Present: All the Justices
RALPH D. LOMBARD
v. Record No. 002459
DORSEY W. ROHRBAUGH
OPINION BY JUSTICE DONALD W. LEMONS
September 14, 2001
VIRGINIA FARM BUREAU MUTUAL INSURANCE COMPANY
v. Record No. 002675
DORSEY W. ROHRBAUGH
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Dennis J. Smith, Judge
In these two appeals, we consider whether the trial court
erred in permitting Dorsey W. Rohrbaugh (“Rohrbaugh”) to
mention liability insurance during cross-examination of a
physician who testified on behalf of Ralph D. Lombard
(“Lombard”) and Virginia Farm Bureau Mutual Insurance Company
(“Farm Bureau”). Additionally, we consider the enforceability
at trial of a stipulation reached during pretrial discovery
proceedings and the trial court’s denial of Lombard’s
proffered cautionary instruction.
I. Facts and Proceedings Below
Rohrbaugh was injured in an automobile accident on August
11, 1995, when his automobile was struck from behind by a
vehicle operated by Lombard. Lombard had a liability policy
of insurance with Allstate Insurance Company (“Allstate”).
Farm Bureau provided Rohrbaugh’s motor vehicle insurance.
Rohrbaugh filed his motion for judgment against Lombard on
June 25, 1999, in the Circuit Court of Fairfax County. He
served the motion for judgment on Lombard and upon his own
carrier, Farm Bureau, as the underinsured motorist carrier
pursuant to Code § 38.2-2206. Allstate provided counsel for
Lombard, who filed appropriate responsive pleadings. Farm
Bureau, pursuant to Code § 38.2-2206, filed a separate
response to the motion for judgment in its own name.
Rohrbaugh presented evidence at trial that two of his
cervical discs were herniated and his back was injured as a
result of the accident. Lombard and Farm Bureau disputed the
existence, as well as the causation, of any injuries and
contended that Rohrbaugh’s continued pain and subsequent
anterior cervical discetomy and fusion were due to a pre-
existing arthritic condition.
Allstate and Farm Bureau engaged Bruce J. Ammerman, M.D.
(“Dr. Ammerman”) to conduct a medical examination of Rohrbaugh
pursuant to Rule 4:10 of the Rules of the Virginia Supreme
Court. Dr. Ammerman was regularly employed not only by
Allstate, but by numerous other insurance companies to conduct
Rule 4:10 examinations. In discovery proceedings, Rohrbaugh
2
attempted to determine precisely how much money Dr. Ammerman
had been paid by Allstate for such forensic work.
From a prior unrelated personal injury action,
Rohrbaugh’s counsel had obtained from Allstate a computer
printout indicating the amounts paid by Allstate to Dr.
Ammerman in various years, including 1998 and 1999. In
pretrial depositions in the unrelated case, Dr. Ammerman had
acknowledged that the reported figures were accurate; however,
he testified that he could not state how much of his income
from Allstate was for forensic work and how much was for
patient care. Aware of this absence of differentiation among
the payments, Rohrbaugh’s counsel in the present case caused a
subpoena to be issued for a deposition pursuant to Rule
4:5(b)(6) of an Allstate corporate designee knowledgeable
about payments to Dr. Ammerman. Allstate engaged counsel
independent from that which it provided for Lombard and filed
a motion to quash the notice of deposition.
The Honorable R. Terrence Ney denied the motion to quash
and further ordered that the deposition of the Allstate
designee would proceed with the understanding that Allstate
would provide a witness who could differentiate between
payments made to Dr. Ammerman for medical services and
payments made for forensic services. On the date of this
ruling, Rohrbaugh’s counsel suggested to Allstate’s counsel
3
that Allstate’s designee might need access to a computer
terminal and offered to hold the deposition in an Allstate
office. Allstate’s counsel rejected this effort to
accommodate the witness and insisted that the deposition be
taken at the office of Rohrbaugh’s counsel, where it had been
noticed.
