Walsh v. Bennett

Present: 	All the Justices
RAYMOND WILLIAM WALSH
v. Record No. 991993 	OPINION BY JUSTICE CYNTHIA D. KINSER
June 9, 2000
DEAN R. BENNETT, M.D.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Henry E. Hudson, Judge
In this appeal, we decide whether the trial court
abused its discretion when it struck plaintiff’s
designation of his expert witness for failure to comply
with an order to provide discovery. 	Because the court took
this action prior to a deadline that it had previously
established for plaintiff to make his expert witness
available for a deposition, we conclude that the court
abused its discretion and will therefore reverse the
judgment of the circuit court.
FACTS AND PROCEEDINGS
Raymond William Walsh filed an amended motion for
judgment1 against Dr. Dean R. Bennett, an orthopaedic
surgeon, and several other defendants, alleging, inter
alia, that Dr. Bennett was negligent and committed medical
1 Walsh initially filed this case in 1997 but later
nonsuited it. 	After he re-filed his case, the trial court
sustained defendants’ demurrers, and Walsh then filed the
amended motion for judgment.

malpractice in performing orthopaedic surgery on Walsh.2 In
accordance with the trial court’s pre-trial scheduling
order, Walsh designated five expert witnesses. 	Dr. Bennett
objected to Walsh’s designation of expert witnesses on the
basis that the designation was inadequate, and moved to
strike the designation and prevent Walsh from calling the
experts as witnesses at trial. 	The trial court sustained
that motion but granted Walsh leave to amend his
designation of experts. 	The court further ordered that
Walsh would not be permitted to file any additional
amendments to his designation of expert witnesses.
Walsh subsequently submitted a Supplemental
Designation of Expert Witnesses, naming only Dr. John P.
Kostuik as an expert witness.3 Dr. Bennett again objected
and moved to strike the designation on the basis that it
was vague and contained insufficient information.
After a hearing on May 21, 1999, the trial court
denied Dr. Bennett’s motion on the condition that Dr.
Bennett have the opportunity to “adequately depose” Dr.
Kostuik “by the close of business” on June 4, 1999.
2 The trial court subsequently dismissed all the
defendants except Dr. Bennett.
3 In that supplemental designation, Walsh also stated
that he expected to call his treating physicians as
witnesses.
2

Otherwise, the court would grant Dr. Bennett’s motion.
Both parties objected to the court’s order.
Prior to the hearing on May 21, Walsh had requested an
extension of time in which to complete discovery, or
alternatively, a continuance of the scheduled trial date of
June 21, 1999. 	In that request, Walsh asserted that Dr.
Kostuik was essentially unavailable for deposition during
the remaining time prior to the trial date.4 Walsh also
contended that, without the extension, he would not have
sufficient time in which to depose Dr. Bennett’s expert
witnesses prior to trial. 	On May 26, 1999, the trial court
heard Walsh’s motion and denied it.
Also on May 26, Dr. Bennett’s counsel noticed the
discovery deposition of Dr. Kostuik for June 4, commencing
at 1:30 p.m. 	A representative of Dr. Kostuik’s office then
called Dr. Bennett’s counsel and advised that Dr. Kostuik
was available only on June 4 for a deposition from 12:30
until 1:30 p.m. 	The next day, Dr. Bennett again moved to
strike Walsh’s designation of his expert witness because of
Walsh’s alleged failure to make Dr. Kostuik available for a
deposition at a time convenient to Dr. Bennett’s counsel.
4 In his written request, Walsh stated that Dr. Kostuik
was available for deposition only on June 11, 1999.
3

