Wegener v. Johnson
| Decision Date | 06 June 2008 |
| Docket Number | No. 07-1371.,07-1371. |
| Parties | Angela WEGENER, Mother, Guardian and next friend of Noah Wegener, Appellant, v. Dean E. JOHNSON, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
George Hamilton Moyer, argued, Madison, NE, for appellant.
William R. Settles, argued, William M. Lamson, Jr. and Anastasia Wagner, on the brief, Omaha, NE, for appellee.
Before LOKEN, Chief Judge, WOLLMAN, and SHEPHERD, Circuit Judges.
Angela Wegener (Wegener), guardian and next friend of her son Noah Wegener (Noah), appeals from the judgment in a medical malpractice case against Dr. Dean E. Johnson. Wegener argues that the district court1 erred by excluding supplemental testimony from one of Wegener's experts and by directing the jury to reread existing instructions instead of giving a supplemental instruction. We affirm.
Following approximately a month of severe abdominal pain and vomiting, Wegener, who was twenty-eight-weeks pregnant, was admitted to Columbus Community Hospital (Columbus) in an incoherent state on June 3, 1997. At the time of her admission, she was dehydrated and many of her blood test values were elevated. Most notably, her calcium was at a life-threatening level. Two days later, Wegener was transferred to Methodist Hospital in Omaha (Methodist), where she delivered Noah prematurely and her gallbladder was removed. Noah developed cerebral palsy.
On July 28, 2004, Wegener filed suit on Noah's behalf against Johnson, her obstetrician, claiming that he failed to meet the applicable standard of care, which resulted in Noah's cerebral palsy. In her case-in-chief, Wegener advanced the theory that her health conditions that led to Noah's premature birth were primarily caused by gallbladder disease and resulting pancreatitis. Johnson's defense offered the alternative theory that Wegener's health conditions were primarily caused by her ingestion of an off-label dosage of over-the-counter calcium carbonate antacids.
The trial was delayed several times. The district court's progression order was filed on January 24, 2005, and initially scheduled the trial for November 14, 2005. The district court extended the deadline to disclose initial expert witness reports on Wegener's motion and granted Wegener another extension to complete the reports. On the parties' joint motion, the progression order was amended to accommodate the extended discovery period and the trial was rescheduled for February 6, 2006. The trial was rescheduled three more times, twice at the behest of the parties and once of the district court's accord. Trial began on October 3, 2006.
The jury returned a verdict in Johnson's favor, and the district court entered judgment on the verdict, rejecting Wegener's motion for a new trial.
On September 15, 2006, two-and-a-half weeks before trial was scheduled to begin, Wegener attempted to supplement her expert witness disclosures with additional testimony from her previously disclosed expert witness Dr. Bruce Halbridge that interpreted ultrasounds taken at both Columbus and Methodist hospitals and concluded that they showed gallstones in Wegener's gallbladder. Johnson moved to exclude the testimony as untimely filed. The district court ruled that Wegener could not present the testimony in her case-in-chief, but postponed ruling with respect to its use for rebuttal until after Johnson had presented his defense. The district court ultimately rejected Wegener's offer of proof for purposes of rebuttal.
Wegener offers two arguments in support of her contention that the district court erred by excluding Dr. Halbridge's supplemental testimony: first, that the testimony was admissible as impeachment or rebuttal evidence; and second, that exclusion was not the appropriate remedy for violation of the applicable discovery rules. We address each of these arguments in turn, reviewing the district court's exclusion of the evidence for a clear and prejudicial abuse of discretion. We will reverse only if the district court's ruling was based on "an erroneous view of the law or a clearly erroneous assessment of the evidence" and affirmance would result in "fundamental unfairness." Davis v. U.S. Bancorp, 383 F.3d 761, 765 (8th Cir. 2004) (internal quotations omitted).
The parties do not dispute that Wegener's disclosure did not comply with the deadline imposed by Federal Rule of Civil Procedure 26(e) for disclosing supplemental expert testimony to be used in her case-in-chief. Wegener contends, however, that the district court erred by failing to admit the testimony as impeachment or rebuttal evidence. We hold that, even if it were offered in impeachment or rebuttal, Wegener was required to disclose Dr. Halbridge's supplemental testimony under Rule 26 and she failed to do so in a timely manner.
