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Walsh v. Bennett6/9/2000
Present: All the Justices
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 judgment against Dr. Dean R. Bennett, an orthopaedic surgeon, and several other defendants, alleging, inter alia, that Dr. Bennett was negligent and committed medical malpractice in performing orthopaedic surgery on Walsh. 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. 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. 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. 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.
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. 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 av
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