burns was named a Defendant based on sworn Affidavit allegations of a fellow student that previously he warned Burns of the attack, that Burns assured him school security would be alerted, and that Burns did absolutely nothing instead.

The assault and battery was committed by another student at Gloucester High School. Gloucester County Sheriff’s Office responded to the attack and recommended charging the perpetrator with “malicious wounding”.

The attack was aggravated for being unprovoked and causing permanent brain injury. Among other things, the victim immediately required and still requires healthcare intervention by multiple providers; needed significant special academic accommodations by Gloucester High School to graduate, and cannot continue with college education; and still suffers from memory and other problems.