Volume XV Number III Fall 2010 Rule 3:20 - Summary ... · PDF filemotion for summary judgment or to strike evidence-- No motion for ... For some reason, as I recently noticed this

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As every lawyer litigating in Virginia knows, the Commonwealth has a unique summary judgment rule: discovery deposition testimony is out of bounds. The rule differs from rules governing summary judgment proceedings in federal courts and in every state in the Union. The prohibition did not begin as a rule of court, but was a response to the will of the legislature. Virginia Code Section 8.01-420 reads as follows:

§ 8.01-420. Depositions as basis for motion for summary judgment or to strike evidence -- No motion for summary judgment or to strike the evidence shall be sustained when based in whole or in part upon any discovery depositions under Rule 4:5, unless all parties to the suit or action shall agree that such deposition may be so used.

Rule 3:20 of the Rules of the Supreme Court of Virginia implements the statute and provides additional guidance with regard to what may be used to support a motion for summary judgment, stating:

If it appears from the pleadings, the orders, if any, made at a pretrial conference, the admissions, if any, in the proceedings, or, upon sustaining a motion to strike the evidence, that the moving party is entitled to summary judgment, the court shall enter judgment in that party’s favor.

This facially clear rule and statute have generated considerable litigation, not only with regard to the use of deposition testimony to secure the summary

dismissal of claims, but also with regard to the use and reliance on deposition testimony for other motions. This articles addresses these issues, and explores the courts’ application of Rule 3:20 and Virginia Code Section 8.01-420 to summary procedures designed to end litigation prior to trial.

DepositionsDo depositions have any role in securing

summary dismissal of a claim? The answer is no, but with an important caveat. The rule and the statute make clear that depositions may be considered, along with anything else, if the parties agree. In one case where a plaintiff sought reversal of a summary judgment ruling, the Supreme Court noted (with apparent surprise) that the parties had agreed to submit otherwise prohibited material for the trial court’s consideration. See Carson v. LeBlanc, 245 Va. 135, 137 (1993) (because “the plaintiff did not object” we “have no alternative” but to consider the deposition testimony). Aside

Volume XV Number III Fall 2010

Rule 3:20 - Summary Judgment Materials . . . . . . . . . . . . 1, 5by Gary Bryant

Letter From the Chair - The Civility “Snowball” . . . . . . . 2by Robert Leonard Garnier

A Changed Landscape for Expert-Witness Discovery in Federal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10by Patricia C. McCullagh

Virginia’s New Rules of Appellate Procedure: A View From the Appellate Bench . . . . . . . . . . . . . . . . 15by Elizabeth Lacy

Something Old, Something New: The Partial Final Judgment Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18by Monica Taylor Monday and James J. O’Keeffe

Evidence Corner: Virginia Supreme Court Decides New Case Concerning the Dead Man’s Statute . . . . . . . 23by Kevin W. Holt

Supreme Court of Virginia Civil Cases . . . . . . . . . . . . . 24

Litigation Section Board of Governors . . . . . . . . . . . . . . 26

Table of Contents

Gary Bryant is a partner at Wilcox & Savage in Norfolk.

Rule 3:20 -Summary Judgment

Materialsby Gary Bryant

Rule 3:20 — cont’d on page 5

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Litigation News Fall 2010

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“Every kind of peaceful cooperation among men is primarily based on mutual trust and only second-arily on institutions such as courts of justice and

police.” ~Albert Einstein

I frequently encounter them every holiday season. I am referring to startling incidents of incivility, con-trasted by unexpected acts of courtesy and kindness. Maybe one happens over a rush for that last avail-able turkey for the Thanksgiving dinner. They might be encountered in the early morning crush for that cheap LCD television. Or perhaps upon noticing the suddenly vacant parking spot after countless circuits around the crowded lot. Often, depending on my mood of the moment, I am either amused, annoyed, or even simply puzzled by the irony of so many sharp horn blasts sounded by frustrated holiday drivers who may be on their way to shop for gifts to generously give to others or who might be headed to celebrate the season at holiday parties.

On the other hand, I might be heartened just min-utes later by someone stuffing their last bill into the red kettle, or placing a new toy into a “Toys for Tots” box. Or a neighbor not often seen might bring a plate of cookies to another. Wishes for a merry Christmas or happy holidays often abound. And maybe, just maybe, someone approaching from the opposite direction might even wave me with a smile into that newly open parking space at the mall. Notwithstanding the impatience and lack of cour-tesy of many, benevolence seemingly prevails during the holidays, often generating, I think, a proverbial “snowball effect,” with an outpouring of civility and kindness contributing to both our individual and col-lective good cheer.

For some reason, as I recently noticed this familiar holiday picture unfolding again (I am thinking spe-cifically of a recent din of car horns), my thoughts

briefly turned to the increasing incivility of society in general, and even in the practice of law more particularly. As we all are aware, as our societal behavior has spiraled downward, so, too, discourte-ous behavior among lawyers has increased. All of us have no doubt observed or, at the very least, heard about “Rambo” litigators, hardball or win-at-all-costs tactics, acrimonious or obstructionist depositions, intemperate outbursts, belittling comments, etc. – regrettably, the list can go on. Indeed, in a compre-hensive ABA survey of 800 lawyers in 2006, “The Pulse of the Legal Profession,” almost 70 percent of respondents said that “lawyers have become less civil to each other over time.”

But we should be careful not to look too quickly with a dismissive nod of our heads and a point of our fin-gers at rude or disagreeable lawyers elsewhere. Sure, most of us generally are not discourteous, and in my own experience, most of my peers act quite profes-sionally, but, no doubt, there are instances where even we, ourselves, have not exactly lived up to the standard of professionalism we wish to meet. That is why I am taking the occasion of this short letter to ask how we might contribute to the solution to our profession’s problem of incivility – to challenge ourselves to practice as litigators in a manner that might generate a “snowballing” revival of civility in our profession.

As lawyers, we must always remember that ours is a “profession,” not merely a “business.” As such, we are called upon to practice “professionalism.” Yet we should be mindful that our rules of professional legal ethics do not set the benchmark for civility, but are the minimum required standards of appropriate legal conduct, and we must strive for so much more. Lawyers often mistakenly treat our duty of zeal-ous representation as a license for uncivil behavior. Interestingly, however, Rule 1.3 of Virginia’s Rules of Professional Conduct focuses more on the duty of diligence, with the comments to the Rule noting that although we should indeed zealously represent

Letter From the Chair • The Civility “Snowball”by Robert Leonard Garnier

Robert L. Garnier is Chair of the Litigation Section’s Board of Governors and practices in Falls Church.

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the interests of our clients, doing so does not require that we press for every possible advantage and, at times, collaborating with our opponent might best serve the interests of all parties involved in a dispute. Let us not forget that our duties as lawyers often run not only to our clients alone, in isolation, but also to ensure the availability and integrity of justice in our society, for the Preamble to our Rules of Professional Conduct appropriately opens as follows: “A Lawyer’s Responsibilities. – A lawyer is a representative of clients or a neutral third party, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” (Emphasis added.)

My intent here is not to provide a treatise on civility and ethics, but, rather, to give a gentle reminder of how we might employ kindness and courtesy in the daily demands and routines of our profession. Candidly, I am not qualified to provide any exhaustive instruction on the prac-tice of civility, but I would like to briefly offer below just a few ideas that I believe have helped me to enjoy cordial and congenial working relationships with opposing attor-neys. Indeed, many of my more enjoyable professional relationships throughout my career have been with my adversaries

For many of us, perhaps a change of attitude is in order. Litigation does not require that we abandon congeniality and professionalism. Sure, conflict is naturally inherent in litigation and we must indeed strive to represent our clients’ interests, but I also try to remember in litigation that opposing counsel is not, or should not be, an enemy as the word is often understood. In my own experience, friendly coop-eration with opposing counsel (while certainly still diligently litigating the case to advance my client’s interests) has produced many efficient and satisfying case resolutions. With this in mind from the outset of a case, I would suggest that whenever you get a

new case, pick up the phone and introduce yourself to your opponent (is counsel if already involved) and go ahead and discuss the case with him or her even before the discovery starts flying. Doing so not only might give you some new information about the dispute, but also provides a chance to let your oppo-nent know that although you will certainly fight on the issues to advance/defend the merits of the case where appropriate, you plan to work cooperatively to resolve the case. Just as your opening statement has a great impact on jurors, so your initial communication

with counsel can serve to set a tone for the rest of the case.

With most cases now being resolved before trial, the real fight occurs in discovery. While legitimate dis-putes inevitably arise and discovery motions may at times be necessary, I try not to create or get involved in petty discovery disputes. Courts frown upon discovery motions for good reason—they can clog up the system and often waste judicial resources, and they often are not worth the expense borne by our cli-ents. When possible, be reasonable and accommodating with opposing counsel. Not every issue needs to give rise to a battle. We should try to avoid knee-jerk reactions to dis-covery requests and responses and

evaluate whether our clients might be well served by working out our disputes. At the very least, both civility and ethics require that we must not file discov-ery requests, objections, and motions simply to harass, annoy, and/or improperly obstruct our adversaries.

Then there is the problem of depositions. I suppose because our clients, whom we want to impress with our legal talents and skills and our command of the litigation at hand, often attend depositions and judges are not present to control the behavior of counsel, depositions are perhaps the most fertile ground for incivility in litigation. At times, even the seemingly most “genteel” of attorneys might be seen resorting

Although we should

indeed zealously

represent the interests

of our clients, doing so

does not require that we

press for every possible

advantage and, at times,

collaborating with our

opponent might best

serve the interests of all

parties involved in

a dispute.

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to uncivil, obstructionist, or simply rude behavior during depositions, sometimes including disparaging personal remarks about opposing counsel. As pro-fessionals, however, we must not abandon notions of civility during depositions. “Rambo” deposition tac-tics typically do little to advance our clients’ interests, and often are ineffective.

