Flora v. Shulmister

Present: All the Justices
JOHN M. FLORA, ET AL.
v. Record No. 001887 	OPINION BY JUSTICE CYNTHIA D. KINSER
June 8, 2001
DAVID SHULMISTER, M.D., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Charles E. Poston, Judge
In this appeal, we decide the question whether a trial
court abused its discretion by imposing monetary sanctions
because a litigant’s counsel failed to produce an autopsy
report in response to a request for production of
documents. 	Because we conclude that the attorney, after
reasonable inquiry, could have formed a reasonable belief,
grounded in fact and warranted under existing law, that the
report contained facts known and an opinion held by an
expert and was, thus, discoverable only pursuant to Rule
4:1(b)(4), we will reverse the judgment of the circuit
court awarding the sanctions.
FACTS AND MATERIAL PROCEEDINGS
The law firm of Harlan & Flora, P.C. (the Firm), was
retained to file a medical malpractice/wrongful death
action on behalf of J. Riley Johnson, Administrator of the
Estate of Chester A. Thompson, deceased, against David
Shulmister, M.D., Phyllis A. Bragg, M.D., Emergency
Physicians of Tidewater (EPT), and Sentara

Hospitals/Norfolk, t/a Sentara Leigh Hospital. 	In a motion
for judgment that listed the plaintiff’s counsel of record
as John M. Flora and Thomas J. Harlan, Jr., the plaintiff
alleged that the decedent died of acute coronary
insufficiency and that the defendants negligently treated
and discharged the decedent when they knew, or reasonably
should have known, that the decedent was in need of further
medical care.1
Approximately a month after the plaintiff filed the
motion for judgment, Dr. Shulmister, Dr. Bragg, and EPT2
served the plaintiff with the following request for
production of documents:
Any and all documents, as defined herein, in the
possession, custody or control or otherwise available
to you or your representative, which relate or in any
way pertain to:
1. All medical reports and records, including
radiology films, pathology slides, and tissue blocks,
relating in any way to any of the injuries and/or
death complained of in the Motion for Judgment or for
which you make claim.
The request for production of documents defined the term
“[d]ocument” to include “all hospital and medical records,
1 Harlan actually signed the motion for judgment.
2 Dr. Shulmister, Dr. Bragg, and EPT will hereinafter
be referred to as the defendants although only Dr.
Shulmister and EPT are appellees before this Court. 	The
plaintiff nonsuited the action against Dr. Bragg and
Sentara Hospitals in December 1999.
2

. . . reports . . . in the possession, custody or control
of plaintiff and plaintiff’s agents . . . .”
Signed by Flora as attorney of record, the plaintiff’s
response to that request for production of documents stated
that “[m]edical records [are] available for inspection at
the offices of Harlan & Flora, P.C. on reasonable notice.”
Flora and the Firm acknowledge that the medical records
that Flora made available for inspection did not include an
“AUTOPSY PROTOCOL” (autopsy report), dated November 19,
1997, by L. J. Dragovic, M.D., the chief medical examiner
for Oakland County, Michigan.
After the decedent died in March 1996, his body was
transported out of state for interment. 	Approximately 18
months later, his family arranged to have the body exhumed
so that an autopsy could be performed. 	Dr. Dragovic
conducted that autopsy and concluded that the cause of
death was “ACUTE CORONARY INSUFFICIENCY due to LEFT
ANTERIOR DESCENDING CORONARY ARTERY MYOCARDIUM BRIDGING
ANOMALY.” 	That conclusion is allegedly different from the
cause of death listed on the decedent’s death certificate.
After receiving the results of the autopsy, the decedent’s
family decided to pursue this medical malpractice/wrongful
death action.
3

In March 1999, the circuit court entered a scheduling
order that, among other things, directed plaintiff’s
counsel to identify all expert witnesses by November 30,
1999. 	The identification was to contain all information
discoverable under Rule 4:1(b)(4)(A)(i). 	In accordance
with the scheduling order, Flora timely identified the
plaintiff’s experts and disclosed the following
information:
Dr. Ljubisa Jovan Dragovic, is a Board Certified
Pathologist and is licensed to practice in New York
and Michigan. 	Dr. Dragovic performed an autopsy on
[the decedent] on November 18, 1997. 	He will testify
that the cause of death was acute coronary
insufficiency due to a left anterior descending
coronary artery myocardium bridging anomaly.
The defendants acknowledge that Flora provided them with a
copy of the actual autopsy report on December 1, 1999.
The defendants then filed a motion to dismiss. 	In
that motion, they asserted that plaintiff’s counsel should
have produced the autopsy report earlier in response to the
request for production of documents. 	The defendants
claimed that the report and any pathology slides are
“crucial pieces of evidence in this case which were
specifically requested for in discovery, and withheld from
the defendants . . . .” 	They requested the court to
dismiss the case with prejudice or, in the alternative, to
exclude all evidence regarding the autopsy, including Dr.
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Dragovic’s testimony, and to grant a continuance of the
trial date and an extension of the deadline for
identification of their expert witnesses.
