Opinion
Docket No.: CL16008482-00
02-06-2017
ELIZABETH BROWN WILDER, ADMINISTRATRIX OF THE ESTATE OF FREDRICK WADE WILDER, DECEASED, Plaintiff, v. CHILDREN'S HOSPITAL OF THE KING'S DAUGHTERS, et al., Defendants.
ORDER
The matter comes before the Court on the demurrer of Defendant, Children's Hospital of The King's Daughters, to the allegation of "unspecified acts of negligence" in paragraph 13 of Plaintiff's Amended Complaint: "Defendants are guilty of negligence and breaches toward the infant plaintiff, including without limitation the following particulars . . ." The Amended Complaint then lists four acts and omissions stating the particulars of the alleged negligence.
Defendant asks the Court to rule, on demurrer, that the words "including without limitation" be stricken from the Amended Complaint:
This allegation of unspecified negligence fails to satisfy even the liberal pleading requirement allowed in Virginia. Such allegations are impossible to defend against, and serve only to allow the plaintiff to add other acts of negligence at some later date without limitation.Br. in Supp. of Dem., pp. 2-3. In support of the motion, Defendant submitted 13 orders, including 8 from this Court, where courts have sustained demurrers to identical or very similar language included in complaints for medical malpractice. Plaintiff in turn has cited 15 orders from other courts overruling such demurrers.
Seven of the 15 cited decisions are very brief memorandum orders merely reciting that a demurrer was overruled with no further information. Counsel represented, however, that these orders overruled demurrers seeking to strike similar "catch-all" language in a complaint and that they support Plaintiff's position. --------
The Court agrees that Defendant should be entitled to rely on Plaintiff's pleaded claims respecting its alleged negligence and should not face the possibility that additional claims will come up, but the Court has reservations as to whether a demurrer is the proper vehicle by which invalid or inappropriate claims within a Complaint may be stricken from the pleading. Because the weight of authority suggests that claims for negligence should not be stricken on demurrer regardless of how generally they are pleaded, the Court overrules the demurrer and instead orders Plaintiff to file a bill of particulars. A. Sufficiency of Demurrer to Only Part of a Pleading
In opposition to the demurrer, Plaintiff relies upon familiar and well-settled principles of Virginia law that deserve closer analysis in this setting: "Because a demurrer goes to a whole pleading to which it is addressed, it should be overruled if any part of the pleading states a cause of action upon which relief may be granted." Doe v. Zwelling, 270 Va. 594, 599 (2005). Plaintiff also cites the following holding:
The principles we apply are familiar. A demurrer tests the legal sufficiency of a pleading and can be sustained if the pleading, considered in the light most favorable to the plaintiff, fails to state a valid cause of action. We consider as admitted the facts expressly alleged and those which fairly can be viewed as impliedly alleged or reasonably inferred from the facts alleged.Kitchen v. City of Newport News, 275 Va. 378, 385 (2005) (quoting Welding, Inc. v. Bland Cty. Serv. Auth., 261 Va. 218, 226 (2001)); see also Carnes, Inc. v. Bd. of Supervisors, 252 Va. 377, 384 (1996).
Those legal principles obviously apply in cases where a demurrer challenges the sufficiency of the pleading in its entirety. Many or even most demurrers, however, challenge only part of a pleading, e.g., the count for fraud but not the one for breach of contract, or the request for punitive damages but not for compensatory damages. A court would not overrule a demurrer, for example, to an insufficient claim for intentional infliction of emotional distress because the complaint also included a separate and actionable count for defamation; but strict application of the holdings quoted above would require that outcome. The language, "if any part of the pleading states a cause of action," as stated in Doe v. Zwelling, suggests that the presence of one valid claim prevents the court from sustaining a demurrer to any additional insufficient claims.
