Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims, JJ.
KASEY A. LANDRUM
OPINION BY
v. Record No. 101102 JUSTICE DONALD W. LEMONS
November 4, 2011
CHIPPENHAM AND JOHNSTON-WILLIS
HOSPITALS, INC., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge
In this appeal, we consider whether the circuit court
abused its discretion in excluding the plaintiff's expert
witnesses because of her failure to obey its pretrial orders.
We conclude that it did not and therefore affirm its judgment.
I. Background
In February 2009, Kasey A. Landrum, represented by out-of-
state counsel from St. Louis, Missouri, admitted pro hac vice, 1
sued Chippenham and Johnston-Willis Hospitals, Inc. 2 and Dr. John
C. Deitrick (collectively Defendants) for medical malpractice. 3
Seven months later, the circuit court entered a scheduling
order. As relevant here, that order provided:
If requested in discovery, plaintiff's . . . experts
shall be identified on or before Monday, November 23,
2009. . . . If requested, all information
1
The record contains an order granting Landrum's out-of-
state counsel temporary pro hac vice admission, in accordance
with Rule 1A:4(3). But it is devoid of a motion by local
counsel to associate him as counsel pro hac vice or an order
granting such a motion, as required under Rule 1A:4(3)(b)-(c).
2
We have reformed the case caption to reflect the correct
name of this defendant-appellee.
3
Landrum also sued two other doctors who are not parties to
this appeal.
1
discoverable under Rule 4:1(b)(4)(A)[(i)] . . . shall
be provided or the expert will not ordinarily be
permitted to express nondisclosed opinions at trial.
The foregoing deadline[] shall not relieve [plaintiff]
of the obligation to respond to discovery requests
within the time periods set forth in the Rules of the
Supreme Court of Virginia, including, in particular,
the duty to supplement or amend prior responses
pursuant to Rule 4:1(e).
(Emphasis omitted.)
Two months before the November 23 deadline, Defendants,
through interrogatories, asked Landrum to identify her expert
witnesses. Landrum's out-of-state counsel nonetheless waited
until November 23 to send them an expert designation (which they
did not receive until November 30). The designation provided
the names and addresses of two expert witnesses. But it did not
"state the substance of the facts and opinions to which [they
were] expected to testify and a summary of the grounds for each
opinion," and was therefore deficient under Rule
4:1(b)(4)(A)(i). Defendants consequently moved to exclude the
expert witnesses and for summary judgment.
Upon learning of Defendants' motions, Landrum's out-of-
state counsel attempted to cure the deficient designation by
sending Defendants the expert witnesses' reports (which they
received on either December 10 or 11). He did not, however,
supplement the designation to comply with Rule 4:1(b)(4)(A)(i),
as required under Rule 4:1(e).
2
At a January 21, 2010 hearing on Defendants' motions,
Landrum's out-of-state counsel admitted that the designation did
not satisfy Rule 4:1(b)(4)(A)(i). But he argued that the
violation was remedied when the Defendants received the expert
witnesses' reports. He further urged that the exclusion of the
expert witnesses "would be a tremendous prejudice to [Landrum]."
The circuit court denied Defendants' motions and gave
Landrum's out-of-state counsel until January 28 to supplement
the designation so as to comport with Rule 4:1(b)(4)(A)(i). In
giving him this second chance, however, it warned:
THE COURT: . . . I will give you seven days from
today, and I'm going to give you a time that you file
your answer to these interrogatories and you file a
copy of it in the clerk's office and you do it in the
proper manner. I'm not going to sit here and lecture
how you're supposed to do it.
. . . .
I will tell you, sir, if you fail to do that, I
will dismiss the case after that.
The circuit court later entered an order memorializing its
ruling. That order provided, among other things, that if
Landrum did not supplement the designation "on or before January
28," then she would "risk further sanction by the court,
including but not limited to, reconsideration of the defendants'
motions."
On January 27, Landrum's out-of-state counsel filed a
supplemental designation. But it, too, was not in compliance
3
with the Rules: although it featured out-of-state counsel's
signature above the signature block containing both his name and
address as well as the name and address of local counsel, it was
not signed by local counsel as required under Rule 1A:4(2).
