Mikhaylov v. Sales , 291 Va. 349 ( 2016 )

PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Lacy,
S.J.
DMITRY MIKHAYLOV
OPINION BY
v. Record No. 150552 JUSTICE D. ARTHUR KELSEY
April 21, 2016
LISA SALES
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Lorraine Nordlund and David S. Schell, Judges
Dmitry Mikhaylov appeals a final judgment against him in a civil jury trial, claiming the
trial court misapplied principles of judicial estoppel and erroneously failed to exclude from
evidence expert testimony that had not been previously disclosed during pretrial discovery.
Agreeing with both assertions, we reverse and remand.
I.
In September 2011, Mikhaylov pleaded guilty to assault and battery of Lisa Sales. See
Code § 18.2-57. 1 A general district court accepted his plea and found Mikhaylov guilty. In
2013, Sales filed a civil suit against Mikhaylov seeking damages for, among other things, the
assault and battery. In his answer, Mikhaylov admitted that he had pleaded guilty to the criminal
charge but denied that he had actually committed the offense and further denied the extent to
which Sales claimed she was injured. Mikhaylov repeated these denials in response to a request
for admissions. Throughout the civil proceeding, Mikhaylov took the position that Sales had
fabricated the story because of ulterior motives and that he had a mitigating explanation for his
earlier guilty plea.
1
The arresting officer initially charged Mikhaylov with sexual battery, a violation of
Code § 18.2-67.4, and abduction, a violation of Code § 18.2-47. The general district court
amended the warrants of arrest to charge simple assault and battery, a violation of Code § 18.2-
57, and destruction of property, a violation of Code § 18.2-137. The general district court
convicted Mikhaylov of the amended charges, pursuant to a guilty plea.
Sales filed a motion for partial summary judgment on the counts for assault and battery.
Citing Code § 8.01-418, Sales argued that Mikhaylov’s guilty plea was “admissible evidence of
civil battery and assault” and was “sufficient” to establish his liability as a matter of law. Sales
did not mention collateral estoppel, judicial estoppel, or any theory of issue preclusion in either
her brief or oral argument on the motion. In response, Mikhaylov agreed that his guilty plea was
“admissible to prove liability” but countered that he was nonetheless “free to explain the
circumstances surrounding the plea and the matter ultimately becomes an issue of fact for the
jury to decide.”
At the hearing on the motion, Sales repeated her argument that the guilty plea was
admissible under Code § 8.01-418 and that no other circumstances raised a genuine issue of
material fact concerning Mikhaylov’s liability for the assault and battery. The court asked
whether Sales relied on principles of collateral estoppel. 2 Sales disclaimed the theory, pointing
out that “there’s no mutuality between the criminal proceeding and the civil proceeding.”
Turning to Mikhaylov, the court asked, “Are you familiar with the doctrine of a judicial
estoppel?” Mikhaylov replied that he was familiar with the doctrine but that it did not apply to
this case because Sales “wasn’t a party in the criminal proceeding. It was the Commonwealth
that was the party. That’s the problem, your Honor, with the [doctrine] that you cited.”
The court rejected this contention, holding that Mikhaylov was “free to explain the
circumstances” of the offense but could not deny that he committed the “act of assault and
battery.” The court added that Mikhaylov was precluded from introducing any evidence seeking
to explain the “circumstances surrounding the plea” because he should have either appealed or
brought a habeas action if he wanted to “attack” his guilty plea. Mikhaylov again objected,
2
Judge Lorraine Nordlund presided over the hearing addressing the motion for partial
summary judgment. Judge David S. Schell later entered the final judgment after a jury trial.
2
arguing that he was not attacking the validity of the plea, but rather wanted merely to explain
why he agreed to it.
The court’s written order stated “that the Court makes a finding of an admission by the
Defendant with his plea of guilty to the criminal charge of assault and battery and, at trial, the
Defendant cannot deny that he has committed an assault and battery on the grounds of the
judicial estoppel doctrine.” After thus establishing Mikhaylov’s liability as a matter of law, the
order stated that he “may argue at trial” any issue related to damages or proximate cause.
Despite these findings, however, the order stated that the court denied the motion for partial
summary judgment.
