Justices: Judge can't exclude additional opinions

By Kyla Asbury | Feb 26, 2015

CHARLESTON – A trial court's decision to exclude additional opinions was wrong, according to the state Supreme Court.

Monongalia Circuit Judge Susan B. Tucker and Patricia M. Powell, individually and as executrix of the estate of Robert L. Powell were the respondents.

The record in this case demonstrates that the circuit court committed error as a matter of law in precluding experts from presenting their additional opinions at trial, according to an opinion filed Feb. 12 by the Supreme Court.

Justice Robin Jean Davis delivered the opinion of the court. Justices Margaret Workman and Allen Loughry concurred, with Workman authoring a concurring opinion.

Dr. Todd Tallman, invoked the court's original jurisdiction seeking a writ of prohibition to prevent enforcement of an order of the Monongalia Circuit Court that precludes his experts from rendering opinions that were set out in a supplemental discovery disclosure.

"The respondent ... contends that the circuit courts order is correct and that Dr. Tallman has failed to satisfy the standard for issuance of the writ," the opinion states. "Upon our review of the parties briefs and oral arguments, the appendix records designated for our consideration, and the pertinent authorities, we find that Dr. Tallman has demonstrated sufficient grounds to warrant issuance of the requested writ of prohibition. Therefore the writ is granted."

On July 27, 2012, Patricia Powell filed the instant medical malpractice action against Tallman, alleging he was medically negligent in causing her husband's death by failing to diagnose Robert Powell's appendicitis, which resulted in complications that caused his death on Oct. 28, 2010.

Patricia Powell served her supplemental disclosure of her expert, known as Dr. Milewski, on June 3 and Tallman deposed him on June 19.

"Subsequent to obtaining a transcript of Dr. Milewski's deposition, Dr. Tallman had his two experts review the transcript," the opinion states. "Dr. Tallman's experts revised their opinions after reading Dr. Milewski's deposition and reviewing additional discovery information."

On July 29, Tallman served Patricia Powell with a supplemental expert witness disclosure that contained revised opinions by his expert witnesses.

Patricia Powell filed a motion to exclude from trial the opinions contained in Tallman's supplemental expert witness disclosure.

"The basis for the motion was that [t]he disclosure was made to [Ms. Powell's] counsel a significant time after the deadline for making any such disclosures," the opinion states. "The trial court granted the motion. Dr. Tallman thereafter instituted this proceeding."

This case presents a single issue for resolution, according to the opinion.

"That issue is whether the trial court's decision to exclude the additional opinions by Dr. Tallman's experts was clearly erroneous as a matter of law," the opinion states. "We believe that it was."

"Therefore, the writ prayed for herein is issued, and we prohibit enforcement of the circuit court's September 19, 2014, order granting Ms. Powell's motion in limine to exclude the additional opinions of Dr. Tallman's experts," the opinion states.

In her concurring opinion, Workman states that while she agrees with the majority's issuance of the writ of prohibition in the matter, she separately wants to ensure that the majority's new syllabus point regarding supplementation of discovery and its application in the instant case is not misunderstood or abused.

"I wholeheartedly agree that seasonable supplementation of discovery is required by our Rules and fundamental fairness," she states. "However, adherence to these requirements does not necessitate that an expert disclosure constitute a veritable 'script' from which the expert may not stray in testifying and elucidating his opinions. This is particularly the case with responsive criticisms or opinions, as this case poignantly illustrates."

Workman calls expert testimony a dynamic creature, stating that while the state's discovery rules are designed to avoid unfair surprise and allow each party to adequately prepare and prosecute or defend their case, the "vagaries and expediencies of trial necessarily preclude dogged adherence to written disclosures."

"...I write separately to caution practitioners against using the majority's new syllabus points as a sword, rather than a shield," Workman states. "The seasonable supplementation rule is not one of gamesmanship. Application of the rule must be driven by fairness, with an over-arching concern with ensuring that the parties must each be permitted to place their full case before the jury and not be hamstrung by an unyielding requirement of absolute prescience by attorneys and experts."

Experts must be permitted to be responsive to opinions, factual bases, hypotheticals, explanations, and the myriad of other methods which experts utilize to communicate to the jury, according to the concurring opinion.

"In my view, any genuinely 'new' and/or prejudicial information should be fairly apparent; splitting hairs over the nuances of the previously disclosed opinions and 'new' information does little to further the purpose of our disclosure and supplementation rules," Workman's opinion states. "More importantly, such new information should ordinarily be addressed by providing an opportunity to cure the prejudice rather than exclusion."

Tallman is represented by Stephen R. Brooks and Travis A. Prince of Flaherty Sensabaugh Bonasso.

The respondents are represented by Frances C. Whiteman and Kristine A. Burdette of Whiteman Burdette.

W.Va. Supreme Court of Appeals case number: 14-0848

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