30 Jun Virginia: Brain Injury – a Lawyer’s Proof
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.