When the case proceeded to a jury trial, 3 Sales testified that Mikhaylov had perpetrated a
“brutal attack” on her for three to four hours. In response, Mikhaylov took the stand to deny the
allegations against him. When he testified that he did not “attack” Sales as she claimed, the
court sustained an objection by Sales. The court reasoned, “How can you have an assault and
battery without an attack?” Mikhaylov answered that any “unwanted” touching could constitute
a technical assault and battery, but the allegation of an “attack” went well beyond that. The court
disagreed and instructed the jury to “disregard” Mikhaylov’s testimony “that he did not attack”
Sales.
At trial, Sales offered the expert testimony of Dr. Kenneth Lippman regarding the nature
and extent of her injuries. Mikhaylov objected to the expert testimony to the extent it offered an
opinion on the need for future medical treatment because the expert designation required by the
pretrial scheduling order did not disclose any opinion on this subject and neither party had
3
The first jury trial ended in a mistrial due to the injection of prejudicially inadmissible
evidence during the testimony of Sales, despite the trial court’s ruling to exclude the evidence
following a previous motion in limine. No further discovery was requested or conducted
following the mistrial.
3
addressed the subject during the deposition of the expert. Sales conceded both of these points
but argued that Mikhaylov nonetheless should have anticipated Dr. Lippman’s opinions on future
medical treatment.
The trial court overruled the objection on the ground that it “would not be fair” to Sales
for Mikhaylov to wait until trial to object to Dr. Lippman’s previously undisclosed opinion. The
court explained its reasoning this way:
If the plaintiff knows before trial, by motion in limine or by
protective order, that they cannot proceed with this particular
claim, then that puts them in one status and they can prepare in that
fashion. If at trial suddenly they have this issue thrust upon them,
that puts them in a different status, and the balancing of equities, in
my judgment, is different. Perhaps on a motion in limine or some
pretrial motion, the defendant may have been successful.
But now we’re in trial, and this is presented to the plaintiff in
the middle of trial. And to me that makes it a different fairness
analysis and also a different analysis in terms of prejudice.
In response, Mikhaylov amplified his objection, “Judge . . . . The expert was not
designated to testify as to future claims, future treatment, future costs.” Mikhaylov argued
further, “It’s been acknowledged by the plaintiff that [the expert] was not designated for that
specific type of claim, future treatment claim or cost, and there was nothing in his deposition and
there is prejudice to the defendant to allow that testimony in.” The court disagreed and allowed
Dr. Lippman to testify that Sales, at some point in the future, would need neck surgery,
specifically “an anterior cervical discectomy and fusion,” and would also need treatment for
meniscus injuries.
The court sent the case to the jury with instructions relating to claims of assault and
battery and intentional infliction of emotional distress. Addressing assault and battery, the court
instructed: “The defendant cannot deny that he assaulted and battered the plaintiff.” Mikhaylov
objected to the instruction, arguing that it “in essence, grants summary judgment in favor of the
4
plaintiff as to the assault and battery claim.” The jury returned a verdict for Sales on assault and
battery as well as intentional infliction of emotional distress.
II.
On appeal, Mikhaylov’s assignments of error focus on two decisions of the trial court.
First, Mikhaylov argues that the court erred in applying judicial estoppel to his guilty plea.
Second, he contends the court abused its discretion by permitting Sales to introduce expert
opinions not previously disclosed during the discovery process.
A. JUDICIAL ESTOPPEL
Though the term itself is relatively new, the historic concepts underlying “judicial
estoppel” have been part of our legal heritage for centuries. Wooten v. Bank of Am., N.A., 290
Va. 306, 309-10, 777 S.E.2d 848, 849-50 (2015) (noting its conceptual roots in ancient Scottish
law). The doctrine “protects a basic tenet of fair play” by precluding litigants from “‘playing fast
and loose’ with the courts” or “‘blowing hot and cold’ depending on perceived self-interest.” Id.
at 310, 777 S.E.2d at 850 (citations omitted).
The strength of these broad justifications, however, is bridled by “several limitations” on
the scope of the doctrine. Id. Among these is the principle limiting judicial estoppel to “the
same parties or their privies when the inconsistent positions involve different proceedings.” Id.
at 311 n.4, 777 S.E.2d at 850 n.4. Except in truly unique circumstances, 4 judicial estoppel
4
The only such circumstance recognized to date involves cases “where the liability of
one defendant is derivative of the liability of another; for example, ‘where the relation between
defendants in the two suits has been that of principal and agent, master and servant, or
indemnitor and indemnitee.’” Lofton Ridge, LLC v. Norfolk S. Ry., 268 Va. 377, 382-83, 601
S.E.2d 648, 651 (2004) (quoting Town of Waynesboro v. Wiseman, 163 Va. 778, 782-83, 177
S.E. 224, 226 (1934)); see also Bentley Funding Grp. v. SK&R Grp., 269 Va. 315, 326 n.6, 609
S.E.2d 49, 54 n.6 (2005); Kent Sinclair & Leigh B. Middleditch, Jr., Virginia Civil Procedure §
14.12, at 1237 (6th ed. 2014).
