Landrum v. Chippenham & Johnston-Willis Hosp., Inc.

• Decision Date: 04 November 2011
• Docket Number: Record No. 101102.
• Citation: 717 S.E.2d 134,282 Va. 346
• Parties: Kasey A. LANDRUM v. CHIPPENHAM AND JOHNSTON–WILLIS HOSPITALS, INC., et al.
• Court: Virginia Supreme Court

282 Va. 346

717 S.E.2d 134

Kasey A. LANDRUM

v.CHIPPENHAM AND JOHNSTON–WILLIS HOSPITALS, INC., et al.

Record No. 101102.

Supreme Court of Virginia.

Nov. 4, 2011.

Jeffrey J. Lowe (Michael J. Flannery; Anton Joseph Stelly, Richmond; Carey Danis & Lowe, on brief), for appellant.

Frank K. Friedman, Roanoke (Linda B. Georgiadis; Todd D. Anderson, Richmond; Woods Rogers; LeClairRyan, on brief), for appellee Chippenham and Johnston–Willis Hospitals, Inc.

Elizabeth Griffin Robertson (Robert F. Donnelly, Glen Allen; S. Virginia Bondurant; Goodman, Allen & Filetti, on brief), for appellee John C. Deitrick, M.D.

Present: KINSER, C.J., LEMONS, GOODWYN, MILLETTE, and MIMS, JJ.

Opinion by Justice DONALD W. LEMONS.

In this appeal, we consider whether the circuit court abused its discretion in excluding the plaintiff's expert witnesses because of her failure to obey its pretrial orders. We conclude that it did not and therefore affirm its judgment.

I. Background

In February 2009, Kasey A. Landrum, represented by out-of-state counsel from St. Louis, Missouri, admitted pro hac vice,¹ sued Chippenham and Johnston–Willis Hospitals, Inc.² and Dr. John C. Deitrick (collectively Defendants) for medical malpractice.³ Seven months later, the circuit court entered a scheduling order. As relevant here, that order provided:

If requested in discovery, plaintiff's ... experts shall be identified on or before Monday, November 23, 2009.... If requested, all information discoverable under Rule 4:1(b)(4)(A)[ (i) ] ... shall be provided or the expert will not ordinarily be permitted to express nondisclosed opinions at trial. The foregoing deadline[ ] shall not relieve [plaintiff] of the obligation to respond to discovery requests within the time periods set forth in the Rules of the Supreme Court of Virginia, including, in particular, the duty to supplement or amend prior responses pursuant to Rule 4:1(e).(Emphasis omitted.)

Two months before the November 23 deadline, Defendants, through interrogatories, asked Landrum to identify her expert witnesses. Landrum's out-of-state counsel nonetheless waited until November 23 to send them an expert designation (which they did not receive until November 30). The designation provided the names and addresses of two expert witnesses. But it did not “state the substance of the facts and opinions to which [they were] expected to testify and a summary of the grounds for each opinion,” and was therefore deficient under Rule 4:1(b)(4)(A)(i). Defendants consequently moved to exclude the expert witnesses and for summary judgment.

Upon learning of Defendants' motions, Landrum's out-of-state counsel attempted to cure the deficient designation by sending Defendants the expert witnesses' reports (which they received on either December 10 or 11). He did not, however, supplement the designation to comply with Rule 4:1(b)(4)(A)(i), as required under Rule 4:1(e).

At a January 21, 2010 hearing on Defendants' motions, Landrum's out-of-state counsel admitted that the designation did not satisfy Rule 4:1(b)(4)(A)(i). But he argued that the violation was remedied when the Defendants received the expert witnesses' reports. He further urged that the exclusion of the expert witnesses “would be a tremendous prejudice to [Landrum].”

The circuit court denied Defendants' motions and gave Landrum's out-of-state counsel until January 28 to supplement the designation so as to comport with Rule 4:1(b)(4)(A)(i). In giving him this second chance, however, it warned:

THE COURT: ... I will give you seven days from today, and I'm going to give you a time that you file your answer to these interrogatories and you file a copy of it in the clerk's office and you do it in the proper manner. I'm not going to sit here and lecture how you're supposed to do it.

....

I will tell you, sir, if you fail to do that, I will dismiss the case after that.

The circuit court later entered an order memorializing its ruling. That order provided, among other things, that if Landrum did not supplement the designation “on or before January 28,” then she would “risk further sanction by the court, including but not limited to, reconsideration of the defendants' motions.”