Because "[a]ny pleading or other paper required to be served" is
invalid under that Rule "unless it is signed by local counsel,"
Defendants again moved to exclude Landrum's expert witnesses and
for summary judgment.
At a February 23, 2010 hearing on Defendants' second round
of motions, Landrum's out-of-state counsel conceded that he
violated Rule 1A:4(2) by filing the supplemental designation
without local counsel's signature. In fact, he admitted that he
"ha[d] filed many pleadings in this case . . . in violation of
the rule," including the original designation. 4 He nevertheless
argued that the exclusion of the expert witnesses was not
warranted because he remedied the violation by refiling the
supplemental designation with local counsel's signature on
February 17.
The circuit court first granted Defendants' motions to
exclude the expert witnesses, explaining:
[W]hat happened was there was a series of late
filings. It wasn't very late but it was late.
Subsequently turned out that it was not appropriately
filed for substance. And [the court] allowed that to
4
Defendants did not raise the violation at the January 21
hearing.
4
be done. [The court] said that it had to be done
properly. If it wasn't done properly within the
seven-day period, that that was the last chance, so to
speak.
And it was a situation where the [supplemental
designation] was not signed properly. The rules are
very, very clear as to what happens if local counsel
doesn't sign a document. And that was not done.
Whether it was done before or not or brought to the
attention by the defendant[s] to the plaintiff, that's
not their responsibility. It's the plaintiff's
responsibility to know and stay by the rules. And the
[c]ourt is going to enforce the rule. The designation
is filed improperly and is stricken.
The circuit court then entertained argument on Defendants'
motions for summary judgment. Defendants contended that summary
judgment was appropriate because Landrum could not meet her
burden of proof on her medical-malpractice claims without an
expert witness to establish the standard of care. The circuit
court agreed and granted the motions, dismissing the case with
prejudice. 5 Landrum now appeals.
II. Discussion
A.
Pursuant to Rule 4:12(b)(2), a trial court may sanction a
party for failing "to obey an order to provide or permit
discovery." It may, for instance, prohibit a party "from
introducing designated matters in evidence" or "strik[e] out
5
Landrum later filed a motion to reconsider and a motion to
amend the supplemental designation. The circuit court denied
the former for lack of jurisdiction and did not rule on the
latter.
5
pleadings or parts thereof." Rule 4:12(b)(2)(B)-(C). Because
it "exercises 'broad discretion' in determining the appropriate
sanction," we review its decision for an abuse of discretion.
Walsh v. Bennett, 260 Va. 171, 175, 530 S.E.2d 904, 907 (2000)
(quoting Woodbury v. Courtney, 239 Va. 651, 654, 391 S.E.2d 293,
295 (1990)).
The abuse-of-discretion standard, as the United States
Court of Appeals for the Fourth Circuit has observed, is "a
standard that, though familiar in statement, is not necessarily
that simple in application." James v. Jacobson, 6 F.3d 233, 239
(4th Cir. 1993) (internal quotation marks omitted). That is
because an abuse of discretion "can occur in a number of ways."
Id.
In Kern v. TXO Production Corp., 738 F.2d 968, 970 (8th Cir.
1984), the United States Court of Appeals for the Eighth Circuit
stated that when a decision is discretionary, "we do not mean
that the [trial] court may do whatever pleases it. The phrase
means instead that the court has a range of choice, and that its
decision will not be disturbed as long as it stays within that
range and is not influenced by any mistake of law." The Eighth
Circuit went on to explain:
An abuse of discretion . . . can occur in three
principal ways: when a relevant factor that should
have been given significant weight is not considered;
when an irrelevant or improper factor is considered and
given significant weight; and when all proper factors,
6
and no improper ones, are considered, but the court, in
weighing those factors, commits a clear error of
judgment.
Id.
The Fourth Circuit has recognized this definition. See
General Trucking Corp. v. Westmoreland Coal Co., No. 92-1225,
1992 U.S. App. LEXIS 30853, at *14 (4th Cir. Nov. 23, 1992)
(unpublished) ("Or, as another court has put it, by (1) failing
to take into account a significant relevant factor; or (2)
giving significant weight to an irrelevancy; or (3) weighing the
proper factors but committing a clear error of judgment in doing
so." (citing Kern, 738 F.2d at 970)). And we now embrace it.
