Kaiser v. University Physicians Clinic

#23652-rev & rem-DG

2006 SD 95
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

TOM KAISER and LAURA KAISER, Plaintiffs and Appellants,

v.

UNIVERSITY PHYSICIANS CLINIC,
and ELIZABETH DIMITRIEVICH, Defendants and Appellees.

* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

HONORABLE WILLIAM J. SRSTKA, JR.
Judge

* * * *

RONALD A. PARSONS, Jr.
SCOTT A. ABDALLAH of
Johnson, Heidepriem, Miner,
Marlow & Janklow, LLP
Sioux Falls, South Dakota
and
MARK W. McNEARY of
McNeary & Anderson
Aberdeen, South Dakota Attorneys for appellants.

MELISSA HINTON
EDWIN E. EVANS
TIMOTHY M. GEBHART of
Davenport, Evans, Hurwitz & Smith
Sioux Falls, South Dakota Attorneys for appellees.

* * * *
ARGUED APRIL 26, 2006

OPINION FILED 11/01/06
#23652

GILBERTSON, Chief Justice

[¶1.] Tom and Laura Kaiser (Kaisers) brought a medical malpractice action

against University Physicians Clinic and Elizabeth Dimitrievich, M.D.

(Defendants). A jury verdict was rendered in favor of Defendants. Kaisers appeal

contending the circuit court erred when it admitted a previously undisclosed exhibit

into evidence, allowed the use of two other previously undisclosed exhibits for

illustrative purposes, and ruled that Defendants’ expert witness could testify about

the exhibits to the jury. We reverse and remand for a new trial.

FACTS AND PROCEDURE

[¶2.] Laura and Tom were married in June 1999, and began trying to

conceive a child a year after their marriage. The couple was unable to conceive and

sought the assistance of an obstetrics and gynecology (OB-GYN) specialist in

Aberdeen, South Dakota. Several attempts with intrauterine (artificial)

insemination failed to result in a pregnancy. The couple moved to Sioux Falls,

South Dakota, in August of 2000. In early 2002, the couple scheduled an

appointment with Keith Hanson, M.D., a fertility specialist in Sioux Falls, to

resume trying to start their family. However, the day before the appointment

Laura discovered she was already pregnant.

[¶3.] Laura remained under Hanson’s care through her first trimester and

was then referred to Elizabeth Dimitrievich, M.D., a board-certified OB-GYN

specialist at University Physicians Clinic in Sioux Falls. The pregnancy progressed

fairly normally except the baby was in a breech position during most of the

pregnancy. Laura’s due date was calculated as September 20, 2002.

-1-
#23652

[¶4.] On Monday, September 16, 2002, Laura saw Dimitrievich for a rash.

While at Dimitrievich’s office, Laura’s blood pressure became slightly elevated and

she began having a contraction. Dimitrievich decided to schedule a cesarean section

(c-section) for the following morning. Later that evening, Laura began experiencing

tightness around her chest and rib cage and telephoned Dimitrievich. Dimitrievich

advised Laura to meet her at Sioux Valley Hospital for an evaluation.

[¶5.] After examining Laura, Dimitrievich determined that Laura was in

early labor. She also determined that Laura had a borderline temperature and an

elevated pulse rate of 112 beats per minute. Dimitrievich ordered a complete blood

count (CBC), which showed a high white count of 20,0001 and a “left shift.” The

“left shift” gave Dimitrievich concern that Laura might have a bacterial infection.

Given these findings and the baby’s breech presentation, Dimitrievich determined

that an immediate c-section was required. Dimitrievich ordered a dose of

ampicillin, a broad spectrum penicillin, prior to the c-section to cover the possibility

of a bacterial infection.

[¶6.] At 1 a.m. on Tuesday, September 17, 2002, Spencer Kaiser was

delivered by c-section, weighing nine pounds and five ounces. Following the birth,

Dimitrievich brought the uterus outside the abdominal cavity per her standard

1. A normal white count is between 4,500 and 10,000 cells per microliter.
Potential common causes of an elevated white count include: infection;
certain medications, such as corticosteroids, antibiotics or anti-seizure drugs;
severe physical or emotional stress; chronic bone marrow diseases such as a
myeloproliferative disorder; and acute or chronic leukemia. A high white
count does not identify a specific problem. Instead, it may indicate an
underlying condition. http://www.mayoclinic.com/health/high-white-blood-
cell-count/AN00372 (last visited April 6, 2006).

