Opinion
Civil Case No.: CL16-3944
12-30-2016
WARD BYINGTON, GUARDIAN AND CONSERVATOR, OUIDA BYINGTON, Plaintiff, v. SENTARA LIFE CARE CORPORATION d/b/a SENTARA NURSING CENTER—NORFOLK, et al., Defendants.
ORDER
Ward Byington ("Mr. Byington"), in his capacity as guardian and conservator of Ouida Byington ("Ms. Byington"), and Defendants Sentara Life Care Corporation d/b/a Sentara Nursing Center—Norfolk ("Sentara"), Lanesha Saunders, LPN, Theron Nichol, LPN, Levanda Gilliam, CNA, and Comfort Odurukwe, CNA (collectively, "Defendants") appeared by counsel before this Court on December 20, 2016, for a hearing (the "Hearing") on Defendants' Plea of Estoppel and Motion for Costs, Defendants' Objections to Designated Portions of the Deposition of Cathy Cao, M.D., and an evidentiary hearing regarding Ms. Byington's incapacity as ordered by the Court in its August 1, 2016, Order. At the conclusion of the Hearing, the Court took the matters under advisement.
Now the Court—after reviewing the related briefs, considering the argument of counsel, and consulting applicable authorities—OVERRULES Defendants' Plea of Estoppel, GRANTS Defendants' Motion for Costs, OVERRULES Defendants' Objections to Designated Portions of the Deposition of Cathy Cao, M.D., and finds that Ouida Byington was incapacitated on or before July 2011 and never regained capacity, such that the Complaint in this matter is deemed to be timely filed. The bases for the Court's rulings are as follows.
Procedural Background
A long and tortured procedural path has led the parties to their present positions.
Ouida Byington filed a medical malpractice action on September 19, 2014, stemming from an alleged personal injury that occurred at Sentara Nursing Center—Norfolk on April 18, 2013 (the "Incident"). The Complaint was filed in her personal capacity. Defendants filed a Motion to Dismiss on March 17, 2015, asserting that based on Plaintiff's counsel advising "that Ms. Byington's mental state has deteriorated to the point that she cannot respond to discovery," "it is clear that the Plaintiff lacks capacity to prosecute this lawsuit on her own behalf." (Mot. to Dismiss 1, Byington v. Sentara Life Care Corp., et al., No. CL14-6626 (Norfolk Cir. Ct. Mar. 17, 2015).) On April 2, 2015—more than six months after filing suit—Plaintiff's counsel filed a Motion to Amend Complaint, seeking to "remove Plaintiff Ouida Byington, from the above-styled action and substitute in lieu thereof 'Ward Byington on behalf of his mother and next friend Ouida Byington' as the proper Plaintiff." (Mot. to Amend 1, Byington v. Sentara Life Care Corp., et al., No. CL14-6626 (Norfolk Cir. Ct. July 28, 2015).) The Court denied Plaintiff's Motion to Amend Complaint.
According to the Certificate of Service, the pleading was mailed to Defendants' counsel on March 24, 2015. The timing and circumstances indicate that the Plaintiff's Motion to Amend was filed in response to Defendants' Motion to Dismiss.
On July 13, 2015—four and a half months before the scheduled trial—Plaintiff's counsel filed a Motion to Appoint Michael Weisberg, Esq. as Guardian ad Litem pursuant to Section 8.01-9B of the Code of Virginia, i.e., to substitute himself as plaintiff. Defendants objected and again moved to dismiss the lawsuit, contending that it was inappropriate for counsel to name himself as plaintiff and that such action was inconsistent with the intended purpose of Section 8.01-9B. On July 28, 2015, the Court held a hearing at which it, inter alia, ordered that "Plaintiff's Counsel shall file a Petition for Guardianship/ Conservatorship in accordance with Va. Code Ann. § 64.2-2001, et seq." and denied Defendants' Motion to Dismiss in order to "to allow Plaintiff time to file the appropriate Petition for Guardianship/Conservatorship." (Order, Byington v. Sentara Life Care Corp., et al., No. CL14-6626 (Norfolk Cir. Ct. Aug. 20, 2015).)
