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MOTTESHEARD v. CASTERN, ET AL. (59739)


MOTTESHEARD v. CASTERN,
ET AL.


June 5, 1998

Record No. 971373

CHARLES BURKETT MOTTESHEARD

v.

LOUIS JOSEPH CASTERN, M.D., ET AL.

OPINION BY JUSTICE A. CHRISTIAN COMPTON

FROM THE CIRCUIT COURT OF THE CITY OF SALEM

Willis A. Woods, Judge Designate

Present: All the Justices


In this action alleging physician negligence, the sole
question is whether the trial court erred in refusing to permit a
party to offer evidence of his general reputation for truth and
veracity.

In July 1995, appellant Charles Burkett Mottesheard filed this
action for damages against appellees Louis Joseph Castern, M.D.,
Robert O. McGuffin, M.D., and Sears Curtiss Mull, M.D. In a
November 1996 amended motion for judgment, plaintiff alleged
defendants were negligent during a period in September 1993 when
they failed promptly to diagnose and treat the condition of
septic arthritis of plaintiff’s left hip. According to the
record, septic arthritis of the hip is an infectious process in
which bacteria attacks the cartilage in the joint. An
"extraordinarily difficult diagnosis," the condition
causes the hip joint to sustain "irreversible and
significant damage" unless treatment is rendered within five
to seven days of the onset of symptoms.

Responding to plaintiff’s allegations, defendants admitted
they were involved in plaintiff’s care but denied they committed
any negligence that was a proximate cause of plaintiff’s alleged
injuries or damages.

Following a lengthy trial, a jury found in favor of the
defendants. Overruling plaintiff’s motion to set the verdict
aside and to award a new trial, the court entered judgment on the
verdict. The plaintiff appeals.

A summary of the evidence will set the stage for discussion of
the issue of law presented. On September 17, 1993, the plaintiff,
36 years of age, was employed by the State Department of
Corrections in Roanoke as a probation and parole officer. After
escorting an offender through an office security door, he turned
and felt a "pop . . . around the left groin area." He
"just walked it off" and continued working. His hip did
not "bother" him during the next three days.

During the early morning hours of September 21, plaintiff, a
diabetic, was unable to sleep because he "didn’t feel what
you’d call exactly great." His "temperature" was
above normal, and he felt like he "had the flu" but
reported to work. While working "seeing offenders" in
his office, the plaintiff felt progressively worse. He left the
office near midday and called his Blacksburg physician "and
told him my leg was hurting." The physician "called in
a prescription" for pain relief.

The plaintiff’s condition continued to worsen and he was taken
by a friend to the Lewis-Gale Clinic in Salem where he was seen
during the morning of September 22 by defendant Castern, who
practices occupational medicine. Castern took a medical history
from plaintiff. The physician testified that an accurate history
is "absolutely essential" and "of ultimate
importance" to a proper diagnosis.

In addition, Castern examined plaintiff, who complained of
pain of the left thigh. He was "concerned" about
plaintiff’s condition because he "had a lot of confusing
symptoms and physical findings." Upon consideration of the
medical history and the examination, Castern formed a
"diagnostic impression" that plaintiff’s left thigh
pain was due to muscle spasm or muscle strain. Castern prescribed
medications for plaintiff and released him. The plaintiff stayed
at home for the next two days and "went through living
hell" due to pain in his leg.

On September 24, plaintiff was brought back to the Clinic
where he was seen again by Castern. The physician found plaintiff
"was in more pain and . . . it was further down his
leg." Following testing of plaintiff’s blood, Castern became
concerned that his problems were caused by either "an
infectious or an inflammatory process." The plaintiff
"still had this left thigh pain" and the physician
"tender[ed]" a diagnosis of acute myositis, an
inflammatory process that was related to the plaintiff’s
"injury" on September 17 when he felt the
"pop." The physician prescribed additional medication
and instructed him to see his Blacksburg physician.

Pain in plaintiff’s hip and leg "continued to build"
to such a degree he "would go ballistic" whenever he
had to move. Near midnight on September 24, the plaintiff was
carried to the emergency room at Lewis-Gale Hospital, a separate
entity from the Clinic although in the same facility. Plaintiff
was seen by defendant McGuffin, who practices emergency medicine.
Following examination, the physician concluded: "Leg pain of
uncertain etiology possibly related to muscle spasm."

