PRESENT: All the Justices
BRYAN K. GRAHAM
v. Record No. 082292 OPINION BY
JUSTICE BARBARA MILANO KEENAN
September 18, 2009
RANDOLPH B. COOK, ET AL.
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
James H. Chamblin, Judge
In this medical malpractice action, we consider whether the
circuit court erred 1) in permitting the defendants to present
certain evidence from the plaintiff’s treating physicians; 2) in
precluding certain cross-examination of a treating physician by the
plaintiff; and 3) in limiting the plaintiff’s closing argument
regarding x-rays that were admitted into evidence.
In June 2004, Bryan K. Graham fell from the second story roof of
his home, injuring his left hip. Graham sought medical treatment
that same day at an urgent care clinic, where a physician determined
that Graham had a sprained hip and recommended that he use crutches
and take pain medication and muscle relaxants.
About one month later, when Graham’s hip pain persisted, he
consulted Dr. Randolph B. Cook, an orthopaedic surgeon. Dr. Cook
ordered x-rays of Graham’s hip and diagnosed Graham as having a
fracture of the left hip socket. In August 2004, Dr. Cook surgically
repaired the fracture by installing a reconstruction plate secured by
several screws.
After this surgery, Graham continued to experience significant
hip pain. During the following two months, he returned three times
to Dr. Cook, who ordered multiple x-rays and a CT scan of Graham’s
hip. After reviewing the x-rays, Dr. Cook initially concluded that
either one of the screws from the reconstruction plate was “eroding
through the bone,” or that Graham was developing early avascular
necrosis, bone death caused by a lack of blood supply. Dr. Cook
later reviewed the CT scan and stated in his report that the “femoral
head” 1 was developing avascular necrosis that was unrelated to the
possibility of a screw entering the hip joint. Dr. Cook also stated
in his report that he advised Graham that this femoral defect might
require joint replacement surgery.
Graham sought the advice of four additional orthopaedic surgeons
before making a treatment decision. One of these physicians, Dr.
Nigel M. Azer, reviewed Graham’s CT scans and x-rays, and concluded
that “the second most superior screw” was “intraarticular,” meaning
that it protruded into the joint space, and had “eroded the femoral
head.” In February 2005, Dr. Azer performed surgery to remove the
suspected intraarticular screw. About seven months later, in
September 2005, Dr. Thomas P. Gross performed left hip resurfacing
surgery to repair the damage to Graham’s femoral head.
1
The femur is the bone that extends from the pelvis to the knee.
The ball-like “head” of the femur forms the hip joint with the
acetabulum, the cup-shaped socket of the hip bone. Richard Sloane,
The Sloane-Dorland Annotated Medical-Legal Dictionary 5, 64, 281
(1987).
2
In September 2006, Graham filed a complaint alleging medical
negligence against Dr. Cook and his practice group, Center for
Advanced Orthopedic Surgery & Pain Management, PLC (collectively, Dr.
Cook). Graham alleged that Dr. Cook negligently caused a screw to be
placed into Graham’s left hip joint. Graham alleged that this
intraarticular screw caused the erosion of the femoral head that
resulted in the hip resurfacing surgery performed by Dr. Gross.
Graham sought damages for past and future medical expenses, permanent
hip damage, and pain and suffering.
At trial, Dr. Cook presented evidence to support his theory that
the damage to Graham’s femoral head resulted from avascular necrosis.
When Dr. Cook presented the videotaped deposition testimony of Dr.
Gross, Graham objected to a portion of the videotape in which Dr.
Gross read the following statements from his operative report:
On the femoral side, I did not see any gouging of the
femoral head from any hardware. There was a large
area of collapse of the femoral head. [Graham]
clearly had Stage III avascular necrosis as his major
problem.
Graham argued that these statements were inadmissible because they
expressed medical opinions that were not stated within a reasonable
degree of medical probability as required by Code § 8.01-399(B).
