Clephas v. Garlock, Inc., No. 2003-CA-001276-MR.
| Decision Date | 17 August 2005 |
| Docket Number | No. 2003-CA-001276-MR. |
| Citation | 168 S.W.3d 389 |
| Parties | Charles CLEPHAS and Barbara Clephas, Appellants, v. GARLOCK, INC., Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Kenneth L. Sales, Joseph D. Satterley, Louisville, KY, for appellants.
John K. Gordinier, Berlin Tsai, Louisville, KY, for appellee.
Before COMBS, Chief Judge; DYCHE, Judge; and EMBERTON, Senior Judge.1
Charles Clephas and his wife, Barbara Clephas, appeal the judgment of the Jefferson Circuit Court based on a jury verdict in favor of the appellee, Garlock, Inc., a manufacturer of asbestos products. The Clephases challenge the ruling of the trial court not to exclude the opinion testimony offered by Garlock's two expert witnesses, Dr. Robert Sawyer and Donna Ringo.
The appellants contend that they did not receive a fair trial because the court denied their motion to exclude from evidence the opinions of Dr. Sawyer, which were not provided in Garlock's pre-trial disclosures pursuant to CR2 26.02(4). They argue that Ringo's testimony should have been excluded for failing to meet the requisite criteria for reliability set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and adopted in Mitchell v. Commonwealth, Ky., 908 S.W.2d 100 (1995), overruled in part on other grounds by Fugate v. Commonwealth, Ky., 993 S.W.2d 931 (1999). After a careful review of the record, we agree that the trial court erred in allowing Dr. Sawyer to testify as to his medical opinions regarding Charles's physical condition that were not made available to appellants prior to trial as mandated by the rules of discovery. Therefore, we vacate and remand.
In 1993, the Clephases filed a complaint alleging that Charles, a pipefitter, had contracted asbestos-related diseases as a result of his occupational exposure to gaskets manufactured by Garlock. On August 8, 2000, the trial court entered a Master Order which provided as follows:
3. Expert Witnesses. Parties shall designate in writing any expert witnesses and provide copies of any report(s) made by such witnesses.
a. Disclosure deadline.
Plaintiffs shall disclose their expert witnesses and provide any reports no later than 150 days before trial. Defendants shall complete any independent medical examinations of the plaintiff, disclose their expert witnesses, and provide any reports no later than 105 days before trial. (Emphasis in original.)
The Clephases' case was scheduled for trial on April 8, 2003. On February 13, 2003 — well after the 105-day deadline — Garlock filed its response to the Clephases' interrogatories seeking the identity of the experts Garlock intended to call and their expected testimony. The disclosure contained the following information concerning Dr. Sawyer, a medical doctor and consultant in occupational medicine, and Ringo, an industrial hygienist.
ROBERT SAWYER, M.D.
Dr. Sawyer may testify, in general, concerning asbestos-related disease and the effects of exposure to asbestos upon persons in occupational settings, including the epidemiology of asbestos-related diseases and the criteria for diagnosis of an asbestos-related disease.
He may also testify regarding the existence or non-existence of any asbestos-related disease in the plaintiffs, including, but not limited to pleural changes, asbestosis, lung cancer, mesothelioma, laryngeal cancer, esophageal cancer and stomach cancer.
He may also testify on whether any asbestos-related disease allegedly suffered by plaintiffs was medically or proximately caused by exposure to asbestos-containing gasket and packing products. He may also testify on the existence of a dose response relationship between exposure and asbestos-related disease.
He may also testify on increased risk of cancer issues and whether a particular plaintiff has a reasonable fear of cancer due to exposure to asbestos. He may also testify on the health consequences of smoking.
With respect to particular plaintiffs, he may testify as to review and interpretation of x-ray films, review and interpretation of pulmonary function testing, the nature and extent of any impairment or disability, whether the condition is progressive and whether other disease or conditions are present in plaintiffs.
Dr. Sawyer's testimony will be based on his training, experience, education and review of the medical literature concerning asbestos-related disease.
