Higgins v. Lufi
| Decision Date | 17 July 1984 |
| Docket Number | No. C2-83-1164,C2-83-1164 |
| Citation | 353 N.W.2d 150 |
| Parties | Charles E. HIGGINS, et al., Respondents, v. Kay LUFI, et al., Appellants. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. The trial court did not err in excluding expert testimony under Rule 37.02(2)(b), Minn.R.Civ.P., because of a willful refusal to obey a court order that the witness be deposed.
2. The trial court did not err in refusing a continuance and denying a motion for a second adverse medical examination, when the second examining physician was not scheduled as a witness and was not available to perform the examination before trial.
3. It is not hearsay for a witness to testify that no physician had told her that her child had any medical problems at the time of her birth.
4. Respondents' final argument will not be deemed so improper as to require a new trial when the other party did not object or request a curative instruction.
Michael S. Polk, Hertogs, Fluegel, Sieben, Polk, Jones & Laverdiere, Hastings, for respondents.
Willard L. Converse, Peterson, Bell & Converse, St. Paul, for appellants.
Heard, considered and decided by PARKER, P.J., and FORSBERG and CRIPPEN, JJ.
This appeal brings into question the propriety of a trial court's sanction under Rule 37.02(2)(b), Minn.R.Civ.P., excluding expert testimony because of a direct and willful failure on the part of appellants' trial attorney and the expert witness himself to obey the court's order that the expert be deposed. Appellants contend further that the trial court's refusal to grant a continuance of the trial and an additional adverse medical examination was an abuse of discretion constituting prejudicial error, that the court erred in allowing hearsay testimony as to a crucial issue, and that the verdict was excessive because of an improper final argument by respondents' attorney. We affirm.
1. Did the trial court abuse its discretion in prohibiting an expert witness from testifying because of a bad faith, direct and willful refusal to obey the court's order that the witness be deposed?
2. Did the court abuse its discretion in refusing a continuance of the trial date and in denying a motion for a second adverse medical examination, when the second examining physician was not a witness and would not be available during the month in which the trial was set?
3. Did the court commit prejudicial error in allowing the injured child's mother to testify that no physician had told her that the child had any medical problems at the time of her birth?
4. Was the respondents' attorney's final argument so improper as to require a new trial when appellant's trial attorney did not object or request a curative instruction?
Because our decision turns mainly on the facts of this case, a detailed review is necessary. Charles and Diane Higgins have a seven-year-old daughter named Missy. When she was three years old, Missy fell into an open stairwell in the back yard of the Lufi's home. The Lufis were her babysitters. She sustained a massive skull fracture and subsequently experienced "lapse" seizures, which her physician diagnosed as post-traumatic epilepsy. Missy has permanent brain damage and will probably require daily medication to suppress the seizures for the rest of her life. She will require special education and has a 75 percent chance of developing major motor epilepsy as an adult.
The pretrial conference took place on January 28, 1983, and a trial date of May 17 was assigned. Missy had been examined by the respondents' expert, Dr. Gerald Slater, and was receiving follow-up treatment exclusively from him. She had also undergone an adverse medical examination in October 1982 by the defense expert, Dr. Robert Jeub. The parties had exchanged all medical reports. Both physicians had agreed that Missy's electroencephalograms (EEGs) were abnormal.
In early February 1983 Missy's kindergarten teacher notified Charles and Diane that Missy's performance in school was deteriorating. Dr. Slater then referred Missy to a psychologist for psychometric testing to determine the extent of her learning disabilities. Dr. Jacqueline Wiersma conducted the tests, which took several weeks to complete. Respondents' attorney told appellants about the testing on February 14. He also indicated on March 4 that he intended to call Dr. Wiersma as a witness at trial. The testing was completed on April 11 and revealed cognitive and emotional disorders consistent with trauma-induced brain damage. Respondents provided the raw test data to appellants on April 15.
On April 21 appellants moved in special term for a continuance and for an order compelling Missy to submit to another EEG. Appellants argued that a continuance was necessary because Dr. Robert Stoltz, the neurologist they wanted to interpret the psychometric results, was going to be out of town during the month of May. Appellants also argued that Missy's difficulties in school constituted new medical evidence and required another adverse medical examination. On April 27 the special term judge denied both motions and ordered the respondents to turn over Missy's most recent EEG and Dr. Wiersma's evaluation within ten days; this was done on May 4.
On May 17, the first day of trial, appellants renewed their request for a continuance. The court denied it. Respondents moved to depose Dr. Jeub because immediately before trial they learned that he had changed his opinion about the cause of Missy's epilepsy. The court granted the motion and ordered the deposition to take place before Dr. Jeub was to testify.
On Monday, May 23, the last day of the trial, the court ordered, pursuant to Rule 37.02(2)(b), Minn.R.Civ.P., that Dr. Jeub would not be allowed to testify because the deposition had not taken place. Dr. Jeub was to have been the sole defense witness. The Lufis admitted negligence, so the only issues for trial were causation and damages. The jury returned a verdict for Missy Higgins in the amount of $750,000 and for her parents in the amount of $81,500.
The trial judge ordered a deposition of Dr. Jeub because he had changed his opinion about the cause of Missy's epilepsy. Appellants' new theory was that Missy had "intrauterine growth retardation syndrome" at birth and that this syndrome caused her seizures.
The record shows that court recessed early on Tuesday. Respondents' attorney says he attempted to schedule the deposition on Tuesday, Wednesday and Thursday with appellants' attorney and Dr. Jeub, but Dr. Jeub would not return his phone calls. (Because appellants have a different attorney on appeal, all references to "appellants' attorney" mean their attorney at trial.) Appellants' attorney said he told Dr. Jeub about the order on Tuesday, and he reportedly said that scheduling the deposition was "[the respondents'] problem." The respondents rested on Thursday, and the trial was continued until Monday because Dr. Jeub was not available to testify on Friday.
On Friday, respondents' attorney told appellants' attorney that he was going to subpoena Dr. Jeub. He sent a process server to Dr. Jeub's office at 2 p.m. Friday afternoon with a summons for a deposition at 9:30 p.m. Sunday evening. The process server found a note on the office door that said, The process server tried to locate Dr. Jeub through the answering service and at his home, where a young woman said that Dr. Jeub "went up to the lake for the weekend." Numerous messages were left with the answering service, but no calls were returned.
On Sunday evening the process server returned to Dr. Jeub's home, where the same young woman replied that he was not home. The process server left the summons with the woman who answered the door.
When respondents' attorney called appellants' attorney to inform him that service had been accomplished, the response was, "How were you able to do that?" Dr. Jeub did not initially appear at the deposition. Appellants' attorney eventually called him and told him to appear after respondents' attorney threatened to move for a contempt citation. Dr. Jeub then came to the office but was instructed not to answer any questions.
On Monday morning appellants moved for a protective order on grounds of (1) insufficient notice of the deposition; (2) inconvenience, in that Dr. Jeub did not have his file on Missy Higgins with him and that it would have been an undue burden to obtain it; and (3) embarrassment, because Dr. Jeub had been drinking on Sunday evening and might not testify to the best of his ability.
Dr. Jeub was sworn and testified in chambers. On cross-examination the following exchange occurred:
Appellants' attorney never argued that he had tried to comply with the court's order. In fact, he objected to respondents' questions about attempting to set the deposition up, saying:
I don't think [the attempts] are relevant, your Honor, because I think that the facts speak for themselves, not the difficulties that he has. I think it is really immaterial as to what difficulties he had. It is the end result that we are concerned with and the...
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