Present: All the Justices 

CHARLES BURKETT MOTTESHEARD 

 OPINION BY JUSTICE A. CHRISTIAN COMPTON 

v. Record No. 971373 June 5, 1998 

LOUIS JOSEPH CASTERN, M.D., ET AL. 

FROM THE CIRCUIT COURT OF THE CITY OF SALEM 

Willis A. Woods, Judge Designate 

 In this action alleging physician negligence, the sole 

question is whether the trial court erred in refusing to permit 

a party to offer evidence of his general reputation for truth 

and veracity. 

 In July 1995, appellant Charles Burkett Mottesheard filed 

this action for damages against appellees Louis Joseph Castern, 

M.D., Robert O. McGuffin, M.D., and Sears Curtiss Mull, M.D. In 

a November 1996 amended motion for judgment, plaintiff alleged 

defendants were negligent during a period in September 1993 when 

they failed promptly to diagnose and treat the condition of 

septic arthritis of plaintiff's left hip. According to the 

record, septic arthritis of the hip is an infectious process in 

which bacteria attacks the cartilage in the joint. An 

"extraordinarily difficult diagnosis," the condition causes the 

hip joint to sustain "irreversible and significant damage" 

unless treatment is rendered within five to seven days of the 

onset of symptoms. 
 Responding to plaintiff's allegations, defendants admitted 

they were involved in plaintiff's care but denied they committed 

any negligence that was a proximate cause of plaintiff's alleged 

injuries or damages. 

 Following a lengthy trial, a jury found in favor of the 

defendants. Overruling plaintiff's motion to set the verdict 

aside and to award a new trial, the court entered judgment on 

the verdict. The plaintiff appeals. 

 A summary of the evidence will set the stage for discussion 

of the issue of law presented. On September 17, 1993, the 

plaintiff, 36 years of age, was employed by the State Department 

of Corrections in Roanoke as a probation and parole officer. 

After escorting an offender through an office security door, he 

turned and felt a "pop . . . around the left groin area." He 

"just walked it off" and continued working. His hip did not 

"bother" him during the next three days. 

 During the early morning hours of September 21, plaintiff, 

a diabetic, was unable to sleep because he "didn't feel what 

you'd call exactly great." His "temperature" was above normal, 

and he felt like he "had the flu" but reported to work. While 

working "seeing offenders" in his office, the plaintiff felt 

progressively worse. He left the office near midday and called 

his Blacksburg physician "and told him my leg was hurting." The 

physician "called in a prescription" for pain relief. 

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 The plaintiff's condition continued to worsen and he was 

taken by a friend to the Lewis-Gale Clinic in Salem where he was 

seen during the morning of September 22 by defendant Castern, 

who practices occupational medicine. Castern took a medical 

history from plaintiff. The physician testified that an 

accurate history is "absolutely essential" and "of ultimate 

importance" to a proper diagnosis. 

 In addition, Castern examined plaintiff, who complained of 

pain of the left thigh. He was "concerned" about plaintiff's 

condition because he "had a lot of confusing symptoms and 

physical findings." Upon consideration of the medical history 

and the examination, Castern formed a "diagnostic impression" 

that plaintiff's left thigh pain was due to muscle spasm or 

muscle strain. Castern prescribed medications for plaintiff and 

released him. The plaintiff stayed at home for the next two 

days and "went through living hell" due to pain in his leg. 

 On September 24, plaintiff was brought back to the Clinic 

where he was seen again by Castern. The physician found 

plaintiff "was in more pain and . . . it was further down his 

leg." Following testing of plaintiff's blood, Castern became 

concerned that his problems were caused by either "an infectious 

or an inflammatory process." The plaintiff "still had this left 

thigh pain" and the physician "tender[ed]" a diagnosis of acute 

myositis, an inflammatory process that was related to the 

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plaintiff's "injury" on September 17 when he felt the "pop." 

The physician prescribed additional medication and instructed 

him to see his Blacksburg physician. 

 Pain in plaintiff's hip and leg "continued to build" to 

such a degree he "would go ballistic" whenever he had to move. 

Near midnight on September 24, the plaintiff was carried to the 

emergency room at Lewis-Gale Hospital, a separate entity from 

the Clinic although in the same facility. Plaintiff was seen by 

defendant McGuffin, who practices emergency medicine. Following 

examination, the physician concluded: "Leg pain of uncertain 

etiology possibly related to muscle spasm." 