Plaintiff’s condition did not improve and on September 25, a
Saturday, he presented to Dr. William T. Hendricks, Jr., a family
medicine practitioner in Blacksburg, who took a history and
examined plaintiff. The physician "thought something was
seriously wrong with him." Hendricks "did not suspect
an infectious process going on." He made a
"differential diagnosis" of aseptic (absence of
infection) necrosis of the femoral head, a herniated disk, a torn
ligament, or a femoral hernia. He recommended to plaintiff that
he report to a hospital emergency room "immediately."

Plaintiff understood that, because the condition may be work
related, state regulations required him to return to
"Lewis-Gale." His parents attempted to transport him by
vehicle to Salem, but the trip had to be interrupted due to
plaintiff’s pain. At that point, he "didn’t feel like living
a whole lot longer." Eventually, he was carried to the
Clinic.

Defendant Castern saw plaintiff in the Clinic on
September 27 and, after examination, referred him to
defendant Mull, an orthopedic surgeon, who admitted plaintiff to
the Hospital. Due to his condition, plaintiff did not recall
seeing Castern on the 27th and remembered little of
his "encounter" with Mull. While hospitalized, the
plaintiff "went into some sort of septic shock." Later,
surgery was performed on plaintiff’s left hip, and the diagnosis
of septic arthritis was made.

During the trial, plaintiff’s recollection of the symptoms he
had related when his medical history was being taken and the
nature of his examinations was different, in many instances, from
what the medical records and the physicians’ recollections
established. In rebuttal, the plaintiff proffered testimony of
his office supervisor who stated that plaintiff’s reputation for
truth and veracity in the community in which he lives and works
is "outstanding." The trial court sustained defendants’
objection to this testimony and disallowed it, ruling "that
this gentleman’s character and reputation has not been put in
dispute, is not in evidence, and consequently . . . is not
admissible."

On appeal, the plaintiff argues that his "disability
resulted from a failure of those attending to timely diagnose and
treat an infected hip. At trial, the key questions were whether
the diagnosis should have been made; and, should the condition
have been diagnosed in time to save the Plaintiff’s hip. The
answers to these key questions depended in large measure on what
the Plaintiff had told his treating physicians; specifically, did
he accurately identify the area of his pain?"

Continuing, plaintiff contends that his "character was
repeatedly put in issue by contrary evidence as to the material
fact of his history. For example, Defendant Castern testified
directly to the jury, ‘I know [the Plaintiff] described hip pain
to us here in his testimony, but when he was with me I did not
get a complaint of hip pain.’ Defendant McGuffin; I ‘know’ I did
a straight leg raising test. The Plaintiff testified emphatically
to the contrary. Defendant Mull told the jury, ‘I am surprised at
[the Plaintiff's] testimony; he told me he was having pain in his
back.’ The Plaintiff testified emphatically and unequivocally to
the contrary. Doctor Castern’s expert testified that ‘there is an
obligation on the patient to be truthful’ in connection with the
giving of a history. The Plaintiff, of course, testified
emphatically that he was truthful." (Alterations in
original.)

Summarizing, plaintiff argues his "character was also
repeatedly put in issue by extensive cross-examination about
prior inconsistent statements. Simply put, as a matter of law,
‘imputation on [the Plaintiff's] veracity results from the fact
of his having contradicted himself,’ as time-honored evidence
treatises consistently note. Among other things, the Plaintiff
testified that his progressively painful symptoms started on the
21st of September. The defense sought to prove, by
prior inconsistent statements, that his symptoms commenced on the
17th." (Alteration in original.)

Finally, plaintiff contends he "was denied his one
opportunity to rehabilitate his credit with the jury: that is, by
proof that his reputation and character for truthfulness was
‘outstanding.’ This was prejudicial error." We disagree.

Generally, in civil actions evidence of the reputation of the
parties for truth and veracity is not admissible. S. H. Kress
& Co.
v. Roberts, 143 Va. 71, 77, 129 S.E. 244,
246 (1925). As an exception to the general rule, Virginia permits
evidence of the general reputation of a party or a witness for
truthfulness whenever such person’s character for truth is
attacked either directly or by cross-examination, or by proof of
inconsistent statements regarding material facts, or by
disproving through other witnesses material facts stated by such
person during testimony. Luck v. Miller, 240 Va.
445, 447, 397 S.E.2d 869, 871 (1990) (quoting George v. Pilcher,
69 Va. (28 Gratt.) 299, 315 (1877)).

