THORNHILL v. COMMONWEALTH EYE CENTER (2026)

Robert Thornhill appeals the circuit court's entry of summary judgment in favor of Commonwealth Eye Center and D. Russell Brear, M.D. (collectively, CEC) on Thornhill's claim for medical malpractice. On appeal, Thornhill argues the circuit court (1) misinterpreted the Uniform Pretrial Scheduling Order, (2) abused its discretion in prohibiting him from introducing evidence at trial, and (3) erred in entering summary judgment as a result. A divided panel of this Court disagreed with Thornhill and affirmed the circuit court's judgment, holding the circuit court did not abuse its discretion in its interpretation of the Uniform Pretrial Scheduling Order. Thornhill v. Commonwealth Eye Ctr., P.C., No. 0635-23-4, 2025 WL 1373347 (Va. Ct. App. May 13, 2025). Upon Thornhill's petition for rehearing en banc, we reverse the circuit court's judgment and remand for further proceedings.

BACKGROUND 1

Thornhill sued CEC for medical malpractice based on Brear's performance of an intraocular lens surgery.² The circuit court entered a Uniform Pretrial Scheduling Order (UPSO) and set trial for four days beginning on March 20, 2023. Section V of the UPSO set deadlines for the exchange and filing of witness and exhibit lists, providing:

Counsel of record shall exchange fifteen (15) days before trial a list specifically identifying each exhibit to be introduced at trial, copies of any exhibits not previously supplied in discovery, and a list of witnesses proposed to be introduced at trial. The list of exhibits and witnesses shall be filed with the Clerk of the Court simultaneously therewith but the exhibits shall not then be filed. Any exhibit or witness not so identified and filed will not be received in evidence, except in rebuttal or for impeachment or unless the admission of such exhibit or testimony of the witness would cause no surprise or prejudice to the opposing party and the failure to list the exhibit or witness was through inadvertence.

Based on this provision, the parties’ witness and exhibit lists were due for exchange and filing by March 6.³

Five days before trial, the circuit court judge assigned to hear the case contacted the parties directly about their exhibit and witness lists. The judge noted that CEC timely filed its exhibit and witness list, but that Thornhill failed to so file. The judge proceeded to suggest a course of action to the parties based on Thornhill's failure:

Since [Thornhill] has chosen not to list any witnesses or exhibits, I wish to ascertain whether [CEC] expects to make any objections about the issue. I would urge both counsel to read the exact language of the order. I want to avoid the disruption and inconvenience to the jury panel that will occur if this matter surfaces on the morning of trial with no prior notice to the court. I am not going to keep citizens waiting to resolve this issue. The Virginia Supreme [C]ourt promulgated the detailed rule concerning pre-trial scheduling orders to bring stability and certainty to trials. I would urge counsel to review Reaves v. Tucker, 67 Va. App. 719, 736 [, 800 S.E.2d 188] (2017) and Rahnema v. Rahnema, 47 Va. App. 645, 658 [, 626 S.E.2d 448] (2006). There is also a recently unpublished case by the Virginia Court of Appeals that addresses the issue. Marag v. Samsudin, 2022 Va. App. LEXIS 550.

(Emphases added). In response, Thornhill confirmed with the judge that he exchanged his lists with CEC on March 1 but that his lists were “inadvertently not sent to the court.” He promptly filed the lists the next day.

Even so, CEC read the circuit court's tea leaves and responded to the judge's inquiry with a courtesy copy of its “Objection to [Thornhill's] Witness and Exhibit Lists and Motion for Summary Judgment.” CEC argued Thornhill could not be permitted to introduce any evidence at trial since he failed to file a witness or exhibit list. Since Thornhill could not meet his burden of proof without presenting evidence, CEC argued it was entitled to summary judgment. Thornhill responded that CEC possessed his witness and exhibit lists prior to the deadline and that “[a]ny claim by [CEC] of surprise or prejudice [wa]s not made in good faith.” He distinguished his case from those cited by the judge and argued his inadvertent failure to file the lists and the lack of prejudice or surprise to CEC merited invocation of the exception to the prescribed sanction.

