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WALSH v. BENNETT, M.D.
June 9, 2000
Record No. 991993
RAYMOND WILLIAM WALSH
DEAN R. BENNETT, M.D.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Henry E. Hudson, Judge
Present: All the Justices
OPINION BY JUSTICE CYNTHIA D. KINSER
In this appeal, we decide whether the trial court abused its
discretion when it struck plaintiff’s designation of his
expert witness for failure to comply with an order to provide
discovery. Because the court took this action prior to a deadline
that it had previously established for plaintiff to make his
expert witness available for a deposition, we conclude that the
court abused its discretion and will therefore reverse the
judgment of the circuit court.
FACTS AND PROCEEDINGS
Raymond William Walsh filed an amended motion for judgment against Dr. Dean R. Bennett, an
orthopaedic surgeon, and several other defendants, alleging, inter
alia, that Dr. Bennett was negligent and committed medical
malpractice in performing orthopaedic surgery on Walsh. In accordance with the trial
court’s pre-trial scheduling order, Walsh designated five
expert witnesses. Dr. Bennett objected to Walsh’s
designation of expert witnesses on the basis that the designation
was inadequate, and moved to strike the designation and prevent
Walsh from calling the experts as witnesses at trial. The trial
court sustained that motion but granted Walsh leave to amend his
designation of experts. The court further ordered that Walsh
would not be permitted to file any additional amendments to his
designation of expert witnesses.
Walsh subsequently submitted a Supplemental Designation of
Expert Witnesses, naming only Dr. John P. Kostuik as an expert
witness. Dr. Bennett again objected and
moved to strike the designation on the basis that it was vague
and contained insufficient information.
After a hearing on May 21, 1999, the trial court denied Dr.
Bennett’s motion on the condition that Dr. Bennett have the
opportunity to "adequately depose" Dr. Kostuik "by
the close of business" on June 4, 1999. Otherwise, the court
would grant Dr. Bennett’s motion. Both parties objected to
the court’s order.
Prior to the hearing on May 21, Walsh had requested an
extension of time in which to complete discovery, or
alternatively, a continuance of the scheduled trial date of June
21, 1999. In that request, Walsh asserted that Dr. Kostuik was
essentially unavailable for deposition during the remaining time
prior to the trial date. Walsh also contended that,
without the extension, he would not have sufficient time in which
to depose Dr. Bennett’s expert witnesses prior to trial. On
May 26, 1999, the trial court heard Walsh’s motion and
Also on May 26, Dr. Bennett’s counsel noticed the
discovery deposition of Dr. Kostuik for June 4, commencing at
1:30 p.m. A representative of Dr. Kostuik’s office then
called Dr. Bennett’s counsel and advised that Dr. Kostuik
was available only on June 4 for a deposition from 12:30 until
1:30 p.m. The next day, Dr. Bennett again moved to strike
Walsh’s designation of his expert witness because of
Walsh’s alleged failure to make Dr. Kostuik available for a
deposition at a time convenient to Dr. Bennett’s counsel.
At a hearing on June 2, 1999, regarding Dr. Bennett’s
motion, Walsh stated that Dr. Kostuik could be deposed from 10:00
a.m. until 1:30 p.m. on June 4. Dr. Bennett’s counsel
advised the court that she had informed Walsh’s counsel on
several occasions that she was available to take Dr.
Kostuik’s deposition on any day other than that time frame
on June 4. However, on a previous occasion, Dr. Bennett’s
counsel had advised the court and Walsh’s counsel that she
was available "at any time other than June 4, 1999, between
At that hearing, Walsh also argued that, by making the doctor
available for three and one-half hours, he was in compliance with
the court’s earlier order to provide an opportunity for Dr.
Kostuik to be "adequately depose[d]." After
Dr. Bennett’s counsel again stated that she was available to
depose Dr. Kostuik anytime other than from 10:00 am to 1:30 p.m.
on June 4, the trial court offered to extend the June 4, 1999
deadline. However, Walsh’s counsel stated that the
previously identified three and one-half hour time frame on June
4 was the only time Dr. Kostuik was available for deposition.
When pressed by the court for information on Dr. Kostuik’s
availability, Walsh’s counsel replied that the court
"may as well ‘go ahead and dismiss the case.’
" The court then granted Dr. Bennett’s motion to strike
Walsh’s designation of his expert witness and ordered that
Dr. Kostuik would not be permitted to testify as an expert
witness at the trial of this case.
Thereafter, at the same hearing, Dr. Bennett moved the court
to dismiss the case on the ground that, without an expert
witness, Walsh’s evidence was insufficient as a matter of
law to prove his claim for medical malpractice. Again,
Walsh’s only response was "go ahead and dismiss the
case." The trial court granted the motion and entered an
order on June 2, 1999, reflecting its decision on both of Dr.
Bennett’s motions. We awarded Walsh this appeal.
