       IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                              January 2015 Term
                                                                 FILED
                               _____________              February 12, 2015
                                                              released at 3:00 p.m.
                                                            RORY L. PERRY II, CLERK
                                No. 14-0948               SUPREME COURT OF APPEALS
                                                               OF WEST VIRGINIA
                               _____________


                    STATE OF WEST VIRGINIA EX REL.
                       DR. TODD TALLMAN, M.D.,
                              Petitioner,

                                     V.

               THE HONORABLE SUSAN B. TUCKER,
     JUDGE OF THE CIRCUIT COURT OF MONONGALIA COUNTY;
      PATRICIA M. POWELL, AS EXECUTRIX OF THE ESTATE OF
   ROBERT L. POWELL; AND PATRICIA M. POWELL, INDIVIDUALLY,
                          Respondents.

  ____________________________________________________________________

                ORIGINAL PROCEEDING IN PROHIBITION

                            WRIT GRANTED
  ____________________________________________________________________

                        Submitted: February 4, 2015
                          Filed: February 12, 2015

Stephen R. Brooks                              Frances C. Whiteman
Travis A. Prince                               Kristine A. Burdette
Flaherty Sensabaugh Bonasso                    Whiteman Burdette
Morgantown, West Virginia                      Fairmont, West Virginia
Attorneys for Petitioner                       Attorneys for Respondents

JUSTICE DAVIS delivered the Opinion of the Court.

CHIEF JUSTICE WORKMAN and JUSTICE LOUGHRY concur and reserve the
right to file concurring opinions.
                              SYLLABUS BY THE COURT

              1.      Under Rule 26(e)(1) of the West Virginia Rules of Civil Procedure, a

party responding to a discovery request is under a continuing duty to make a seasonable

supplementation to its original answers to any question asking for the identity of an expert

witness expected to be called at trial, the subject matter on which the expert will testify, and

the substance of his or her testimony.



              2.      Factors that may assist a court in deciding whether to permit late

supplemental expert witness disclosure include: (1) the explanation for making the

supplemental disclosure at the time it was made; (2) the importance of the supplemental

information to the proposed testimony of the expert, and the expert=s importance to the

litigation; (3) potential prejudice to an opposing party; and (4) the availability of a

continuance to mitigate any prejudice.




                                               ii
Davis, Justice:

              Petitioner, Dr. Todd Tallman (ADr. Tallman@), invokes this Court=s original

jurisdiction seeking a writ of prohibition to prevent enforcement of an order of the Circuit

Court of Monongalia County that precludes his experts from rendering opinions that were

set out in a supplemental discovery disclosure. The Respondent, Patricia Powell (AMs.

Powell@), contends that the circuit court=s order is correct and that Dr. Tallman has failed to

satisfy the standard for issuance of the writ. Upon our review of the parties= briefs and

oral arguments, the appendix records designated for our consideration, and the pertinent

authorities, we find that Dr. Tallman has demonstrated sufficient grounds to warrant

issuance of the requested writ of prohibition. Therefore the writ is granted.



                                                I.

                        FACTUAL AND PROCEDURAL HISTORY

              On July 27, 2012, Ms. Powell filed the instant medical malpractice action

against Dr. Tallman.1 The complaint alleged that Dr. Tallman was medically negligent in

causing the death of Ms. Powell=s spouse, Robert L. Powell.2 Specifically, the complaint

alleged that Dr. Tallman failed to diagnose Mr. Powell=s appendicitis, which resulted in

complications that caused his death on October 28, 2010.

              1
                  An amended complaint was filed in August 2012.
              2
                  Ms. Powell filed the action individually and as executrix of the estate of Mr.
Powell.

                                                1
              After the pleadings were filed, the trial court entered a scheduling order.

Relevant to this proceeding, the scheduling order required Ms. Powell to disclose her

experts by May 31, 2013, and Dr. Tallman was required to disclose his experts by July 12,

2013. The discovery cut-off date was set for January 24, 2014. The record indicates that

Ms. Powell did not comply with the scheduling order=s expert disclosure deadline. It

appears that Ms. Powell did not mail expert disclosure information to Dr. Tallman=s

counsel until July 3, 2013. A letter in the record of this case, dated July 3, 2013, and

drafted by counsel for Dr. Tallman, appears to suggest that the parties had a telephone

conversation wherein it was Aagreed that [Dr. Tallman] shall have a six (6) week extension

to provide his expert witness designation.@ This extension appears to relate to Ms.

Powell=s late disclosure of her experts.