At a hearing on June 2, 1999, regarding Dr. Bennett’s
motion, Walsh stated that Dr. Kostuik could be deposed from
10:00 a.m. until 1:30 p.m. on June 4.5 Dr. Bennett’s
counsel advised the court that she had informed Walsh’s
counsel on several occasions that she was available to take
Dr. Kostuik’s deposition on any day other than that time
frame on June 4. 	However, on a previous occasion, Dr.
Bennett’s counsel had advised the court and Walsh’s counsel
that she was available “at any time other than June 4,
1999, between 12:30-1:30 p.m.”
At that hearing, Walsh also argued that, by making the
doctor available for three and one-half hours, he was in
compliance with the court’s earlier order to provide an
opportunity for Dr. Kostuik to be “adequately depose[d].”6
After Dr. Bennett’s counsel again stated that she was
available to depose Dr. Kostuik anytime other than from
10:00 am to 1:30 p.m. on June 4, the trial court offered to
5 Walsh’s counsel represented that he had previously
informed Dr. Bennett’s counsel that Dr. Kostuik was also
available to be deposed from 10:00 a.m. until 12:30 p.m. on
June 4. 	However, Dr. Bennett’s counsel denied having
received that information.
6 In his last motion to strike, Dr. Bennett claimed
that the court had previously ruled that Dr. Kostuik must
be made available for a minimum of three hours for a
deposition. 	However, no statement to that effect appears
in any of the court’s orders.
4

extend the June 4, 1999 deadline. 	However, Walsh’s counsel
stated that the previously identified three and one-half
hour time frame on June 4 was the only time Dr. Kostuik was
available for deposition. 	When pressed by the court for
information on Dr. Kostuik’s availability, Walsh’s counsel
replied that the court “may as well ‘go ahead and dismiss
the case.’ ” 	The court then granted Dr. Bennett’s motion
to strike Walsh’s designation of his expert witness and
ordered that Dr. Kostuik would not be permitted to testify
as an expert witness at the trial of this case.
Thereafter, at the same hearing, Dr. Bennett moved the
court to dismiss the case on the ground that, without an
expert witness, Walsh’s evidence was insufficient as a
matter of law to prove his claim for medical malpractice.
Again, Walsh’s only response was “go ahead and dismiss the
case.” 	The trial court granted the motion and entered an
order on June 2, 1999, reflecting its decision on both of
Dr. Bennett’s motions. 	We awarded Walsh this appeal.
ANALYSIS
Rule 4:12(b) governs discovery abuses and provides for
sanctions against a party who fails to comply with a
court’s order to provide or permit discovery. 	A trial
court generally exercises “broad discretion” in determining
the appropriate sanction for failure to comply with an
5

order relating to discovery. 	Woodbury v. Courtney, 239 Va.
651, 654, 391 S.E.2d 293, 295 (1990). 	Consequently, we
accord deference to the decision of the trial court in this
case and will reverse that decision only if the court
abused its discretion in striking Walsh’s designation of
his expert witness. 	See First Charter Land Corp. v. Middle
Atl. Dredging, Inc., 218 Va. 304, 308-09, 237 S.E.2d 145,
148 (1977). 	However, an appellate court should not simply
rubber stamp every discretionary decision of a trial court.
To the contrary, we have an obligation to review the record
and, upon doing so, to reverse the judgment of the trial
court if we find a clear abuse of discretion.
The determination whether a trial court has abused its
discretion is fact-specific. 	The facts of the instant case
show that the trial court ordered Walsh to make his expert
witness available for a deposition on or before the close
of business on June 4. 	However, prior to that date — in
other words, before Walsh had exhausted the time during
which he could comply or fail to comply with the court’s
order — the court struck Walsh’s designation of his expert
witness and dismissed the case.
The facts also establish that in the days prior to
June 2, Walsh’s counsel had made Dr. Kostuik available for
an additional two and one-half hours, some of which was
6

