IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2003 Term
May 7, 2003
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
JESSIE L. GRAHAM,
Plaintiff Below, Appellant
DAVID A. WALLACE, D.D.S., M.S.,
Defendant Below, Appellee
Appeal from the Circuit Court of Mercer County
Honorable David W. Knight, Judge
Civil Action No. 95-CV-704-K
REVERSED AND REMANDED
Submitted: April 15, 2003
Filed: May 7, 2003
Mark R. Staun, Esq.
The Segal Law Firm
Charleston, West Virginia
Kathryn Reed Bayless, Esq.
Bayless & McFadden, L.L.P.
Princeton, West Virginia
Attorneys for Jessie L. Graham
Ancil G. Ramey, Esq.
Jason D. Stevens, Esq.
Steptoe & Johnson
Charleston, West Virginia
Darrell E. Baker, Jr., Esq.
Baker & Whitt, PLLC
Attorneys for David A. Wallace, D.D.S.,
The Opinion of the Court was delivered PER CURIAM.
JUSTICE DAVIS, deeming herself disqualified, did not participate in the decision in this
JUDGE JOHNSON, sitting by special assignment.
CHIEF JUSTICE STARCHER dissents and reserves the right to file a dissenting opinion.
JUDGE JOHNSON dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
“The West Virginia Rules of Evidence and the West Virginia Rules of
Civil Procedure allocate significant discretion to the trial court in making evidentiary and
procedural rulings. Thus, rulings on the admissibility of evidence and 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 evidentiary and procedural rulings of
the circuit court under an abuse of discretion standard.” Syllabus Point 1, McDougal v.
McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).
“Evidence which is irrelevant or immaterial and has no probative value
in determining any material issue is inadmissible and should be excluded.” Syllabus Point
1, Smith v. Edward M. Rude Carrier Corp., 151 W.Va. 322, 151 S.E.2d 738 (1966).
“A judgment will not be reversed because of the admission of improper
or irrelevant evidence, when it is clear that the verdict of the jury could not have been
affected thereby.” Syllabus Point 7, Starcher v. South Penn Oil Co., 81 W.Va. 587, 95 S.E.
This is a medical malpractice case where a jury rendered a verdict for the
appellee and defendant below, Dr. David A. Wallace, against the appellant and plaintiff
below, Jessie L. Graham. On appeal, Mr. Graham asserts that the circuit court erred in
admitting into evidence the testimony of Dr. Wallace’s expert witness, Dr. Phillip Hutt,
regarding the proper way to perform and read a radiological procedure called an arthrogram.
Because we agree with Mr. Graham, we reverse and remand for a new trial.
Mr. Graham first visited Dr. David A. Wallace, an oral and maxillofacial
surgeon, in 1984, complaining of headaches. Pursuant to Dr. Wallace’s examination of Mr.
Graham, he performed a panorex x-ray of his jaw. This type of x-ray shows a picture of the
jaw bone. Dr. Wallace suspected that Mr. Graham suffered from problems with his
The temporomandibular joint (hereinafter “TMJ”) is a ball and socket joint
located on each side of the face just in front of the ears, which connects the mandible or
lower jaw to the temporal bone of the skull. According to The Merck Manual of Medical
Information (Home Edition) 513 (Robert Berkow, M.D., et al, eds., 1997):
The [TMJ] is the most complicated joint in
the body: It opens and closes like a hinge and
slides forward, backward, and from side to side.
During chewing, it sustains an enormous amount
of pressure. The [TMJ] contains a piece of
specialized cartilage called a disk that keeps the
lower jawbone and skull from rubbing against
In this opinion, we will refer to this specialized disk as the meniscus. People with a disorder
of the TMJ may experience tenderness of the chewing muscles, clicking or locking of the
joints, or recurring headaches that do not respond to usual medical treatment. See The Merck
Manual at 513-14.
As noted above, Mr. Graham suffered from recurring headaches.
To help determine whether Mr. Graham had a TMJ disorder, Dr. Wallace sent
him to Dr. Stephen P. Raskin, a radiologist, who performed an arthrogram and a tomogram.
