CHARLES CLEPHAS and BARBARA CLEPHAS v. GARLOCK, INC.
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RENDERED:
July 30, 2004, 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001276-MR
CHARLES CLEPHAS and
BARBARA CLEPHAS
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS J. KNOPF, JUDGE
ACTION NO. 93-CI-005779
v.
GARLOCK, INC.
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
Judge.1
COMBS, Chief Judge; DYCHE, Judge; and EMBERTON, Senior
COMBS, CHIEF JUDGE.
Charles Clephas and his wife, Barbara
Clephas, appeal the judgment of the Jefferson Circuit Court
based on a jury verdict in favor of the appellee, Garlock, Inc.,
a manufacturer of asbestos products.
1
The Clephases challenge
Senior Judge Thomas Emberton sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
the ruling of the trial court not to exclude the opinion
testimony offered by Garlock’s two expert witnesses, Dr. Robert
Sawyer and Donna Ringo.
The appellants contend that they did not receive a
fair trial because the court denied their motion to exclude from
evidence the opinions of Dr. Sawyer, which were not provided in
Garlock’s pre-trial disclosures pursuant to CR2 26.02(4).
They
argue that Ringo’s testimony should have been excluded for
failing to meet the requisite criteria for reliability set forth
in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and adopted in Mitchell
v. Commonwealth,, Ky., 908 S.W.2d 100 (1995), overruled in part
on other grounds by Fugate v. Commonwealth, Ky., 993 S.W.2d 931
(1999).
After a careful review of the record, we agree that the
trial court erred in allowing Dr. Sawyer to testify as to his
medical opinions regarding Charles’s physical condition that
were not made available to appellants prior to trial as mandated
by the rules of discovery.
Therefore, we vacate and remand.
In 1993, the Clephases filed a complaint alleging that
Charles, a pipefitter, had contracted asbestos-related diseases
as a result of his occupational exposure to gaskets manufactured
by Garlock.
On August 8, 2000, the trial court entered a Master
Order which provided as follows:
2
Kentucky Rules of Civil Procedure.
-2-
3.
Expert Witnesses. Parties shall
designate in writing any expert
witnesses and provide copies of any
report(s) made by such witnesses.
a. Disclosure deadline.
Plaintiffs shall disclose their
expert witnesses and provide any
reports no later than 150 days
before trial. Defendants shall
complete any independent medical
examinations of the plaintiff,
disclose their expert witnesses,
and provide any reports no later
than 105 days before trial.
(Emphasis in original.)
The Clephases’ case was scheduled for trial on April
8, 2003.
On February 13, 2003 –- well after the 105-day
deadline –- Garlock filed its response to the Clephases’
interrogatories seeking the identity of the experts Garlock
intended to call and their expected testimony.
The disclosure
contained the following information concerning Dr. Sawyer, a
medical doctor and consultant in occupational medicine, and
Ringo, an industrial hygienist.
ROBERT SAWYER, M.D.
Dr. Sawyer may testify, in general,
concerning asbestos-related disease and the
effects of exposure to asbestos upon persons
in occupational settings, including the
epidemiology of asbestos-related diseases
and the criteria for diagnosis of an
asbestos-related disease.
He may also testify regarding the existence
or non-existence of any asbestos-related
disease in the plaintiffs, including, but
not limited to pleural changes, asbestosis,
-3-
lung cancer, mesothelioma, laryngeal cancer,
esophageal cancer and stomach cancer.
He may also testify on whether any asbestosrelated disease allegedly suffered by
plaintiffs was medically or proximately
caused by exposure to asbestos-containing
gasket and packing products. He may also
testify on the existence of a dose response
relationship between exposure and asbestosrelated disease.
He may also testify on increased risk of
cancer issues and whether a particular
plaintiff has a reasonable fear of cancer
due to exposure to asbestos. He may also
testify on the health consequences of
smoking.
