V I R G I N I A: IN THE CIRCUIT COURT

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V I R G I N I A: IN THE CIRCUIT COURT THE CITY OF WINCHESTER

et al.,

Plaintiffs

v. Civil Action No. 11 -

et al.,

Defendants

COMPLEX LITIGATION PRETRIAL ORDER - MEDICAL MALPRACTICE

This case came before the Court for a pretrial conference on January 7, 2013. Given the apparent complexity of this case and the length of the trial, a pretrial order for complex litigation has been used in this case, and it is materially different from the uniform state pretrial order. The pretrial filing requirements are substantial, and counsel should READ THIS ORDER VERY CAREFULLY to ensure that they comply with its provisions and to correct any inconsistencies in the order.

It appears that the issues to be tried in this case are:

1. Whether the Defendants violated the standard of care of a reasonably prudent health care provider in their specialty in the Commonwealth of Virginia?

2. If so, whether that negligence proximately caused injury to Plaintiff's decedent?

3. If the Plaintiff is entitled to recover, what is the amount of his damages and how should those damages be distributed among the statutory beneficiaries?

Therefore, it is ADJUDGED AND ORDERED that:

1. Discovery. The parties shall complete discovery by sixty days prior to trial. All discovery requests shall be filed in sufficient time to allow for responses under the Rules of Court by that date. Counsel are encouraged to participate in prehearing discovery conferences in order to minimize the filing of unnecessary discovery motions. No discovery motion should be filed until counsel has discussed with the opposing counsel the possibility of resolving the discovery matters in controversy. The Clerk has a memorandum of the Court on discovery principles which is supplemented each time a new issue is confronted, so check with the Clerk prior to appearing on any discovery motion to ensure that you have the most recent version of this memo. (A copy of this memo may be obtained on line: ) The Court will not consider any motion concerning discovery matters, unless the motion is accompanied by a statement of counsel that a good faith effort has been made between counsel to resolve the discovery matters in dispute. No provision of this order supersedes the Rules of Court governing discovery. The parties have a duty to seasonably supplement and amend discovery responses. Supreme Court Rule 4:1(e). Seasonably means as soon as practical.

2. Trial Date. This case is set for trial before a civil jury on , 2013, at 9:00 a.m. The estimated time of trial is eight days.

3. Instructions. Not later than sixty days before the date set for trial counsel for the plaintiff shall file (with the presiding judge) and serve on opposing counsel copies of all instructions, which they plan to tender to the Court for consideration. A sample set of instructions recently given in medical practice cases is on the Court’s webpage. .

a. Model instructions shall have the reference MJI ___ at the bottom left.

b. Nonmodel instructions to be offered with supporting citations at the bottom.

c. Plaintiff’s instructions will be numbered in the lower right corner.

d. Defendant’s instructions will be lettered in the lower right corner. If there is more than one defendant, the Defendant’s initials will precede the letter, e.g., “XYZ – A”.

If Counsel for the defendant objects to plaintiff's instructions on substantive grounds, or offer additional instructions, he shall file and serve such objections and additional instructions as provided above not later than forty days before trial. Ten days after receipt of the Defendant's instructions, the Plaintiff shall file such objections thereto as deemed advisable.

4. Expert Witnesses. Five months before trial, the plaintiff shall provide to the defendant in writing the name of any expert witness upon which the plaintiff intends to rely at trial. Four months before trial, the defendant shall provide to the plaintiff in writing the name of any expert witness upon which the defendant intends to rely at trial. If not already provided pursuant to discovery, for each expert identified, the parties shall state the subject matter upon which the expert will testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion. Additionally, for each expert who will testify, the following will also be provided: a list of all publications within the last ten years, a list of all cases in which the expert has testified within the past three years, and the witness' financial compensation for this case.

