The Virginia Supreme Court remanded Mr. Waterman’s brain injury case to Circuit Court for Gloucester County, Virginia, “for a new trial limited to Gagnon’s gross negligence claim against Burns,” Burns v. Gagnon, 2012 Va. LEXIS 93, *40 (Apr. 20, 2012). But the parties have disagreed over the scope of retrial.

“Pursuant to the ‘law of the case’ doctrine, when a party fails to challenge a decision rendered by a court at one stage of litigation, that party is deemed to have waived her right to challenge that same decision during the later stages of the ‘same litigation’.” Miller-Jenkins v. Miller-Jenkins, 276 Va. 19, 26 (2008). “The ‘law of the case’ doctrine applies both to issues that were actually decided by the court, and also to issues ‘necessarily involved in the first appeal, whether actually adjudicated or not’.” Id.

“Our decisions applying the ‘law of the case’ doctrine generally have involved litigation that has proceeded in a ‘linear’ sequence to trial, appeal, trial on remand, and second appeal, all under the same set of pleadings, see, e.g., Lockheed Info. Mgmt. Sys. Co. v. Maximus, Inc., 259 Va. 92, 108, 524 S.E.2d 420, 429 (2000)(stating that issue decided in first case and not appealed was not subject to relitigation on remand); Kemp, 160 Va. at 284, 168 S.E. at 431 (holding that issues decided on appeal were binding law of case on remand),” observes Miller-Jenkins, 276 Va. at 26. “However, we have never limited that ‘law of the case’ doctrine to litigation that occurs in such sequential fashion under one set of pleadings.” id.; evincing the doctrine’s applicability to the Gagnon brain injury litigation.

“In our decision in Kondaurov, we explains that our application of the ‘law of the case’ doctrine extends to ‘future states or the same litigation’,” explained Miller-Jenkins. “Thus, when two cases involve identical parties and issues, and one case has been resolved finally on appeal, we will not re-examine the merit of issues necessarily involved in the first appeal, because those issues have been resolved as part of the ‘same litigation’ and have become the ‘law of the case’.” Id. at 26-27.

“The mandate rule, itself an application of the law-of-the-case doctrine, forecloses further litigation of issues expressly of impliedly decided by the appellate court’,”Virginia Imports, Ltd. v. Kirin Brewery of America, LLC, 50 Va. App. 395, 407 (2007); “and relitigation of matters addressed by the trial court, but not addressed on appeal.” West v. West, 59 Va. App. 225, 233 (2011). Potentially significant to the Gagnon brain injury lawsuit, “[t]he refusal of the trial court to follow the appellate court mandate constitutes reversible error”. Virginia Imports, 50 Va. App. at 207.

Finally, for example, the Gagnon crime victim avers Defendant Burns “is bound by his agreement to the jury instructions given to the jury as the law of the case.”Ulloa v. QSP, Inc., 271 Va. 72, 80 (2006). “An instruction given without objection will not be disturbed on appeal, Rule 5:25, and becomes the law of the case, governing all subsequent proceedings.” Kondaurov v. Kerdash, 271 Va. 646, 658 (2006).

Additionally, collateral estoppel is “the preclusive effect impacting in a subsequent action based upon a collateral and different cause of action. In the subsequent action, the parties and their privies are precluded by litigation any issue of fact actually litigated and essential to a valid and final judgment personal judgment in the first action.” Lofton Ridge, LLC v. Norfolk So. Ry Co., 268 Va. 377, 381 (2004)(emphasis in original). It is analogous to the Gagnon brain injury action.

Again, the damage awards were not appealed and, moreover, damages in this case are “distinctly separable” from the limited liability issue of gross negligence. Cf., Chappell v. White, 184 Va. 810 (1946). Thus, the Gagnon brain injury victim argues that all damages awarded are the “law of the case” on limited retrial. See, Northwestern Elec. Power Co-operative v. Am. Motorists Ins. Co.,451 S.W.2d 356 (Mo. Ct. App. 1969).