Virginia: Medical Malpractice – a Lawyer’s Experts (February 21, 2012)

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Landrum v. Chippenham and Johnston-Willis Hospitals., Inc., 282 Va. 346 (2011) is a medical malpractice case. Therein the Virginia Supreme Court held that the Circuit Court for the City of Richmond, Virginia did not abuse its discretion in excluding expert witnesses for not obeying pretrial orders. Id. at 349.

“Pursuant to Rule 4:12(b)(2), a trial court may sanction a party for failing ‘to obey an order or provide or permit discovery’.” Id. at 352. The Court in the Landrum medical malpractice appeal rejected that the judge disregarded Va. Sup. Ct. Rule 4:1(g) in treating the unsigned expert designation as a nullity, because Va. Sup. Ct. Rule 1(A):4(2) was violated by out-of-state pro hac vice counsel, but not local Virginia-licensed counsel, signing the pleading. Id. at 353-355.

Significantly, Landrum held that Rule 4:12(b)(2) does not require a judge to “determine whether a party’s failure to obey an order has caused another party to suffer prejudice before it may impose a sanction.” Id. at 355. The Court in the Landrum medical malpractice decision upheld the judge’s discretion to exclude experts where counsel not only violated the scheduling order by 2 months delay, but also failed to heed the judge’s warning to cure within 1 week or face sanctions. Id. at 355-356.

Finally, Landrum also is noteworthy for finding that the medical malpractice plaintiff had preserved his Rule 4:1(g) argument for appeal. The Virginia Supreme Court observed that even though plaintiff did not cite Rule 4:1(g) to the judge, by the argument alone the judge was given “sufficient ‘notice of due substance of the objection’ to comply with the requirements of Rule 5:25”. Id. at 353 n.7.