 Plaintiff's condition did not improve and on September 25, 

a Saturday, he presented to Dr. William T. Hendricks, Jr., a 

family medicine practitioner in Blacksburg, who took a history 

and examined plaintiff. The physician "thought something was 

seriously wrong with him." Hendricks "did not suspect an 

infectious process going on." He made a "differential 

diagnosis" of aseptic (absence of infection) necrosis of the 

femoral head, a herniated disk, a torn ligament, or a femoral 

hernia. He recommended to plaintiff that he report to a 

hospital emergency room "immediately." 

 Plaintiff understood that, because the condition may be 

work related, state regulations required him to return to 

"Lewis-Gale." His parents attempted to transport him by vehicle 

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to Salem, but the trip had to be interrupted due to plaintiff's 

pain. At that point, he "didn't feel like living a whole lot 

longer." Eventually, he was carried to the Clinic. 

 Defendant Castern saw plaintiff in the Clinic on 

September 27 and, after examination, referred him to defendant 

Mull, an orthopedic surgeon, who admitted plaintiff to the 

Hospital. Due to his condition, plaintiff did not recall seeing 

Castern on the 27th and remembered little of his "encounter" with 

Mull. While hospitalized, the plaintiff "went into some sort of 

septic shock." Later, surgery was performed on plaintiff's left 

hip, and the diagnosis of septic arthritis was made. 

 During the trial, plaintiff's recollection of the symptoms 

he had related when his medical history was being taken and the 

nature of his examinations was different, in many instances, 

from what the medical records and the physicians' recollections 

established. In rebuttal, the plaintiff proffered testimony of 

his office supervisor who stated that plaintiff's reputation for 

truth and veracity in the community in which he lives and works 

is "outstanding." The trial court sustained defendants' 

objection to this testimony and disallowed it, ruling "that this 

gentleman's character and reputation has not been put in 

dispute, is not in evidence, and consequently . . . is not 

admissible." 

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 On appeal, the plaintiff argues that his "disability 

resulted from a failure of those attending to timely diagnose 

and treat an infected hip. At trial, the key questions were 

whether the diagnosis should have been made; and, should the 

condition have been diagnosed in time to save the Plaintiff's 

hip. The answers to these key questions depended in large 

measure on what the Plaintiff had told his treating physicians; 

specifically, did he accurately identify the area of his pain?" 

 Continuing, plaintiff contends that his "character was 

repeatedly put in issue by contrary evidence as to the material 

fact of his history. For example, Defendant Castern testified 

directly to the jury, 'I know [the Plaintiff] described hip pain 

to us here in his testimony, but when he was with me I did not 

get a complaint of hip pain.' Defendant McGuffin; I 'know' I 

did a straight leg raising test. The Plaintiff testified 

emphatically to the contrary. Defendant Mull told the jury, 'I 

am surprised at [the Plaintiff's] testimony; he told me he was 

having pain in his back.' The Plaintiff testified emphatically 

and unequivocally to the contrary. Doctor Castern's expert 

testified that 'there is an obligation on the patient to be 

truthful' in connection with the giving of a history. The 

Plaintiff, of course, testified emphatically that he was 

truthful." (Alterations in original.) 

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 Summarizing, plaintiff argues his "character was also 

repeatedly put in issue by extensive cross-examination about 

prior inconsistent statements. Simply put, as a matter of law, 

'imputation on [the Plaintiff's] veracity results from the fact 

of his having contradicted himself,' as time-honored evidence 

treatises consistently note. Among other things, the Plaintiff 

testified that his progressively painful symptoms started on the 

21st of September. The defense sought to prove, by prior 

inconsistent statements, that his symptoms commenced on the 

17th." (Alteration in original.) 

 Finally, plaintiff contends he "was denied his one 

opportunity to rehabilitate his credit with the jury: that is, 

by proof that his reputation and character for truthfulness was 

'outstanding.' This was prejudicial error." We disagree. 

 Generally, in civil actions evidence of the reputation of 

the parties for truth and veracity is not admissible. S. H. 

Kress & Co. v. Roberts, 143 Va. 71, 77, 129 S.E. 244, 246 

(1925). As an exception to the general rule, Virginia permits 

evidence of the general reputation of a party or a witness for 

truthfulness whenever such person's character for truth is 

attacked either directly or by cross-examination, or by proof of 

inconsistent statements regarding material facts, or by 

disproving through other witnesses material facts stated by such 

person during testimony. Luck v. Miller, 240 Va. 445, 447, 397 

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S.E.2d 869, 871 (1990) (quoting George v. Pilcher, 69 Va. (28 

Gratt.) 299, 315 (1877)). 

