Present: All the Justices
CHARLES BURKETT MOTTESHEARD
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 971373 June 5, 1998
LOUIS JOSEPH CASTERN, M.D., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF SALEM
Willis A. Woods, Judge Designate
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.
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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
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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
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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."
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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.)
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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
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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
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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.
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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.
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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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