Dr. Cook responded that the challenged statements merely
expressed Dr. Gross’ observations that were made during surgery and
were recorded contemporaneously in his operative report. However,
Dr. Cook contended that even if the disputed statements constituted
3
medical opinions as Graham argued, they were opinions held within a
reasonable degree of medical probability. Dr. Cook maintained that
this standard was satisfied when, at the outset of Dr. Gross’
deposition testimony, Dr. Cook’s counsel instructed Dr. Gross to
express only those opinions that he held within a reasonable degree
of medical probability.
The circuit court ruled that Dr. Gross’ statement regarding the
femoral head was “more than an observation” but held that the
preliminary colloquy satisfied the requirements of Code § 8.01-
399(B). On this basis, the circuit court allowed that portion of Dr.
Gross’ testimony to be presented to the jury.
Dr. Cook also presented testimony from two of Graham’s treating
radiologists. Dr. Christopher K. Grady testified regarding his
review of x-rays of Graham’s hip that were taken in August 2005,
after removal of the screw by Dr. Azer and before the hip resurfacing
surgery by Dr. Gross. During this deposition testimony, Dr. Grady
read from his written report, which included the following statement
in a section entitled “Findings:”
There is flattening and small defects in the upper
lateral aspect of the left femoral head which could be
posttraumatic with superimposed osteoarthritis and
subchondral cysts/sclerosis. The possibility of
avascular necrosis is not excluded. (emphasis added)
Dr. Grady’s report also stated, in a section entitled “Impression:”
Mild lateral subluxation of the left femoral head and
mild-moderate osteoarthritis in the left hip.
4
Flattening of the superolateral left femoral head
could also be related to prior trauma and degenerative
change but avascular necrosis cannot be excluded.
(emphasis added)
Graham objected to the admission of these portions of the report and
to Dr. Grady’s deposition testimony regarding avascular necrosis.
Graham argued that avascular necrosis is a medical diagnosis
that must be made within a reasonable degree of medical probability
under Code § 8.01-399(B). Graham maintained that Dr. Grady’s report
merely stated “possibilities,” rather than opinions held within a
reasonable degree of medical probability. Thus, Graham argued, Dr.
Grady’s report and the proffered testimony were inadmissible because
they were irrelevant. The circuit court overruled Graham’s
objections and admitted both the report and the deposition testimony.
Graham also objected to portions of the trial testimony of Dr.
Philip Man, a radiologist who interpreted Graham’s September 2004 CT
scan. Dr. Man stated in his report, in a section entitled
“FINDINGS:”
There is a defect in the anterior aspects of the
femoral head associated with cortical irregularities
as well as diffuse demineralization involving the
femoral head. This raises the suspicion for avascular
necrosis. (emphasis added)
Under a section entitled, “IMPRESSION,” the report stated:
2. Bony defect now seen involving the anterior aspect
of the femoral head associated with cortical
irregularities and demineralization suggesting
fracture and avascular necrosis. (emphasis added)
5
Graham objected to Dr. Man testifying regarding these aspects of his
report, asserting that Dr. Man had stated a diagnosis of avascular
necrosis but had not expressed this conclusion within a reasonable
degree of medical probability.
Outside the presence of the jury, the parties conducted a voir
dire of Dr. Man. Dr. Man testified that his report included
impressions held within a reasonable degree of medical probability.
On cross-examination by Graham, Dr. Man conceded that avascular
necrosis was “one of the many causes for the radiographic findings as
described.” On redirect examination, Dr. Man further explained that
he was merely “trying to report the findings,” and that avascular
necrosis cannot be diagnosed based solely on the results of a CT
scan.
The circuit court overruled Graham’s objection stating,
We’ll let the jury decide. We’ll let Dr. Man testify.
You can cross-examine him all you want. I think this
might be characterized as an observation as opposed to
a diagnosis.
The circuit court also admitted Dr. Man’s September 2004 report into
evidence.
