
    CIRCUIT COURT OF THE CITY OF PORTSMOUTH
    Elbridge K. Mann, Jr. v. McAllister Towing of Va., Inc.
    November 5, 1997
    Case No. L93-827A
   By Judge James A. Cales, Jr.

The court denies die Motion to Quash the deposition of Dr. Paul Fainnan. The court is greatly impressed with the brilliant tactical maneuver in trying to shield Dr. Fainnan’s testimony under Rule 4:1(b)(4)(B). I am of the opinion that since Dr. Fainnan was a witness designated by die court to examine die plaintiff he is not an expert witness properly shielded by Rule 4:1(b)(4)(B); on die contrary, I opine that Rule 4:10(cX3) takes precedence over Rule 4:1(b)(4)(B) and dictates that Dr. Fainnan may be deposed. Adherence to the case of Brown v. Ringstad, 142 F.R.D. 461 (S.D. Iowa, 1992), dictates a result that is neither fair nor consistent with either the Virginia deviation from the Federal Rules or the language in Virginia Linen Service, Inc. v. Allen, 198 Va. 700 (1957).

Caveat: the Plaintiff should be aware that the use of Dr. Fainnan’s testimony, in any form at trial, under the language of the aforementioned Allen case, will make Dr. Fainnan the plaintiffs witness. The only reason that Dr. Fainnan can be questioned as to his hiring and remuneration would be for impeachment purposes; obviously, the plaintiff will not be allowed to impeach his own witness.  