After hearing argument of counsel, the circuit court
issued a letter opinion on February 4, 2000, denying the
motion to dismiss or to exclude the testimony of Dr.
Dragovic. 	However, relying on Code § 8.01-271.1, and Rules
1:4 and 4:1(b)(6), the court sua sponte awarded sanctions
jointly and severally against Flora and Harlan in the
amount of $2,000 to compensate the defendants for fees and
costs in pursuing the motion to dismiss, and in the amount
of $10,000 “as punishment for the willful and deliberate
actions of plaintiff’s counsel.” 	The court concluded that
the autopsy report was a “medical record” that should have
been disclosed in response to the request for production of
documents.3
Flora and Harlan moved the court to reconsider the
imposition of sanctions. 	In a subsequent letter opinion,
the court stated that the motion to reconsider was “totally
without merit.” 	The court then entered an order in
3 In its letter opinion, the circuit court also
referenced a request for production of documents filed by
Sentara Hospitals. 	The plaintiff responded to that request
by stating that “[t]he original records are in the
exclusive possession of this defendant.”
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accordance with its first letter opinion. 	However, in a
subsequent amended order, the court vacated its prior
order, and for the reasons stated in its letter opinion of
February 4, 2000, ordered an award of sanctions in the
total amount of $12,000 against Flora and the Firm, jointly
and severally. 	The only significant difference between the
court’s first order and its amended order is that, in the
amended order, the court did not impose any sanctions
against Harlan. 	Flora and the Firm now appeal the award of
sanctions against them.4
ANALYSIS
In reviewing a trial court’s imposition of a sanction,
“we apply an abuse-of-discretion standard.” 	Oxenham v.
Johnson, 241 Va. 281, 287, 402 S.E.2d 1, 4 (1991). 	We
judge Flora’s conduct by an objective standard of
reasonableness in order to determine whether, after
reasonable inquiry, he could have formed a reasonable
belief that the response to the request for production of
4 Dr. Shulmister and EPT filed a second motion to
dismiss, alleging that the plaintiff had withheld
additional evidence that should have been disclosed in a
supplemental request for production of documents. 	We will
not consider that motion in this appeal because it was
filed after the circuit court entered its amended order
awarding sanctions against Flora and the Firm.
The circuit court eventually dismissed this case with
prejudice upon the representation of the parties that all
claims against Dr. Shulmister and EPT had been settled.
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documents, which omitted the autopsy report, was well
grounded in fact, and warranted under existing law or by a
good faith argument for the extension, modification, or
reversal of existing law. 	Code § 8.01-271.1; Nedrich v.
Jones, 245 Va. 465, 471-72, 429 S.E.2d 201, 204 (1993);
Tullidge v. Board of Supervisors, 239 Va. 611, 614, 391
S.E.2d 288, 289-90 (1990). 	This standard does not require
that we decide that Flora’s response was actually warranted
by existing law. 	Gilmore v. Finn, 259 Va. 448, 467, 527
S.E.2d 426, 436 (2000). 	“ ‘[T]he wisdom of hindsight
should be avoided’ in applying the appropriate objectively
reasonable standard of review.” 	Id. (quoting Tullidge, 239
Va. at 614, 391 S.E.2d at 290).
Flora and the Firm contend that the circuit court
erred in concluding that they had violated Code § 8.01-
271.1, and Rules 1:4 and 4:1(b)(6) by failing to include
the autopsy report in the plaintiff’s response to the
request for production of documents.5 Summarily stated,
5 On appeal, the defendants agree that Flora and the
Firm did not violate Rule 1:4. 	They also acknowledge that
Rule 4:1(b)(6) was not in effect when Flora served the
plaintiff’s response to the request for production of
documents. 	Thus, that rule has no application to the
present case. 	Hence, we will consider only Code § 8.01-
271.1 in determining whether the circuit court abused its
discretion in awarding sanctions against Flora and the
Firm.
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their position is that the autopsy report was not
discoverable pursuant to the request for production of
documents made under the provisions of Rule 4:9 because the
report contains the facts known and opinions held by the
plaintiff’s expert, Dr. Dragovic. 	Thus, Flora and the Firm
argue that the autopsy report was an expert report
discoverable only pursuant to the provisions in Rule
4:1(b)(4) and/or the court’s scheduling order.
On brief, the defendants state that “[t]he dispositive
factor for this appeal is that the defendants’ discovery
request encompassed the autopsy report.” 	Based on the
definition of the term “[d]ocument” to include “reports”
and the request to produce “documents . . . pertain[ing] to
[a]ll medical reports and records,” they argue the autopsy
report fell within the scope of the requested documents.
The defendants further assert that Flora had an affirmative
In pertinent part, Code § 8.01-271.1 provides that the
signature of an attorney on any pleading, written motion,
or other paper of a party “constitutes a certificate . . .
that (i) [the attorney] has read the . . . paper, (ii) to
the best of [the attorney’s] knowledge, information and
belief, formed after reasonable inquiry, it is well
grounded in fact and is warranted by existing law or a good
faith argument for the extension, modification, or reversal
of existing law, and (iii) it is not interposed for any
improper purpose, such as to harass or to cause unneccesary
delay or needless increase in the cost of litigation.” 	If
an attorney signs a paper in violation of this rule, “the
court, . . . upon its own initiative, shall impose . . . an
appropriate sanction.” 	Code § 8.01-271.1.
