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Wagner v. Georgetown University Medical Center3/8/2001
d its discretion erroneously.
C. Rulings on the Admission of Expert Testimony
The Wagners challenge two discretionary rulings of the trial court on the admission of expert testimony on the issue of causation. The first ruling permitted a defense expert witness to testify despite a claim by the Wagners of unfair surprise. The second ruling precluded the Wagners from presenting expert testimony in rebuttal. Whether these rulings were sound or not, the special verdict that the jury rendered enables us to say that they did not affect the outcome of the trial. Any errors in the rulings were therefore harmless and do not entitle the Wagners to relief.
1. The Rulings in Context
The issue of causation arose in connection with the Wagners' claim that Dr. Kobrine was negligent in the performance of the foraminotomy during his portion of the surgery on Mrs. Wagner. The Wagners' expert witness, Dr. Austin, opined that Dr. Kobrine breached the applicable standard of care by using a rongeur - a type of forceps used to nip away bone - that was too large for the tight opening (the foramen) in which it had to be inserted. Specifically, Dr. Austin opined that Dr. Kobrine used a rongeur with a width of three millimeters, when he should have used a narrower instrument to avoid impinging on key blood vessels. Dr. Austin opined that by using a rongeur that was too large, Dr. Kobrine must have compressed, inadvertently, an artery known as the Artery of Adamkiewicz, shutting off the blood supply to Mrs. Wagner's spinal cord and thereby causing her paralysis.
Dr. Kobrine denied that he breached the standard of care by using too large a surgical instrument. He testified that, consistent with his customary practice, he performed the foraminotomy with a two millimeter rongeur, not a three millimeter rongeur. Dr. Kobrine also denied that he could have injured the Artery of Adamkiewicz. His expert witness Dr. Dennis, a neurosurgeon, disputed Dr. Austin's opinion that the Artery of Adamkiewicz could have been present, even with a low probability, in Dr. Kobrine's operating field. Dr. Dennis opined that there was "no way that [Dr. Kobrine] physically could have compressed that particular artery."
After Dr. Dennis testified, Dr. Kobrine called a second neurosurgeon, Dr. Dohrmann, to the witness stand. The Wagners objected on grounds of unfair surprise to any testimony by Dr. Dohrmann regarding their theory of negligent injury to the Artery of Adamkiewicz. The trial court overruled the objection, finding that the Wagners were sufficiently on notice that Dr. Dohrmann's testimony might address that claim. Dr. Dohrmann thereupon testified, among other things, that trauma to the Artery of Adamkiewicz could not have been the cause of Mrs. Wagner's paralysis because she tested positive for proprioception - the sense of position - in her feet following the surgery. According to Dr. Dohrmann, occlusion of the Artery of Adamkiewicz would, as a matter of basic anatomy, have shut off blood to the spinal cord so completely that Mrs. Wagner would have lost all capacity for proprioception.
To rebut Dr. Dohrmann on this narrow but telling point, the Wagners sought to call a professor of anatomy and neurobiology named Dr. Traurig. The Wagners proffered that Dr. Traurig would testify that Dr. Dohrmann had overlooked the fact that proprioception can survive blockage of the Artery of Adamkiewicz because blood is supplied to the posterior portion of the spinal cord by other arteries. The court considered, however, that the Wagners had been aware of the proprioception issue before trial began (having consulted with Dr. Traurig about it), and that they should not have been sur
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