On August 19, 2015, Defendants filed another Motion to Dismiss, in which they asserted that Plaintiff's counsel had represented that Ms. Byington lacked capacity and was not aware of the Complaint; that Plaintiff's counsel had failed to petition for guardianship/conservatorship; and that, during the same time period, Mr. Byington testified that his mother was able to answer questions in a deposition. At the related hearing, Defendants argued that the state of Ms. Byington's mental health was unclear and that they were prejudiced by Plaintiff's failure to timely designate an appropriate person to prosecute the suit and/or because they should not have to defend an action filed on behalf of a competent Plaintiff without that Plaintiff's knowledge or consent.
After a Petition for Guardianship/Conservatorship had not been filed in the five weeks following the July 28, 2015, hearing and in light of the alleged confusion regarding Ms. Byington's capacity, Defendants claim they requested to conduct Ms. Byington's deposition in September 2015. When no response was received from Plaintiff, Defendants filed another Motion to Dismiss—this time for failure to produce a material witness—on September 18, 2015. After Plaintiff failed to timely designate experts for the scheduled December 7, 2015, trial, Defendants also filed a Motion in Limine and Motion for Summary Judgment.
Plaintiff's counsel filed his first Petition for Guardianship/Conservatorship on October 1, 2015, but never pursued it. (Petition for the Appointment of Guardian and Conservator for Ouida Byington, Byington v. Byington, No. CL15-10060 (Norfolk Cir. Ct. Oct. 1, 2015).) A hearing on the Motion to Dismiss, Motion in Limine, and Motion for Summary Judgment was held on October 6, 2015, where Plaintiff elected not to argue the matters. Plaintiff instead took a nonsuit, and the Court entered a related Order that day. (Nonsuit Order, Byington v. Sentara Life Care Corp., et al., No. CL14-6626 (Norfolk Cir. Ct. Oct. 6, 2016).)
On December 17, 2015, Plaintiff's counsel filed a second Petition for Appointment of Guardian and Conservator of Ouida Byington. (Petition, Re: Appointment of Guardian and Conservator for Ouida Byington, CL15-13003 (Norfolk Cir. Ct. Dec. 17, 2015).) On February 4, 2016, Plaintiff's counsel refiled the nonsuited action in the name of "Ward Byington, on behalf of his mother and next friend Ouida Byington"—as he had requested a year earlier in the Motion to Amend Complaint, which the Court denied. Defendants again moved to dismiss the Complaint. On April 12, 2016, the Court entered an Order stating that Mr. Byington "does not have standing or authority to file suit on behalf of his mother as 'next friend,' and no Order had been entered appointing him as conservator for purposes of bringing forth litigation on [Ms.] Byington's behalf" and dismissing the suit without prejudice. (Dismissal Order, Byington v. Sentara Life Care Corp., et al., No. CL16-1270 (Norfolk Cir. Ct. Apr. 12, 2016).)
On April 5, 2016—eight months after the Court's Order instructing that a Guardian/Conservator be appointed—Ms. Byington was adjudicated incapacitated and Mr. Byington qualified as guardian and conservator of the estate of Ouida Byington for purposes of the instant litigation. (Decree, Re: Appointment of Guardian and Conservator for Ouida Byington, No. CL15-13003 (Norfolk Cir. Ct. Apr. 5, 2016).) On April 8, 2016—two days after the expiration of the six-month period in which to re-file the nonsuited action—Mr. Byington, as guardian and conservator of Ouida Byington, filed the Complaint now before the Court.
Shortly thereafter, Defendants filed a Special Plea in Bar, pursuant to Section 8.01-229(E) of the Code of Virginia, asserting that the statute of limitations had run. Plaintiff responded by filing a Grounds of Defense, arguing that Ms. Byington was "incapacitated considerably before filing her complaint in the instant matter on April 8, 2016." (Grounds of Defense 1.) A hearing on the Special Plea in Bar and Grounds of Defense was held on June 22, 2016. There, Plaintiff's counsel alleged for the first time that Ms. Byington lacked capacity from the inception of the original Complaint—September 19, 2014—and that, under Section 8.01-229(A)(2)(b), the statute of limitations therefore was tolled until one year after qualification of a guardian or conservator, rendering the April 8, 2016, Complaint timely filed. On August 1, 2016, the Court overruled Defendants' Special Plea in Bar but allowed counsel additional time to conduct discovery on the limited issue of Ms. Byington's incapacity in preparation for an evidentiary hearing on the issue. (Order, Aug. 1, 2016).)
