Perius v. Nodak Mutual Insurance Co.

VANDE WALLE, Chief Justice.

[¶ 1] Allen Perius appealed from a district court judgment following a jury verdict in favor of Nodak Mutual Insurance Company. We affirm.

I.

[¶2] On October 8, 2004, Perius was involved in a motor vehicle accident with an uninsured driver, Jacob Kessler. Peri-us insured his vehicle with Nodak for basic no-fault benefits and uninsured motorist benefits. Perius claimed he injured his neck in the accident and sought medical treatment. Perius consulted with Dr. Ron Tello and was prescribed physical therapy. Perius completed physical therapy in November 2004. Nodak paid Perius *582$1,020.75 in no-fault benefits as a result of the accident. Perius did not seek further medical treatment until March 2005, when he saw a chiropractor. Perius submitted the bills to Nodak for payment as no-fault benefits. After Perius submitted to an independent medical examination, Nodak denied him payment for any medical treatment after December 31, 2004, concluding such treatment was unrelated to the accident.

[¶ 3] In 2007, Perius brought suit against Kessler, alleging he negligently operated his motor vehicle and caused Peri-us’s injuries. Perius also sued Nodak, alleging the company breached its insurance contract with him. Nodak denied liability and claimed Perius’s alleged injuries were the result of a pre-existing condition. No-dak also asserted a cross-claim against Kessler regarding Perius’s uninsured motorist claim. Kessler did not answer the claims against him. In January 2008, Per-ius responded to Nodak’s interrogatories, which included disclosure of ten possible expert witnesses, the subject matter and substance of expected expert testimony, and the grounds for the experts’ opinions.

[¶ 4] In June 2009, Nodak moved for summary judgment, asserting Perius’s medical treatment after December 31, 2004, was due to a pre-existing condition and no competent, admissible evidence established his claimed injuries were caused by the accident. Nodak also asserted Per-ius did not sufficiently disclose his expert witnesses under N.D.R.Civ.P. 26. Perius resisted the motion, and submitted the affidavits of two of his treatment providers, Dr. Michael Quast, a pain management physician, and Dr. Kelly Remillard, a chiropractor. Both providers stated their belief that Perius’s injuries and treatment were due to the accident. Perius also sent Nodak an amended response to its interrogatories. The district court granted No-dak’s motion for summary judgment, and this Court reversed and remanded, finding disputed issues of material fact existed. Perius v. Nodak Mutual Ins. Co., 2010 ND 80, ¶¶ 31-32, 782 N.W.2d 355.

[¶ 5] On remand, a jury trial was set for April 2011. On March 15, 2011, the district court issued a final pretrial conference order requiring counsel for each party to provide the other with a list of all prospective witnesses, the order in which the witnesses were expected to be called, and a brief description of their expected testimony. Shortly after, Perius sent No-dak amended responses to Nodak’s interrogatories. Prior to trial, Nodak was informed of Perius’s intent to call Dr. Bryon Blowers, a chiropractor, as an expert witness. Nodak filed a motion in limine seeking to exclude Dr. Blowers as an expert witness, alleging Dr. Blowers was not properly disclosed under N.D.R.Civ.P. 26. The district court granted Nodak’s motion, but ordered Dr. Blowers would still be allowed to testify as a fact witness. At the final pretrial conference, Perius moved to be allowed to present the total amount of his medical bills instead of the amount paid by Blue Cross/Blue Shield. The district court denied Perius’s motion because it believed requiring Nodak to pay the reasonable value of services rendered would result in a windfall to Perius. A jury trial was held on April 19-20, 2011, and the jury returned a verdict in Nodak’s favor.

II.

[¶ 6] Before challenging the propriety of a discovery sanction excluding evidence, “the party must have made an offer of proof, demonstrating prejudice from the court’s refusal to allow the evidence.” Dewitz v. Emery, 508 N.W.2d 334, 339 (N.D.1993). Perius made such an offer of proof at trial, outlining Dr. Blowers’s anticipated expert testimony. At tri*583al, Dr. Blowers testified about his treatment of Perius, and the medical records related to Dr. Blowers’s treatment of Peri-us were received into evidence.

