In Temple v. Mary Washington Hospital, Inc., et al., Record No. 131754 (Sept. 12, 2014), the Supreme Court of Virginia opined on an obscure, yet significant, issue related to the common practice of incorporating discovery by court order in subsequent actions where the plaintiff nonsuited its original action.
Jo Ann Knighten Temple, as Administrator of the Estate of Ellis Ethelbert Temple, filed a lawsuit alleging wrongful death and medical malpractice against Mary Washington Hospital, Inc. (“MWH”) and various other defendants. During discovery, the plaintiff filed two motions to compel requesting the trial court to compel MWH to produce (1) policies and procedures related to the care and treatment of patients and (2) MWH’s laboratory reference range for test results measuring troponin. The trial court denied the plaintiff’s motions to compel on the grounds that each of these requests sought documents that were “not relevant, would not lead to discoverable evidence, and were privileged under the statutes.”
Prior to trial, the plaintiff took a voluntary nonsuit pursuant to Va. Code § 8.01-380. The plaintiff filed a new complaint in the same court, against the same defendants and alleging the same causes of action. To streamline discovery, the parties agreed, and the trial court ordered, that “[a]ll discovery conducted and taken in the previous action that the Plaintiff brought against the Defendants…is hereby incorporated in the instant action.” The case was tried and the jury returned a defense verdict. The plaintiff then appealed to the Supreme Court of Virginia seeking reversal of the trial court’s rulings (denials) of her motions to compel in the previous, nonsuited action.
Counsel for MWH argued that the trial court’s order incorporating “all discovery conducted and taken in the previous action” did not include motions, objections, rulings and orders from the previous action. The Supreme Court agreed with MWH discussing the nature and effect of nonsuits. On appeal, the Supreme Court first clarified the nature and effect of nonsuits. The Supreme Court reinforced the long-standing principle that actions filed after a nonsuit are “new actions” that “stand independently of any prior nonsuited action.” In the “new action” all that remains are the parties and the claims the plaintiff chooses to include in the subsequent action.
Although a nonsuit essentially erases the previous action, the parties in the subsequent action can agree to incorporate certain aspects of the previous action to avoid duplicating efforts and save money. However, when doing so, it must be through court order as “trial courts speak only through their written orders.” The Supreme Court held that the trial court’s order incorporating “all discovery” did not include the motions, objections, rulings and orders from the previous suit because these litigation tools are not within the scope of permitted discovery under Rule 4:1(b)(1).
Defendants litigating post-nonsuit actions can learn a couple of valuable lessons from the Temple ruling. First, if you agree to incorporate discovery through court order, you must pay close attention to the language of the order. Since courts only speak through orders, every word matters, and the court will presume that the language in the order accurately reflects what transpired. Second, defendants must decide whether incorporating discovery is worth the monetary savings. If a plaintiff insists on incorporating unfavorable rulings from the previous action, then re-litigating these issues may be worth the extra costs in the subsequent action. As the Supreme Court astutely recognizes in Temple, a nonsuit is a “powerful tactical weapon in the hands of a plaintiff.” Therefore, defendants must be cognizant of the various ways to counteract this tactical weapon and use it to our advantage.