An arthrogram is an x-ray film of the TMJ, after the injection of contrast dye, which shows
the TMJ’s inner structures. One purpose of an arthrogram is to reveal displacement or
damage to the meniscus. In order to picture how an arthrogram works, one of the lawyers
at trial suggested that it may be helpful to think of the inside of the TMJ as a bologna
sandwich. The bread on the top is the superior compartment of the TMJ, and the bread on
the bottom is the inferior compartment. The piece of bologna in between is the meniscus.
There was testimony at trial that an arthrogram can be conducted in two
different ways. First, dye may be injected by needle into both the superior and inferior
compartments so that the shape of the meniscus shows up on the x-ray. Alternatively, dye
may be injected into the lower compartment, and if dye shows up in the superior
compartment on the x-ray, this means that the dye traveled through a tear or hole in the
meniscus. At trial, Dr. Raskin testified that he intended to inject the dye into both the
superior and inferior compartments of Mr. Graham’s TMJ in order to get an outline of his
meniscus. However, when he attempted to put the needle into the inferior compartment, he
missed and hit soft tissue. Therefore, Dr. Raskin reported the results of the arthrogram as,
“Unsuccessful (no charge) TMJ arthrography with initial filling of the superior compartment
and subsequent muscular extravasation.”
In other words, the dye missed the lower
compartment and escaped into the muscles.
Dr. Raskin also performed a tomogram which is a detailed x-ray of the jaw
bones. Dr. Raskin’s tomogram revealed “Bilateral degenerative eburnation of the condyles,
right greater than left.” In other words, the ball parts of the joints on both sides of the skull
showed a rubbing away of the bone’s surface, exposing them to motion and friction, and
resulting in roughening of the bones. This rubbing away was worse on the right side.
Based on his examination, including the results of the tomogram and
arthrogram, Dr. Wallace diagnosed Mr. Graham with degenerative joint disease of the right
TMJ and a torn meniscus. Dr. Wallace subsequently operated on Mr. Graham in June 1984,
removed the meniscus, and replaced it with a Vitek implant. Dr. Wallace testified that during
surgery he found a hole in the attachment of the ligament to the meniscus, and he considered
the meniscus to be irreparable.
In 1987, Mr. Graham returned to Dr. Wallace and had surgery performed for
the same problem on his left jaw. This time, however, Dr. Wallace did not insert an implant
because of increasing dissatisfaction with those devices in the medical community.
Dr. Wallace saw Mr. Graham in his office for the last time in June 1987. In
July 1987, Dr. Wallace received a letter from the manufacturer of the Vitek implant about
potential problems with the implant. In December 1990, the federal Food and Drug
Administration (hereinafter “FDA”) recalled Vitek implants and issued a safety alert. In
January 1991, Dr. Wallace received a letter from the FDA regarding the recall. For reasons
that are disputed, Dr. Wallace never personally contacted Mr. Graham about the recall.
Another doctor removed Mr. Graham’s Vitek implant in October 1993.
In October 1995, Mr. Graham sued Dr. Wallace in the Circuit Court of Mercer
County. In his complaint, Mr. Graham alleged:
(a) failure to properly assess the plaintiff’s
condition in 1984 in accordance with professional
criteria then known;
(b) failure to treat the plaintiff with more
conservative modalities prior to performing
surgery which involved the insertion of the
(c) failure to provide adequate follow-up
care to the plaintiff, including the failure to advise
plaintiff of any product recall or warnings issued
by professional organizations and regulatory
agencies concerning the many failures of the
(d) failure to perform any diagnostic
testing subsequent to the placement of the implant
in plaintiff which would have disclosed the failure
of the implant prior to 1993; and
(e) other negligent acts.
The original trial, held in March 1999, resulted in a verdict for Mr. Graham.
Dr. Wallace appealed to this Court, and in Graham v. Wallace, 208 W.Va. 139, 538 S.E.2d
730 (2000) (“Graham v. Wallace I”), this Court reversed and remanded. We held that the
circuit court committed reversible error in denying Dr. Wallace’s request to call two rebuttal
There was a second trial in July 2001, in which the jury returned a verdict for
Dr. Wallace. The circuit court subsequently denied Mr. Graham’s motion for a new trial, and
he now appeals to this Court.
