Virginia: Brain Injury – a Lawyer’s Statements

Virginia: Brain Injury – a Lawyer’s Statements

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, Ruhlinreaffirmed 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 theGagnon 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.