Court Excludes Pediatric Neurologist Expert’s Testimony on Neurosurgery Standard of Care

The appellant claimed the defendant neurosurgeon didn’t recommend further treatment or testing after diagnosing her with a tethered spinal cord. As a result, her condition worsened, and she became a paraplegic. 

Wendy Ketner, M.D.

Written by
— Updated on November 10, 2021

Court Excludes Pediatric Neurologist Expert’s Testimony on Neurosurgery Standard of Care

Court: Supreme Court of Appeals of West Virginia
Jurisdiction: Federal
Case Name: Kiser v. Caudill
Citation: 2001 W. Va. LEXIS 49

The appellant retained a pediatric neurologist expert witness. However, the trial court held that the expert was unqualified to opine on the standard of care for neurosurgeons. The appellant then hired a neurosurgeon expert witness, but she missed the deadline to provide a notice of her prospective expert witness. 

Facts

The appellant was born with various congenital spinal abnormalities. A neurosurgeon diagnosed her with a tethered spinal cord. However, the neurosurgeon did not explain its importance or suggest further treatment or research. The appellant’s condition worsened after 10 years of age, and she developed paraplegia indefinitely.

The appellant first proposed that a pediatric neurologist be her expert witness. However, the witness acknowledged that he could not testify about the standard of care applicable to neurosurgeons. The court limited his testimony to neurology.

The appellant did not provide a formal notice of her prospective neurosurgeon expert witness until after the cut-off deadline for the submission of evidence before the original date of the trial. The appellant sought to have the late-disclosed witness accepted as an expert, but the court refused.

The Appellant’s Neurosurgery Expert Witness

The trial court determined that a board-certified pediatric neurologist was unqualified to testify regarding the standard of care required of a neurosurgeon. Thus, the court did not allow the pediatric neurologist to testify about how a neurosurgeon would perform surgery involving a tethered spinal cord. Furthermore, the expert couldn’t opine on the skills required of a neurosurgeon. The court permitted the expert to testify only about the diagnosis and comprehensive treatment of tethered spinal cords.

The court didn’t believe that the circuit court violated its discretion by restricting the testimony to the area of neurology. The pediatric neurologist deposed that he was simply a specialist in recommending patients to neurosurgeons. He was not an expert in the field of neurosurgery. The expert witness did not know about the standard of care for the surgery of the tethered spinal cord.

Discussion

The court noted that at the pre-trial hearing, the circuit court had rejected the appellant’s motion for a continuation of the trial. The circuit court had also denied the appellant’s neurosurgery expert. The court noted that the appellant had not, in due time, revealed the expert witness.

The court assumed the circuit court’s initial ruling precluding the neurosurgery expert witness from testifying was correct. The appellant didn’t file a motion asking the neurosurgery expert to be allowed to testify as an expert witness in time. The appellant filed the motion after the end of the time limit in the scheduling order. The court noted the call would’ve been prejudiced if the neurosurgery expert witness had been allowed to testify. This was because the trial was scheduled to begin just a few days later.

The court noted that failure to timely disclose expert witness is a serious offense. However, in this case, the behavior was an isolated occurrence. There was no proof of a history of misconduct in this lawsuit concerning disclosure matters. The appellant submitted that she did not reveal the neurosurgery expert witness in due time for a reason. She initially believed the pediatric neurologist would be able to provide the requisite expert testimony. When his statement was challenged, she decided the neurosurgery expert witness was also going to testify. The court noted that the late filing, together with the appellant’s inability to file such a motion, justified the original decision of the circuit court. The circuit court’s decision was to exclude the testimony of the neurosurgery expert witness.

The court also noted that this lawsuit had not been heard for another two years after the neurosurgery expert witness was identified. For this reason, it concluded that the circuit court erred by excluding his evidence.

Ruling

The court granted and denied in part the appeal against the circuit court decision.

Key Takeaways for Experts

It’s important to align your expertise with what you’re opining on. In this case, the trial court held that the pediatric neurologist expert witness was unqualified. The pediatric neurologist couldn’t opine on the standard of care required of a neurosurgeon. He was not an expert in neurosurgery. The pediatric neurologist was a specialist in recommending patients to neurosurgeons. Your background and experience should match what you’re testifying about. Otherwise, it becomes easier for the opposing counsel to challenge your credibility.

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