Budd v. Punyanitya

• Decision Date: 20 April 2007
• Docket Number: Record No. 061138.
• Citation: 643 S.E.2d 180
• Parties: William T. BUDD v. Visepong PUNYANITYA, M.D.
• Court: Virginia Supreme Court

643 S.E.2d 180

William T. BUDD v. Visepong PUNYANITYA, M.D.

Record No. 061138.

Supreme Court of Virginia.

April 20, 2007.

Charles J. Zauzig, III (Claire E. Keena; Nichols Zauzig & Sandler, on briefs), Woodbridge, for appellant.

John T. Jessee (Matthew D. Joss; Joseph M. Rainsbury; LeClair Ryan, on brief), Roanoke, for appellee.

Present: All the Justices.

OPINION BY Justice LAWRENCE L. KOONTZ, JR.

In this appeal of a judgment entered in a medical malpractice case, we consider whether the trial court correctly ruled that Code § 8.01-401.1 barred a party from introducing certain statements contained in published medical literature because copies of the statements had not been provided to the opposing party thirty days prior to trial. At issue is whether a party may avoid this notice requirement of the statute by having its own expert, upon direct examination, establish the publications in which the statements appear as reliable authorities in order to subsequently use the statements in cross-examination of the opposing party's expert.

BACKGROUND

Because this appeal is limited to a discrete issue of the notice requirements of Code § 8.01-401.1, we need recite only those facts necessary to our resolution of the appeal. See, e.g., Molchon v. Tyler, 262 Va. 175, 180, 546 S.E.2d 691, 695 (2001).

On December 27, 2004, William T. Budd filed an amended motion for judgment in the Circuit Court of Albemarle County against Visepong Punyanitya, M.D. alleging that Dr. Punyanitya had been negligent in providing medical care to Budd for recurring back and leg pain.^* Budd alleged in the amended motion for judgment that Dr. Punyanitya had performed multiple spinal surgeries on Budd between October 2000 and February 2002. Following these surgeries, Budd was diagnosed as having "severe compartment syndrome" and "chronic cellulitis in the left lower extremity" causing him constant pain and requiring him to walk with a cane.

Budd contended that prior to beginning treatment, Dr. Punyanitya failed to assess the risk of Budd developing compartment syndrome as a result of the surgeries and to timely diagnose that condition when it developed. Budd sought damages of $1,600,000.

On January 10, 2006, approximately one month prior to trial, Budd filed in the trial court a "Plaintiff's Designation of Authoritative Literature" stating that "the following literature contain[s] statements that may be used in direct examination by plaintiff's experts as reliable authorities in medicine on compartment syndrome." Among the publications listed in the designation were Benjamin Gulli and David Templeman, "Compartment Syndrome of the Lower Extremity," 25 Orthopedic Traumatology: Complex Fractures and Associated Injuries 677, 677-84 (1994) (the Gulli/Templeman article) and Jeff Anglen and James Banovetz, "Compartment Syndrome in the Well Leg Resulting from Fracture-Table Positioning," 1994 Clinical Orthopaedics and Related Research 239, 239-42 (the Anglen/Banovetz article). A copy of the designation was mailed to Dr. Punyanitya's counsel.

Although the designation avers that "[t]he articles attached will contain statements demarked by underlining unless the entire article is designated," apparently no copies of the actual articles, demarked or otherwise, were attached to it. In any event, Budd concedes that he did not provide counsel for Dr. Punyanitya with copies of the designated articles or otherwise indicate the statements within those articles upon which he intended to rely at least thirty days prior to trial.

At trial, Budd called Dr. Daniel E. Gelb, an orthopedic surgeon, as an expert witness. During direct examination of Dr. Gelb, Budd's counsel stated that he had "one little administrative thing I want to do." Budd's counsel then asked Dr. Gelb to confirm that counsel had previously requested Dr. Gelb "to look at some medical literature on [compartment syndrome]" and "form opinions whether they're reliable authorities." Dr. Punyanitya's counsel interposed an objection, stating that "[t]hese documents were not presented to us 30 days before trial, as required by [Code § 8.01-401.1]."