Rule 26 does not require the disclosure of evidence used solely for impeachment purposes. See Fed.R.Civ.P. 37(c) advisory committee's note (1993). The district court did not err by concluding that Rule 26(a)(2) required disclosure of Dr. Halbridge's supplemental testimony, however, because it is not impeachment evidence of the kind exempted from disclosure. Impeachment is "an attack on the credibility of a witness." Sterkel v. Fruehauf Corp., 975 F.2d 528, 532 (8th Cir. 1992). To attack the credibility of witnesses by the presentation of evidence showing that facts asserted or relied upon in their testimony are false is to impeach by contradiction. 27 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 6096 (1990). It does not impeach, however, to show that an expert's opinion about the meaning of facts merely differs from that of other experts. See Kennemur v. California, 133 Cal.App.3d 907, 184 Cal.Rptr. 393, 402 (1982). It is often difficult to distinguish between foundational facts and expert opinion, and so to distinguish between impeachment and substantive evidence, see id. at 403, but Rule 26(a)(2)(C)(ii) resolves the dilemma in favor of disclosure by requiring parties to disclose expert testimony offered to contradict the expert testimony of the opposing party. Because Wegener offered Dr. Halbridge's supplemental testimony to contradict the testimony of Johnson's experts, she was required to disclose it.
The district court also did not err in declining to admit Dr. Halbridge's supplemental testimony as rebuttal evidence. Wegener contends that Dr. Halbridge's supplemental testimony was admissible to rebut Johnson's experts' assertion that Wegener's hospital records as a whole indicate that no gallstones were present in Wegener's gallbladder. Wegener also argues, more specifically, that the supplemental testimony was admissible to rebut the supplemental report of Johnson's expert Dr. West, which was disclosed on September 6, 2006. We disagree, for Dr. Halbridge's supplemental testimony was untimely disclosed and was not offered in true rebuttal.
The district court's progression order of January 24, 2005, set forth the deadlines for, inter alia, depositions and the disclosure of initial and rebuttal expert witness reports. See Fed.R.Civ.P. 16(b)(3)(B)(i), 26(a)(2)(C) (). Although the district court changed the dates for the initial expert witness reports and depositions on Wegener's motion and the trial was rescheduled four times, the January 24, 2005, order set the deadline for rebuttal expert reports to be "fifteen (15) days prior to the date set for the completion of depositions." Final Progression Order at 2 (original emphasis omitted). The final deposition deadline set by order of the district court was September 1, 2006. Therefore, Wegener's September 15, 2006, disclosure of Dr. Halbridge's supplemental testimony was untimely as a rebuttal expert disclosure.
Wegener's argument that Dr. Halbridge's supplemental testimony rebuts the supplemental report of Johnson's expert Dr. West does not excuse its untimeliness. Dr. Halbridge's supplemental testimony did not rebut any new information disclosed in Dr. West's supplemental report. Dr. West stated in both his initial and supplemental reports that neither Wegener's medical records as a whole nor the Columbus hospital ultrasounds provided evidence of gallbladder disease. Wegener argues that Dr. West's initial opinion relied exclusively on the radiologist's report interpreting the ultrasound and that because Johnson's counsel had subpoenaed Wegener's ultrasound records in the time between Dr. West's initial report and his supplemental report, the opinion contained in his supplemental report was based on the ultrasound film itself and was, therefore, new. Our review of the record does not reveal that Dr. West's supplemental report was, in fact, based on the ultrasound films. The supplemental report does not list the films in the documents reviewed, nor does the report specifically refer to them at any point. As a basis for comparison, the list of documents reviewed does include microscopic slides of Wegener's gallbladder, Dr. West's independent reading of which is discussed in his report. Furthermore, Dr. West testified at trial that his opinion was not based on the ultrasound films, but on the radiologists' reports. We therefore conclude that Wegener's disclosure of Dr. Halbridge's supplemental testimony was untimely and that it was not offered solely to rebut any new information contained in Johnson's supplemental disclosures.
Wegener argues that the district court should have employed a less-restrictive remedy, such as a continuance, instead of excluding her untimely disclosed...
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