The deposition of Allstate’s designee occurred on June 6,
2000 at Rohrbaugh’s counsel’s office and was attended by
Lombard’s counsel, Allstate’s counsel, and Rohrbaugh’s
counsel. 1 Farm Bureau’s counsel, although given notice,
elected not to attend. Immediately prior to the beginning of
the deposition, a telephone call was placed to Farm Bureau’s
counsel, and Rohrbaugh’s counsel was advised that no one would
be appearing on behalf of Farm Bureau. As anticipated by
Rohrbaugh’s counsel, the Allstate designee could not
differentiate the reasons for the payments made by Allstate to
Dr. Ammerman simply by looking at a computer printout and
testified that if she had access to the Allstate computer
system, she could identify the reason for particular payments.
Rohrbaugh’s counsel sought to move the deposition to a
1
The deposition was originally noticed for May 8, 2000.
The motion to quash was filed on May 5, 2000, but the notice
of the motion to quash was not filed until May 22, 2000. The
hearing on the motion to quash occurred on June 2, 2000 and on
that date, Judge Ney ordered the deposition to proceed on June
6, 2000.
4
location where the witness could obtain information from the
Allstate computer system; however, counsel for Allstate
refused. At that time, Rohrbaugh’s counsel indicated that he
would call Judge Ney for a ruling on the matter. Lombard’s
counsel left the deposition before Judge Ney was called,
stating, “I’m going to let you guys do whatever you’re doing.
I’m going to excuse myself, because I have a bunch of other
things.” The deposition was still in progress, but Judge Ney
was presiding over other matters and was not available.
Rohrbaugh’s counsel stated that the deposition would remain
open until a ruling could be obtained from Judge Ney.
Later that day Judge Ney became available by telephone
and, in a conference call with Rohrbaugh’s counsel and
Allstate’s counsel, Judge Ney indicated that he would order
Allstate to make the designated witness available at a
computer terminal where the information sought could be
obtained. Allstate’s counsel remained opposed to this
solution and offered the alternative of stipulating to the
accuracy of the amounts paid to Dr. Ammerman and “agreed not
to attempt to differentiate between the services for which
they were made.” Instead of ordering the continuation of the
deposition at a computer terminal, Judge Ney accepted
Allstate’s alternative solution and, in an opinion letter
5
rendered after the trial in this matter, Judge Ney summarized
his ruling as follows:
Finally, the Court’s ruling as to the
computer terminal was not in any manner a
sanction but rather an order compelling
discovery. While the details of the written
Order of July 21st, 2000 reflect the agreement
between counsel for plaintiff and Allstate as
to the limitations placed on Dr. Ammerman’s
testimony insofar as a differentiation of the
payments made to him by Allstate, those terms
were not ordered by the Court. They resulted
solely from the agreement between counsel when
faced with the consequences of the Court’s
order compelling discovery by the use of a
computer terminal.
Judge Ney did not address whether or how the relationship
between Dr. Ammerman and Allstate could be explored at the
trial. Allstate stipulated that it had paid Dr. Ammerman
$106,520 in 1998, and $104,971 in 1999. The reasons for these
payments were not differentiated.
The trial of this matter was held before the Honorable
Dennis J. Smith. At trial, Rohrbaugh was permitted to
deliberately inject the concept of insurance into the case by
cross-examining Dr. Ammerman on potential bias concerning the
total amount of money he received from Allstate. Among other
questions, Rohrbaugh asked Dr. Ammerman, “[i]n fact, Doctor,
Allstate Insurance Company, who is the insurance company for
the defendant in this case, has paid you in 1999, $104,971,
right?” Rohrbaugh’s counsel continued, “[i]n 1998, if I told
6
you that Allstate Insurance Company had paid you $106,520, the
same answer, I’m assuming.”