              In a letter addressed to counsel for Ms. Powell and dated July 31, 2013,

counsel for Dr. Tallman acknowledged receipt of the expert disclosure information.

However, the letter indicated Ms. Powell=s expert disclosure was insufficient and did not

meet the requirements of Rule 26(b)(4) of the West Virginia Rules of Civil Procedure.

The letter further indicated that Dr. Tallman would not make his expert disclosure Auntil

such time as the required information is received from you.@ In a follow-up letter to

counsel for Ms. Powell, dated November 12, 2013, counsel for Dr. Tallman complained

that he had not received the requested supplemental expert disclosure.         The letter

concluded: AIf we do not receive a supplemental expert witness disclosure from you by

                                            2
November 18, 2013, we will be forced to file a motion to compel the same with the Court.@



             The record indicates that, even though Dr. Tallman had not received the

requested supplemental expert witness disclosure, he served Ms. Powell with his expert

witness disclosure via mail on November 15, 2013. On or about November 19, 2013, Dr.

Tallman filed a motion to strike and preclude testimony by Ms. Powell=s expert witnesses

or, in the alternative, to compel complete expert witness disclosure. While this motion

was pending, it appears that the circuit court entered a new scheduling order on March 6,

2014. Under the new scheduling order, the discovery deadline was extended to July 14,

2014.



             On or about April 9, 2014, a hearing was held on Dr. Tallman=s pending

motion. At the conclusion of the hearing, an agreed order was entered on May 27, 2014.

In the agreed order, the circuit court denied Dr. Tallman=s motion to strike and preclude

testimony by Ms. Powell=s expert witnesses. However, the agreed order also indicated

that,

             with regard to [Ms. Powell=s] expert witness disclosure of Dr.
             Leonard Milewski, the parties, in an effort to compromise,
             have agreed to permit [Ms. Powell=s] counsel to supplement
             her expert witness disclosure of Dr. Leonard Milewski by
             using the contents of the screening certificate of merit prepared
             and signed by Dr. Leonard Milewski.


             Ms. Powell served the supplemental disclosure of her expert, Dr. Milewski,

                                            3
on June 3, 2014. Dr. Tallman thereafter deposed Dr. Milewski on June 19, 2014.

Subsequent to obtaining a transcript of Dr. Milewski=s deposition, Dr. Tallman had his two

experts review the transcript. Dr. Tallman=s experts revised their opinions after reading

Dr.   Milewski=s    deposition    and    reviewing   additional   discovery   information.

Consequently, on July 29, 2014, Dr. Tallman served Ms. Powell with a supplemental

expert witness disclosure that contained revised opinions by his expert witnesses.



              Ms. Powell filed a motion to exclude from trial the opinions contained in Dr.

Tallman=s supplemental expert witness disclosure. The basis for the motion was that

A[t]he disclosure was made to [Ms. Powell=s] counsel a significant time after the deadline

for making any such disclosures.@ The trial court granted the motion. Dr. Tallman

thereafter instituted this proceeding.



                                            II.

                         STANDARD FOR ISSUANCE OF WRIT

              Our standard for determining whether to issue a writ of prohibition has been

formulated as follows:




                                             4
                     In determining whether to entertain and issue the writ of
              prohibition for cases not involving an absence of jurisdiction
              but only where it is claimed that the lower tribunal exceeded its
              legitimate powers, this Court will examine five factors: (1)
              whether the party seeking the writ has no other adequate
              means, such as direct appeal, to obtain the desired relief; (2)
              whether the petitioner will be damaged or prejudiced in a way
              that is not correctable on appeal; (3) whether the lower
              tribunal=s order is clearly erroneous as a matter of law; (4)
              whether the lower tribunal=s order is an oft repeated error or
              manifests persistent disregard for either procedural or
              substantive law; and (5) whether the lower tribunal=s order
              raises new and important problems or issues of law of first
              impression. These factors are general guidelines that serve as
              a useful starting point for determining whether a discretionary
              writ of prohibition should issue. Although all five factors need
              not be satisfied, it is clear that the third factor, the existence of
              clear error as a matter of law, should be given substantial
              weight.

Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). We will

consider these factors in our analysis of the parties= argument.



                                              III.

                                        DISCUSSION

              This case presents a single issue for resolution. That issue is whether the

trial court=s decision to exclude the additional opinions by Dr. Tallman=s experts was

clearly erroneous as a matter of law.3 We believe that it was.


              3
               Ms. Powell argues unpersuasively that Dr. Tallman cannot satisfy any of the
factors under Berger. We disagree and find that the third factor in Berger is applicable in this
case.