Rule 4:12(b) governs discovery abuses and provides for
sanctions against a party who fails to comply with a court’s
order to provide or permit discovery. A trial court generally
exercises "broad discretion" in determining the
appropriate sanction for failure to comply with an order relating
to discovery. Woodbury v. Courtney, 239 Va. 651, 654, 391
S.E.2d 293, 295 (1990). Consequently, we accord deference to the
decision of the trial court in this case and will reverse that
decision only if the court abused its discretion in striking
Walsh’s designation of his expert witness. See First
Charter Land Corp. v. Middle Atl. Dredging, Inc., 218 Va.
304, 308-09, 237 S.E.2d 145, 148 (1977). However, an appellate
court should not simply rubber stamp every discretionary decision
of a trial court. To the contrary, we have an obligation to
review the record and, upon doing so, to reverse the judgment of
the trial court if we find a clear abuse of discretion.
The determination whether a trial court has abused its
discretion is fact-specific. The facts of the instant case show
that the trial court ordered Walsh to make his expert witness
available for a deposition on or before the close of business on
June 4. However, prior to that date — in other words, before
Walsh had exhausted the time during which he could comply or fail
to comply with the court’s order — the court struck
Walsh’s designation of his expert witness and dismissed the
The facts also establish that in the days prior to June 2,
Walsh’s counsel had made Dr. Kostuik available for an
additional two and one-half hours, some of which was during a
time Dr. Bennett’s counsel had on one occasion indicated
that she would be available. Although Dr. Bennett’s counsel
advised the court at the hearing on June 2 that she could not
depose Dr. Kostuik during this additional period of time, we do
not know whether the schedule of either Dr. Bennett’s
counsel or Dr. Kostuik would have again changed between June 2
and the close of business on June 4.
Considering these facts, we conclude that the trial court
abused its discretion because it deprived Walsh of time, in this
case two days, in which to comply with the court’s order and
to provide Dr. Bennett with the opportunity to "adequately
depose" Dr. Kostuik. The court prematurely imposed a
sanction pursuant to Rule 4:12(b) because Walsh had not yet
failed to obey the terms of the court’s prior discovery
order. See Rule 4:12(b)(2)("[i]f a party
. . . fails to obey an order to provide . . .
discovery, . . . the court . . . may make
such orders in regard to the failure as are just".)
The trial court’s action before the June 4 deadline also
"short circuited" the legal process. We have often
warned of the dangers of "short circuiting" litigation
because in doing so, a trial court "depriv[es] a litigant of
his day in court and depriv[es] this Court of an opportunity to
review a [more] thoroughly developed record on appeal." Seyfarth,
Shaw, Fairweather & Geraldson v. Lake Fairfax Seven Ltd.
Partnership, 253 Va. 93, 95, 480 S.E.2d 471, 472 (1997)
(citing CaterCorp, Inc. v. Catering Concepts, Inc., 246
Va. 22, 24, 431 S.E.2d 277, 279 (1993); Renner v. Stafford,
245 Va. 351, 353, 429 S.E.2d 218, 220 (1993); Carson v.
LeBlanc, 245 Va. 135, 139-40, 427 S.E.2d 189, 192 (1993)). In
this case, the trial court unnecessarily cut short the remaining
time before the June 4 deadline for counsel to schedule Dr.
Kostuik’s deposition and, in doing so, may have prevented
this case from proceeding to trial, thus depriving Walsh of his
day in court.
For these reasons, we will reverse the judgment of the circuit
court and remand this case for further proceedings consistent
with this opinion.
Reversed and remanded.
JUSTICE LEMONS, with whom JUSTICE LACY joins, dissenting.
In my view the trial court did not abuse its discretion by
striking plaintiff’s designation of his expert witness for
failure to comply with an order to provide discovery and
thereafter, upon request of the plaintiff, dismissing the case.
There is no transcript of the proceedings before the trial
court in this record. Rather, Walsh relies upon a statement of
facts pursuant to Rule 5:11(c). The pertinent portion of the
statement of facts states:
Counsel for the Plaintiff informed the [c]ourt that the June
4, 1999 time frame was the only opportunity Dr. Kostuick [sic] had available for the deposition. When pressed by the [c]ourt for
additional information concerning Dr. Kostuick’s [sic] availability, counsel for the Plaintiff replied that the court
may as well "go ahead and dismiss the case." Failing in
an attempt to find alternative dates for the deposition of Dr.
Kostuick [sic], the [c]ourt granted the Defendant’s motion
to preclude Dr. Kostuick’s [sic] testimony as an expert
witness at trial. Counsel for the Defendant then moved to dismiss
the case on the ground that Plaintiff’s evidence as a matter
of law was insufficient to prove medical malpractice without a
medical expert. Again, Plaintiff’s only response was
"go ahead and dismiss the case." The [c]ourt granted
the Defendant’s motion and the case was dismissed.
The majority holds that, "the trial court abused its
discretion because it deprived Walsh of time, in this case two
days, in which to comply with the court’s order."