Generally, whether in discovery or otherwise, I believe we should refrain from engaging in games-manship, or trying to set each other up by trickery. Certainly, let’s avoid petulance and stop taking unnecessary shots at each other. (Remember Rodney King’s admonition?) We should neither entertain nor tolerate a lack of respect and courtesy for others.

Finally, our interaction with opposing counsel upon resolution of a case may benefit our future work with that attorney, as well as our continuing enjoyment of the practice of law generally. Specifically, I am reminded of a practice often followed by my late father, Jean-Pierre Garnier—on those few occasions where he lost at trial, he always promptly sent a let-ter to his prevailing adversary congratulating him on his victory and, where appropriate, expressing his appreciation for his opponent’s cooperation through-out the case. I am certain that such gestures can only improve our relationships with our peers and contrib-ute to our enjoyment of what otherwise can often be a overly tedious and sometimes hostile practice of law.

In the end, I suppose it all goes back to the Golden Rule we were all taught as children, to treat others as we would wish they would treat us. Sometimes, basic guiding principles can be the most instruc-tive. With that in mind, I recommend reading George Washington’s transcription of 110 Rules of Civility & Decent Behaviour In Company and Conversation (http://www.history.org/almanack/life/manners/rules2.cfm), which might be summed up in his first rule, “Every Action done in Company, ought to be with Some Sign of Respect, to those that are Present.” (As a side note, if your transgression is to violate Washington’s rule no. 7 while in a deposition or trial, there might be a larger problem and I wonder whether my letter may not be of great benefit to you.)

In closing, I will draw from an opinion in which a United States District Court judge, addressing the question of when a lawyer crosses the line from zealous representation to abuse the legal process, observed,

As lawyers and judges, we live out who we are by our actions. Professionalism is not something to don at the office or take off with our suits and our robes; our behavior continuously dem-onstrates who we are. We can improve our own lives and spirits, those of our clients, opposing counsel and parties and the community as a whole, if we simply remember that our part in the system gives us tremendous power, to make life better for every citizen. ... If every lawyer and judge...would analyze every action she or he takes in light of the goal of ensuring that the system works fairly and efficiently for everyone, questions about profession-alism would simply disappear – and tremendous good would result for our community.

Revson v. Cinque & Cinque, 70 F. Supp. 2d 415, 436 (S.D.N.Y. 1999) (quoting Wallace P. Carson, Jr. & Barrie J. Herbold, Why “Kill All the Lawyers?”, 59 Or. St. B. Bull. 9, 12 (Jan. 1999)).

Simply put, we don’t have to be jerks to do our jobs as litigators representing our clients with zeal. Uncivil litigation often does our clients no good and can bleed enjoyment out of our practice of law. Instead, let’s be sure to follow the “Golden Rule” even in our work, and do unto others as we would have them do unto us. Restoring congeniality and practicing law with civil-ity and integrity may indeed be the best way to well serve the interests of our clients, and just might be another key to enjoying our profession calling. Let’s get the snowball rolling, and happy lawyering. U

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Litigation News Summer 2010

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Rule 3:20 cont’d from page 1

from this limited exception, the Supreme Court has consistently overturned any summary factual ruling based on deposition testimony.

Under what circumstances would a plaintiff agree to use deposition testimony in connection with a motion for summary judgment? When the plaintiff is faced with an expensive, lengthy, trial and knows that the deposition testimony accurately reflects the facts that will be established at trial, agreeing to the use of the deposition testimony is sensible procedure for testing the plaintiff’s theory of the case. After all, if the plaintiff survives the motion, the case almost certainly will proceed to trial.

The prohibition on the use of deposition testimony applies not only to motions for summary judgment or to strike, but to any other fact-based motion intended to end the litigation prior to trial. In Lloyd v. Kime, 275 Va. 98 (2008) the Supreme Court considered “whether the trial court erred in using discovery deposition testimony from the plaintiff’s expert witness to sustain a motion in limine excluding the witness’s testimony and subsequently granting summary judgment for the defendant based on the plaintiff’s lack of an expert witness.” Id. at 103. The case involved a medical expert designated to testify concerning the standard of care in performing spinal surgeries. The defendant moved in limine to exclude the expert. The trial court “read portions of the deposition” of both the challenged expert, as well as the defense expert, concluding that the plaintiff’s expert “was not qualified to testify as to the standard of care” for any procedure at issue in the case. Id. at 105. The trial court also denied the plaintiff’s request to file a supplemental expert designation to offer another expert to testify on the standard of care on the basis that the time for designating experts pursuant to the pretrial scheduling order had expired. Id. Once the court granted the motion in limine, the defense moved for (and the court granted) summary judgment on the ground that the plaintiff had no designated expert and

therefore could not establish a prima facie case of medical malpractice. Id.

The Virginia Supreme Court recognized that the defense “did not offer the deposition testimony in support of his motion for summary judgment,” but noted that he offered the testimony in a manner that was “functionally a motion for summary judgment.” Id. at 106. The Court then stated as follows:

We have held that Rule 3:20 and Code § 8.01-420 apply when a defendant files a motion in limine seeking the exclusion of the plaintiff’s

expert testimony, and the court’s ruling excluding the testimony is followed by the defendant’s motion for summary judgment predicated upon the exclusion. In such a case, the motion in limine is functionally a motion for summary judgment.

Id. at 107 (citation omitted). The Court concluded, based on the foregoing, that Rule 3:20 and Code Section 8.01-420 prohibit successful motions in limine based on deposition testimony when the motions are

followed by motions for summary judgment.The Supreme Court’s rulings leave a number

of unanswered questions. Does the ruling prohibit the use of deposition testimony in a motion in limine to exclude an expert? Or is the ruling more narrow, prohibiting the use of deposition testimony in the motion in limine only if it is followed by a motion for summary judgment predicated on excluding the expert? If the former, the holding emasculates the motion in limine to exclude expert testimony, as almost all such motions are based on deposition testimony since expert reports are not required under the Rules of the Supreme Court of Virginia. If the latter, then the holding means that cases may proceed to trial notwithstanding that a plaintiff cannot establish a critical element of the claim.

The Supreme Court’s holdings suggest that

The prohibition on

the use of deposition

testimony applies not

only to motions for

summary judgment or

to strike, but to any

other fact-based motion

intended to end the

litigation prior to trial.

6


the prohibition on the use of deposition testimony applies to any motion that is the “functional equivalent” of a motion for summary judgment. In Gay v. Norfolk & Western Railway, 253 Va. 212 (1997), the Court considered the use of deposition testimony to support a motion to dismiss for lack of subject matter jurisdiction. Id. at 214. Concluding that the trial court erred in considering deposition testimony, the Supreme Court clearly agreed with the plaintiff’s contention that the motion was “essentially a motion for summary judgment” that would justify an objection to the use of depositions. Id.

WaiverThe party opposing a summary disposition

must object to the use of deposition testimony. In Lloyd v. Kime, the Supreme Court concluded that the trial court did not commit error in considering deposition testimony in connection with the motion in limine notwithstanding that the motion was followed by one for summary judgment because the Court found that the plaintiff had waived any opposition to the use of deposition testimony:

However, based on the record of this case, [the plaintiff] did not object to the use of the depositions by [defendant] in support of the motion. Failure to object to the use of depositions is sufficient to establish acquiescence. Accordingly, based upon the record before us, the trial court did not err in using deposition evidence in the resolution of the motion in limine and subsequent motion for summary judgment.

275 Va. at 107-08 (citations omitted). The Court’s reference to “the motion” is unclear. Is a plaintiff required to object to the use of deposition testimony in connection with the motion in limine, or in connection with the subsequent motion for summary judgment? Since deposition testimony routinely is considered in connection with motions in limine, it is unlikely that a plaintiff would object. However, once

the motion is granted, and the plaintiff is faced with a motion for summary judgment, the expert is already excluded. Any right to object to the use of deposition testimony in connection with a summary judgment motion at that time would be a Pyrrhic victory. After all, once the plaintiff’s expert is stricken, opposing

the summary judgment motion may be doing nothing more than delaying the inevitable.

The Court’s construction of “waiver” in the context of using deposition testimony to support a summary judgment motion differs from such construction under other circumstances and is more akin to a Rule 5:25 failure to object. Normally, “waiver” applies when

a party knowingly and intentionally relinquishes a right. In connection with the use of depositions in summary judgment proceedings, the Court seems content to apply a rule that finds waiver in the face of evidence that a plaintiff “acquiesced.” And the court has specifically held that silence is acquiescence. See Lloyd, 275 Va. at 107-08 (“[f]ailure to object to the use of the deposition is sufficient to establish acquiescence”). In Parker v. Elco Elevator Corp., 250 Va. 278 (1995), the Supreme Court considered a summary judgment motion based in part on prohibited deposition testimony, as the record reflected that the trial court reached its decision based on the deposition testimony of the plaintiff’s expert. In a footnote addressing the trial court’s conclusion, the Court stated as follows:

We note that the trial court relied without objection on excerpts of Meese’s discovery depositions as read into the record by Elco’s counsel. The ruling on this issue was immediately followed by Elco’s motion for summary judgment, which was granted. Rule 3:18 prohibits the use of discovery depositions “in whole or in part” in supporting a motion for summary judgment absent agreement of counsel. See also Code § 8.01-420. In the absence of a clear objection to the use of the discovery deposition

The party opposing a

summary disposition

must object to the use of

deposition testimony.

7


in this manner, however, we review the court’s decision in the posture presented to us.

Id. at 281 n.2.A plaintiff who fails to object to the use of

deposition testimony in connection with a summary judgment motion cannot raise the issue on appeal. In Khanna v. Dominion Bank, 237 Va. 242 (1989), the Supreme Court specifically dismissed a defendant’s contention on appeal that the court had improperly used deposition testimony on a motion for summary judgment in connection with a counterclaim. Not surprisingly, the court ruled that, since “this issue was not raised in the trial court” the Court “will not entertain it for the first time on appeal.” Id. at 246.