The Court has attempted, without success, to locate a clear statement from a Virginia appellate court qualifying the holding of Doe v. Zwelling and approving demurrers that challenge only part of a pleading. Many cases, however, implicitly confirm the authority of a trial court to grant partial demurrers. See, e.g., Jackson v. Prestage, 204 Va. 481, 485 (1963) (affirming trial court's sustaining of demurrer to punitive damages claim); Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125 (2000) (reversing demurrers as to negligence claims but sustaining demurrer to claim for intentional infliction of emotional distress); Harris v. Kreutzer, 271 Va. 188 (2006) (reversing demurrer for medical malpractice but sustaining demurrer as to intentional infliction of emotional distress). If a demurrer was an impermissible vehicle to challenge part of a pleading, all of these cases would have come out differently.
The Court thus concludes that it might properly sustain a demurrer that challenges a particular claim within a pleading, so long as the order strikes only the improper claim and not the entire pleading. The Court does not conclude that Doe v. Zwelling and other similar cases requires a different result. B. Sufficiency of the Catch-All Claim
Plaintiff argues that Virginia law does not require plaintiffs to itemize details of negligence: "An allegation of negligence is sufficient without specifying the particulars of the negligence," Va. Sup. Ct. Rule 3:18(b). She argues that she should not be penalized for giving four specific particulars of negligence with the "heads up" that there may be other particulars of negligence, when she need not have provided any particulars in the first place. Mem. in Opp'n to Dem., filed Nov. 21, 2016, at 5.
Defendant cites to an unpublished decision of the Virginia Supreme Court illuminating how catch-all language in a complaint can prejudice defendants. In Kraina v. Carman, Record No. 07178 (unpublished, July 18, 2006), the medical malpractice complaint alleged only negligence involved in the post-operative care of the plaintiff following breast surgery. It detailed the alleged errors that caused the plaintiff post-operative complications but included no complaints about the surgical procedure chosen or the surgical technique other than in a broad general allegation of negligence with a date range that included the date of surgery. With her expert designation, however, the plaintiff for the first time introduced into the case the allegation that Defendant was negligent in planning and executing the surgery itself. This Court sustained Defendant's motion to strike the expert witness designation because it introduced the new claims about negligence during the surgery. It thereafter sustained its motion for summary judgment, and the Virginia Supreme Court reversed. The Court ruled that the inclusion of the date of surgery in the broad paragraph containing the general allegations of negligence sufficiently preserved and put the defendant on notice of the claim. Defense counsel in the instant case, who also represented the defendant in Kraina, contends that only by striking such general and catch-all language can defendants prevent this type of eleventh-hour addition of undisclosed claims.
The Court notes that the particulars that Plaintiff did plead are also quite broad. The allegation in paragraph 13(A) about the hospital "failing to . . . care for the infant patient timely and otherwise properly" would almost certainly cover anything that the hospital did or did not do. Therefore, the argument about the propriety or effect of the "including without limitation" clause is perhaps largely academic.
The Court agrees that defendants have the right to limit a pleading that arguably gives plaintiffs permission to introduce matters not pleaded, but the Court concludes that the remedy in such a case is a bill of particulars:
[E]ven though a motion for judgment or a bill of complaint may be imperfect, when it is drafted so that defendant cannot mistake the true nature of the claim, the trial court should overrule the demurrer; if a defendant desires more definite information, or a more specific statement of the grounds of the claim, the defendant should request the court to order the plaintiff to file a bill of particulars.CaterCorp, Inc. v. Catering Concepts, Inc., 246 Va. 22, 24 (1993) (citing Alexander v. Kuykendall, 192 Va. 8, 14-15 (1951)). The Court therefore orders Plaintiff to provide a bill of particulars that details the additional matters encompassed by the phrase, "including but not limited to."
CONCLUSION
For these reasons, the Court OVERRULES the demurrer to the phrase "including but not limited to" but orders Plaintiff to file a Bill of Particulars within 21 days specifying the particulars of any additional negligence by the Defendant which Plaintiff claims. Plaintiff will not be permitted to introduce evidence about acts of negligence that are not described in the Amended Complaint or in the Bill of Particulars.
Counsel are directed to submit written objections to this Order within 10 days. Further endorsement by counsel are waived pursuant to Rule 1:13.
The Clerk is directed to send a copy of this Order to counsel of record.
Enter: 6 February 2017
/s/_________
Mary Jane Hall, Judge