Of note, no mention was made in the pleading that Ms. Byington was incapacitated prior to filing her original Complaint on September 17, 2014.
No argument was made by Defendants at that hearing that Ms. Byington regained capacity at any time after the onset of her incapacity.
Subsequent to the June 2016 hearing, Defendants filed a Plea of Estoppel and Motion for Costs based on Plaintiff allegedly taking inconsistent positions during the litigation associated with the Incident and Plaintiff's related alleged misrepresentations. In support of the pending evidentiary hearing regarding Ms. Byington's incapacity, on November 30, 2016, Plaintiff deposed Cathy Cao, M.D.—Ms. Byington's treating neurologist between September 2010 and January 2012—and Defendants subsequently filed objections to designated portions of Dr. Cao's deposition. The Court held a hearing on Defendants' Plea of Estoppel and Motion for Costs and Defendants' Objections to Designated Portions of the Deposition of Cathy Cao, M.D., and also presided over an evidentiary hearing regarding Ms. Byington's incapacity, on December 20, 2016 (the "Hearing").
At the Hearing, Plaintiff's sole evidence to support that the inception of Ms. Byington's incapacity was on or before the Incident, and that she has not subsequently regained capacity, was the transcript of Dr. Cao's deposition and the accompanying deposition exhibit (Dr. Cao's medical record for Ms. Byington). Defendants did not present any evidence on the incapacity issue, asserting that Plaintiff failed to satisfy her burden of proof.
Defendants' Plea of Estoppel and Motion for Costs
Defendants' Plea of Estoppel and Motion for Costs asserts that Plaintiff has taken inconsistent positions and made associated misrepresentations during the pending litigation and that Plaintiff therefore is estopped—under principles of judicial estoppel or, alternatively, equitable estoppel—from prosecuting her claim. The Court disagrees.
Judicial Estoppel
Defendants contend that Plaintiff took the position that Ms. Byington was not incapacitated when she filed her initial Complaint and took the subsequent (and current) position that she was incapacitated at that time only after missing the nonsuit deadline. (See generally Defs.' Plea of Estoppel & Mot. for Costs.)
Defendants base their claim that Plaintiff took the position that Ms. Byington was not incapacitated when she initially filed suit on the following: the initial Complaint was filed by Ms. Byington individually; it took almost nineteen months after the initial Complaint was filed—and eight months after the Court Order instructing that a guardian/conservator be appointed—to appoint a guardian/conservator; and Mr. Byington testified in his deposition that his mother "might" be able to understand and answer questions. (See id. ¶¶ 1, 6, 14.)
Although excerpts from Mr. Byington's deposition transcript were included as a pleading exhibit, they were not offered into evidence at the Hearing, and Mr. Byington—despite being present at the Hearing—was not called to testify.
Defendants base their claim that Plaintiff took the position that Ms. Byington was incapacitated as of the date of the initial filing—in addition to such being Plaintiff's current position before the Court—on the following: Plaintiff's counsel's represented in early 2015 that Ms. Byington's mental state had deteriorated to the point that she could not respond to discovery, Mr. Byington testified in his deposition that Plaintiff's counsel had never spoken to Ms. Byington and that she was unaware that a lawsuit had been filed on her behalf, and Plaintiff took such a position in recent pleadings. (See id. ¶¶ 2, 6, 17.)
Defendants filed a related Motion to Dismiss on March 17, 2015, asserting that "it is clear that the Plaintiff lacks capacity to prosecute this lawsuit on her own behalf." (Mot. To Dismiss, Byington v. Sentara Life Care Corp., et al., No. CL14-6626 (Norfolk Cir. Ct. Oct. 6, 2016).) Defendants therefore were aware only a few months after the initial Complaint was filed that Plaintiff's position was that Ms. Byington was incapacitated at least as of early 2015.