A court may grant summary judgment on relevant claims because a party fails to identify expert witnesses as required by the pretrial order. Woodbury v. Courtney, 239 Va. 651, 654, 391 S.E.2d 293 (1990) (failure to identify expert witness five months prior to trial in medical malpractice case). Alternatively, the court may refuse to allow the witness to testify. See, e.g., John Crane, Inc. v. Jones, 274 Va. 581, 650 S.E.2d 851 (2007).

An expert witness designation shall be filed for any treating physician who will be asked to state an opinion as to a reasonable decree of medical probability or as to causation of injuries or the necessity for his care.

When a party identifies written scientific authorities upon which an expert is relying either pursuant to a discovery request or pursuant to Virginia Code § 8.01-401.1, each statement relied upon or to be read to the jury shall be specifically identified by providing the complete name of the article, the complete name and date of the publication in which the article or statement appears, and the pages on which the statement appears. Where the statement is to be read to the jury, a copy of each complete page containing the statements with the statements to be read indicated by underlining will be provided. If requested by the opposing party, a complete copy of the article or chapter in which the statement appears shall also be provided.

Medical literature designated as reliable on the issue of the standard of care must have been published before the alleged acts of malpractice. Lloyd v. Kime, 79 Va. Cir. 302, 309 (Rockingham 2009), affirmed Supreme Court of Virginia Record No. 100091 (“those articles [designated by the plaintiff on the standard of care] had not been published and thus were not available to Dr. Kime [the defendant] at the time of the operation in 2001 … accordingly … they were not relevant to the standard of care”).

Evidence of the statistical incidence of complications incident to or following surgery is not admissible. Holley v. Pambianco, 270 Va. 180, 185 (2005) (“Such raw statistical evidence [of surgical complications] is not probative of any issue in a medical malpractice case and should not be admitted.”)

Most medical malpractice cases turn on the experts' opinions. The rules of discovery governing inquiry about the defendant's experts in Virginia are patterned after the federal rules. Supreme Court Rule 4:1(b)(4) contemplates that a party will initially inquire through the relatively inexpensive means of interrogatories about the substance of the facts and opinions to which the defendant's expert is expected to testify. Supreme Court Rule 4:1(b)(4)(a)(2) provides that "upon motion, the Court may order further discovery by other means...," such as by depositions. The answers to interrogatories about experts should be detailed, so that the opposing side knows what your expert will be testifying about from reading your answer. Your answer must include the subject matter, the substance of the facts and opinions to which the expert will testify, and a summary of the grounds of each opinion. If these required elements are not in your answer, then your answer is insufficient. See generally Handling Products Liability Cases in Virginia, Virginia CLE (1994), p. III-2. Parties very frequently fail to adequately state the "substance of the facts," the "opinions," and "a summary of the grounds of each opinion." While there is no talismanic form for an answer, the following would be an adequate answer with respect to an orthopedic surgeon who will testify for the Plaintiff (IF IN DOUBT, ERR ON THE SIDE OF INCLUSION):

Name and Address:

Sue Brown, M.D. (provide curriculum vitae)

(address)

Substance of the Facts relied upon: This witness has examined the following records of the Plaintiff: (list all which the witness has examined, and, if the witness has examined the plaintiff or performed any procedures on the plaintiff describe those).

Medical records and reports of John Smith, M.D., ABC Orthopedic Associates, and Winchester Medical Center.

Summary and Grounds of Opinions: Based on his review of the records in this case and (set forth numbered opinions as appropriate, BE SPECIFIC, THE DOCTOR MAY NOT TESTIFY AT TRIAL TO ANY OPINION NOT SET FORTH IN THE DESIGNATION) examination of ________ (if there was an examination set forth the specific findings and diagnosis as it is relevant to the claim, and consultations with __________, Dr. X will testify that:

Based on her review of the above material, Dr. Brown will testify that (number each opinion and set forth the following:

Opinion 1: On May 21, 2010, and May 30, 2010, the standard of care for the diagnosis, care and treatment of osteomyelitis and associated epidural abscess which compresses the spinal cord required a reasonably prudent orthopedist and/or neurologist to consider infectious etiologies as the cause of persistent worsening back pain and symptoms. The standard of care required an emergency MRI and/or myelogram and/or bone scan to consider infectious etiologies, the proper diagnosis of the infection, surgical decompression, and the administering of intravenous antibiotics.