STANDARD OF REVIEW
On appeal, Mr. Graham asserts that the circuit court committed error below by
admitting evidence at trial which should not have been admitted. With regard to the
admission of evidence, this Court has held:
The West Virginia Rules of Evidence and
the West Virginia Rules of Civil Procedure
allocate significant discretion to the trial court in
making evidentiary and procedural rulings. Thus,
rulings on the admissibility of evidence and 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 evidentiary and
procedural rulings of the circuit court under an
abuse of discretion standard.
Syllabus Point 1, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).
We have explained that “[a] trial court abuses its discretion if its ruling is based
on an erroneous assessment of the evidence or the law.” Bartles v. Hinkle, 196 W.Va. 381,
389, 472 S.E.2d 827, 835 (1996) (citation omitted). In other words, “‘[u]nder the abuse of
discretion standard, we will not disturb a circuit court’s decision unless the circuit court
makes a clear error of judgment or exceeds the bounds of permissible choices in the
circumstances.’” Hensley v. West Virginia DHHR, 203 W.Va. 456, 461, 508 S.E.2d 616, 621
(1998) (quoting Gribben v. Kirk, 195 W.Va. 488, 500, 466 S.E.2d 147, 159 (1995)). Finally,
under the abuse of discretion standard, “the specific degree of deference accorded very well
may depend on the nature of the ruling being reviewed.” Stephen L.H. v. Sherry L.H., 195
W.Va. 384, 395 n.15, 465 S.E.2d 841, 852 n. 15 (1995), superseded by statute on other
grounds as stated in Sharon B.W. v. George B.W., 205 W.Va. 594, 519 S.E.2d 877 (1999).
Accordingly, we now proceed to review the circuit court’s decision concerning the
challenged evidence to determine whether, in the context of the entire trial, the circuit court
incorrectly assessed the law or the evidence or made an impermissible choice.
We find it necessary to discuss only the first issue raised by Mr. Graham which
is whether the circuit court erred in permitting Dr. Wallace’s expert witness, Dr. Phillip Hutt,
to testify concerning the standards of care for taking and interpreting arthrograms where
these opinions were not disclosed to Mr. Graham during the course of written discovery or
through the deposition testimony of Dr. Hutt.1
At trial, one theory of Mr. Graham’s case was that Dr. Wallace misread the
results of the arthrogram performed on Mr. Graham by Dr. Raskin. Mr. Graham’s counsel
Mr. Graham also asserts that Dr. Hutt was not qualified to testify to the proper way
to perform an arthrogram. We do not find it necessary to address this assignment of error.
elicited testimony from Dr. Wallace that he did not know whether Dr. Raskin injected the
superior or inferior compartment first, but he assumed that he injected the inferior
compartment first because that is the routine way of performing an arthrogram. Dr. Raskin,
who was a fact witness called by Dr. Wallace, testified, however, that he injected the superior
Prior to calling Dr. Raskin, Dr. Wallace called Dr. Phillip Hutt to testify as an
expert in oral and maxillofacial surgery. Dr. Wallace’s counsel elicited testimony from Dr.
Hutt that, according to a professional radiology text, the proper way to perform an
arthrogram is to first inject the dye below the meniscus, in the inferior compartment. Dr.
Hutt added that “[t]here are some people that inject both spaces to show the whole shape, but
my personal feeling is the proper way to do it is to inject into the lower space[.]” He further
opined that it was within the standard of care for an oral and maxillofacial surgeon practicing
in 1984 to presume, when reading the results of an arthrogram, that the dye was first injected
into the lower space, or, inferior compartment.
Mr. Graham now asserts that it was improper for the circuit court to allow Dr.
Hutt’s testimony on the proper way to perform an arthrogram because at no time prior to trial
was Dr. Hutt’s opinion on this issue disclosed. Mr. Graham points to this Court’s holding
in Syllabus Point 5 of Prager v. Meckling, 172 W.Va. 785, 310 S.E.2d 852 (1983), which
Factors to be considered in determining
whether the failure to supplement discovery
requests under Rule 26(e)(2) of the Rules of Civil
Procedure should require exclusion of evidence
related to the supplementary material include: (1)
the prejudice or surprise in fact of the party
against whom the evidence is to be admitted; (2)
the ability of that party to cure the prejudice; (3)
the bad faith or willfulness of the party who failed
to supplement discovery requests; and (4) the
practical importance of the evidence excluded.
