May. 5. 2014 2:5 1PM Hancock Dan iel Johnson & Nagle No.571 4 P. 4

VIRGINIA:

IN THE CIRCUIT COURT FOR THE COUNTY OF FAIRFAX

LANIE E. NIKES

Plaintiff, CL No. 2013-13799

v.

MICHAEL R. ABIDIN, M.D., eta/.

Defendants.

DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT

COME NOW defendants Michael R. Abidin, M.D. and Metropolitan ENT &

Facial Plastic Surgery (Fairfax Co), Trading under the fictitious name of Loudoun

Medical Grouup, P.C., by undersigned counsel, without waiving or abdicating any

arguments raised in Metropolitan ENT & Facial Plastic Surgery (Fairfax Co), Trading

under the fictitious name of Loudoun Medical Grouup, P.C.'s Plea in Bar I Motion to

Dismiss Due to Misnomer, its Reply to Plaintiff's Supplemental Brief in Opposition of

[sic] Defendant's Motion to Dismiss due to Misnomer, or its objections to the Court's

orders pertaining to these motions, and in opposition to Plaintiff's Motion for Leave to

File Amended Complaint, state as follows:

I. PROCEDURAL BACKGROUND

On February 21, 2014, this Court properly dismissed defendant Metropolitan

ENT & Facial Plastic Surgery (Fairfax Co), Trading under the fictitious name of

Loudoun Medical Grouup, P.C. from this case on the grounds of misnomer. Exhibit 1

IIA.'\COCK. D.\NJIL. (Order); Exhibit 2 (transcript). By letter opinion of March 14, 2014, the Court exercised JO~N ~ N.\CU:, P.C . . W7!1 FlllR RTDGli DRI\'Il su•TK<~7S-s()vnl its "inherent right to 'be inconsistent with itself"' and reversed its ruling of February 21,

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2014. Exhibit 3 at p. 1. As previously noted, the misnomer arose when plaintiff failed to

properly name Loudoun Medical Group, P.C. as a defendant and employe.r of Dr.

Abidin, the physician whose acts are at issue. As a result of plaintiffs error, named

defendant Metropolitan ENT & Facial Plastic Surgery (Fairfax Co), Trading under the

fictitious name of Loudoun Medical Grouup, P.C. was not properly before the Court.

The defendants now oppose Plaintiff's Motion for Leave to File Amended

Complaint with respect to the purported attempt to correct a misnomer, but do not take

issue with or oppose plaintiff's requests to further reduce the allegations of negligence

presented in the Complaint.

II. ARGUMENT

As argued previously, neither Metropolitan ENT & Facial Plastic Surgery

(Fairfax Co). Trading under the fictitious name of Loudoun Medical Grouup, P.C. nor

Loudoun Medical Group, P.C. should be a defendant to this case by virtue of the

expiration of the statute of limitations prior to the correctly named defendant receiving

notice of the pendency of the lawsuit pursuant to the relation back analysis contained

in Code § 8.01-6.1 Accordingly, the plaintiff should not be permitted to amend the

Complaint to correct her error.

In the letter opinion reversing its prior holding, the Court relied upon the ruling of

a 1957 Supreme Court case to support its holding that "where 'the right party is before

the Court[,] although under a wrong name. an amendment to cure a misnomer will be

1 The defendants expressly adopt the reasoning articulated in Defendant Metropolitan ENT & Facial Plastic Surgery (Fairfax Co), Trading under the fictitious name of Loudoun Medical Grouup, P.C. 1s Plea in Bar I Motion to Dismiss Due to Misnomer and its Reply to Plaintiff's Supplemental Brief in Opposition of [sic] Defendant's Motion to Dismiss due to Misnomer.

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allowed, notwithstanding the running of the statute of limitations, provided there is no

change in the cause of action originally stated."' Exhibit 3 at 2 (quoting Jacobson v.

So. Biscuit Co., 198 Va. 813, 817 (1957)). However, Jacobson is not controlling law in

this matter, as it has been preempted by Code § 8.01-6. In particular, the 1990 and

1996 amendments to Code§ 8.01-6 changed the statute to state in relevant part:

An amendment changing the party against whom a claim is asserted, whether to correct a misnomer or otherwise, relates back to the date of the original pleading if (i) the claim asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading, (ii) within the limitations period prescribed for commencing the action against the party to be brought in by the amendment that party or its agent received notice of the institution of the action, (iii) that party will not be prejudiced in maintaining a defense on the merits, and (iv) that party knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against that party.