B.
Landrum first contends that the circuit court abused its
discretion in excluding the expert witnesses because it
disregarded Rule 4:1(g). 6 That Rule, in pertinent part,
provides:
Every request for discovery or response or objection
thereto made by a party represented by an attorney
shall be signed by at least one attorney of record in
the attorney's individual name, whose address shall be
stated. . . . If a request, response, or objection is
not signed, it shall be stricken unless it is signed
promptly after the omission is called to the attention
of the party making the request, response, or
6
In her assignment of error, Landrum also cites Code
§ 8.01-271.1, which contains language similar to that found in
Rule 4:1(g). But she does not separately address that section
in her brief. We thus assume that any argument based on Code
§ 8.01-271.1 is subsumed in her Rule 4:1(g) argument.
7
objection, and a party shall not be obligated to take
any action with respect to it until it is signed.
Rule 4:1(g). Since her out-of-state counsel refiled the
supplemental designation with local counsel's signature promptly
after the omission was brought to his attention, Landrum argues
that the circuit court exceeded the bounds of its discretion
under Rule 4:1(g) in excluding the expert witnesses. 7
Landrum's reliance on Rule 4:1(g) is misplaced because that
Rule was not violated: the supplemental designation was "signed
by at least one attorney of record." Rule 4:1(g). The problem
is that that attorney (Landrum's out-of-state counsel) is not
admitted to practice law in Virginia. For that reason, another
Rule comes into play – Rule 1A:4(2). That Rule states in
relevant part:
No out-of-state lawyer may appear pro hac vice before
any tribunal in Virginia unless the out-of-state
lawyer has first associated in that case with a lawyer
who is an active member in good standing of the
Virginia State Bar (hereinafter called "local
counsel"). The name of local counsel shall appear on
all notices, orders, pleadings, and other documents
filed in the case. Local counsel shall personally
7
Defendants contend that this argument was not preserved
for appeal because Landrum did not raise it below. We disagree.
Although Landrum did not cite Rule 4:1(g) to the circuit court
during the February 23 hearing, she did argue that the expert
witnesses should not be excluded because her out-of-state
counsel "served [the answers to interrogatories] with the
signature of local counsel as soon as [he] found out about [the
omission]." We thus find that Landrum gave the circuit court
sufficient "notice of the substance of the objection" to comply
with the requirements of Rule 5:25. Overton v. Slaughter, 190
Va. 172, 179, 56 S.E.2d 358, 361 (1949).
8
appear and participate in pretrial conferences,
hearings, trials, or other proceedings actually
conducted before the tribunal. . . . Any pleading or
other paper required to be served (whether relating to
discovery or otherwise) shall be invalid unless it is
signed by local counsel.
Rule 1A:4(2).
We construed and applied Rule 1A:4(2) in Wellmore Coal
Corp. v. Harman Mining Corp., 264 Va. 279, 568 S.E.2d 671
(2002). There Wellmore Coal filed a notice of appeal within the
30-day period prescribed by Rule 5:9(a). Id. at 281, 568 S.E.2d
at 672. The notice, however, was only signed by out-of-state
counsel and was thus invalid under Rule 1A:4(2). Id. at 282-83,
568 S.E.2d at 672-73. Some three weeks after the 30-day period
had run, Wellmore Coal filed an amended notice with local
counsel's signature. Id. at 282, 568 S.E.2d at 672.
Harman Mining and Sovereign Coal Sales moved to dismiss
Wellmore Coal's appeal. Id. They argued that the Court lacked
jurisdiction to hear the appeal because: (1) the original
notice was invalid, and (2) the amended notice was untimely.
Id. We first defined the term "invalid" as used in Rule 1A:4(2)
as " 'not legally binding.' " Id. at 283, 568 S.E.2d at 673
(quoting Black’s Law Dictionary 829 (7th ed. 1999)). We then
reasoned that, because the original notice "was not legally
binding," "it had no legal effect." Id. And because it had no
legal effect, it could not be amended to comply with that Rule,
9
for "an amendment presupposes a valid instrument as its object."
Id. We thus granted Harman Mining and Sovereign Coal Sales'
motion and dismissed Wellmore Coal's appeal as untimely. Id. at
284, 568 S.E.2d at 673.