In Dr. Ammerman’s responses, he confirmed the amounts
paid, but, contrary to Judge Ney’s ruling, nonetheless
testified that he did not know in what capacity he received
the money. He further stated that he could not speak to the
“veracity [of Allstate’s document listing the payments] one
way or the other, because [he] didn’t produce it” and
suggested that the “document breaks out patients [he had]
treated.”
This cross-examination concerning bias was permitted over
vigorous objection from Lombard and Farm Bureau. The trial
court rejected an alternative method of conducting cross-
examination that would have made reference to forensic
examinations, but not the existence of insurance. Prior to
Dr. Ammerman’s testimony, the trial court gave a cautionary
instruction to the jury that it was not to consider the
existence of insurance for any purpose other than the possible
bias of Dr. Ammerman. 2
2
The trial court stated the following prior to the direct
examination of Dr. Ammerman:
Ladies and gentlemen, the cross
examination of Dr. Ammerman will ask
questions intended to elicit evidence
regarding payments made to Dr. Ammerman by
7
In closing argument, Rohrbaugh’s counsel was permitted to
mention the relationship between Dr. Ammerman and Allstate for
the purpose of arguing that Dr. Ammerman’s testimony was
biased. At the conclusion of the trial, the jury returned a
verdict in favor of Rohrbaugh in the amount of $125,000. In
post-verdict motions, Lombard and Farm Bureau requested Judge
Ney to reconsider his pretrial ruling concerning stipulations.
The motion was denied. Lombard and Farm Bureau also filed
motions asking Judge Smith to declare a mistrial, set aside
the jury’s verdict, and order a new trial. 3 These motions
were denied as well.
On appeal, Lombard and Farm Bureau allege that the trial
court erred in permitting Rohrbaugh to impeach Dr. Ammerman
with the purposeful mentioning of liability insurance.
Additionally, Lombard alleges that the trial court erred in
a liability insurance company which
provides coverage to the defendant.
You may only consider this as
evidence of possible bias on the part of
Dr. Ammerman. The fact of the existence
of any liability insurance in this case is
not to be considered by you in any way in
determining whether the defendant was
negligent, whether any negligence of the
defendant proximately caused any injury to
the plaintiff, or the amount of any
judgment you might ultimately award.
3
Lombard filed a “Motion to Declare a Mistrial, Set
Aside the Verdict and Grant a New Trial,” while Farm Bureau
filed a “Motion to Set Aside Jury’s Verdict and Motion for New
Trial.”
8
“disallowing a jury instruction offered by the Defendant’s
counsel that would properly have warned the jury against
taking an assertion of fact contained in Rohrbaugh’s counsel’s
cross-examination as evidence of that fact.” Finally, Farm
Bureau alleges that the trial court erred in enforcing, at
trial, the pretrial stipulation between Allstate and Rohrbaugh
concerning the amounts paid to Dr. Ammerman and the agreement
not to differentiate between forensic payments and medical
care payments at trial.
II. Analysis
A. Evidence of Insurance
Initially we consider the trial court’s decision allowing
presentation of evidence of insurance. With regard to the
admission of evidence, the responsibility for balancing the
competing considerations of probative value and prejudice
rests in the sound discretion of the trial court. The
exercise of that discretion will not be disturbed on appeal in
the absence of a clear abuse. Coe v. Commonwealth, 231 Va.
83, 87, 340 S.E.2d 820, 823 (1986).
The trial court’s decision to permit Rohrbaugh to
deliberately interject insurance into the trial involves the
tension between two established rules concerning admission of
evidence and cross-examination of witnesses. We have
previously stated that, “evidence as to whether defendant did
9
or did not carry liability insurance was irrelevant and
inadmissible. This holding is based on the theory that such
evidence tends to unduly influence the jury in behalf of the
plaintiff.” Highway Express Lines v. Fleming, 185 Va. 666,
672, 40 S.E.2d 294, 297 (1946). At one time, we adhered to
the rule that “it is reversible error not to grant a mistrial
where the reference to insurance is deliberate and for
improper purposes.” Davis v. Maynard, 215 Va. 407, 408, 211
S.E.2d 32, 33 (1975). However, we recognized in Medina v.