[¶ 7] Perius argues the district court erred by granting Nodak’s motion to exclude the expert testimony of Dr. Blowers and by excluding evidence of the entire amount of his medical bills. Therefore, he requests a new trial.

[¶ 8] This Court reviews a district court’s decision on sanctions for discovery violations under the abuse-of-discretion standard. Wolf v. Estate of Seright, 1997 ND 240, ¶ 17, 573 N.W.2d 161. “A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law.” Thompson v. Schmitz, 2011 ND 70, ¶ 18, 795 N.W.2d 913 (quoting Brandt v. Somerville, 2005 ND 35, ¶ 23, 692 N.W.2d 144).

[¶ 9] Perius asserts he complied with N.D.R.Civ.P. 26 in disclosing Dr. Blowers as an expert witness, and he was prejudiced by the exclusion of his testimony. Rule 26(b), N.D.R.Civ.P., provides in part:

(4) Trial preparation — Experts.
(A) Expert Who May Testify. Discovery of facts known and opinions held by experts, otherwise discoverable under Rule 26(b)(1) and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(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[.]

“Parties must fully, completely, and fairly disclose the subject matter on which their expert witnesses will testify at trial and the substance of their expert witnesses’ testimony.” Wolf, 1997 ND 240, ¶ 17, 573 N.W.2d 161 (citing N.D.R.Civ.P. 26(e)(1)(B)). The purpose of this disclosure requirement is to allow the opposing party a fair opportunity to meet the evidence and eliminate surprise at trial. Kjonaas v. Kjonaas, 1999 ND 50, ¶ 16, 590 N.W.2d 440.

[¶ 10] Rule 26(e), N.D.R.Civ.P., requires a party to supplement or correct its response to an interrogatory “in a timely manner if the party learns that in some material respect the response is incomplete or ineorrect[.]” N.D.R.Civ.P. 26(e)(1)(A). The rule also requires a party to supplement its response about “the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the person’s testimony.” N.D.R.Civ.P. 26(e)(2)(B). No sanction is specified under N.D.R.Civ.P. 37 for a party’s failure to sufficiently supplement interrogatories. See N.D.R.Civ.P. 37; Dewitz, 508 N.W.2d at 339. Therefore, the district court has discretion to determine an appropriate sanction for a party’s failure to supplement interrogatories and may exclude expert testimony that is beyond the scope of a party’s responses to interrogatories. Wolf, 1997 ND 240, ¶ 17, 573 N.W.2d 161.

[¶ 11] In order to determine whether Perius’s disclosure of Dr. Blowers as an expert witness was sufficient under N.D.R.Civ.P. 26, we consider in further detail the discovery history in this case. Perius provided three sets of responses to Nodak’s interrogatories: one in January *5842008, one in June 2009, and one in March 2011. Nodak requested Perius provide the name of each person expected to be called as an expert, the subject matter and substance of the expert’s anticipated testimony, and the grounds for the expert’s opinions. In January 2008, Perius responded by listing ten medical providers and stating the following:

Subject Matter:
The above-referenced experts may testify in all pertinent areas of medical treatment, injury and care of Plaintiff. This medical testimony will include but is not limited to the following areas: reasonableness and/or necessity of medical care and associated past and future medical billings as related to this incident, the medical condition and treatment after the date of the incident, the specific injuries which Plaintiff has sustained as a result of this incident, the treatment expected to be necessary for continuing care as a result of injuries sustained in this incident, any permanent impairment or disability, the propriety of any courses of care after this incident, and the likelihood of any future medical conditions or treatments necessary as arising out of the injuries sustained in this incident. Furthermore, the above experts may testify on any and all opinions provided by defense medical experts in this case.
Substance:
The above-referenced experts are expected to testify that Plaintiffs past and current medical care has been appropriate, necessary and the direct result of the trip and fall [sic] accident. Further testimony is expected to include that the medical treatment which Plaintiff has undergone after the incident is directly related to this accident, that Plaintiff has sustained injuries which are permanent and/or on-going in nature and that medical care and treatment will be necessary to maintain Plaintiffs health in the future. Further, it is expected that testimony will include the fact that appropriate measures were taken subsequent to the accident in an effort to treat Plaintiff. It is expected that the testimony will include commentary on differences with defense medical experts.
Further substance of expected testimony can be found within the medical records of Plaintiff.
Grounds
The grounds for the medical opinions are the past medical records of Plaintiff, the education and experience of the experts, the direct contacts and examinations the experts have had with Plaintiff, and various medical literature.

