Virginia Lawyers Weekly VA Lawyers Weekly
Although a trial court entered an agreed order stating “all discovery” conducted and taken during plaintiff estate’s first-filed medical malpractice suit would be incorporated in her suit refiled after a nonsuit, that order did not include the trial court’s denial of plaintiff’s discovery motions on hospital policies involving troponin, a biomarker for cardiac injury, and metadata relating to electronic medical records; the Supreme Court of Virginia upholds a defense verdict for the hospital.
Plaintiff chose to exercise her right to take a nonsuit. However, once she did so, it was as if the earlier action had never been filed, as a nonsuit leaves the situation as if the suit had never been filed.
The trial court entered an agreed order in the 2012 action that incorporated “all discovery conducted and taken” in the 2010 action. Discovery is the process by which facts resting within the knowledge of one party are disclosed to another party in a suit or proceeding in court. Although parties may file motions to compel and raise objections while they are engaged in the discovery process, the motions, objections and trial court orders do not constitute discovery. When the trial court incorporated “all discovery conducted and taken” in the 2010 action, the interrogatories, depositions, documents and requests for admissions from the 2010 action were incorporated into the 2012 action. This had the obvious and salutary effect of avoiding the need to repeat the discovery activities and reproduce the same information previously exchanged between the parties. However, the order did not incorporate the motions to compel, the objections, transcripts of the hearings or the trial court rulings on the motions. Without such incorporation following a nonsuit, it is as if those motions, objections and rulings never existed since the 2012 action is “new” and stands independently of any prior nonsuited action.
The 2012 agreed order did not expressly incorporate the motions, objections or rulings made in the 2010 nonsuited action into the 2012 action, and these rulings cannot be challenged in this appeal. We cannot reach the merits of plaintiff’s assignments of error.
Judgment affirmed.
Temple, Adm’r v. Mary Washington Hospital Inc. (Lemons) No. 131754, Sept. 12, 2014; Fredericksburg Cir.Ct. (Willis) L. Steven Emmert, Amy Griggs for appellant; Angela B. Axselle, Robyn P. Ayres for appellee MWH; John R. Redmond for appellee Fredericksburg Emergency Medical Alliance Inc.; Carlyle R. Wimbish III, Justin W. Ward for appellee Fredericksburg Hospitalist Group PC; Avery T. Waterman Jr. for appellant amicus curiae VTLA; Paul T. Walkinshaw, Garrett H. Hooe for appellee amicus curiae VADA; Patrick C. Devine Jr., J. Nelson Wilkinson for appellee amicus curiae Va. Hospital & Healthcare Ass’n. VLW 014-6-070, 9pp.
