A Carluzzo Rochkind & Smith note: Following is an excellent article by Virginia Lawyers Weekly. We did not handle this case, but it brings up important points your personal injury lawyers should be familiar with. For more than 30 years our personal injury lawyers in Manassas have helped clients with such matters in Prince William County, Fairfax County, Woodbridge, and throughout Northern Virginia. If you have any questions or would like to schedule an appointment, please contact our law firm at (703) 361-0776.
Motion to amend complaint denied
By Virginia Lawyers Weekly – 10/9/2023
Where plaintiff seeks to amend a complaint she filed in February 2016, leave is denied because “all additional facts and all additional claims Plaintiff seeks to assert were known at the time of the initial filing in 2016.” Further, because plaintiff did not certify a necessary expert, defendant is granted summary judgment.
Legal Standard
“When determining whether to grant leave to amend, the circuit court is instructed to consider the following factors: (1) whether the defendant will be prejudiced, (2) whether such prejudice will affect defendant’s ability to have a fair trial, and (3) plaintiff’s right to be compensated fully for any damages caused by defendant. …
“Amendments to pleadings are not a matter of right, but a circuit court’s decision refusing leave to amend after a showing of good cause is, in ordinary circumstances, an abuse of discretion.”
Prior proceedings
“[T]he event giving rise to the case occurred on February 9, 2014. Plaintiff filed her initial complaint against several defendants on February 9, 2016. On immunity grounds, the trial court issued a final order in favor of all defendants on February 28, 2020.
“Plaintiff appealed that decision to the Supreme Court of Virginia, and the Supreme Court issued its decision on December 22, 2021, reversing the trial court decision solely as to Defendant. See Stoots v. Marion Life Saving Crew, Inc., 300 Va. 354, 867 S.E.2d 40 (2021).
“On April 17, 2023, Plaintiff filed this Motion to Amend, asking the Court for leave to file an amended complaint against Defendant.”
Discussion
“The Court finds it important that more than nine years passed since the event giving rise to this case, more than seven years passed since Plaintiffs initial filing, more than 5 years passed since Plaintiff deposed Defendant’s witnesses, and more than 15 months passed between the Supreme Court’s ruling on the trial court’s final order and Plaintiff’s election to amend her complaint.
“These delays are particularly concerning where there is no valid rationale for it, such as the discovery of new evidence. Rather, Plaintiff argues the general standard is liberal in permitting amendments and thus it would be unfair not to allow Plaintiff to amend her complaint to insert both additional facts and additional claims.
“While admittedly concerning that the Court’s conclusion on this issue likely will deny Plaintiff the right to have her proverbial day in court, the Court finds that all additional facts and all additional claims Plaintiff seeks to assert were known at the time of the initial filing in 2016.
“Plaintiff does not provide any reason, or good cause, such as newly discovered evidence, why Plaintiff is seeking to amend her complaint in 2023 when the initial filing occurred in 2016.
“Defendant, on the other hand, has established that it would be prejudiced by the amendment.
“Given the passage of time, coupled with the exposure that is sure to follow by the inclusion of distinct (and additional) causes of action against a Defendant that legally ceased to exist almost nine years ago, it strains logic to argue that a defendant facing potentially significant liability would not be prejudiced by an amendment.”
Summary judgment
Defendant has moved for summary judgment based on plaintiff’s failure to certify an expert.
“Plaintiff concedes that she did not retain an expert pursuant to Va. Code Ann. § 8.01-20.1.
“Plaintiff argues that an expert is not required in this case because the alleged negligence of Defendant’s employees is within the jury’s common knowledge and experience. …
“While the Court recognizes the exception to the expert certification requirement, the Court does not find that the exception applies in this case.
“Here, Plaintiff cannot avoid the expert certification requirement because the alleged acts of negligence arc not clearly within the jury’s common knowledge and experience. Incorrectly interpreting an advanced medical directive and then linking that failure to loss of chance or wrongful death is not an issue within a jury’s common knowledge and experience.
“There are all sorts of issues in this case that require an expert. For example, if the advanced medical directive was interpreted correctly, would the decedent have survived? Moreover, determining the damages in this case, given the facts, is not clearly within the jury’s common knowledge and experience. …
“It is Plaintiff’s burden to establish negligence, causation, and damages. The Court finds and concludes that on at least two of those issues (causation and damages), expert testimony is required and Plaintiff failed to certify the requisite expert.
“Because the Court finds that Plaintiff has failed to certify an expert as required, and this case does not fit within the exception to that requirement, the Court dismisses this case, with prejudice.”
Leave to amend denied. Summary judgment for defendant
In re: Stoots v. Marion Life Saving Crew, Case No.: CL-16187, September 14, 2023. In the Circuit Court of the City of Newport News (Carson). Mary Lynn Tate, Johneal M. White for the parties. VLW 023-8-062, 4 pp.
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