‘Landmark’ discovery ruling may not be an option
By Deborah Elkins, Virginia Lawyers Weekly – 6/5/2014
Lawyers looking for a landmark ruling on discovery of hospital policies and medical record metadata may be disappointed, judging from Supreme Court arguments on June 5.
The court granted a writ in Temple, Adm’r v. Mary Washington Hospital, an estate’s appeal of a med-mal verdict for defendants, on two discovery issues: requests for the hospital’s policies on the use of troponin, a biomarker for cardiac injury; and requests for data and metadata relating to the decedent’s electronic medical records.
Virginia Beach lawyer Steve Emmert, appearing for the appellant, was in familiar territory responding to the court’s close questioning on just how the substantive discovery issues had been framed and preserved.
Discovery already had been conducted in Temple when the plaintiff nonsuited the case. When the refiled case proceeded with the same trial judge and same trial lawyers, the parties and court agreed that discovery-related rulings would carry over to the refiled suit, according to the appellant’s argument.
In September 2012, “the trial court specifically entered an order incorporating discovery before the nonsuit,” Emmert told the court, which he said preserved the issues at hand. The order may not have been as finely wrought as the appellate court wished, but the parties interpreted it to cover the whole process of discovery, not just a specific set of questions and answers, appellants argued.
“They want a landmark case,” said Richmond lawyer Angela Axselle, referring to the plaintiffs’ discovery dispute, which drew a 77-page amicus brief from the Virginia Trial Lawyers Association.
But “this is really a procedural case and you can’t get to those issues of policy and metadata,” Axselle told the court. After the first case was nonsuited, the discovery engagement was over, and there was a clean slate, she argued for the defendants.
Axselle disagreed that the September 2012 order worked to cover the policy and metadata claims, saying the context of the order was a dispute about the hospital’s motion to exclude a plaintiff’s expert at trial, and it was not a wholesale incorporation of prior discovery.
Turning briefly to the merits of the metadata claim, Justice Donald W. Lemons asked why the plaintiff could not get the detail it needed on who entered what information into the medical records by deposing the corporate representative proffered by the hospital. Emmert said the “data itself could tell a different story” than “simply a description of the information” in a deposition.