Courts have pointed out that the terms "doctrine of estoppel by inconsistent position" and "judicial estoppel" have been used interchangeably. See, e.g., Lofton Ridge, LLC v. Norfolk S. Ry., 268 Va. 377, 380, 601 S.E.2d 648, 650 (2004). "Essentially, judicial estoppel forbids parties from assuming successive positions in the course of a suit, or series of suits, in reference to the same fact or state of facts, which are inconsistent with each other, or mutually contradictory." Id. at 380-81, 601 S.E.2d at 650 (internal quotation and citation omitted). The doctrine is designed to protect the integrity of the courts and the judicial process. Va. Elec. & Power Co. v. Norfolk S. Ry. Co., 278 Va. 444, 465; 683 S.E.2d 517, 529 (2009). The Virginia Supreme Court recently explained the doctrine of judicial estoppel as follows:
The doctrine protects a basic tenet of fair play: No one should be permitted, in the language of the vernacular, to talk through both sides of his mouth. Doing so in the judicial context is thought to be "playing fast and loose" with the courts, or "blowing hot and cold" depending on perceived self-interest. To protect against such double-speak, Virginia law does not require "a showing of prejudice" as a "prerequisite to the application of judicial estoppel."Wooten v. Bank of America, N.A., 290 Va. 306, 310, 777 S.E.2d 848, 850 (2015) (internal citations omitted). The court also noted that judicial estoppel is implicated only if the prior inconsistent position was to some degree relied upon by the court, and that the doctrine is subject to the limitation that, despite its importance, it must be shown that the litigant being estopped actually made a previous affirmative, inconsistent representation to the court. Id. at 310 & n.1, 777 S.E.2d at 850 & n.1.
As an initial matter, the Court is not persuaded that Plaintiff indeed has taken inconsistent positions, and in any case, it is clear that Plaintiff has not affirmatively taken inconsistent positions. Although filing the initial Complaint in her personal capacity clearly was improper if Ms. Byington was incapacitated at the time—as were the subsequent attempts to file related Complaints prior to a guardian and conservator being appointed—such inappropriate filings do not constitute affirmative statements or misrepresentations that Ms. Byington in fact was not incapacitated at the time. In fact, the initial Complaint alleges that Ms. Byington has "dementia," "was known to have a well-established history of falls and wandering along with sundowning behaviors," and while hospitalized "was utilizing restraints and the services of a caregiver." (Compl. 2, Byington v. Sentara Life Care Corp., et al., No. CL14-6626 (Norfolk Cir. Ct. Sept. 19, 2014).) The Court also does not equate Mr. Byington's opinion that his mother might be able to understand and answer questions as equivalent to an affirmation or misrepresentation of capacity. Defendants also have offered no argument that the Court relied upon the alleged prior inconsistent statement—that Ms. Byington was not incapacitated—and the Court is not aware of any such reliance.
The Court also finds it inappropriate that Defendants' counsel characterizes Mr. Byington's actual deposition testimony—that Ms. Byington "might" be able to understand and answer questions if Defendants' counsel "were to sit down with your mom and ask questions"—as she did in Defendants' Plea of Estoppel and Motion for Costs—that "Ward Byington testified that his mother would be able to understand and respond to questions if deposed by counsel." (Compare Defs.' Plea of Estoppel & Mot. For Costs 2 (emphasis added) with id., Ex. B, 78:18-23 (emphasis added).) This strikes the Court to be the type of "playing fast and loose" associated with judicial estoppel about which Defendants complain.
Because Defendants failed to demonstrate that Plaintiff affirmatively took inconsistent positions and offered no evidence that the Court relied upon a prior inconsistent position, the Court finds that Defendants have not proved the elements necessary for judicial estoppel.
