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Meade v. Dvorak

Court of Appeals of Kentucky

December 21, 2018

STEPHEN H. MEADE APPELLANT
v.
JOHN DVORAK, M.D.; AND COLORECTAL SURGICAL AND GASTROENTEROLOGY ASSOCIATES APPELLEES

          APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE THOMAS L. TRAVIS, JUDGE ACTION NO. 15-CI-04552

          BRIEF AND ORAL ARGUMENT FOR APPELLANT: Brian Neal Thomas Winchester, Kentucky

          BRIEF FOR APPELLEES: Clayton L. Robinson Lexington, Kentucky

          ORAL ARGUMENT FOR APPELLEES: Nick Edwards Lexington, Kentucky

          BEFORE: COMBS, D. LAMBERT AND SMALLWOOD, [1] JUDGES.

          OPINION

          SMALLWOOD, JUDGE:

         Stephen H. Meade appeals from an opinion and order of the Fayette Circuit Court granting the motions of John Dvorak, M.D. and Colorectal Surgical and Gastroenterology Associates to strike Meade's expert witness and for summary judgment. For the reasons stated below, we find no error and AFFIRM the opinion and order on appeal.

         On December 16, 2015, Meade filed the instant action in Fayette Circuit Court alleging that Dr. John Dvorak negligently performed a colorectal resection surgical procedure which required subsequent surgical intervention to address complications.[2] A scheduling order was entered on February 13, 2017, giving Meade sixty days to make witness disclosures under Kentucky Rule of Civil Procedure (CR) 26.02. Meade did not disclose any expert witnesses within the sixty-day period, resulting in the Defendants moving for summary judgment based on Meade's failure to name an expert witness.

         On May 19, 2017, the Fayette Circuit Court denied the motion for summary judgment, and gave Meade an additional twenty days to make any disclosures. Meade identified Dr. Scott Russell Steele as an expert witness on June 8, 2017, and disclosed Dr. Steele's anticipated opinions. Dr. Steele's deposition was scheduled for September 22, 2017. On the day prior to the deposition, Meade filed an emergency motion to continue the deposition. In support of the motion, Meade alleged that Dr. Steele would be unavailable for the deposition on the scheduled date because he would be performing one or more surgeries. The deposition was cancelled.

         On September 27, 2017, Dvorak and Colorectal Surgical and Gastroenterology Associates (hereinafter "CSGA") moved to strike Dr. Steele as an expert. Two days later, Dvorak and CSGA filed a renewed motion for summary judgment contingent on their motion to strike. The court heard arguments on the motions, and rendered an opinion and order on November 16, 2017, granting both motions. Citing Clephas v. Garlock, Inc., 168 S.W.3d 389 (Ky. App. 2004), the court determined that because Meade's CR 26.02 disclosure was made before Dr. Steele had a chance to review Meade's medical records and form an expert opinion, Meade failed to comply with CR 26.02. Having struck Meade's expert, the court went on to grant the Appellees' motion for summary judgment. This appeal followed.

         Meade now argues that the Fayette Circuit Court erred in granting the Appellees' motion to strike and motion for summary judgment. Meade argues that the Fayette Circuit Court improperly interpreted CR 26.02 to conclude that an expert must reach a medical opinion before the expert may be disclosed. Meade directs our attention to the language of CR 26.02 stating that a party must identify the subject matter on which an expert is expected to testify, and a summary of the grounds for each opinion. He asserts that because he expected Dr. Steele to give an expert opinion in support of Meade's medical negligence claim, he fully complied with both the spirit and the letter of CR 26.02. Further, Meade contends that his CR 26.02 disclosure was "based on facts surrounding the treatment and the statements made by the treating physicians to the Appellant and Ms. Nalle[3] by Dr. Dvorak wherein Dr. Dvorak advised that as a result of the surgery, the intestine was blocked." Finally, Meade argues that whereas the improper disclosure in Clephas was made mere weeks before trial, the instant disclosure was made with no pending trial date and no prejudice to the Appellees. In sum, Meade seeks an opinion reversing the order striking Dr. Steele as an expert witness.

         CR 26.02(4) states that a party may discover the "facts known" and "opinion held" by the opposing party's expert witnesses and "the subject matter on which the expert is expected to testify[.]" Contrary to Appellant's argument, it is clear that CR 26.02 requires disclosure of facts already known and opinions already formed and not anticipated facts or opinions.

         In Clephas, supra, a trial court allowed an expert witness to testify at trial, though the disclosure was made significantly after the court's disclosure deadline of 105 days before trial. On appeal, a panel of this Court determined because the timeline revealed that the expert could not have formed an opinion about the Plaintiff's medical condition at the time the Defendant made its CR 26.02 disclosure, the Plaintiff complied with neither the letter nor the spirit of the discovery rules.

         In the matter before us, and as in Clephas, Meade made his CR 26.02 disclosure before Dr. Steele had examined the medical records and formed an opinion. In fact, Appellant had no oral or written statement from Dr. Steele regarding his opinions in this case or otherwise prior to entry of the court's summary judgment. It was on this basis that the Fayette Circuit Court struck Dr. Steele as an expert witness, and this conclusion was supported by the record and the law. Expert opinions must be based on reasonable medical probability and not speculation or mere possibility. Morris ...


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