After a hearing, the circuit court sustained CEC's objection, prohibited Thornhill from introducing exhibits or witnesses at trial, and entered summary judgment. The circuit court recognized that CEC was “not surprised by the late filing because they received the same in advance of the deadline.” Nonetheless the court interpreted the exception to Section V as only permitting safe harbor from a failure to comply with its strictures if the party timely filed a witness and exhibit list in the first place:

In this case, the court finds that the [UPSO] requires the parties to file the witness and exhibit list while simultaneously providing a copy to opposing counsel. The “safe harbor” provisions providing potential relief omit the word “filed” from the order. The court is bound by the plain meaning of the order and cannot add or subtract language from it. The court further notes the absence of the word “filed” in the safe harbor provisions of the order. The order demands filing the exhibit and witness list simultaneously.

The court justified this construction by relying on policy considerations, like (1) the presumption of public access to judicial records, (2) the court's need to check for conflicts-of-interest, and (3) the need to enforce scheduling orders as a matter of deterrence. As a result, the circuit court determined Thornhill was not entitled to the exception and entered its final order dismissing Thornhill's action.

Thornhill appealed, and a divided panel of this Court affirmed the circuit court's judgment. Thornhill, slip op. at 1-2. The panel majority reasoned the Court reviews the circuit court's interpretation of the UPSO for an abuse of discretion since it is “simply interpreting its own order.” Id. at 7. From there, the majority held the circuit court reasonably interpreted the exception to the deadline as only applying to the “omission of specific witnesses or exhibits from a timely filed list of all the proposed witnesses and exhibits.” Id. at 11. The majority then applied the language of the order to hold that “[s]ince the circuit court had not received any timely filed list ․ the circuit court did not abuse its discretion when barring Thornhill from presenting any evidence.” Id. at 14. Because Thornhill could not meet his burden of proof on his claim, the majority then held that the circuit court did not err in entering summary judgment. Id. at 16.

The dissent agreed with the principle that summary judgment may be appropriately entered in the absence of any evidence from the claimant but disagreed about the standard of review applicable to the interpretation of the UPSO and the appropriateness of the sanctions issued by the circuit court. Id. at 19 (Callins, J., dissenting). The dissent opined that the Court should review the interpretation of the UPSO de novo since it is an extension of Rule 1:18. Id. at 20. In any event, the dissent reasoned, the circuit court erred under either a de novo or abuse of discretion standard, since (1) Thornhill's conduct clearly met the requirements of the exception, and (2) the circuit court's sanctions were disproportionate to the offending conduct violative of the UPSO. Id. at 21-22, 24.

Thornhill petitioned for en banc review, which we granted. Thornhill v. Commonwealth Eye Ctr., P.C., No. 0635-23-4 (Va. Ct. App. June 10, 2025) (order).

ANALYSIS

Thornhill argues that the circuit court erred in its enforcement of the UPSO by prohibiting him from introducing witnesses and exhibits, all but guaranteeing the dismissal of his case with prejudice on the contemporaneously-considered motion for summary judgment. We agree.

We review the circuit court's enforcement of the UPSO and its imposition of sanctions for an abuse of discretion. See Reaves v. Tucker, 67 Va. App. 719, 736-37, 800 S.E.2d 188 (2017) (applying abuse of discretion standard to enforcement of the UPSO). A circuit court abuses its discretion “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, and no improper ones, are considered, but the court, ․ commits a clear error of judgment.” Lawlor v. Commonwealth, 285 Va. 187, 213, 738 S.E.2d 847 (2013) (quoting Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134 (2011)). Otherwise, we review the circuit court's entry of summary judgment de novo. Kosmann v. Brown, 81 Va. App. 322, 332, 903 S.E.2d 567 (2024).

The UPSO is a creature of Rule 1:18, promulgated under our Supreme Court's authority to “formulate rules of practice and procedure for the circuit courts.” Code § 17.1-503(A). Rule 1:18 is “subject to the strict construction of the provisions of § 8.01-4.” Id. By reference, Code § 8.01-4 limits the promulgation of rules governing practice and procedure in circuit courts to those “rules necessary to promote proper order and decorum and the efficient and safe use of courthouse facilities and clerks’ offices.” These docket-management rules must not have the “effect of abridging substantive rights of persons before” the circuit court, and “[a]ny rule of court which violates” this proscription is “invalid.” Code § 8.01-4 (emphasis added). Dismissing a litigant's cause of action based solely on procedural violations inherently abridges their substantive rights by denying them even the opportunity to furnish proof in support of their cause of action. Cf. Montgomery v. Commonwealth, 75 Va. App. 182, 206-07, 875 S.E.2d 101 (2022) (Lorish, J., dissenting) (“[O]ur precedent demonstrates that ․ [substantive rights] relate to causes of action, rights of recovery, contracts, real property interests, and the nature of what is criminal.”). Thus, neither the Rules themselves nor any enforcement of the same should have the effect of denying a litigant the opportunity to establish their case based solely on procedural violations in the absence of compelling justification.

