 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Scott v. Grader3/5/2001
The appellant asks us to decide whether the tax returns and 1099 forms of expert witnesses are discoverable, an issue Washington courts have not yet addressed. We do not find the issue to be squarely presented in this appeal of a trial court order excluding an expert witness. Instead, the issue is whether a trial court may exclude the testimony of a late-disclosed expert witness who failed to produce any financial or employment records, when the court had earlier imposed an unchallenged order requiring that the witness permit all 'material discovery' as a condition for being allowed to testify at all. The court acted within its broad discretion, and we affirm.
Appellant Diana Grader rear-ended Shelley Scott's car. Scott filed a personal injury lawsuit against Grader. During the discovery period, defendant Grader reserved the right to request a CR 35 medical examination of Scott, but the discovery cutoff date of October 25, 1999 passed without Grader making such a request. The only expert witnesses in the case at this point were those who had treated Scott.
Because Grader had liability insurance limits of only $25,000.00, Scott contemporaneously pursued a claim for underinsured motorist coverage with her own insurance company, Allstate. Scott's claim was that the collision caused her to suffer migraine headaches. Pursuant to the cooperation clause of the policy, Allstate required Scott to undergo a medical examination by Dr. Lawrence Murphy. Dr. Murphy examined Scott on September 27, 1999, and submitted a report that was considered in the arbitration of the underinsured motorist claim on November 1. Based on his examination and review of her medical records, Dr. Murphy reported his opinion that Scott suffered from a pre-existing headache syndrome that was only temporarily exacerbated by the car accident.
Grader does not argue that Scott was obligated to share Dr. Murphy's report with her, but Grader did find out about it. She listed Dr. Murphy as her only expert medical witness on November 22, a month after the discovery cutoff. She then noted a perpetuation deposition for December 7. Scott objected, and the matter came before the trial court on cross motions: Grader's motion for leave to videotape Dr. Murphy's testimony for presentation at trial, and Scott's motion to exclude Dr. Murphy due to his untimely designation as a witness. With trial set for December 13, Scott said she would not have enough time after the deposition to obtain expert testimony responding to Dr. Murphy's testimony.
On December 2, the court entered an order allowing Grader to take a videotape deposition of Dr. Murphy for perpetuation, on the condition that Scott be allowed to take a discovery deposition first at Grader's expense. The court added a further condition: 'plaintiff may move in limine to exclude the testimony if the witness refuses to permit any material discovery.'
The following day, Friday, December 3, Scott delivered to Dr. Murphy a subpoena duces tecum. The subpoena requested a variety of documents, including Dr. Murphy's tax returns and supporting schedules, employment agreements with insurance companies and the Department of Labor and Industries, documents pertaining to Dr. Murphy's employment doing independent medical examinations and consulting services, and records showing any financial relationships with insurance companies. At the deposition on Tuesday, December 7th, Dr. Murphy produced only one document: Scott's medical chart.
The next day, Scott moved in limine to exclude the testimony of Dr. Murphy for his failure to produce documents responsive to the subpoena. The court granted the motion. The trial proceeded, resulting in judgment
Page 1 2 3 4 Washington Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|