Grounds: State Physician’s experience, identify scientific articles relied upon, tests conducted, or data analyzed that form the basis of the opinion.

Opinion 2: On May 21, 2010, Dr. Smith departed from the standard of care of a reasonably prudent orthopedic surgeon, because he failed to consider infectious etiologies as the cause of Plaintiff's persistently worsening back pain and neurologic symptoms associated with fever and elevated WBC count, and failed to order the appropriate tests in light of the complaints of thoracic pain, bilateral leg weakness, tingling in the extremities, constipation, and urinary retention, which indicated imminent spinal cord compression, all of which breached the standard of care and caused Plaintiff to become paraplegic.

Grounds: Identify the clinical signs and symptoms that are basis for this opinion.

Opinion 3: On May 30, 2010, Dr. Doe departed from the standard of care for a reasonably prudent neurologist, because he failed to consider infectious etiologies as the cause of Plaintiff's persistently worsening back pain and neurologic symptoms associated with fever and elevated WBC count, and failed to order the appropriate tests in light of the complaints of thoracic pain, bilateral leg weakness, tingling in the extremities, constipation, and urinary retention, which indicated imminent spinal cord compression, all of which breached the standard of care and caused Plaintiff to become paraplegic.

Grounds: Identify the clinical signs and symptoms that are the basis for this opinion.

Opinion 4: The violation of the standard of care set forth above was a proximate cause of Plaintiff's paraplegia. Had Plaintiff been diagnosed and treated in the proper manner as late as 12 hours before he became paraplegic, Plaintiff would have recovered with mild, minimal, or no permanent neurologic deficits.

Grounds: State the grounds for this opinion.

Opinion 5: Dr. Brown is also expected to testify that the Medical bills are reasonable, necessary and incurred as a proximate result of Plaintiff's paraplegia, and that the current and future health care needs resulting from the act of negligence as reported by Mr. Life Expert, are reasonable, necessary and a proximate result of Plaintiff's condition, with the exception of the need for the case manager/rehabilitation counsel.

Grounds: State the grounds for this opinion.

5. Motions. All Motions shall be accompanied by a written brief setting forth a concise statement of the facts and supporting reasons, along with a citation of the authorities upon which the movant relies. The opposing party shall file a response, including a like brief and such supporting documents as are then available within fifteen days after service. The moving party may file a rebuttal brief within five days after the service of the opposing party's reply brief. Counsel shall send copies of their briefs and all major, non-Virginia authorities relied upon to the presiding judge at the Winchester-Frederick Joint Judicial Center, 5 N. Kent Street, Winchester, Virginia 22601. Motions for Summary Judgment and motions in limine must be filed at least thirty days in advance of the final pretrial conference.

6. Motion to Strike. Counsel for the Defendant shall prepare and file at the time at which a motion to strike the evidence of the Plaintiff is made a memorandum of authorities in support of that motion on any ground which is reasonably foreseeable in advance of trial. Copies of major authorities relied upon shall be provided to the Court.

7. Statement of Agreed and Contested Facts. The Plaintiffs will submit a statement of agreed and contested facts on the issues to be tried sixty days before trial, and the Defendant shall submit its statement of agreed and contested facts within twenty days of receipt of the Plaintiff's statement.

8. Voir Dire. The Plaintiff will file its proposed voir dire questions sixty days prior to the trial, and the Defendant shall file any objections and its proposed voir dire questions within twenty days of receipt of the Plaintiff's questions. Within ten days of receipt of the Defendant's voir dire, the Plaintiff will file such objections thereto as deemed advisable.

9. Settlement Conference. Any request for a settlement conference in this case must be made at least sixty days prior to trial.