A circuit court's authority to enforce an order like the UPSO must be authorized by court rule, statute, or at common law. At common law, a circuit court may impose contempt sanctions for a willful violation of the UPSO. Contempt is appropriate when a litigant disobeys or resists “any lawful process, judgment, decree or order of the court.” Epperly v. Cnty. of Montgomery, 46 Va. App. 546, 552, 620 S.E.2d 125 (2005) (quoting Code § 18.2-456(5)). Sanctions for contempt for “misconduct tangentially related to the underlying suit” must be “narrowly tailored to correct” the contemptuous conduct at issue. Winters v. Winters, 73 Va. App. 581, 593, 863 S.E.2d 868 (2021). Put simply, sanctions must be “sufficient to deter [the offending] practices.” Id. (alteration in original). As such, we have held the dismissal of an action to be an abuse of discretion where a litigant irrevocably disclosed the sealed contents of a psychological evaluation to a third-party. Id. And we have similarly held summary disposition of an action to be an abuse of discretion even though a litigant had “not substantially complied with” any of the circuit court's pretrial scheduling orders, given the substantive rights involved. Ange v. York/Poquoson Dep't of Soc. Servs., 37 Va. App. 615, 621, 560 S.E.2d 474 (2002). Dismissal, as a sanction, is “generally not favored” and is to be “avoided when possible.” Id. at 629, 560 S.E.2d 474.

Assuming without deciding that the circuit court's interpretation of the UPSO's language was correct and that Thornhill violated the terms of the order,⁴ we conclude the imposed sanction—that is, exclusion of all Thornhill's witnesses and exhibits—was not merited.⁵ The UPSO specifies that exhibits or witnesses “not so identified and filed will not be received in evidence.” (Emphasis added). Subsequently, the safe harbor provision of Section V of the UPSO makes plain that exclusion of evidence does not apply when the opposing party suffers no surprise or prejudice and the failure to list is inadvertent. By finding that CEC was “not surprised by the late filing” and that Thornhill's failure was “inadvertent,” the circuit court's judgment misaligns with the reality of the circumstances it confronted. Cf. Herbert v. Joubert, 83 Va. App. 592, 614-15, 911 S.E.2d 798 (2025) (holding a circuit court abused its discretion by making an error of law under an erroneous understanding of the facts).

The circuit court's sanctions, which contradict its own factual findings and the plain language of the UPSO, are further undermined by its consideration of improper factors. The court spent much time explaining why “the filing of the exhibit and witness list is important.” But its offered policy considerations do little to parry the General Assembly's expressed intention that docket control procedures ⁶ “not abridge the substantive rights of the parties.” Code § 8.01-4. Permitting a circuit court to wield its power in a manner that obliterates a litigant's case based solely on a procedural technicality is anathema to the General Assembly's intention. And virtuous as the circuit court's policy considerations may have been, they were irrelevant and improper factors to consider, unmoored from the text of Section V. See Lawlor, 285 Va. at 213, 738 S.E.2d 847 (noting circuit courts abuse discretion when giving significant weight to “irrelevant or improper factor[s]” (quoting Landrum, 282 Va. at 352, 717 S.E.2d 134)).

