Lombard v. Rohrbaugh, Record No. 002459

• Decision Date: 14 September 2001
• Docket Number: Record No. 002675.,Record No. 002459
• Citation: 262 Va. 484,551 S.E.2d 349
• Parties: Ralph D. LOMBARD v. Dorsey W. ROHRBAUGH. Virginia Farm Bureau Mutual Insurance Company v. Dorsey W. Rohrbaugh.
• Court: Virginia Supreme Court

551 S.E.2d 349

262 Va. 484

Ralph D. LOMBARD v. Dorsey W. ROHRBAUGH.

Virginia Farm Bureau Mutual Insurance Company v. Dorsey W. Rohrbaugh.

Record Nos. 002459, 002675.

Supreme Court of Virginia.

September 14, 2001.

Quentin R. Corrie, Fairfax (Anderson & Corrie, on brief), for appellant (Record No. 002459).

Steven M. Frei, Vienna (Holy Parkhurst Essing; Hall & Sickels, Reston, on brief), for appellee (Record No. 002459).

Steven W. Bancroft, (Melissa H. Katz; Michael J. Carita; Trichilo, Bancroft, McGavin, Horvath & Judkins, on brief), Fairfax for appellant (Record No. 002675).

Steven M. Frei, Vienna (Holy Parkhurst Essing; Hall & Sickels, Roston, on brief), for appellee (Record No. 002675).

Amici Curiae: Virginia Trial Lawyers Association (John E. Lichtenstein; Lichtenstein and Fishwick, on brief), in support of appellee.

Present: All the Justices.

LEMONS, Justice.

In these two appeals, we consider whether the trial court erred in permitting Dorsey W. Rohrbaugh ("Rohrbaugh") to mention liability insurance during cross-examination of a physician who testified on behalf of Ralph D. Lombard ("Lombard") and Virginia Farm Bureau Mutual Insurance Company ("Farm Bureau"). Additionally, we consider the enforceability at trial of a stipulation reached during pretrial discovery proceedings and the trial court's denial of Lombard's proffered cautionary instruction.

I. Facts and Proceedings Below

Rohrbaugh was injured in an automobile accident on August 11, 1995, when his automobile was struck from behind by a vehicle operated by Lombard. Lombard had a liability policy of insurance with Allstate Insurance Company ("Allstate"). Farm Bureau provided Rohrbaugh's motor vehicle insurance. Rohrbaugh filed his motion for judgment against Lombard on June 25, 1999, in the Circuit Court of Fairfax County. He served the motion for judgment on Lombard and upon his own carrier, Farm Bureau, as the underinsured motorist carrier pursuant to Code § 38.2-2206. Allstate provided counsel for Lombard, who filed appropriate responsive pleadings. Farm Bureau, pursuant to Code § 38.2-2206, filed a separate response to the motion for judgment in its own name.

Rohrbaugh presented evidence at trial that two of his cervical discs were herniated and his back was injured as a result of the accident. Lombard and Farm Bureau disputed the existence, as well as the causation, of any injuries and contended that Rohrbaugh's continued pain and subsequent anterior cervical discetomy and fusion were due to a pre-existing arthritic condition.

Allstate and Farm Bureau engaged Bruce J. Ammerman, M.D. ("Dr. Ammerman") to conduct a medical examination of Rohrbaugh pursuant to Rule 4:10 of the Rules of the Virginia Supreme Court. Dr. Ammerman was regularly employed not only by Allstate, but by numerous other insurance companies to conduct Rule 4:10 examinations. In discovery proceedings, Rohrbaugh attempted to determine precisely how much money Dr. Ammerman had been paid by Allstate for such forensic work.

From a prior unrelated personal injury action, Rohrbaugh's counsel had obtained from Allstate a computer printout indicating the amounts paid by Allstate to Dr. Ammerman in various years, including 1998 and 1999. In pretrial depositions in the unrelated case, Dr. Ammerman had acknowledged that the reported figures were accurate; however, he testified that he could not state how much of his income from Allstate was for forensic work and how much was for patient care. Aware of this absence of differentiation among the payments, Rohrbaugh's counsel in the present case caused a subpoena to be issued for a deposition pursuant to Rule 4:5(b)(6) of an Allstate corporate designee knowledgeable about payments to Dr. Ammerman. Allstate engaged counsel independent from that which it provided for Lombard and filed a motion to quash the notice of deposition.

The Honorable R. Terrence Ney denied the motion to quash and further ordered that the deposition of the Allstate designee would proceed with the understanding that Allstate would provide a witness who could differentiate between payments made to Dr. Ammerman for medical services and payments made for forensic services. On the date of this ruling, Rohrbaugh's counsel suggested to Allstate's counsel that Allstate's designee might need access to a computer terminal and offered to hold the deposition in an Allstate office. Allstate's counsel rejected this effort to accommodate the witness and insisted that the deposition be taken at the office of Rohrbaugh's counsel, where it had been noticed.