Code§ 8.01-6 (emphasis added). Where proceeding with a common law rule conflicts

with a statutory directive by creating rights, duties, and liabilities inconsistent with the

applicable statute, the canon of common law in question is preempted by the statutory

provisions. Schlegel v. Bank of America, N.A., 271 Va. 542, 553 (2006). For this case,

the Jacobson rule giving plaintiff the right to cure a misnomer situation regardless of

whether the statute of limitations has elapsed is preempted by Code § 8.01 -6. The

statute expressly states the new rule governing such situations: the party to be brought

in by the amendment must have received notice of the institution of the action within

the statute of limitations. Jacobson is thereby entirely mooted, and the Court's .

inclusion of it as authority that is in any way dispositive of this case was erroneous.

After addressing Jacobson, the Court's letter opinion concluded that its prior

holding "ignored the plain meaning of§ 8.01M6 by not recognizing the limiting language

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applicable to changing a party, as opposed to having the proper party under the wrong

name." Exhibit 3 at 2. The Court rationalized that its initial February 21 , 201.4 ruling

''would give no effect to the first sentence in § 8.01-6, and would more particularly

. remove the distinction between misnomer and adding an entirely new party." !5i The

defendant respectfully disagrees with this rationale because there is no such

distinction between misnomer and adding an entirely new party in the plain language

of the Code. To be precise, the statute treats misnomer in the exact same fashion as

an instance where a party is added.

Indeed, after reversing itself, the Court has now interpreted the statute in such a

manner that the second sentence of Code § 8.01~6 can never apply to a situation of

misn0mer, despite the express inclusion of misnomer in the statute. Succinctly stated,

the Court's ruling is that correction of a misnomer does not constitute a change in

party; therefore, Code § 8.01 -6(ii) can never preclude the correction of a misnomer,

regardless of when a defendant discovers the pendency of a suit. Exhibit 3 at 2. In so

doing, this Court has effectively ruled that the Virginia legislature did not mean what it

said in 1996, when it specifically added the language "whether to correct a misnomer

or otherwise''-and no other language-to the second sentence of Code§ 8.01-6.

This Court's interpretation of an inclusive phrase as an exclusive phrase not

only contravenes the rules of statutory interpretation, but also runs contrary to the

secondary authority cited by the Court itself. As articulated by Professor Sinclair, "[t}he

lengthy second sentence added in 1990 incorporates a general test for adding new

parties, which, as the 1996 amendment makes clear, is not limited to the correction of

misnomer." Exhibit 3 at 2 (emphasis added) (quoting Kent Sinclair & Leigh B.

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Middledifch, Jr., 1-4 Virginia Civil Procedure § 4.8, fn. 4 (5th Ed. 2013)). Professor

Sinclair does not state that the lengthy second sentence of Code§ 8.01-6 ~oes not

apply to misnomer in this passage. Instead, he comes to the conclusion· urged by the

defendants: Code § 8.01-6 includes the correction of misnomer, as well as other

situations where new parties are added. It is a distortion of Professor Sinclair's

language to equate his statement that Code § 8.01-6 includes non-misnomer

situations with an exclusion of misnomer from its purview.

Ill. CONCLUSION

WHEREFORE, Defendants Michael R. Abidin, M.D. and Metropolitan ENT &

Facial Plastic Surgery (Fairfax Co), Trading under the fictitious name of Loudoun

Medical Grouup, P.C. respectfully request this Honorable Court to deny plaintiffs

Motion for Leave to File Amended Complaint with respect to the plaintiff's attempted

correction of the misnomer in this matter.

DEFENDANTS MICHAEL R ABIDIN, M.D. and METROPOLITAN ENT & FACIAL PLASTIC SURGERY (FAIRFAX CO), TRADING UNDER THE FICTITIOUS NAME OF LOUDOUN MEDICAL GROUUP, P.C. By Counsel

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HANCOCK, DANIEL, JOHNSON & NAGLE, P.C. 3975 Fair Ridge Drive, Suite 475 South Fairfax, VA 22033~2911 Tel: 703-591 -3440 I Fax: 703-591-7646 Email: rnagle@hdjn.com I hzaug@hdjn.com

Metropolitan ENT & Facial Plastic Surgery (Fairfax Co), Trading under the fictiUous name of Loudoun Medical Grouup} P. C.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this~ day of May, 2014, a true copy of the foregoing pleading was sent to the following:

Benjamin W. Glass, Esq. BENJAMINW. GLASS, Ill &ASSOCIATES, P.C. 3915 Old Lee Highway, Suite 22B Fairfax, Virginia 22030 Counsel for Plaintiff

(v(viafacsimile~)o t~~\~ ( ) hand delivered ( ...r-mailed, first classl~\t~\~

postage prepaid

Heather E. Zaug (s-DM11619873

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