McDougal v. McCammon

• Decision Date: 17 February 1995
• Docket Number: No. 22215,22215
• Citation: 455 S.E.2d 788,193 W.Va. 229
• Court: West Virginia Supreme Court
• Parties: Shelley S. McDOUGAL and David L. McDougal, Plaintiffs Below, Appellants, v. Julie K. McCAMMON, M.D., Defendant Below, Appellee.

Page 788

455 S.E.2d 788

193 W.Va. 229

Shelley S. McDOUGAL and David L. McDougal, Plaintiffs Below Appellants, v. Julie K. McCAMMON, M.D., Defendant Below, Appellee.

No. 22215.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 24, 1995.

Decided Feb. 17, 1995.

[193 W.Va. 232] Syllabus by the Court

1. The West Virginia Rules of Evidence and the West Virginia Rules of Civil Procedure allocate significant discretion to the trial court in making evidentiary and procedural rulings. Thus, rulings on the admissibility of evidence and the appropriateness of a particular sanction for discovery violations are committed to the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary and procedural rulings of the circuit court under an abuse of discretion standard.

2. Subject to well established exceptions, impeachment by contradiction may properly attack all kinds of testimony, whether given on direct or on cross, and indeed all evidence, as well as inferences suggested by evidence or arguments of counsel interpreting the evidence.

3. " 'A judgment will not be reversed because of the admission of improper or irrelevant evidence when it is clear that the verdict of the jury could not have been affected thereby.' Syllabus Point 7, Starcher v. South Penn Oil Co., 81 W.Va. 587, 95 S.E. 28 (1918)." Syllabus Point 7, Torrence v. Kusminsky, 185 W.Va. 734, 408 S.E.2d 684 (1991).

4. In order to preserve for appeal the claim of unfair surprise as the basis for the exclusion of evidence, the aggrieved party must move for a continuance or recess.

Frank Venezia, E. William Harvit, Shinaberry, Meade & Venezia, Charleston, for appellants.

Sprague W. Hazard, Dino S. Colombo, Jacobson, Maynard, Tuschman & Kalur, Morgantown, for appellee.

Jolyn W. McCamic, McCamic & McCamic, Wheeling, for amicus curiae West Virginia Trial Lawyers Ass'n.

CLECKLEY, Justice:

In this medical malpractice case, the plaintiffs, Shelley S. and David L. McDougal, appeal from a jury verdict in favor of the defendant, Julie K. McCammon, M.D. The plaintiffs claimed that as a result of the defendant's negligent performance of a hysterectomy, Mrs. McDougal suffered permanent The sole issue before this Court is whether the trial court improperly admitted a portion of a video surveillance tape of Shelley McDougal. Because the video tape was not produced or its existence revealed during discovery, the plaintiffs contend they were surprised and ambushed by its use. Our review of the record reveals that the admission of the video tape was only harmless error. Accordingly, for reasons described herein, the judgment of the circuit court is affirmed.

[193 W.Va. 233] nerve damage. The jury returned a verdict in favor of the defendant.

I. FACTS

In February, 1989, Mrs. McDougal went to the defendant's office with complaints of vaginal discharge and pelvic pain for one month's duration. The defendant prescribed ampicillin for ten days and told Mrs. McDougal to take Tylenol for pain. Mrs. McDougal remained in the defendant's care and on March 22, 1989, was admitted to United Hospital Center for a D & C and diagnostic laparoscopy.

On July 27, 1990, Mrs. McDougal was admitted to United Hospital Center for a total abdominal hysterectomy with bilateral salpingo-oophorectomy and lysis of adhesions. The defendant claims she used proper surgical techniques by using a self-retaining retractor to keep the surgical field clear of other abdominal organs. After surgery, Mrs. McDougal complained of left leg numbness with tingling, right leg numbness starting from the knee down to the ankle on the anterior portion of her leg, and numbness in her right thigh. Mrs. McDougal was later seen by a neurologist and then referred to West Virginia University. Eventually, Mrs. McDougal was diagnosed as having femoral and obturator neuropathy.

The plaintiffs assert the defendant failed to follow proper preventive care during surgery which resulted in permanent damage to Mrs. McDougal's femoral and obturator nerves. To the contrary, the defendant argues damage to these nerves is a recognized complication that can occur without any negligence.

The plaintiffs instituted a civil action against the defendant. In addition to Mrs. McDougal's malpractice claim, Mr. McDougal brought a loss of consortium action against the defendant. At trial, part of Mrs. McDougal's testimony concerned her pre- and post-surgical conditions and the limitations she experienced from her purported injuries.

