State ex rel. Tallman v. Tucker

• Citation: 234 W.Va. 713,769 S.E.2d 502
• Decision Date: 12 February 2015
• Docket Number: No. 14–0948.,14–0948.
• Parties: 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.
• Court: West Virginia Supreme Court

234 W.Va. 713

769 S.E.2d 502

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.

No. 14–0948.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 4, 2015.

Decided Feb. 12, 2015.

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.¹ The complaint alleged that Dr. Tallman was medically negligent in causing the death of Ms. Powell's spouse, Robert L. Powell.² 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.

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.³ We believe that it was.

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...