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obligation under Rule 4:9(b) to file an appropriate
objection if he wished to claim that the autopsy report was
not discoverable under Rule 4:9.
Contrary to the position taken by the defendants, we
do not believe that the dispositive inquiry is whether the
autopsy report was, in fact, encompassed by their request
for production of documents. 	Rather, we are convinced that
the appropriate question is whether, after reasonable
inquiry, Flora and the Firm could have formed a reasonable
belief that the autopsy report is an expert report
discoverable only pursuant to Rule 4:1(b)(4) and the
court’s scheduling order. 	We answer that question in the
affirmative.
The decedent’s family obtained the autopsy
approximately 18 months after the decedent’s death for the
purported purpose of determining whether a cause of action
for medical malpractice/wrongful death was warranted. 	The
report prepared by Dr. Dragovic clearly contained the facts
learned by him through conducting the autopsy and his
opinion as to the cause of death. 	Applying the objective
standard of reasonableness, we conclude that Flora could
have formed a reasonable belief that the autopsy report
contained “facts known and opinions held by [an] expert[],
. . . developed in anticipation of litigation” and was thus
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an expert report. 	Rule 4:1(b)(4). 	As an expert report, it
is discoverable only under Rule 4:1(b)(4).
The scope of documents subject to production under
Rule 4:9 is limited to documents that “constitute or
contain matters within the scope of Rule 4:1(b).” 	Rule
4:9(a). 	The “scope of discovery” under Rule 4:1(b) with
respect to the “facts known and opinions held by experts
. . . in anticipation of litigation” is restricted by the
proviso that such facts and opinions “may be obtained only”
by following the procedures set forth in subsections (A),
(B), and (C) of Rule 4:1(b)(4). 	Thus, a litigant cannot
use a request for production of documents under Rule 4:9 to
circumvent the exclusive method established in Rule
4:1(b)(4) for discovering expert opinions. 	Cf. United
States v. International Bus. Machs. Corp., 72 F.R.D. 78, 81
(S.D.N.Y. 1976) (documentary production and deposition
questions considered in light of constraints delineated by
Federal Rules of Civil Procedure dealing with expert
opinions); Pearl Brewing Co. v. Jos. Schlitz Brewing Co.,
415 F. Supp. 1122, 1136 (S.D. Tex. 1976) (discovery
controversy regarding request for production of documents
under F.R.C.P. 34 governed by F.R.C.P. 26(b)(4)(B)
pertaining to discovery of facts known or opinions held by
expert). 	The general provisions of Rule 4:9 cannot take
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precedence over the more specific requirements of Rule
4:1(b)(4). 	See Natrella v. Board of Zoning Appeals, 231
Va. 451, 461, 345 S.E.2d 295, 302 (1986) (“specific
statutory provision takes precedence over a general
provision addressing the same subject”); see also Quadrini
v. Sikorsky Aircraft Div., United Aircraft Corp., 74 F.R.D.
594, 595 n.1 (D. Conn. 1977) (specific provision of the
Federal Rules of Civil Procedure governing discovery of
expert opinions controls over more general provisions
pertaining to discovery). 	Furthermore, given the reference
in Rule 4:9 to the scope of discovery set forth in Rule
4:1(b), we conclude that Flora could have formed a
reasonable belief that he was not required to file an
objection under Rule 4:9(b) to the request for production
of documents.
We reiterate that, in assessing the propriety of the
imposition of sanctions, the test is not whether the
autopsy report was, in fact, a report containing the facts
known and opinions held by an expert, or whether it was a
“report” encompassed by the request for production of
documents. 	In other words, we do not decide whether
Flora’s response to the request for production of documents
was “actually warranted” under the rules governing
discovery. 	Gilmore, 259 Va. at 467, 527 S.E.2d at 436.
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However, we do conclude that Flora and the Firm, after
reasonable inquiry, could have formed a reasonable belief
that the autopsy report was not discoverable under Rule 4:9
but, instead, discoverable only in compliance with the
provisions of Rule 4:1(b)(4) and the circuit court’s
scheduling order. 	As previously noted, Flora and the Firm
timely complied with that order.
CONCLUSION
For the reasons stated, we conclude that the circuit
court abused its discretion by imposing sanctions against
Flora and the Firm. 	Even though “we accord deference to
the decision of the [circuit] court in this case and will
reverse that decision only if the court abused its
discretion,” this Court does not “simply rubber stamp every
discretionary decision of a trial court.” 	Walsh v.
Bennett, 260 Va. 171, 175, 530 S.E.2d 904, 907 (2000).
Accordingly, we will reverse the circuit court’s judgment
imposing the monetary sanctions against Flora and the Firm.
Reversed and final judgment.
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