Graham raised an additional objection to testimony by Dr. Man
regarding his habit or routine of checking for intraarticular
hardware when interpreting CT scans. The circuit court conducted a
bench conference during which the parties had the following exchange
with the court:
6
[COUNSEL FOR GRAHAM]: There is nothing in the
radiology report regarding hardware, period. . . .
[COUNSEL FOR COOK]: As [Counsel for Graham] knows from
the discovery deposition, the witness will testify,
has testified that he has a regular habit, routine or
practice when he does CT scans of the hip. . . . that
includes looking for metallic fragments in the joint.
[Code §] 8.01-397 allows a physician witness to . . .
rely upon his habit, routine or practice and to
establish that his actions on a given date were in
accordance or conformance with that habit, routine, or
practice, and that’s by statute.
. . . .
[COUNSEL FOR GRAHAM]: That would be an opinion that’s
not been designated.
THE COURT: How about being honest with these people
over here and tell them that was his routine to look.
He says that that’s his routine, he does not have any
specific recollection of doing it and it’s not in his
report one way or the other, and let the jury decide.
[COUNSEL FOR GRAHAM]: I don’t have a problem with
that.
Dr. Man later testified that in interpreting a CT scan of a
joint, radiologists routinely check for hardware in the joint. Dr.
Man stated that he had no reason to think that he deviated from this
routine practice in reviewing Graham’s CT scan from September 2004.
Dr. Man explained that had he observed any hardware in the joint, he
would have indicated that finding in his report. Dr. Man further
testified that he knew that he looked for hardware in the hip joint
because his report stated, “No definite loose bodies are identified.”
7
During cross-examination of Dr. Man, Graham’s counsel identified
certain CT scans and anatomical drawings. He asked Dr. Man whether
these items indicated the presence of an intraarticular screw, and
what written notations Dr. Man would have made if he had found such a
screw. Dr. Cook objected to this line of questioning on the ground
that Graham was seeking to elicit a “present-day” opinion of the
scans and drawings. Dr. Cook argued that Graham effectively was
seeking an expert opinion from Dr. Man, who had not been designated
as an expert witness. The circuit court sustained Dr. Cook’s
objection and limited Graham’s cross-examination to Dr. Man’s report
of September 2004, which Dr. Man had prepared contemporaneously with
his interpretation of Graham’s CT scan.
At the conclusion of the evidence, counsel made closing
arguments. Graham’s counsel invited the jury to examine the x-rays
of Graham’s hip that had been admitted into evidence, and argued that
the jury could compare the various x-rays and measure the growth of
the defect in the femoral head. Dr. Cook objected, stating that
because the record contained no evidence that the several x-rays were
taken using the same magnification, they could not be compared in the
manner suggested by Graham’s counsel. Dr. Cook further asserted that
the jury must rely on expert testimony to determine “those things
medical in the case.” The circuit court sustained Dr. Cook’s
objection.
8
The jury returned a verdict in favor of Dr. Cook, and the
circuit court entered final judgment in accordance with the jury
verdict. Graham appeals.
In his first assignment of error, Graham argues that the circuit
court erred when it permitted Dr. Grady and Dr. Man to express
medical opinions that were not stated within a reasonable degree of
medical probability. Graham further contends, with regard to Dr.
Gross’ testimony, that the preliminary directive by Dr. Cook’s
counsel that Dr. Gross state only those opinions held within a
reasonable degree of medical probability, was insufficient to
establish a foundation for the admission of his testimony regarding
avascular necrosis and the absence of femoral head gouging. Graham
asserts that because Dr. Gross merely was asked to read from his
operative report, he would not necessarily have been aware whether
his response would have constituted the expression of a medical
opinion. Graham asserts that the admission of these challenged
portions of the medical testimony was prejudicial.
In response, Dr. Cook argues that the disputed testimony by Drs.
