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Shepherd v. Oliver

Filed: May 4, 1982.

BARBARA ANN SHEPHERD
v.
JAMES E. OLIVER, M.D.



Appeal by plaintiff from Lamm, Judge. Judgment entered 9 March 1981 in Superior Court, Macon County. Heard in the Court of Appeals 8 April 1982.

Martin (Robert M.), Judge. Judges Vaughn and Arnold concur.

Martin

On 12 June 1979 the defendant served upon the plaintiff interrogatories regarding any expert witnesses plaintiff intended to use at trial. Pursuant to an order compelling plaintiff to answer these interrogatories, she responded on 10 April 1980. Rule 26(e)(1)(B), N.C. Rules Civ. Proc., provides that a party who has responded to a request for discovery has a duty seasonably to supplement his response with respect to any questions directly addressed to the identity of each person expected to be called as an expert witness at trial. The sanction provision, Rule 37(b)(2)(b), N.C. Rules Civ. Proc., allows the court to make such orders as are "just" when a party fails to obey an order to provide or permit

discovery, including refusing to allow the disobedient party to introduce the designated matters into evidence.

This is not a case in which plaintiff failed or refused to answer defendant's interrogatories. See Hammer v. Allison, 20 N.C. App. 623, 202 S.E.2d 307, cert. denied, 285 N.C. 233, 204 S.E.2d 23 (1974). She filed her answers within the time specified by the court. As soon as plaintiff decided to call Dr. Malinowsky as her witness, the defendant was informed. Plaintiff's counsel made this decision when their expert, Dr. Noto, failed to testify as expected. It would have been impossible for plaintiff to supplement her response pursuant to Rule 26(e)(1) before she expected to call Dr. Malinowsky as an expert witness. Thus plaintiff did not fail to make discovery in accordance with the appropriate discovery rules.

A separate consideration is whether defendant would have suffered unfair surprise had Dr. Malinowsky's testimony been admitted. Defendant listed Dr. Malinowsky as a defense witness prior to jury selection and the jury was examined concerning him. "Evidence may have some tendency to prove a fact and still be inadmissible because its probative force is so weak that to receive it would . . . unfairly surprise the opponent. . . ." 1 Stansbury's N.C. Evidence ยง 77, p. 236 (Brandis rev. 1973); State v. Brantley, 84 N.C. 766 (1881); State v. Hugenberg, 34 N.C. App. 91, 237 S.E.2d 327, disc. rev. denied, 293 N.C. 591, 238 S.E.2d 151 (1977). In this case, however, the challenged testimony brought out on voir dire tended to show that defendant's negligence was the proximate cause of plaintiff's injury. The probative value of this testimony was great in that it would have precluded the defendant from obtaining a directed verdict. The court properly could have allowed the defendant an opportunity to prepare for this witness by granting a continuance or an opportunity to take a deposition. In this case, however, the ends of justice require that Dr. Malinowsky's testimony be admitted into evidence. See Thornburg v. Lancaster, 303 N.C. 89, 277 S.E.2d 423 (1981); Peebles v. Moore, 302 N.C. 351, 275 S.E.2d 833 (1981).

For the foregoing reasons the trial court erred in disallowing Dr. Malinowsky's testimony and in granting a directed verdict for defendant.

Reversed.

Disposition

Reversed.

19820504 ...


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