 The key words in the exception are "whenever such person's 

character for truth is attacked." In the present case, contrary 

to plaintiff's contention, his character for truthfulness never 

was attacked. This was made abundantly clear throughout the 

trial. While the plaintiff's recollection of past events was 

challenged, there was no attempt to portray him as a liar. 

 For example, one of defendants' expert witnesses, having 

reviewed the recorded medical history, stated there was "no 

reason to believe" that plaintiff had been "other than 

completely candid with the physicians who examined him." That 

witness also testified, "I'm not accusing him of not telling the 

truth." Also, defendant Mull testified, "I believe that he was 

giving me accurate information . . . I absolutely believed it." 

Additionally, defendant Castern stated he never believed the 

plaintiff "was malingering or falsely exaggerating his pain or 

anything of that nature just to make a workers' compensation 

claim." Indeed, during plaintiff's rebuttal, defendants' 

attorney stated before the jury, "We will stipulate, if it will 

help, that Mr. Mottesheard didn't intentionally try to mislead 

anyone." 

 The theme of the defense, in part, was that the plaintiff, 

because of his physical condition during some of the seven-day 

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period in question, was unable to give an accurate medical 

history and that, at trial, his recollection differed from what 

other evidence revealed. For example, plaintiff testified that 

when he saw defendant McGuffin, he was "so spaced out" that he 

did not "know really what planet" he was on. Also, he testified 

that when he saw Dr. Hendricks he was "a mumbling fool" and that 

the physician may have misunderstood his statements. 

 This challenge to plaintiff's recollection, and not to his 

character, was accentuated during closing argument of 

defendants' counsel. Among other things, he told the jury, 

"There is no question that a bad thing happened to a good person 

. . . He is a very admirable person in a lot of ways. He is 

admirable in the way that he dealt with this. He continued to 

perform his job and he performed it at a high level. He is 

rated as high as he can be rated and I think that is 

significant. We have never suggested to you that he is 

untruthful. The evidence does not show that and we have never 

argued that for a minute." Later during argument, counsel said: 

"[W]e are not suggesting to you that Mr. Mottesheard did not 

testify truthfully. I'm sure that he testified the way that he 

thinks these things happened." 

 Our conclusions based upon study of the trial proceedings 

are confirmed by the trial judge's comments made when he denied 

the motion to set the verdict aside. He said: "Mr. 

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Mottesheard's integrity was never questioned. I sat here for 

two weeks listening to testimony, listening to argument of the 

counsel on both sides; and I never got the impression that the 

Plaintiff's reputation in the community [in] which he lived was 

other than -- or anyone was hinting or implying his reputation 

was other than -- impeccable." The judge also stated: 

"Testimony concerning memory skills of all the parties would 

have been more appropriate [than] testimony as to their 

character because no one questions their character or ever did." 

 The plaintiff's reliance upon Luck, supra, and Redd v. 

Ingram, 207 Va. 939, 154 S.E.2d 149 (1967), is misplaced. In 

Luck, a personal injury action arising from a motor vehicle 

accident, we held the trial court erred in refusing to admit 

testimony regarding the plaintiff's reputation for truth and 

veracity "after her character for truthfulness had been 

impeached." 240 Va. at 446, 397 S.E.2d at 870-71. However, in 

that case, unlike the present case, cross-examination of the 

plaintiff "was structured to secure statements that admitted or 

implied" that plaintiff's injuries were the result of a prior 

accident, that plaintiff had withheld information from attorneys 

in a previous suit, and that plaintiff misrepresented 

information about her injuries sustained in the prior accident. 

Id. at 447-48, 397 S.E.2d at 871. 

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 In Redd, another personal injury case arising from a 

vehicular accident, this Court held the trial court properly 

admitted evidence concerning the plaintiff's reputation for 

truth and veracity. There, defendant attempted to impeach 

plaintiff's character for truth by cross-examination of 

plaintiff and by introducing testimony to contradict him. 207 

Va. at 943, 154 S.E.2d at 152. In that case, however, defendant 

attempted to impeach the truth of plaintiff's testimony 

respecting matters "about which [the plaintiff] could not have 

been honestly mistaken." Id., 154 S.E.2d at 153. Here, in 

contrast, impeachment of plaintiff dealt with matters about 

which he honestly could have been mistaken. 

 Accordingly, we hold the trial court did not err in 

refusing to permit plaintiff to offer evidence of his general 

reputation for truth and veracity. Thus, the judgment below 

will be 

 Affirmed.

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