A stipulated trial management schedule and order was filed on January 2, 2009, and Perius served his identification of experts on May 10, 2009. The identification simply listed the names of eleven potential experts and stated their “testimony will include information addressing the areas of causation and damages.” On May 12, 2009, Nodak’s attorney sent a letter to Perius’s counsel, stating Nodak believed the disclosure did not comply with N.D.R.Civ.P. 26, and requested Perius “treat this letter as our attempt to comply with the applicable rule requiring the parties to resolve discovery disputes prior to involving the court.”

[¶ 12] On June 9, 2009, Nodak moved for summary judgment, in part arguing Perius failed to comply with N.D.R.Civ.P. 26. Perius sent an amended response to Nodak’s interrogatories on June 10, 2009. The amended response listed thirteen potential experts and repeated the language used in the January 2008 response to describe the subject matter and substance of their expected testimony and the grounds for the experts’ opinions. Also in response *585to the summary judgment motion, Perius filed affidavits from Dr. Quast and Dr. Remillard in which both providers stated their belief that Perius’s injuries and treatment were a result of the accident. The district court granted Nodak’s motion for summary judgment, basing its decision in part on Perius’s failure to comply with a scheduling order that governed disclosure of expert witnesses.

[¶ 13] On appeal, this Court reversed and remanded, concluding a genuine issue of fact existed. Perius, 2010 ND 80, ¶¶ 31-32, 782 N.W.2d 355. However, our reversal of summary judgment did not suggest Perius’s responses to Nodak’s interrogatories were sufficient under the discovery rules. In the opinion, we noted, “Dr. Quast’s affidavit was minimal,” and “the record includes minimally sufficient facts from one of Perius’s medical providers to raise a genuine issue of fact[.]” Id. at ¶¶ 28, 31 (emphasis added); see also id. at ¶ 34 (VandeWalle, C.J., concurring specially) (“[W]hile I reluctantly agree the inferences which might be drawn from the affidavits are sufficient to avoid deciding this case on a motion for summary judgment, this procedure is not a model to be emulated.”).

[¶ 14] After remand, Perius sent Nodak his amended responses to Nodak’s interrogatories. Perius again included a list of ten potential expert witnesses and repeated the subject matter and substance of the anticipated testimony and the grounds for the expert opinions that he disclosed in the January 2008 and June 2009 responses. Under the circumstances in this case, we conclude Perius failed to comply with N.D.R.Civ.P. 26 in disclosing Dr. Blowers as an expert witness. As highlighted by the case’s procedural history, Perius was aware that his expert disclosures were insufficient, and failed to supplement his responses despite his duty to do so. See N.D.R.Civ.P. 26(e)(2)(B). The district court did not abuse its discretion in excluding Dr. Blowers’s expert testimony as a discovery sanction. See Wolf, 1997 ND 240, ¶ 17, 573 N.W.2d 161.

[¶ 15] To the extent N.D.R.Civ.P. 37 was an appropriate rule to apply in this case, Perius did not raise N.D.R.Civ.P. 37 on appeal, but rather argued that his expert witness disclosures complied with N.D.R.Civ.P. 26. Perius also failed to raise N.D.R.Civ.P. 37 with the district court in his response to Nodak’s motion in limine and in his motion for reconsideration.

[¶ 16] In light of our disposition of Per-ius’s first issue, it is unnecessary to reach the other issue raised in this appeal.

III.

[¶ 17] We affirm the district court judgment.

[¶ 18] DALE V. SANDSTROM, DANIEL J. CROTHERS, and CAROL RONNING KAPSNER, JJ., concur.