Landrum v. Chippenham -
In this medical malpractice case the trial judge excluded the testimony of the plaintiff’s witnesses because the plaintiff failed to follow the court’s pretrial rulings and the Virginia Supreme Court affirmed.
The key plaintiff’s lawyer here was from Missouri, admitted pro hac vice. Suit was filed and the trial court entered a scheduling order. This order included a date for expert witnesses to be identified and also by that time the information under Rule 4:1(b)(A) (that is, opinions of experts and the basis for the opinions) needed to be supplied. Although asked two months before the deadline to identify expert witnesses the counsel waited until the day set by the trial court to provide any information. This provided only the names and addresses but not the substance of the opinions. The defense moved to exclude any testimony of the experts. Upon learning of the motion to exclude the Missouri counsel supplemented his answers by sending reports from the two designated experts, but this information did not comply with the above noted rule. At the hearing on the motion to exclude the plaintiff’s lawyer admitted that he had failed to comply with the rule. He believed that the defense had enough information but agreed to formally supplement. The trial court gave him one week and stated that if he failed the case would likely be dismissed. The plaintiff’s lawyer from Missouri did supplement in a timely fashion except that he alone signed the pleading. As the plaintiff’s lawyer was an out of state lawyer a local lawyer was, by rule, required to sign also. At a hearing on defendant’s motion, again to exclude, the out of state lawyer admitted the failure to have local counsel sign that and other pleadings, but noted that he had corrected the problem by having local counsel sign later. The trial judge refused to accept this, dismissed the late filing, and dismissed the case since the plaintiff had no experts available to testify.
The plaintiffs appealed the dismissal. The Virginia Supreme Court cited the rule, Rule 1A:4(2) which requires that all pleadings be signed by local counsel and if not such pleading shall be “invalid.” An invalid order is of no effect and cannot be amended. Therefore the plaintiff had failed to comply with the trial court’s orders and excluding the experts was not an abuse of discretion. In its ruling the Virginia Supreme Court noted that the plaintiff’s lawyer had been warned several times. Furthermore they noted that the Missouri lawyer had failed to follow the pro hac vice rules as well as the discovery rules.
Affirmed
Anderson v. Commonwealth Virginia - Supreme Court - November 4, 2011
This is the second of the two recent Virginia Supreme Court cases on the admissibility of prior consistent statements. The prior one, Ruhlin v. Samaan (also November 4, 2011) involved the recent motive exception to the rule that prior consistent statements are normally not admissible. That case noted that once a person testifies and the opponents attack the credibility of the witness by stating that there is a motive to testify falsely that the proponent of the witness may rebut by introducing prior consistent statements that occurred before the motive to falsify existed. This case describes the other exception. Once a witness has testified and been challenged by a prior inconsistent statement then prior consistent statements may be admitted in rebuttal. In this criminal case the witness victim testified at trial that she felt the cold hard steel against her head and heard a click like the cocking of a gun but never saw a gun. In a prior statement to a deputy she said that she did see a gun. The prosecution was allowed to admit statements to other law enforcement officers where she said that she never actually saw a gun but felt it and heard it only. Note that the admissible consistent statements are not hearsay because they are not admitted for the proof of their content but merely in support of the statement made at trial. The hearsay limitations do not apply.
Note also that the only thing being admitted under this exception is the prior consistent statement. This does not give the proponent the opportunity to repeat the entire testimony under the guise of prior consistent statement.
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