DONNA M. RINGO, C.I.H.
Ms. Ringo is a Certified Industrial Hygienist. She may give testimony regarding the level of fiber release, if any, from gasket and packing products in the occupational setting. She may testify regarding threshold limit values and permissible exposure levels as promulgated by private organizations and government agencies. She may testify as to work practices regarding various types of occupations using products that contained asbestos. She may testify as to the applicability of the OSHA and EPA's guidelines as they relate to various types of products including gaskets and packings. She may testify as to the exposure that may result from the use of other types of asbestos products
She may complete asbestos exposure assessments on individual plaintiffs.
After receiving this information, the Clephases requested that Garlock disclose the experts' opinions that specifically addressed Charles's medical condition and/or his working environment. They also sought times and dates to depose the experts. Garlock failed to provide any further information; the Clephases were required to file a motion to compel Garlock to produce its expert witnesses for deposition. On March 4, 2003, with trial a month away, the court ordered Garlock to produce its expert witnesses for deposition within twenty days. Following the entry of that order, the Clephases were able to take Ringo's deposition; however, Dr. Sawyer was never made available for deposition.
At trial, the appellants moved for the exclusion of Dr. Sawyer's opinions that had not been previously disclosed to them. They argued that the exclusion of the expert's opinions was warranted because: (1) Garlock's CR 26.02(4)(a)(i) disclosure was vague and lacked any substantive opinions directly regarding Charles and (2) they were denied the opportunity to learn of his opinions by deposition in violation of the court's order compelling such discovery.
The trial judge (different from the judge who had presided over the discovery phase) denied the motion and permitted Dr. Sawyer to testify without restriction. Dr. Sawyer's opinions included his diagnosis of Charles's physical condition as well as his opinion on causation. Although none of this material had ever been disclosed to the Clephases, Dr. Sawyer nonetheless was permitted to relate his expert opinions to the jury. Contrary to the medical opinions expressed by Charles's treating physician, Dr. Sawyer testified that in his opinion, Charles did not suffer from asbestosis. He further testified that after reviewing the results of pulmonary functions tests, he believed that Charles had some "mild" obstructive disease due to asthma and smoking cigarettes but that he had no condition caused by exposure to asbestos.
On cross-examination, Dr. Sawyer testified that his review of x-rays formed the basis of his opinion that Charles had no asbestos-related disease. He admitted that he had seen those x-rays for the first time the previous evening and that he had not formed an opinion with respect to his medical diagnosis until the very morning on which he testified.
The Clephases also asked the trial court to exclude the testimony of Donna Ringo in its entirety, arguing that her opinions were neither relevant nor reliable. Following a Daubert hearing, the trial court initially agreed with the Clephases and ruled her testimony inadmissible. However, after listening to her avowal testimony, the court changed its ruling and permitted the jury to hear her opinions. Ringo testified that the amount of fibers released when removing gaskets containing asbestos from pipes was no greater than that found in the air in general.
The jury returned its verdict absolving Garlock of any liability to the Clephases. After a final judgment was entered, the Clephases moved for a new trial. The motion was overruled on June 11, 2003. This appeal followed.
The Clephases argue that the trial court abused its discretion in allowing Dr. Sawyer to testify to opinions not disclosed to them prior to trial. They object to the fact that the information contained in Garlock's CR 26.02(4)(a) disclosure was wholly generic in nature; that it failed to mention Charles directly or his condition with any specificity; and that it failed to satisfy the requirements of the discovery rule. They contend that exclusion of the expert's opinions was required because of Garlock's failure to produce Dr. Sawyer for deposition in clear violation of the order of the trial court. The overall impact of the court's refusal to exclude the evidence "resulted in an inherently unfair `trial by surprise'." (Appellants' reply brief, p. 3).
In response, Garlock disputes as untrue the Clephases' complaint that they were unable to depose Dr. Sawyer. Garlock claims that it did provide the Clephases with two dates during the week prior to trial (April 1 and ...
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