Opinion
No. 14–0948.
02-12-2015
STATE of West Virginia ex rel. Dr. Todd TALLMAN, M.D., Petitioner v. The Honorable Susan B. TUCKER, Judge of the Circuit Court of Monongalia County; Patricia M. Powell, as Executrix of the Estate of Robert L. Powell ; and Patricia M. Powell, Individually, Respondents.
Stephen R. Brooks, Travis A. Prince, Flaherty Sensabaugh Bonasso, Morgantown, WV, for Petitioner. Frances C. Whiteman, Kristine A. Burdette, Whiteman Burdette, Fairmont, WV, for Respondents.
Stephen R. Brooks, Travis A. Prince, Flaherty Sensabaugh Bonasso, Morgantown, WV, for Petitioner.
Frances C. Whiteman, Kristine A. Burdette, Whiteman Burdette, Fairmont, WV, for Respondents.
Opinion
DAVIS, Justice:Petitioner, Dr. Todd Tallman (“Dr. Tallman”), invokes this Court's original jurisdiction seeking a writ of prohibition to prevent enforcement of an order of the Circuit Court of Monongalia County that precludes his experts from rendering opinions that were set out in a supplemental discovery disclosure. The Respondent, Patricia Powell (“Ms. Powell”), contends that the circuit court's order is correct and that Dr. Tallman has failed to satisfy the standard for issuance of the writ. 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.
I.
FACTUAL AND PROCEDURAL HISTORY
On July 27, 2012, Ms. Powell filed the instant medical malpractice action against Dr. Tallman. The complaint alleged that Dr. Tallman was medically negligent in causing the death of Ms. Powell's spouse, Robert L. Powell. Specifically, the complaint alleged that Dr. Tallman failed to diagnose Mr. Powell's appendicitis, which resulted in complications that caused his death on October 28, 2010.
An amended complaint was filed in August 2012.
Ms. Powell filed the action individually and as executrix of the estate of Mr. Powell.
After the pleadings were filed, the trial court entered a scheduling order. Relevant to this proceeding, the scheduling order required Ms. Powell to disclose her experts by May 31, 2013, and Dr. Tallman was required to disclose his experts by July 12, 2013. The discovery cut-off date was set for January 24, 2014. The record indicates that Ms. Powell did not comply with the scheduling order's expert disclosure deadline. It appears that Ms. Powell did not mail expert disclosure information to Dr. Tallman's counsel until July 3, 2013. A letter in the record of this case, dated July 3, 2013, and drafted by counsel for Dr. Tallman, appears to suggest that the parties had a telephone conversation wherein it was “agreed that [Dr. Tallman] shall have a six (6) week extension to provide his expert witness designation.” This extension appears to relate to Ms. Powell's late disclosure of her experts.
In a letter addressed to counsel for Ms. Powell and dated July 31, 2013, counsel for Dr. Tallman acknowledged receipt of the expert disclosure information. However, the letter indicated Ms. Powell's expert disclosure was insufficient and did not meet the requirements of Rule 26(b)(4) of the West Virginia Rules of Civil Procedure. The letter further indicated that Dr. Tallman would not make his expert disclosure “until such time as the required information is received from you.” In a follow-up letter to counsel for Ms. Powell, dated November 12, 2013, counsel for
Dr. Tallman complained that he had not received the requested supplemental expert disclosure. The letter concluded: “If we do not receive a supplemental expert witness disclosure from you by November 18, 2013, we will be forced to file a motion to compel the same with the Court.”
The record indicates that, even though Dr. Tallman had not received the requested supplemental expert witness disclosure, he served Ms. Powell with his expert witness disclosure via mail on November 15, 2013. On or about November 19, 2013, Dr. Tallman filed a motion to strike and preclude testimony by Ms. Powell's expert witnesses or, in the alternative, to compel complete expert witness disclosure. While this motion was pending, it appears that the circuit court entered a new scheduling order on March 6, 2014. Under the new scheduling order, the discovery deadline was extended to July 14, 2014.
