Full Disclosure of Expert Testimony Required: Miss. Supreme Court
Allowing an expert witness to give an opinion at trial that was not fully disclosed previously was a reversible error, the Mississippi Supreme Court has ruled, reversing the trial court judgment and remanding for a new trial.
In Cleveland Nursing and Rehabilitation, LLC v. Estate of Annie Mae Gully, Miss., Oct. 20, 2016, the Estate of Annie Mae Gully was awarded $1 million by the jury for claims of negligence and gross negligence. While a resident at Cleveland, Annie Mae Gully fell, broke her hip, had surgery to repair it and died six days later from surgical complications.
The Estate's designated nursing home and nursing expert witness, Karon Goldsmith, opined on multiple breaches of the standard of care. Cleveland designated its own expert witnesses, including as well a nursing home expert witness, Dr. William Marcus Meeks, who opined that neither Cleveland nor its staff "caused or contributed to the injuries and medical conditions allegedly suffered by [Gully]."
The Estate filed a motion to inspect the premises of Cleveland and photograph any apparatus used to assist Gully's walking and movement, or security devices, such as "seatbelt, soft torso restraint, and soft waist restraint". Cleveland objected, arguing that five years had passed since Gully had been a resident of the facility, and it no longer had the same equipment that was available for use by Gully.
The trial court allowed the Estate's motion and at the same time made it clear that experts would not be allowed testify beyond the opinions listed in discovery.
Cleveland then moved to exclude testimony regarding injuries from Gully's two previous falls in the year prior to her death, one of which was on December 19, 2008, when Gully tripped while pushing a food cart — only three days before her final fall.
Cleveland argued that there were no documented injuries from those falls, and no expert had provided any opinions that Gully suffered injuries from those falls. The trial court ruled that no evidence could be presented that the two prior falls breached the standard of care, but it agreed that the Estate could elicit testimony regarding the falls "in the context of notice." The trial court reminded both parties that experts would not be allowed to testify as to any opinion not provided in discovery responses.
During Meeks' testimony, counsel for Cleveland attempted to ask him his opinion on Gully's cause of death. The counsel for the Estate objected, stating that was not his opinion. During the exchange, the trial court noted that Meeks had opined on the "[c]ause and/or contributing factor to alleged injuries." The trial court decided it was a question of: "does death come under the auspices of injuries", and it ruled that it did not. Since cause of death was not in Meeks' discovery, the testimony was not allowed.
Cleveland also argued that the Estate's expert disclosures "did not sufficiently put Cleveland on notice that Goldsmith would provide an expert opinion on restraints." The trial court reserved its ruling on the issue, but did note its grave concerns about "allowing an expert to give an opinion that she should have been restrained in a wheelchair when there's no mention of restraint in her discovery responses."
However, the next day the trial court questioned Cleveland on its claim of "surprise" since the Estate had moved before trial to inspect the restraint equipment at Cleveland. Cleveland argued that there was nothing in Goldsmith's disclosures about restraints, but the trial court decided to deny Cleveland's motion, based on the Estate's motion to inspect Cleveland's restraints.
The jury awarded the Estate $1 million, which the trial court reduced to $500,000. Cleveland moved for a new trial, which the trial court denied.
Cleveland then appealed on several issues, including the admission of Goldsmith's undisclosed expert testimony and the trial court's denial of Meeks' testimony on cause of death. The Estate cross-appealed.
The Mississippi Supreme Court found that the trial court did not err in limiting Meeks' testimony as to cause of death but it did commit reversible error in allowing Goldsmith to offer previously undisclosed opinions related to restraints. The state Supreme Court reversed the judgment and remanded for new trial.