On January 27, Landrum's out-of-state counsel filed a supplemental designation. But it, too, was not in compliance with the Rules: although it featured out-of-state counsel's signature above the signature block containing both his name and address as well as the name and address of local counsel, it was not signed by local counsel as required under Rule 1A:4(2). Because “[a]ny pleading or other paper required to be served” is invalid under that Rule “unless it is signed by local counsel,” Defendants again moved to exclude Landrum's expert witnesses and for summary judgment.

At a February 23, 2010 hearing on Defendants' second round of motions, Landrum's out-of-state counsel conceded that he violated Rule 1A:4(2) by filing the supplemental designation without local counsel's signature. In fact, he admitted that he “ha[d] filed many pleadings in this case ... in violation of the rule,” including the original designation.⁴ He nevertheless argued that the exclusion of the expert witnesses was not warranted because he remedied the violation by refiling the supplemental designation with local counsel's signature on February 17.

The circuit court first granted Defendants' motions to exclude the expert witnesses, explaining:

[W]hat happened was there was a series of late filings. It wasn't very late but it was late. Subsequently turned out that it was not appropriately filed for substance. And [the court] allowed that to be done. [The court] said that it had to be done properly. If it wasn't done properly within the seven-day period, that that was the last chance, so to speak.

And it was a situation where the [supplemental designation] was not signed properly. The rules are very, very clear as to what happens if local counsel doesn't sign a document. And that was not done. Whether it was done before or not or brought to the attention by the defendant[s] to the plaintiff, that's not their responsibility. It's the plaintiff's responsibility to know and stay by the rules. And the [c]ourt is going to enforce the rule. The designation is filed improperly and is stricken.

The circuit court then entertained argument on Defendants' motions for summary judgment. Defendants contended that summary judgment was appropriate because Landrum could not meet her burden of proof on her medical-malpractice claims without an expert witness to establish the standard of care. The circuit court agreed and granted the motions, dismissing the case with prejudice. ⁵ Landrum now appeals.

II. Discussion

A.

Pursuant to Rule 4:12(b)(2), a trial court may sanction a party for failing “to obey an order to provide or permit discovery.” It may, for instance, prohibit a party “from introducing designated matters in evidence” or “strik[e] out pleadings or parts thereof.” Rule 4:12(b)(2)(B)–(C). Because it “exercises ‘broad discretion’ in determining the appropriate sanction,” we review its decision for an abuse of discretion. Walsh v. Bennett, 260 Va. 171, 175, 530 S.E.2d 904, 907 (2000) (quoting Woodbury v. Courtney, 239 Va. 651, 654, 391 S.E.2d 293, 295 (1990)).

The abuse-of-discretion standard, as the United States Court of Appeals for the Fourth Circuit has observed, is “a standard that, though familiar in statement, is not necessarily that simple in application.” James v. Jacobson, 6 F.3d 233, 239 (4th Cir.1993) (internal quotation marks omitted). That is because an abuse of discretion “can occur in a number of ways.” Id.

In Kern v. TXO Production Corp., 738 F.2d 968, 970 (8th Cir.1984), the United States Court of Appeals for the Eighth Circuit stated that when a decision is discretionary, “we do not mean that the [trial] court may do whatever pleases it. The phrase means instead that the court has a range of choice, and that its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law.” The Eighth Circuit went on to explain:

An abuse of discretion ... can occur in three principal ways: when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment.

Id.

The Fourth Circuit has recognized this definition. See General Trucking Corp. v. Westmoreland Coal Co., No. 92–1225, 1992 WL 344770, at *5, 1992 U.S.App. LEXIS 30853, at *14 (4th Cir. Nov. 23, 1992) (unpublished) (“Or, as another court has put it, by (1) failing to take into account a significant relevant factor; or (2) giving significant weight to an irrelevancy; or (3) weighing the proper factors but committing a clear error of judgment in doing so.” (citing Kern, 738 F.2d at 970)). And we now embrace it.

B.

Landrum first contends that the circuit court abused its discretion in excluding the expert witnesses because it disregarded Rule 4:1(g).⁶ That Rule, in pertinent part, provides:

Every request for discovery or response or objection thereto made by a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated.... If a request, response, or objection is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response, or objection, and a party shall not be obligated to take any action with respect to it until it is signed.Rule 4:1(g). Since her out-of-state counsel refiled the supplemental designation with local counsel's signature promptly after the omission was brought to his attention, Landrum argues that the circuit court exceeded the bounds of its discretion under Rule 4:1(g) in...