Equitable Estoppel
The elements of equitable estoppel are a misrepresentation or concealment of material facts by one party, reliance by a second party on those facts, the second party's change of position, and the second party's detriment or injury. Cowan v. Psychiatric Assoc., 239 Va. 59, 63, 387 S.E.2d 747, 749 (1990). "[T]he misrepresentation must be plain, not doubtful, or matter of mere inference or (non-expert) opinion." Cty. of Albemarle v. Massey, 183 Va. 310, 316, 32 S.E.2d 228, 230 (1944) (quoting Taylor v. Cussen, 90 Va. 40, 43, 17 S.E. 721, 722 (1893)). Further, the defendants' reliance upon the misrepresentation must have induced them to do something they otherwise would not have done. Sch. Bd. of Carroll Cty. v. First Nat'l Bank, 161 Va. 127, 138, 170 S.E. 625, 628 (1933). If a defendant is successful in proving these elements, the plaintiff will be precluded from asserting a different state of facts from that indicated by her prior statements or conduct if the defendants have so far changed their position that they would be injured thereby. Emrich v. Emrich, 9 Va. App. 288, 294, 387 S.E.2d 274, 276-77 (1989).
Defendants point to no significant evidence that they relied on the alleged position that Ms. Byington was not incapacitated or that such reliance induced them to change their position in some material respect. The Court does not find that having to respond to inappropriately filed pleadings or attempting to schedule depositions constitutes the kind of detrimental reliance or change in position required for equitable estoppel, and the Defendants offered nothing further in their Plea of Estoppel or in argument. In addition to allegations in the initial Complaint that imply incapacity, the issue of incapacity was raised only a few months after that Complaint was filed, notwithstanding the fact that it took Plaintiff almost nineteen additional months to file an appropriately styled suit. Even assuming arguendo there was some reliance by Defendants on Ms. Byington's capacity, such reliance therefore was short-lived.
Because Defendants failed to demonstrate their detrimental reliance or change in position as a result of a misrepresentation or concealment of material fact, the Court finds that Defendants have not proved the requisite elements of equitable estoppel.
Having found Defendants failed to prove the elements necessary to justify either judicial estoppel or equitable estoppel, the Court OVERRULES Defendants' Plea of Estoppel.
Motion for Costs
The Court appreciates Defendants' frustration in having to deal with and respond to the many improper court filings in this case. As discussed infra, the inception of Ms. Byington's incapacity appears to significantly predate the initial filing of the Complaint. To the extent that Plaintiff's counsel filed suit in Ms. Byington's personal capacity with the understanding that she was not incapacitated, the Court is forced to conclude that Plaintiff's counsel failed to meet with Ms. Byington prior to filing suit on her behalf or, at the very least, failed to complete the due diligence required prior to signing the initial Complaint. See Va . Code § 8.01-271.1 (2016 Repl. Vol.). Additionally, despite specific direction by the Court, Plaintiff's counsel failed to diligently appoint a guardian and conservator for Ms. Byington. Instead, Plaintiff's counsel improperly filed suit in the name of Mr. Byington as Ms. Byington's next friend; improperly filed suit in his own name as Ms. Byington's guardian ad litem; improperly filed suit again in the name of Mr. Byington as Ms. Byington's next friend (after petitioning to have him appointed as guardian and conservator); failed to timely designate experts for the scheduled December 7, 2015, trial; took an unnecessary non-suit in light of Ms. Byington's incapacity; and failed to re-file within the six-month nonsuit time frame.
As mentioned supra, Mr. Byington apparently admitted that his mother had not met with Plaintiff's counsel and, in fact, was unaware that a law suit had been filed on her behalf. (Defs.' Plea of Estoppel & Mot. for Costs ¶ 6 & Ex. B, at 78:8-14.)
Plaintiff's position that Ms. Byington was incapacitated when the initial Complaint was filed obviated the need to take a non-suit, and Plaintiff's non-suit and subsequent failure to re-file within six months led to Defendants filing a motion to dismiss.
Plaintiff's counsel's actions forced Defendants to unnecessarily incur costs and fees associated with what evolved into an unnecessary and extensive motions practice that could have easily been avoided. Although the Court does not find that Plaintiff's counsel's actions estop Plaintiff from proceeding with this suit, the Court finds that Defendants nevertheless are entitled to be compensated for the costs and fees associated with the unnecessary litigation. See Va . Code § 8.01-271.1 (authorizing an award "of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper or making of the motion, including a reasonable attorney's fee"). Defendants' counsel presented her related time and expense records to the Court at the Hearing and, after reviewing those records, the Court finds that Plaintiff has incurred costs and fees totaling at least $6,000 associated with responding to Plaintiff's counsel's improper actions.
