Virginia: Brain Injury – a Lawyer’s Appeals

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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.