What if a party objects after the introduction of deposition testimony, but before the court rules on the summary judgment motion? The Court has held that the objection is valid under these circumstances. In Gay v. Norfolk & Western Railway, the plaintiff objected to the use of deposition testimony, but the trial court concluded that he had “waived his objection because he did not raise it until after the motion was made, briefed, and argued.” 253 Va. at 214. Noting that both the rule and the statute require that the parties “must agree to the use of depositions” before they can serve as a basis for a summary judgment motion, the Supreme Court noted that “this condition requires some showing of acquiescence in the use of a deposition.” Id. Addressing the timing issue, the Court stated as follows:

Gay unequivocally objected to the use of his deposition before the trial court entered judgment. We agree that the better practice would have been for Gay to have made his objection known earlier in the proceedings. Nevertheless, in the absence of any basis to conclude that Gay agreed to the use of his deposition, the trial court

could not enter summary judgment based in whole, or in part, on that deposition.

Id. As a practical matter, therefore, unless a party consents to the use of deposition testimony, counsel should object to such use in connection with any motion that could result in the summary dismissal of a claim.

Supporting or Opposing the Motion

On its face, the prohibition of the use of discovery depositions applies only when it is offered to support the motion. Specifically, the rule states that no motion “shall be sustained” when based on discovery depositions. Courts in the Commonwealth routinely allow the use of deposition testimony in opposition to a motion for summary judgment. In Lloyd v. Kime, the Virginia Supreme Court addressed a defendant’s contention that a plaintiff had acquiesced to the use of deposition testimony by quoting it in its opposition to the defendant’s motions and in its own motion to reconsider. 275 Va. at 107. Citing both the rule and the statute, the

Court stated as follows:[D]iscovery depositions cannot be used to support a motion for summary judgment unless the parties agree. The Rule and statute do not apply to the use of depositions to oppose a motion for summary judgment.

Id. (emphasis in original). Similarly, in Monahan v. Obici Medical Management Services, Inc., 59 Va. Cir. 307 (Suffolk 2002), then Circuit Court (now Court of Appeals) Judge Arthur Kelsey noted that, “[i]f discovery depositions play any role in the summary judgment analysis, it is as a weapon against the entry of summary judgment.” Id. at 313 (citing W. Hamilton Bryson, Virginia Civil Procedure 384 (3d ed. 1997) (“On the other hand, there is no state statute

On its face, the

prohibition of the use

of discovery depositions

applies only when it is

offered to support the

motion.

Courts in the

Commonwealth routinely

allow the use of

deposition testimony in

opposition to a motion

for summary judgment.

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or rule of court that prohibits the use of depositions to oppose a motion for summary judgment.”).

PleadingsRule 3:20 specifically authorizes the use of

“the pleadings” as support for a motion for summary judgment. Pleadings, of course, include both the Complaint as well as the Answer and Grounds of Defense. If a court could grant summary judgment based on the Complaint standing alone, then a demurrer would be appropriate. Moreover, if the Complaint states a cause of action that survives a demurrer, the Answer would be of little use in securing summary judgment as any affirmative defense presumably would raise questions of fact precluding summary dismissal of the claim. But what about Special Pleas that often are filed prior to or in conjunction with the Answer? Without question, Special Pleas are “pleadings” that the court may consider in ruling on a motion for summary judgment. However, as discussed above, to the extent that ruling on the Special Plea ends a case, the court may not consider deposition testimony as the Special Plea is tantamount to a motion either for summary judgment or to strike. See Gay v. Norfolk & Western Railway, 253 Va. at 214 (motion to dismiss for lack of jurisdiction).

AdmissionsThe most useful tool in securing summary

judgment is the request for admission. Rule 4:11 provides that a party may serve a request for admission of the truth of matters that relate to “statements or opinions of fact or the application of law to fact, including the genuineness of any documents described in the request.” The rule is specifically crafted to overcome boilerplate objections and other attempts to avoid a response. An answering party may not give “lack of information and knowledge” as a reason for failing to admit or deny unless the party states that he has made a “reasonably inquiry and the information known or readily available by him is insufficient” to answer the request. Nor can a party refuse to admit because the request “presents a genuine issue for trial.” If a responding party refuses to comply in the face of a court order, it is not unusual for a court to determine that the matter is admitted.

The Supreme Court rules governing discovery-related sanctions are specifically designed to give teeth to requests for admission. Rule 4:12 includes a specific provision addressing the “expenses on failure to admit.” The Rule states, in pertinent part, as follows:

If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 4:11, and if the party requesting the admission proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney’s fees.

Rule 4:12(c). Moreover, the rule is not entirely discretionary, as it specifically provides that the court “shall” enter the order unless it finds that the request was objectionable, the admission sought was not important, the party failing to admit had good grounds to believe he may prevail on the matter, or there was other good reason for the failure to admit.

As a practical matter, when used in connection with a motion for summary judgment, requests for admission are most useful in establishing the genuineness of documents and facts that are largely undisputed. With this in mind, some practitioners have attempted to use Rule 4:11 to secure the admission of deposition testimony. Courts have consistently held that, to the extent that requests for admission are based on deposition testimony, they cannot be used in support of a motion for summary judgment. See, e.g., Martin v. Hackney, 41 Va. Cir. 632 (Roanoke 1995); Wolford v. Johnson, 20 Cir. L18434 (Va. Cir. Ct. July 15, 1997) (CaseFinder). In Martin v. Hackney, Judge Robert Doherty set forth his understanding of the rule in a poetic, three paragraph opinion:

Defendant has moved for summary judgment in this negligence action based on answers to requests for admissions. Plaintiff claims that the requests for admission are merely a reiteration of the discovery depositions, to which she objects, and that § 8.01-

9


420 forbids summary judgment under those circumstances. I agree with the Plaintiff.

A rose by any other name is still a rose. A discovery deposition by any other name is still a discovery deposition. The requests for admission in this case are nothing more than discovery deposition questions presented in another form.

Summary judgment is expressly forbidden by § 8.01-420 when based in whole or in part on discovery depositions, unless all parties agree to their use. Accordingly, the motion for summary judgment is denied.

Martin, 41 Va. Cir. at 632.The Supreme Court also has tacitly condemned

the practice. In Carson v. LeBlanc, 245 Va. 135 (1993), the Court noted that summary judgment was granted based on requests for admissions that literally quoted the deposition testimony. Id. at 137. Citing Rule 3:18 (now 3:20), the Court reluctantly concluded that it had “no alternative” but to address the issues “on the facts as disclosed by the record” because “the plaintiff did not object to the use of the discovery depositions as a basis for the trial court’s action on the motion for summary judgment nor is there an assignment of error challenging this prohibited procedural tactic.” Id.

Other MaterialRule 3:20 states specifically what material can

be used in support of a motion for summary judgment (pleadings, orders and admissions) and also states specifically what material cannot be used in support of the motion (discovery deposition testimony). What about material that is neither specifically allowed nor specifically prohibited? For example, can a party submit interrogatories or affidavits to support a motion for summary judgment? How about stipulations that are entered in connection with a case, but not for the specific purpose of determining a motion for summary judgment? The Court has suggested in dicta that such material may be used, but also has suggested in dicta that it may not be used

absent agreement. In Jackson v. Hartig, 274 Va. 219 (2007) the Court made a curious statement that leaves one wondering whether interrogatories are acceptable as support for a motion for summary judgment. Specifically, the defendant’s motion for summary judgment was based on a number of exhibits, including a copy of a Special Grand Jury report as well as the plaintiff’s Answers to Interrogatories. While it is not entirely clear that the trial court relied on all of these documents in granting summary judgment, the Supreme Court seems to suggest that they were properly before the trial court on the motion. Specifically, the Court states as follows:

In the context of this case, Jackson’s defamation claim can survive summary judgment only if the pleadings, orders, admissions, and answers to interrogatories reveal a genuine dispute of material fact that would allow a reasonable fact finder to conclude that Hartig and Landmark published the November 1, 2003 editorial either knowing that the statements contained therein were false or entertaining serious doubt that they were true.

Id. at 228-29 (emphasis added). It is hard to determine whether the Court’s wording is intentional. Does the statement mean that the Court may consider interrogatories in ruling on a motion for summary judgment or only as evidence in opposition to the motion. If for defense use only, then why would the Court omit any reference to depositions, which the Court clearly has held can be used to oppose such a motion? In light of the fact that the Court was reviewing a motion for summary judgment granted by a trial court considering interrogatories, it appears the Supreme Court in Jackson v. Hartig is holding that the material specifically listed in Rule 3:20 for use in support of a summary judgment motion is not exclusive, and that interrogatories may be considered as well. This interpretation is supported by a number of other decisions that include “interrogatories” in the general description of materials allowed under Rule 3:20 in support of a motion for summary judgment. See, e.g., Hansen v. Stanley Martin Cos., 266 Va. 345, 351 (2003) (“[O]ur review of the record is limited to

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the parties’ pleadings, requests for admission, and interrogatories.”); Meador v. Rockingham Casualty Co., 23 Cir. CL0600169300 (Va. Cir. Ct. March 7, 2007) (CaseFinder) (“A motion for summary is determined solely on the parties’ pleadings, requests for admissions, and interrogatories.”); Xtreme 4X4 Ctr., Inc. v. Howery, 65 Va. Cir. 469 (Roanoke 2004) (“In deciding whether to grant summary judgment, the court may rely upon, inter alia, the pleadings, answers to admissions and answers to interrogatories… .”). But in these cases, it does not appear that objections were made to the use of interrogatories in deciding a summary judgment motion.

In another case, however the Court suggests—again, in dicta—that additional material is appropriate only if the parties agree. In Andrews v. Ring, 266 Va. 311 (2003), the Supreme Court considered an appeal of a summary judgment ruling, describing the standard as follows:

A grant of summary judgment must be based upon undisputed facts established by pleadings, admissions in pleadings, and admissions made in answers to requests for admissions.