The documents Defendants' counsel submitted to the Court for review documented $8,051.00 in fees—not including her time at the Hearing—and $13.70 in expenses. The Court finds that some itemized tasks were unnecessarily duplicative and that some appear to benefit Defendants in this case apart from simply responding to Plaintiff's counsel's improper actions. With rounding, the Court therefore awards $6,000.00.
The Court therefore GRANTS Defendants' Motion for Costs and ORDERS Plaintiff's counsel to pay $6,000 to Defendants.
Defendants' Objections to Designated Portions of the Deposition of Cathy Cao, M.D.
In preparation for the evidentiary hearing regarding Ms. Byington's incapacity, Plaintiff deposed Cathy Cao, M.D., who was Ms. Byington's treating neurologist between September 2010 and January 2012. During that deposition, Dr. Cao was questioned about her diagnosis and treatment of Ms. Byington and was presented an "excerpt" from her neurology practice's medical record for Ms. Byington (the "Medical Record"), which was identified as a deposition exhibit. The Medical Record includes Dr. Cao's office notes (the "Office Notes"), a letter from Dr. Cao to an individual who appears to be Ms. Byington's primary care physician (the "Letter"), a September 2010 memo from Dr. Cao with the salutation "To Whom It May Concern" (the "Memo"), a completed family history form, a "Cognitive Decline Worksheet," a "Followup Worksheet," and various laboratory reports.
During the deposition, Defendants' counsel objected to certain questions and responses related to Dr. Cao's opinions about Ms. Byington's decision-making ability and Ms. Byington's future prognosis, relying on Section 8.01-399 of the Code of Virginia. In advance of the Hearing, Defendants filed related Designations and Objections to the Deposition of Cathy Cao, M.D. Taken November 30, 2016. At the Hearing, Defendants also objected to admission of the Medical Record, with the exception of the Office Notes and the Letter, when offered by Plaintiff.
Section 8.01-399 provides, in pertinent part, as follows:
If the physical or mental condition of the patient is at issue in a civil action, the diagnoses, signs and symptoms, observations, evaluations, histories, or treatment plan of the practitioner, obtained or formulated as contemporaneously documented during the course of the practitioner's treatment, together with the facts communicated to, or otherwise learned by, such practitioner in connection with such attendance, examination or treatment shall be disclosed . . . . In addition, disclosure may be ordered when a court, in the exercise of sound discretion, deems it necessary to the proper administration of justice.Va. Code § 8.01-399 (emphasis added).
Defendants argue that the portions of Dr. Cao's deposition to which they object are not based on evaluations of Ms. Byington that were "contemporaneously documented" and that those portions therefore do not comply with Section 8.01-399. They also argue that—based on Dr. Cao's admission during cross-examination that she had no independent recollection of seeing or treating Ms. Byington—Dr. Cao's testimony regarding Ms. Byington's decision-making ability and Ms. Byington's future prognosis is not supported by the Medical Record and therefore is unreliable.
The statute clearly allows Dr. Cao's testimony to be based both on contemporaneously documented medical information and on "the facts communicated to, or otherwise learned by, [her] in connection with such attendance, examination or treatment." Va. Code § 8.01-399. The Letter and Office Notes, to which Defendant did not object, document Ms. Byington's progression from "mild dementia, most likely due to Alzheimer's disease," and "[p]rogressive dementia" in September 2010 to "[s]evere dementia of the Alzheimer's type" in January 2012." (Pl.'s Ex. 2.) The Office Notes also indicate that certain medication—which Ms. Byington never ended up taking—might "help to slow down the progression of her dementia." (Id.) Additionally, Dr. Cao states in her Memo—to which Defendants' object—that "[b]ecause there is no cure for Alzheimer's disease in spite of aggressive treatment, it is most likely that her cognitive function will continue to deteriorate in the future." (Id.) In light of Dr. Cao's contemporaneously documented diagnosis of Alzheimer's disease in Ms. Byington and the above-referenced statements in the Letter, the Office Notes, and the Memo, the Court finds that there is sufficient contemporaneous documentation to support the designated portions of deposition testimony to which Defendants object. Stated differently, the Court finds that the designated portions of Dr. Cao's deposition testimony, stated in the past tense, "reflected [Dr. Cao's] impression[s] reached at the time she was treating [Ms. Byington]." Holmes v. Levine, 273 Va. 150, 162, 639 S.E.2d 235, 241 (2007).