Hegerberg, 245 Va. 210, 427 S.E.2d 343 (1993), that:
Generally, any comment deliberately made
to inform the jury that a defendant is insured
against an accident constitutes reversible
error. The policy underlying this rule is to
insure that a jury does not award damages
unrelated to any finding of fault because it is
aware that insurance coverage exists and that
the insurer, rather than the named defendant,
would pay the damages award. The mention of
insurance constitutes reversible error
requiring a new trial when the comment probably
has misled or prejudiced the jury.
Nevertheless, this rule is not absolute.
For example, when the insurer is the named
defendant in a direct action authorized by the
insurance policy, the insurer has waived any
claim of prejudice. Likewise, when sufficient
cautionary instructions are made by the court
following a mention of insurance, we generally
will not hold comments regarding insurance
coverage to be reversible error. And, mention
of insurance may not be reversible error where
there is an otherwise fair trial and
substantial justice is done.
10
Id. at 213-14, 427 S.E.2d at 345-46 (internal citations and
quotation marks omitted).
The general rule prohibiting the mention of insurance in
such cases may collide with another rule concerning a
litigant’s right to cross-examine a witness concerning
interest, bias, prejudice, credibility, or relationship to the
parties. Although the “trial court has discretion to limit
the scope of cross-examination which is for the purpose of
establishing bias,” such discretion must not be exercised to
prohibit proper cross-examination. Norfolk & Western Ry. Co.
v. Sonney, 236 Va. 482, 488, 374 S.E.2d 71, 74 (1988).
In Fleming, a paid employee of the defendant’s insurance
carrier who had interviewed several of plaintiff’s witnesses
immediately after the accident, testified at trial in
contradiction of plaintiff’s witnesses. The trial court
permitted plaintiff, on cross-examination, to reveal to the
jury the potential bias of defendant’s witness by establishing
the employment relationship between the witness and the
insurance carrier for the defendant. Id. at 670, 40 S.E.2d at
297. In affirming the trial court’s judgment, we observed:
This court has consistently held that the
vital issue in this class of actions is whether
defendant was guilty of negligence that was the
proximate cause of the injury and that evidence
as to whether defendant did or did not carry
liability insurance was irrelevant and
inadmissible. This holding is based on the
11
theory that such evidence tends to unduly
influence the jury in behalf of the plaintiff.
It did not appear in any of the Virginia
cases cited that the fact that defendant
carried liability insurance was admissible on
any ground other than that such carrier was the
party ultimately liable. The evidence in the
case at bar was clearly admissible under the
well settled rule that a litigant has a right
to establish facts and circumstances tending to
show the interest, bias or prejudice of a
hostile witness. Both rules cannot be applied
in this case. The facts tending to show the
interest or bias of the witness cannot be
admitted without establishing the fact that the
defendant carried liability insurance. “In
this Scylla-and-Charybdis dilemma most Courts
have attempted to concede something to each of
the opposing principles, i.e. by allowing the
questions when properly asked” either of a
juror on his voir dire or of a witness to
establish his interest or bias. 2 Wigmore on
Evidence, 3 Ed., sec. 282a.
The activity of this witness in
preparation for the trial and his testimony on
direct examination made it imperative for the
jury to know his full relation to the named
defendant and the insurance carrier. He, as a
paid employee, visited the scene a few days
after the accident. He interviewed numerous
witnesses and reduced their statements to
writing. In the trial he was introduced by the
defendant in an attempt to discredit or impeach
the testimony of numerous witnesses introduced
by plaintiff. The jurors, in deciding whether
defendant was negligent, had to determine what
weight, if any, they must give to the testimony
of the agent for the insurance carrier. If
they accepted his testimony, they had to
discard the testimony of many of plaintiff’s
witnesses. Under these circumstances, the
jurors were entitled to know his interest or
bias and his relation to the party ultimately
liable. As Judge Soper said, in Sprinkle v.
