Landrum v. Chippenham and Johnston-Willis Hospitals, Inc. et al.
November 4, 2011
Opinion by Justice Donald W. Lemons for the Majority
Concurrence by Justice LeRoy F. Millette, Jr. joined by Chief Justice Cynthia D. Kinser
On November 4, 2011, the Supreme Court of Virginia issued a published opinion in Landrum v. Chippenham and Johnston-Willis Hospitals, Inc. et al. (Rec. No. 101102) affirming dismissal of plaintiff’s medical malpractice action due to repeated discovery violations by plaintiff’s out-of-state counsel.
In February 2010, Robyn Ayres and Robert Donnelly obtained dismissal of the defendant physician in Landrum in the Richmond City Circuit Court. Judge Walter Stout struck plaintiff’s expert designation because out-of-state counsel failed to provide the substance of the facts and opinions about which plaintiff’s experts would testify and then violated a subsequent order by filing a supplemental expert designation without signature of local counsel as required by Rule 1A:4. In the absence of any argument that Landrum could establish a prima facie case of medical malpractice without experts, the trial court granted summary judgment to the physician and co-defendant Chippenham and Johnston-Willis Hospitals, Inc., represented by other counsel.
Elizabeth Griffin Robertson and S. Virginia Bondurant represented the defendant physician on appeal, asserting that the trial court was well within its discretion in striking plaintiff’s expert designation due to violation of two discovery orders, including a generous opportunity for one last chance to correct prior violations. Further, in providing this accommodation, the trial court warned that if the filing was procedurally deficient the case would be dismissed. Plaintiff’s primary argument on appeal was that because defendants were not prejudiced by the repeated violations of Landrum’s out-of state counsel, dismissal of the case was a draconian use of the Rules. Of note, Landrum was granted an appeal on five assignments of error; however, counsel substantively modified four of those assignments of error in the opening brief, resulting in the Court granting defendants’ motion to strike the four assignments of error that had been changed.
In a 3-2 split decision written by Justice Donald W. Lemons for the majority, the Court affirmed the trial court’s ruling striking plaintiff’s expert designation and dismissing Landrum’s case, notwithstanding the claimed lack of prejudice to defendants by counsel’s numerous procedural missteps. The Court endorsed its prior decisions holding that filing of a pleading or paper without signature of local counsel renders such document a legal nullity, regardless of consideration of prejudice. In addition, the Court stated unequivocally that neither Rule 4:12(b)(2), permitting a trial court to impose sanctions for violation of its discovery orders, nor the Court’s cases interpreting Rule 4:12(b)(2) required showing of prejudice.
The most significant aspect of the Landrum opinion is a new abuse-of-discretion standard. The majority embraced a three-factor test adopted nearly two decades ago by the Fourth Circuit:
(1) Failing to take into account a significant relevant factor
(2) Giving significant weight to an irrelevancy; or
(3) Weighing the proper factors but committing a clear error of judgment in doing so.
Justice Millette, joined by Chief Justice Kinser, authored a concurrence urging a fourth abuse-of-discretion factor – an error of law. As only five justices participated in the decision, with the position of the two newest justices unknown, the abuse-of-discretion standard likely will be clarified in future opinions. The Court was united, however, in holding that dismissal of an action is permissible for egregious disregard of the Rules and violations of a trial court’s orders.
For additional inforamtion, please contact Elizabeth Griffin Robertson