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High court provides primer on preserving objections

Peter Vieth//April 30, 2012

High court provides primer on preserving objections

Peter Vieth//April 30, 2012//

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A major brain injury claim that drew a small verdict from a Fairfax County jury provided an opportunity for the Supreme Court of Virginia to offer guidance to lawyers on preserving objections in a trial court record.

The auto accident victim, Mary Arnold, claimed permanent traumatic brain injury from a 2005 collision but came away from the jury trial with a verdict of just over $9,000.

On appeal, Arnold claimed trial Judge Jan L. Brodie improperly allowed the defense to bring in her past medical records – including hearsay opinions about her pre-existing conditions – through the testimony of her treating physician.

The Supreme Court said defense lawyers had laid an adequate foundation for the medical evidence, and it was up to Arnold to raise the issue of whether some of the records contained inadmissible opinion.

“It’s an affirmation by the Virginia Supreme Court that you need to make your record clear,” said Elizabeth E.S. Skilling of Richmond, who represented Arnold’s UIM insurance carrier in the appeal of Arnold v. Wallace, VLW 012-6-066.

Arnold’s medical chart was introduced by the defense during cross examination of the doctor who treated Arnold after the accident for spinal stenosis, bone edema and post-concussion syndrome. He testified her medical chart – including a several-year history of treatment – was regularly prepared by professionals at his practice and that it was kept in the ordinary course of business. He said the doctors at the practice relied on the chart to assess the patient and form a diagnosis.

When the defense lawyer moved to introduce the chart into evidence, Arnold objected. The doctor was not the records custodian and the defense had failed to satisfy the test for business records, Arnold argued at trial.

Significantly, Arnold sought to keep the burden on the defense by not mentioning the issue of hearsay opinion. Arnold’s trial counsel told the trial judge Wallace had failed to lay “the elements of the business records foundation, and I don’t want to tell him what it is. That’s his job.”

The court said the ball was actually in Arnold’s court, because the presence of opinion constitutes an “independent ground” for objection, which Arnold failed to assert.

It is “incumbent upon the objecting part to identify the passages within a business record offered into evidence that contain inadmissible opinions,” wrote Justice William C. Mims for the court. Because Arnold’s general objection to “foundation” failed to alert the trial court of additional specific objections to opinions in the chart, that objection was waived, Mims said.

The Arnold opinion also limits the ability of a litigant to exclude an opposing expert because the expert is associated with another previously hired by the litigant.

Arnold had retained Dr. Charles Citrin, a diagnostic radiologist, but did not identify him. When the defense announced it planned to call Citrin at trial, the judge sustained Arnold’s objection based on Arnold’s “confidential relationship” with the doctor.

But the defense then identified another member of Citrin’s practice group, Dr. Elizabeth Hartman, and Arnold again objected. Hartman, it turned out, had received a copy of Citrin’s designation he had prepared for the defense, along with handwritten notes on the medical records.

Hartman did not know who made the notes and some were “indecipherable.” None were shown to contain any confidential information that Arnold had shared with Citrin.

The trial court allowed Hartman to testify over Arnold’s objection, and the Supreme Court found no abuse of discretion. Arnold, as the party seeking disqualification, had failed to meet her burden of showing that Citrin had revealed confidential information to Hartman.

The lesson on the medical records issue is to avoid being cagey in your trial objections, Skilling said. “You need to carefully form your objections and make sure the court’s aware of all the objections you have,” she said.

A request for comment from Chidi I. James of Fairfax, appellate counsel for Mary Arnold, was not returned by press time.

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