-2-
#23652

practice in order to repair the c-section incision. The procedure was routine except

Dimitrievich noticed an abnormal vein above the incision in a place blood vessels

are normally not seen. Dimitrievich believed the vein was bleeding, so she sutured

it. However, the stitches she put in caused more bleeding and Dimitrievich applied

a product that assists in halting bleeding. Once the bleeding ceased, Dimitrievich

placed the uterus back in the abdominal cavity. Dimitrievich then ordered

antibiotics for an additional twenty-four hours after the c-section due to Laura’s

previously elevated heart rate, white blood cell count, and the bleeding from the

uterine abnormality. Because the c-section had been routine, Dimitrievich did not

send the placenta to the pathology laboratory for biopsy and it was discarded per

routine hospital procedures.

[¶7.] Laura’s recovery appeared to be progressing normally until Thursday,

September 19, approximately two days after the surgery. Laura vomited and

reported she felt “like things weren’t moving inside,” that she felt bloated and

nauseous, and that her stomach was hardening. Dimitrievich ordered a change

from a normal diet to a liquid diet, suspecting an ileus – a dysfunction of the bowel

common after surgical procedures. On Saturday, September 21, Laura spiked a

fever of 102.2 degrees Fahrenheit. Dimitrievich ordered a dose of triple antibiotics

and demerol for the pain. Later that evening, Dimitrievich called Maria Bell, M.D.,

a gynecologist with a subspecialty in gynecological surgery, for a surgical consult.

[¶8.] After examining Laura on Monday, September 23, Bell advised her

that if she did not improve on the antibiotic treatment in the next twenty-four

hours, exploratory surgery would be necessary. On Tuesday, September 24, Bell

-3-
#23652

along with surgeon Robert George, M.D., performed exploratory surgery on Laura to

determine the cause of her symptoms.

[¶9.] The surgeons discovered a massive infection in Laura’s peritoneal

cavity. The peritoneal cavity and the surface of her organs, including her uterus,

bowels, liver and spleen were covered in pus and extensive adhesions, a condition

known as peritonitis. Bell and George examined the large and small intestine

visually and by “running,” meaning examining by hand, the small intestine and

most of the large intestine for evidence of injury. No injury to either the large or

the small intestine was found, nor did the surgeons find any sign of an injury that

might have occurred during the c-section and subsequently healed over. According

to George, there were so many adhesions and so much pus that it was not possible

to determine whether an injury had occurred.

[¶10.] After cleaning out the peritoneal cavity as best they could, Bell and

George concluded that it was necessary to perform a total hysterectomy to remove

the uterus, cervix, ovaries and fallopian tubes. Laura’s appendix was also removed.

Bell made the decision to remove the organs because of concerns the organs might

be the source of the infection, and that it would not clear up if they were left inside

the peritoneal cavity. No portions of the large or the small intestine were removed.

[¶11.] Organ tissues and cultures from the infected peritoneal fluid were sent

to the pathology laboratory for testing. The pathology report indicated that two of

eleven samples taken from Laura’s uterus contained microscopic spots of “foreign

-4-
#23652

vegetable matter” measuring six to seven microns 2 each embedded in the surface of

the uterine tissue. The pathologist was able to identify it as plant or vegetable

matter due to the cell walls of the material, as only plant or vegetable matter has

such cell wall formations. However, the vegetable matter could not be identified as

partially digested food, nor could its source be determined from the limited samples

taken from the uterus. The only definitive determination that could be made was

that it was of plant origin as opposed to animal or mineral in origin. The vegetable

matter embedded in the uterus was determined not to be the source of the infection,

as very little pus was present at their respective locations. Based on the cultures of

the peritoneal fluid it was determined that two bacteria normally found in the large

intestine, Bacteroides uniformis and Klebsiella oxytoca, were present in the

peritoneal cavity. However, because the placenta had already been disposed of, no

further pathological testing could be performed in an attempt to identify the source

and cause of the infection, or the nature of the vegetable matter found on the

uterus.

[¶12.] Laura recovered from the infection and was discharged from the

hospital four days after the surgery. She suffered a recurrence of the infection that

resulted in a pelvic abscess. However, it was treated without surgical intervention

and she recovered.

2. A micron is a unit of measure equal to one thousandth (10- 3) of a millimeter
or one millionth (10- 6) of a meter. American Heritage College Dictionary 861
(3d ed. 1997). The approximate equivalent is .000039 of an inch.
http://www.m-w.com/mw/table/metricsy.htm (last visited April 7, 2006).

-5-
#23652

[¶13.] In August 2003, Tom and Laura brought suit against Defendants

alleging medical malpractice. Kaisers’ theory of the case was that Dimitrievich had

perforated Laura’s bowel during the c-section and that leakage from the bowel had

caused the massive infection. Kaisers contended that the presence of the vegetable

matter on the surface of Laura’s uterus was a marker that indicated leakage from

the bowel had occurred. Kaisers also theorized that the presence of the two bacteria

commonly found in the bowel were evidence of the perforation. Although no

evidence of a perforation was found by Bell and George when they ran the bowels

during the exploratory surgery, Kaisers’ theory was that a small perforation caused

by Dimitrievich spontaneously healed over after fecal matter was released into the

peritoneal cavity.