Id. at 318. The Court included a footnote to this reference which reads in its entirety, “Of course, the trial court may consider the stipulations of the parties, answers to interrogatories and deposition testimony if the parties agree.” It is difficult to construe the footnote to mean anything other than that the material listed in Rule 3:20 is exclusive, and that extraneous material, such as stipulations and interrogatories, is in the same category as depositions--they can only be used if the parties agree.

This position arguably finds support in other decisions in which the Supreme Court did not include “interrogatories” in the list of materials upon which summary judgment motions may be based. See, e.g., Fultz v. Delhaize Am., Inc., 278 Va. 84, 87 (2009) (“we examine the facts as presented in the pleadings, the orders made at a pretrial conference, and the party admissions.”); Klaiber v. Freemason Assocs., 266 Va. 478, 481 (2003) (“Our review of the facts is limited to pleadings, orders and admissions of the parties.”) (citing Andrews v. Ring, 266 Va. at 316). As a practical matter, courts may consider answers to interrogatories as “admissions,”

particularly if they are signed by a party under oath. After all, Rule 3:20 does not reference “responses to requests for admissions” but specifically allows courts to consider “the admissions, if any, in the proceedings… .” Nevertheless, the Court’s footnote in Andrews v. Ring casts doubt on the propriety of using interrogatory responses to support a motion for summary judgment unless the parties agree.

ConclusionThe Supreme Court’s construction of Rule

3:20 is that deposition testimony cannot be used to support a motion for summary judgment absent agreement, or at least acquiescence which may be established by silence. The prohibition applies not just to motions for summary judgment, but to any other motion that is the “functional equivalent” of a motion for summary judgment. While courts certainly may consider pleadings, orders and admissions in ruling on a motion for summary judgment, there does not seem to be a consensus with regard to other material not specifically listed under the Rule. U

11


11

A Changed Landscape for Expert-Witness

Discovery in Federal Court

by Patricia C. McCullagh

I. IntroductionOn December 1, 2010, amendments to Rule

26 of the Federal Rules of Civil Procedure (the “Rule” or “Rule 26”) took effect, changing the dynamics of expert-witness disclosures in federal practice. These amendments make three primary changes to the Rule:

• Communications between an attorney and an expert required to provide a report pursuant to Rule 26(a)(2)(B) (“Retained Expert”) are now generally protected from disclosure;

• An expert’s draft reports/written disclosures are no longer discoverable; and

• A party must provide a written summary of facts and opinions to be provided by testifying experts who are not required to file an expert report pursuant to Rule 26(a)(2)(B) (“Non-Retained Experts”).

II. Prior RuleSince the Rule was last amended in 1993, it

has provided in relevant part that an expert “retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony” must provide a written report of his or her opinions, and disclose among other items “the data or other infor-mation considered by the witness in forming them.”1 Courts widely interpreted this language as requiring a Retained Expert to disclose all commu-

nications with the attorney as well as all drafts of any reports or other documentation prepared by that expert. Specifically, because the Rule required a party to disclose “the data or other information con-sidered by the witness in forming” his or her opinion, disclosure of everything communicated by counsel to the expert and vice versa, including drafts of any required report, was obligatory.2 Moreover work-product protection was explicitly not afforded to communications between attorneys and their testify-ing experts; only “consulting” experts were afforded this protection.3 Accordingly, everything the expert read, reviewed, discussed, drafted, wrote or otherwise communicated with the involved counsel was poten-tially discoverable.

Further, due to the scope of the previous Rule, a party was not expressly required to provide written disclosure about the nature and scope of Non-Retained Expert’s testimony, unless some other discovery request sought the information.

III. New Rule The amendments to the Rule limit the scope

of information that must be disclosed by a Retained Expert. They prevent the disclosure of drafts of expert reports and written disclosures. And they define the disclosure obligations for Non-Retained Experts.

A. Communications with Retained Experts

The amendments to Rule 26(a)(2)(B) provide that the Retained Expert disclose only “the facts or data considered by the [expert] witness in form-ing [his or her] opinions.” This replaces the broad requirement to identify and disclose all “other infor-mation” considered (which included communications with counsel), thus narrowing the scope of material that must be disclosed. Accordingly, communica-tions between Retained Experts and counsel, whether verbal or written, are no longer discoverable under the new definition. Further, new language contained in Rule 26(b)(4)(C) provides that communication between an attorney and a Retained Expert are gener-

Patricia C. McCullagh is a partner at McCandlish Holton in Richmond.

12

Fall 2010 Litigation News

12

ally protected from disclosure by the work-product doctrine,4 unless the communications (1) relate to the expert’s compensation; (2) identify facts and data provided by the attorney and considered by the expert; and/or (3) identify any assumptions provided by the attorney and relied upon by the expert.5

These amendments in Rule 26(a)(2)(B) and Rule 26(b)(4)(C) refer, however, only to Retained Experts and the reports they must produce. Thus, only counsel’s communica-tions with these types of experts—but not Non-Retained Experts—are shielded from disclosure under this portion of the amendments.

B. Draft of Reports and Written Disclosures

The amendments also confer work-product protection on drafts of reports and writ-ten disclosures.6 Specifically, the amendments provide that the work-product doctrine applies to “drafts of any report or disclosure required under Rule 26(a)(2) regardless of the form in which the draft is required.”7 Notably, this protection, unlike that discussed above, appears to apply to written dis-closures required under the entirety of Rule 26(a)(2), regardless of whether a Retained or Non-Retained Expert is involved, and is thus not limited to drafts of reports required pursuant to Rule 26(a)(2)(B) only. That this portion of the amendments refers to both “reports” and “disclosures” supports this conclusion as well.

C. Disclosure of Non-Retained Expert Information

Finally, the amendments specifically outline the written disclosure required of Non-Retained Experts. Under the amendments, although Non-Retained Experts still do not need to prepare a free-standing, full-blown report, “the subject matter on which the [Non-Retained Expert] witness is expected to provide evidence” and “a summary of the facts and

opinions to which the witness is expected to testify” must be disclosed in writing.8 Accordingly, there is now clear guidance as to the minimum information that must be provided to opposing counsel, regarding these types of witnesses.

IV. Intended Effect of Amendments The amendments are designed to streamline

discovery, allow for more efficient communication between counsel and experts, and yet provide par-ties appropriate access to each other’s expert witness informa-tion. Although the full ramifica-tions of the amendments will only emerge as they are utilized, certain predictable effects of the amend-ments have been considered and addressed by the revised Rule.

A. Cost Reduction Under the prior Rule,

lawyers were obliged to act circu-itously in preparing their case in

order to protect communications with experts, to the extent possible. Often this included retaining both a consulting expert (whose opinions were not discov-erable) and a testifying expert. In these situations, the consulting expert would assist with initial inves-tigations, help develop theories and opinions with counsel, and only then the testifying expert would be brought in to present the “final” testimony. Under the current Rule’s communication and disclosure protec-tions, counsel can consult with Retained Expert in a more confidential setting, thus eliminating this “two-expert process” in many cases. The elimination of this process reduces the cost to clients, in that they no longer need to retain two sets of experts.

Further, under the prior Rule, communication between Retained Experts and counsel were often cumbersome and inefficient. Rather than working collaboratively on a draft report to insure its accu-racy, as well as compliance with the Rules’ require-ments, experts and counsel would only communicate

The amendments are

designed to streamline

discovery, allow for more

efficient communication

between counsel and

experts, and yet provide

parties appropriate access to

each other’s expert witness

information.

13


13

verbally, and even then, often cryptically. No notes, record or other written communications could be exchanged. This awkward process increased both the attorney and expert time necessary to prepare proper reports and testimony, leading to a further increase in litigation expenses. Under the current Rule, these artificial hurdles have been eliminated, allowing for more efficient, streamlined com-munications in many cases, thus reducing the party’s expense in presenting expert testimony.

B. Less Wrangling The narrowing of certain discoverable expert information will also reduce the amount of “wrangling” during the discovery process. First, it is hoped that the relationship between counsel and his or her expert will be less strained and will result in a better analysis and opinion, as the cum-bersome communication barriers are now removed. Also, because the scope of the various expert disclosures has been more specifically defined, there should be less confrontation between counsel as to what is and what is not discoverable. This, hopefully, will also reduce the necessity for the Court to referee motions to compel and other dis-covery disputes. Further, because the current work-product protection covers additional types of commu-nications not previously covered, deposing lawyers need not waste valuable deposition time inquiring about every now-non-discoverable communication, draft report/disclosure or other written record that may possibly be in the expert’s possession. Instead, counsel will be able to focus on the substance of the expert’s opinions.

V. Immediate Impact on Certain Types of Experts and Cases

Although the amendments will ultimately affect any case requiring expert testimony, certain types of experts and/or certain types of cases will

see immediate impact. A. Cases Where “Additional

Information” Is Learned In DiscoveryIn many—if not all—property casualty, per-

sonal injury and/or subrogation matters, cause and origin experts are essential to the offensive and defen-sive cases. Investigators and experts must be brought

in early to develop and review ini-tial data and information to form opinions on theories of liability and potentially liable parties and defenses. Under the prior Rule, if these experts prepared written reports based on initial findings, and additional information later obtained through discovery modi-fied or even undermine the initial report, a party would be forced to either retain a new testifying expert, or allow its existing expert to be impeached by the previous report, both sub-optimal develop-

ments. However, under the current Rule, an initial investigator or early-engaged expert would be able to modify his or her testimony to address the additional information without having to produce his or her pre-liminary thoughts on the matter. B. Cases Involving Treating Physicians or Similar “Non-Retained” Experts

Under the prior Rule, a treating physician could be deposed or called to testify without being required to provide a written report. A party previ-ously seeking to depose a treating physician or simi-lar witness may not have fully known the underlying basis or scope of the witness’ opinions prior to the deposition. This often resulted in lengthy and inef-ficient depositions, sometimes catching the deposing attorney “off guard” with surprise opinions presented by such witnesses. Under the current Rule, the sub-ject matter and opinions of treating physicians and similar witnesses must be disclosed in written format. Although there may be additional upfront costs for counsel and experts in preparing these “mini reports,”

Because the scope of the

various expert disclosures

has been more specifically

defined, there should be

less confrontation between

counsel as to what is and

what is not discoverable.

