noting that we afford broad discretion under the West Virginia Rules of Civil Procedure for courts to sanction parties, and re-deposing an expert witness would have been appropriate in that case
How later courts described this case
- noting that we afford broad discretion under the West Virginia Rules of Civil Procedure for courts to sanction parties, and re-deposing an expert witness would have been appropriate in that case
- affirming trial court decision to prohibit certain testimony by expert witness because of failure to supplement discovery response
- circuit court did not abuse its discretion when it prohibited an expert witness from relying on certain test results which had not been disclosed as a basis for his opinions
Written by the judges who cited it.
The opinion
DAVIS, C.J.,
concurring:
(Filed May 21, 2007)
In a mere matter of days, this Court has issued opinions in two strikingly similar cases. Both of these cases required expert testimony to provide causation evidence as to the plaintiffs’ injuries. In both of these cases, the plaintiffs failed to supplement their expert disclosures, as required by West Virginia Rule of Civil Procedure 26(e)(1)(B), to alert the defendants as to the expanded scope of them experts’ testimony. And in both cases the circuit courts properly ruled in favor of the defendants, recognizing the plaintiffs’ failure to so comply. However, in rendering a decision in these cases, the majority of this Court has not ruled consistently. In the case of Estate of Fout-Iser ex rel. Fout-Iser v. Hahn, 220 W. Va. 673 , 649 S.E.2d 246 (2007), the majority of this Court reversed the circuit court’s order essentially excusing the plaintiffs in that case from complying with the requirements of Rule 26(e)(1)(B); I dissented from that opinion. In the case sub judice, however, the majority has correctly affirmed the sanctions imposed upon the plaintiff by the circuit court. 1 Because the majority opinion in this case appreciates the importance of enforcing the West Virginia Rules of Civil Procedure “to secure the just, speedy, and inexpensive determination of every action,” 2 1 concur.
. That is not to say, however, that I necessarily would have chosen to impose the same sanctions upon the plaintiff had I been in the trial court’s shoes. Be that as it may, a trial court has discretion to impose sanctions for discovery violations, and, absent an abuse of such discretion, the trial court’s ruling must stand. See W. Va. R. Civ. P. 37 (authorizing trial court to impose sanctions for "[failure to cooperate in discovery’’); Syl. pt. 1, in part, McDougal v. McCammon, 193 W.Va. 229 , 455 S.E.2d 788 (1995) (”[T]he West Virginia Rules of Civil Procedure allocate significant discretion to the trial court in making ... procedural rulings. Thus, rulings on ... the appropriateness of a particular sanction for discovery violations are committed to the discretion of the trial court. Absent a few exceptions, this Court will review ... procedural rulings of the circuit court under an abuse of discretion standard.”).
. W. Va. R. Civ. P. 1.