[¶14.] Defendants’ theory of the case was that Dimitrievich did not injure

Laura’s bowel during the c-section. Defendants contended the vegetable matter had

been present since before the c-section and its identification as “vegetable” did not

identify its source, nor indicate it was food matter ingested by Laura. Identification

as vegetable matter only indicated its general character as not being of animal or

mineral origin but rather of plant origin. Defendants argued that the source of the

vegetable matter was not relevant to the infection as it predated the c-section by at

least one week and possibly up to several months.

[¶15.] Defendants argued the bacteria found in the culture were common but

not unique to the bowel and offered two theories on how the bacteria could have

entered Laura’s peritoneal cavity: contaminated amniotic fluid or an ascending

vaginal infection resulting from cross-contamination from the anus. Defendants

also argued that if there had been a bowel injury, Laura would have become ill
-6-
#23652

within twenty-four to forty-eight hours, with seventy-two hours as the outermost

range for an illness to develop after the surgery, rather than almost five days after

the surgery.

[¶16.] On June 8, 2004, as part of the discovery process, Kaisers served a

request for production of documents (third set) concerning expert witnesses. The

request asked Defendants to produce (a) a complete copy of each witnesses’ files, (b)

a copy of all photographs or other images made in reviewing the case, and (c) copies

of any and all other documents, records, notes, and written material in possession of

expert witnesses in relation to investigation, analysis and opinions in the matter.

Eleven physicians were deposed in preparation for the trial, including the

Defendants’ pathology expert witness, Dale Snover, M.D., who was deposed on

September 8, 2004. In December 2004, Kaisers filed a motion to compel discovery

after Defendants refused to provide general literature and other materials relied

upon by their experts.

[¶17.] A hearing was held on the matter on January 4, 2005. Defendants

argued that no such general literature was in their possession or was being relied

upon by Snover as the basis for his opinion. Instead, Snover’s expert testimony was

based on his years as a practicing surgical pathologist. The circuit court noted at

the hearing that Snover’s reliance on his experience for his expert testimony went

to his credibility and the weight of his opinion. The circuit court also noted that if

Snover arrived at trial and testified to general literature upon which he had relied,

then Kaisers were free to use his deposition testimony to the contrary to impeach

his credibility. The circuit court then ordered Defendants to provide whatever new

material they had within ten (10) days of their receipt of the same. Both parties
-7-
#23652

agreed to supplement any material upon which their respective experts were

relying within ten days of receipt.

[¶18.] Snover’s deposition testimony focused on the vegetable matter found

on Laura’s uterus and how long it had been present prior to the c-section. Snover

testified that the vegetable matter was surrounded by giant cells, cells that form in

the presence of a foreign body and attempt to break it down at a cellular level using

enzymes and destroy or eliminate it from the body. He further testified that the

giant cells had not simply surrounded the vegetable matter, but had infiltrated it in

order to break it apart. Snover testified that the presence and actions of the giant

cells provided evidence that the vegetable matter had been present on Laura’s

uterus for more than a week prior to the c-section. He estimated it had been

present for a month to several months prior to the c-section, and possibly longer.

Snover further testified that he did not know the source of the vegetable matter, but

that the source was irrelevant to his conclusion that it had been present prior to the

date of the c-section. Snover conceded that the two bacteria identified in Laura’s

peritoneal fluid are most commonly found in the bowel.

[¶19.] Kaisers’ experts testified during depositions that the presence of giant

cells was either not significant or that the vegetable matter had to have been

deposited during the c-section. Kaisers’ experts noted that vegetable matter is not

natural to the surface of the uterus and had to have come from somewhere. They

identified the most likely source was the bowel via a perforation made by

Dimitrievich at the time of the c-section. Kaisers’ experts did not eliminate the

possibility that an ascending infection from the vaginal tract or a post-operative

infection at the site of the surgical incision could have caused the massive infection.
-8-
#23652

However, Kaisers’ experts testified that in their opinion the more likely scenario

was a perforation of the bowel at the time of the c-section given the presence of both

the vegetable matter and the two bacteria Bacteroides uniformis and Klebsiella

oxytoca.

[¶20.] The case was tried to a Minnehaha County jury on March 15-25, 2005.

On Monday, March 21, 2005, the morning of the sixth full day of trial, Snover

arrived to testify using as an exhibit a PowerPoint presentation, labeled Exhibit

109, with comparative models of plant material, giant cells and scar tissue

formation. Kaisers objected to three slides in the presentation and to any expert

testimony regarding the three slides.

