Kiser v. Caudill, M.D., 070804 WVSC, 31614

Docket Nº:070804 WVSC, 31614
Party Name:Kiser v. Caudill
Case Date:July 08, 2004
Court:Supreme Court of West Virginia

Kiser v. Caudill, M.D.



Supreme Court of West Virginia


No. 31614 - Larry Kiser and Carolyn Kiser, as father and mother, and next of kin for Lora D. Kiser, and Lora D. Kiser, individually v. Carrel Mayo Caudill, M.D., individually

Starcher, J., concurring:

I concur with the rule adopted in the majority opinion. In most instances, a witness should not be permitted to say one thing at a deposition, then contradict that testimony at the summary judgment stage with an affidavit. This is particularly the case with a fact witness: a fact witness will rarely have a night-and-day shift in testimony, particularly when the parties have had a chance to extensively depose the witness. If a fact witness offers an affidavit with a statement that is diametrically opposed to something the witness said in a lengthy, exhaustive deposition, then that witness had better list some pretty good reasons in the affidavit why their opinion shifted so dramatically before the circuit court will be obliged to consider it. A different rule applies with expert witnesses. An expert witness's understanding of a case, and testimony on a legal opinion, can change with time. An expert witness, who is unfamiliar with a particular issue in a deposition, can become familiar with the issue after a deposition by doing additional research or testing. An expert brings experience to the courtroom, and uses that experience to assist the jury in understanding the facts. (See footnote 1) If the expert's experience changes, resulting in a change in the expert's opinion or other deposition testimony, then the party offering the expert is entitled to amend the expert's testimony through use of an affidavit. But that affidavit had also better list some pretty good reasons for the change in the expert's testimony. In the instant case, Dr. Barnes testified that he did not know the standard of care for doctors outside of Columbus, Ohio in 1973; later, one day before the circuit court's hearing on the defendant's summary judgment motion, the plaintiff's attorneys submitted an affidavit from Dr. Barnes indicating he did know the standard of care for doctors in Charleston, West Virginia in 1973. What was...

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