Henning v. Thomas
4 Va. Law Rep. 2124, 235 Va. 181, 366 S.E.2d 109 (1988)
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Rule of Law:
The bias of a witness is a non-collateral matter and is always a relevant subject of inquiry, allowing broad cross-examination to ascertain previous relationship, feeling, and conduct. While a trial court has broad discretion in qualifying an expert witness under a statewide standard of care, such qualification must be based on demonstrated familiarity with that specific standard.
Facts:
- Lelia E. Thomas, 69 years old, was admitted to the hospital on July 4, 1979, for a meniscectomy (removal of torn knee cartilage).
- Dr. Henning performed the surgery on July 5, 1979, assisted by Dr. Christopher S. Wilson.
- On July 8, 1979, Dr. Pruner noted that Thomas's right foot had dropped, indicating damage to her peroneal nerve; Thomas also complained of pain, knee swelling, and a bruised area behind the knee (ecchymosis).
- By July 10, Thomas's hematocrit (red blood) count dropped, suggesting blood loss or dilution, and she continued to experience pain and tenderness in her right calf.
- A venogram (X-ray of veins) indicated deep vein blood clots, and Thomas was treated with anticoagulants.
- On July 28, Thomas rolled over in bed, experienced sharp pain in her right knee, and a pulsating mass the size of a small fist was found behind her knee.
- A vascular surgeon was called and repaired what he described as a ruptured aneurysm.
- Thomas's right leg is permanently paralyzed below the knee.
- Dr. Thomas S. Culley was called as an expert witness by Thomas to establish the standard of care.
Procedural Posture:
- Lelia E. Thomas sued Dr. George D. Henning and Dr. Robert S. Pruner in a trial court (implied circuit court in Virginia) for medical malpractice, alleging negligent failure to diagnose an ailment.
- A jury returned a verdict of $150,000 in favor of Thomas.
- Judgment was entered on the jury verdict.
- The defendant doctors appealed the judgment to the Supreme Court of Virginia.
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Issue:
Does a trial court err by unduly limiting cross-examination of an expert witness regarding potential bias, prejudice, or relationship, thereby preventing the defense from attempting to show the expert is a 'doctor for hire'? Did the trial court abuse its discretion in qualifying an out-of-state expert witness who had not practiced in Virginia but claimed familiarity with the statewide standard of care through review of depositions and discussions with local practitioners? Did the trial court abuse its discretion in permitting the use of a treating or examining physician's deposition testimony as rebuttal evidence, even if the physician was available in person, when the testimony addressed a key factual dispute?
Opinions:
Majority - Thomas, J.
Yes, a trial court errs by unduly limiting cross-examination of an expert witness regarding their potential bias, prejudice, or relationship, preventing inquiry beyond merely whether they are being paid. The bias of a witness is not a collateral matter and is always a relevant subject of inquiry, allowing for great latitude on cross-examination to show previous relationship, feeling, and conduct, as established in Henson v. Commonwealth. The defendants were entitled to attempt to persuade the jury that Dr. Culley was a 'doctor for hire' and part of a nationwide group offering medical testimony. The trial court's ruling prevented this legitimate line of inquiry, and unlike Norfolk & Western Railway Co. v. Birchfield, this information was not developed by other evidence, thus constituting reversible error. No, the trial court did not abuse its discretion in finding Dr. Culley qualified to testify as an expert witness. Virginia Code § 8.01-581.20 requires an expert to be 'familiar' with the statewide standard of care, which can be derived from study, experience, or both (Grubb v. Hocker). The question of expert qualification rests largely within the trial court's sound discretion and should not be reversed unless it 'clearly appears' the witness was unqualified (Harkins v. Reynolds Associates). Dr. Culley demonstrated familiarity by reviewing depositions of Virginia doctors, discussing the case with a Virginia orthopedic surgeon (Dr. Fisher) with whom he reached identical analyses, and agreeing with a Virginia-trained physician (Dr. Wilson) that orthopedic surgery techniques are nationally uniform. Given this evidence, it did not 'clearly appear' that he was unqualified. No, the trial court did not abuse its discretion in permitting the use of Dr. Richard Fisher's deposition testimony as rebuttal evidence. The admission of rebuttal evidence is generally within the trial court's sound discretion (Virginian Railway v. London). Rule 4:7(a)(4)(E) allows the deposition of a physician who treated or examined a party to be used 'for any purpose' by any party, even if the deponent is subject to the court's jurisdiction, unless the court, for good cause, orders in-person testimony. Dr. Fisher had examined Thomas in the regular course of his profession, and his testimony directly rebutted the defendants' contention regarding the absence of closed compartment syndrome indications. The defendants failed to avail themselves of the mechanism in the rule to compel in-person testimony. Therefore, the trial court was justified in admitting his deposition.
Dissenting - Russell, J.
Yes, the judgment should be reversed due to the trial court’s limitation of the defendant’s right to cross-examine Dr. Culley on the issue of bias, as the majority correctly states. Yes, Dr. Culley did not establish sufficient familiarity with the applicable statewide standard of care to qualify as an expert witness in the first place. Dr. Culley had no study, training, or experience that would establish familiarity with the Virginia standard, having practiced and taught in other states and then working for an insurance company in Connecticut. The majority's reliance on Dr. Wilson's and Dr. Culley's opinions that techniques and diagnostic practices were 'basically the same in Virginia as elsewhere' falls short of the statewide standard required by Code § 8.01-581.20. The legislature, in enacting § 8.01-581.20 after Bly v. Rhoads, explicitly adopted a statewide standard and implicitly rejected a national one. The majority's approval of this exercise of judicial discretion effectively substitutes a national standard for the legislative scheme, which extends judicial discretion too far. It is dubious to rely on a Virginia practitioner's opinion of nationwide uniformity, as such a physician is unlikely to have familiarity with standards across all 49 other states.
Analysis:
This case significantly reinforces the broad scope of cross-examination permissible to expose witness bias, particularly for expert witnesses whose credibility can greatly influence a jury. It clarifies that attempts to portray an expert as a 'doctor for hire' are not collateral and are legitimate lines of inquiry for impeachment. While affirming the trial court's wide discretion in qualifying experts under Virginia's statewide standard, the dissenting opinion highlights a persistent tension with legislative intent if that discretion allows for a de facto national standard of care. Future cases will need to carefully navigate how 'familiarity' with a statewide standard is demonstrated, balancing flexibility with the statutory rejection of a purely national standard, to ensure expert testimony remains relevant to specific state practice norms.