[¶21.] The circuit court conducted an evidentiary hearing outside the

presence of the jury to determine the admissibility of the three exhibits. At the

hearing, Kaisers’ counsel argued that the exhibits were not timely disclosed and

that he was unable to fully test the evidence on cross-examination due to untimely

disclosure. Kaisers argued the three exhibits should not be admitted or testified to

by Snover as it was both an irregularity in the proceedings that would prevent

Kaisers from having a fair trial, and was unfair surprise.

[¶22.] Defendants stated that the three photographs contained on the

PowerPoint slides in question had been taken within the last week prior to trial as

pathology specimens came across Snover’s desk. The pathology specimen used to

create slide eight of the presentation became known to Snover the Friday before he

was scheduled to testify. No specific time was identified for when Snover first

received the pathology specimens used in slides ten and eleven, other than to say

-9-
#23652

Snover stacked specimens on his desk for later review and then determined which

to use in his testimony the week before he was scheduled to testify. Defendants’

counsel stated that she first saw the PowerPoint slides on Sunday evening when

Snover arrived in Sioux Falls and she met with him to review his testimony for the

following day. Kaiser’s attorney did not challenge this representation.

[¶23.] The circuit court did not make a specific finding that Defendants failed

to comply with the ten-day order to supplement, nor was there any indication of

willfulness or bad faith on the part of Defendants noted by the circuit court. The

circuit court appears to have accepted the statements of Defendants’ counsel that

the pathology slides became known to Snover the week before trial. The circuit

court also made no specific finding as to whether Defendants failed to seasonably

supplement the substance of Snover’s testimony per the requirements of SDCL 15-

6-26(e)(1).

[¶24.] Instead, after the evidentiary hearing, the circuit court admitted slide

eight as substantive evidence, but limited the admission of slides ten and eleven as

demonstrative or illustrative evidence 3 citing SDCL 19-9-7 (Rule 104(a)), 4 19-9-8

3. A demonstrative or illustrative exhibit “is admissible if it clearly depicts the
factual situations and will allow the trier of facts to more clearly understand
a witness’s descriptions.” State v. Hartman, 256 NW2d 131, 137 (SD 1977)
(citing McCormick on Evidence, § 213 (E. Cleary Ed, 2dEd 1972)).

4. SDCL 19-9-7 (Rule 104(a)) provides: “Preliminary questions concerning the
qualification of a person to be a witness, the existence of a privilege, or the
admissibility of evidence shall be determined by the court, subject to the
provisions of § 19-9-8. In making its determination it is not bound by the
rules of evidence except those with respect to privileges.”

-10-
#23652

(Rule 104(b)), 5 and 19-9-12 (Rule 105). 6 In so doing the circuit court made no

mention that Defendants had failed to seasonably supplement Snover’s deposition

as required by SDCL 15-6-26(e)(1), or that any sanctions were applicable under

SDCL 15-6-37. The circuit court instructed the jury as follows at the time the

exhibits were offered and entered into evidence:

10 and 11, I am only going to receive for a limited purpose and
that is for demonstrative purposes. 10 and 11, I guess is tissue
from another patient. And the doctor is going to use those, I
guess, to explain some things to the jury, but – so you can
consider it for that purpose, but 10 and 11 doesn’t prove
anything else. So, all right, with that, it’s received. The circuit
court admitted Slide 8 into evidence outright, while Slides 10
and 11 were admitted for illustrative purposes.

[¶25.] Snover testified that slide eight contained an image of scar tissue from

a skin biopsy site from an undisclosed patient. Snover testified as follows: “So the

question that comes up, and Dr. Smith [Kaisers’ expert] testified to this on

Wednesday when he was talking about this material, he said that had he seen scar

tissue there he would have been more concerned that this plant material was old

rather than new.” Snover testified that the slide illustrated what scar tissue looks

like at two to three weeks after biopsy in order for the jury to compare it to the scar

5. SDCL 19-9-8 (Rule 104(b)) provides: “When the relevancy of evidence
depends upon the fulfillment of a condition of fact, the court shall admit it
upon, or subject to, the introduction of evidence sufficient to support a finding
of the fulfillment of the condition.”

6. SDCL 19-9-12 (Rule 105) provides: “When evidence which is admissible as to
one party or for one purpose but not admissible as to another party or for
another purpose is admitted, the court, upon request, shall restrict the
evidence to its proper scope and instruct the jury accordingly.”

-11-
#23652

tissue along side the vegetable matter on Laura’s uterus, rather than take his word

concerning the presence of scar tissue alongside the vegetable matter on her uterus.