With respect to particular plaintiffs, he
may testify as to review and interpretation
of x-ray films, review and interpretation of
pulmonary function testing, the nature and
extent of any impairment or disability,
whether the condition is progressive and
whether other disease or conditions are
present in plaintiffs.
Dr. Sawyer’s testimony will be based on his
training, experience, education and review
of the medical literature concerning
asbestos-related disease.
DONNA M. RINGO, C.I.H.
Ms. Ringo is a Certified Industrial
Hygienist. She may give testimony regarding
the level of fiber release, if any, from
gasket and packing products in the
occupational setting. She may testify
regarding threshold limit values and
permissible exposure levels as promulgated
by private organizations and government
agencies. She may testify as to work
practices regarding various types of
occupations using products that contained
asbestos. She may testify as to the
-4-
applicability of the OSHA and EPA’s
guidelines as they relate to various types
of products including gaskets and packings.
She may testify as to the exposure that may
result from the use of other types of
asbestos products
She may complete asbestos exposure
assessments on individual plaintiffs.
After receiving this information, the Clephases
requested that Garlock disclose the experts’ opinions that
specifically addressed Charles’s medical condition and/or his
working environment.
the experts.
They also sought times and dates to depose
Garlock failed to provide any further information;
the Clephases were required to file a motion to compel Garlock
to produce its expert witnesses for deposition.
On March 4,
2003, with trial a month away, the court ordered Garlock to
produce its expert witnesses for deposition within twenty days.
Following the entry of that order, the Clephases were able to
take Ringo’s deposition; however, Dr. Sawyer was never made
available for deposition.
At trial, the appellants moved for the exclusion of
Dr. Sawyer’s opinions that had not been previously disclosed to
them.
They argued that the exclusion of the expert’s opinions
was warranted because:
(1) Garlock’s CR 26.02(4)(a)(i)
disclosure was vague and lacked any substantive opinions
directly regarding Charles and (2) they were denied the
-5-
opportunity to learn of his opinions by deposition in violation
of the court’s order compelling such discovery.
The trial judge (different from the judge who had
presided over the discovery phase) denied the motion and
permitted Dr. Sawyer to testify without restriction.
Dr.
Sawyer’s opinions included his diagnosis of Charles’s physical
condition as well as his opinion on causation.
Although none of
this material had ever been disclosed to the Clephases, Dr.
Sawyer nonetheless was permitted to relate his expert opinions
to the jury.
Contrary to the medical opinions expressed by
Charles’s treating physician, Dr. Sawyer testified that in his
opinion, Charles did not suffer from asbestosis.
He further
testified that after reviewing the results of pulmonary
functions tests, he believed that Charles had some “mild”
obstructive disease due to asthma and smoking cigarettes but
that he had no condition caused by exposure to asbestos.
On cross-examination, Dr. Sawyer testified that his
review of x-rays formed the basis of his opinion that Charles
had no asbestos-related disease.
He admitted that he had seen
those x-rays for the first time the previous evening and that he
had not formed an opinion with respect to his medical diagnosis
until the very morning on which he testified.
The Clephases also asked the trial court to exclude
the testimony of Donna Ringo in its entirety, arguing that her
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opinions were neither relevant nor reliable.
Following a
Daubert hearing, the trial court initially agreed with the
Clephases and ruled her testimony inadmissible.
However, after
listening to her avowal testimony, the court changed its ruling
and permitted the jury to hear her opinions.
Ringo testified
that the amount of fibers released when removing gaskets
containing asbestos from pipes was no greater than that found in
the air in general.
The jury returned its verdict absolving Garlock of any
liability to the Clephases.
After a final judgment was entered,
the Clephases moved for a new trial.
on June 11, 2003.
The motion was overruled
This appeal followed.
The Clephases argue that the trial court abused its
discretion in allowing Dr. Sawyer to testify to opinions not
disclosed to them prior to trial.