during a time Dr. Bennett’s counsel had on one occasion
indicated that she would be available. 	Although Dr.
Bennett’s counsel advised the court at the hearing on June
2 that she could not depose Dr. Kostuik during this
additional period of time, we do not know whether the
schedule of either Dr. Bennett’s counsel or Dr. Kostuik
would have again changed between June 2 and the close of
business on June 4.
Considering these facts, we conclude that the trial
court abused its discretion because it deprived Walsh of
time, in this case two days, in which to comply with the
court’s order and to provide Dr. Bennett with the
opportunity to “adequately depose” Dr. Kostuik. 	The court
prematurely imposed a sanction pursuant to Rule 4:12(b)7
because Walsh had not yet failed to obey the terms of the
court’s prior discovery order. 	See Rule 4:12(b)(2)(“[i]f a
party . . . fails to obey an order to provide . . .
discovery, . . . the court . . . may make such orders in
regard to the failure as are just”.)
The trial court’s action before the June 4 deadline
also “short circuited” the legal process. 	We have often
warned of the dangers of “short circuiting” litigation
7 The trial court’s order does not explicitly reference
Rule 4:12.
7

because in doing so, a trial court “depriv[es] a litigant
of his day in court and depriv[es] this Court of an
opportunity to review a [more] thoroughly developed record
on appeal.” 	Seyfarth, Shaw, Fairweather & Geraldson v.
Lake Fairfax Seven Ltd. Partnership, 253 Va. 93, 95, 480
S.E.2d 471, 472 (1997) (citing CaterCorp, Inc. v. Catering
Concepts, Inc., 246 Va. 22, 24, 431 S.E.2d 277, 279 (1993);
Renner v. Stafford, 245 Va. 351, 353, 429 S.E.2d 218, 220
(1993); Carson v. LeBlanc, 245 Va. 135, 139-40, 427 S.E.2d
189, 192 (1993)). 	In this case, the trial court
unnecessarily cut short the remaining time before the June
4 deadline for counsel to schedule Dr. Kostuik’s deposition
and, in doing so, may have prevented this case from
proceeding to trial, thus depriving Walsh of his day in
court.8
For these reasons, we will reverse the judgment of the
circuit court and remand this case for further proceedings
consistent with this opinion.
Reversed and remanded.
JUSTICE LEMONS, with whom JUSTICE LACY joins, dissenting.
8 The statements of Walsh’s counsel at the June 2
hearing that the trial court could “go ahead and dismiss
the case” did not justify the trial court’s “short
circuiting” of the process. 	Neither did the statements
constitute “invited error” under the doctrine enunciated by
8

In my view the trial court did not abuse its
discretion by striking plaintiff’s designation of his
expert witness for failure to comply with an order to
provide discovery and thereafter, upon request of the
plaintiff, dismissing the case.
There is no transcript of the proceedings before the
trial court in this record. 	Rather, Walsh relies upon a
statement of facts pursuant to Rule 5:11(c). 	The pertinent
portion of the statement of facts states:
Counsel for the Plaintiff informed the [c]ourt
that the June 4, 1999 time frame was the only
opportunity Dr. Kostuick [sic] had available
for the deposition. 	When pressed by the
[c]ourt for additional information concerning
Dr. Kostuick’s [sic] availability, counsel for
the Plaintiff replied that the court may as
well “go ahead and dismiss the case.” 	Failing
in an attempt to find alternative dates for
the deposition of Dr. Kostuick [sic], the
[c]ourt granted the Defendant’s motion to
preclude Dr. Kostuick’s [sic] testimony as an
expert witness at trial. 	Counsel for the
Defendant then moved to dismiss the case on
the ground that Plaintiff’s evidence as a
matter of law was insufficient to prove
medical malpractice without a medical expert.
Again, Plaintiff’s only response was “go ahead
and dismiss the case.” 	The [c]ourt granted
the Defendant’s motion and the case was
dismissed.
The majority holds that, “the trial court abused its
discretion because it deprived Walsh of time, in this case
________________
this Court, most recently in Moore v. Hinkle, 259 Va. 479,
491, 527 S.E.2d 419, 426 (2000).
9

