1

Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims, JJ.

KASEY A. LANDRUM 

 OPINION BY

v. Record No. 101102 JUSTICE DONALD W. LEMONS

 November 4, 2011

CHIPPENHAM AND JOHNSTON-WILLIS

HOSPITALS, INC., ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Walter W. Stout, III, Judge

In this appeal, we consider whether the circuit court 

abused its discretion in excluding the plaintiff's expert 

witnesses because of her failure to obey its pretrial orders. 

We conclude that it did not and therefore affirm its judgment.

I. Background

In February 2009, Kasey A. Landrum, represented by out-ofstate counsel from St. Louis, Missouri, admitted pro hac vice,1

sued Chippenham and Johnston-Willis Hospitals, Inc.2 and Dr. John 

C. Deitrick (collectively Defendants) for medical malpractice.3 

Seven months later, the circuit court entered a scheduling 

order. As relevant here, that order provided:

If requested in discovery, plaintiff's . . . experts 

shall be identified on or before Monday, November 23, 

2009. . . . If requested, all information 

 1 The record contains an order granting Landrum's out-ofstate counsel temporary pro hac vice admission, in accordance 

with Rule 1A:4(3). But it is devoid of a motion by local 

counsel to associate him as counsel pro hac vice or an order 

granting such a motion, as required under Rule 1A:4(3)(b)-(c). 2 We have reformed the case caption to reflect the correct 

name of this defendant-appellee. 3 Landrum also sued two other doctors who are not parties to 

this appeal.
2

discoverable under Rule 4:1(b)(4)(A)[(i)] . . . shall 

be provided or the expert will not ordinarily be 

permitted to express nondisclosed opinions at trial. 

The foregoing deadline[] shall not relieve [plaintiff] 

of the obligation to respond to discovery requests 

within the time periods set forth in the Rules of the 

Supreme Court of Virginia, including, in particular, 

the duty to supplement or amend prior responses 

pursuant to Rule 4:1(e).

(Emphasis omitted.)

Two months before the November 23 deadline, Defendants, 

through interrogatories, asked Landrum to identify her expert 

witnesses. Landrum's out-of-state counsel nonetheless waited 

until November 23 to send them an expert designation (which they

did not receive until November 30). The designation provided 

the names and addresses of two expert witnesses. But it did not 

"state the substance of the facts and opinions to which [they 

were] expected to testify and a summary of the grounds for each

opinion," and was therefore deficient under Rule 

4:1(b)(4)(A)(i). Defendants consequently moved to exclude the 

expert witnesses and for summary judgment.

Upon learning of Defendants' motions, Landrum's out-ofstate counsel attempted to cure the deficient designation by 

sending Defendants the expert witnesses' reports (which they 

received on either December 10 or 11). He did not, however, 

supplement the designation to comply with Rule 4:1(b)(4)(A)(i), 

as required under Rule 4:1(e).
3

At a January 21, 2010 hearing on Defendants' motions,

Landrum's out-of-state counsel admitted that the designation did 

not satisfy Rule 4:1(b)(4)(A)(i). But he argued that the 

violation was remedied when the Defendants received the expert

witnesses' reports. He further urged that the exclusion of the 

expert witnesses "would be a tremendous prejudice to [Landrum]."

The circuit court denied Defendants' motions and gave 

Landrum's out-of-state counsel until January 28 to supplement 

the designation so as to comport with Rule 4:1(b)(4)(A)(i). In 

giving him this second chance, however, it warned:

THE COURT: . . . I will give you seven days from 

today, and I'm going to give you a time that you file 

your answer to these interrogatories and you file a 

copy of it in the clerk's office and you do it in the 

proper manner. I'm not going to sit here and lecture 

how you're supposed to do it.

. . . .

I will tell you, sir, if you fail to do that, I 

will dismiss the case after that.

The circuit court later entered an order memorializing its 

ruling. That order provided, among other things, that if 

Landrum did not supplement the designation "on or before January 

28," then she would "risk further sanction by the court, 

including but not limited to, reconsideration of the defendants'

motions."

On January 27, Landrum's out-of-state counsel filed a

supplemental designation. But it, too, was not in compliance 
4

with the Rules: although it featured out-of-state counsel's 

signature above the signature block containing both his name and 

address as well as the name and address of local counsel, it was 

not signed by local counsel as required under Rule 1A:4(2). 

