Articles & Updates

"Western District Finds No Surprise In Expert's Testimony"

by Scott Lauck - Missouri Lawyers Weekly.

A defendant’s “surprise” witness wasn’t much of a surprise at all, according to the Missouri Court of Appeals Western District.

The appeals court on Tuesday declined to order a new trial for a man who suffered a stroke immediately after a chiropractor gave him a spinal adjustment. A Clay County jury in 2016 sided with the defendant chiropractor, Michael Hudak and his practice, I Got Your Back Chiropractic in Kansas City.

An attorney for plaintiff Tim Beverly argued on appeal that a key expert witness for the defense had offered opinions on the stand that he hadn’t shared during his earlier deposition. The Western District, however, disagreed that a surprise occurred, ruling that the witness had merely elaborated on things he’d said earlier — and that if the plaintiff’s attorney had wanted more information, more precise questions should have been asked during the deposition.

Beverly’s attorney, Daniel Thomas of Humphrey, Farrington & McClain in Independence, said medical malpractice cases are notoriously difficult to win at trial, and legislative restrictions on tort cases haven’t made them any easier. The ruling Tuesday “damn near makes it impossible to try these cases,” he said.

“This ruling essentially waters down Rule 56.01” — the Missouri court rule that governs expert witness disclosures — “to the point that I don’t know how much meaning it even has anymore,” Thomas added.

The chiropractor’s attorney, Brian Niceswanger of Evans & Dixon’s office in Overland Park, Kansas, reached the opposite conclusion. The ruling, he said, merely clarifies what lawyers ought to be doing anyway.

“I think the watchword to the bar is, you better prepare for expert depositions and not just go in and say, ‘What do you think and why do you think it?’” he said.

Beverly’s case began more than a decade ago when he fell during a December 2007 basketball game. He suffered neck pain, nausea, sensitivity to light and a severe headache on his left side for several days, but trips to emergency rooms at two hospitals failed to determine what was wrong.

His first visit to the chiropractor offered some relief. Following a spinal adjustment during his second visit, however, Beverly’s eyes rolled back in his head, his right arm and left leg shook and his speech became slurred. He was taken by ambulance to a hospital, where doctors said his fall during the basketball game had caused a vertebral-artery dissection — a tear to the inner lining of an artery in the neck that supplies blood to the brain. Beverly, then 27, lost part of his cerebellum as a result of the stroke.

Beverly’s lawsuit, filed in 2009, alleged that Hudak’s spinal adjustment had dislodged a blood clot from the injury, triggering the stroke. He argued that Hudak should not have performed the adjustment given Beverly’s “red flag” symptoms of neurologic problems — in particular, involuntary eye twitches, known as nystagmus, in Beverly’s left eye. Hudak’s records specifically mentioned that Beverly had “nystagmus present left eye.”

At trial, a defense expert, Dr. Harold Pikus, undermined that argument by testifying that Beverly could not have had nystagmus because such symptoms would have been present in both eyes. Thomas, in a brief, argued that Pikus had failed to disclose that “bombshell” in his deposition. The Western District, however, said the expert had been asked generally about the causes of nystagmus but not specifically about Hudak’s notation.

Thomas said Pikus offered at least 20 new opinions at trial, eight of which were highlighted on appeal. In each instance, the Western District found the information had been covered in more general terms during the deposition. The court also pointed out that Pikus himself had said during the deposition that “there’s certainly a lot of other specific questions that you may ask that I might have an opinion on.”

The court cited heavily a 2003 case, Sherar v. Zipper, which had warned that it was “a form of sandbagging” to let lawyers ask generalized questions during depositions and then object when more specific information came out at trial.

“The attorney deposing the witness must ask for the expert’s opinion and/or the underlying facts or data,” Judge Cynthia Martin quoted approvingly from the 2003 case. Judge Gary Witt concurred, as did Missouri Supreme Court Chief Justice Zel M. Fischer, who sat as a special judge on the case when it was argued last November at William Jewell College, Fischer’s alma mater.

Complicating matters, Thomas wasn’t the attorney who took the deposition. Shelly Dreyer of Sticklen & Dreyer in Joplin originally filed the case and took the depositions, but Thomas took over the case in 2015. Thomas said his approach did not differ from that of his predecessor, however, and he said plaintiffs’ lawyers should be able to rely on experts’ assertions that they’ve said what they mean to say.

“We had a right to know what their opinions were going to be, and now there’s this carved-out loophole that essentially says, if you didn’t ask them if they had an opinion on an issue that you don’t know they have an opinion on … then your objection is meritless,” he said.

Niceswanger, however, said he thinks plaintiffs’ attorneys sometimes ask strategically vague questions during depositions to avoid revealing too much to the other side.

“Part of what I hear the court saying in this Beverly case is, you can’t really have your cake and eat it too,” he said.

The case is Beverly v. Hudak, WD80092.

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