The key words in the exception are "whenever such
person’s character for truth is attacked." In the present
case, contrary to plaintiff’s contention, his character for
truthfulness never was attacked. This was made abundantly clear
throughout the trial. While the plaintiff’s recollection of past
events was challenged, there was no attempt to portray him as a
liar.

For example, one of defendants’ expert witnesses, having
reviewed the recorded medical history, stated there was "no
reason to believe" that plaintiff had been "other than
completely candid with the physicians who examined him."
That witness also testified, "I’m not accusing him of not
telling the truth." Also, defendant Mull testified, "I
believe that he was giving me accurate information . . . I
absolutely believed it." Additionally, defendant Castern
stated he never believed the plaintiff "was malingering or
falsely exaggerating his pain or anything of that nature just to
make a workers’ compensation claim." Indeed, during
plaintiff’s rebuttal, defendants’ attorney stated before the
jury, "We will stipulate, if it will help, that Mr.
Mottesheard didn’t intentionally try to mislead anyone."
The theme of the defense, in part, was that the plaintiff,
because of his physical condition during some of the seven-day
period in question, was unable to give an accurate medical
history and that, at trial, his recollection differed from what
other evidence revealed. For example, plaintiff testified that
when he saw defendant McGuffin, he was "so spaced out"
that he did not "know really what planet" he was on.
Also, he testified that when he saw Dr. Hendricks he was "a
mumbling fool" and that the physician may have misunderstood
his statements.

This challenge to plaintiff’s recollection, and not to his
character, was accentuated during closing argument of defendants’
counsel. Among other things, he told the jury, "There is no
question that a bad thing happened to a good person . . . He is a
very admirable person in a lot of ways. He is admirable in the
way that he dealt with this. He continued to perform his job and
he performed it at a high level. He is rated as high as he can be
rated and I think that is significant. We have never suggested to
you that he is untruthful. The evidence does not show that and we
have never argued that for a minute." Later during argument,
counsel said: "[W]e are not suggesting to you that Mr.
Mottesheard did not testify truthfully. I’m sure that he
testified the way that he thinks these things happened."

Our conclusions based upon study of the trial proceedings are
confirmed by the trial judge’s comments made when he denied the
motion to set the verdict aside. He said: "Mr. Mottesheard’s
integrity was never questioned. I sat here for two weeks
listening to testimony, listening to argument of the counsel on
both sides; and I never got the impression that the Plaintiff’s
reputation in the community [in] which he lived was other than –
or anyone was hinting or implying his reputation was other than
– impeccable." The judge also stated: "Testimony
concerning memory skills of all the parties would have been more
appropriate [than] testimony as to their character because no one
questions their character or ever did."

The plaintiff’s reliance upon Luck, supra, and Redd
v. Ingram, 207 Va. 939, 154 S.E.2d 149 (1967), is
misplaced. In Luck, a personal injury action arising from
a motor vehicle accident, we held the trial court erred in
refusing to admit testimony regarding the plaintiff’s reputation
for truth and veracity "after her character for truthfulness
had been impeached." 240 Va. at 446, 397 S.E.2d at 870-71.
However, in that case, unlike the present case, cross-examination
of the plaintiff "was structured to secure statements that
admitted or implied" that plaintiff’s injuries were the
result of a prior accident, that plaintiff had withheld
information from attorneys in a previous suit, and that plaintiff
misrepresented information about her injuries sustained in the
prior accident. Id. at 447-48, 397 S.E.2d at 871.

In Redd, another personal injury case arising from a
vehicular accident, this Court held the trial court properly
admitted evidence concerning the plaintiff’s reputation for truth
and veracity. There, defendant attempted to impeach plaintiff’s
character for truth by cross-examination of plaintiff and by
introducing testimony to contradict him. 207 Va. at 943, 154
S.E.2d at 152. In that case, however, defendant attempted to
impeach the truth of plaintiff’s testimony respecting matters
"about which [the plaintiff] could not have been honestly
mistaken." Id., 154 S.E.2d at 153. Here, in contrast,
impeachment of plaintiff dealt with matters about which he
honestly could have been mistaken.

Accordingly, we hold the trial court did not err in refusing
to permit plaintiff to offer evidence of his general reputation
for truth and veracity. Thus, the judgment below will be Affirmed.

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