In fact, the circuit court failed to give the proper weight to the factors prescribed by the UPSO. We agree with the circuit court that the UPSO “requires the parties to file the witness and exhibit list while simultaneously providing a copy to opposing counsel.” The UPSO clearly and unambiguously imposes two conditions precedent on the exclusion of witnesses and exhibits. Exclusion is only appropriate when witnesses and exhibits are not (1) identified on a list that is (2) filed with the circuit court. According to the plain language of Section V, exhibits and witnesses are “identified” when they are included on a list exchanged between counsel at least 15 days before trial. A litigant satisfies the filing requirement by filing this list with the clerk of the circuit court simultaneously with its exchange between counsel. And as noted by the circuit court, application of the safe harbor provision turns on consideration of whether the admission of evidence not included on such a list would cause “no surprise or prejudice to the opposing party” and whether “the failure to list” was “through inadvertence.” But here, the circuit court effectively gave no weight at all to Thornhill's timely identification of his witnesses and exhibits, the lack of surprise or prejudice to opposing counsel, or to the inadvertence of Thornhill's failure to simultaneously file the document with the clerk of the circuit court. Failing to give proper weight to the factors prescribed by the UPSO's language compounds the errors caused by the circuit court's abuse of discretion. See Lawlor, 285 Va. at 213, 738 S.E.2d 847 (recognizing an abuse of discretion exists “when a relevant factor that should have been given significant weight is not considered” (quoting Landrum, 282 Va. at 352, 717 S.E.2d 134)).

Setting aside the considerations driving the circuit court's imposition of sanctions, it committed a clear error of judgment by imposing a sanction disproportionate to Thornhill's offending conduct. By “short-circuiting” Thornhill's case, the circuit court imposed the civil “death penalty” based on a minor violation of the UPSO. See Ange, 37 Va. App. at 629, 632, 560 S.E.2d 474. It did so despite recognizing that Thornhill had timely identified his witnesses and exhibits with CEC and that Thornhill's failure to file was merely inadvertent. Crucially, by the circuit court's own findings, the safe harbor provision should have prevented the exclusion of Thornhill's evidence. Cf. Galloway v. Cnty. of Northampton, 299 Va. 558, 564, 855 S.E.2d 848 (2021). Basing its sanction instead on irrelevant factors and ignoring the proper ones, the circuit court's disproportionate action in dismissing Thornhill's case was also not sufficiently narrowly tailored to be justified as a contempt sanction. See Winters, 73 Va. App. at 593, 863 S.E.2d 868.

We are mindful that by holding that the circuit court abused its discretion we are recognizing the significant and rare circumstance where no reasonable jurist could agree that the circuit court's actions were appropriate. See Commonwealth v. Holland, 304 Va. 34, 47, 910 S.E.2d 327 (2025) (admonishing the Court of Appeals for its prior misapplications of the abuse of discretion standard). We do not do so lightly. But this case features an egregious abuse of judicial power, wherein the court abandoned the neutrality of its role to choose the outcome in this case, regardless of the facts or law. In an era where public trust in the judiciary is already reaching its lowest ebb, we cannot abide “rubber stamp[ing] every discretionary decision” of the circuit courts. Walsh v. Bennett, 260 Va. 171, 175, 530 S.E.2d 904 (2000). Hence, we hold the circuit court abused its discretion.

By holding the circuit court abused its discretion in imposing sanctions in this case, we necessarily hold that it erred in entering summary judgment. It entered summary judgment as a matter of Thornhill's inability to meet his burden of proof because of the circuit court's sanctions. Absent the exclusion of Thornhill's evidence, however, genuine disputes of material fact remain as to the sufficiency of Thornhill's evidence to meet his burden of proof. Rule 3:20 (“Summary judgment may not be entered if any material fact is genuinely in dispute.”).

CONCLUSION

For the foregoing reasons, we reverse the circuit court's judgment and remand for further proceedings consistent with this opinion.

Reversed and remanded.

Should appellate courts defer to circuit judges’ differing interpretations of the provisions in the uniform pretrial scheduling order prescribed by Rule 1:18, or should those provisions be interpreted uniformly throughout the Commonwealth? The question practically answers itself. The uniform order should be interpreted uniformly throughout Virginia; its meaning should not vary from one judicial circuit to another, let alone from one circuit judge to another.

The majority assumes without deciding that an abuse-of-discretion standard applies when reviewing the trial court's interpretation of the uniform pretrial scheduling order. While I agree that the trial court erred, I would hold that the trial court's interpretation of the provisions of the uniform pretrial scheduling order presents a question of law subject to de novo review. I write separately to explain why.