Davis, 111 F.(2d) 925, 128 A.L.R. 1101 [(4th
Cir. 1940)], such evidence should be admitted
for the value the jury may accord to it. The
12
trial court, if requested by proper
instruction, should inform the jury of the
purpose for which such evidence was admitted.
Id. at 672-73, 40 S.E.2d at 297-98 (internal case citations
omitted).
Although the mention of insurance was not an issue, we
encountered a similar dilemma in Henning v. Thomas, 235 Va.
181, 366 S.E.2d 109 (1988), where, in a medical negligence
case, defendants’ counsel sought to cross-examine plaintiff’s
expert witness concerning how he became involved in the case.
The trial court would not permit cross-examination other than
upon the narrow question of whether the witness was being paid
to give his testimony. Id. at 187, 366 S.E.2d at 112. The
defendants claimed that the trial court erred in prohibiting
them from revealing to the jury that plaintiff’s expert
witness was employed by a nationwide company engaged in the
business of providing testimony in medical negligence cases.
Agreeing with defendants, we reversed, noting that:
The bias of a witness, like prejudice and
relationship, is not a collateral matter. The
bias of a witness is always a relevant subject
of inquiry when confined to ascertaining
previous relationship, feeling and conduct of
the witness. . . . [O]n cross-examination great
latitude is allowed and . . . the general rule
is that anything tending to show the bias on
the part of a witness may be drawn out.
. . .
The defendant doctors were entitled to
attempt to persuade the jury that [plaintiff’s
witness] was a “doctor for hire,” who was part
13
of a nationwide group that offered themselves
as witnesses, on behalf of medical malpractice
plaintiffs. Once the jury was made aware of
this information it was for the jury to decide
what weight, if any, to give to [the witness’]
testimony. This was a classic case of an
effort to establish bias, prejudice, or
relationship.
Id. at 188-89, 366 S.E.2d at 113 (internal citations
omitted) (emphasis removed).
In the case before us today, the trial court did not err
in permitting Rohrbaugh to cross-examine Dr. Ammerman
concerning his relationship with Allstate. Dr. Ammerman had a
substantial connection with Allstate, including receipt of
over $100,000 per year in payments for the years 1998 and
1999. 4 Lombard and Farm Bureau argue that because Dr. Ammerman
is not an employee of Allstate as the witness was in Fleming,
Rohrbaugh should not have been permitted to mention insurance
in cross-examination. Additionally, Lombard and Farm Bureau
argued at trial that Rohrbaugh should be limited in cross-
examination to questions relating to frequency of testimony
and whether the witness testified more or less frequently for
defendants rather than plaintiffs. The trial court correctly
4
Although there was no differentiation between payments
for medical services and payments for forensic services,
Rohrbaugh was not responsible for the inability to distinguish
between reasons for payment at trial. Rohrbaugh sought
through proper discovery to determine precisely how much Dr.
Ammerman was paid by Allstate for forensic services. Allstate
14
refused each of these proposed limitations upon cross-
examination.
A witness’ status as an employee of an insurance company
providing coverage to a party is evidence of potential bias,
but the absence of an employer-employee relationship does not
define the limits of cross-examination. At issue is the
potential for bias because of the witness’ interests in the
case, not artificial labels. Similarly, the suggestion that
Rohrbaugh be limited to questions about frequency of forensic
testimony and identification of Dr. Ammerman’s preference for
testifying on behalf of plaintiffs or defendants misses the
crux of the issue, namely, whether there is a substantial
connection between the witness and a particular insurance
carrier that has a financial interest in the outcome of the
case.
A majority of jurisdictions addressing this issue apply a
“substantial connection” analysis to determine whether the
relationship between a party and a witness, particularly an
expert witness, is such as to make proof of their financial
dealings sufficiently probative to outweigh prejudice that
arises from knowledge that the party carries liability
resisted such discovery and subsequently entered into a
stipulation, accepted by the trial court.
