                                                                               FILED
                                                                         February 12, 2015
                                                                            released at 3:00 p.m.
No. 14-0948B State ex rel. Tallman v. Tucker                              RORY L. PERRY II, CLERK
                                                                        SUPREME COURT OF APPEALS
                                                                             OF WEST VIRGINIA

WORKMAN, C. J., concurring, joined by Justice Loughry:

              I concur with the majority=s issuance of the writ of prohibition in this matter;

however, I write separately to ensure that the majority=s new syllabus point regarding

supplementation of discovery and its application in the instant case is not misunderstood or

abused. I wholeheartedly agree that seasonable supplementation of discovery is required

by our Rules and fundamental fairness. However, adherence to these requirements does

not necessitate that an expert disclosure constitute a veritable Ascript@ from which the

expert may not stray in testifying and elucidating his opinions. This is particularly the

case with responsive criticisms or opinions, as this case poignantly illustrates.



              To be clear: West Virginia Rule of Civil Procedure 26(b)(4) does not require

an exhaustive recitation of an expert=s testimony. It requires simply that a party requested

to provide his or her expert=s opinions identify the expert, the subject matter on which the

expert will testify, Athe substance of the facts and opinions to which the expert is expected

to testify and Aa summary of the grounds for each opinion.@ W.V.R.C.P. 26(b)(4)(A)(I)

(emphasis added).1 Nor do our Rules require an expert=s testimony to be an immovable


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        By contrast, the Federal Rules of Civil Procedure require far more detailed and
exhaustive information. Federal Rule of Civil Procedure 26(a)(2) requires a written
report, prepared and signed by the witness, and must contain Aa complete statement of all
opinions the witness will express and the basis and reasons for them@ as well as Athe facts or
data considered by the witness in forming them,@ among other information.

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object that cannot adapt to the opponent=s case as it is presented. As noted in Kiser v.

Caudill, 215 W.Va. 403, 411-12, 599 S.E.2d 826, 834-35 (2004) (Starcher, J., concurring):

             An expert witness=s understanding of a case, and testimony on

             a legal opinion, can change with time. An expert witness, who

             is unfamiliar with a particular issue in a deposition, can

             become familiar with the issue after a deposition by doing

             additional research or testing. An expert brings experience to

             the courtroom, and uses that experience to assist the jury in

             understanding the facts. If the expert=s experience changes,

             resulting in a change in the expert=s opinion or other deposition

             testimony, then the party offering the expert is entitled to

             amend the expert=s testimony[.]

In fact, this potential contemporaneous evolution of an expert=s testimony is expressly

contemplated in West Virginia Rule of Evidence 703 which provides that the facts or data

upon which an expert bases an opinion or inference Amay be those perceived by or made

known to the expert at or before the hearing.@ (emphasis added).



             In the instant case, respondent Powell provided a dilatory and scant expert

witness disclosure in the form of her screening certificate of merit. The Adisclosure@

consists of a page and half, comprised primarily of recitations from the medical records.

As set forth in the disclosure, the opinion of respondent Powell=s expert, Dr. Leonard

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Milewski, consists only of the vague conclusion that respondent=s decedent died from

sepsis occasioned by petitioner=s failure to remove the decedent=s appendix earlier.

Although Dr. Milewski=s deposition testimony is not contained in the appendix record, it is

evident that upon deposition, Dr. Milewski was called upon to actually support his

generalized opinion with facts and well-founded medical conclusions. This is evident

because petitioner=s supplemental disclosures merely contradict the particulars of Dr.

Milewski=s opinion by utilizing the medical evidence and do not constitute Anew@ opinions

by any stretch of the imagination. For example, the supplemental disclosure states that

petitioner=s experts will testify that, contrary to Dr. Milewski=s testimony, the pathology

report indicated that decedent=s appendix had not ruptured, did not say that the appendix

was purulent or gangrenous, and that his blood cultures were never positive for bacteria.

In essence, the supplemental disclosure merely articulates the defense experts=

disagreement with the flawed bases of Dr. Milewski=s opinionsBdisagreement which was

manifest in petitioner=s initial disclosure which contained the substance of the defense

experts= contrary opinions and a summary of the bases.



              What our Rules require is adequate notice to an opposing party of the

evidence which will be adduced at trial such as to allow that party to prepare and respond.

As we explained in Graham v. Wallace, 214 W. Va. 178, 173-74, 588 S.E.2d 167, 184-85

(2003),

              Aone of the purposes of the discovery process under our Rules

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              of Civil Procedure is to eliminate surprise. Trial by ambush is
              not contemplated by the Rules of Civil Procedure.@ The
              discovery process is the manner in which each party in a
              dispute learns what evidence the opposing party is planning to
              present at trial. Each party has a duty to disclose its evidence
              upon proper inquiry. The discovery rules are based on the
              belief that each party is more likely to get a fair hearing when it
              knows beforehand what evidence the other party will present at
              trial. This allows for each party to respond to the other party=s
              evidence, and it provides the jury with the best opportunity to
              hear and evaluate all of the relevant evidence, thus increasing
              the chances of a fair verdict.

(quoting McDougal v. McCammon, 193 W. Va. 229, 236-37, 455 S.E.2d 788, 795-96

(1995)). The supplementation at issue is more in the nature of rebuttal; it did not

constitute a Anew@ opinion by the defense experts or an amendment to the bases for their

opinions that petitioner did not violate the standard of care. Experts are as entitled as any

witness to rebut or contradict testimony without having invariably reduced to writing their

anticipated rebuttal.   Common sense dictates that an unmitigated supplementation

requirement could result in an endless Aback-and-forth@ between competing experts that

benefits no party. The Rules do not require this practical impossibility.



              Therefore, while I do not fault petitioner=s supplementation of his initial

disclosures, and in fact believe caution certainly justified supplementation, the fact of the

matter is that such supplementation occurred; the majority=s opinion should not be read to

reach the issue of whether the supplementation was necessarily required in this instance.

Of course, had respondent Powell bothered to depose the defense experts at any point, all


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of the alleged Asurprise@ information would have presumably been fully explored. While

respondent Powell=s counsel correctly asserted during oral argument that she is under no

obligation to conduct such depositions, it is indisputable that she refuses to do so at her

own peril. Parties cannot be permitted to Ahide@ from evidence by failing to conduct

adequate discovery and then have the temerity to suggest that they are being ambushed by

the very evidence they refused to discover, all of which was readily available to them.



              Expert testimony is a dynamic creature. While our discovery rules are

designed to avoid unfair surprise and allow each party to adequately prepare and prosecute

or defend their case, the vagaries and expediencies of trial necessarily preclude dogged

adherence to written disclosures.      As noted above, I write separately to caution

practitioners against using the majority=s new syllabus points as a sword, rather than a

shield. The seasonable supplementation rule is not one of gamesmanship. Application

of the rule must be driven by fairness, with an over-arching concern with ensuring that the

parties must each be permitted to place their full case before the jury and not be hamstrung

by an unyielding requirement of absolute prescience by attorneys and experts. Experts

must be permitted to be responsive to opinions, factual bases, hypotheticals, explanations,

and the myriad of other methods which experts utilize to communicate to the jury. In my

view, any genuinely Anew@ and/or prejudicial information should be fairly apparent;

splitting hairs over the nuances of the previously disclosed opinions and Anew@ information

does little to further the purpose of our disclosure and supplementation rules. More

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importantly, such new information should ordinarily be addressed by providing an

opportunity to cure the prejudice rather than exclusion.



              With these cautionary admonitions, I respectfully concur.




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