Galloway et al v. County of Northampton, Va. S. Ct. 4/1/21
The Virginia Supreme Court upheld the exclusion of a property valuation expert whose identity, but not the substance of his testimony, was disclosed by the deadline set in the scheduling order. But it said it was an abuse of discretion to exclude another expert who was disclosed in an interrogatory answer. The answer was unsigned, a mistake which was self-caught and self-corrected before anyone else said anything about it, but after the deadline. But the Supreme Court points out that the rule is for an unsigned interrogatory answer “to be stricken unless it is signed promptly after the omission is called to the attention of the party ...”. And even without that, counsel and plaintiffs signed enough other parts of the discovery responses “sufficient to satisfy the requirements of Rule 4:1(g).”
As for the first expert, the scheduling order expressly warned that a party who did not comply with the order would “ordinarily not be permitted“ to use evidence that was not disclosed in time. The scheduling order was circulated at the pretrial hearing but not entered until the same day the disclosures were due, four months later. But counsel “had adequate notice” of its terms, having countersigned it the previous month.
The Court reversed the dismissal of the case. The trial court had dismissed it because with no expert witnesses, the plaintiffs could not prove an essential element of it. But with one, they might.