Because "[a]ny pleading or other paper required to be served" is 

invalid under that Rule "unless it is signed by local counsel," 

Defendants again moved to exclude Landrum's expert witnesses and 

for summary judgment.

At a February 23, 2010 hearing on Defendants' second round

of motions, Landrum's out-of-state counsel conceded that he 

violated Rule 1A:4(2) by filing the supplemental designation 

without local counsel's signature. In fact, he admitted that he 

"ha[d] filed many pleadings in this case . . . in violation of 

the rule," including the original designation.4 He nevertheless

argued that the exclusion of the expert witnesses was not 

warranted because he remedied the violation by refiling the 

supplemental designation with local counsel's signature on 

February 17.

The circuit court first granted Defendants' motions to 

exclude the expert witnesses, explaining:

[W]hat happened was there was a series of late 

filings. It wasn't very late but it was late. 

Subsequently turned out that it was not appropriately 

filed for substance. And [the court] allowed that to 

 4 Defendants did not raise the violation at the January 21 

hearing.
5

be done. [The court] said that it had to be done 

properly. If it wasn't done properly within the 

seven-day period, that that was the last chance, so to 

speak.

And it was a situation where the [supplemental 

designation] was not signed properly. The rules are 

very, very clear as to what happens if local counsel 

doesn't sign a document. And that was not done. 

Whether it was done before or not or brought to the 

attention by the defendant[s] to the plaintiff, that's 

not their responsibility. It's the plaintiff's 

responsibility to know and stay by the rules. And the 

[c]ourt is going to enforce the rule. The designation 

is filed improperly and is stricken.

The circuit court then entertained argument on Defendants'

motions for summary judgment. Defendants contended that summary 

judgment was appropriate because Landrum could not meet her 

burden of proof on her medical-malpractice claims without an

expert witness to establish the standard of care. The circuit 

court agreed and granted the motions, dismissing the case with 

prejudice.5 Landrum now appeals.

II. Discussion

A.

Pursuant to Rule 4:12(b)(2), a trial court may sanction a 

party for failing "to obey an order to provide or permit 

discovery." It may, for instance, prohibit a party "from 

introducing designated matters in evidence" or "strik[e] out 

 5 Landrum later filed a motion to reconsider and a motion to 

amend the supplemental designation. The circuit court denied 

the former for lack of jurisdiction and did not rule on the 

latter.
6

pleadings or parts thereof." Rule 4:12(b)(2)(B)-(C). Because 

it "exercises 'broad discretion' in determining the appropriate 

sanction," we review its decision for an abuse of discretion. 

Walsh v. Bennett, 260 Va. 171, 175, 530 S.E.2d 904, 907 (2000) 

(quoting Woodbury v. Courtney, 239 Va. 651, 654, 391 S.E.2d 293, 

295 (1990)).

The abuse-of-discretion standard, as the United States 

Court of Appeals for the Fourth Circuit has observed, is "a 

standard that, though familiar in statement, is not necessarily 

that simple in application." James v. Jacobson, 6 F.3d 233, 239 

(4th Cir. 1993) (internal quotation marks omitted). That is 

because an abuse of discretion "can occur in a number of ways." 

Id.

In Kern v. TXO Production Corp., 738 F.2d 968, 970 (8th Cir. 

1984), the United States Court of Appeals for the Eighth Circuit 

stated that when a decision is discretionary, "we do not mean 

that the [trial] court may do whatever pleases it. The phrase 

means instead that the court has a range of choice, and that its 

decision will not be disturbed as long as it stays within that 

range and is not influenced by any mistake of law." The Eighth 

Circuit went on to explain:

An abuse of discretion . . . can occur in three 

principal ways: when a relevant factor that should 

have been given significant weight is not considered; 

when an irrelevant or improper factor is considered and 

given significant weight; and when all proper factors, 
7

and no improper ones, are considered, but the court, in 

weighing those factors, commits a clear error of 

judgment.

Id.

The Fourth Circuit has recognized this definition. See

General Trucking Corp. v. Westmoreland Coal Co., No. 92-1225, 

1992 U.S. App. LEXIS 30853, at *14 (4th Cir. Nov. 23, 1992)

(unpublished) ("Or, as another court has put it, by (1) failing 

to take into account a significant relevant factor; or (2) 

giving significant weight to an irrelevancy; or (3) weighing the 

proper factors but committing a clear error of judgment in doing 

so." (citing Kern, 738 F.2d at 970)). And we now embrace it.

