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Gross v. Stuart

Supreme Court of Virginia

August 29, 2019

Michael Phillip Gross, et al., Appellants,
Supen Peze Stuart, Appellee.

          Upon an appeal from a judgment rendered by the Circuit Court No. 2016-16283 of Fairfax County.

         Michael Phillip Gross and William Plastic Surgery and Spa Services Company, LLC (hereinafter referred to collectively as "Dr. Gross") appeal from the judgment entered by the circuit court on a jury verdict returned in favor of Supen Peze Stuart. Upon consideration of the record, briefs, and argument of counsel, the Court is of the opinion that there is no reversible error in the judgment of the circuit court.


         Stuart brought a medical malpractice action against Dr. Gross alleging that he negligently performed a blepharoplasty procedure, [1] resulting in permanent injury to the right levator muscle and leaving Stuart functionally blind in her right eye. The jury returned a verdict in favor of Stuart and awarded $800, 000 in compensatory damages. The circuit court entered a judgment order, which was suspended by subsequent order to allow the filing of post-trial motions. After briefing and argument on post-trial motions, the circuit court entered a final order denying the motions, and the previously suspended judgment order went into effect. This appeal followed.


         In his first assignment of error, Dr. Gross asserts that the circuit court erred in denying his motion in limine and in permitting Stuart to cross-examine the defense medical expert, Dr. John Pitman, regarding matters that were the subject of a disciplinary proceeding against Dr. Pitman.


         Prior to trial, Dr. Gross moved to exclude matters referenced in a consent order entered into by Dr. Pitman with the Virginia Board of Medicine (the "Consent Order"). Specifically, the Consent Order outlined the Board's findings of fact and conclusions of law with regard to certain instances in which Dr. Pitman violated the Virginia laws and regulations concerning his medical practice in Virginia that occurred in connection with his deployment to Afghanistan.[2] Dr. Gross argued that the evidence should be excluded on the grounds that it was not relevant, collateral to the relevant issues, and unduly prejudicial. The circuit court denied Dr. Gross's motion, finding the evidence relevant, and observing that Dr. Gross "can rehabilitate [Dr. Pitman] with whatever you need to on redirect" and instructed Stuart that "it shouldn't be mentioned in the voir dire or opening." The circuit court further instructed Stuart that she should advise the court before "going down that path."

         At trial, Dr. Gross called Dr. Pitman as an expert and directed him to review with the jury his education, training, licensing, board certification, honors, awards, and teaching and practice experience. Dr. Pitman described his practice during military deployment, the number of his deployments, his treatment of combat injuries, and major reconstructions following combat type injuries.[3] In reliance on his background, knowledge, and experience, Dr. Pitman rendered several opinions, including that Dr. Gross complied with the standard of care.

         During Stuart's cross-examination, she advised the circuit court of her intention to ask Dr. Pitman "about a series of actions where he was cited by the board of medicine for violation of law and health regulations with regard to his practice" without asking Dr. Pitman about any sanctions. Over Dr. Gross's objection, the circuit court permitted Stuart to question Dr. Pitman about certain findings set forth in the Consent Order.

         Stuart prefaced her inquiry by asking Dr. Pitman to agree that he had given certain opinions regarding "how you would expect a reasonably prudent surgeon to practice in Virginia," "that all doctors practicing in Virginia should practice within that standard," and "that practicing within the standard of care would include complying with state laws concerning the practice of medicine and regulations of the board of medicine." Without expressly referring to the Consent Order, Stuart then proceeded to ask Dr. Pitman whether during his deployment to Afghanistan, certain facts regarding his medical practice in Virginia were true. Stuart also asked Dr. Pitman to agree that he "had an opportunity to either admit or deny these allegations in an administrative hearing and [he] chose to not deny these allegations."[4] On redirect, Dr. Pitman addressed the matters raised by Stuart and explained the circumstances surrounding his deployment, the placement of his patients, and the status of his Virginia medical practice during his deployment.


         We conclude the circuit court did not abuse its discretion in determining that this evidence was relevant to the jury in determining the weight accorded to Dr. Pitman's opinions and in permitting the cross-examination of Dr. Pitman on these matters.[5]

         "With regard to the admission of evidence, the responsibility for balancing the competing considerations of probative value and prejudice rests in the sound discretion of the trial court. The exercise of that discretion will not be disturbed on appeal in the absence of a clear abuse." Lombard v. Rohrbaugh, 262 Va. 484, 492 (2001) (citation omitted). "[W]hen a decision is discretionary . . . the court has a range of choice, and . . . its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law." Martin v. Lahti, 295 Va. 77, 88 (2018) (quoting Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352 (2011) (citations and internal quotation marks omitted) (alteration in original). "A great deal must necessarily be left to the discretion of the [trial court], in determining whether evidence is relevant to the issue or not. Evidence is relevant if it has any logical tendency ...

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