5
“applies in Virginia only when the parties to the disparate proceedings are the same.” Bentley
Funding Grp. v. SK&R Grp., 269 Va. 315, 326, 609 S.E.2d 49, 54 (2005). 5
In other equitable estoppel contexts, we have consistently held that the Commonwealth
and a crime victim cannot be considered synonymous parties or related privies. See, e.g.,
Selected Risks Ins. v. Dean, 233 Va. 260, 263-64, 355 S.E.2d 579, 581 (1987) (holding that issue
preclusion requires mutuality of parties); cf. Honaker v. Howe, 60 Va. (19 Gratt.) 50, 56 (1869)
(recognizing that a criminal confession of guilt does not have preclusive effect on a subsequent
civil action because “though founded on the same fact, [they] are distinct remedies, prosecuted
by different parties and for different purposes”). 6 We see no principled reason to have a different
rule for purposes of judicial estoppel, which itself is a variant subset of general principles of
equitable estoppel.
The trial court thus erred in applying judicial estoppel in the civil suit by Sales against
Mikhaylov based upon the guilty plea that he made in the earlier criminal case prosecuted on
behalf of the Commonwealth. That does not mean that his guilty plea was inadmissible. Code
§ 8.01-418 provides that a guilty plea “shall be admissible” evidence “in any civil action”
involving the “same occurrence.” See Koutsounadis v. England, 238 Va. 128, 133, 380 S.E.2d
644, 647 (1989). The same would be true under common law principles governing a “party
5
See also Virginia Elec. & Power Co. v. Norfolk S. Ry., 278 Va. 444, 462, 683 S.E.2d
517, 527 (2009); Lofton Ridge, LLC, 268 Va. at 382, 601 S.E.2d at 651; Ferebee v. Hungate,
192 Va. 32, 36, 63 S.E.2d 761, 764 (1951); W. Hamilton Bryson, Bryson on Virginia Civil
Procedure § 12.04, at 12-15 (4th ed. 2005); John L. Costello, Virginia Remedies § 7.11[2], at 7-
42 to 7-43 (4th ed. 2011).
6
A common-sense exception to the mutuality principle has been recognized when the
convicted criminal initiates the later civil action instead of the crime victim or some other non-
party to the criminal case. Eagle, Star & British Dominions Ins. v. Heller, 149 Va. 82, 104-05,
140 S.E. 314, 321 (1927); see also Haring v. Prosise, 462 U.S. 306, 316 n.10 (1983); Smith v.
New Dixie Lines, Inc., 201 Va. 466, 472-73, 111 S.E.2d 434, 438-39 (1959); Aetna Cas. & Sur.
Co. v. Anderson, 200 Va. 385, 389, 105 S.E.2d 869, 872 (1958); Sinclair & Middleditch, supra
note 4, § 14.11[C][3], at 1227-29.
6
admission.” Lofton Ridge, LLC v. Norfolk S. Ry., 268 Va. 377, 383, 601 S.E.2d 648, 651
(2004); see also Va. R. Evid. 2:803(0). Despite the admissibility of a guilty plea, however, it
does not constitute “a preclusive bar” under the doctrine of judicial estoppel “unless the parties
are the same.” Lofton Ridge, LLC, 268 Va. at 383, 601 S.E.2d at 651. The trial court erred in
holding otherwise and by incorporating its error into a jury instruction. 7
B. ENFORCEMENT OF DISCOVERY DISCLOSURE RULES
Mikhaylov also contends the trial court abused its discretion in overruling his objection to
the expert opinion testimony of Dr. Lippman addressing the future medical needs of Sales, a
previously undisclosed expert opinion. We agree.
1.
Pretrial discovery rules require litigants to respond to discovery requests in a timely and
forthcoming manner. As every litigator and trial judge knows, however, confidence in that
aspirational goal can sometimes be dispirited by contests over the timeliness and completeness of
discovery responses. That is particularly true in disputes involving the discovery of expert
witness opinions.