B.

Landrum first contends that the circuit court abused its 

discretion in excluding the expert witnesses because it 

disregarded Rule 4:1(g).6 That Rule, in pertinent part, 

provides:

Every request for discovery or response or objection 

thereto made by a party represented by an attorney 

shall be signed by at least one attorney of record in 

the attorney's individual name, whose address shall be 

stated. . . . If a request, response, or objection is 

not signed, it shall be stricken unless it is signed 

promptly after the omission is called to the attention 

of the party making the request, response, or 

 6 In her assignment of error, Landrum also cites Code 

§ 8.01-271.1, which contains language similar to that found in 

Rule 4:1(g). But she does not separately address that section 

in her brief. We thus assume that any argument based on Code 

§ 8.01-271.1 is subsumed in her Rule 4:1(g) argument.
8

objection, and a party shall not be obligated to take 

any action with respect to it until it is signed.

Rule 4:1(g). Since her out-of-state counsel refiled the

supplemental designation with local counsel's signature promptly

after the omission was brought to his attention, Landrum argues 

that the circuit court exceeded the bounds of its discretion 

under Rule 4:1(g) in excluding the expert witnesses.7

Landrum's reliance on Rule 4:1(g) is misplaced because that 

Rule was not violated: the supplemental designation was "signed 

by at least one attorney of record." Rule 4:1(g). The problem 

is that that attorney (Landrum's out-of-state counsel) is not 

admitted to practice law in Virginia. For that reason, another 

Rule comes into play – Rule 1A:4(2). That Rule states in 

relevant part:

No out-of-state lawyer may appear pro hac vice before 

any tribunal in Virginia unless the out-of-state 

lawyer has first associated in that case with a lawyer

who is an active member in good standing of the 

Virginia State Bar (hereinafter called "local 

counsel"). The name of local counsel shall appear on 

all notices, orders, pleadings, and other documents 

filed in the case. Local counsel shall personally 

 7 Defendants contend that this argument was not preserved 

for appeal because Landrum did not raise it below. We disagree. 

Although Landrum did not cite Rule 4:1(g) to the circuit court 

during the February 23 hearing, she did argue that the expert 

witnesses should not be excluded because her out-of-state 

counsel "served [the answers to interrogatories] with the 

signature of local counsel as soon as [he] found out about [the 

omission]." We thus find that Landrum gave the circuit court 

sufficient "notice of the substance of the objection" to comply 

with the requirements of Rule 5:25. Overton v. Slaughter, 190 

Va. 172, 179, 56 S.E.2d 358, 361 (1949).
9

appear and participate in pretrial conferences, 

hearings, trials, or other proceedings actually 

conducted before the tribunal. . . . Any pleading or 

other paper required to be served (whether relating to 

discovery or otherwise) shall be invalid unless it is 

signed by local counsel. 

Rule 1A:4(2).

We construed and applied Rule 1A:4(2) in Wellmore Coal 

Corp. v. Harman Mining Corp., 264 Va. 279, 568 S.E.2d 671 

(2002). There Wellmore Coal filed a notice of appeal within the 

30-day period prescribed by Rule 5:9(a). Id. at 281, 568 S.E.2d 

at 672. The notice, however, was only signed by out-of-state 

counsel and was thus invalid under Rule 1A:4(2). Id. at 282-83, 

568 S.E.2d at 672-73. Some three weeks after the 30-day period 

had run, Wellmore Coal filed an amended notice with local 

counsel's signature. Id. at 282, 568 S.E.2d at 672.

Harman Mining and Sovereign Coal Sales moved to dismiss 

Wellmore Coal's appeal. Id. They argued that the Court lacked 

jurisdiction to hear the appeal because: (1) the original 

notice was invalid, and (2) the amended notice was untimely. 

Id. We first defined the term "invalid" as used in Rule 1A:4(2)

as " 'not legally binding.' " Id. at 283, 568 S.E.2d at 673 

(quoting Black’s Law Dictionary 829 (7th ed. 1999)). We then 

reasoned that, because the original notice "was not legally 

binding," "it had no legal effect." Id. And because it had no 

legal effect, it could not be amended to comply with that Rule, 
10

for "an amendment presupposes a valid instrument as its object." 

Id. We thus granted Harman Mining and Sovereign Coal Sales'

motion and dismissed Wellmore Coal's appeal as untimely. Id. at 

284, 568 S.E.2d at 673.