Calling the dismissal a premature sanction under Rule 4:12, the
majority suggests that "Walsh had not yet failed to obey the
terms of the court’s prior discovery order." The
majority further observes that "we do not know whether the
schedule of either Dr. Bennett’s counsel or Dr. Kostuik
would have again changed between June 2 and the close of business
on June 4."
The majority does not hold that dismissal of the case for
failure to comply with a discovery order of the court is an abuse
of discretion; rather, the majority is concerned that the
dismissal occurred two days before the stated deadline. However,
the only evidence before us on the subject is the recitation in
the statement of facts that "the June 4, 1999 time frame was
the only opportunity Dr. Kostuick [sic] had available for the
deposition." The unavailability of Dr. Bennett’s
counsel within the narrow time frame offered by Dr. Kostuik for
his deposition had been repeatedly established. Consequently, on
the only evidence before us, the parties agreed that the
deposition could not be taken between June 2 and the close of
business on June 4. Plaintiff then twice invited the court to
"go ahead and dismiss the case."
Although I believe that it was not error to dismiss the case,
if error occurred, it most assuredly was invited error that the
plaintiff may not successfully assert on appeal. The majority
concludes without analysis that the request to "go ahead and
dismiss the case" does not satisfy the invited error
doctrine. The invited error doctrine is essentially a waiver of
the right to assign error under Rule 5:25. See Wright
v. Norfolk and Western Railway Co., 245 Va. 160,
169-70, 427 S.E.2d 724, 729(1993). As we stated in Wright,
"a litigant will not be permitted to invite a trial court to
commit error, either through agreeing or failing to object, and
then be permitted to successfully complain of such error on
appeal." Id. at 170, 427 S.E.2d at 729. If error occurred in
the failure of the trial judge to wait an additional two days
before entering the dismissal order, surely the error was
occasioned by the acknowledgement by the plaintiff that no
compliance with the order was possible within the two-day period
followed by the express invitation, issued twice, to "go
ahead and dismiss the case."
As the statement of facts reveals, this case was originally
filed in May of 1997 and was nonsuited prior to argument on a
motion for summary judgment based upon plaintiff’s failure
to timely designate expert witnesses. After the case was refiled
in September of 1998, controversy arose over the adequacy of
compliance with the Rules of Court concerning designation of
expert witnesses. The trial court gave plaintiff leave to amend
his designation. Upon the filing of an amended designation,
defendant again filed a "motion to strike the
[p]laintiff’s expert." The trial court denied the
motion; however, the court ordered "that the [d]efendant be
afforded the opportunity to adequately depose [p]laintiff’s
expert by the close of business on June 4, 1999, or the [c]ourt
would revisit its decision on the motion to strike."
At a hearing on June 2, 1999, the court was advised of
plaintiff’s lack of compliance with the terms of the order
requiring discovery. In another display of attempted
accommodation of plaintiff, the court "then agreed to extend
the June 4, 1999 deadline in order to accommodate the deposition
of Dr. Kostuick [sic]." Inexplicably, plaintiff did not
accept the trial court’s offer.
Faced with plaintiff’s repeated failure to comply with
the Rules of Court and discovery orders, the trial court
nonetheless tried to provide plaintiff with alternatives other
than striking his expert or dismissing his case. For reasons
known only to plaintiff, the efforts of the court were resisted.
In this context, it was not an abuse of discretion for the court
to accept plaintiff’s invitation to dismiss the case. Even
if the failure to wait two more days to enter the order is
characterized as error, under any reasonable interpretation, it
was invited error about which plaintiff may not now complain on
I respectfully dissent from the majority opinion because it
elevates form over substance. I would affirm the judgment of the
 Walsh initially filed this case
in 1997 but later nonsuited it. After he re-filed his case, the
trial court sustained defendants’ demurrers, and Walsh then
filed the amended motion for judgment.
 The trial court subsequently
dismissed all the defendants except Dr. Bennett.
 In that supplemental
designation, Walsh also stated that he expected to call his
treating physicians as witnesses.
 In his written request, Walsh
stated that Dr. Kostuik was available for deposition only on June
 Walsh’s counsel
represented that he had previously informed Dr. Bennett’s
counsel that Dr. Kostuik was also available to be deposed from
10:00 a.m. until 12:30 p.m. on June 4. However, Dr.
Bennett’s counsel denied having received that information.
 In his last motion to strike,
Dr. Bennett claimed that the court had previously ruled that Dr.
Kostuik must be made available for a minimum of three hours for a
deposition. However, no statement to that effect appears in any
of the court’s orders.
 The trial court’s order
does not explicitly reference Rule 4:12.
The statements of Walsh’s counsel at the June 2 hearing that
the trial court could "go ahead and dismiss the case"
did not justify the trial court’s "short
circuiting" of the process. Neither did the statements
constitute "invited error" under the doctrine
enunciated by this Court, most recently in Moore v. Hinkle,
259 Va. 479, 491, 527 S.E.2d 419, 426 (2000).