The scope of discovery “with respect to the ‘facts known and opinions held by experts in
anticipation of litigation’ is restricted by the proviso that such facts and opinions ‘may be
obtained only’ by following the procedures set forth in subsections (A), (B), and (C) of Rule
4:1(b)(4).” Flora v. Shulmister, 262 Va. 215, 222, 546 S.E.2d 427, 430 (2001) (alteration
omitted) (quoting Rule 4:1(b)(4)). Rule 4:1(b)(4) requires litigants to answer interrogatories
requesting the disclosure of expert opinions, and Rule 4:1(e)(1) imposes on each litigant “a duty
7
For the same reason, the court similarly erred when it sustained evidentiary objections
to Mikhaylov’s testimony seeking to deny or to explain away his guilty plea, see Appellant’s Br.
at 1 (assignment of error 1), and to Mikhaylov’s testimony denying an “attack,” see id.
(assignment of error 2).
7
promptly to amend and/or supplement” interrogatory answers concerning “the substance of the
expert’s testimony” when the party learns that in some material respect his prior answers are
either inaccurate or incomplete.
Because the timing of the duty to disclose expert opinions can sometimes lead to
insufferable arguments over who knew what when and why it took so long to disclose it, courts
use pretrial scheduling orders to mark the outer boundaries of the disclosure duties. The
Uniform Pretrial Scheduling Order, similar to the one issued in this case, requires the
identification of any expert a party expects to call as a witness at trial, a statement of the subject
matter on which the expert is expected to testify, and a disclosure of the substance of the facts
and opinions to which the expert is expected to testify and a summary of the grounds for each
opinion. See Form 3, § III (Appendix to Rule 1:18(B)) (requiring disclosure, “[i]f requested,” of
“all information discoverable under Rule 4:1(b)(4)(A)(i)”); see generally Woodbury v. Courtney,
239 Va. 651, 654, 391 S.E.2d 293, 295 (1990) (“The purpose of the order was to allow the
litigants to discover the expert witnesses’ opinions in preparation for trial.”). 8
The Uniform Pretrial Scheduling Order warns that experts “will not ordinarily be
permitted to express any nondisclosed opinions at trial.” Form 3, § III (Appendix to Rule
1:18(B)) (emphasis added). This warning reinforces the trial court’s presumptive authority to
prohibit a party in material breach of an order regulating discovery from “introducing designated
matters in evidence.” Rules 4:12(b)(2)(B). In using this authority, however, the trial court must
8
The Uniform Pretrial Scheduling Order also makes clear that it does not supersede “the
Rules of Supreme Court of Virginia governing discovery.” Form 3, § II (Appendix to Rule
1:18(B)). It reminds the parties that they “have a duty to seasonably supplement and amend
discovery responses pursuant to Rule 4:1(e) of the Rules of Supreme Court of Virginia.” Id.
“Seasonably means as soon as practical.” Id. Thus, the deadlines in the Uniform Pretrial
Scheduling Order serve as the ultimate limits. Depending on the circumstances, the duty to
amend or supplement required by Rule 4:1(e) may sometimes require an earlier disclosure.
8
distinguish between the ordinary case (in which the nondisclosed opinion should be excluded)
and the extraordinary case (in which it should not). See Form 3, § III (Appendix to Rule
1:18(B)). We have never adopted an inflexible list of factors governing this discretionary
judgment call, and we do not do so now. That said, we can identify in this case a variable that
clearly does not belong on that list of discretionary factors.
2.
In this case, the trial court entered a pretrial scheduling order pursuant to Rule 1:18. The
order required Sales to designate (having been requested to do so by interrogatories) her primary
experts “on or before 90 days before trial” and her rebuttal experts “no later than forty-five (45)
days before trial.” The order also required the disclosure of “all information discoverable”
under Rule 4:1(b)(4)(A)(i). Sales identified Dr. Lippman as a rebuttal expert to address the
reasonableness and necessity of medical treatment provided to Sales. The disclosure, however,
made no reference to any opinion on future medical treatment.
At trial, Dr. Lippman offered an opinion stating that, at some point in the future, Sales
would need additional medical treatment as a result of the alleged assault and battery. See J.A. at
464, 491 (describing need for “an anterior cervical discectomy and fusion”); id. at 480 (opining
on the need for future treatment of “meniscus” injuries). Mikhaylov objected, contending that
this opinion appeared nowhere in any discovery disclosures, either before or after the expert
witness cutoff in the pretrial scheduling order. Nor did this opinion arise at any time during the
expert’s deposition. Sales conceded both of these points before the trial court.
