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.

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.

Sentara’s 12-page computer database printout initially was protected in the patient’s predecessor suit, until Mr. Waterman sought rehearing. That companion medical malpractice suit was Marshall v. Sentara Health Sys. in Circuit Court for the City of Williamsburg and James City County, Virginia.

Marshall v. Moniz is scheduled for jury trial in mid-2011. Plaintiff patient has incurred more than $1,000,000.00 in medical bills and seeks $12,350,000.00 in compensation for alleged medical malpractice.

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.

A resident living in Newport News was involved in a vehicle accident occurring in Loundon County. Modern communications make it easy for a Mr. Waterman to handle distant cases.

If you or a loved one are victim of a vehicle accident, brain injury, or wrongful please contact Avery T. "Sandy" Waterman, Jr., Esq. in Newport News or Williamsburg, Virginia, at 888.881.7881, 757.881.9881 or contact him online. Historic results do not guarantee future performance.

That brings the total net award of attorneys, costs and expenses in Routson to $25,579.18. Plaintiff in that Yorktown special case also was awarded a net principal amount of $66,482.07 and was relieved of another $100,000.00+ in future tax-free payment liability.

Plaintiff in Routson had been required by agreement to make substantial tax-free monthly payments, except if his ex-spouse habitually cohabitated in a relationship analogous to marriage for a year. That disqualifying cohabitation was proved by a preponderance of the evidence in this special case, as the Court refused to reward Mrs. Routson for temporary separation that camouflaged her ongoing romantic relationship.

The underlying vehicle accident in Sopko occurred in 2007. The suits initially filed for their claims were non-suited and then refiled to allow for protracted medical treatment for continuing personal injuries

The underlying collision in Garrity occurred in Yorktown, Virginia. The vehicle accident victim underwent physical therapy and orthopaedic surgery.

“Only if and until a court makes such a determination [of disqualifying cohabitation], is husband entitled to discontinue making support payments under the terms of the agreement [‘ratified, affirmed, and incorporated’ by final decree].” Stroud v. Stroud, 54 Va. App. 231, 238 (2009)(“Stroud II”). Thus, the Court of Appeals held “the provision of the PSA regarding termination of spousal support was not a self-executing provision and that husband was not entitled to unilaterally terminate support payments without seeking entry of a proper court order.” Id. at 239. Since in the special case of Routson the recipient did not relinquish monthly payments voluntarily, Plaintiff under Stroud II “had no choice but to seek a judicial remedy and have the trial court determine if she was cohabitating in a situation analogous to marriage.” Id. Successful enforcement of a Property Settlement Agreement providing for attorneys fees entitles the prevailing party to an award of the same. E.g., O’Machel v. O’Machel, 2000 Va. Cir. LEXIS 153 (Fairfax Jul. 6, 2000).

Regarding the amount of attorneys fees to be awarded, Carr v. Carr, No. CH05-378, Letter Op. (Hampton Cir. Ct. Mar. 8, 2007) aff’d No. 0096-09-1 (Va. App. Aug. 18, 2009)(unpublished) reh. denied (Sep. 22, 2009)(en banc) is instructive. The losing party in Carr “displayed an extraordinary reluctance to accept and speak the plain and simple truth,” and with such “obdurate behavior and testimony” caused “protracted litigation”. An itemized statement for $43,318.83 in attorneys fees engaged and performed by Williamsburg/Newport News lawyer “Avery T. “Sandy” Waterman, Jr., Esq. was introduced in evidence. Id. at 2-3. “A line-by-line analysis of Mr. Waterman’s fees is consistent with what he was required to do to represent his client appropriately,” found Judge Hutton in Carr. “The bill for services should be fully borne by the [losing party]. I award the [prevailing party] $43,318.85 in attorneys fees.” Id. at 3. See also, Bullano v. Bullano, No. 0577-06-2 (Va. Ct. App. Jan. 30, 2007)(unpublished).

First, the judge granted Plaintiff’s Motion to Set Trial Date. The Marshall medical malpractice suit is scheduled for jury trial on the merits during March 28-April 1, 2011, in Yorktown.

Second, he granted Plaintiff’s Motion for Entry of Order. The judge entered Mr. Waterman's draft Order for the prior hearing on February 9, 2010, for which there is a companion blog in the Marshall medical malpractice case (and of which Order a true copy will be forwarded to you upon request).

Third, the judge granted Plaintiff’s Motion to Compel Deposition of Defendant. Dr. Moniz must submit to discovery deposition in the Marshall medical malpractice proceeding by April 30, 2010.

On appeal after remand in O’Hara, the Court of Appeals affirmed the trial court finding the requisite one-year habitual cohabitation by a preponderance of the evidence, despite the relationship being “dysfunctional”. Wife and boyfriend testified that he used her address as his on numerous document and that they were sexually intimate, resided together “on and off” over three years, and lived together continuously for only 10 months. O’Hara v. O’Hara, 2006 WL 1814849 (Va. App. Jul. 5, 2006)(unpublished).

Subsequently, the Court of Appeals found disqualifying cohabitation “as a matter of law” after analyzing the following four “non-exclusive” factors: (1) common residence; (2) intimate or romantic involvement; (3) provision of financial support; and (4) duration and continuity of the relationship and other indicia of permanency. Stroud v. Stroud, 49 Va. App. 359 (2007)(“Stroud I”). Significantly, even though the PSA required cohabitation “for a period of thirty (30) or more continuous days,” Stroud I still found a “common residence” where the couple simply “spent five nights a week for over a year” together and only “spent 34 consecutive days, with the exception of the four-day business trip”. Id. at 373-374. “Intimate or romantic involvement” was satisfied by sexual acts and an exchange of rings. Id. at 374. Notably, Stroud I found “provision of financial support” where the non-owner lived residentially for free, thereby being able to rent out another property. Id. Finally, “duration and continuity of the relationship and other indicia of permanency” was established by a long relationship of about three years, ring exchange and some co-parenting. Id. at 374-375. Nonetheless, Stroud I emphasized that a finding of cohabitation “must be based upon evidence concerning the overall nature of the relationship, not merely a piecemeal consideration of individual factors”. Id. at 376-377.

Following Stroud I, Waugh v. Waugh, 2009 Va. Cir. LEXIS 43 (Fairfax Jun. 25, 2009) recently found disqualifying cohabitation – even under §20-190(A)’s elevated “clear and convincing” evidence standard. Like the ex-wife in the special case of Routson, the ex-wife in Waugh “places a heavy emphasis on the lease agreement between her and [her live-in] and argues that this agreement is probative of the fact that there is no financial support between her and [him].” Id. at *12-13. Waugh emphasized that “the Court of Appeals has stated that financial support is merely one factor that may make a living arrangement ‘analogous to a marriage.’ See, Frey v. Frey, 14 Va. App. 270, 272, 416 S.E. 2d. 40, 42, 8 Va. Law Rep. 2606 (Va. Ct. App. 1992).” Id. at *13. Moreover, Waugh analyzed that the live-in’s monthly rent payment provided the owner money to pay bills; and that the live-in’s rent had not increased and financially was the best living situation available. Id. at *14. “Thus, as both persons received a substantial economic benefit from the living situation, Husband has [proved] that Wife and [her live-in] provide financial support for one another.” Id.