Just like Wellmore Coal's original notice, Landrum's
supplemental designation had no legal effect because it was not
signed by local counsel as required under Rule 1A:4(2). And
just like Wellmore Coal’s original notice, Landrum's
supplemental designation could not be amended to comply with
that Rule, since it was an invalid instrument. 8 Landrum
accordingly failed to obey the circuit court's pretrial order to
file a supplemental designation on or before January 28.
C.
Landrum further contends that the circuit court abused its
discretion in excluding the expert witnesses because Defendants
were not prejudiced by her violation of Rule 1A:4(2). Whether
prejudice flowed from the lack of local counsel's signature on
the supplemental designation is irrelevant, however. The
circuit court excluded the expert witnesses not because she
failed to comply with Rule 1A:4(2), but because she failed to
obey its pretrial orders. As noted earlier, Rule 4:12(b)(2)
8
Herein lies the difference between Rule 1A:4(2) and Rule
4:1(g). Unlike a violation of the former, a violation of the
latter does not render an instrument invalid, and therefore it
may be amended to add an omitted signature.
10
gives a trial court the authority to sanction "a party [that]
fails to obey an order to provide or permit discovery." Nothing
in the language of that Rule or our case law demands that a
trial court first determine whether a party's failure to obey an
order has caused another party to suffer prejudice before it may
impose a sanction.
D.
We now turn to the circuit court's decision to exclude
Landrum's expert witnesses. Based on our review of the record,
we cannot say that the circuit court, in making that decision,
failed to consider the relevant factors or that, "in weighing
those factors, [it] commit[ted] a clear error of judgment."
Kern, 738 F.2d at 970. Nor can we say that "any lesser sanction
would have remedied the problem posed by [Landrum's] failure to
obey [its] order[s]." American Safety Cas. Ins. Co. v. C.G.
Mitchell Constr., Inc., 268 Va. 340, 353, 601 S.E.2d 633, 640
(2004).
The record reflects that the circuit court warned Landrum
multiple times that her failure to obey its orders would lead to
sanctions, including the exclusion of the expert witnesses.
First, there was the scheduling order, which stated, among other
things, that "expert [witnesses] will not ordinarily be
permitted to express any nondisclosed opinions at trial." Then
there was the admonition given to her out-of-state counsel
11
during the January 21 hearing: "I will tell you, sir, if you
fail to [supplement the original designation on or before
January 28], I will dismiss the case after that." And finally,
there was the order that was entered following the January 21
hearing, which provided, among other things, that if she failed
to supplement the original designation on or before January 28,
then she would "risk further sanction by the court, including
but not limited to, reconsideration of the defendants' motions."
Landrum, moreover, proved herself unable to comply with the
Rules, running afoul of not just Rules 1A:4(2) and
4:1(b)(4)(A)(i), but also Rules 1A:4(3) ("An out-of-state lawyer
desiring to appear pro hac vice . . . shall . . . complete the
application procedure [for admission] within the time limit" set
by the tribunal), 4:1(e)(1)(B) (plaintiff has a duty to
supplement her discovery responses with "the identity of each
person expected to be called as an expert witness at trial, the
subject matter on which the expert is expected to testify, and
the substance of the expert's testimony, when additional or
corrective information becomes available"), and 4:15(c) ("if a
brief in support of a motion is five or fewer pages in length,
the required notice and the brief shall be filed and served at
least 14 days before the hearing and any brief in opposition to
12
the motion shall be filed and served at least seven days before
the hearing"). 9
In short, Landrum (or, more accurately, her out-of-state
counsel) has demonstrated a consistent disregard of the circuit
court's pretrial orders and the Rules during this litigation.
III. Conclusion
For the foregoing reasons, we conclude that the circuit
court did not abuse its discretion in excluding Landrum's expert
witnesses. We therefore affirm the circuit court's judgment.
Affirmed.
JUSTICE MILLETTE, with whom CHIEF JUSTICE KINSER joins,
concurring.
I join the majority opinion. I write separately to
emphasize a well-established principle concerning the abuse-of-
discretion standard in appellate review in both the Commonwealth
and other jurisdictions.
