On April 7, 2014, Mr. Waterman lodged with the Virginia Supreme Court of Virginia the Brief Amicus Curiae he authored on behalf of the Virginia Trial Lawyers Association (“VTLA”) in Support of Appellant in the wrongful death case of Temple v. Mary Washington Hospital, Inc., No. 131754. The first issue presented was whether the appeal is proper procedurally.
By Agreed Order Incorporating Discovery entered September 24, 2012, the parties stipulated in Temple: “All discovery conducted and taken in the previous action that the Plaintiff brought against Defendants, bearing Case No. CL10-47, is hereby incorporated into the instant action.”. Notably, that was predicated on “the interest of judicial economy”. (emphasis added).
If the discovery hearings and orders of the Court were not being incorporated thereby, then there would be no “judicial economy,” as medical malpractice discovery would have to be relitigated in Temple. Also, the parties did not need an Agreed Order simply to use discovery from the nonsuited action in the instant action. See, e.g., Burns v. Gagnon, 283 Va. 657, 681-82 (2012)(Plaintiff entitled to use deposition from nonsuited action in refiled action).
Additionally, relitigating discovery issues would have been a vain and useless act since the same Judge presided over both actions. Virginia Passenger & Power Co. v. Fisher, 104 Va. 121, 129 (1905)(“sufficient reason, we think, for not applying…for action to redress the wrongs complained of”). In Temple, Judge was unchanged re his discovery rulings at Final Pre-Trial Conference (“FPTC”); and in denying Motion for New Trial and to Reconsider Evidence.
Further, defense treated their Agreed Order as incorporating Judge rulings from nonsuited action in instant action. At FPTC in Temple, MWH relied on nonsuited action ruling that polices is “not discoverable” to exclude Plaintiff’s pathology expert opinion re its lack of a Troponin range parameter:
This Court may or may not remember, many moons ago, being here on this exact same issue. The Plaintiff at the time sought the policies of the laboratory…..
And we argued the same arguments that we always do when it comes to policies and procedures, and the Court ruled that those policies were not discoverable. And I don’t believe that it’s appropriate to rehash that against today.
***It really is sort of a circular argument that gets us back to the Court’s ruling six or eight months, nine, maybe a year ago.
On appeal, Defendants cannot assume a different position from that in Circuit Court.
In dozens of cases, the Virginia Supreme Court has pronounced that parties “shall not be allowed to approbate and reprobate” in a “series of suits”:
In Virginia we have…approved the general rule that a party is forbidden to assume successive positions in the course of a suit, or series of suits, in reference to the same facts or set of facts, which are inconsistent with each other, or mutually contradictory. A litigant is estopped from taking a position which is inconsistent with one previously assumed, either in the course of litigation for the same cause of action, or in dealings in pais.
Leech v. Beasley, 203 Va. 955, 961-62 (1962). Leech is dispositive in Temple.
Finally, Judge too treated his nonsuited action rulings as incorporated in instant action. Excluding Plaintiff’s pathology expert opinion in Temple, Judge reiterated he already had “found [policies] did not set forth the standard of care”; “been over this before in other motions”; “made that [policies] ruling”; and “dealt with that [policies] issue.”