In 1999, citing caselaw from other jurisdictions, we held that “courts have the authority to interpret their own orders” and that “when construing a lower court's order, a reviewing court should give deference to the interpretation adopted by the lower court.” Rusty's Welding Serv., Inc. v. Gibson, 29 Va. App. 119, 129, 510 S.E.2d 255 (1999) (en banc). The Supreme Court adopted that rule a year later. See Fredericksburg Constr. Co. v. J.W. Wyne Excavating, Inc., 260 Va. 137, 143-44, 530 S.E.2d 148 (2000). Our appellate courts have repeated that rule many times since. E.g., Hill v. Commonwealth, 301 Va. 222, 226 n.1, 876 S.E.2d 173 (2022) (“We defer to the court's interpretation of its own order.”); English v. Quinn, 76 Va. App. 80, 92, 880 S.E.2d 35 (2022) (“It is well-established that courts have the authority to interpret their own orders.”). The obvious rationale is that the trial judge who authored the order is in the best position to understand what was intended. Deference is required, however, only if the trial court's interpretation of its own order is “reasonable.” See, e.g., Roe v. Commonwealth, 271 Va. 453, 458, 628 S.E.2d 526 (2006); Davis v. Commonwealth, 70 Va. App. 722, 732, 833 S.E.2d 87 (2019).

But as the parties acknowledged at oral argument, no published decision by our appellate courts addresses whether that interpretive rule applies when interpreting provisions of the uniform pretrial scheduling order prescribed by Rule 1:18. The panel opinion concluded that deferential review should apply based on four cases. See Thornhill v. Commonwealth Eye Ctr., P.C., No. 0635-23-4, slip op. at 7-8, 2025 WL 1373347, at *––––, 2025 Va. App. LEXIS 272, at *11 (May 13, 2025) (citing Galloway v. Cnty. of Northampton, 299 Va. 558, 564, 855 S.E.2d 848 (2021); Mikhaylov v. Sales, 291 Va. 349, 358-59, 784 S.E.2d 286 (2016); Reaves v. Tucker, 67 Va. App. 719, 736, 800 S.E.2d 188 (2017); and Rahnema v. Rahnema, 47 Va. App. 645, 658, 626 S.E.2d 448 (2006)). But none of those cases held that appellate courts should defer to the trial court's interpretation of the provisions of the uniform order itself. See, e.g., Galloway, 299 Va. at 564-65, 855 S.E.2d 848 (affirming exclusion of expert whose expected testimony was not properly disclosed under the uniform pretrial scheduling order); Reaves, 67 Va. App. at 734, 800 S.E.2d 188 (“The trial court did not err in enforcing the deadlines in the scheduling order, thereby keeping the litigation on track.”).

The deferential standard for reviewing a trial court's interpretations of its “own orders,” Fredericksburg Constr., 260 Va. at 144, 530 S.E.2d 148; Rusty's Welding, 29 Va. App. at 129, 510 S.E.2d 255, does not apply here because the uniform pretrial scheduling order is not the trial court's own order. It was authored instead by our Supreme Court. And Rule 1:18 of the Supreme Court of Virginia obligates a circuit court to issue that order “upon request of counsel of record for any party, or in its own discretion.” Rule 1:18(b). Circuit courts may adopt different scheduling orders in civil cases like this one only if the parties consent or if the court determines after notice and hearing that the uniform provisions are inadequate:

With the exception of domestic relations and eminent domain cases, a court may not enter a scheduling order which deviates from the terms of the Uniform Pretrial Scheduling Order unless either (1) counsel of record for all parties agree to different provisions, or (2) the court, after providing an opportunity for counsel of record to be heard, makes a finding that the scheduling order contained in the Appendix is not consistent with the efficient and orderly administration of justice under the specific circumstances of that case.

Rule 1:18(c).

The history of the uniform pretrial scheduling order confirms that its provisions should be interpreted eponymously, that is, uniformly across the Commonwealth. Before Rule 1:18 prescribed a uniform pretrial scheduling order, some “200 local scheduling orders” had proliferated throughout Virginia.⁷ In 1999, the General Assembly amended Code § 8.01-4 to limit the power of circuit courts to enact local rules that could abridge substantive rights. 1999 Va. Acts ch. 839. Section 2, which was uncodified, said it is “the clear intent of the General Assembly that there be no local rules and that any docket control procedures not affect the substantive rights of the litigants.” Id. In 2000, the General Assembly amended the statute again to make clear that no local rule could be inconsistent with “the Rules of the Supreme Court.” 2000 Va. Acts ch. 803. The bill also added what is now the first sentence of the second paragraph of Code § 8.01-4: “The courts may prescribe certain docket control procedures which shall not abridge the substantive rights of the parties nor deprive any party the opportunity to present its position as to the merits ․ solely due to the unfamiliarity of counsel of record with any such docket control procedures.” Id. On May 1, 2000, shortly after the General Assembly approved the 2000 legislation, the Supreme Court promulgated Rule 1:18, effective July 1, the same day that the bill took effect. See Order (Va. May 1, 2000); Rule 1:18 (Supp. Nov. 2000).

