Budd v. Punyanitya

Summary

The Supreme Court of Virginia held that Code § 8.01-401.1 requires a party to provide opposing counsel with copies of statements from published medical literature at least thirty days before trial when the party intends to establish the literature as reliable authority through its own expert on direct examination for later use in cross-examination. The court rejected an attempt to circumvent the notice requirement by characterizing the expert's testimony as merely laying a foundation. The judgment in favor of the defendant physician was affirmed.

Holdings

1. Budd did not waive appellate review by making the proffer in his motion for reconsideration rather than at the time of the trial court's ruling because the court's ruling was based on a legal interpretation of the statute, and a contemporaneous proffer would not have changed the fact that the literature had not been timely provided.
2. Budd did not waive the issue by failing to cross-examine Punyanitya's experts about the publications because the appeal concerned the legal propriety of establishing the publications as reliable authority through Budd's own expert, not the admissibility of a particular publication.
3. When a party intends to introduce statements from published literature during cross-examination of an opposing expert but plans to have its own expert establish the literature as reliable authority on direct examination, the party must provide opposing counsel with copies of the statements thirty days before trial under Code § 8.01-401.1.

Questions Presented

1. Whether Budd waived appellate review by failing to make a contemporaneous proffer of the medical literature when the trial court sustained the objection.
2. Whether Budd waived the issue by failing to cross-examine Punyanitya's experts about the designated publications.
3. Whether Code § 8.01-401.1 requires a party to provide opposing counsel with copies of statements from published medical literature thirty days before trial when the party intends to have its own expert establish the literature as reliable authority on direct examination for later use as substantive evidence during cross-examination of the opposing party's expert.

Disposition

affirmed