14


overall the amendments hope to reduce litigation costs by requiring substantive issues to be disclosed and efficiently addressed by all parties. However, for those offering the treating physician or similar wit-ness, it is important to remember that the protections afforded to communications with Retained Experts will not apply.

VI. Criticism of Amendments and Other Warnings

Although the amendments were supported by the American Bar Association, the Council of the American Bar Association Section on Litigation, the American College of Trial Lawyers, the American Association for Justice (formerly ATLA), the Federal Magistrate Judges’ Association, the Lawyers for Civil Justice, the Federation of Defense and Corporation Counsel, the International Association of Defense Counsel and the United States Department of Justice, some concern was raised that the amendments may pre-clude a party from investigating whether an expert’s opinions were improperly influenced by the associ-ated lawyer, thus detracting from the “independence” of the expert’s opinion.9 However, given the excep-tions to the work-product protection provided in Rule 26(b)(4)(C), and that the parties “remain free to explore what the expert considered, adopted rejected or failed to consider” in forming his or her opinion,10 the amendments properly balanced the needs of liti-gants.

Also, although the amendments to the Rule

are intended to make the expert discovery process more efficient, counsel still must be careful about their communications with Non-Retained Experts, as not all such communications will be “disclo-sure proof.” Moreover, with the increase in “trial-preparation material” protected from disclosure and more communications being considered “privileged,”

comes the obligation to include such communications in any privi-lege log required by Rule 26(b)(5), creating certain additional work for the withholding counsel.

VII. Conclusion Only time will tell

if the amendments have their intended effects. It is, however, certain that they will significantly alter the landscape of expert dis-closures in federal court. U

1. Rule 26(a)(2)(B).2. See, e.g., Trigon Ins. Co. v. United States, 204 F.R.D. 277 (E.D.Va. 2001).3. See 1993 Advisory Committee (the expert report “is to disclose the data and

other information considered by the expert and any exhibits or charts that summarize or support the expert’s opinions. Given this obligation of disclosure, litigants should not longer be able to argue that materials furnished to their experts to be used in forming their opinions . . . are privileged or otherwise protected from disclosure. . . .”).4. See Rule 26(b)(4)(C) and Rule 26(b)(3)(A).5. See Rule 26(b)(3) and Rule 26(b)(4).6. See Rule 26(b)(3) and Rule 26(b)(4).7. See Rule 26(b)(4).8. See Rule 26(a)(2)(C). 9. See Excerpt from the Report of the Judicial Conference Committee on Rules of Practice And Procedure (“Committee Report Excerpt”) at pp 4-5.10. See Committee Report Excerpt at p. 5. U

Although the amendments

to the Rule are intended

to make the expert

discovery process more

efficient, counsel still must

be careful about their

communications with Non-

Retained Experts, as not all

such communications will be

“disclosure proof.”

15


15

Virginia’s New Rules of Appellate

Procedure: A View From the Appellate Bench

by Elizabeth Lacy

The amendments to the rules of appellate procedure, which became effective July 1, 2010, were the product of a multi-year, multi-level discus-sion. Led by Justice Donald Lemons, the Advisory Committee appointed by Chief Justice Leroy Hassell, represented virtually all aspects of the profession: trial and appellate judges, lawyers who represented both civil and criminal plaintiffs and defendants, government lawyers and those in private practice, large, medium, and small law firms. The committee began its work in 2005 and engaged in numerous meetings, subcommittee meetings, draft reviews and other communications. During that time, members of the committee were encouraged to raise any and all issues about provisions that they believed should be changed, added to, or deleted from the appellate rules. And they did. The discussions ranged from the contemporaneous-objection rule to the use of state-ment of facts, the length and content of briefs, and the organization of the rules—to name but a few topics. The committee made its recommendations in 2007. Those recommendations were then reviewed by the Advisory Committee of the Judicial Council and the Judicial Council before final review and adoption by the Supreme Court. The ultimate product was the result of compromise, balancing streamlining and clarifying certain processes while avoiding unin-

tended consequences. As a member of the Lemons Advisory

Committee, one of my principal objectives was to be sure the rules were generally simple, clear, and straightforward rather than a trap for the unwary advocate. I supported an effort to insure that the rules were compatible with the way in which law is practiced today, specifically the use of technology. It was also important to me that the committee and the practicing bar understand that—although flexibility and discretion in the application of a rule seems is an attractive tool—a key strength of our legal system is that all parties play by the same rules. While discre-tion in the application of rules is sought after in some hard cases, the more discretion the rules allow, the more inconsistently they may be applied.

Several articles—in this publication and else-where—have addressed specific changes to the rules. This column does not attempt to do that. Rather, I wish to highlight a few of the changes that my experi-ence tells me are particularly helpful for the Supreme Court when considering whether to grant and how to resolve an appeal. First on the list is the new requirement that the appellant (or appellee who files a cross error) identify the place in the record where the issue was preserved in the trial court.1 While preservation of an appellate issue has always been required, it seems to me that in recent years increas-ing amounts of appellate ink has been used arguing over the preservation issue. More importantly, many of these arguments did not surface until the appellee’s brief on the merits, leaving resolution of the issue to the end of the process. If the issue was meritorious, needless time and resources had been spent process-ing the appeal at a cost to the litigants and the court system. There is nothing as frustrating as granting a petition for appeal, preparing for oral argument, and then being stymied because the court cannot address the issue because it was not preserved. The new rule should be a check for the appellant to be sure the issues raised on appeal were preserved and a warning to appellees to raise their contentions regarding suf-ficiency of the preservation early in the process.Elizabeth Lacy is a Senior Justice of the Supreme Court of Virginia.

16


Rules 5:27 and 5:28 now require that advo-cates state the standard of review for each issue raised. This requirement can also serve as a check for appellants particularly. Regardless of an appel-lant’s view of the trial court’s errors, the standard applied to review those errors has a direct effect on the way the issue is considered by the Court and in many cases can make or break the appeal.2 Litigants will need to be aware of the distinctions between reviewing findings of fact, law, mixed fact and law, and discre-tionary rulings. The requirement also surfaces any disagreement over the standard early in the pro-cess, alerting the Court to the issue in a timely manner.

New Rule 5:1A solves two problems that have pestered the Court regarding the handling of appellate procedural defects. 3 As in all procedures some defects are going to be fatal and some not. The failure to have “assignments of error” designated as “assign-ments of error,” for example, has long resulted in automatic dismissal of an appeal. The new rule iden-tifies in one place all the appellate procedural defects that will require the appeal to be dismissed and gives the advocate fair warning that the appeal can be dis-missed for any failure to comply with the rules. More importantly this rule gives the Court the specific abil-ity to afford the litigant an opportunity to cure other defects. The failure to comply with non-fatal defects in the past often was ignored or at times became an issue of contention. An attorney’s repeated non-compliance with the rules has long raised questions of competence with the Court. New Rule 5:1A alerts the advocate that if the appeal is dismissed for failure to comply with the rules, the Court “may” report the advocate to the Virginia State Bar.

Another provision that is new to the rules but has been around in case law for some time is Rule 5:8A dealing with interlocutory appeals from partial final judgment orders involving dismissal of some but not all the litigants.4 This issue has pestered the

litigants and the Court alike on many occasions. Monica Monday and James O’Keefe’s article in this Newsletter addresses this Rule thoroughly and I commend that article to you. Suffice it to say that the requirement in the rule that the trial judge enter a “Partial Final Judgment” order containing cer-tain findings, while not eliminat-ing a debate on whether the order is in error or not, will preclude such interlocutory appeals when the trial judge declines to enter such an order.

Rules that reflect the impact of technology include the Rules allowing the length of a pleading to be determined by word count (Rule 5:17, 5:18(b)) the sub-mission of appendices on CD Rom

(Rule 5:32(a)(3)), and requirements that counsel pro-vide email addresses (Rule 5:26(h); 5A:20). Many litigants already file electronic copies of briefs. Such filings have been most helpful to the Court—particularly for those Justices who do not reside in Richmond. Furthermore, electronic filing of petitions for rehearing has been part of the Rules for many years. As e-filing of cases grows generally, it is a fair prediction that even more rules will be added to accommodate such cases on appeal. And while it may not fall exactly into the category of technology, allowing pleadings to be filed by methods other than the United States Postal Service is a needed and long overdue change.

Many of the changes to the rules reflect an existing practice—whether by tradition or case law—and thus may not have a significant impact on those

Rules 5:27 and 5:28 now

require that advocates state

the standard of review for

each issue raised.

Regardless of an appellant’s

view of the trial court’s

errors, the standard applied

to review those errors has a

direct effect on the way the

issue is considered by the

Court and in many cases can

make or break the appeal.