According to Mr. Graham, Dr. Hutt’s testimony was a surprise because during his deposition
four weeks earlier, he said nothing about the arthrogram procedure. Second, Mr. Graham’s
counsel tried unsuccessfully to cure the prejudice on cross-examination of Dr. Hutt. Third,
the failure to disclose was egregious because this was a vigorously litigated case and there
was extensive discovery. Finally, the importance of Dr. Hutt’s testimony cannot be
overstated. Mr. Graham concludes that the testimony at issue was introduced as an ambush
tactic to confuse, mislead, and prejudice.
Dr. Wallace responds that he fully disclosed Dr. Hutt’s testimony prior to trial
and that Mr. Graham could not have been surprised by it. As proof, Dr. Wallace first sets
forth in his brief a portion of his May 29, 2001, response to Mr. Graham’s interrogatories in
which he indicated that Dr. Hutt was expected to testify that “the radiographic studies
performed on the plaintiff’s jaw in 1984 demonstrated a degree of boney [sic] abnormality
consistent with advanced TMJ disease that could not have been treated successfully with
splint therapy or other non-surgical methods.” Second, Dr. Wallace points us to his March
15, 2001, witness disclosure statement which indicated, in part, that “Dr. Hutt is specifically
expected to testify concerning diagnosis, surgical technique, follow-up and recall, surgical
removal of VITEK devices, and the potential damage associated with VITEK implants.”
Third, Dr. Wallace notes Dr. Hutt’s deposition testimony, taken prior to the second trial, at
which the following questioning occurred:
[Mr. Graham’s counsel]: Following initial
contrast injection, a small amount of contract [sic]
is demonstrated in the superior compartment,
[Dr. Hutt]: Right.
[Mr. Graham’s counsel]: What’s that mean?
[Dr. Hutt]: That means one of two things. Either
he injected it into the superior compartment.
[Mr. Graham’s counsel]: Right.
[Dr. Hutt]: Or he injected it into the inferior
compartment and it wound up in the superior
compartment. That’s what it means.
[Mr. Graham’s counsel]: You don’t know, do
[Dr. Hutt]: No, I said that.
[Mr. Graham’s counsel]: Let’s assume for a
minute that he injected in the superior
[Dr. Hutt]: Hypothetically?
[Mr. Graham’s counsel]: Yeah.
[Dr. Hutt]: Okay.
[Mr. Graham’s counsel]: And it did not -what’s that word -- extravasate into the inferior
compartment. Let’s assume that, since you don’t
[Dr. Hutt]: Okay.
[Mr. Graham’s counsel]: What’s that tell you?
[Dr. Hutt]: It tells me he injected the wrong
compartment, but -- no, he injected it into the
superior compartment, that’s what it tells me.
Dr. Wallace concludes from this questioning that while Mr. Graham’s counsel chose not to
question Dr. Hutt at length about the performance of the arthrogram, it is obvious that
counsel had both an appreciation of the significance of the procedure as well as Dr. Hutt’s
opinion about the manner of the proper administration of the procedure. Finally, Dr. Wallace
argues that even if the admission of Dr. Hutt’s testimony was improper, the jury verdict could
not have been affected thereby. This is because the undisputed evidence at trial indicated
that Dr. Wallace’s diagnosis of a perforated meniscus was accurate. Accordingly, Dr.
Wallace’s reliance, or lack thereof, on the arthrogram is irrelevant and had no impact on the
In considering this issue, we begin with the Rules of Civil Procedure which
govern the way trials of civil actions are to be conducted. According to Rule 26 (b)(4):
Trial preparation: experts. -- Discovery of
facts known and opinions held by experts,
otherwise discoverable under the provisions of
subdivision (b)(1) of this rule and acquired or
developed in anticipation of litigation or for trial,
may be obtained only as follows:
(A)(i) A party may through interrogatories
require any other party to identify each person
whom the other party expects to call as an expert
witness at trial, to state the subject matter on
which the expert is expected to testify, and to
state the substance of the facts and opinions to
which the expert is expected to testify and a
summary of the grounds for each opinion.