Gross, Grady, and Man satisfies the requirements of Code § 8.01-
399(B), because that testimony did not involve the rendering of
diagnoses but merely addressed observations contemporaneously
documented in the physicians’ medical reports. Dr. Cook also notes
that Dr. Gross specifically was instructed at the beginning of his
9
testimony that he should state only those opinions he held within a
reasonable decree of medical probability.
In considering these arguments, our analysis is guided by our
decisions in King v. Cooley, 274 Va. 374, 650 S.E.2d 523 (2007);
Holmes v. Levine, 273 Va. 150, 639 S.E.2d 235 (2007), and Pettus v.
Gottfried, 269 Va. 69, 606 S.E.2d 819 (2005). In those cases, we
addressed the admissibility under Code § 8.01-399(B) of certain
testimony by treating physicians. Code § 8.01-399(B) states, in
relevant part:
If the physical or mental condition of the patient is
at issue in a civil action, the diagnoses, signs and
symptoms, observations, evaluations, histories, or
treatment plan of the practitioner, obtained or
formulated as contemporaneously documented during the
course of the practitioner's treatment, together with
the facts communicated to, or otherwise learned by,
such practitioner in connection with such attendance,
examination or treatment shall be disclosed but only
in discovery pursuant to the Rules of Court or through
testimony at the trial of the action. . . . Only
diagnosis offered to a reasonable degree of medical
probability shall be admissible at trial.
In Cooley, we considered the testimony of a treating physician,
Dr. Robert Harry, who provided medical care to the plaintiff
following surgery to repair a leak in her intestine. 274 Va. at 376,
650 S.E.2d at 525. Dr. Harry stated that he reached the following
conclusion during his treatment of the plaintiff: “I felt she was
suffering from aspiration pneumonia.” Id. at 377, 650 S.E.2d at 525.
The plaintiff conceded that this conclusion, which was
10
contemporaneously documented in Dr. Harry’s medical report, was
stated within a reasonable degree of medical probability. Id. at
377, 650 S.E.2d at 525. However, the circuit court excluded the
testimony, ruling that Dr. Harry, who had not been designated as an
expert witness, had impermissibly rendered an expert opinion. Id. at
377, 650 S.E.2d at 525. Although the defendant’s challenge to this
ruling on appeal did not present the question whether Dr. Harry’s
testimony constituted a medical diagnosis, we characterized the
challenged testimony as “an actual diagnosis” and not “merely a
factual impression.” Id. at 379, 650 S.E.2d at 526.
In Holmes, we considered the medical testimony of a treating
physician to determine whether that testimony involved the rendering
of a diagnosis. The treating urologist had stated in her report that
she “did not think that an occasional red blood cell would qualify
for microscopic hematuria.” 273 Va. at 157, 639 S.E.2d at 238. We
held that this statement was not a medical diagnosis but was merely
the urologist’s “impression,” formed during the plaintiff’s
treatment, that the presence of red blood cells was not clinically
significant. Id. at 162, 639 S.E.2d at 241.
Similarly, in Pettus, we held admissible under Code § 8.01-399 a
treating cardiologist’s testimony that a patient’s change in mental
status “could have been” a central nervous system problem. 269 Va.
at 77-78, 606 S.E.2d at 824-25. Although the cardiologist’s
statement was not rendered within a reasonable degree of medical
11
probability, we held that the testimony was admissible because it did
not constitute a diagnosis. Id. at 78, 606 S.E.2d at 825. We
characterized the testimony as “factual in nature,” and determined
that the testimony merely explained the physician’s impressions and
conclusions formed while treating the patient. Id. at 77-78, 606
S.E.2d at 824-25.
In applying the requirements of Code § 8.01-399(B) to the above
testimony in Cooley, Holmes, and Pettus, we have illustrated the
distinction between medical testimony that conveys impressions that
are “factual in nature” and testimony that imparts a medical
“diagnosis,” which under Code § 8.01-399(B) must be stated within a
reasonable degree of medical probability. The present case presents
another opportunity to draw this distinction.