The deposition of Allstate's designee occurred on June 6, 2000 at Rohrbaugh's counsel's office and was attended by Lombard's counsel, Allstate's counsel, and Rohrbaugh's counsel.¹ Farm Bureau's counsel, although given notice, elected not to attend. Immediately prior to the beginning of the deposition, a telephone call was placed to Farm Bureau's counsel, and Rohrbaugh's counsel was advised that no one would be appearing on behalf of Farm Bureau. As anticipated by Rohrbaugh's counsel, the Allstate designee could not differentiate the reasons for the payments made by Allstate to Dr. Ammerman simply by looking at a computer printout and testified that if she had access to the Allstate computer system, she could identify the reason for particular payments. Rohrbaugh's counsel sought to move the deposition to a location where the witness could obtain information from the Allstate computer system; however, counsel for Allstate refused. At that time, Rohrbaugh's counsel indicated that he would call Judge Ney for a ruling on the matter. Lombard's counsel left the deposition before Judge Ney was called, stating, "I'm going to let you guys do whatever you're doing. I'm going to excuse myself, because I have a bunch of other things." The deposition was still in progress, but Judge Ney was presiding over other matters and was not available. Rohrbaugh's counsel stated that the deposition would remain open until a ruling could be obtained from Judge Ney. Later that day Judge Ney became available by telephone and, in a conference call with Rohrbaugh's counsel and Allstate's counsel, Judge Ney indicated that he would order Allstate to make the designated witness available at a computer terminal where the information sought could be obtained. Allstate's counsel remained opposed to this solution and offered the alternative of stipulating to the accuracy of the amounts paid to Dr. Ammerman and "agreed not to attempt to differentiate between the services for which they were made." Instead of ordering the continuation of the deposition at a computer terminal, Judge Ney accepted Allstate's alternative solution and, in an opinion letter rendered after the trial in this matter, Judge Ney summarized his ruling as follows:

Finally, the Court's ruling as to the computer terminal was not in any manner a sanction but rather an order compelling discovery. While the details of the written Order of July 21st, 2000 reflect the agreement between counsel for plaintiff and Allstate as to the limitations placed on Dr. Ammerman's testimony insofar as a differentiation of the payments made to him by Allstate, those terms were not ordered by the Court. They resulted solely from the agreement between counsel when faced with the consequences of the Court's order compelling discovery by the use of a computer terminal.

Judge Ney did not address whether or how the relationship between Dr. Ammerman and Allstate could be explored at the trial. Allstate stipulated that it had paid Dr. Ammerman $106,520 in 1998, and $104,971 in 1999. The reasons for these payments were not differentiated.

The trial of this matter was held before the Honorable Dennis J. Smith. At trial, Rohrbaugh was permitted to deliberately inject the concept of insurance into the case by cross-examining Dr. Ammerman on potential bias concerning the total amount of money he received from Allstate. Among other questions, Rohrbaugh asked Dr. Ammerman, "[i]n fact, Doctor, Allstate Insurance Company, who is the insurance company for the defendant in this case, has paid you in 1999, $104,971, right?" Rohrbaugh's counsel continued, "[i]n 1998, if I told you that Allstate Insurance Company had paid you $106,520, the same answer, I'm assuming."

In Dr. Ammerman's responses, he confirmed the amounts paid, but, contrary to Judge Ney's ruling, nonetheless testified that he did not know in what capacity he received the money. He further stated that he could not speak to the "veracity [of Allstate's document listing the payments] one way or the other, because [he] didn't produce it" and suggested that the "document breaks out patients [he had] treated."

This cross-examination concerning bias was permitted over vigorous objection from Lombard and Farm Bureau. The trial court rejected an alternative method of conducting cross-examination that would have made reference to forensic examinations, but not the existence of insurance. Prior to Dr. Ammerman's testimony, the trial court gave a cautionary instruction to the jury that it was not to consider the existence of insurance for any purpose other than the possible bias of Dr. Ammerman.²

In closing argument, Rohrbaugh's counsel was permitted to mention the relationship between Dr. Ammerman and Allstate for the purpose of arguing that Dr. Ammerman's testimony was biased. At the conclusion of the trial, the jury returned a verdict in favor of Rohrbaugh in the amount of $125,000. In post-verdict motions, Lombard and Farm Bureau requested Judge Ney to reconsider his pretrial ruling concerning stipulations. The motion was denied. Lombard and Farm Bureau also filed motions asking Judge Smith to declare a mistrial, set aside the jury's verdict, and order a new trial.³ These motions were denied as well.

On appeal, Lombard and Farm Bureau allege that the trial court erred in permitting Rohrbaugh to impeach Dr. Ammerman with the purposeful mentioning of liability...