The Memo was drafted and signed by Dr. Cao and is a contemporaneous diagnosis and evaluation of Ms. Byington—as it is dated September 28, 2010. (See Pl.'s Ex. 2.) The Court therefore overrules Defendants' objection to admission of the Memo.
The other portions of the Medical Record to which Defendant object qualify as facts communicated to or learned by Dr. Cao; hence, although the documents themselves may be inadmissible, Dr. Cao is permitted to rely upon the information therein.
The Court therefore OVERRRULES Defendants' Objections to the Deposition of Cathy Cao, M.D. Taken November 30, 2016.
Ouida Byington's Competency
Plaintiff argues that the onset of Ms. Byington's incapacity was prior to the Incident and that the deadline to timely file a related Complaint therefore is one year after qualification of a guardian or conservator. Plaintiff asserts that the Complaint filed on April 8, 2016 therefore is timely, as it was filed within one year of the April 5, 2016, qualification and appointment of Mr. Byington as Ms. Byington's guardian and conservator.
The date associated with one year after appointment of a guardian or a conservator is later than the date associated with the default two-year statute of limitation. See Va . Code Ann. § 8.01-243(A) (2015 Repl. Vol.).
Section 8.01-229(A)(2)(b) of the Code of Virginia provides as follows:
If a person entitled to bring such action becomes incapacitated, the time at which he is incapacitated shall not be computed as any part of the period within which the action must be brought, except where a conservator, guardian or committee is appointed for such person in which case an action may be commenced by such conservator, committee or guardian before the expiration of the applicable period of limitation or within one year after his qualification, whichever occurs later.Va. Code § 8.01-229(A)(2)(b) (2016 Repl. Vol.).
Defendants asserted at the Hearing that Plaintiff has the burden of proving Ms. Byington's alleged incapacity by clear and convincing evidence for purposes of tolling the statute of limitations. Although the Court is not aware of a Virginia appellate decision on point, the Virginia Supreme Court has dealt with such an assertion in the context of testamentary capacity, which the Court finds to be analogous. In Gibbs v. Gibbs, the court held that although "[i]t is well settled that clear and convincing evidence is necessary to establish fraud or undue influence," when alleging only testamentary incapacity "it is not necessary to apply the more exacting evidentiary requirement." 39 Va. 197, 201, 387 S.E.2d 499, 501 (1990). Rather, "[t]o show incapacity, the contestants need only go forward with evidence sufficient to rebut the presumption of testamentary capacity." Id. The Court therefore finds that proof by clear and convincing evidence is not necessary here, but Plaintiff rather must provide sufficient proof to rebut the presumption of Ms. Byington's capacity.
Although Chapter 8.01 of the Code of Virginia does not define an "incapacitated person", the Code Section governing guardianship and conservatorship defines the term as follows:
an adult who has been found by a court to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to (i) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or (ii) manage property or financial affairs or provide for his support or for the support of his legal dependents without the assistance or protection of a conservator.Va. Code § 64.2-2000 (2012 Repl. Vol.).
Based on a plain reading of Sections 8.01-229 and 64.2-2000, the Court does not view the Section 64.2-2000 definition—which refers to an incapacitation finding "by a court"—as precluding a person from being incapacitated for purposes of Section 8.01-229 simply because she has not yet been adjudicated incapacitated. See, e.g., Calvert v. State Farm Fire and Cas. Co., 2012 LEXIS 94851, at *27-34 (W.D.W.V. 2012) (interpreting Virginia law). Rather, adjudication is a predicate for legal recognition of the incapacity, including for appointment of a guardian or conservator. Additionally, the focus of Section 8.01-229(A)(2)(b) is on when the individual "becomes incapacitated." The Court therefore views one of its tasks here as discerning—for purposes of determining whether the current Complaint was timely filed—when Ms. Byington in fact became incapacitated, as that date—as opposed to the adjudication date—is determinative.