In addition, Rule 26(e) provides that,
Supplementation of responses. -- A party
who has responded to a request for discovery with
a response that was complete when made is under
no duty to supplement the response to include
information thereafter acquired, except as
(B) The identity of each person expected to
be called as an expert witness at trial, the subject
matter on which the expert is expected to testify,
and the substance of the expert’s testimony.
The essence of Mr. Graham’s assignment of error is that Dr. Wallace failed to fully disclose
the substance of Dr. Hutt’s expected testimony prior to trial in violation of Rule 26. As a
result, Mr. Graham was unfairly surprised.
This Court explained in McDougal v. McCammon, 193 W.Va. 229, 236-37,
455 S.E.2d 788, 795-96 (1995), that “one of the purposes of the discovery process under our
Rules 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.
After carefully considering the arguments of the parties, we agree with Mr.
Graham that he was unfairly surprised by Dr. Hutt’s testimony concerning the proper way
for a radiologist to perform an arthrogram. We can find nothing in Dr. Wallace’s pre-trial
disclosures that puts Mr. Graham on notice that Dr. Hutt was going to opine as to the proper
way for a radiologist to perform an arthrogram. Rather, the obvious import of Dr. Wallace’s
disclosures was that Dr. Hutt was going to testify as to the radiographic studies as these
related to Dr. Wallace’s diagnosis. Therefore, we agree with Mr. Graham that he was
unfairly surprised by Dr. Hutt’s testimony,2 and that this testimony was irrelevant and
In Syllabus 4 of McDougal, this Court held that “[i]n order to preserve for appeal the
claim of unfair surprise as the basis for the exclusion of evidence, the aggrieved party must
move for a continuance or recess.” Mr. Graham did not move for a recess of the trial,
however, he did make a contemporaneous objection to Dr. Hutt’s testimony and gave the trial
According to Rule 402 of the West Virginia Rules of Evidence, in part,
“[e]vidence which is not relevant is not admissible.” This is in line with this Court’s holding
in Syllabus Point 1 of Smith v. Edward M. Rude Carrier Corp., 151 W.Va. 322, 151 S.E.2d
738 (1966) which states that “[e]vidence which is irrelevant or immaterial and has no
probative value in determining any material issue is inadmissible and should be excluded.”
See also, Ward v. Smith, 140 W.Va. 791, 816, 86 S.E.2d 539, 552-53 (1955) (“Evidence
which is irrelevant and immaterial to any issue in a case and which tends to confuse and
mislead the jury is inadmissible and should be excluded.” (Citations omitted)). Relevant
evidence is defined as “evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” W.Va.R.Evid. 401. This Court has recognized that,
Under Rule 401, evidence having any probative
value whatsoever can satisfy the relevancy
definition. Obviously, this is a liberal standard
favoring a broad policy of admissibility. For
example, the offered evidence does not have to
make the existence of a fact to be proved more
probable than not or provide a sufficient basis for
sending the issue to the jury.
judge the opportunity to either exclude the testimony or give a curative instruction. Under
the specific facts of this case, this objection was more appropriate than asking for a recess.
Therefore, we find that Mr. Graham properly preserved his objection for appeal.
McDougal, 193 W.Va. at 236, 455 S.E.2d at 795.
Dr. Hutt’s testimony concerning the proper way to perform an arthrogram
simply was not probative on the issue whether Dr. Wallace misread Dr. Raskin’s arthrogram
report. Dr. Raskin’s report was clear on its face, and it indicated that the arthrogram was
“unsuccessful.” The report also stated, “TMJ arthrography with initial filling of the superior
compartment[.]” Obviously, if Dr. Wallace read this report in any way other than to indicate
that Dr. Raskin injected the superior compartment first and the arthrogram was unsuccessful,
he misread the report. Therefore, Dr. Hutt’s testimony simply did not make it any more or
less likely that Dr. Wallace misinterpreted Dr. Raskin’s report.