15
insurance. 5 See Otwell v. Bryant, 497 So.2d 111 (Ala. 1986);
Bonser v. Shainholtz, 3 P.3d 422 (Colo. 2000); Hawes v. Chua,
769 A.2d 797, 810 (D.C.App. 2001); Mills v. Grotheer, 957 P.2d
540 (Ok. 1998); Yoho v. Thompson, No. 25273, 2001 WL 289788
(S.C. Mar. 26, 2001). As the Colorado Supreme Court noted in
Bonser, “[t]he substantial connection analysis looks to
whether a witness has ‘a sufficient degree of “connection”
with the liability insurance carrier to justify allowing proof
of this relationship as a means of attacking the credibility
of the witness.’ ” Bonser, 3 P.3d at 425 (quoting Otwell, 497
So.2d at 115).
In a very recent case, remarkably similar to the one before
us today, the Supreme Court of South Carolina considered the
propriety of permitting cross-examination of a defendant’s
expert witness concerning the witness’ relationship with the
insurance carrier providing underinsured liability coverage. 6
5
Some courts have applied a similar analysis without
using the label “substantial connection.” See Barsema v.
Susong, 751 P.2d 969, 974 (Ariz. 1988); Kelley v. Wiggins, 724
S.W.2d 443, 446-47 (Ark. 1987); Golden v. Kishwaukee Community
Health Servs. Ctr., Inc., 645 N.E.2d 319, 325-26 (Ill.App.Ct.
1994); Strain v. Heinssen, 434 N.W.2d 640, 643 (Iowa 1989);
Wallace v. Leedhanachoke, 949 S.W.2d 624, 627-28 (Ky.Ct.App.
1996); Davila v. Bodelson, 704 P.2d 1119, 1126 (N.M.Ct.App.
1985); Cerasuoli v. Brevetti, 166 A.D.2d 403, 404
(N.Y.App.Div. 1990).
6
South Carolina rules of evidence 403 and 411 are
patterned after the Federal Rules of Evidence. Although we
have not and do not adopt the Federal Rules, the operative
16
The witness did “a fair amount of consulting work” with the
carrier and “ten to twenty percent of [the witness’] practice
consisted of reviewing records for insurance companies.”
Yoho, 2001 WL 289788, at *1. The witness gave lectures to the
carrier’s agents and adjusters. Id. at *3. Additionally,
“his yearly salary was based on the amount of money his
practice earned, which included his consulting work.” Id. at
*1. Holding that “the trial court erred in refusing to allow
Yoho to cross-examine [the expert witness] about his
relationship with [the carrier],” the South Carolina Supreme
Court rejected the same alternative suggestion made by Lombard
and Farm Bureau in the case before us. Id. at *3. Rejecting
the argument that any error was harmless, the South Carolina
Supreme Court stated:
Although the court gave Yoho permission to
discuss [the expert witness’] bias by using
generic terms such as “defense,” “defendants,”
and “defense lawyer,” Yoho sought to show
specifically that [the witness] consulted for
[the carrier] and lectured [the carrier’s] agents
and adjusters. This evidence is qualitatively
different from showing [the expert witness] works
for “the defense” generally, and is much more
indicative of possible bias in favor of the
defendant.
Id.
principles of law involved in Yoho have been well-established
in Virginia case law.
17
We reaffirm the general principle that evidence as to
whether a defendant did or did not carry liability insurance
is generally irrelevant and inadmissible in a trial to address
issues of negligence, causation, and damages. However,
consistent with our prior cases and the majority view in the
United States, we hold that testimony concerning liability
insurance may be elicited for the purpose of showing bias or
prejudice of a witness if there is a substantial connection
between the witness and the liability carrier. If a
substantial connection is demonstrated, its probative value
concerning potential bias or prejudice outweighs any prejudice
to the defendant resulting from the jury’s knowledge that the
defendant carries liability insurance. Of course, as the
trial court did in this case, a cautionary instruction to the
jury concerning the limits of the jury’s consideration of the
evidence must be given upon request of a defendant.
