Gassen v. Woy, WD

• Decision Date: 16 January 1990
• Docket Number: No. WD,WD
• Parties: Marie GASSEN, Appellant, v. George H. WOY, M.D., Respondent. 41489.
• Court: Missouri Court of Appeals

Page 601

785 S.W.2d 601

Marie GASSEN, Appellant, v. George H. WOY, M.D., Respondent.

No. WD 41489.

Missouri Court of Appeals Western District.

Jan. 16, 1990.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Feb. 27, 1990.

Application to Transfer Denied April 17, 1990.

Leonard K. Breon, Breon and Leffler, Warrensburg, for appellant.

William E. Quirk, Kirk J. Goza, and Thomas A. Sheehan, Shughart, Thomson & Kilroy, P.C., Kansas City, for respondent.

Before MANFORD, P.J., and SHANGLER and CLARK, JJ.

CLARK, Judge.

This is a medical negligence case in which the jury returned a verdict in favor of defendant George H. Woy, M.D. Plaintiff Gassen appeals contending the trial court erred in the admission of testimony from expert witnesses and in failing to grant a new trial when it appeared that six members of the jury had not accurately responded to questions posed during voir dire.

Appellant's cause of action originated when she suffered back injuries in a fall. Based on a diagnosis that appellant had sustained a herniated disc, three successive surgeries were undertaken, the first two by Dr. Woy and a third by a physician against whom appellant also made claim. Settlement was reached between appellant and the second doctor, as well as with the store in which appellant was injured, and the cause was submitted to the jury only as to Dr. Woy. The jury found for Dr. Woy.

It was undisputed that appellant had become disabled as a result of a fall and that treatment given her had been unsuccessful. Appellant contended that her condition had been incorrectly diagnosed, that Dr. Woy's treatment had been negligent and that she would have recovered from the injury but for the intervention of the surgery by Dr. Woy. Respondent's evidence was that the diagnosis of a herniated spinal disc had been correct and that the surgery was necessary, even though the result had not been to remedy the condition.

The question of diagnosis was significantly affected by the interpretation of radiographic studies made by Dr. Gerald McManus with whom Dr. Woy consulted before undertaking the first surgery. The x-rays taken by Dr. McManus were introduced in evidence by appellant as exhibits in her case. Appellant's expert witness, Dr. Joseph Lichtor, testified that the exhibits did not show a herniated disc, leading to the conclusion, upon which appellant's case was based, that the surgery was not indicated and was unnecessary.

Appellant's first point of error takes issue with the trial court's ruling on an aspect of testimony by defendant's expert medical witness, Dr. Patrick Bowman. In the progress of the trial, appellant's attorney discovered that Dr. Bowman's opinion as to interpretation of the x-ray films would be included in his testimony. Objection to this evidence was expressed because appellant had not deposed Dr. Bowman on this subject. When Dr. Bowman was deposed by appellant, the doctor stated he had not seen the x-rays. Appellant therefore assumed Dr. Bowman would not be questioned at trial concerning a diagnosis made from the films. Appellant expressed surprise that the expert witness would testify on the subject and claimed to be unprepared to cross-examine Dr. Bowman if he were allowed to express his opinion.

The court noted the objection and informed appellant's attorney that a recess would be taken so that he could interview Dr. Bowman on that aspect of his anticipated testimony. Counsel refused the opportunity, saying:

Judge, I can't. It won't cure it. It just won't cure it. I'm afraid if I talk to him that this record would be such it would be perceived as me waiving this objection * * *.

Dr. Bowman then was allowed to testify, over appellant's objection and request that the testimony be excluded, and expressed his opinion as to the interpretation of the x-rays. He stated, in substance, that the films did show a herniated disc for which surgery was the indicated treatment.

It is appellant's contention that the trial court should have sanctioned defendant for a failure to update discovery by informing plaintiff that Dr. Bowman had later seen the x-rays and would testify on the subject. Appellant says the appropriate sanction would have been to exclude the testimony. We agree that there was a continuing duty on defendant to advise plaintiff of the subject matter upon which Dr. Bowman was expected to testify as an expert, but we do not find that the action by the court in this case constituted an abuse of discretion.

Under Rule 56.01(b)(4), a party is entitled to obtain through pre-trial discovery by interrogatories or by deposition the facts known and opinions held by experts whom the other party expects to call as a witness at trial. Where a party has made a response to interrogatories and subsequently learns that the response is no longer true, although correct when made, he is under a duty seasonably to amend the response. Rule 56.01(e)(2). The rules make no express provision, in the case of pre-trial discovery by deposition, for an obligation to supplement responses under similar circumstances where a truthful answer when given later ceases to be correct. Considered as a whole, however, the rules and the case authority suggest that such duty is implied as a component of the discovery process.

In Crompton v. Curtis-Toledo, Inc., 661 S.W.2d 645 (Mo.App.1983), a service letter case, the plaintiff stated on deposition, and by interrogatory answers, that he did not remember the name of the company manager who had rejected his application for employment, allegedly because of statements in the service letter. That person, however, was called as a witness for plaintiff and was allowed to testify over defendant's objections. The opinion reversed a judgment for plaintiff on the ground that defendant had been prejudiced by the failure of plaintiff to disclose the identity of the prospective witness. The court held plaintiff to have been under a duty to supplement his responses to discovery once the name of the company manager was known. The defendant was entitled to rely on plaintiff's deposition answer as true unless and until a supplementary response was furnished.

The situation involving an expert witness and pre-trial discovery of the expert's opinion as well as the facts on which it was based is reported in State ex rel. State Highway Comm'n v. Pfitzinger, 569 S.W.2d 335 (Mo.App.1978). There, an expert appraisal witness was deposed and testified that his opinion of value in a condemnation case was based on the cost of development method. Prior to trial, however, the witness reworked his appraisal using a comparable sales approach. The other party to the case was not informed in advance that this change had been made in the use of facts to support the witness's opinion. The court at trial, on objection, refused to allow the witness to testify concerning the price of any comparable sale not previously identified in the deposition. That decision was affirmed for the reason that a continuing duty of disclosure required that the adverse party be notified when the expert changed the factual ground for his opinion.

We conclude that the rules and the case law establish a principle that when an expert witness has been deposed and he later changes his opinion before trial or bases that opinion on new or different facts from those disclosed in the deposition, it is the duty of the party intending to use the expert witness to disclose that new information to his adversary, thereby updating the responses made in the deposition. In this case, once the defendant had exhibited the x-rays to Dr. Bowman and decided to elicit Dr. Bowman's opinion concerning a diagnosis made from the x-rays, the duty arose to inform plaintiff of the fact.

Having decided the issue regarding the basic principle, the next question is whether appellant thereby becomes entitled to a new trial. It will be recalled from earlier portions of this...