It has long been recognized by this Court that, “[a] judgment will not be
reversed because of the admission of improper or irrelevant evidence, when it is clear that
the verdict of the jury could not have been affected thereby.” Syllabus Point 7, Starcher v.
South Penn Oil Co., 81 W.Va. 587, 95 S.E. 28 (1918). After considering Dr. Hutt’s
testimony in the context of the evidence heard at trial, it is not clear to this Court that the
jury’s verdict could not have been affected by the testimony.
First, as we noted in Graham v. Wallace I, “[t]he instant case was clearly a
close one -- on liability, causation, and damages.” 208 W.Va. at 143, 538 S.E.2d at 734. The
close nature of the case presents a greater possibility that the injection of irrelevant evidence
in the trial affected its outcome. Second, the question of the proper interpretation of the
arthrogram was significant at trial. This is indicated by the fact that Dr. Wallace, Dr. Hutt,
and Dr. Raskin all testified about it at some length. Third, Dr. Wallace’s testimony on crossexamination concerning his reading of the arthrogram was confusing and equivocal.3 If the
jury had been able to evaluate Dr. Wallace’s testimony in light of the express findings in Dr.
Raskin’s report, absent Dr. Hutt’s irrelevant testimony, we are not convinced that it would
have reached the same verdict.
Further, we believe that Dr. Hutt’s testimony could have had a detrimental
effect on Mr. Graham’s case because of the nature of the case and the evidence presented.
This is a medical malpractice case in which jurors were called upon to determine complicated
questions of diagnosis and treatment with the necessary aid of expert witnesses. In this
context, we believe that it was likely that irrelevant testimony by an expert witness beclouded
Dr. Wallace testified that he did not know whether Dr. Raskin injected the superior
or the inferior compartment first, but he assumed that Dr. Raskin attempted to inject the
inferior compartment. He further opined that the fact there was a small amount of contrast
demonstrated in the superior compartment does not demonstrate a leak, or damage to the
meniscus, because it only refers to one compartment. He added, however, that the fact that
there was extravasation, or leakage into the muscle, following the second injection, “means
that the dye that was injected into the space, was not being contained by the capsule and the
meniscus, so it could go in different areas.” Dr. Wallace later conceded, however, that this
extravasation could mean one of two things -- Dr. Raskin injected the proper area and it
leaked, indicating damage to the meniscus, or Dr. Raskin missed the proper area and simply
injected the dye into soft tissue. Dr. Wallace admitted that if the latter occurred, the study
would be nondiagnostic. When confronted with the fact that Dr. Raskin’s report clearly
stated that the study was unsuccessful, Dr. Wallace testified, “[f]or the radiologist that was
probably considered unsuccessful. For me, I saw in the examination and relied on to a
certain extent that the dye leaked out of the capsule because of damage to the meniscus. I
already knew his meniscus was not moving, so I didn’t need that type of detail.”
or confused a significant issue to such an extent that the balance of the trial was unfairly
As noted above, Dr. Wallace urges that the issue whether he misread Dr.
Raskin’s report is itself immaterial since his findings during surgery confirmed his original
diagnosis. We disagree. Dr. Hutt’s irrelevant testimony injected substantial confusion into
the issue of Dr. Wallace’s reading of the arthrogram. As aptly stated in Mr. Graham’s brief,
“Dr. Wallace was able to muddy the water with the patina of expert opinion.” As a result,
we believe that the jury may have been robbed of a fair opportunity to determine whether Dr.
Wallace’s reading of the arthrogram actually was immaterial in light of his subsequent
findings, or, alternatively, that his negligent reading of the report did not cause any harm to
In closing, we emphasize that we have carefully considered all of Dr. Wallace’s
arguments. We also fully recognize that the trial judge did not enjoy our benefit of hindsight
in assessing Dr. Hutt’s testimony in the context of this hard-fought and closely-tried case.
We must conclude, however, that fairness requires that the jury below be able to evaluate all
of the relevant evidence untainted by confusing, prejudicial, and immaterial evidence.
For the reasons stated above, this case is reversed and remanded for a new trial.
Reversed and Remanded.