Quoting Kern v. TXO Production Corp., 738 F.2d 968, 970
(8th Cir. 1984), the majority correctly identifies three
scenarios in which an abuse of discretion can occur. Although
each scenario provides a clear example of a trial court's
abusing its discretion, they are not all encompassing; thus, it
9
Landrum's noncompliance even continued in this Court: she
made substantive changes to four of the five assignments of
error we agreed to hear, in violation of Rule 5:17(c)(1)(i). We
thus granted Defendants' motion to strike the four changed
assignments of error.
13
is important not to limit an abuse-of-discretion review to these
three factors.
This Court has repeatedly said that a " '[trial] court by
definition abuses its discretion when it makes an error of
law. . . . The abuse-of-discretion standard includes review to
determine that the discretion was not guided by erroneous legal
conclusions.' " Porter v. Commonwealth, 276 Va. 203, 261, 661
S.E.2d 415, 445 (2008) (quoting Koon v. United States, 518 U.S.
81, 100 (1996)); see also Grattan v. Commonwealth, 278 Va. 602,
620, 685 S.E.2d 634, 644 (2009); Lynchburg Div. of Soc. Servs.
v. Cook, 276 Va. 465, 484, 666 S.E.2d 361, 370-71 (2008);
Oxenham v. Johnson, 241 Va. 281, 287, 402 S.E.2d 1, 4 (1991).
The Supreme Court of the United States has likewise said
that a "[trial] court would necessarily abuse its discretion if
it based its ruling on an erroneous view of the law or on a
clearly erroneous assessment of the evidence." Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 405 (1990). And the federal
courts of appeal have echoed this statement. See, e.g., United
States v. Hedgepeth, 418 F.3d 411, 419 (4th Cir. 2005); Republic
of the Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 75
(3d Cir. 1994); McGregor v. Board of Comm'rs, 956 F.2d 1017,
1022 (11th Cir. 1992); Heat & Control, Inc. v. Hester Indus.,
Inc., 785 F.2d 1017, 1022 (Fed. Cir. 1986).
14
Porter provides the perfect example of why the abuse-of-
discretion standard includes review to determine that the trial
court was not guided by an erroneous conclusion of law. In that
case, Porter, who was on trial for capital murder, claimed that
the circuit court erred in denying his request to limit
courtroom security. 276 Va. at 260, 661 S.E.2d at 444. He
argued that having two deputies stand behind him during his
trial "prejudiced the jury by implying that he was 'incredibly
dangerous.' " Id. at 257, 661 S.E.2d at 443. The circuit court
denied Porter's request to order the two deputies to be seated
because it believed that it had no authority to direct the
sheriff's office on how to conduct security within the
courtroom, although the circuit court later corrected its
misunderstanding. Id. at 257-58, 260, 661 S.E.2d at 443, 445.
We reviewed Porter's claim under an abuse-of-discretion
standard and acknowledged that the circuit court had misstated
the law because a trial judge does have " 'overall supervision
of courtroom security.' " Id. at 260, 661 S.E.2d at 445.
(quoting Payne v. Commonwealth, 233 Va. 460, 466, 357 S.E.2d
500, 504 (1987)). We then confirmed that a trial court abuses
its discretion when it makes an error of law. Id. But we
continued to analyze that abuse of discretion by the circuit
court in its erroneous statement of the law by considering the
necessity for the enhanced security. We concluded that the
15
circuit court had not abused its discretion because the
additional security was necessary and not unduly prejudicial as
the demonstrated need for the security outweighed the potential
prejudice to Porter. Id. at 262-63, 661 S.E.2d at 446. The
three factors adopted by the majority today, however, would not
have addressed the circuit court's erroneous statement of the
law in Porter.
Even more pertinent is the majority's failure, in the case
before us, to address Landrum's claim of judicial error in the
application of its three factors. Had Landrum been correct in
her argument that the circuit court was required to apply Rule
4:1(g) allowing her to sign her submission promptly after the
omission was called to her attention, it would have been an
error of law and consequently an abuse of discretion for the
circuit court to exclude her expert witnesses. Again, none of
the majority's three factors would apply to this situation,
demonstrating the need to retain, as part of the abuse-of-
discretion standard, a review to determine that the discretion
was not guided by legal error.
For these reasons, I respectfully concur.
16