If the provisions of the uniform pretrial scheduling order were not interpreted uniformly across the Commonwealth, Virginia civil procedure would revert to the very situation that the General Assembly condemned: different rules or “docket control procedures” among different circuit courts that could “abridge the substantive rights of the parties” and deny a “party the opportunity to present its position as to the merits ․ solely due to the unfamiliarity of counsel of record with any such docket control procedures.” Code § 8.01-4. Worse yet, those rules could differ not only among Virginia's 31 judicial circuits, but among its 175 circuit judges.⁸

Because the uniform pretrial scheduling order is set forth as an appendix to Rule 1:18, the order is an extension of the rules of court themselves. So like disputes over the meaning of the rules of court, a dispute about how to interpret a provision in the uniform pretrial scheduling order presents a question of law subject to de novo review on appeal. See, e.g., Commonwealth v. Carolino, 303 Va. 399, 409, 909 S.E.2d 413 (2024) (holding that the Supreme Court reviews our construction of the rules of court de novo).

This case shows the importance of giving uniform meaning to the uniform order's provisions. Section V of the uniform pretrial scheduling order requires the parties to exchange and file witness and exhibit lists 15 days before trial. As relevant here:

Any exhibit or witness not so identified and filed will not be received in evidence, except in rebuttal or for impeachment or unless the admission of such exhibit or testimony of the witness would cause no surprise or prejudice to the opposing party and the failure to list the exhibit or witness was through inadvertence.

Uniform Pretrial Scheduling Order § V (emphasis added).⁹ The majority calls the italicized unless clause in this sentence the “safe harbor provision.”

The trial court came up with a plausible reading of the safe-harbor provision: the unless clause applies only if the witness and exhibit lists are both exchanged and filed; that is, only a party who has complied with the “identified and filed” requirement is entitled to the safe-harbor provision by showing that the other side was not prejudiced by the “failure to list” a witness or exhibit.

I would hold that the trial court's reading of the safe-harbor provision, though not unreasonable, is simply not the better reading once we eliminate any deference that we would otherwise give the trial judge had he authored the order himself. The better reading of “not so identified and filed” is that the safe-harbor provision applies to any witness or exhibit that is (1) not disclosed on the list served by counsel and (2) not on the list, if any, filed with the court.¹⁰ The trial court's construction, by contrast, leads to a counterintuitive result. It requires that all the plaintiff's evidence be excluded despite that the plaintiff's failure to file the lists was inadvertent and the defendant—having received the lists early—suffered no prejudice whatsoever.

If we had to defer to the trial judge's plausible interpretation of § V as if it were the trial judge's own order, we would have to affirm the trial court's discretion to enter summary judgment against one side based on a trivial procedural misstep. Worse, doing so would tolerate different interpretations of the uniform pretrial scheduling order throughout Virginia depending on the trial judge's preferred reading. That would subject counsel “unfamiliar[ ]” with the trial judge's peculiar “docket control procedures” to the loss of “substantive rights.” Code § 8.01-4. Deference to the trial court in this context makes no sense. Cf. In re Trans Union Corp. Privacy Litig., 741 F.3d 811, 816 (7th Cir. 2014) (“Litigants as well as third parties must be able to rely on the clear meaning of court orders setting out their substantive rights and obligations, and appellate courts should interpret those orders in the same manner.”).

In sum, while I agree with the majority that the trial court erred in striking the plaintiff's evidence, I would hold that the trial court erred as a matter of law when interpreting the safe-harbor provision in § V of the uniform pretrial scheduling order. The plaintiff's failure to file the lists that had been timely served on opposing counsel did not negate the plaintiff's entitlement to the safe-harbor provision. And because the parties agree that the plaintiff's failure to file the lists with the court was inadvertent and did not prejudice the defendant, it was error to exclude the plaintiff's evidence and enter summary judgment. For these reasons, I respectfully concur in the judgment.

FOOTNOTES

2.   Thornhill originally sued CEC in April 2019, but he nonsuited that action in April 2021. He reinstituted the action in October 2021.

