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Bruwaene v. Barclay Seafood1/31/2000
s significantly different from the earlier CAT scan report indicating bulging discs. He conceded he was not alleging that VanBruwaene had purposely withheld evidence. But he wanted 'time to have an expert review Dr. Young and his opinions.' The trial court denied the motions.
The jury returned a verdict in favor of VanBruwaene, awarding her $12,216 for past economic damages, $100,000 for general damages and $75,000 for future economic (medical ) damages. Barclay challenges evidentiary decisions and the amount of future medical damages.
DECISION
Barclay first contends that Dr. Young's testimony should have been excluded or the trial continued because his opinion was not timely disclosed. We disagree.
The parties were required to disclose their experts' opinions and qualifications. The abuse of discretion standard applies to the trial court's decision whether to reject undisclosed evidence as a discovery sanction. With regard to alleged discovery violations, "it is an abuse of discretion to exclude testimony as a sanction absent any showing of intentional nondisclosure, willful violation of a court order, or other unconscionable conduct." The trial court found no such intentional nondisclosure, nor does Barclay allege such improprieties. We also review the denial of a motion to continue trial for a manifest abuse of discretion and a showing of prejudice to the moving party.
Barclay relies primarily on case law approving the exclusion of expert witness testimony where the witness has not been timely disclosed. That authority does not require reversal in this case because Young's identity as a witness was timely disclosed. VanBruwaene disclosed his name as an expert witness at the end of June, 2- months before the end of the discovery period set by the trial court. The supplemental disclosure notified Barclay that the doctor would testify to the plaintiff's current condition, the permanency of her injuries, and prognosis. This information put Barclay on notice that Dr. Young's testimony could provide important evidence of VanBruwaene's claims. Barclay contends that Dr. Young's opinion revealed a 'new theory' of damages requiring a continuance or exclusion of his testimony. But the record reveals that in June 1998 Barclay received Dr. Bontecou's report indicating disc injuries. Yet Barclay chose not to depose either Dr. Bontecou or Dr. Young or conduct other discovery of their opinions. Nevertheless, Barclay was able to fully cross-examine Dr. Young at the perpetuation deposition. Barclay also acknowledged there was no basis to conclude that nondisclosure of the substance of Young's testimony was intentional or willful misconduct. Under these circumstances the court did not abuse its discretion in denying the motions for a continuance or exclusion of the physician's testimony.
In a related issue, Barclay argues the trial court abused its discretion in denying its motion for a CR 35 examination. He contends the alleged late discovery of Dr. Young's opinion necessitated a defense examination. This contention fails.
CR 35 provides that an order to submit to a physical or mental examination must be made on a motion for good cause shown and the person to be examined must receive notice. The trial court has discretion to decide whether the requirement of good cause has been met. 'The propriety of ordering a CR 35 examination just before or during trial depends upon the effect of a resultant delay in the proceedings and whether the defendant has shown good cause for requesting the examination at that time.'
As already discussed, Barclay had sufficient notice of the nature of VanBruwaene's injuries to decide within the discov
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