Virginia: Brain Injury – a Lawyer’s Guilt

Virginia: Brain Injury – a Lawyer’s Guilt

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.