Just like Wellmore Coal's original notice, Landrum's 

supplemental designation had no legal effect because it was not 

signed by local counsel as required under Rule 1A:4(2). And

just like Wellmore Coal’s original notice, Landrum's 

supplemental designation could not be amended to comply with 

that Rule, since it was an invalid instrument.8

 Landrum 

accordingly failed to obey the circuit court's pretrial order to 

file a supplemental designation on or before January 28.

C.

Landrum further contends that the circuit court abused its 

discretion in excluding the expert witnesses because Defendants 

were not prejudiced by her violation of Rule 1A:4(2). Whether 

prejudice flowed from the lack of local counsel's signature on 

the supplemental designation is irrelevant, however. The 

circuit court excluded the expert witnesses not because she 

failed to comply with Rule 1A:4(2), but because she failed to 

obey its pretrial orders. As noted earlier, Rule 4:12(b)(2)

 8 Herein lies the difference between Rule 1A:4(2) and Rule 

4:1(g). Unlike a violation of the former, a violation of the 

latter does not render an instrument invalid, and therefore it 

may be amended to add an omitted signature.
11

gives a trial court the authority to sanction "a party [that]

fails to obey an order to provide or permit discovery." Nothing 

in the language of that Rule or our case law demands that a 

trial court first determine whether a party's failure to obey an 

order has caused another party to suffer prejudice before it may 

impose a sanction.

D.

We now turn to the circuit court's decision to exclude

Landrum's expert witnesses. Based on our review of the record, 

we cannot say that the circuit court, in making that decision, 

failed to consider the relevant factors or that, "in weighing 

those factors, [it] commit[ted] a clear error of judgment." 

Kern, 738 F.2d at 970. Nor can we say that "any lesser sanction 

would have remedied the problem posed by [Landrum's] failure to 

obey [its] order[s]." American Safety Cas. Ins. Co. v. C.G. 

Mitchell Constr., Inc., 268 Va. 340, 353, 601 S.E.2d 633, 640

(2004).

The record reflects that the circuit court warned Landrum

multiple times that her failure to obey its orders would lead to 

sanctions, including the exclusion of the expert witnesses. 

First, there was the scheduling order, which stated, among other 

things, that "expert [witnesses] will not ordinarily be 

permitted to express any nondisclosed opinions at trial." Then 

there was the admonition given to her out-of-state counsel 
12

during the January 21 hearing: "I will tell you, sir, if you 

fail to [supplement the original designation on or before

January 28], I will dismiss the case after that." And finally, 

there was the order that was entered following the January 21 

hearing, which provided, among other things, that if she failed 

to supplement the original designation on or before January 28, 

then she would "risk further sanction by the court, including 

but not limited to, reconsideration of the defendants' motions."

Landrum, moreover, proved herself unable to comply with the 

Rules, running afoul of not just Rules 1A:4(2) and 

4:1(b)(4)(A)(i), but also Rules 1A:4(3) ("An out-of-state lawyer 

desiring to appear pro hac vice . . . shall . . . complete the 

application procedure [for admission] within the time limit" set 

by the tribunal), 4:1(e)(1)(B) (plaintiff has a duty to 

supplement her discovery responses with "the identity of each 

person expected to be called as an expert witness at trial, the 

subject matter on which the expert is expected to testify, and 

the substance of the expert's testimony, when additional or 

corrective information becomes available"), and 4:15(c) ("if a 

brief in support of a motion is five or fewer pages in length, 

the required notice and the brief shall be filed and served at 

least 14 days before the hearing and any brief in opposition to 
13

the motion shall be filed and served at least seven days before 

the hearing").9

In short, Landrum (or, more accurately, her out-of-state

counsel) has demonstrated a consistent disregard of the circuit 

court's pretrial orders and the Rules during this litigation.

III. Conclusion

For the foregoing reasons, we conclude that the circuit 

court did not abuse its discretion in excluding Landrum's expert 

witnesses. We therefore affirm the circuit court's judgment.

Affirmed.

JUSTICE MILLETTE, with whom CHIEF JUSTICE KINSER joins, 

concurring.

I join the majority opinion. I write separately to 

emphasize a well-established principle concerning the abuse-ofdiscretion standard in appellate review in both the Commonwealth 

and other jurisdictions.