17


attorneys who are regular patrons of the Supreme Court. But for litigants who are infrequently before the Court, the new rules add a level of transparency to unwritten or traditional practices or those rules that have been developed through case law rather than rulemaking. This levels the playing field and, I hope, will make the appellate rules less of a minefield to traverse for the less-practiced. Nevertheless, an advo-cate still has to READ THE RULES! U

1. Rule 5:17(c)(1) provides in relevant part “An exact reference to the page(s) of the transcript, written statement of facts,, or record where the alleged error has been preserved in the trial court or other tribunal from which the appeal is taken shall be included with each assignment of error.” A similar rule had been in effect for appeals to the Court of Appeals prior to the adoption of the revised rules and was carried forward in the revised rules. 2. Rule 5:28(d) states in relevant part “With respect to each assignment of error, the standard of review and the argument — including principles of law and the authorities — shall be stated in one place and not scattered through the brief.” Similar language appears in Rules 5:28(e)(2) and 5:27(d). 3. Rule 5:1A. (a) Penalties; Show Cause; Dismissal. This Court may dismiss an appeal or impose such other penalty as it deems appropriate for non-compliance with these Rules. Except as provided in Rule 5:17(c) regarding assignments of error, prior to the dismissal of an appeal for any defect in the filings related to formatting, curable failure to comply with other requirements, or the failure to meet non-mandatory filing deadlines, this Court may issue a show cause order to counsel or a party not represented by an attorney, prescribing a time in which to cure such defect or to otherwise show cause why the appeal should not be dismissed or other penalty imposed. (b) Report to Virginia State Bar. If an attorney’s failure to comply with these Rules results in the dismissal of an appeal, this Court may report the attorney to the Virginia State Bar in accordance with Rule 8.3 of the Virginia Rules of Professional Conduct.

4. Rule 5:8A provides in relevant part :

(a) When available. When claims for relief are presented in a civil action against multiple parties — whether in a complaint, counterclaim, cross-claim, or third-party claim — the trial court may enter final judgment as to one or more but fewer than all of the parties only by entering an order expressly labeled “Partial Final Judgment” which contains express findings that (i) the interests of such parties, and the grounds on which judgment is entered as to them, are separate and distinct from those raised by the issues in the claims against remaining parties, and (ii) the results of any appeal from the partial final judgment cannot affect decision of the claims against the remaining parties, and (iii) decision of the claims remaining in the trial court cannot affect the disposition of claims against the parties subject to the Partial Final Judgment if those parties are later restored to the case by reversal of the Partial Final Judgment on appeal . . .

(c) Refusal of Partial Final Judgment. No appeal shall lie from a refusal by the trial court to enter a Partial Final Judgment under this Rule. U

18


Something Old, Something New:The Partial Final Judgment Rule

by Monica Taylor MondayJames J. O’Keeffe

Gentry Locke Rakes & Moore, LLP

You have filed a personal-injury action against two defendants. The trial court dismisses one defendant, finding that it has immunity, but permits the case to proceed under a negligence theory against the other. Can you appeal the trial court’s immunity ruling now, or must you wait until final judgment is entered against the remaining defendant? The recent overhaul of Virginia’s appellate rules gives trial lawyers clear guidelines to answer this question. Rule 5:8A authorizes the entry of “Partial Final Judgment” in certain multi-party civil cases. This new rule creates a procedure to imme-diately appeal rulings applicable to some but not all parties before the case is fully concluded. It autho-rizes a circuit court, in certain circumstances, to enter a final judgment of an otherwise interlocutory ruling so the judgment may be immediately appealed to the Supreme Court of Virginia.1

Overview of the New Rule Not every ruling in a multi-party case that disposes of claims against fewer than all of the parties will be eligible for immediate appeal under the new rule. Rather, the Supreme Court has carefully limited application of the new rule to issues that are “separate and distinct” from those raised in the claims against the remaining parties in the trial court.2 For the Partial Final Judgment rule to apply, the various claims in the action must be able to pro-ceed independently in the appellate court and in the

trial court. Under the terms of the new rule, both the interests of the parties and the grounds on which judgment is entered must be separate and distinct from those raised by the issues in the claims of the remaining parties.3 Entry of Partial Final Judgment is appropriate only when the outcome of the appeal of the Partial Final Judgment cannot affect the decision on the claims against the remaining parties in the trial court.4 And if the Supreme Court reverses the Partial Final Judgment and returns the appealing parties to the trial court, decision of the claims against the remaining parties in the trial court cannot affect the disposition of the claims against the parties subject to the Partial Final Judgment.5

Final Judgments versus Appealable Interlocutory Orders A review of final judgments and interlocutory orders is helpful to an understanding of the Partial Final Judgment rule. By statute, the Supreme Court of Virginia has jurisdiction to hear appeals from “final judgments.”6 A final judgment is one that disposes of the whole subject of the case, gives all the relief contemplated, and leaves nothing to be done in the case except to ministerially carry the order into execution.7 By comparison, an order that leaves anything substan-tive to be done by the trial court is interlocutory, not final.8 The jurisdiction of the Supreme Court of Virginia to hear appeals from interlocutory orders is limited and purely statutory.9 Thus, some interlocu-tory orders are appealable, but only when permitted by statute.10 Applying these principles, an order that dis-poses of claims against fewer than all of the parties is not a final judgment for purposes of appeal, unless authorized by statute.11 Such an order does not dispose of the whole subject of the case, and leaves claims left to be resolved by the court or jury. The Partial Final Judgment rule permits a trial court to make final, and thus appealable, a ruling that may otherwise have been an unappealable interlocu-tory order.

A New Rule . . . Sort of The Partial Final Judgment rule is certainly new to the Rules of the Supreme Court of Virginia. Monica Monday and James O’Keefe are partners at Gentry Locke

Rakes & Moore in Roanoke.

19


But the concept underlying the rule is not com-pletely foreign to Virginia practice. It mirrors, in some respects, Federal Rule of Civil Procedure 54(b), which governs judgments on multiple claims or involving multiple parties. But the Partial Final Judgment rule finds its origins in and codifies, in part, Virginia’s longstanding common law “severable interest rule.” Under the “severable inter-est rule,” an interlocutory order that was final as to some but not all the parties could, in some cir-cumstances, be appealed before the case was concluded as to all the parties.12 The rule was a judicially-created exception to the general rule that appeals may be taken only from final judgments and interlocutory rulings autho-rized by statute.13 The severable interest rule allowed an adju-dication that was final as to a collateral matter—i.e, separate and distinct from the general subject of the litigation and affecting only particular parties to the controversy—to be appealed before the determina-tion of the case against all defendants.14 Thus, a judgment was final and appealable when the interests of the parties before the trial court were independent and severable.15 The judgment was severable when the original determination of those issues by the trial court, or any determination which could be made as a result of an appeal, could not affect the determination of the remaining issues in the suit.16 Further, for a judgment to be appealable under the severable inter-est rule, the determination of the remaining issues in the trial court could not affect the issues between the parties on appeal if they were restored to the case by a reversal.17 If the issues presented in the case are truly separate and distinct, then the dismissal of one party is, in effect, a final judgment, and there is no good reason to wait until a final disposition of all the parties before appealing. Under the severable interest rule, though, a party could appeal such a ruling immediately or wait until a final judgment as to all parties before appealing.18 By allowing litigants to elect the timing of an appeal, the relatively obscure severable interest

rule avoided prejudicing the appellate rights of litigants who had never heard of it.19

Severable Interest Cases Under the severable interest rule, the Supreme Court of Virginia permitted appeals of separate and distinct rulings involving fewer than all the parties before a final disposition as to all parties. Examining a

few of the key cases, which defined the contours of the severable inter-est rule, adds context to the new Partial Final Judgment rule. The Supreme Court first applied the severable interest rule in the 1925 case Bowles v. Richmond.20 Although the Court did not identify the rule by name, it recognized it as an exception to the general rule that there is no appealable judgment until there is

a disposition as to all joint tortfeasors.21 The plaintiff in Bowles sued the City of Richmond and a railroad for injuries sustained as a result of their negligent failure to properly safeguard the approach to an old bridge.22 The City sought dismissal of the suit, alleging that the plaintiff had failed to give written notice of the accident to the City, as required by the City’s Charter.23 The circuit court agreed with the City, and dismissed it from the case.24 The plaintiff appealed this ruling even though no action had been taken against the railroad.25 The Supreme Court decided that the order under consideration was appealable because “there [was] no joint interest between the defendants in the matters decided by the circuit court” and the issue did not relate to the merits of the case.26 Thus, the Court reasoned, the judgment as to the City was final, and the appeal was proper.27 The same principle permitted an appeal of an otherwise interlocutory ruling in Hinchey v. Ogden, a personal-injury case.28 The plaintiff in Hinchey was a passenger on a motorcycle that was struck when Henderson’s vehicle crossed into its lane of travel.29 The plaintiff sued Henderson and the superintendent of the expressway where the accident occurred.30 She alleged that Henderson had negligently operated his vehicle, and that the superintendent had breached

The Partial Final Judgment

rule finds its origins in and

codifies, in part, Virginia’s

longstanding common law

“severable interest rule.”

20


his official duty to provide barriers and other traffic control devices sufficient to prevent vehicles from entering the wrong lane of travel.31 The trial court dismissed the action against the superintendent on the basis of sovereign immunity.32 The plaintiff appealed that ruling, even though her case remained active in the trial court against the driver defendant. Citing Bowles, the Supreme Court found that the sovereign-immunity ruling was appealable.33 It presented a separate and distinct issue for appeal. The issue of the superintendent’s liability was not related to, or dependent on, the issue of the driver’s negligence. One landmark personal-injury case—Thompson v. Skate America, Inc.—reached the Supreme Court before a final judg-ment as to all the parties via the severable interest rule. Thompson defined the duties of a business owner to protect its invitees against the danger of harm from the criminal acts of third parties. In Thompson, the plaintiff was assaulted by another patron, a minor, while visiting a skating rink.34 The assailant was a known trouble-maker who had been previously ejected, and then banned, from the skating rink because of his history of caus-ing fights and disturbances.35 The skating rink, how-ever, failed to enforce the ban on this occasion.36 The plaintiff sued three parties—the skating rink, the minor assailant, and the mother of his assail-ant—and asserted joint and several liability.37 The suit against the minor for assault and battery alleged an intentional tort, but the claims against the skat-ing rink and the minor’s mother were premised on negligence theories.38 The circuit court dismissed the negligence claims against the skating rink and the minor’s mother on demurrer, but the claim against the minor assailant was not dismissed.39 Describing the judgment order from which the plaintiff appealed as “interlocutory in nature,” the Supreme Court held that the ruling sustaining the demurrer was appealable.40 Under the severable interest rule, the claims against the minor were based upon an intentional act separate and distinct from the issues presented on appeal.41 Therefore, the order

sustaining the demurrer was final as to the skating rink and the minor’s mother, and severable from the interests of the assailant, the remaining defendant.42