They object to the fact that
the information contained in Garlock’s CR 26.02(4)(a) disclosure
was wholly generic in nature; that it failed to mention Charles
directly or his condition with any specificity; and that it
failed to satisfy the requirements of the discovery rule.
They
contend that exclusion of the expert’s opinions was required
because of Garlock’s failure to produce Dr. Sawyer for
deposition in clear violation of the order of the trial court.
The overall impact of the court’s refusal to exclude the
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evidence “resulted in an inherently unfair ‘trial by surprise’.”
(Appellants’ reply brief, p. 3).
In response, Garlock disputes as untrue the Clephases’
complaint that they were unable to depose Dr. Sawyer.
Garlock
claims that it did provide the Clephases with two dates during
the week prior to trial (April 1 and April 3) on which to take a
telephonic deposition of Dr. Sawyer.
It also contends that the
Clephases’ attorney was “very familiar with Dr. Sawyer’s
testimony” and that he had “deposed and cross-examined Dr.
Sawyer on numerous occasions before.”
(Appellee’s brief, p. 9.)
Garlock does not cite to the record in making these assertions.
Furthermore, our review of the record reveals no evidentiary
support for these representations.
In their reply brief, the
Clephases’ attorney denied that Dr. Sawyer was ever made
available for deposition at any time before trial
(telephonically or otherwise); he added that he had never
deposed the doctor.
Our standard of review of a trial court’s ruling as to
admitting or excluding evidence is limited to determining
whether the trial court abused its discretion.
Goodyear Tire
and Rubber Co. v. Thompson, Ky., 11 S.W.3d 575, 577 (2000).
The test for abuse of discretion is whether
the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by
sound legal principles.
-8-
Id., at 581, citing Commonwealth v. English, Ky., 993 S.W.2d
941, 945 (1999).
Under the circumstances presented in this
case, we conclude that the court’s admission of Dr. Sawyer’s
previously unrevealed opinions did indeed result in an unfair
proceeding and that, therefore, it constituted an abuse of
discretion.
Our civil rules provide for a liberal discovery
process.
Case law has repeatedly reinforced the policy
underlying pretrial discovery, holding that it:
simplifies and clarifies the issues in a
case; eliminates or significantly reduces
the element of surprise; helps to achieve a
balanced search for the truth, which in turn
helps to ensure that trials are fair; and
encourages the settlement of cases.
LaFleur v. Shoney’s, Inc., Ky., 83 S.W.3d 474, 478 (2002); see
also, Commonwealth, Dept. of Highways v. Frank Fehr Brewing
Company, Ky., 376 S.W.2d 541 (1964).
CR 26.02 (4), the rule governing disclosure of expert
witnesses, provides as follows:
Trial Preparation: Experts. Discovery of
facts known and opinions held by experts,
otherwise discoverable under the provisions
of paragraph (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
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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.
It is apparent that Garlock’s disclosure relating to
Dr. Sawyer did not comply with either the letter or the spirit
of our discovery rules.
Dr. Sawyer acknowledged that he had no
opinions about Charles Clephas’s medical condition at the time
Garlock made its CR 26.02(4)(a) disclosure identifying him as an
expert witness in this case.
After Garlock revealed his
identity, Dr. Sawyer did not receive any information to review
about Charles until the middle of March 2003.
It was not until
the evening before his trial appearance that he first examined
the x-rays of Charles’s lungs.
Dr. Sawyer acknowledged that he
did not formulate a medical opinion relating to Charles’s
physical condition and/or its causation until a few hours before
his trial testimony.
A generalized statement outlining a broad subject
matter about which an expert may testify does not sufficiently
apprise the other party of the information needed to prepare for
trial as contemplated and mandated by the notice requirements of
CR 26.02(4)(a).
The discovery of the substance of an expert
witness’s expected testimony is essential to trial preparation.
In this case, Garlock’s persistent pattern of noncompliance with
-10-
discovery orders undoubtedly resulted in prejudice to the
Clephases.