On or about April 9, 2014, a hearing was held on Dr. Tallman's pending motion. At the conclusion of the hearing, an agreed order was entered on May 27, 2014. In the agreed order, the circuit court denied Dr. Tallman's motion to strike and preclude testimony by Ms. Powell's expert witnesses. However, the agreed order also indicated that,
with regard to [Ms. Powell's] expert witness disclosure of Dr. Leonard Milewski, the parties, in an effort to compromise, have agreed to permit [Ms. Powell's] counsel to supplement her expert witness disclosure of Dr. Leonard Milewski by using the contents of the screening certificate of merit prepared and signed by Dr. Leonard Milewski.
Ms. Powell served the supplemental disclosure of her expert, Dr. Milewski, on June 3, 2014. Dr. Tallman thereafter deposed Dr. Milewski on June 19, 2014. Subsequent to obtaining a transcript of Dr. Milewski's deposition, Dr. Tallman had his two experts review the transcript. Dr. Tallman's experts revised their opinions after reading Dr. Milewski's deposition and reviewing additional discovery information. Consequently, on July 29, 2014, Dr. Tallman served Ms. Powell with a supplemental expert witness disclosure that contained revised opinions by his expert witnesses.
Ms. Powell filed a motion to exclude from trial the opinions contained in Dr. 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 trial court granted the motion. Dr. Tallman thereafter instituted this proceeding.
II.
STANDARD FOR ISSUANCE OF WRIT
Our standard for determining whether to issue a writ of prohibition has been formulated as follows:
In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.
Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). We will consider these factors in our analysis of the parties' argument.
III.
DISCUSSION
This case presents a single issue for resolution. 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. We believe that it was.
Ms. Powell argues unpersuasively that Dr. Tallman cannot satisfy any of the factors under Berger. We disagree and find that the third factor in Berger is applicable in this case.
It has been recognized, and we now hold, that, under Rule 26(e)(1) of the West Virginia Rules of Civil Procedure,
“a party responding to a discovery request is under a continuing duty to make a seasonable supplementation to its original answers to any question asking for the identity of an expert witness expected to be called at trial, the subject matter on which the expert will testify and the substance of his testimony.”
Franklin D. Cleckley, Robin Jean Davis, and Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure, § 26(e)(1) (4th ed.2012) (quoting Hancock v. Hobbs, 967 F.2d 462 (11th Cir.1992) ). In other words, the rule “places an affirmative duty on an attorney to ... supplement disclosure to his adversary.” Arthur v. Atkinson Freight Lines Corp., 164 F.R.D. 19, 20 (S.D.N.Y.1995). See Estate of Fout–Iser ex rel. Fout–Iser v. Hahn, 220 W.Va. 673, 680, 649 S.E.2d 246, 253 (2007) (Davis, C.J., dissenting) (“[W]hen a party has disclosed the identity of an expert witness and the subject matter about which the expert is expected to testify, he/she is bound, also, to disclose any new information he/she acquires in this regard.”). Moreover, the rule has an express enforcement provision. Rule 26(e)(1) provides “that if supplementation is not made as required by the rule, the court, upon motion or upon its own initiative, may impose an appropriate sanction as provided for under Rule 37.” Cleckley, et al., Litigation Handbook, § 26(e)(1). See Jenkins v. CSX Transp., Inc., 220 W.Va. 721, 727, 649 S.E.2d 294, 300 (2007) (affirming trial court decision to prohibit certain testimony by expert witness because of failure to supplement discovery response). See also Williams v. Roberts, 202 F.R.D. 294, 296–97 (M.D.Ala.2001) (“If a party does not seasonably supplement its disclosures, a court does not abuse its discretion by limiting the witness's testimony to what has been timely disclosed.”). Finally, and we so hold, factors that may assist a court in deciding whether to permit late supplemental expert witness disclosure include:
(1) the explanation for making the supplemental disclosure at the time it was made; (2) the importance of the supplemental information to the proposed testimony of the expert, and the expert's importance to the litigation; (3) potential prejudice to an opposing party; and (4) the availability of a continuance to mitigate any prejudice.