Budd's counsel responded that he only wished to "lay[] a foundation for cross-examination" of Dr. Punyanitya's expert witnesses. Budd's counsel contended that Code § 8.01-401.1 permits a party to establish that a medical publication regarding a particular medical issue is a reliable authority by the testimony of the party's expert witness without first providing the opposing party with copies of the publication thirty days prior to trial. This notice requirement of the statute, Budd's counsel contended, applies only if the party's expert witness would be asked to read statements from the publication into the record on direct examination. Counsel assured the court that Dr. Gelb would not be asked to read any statements from the publications in question.

The trial court sustained Dr. Punyanitya's objection and Budd was not permitted to have Dr. Gelb state an opinion as to whether any publication was a reliable authority regarding compartment syndrome. At that time, Budd did not identify the publications that he intended to have Dr. Gelb establish as reliable authority regarding compartment syndrome, nor did he proffer any statements in those publications to the trial court for inclusion in the record. During cross-examination of Dr. Punyanitya's expert witnesses Budd did not seek to introduce any literature regarding compartment syndrome or otherwise attempt to question the experts on any statements in the literature he had previously identified in the designation of authoritative literature filed on January 10, 2006.

At the conclusion of all the evidence, the jury returned its verdict in favor of Dr. Punyanitya. Prior to the entry of a final order on the jury's verdict, Budd filed a motion requesting the trial court to reconsider its ruling barring him from having his expert witness, Dr. Gelb, establish the designated literature as reliable authority for use in cross-examining Dr. Punyanitya's expert witnesses.

For the first time before the trial court, Budd in the motion to reconsider expressly identified and proffered statements from the Gulli/Templeman article and Anglen/Banovetz article that he would have relied upon in his cross-examination of Dr. Punyanitya's expert witnesses. Budd contended that when he deposed those experts prior to trial, neither had indicated familiarity with "any article as a reliable source on the subject of compartment syndrome." Accordingly, Budd asserted that where an opposing party's "experts would not agree that an authority is reliable, in order to establish its reliability and thus the basis for its admission into evidence, [a party] must lay that foundation through other means," namely by having the party's own expert do so upon direct examination. In such circumstances, Budd contended that the requirement of Code § 8.01-401.1 to provide the opposing party with copies of the statements contained in the publications thirty days before trial did not apply because the statements were not "intended to be used during direct examination." (Emphasis in original.)

Dr. Punyanitya filed a brief opposing Budd's motion for reconsideration, contending that Budd had attempted to introduce the statements contained in the publications through direct examination by having Dr. Gelb establish them as reliable authority. Thus, Dr. Punyanitya contended that the trial court correctly ruled that the thirty day notice requirement of Code § 8.01-401.1 was triggered even if Dr. Gelb was not going to read into the record, or otherwise rely on, any statements contained in the publications. Dr. Punyanitya further contended that Budd had waived any objection to the trial court's ruling because he failed to attempt to have the publications introduced through the testimony of Dr. Punyanitya's expert witnesses.

Following oral argument on the motion for reconsideration, the trial court entered separate orders dated March 14, 2006 denying the motion for reconsideration and confirming the jury's verdict in favor of Dr. Punyanitya. We awarded Budd an appeal on the following assignment of error:

The trial court erred in refusing to allow Plaintiff's counsel to establish certain medical articles not previously provided as authoritative literature pursuant to Virginia Code Section 8.01-401.1 during direct examination of his own standard of care expert in order to lay the foundation for the use of statements from those articles during cross-examination of defense experts, when the articles were not required to be provided to opposing counsel thirty days prior to trial unless introduced during direct examination.

DISCUSSION

The parties' arguments in this appeal with respect to the issue raised in Budd's assignment of error are, in all material respects, identical to the arguments presented in the trial court. However, before reaching the merits of those arguments, we will first briefly address two procedural issues raised by Dr. Punyanitya.

Dr. Punyanitya initially contends that Budd waived his right to challenge the trial court's ruling that Dr. Gelb would not be allowed to identify as reliable and authoritative any publications regarding compartment syndrome that had not been provided to Dr. Punyanitya's counsel thirty days prior to trial because Budd did not make a contemporaneous proffer of those publications when the objection was sustained, but did so only in his motion for reconsideration. We disagree.

Dr. Punyanitya is correct that when a trial court rules that specific evidence will not be admitted because, for example, the evidence lacks relevance, the evidence ought to be proffered to the trial court at the time of the ruling, or as near in time thereafter as is practicable, so that the trial court can, if necessary, reconsider its ruling. See, e.g., Rose v. Jaques, 268 Va. 137, 154, 597 S.E.2d 64, 74 (2004); Whittaker v....