On cross-examination, defense counsel focused on Mrs. McDougal's claims of physical limitations. In response to a question about whether she had ever carried a 20 to 25 pound box down her steps since her injury, Mrs. McDougal told defense counsel she could not remember. Following a series of questions about her limitations, defense counsel asked for a bench conference and told the trial judge he wanted to present a video surveillance tape of Mrs. McDougal carrying a large box down her steps in order to impeach Mrs. McDougal's testimony concerning the extent of her injuries. The trial judge allowed defense counsel to present the video tape after a protracted argument considering the admissibility of the video tape and whether the tape should have been disclosed during discovery. After defense counsel presented the video tape and finished cross-examining the witness, plaintiffs' counsel had an opportunity to ask Mrs. McDougal about the video tape.

The jury eventually found for the defendant, and the plaintiffs appeal the jury's verdict. The plaintiffs argue the admission of the video tape "unfairly and substantially prejudiced" them by damaging the jury's perception of Mrs. McDougal.

II. DISCUSSION

The plaintiffs argue the video tape should have been excluded because (a) it was not revealed during discovery and instead was used to ambush and surprise the plaintiffs; (b) it was improper impeachment evidence; and (c) the prejudicial effect of the tape substantially outweighed its probative value. The defendant contends she was not obligated to reveal the video tape in response to a discovery request. She argues the video tape was protected from discovery under the "work product" doctrine. Alternatively, even if the video tape is not considered work product, the defendant argues the sole purpose of the video tape was to contradict Mrs. McDougal regarding the extent of her injuries and, as such, the probative value of the tape outweighed the prejudicial effect. ¹

In response to a discovery request of the plaintiffs as to the existence of any photographs, moving or still, of Mrs. McDougal, the defendant answered none existed. ² No supplementation was ever made of this answer prior to trial. In fact, the existence of the video tape was not revealed until the cross-examination of Mrs. McDougal. ³ Obviously, the defendant's answer to the interrogatory and the motion to produce are directly inconsistent with the video tape that was produced at trial.

On cross-examination, Mrs. McDougal was asked whether she could perform certain acts such as lifting boxes weighing 15 to 20 pounds:

"Q. Well, let me ask you this. Could you carry a little laundry without your brace at home?

"A. I--carry anything.

"Q. Could you carry with both your hands?

"A. With both my hands.

"Q. Fifteen (15) or twenty (20) pounds.

"A. On a good day, maybe. Depending on how I feel. If my back hurts or I hurt here or there. No, I cannot.

* * * * * *

"Q. So there are times when you can walk up and down the stairs of your home by yourself without the brace and without holding onto somebody or something.

"A. Yes. As I said before, with limitations. I know what I can do and how far to push myself, Sir.

"Q. You testified you had seven (7) or eight (8) steps at your home. Are you telling us you can walk up those steps without assistance, without the brace?

"A. Depending on what I have done, yes.

"Q. Could you carry heavy objects down the steps using both hands? Walking down those steps not holding on to anything?

"A. That I--heavy as in what are you referring to?

"Q. A box or groceries?

"A. I don't think I'd carry groceries.... My husband--.

"Q. I'm not--is that what you want to say you can't.

"A. No. What I want to say is depending on, I guess, how heavy the box is, the size of the box as to whether I could do it or not.

"Q. Is it fair to say that you could not carry a heavy box, twenty (20) to twenty-five (25) pounds down your steps at home.

"A. That I cannot say."

The cross-examination continued on the subject of whether the plaintiff could perform her routine daily household chores without wearing her knee brace. After the plaintiff gave evasive answers to these questions, defense counsel requested a bench conference and for the first time revealed that he had conducted "video taped surveillance of the Plaintiff that is part of our work product[.]" Following a lengthy and nonproductive discussion, the trial court permitted the tape to be used over the plaintiffs' objection. ⁴ On appeal, the plaintiffs contend that the admission of the tape constituted reversible error.

Rulings on the admissibility of evidence and the appropriateness of a particular sanction for discovery violations are committed to the discretion of the trial court. Grillis v. Monongahela Power Co., 176 W.Va. 662, 346 S.E.2d 812 (1986); ⁵ Prager v. Meckling, 172 W.Va. 785, 310 S.E.2d 852 (1983). The West Virginia Rules of Evidence and the West Virginia Rules of Civil Procedure allocate significant discretion to the trial court in making evidentiary and procedural rulings. As the drafters of the rules appear to recognize, evidentiary and procedural rulings, perhaps more than any others, must be made quickly, without unnecessary fear of reversal, and must be individualized to respond to the specific facts of each case. See generally Thomas M. Mengler, The Theory of Discretion in the Federal Rules of Evidence, 74 Iowa L.Rev....