In this context, we consider the challenged testimony of
Graham’s two radiologists, Dr. Grady and Dr. Man. At issue in Dr.
Grady’s report and in his deposition testimony admitted at trial were
statements that there was a “possibility of avascular necrosis,” and
that “avascular necrosis cannot be excluded.” Similarly, Dr. Man
testified over Graham’s objection that his examination had raised a
“suspicion for avascular necrosis,” and that Graham’s bony defect
suggested “fracture and avascular necrosis.” In testimony that was
not challenged, Dr. Man further explained that avascular necrosis
cannot be diagnosed based solely on the results of a CT scan, and
that other conditions could manifest the findings he described.
12
We conclude that the challenged statements made by Dr. Grady and
Dr. Man were factual in nature and related the physicians’
impressions and conclusions formed when treating Graham. As factual
impressions formed during these doctors’ treatment of Graham, the
challenged findings are analogous to the statement from the treating
cardiologist in Pettus that the patient’s change in mental status
“could have been” a central nervous system problem, 269 Va. at 77-78,
606 S.E.2d at 824-25, and the statement from the treating urologist
in Holmes that she “did not think that an occasional red blood cell
would qualify for microscopic hematuria.” 273 Va. at 157, 639 S.E.2d
at 238.
The statements by Dr. Grady and Dr. Man did not constitute
diagnoses, because the statements did not purport to identify
specifically the cause of Graham’s health condition based on his
signs and symptoms. See Cooley, 274 Va. at 379, 650 S.E.2d at 526;
Combs v. Norfolk & Western Ry. Co., 256 Va. 490, 496-97, 507 S.E.2d
355, 358-59 (1998). Therefore, because the statements of Dr. Grady
and Dr. Man did not impart a diagnosis, the statements were
admissible under Code § 8.01-399(B), regardless whether they were
stated within a reasonable degree of medical probability.
Accordingly, we conclude that the circuit court did not err in
admitting the challenged testimony from Dr. Grady and Dr. Man.
Dr. Gross’ testimony, also challenged by Graham, included a two-
part statement that he “did not see any gouging of the femoral head
13
from any hardware,” and that Graham “clearly had Stage III avascular
necrosis as his major problem.” In considering the admission of
these two separate parts of Dr. Gross’ testimony, we again draw a
clear distinction between a physician’s factual impressions and the
rendering of a diagnosis.
Dr. Gross’ statement that he “did not see any gouging of the
femoral head from any hardware” was admissible as a factual
impression formed from observations he made during Graham’s surgery
and recorded in his postoperative report. Thus, like the physicians’
statements from Holmes and Pettus quoted above, Dr. Gross’
impressions regarding Graham’s femoral head were factual and in the
nature of an evaluation, rather than the rendering of a diagnosis
specifically identifying the cause of Graham’s health condition based
on his signs and symptoms. See Code § 8.01-399(B); Cooley, 274 Va.
at 379, 650 S.E.2d at 526; Combs, 256 Va. at 496-97, 507 S.E.2d at
358-59. Accordingly, the circuit court properly admitted this
evidence under Code § 8.01-399(B), regardless whether it was stated
within a reasonable degree of medical probability.
In contrast, Dr. Gross’ testimony that Graham “clearly had Stage
III avascular necrosis as his major problem,” was the rendering of a
diagnosis because that statement purported to identify specifically
the cause of Graham’s health condition. See Cooley, 274 Va. at 379,
650 S.E.2d at 526; Combs, 256 Va. at 496-97, 507 S.E.2d at 358-59.
Thus, we are presented with the threshold question whether this
14
testimony satisfied the requirement of Code § 8.01-399(B) that only a
diagnosis offered within a reasonable degree of medical probability
is admissible at trial.
