Gavel and Stethoscope on Reflective Table

Indiana Court Upholds Refusal to Allow Witness in Med Mal Trial

Written on Tuesday, September 11th, 2018 by Kimberly DelMonico
Filed under: ExpertWitness

The Indiana Court of Appeals has affirmed a jury verdict in favor for a doctor who was sued for malpractice and ruled that the trial court did not err in limiting the plaintiff’s evidence.

Death of Patient

On October 21, 2009, 19-year-old Jay Shaw died from cardiac arrest during a cystoscopy and stent replacement procedure.  Shaw had previously received a kidney transplant.  Shaw underwent the procedure with his transplanted kidney while diagnosed with pneumonia and acute renal failure.

Medical Malpractice Lawsuit

In October 2011, Shaw’s father, James Shaw, filed a medical malpractice action against Dr. Chandra Sundaram and others with the Indiana Department of Insurance.  A Medical Review Panel found in favor of Dr. Sundaram and the other defendants.

In November 2013, Shaw filed a negligence action against Sundaram on behalf of his son’s estate.

During the discovery process, Shaw’s counsel failed to provide the court with timely information about his expert witnesses.  The trial court had required Shaw to file all expert disclosures no later than 120 days before trial.  Prior to the September 2015 deadline, Shaw had identified two experts by name only and requested an extension of time to provide additional experts.  On the date of the new deadline, Shaw provided an additional disclosure, stating that “[i]t is anticipated that Joye Carter, M.D. will testify as to cause of death[.]”

In September 2016, Shaw served a supplemental final witness list, including Dr. Allen Griggs for the first time.  Dr. Sundaram’s counsel objected to the addition of Dr. Griggs and asked if Shaw intended to use Dr. Griggs at trial to inform him immediately.

In February 2017, Shaw served supplemental answers to interrogatories, including the death opinions of Dr. Griggs for the first time.  Shaw moved the court to permit him to substitute Dr. Griggs for Dr. Carter because he had experienced difficulty contacting Dr. Carter after her out-of-state move.

The trial court denied Shaw’s motion and barred Dr. Griggs from testifying.  The court said that it would be “highly prejudicial” to permit the substitute of an expert witness just 47 days before a two week jury trial.  When Shaw requested to call Dr. Griggs as a witness at trial, the trial court denied it again.

The jury returned a verdict in favor of Dr. Sundaram.

Indiana Court of Appeals

Shaw appealed the trial court’s ruling, arguing that it had erred by denying his request to substitute Dr. Griggs for another expert witness and by denying his request to call Griggs as a rebuttal witness at trial.

The Indiana Court of Appeals ruled that the trial court had acted within its discretion to deny Shaw’s request for Griggs to be called as an expert witness. The court noted that there was a lengthy history of discovery violations and a failure to timely identify Griggs and his opinions.  The court also stated, “We also note that even if we had found the decision erroneous, we would have no way of determining whether the error was reversible or not as Shaw did not make an offer of proof regarding what Dr. Griggs’s testimony would have been; consequently, we could not evaluate its probable impact on the jury.”

About Kimberly DelMonico

Kimberly DelMonico is a licensed attorney in New York and Nevada. She received her law degree from William S. Boyd School of Law at University of Nevada, Las Vegas and her undergraduate degree from New York University, where she studied psychology and broadcast journalism.

About Kimberly DelMonico

Kimberly DelMonico is a licensed attorney in New York and Nevada. She received her law degree from William S. Boyd School of Law at University of Nevada, Las Vegas and her undergraduate degree from New York University, where she studied psychology and broadcast journalism.

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