                                               5
              It has been recognized, and we now hold, that, under Rule 26(e)(1) of the

West Virginia Rules of Civil Procedure,

              Aa party responding to a discovery request is under a

              continuing duty to make a seasonable supplementation to its

              original answers to any question asking for the identity of an

              expert witness expected to be called at trial, the subject matter

              on which the expert will testify and the substance of his

              testimony.@

Franklin D. Cleckley, Robin Jean Davis, and Louis J. Palmer, Jr., Litigation Handbook on

West Virginia Rules of Civil Procedure, ' 26(e)(1) (4th ed. 2012) (quoting Hancock v.

Hobbs, 967 F.2d 462 (11th Cir. 1992)). In other words, the rule Aplaces an affirmative

duty on an attorney to . . . supplement disclosure to his adversary.@ Arthur v. Atkinson

Freight Lines Corp., 164 F.R.D. 19, 20 (S.D.N.Y. 1995). See Estate of Fout-Iser ex rel.

Fout-Iser v. Hahn, 220 W. Va. 673, 680, 649 S.E.2d 246, 253 (2007) (Davis, C.J.,

dissenting) (A[W]hen a party has disclosed the identity of an expert witness and the subject

matter about which the expert is expected to testify, he/she is bound, also, to disclose any

new information he/she acquires in this regard.@). Moreover, the rule has an express

enforcement provision. Rule 26(e)(1) provides Athat if supplementation is not made as

required by the rule, the court, upon motion or upon its own initiative, may impose an

appropriate sanction as provided for under Rule 37.@           Cleckley, et al., Litigation

                                             6
Handbook, ' 26(e)(1). See Jenkins v. CSX Transp., Inc., 220 W. Va. 721, 727, 649 S.E.2d

294, 300 (2007) (affirming trial court decision to prohibit certain testimony by expert

witness because of failure to supplement discovery response). See also Williams v.

Roberts, 202 F.R.D. 294, 296-97 (M.D. Ala. 2001) (AIf a party does not seasonably

supplement its disclosures, a court does not abuse its discretion by limiting the witness=s

testimony to what has been timely disclosed.@). Finally, and we so hold, factors that may

assist a court in deciding whether to permit late supplemental expert witness disclosure

include:

              (1) the explanation for making the supplemental disclosure at

              the time it was made; (2) the importance of the supplemental

              information to the proposed testimony of the expert, and the

              expert=s importance to the litigation; (3) potential prejudice to

              an opposing party; and (4) the availability of a continuance to

              mitigate any prejudice.

Tucker v. Ohtsu Tire & Rubber Co., 49 F. Supp. 2d 456, 461 (D. Md. 1999).



              Based upon the procedural facts of this case, we find as a matter of law that

Dr. Tallman Aseasonably@ supplemented his expert witness disclosure.



              We begin by noting that the circuit court=s order finds fault with Dr. Tallman

for supplementing his expert witness disclosure fifteen days after the discovery cut-off

                                             7
date. However, the order implicitly pardons Ms. Powell for not filing her initial expert

witness disclosure until thirty-three days after the deadline for making such disclosure. The

bedrock of our judicial system is fairness to all parties. In our view of the record, fairness

was not shown to Dr. Tallman.4

              In addition to Ms. Powell disclosing her experts thirty-three days after the

circuit court=s initial scheduling order required her to make such disclosure, Dr. Tallman

found Ms. Powell=s expert disclosure was deficient. As a result of the inadequacy of Ms.

Powell=s expert disclosure, Dr. Tallman was forced to file a motion to compel disclosure in

a manner that was required by Rule 26(b)(4). We find the late and inadequate disclosure

by Ms. Powell was the cause of Dr. Tallman=s inability to fully disclose the opinions of his

experts within the initial and subsequent discovery cut-off dates.



              The circuit court=s order does not give any weight to the fact that its approval

of the May 27 agreed order required Ms. Powell to furnish Dr. Tallman with an expert

witness disclosure that was in compliance with Rule 26(b)(4), as expressly required in the


              4
               Under the facts of this case, it is of no moment that Dr. Tallman may have
acquiesced in Ms. Powell submitting her initial expert disclosure after the cut-off date. It is
common practice for lawyers to mutually agree to conduct discovery in a manner that is not
always consistent with a circuit court=s scheduling order. The critical issue here is that Dr.
Tallman and Ms. Powell appear to have reached an understanding that allowed late disclosure
by her, but she sought to have Dr. Tallman sanctioned for a supplemental disclosure that was
outside the time frame of the scheduling order. It is simply unacceptable for the trial court to
allow Ms. Powell to manipulate the litigation process in this manner.


