Virginia: Wrongful Death – a Lawyer’s Leave

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On December 20, 2012, the medical malpractice lawsuit of Myron Arshan, Executor of the Estate of Sharon Lorrie Britt, Deceased v. Stephen Plotnick, M.D., et al., No. CL11-1316 in Circuit Court for the City of Williamsburg and James City County, Virginia, came on for hearing on various Demurrers and Motions. Most issues were raised by the Plotnick Defendants, represented by Tracy T. Hague, Esq. of 349-lawyer LeClair Ryan based in Richmond.

First, the Court in the Arshan wrongful death suit granted Plaintiff’s Motion for Leave to Extend and denied Plotnick Defendants’ request for attorney’s fees and costs in opposition. Ms. Hague in her affirmative defenses of contributory negligence and assumption of risk requested a Reply under Va. Sup. Ct. Rule 3:11, which went unnoticed until 35 days after the deadline without Leave.

The Court in Arshan found no prejudice or bad faith and instead excusable neglect and prompt follow-up. Nonetheless, such Rule 3:11 pleading in medical malpractice and other cases remains a potentially serious trap for the unwary.

Va. Sup. Ct. Rule 3:11 provides plaintiffs “shall within twenty-one days” file a reply. It parallels Rule 3:8, which provides defendants “shall within twenty-one days” file a responsive pleading.

The Virginia Supreme Court mandates that the 21-day rule of Rule 3:5 (now Rule 3:8) must “be read in connection with Rule of Court 3:13,” Herndon v. Willis, 198 Va. 824, 826 (1957); and it must be the same with Rule 3:11. Rule 1:9 (formerly Rule 3:13) provides: “The time allowed for filing pleadings may be extended by the court in its discretion, and such extension may be granted though the time fixed already has expired….” Cf, Lennon v. Virginia Board of Dentistry, 2007 Va. App. LEXIS 475, *3-4 (2007).

The Virginia Supreme Court holds that the purpose of the 21-day rule for filing a responsive pleading by defendants is:

“[P]rescribing a time within which a defendant may and shall file his answer or other defense, is not to cut off the orderly presentation of defenses, or to set a trap for the unwary defendant by which a plaintiff may be delaying the prosecution of his cause cut off the defendant from a full defense or escape the necessity of providing his case. Its purpose is to prevent unconscionable delay in an orderly procedure … being caused by dilatory tactics on the part of the defendant or by the neglect of the defendant, where the plaintiff has shown due diligence on his part in the prosecution of the cause.”

Worsham v. Nadon, 156 Va. 438, 446 (1931). The same salutary considerations underpin the 21-day rule for filing a reply by plaintiffs.

Hence, routinely numerous circuit courts have granted, and appellate courts have upheld, extensions of the 21-day rules. E.g., Lennon, supra at *5; Emrich v. Emrich, 9 Va. App. 288, 291-295 (1989)(“trial court abused its discretion in denying the request to file [late] answer”); Arshan v. Plotnick, No. CL11-1316, Order (Williamsburg/James City County Dec. 20, 2012)(Rule 3:11); Tarpley v. City of Martinsville, 82 Va. Cir. 222, 224 (Martinsville Feb. 9, 2011)(“lack of prejudice to the opposing party and the existence of a substantial defense”); Brown’s Buick, Inc. v. Granite State Ins. Co., 78 Va. Cir. 22, 23-24 (Alexandria Oct. 29, 2008); Sanders v. Shuttle America, 75 Va. Cir. 378, 379-381 (Loudoun Aug. 15, 2008)(motion for leave granted, despite being filed after motion for default); Nauman v. Samuels, 73 Va. Cir. 411, 412-416 (Charlottesville Jul. 10, 2007)(motion for default denied where defense “counsel’s inadvertence did not cause an ‘unconscionable delay’,” despite no responsive pleading being filed for more than 5 months); Fletcher v. Inova Health Care Servs., 71 Va. Cir. 331, 331-332 (Fairfax Aug. 2, 2006); Brown v. Allen, 64 Va. Cir. 349, 351-352 (Fairfax Apr. 8, 2004)(motion for default denied despite defendant filing responsive pleading a month late and seeking leave for the same more than 2 months later); Kohl v. Amerigas Propane, Inc., 64 Va. Cir. 49, 49-52 (Madison Feb. 4, 2004)(“ends of justice” required extension, despite no “excusable neglect”); Vasquez v. Commonwealth, 63 Va. Cir. 106, 107 (Fairfax Sep. 8, 2003); Jay-Ton Constr. Co., Inc. v. Bowen Constr. Servs., Inc., 62 Va. Cir. 414, 424-436 (Portsmouth Aug. 13, 2003)(Rule 3:12, currently Rule 3:11); Jay-Ton Constr. Co., Inc. v. Bowen Constr. Servs., Inc., 62 Va. Cir. 530, 531 (Hampton Nov. 22, 2002)(Rule 3:12, currently Rule 3:11); Northland Ins. Co. v. Reichold, Inc., 58 Va. Cir. 271, 273 (Portsmouth Feb. 27, 2002); Mack v. Starwood Hotels and Resorts Worldwide, Inc., 57 Va. Cir. 390, 392-395 (Norfolk Feb 26, 2002); Riddle v. CARS, 45 Va. Cir. 236, 238-239 (Rockingham Mar. 26, 1998)(default judgment set aside and late responsive pleading permitted for “ends of justice”); Grant v. Doe, 31 Va. Cir. 254, 255 (Louisa Jul. 1, 1993)(default judgment set aside and late responsive pleading permitted); Richardson v. Wheeled Coach Corp., 20 Va. Cir. 458, 459 (Loudoun Aug. 21, 1990); Parker v. 900 East Marshall Street Assocs., 17 Va. Cir. 426, 427-428 (Richmond Dec. 6, 1989); Consolidated Healthcare, Inc. v. Overseas Partners, Inc., 14 Va. Cir. 241, 241-242 (Henrico Dec. 27, 1988); Chittum v. Chittum, 4 Va. Cir. 280, 282-283 (Frederick Apr. 4, 1985)(“interest of justice”); Greene v. Smith, 4 Va. Cir. 488, 489-490 (Sep. 25, 1979)(“ends of justice” permitted filing responsive pleading almost 1 year late)(Stephenson, J.); and Standard Farms, Inc. v. Alexander, 4 Va. Cir. 463, 463-464 (Augusta Jan. 31, 1978)( “permitting late filings would ends of justice”)(Stephenson, J.). Judge Stephenson’s opinions granting late pleadings for “justice” in Standard Farms in 1978 and in Greene in 1979 undercut Plotnick Defendants’ attempted reliance on his earlier adverse decision in 1976 in Nida v. Hooker, 4 Va. Cir. 430 (Allegheny Nov. 29, 1976). Indeed, a circuit court’s exercise of discretion may be improper if it limits late responsive pleading. E.g., Westfall v. Westfall, 196 Va. 97, 100-105 (1954)(error for circuit court to impose condition on party filing responsive pleading 8 months late where it had not “delayed the progress of the case”).