Tucker v. Ohtsu Tire & Rubber Co., 49 F.Supp.2d 456, 461 (D.Md.1999).
Based upon the procedural facts of this case, we find as a matter of law that Dr. Tallman “seasonably” supplemented his expert witness disclosure.
We begin by noting that the circuit court's order finds fault with Dr. Tallman for supplementing his expert witness disclosure fifteen days after the discovery cut-off date. However, the order implicitly pardons Ms. Powell for not filing her initial expert witness disclosure until thirty-three days after the deadline for making such disclosure. The bedrock of our judicial system is fairness to all parties. In our view of the record, fairness was not shown to Dr. Tallman.
Under the facts of this case, it is of no moment that Dr. Tallman may have acquiesced in Ms. Powell submitting her initial expert disclosure after the cut-off date. It is common practice for lawyers to mutually agree to conduct discovery in a manner that is not always consistent with a circuit court's scheduling order. The critical issue here is that Dr. Tallman and Ms. Powell appear to have reached an understanding that allowed late disclosure by her, but she sought to have Dr. Tallman sanctioned for a supplemental disclosure that was outside the time frame of the scheduling order. It is simply unacceptable for the trial court to allow Ms. Powell to manipulate the litigation process in this manner.
In addition to Ms. Powell disclosing her experts thirty-three days after the circuit
court's initial scheduling order required her to make such disclosure, Dr. Tallman found Ms. Powell's expert disclosure was deficient. As a result of the inadequacy of Ms. Powell's expert disclosure, Dr. Tallman was forced to file a motion to compel disclosure in a manner that was required by Rule 26(b)(4). We find the late and inadequate disclosure by Ms. Powell was the cause of Dr. Tallman's inability to fully disclose the opinions of his experts within the initial and subsequent discovery cut-off dates.
The circuit court's order does not give any weight to the fact that its approval of the May 27 agreed order required Ms. Powell to furnish Dr. Tallman with an expert witness disclosure that was in compliance with Rule 26(b)(4), as expressly required in the initial scheduling order. The circuit court determined that, because Ms. Powell was only restating information found in her screening certificate of merit, this did not justify Dr. Tallman's late disclosure. We disagree.
The critical issue was not that Ms. Powell was merely restating information found in her screening certificate of merit. Rather, the critical issue for Dr. Tallman was that he now knew exactly who Ms. Powell's expert was and what opinions he would rely upon. While it is true that Dr. Tallman could have deposed Dr. Milewski as soon as he was listed as an expert, a party is not required to depose an expert in the dark. The very basis of expert disclosure under Rule 26(b)(4) is so that a party does not have to go on a fishing expedition in trying to determine what opinions the expert will rely upon at trial.
We have reviewed Ms. Powell's initial expert witness disclosure, and we agree with Dr. Tallman that this disclosure falls completely below the minimal disclosure requirements of Rule 26(b)(4). We tersely addressed this issue in Kincaid v. Southern West Virginia Clinic, Inc., 197 W.Va. 145, 475 S.E.2d 145 (1996). In Kincaid, the trial court dismissed the plaintiff's claim for discovery violations, including failure to provide expert witness disclosure. On the date the trial court dismissed the action, the plaintiff filed an expert witness disclosure. This Court rejected the disclosure for the following reason:
The Appellant's response to repeated orders to disclose Rule 26(b)(4) information, when finally filed on the day the court dismissed the action, merely listed four doctors and their addresses and specialties, and concluded:
The above physicians have reviewed the medical records in this case and concluded that, to a reasonable degree of medical certainty, the defendants herein failed to timely diagnose the plaintiff's decedent's condition.
Such a summary cannot be said to “state the subject matter on which the expert is expected to testify,” or to “state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion,” ... as ordered by the circuit court.