The trial court overruled the objection based upon the view that Mikhaylov should have
raised his objection “before trial, by motion in limine or by protective order.” Had he done so,
the court reasoned, it would have spared Sales from having the objection “suddenly . . . thrust
9
upon” her during “the middle of trial.” The court’s rationale implied that Mikhaylov had
forfeited his objection to the testimony by not filing a pretrial motion. Whether the court
understood its ruling in those terms or not, its ruling had the effect of a de facto waiver rule. We
know of no such rule, 9 and despite the wide boundaries of a trial court’s discretion on such
matters, it would not extend far enough to create such a rule. It was Sales, not Mikhaylov, who
violated the court’s pretrial scheduling order and the expert discovery rules. Thus, it was Sales,
not Mikhaylov, who had the duty to attempt to cure the violation prior to trial. Unless
Mikhaylov was somehow complicit in the violation — an allegation not made in this case — he
was under no obligation to file a pretrial motion to contest the admissibility of expert testimony
on a subject that had never been disclosed to him. 10
Aside from the trial court’s waiver theory, we see no other legitimate reason for allowing
Sales to introduce into evidence Dr. Lippman’s previously undisclosed expert opinion on her
future medical needs. Sales offered no reasonable excuse for not disclosing the opinion and
suggested no basis for inferring that Mikhaylov was in any way responsible for this failing. The
only explanation Sales offered for excusing her nondisclosure was that Mikhaylov should have
9
The trial court did not mention it, but perhaps it was thinking of the provision in the
pretrial scheduling order addressing motions in limine, which stated: “Absent leave of court, any
motion in limine which requires argument exceeding five (5) minutes shall be duly noticed and
heard before the day of trial.” That provision, however, does not require all evidentiary
objections (contesting testimony or exhibits expected to be offered at trial) to be asserted before
trial in a motion in limine to prevent forfeiture. Instead, this provision merely clarifies that any
motion in limine that a party anticipates raising at trial must be raised before trial or else it will
be limited to five minutes of argument at trial.
10
See John Crane, Inc. v. Jones, 274 Va. 581, 592, 650 S.E.2d 851, 856 (2007) (“[A]
party is not relieved from its disclosure obligation under the Rule simply because the other party
has some familiarity with the expert witness or the opportunity to depose the expert.”); City of
Hopewell v. County of Prince George, 240 Va. 306, 314-15, 397 S.E.2d 793, 797 (1990)
(affirming the refusal of expert opinions provided on the “eve of trial”); Woodbury, 239 Va. at
654, 391 S.E.2d at 295 (“Five months is more than sufficient time for a litigant to identify expert
witnesses.”); see also Sinclair & Middleditch, supra note 4, § 12.5, at 968.
10
anticipated — based upon the pleadings filed by Sales and her general discovery answers — that
(i) she wanted to recover damages for future medical treatment; (ii) she would need an expert
opinion to do so; and (iii) such an opinion would likely come from Dr. Lippman, the only
medical expert identified by Sales in discovery.
We hold this series of suppositions to be insufficient as a matter of law to relieve Sales
from her obligation under Rule 4:1(b)(4)(A)(i), Rule 4:1(e), and the pretrial scheduling order to
provide a timely and specific disclosure of her anticipated expert testimony. 11 To hold otherwise
would reduce the expert disclosure obligation to the status of a mere recommendation or, worse,
a juristic bluff — obeyed faithfully by conscientious litigants but ignored at will by those willing
to run the risk of unpredictable enforcement.
III.
In sum, the trial court incorrectly applied principles of judicial estoppel to preclude
Mikhaylov from denying that he had assaulted or battered Sales. The court also erred in denying
Mikhaylov’s objection to Dr. Lippman’s previously undisclosed opinion on future medical
treatment. As a result, the trial court erred by incorporating these errors into two of its
instructions to the jury. We reverse the final judgment and remand for further proceedings
consistent with this opinion.
Reversed and remanded.
11
Because Dr. Lippman provided the only expert testimony on this subject, it necessarily
follows that the trial court erred in including future medical treatment in its jury instruction on
damages. See Appellant’s Br. at 1 (assignment of error 3).
11