How does the Partial Final Judgment rule work? The Partial Final Judgment rule applies to civil suits involving claims against multiple parties—whether in a complaint, counterclaim, cross-claim, or third-party claim.43 The Rule authorizes, but does

not require, a trial court to enter a final judgment as to one or more but fewer than all of the parties.44 The rule applies only if the trial court enters an order that is “expressly labeled” a Partial Final Judgment.45 Further, the Partial Final Judgment order must include three explicit findings, which embody the principles of the severable interest rule: (i) the interests of the parties, and the

grounds on which judgment is entered as to them, are separate and distinct from those raised by the issues in the claims against remaining parties; (ii) the results of any appeal from the partial final judgment cannot affect decision of the claims against the remaining parties; and (iii) the decision of the claims remaining in the trial court cannot affect the disposition of claims against the parties subject to the Partial Final Judgment if those parties are later restored to the case by reversal of the Partial Final Judgment on appeal.46 It is unlikely that circuit court judges will sua sponte issue Partial Final Judgments. Many Virginia circuit court judges do not issue their own orders. Further, rulings subject to treatment as Partial Final Judgments will likely appear in letter opinions or bench rulings. Therefore, after receiving a ruling that falls within the ambit of the rule, parties who wish to immediately appeal that ruling to the Supreme Court under Rule 5:8A should prepare an order that satisfies the requirements of the new rule and present it to the court for consideration and entry.

After Entry of Partial Final Judgment The entry of Partial Final Judgment starts the clock on the thirty-day period to file a notice of

The Rule authorizes, but does

not require, a trial court to

enter a final judgment as to

one or more but fewer than

all of the parties.

21


appeal and the three-month period to file a petition for appeal.47 Thus, appeals from the entry of Partial Final Judgment generally will proceed as other appeals from final judgments and orders. No appeal, however, may be taken from the trial court’s refusal to enter a Partial Final Judgment.48 Under the severable interest rule, a party aggrieved of a ruling on fewer than all the claims or parties could elect to appeal immediately or to appeal after there was a final judgment resolving the entire case.49 In contrast, because a Partial Final Judgment is a final judgment, the entry of an order under Rule 5:8A begins the appeal process, and there is no option to delay the appeal until entry of a final judgment on all parties and claims. This point is critical – a Partial Final Judgment under Rule 5:8A must be timely appealed or the right to appeal that judgment is forever lost.

The Death Knell of the Severable Interest Rule Any order that adjudicates fewer than all the claims but fails to comply with the requirements of the new Supreme Court rule is not a final judgment.50 To be appealable, such orders must include the express findings and label required under Rule 5:8A(a). Any order adjudicating the rights of fewer than all the parties that does not contain these elements is not appealable.51 Thus, the Partial Final Judgment rule supersedes the common law severable interest rule. As a practical matter, then, the severable interest rule is dead.

Practical Considerations New rules, like other novelties, spark attention and interest. But litigators should carefully consider whether appealing a ruling that could be subject to the Partial Final Judgment Rule is advisable, or even helpful, to the case. The pros and cons of pursuing an appeal under Rule 5:8A depend on the unique circumstances of each case. The benefits of the rule are obvious. An important ruling may be immediately appealed without waiting for resolution of the case against all the parties. Due to the uncertainties of litigation, some cases take years before a full and final judgment is rendered. An immediate appeal of a ruling that

impacts fewer than all the parties may inform the overall case strategy and advance resolution of the case. Cases where there has been a Partial Final Judgment will proceed on dual tracks – there will be both a case in the circuit court and an appeal in the Supreme Court. The new rule makes no provision for a stay of the proceedings in the trial court during the pendency of the appeal.52 Managing two cases—involving at least one similar party—in different courts may present challenges and concerns that outweigh any benefit to be gained from pursuing an appeal before a final judgment as to all the parties. Timing is an important factor to consider. Because civil appeals in the Supreme Court may take up to eighteen months to complete, a litigant may already have a final judgment in the trial court before receiving a decision from the Supreme Court on the Partial Final Judgment. If there is then an appeal of the remaining claim, dual-track litigation may result in prosecuting or defending two appeals in the Supreme Court at the same time. Similarly, if the appeal of the Partial Final Judgment is successful, then that case will be remanded, and there is the prospect of two separate trials. Economic considerations may also impact the choice of when to appeal a ruling that involves fewer than all the parties in the case. It is usually, but not always, cheaper to appeal a case once, rather than twice. With the entry of Partial Final Judgment, the litigants on both sides of the “v” may face two appeals and two trials, rather than one. Whatever the unique issues and circumstanc-es of your case, Rule 5:8A should find its way into every litigator’s tool box. U

1. There is no similar provision in the rules of the Court of Appeals of Virginia.2. Rule 5:8A(a).3. Id.4. Id.5. Id.6. Va. Code § 8.01-670(A)(3).7. Comcast of Chesterfield County, Inc. v. Bd. of Supervisors, 277 Va. 293, 301, 672 S.E.2d 870, 873 (2009); Lewis v. Lewis, 271 Va. 520, 528, n.3, 628 S.E.2d 314, 318, n.3 (2006); Ragan v. Woodcroft Village Apts., 255 Va. 322, 327, 497 S.E.2d 740, 743 (1998); Leggett v. Caudill, 247 Va. 130, 133, 439 S.E.2d 350, 351 (1994); Burns v. Equitable Assocs., 220 Va. 1020,

22


1028, 265 S.E.2d 737, 742 (1980); Lee v. Lee, 142 Va. 244, 250, 128 S.E. 524, 526 (1925).8. Comcast of Chesterfield County, Inc., 277 Va. at 301, 672 S.E.2d at 873.9. Lancaster v. Lancaster, 86 Va. 201, 204, 9 S.E. 988, 989 (1889); Thrasher v. Lustig, 204 Va. 399, 401, 131 S.E.2d 286, 288 (1963). For example, in 2002, the legislature enacted a statute permitting interlocutory appeals by permission of the trial court in a pending civil action where no trial had commenced. Va. Code § 8.01-670.1.10. See Va. Code § 8.01-626; Va. Code § 8.01-670(B) and (C); Va. Code § 8.01-670.1.11. Leggett, 247 Va. at 133-4, 439 S.E.2d at 352; Wells v. Whitaker, 207 Va. 616, 628, 151 S.E.2d 422, 432 (1966). 12. Thompson v. Skate America, Inc., 261 Va. 121, 127, 540 S.E.2d 123, 126 (2001); Leggett, 247 Va. at 133-4, 439 S.E.2d at 351-2.13. See, e.g., Leggett, 247 Va. at 133, 439 S.E.2d at 351.14. Thompson, 261 Va. at 127, 540 S.E.2d at 128; Leggett, 247 Va. at 133-4, 439 S.E.2d at 352.15. Id.16. Id.17. Id.18. Dalloul v. Agbey, 255 Va. 511, 515, n.*, 499 S.E.2d 279, 282, n.* (1998) (when the severable interest rule applies, “the order may be appealed either at the time of its entry or when the trial court enters a final order disposing of the remainder of the case”).19. However, misapplication of the rule may have fatal consequences for an appeal. In Leggett, the plaintiff sued three parties in a three-count motion for judgment. 247 Va. at 132, 439 S.E.2d at 351. She appealed the dismissal of Count I, which involved two of the three defendants, and the remaining two counts of her suit remained active in the trial court against all but one defendant. Id. Later, the trial court dismissed the remaining counts, and the plaintiff did not appeal that ruling. Id. The Supreme Court held that her appeal of Count I was premature and was not an appealable order under the severable interest rule. Id. at 133-5, 439 S.E.2d at 351-3. Consequently, the plaintiff lost her appeal. 20. 147 Va. 720, 129 S.E. 489 (1925), aff’d on rehearing, 147 Va. 729, 133 S.E. 593 (1926).21. Id. at 725, 129 S.E. at 490.22. Id. at 723, 129 S.E. at 489.23. Id. at 723-4, 129 S.E. at 489.24. Id. at 724, 129 S.E. at 489.25. Id. 26. Id. at 725, 129 S.E. at 490.27. Id.28. Hinchey v. Ogden, 226 Va. 234, 307 S.E.2d 891 (1983).29. Id. at 236, 307 S.E.2d at 892.30. Id.31. Id. at 237, 307 S.E.2d at 892.32. Id.33. Id. at 237, n.1, 307 S.E.2d at 892, n.1.34. Thompson, 261 Va. at 125, 540 S.E.2d at 125.35. Id.

36. Id.37. Id.38. Id. at 126, 540 S.E.2d at 125.39. Id. at 126-7, 540 S.E.2d at 126.40. Id. at 127-8, 540 S.E.2d at 126.41. Id.42. Id.43. Rule 5:8A(a).44. Id.45. Id.46. Id.47. Rule 5:8A(b).48. Rule 5:8A(c).49. Dalloul, 255 Va. at 515, n.*, 499 S.E.2d at 282, n.*.50. Rule 5:8A(d).51. Id.52. However, the parties and the circuit court may agree that a stay is appropriate during the pendency of the appeal. U

23


The Virginia Supreme Court recently interpreted Virginia’s Dead Man’s Statute, Va. Code § 8.01-397, and, in the process, upheld a $1.75 million jury verdict. Jones v. Williams, Record No. 091745 (Nov. 4, 2010) was a medical malpractice case. An infant, through his next friend, filed a complaint against Mrs. Jones, who was personal representative of Dr. Paul Arbon Jones’s estate. Plaintiff alleged that Dr. Jones had breached the standard of medical care in perform-ing his delivery. During the delivery, there was a shoulder dysto-cia—a potentially fatal emergency condition in which the baby’s shoulders become obstructed within the birth canal, thereby depriving the baby of oxygen. An obstetric nurse who assisted with the delivery testified that she initially attempted to resolve this dystocia by pressing Williams’s legs against her chest. The nurse testified that when this maneuver failed, Dr. Jones man-ually attempted to rotate the child’s shoulders inside the birth canal. According to the nurse’s testimony, Dr. Jones ordered her to press her forearm forcefully on top of Williams’ uterus, a maneuver called “fundal pressure.” The child was delivered successfully. But he had severe and permanent damage to the nerves of his right arm, a condition known as Erb’s Palsy.

