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Spurgeon v. Mruz6/28/2005
Following a jury trial of the plaintiffs' medical malpractice action, the jury found in favor of defendant Richard Mruz, M.D. The plaintiffs appeal the trial court's denial of their motion to bar the defendant's expert witness from testifying. They contend the court abused its discretion in allowing the witness to testify where the witness was not produced for a deposition until trial had commenced. We affirm.
FACTS
The plaintiffs filed their complaint on August 4, 2000, alleging defendants failed to properly treat and diagnose Pamela Spurgeon, resulting in the death of 24-week-old Jenna Spurgeon shortly after delivery.
The cause was set for trial June 6, 2003. On May 20, 2003, defendant filed a motion to continue trial date based on a conflict in his attorney's trial schedule. The trial was continued to August 15, 2003.
On August 1, 2003, the defendant filed an agreed motion to continue trial date based on the parties' inability to coordinate expert discovery of the defendant, and the fact that plaintiffs' counsel's wife was due to deliver a baby on the date of trial. A new trial date was set for December 12, 2003.
On October 24, 2003, defendant first disclosed his Rule 213 expert witness, Fred DuBoe, M.D. In the disclosure, defendant described the opinions he expected Dr. DuBoe to express in his testimony. He attached Dr. DuBoe's curriculum vitae. A deposition of Dr. DuBoe was scheduled for November 26, 2003, but defendant cancelled the deposition on November 25th.
On November 18, 2003, defendant filed a motion to continue trial date based on defendant's counsel's conflicts with two other cases set for trial. The case was set for trial on February 10, 2003. The order was marked "final trial date," and defendant's expert witness was ordered to be deposed by January 20, 2004.
Plaintiffs' counsel informed defendant he would be out of the country from January 6, 2004, until January 15, 2004, and demanded a date for the deposition of Dr. DuBoe to accommodate his absence. Defense counsel informed plaintiffs' counsel the only date Dr. DuBoe was available for a deposition was on January 16, 2004. On January 15 or 16, 2004, defendant's counsel cancelled the deposition without giving an explanation.
Defense counsel scheduled the deposition of Dr. DuBoe for Sunday evening, February 8, 2004. Plaintiffs' counsel informed defense counsel he would not be taking the deposition on that date and would seek to bar Dr. Duboe from testifying. Plaintiffs' counsel declined defense counsel's offer to schedule the deposition on February 9, 2004, one day prior to trial.
On February 10, 2004, plaintiffs filed a motion to bar Dr. DuBoe. The court denied the motion. During a hearing on the motion, the trial judge offered to schedule the deposition at any time convenient to the plaintiffs at defendant's expense. The first witnesses in the case were due to be called on February 13, 2004, following jury selection. Plaintiffs' counsel declined the offer, telling the judge it would compromise his case because he needed time to prepare for trial. The judge then suggested plaintiffs' counsel make a list of information he needed for his cross-examination of Dr. Duboe, and defendant would supply the answers in writing. Plaintiffs' counsel told the court he would make the list and give it to defense counsel, but he did not do so.
At trial, Dr. DuBoe testified as an expert witness for the defendant. Plaintiffs' counsel did not renew his objection when Dr. DuBoe was called to testify. He cross-examined Dr. DuBoe regarding his affiliation with the defendant, evident from his curriculum vitae. Counsel did not cr
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