Accordingly, we hold that the trial court did not abuse its
discretion in permitting cross-examination of Dr. Ammerman
concerning his relationship with Allstate, and properly
refused to narrow the scope of questioning to exclude any
mention of insurance.
B. Denial of Lombard’s Proposed Cautionary Instruction
Lombard assigns as error the trial court’s refusal to
instruct the jury that questions by Rohrbaugh’s counsel during
18
cross-examination of Dr. Ammerman did not provide evidence of
the matters contained in those questions. Upon review of jury
instructions given or refused at trial, our responsibility is
“to see that the law has been clearly stated and that the
instructions cover all issues which the evidence fairly
raises.” Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d
856, 858 (1982) (citing E. I. DuPont v. Snead’s Amr., 124 Va.
177, 97 S.E. 812 (1919)). Moreover, the proffered instruction
“must be supported by more than a mere scintilla of evidence.”
Gibson v. Commonwealth, 216 Va. 412, 417, 219 S.E.2d 845, 849
(1975). An instruction that is not supported by the evidence,
however, is properly refused. Frye v. Commonwealth, 231 Va.
370, 388, 345 S.E.2d 267, 280 (1986).
At trial, counsel for Lombard requested a cautionary
instruction prior to Dr. Ammerman’s testimony that was
duplicative of the one given with the exception of the
following additional language: “You may not consider the mere
asking of such questions as evidence of the truth of such
payments.” The trial court refused to give Lombard’s
proffered instruction.
It is readily apparent that this assignment of error is
premised upon Lombard’s misunderstanding of the content of
Rohrbaugh’s questions to Dr. Ammerman upon cross-examination.
Repeatedly, on brief and in oral argument, Lombard asserts
19
that Rohrbaugh’s questions referred to payments for forensic
work. A review of the record reveals that Lombard is wrong in
his assessment of what transpired at trial. In accordance
with the pretrial stipulation, Rohrbaugh asked about payments
in general without specific reference to forensic work.
Nonetheless, citing Rakes v. Fulcher, 210 Va. 542, 172 S.E.2d
751 (1970), Lombard argues that the trial court erred in
refusing his instruction concerning the content of counsel’s
questions. We disagree.
In Rakes, the objectionable questions posed by counsel
were prefaced with introductions such as, “[d]o you recall
telling the ***?,” “[d]idn’t you also tell me ***?,” “[d]idn’t
you tell me ***?,” and “[w]hy did you tell me ***?” Id. at
548, 172 S.E.2d at 756. Rejecting this form of questioning as
improper, we stated:
To have permitted the questions in the
proposed form, the court would have in effect
been permitting counsel to testify against [the
witness] without becoming a witness, and this
could have resulted in giving the jury the
impression that the facts assumed by the
questions actually existed. Such a procedure
would have amounted to an unwarranted and
improper attempt to discredit the witness.
Thus we hold that the trial court did not abuse
its discretion in holding that the proposed
cross-examination was improper.
Id. at 548-49, 172 S.E.2d at 757 (internal citation omitted).
20
In stark contrast to Rakes, Rohrbaugh’s counsel asked
questions in proper form for cross-examination. As such, the
questions were “leading” in that they often contained the
answer sought, but permitted Dr. Ammerman to admit or deny the
question. Of great significance, Dr. Ammerman admitted
receipt of the payments from Allstate. The questions of
Rohrbaugh’s counsel concerning payments did not, as suggested
by Lombard, contain reference to forensic work. Accordingly,
the trial court properly refused Lombard’s proffered jury
instruction.
C. Binding Effect of Allstate’s Stipulation
Finally, Farm Bureau maintains that the trial court erred
in permitting Allstate, a non-party, to make a stipulation
binding upon Lombard, Farm Bureau, and Dr. Ammerman when Farm
Bureau did not consent to, nor have knowledge or notice of the
hearing on the stipulation. This assignment of error refers
to the pretrial ruling of Judge Ney that was enforced at trial
by Judge Smith.