Dr. Jones died shortly after Johnny was delivered.

In due course, the medical malpractice case went to trial. At the close of plaintiff’s case in chief, defen-dant moved to strike the evidence. Jones argued that the testimony concerning the order to apply pressure to the mother’s uterus was inadmissible under Va. Code § 8.01-397, the Dead Man’s statute. Jones asserted that the nurse’s testimony could not corroborate Johnny’s claim because she was an “interested party” within the meaning of the statute.

The statute provides:

[i]n an action by or against a person who, from any cause, is incapable of testifying,

or by or against the committee, trustee, executor, administrator, heir or other rep-resentative of the person so incapable of testifying, no judgment or decree shall be rendered in favor of an adverse or inter-ested party founded on his uncorroborated testimony.

In previous decisions, the Virginia Supreme Court had held that testimony is subject to the corroboration requirement if it is offered by an adverse or interested party and if it presents an essential element that, if not corroborated, would be fatal to the adverse party’s case. Similarly, the Court has previously held that the testimony of the adverse party may not be corroberated by an interested party, or vice versa. In Jones, the Virginia Supreme Court held that the nurse was not an “interested party” within the meaning of the statute. Jones had argued that the nurse was an interested party because Johnny’s recovery against Dr. Jones relieved her of potential liability. The Court disagreed, citing Johnson v. Raviotta, 264 Va. 27, 32, 563 S.E.2d 727, 731 (2002). The Court held in Johnson that a witness whose testimony provides the basis for his or her own liability is not an “interested party” for purposes of the statute. At oral argument, counsel for Jones conceded that the nurse’s testimony may provide a basis for a claim of contribution. Jones also conceded that the fundamen-tal question for establishing his liability was whether the fundal pressure was applied before or after he had dislodged Johnnie’s shoulder. On that issue, the nurse testified that she did not know whether Dr. Jones has succeeded in manually rotating Johnny’s shoulders prior to ordering the application of fundal pressure. Accordingly, the Virginia Supreme Court found that the nurse’s testimony was neutral regarding the dis-positive issue in the case. Thus, the Supreme Court affirmed the decision below and held that the trial court had committed no error in denying defendant’s motions to strike or in refusing to instruct the jury on the statute. U

Evidence Corner:Virginia Supreme Court Decides New Case Concerning the Dead Man’s Statute

by Kevin W. Holt

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Summer 2010 Litigation News

24

Civil ProcedureCase: Conger v. Barrett, 091492 (11/4/2010)Author: MimsLower Ct.: Albemarle County (Higgins, Cheryl V.)Disposition: Reversed

Facts: Wrongful-death case against two doctors. Decedent died on March 7, 2001. Plaintiff filed action on May 21, 2002. Several years passed.

Defendants filed motion to dismiss under Code § 8.01-335(B), which authorizes court to dismiss action in which there has been no order or proceeding for three years. The trial court granted the motion and dis-missed the action on May 3, 2007.

Plaintiff filed a motion to reinstate the action on April 29, 2008. The trial court granted the motion to rein-state on May 1, 2007. But it then dismissed the rein-stated action. It reasoned that 440 days had elapsed between decedent’s death and the commencement of the wrongful-death action, and 362 more days had elapsed between the dismissal under § 8.01-335(B) and the motion to reinstate. Thus, it held, more than two years had elapsed since decedent’s death, making the action time-barred under § 8.01-244(B).

Ruling: On appeal, the SCOV reversed. It acknowl-edged that § 8.01-244(B)’s tolling provision states that if an action is dismissed then “another action” may be commenced “within the remaining period” of the original two years. But it held that an action that is reinstated within the one-year period specified by § 8.01-335(B) is not “another action.” It is, rather, a continuation of the prior case and is a statutory excep-tion to the rule that a Circuit Court loses jurisdiction 21 days after entry of a final order. So the original commencement date controls for statute-of-limitations purposes.

Key Holding(s):

• A wrongful-death action that is dismissed for

inactivity pursuant to § 8.01-335(B) but rein-stated within one year is the “same action” for purposes of the wrongful-death limitations period, § 8.01-244(B).

• In such a case, the original commencement date controls for statute-of-limitations pur-poses. The time after dismissal but before rein-statement does not count towards the limita-tions period.

E E E

Civil ProcedureCase: Heinrich Schepers Gmbh & Co., KG v.

Whitaker, 091840 (11/4/2010)Author: HassellLower Ct.: City of Portsmouth (Hawks, James C.)Disposition: Affirmed

Facts: Case had complicated procedural history and was on appeal to the SCOV for the second time.

Plaintiff longshoreman brought a state-law personal injury action against the owner of the boat on which he was working. The initial ad damnum was $74,000, just below diversity-jurisdiction threshhold.

Defendant removed to federal court, but the federal court remanded because removal was untimely.

After remand from federal court, plaintiff sought to amend ad damnum above $74,000, but trial court refused. Given the comparatively low ad damnum, the plaintiff consented to a bench trial and the defen-dant did not contest liability. The trial court found for plaintiff and entered judgment for $74,000. The plaintiff appealed, asserting that the trial court erred in refusing to allow him to amend his ad damnum. During first appeal, the SCOV agreed, and remanded the case for a new trial on damages.

On remand from the SCOV, the plaintiff requested a jury trial on damages. The defendant argued, unsuc-cessfully, that the plaintiff had waived its right to a

Recent Civil Cases from the Supreme Court of Virginia

NOVEMBER SESSiON 2010

Case summaries are prepared by Joseph Rainsbury, Editor of Litigation News. Mr. Rainsbury is a partner in the Roanoke office of LeClairRyan.

25

Litigation News Summer 2010

25

jury by consenting to the earlier bench trial. The trial court, however, found that the waiver of a jury trial was contingent upon the reduction of the ad damnum to $74,000.

The matter was tried to a jury, which returned a $5 million verdict. The defendant appealed, arguing that the plaintiff had waived his right to a jury trial by con-senting to the earlier bench trial.

Ruling: The SCOV affirmed.

To begin, it held that the defendant’s assignment of error “lacks legal efficacy” because it incorrectly recit-ed the trial court’s rulings. The assignment stated that the the trial court had abused its discretion in allow-ing a jury trial because the plaintiff had earlier waived that right in exchange for the defendant’s agreement to forego a defense on the merits. But the SCOV held that this was incorrect, as (1) the circuit court did not hold that a right to a jury trial could be reinstated only upon an exercise of its discretion, and (2) the circuit court did not hold that plaintiff had agreed to waive a jury trial in exchange for foregoing a defense on the merits.

In addition, the SCOV found that the evidence sup-ported the trial court’s determination that the plain-tiff’s initial waiver of a jury trial was a limited waiver, predicated upon the trial court’s refusal to allow plain-tiff to increase the ad damnum above $74,000. But the ruling that capped the ad damnum at $74,000 was reversed on appeal. Accordingly, the condition no longer was satisfied and the plaintiff was entitled to request a jury trial upon remand.

Key Holding(s):

• A party is not precluded from requesting a jury by its earlier conditional waiver of a jury trial, where that earlier conditional waiver was expressly predicated on a trial-court ruling that subsequently was reversed.

E E E

Civil ProcedureCase: Jones v. Williams, 091745 (11/4/2010)Author: MimsLower Ct.: City of Norfolk (Fulton, Junius, III)Disposition: Affirmed

Facts: Medical malpractice case arising out of inju-ries suffered during childbirth. The child’s shoulder became stuck in the birth canal. As a result, the child suffered from “Erb’s Palsy,” permanent damage to the nerves in his right arm.

At trial, a nurse testified that the obstetrician had instructed her to apply fundal pressure. She did not know whether this was before or after he had dis-lodged the child’s shoulder from its stuck position. Plaintiff contended that the obstetrician’s performance of the delivery was negligent.

The obstetrician died before trial. The plaintiff sued the obstetrian’s personal representative, who asserted that the dead man’s statute, Code § 8.01-397, applied and prevented judgment based on the nurse’s testi-mony. The trial court denied defendants’ motions to strike and refused to instruct the jury on the dead man’s statute. The jury returned a verdict for plaintiff.

Ruling: The SCOV affirmed. It noted that that Code § 8.01-397 bars entry against of judgment against the personal representative of a deceased party based on uncorroborated testimony of an “interested party.” But it held that the nurse was not an “interested party” for purposes of Code § 8.01-397.

Among other things, even if plaintiff prevailed, the nurse still was potentially liable to the defendant in a contribution action. Citing Johnson v. Raviotta, 264 Va. 27, 32, 563 S.E.2d 727, 731 (2002), the SCOV held that “a witness whose testimony provides the basis for his or her own liability is not an ‘interested party’ for purposes of Code § 8.01-397.”

Key Holding(s):

• A witness is not an “interested party” for pur-poses of Code § 8.01-397 if the witness’s own testimony potentially provides the basis for his or her own liability.

E E E

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Summer 2010 Litigation News

Officers:Robert Leonard Garnier, Esq .,ChairGarnier & Garnier, P .C .109 Rowell CourtFalls Church, VA 22046

Scott Carlton Ford, Esq . Vice ChairMcCandlish Holton, PCP .O . Box 796Richmond, VA 23218

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Documents

Volume XV Number III Fall 2010 Rule 3:20 - Summary ... · PDF filemotion for summary judgment or to strike evidence-- No motion for ... For some reason, as I recently noticed this