10. Future Pretrial Conferences. A final pretrial conference will be held at the end of the Motions day immediately preceding the trial. Any motions in limine and motions for summary judgment must be filed at least thirty days before that pretrial conference and will be argued at the final pretrial conference. The Clerk is directed to set this pretrial conference for two hours.

11. Trial Administrative Provisions.

A. Hours of trial. Subject to further order, court sessions will be held from 9:00 a.m. to 5:00 p.m. each weekday.

B. Jury. A jury of seven persons and one alternate shall be selected. Each side shall be permitted three peremptory challenges to the principal jurors and one peremptory challenges to the alternate juror, who will be selected from a panel of three. Virginia Code § 8.01-360.

C. Witness Lists. Plaintiffs shall file and serve by sixty days before trial, and defendants shall file forty days prior to trial, a list identifying all persons, including expert and rebuttal witnesses, whose testimony they may offer at trial in person or by deposition. Counsel will separately list their "major" witnesses, whose testimony they expect to offer, and their "minor" witnesses, whose testimony will probably not be needed, but who have been listed merely to preserve the right to offer such testimony should it be needed in the light of developments during trial).

(1) Witnesses to testify in person. For witnesses to be examined in person, the list will contain an estimate of the time expected to be needed for direct examination and include a brief summary of their expected direct testimony which indicates the subjects on which they are expected to testify. For any expert witnesses who is to express any opinion, the list shall include, if not previously provided, the substance of the facts and opinions to which the expert is called to testify and a summary of the grounds for each opinion. See Supreme Court Rule 4:1(b)(4)(A).

(2) Depositions. Sixty days prior to trial, the parties will file the pages of any depositions to be used at trial, with the portions to be offered by the proponent indicated by blue marking in the margin. Within twenty days after receiving these designations, the other party shall file such objections thereto as deemed advisable and file any supplemental designations deemed advisable.

D. Exhibits. Plaintiff shall file and serve by sixty days prior to trial a list identifying all writings, recordings, documents, bills, graphs, charts, models, summaries, compilations, reports, records, photographs, and other exhibits (collectively called "exhibits") which they expect to offer at trial, to use as demonstrative exhibits, or to be used or referred to by any of their witnesses, including expert witnesses. Forty days prior to trial, the Defendant will file its list of exhibits and list of witnesses. Any objections to exhibits submitted by any party must be filed with the Clerk of the Court and with the opposing party within ten days of submission, or they will be deemed waived.

The actual exhibits shall be filed thirty days in advance of trial. The filed exhibits shall be in a 3-ring binder with a numbered tab for each exhibit. The exhibit books shall contain an index of the exhibits. If an exhibit has more than one page, the exhibit shall be paginated. If there is more than one picture or item on a page, the pictures or items on an individual page, shall be designated alphabetically, e.g., if Ex. 4 is a single sheet containing four photographs, they shall be designated 4A, 4B, etc. At trial, unless impractical due to the magnitude of the exhibits, the proponent shall provide extra copies for the court and for each juror at the time of offering or first referring to an exhibit. Use of an exhibit shall, unless specifically disclaimed or limited, be deemed an offer of the exhibit in evidence; and, unless excluded on objection promptly made, the exhibit shall be deemed received in evidence. If prior notice of the proposed use has been given, the presentation of evidence shall not be interrupted for opposing counsel to examine the exhibit. Each side shall designate a representative to aid the courtroom deputy in maintaining current lists and indexes of the exhibits that have been received. Unobjected to Exhibits may be introduced at any time during the trial including prior to a party’s opening statement.

(1) Identification. The Exhibit list shall describe each exhibit and give its identification number, if any. Although some exhibits may be adequately identified through a group description (for example, "invoices from C.D. Inc., to A.B., dated from __________, 2011, to ________________, 2012, bearing identification # _______ through # ________"), general references (for example, "documents identified in the deposition of _______________") will be regarded as insufficient.

(2) Exhibition. The party shall at the time of serving the list make all exhibits not previously produced available to other parties for their inspection and copying at the city in which trial will be held, or some other convenient location agreed to by the parties.

