Clark v. Klein

• Decision Date: 05 March 2002
• Docket Number: No. 26652.,26652.
• Citation: 137 Idaho 154,45 P.3d 810
• Parties: Debra CLARK, individually and as personal representative of the Estate of Corey Ayres, Allen Ayres, and Estate of Corey Ayres, Plaintiffs-Appellants, v. Frederick J. KLEIN, M.D., Defendant-Respondent, and St. Alphonsus Regional Medical Center, Defendants.
• Court: Idaho Supreme Court

45 P.3d 810

137 Idaho 154

Debra CLARK, individually and as personal representative of the Estate of Corey Ayres, Allen Ayres, and Estate of Corey Ayres, Plaintiffs-Appellants, v. Frederick J. KLEIN, M.D., Defendant-Respondent, and St. Alphonsus Regional Medical Center, Defendants.

No. 26652.

Supreme Court of Idaho, Boise, December 2001 Term.

March 5, 2002.

Rehearing Denied May 2, 2002.

Lojek Law Offices, Boise, for appellant Clark. Donald W. Lojek argued.

Jim C. Harris, Boise, for appellant Ayres.

Hawley, Troxell, Ennis & Hawley, Boise, for respondent. Joseph D. McCollum, Jr. argued.

TROUT, Chief Justice.

This is an appeal from a medical malpractice action by Debra A. Clark (Clark) and Allen Ayres (Ayres) (collectively "Appellants") involving the death of their son, Corey Ayres, in which a jury rendered a verdict in favor of Respondent Fredrick J. Klein, M.D. (Klein). We reverse and remand for a new trial.

I. FACTUAL AND PROCEDURAL HISTORY

During the late evening of August 3, 1997, or early morning of August 4, 1997, Corey Ayres (Corey) was injured on Pleasant Valley road, south of Boise. Corey, who was nineteen years old at the time, was apparently kneeling on the back bumper of a pickup truck one of his friends was driving on a dirt road, pretending that he was running behind the pickup, when the pickup hit a bump causing Corey to strike his abdomen on the tailgate of the pickup. After the incident, Corey complained to his friends that he was in pain and they took him to St. Alphonsus Hospital.

At the hospital, Klein examined Corey and requested a CT scan and X-rays. The tests were negative and about two hours after arriving, during the early morning of Sunday, August 4, Klein released Corey to his mother, Clark. Klein told them that Corey would be sore for a couple of days, but that he could return to work when he felt better. The discharge nurse gave Clark instructions as directed by Klein at the time of his release. Corey was given a sample packet of Tylenol with codeine for pain and the nurse told Clark to contact the hospital if Corey vomited, his fever worsened, or his pain increased.

Corey slept most of Sunday and apparently he ate and drank intermittently. On Monday, August 5, at approximately 5:00 a.m., Clark checked on Corey and found that he was still asleep. Clark went to work and called Corey about half an hour later from work and he told her that he was not feeling any better. She told him to take his medication and if that did not help, she would come home. About forty-five minutes later, Clark's daughter called Clark at work and told her Corey had collapsed on the floor and she did not know whether he was breathing. The paramedics were called but were unable to revive Corey, and he died on Monday, August 5, 1997.

An autopsy was performed following Corey's death, which revealed that he had a small tear in his intestine allowing the contents of his intestine to leak into his peritoneal cavity, resulting in an infection (peritonitis), which was the cause of his death.

On March 9, 1998, Clark and Corey's father, Ayres, filed a complaint and demand for a jury trial in the 4th Judicial district court, seeking damages for wrongful death against Klein and St. Alphonsus Medical Center. Initially, Lojek law offices represented both Clark and Ayres, but after the complaint was filed, Ayres retained separate counsel, Jim C. Harris. The claim against St. Alphonsus was subsequently settled and the claim against Klein was tried before a jury, commencing on May 9, 2000.

At trial, Dr. Renee Bourquard (Bourquard) was allowed to testify as an expert, over Clark's objection. Clark objected that Bourquard, and the substance of her testimony was not properly disclosed, despite the fact that Clark had asked Klein in one of her interrogatories to identify any expert witnesses he planned to call at trial and the substance of their testimony. The trial judge also refused to allow Ayres' counsel to cross-examine Klein's witnesses in addition to the cross-examination by Clark's counsel, instead ruling that cross-examination by only one of the plaintiffs was allowed.

At the conclusion of the trial, the jury found in favor of Klein, and final judgment was entered on May 18, 2000. Appellants filed a timely notice of appeal thereafter.

