Weiner v. Kneller

• Citation: 557 A.2d 1306
• Decision Date: 20 April 1989
• Docket Number: No. 86-1322.,86-1322.
• Parties: John WEINER, Individually and as Personal Representative of the Estate of Denise Weiner, Appellant, v. Martin S. KNELLER, et al., Appellees.
• Court: Court of Appeals of Columbia District

557 A.2d 1306

John WEINER, Individually and as Personal Representative of the Estate of Denise Weiner, Appellant, v. Martin S. KNELLER, et al., Appellees.

No. 86-1322.

District of Columbia Court of Appeals.

Argued November 9, 1988.

Decided April 20, 1989.

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Robert X. Perry, Jr., Washington, D.C., for appellant.

Kevin M. Murphy, with whom L. Palmer Foret, Washington, D.C., was on the brief, for appellees.

Before ROGERS, Chief Judge, MACK, Associate Judge, and PRYOR, Senior Judge.

MACK, Associate Judge:

On November 8, 1985 Denise Weiner died of a progressive malignant lesion of the chest called a diffuse histiocytic lymphona. Before her death, Mrs. Weiner sought diagnosis and treatment by defendant-appellees, physicians at the Yater Clinic. The physicians misread initial x-rays and misdiagnosed the illness. On January 9, 1986, decedent's widower, John Weiner, amended a prior action¹ alleging medical malpractice to seek damages for a wrongful death claim on behalf of himself and his minor daughter, a survival action for the benefit of the decedent's estate, and a claim for loss of consortium. Since the parties disputed whether Mrs. Weiner's disease would have been curable, the trial turned on causation, and both sides produced expert testimony on that issue. Discussing the statistical likelihood of survival given the decedent's condition when first diagnosed, Weiner's principal expert, Dr. Richard I. Fisher, linked the deterioration in her condition and ultimate death to appellees' failure to make timely diagnosis and administer appropriate treatment. Appellees produced an expert, Dr. Robert C. Young, who, relying largely on the decedent's incomplete response to subsequent chemotherapy, testified that because her condition was incurable from the beginning, the delay attributable to misdiagnosis had no significance.

At a conference nine days before trial, appellants advised appellees that Dr. Fisher would offer testimony to "refute" Dr. Young's testimony. Appellees voiced no objection at the time to this proffer, although appellants had filed no supplementary statement pursuant to Super.Ct.Civ.R. 26(b)(4), which requires parties to identify their experts and the expected content of their testimony, and Super.Ct.Civ.R. 26(f)(1)(B), which requires supplementation of this statement if additional testimony becomes known. At trial, Dr. Fisher testified fully as to the chances of survival by reason of early detection. However, when he sought to offer his opinion as to the non-significance of the tumor's response to treatment, appellees objected, claiming surprise and prejudice. The court excluded Dr. Fisher's testimony. In closing argument, appellees' counsel implied that appellants could find no expert to refute Dr. Young's testimony as to tumor response and the inevitability of death. The jury found for appellees. A new trial was denied.

In this court, appellants argue that Dr. Fisher's testimony was wrongly excluded, and that opposing counsel's closing argument was misleading and improper. Appellees contest these points; they also argue that the scope of the exclusion was less than appellants suggest and would have allowed the testimony appellants claim was excluded, and that, in any event, their cross-examination of appellants' expert on related issues opened the door to redirect on the excluded testimony. Because we find merit in appellants' argument that Dr. Fisher's testimony was wrongly excluded and find no merit in appellees' defenses, we reverse and remand.²

I

We begin by examining the applicable law as it has developed in this and other jurisdictions. Superior Court Civil Rule 26(f)(1)(B) imposes a duty on parties seasonably to supplement pretrial statements relating to expert witnesses. Under Super.Ct.Civ.R. 37, the trial court may enforce the duty of supplementation, like other discovery rules, through such sanctions as default judgment, dismissal, exclusion of evidence, continuance, or any other action it deems appropriate. The trial court has broad discretion to apply discovery sanctions, Lyons v. Jordan, 524 A.2d 1199, 1201 (D.C. 1987), including the discretion not to apply sanctions at all. Corley v. BP Oil Corp., 402 A.2d 1258, 1261 (D.C. 1979). Consequently, the judgment of the trial court will only be disturbed if this discretion has been abused, and abuse may only be found where the trial judge has imposed "a penalty too strict or unnecessary under the circumstances." Henneke v. Sommer, 431 A.2d 6, 8 (D.C. 1981) (citation omitted).