(3) Objections. Except to the extent a party in its listing of exhibits or within ten days after receiving another party's exhibit list gives notice to the contrary, it shall be deemed to have agreed, for purposes of this trial only, that:

(a) the originals of the listed exhibits are authentic;

(b) duplicates of the listed exhibits are admissible to the same extent as the originals;

(c) any listed exhibits purporting to be correspondence were sent by the purported sender and received by the purported recipient(s) on approximately the dates shown or in accordance with customary delivery schedules;

(d) any disputes regarding the accuracy of any of the listed exhibits that purport to be summaries of evidence affect only the weight, not the admissibility, of such exhibits;

(e) any listed exhibits purporting to be business records of regularly conducted business meet the requirements for admission in evidence as business records without extrinsic evidence; and

(f) any listed exhibits purporting to be public records or reports meet the requirements for admission. Virginia Code §§ 8.01-388-390.

(4) Effect. Except for good cause shown, the parties will be precluded from offering in evidence, using as demonstrative evidence, or examining any of their witnesses concerning, any exhibit not so identified, except solely for impeachment purposes. The listing of any exhibit does not commit the listing party to its use. Subject to any objections that have not been waived, any party may use any exhibit that has been listed by another party.

(5) Rulings. Requests for a ruling in advance of trial with respect to any objections to admissibility of evidence must be made by motion filed not later fifteen days prior to the final pretrial conference.

E. Limits on Evidence. Except for good cause shown, counsel will not be permitted to offer proof of facts not disclosed in the joint statement of uncontested and contested facts, nor will they be permitted to offer independent evidence of the agreed facts except to the extent incidental to the presentation of evidence on the disputed facts. Counsel are expected to be selective in identifying and listing the witnesses and documents to be presented at trial and in deciding as trial progresses which of the listed witnesses and documents will be offered. If warranted after review of the lists of witnesses or documents, the court will consider after hearing from the parties whether to impose any limits on the length of trial, number of witnesses, or number of exhibits.

F. Briefs. By thirty days prior to the final pretrial conference, plaintiffs shall file and serve comprehensive trial briefs covering all significant legal issues expected to arise at trial with respect to their claims and the defenses made to such claims with respect to any item not previously briefed. By fifteen days before the final pretrial conference, defendants shall file and serve comprehensive trial briefs responding to the legal contentions of their adversaries and covering any additional significant legal issues expected to arise at trial with respect to the claims against them and their defenses which have not been previously briefed. Any reply briefs shall be filed by the final pretrial conference.

G. Schedule of witnesses and documents. Counsel shall, absent unusual circumstances, give notice to opposing parties at least twenty-four hours before calling a witness or offering, or otherwise using, any exhibit during direct examination. This shall be accomplished during trial by daily providing a schedule, updated as trial progresses, reflecting the order in which witnesses are expected to be presented during the next two trial days and the exhibits that are expected to be offered or used during the examination of such witnesses.

(1) If less than a complete exhibit (or less than all of the portions of a deposition previously designed by the parties) is to be introduced, the schedule shall so indicate.

(2) Revisions to this projected sequence of witnesses and documents (or to the portions of the deposition to be read) shall be disclosed as soon as known.

H. Interim conferences. A short conference will usually be held at the end of each trial day and thirty minutes before the start of each trial day to consider problems that may be expected to arise, including last-minute revisions in the sequence or scope of evidence to be presented and objections that have not previously been ruled on or that should be reconsidered.

I. Presentation of exhibits

J. Additional conferences. The court will be available to confer with the parties as trial approaches to consider any details of trial not resolved in this order or any part of this order that should be changed.

The Clerk is directed to send a copy of this order to counsel of record, who shall file such objections hereto as deemed advisable within ten days of their receipt of a copy of this order. Endorsement of counsel is dispensed with pursuant to Supreme Court Rule 1:13.

Entered January 4, 2013.

________________________________________

John E. Wetsel, Jr., Judge

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