Before Dr. Gross gave this and other answers concerning Graham’s
condition, Dr. Cook’s counsel stated, “Now, Doctor, some of my
questions may or may not require medical opinion, and if your answer
does include medical opinion, I would ask you only give such opinion
if you hold it within a reasonable degree of medical probability.”
Dr. Gross responded, “Fifty-one percent.”
Although Graham now asserts that this prefatory exchange between
Dr. Cook’s counsel and Dr. Gross provided an insufficient foundation
for the admission of Dr. Gross’ diagnosis of avascular necrosis,
Graham failed to raise this objection when the questions were posed
to Dr. Gross and when Dr. Gross responded. Instead, Graham objected
to Dr. Gross’ testimony regarding avascular necrosis on the basis
that “[i]t’s an opinion, and it’s not contemporaneously recorded in
his notes.”
Because Graham failed to challenge at the deposition the form of
the questions posed by Dr. Cook’s counsel or whether Dr. Gross’
diagnosis was stated within a reasonable degree of medical
probability, we will not consider those issues here. Rule
4:7(d)(3)(B), which addresses the taking of deposition testimony,
provides in relevant part:
15
Errors and irregularities occurring at the oral examination
. . . in the form of the questions or answers . . . and errors
of any kind which might be obviated, removed, or cured if
promptly presented, are waived unless seasonable objection
thereto is made at the taking of the deposition.
We apply the plain language of this rule. Thornton v. Glazer, 271
Va. 566, 570, 628 S.E.2d 327, 328 (2006); Lifestar Response of Md.,
Inc. v. Vegosen, 267 Va. 720, 724, 594 S.E.2d 589, 591 (2004);
Mechtensimer v. Wilson, 246 Va. 121, 122, 431 S.E.2d 301, 302 (1993).
This provision requires that during a deposition, when an error
in the form of a question by counsel or of an answer given by a
witness can be cured by a timely objection, the objection must be
stated timely or will be deemed waived. The issues that Graham
raises here, regarding the form of the questions to Dr. Gross and
whether his diagnosis was stated within a reasonable degree of
medical probability, could have been cured by timely objections at
the time the deposition testimony was taken. Thus, we do not
consider the merits of Graham’s argument regarding the adequacy of
the prefatory exchange or of Dr. Gross’ testimony about avascular
necrosis. See Rule 4:7(d)(3)(B).
We next consider Graham’s contention that the circuit court
erred in permitting Dr. Man to testify about his habit of checking
for hardware when reviewing a CT scan of a patient’s joint. At
trial, Graham objected to this testimony under Code § 8.01-399(B), on
the ground that the testimony stated an opinion not contemporaneously
documented in Dr. Man’s report. On appeal, however, Graham advances
16
an additional argument addressing Dr. Cook’s contention at trial that
evidence of Dr. Man’s habit or routine was admissible under Code
§ 8.01-397.1. 2 Graham now contends that Code § 8.01-397.1, which
provides for the admission of evidence of a person’s habit or
routine, does not obviate the more specific provision of Code § 8.01-
399(B) requiring contemporaneous documentation of a treating
physician’s testimony.
In response, Dr. Cook asserts that Graham’s challenge to the
admission of this testimony is barred procedurally because Graham did
not adequately preserve his objection to the circuit court’s proposed
method for questioning Dr. Man on this subject. We agree with Dr.
Cook’s contention.
The main purpose of requiring timely and specific objections to
testimony is to allow the circuit court an opportunity to address the
issues presented, thereby avoiding unnecessary appeals and reversals
of the circuit court’s judgment. Nusbaum v. Berlin, 273 Va. 385,
2
Code § 8.01-397.1 states,
A. Admissibility. Evidence of the habit of a person or of the
routine practice of an organization, whether corroborated or not
and regardless of the presence of eye witnesses, is relevant to
prove that the conduct of the person or organization on a
particular occasion was in conformity with the habit or routine
practice. Evidence of prior conduct may be relevant to rebut
evidence of habit or routine practice.
