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PRESENT: All the Justices. JENNIFER WRIGHT v. Record No. 030658 OPINION BY JUSTICE G. STEVEN AGEE March 5, 2004

RICHARD C. KAYE, M.D.

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Herman A. Whisenant, Jr., Judge

Prior to trial in this medical malpractice case, the trial court struck three standard of care expert witnesses designated by plaintiff Jennifer Wright ("Wright"), based on the fact that none had performed a urachal cyst excision, the exact medical procedure performed upon the plaintiff by the defendant, Dr. Richard C. Kaye ("Dr. Kaye"). With leave of court Wright

designated a fourth expert witness who had performed that procedure, but the trial court also struck that expert. The

trial court then granted a motion for summary judgment by Dr. Kaye, denied Wright's motion for reconsideration, and dismissed Wright's case with prejudice. On appeal to this Court, Wright assigns error to the trial court's rulings striking all of her expert witnesses, the use of depositions as a basis for the court's decisions, the grant of summary judgment, and the denial of her motion for reconsideration. She also assigns error to the trial court's

denial of certain motions in limine.

I.

BACKGROUND

On August 20, 1997, Dr. Kaye performed diagnostic laparoscopic surgery on Wright to discover the source of her chronic pelvic pain. her urachus.1 During the procedure he found a cyst on

Using an internal surgery and suturing device

known as an endo-GIA surgical stapler, Dr. Kaye excised the cyst and stapled the affected area closed, noting in his operative report that "[i]t appeared that this was done away from the bladder." Following removal of the cyst, Wright's bladder was filled with methylene blue and Dr. Kaye noted none was observed in the pelvis. Dr. Kaye did not perform a cystoscopy to visualize the

dome of the bladder to determine whether staples were inserted into it during the cyst excision procedure. Following the surgery, Wright began to experience urinary frequency and urgency with bladder spasms. Eventually she

consulted physicians other than Dr. Kaye when her symptoms continued unabated. Approximately one year after the surgery,

another surgeon discovered and removed six surgical staples from Wright's bladder, apparently left from the urachal cyst

The "urachus" is "[a]n epithelioid cord surrounded by fibrous tissue extending from the apex of the bladder to the umbilicus. In the embryo, it is continuous with the allantoic stalk; postnatally it forms the middle umbilical ligament of the bladder." Taber's Cyclopedic Medical Dictionary 2180 (19th ed. 2002). 2

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laparoscopy. dysfunction.

Wright continues to suffer permanent bladder

Prior to trial Wright designated three expert witnesses2 ("Wright's experts") to testify regarding the applicable standard of care. Wright's experts specialized in the same

field of medicine as Dr. Kaye, obstetrics and gynecology, and two of them had subspecialties in urogynecology. Although

Wright's experts had all performed multiple laparoscopic surgeries, including the removal of cysts in the female pelvic area near the bladder in procedures employing a surgical stapler, each testified in depositions they had never removed a cyst located on the urachus. Dr. Kaye moved the trial court to

strike Wright's experts on the basis that "none of these experts have `recently engaged in the actual performance of the procedures at issue in [the] case.' " Approximately four weeks

prior to trial, the trial court granted Dr. Kaye's motion and struck Wright's experts, finding they lacked "knowledge of this particular specialty." After Wright's experts were stricken, Dr. Kaye moved for summary judgment claiming Wright did not have the required experts to support her allegations of breach of the standard of

For purposes of this opinion Dr. Bruce A. Rosenzweig, Dr. Mickey M. Karram and Dr. Michael A. Ross are included in the term "Wright's experts." Dr. Charles M. Jones is excluded from that term and referred to by name. 3

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care.

Wright moved for a continuance and leave to designate a The trial court deferred ruling on Dr.

new expert witness.

Kaye's motion until the trial date and granted Wright's motion to file a supplemental designation of experts. The trial court

did not rule on Wright's motion for a continuance, but took it under advisement pending the trial date to await the designation of an expert. Wright timely designated a new expert witness,

Dr. Charles M. Jones ("Dr. Jones"). Dr. Kaye had previously designated a standard of care expert, Dr. Hans-Barthold Krebs ("Dr. Krebs"), a shareholder in the same professional corporation as Wright's current treating physician, Dr. Jeffrey A. Welgoss ("Dr. Welgoss"), who was to testify for Wright. Wright filed a motion in limine to exclude

and disqualify Dr. Krebs as an expert witness asserting it would be a conflict of interest for him to testify because of the professional relationship between Drs. Krebs and Welgoss. Further, Wright contended that Dr. Krebs' testimony would violate the patient-physician relationship protected by Code

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