[¶26.] Snover testified that slide ten contained images of plant material

found on an undisclosed patient’s perforated intestine approximately one to two

days after an injury to the bowel. Snover’s testimony focused on the lack of giant

cells one to two days after the plant material leaked from the perforation. Snover

testified that slide eleven contained images of two pieces of plant material found in

an undisclosed female patient three to six weeks after she suffered a rectal-vaginal

fistula that caused plant material to leak out of the bowel. Snover focused on the

presence of giant cells surrounding the plant material, and how one of the pieces of

plant matter appeared to be broken up by giant cells at the three to six week mark

and also had scar tissue next to it. Snover pointed out for the jury that the other

piece of vegetable matter from the same patient had not been broken apart by the

giant cells and no scar tissue had yet to appear at the three to six week mark.

[¶27.] After six full days of trial, the jury deliberated for two days before

returning a verdict for the Defendants. The circuit court polled the jury, and

indicated on the record that the six man and six woman jury was split ten to two for

the Defendants. The circuit court entered judgment on the verdict on March 29,

2005, which was served on Kaisers on March 31, 2005. The circuit court

subsequently denied a motion for a new trial. This appeal followed.

[¶28.] Kaisers raise one issue on appeal: Whether Kaisers were denied a fair

trial when the circuit court permitted testimony and use of previously undisclosed

exhibits by the Defendants’ expert pathologist.

-12-
#23652

STANDARD OF REVIEW

[¶29.] The trial court’s evidentiary rulings are presumed correct and will not

be overturned absent a clear abuse of discretion. State v. Perovich, 2001 SD 96,

¶11, 632 NW2d 12, 15 (citing State v. Goodroad, 1997 SD 46, ¶9, 563 NW2d 126,

129). “An abuse of discretion refers to a discretion exercised to an end or purpose

not justified by, and clearly against reason and evidence.” State v. Henry, 1996 SD

108, ¶10, 554 NW2d 472, 473 (quoting In re A.R.P., 519 NW2d 56, 62 (SD 1994)

(quoting State v. Moriarty, 501 NW2d 352, 355 (SD 1993); State v. Devall, 489

NW2d 371, 374 (SD 1992))). As this Court recently noted in State v. Asmussen:

“With regard to the rules of evidence, abuse of discretion occurs when a trial court

misapplies a rule of evidence, not when it merely allows or refuses questionable

evidence.” 2006 SD 37, ¶13, 713 NW2d 580, 586 (citing State v. Guthrie, 2001 SD

61, ¶30, 627 NW2d 401, 415 (citing Koon v. United States, 518 US 81, 100, 116 SCt

2035, 2047, 135 LEd2d 392 (1996))).

ANALYSIS AND DECISION

[¶30.] Kaisers argue that Defendants’ violation of the circuit court’s discovery

order under SDCL 15-6-26(e)(3), their failure to seasonably supplement discovery

under SDCL 15-6-26(e)(1), and the circuit court’s subsequent admission of those

slides into evidence denied them a fair trial. Kaisers contend that the use of the

exhibits permitted Snover to draw a direct comparison between the appearance of

the vegetable matter and surrounding cellular structures on Laura’s uterus and

those found on Snover’s other patients, “directly suggesting to the jury that since

the appearance was different and the giant cell formation was not proceeding at the

same rate, the vegetable matter could not have emanated form a bowel injury at the
-13-
#23652

time of Laura’s cesarean section.” Kaisers argue that Snover’s ability to use the

previously undisclosed slides precluded them from counteracting his testimony.

[¶31.] The legislative history, concerning the Federal Rules that govern

pretrial discovery, is instructive. In Hickman v. Taylor, the United States Supreme

Court examined Federal Rules 26(e) to 37 and concluded the rules were “one of the

most significant innovations of the Federal Rules of Civil Procedure.” 329 US 495,

500, 67 SCt 385, 388, 91 LEd 451 (1947). The Court continued:

Thus civil trials in the federal courts no longer need be carried
on in the dark. The way is now clear, consistent with recognized
privileges, for the parties to obtain the fullest possible
knowledge of the issues and facts before trial.

Id. at 501, 67 SCt at 389, 91 LEd 451.

[¶32.] At the time of trial in this case, SDCL 15-6-26(e) provided in relevant

part: 7

A party who has responded to a request for discovery with a
response that was complete when made is under no duty to
supplement his response to include information thereafter
acquired, except as follows:

(1) A party is under a duty seasonably to supplement his
response with respect to any question directly addressed to (A)
the identity and location of persons having knowledge of
discoverable matters, and (B) the identity of each person
expected to be called as an expert witness at trial, the subject
matter on which he is expected to testify, and the substance of
this testimony.
...
(3) A duty to supplement responses may be imposed by order
of the court, agreement of the parties, or at any time prior to

7. This year, we amended SDCL 15-6-26(e) to reflect the 1993 Amendment to
Federal Rule 26(e). See 2006 SD Sess Laws ch 290.

-14-
#23652

trial through new requests for supplementation of prior
responses.

(emphasis added).