B. Habit and routine practice defined. A "habit" is a person’s
regular response to repeated specific situations. A "routine
practice" is a regular course of conduct of a group of persons or
an organization in response to repeated specific situations.
17
402-03, 641 S.E.2d 494, 503 (2007); Riverside Hospital, Inc. v.
Johnson, 272 Va. 518, 526, 636 S.E.2d 416, 420 (2006); Johnson v.
Raviotta, 264 Va. 27, 33, 563 S.E.2d 727, 731 (2002). A specific,
contemporaneous objection also affords the opposing party an
opportunity to address an issue at a time when the course of the
trial may be altered to avoid the problem presented. Shelton v.
Commonwealth, 274 Va. 121, 126, 645 S.E.2d 914, 916 (2007); Nusbaum,
273 Va. at 406, 641 S.E.2d at 505; Wright v. Norfolk & W. Ry. Co.,
245 Va. 160, 168, 427 S.E.2d 724, 728 (1993).
In addition, when a timely objection is made, a party may not
later abandon that objection during trial and attempt to reassert the
same objection on appeal. A party will be held to have waived a
timely objection if the record affirmatively shows that he has
abandoned the objection or has shown by his conduct the intent to
abandon that objection. Helms v. Manspile, 277 Va. 1, 6, 671 S.E.2d
127, 129 (2009); Shelton, 274 Va. at 127-28, 645 S.E.2d at 917; King
v. Commonwealth, 264 Va. 576, 581, 570 S.E.2d 863, 865-66 (2002);
Chawla v. BurgerBusters, Inc., 255 Va. 616, 623, 499 S.E.2d 829, 833
(1998).
Here, Graham did not object at trial to Dr. Man’s testimony on
the basis that Code § 8.01-397.1 does not permit the admission of
such testimony. Therefore, this part of his argument is barred on
appeal by Rule 5:25. Nusbaum, 273 Va. at 406, 641 S.E.2d at 505.
18
We further conclude that while Graham initially objected at
trial on the basis that Dr. Man’s testimony about his habit or
routine was an opinion not contemporaneously documented in his
report, Graham later affirmatively abandoned that objection. After
the circuit court suggested that the parties should “be[] honest”
with the jury and let the jury decide the import of Dr. Man’s
testimony regarding his habit or routine, Graham responded, “I don’t
have a problem with that.” By this affirmative statement, Graham
informed the circuit court and Dr. Cook that Graham no longer opposed
the admission of the testimony at issue. Therefore, we do not reach
the merits of Graham’s initial argument regarding the admission of
this testimony during Dr. Cook’s direct examination of Dr. Man. See
Helms, 277 Va. at 6, 671 S.E.2d at 129; Shelton, 274 Va. at 127-28,
645 S.E.2d at 917; King, 264 Va. at 581, 570 S.E.2d at 865-66;
Chawla, 255 Va. at 623, 499 S.E.2d at 833.
Graham also argues, however, that the circuit court erred in
limiting his cross-examination of Dr. Man. Graham contends that this
error occurred when the circuit court prevented him from asking Dr.
Man whether the CT film he interpreted showed an intraarticular
screw, and inquiring regarding the notation Dr. Man would have made
had he observed a screw in the hip joint. Graham contends that he
should have been permitted to pursue this line of questioning during
cross-examination because Dr. Cook was permitted to elicit from Dr.
19
Man on direct examination a “present-day” opinion regarding his
reading of the CT scan.
We are unable to consider the merits of this argument because
the issue has not been preserved properly for appeal. When trial
testimony is excluded before it is delivered, an appellate court
lacks a basis for reviewing a circuit court’s evidentiary ruling
unless the record reflects a proper proffer. Cooley, 274 Va. at 380-
81, 650 S.E.2d at 527; Chappell v. Virginia Elec. & Power Co., 250
Va. 169, 173, 458 S.E.2d 282, 284-85 (1995); Whittaker v.