two days, in which to comply with the court’s order.”
Calling the dismissal a premature sanction under Rule 4:12,
the majority suggests that “Walsh had not yet failed to
obey the terms of the court’s prior discovery order.” 	The
majority further observes that “we do not know whether the
schedule of either Dr. Bennett’s counsel or Dr. Kostuik
would have again changed between June 2 and the close of
business on June 4.”
The majority does not hold that dismissal of the case
for failure to comply with a discovery order of the court
is an abuse of discretion; rather, the majority is
concerned that the dismissal occurred two days before the
stated deadline. 	However, the only evidence before us on
the subject is the recitation in the statement of facts
that “the June 4, 1999 time frame was the only opportunity
Dr. Kostuick [sic] had available for the deposition.” 	The
unavailability of Dr. Bennett’s counsel within the narrow
time frame offered by Dr. Kostuik for his deposition had
been repeatedly established. 	Consequently, on the only
evidence before us, the parties agreed that the deposition
could not be taken between June 2 and the close of business
on June 4. 	Plaintiff then twice invited the court to “go
ahead and dismiss the case.”
10

Although I believe that it was not error to dismiss
the case, if error occurred, it most assuredly was invited
error that the plaintiff may not successfully assert on
appeal. 	The majority concludes without analysis that the
request to “go ahead and dismiss the case” does not satisfy
the invited error doctrine. 	The invited error doctrine is
essentially a waiver of the right to assign error under
Rule 5:25. 	See Wright v. Norfolk and Western Railway Co.,
245 Va. 160, 169-70, 427 S.E.2d 724, 729(1993). 	As we
stated in Wright, “a litigant will not be permitted to
invite a trial court to commit error, either through
agreeing or failing to object, and then be permitted to
successfully complain of such error on appeal.” Id. at 170,
427 S.E.2d at 729. 	If error occurred in the failure of the
trial judge to wait an additional two days before entering
the dismissal order, surely the error was occasioned by the
acknowledgement by the plaintiff that no compliance with
the order was possible within the two-day period followed
by the express invitation, issued twice, to “go ahead and
dismiss the case.”
As the statement of facts reveals, this case was
originally filed in May of 1997 and was nonsuited prior to
argument on a motion for summary judgment based upon
plaintiff’s failure to timely designate expert witnesses.
11

After the case was refiled in September of 1998,
controversy 	arose over the adequacy of compliance with the
Rules of Court concerning designation of expert witnesses.
The trial court gave plaintiff leave to amend his
designation. 	Upon the filing of an amended designation,
defendant again filed a “motion to strike the [p]laintiff’s
expert.” 	The trial court denied the motion; however, the
court ordered “that the [d]efendant be afforded the
opportunity to adequately depose [p]laintiff’s expert by
the close of business on June 4, 1999, or the [c]ourt would
revisit its decision on the motion to strike.”
At a hearing on June 2, 1999, the court was advised of
plaintiff’s lack of compliance with the terms of the order
requiring discovery. 	In another display of attempted
accommodation of plaintiff, the court "then agreed to
extend the June 4, 1999 deadline in order to accommodate
the deposition of Dr. Kostuick [sic].” 	Inexplicably,
plaintiff did not accept the trial court’s offer.
Faced with plaintiff’s repeated failure to comply with
the Rules of Court and discovery orders, the trial court
nonetheless tried to provide plaintiff with alternatives
other than striking his expert or dismissing his case. 	For
reasons known only to plaintiff, the efforts of the court
were resisted. 	In this context, it was not an abuse of
12

discretion for the court to accept plaintiff’s invitation
to dismiss the case. 	Even if the failure to wait two more
days to enter the order is characterized as error, under
any reasonable interpretation, it was invited error about
which plaintiff may not now complain on appeal.
I respectfully dissent from the majority opinion
because it elevates form over substance. 	I would affirm
the judgment of the trial court.
13