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Bruwaene v. Barclay Seafood1/31/2000
Barclay Seafood & Meat Co., Inc., the defendant in a personal injury action, argues the trial court erred in denying its motion to exclude a physician's testimony or to grant a continuance and in denying its untimely motion for a CR 35 examination. Because the respondent, Susan VanBruwaene, disclosed the physician on her witness list nearly four months before trial and appeared for the originally scheduled CR 35 examination, Barclay fails to show that the court erred in denying the motions. We also hold that there was sufficient evidence to support the $75,000 jury award to VanBruwaene for future medical expenses.
FACTS
VanBruwaene was injured when a truck owned by Barclay rear-ended her car in December 1994. She later filed a personal injury lawsuit against Barclay. The discovery completion date was September 17, 1998, and the trial was set for November 2, 1998.
In June 1998 VanBruwaene saw neurologist David Bontecou, who performed a CT scan and diagnosed bulging vertebral discs. On June 30 VanBruwaene's attorney sent Barclay a copy of the scan report identifying the disc abnormalities. VanBruwaene was then referred to Dr. Jacob Young, a neurosurgeon. On July 13, 1998, VanBruwaene served Barclay with a supplemental witness disclosure identifying both Dr. Bontecou and Dr. Young as medical expert witnesses, describing their expected testimony: They are expected to testify about Susan M. VanBruwaene's current medical condition, the permanency of her injuries, future treatment and prognosis, the reasonableness of plaintiff's medical treatment and expenses, and future costs of care.
Dr. Young examined VanBruwaene on July 23, 1998. An MRI scan was performed, revealing disc herniation and bulging of three discs. On October 2, Dr. Young sent a report confirming 'musculoskeletal injury involving the neck and left scapular area with degenerative disc disease at the C5-6 level and mild left C7 nerve root irritation.' Barclay received the report on October 27.
Barclay scheduled a CR 35 examination on August 25 with Dr. Billington, an orthopedic surgeon. When VanBruwaene appeared for the exam with a representative from her lawyer's office, Dr. Billington refused to perform the exam because he required 48 hours' notice that a representative would be present. When Barclay attempted to reschedule the exam, VanBruwaene replied that she would not voluntarily appear a second time. Barclay did not move to compel the CR 35 exam until October 8, 1998, three weeks after the discovery deadline. Barclay also moved to extend the discovery cut-off date. The court denied the motions.
VanBruwaene scheduled Dr. Young's videotape deposition because he was not available for trial. On October 27, three days before the deposition, VanBruwaene produced her physician's records. VanBruwaene's counsel also asked if the October 30 deposition date was acceptable, or if she would 'need to move the court to shorten time for the deposition.' Barclay agreed to proceed with the deposition on October 30. But Barclay objected at the beginning of the deposition both to the lack of notice of the deposition and late discovery of the physician's records and reports. Barclay's counsel cross-examined Dr. Young extensively at the deposition.
On the first day of trial, Barclay moved to continue the trial or alternatively to exclude Dr. Young's testimony. Counsel stated that the continuance was primarily to allow the court to reconsider its initial ruling and allow a CR 35 medical examination. The other stated reason was the allegedly 'significant new evidence' contained in Dr. Young's report and results of the MRI. He contended that the MRI indicating herniation wa
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