Defendants argue that Plaintiff failed to prove, by clear and convincing evidence, that Ms. Byington was incapacitated during any portion of the statutory limitations period. They assert that because Dr. Cao stopped treating Ms. Byington in January 2012, Dr. Cao's deposition testimony that Ms. Byington was incapacitated at the time of the Incident—more than two years later—lacks foundation. They further point out that, even if Ms. Byington were incapacitated when Dr. Cao stopped treating her, there were medications available to Ms. Byington that possibly could have allowed her to regain capacity. They also contend that Plaintiff could easily have provided additional evidence, including calling Ms. Byington's treating physician at the time of the Incident, providing the Court a recent video of Ms. Byington, or calling Mr. Byington to testify about his mother's recent health.
Defendants noted that Mr. Byington attended the Hearing and easily could have testified. Additionally, Plaintiff in her pre-Hearing brief identifies other potentially relevant evidence that was not offered at the Hearing. (See Pl.'s Br. in/re Evidentiary Discovery; Opp. to Plea of Estoppel; and Mot. for Costs 2-3.)
As discussed supra, the Court holds that proof by clear and convincing evidence is not required. Although the Court agrees that Plaintiff could have provided additional evidence regarding Ms. Byington's incapacity, see, e.g., Eccleston v. Patriot Harley Davidson, Inc., 75 Va. Cir. 421, 423 (2006) (referencing the Plaintiff's introduction at an evidentiary hearing of the depositions of medical experts, the testimony of the plaintiff—who was the incapacitated individual's son—and an attorney, and a videotape of the incapacitated individual), the Court finds that—under the facts present here—Dr. Cao's testimony is sufficient to rebut the presumption of capacity and prove that Ms. Byington was incapacitated as of July 2011, when while Dr. Cao was treating her. The Court also finds that—to a reasonable degree of medical certainty—Ms. Byington was not going to, and in fact did not, regain capacity at any point subsequent to July 2011. Dr. Cao clearly established that Ms. Byington was in progressive dementia for years, and that as of January 2012 she was in severe dementia related to Alzheimer's disease. The Office Notes also clearly indicate that although there was medication available that Ms. Byington might have taken, the medication at best would "help to slow down the progression of her dementia." (Pl.'s Ex. 2 (emphasis added).)
The Court notes, however, that even if a clear-and-convincing standard were required, Plaintiff would have met that burden. --------
Dr. Cao testified at her deposition that, as of July 2011, Ms. Byington was "completely incapacitated . . . because of her dementia" (Pl's Ex. 1, at 13:14-15) and, to a reasonable degree of medical certainty, she "was only going to get worse" because that "is [the] typical course of Alzheimer's disease[, as it] is a progressive condition that [is] not going to get any better" (id. at 15:1-7). In light of the above, the Court finds that Plaintiff has proved that Ms. Byington was incapacitated on or before July 2011—prior to the Incident—and never regained capacity. The Complaint, which was filed on April 8, 2016—less than one year after Mr. Byington qualified and was appointed as Ms. Byington's guardian and conservator—therefore is deemed to be timely filed.
Based on the above, the Court OVERRULES Defendants' Plea of Estoppel, GRANTS Defendants' Motion for Costs in the amount of $6,000 to be paid by Plaintiff's counsel, OVERRULES Defendants' Objections to Designated Portions of the Deposition of Cathy Cao, M.D., and finds that Ouida Byington was incapacitated on or before July 2011 and never regained capacity, such that the Complaint in this matter is deemed to be timely filed. Any objections to this Order shall be submitted to the Court within fourteen days. Endorsements are waived pursuant to Rule 1:13. The Clerk shall mail or email copies of this Order to all counsel of record.
IT IS SO ORDERED this 30th day of December, 2016.
/s/_________
David W. Lannetti
Circuit Court Judge