                                               8
initial scheduling order. The circuit court determined that, because Ms. Powell was only

restating information found in her screening certificate of merit, this did not justify Dr.

Tallman=s late disclosure. We disagree.



              The critical issue was not that Ms. Powell was merely restating information

found in her screening certificate of merit. Rather, the critical issue for Dr. Tallman was

that he now knew exactly who Ms. Powell=s expert was and what opinions he would rely

upon. While it is true that Dr. Tallman could have deposed Dr. Milewski as soon as he was

listed as an expert, a party is not required to depose an expert in the dark. The very basis of

expert disclosure under Rule 26(b)(4) is so that a party does not have to go on a fishing

expedition in trying to determine what opinions the expert will rely upon at trial.



              We have reviewed Ms. Powell=s initial expert witness disclosure, and we

agree with Dr. Tallman that this disclosure falls completely below the minimal disclosure

requirements of Rule 26(b)(4). We tersely addressed this issue in Kincaid v. Southern

West Virginia Clinic, Inc., 197 W. Va. 145, 475 S.E.2d 145 (1996). In Kincaid, the trial

court dismissed the plaintiff=s claim for discovery violations, including failure to provide

expert witness disclosure. On the date the trial court dismissed the action, the plaintiff

filed an expert witness disclosure. This Court rejected the disclosure for the following

reason:

              The Appellant=s response to repeated orders to disclose Rule

                                              9
              26(b)(4) information, when finally filed on the day the court
              dismissed the action, merely listed four doctors and their
              addresses and specialties, and concluded:

                             The above physicians have reviewed the
                     medical records in this case and concluded that,
                     to a reasonable degree of medical certainty, the
                     defendants herein failed to timely diagnose the
                     plaintiff=s decedent=s condition.

              Such a summary cannot be said to Astate the subject matter on

              which the expert is expected to testify,@ or to Astate the

              substance of the facts and opinions to which the expert is

              expected to testify and a summary of the grounds for each

              opinion,@ . . . as ordered by the circuit court.

Kincaid, 97 W. Va. at 148, 475 S.E.2d at 148.



              In the instant proceeding, Ms. Powell=s expert witness disclosure merely

listed the names of six medical experts and a few curriculum vitae. Apparently it was not

until the hearing on the motion to compel that it was determined that only one of the six

physicians named as experts by Ms. Powell, Dr. Milewski, was actually going to be treated

as an expert. Most importantly, it was only after the hearing concluded that Ms. Powell

complied with the initial scheduling order by tendering an expert witness disclosure that set

out a summary of Dr. Milewski=s findings and opinions. Had Ms. Powell presented her

expert witness disclosure in compliance with Rule 26(b)(4), as required by the initial

scheduling order and within the time period of the scheduling order, not thirty-three days

                                              10
late, Dr. Tallman could have timely deposed Dr. Milewski and thereafter rendered a

timely expert witness disclosure without having to provide supplemental disclosure.



              Moreover, even if we assumed that Ms. Powell was not at fault in causing Dr.

Tallman to supplement his expert witness disclosure after the discovery cut-off date, we

still would be hard-pressed to find that his experts should be prevented from rendering the

additional opinions.      There was no evidence showing that Ms. Powell suffered any

prejudice as a result of the late disclosure. The supplemental disclosure was made only

fifteen days after the discovery deadline, and six weeks from the trial date. Even though

the record supports Dr. Tallman=s assertion that Ms. Powell did not engage in any

meaningful discovery,5 she still had sufficient time to prepare for the additional expert

opinions. Moreover, Ms. Powell could have ultimately sought a continuance if she

wished to finally engage in discovery by taking the depositions of Dr. Tallman=s experts.



              Finally, we also find that the supplemental disclosure information was

relevant and important to the litigation. The supplement disclosed eleven additional

opinions by Dr. Tallman=s experts.




              5
                  Ms. Powell failed to depose Dr. Tallman=s experts based upon their initial
opinions.


                                              11
                                            IV.

                                     CONCLUSION

              The record in this case demonstrates that the circuit court committed error as

a matter of law in precluding Dr. Tallman=s experts from presenting their additional

opinions at trial.   Therefore, the writ prayed for herein is issued, and we prohibit

enforcement of the circuit court=s September 19, 2014, order granting Ms. Powell=s motion

in limine to exclude the additional opinions of Dr. Tallman=s experts.



                                                                             Writ Granted.




                                            12