Quoting Kern v. TXO Production Corp., 738 F.2d 968, 970 

(8th Cir. 1984), the majority correctly identifies three 

scenarios in which an abuse of discretion can occur. Although 

each scenario provides a clear example of a trial court's 

abusing its discretion, they are not all encompassing; thus, it 

 9 Landrum's noncompliance even continued in this Court: she

made substantive changes to four of the five assignments of 

error we agreed to hear, in violation of Rule 5:17(c)(1)(i). We 

thus granted Defendants' motion to strike the four changed

assignments of error.
14

is important not to limit an abuse-of-discretion review to these 

three factors.

This Court has repeatedly said that a " '[trial] court by 

definition abuses its discretion when it makes an error of 

law. . . . The abuse-of-discretion standard includes review to 

determine that the discretion was not guided by erroneous legal 

conclusions.' " Porter v. Commonwealth, 276 Va. 203, 261, 661 

S.E.2d 415, 445 (2008) (quoting Koon v. United States, 518 U.S. 

81, 100 (1996)); see also Grattan v. Commonwealth, 278 Va. 602, 

620, 685 S.E.2d 634, 644 (2009); Lynchburg Div. of Soc. Servs. 

v. Cook, 276 Va. 465, 484, 666 S.E.2d 361, 370-71 (2008); 

Oxenham v. Johnson, 241 Va. 281, 287, 402 S.E.2d 1, 4 (1991).

The Supreme Court of the United States has likewise said 

that a "[trial] court would necessarily abuse its discretion if 

it based its ruling on an erroneous view of the law or on a 

clearly erroneous assessment of the evidence." Cooter & Gell v. 

Hartmarx Corp., 496 U.S. 384, 405 (1990). And the federal 

courts of appeal have echoed this statement. See, e.g., United 

States v. Hedgepeth, 418 F.3d 411, 419 (4th Cir. 2005); Republic 

of the Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 75 

(3d Cir. 1994); McGregor v. Board of Comm'rs, 956 F.2d 1017, 

1022 (11th Cir. 1992); Heat & Control, Inc. v. Hester Indus., 

Inc., 785 F.2d 1017, 1022 (Fed. Cir. 1986).
15

Porter provides the perfect example of why the abuse-ofdiscretion standard includes review to determine that the trial 

court was not guided by an erroneous conclusion of law. In that 

case, Porter, who was on trial for capital murder, claimed that 

the circuit court erred in denying his request to limit 

courtroom security. 276 Va. at 260, 661 S.E.2d at 444. He 

argued that having two deputies stand behind him during his 

trial "prejudiced the jury by implying that he was 'incredibly 

dangerous.' " Id. at 257, 661 S.E.2d at 443. The circuit court 

denied Porter's request to order the two deputies to be seated 

because it believed that it had no authority to direct the 

sheriff's office on how to conduct security within the 

courtroom, although the circuit court later corrected its 

misunderstanding. Id. at 257-58, 260, 661 S.E.2d at 443, 445.

We reviewed Porter's claim under an abuse-of-discretion 

standard and acknowledged that the circuit court had misstated 

the law because a trial judge does have " 'overall supervision 

of courtroom security.' " Id. at 260, 661 S.E.2d at 445. 

(quoting Payne v. Commonwealth, 233 Va. 460, 466, 357 S.E.2d 

500, 504 (1987)). We then confirmed that a trial court abuses 

its discretion when it makes an error of law. Id. But we 

continued to analyze that abuse of discretion by the circuit 

court in its erroneous statement of the law by considering the 

necessity for the enhanced security. We concluded that the 
16

circuit court had not abused its discretion because the 

additional security was necessary and not unduly prejudicial as 

the demonstrated need for the security outweighed the potential 

prejudice to Porter. Id. at 262-63, 661 S.E.2d at 446. The 

three factors adopted by the majority today, however, would not 

have addressed the circuit court's erroneous statement of the 

law in Porter.

Even more pertinent is the majority's failure, in the case 

before us, to address Landrum's claim of judicial error in the 

application of its three factors. Had Landrum been correct in 

her argument that the circuit court was required to apply Rule 

4:1(g) allowing her to sign her submission promptly after the 

omission was called to her attention, it would have been an 

error of law and consequently an abuse of discretion for the 

circuit court to exclude her expert witnesses. Again, none of 

the majority's three factors would apply to this situation, 

demonstrating the need to retain, as part of the abuse-ofdiscretion standard, a review to determine that the discretion 

was not guided by legal error.

For these reasons, I respectfully concur.