Kincaid, 197 W.Va. at 148, 475 S.E.2d at 148.
In the instant proceeding, Ms. Powell's expert witness disclosure merely listed the names of six medical experts and a few curriculum vitae. Apparently it was not until the hearing on the motion to compel that it was determined that only one of the six physicians named as experts by Ms. Powell, Dr. Milewski, was actually going to be treated as an expert. Most importantly, it was only after the hearing concluded that Ms. Powell complied with the initial scheduling order by tendering an expert witness disclosure that set out a summary of Dr. Milewski's findings and opinions. Had Ms. Powell presented her expert witness disclosure in compliance with Rule 26(b)(4), as required by the initial scheduling order and within the time period of the scheduling order, not thirty-three days late, Dr. Tallman could have timely deposed Dr. Milewski and thereafter rendered a timely expert witness disclosure without having to provide supplemental disclosure.
Moreover, even if we assumed that Ms. Powell was not at fault in causing Dr. Tallman to supplement his expert witness disclosure after the discovery cut-off date, we still would be hard-pressed to find that his experts should be prevented from rendering the additional opinions. There was no evidence
showing that Ms. Powell suffered any prejudice as a result of the late disclosure. The supplemental disclosure was made only fifteen days after the discovery deadline, and six weeks from the trial date. Even though the record supports Dr. Tallman's assertion that Ms. Powell did not engage in any meaningful discovery, she still had sufficient time to prepare for the additional expert opinions. Moreover, Ms. Powell could have ultimately sought a continuance if she wished to finally engage in discovery by taking the depositions of Dr. Tallman's experts.
Ms. Powell failed to depose Dr. Tallman's experts based upon their initial opinions.
Finally, we also find that the supplemental disclosure information was relevant and important to the litigation. The supplement disclosed eleven additional opinions by Dr. Tallman's experts.
IV.
CONCLUSION
The record in this case demonstrates that the circuit court committed error as a matter of law in precluding Dr. Tallman's experts from presenting their additional opinions at trial. 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.
Writ Granted.
Chief Justice WORKMAN and Justice LOUGHRY concur and reserve the right to file concurring opinions.
WORKMAN, C.J., concurring, joined by Justice Loughry :
I concur with the majority's issuance of the writ of prohibition in this matter; however, I write separately 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. 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.
To be clear: West Virginia Rule of Civil Procedure 26(b)(4) does not require an exhaustive recitation of an expert's testimony. It requires simply that a party requested to provide his or her expert's opinions identify the expert, the subject matter on which the expert will testify, “the substance of the facts and opinions to which the expert is expected to testify” and “a summary of the grounds for each opinion.” W.V.R.C.P. 26(b)(4)(A)(I) (emphasis added). Nor do our Rules require an expert's testimony to be an immovable object that cannot adapt to the opponent's case as it is presented. As noted in Kiser v. Caudill, 215 W.Va. 403, 411–12, 599 S.E.2d 826, 834–35 (2004) (Starcher, J., concurring):
By contrast, the Federal Rules of Civil Procedure require far more detailed and exhaustive information. Federal Rule of Civil Procedure 26(a)(2) requires a written report, prepared and signed by the witness, and must contain “a complete statement of all opinions the witness will express and the basis and reasons for them” as well as “the facts or data considered by the witness in forming them,” among other information.
--------
An expert witness's understanding of a case, and testimony on a legal opinion, can change with time. An expert witness, who is unfamiliar with a particular issue in a deposition, can become familiar with the issue after a deposition by doing additional research or testing. An expert brings experience to the courtroom, and uses that experience to assist the jury in understanding the facts. If the expert's experience changes, resulting in a change in the expert's opinion or other deposition testimony, then the party offering the expert is entitled to amend the expert's testimony[.]