Nonetheless, Plotnick Defendants in the Arshan wrongful death suit cite the Court of Appeals’ 1989 opinion in Emrich (which granted leave for late pleading) and several random circuit court decisions. Plotnick Defendants ignore the Court of Appeals’ 2007 opinion in Lennon, which explains that Emrich’s list of “several ‘circumstances which support the exercise of discretion to extend the time of filing’,” however, “clearly … is not exhaustive or necessarily determinative; the application of the rule ‘rests within the sound judicial discretion of the trial court, it being impossible to lay down a rule which will be binding in all cases’.” Id. (quoting Eagle Lodge v. Hofmeyer, 193 Va. 864, 870, 71 S.E.2d 195, 198 (1952)).” 2007 Va. App. LEXIS 475, *4 (emphasis added).

The decision in Executive Homes Realty Corp. v. Mathews, 38 Va. Cir. 486 (Williamsburg/James City Mar. 27, 1996), cited by Plotnick Defendants, is readily distinguishable and inapposite on the facts. Unlike Plaintiff in the Arshan medical malpractice case, the late party in Executive Homes never filed a late reply – or even sought leave to do so – and instead simply let their delinquency unto default be decided against them on summary judgment. Id. at 490-491.

Likewise, Spradling v. W.O. Grubb Steel Erection, Inc., 61 Va. Cir. 607, 608 (Newport News Mar. 11, 2002), also cited by Plotnick Defendants in the Arshan wrongful death lawsuit, similarly is distinguishable and inapposite for the delinquent party never filing a late reply or even seeking leave to do so. More fundamentally, the Court in Spradling explicitly stated that the point of dicta cited by Plotnick Defendants at bar was “moot”. Id.

Bates v. Merritt, 83 Va. Cir. 134, 135-136 (Loudoun Jun. 29, 2011), additionally cited by Plotnick Defendants, is distinguishable and inapposite on the facts too. Unlike Plaintiff in the Arshan medical malpractice case, plaintiff in Bates did not request an extension, plus violated an existing Court Order that set a deadline for filing an Amended Complaint. Id.

Notably, the defense Memorandum in Opposition to Plaintiff’s Motion for Leave to Extend filed in the Arshan wrongful death case on December 17, 2012, may be used against LeClair Ryan in the future. If one of its Defendant clients fails to file a timely pleading in response to a Complaint, Counterclaim and/or Cross-claim, then Ms. Hague’s Memorandum in Opposition would be good authority for entry of a default judgment instead of an extension of time.

Finally, the Arshan Court also overruled Plotnick Defendants’ Demurrer re punitive damages, finding Plaintiff sufficiently pleaded his wrongful death claim that Plotnick Defendants’ conduct was “so reckless as to evince a conscious disregard for the safety of others”. See, Va. Code Ann. §8.01-52; Virginia Model Jury Instruction No. 9.105 (Punitive Damages: Death by Wrongful Act); and Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128, 144 (1992). The Court also granted Plotnick Defendants’ Demurrer to Plaintiff’s “negligent retention” claim and Amended Complaint Paragraph 24(N); granted in part (in light of its ruling on “negligent retention”) and denied in part their Motion to Strike; and found moot Defendants’ Motion to Sever the “negligent retention” claim.