The primary purpose of Rule 26(f)(1)(B) and the accompanying sanctions is to prevent unfair surprise and limit the issues to those articulated before trial, so that an efficient and orderly presentation of evidence may be insured. Corley, supra, 402 A.2d at 1262; see also Laaperi v. Sears, Roebuck & Co., 787 F.2d 726, 733 (1st Cir. 1986) (construing FED.R.CIv.P. 26(e)(1)(B)) (purpose is "narrowing of issues and elimination of surprise").³ This court has often discussed the standards for deciding whether the penalties of default judgment or dismissal are "too strict or unnecessary under the circumstances," see infra note 4 and accompanying text, but it has not developed precise standards for the sanction of exclusion. In the event of default judgment or dismissal, we have held that "a trial court abuses its discretion if it fails to consider lesser sanctions before dismissing an action under Rule 37, or if there is no showing of `severe circumstances' which would justify dismissal." Braxton v. Howard University, 472 A.2d 1363, 1365 (D.C. 1984) (citation omitted), cited in Taylor v. Carreno, 528 A.2d 1241, 1242 (D.C. 1987).⁴ Until now, however, we have not articulated whether these standards apply to the sanction of exclusion.⁵

The federal appellate courts have offered more guidance with respect to the issue of trial court error in excluding testimony on Rule 26 grounds. In Meyers v. Pennypack Woods, 559 F.2d 894, 904 (3d Cir. 1977), the court, reversing the district court's exclusion of expert testimony by a witness not named in pretrial memoranda, stated four "basic considerations" in reviewing such a sanction:

(1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases in the court, and (4) bad faith or willfulness in failing to comply with the court's order.

The federal court indicated that the validity of the excuse offered by the party seeking to introduce the witness and the importance of the excluded testimony were also significant factors. Id. The Meyers standards have been reiterated in the Third Circuit and approved in other courts.⁶ This framework, however, applies particularly to cases involving the exclusion of witnesses, and not necessarily to those involving the preclusion of specific testimony by a witness permitted to take the stand. See Johnson, supra note 6, 775 F.2d at 7 n. 7 (approving Meyers standards but declining to apply them).

II

Where the issue is whether an expected witness should be permitted to give putatively unexpected testimony, a threshold question is whether the contested testimony was indeed distinct from the theory generally articulated by the witness. Certainly, it would be imposing too great a burden to require a party to describe, in a Rule 26(b)(4) statement, every possible direction his expert's testimony could take. Courts have generally allowed experts to state the natural concomitants of their arguments, including rebuttals of contrary expert testimony, when they have been satisfied that such testimony was of a piece with the original theory. Thus, in Corley, supra, 402 A.2d at 1262-63, we held that the exclusion of expert testimony not made explicit in a pretrial statement, but consistent with the expert's original theory, was improper. As the First Circuit pointed out in Johnson, supra note 6, 775 F.2d at 7:

[N]othing in the rule . . . forecloses an expert from revising or further clarifying opinions during redirect or surrebuttal in response to points raised by the opposing party during its cross-examination or the presentation of its case. We must therefore not read Rule 26 mechanically, but rather in light of its dual purposes, "narrowing of issues and elimination of surprise."

(Citation omitted.)⁷

It is difficult to evaluate where one theory ends and another begins. To the extent we can formalize a general standard, we conclude that where testimony supports the larger theory presented by an expert, is not inconsistent with that theory, and does not present an alternative to it, it should be deemed part of the theory for the purposes of Rule 26(b)(4). Here, in the context of the medical debate being waged at trial, the excluded testimony was of a piece with the testimony Dr. Fisher was allowed to give, offered merely to rebut contrary statements by Dr. Young. Dr. Fisher had testified that individuals suffering with a diffuse histiocytic lymphoma, at the same stage of development as the one Mrs. Weiner had when initially examined, exhibited an eighty percent cure rate when properly treated. In rebuttal, Dr. Young testified that his examination of later slides of Mrs. Weiner's tumor indicated that the diffuse histiocytic lymphoma was incurable, particularly since it had shown only a partial response to chemotherapy. However, Dr. Fisher was prepared to testify that (1) the later slides were not a proper basis for concluding that the disease was incurable at the start, since the cell structure of diffuse histiocytic lymphoma lesions commonly changes to an incurable pattern if not properly treated; and (2) the partial response to the chemotherapy was consistent with his prognosis under the circumstances of the treatment. We are...