In fact, this potential contemporaneous evolution of an expert's testimony is expressly contemplated in West Virginia Rule of Evidence 703 which provides that the facts or data upon which an expert bases an opinion
or inference “may be those perceived by or made known to the expert at or before the hearing. ” (emphasis added).
In the instant case, respondent Powell provided a dilatory and scant expert witness disclosure in the form of her screening certificate of merit. The “disclosure” consists of a page and half, comprised primarily of recitations from the medical records. As set forth in the disclosure, the opinion of respondent Powell's expert, Dr. Leonard Milewski, consists only of the vague conclusion that respondent's decedent died from sepsis occasioned by petitioner's failure to remove the decedent's appendix earlier. Although Dr. Milewski's deposition testimony is not contained in the appendix record, it is evident that upon deposition, Dr. Milewski was called upon to actually support his generalized opinion with facts and well-founded medical conclusions. This is evident because petitioner's supplemental disclosures merely contradict the particulars of Dr. Milewski's opinion by utilizing the medical evidence and do not constitute “new” opinions by any stretch of the imagination. For example, the supplemental disclosure states that petitioner's experts will testify that, contrary to Dr. Milewski's testimony, the pathology report indicated that decedent's appendix had not ruptured, did not say that the appendix was purulent or gangrenous, and that his blood cultures were never positive for bacteria. In essence, the supplemental disclosure merely articulates the defense experts' disagreement with the flawed bases of Dr. Milewski's opinions—disagreement which was manifest in petitioner's initial disclosure which contained the substance of the defense experts' contrary opinions and a summary of the bases.
What our Rules require is adequate notice to an opposing party of the evidence which will be adduced at trial such as to allow that party to prepare and respond. As we explained in Graham v. Wallace, 214 W.Va. 178, 184–85, 588 S.E.2d 167, 173–74 (2003),
“one of the purposes of the discovery process under our Rules of Civil Procedure is to eliminate surprise. Trial by ambush is not contemplated by the Rules of Civil Procedure.” The discovery process is the manner in which each party in a dispute learns what evidence the opposing party is planning to present at trial. Each party has a duty to disclose its evidence upon proper inquiry. The discovery rules are based on the belief that each party is more likely to get a fair hearing when it knows beforehand what evidence the other party will present at trial. This allows for each party to respond to the other party's evidence, and it provides the jury with the best opportunity to hear and evaluate all of the relevant evidence, thus increasing the chances of a fair verdict.
(quoting McDougal v. McCammon, 193 W.Va. 229, 236–37, 455 S.E.2d 788, 795–96 (1995) ). The supplementation at issue is more in the nature of rebuttal; it did not constitute a “new” opinion by the defense experts or an amendment to the bases for their opinions that petitioner did not violate the standard of care. Experts are as entitled as any witness to rebut or contradict testimony without having invariably reduced to writing their anticipated rebuttal. Common sense dictates that an unmitigated supplementation requirement could result in an endless “back-and-forth” between competing experts that benefits no party. The Rules do not require this practical impossibility.
Therefore, while I do not fault petitioner's supplementation of his initial disclosures, and in fact believe caution certainly justified supplementation, the fact of the matter is that such supplementation occurred; the majority's opinion should not be read to reach the issue of whether the supplementation was necessarily required in this instance. Of course, had respondent Powell bothered to depose the defense experts at any point, all of the alleged “surprise” information would have presumably been fully explored. While respondent Powell's counsel correctly asserted during oral argument that she is under no obligation to conduct such depositions, it is indisputable that she refuses to do so at her own peril. Parties cannot be permitted to “hide” from evidence by failing to conduct adequate discovery and then have the temerity to suggest that they are being ambushed by the very evidence they refused to discover, all of which was readily available to them.
Expert testimony is a dynamic creature. While our 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. As noted above, I write separately to caution practitioners against using the majority's new syllabus points as a sword, rather than a shield. 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. 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. More importantly, such new information should ordinarily be addressed by providing an opportunity to cure the prejudice rather than exclusion.
With these cautionary admonitions, I respectfully concur.