3.   Fifteen days prior to March 20 fell on March 5, a Sunday. Thus, under Code § 1-210(B), the deadline fell on “the next day that [wa]s not a Saturday, Sunday, legal holiday, or day or part of a day on which the clerk's office [wa]s closed,” or Monday, March 6.

4.   Indeed, Thornhill acknowledges his failure to comply with the filing requirement of Section V.

5.   Thornhill also argues the circuit court erred by effectively assigning primacy-of-place to the filing requirement contained within Section V of the UPSO and adducing it, alone, as grounds for the exclusion of Thornhill's evidence. Because we hold the circuit court abused its discretion by imposing the sanctions that it did, we do not address the separate issue of the court's interpretation of the UPSO. We do so because our Supreme Court has previously exhorted that “a degree of judicial caution should accompany any holding that reaches out beyond the limits of the particular case to address unnecessary and novel issues.” Butcher v. Commonwealth, 298 Va. 392, 397, 838 S.E.2d 538 (2020). Indeed, “a ruling on the factual sufficiency of a single case will affect far fewer subsequent cases than a broad pronouncement on an open legal question.” Id. We are obligated to decide cases on the best and narrowest grounds as matter of judicial restraint, we decline to issue a “broad pronouncement” on the interpretation of Section V's language, affecting cases across the Commonwealth. Id. at 396-97, 838 S.E.2d 538.

6.   The UPSO is multi-functional. In the context of its provisions relating to expert designation deadlines, our Supreme Court has characterized it as an “order regulating discovery.” Galloway v. Cnty. of Northampton, 299 Va. 558, 564, 855 S.E.2d 848 (2021) (quoting Mikhaylov v. Sales, 291 Va. 349, 358, 784 S.E.2d 286 (2016)). Here we consider the UPSO's provisions regulating post-discovery trial preparations, a matter of docket control and management.

7.   Deborah Elkins, Uniform Pretrial Order Proposed For All Courts, Va. Lawyers Weekly (Dec. 20, 1999), https://valawyersweekly.com/1999/12/20/uniform-pretrial-order-proposed-for-all-courts/. The development of Rule 1:18 to counter that trend was chronicled by the Virginia Lawyers Weekly, which also published the draft rule for public comment. See id.; Proposed Uniform Scheduling Order, Va. Lawyers Weekly (Jan. 7, 2000), https://valawyersweekly.com/2000/01/17/proposed-uniform-scheduling-order/; Deborah Elkins, Scheduling Order Approved By Court, Va. Lawyers Weekly (May 22, 2000), https://valawyersweekly.com/2000/05/22/scheduling-order-approved-by-court/.

8.   See RD82—Annual Report on the Number of Circuit Court Judges Needed and the Districts for which They Should Be Authorized 3 (Jan. 10, 2025) (listing authorized judges per circuit), https://rga.lis.virginia.gov/Published/2025/RD82.

9.   The trial court used the pre-2021 version of the uniform pretrial scheduling order. The uniform order was among the rules and appendices comprehensively revised by the Supreme Court, effective March 1, 2021, “replacing or eliminating more than 1,800 shalls.” Bland Henderson v. Commonwealth, 77 Va. App. 250, 260-61, 885 S.E.2d 477 (2023), aff'd on other grounds, 303 Va. 211, 902 S.E.2d 51 (2024). The revisions were intended “to clarify the meaning of the word ‘shall’ formerly appearing in these Rules and not to change existing law.” Order at 1 (Va. Nov. 23, 2020), https://perma.cc/DT54-JGX6; see Bland Henderson, 77 Va. App. at 261 n.8, 885 S.E.2d 477 (discussing purpose of shall replacements).

10.   This interpretation does not undermine the value of the filing requirement in § V. For one thing, the filing requirement serves principally to corroborate that the party in fact exchanged the witness and exhibit lists on the date claimed; the filing “simultaneously therewith” confirms that the exchange among parties in fact occurred. But there is no dispute here that the lists were exchanged; indeed, they were exchanged early. For another thing, a party who has timely served its witness and exhibit lists on opposing counsel—but who intentionally or recklessly failed to file the lists with the court—would not have acted “inadvertently,” and thus would not be entitled to the benefit of the safe harbor.

OPINION BY JUDGE DOMINIQUE A. CALLINS