Miller v. Peterson
| Decision Date | 18 February 1986 |
| Docket Number | No. 15750-7-I,15750-7-I |
| Citation | 714 P.2d 695,42 Wn.App. 822 |
| Parties | William MILLER, Respondent, v. Thomas S. PETERSON, D.P.M., Appellant. |
| Court | Washington Court of Appeals |
Bassett & Morrison, Daniel F. Mullin, Seattle, for appellant.
Levinson, Friedman, Vhugen, Duggan, Bland & Horowitz, Marsha S. Diamond, Seattle, for respondent.
Dr. Theodore S. Peterson, podiatrist, appeals from the jury's verdict finding him liable for medical malpractice. Peterson argues 19 assignments of error including incorrect jury instructions, improper exclusion of witnesses and various evidentiary errors. We affirm.
On April 6, 1982, William Miller, now age 84, presented to Dr. Peterson, a podiatrist, with an infected bunion of the right foot. Miller related a past history of gout. Dr. Peterson debrided the infected area and applied an antibiotic powder. Miller returned to Peterson's office on April 13, 1982 and again on August 31, 1982. On the latter visit, Dr. Peterson discussed with Miller the possibility of surgery to improve the conditions caused by deformities of the right foot.
A consent form was signed by Miller and on September 28, 1982, Peterson performed surgery on Miller's right foot removing bone and cartilage and inserting a Swanson design implant in the big toe. During the surgery a white, milky substance was found which later proved to be "gouty" (uric acid) crystals.
In April 1983, Miller, complaining of pain in the right foot, was examined by Dr. Kent Saltonstall, an orthopedist. Dr. Saltonstall noted redness, a deformity in the big toe joint, and rotation of the big toe. When conservative measures failed to alleviate Miller's foot pain, Dr. Saltonstall suggested surgery to remove the implant, which surgery he performed.
On October 3, 1983, Miller filed a personal injury damages complaint against Dr. Peterson. Because of Miller's age the parties stipulated to an early trial date. At trial, Miller argued that Peterson: (1) failed to diagnose and treat gout; (2) should have treated Miller conservatively, without surgery; (3) improperly decided to insert an implant and remove portions of the second and third metatarsal bones of the right foot; and (4) failed to obtain Miller's informed consent. The jury returned a verdict in Miller's favor. Peterson appeals.
Peterson argues that the trial court erred in striking expert witness testimony and in refusing to grant him a continuance.
On August 8, 1984, Peterson notified Miller's counsel that Dr. John Silver, an orthopedist licensed in California, would be called as an expert witness at trial. The trial date had been set for August 13, 1984. Due to the late date of discovery, Miller moved for an order striking Silver's testimony, and on August 10, a superior court judge entered an order granting Miller's motion and denying Peterson's motion for a continuance.
On August 9, 1984, Peterson notified Miller that Dr. Paul Brown, a rheumatologist, and Dr. Byron Hutchinson, a podiatrist, would be called as expert witnesses at trial. On August 14, Miller moved to strike the testimony of these two experts. The trial judge struck the testimony of Dr. Brown and allowed Hutchinson to testify as a factual witness only.
In Barci v. Intalco Aluminum Corp., 11 Wash.App. 342, 351, 522 P.2d 1159 (1974), this court held that a trial court should not exclude testimony unless there is a showing of intentional or tactical nondisclosure, willful violation of a court order, or other unconscionable conduct by the procurer of the testimony. In Barci we set forth the material factors which should guide the trial court in making a decision whether to exclude or allow testimony from a witness who was unobtainable and undisclosed either during trial or until just before trial. These factors are:
(a) the presence or absence of good faith attempts by the proponent of the witness to comply with the rules of discovery, (b) the availability or discoverability of the witness at an earlier time, (c) the circumstances of the proponent at the time of the securing of the witness, i.e., whether a physical injury or illness had progressed to a point where diagnosis and/or prognosis was possible and/or whether the passage of time had made the consequences of the acts of the parties discernible to an expert witness at an earlier time, (d) the materiality of the proposed testimony to the proponent, (e) the extent of surprise to the opponent, (f) the availability of opportunity to the opponent to depose the witness, (g) the availability of opportunity to the opponent to prepare for cross-examination, (h) the opportunity to the opponent to secure contradicting witnesses, (i) the prejudice presented to a proponent or opponent's case if a continuance is granted, (j) the impact upon both parties of the expenses of delay, and (k) the ability of an imposition of costs upon a proponent to remedy any hardship imposed upon an opponent by the late calling of a witness.