Garlock failed to produce its expert for deposition
although ordered to do so; additionally, Garlock waited until
the trial had commenced before providing its expert with the
materials necessary for him to evaluate in order to form an
opinion.
Shoddy trial tactics cannot be tolerated in blatant
violation of the “rules of the game.”
See, Charash v. Johnson,
Ky.App., 43 S.W.3d 274 (2000); and Jefferson v. Davis, 131
F.R.D. 522, 524, (N.D.Ill.1990), in which the court observed
that inadequate discovery (similar to that involved in the case
before us) “produces in acute form the very evils that discovery
has been created to prevent.”
We conclude that the trial court
erred in admitting Dr. Sawyer’s undisclosed opinions.
The Clephases also argue that the trial court erred in
admitting Ringo’s testimony.
As an industrial hygienist, Ringo
monitors the levels of hazardous substances in workplace
environments to insure compliance with the standards set by OSHA
and other government agencies.
Her work has also included
conducting surveys to determine the amount of asbestos fibers
released under controlled conditions.
The Clephases argue that Ringo’s studies were not
relevant because they were not performed under conditions
substantially similar to those which resulted in Charles’s
exposure to asbestos during his long career as a pipefitter.
-11-
They also contend that her surveys were not reliable pursuant to
the criteria set out in Daubert, supra; i.e., the studies on
which she based her opinions were not published, and they had
not been subject to peer review.
Additionally, Ringo could
point to no published articles in the scientific community
recognizing or indicating acceptance of her methodology:
wetting the asbestos material before testing the amount of
fibers released.
This issue also is reviewed under the standard of
abuse of discretion.
Toyota Motor Corporation v. Gregory, Ky.,
136 S.W.3d 35 (2004).
The issue of reliability of the evidence
was not a clear matter and really was a rather close call.
It
is evident from the trial court’s conflicting rulings that it
labored in performing its gate-keeping function.
After
conducting a Daubert hearing, the court initially ruled to
exclude Ringo’s testimony because her studies had not been
conducted under conditions that were substantively similar to
those experienced by Charles.
permitted Ringo to testify.
It then reversed itself and
Although they were not performed
under conditions which simulated those experienced by Charles,
Ringo’s surveys and studies were relevant to Garlock’s defense
that its product was not hazardous.
The trial court reasoned
that any difference between Charles’s particular work
environment and the milieu where Ringo’s studies were conducted
-12-
properly pertained to the weight to be given to her testimony
rather than its admissibility.
Because many of the criteria set
forth in Daubert were absent, the court would have been well
within its discretion even if it had adhered to its initial
ruling excluding Ringo’s testimony.
Nevertheless, the criteria
are neither indispensable nor exhaustive.
test for reliability is flexible.”
Ky., 12 S.W.3d 258, 264 (1999).
Id.
Rather, “the
Johnson v. Commonwealth,
Thus, we are not persuaded that
the trial court abused its discretion in its ultimate decision
to admit Ringo’s testimony.
In summary, we hold that the trial court abused its
discretion only in its admission of the undisclosed medical and
causation opinions of Dr. Sawyer.
Because his opinions
seriously undermined the opinions expressed by the Clephases’
expert, we hold that the error was sufficiently prejudicial to
entitle them to a new trial.
On remand, the trial court will
retain the discretion to decide once again the issue of whether
to admit or to exclude Ringo’s testimony.
The judgment of the Jefferson Circuit Court is
vacated, and this matter is remanded for further proceedings
consistent with this opinion.
ALL CONCUR.
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BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
Kenneth L. Sales
Joseph D. Satterley
Louisville, Kentucky
John K. Gordinier
Berlin Tsai
Louisville, Kentucky
ORAL ARGUMENT FOR APPELLANTS:
ORAL ARGUMENT FOR APPELLEE:
Joseph D. Satterley
Louisville, Kentucky
John K. Gordinier
Louisville, Kentucky
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