Commonwealth, 217 Va. 966, 968, 234 S.E.2d 79, 81 (1977). Although
Graham’s counsel stated that he intended to cross-examine Dr. Man
regarding his interpretation of the CT scan, and intended to ask Dr.
Man to state the notations he would have made had he observed the
presence of an intraarticular screw, Graham’s counsel did not proffer
the testimony he expected to elicit from Dr. Man. Because Graham
failed to make such a proffer, we are unable to determine whether the
circuit court’s decision to exclude this testimony, if erroneous,
resulted in prejudice to Graham. See Cooley, 274 Va. at 380, 650
S.E.2d at 527; Williams v. Harrison, 255 Va. 272, 277, 497 S.E.2d
467, 471 (1998); Chappell, 250 Va. at 173, 458 S.E.2d at 284-85.
Finally, Graham argues that the circuit court erred when it
prevented him from discussing in his closing argument the x-rays that
were admitted into evidence. Graham contends that he had a right to
20
discuss the x-rays and to invite the jury to engage in a comparison
of this evidence. We disagree with Graham’s argument.
In considering whether the trial court erred in excluding
portions of Graham’s closing argument, we note that determinations
regarding the propriety of argument by trial counsel are matters left
to the sound discretion of the circuit court. Jordan v. Taylor, 209
Va. 43, 51-52, 161 S.E.2d 790, 795-96 (1968); Cohen v. Power, 183 Va.
258, 262, 32 S.E.2d 64, 65 (1944); see Bassett Furniture Indus., Inc.
v. McReynolds, 216 Va. 897, 909, 224 S.E.2d 323, 330 (1976). We will
not interfere with a circuit court’s ruling regarding counsel’s
closing argument unless it appears that the circuit court has abused
its discretion, and that the rights of the complaining litigant have
been prejudiced. Jordan, 209 Va. at 51-52, 161 S.E.2d at 795-96.
Although counsel for a party generally has wide latitude in
making closing arguments, counsel may not argue as evidence in the
case matters that do not appear in the record. See Velocity Express
Mid-Atlantic, Inc. v. Hugen, 266 Va. 188, 198-99, 585 S.E.2d 557, 563
(2003); Atlantic Coast Realty Co. v. Robertson, 135 Va. 247, 263, 116
S.E. 476, 481 (1923). Counsel has no right to testify in the guise
of making argument, nor to assume the existence of evidence that has
not been presented. Velocity Express, 266 Va. at 199, 585 S.E.2d at
563; Atlantic Coast, 135 Va. at 263, 116 S.E. at 481. Rather, the
purpose of closing argument is to draw the jury’s attention to the
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body of evidence that has been admitted into the record and to argue
reasonable inferences that may be drawn from that evidence.
Here, the parties did not present evidence addressing a
comparison of the x-rays. Comparisons of this nature would have
required an evidentiary foundation regarding the magnification and
the angle of the different x-rays. Moreover, such comparisons were
not a matter within the common knowledge and experience of the jury.
In urging the jury to compare the x-rays, Graham asked the jury to
conclude that the defect in the femoral head stopped expanding after
the screw was removed. Such a conclusion, however, could not be
drawn from the x-rays in the absence of expert testimony addressing
this issue. See Perdieu v. Blackstone Family Practice Ctr., Inc.,
264 Va. 408, 420-22, 568 S.E.2d 703, 710-11 (2002); Holmes v. Doe,
257 Va. 573, 578, 515 S.E.2d 117, 120 (1999). Under these
circumstances, in the absence of expert testimony concerning the
comparative features of the x-rays, the circuit court did not abuse
its discretion in limiting this aspect of Graham’s closing argument.
See Jordan, 209 Va. at 51-52, 161 S.E.2d at 795-96.
For these reasons, we will affirm the circuit court’s judgment.
Affirmed.
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