April 22, 2008

News Story

Fall River jury awards $550,000 in emotionally charged bigamy case

Sri Lankan woman gets $300K for lost virginity

By Julia Reischel

From a legal perspective, it was a straightforward case of deceit and misrepresentation.

From all other perspectives, however, Weerasinghe Turner v. Viveiros was anything but straightforward.

"[The] judge indicated that he'd never seen anything quite like this," lead plaintiff's lawyer Patricia L. Davidson said of the case, which involved accusations of bigamy and stolen virginity between a Sri Lankan woman and the Massachusetts man she married.

For veteran litigator James C. Donnelly Jr., Davidson's colleague at Mirick O'Connell in Worcester who helped out on the case, "[the trial included] some of the most emotionally intense testimony that I've ever seen in a courtroom."

On April 2, a Superior Court jury in Fall River found that the already-wed defendant committed fraud by marrying the plaintiff and awarded her $550,000 — $300,000 of which was for the battery that occurred when she consummated the marriage and lost her virginity.

The lawyer for the defendant, John E. Zajac of Carmichael & Zajac in Taunton, did not respond to calls for comment before press time.

'That's my husband'

In 2000, according to the complaint, Harshini Weerasinghe was a 30-something Christian pediatrician living and working in Sri Lanka. When her parents ran an advertisement in a local newspaper looking for a husband for their daughter, a Massachusetts man, Ronald D. Viveiros of Berkley, answered the ad.

Over several months, a long-distance relationship between Viveiros and Weerasinghe developed over the telephone and via e-mail.

"They fell in love," said Davidson.

Viveiros proposed, and, on Feb. 21, 2001, he married Weerasinghe in an elaborate Sri Lankan ceremony that was bankrolled by her parents.

After the wedding, Viveiros and Weerasinghe, a virgin at the time, consummated the marriage.

Over the next two-and-a-half years, Weerasinghe and Viveiros lived apart, he in Berkley and she in Sri Lanka and later on the Turks and Caicos Islands in the Caribbean. They saw each other in person only once, during a five-day honeymoon in Sri Lanka.

During their marriage, Weerasinghe gave Viveiros more than $136,000, and her parents presented him with a $25,000 investment.

In 2003, Weerasinghe became suspicious of her husband, and, with the help of a Massachusetts attorney, conducted a background check on him. In October, she and her lawyer arrived unannounced at Viveiros' house in Berkley, only to discover that Viveiros had another wife — Dina M. Viveiros-Jorge.

"It was one of those, 'That's my husband; [no,] that's my husband' confrontations," Davidson said.

After Weerasinghe met Viveiros-Jorge, who reportedly had been married to Viveiros since 1991, Viveiros contacted Weerasinghe in her hotel room and, according to the complaint, admitted to lying about already being married.

Weerasinghe broke off contact with Viveiros, returned to Turks and Caicos, and her family sued Viveiros in Sri Lanka for fraud. That case is still open.

In April 2005, Weerasinghe married another man, Dr. Michael A. Turner and went to live with him in North Carolina.

The following December, Viveiros renewed contact with Weerasinghe, repeatedly calling her at her North Carolina home. He also hired attorneys to sue her for practicing bigamy and initiated a criminal bigamy and fraud complaint against her with North Carolina police, but both efforts ultimately failed.

In February 2006, Weerasinghe filed a complaint against Viveiros in Superior Court in Massachusetts that alleged that Viveiros, not Weerasinghe, was the bigamist and that he committed fraud by marrying Weerasinghe when he already had a wife.

Phony e-mails?

From the beginning, Davidson argued that her client's case against the defendant was not a criminal bigamy case but rather a civil fraud case. Because Viveiros was already married and "bigamous" marriages are void from the start in both Massachusetts and Sri Lanka, she said, his marriage to Weerasinghe was invalid and therefore fraudulent.

"They were never married, so this is not a probate action," she said. "This is a good, old-fashioned tort case based on fraud, conversion, intentional and negligent infliction of emotional distress, and battery, because consent to sex on the wedding night and afterward was based on the fraudulent assumption that she was married to [Viveiros]."

Leading up to the trial, Davidson said, defense attorney Zajac attempted to argue that the defendant's marriage to the plaintiff was legal.

"[The defense was] trying to argue that the marriage was legal for a long time throughout the case," Davidson said, adding that a week before trial, the judge ruled that, under Massachusetts law, the marriage was void ab initio, effectively killing that defense.

"I think they were hoping that they could argue that it was legal under Sri Lankan law, but in the trial it was a done deal. That was an issue of law," she said.

During trial, Davidson said, the defense strategy was to accuse Weerasinghe of fraud.

"The defense theory seemed to be, 'OK, Viveiros perpetuated fraud, but after [Weerasinghe] found out, she tried to perpetuate fraud on him,'" said Davidson. "[Zajac] tried to say that after [Weerasinghe] found out about the lie, she was actually lying to him and leading him on and leading him to believe that she wanted to be with him, and she was devising ways to make money from him."

As evidence, Zajac submitted e-mails allegedly from Weerasinghe, in which she expressed a desire to be with Viveiros. But on the witness stand, Weerasinghe denied writing the e-mails, claiming that Viveiros composed the messages himself, using her password to access her account.

"Because the testimony was all so vague, and [Weerasinghe] denied it, and Viveiros had zero credibility, the defense, in my opinion, never got any traction," Davidson said.

Still, from an evidentiary standpoint, convincing the jury that the e-mails were fraudulent was difficult, the plaintiff's lawyer acknowledged. "You look at an e-mail from your e-mail address, and everybody assumes that it's legitimate," she said.

'Nothing more than a civil union'

Other Massachusetts defense lawyers said they would have avoided trying the case at all costs. (Davidson said that she initiated several settlement offers, but none were accepted.)

"The only defense here would be to say, 'This really wasn't a marriage,'" said Fall River trial attorney Brian R. Cunha. "If I were defending him, I would say, 'This was nothing more than a civil union.' Otherwise, there's no defense because it's straight deceit and you're a bigamist."

Roger D. Matthews, a litigator at Denner Pellegrino in Boston, said that he would have drawn the jury's attention to the unusually long period Weerasinghe and Viveiros lived as man and wife without ever seeing each other.

"Living apart for two-and-a-half-years — that's somewhat of an unusual fact," he said. "Lots of couples live apart, but two-and-a-half years is kind of a long haul. How much weight do you put on that?"

But perhaps the biggest challenge was the sympathetic plaintiff, whose tearful story apparently struck a chord with the jury.

"There was a lot of crying in this trial, and I think the jury was very affected by it," Davidson said. "And there was one very powerful moment during [the defendant's] cross-examination: I asked Viveiros, as sort of an off-the-cuff remark, 'Are you married now?' And he said, 'Yes, I am. … I'm married to your client.' The judge got very angry, because the judge had already ruled, and had instructed the jury several times, that the marriage was void from the beginning. Because of how he blurted it out, and of how the judge responded, it was like one of those things that happens on TV but never happens in the boring reality of jury trials."

julia.reischel@lawyersweekly.com