[¶33.] Under SDCL 15-6-37(b), a violation of a court order to supplement

responses may, at the court’s discretion, result in reasonable sanctions against the

disobedient party, but not as a punishment for “general misbehavior.” See

Chittenden & Eastman Co. v. Smith, 286 NW2d 314, 316 (SD 1979) (citing Dorsey

v. Academy Moving & Storage, Inc., 423 F2d 858 (5thCir 1970)). Sanctions may

include “[a]n order refusing to allow the disobedient party to support or oppose

designated claims or defenses, or prohibiting that party from introducing

designated matters in evidence.” SDCL 15-6-37(b)(2)(B). Additional sanctions may

include the imposition of costs for bringing a motion to compel production under

SDCL 15-6-37(a)(4) and 15-6-37(b)(2); an order that the matters or facts involved be

taken to be established under SDCL 15-6-37(b)(2)(A); an order striking out

pleadings or staying further proceedings until the order is obeyed, dismissing the

action or rendering a default judgment against the disobedient party under SDCL

15-6-37(b)(2)(C); an order of contempt of court under SDCL 15-6-37(b)(2)(D).

[¶34.] The purpose of sanctions under SDCL 15-6-37(b) is “‘to compel

production of evidence and to promote, rather than stifle, the truth finding

process.’” Haberer v. Radio Shack, a Div. of Tandy Corp., 1996 SD 130, ¶20, 555

NW2d 606, 610 (quoting Schrader v. Tjarks, 522 NW2d 205, 210 (SD 1994) (quoting

Magbuhat v. Kovarik, 382 NW2d 43, 45 (SD 1986))). More drastic sanctions under

SDCL 15-6-37(b) are appropriate when failure to comply is the result of willfulness,

bad faith or fault. Schrader, 522 NW2d at 210 (reversing exclusion of testimony as

-15-
#23652

sanction for failure to disclose identity of an expert rebuttal witness); Magbuhat,

382 NW2d at 45 (reversing order limiting scope of depositions to discovery by

defendants and order denying use of those depositions by plaintiffs at trial for

failure by plaintiffs to supplement earlier interrogatories with names of expert

witnesses); Chittenden & Eastman Co., 286 NW2d at 316 (reversing order of default

judgment entered after sanction striking defendant’s answers and affirmative

defenses was entered when plaintiff was unable to fully complete interrogatories

due to inaccessibility of records through no fault of his own).

[¶35.] We have not had occasion to precisely define the meaning of the term

“seasonably supplement” in the context of SDCL 15-6-26(e)(1). 8 However, when

considering whether a party has failed to seasonably supplement expert witnesses

and the substance of their testimony, our holdings have generally focused on three

concerns. First, we have focused less on the time element and more on the

existence or lack of bad conduct by the party supplementing close to or at trial. See

Isaac v. State Farm Mut. Auto. Ins. Co., 522 NW2d 752, 762 (SD 1994); Schrader,

522 NW2d at 210. Second, we have given consideration to whether the expert

witness or evidence concerned a crucial issue in the case. See Haberer, 1996 SD

130, ¶¶21-22, 555 NW2d at 610-11; Isaac, 522 NW2d at 762; Schrader, 522 NW2d

at 210; Fullmer v. State Farm Ins. Co., 498 NW2d 357, 361-62 (SD 1993). And

finally, we have considered whether the expert witness or the substance of his

testimony was substantially different from that disclosed during the discovery

8. Black’s Law Dictionary defines “seasonable” as “[w]ithin the time agreed on;
within a reasonable time.” 1379 (8th ed 2004).

-16-
#23652

process. Haberer, 1996 SD 130, ¶¶21-22, 555 NW2d at 610-11; Fullmer, 498 NW2d

at 361-62.

[¶36.] We have upheld a circuit court for refusing to admit previously

undisclosed evidence when the offending party knew the name of its expert

witnesses and of the existence of the evidence at least twenty-four days prior to

trial, yet failed to disclose the information until three days before trial. Isaac, 522

NW2d at 762. However, we reversed a circuit court for refusing testimony from a

plaintiff’s rebuttal expert witnesses disclosed ten days before the start of trial, but

eighteen days after plaintiffs deposed one expert witness for the defense and eleven

days after plaintiffs deposing two additional expert witnesses that challenged the

heart of plaintiff’s case. Schrader, 522 NW2d at 208-12.