II. STANDARD OF REVIEW

"Th[is] Court reviews trial court decisions admitting or excluding evidence, including the testimony of expert witnesses, under the abuse of discretion standard." Morris By and Through Morris v. Thomson, 130 Idaho 138, 144, 937 P.2d 1212, 1218 (1997) (citing Burgess v. Salmon River Canal Co. Ltd., 127 Idaho 565, 574, 903 P.2d 730, 739 (1995)). In the case of an incorrect ruling regarding evidence, a new trial is merited only if the error affects a substantial right of one of the parties. Morris, 130 Idaho at 144, 937 P.2d at 1218 (citing I.R.C.P. 61; I.R.E. 103; Burgess, 127 Idaho at 574, 903 P.2d at 739; Hake v. DeLane, 117 Idaho 1058, 1065, 793 P.2d 1230, 1237 (1990)).

Rulings of the trial court regarding cross-examination of a witness are also subject to an abuse of discretion standard of review. See Boeck v. Boeck, 29 Idaho 639, 161 P. 576 (1916). The test for determining whether the district court abused its discretion is: (1) whether the court correctly perceived that the issue was one of discretion; (2) whether the court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and (3) whether it reached its decision by an exercise of reason. Sun Valley Shopping Center Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991).

The propriety of jury instructions is a question of law over which this Court exercises free review, and "[t]he standard of review of whether a jury instruction should or should not have been given, is whether there is evidence at trial to support the instruction," see Holzheimer v. Johannesen, 125 Idaho 397, 400, 871 P.2d 814, 817 (1994), and whether the instruction is a correct statement of the law. See State v. Nunez, 133 Idaho 13, 19, 981 P.2d 738, 744 (1999).

III. THE TRIAL JUDGE ERRED BY ALLOWING BOURQUARD TO TESTIFY

Idaho Rule of Civil Procedure 26(b)(4) provides that a party can request that the opposing party set forth the identity of the opposing party's expert witnesses and the substance of the experts' opinions. Rule 26(e) imposes a duty on parties to seasonably update interrogatory responses and provides that the "trial court may exclude the testimony of witnesses or the admission of evidence not disclosed by a required supplementation of the responses of the party." This Court has previously held that a trial court abused its discretion and committed reversible error by allowing expert testimony, which was not properly disclosed in violation of Rule 26. Radmer v. Ford Motor Co., 120 Idaho 86, 813 P.2d 897 (1991). In Radmer, the plaintiffs brought a products liability suit against the defendant Ford Motor Company, alleging that the steering box on the plaintiffs' pickup truck had malfunctioned, resulting in a single vehicle accident that caused property damage and personal injuries to the driver and passenger of the pickup. In preparation for trial, plaintiffs retained an engineering firm to investigate the cause of the accident. One of the engineers in the firm, Swayne, disassembled the steering mechanism and rendered a written report, which concluded, among other things, that the O-ring was defective, causing power steering fluid to leak from the vehicle, which would make the vehicle difficult to steer and was the cause of the accident.

The plaintiffs in Radmer deposed Swayne in a videotaped deposition for purposes of preserving his testimony for trial because Swayne was leaving the country. The deposition primarily dealt with Swayne's conclusion that although the lack of power steering fluid would not cause the steering mechanism to "lock up," as the driver of the vehicle had asserted to the police officer, the lack of power steering fluid would make the vehicle difficult to steer, giving the perception to the driver that the steering mechanism was "locked up."

In the meantime, the defendant Ford deposed Swayne's partner, Pool. During the deposition, Pool testified that although he had not conducted an independent investigation, he had examined the written report prepared by his partner, Swayne, and he concurred with its conclusions, particularly that the lack of power steering fluid would not cause actual steering lock up, but might cause such a perception.

The plaintiffs submitted a twenty-eight day pretrial response, indicating that they intended to introduce Swayne's videotaped deposition and also listing Pool as a witness. Five days later, for the first time, Pool undertook his own independent investigation of the accident, including going to the scene of the accident accompanied by plaintiffs' counsel, and taking measurements for an accident reconstruction analysis. Defendant did not learn of Pool's independent testing and his intended testimony regarding that until the first day of the trial, after the jury had been empanelled. The defendant submitted a motion in limine, objecting to the presentation of the evidence on the basis that it had not been disclosed through updated discovery responses. The trial court deferred ruling on the motion, ultimately allowing into evidence Pool's testimony.

On appeal, the defendant argued that the trial court committed reversible err by allowing Pool to testify regarding his reconstruction theory. In its analysis of the issue, this Court quoted the language of I.R.C.P. 26(e)(1), stating that the rule "unambiguously imposes a continuing duty to supplement responses to discovery with respect to the substance and subject matter of an expert's testimony where the initial responses have been rejected, modified, expanded upon, or otherwise altered in some...