The deposition of the Allstate representative was taken
on June 6, 2000, one day before trial. Notice was given to
counsel for Lombard and counsel for Farm Bureau. Pursuant to
Rule 4:5(b) of the Rules of the Virginia Supreme Court, the
notice stated the time and place of the deposition. In
addition, the notice indicated that Rohrbaugh sought to
21
question Allstate’s designee concerning an attached printout
described as “Allstate Insurance Companies IRS Payments List
and Payment Detail for TIN Number 521074671, Washington
Neurosurgical Associates, P.C., and Bruce Ammerman, M.D., for
the period beginning January 1, 1995 to December, 31, 1999.”
The purpose of such a deposition was readily apparent to
defense counsel. Questions about payments made by Allstate to
Dr. Ammerman for a period of five years could only relate to
discovery of information sought for the purpose of impeachment
at trial. Allstate retained counsel separate from counsel
retained for Lombard to defend its interests. Farm Bureau’s
counsel chose not to attend the deposition.
The Allstate designee could not identify certain codes in
the printout relating to the purpose of payments without
access to an Allstate computer terminal. Counsel for Allstate
resisted moving the location of the deposition to a place
where the obvious purpose of the deposition could be
accomplished. Not satisfied, Rohrbaugh’s counsel indicated
that he would call Judge Ney for clarification of the trial
court’s previous order compelling the deposition. Without
waiting for the telephone call to be made to Judge Ney,
counsel for Lombard left the deposition. The deposition,
however, remained pending, and later that day Judge Ney
conducted a conference call with counsel for Rohrbaugh and
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Allstate. Judge Ney indicated that he would order Allstate to
make the witness available at a computer terminal where the
information could be obtained. After Judge Ney’s ruling and
on his own initiative, counsel for Allstate offered the
alternative of stipulating to the accuracy of the amounts paid
by Allstate to Dr. Ammerman. Counsel for Allstate also agreed
that neither Dr. Ammerman nor counsel would attempt to
differentiate between the types of services for which the
payments were made. Judge Ney accepted the stipulation in
lieu of his order with the understanding that neither Dr.
Ammerman nor counsel would discuss the allocation of the
payments.
Rohrbaugh’s counsel had sought to differentiate between
medical payments and forensic payments from Allstate to Dr.
Ammerman for the obvious purpose of impeachment at trial.
Allstate and Farm Bureau had retained Dr. Ammerman for the
purpose of examination of Rohrbaugh and testimony at trial.
When Allstate offered a stipulation as a compromise solution
in response to Rohrbaugh’s attempt to discover precise
information for use at trial, Judge Ney accepted the
stipulation as an alternative to his order. Rule 4:7 of the
Rules of the Virginia Supreme Court provides for use of
depositions in court proceedings “against any party who was
present or represented at the taking of the deposition or who
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had reasonable notice thereof.” Certainly, defense counsel
could not be surprised by the possibility that deposition
testimony could be offered in conformance with the Rules at
trial. Similarly, counsel could not be surprised by the
possibility that pretrial orders could be made during a
deposition and stipulations could be reached that affected
parties with notice of the proceedings. As Judge Ney noted in
his opinion letter:
[C]ounsel for the defendant and the
uninsured motorist carrier were both
properly noticed for the deposition of the
Allstate designee. One chose not to
attend and another chose to leave the
deposition before it concluded, but not
before the dispute which led to the
conference call had begun. As a result,
their complaints about the Court’s ruling
ordering the use of the computer terminal
come too late. They were not present to
object to the Court, and they were also
not present to object to the agreement.
Judge Smith did not err in enforcing at trial a stipulation
reached in a pretrial discovery proceeding where parties had
notice and opportunity to object but chose not to participate.
III. Conclusion
For the reasons stated, we will affirm the judgment of
the trial court.
Affirmed.
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