[¶37.] When the substance of the expert witness’s testimony is alleged to

have changed or expanded beyond the scope of discovery, our holdings take into

consideration the degree of any such change or expansion. See Haberer, 1996 SD

130, ¶¶21-22, 555 NW2d at 610-11; Fullmer, 498 NW2d at 361-62. We have upheld

a circuit court’s ruling granting a new trial as being within its discretion when a

party failed to supplement per the provisions of SDCL 15-6-26(e) that its expert

witness had changed his opinion two weeks prior to trial. Fullmer, 498 NW2d at

361-62 (noting that in bifurcated trial, insurer’s expert witness’s change in

testimony “whipsawed” plaintiff with inconsistent positions taken by insurer in two

trials as to cause of plaintiff’s injury). However, when an expert witness’s

testimony did not change and interrogatories included the fact that the expert’s

testimony would be based on examination of similar undamaged equipment as that

-17-
#23652

involved in the case, but failed to seasonably supplement where testing of similar

equipment would be conducted, we have upheld the circuit court’s discretion to

admit such evidence. Haberer, 1996 SD 130, ¶¶21-22, 555 NW2d at 610-11.

[¶38.] Because SDCL 15-6-26(e) is modeled after Federal Rule 26(e),

decisions by federal courts interpreting and applying the federal rule provides

assistance in applying our state rule. See Miller v. Hernandez, 520 NW2d 266, 269

(SD 1994). Several federal courts have held exclusion of evidence is the proper

remedy when a party fails to seasonably supplement pursuant to the 1970 version

of Rule 26. See Smith v. Ford Motor Co., 626 F2d 784, 794 (10thCir 1980) (citing

Coleco Industries, Inc. v. Berman, 567 F2d 569 (3dCir 1997), cert denied, 439 US

830, 99 SCt 106, 58 LEd2d 124 (1978); Tabatchnick v. G.D. Searle & Co., 67 FRD 49

(DNJ 1975)). In Smith, the Tenth Circuit Court of Appeals found reversible error

where a party failed to supplement the nature of its expert’s testimony:

Before an attorney can even hope to deal on cross-examination
with unfavorable expert opinion he must have some idea of the
basis of that opinion and the data relied upon. If the attorney is
required to await examination at trial to get this information, he
often will have too little time to recognize and expose vulnerable
spots in the testimony.

Id. at 799 (quoting Jack H. Friedenthal, Discovery and Use of an Adverse Party’s

Expert Information, 14 STANLREV 455, 486 (1962)). Similarly, many federal courts

have found reversible error when testimony is admitted without prior disclosure

pursuant to Rule 26. Id. at 794 (citing Voegeli v. Lewis, 568 F2d 89, 96 (8thCir

1977); Shelak v. White Motor Co., 581 F2d 1155 (5thCir 1978); Weiss v. Chrysler

Motors Corp., 515 F2d 449 (2dCir 1975)).

-18-
#23652

[¶39.] Decisions from other state jurisdictions are also helpful. Courts that

have found reversible error where a party has failed to seasonably supplement have

done so based on the other party’s inability to effectively conduct cross-examination.

The Hawaii Court of Appeals examined the legislative history concerning the 1970

Amendments 9 to the Federal Rules of Civil Procedure. Swink v. Cooper, 881 P2d

1277, 1282 (HawCtApp 1994). The court noted that the Advisory Committee to the

1970 Amendments contemplated Rule 26(e) violations could be enforced by the

exclusion of evidence at trial. Id. Ultimately, the court upheld the exclusion of

testimony from an expert in a medical malpractice action because opposing counsel

was given no advance knowledge of a change in the expert’s theory. Id.

[¶40.] An accompanying text to the first draft of the 1970 Amendments to the

Federal Rules of Civil Procedure notes:

In cases of this character (involving expert testimony), a
prohibition against discovery of information held by expert
witnesses produces in acute form the very evils that discovery
has been created to prevent. Effective cross-examination of an
expert witness requires advance preparation. The lawyer even
with the help of his own experts frequently cannot anticipate the
particular approach his adversary’s expert will take or the data
on which he will base his judgment on the stand.

Smith, 626 F2d at 793 (citing McGlothlin, Some Practical Problems in Proof of

Economic, Scientific, and Technical Facts, 23 FRD 467, 478 (1958)).

9. In addition to amending SDCL 15-6-26(e) to reflect the 1993 Amendment to
Federal Rule 26(e), on July 1, 2006 we also adopted SDCL 15-6-37(c), which
provides for harsher sanctions if a party fails to seasonably supplement. See
2006 SD Laws ch 309. Specifically, under SDCL 15-6-37(c), a party who fails
to seasonably supplement is “not, unless such failure is harmless, permitted
to use as evidence at trial, at a hearing, or on a motion any information not so
disclosed.” However, courts can impose other sanctions in lieu of exclusion.

-19-
#23652

[¶41.] The Supreme Court of Kansas upheld a trial court’s exclusion of expert

testimony where a defendant hospital failed to seasonably supplement the fact that

its expert physician relied on tissue slides in forming the basis of his opinion.

Barnes v. St. Francis Hospital & School of Nursing, Inc., 507 P2d 288 (Kan 1973).

The defendant’s expert did not mention the slides during his deposition. Id. at 294.

