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Nonsuits in Virginia – The Virginia Supreme Court Gives Litigants a Wake-Up Call

January 15, 2015 By Jennifer L. Rowlett

In Temple v. Mary Washington Hospital, et al., the Virginia Supreme Court held, once again, that they take a very literal view when interpreting court orders.  In doing so, they reminded Virginia attorneys about the importance of preserving appeal rights.

The case involved a wrongful death and medical malpractice claim filed by the administrator of an estate for her husband’s death.  During discovery, the Plaintiff Estate filed two motions to compel discovery against the Defendants, requesting electronically stored information as well as hospital policies and procedures.  The trial court ultimately sustained the Defendants’ objections to Plaintiff’s motions and they were denied.  Prior to trial, the Estate exercised its right to take a nonsuit under Virginia Code 8.01-380.

The case was timely re-filed with identical claims and parties.  The parties entered an Agreed Order, which stated, “All discovery conducted and taken in the previous action that the Plaintiff brought against the Defendants … is hereby incorporated into the instant action.”

The newly filed case proceeded to trial where a jury found in favor of the Defendants.

Plaintiff Estate moved for a new trial and for reconsideration of the evidentiary rulings in the prior motions to compel discovery from the Defendants.  The trial court denied the post-trial motion and Plaintiff appealed alleging the following errors by the trial court:

  1. The trial court erred in sustaining the Defendants’ objections to Plaintiff’s discovery requests for the Defendants’ policies and procedures;
  2. The trial court erred in sustaining the Defendants’ objections to Plaintiff’s discovery requests for the Defendant’s electronically stored information.

The Supreme Court found that the Plaintiff could not appeal the trial court’s rulings on the discovery disputes because those rulings, made during the first filing of the case, were not incorporated into the newly filed case.  The agreed order expressly and specifically incorporated “discovery conducted and taken in the previous action” and did not incorporate the motions, objections, and rulings on the motions.

The Court emphasized its long history of treating re-filed cases following a nonsuit as new, independent actions. Taking a nonsuit basically renders the first filing non-existent – as if it had never been filed.  The Court reasoned that the ability to take a nonsuit is a “powerful tactical weapon” in the hands of a plaintiff and found that if the Plaintiff in this action wanted the prior case rulings incorporated into the new filing, the order was required to explicitly provide for such incorporation.

The issues surrounding a plaintiff’s “second bite at the apple” after taking a nonsuit can be quite confusing.  If you find yourself dealing with such questions following a nonsuit, the attorneys at DeCaro Doran can assist you in analyzing the particular issues in your case and help develop a strategy to deal with them.