02 Apr Virginia: Medical Malpractice – a Lawyer’s Disclosures
In 2007, the Virginia Supreme Court pronounced that application of its Rule 4:1(b)(4)(A)(i) “begins with determining whether the opinion at issue was disclosed in any form.” John Crane, Inc. v. Jones, 274 Va. 581, 591 (2007). “Furthermore, a party is not relieved from its disclosure obligation under the Rule simply because the other party has some familiarity with the expert witness or the opportunity to depose the expert. Such a rule would impermissibly alter a party’s burden to disclose and impose an affirmative burden on the non-disclosing party to ascertain the substance of the experts testimony. We reject this reading of Rule 4:1(b)(4)(A)(i).” Id. at 592 (emphasis added). “Rule 4:1(b)(4)(A)(i) requires that the substance of opinions to be rendered be disclosed. Here, while Crane did disclose the topic of Buccigross’ testimony, Crane did not disclose the substance of Buccigross’ opinions in the disclosure or through Buccigross’ report. Crane thus failed to comply with the Rule.” Id. at 593 (emphasis added). John Crane upheld two defense experts’ opinions being excluded by Newport News Circuit Court, where their substance was not disclosed and their reports were not provided.