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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