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Tuck v. Healthcare Authority of the City of Huntsville11/27/2002
ice that Cantrell's qualifications were a potential problem if further discovery of her educational and employment background supported the Hospital's motion to strike. Cantrell cannot be allowed to testify as an expert, in view of her lack of qualifications, simply because Tuck made an incorrect assumption as to the sufficiency of her credentials.
Tuck next argues that the trial court abused its discretion and prejudiced his case in not ordering a mistrial after it refused to allow Buchmann to testify as an expert. The trial court refused to allow Buchmann to testify because he was not disclosed in Tuck's answers to the Hospital's interrogatories as an expert as required by Rule 26, Ala. R. Civ. P. Rule 26(b)(4)(A)(i) provides:
"A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion."
Tuck argues that Buchmann should have been allowed to testify despite Rule 26 because, he says, at the time he responded to the Hospital's interrogatories, he did not expect to call Buchmann as an expert witness. Tuck attempted to call Buchmann as a witness only after the trial court refused to allow Cantrell, whom Tuck had designated as an expert witness, to testify. Tuck states that had he known that Cantrell would be disqualified, he would have designated Buchmann in his answers to the interrogatories. Tuck also contends that the deposition testimony of Buchmann, as the corporate representative of the Hospital, was material and relevant to the applicable standard of care in positioning and maintaining belt restraints. Tuck asserts that a "manifest necessity" for a mistrial was created when the trial court did not let Buchmann testify as to the standard of care. Tuck also argues that allowing Buchmann to testify would not have been an unfair surprise to the Hospital, because Buchmann had already been deposed by Tuck and was featured in a training video that was presented at trial.
Tuck's arguments are without merit. The trial court did not abuse its discretion in refusing to allow Buchmann to testify as an expert witness and in denying Tuck's motion for a mistrial. This Court has held that it is not an abuse of discretion to disallow an expert's testimony when the expert was not timely identified in answers to interrogatories. See, e.g., Coca-Cola Bottling Co. United, Inc. v. Stripling, 622 So. 2d at 887-88; CSX Transportation, Inc. v. Battiste, 578 So. 2d 1065, 1067-68 (Ala. 1991); Electrolux Motor AB v. Chancellor, 486 So. 2d 414, 416-18 (Ala. 1986). Tuck did not designate Buchmann as an expert witness in response to the Hospital's interrogatories, as required by Rule 26. Tuck's assertion that had he known that Cantrell was going to be disqualified he would have designated Buchmann provides no legal basis for finding that the trial court erred or abused its discretion in not allowing Buchmann to testify as an expert, especially where Tuck was on notice that the credentials of the expert he had designated were being vigorously challenged.
In addition, Tuck has made no showing that Buchmann would have met the requirements of ยง 6-5-548. Even if Buchmann had met all the requirements, there is no evidence indicating that he would have testified that Cowan and Mizelle had breached the standard of care as to Virginia Tuck. The deposition testimony Tuck points to as addressing the standard of care contains no mention of the standard of care or whether the standard was breach
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