Barci, at 349-50, 522 P.2d 1159.
Considering these factors as applied to the case sub judice we reach a result different from that in Barci. Although the record does not disclose a violation of a court order or any other unconscionable conduct on behalf of Peterson, other factors weigh heavily in favor of excluding the testimony.
The most important factor in this case is the prejudice to Miller from a continuance. Miller had arranged for his experts to testify during the time period originally scheduled for the trial. Peterson stated that Dr. Silver was unavailable for trial until August 31. Unfortunately, if the trial were to be continued, both Dr. Saltonstall and Miller's counsel were unavailable until sometime in September. Additionally, Mr. Miller was nearly 83 years old at the time of trial. We note it was Mr. Miller's age which prompted the parties to stipulate to an early trial date in the first place. Thus, while in many instances a continuance is an appropriate remedy when one party springs a surprise witness, in this case it was not.
Other factors which weigh in favor of excluding the testimony are: (1) without a continuance Miller would have been unable to depose or prepare cross examination of either Brown or Hutchinson, concerning their expert testimony, until after a substantial portion of his case-in-chief was presented; (2) with respect to Hutchinson, Peterson offered no reason why Hutchinson could not have been identified earlier as an expert witness; (3) Miller is retired and living on a fixed income, thus an increase in expenses due to delay would have been a hardship; and (4) much of the testimony offered by Peterson's excluded experts was cumulative of testimony given by Peterson's remaining experts who did testify at trial. Weighing these factors, we find the trial court did not err in excluding the testimony.
Peterson argues that regardless of the court's initial decision to exclude his experts' testimony, the court should have permitted the experts to testify later to rebut new issues raised during trial. He contends that in Miller's case-in-chief two issues were raised for the first time, namely: (1) whether a base-wedge osteotomy is a mandatory component of a Swanson implant surgery; and (2) whether the presence of uric acid crystals in the joint constitutes an acute gout attack.
Peterson made offers of proof regarding the proffered testimony of Dr. Brown and Dr. Silver to rebut Dr. Saltonstall's testimony raising the alleged new issues. However, even assuming new issues were raised, Dr. Saltonstall's testimony did not stand uncontroverted. In addition to Peterson's own testimony, Dr. Lipon, Dr. Kravette, and Dr. Hutchinson testified concerning the propriety of Peterson's decision to conduct the implant surgery in light of the presence of uric acid crystals and his decision to remove portions of the metatarsal heads.
A trial judge may exclude relevant evidence on the basis that it is cumulative. ER 403. The proffered testimony of Silver and Brown contained basically the same opinions as those offered by the experts who testified at trial for Peterson. Thus, even if the trial court erred by excluding the testimony based on its original determination that the experts were disclosed too near the trial date, the error is harmless.
Peterson next alleges that the trial court had no discretion to limit cross examination of plaintiff's expert who testified concerning the reasonableness of the hospital charges. Peterson is mistaken. The scope of cross examination is within the broad discretion of the trial court and will not be overturned on appeal absent an abuse of discretion. State v. Young, 89 Wash.2d 613, 574 P.2d 1171, cert. den'd, 439 U.S. 870, 99 S.Ct. 200, 58 L.Ed.2d 182 (1978). The trial judge ruled that the information Peterson attempted to elicit from the witness was irrelevant. The trial court should exclude irrelevant evidence. ER 402.
Peterson contends that the trial court erred in excluding a statement made by Miller to Dr. Kravette in which Miller said "the orthopedist told [me] what was done to [my] foot was terrible and [I] should sue the doctor that did it." The trial judge ruled that the statement was not relevant. A trial court's determination of irrelevancy will not be overturned on appeal absent an abuse of discretion. Lee v. Sauvage, 38 Wash.App. 699, 689 P.2d 404 (1984). The statement is not relevant to any issues presented at trial; thus, the statement was properly excluded.
During cross examination of Miller's medical experts Peterson attempted to introduce various medical articles and manufacturer's pamphlets concerning the surgical procedure and the design of the implant. The court sustained Miller's objections that proper foundations had not been laid and excluded the evidence.
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