The court noted: “we believe [the expert] should seasonably have amended his

deposition by disclosing that he had examined the pathological slides in forming his

opinion. . . .” Id.

[¶42.] Kaiser’s counsel asked Dr. Snover in his deposition what materials he

relied upon in forming his opinion that the vegetable matter found on Kaiser’s

uterus predated her c-section. Dr. Snover responded that his experience as a

medical professor and pathologist formed the basis of his opinion. He could not

provide any literature that supported his theory, nor could he recall any specific

patients or other materials he had encountered.

[¶43.] In addition to the deposition, Kaiser’s counsel served a request for

production of documents requiring Defendants to produce “with regard to expert

Dale Snover, M.D.:

(a) A complete copy of his file related to this matter;
...
(f) A copy of all photographs or other images made in reviewing this
matter;
(g) Copies of any and all other documents, records, notes, and
written material in his possession relating to his investigation,
analysis, and opinions in this matter.”

-20-
#23652

Later, Kaiser filed a motion to compel discovery after Defendants refused to provide

all the materials its experts were relying on in their opinions. At the hearing, the

following exchange took place between the circuit court and defense counsel:

The Court: And I assume that if the doctor comes up with
something new before the trial he will divulge it, and I don’t see
any problem with that. Counsel for the defense, do you have
any problem with that? That’s the way we usually handle those
things.

Defense Counsel: I would agree. Any time an expert will rely
upon something at trial, you supplement your disclosure and say
this is new information that he’s going to rely upon. And we
don’t have any problem with that.

[¶44.] At trial, Dr. Snover for the first time relied on two photos of giant cell

formation in and around vegetable matter found in the bodies of two undisclosed

patients. Dr. Snover also relied on a third photo of scarring in a third undisclosed

patient. Despite the requests for production of documents, the motion to compel,

the circuit court’s order, and the requirements of SDCL 15-6-26(e)(1), these photos

were not provided to Kaiser’s counsel until the sixth day of trial, only minutes

before Dr. Snover was scheduled to testify. 10 The eleventh-hour production of these

photos is not consistent with the on-going duty to seasonably supplement as

required by SDCL 15-6-26(e)(1).

[¶45.] In this case, Dr. Snover labeled the presence of vegetable material as a

“critical issue.” He used the slides to demonstrate his theory to the jury that the

10. At oral argument Kaisers’ attorney conceded he found no fault with the
ethical conduct of the Defendant’s attorneys concerning this issue. As
previously noted, counsel for the Defendant did not become aware of the
exhibits until the night before Dr. Snover testified.

-21-
#23652

vegetable matter predated the c-section. Dr. Snover commented, “[w]hen you see a

picture it’s not just me telling you, but hopefully you will be able to see it yourself.”

When comparing the plant material in the slides to Kaiser’s, Dr. Snover testified

further, “you can see [from the other patient’s slides that] while there is plant

material here, this is one to two days, there is no foreign body giant cell reaction.”

Later, Dr. Snover held up the third picture and said, “I have illustrated again from-

- just so you will be able to recognize scar tissue when you see it and don’t have to

trust me.”

[¶46.] Since this evidence was undisclosed prior to trial, Kaiser’s counsel was

unable to effectively cross-examine Dr. Snover. Dr. Snover testified on cross-

examination that “given the histological findings I illustrated” the vegetable matter

was present in Kaiser’s body for more than one week prior to the c-section. On

another occasion, Dr. Snover stated “I believe the histological evidence, stands by

itself.” Kaiser’s counsel had no opportunity to examine, test, or consult with his

own expert concerning the photos. Nor was Kaiser’s counsel able to ascertain

whether the unknown patient’s conditions and surgeries were sufficiently similar to

Kaiser’s. Thus, what had previously been a battle of expert opinions had now

become a battle of opinions plus the new physical evidence supporting one expert’s

view.

[¶47.] Defendants argue that Kaiser was on notice that the giant cell theory

would be at issue, and therefore, there was no surprise. However, its argument

fails to consider that Kaiser was not on notice that three other undisclosed patient’s

cases would be used to physically demonstrate, through pictorial evidence, that only

Dr. Snover’s opinion was scientifically corroborated.
-22-
#23652

[¶48.] Defendants also maintain that there was no change in Dr. Snover’s

position or testimony given at the deposition. However, during his deposition, Dr.

Snover testified that he had no physical evidence or medical literature to support

his theory. Yet at trial, he was permitted, through the use of the three undisclosed

slides, to prove his theory through physical evidence of the formation of giant cells

and scarring in other patients. Therefore, to this extent, the basis and support for

Dr. Snover’s opinion did change at trial. Through the admission of these

undisclosed exhibits, Dr. Snover was allowed to change his testimony through

foundational enhancement and now provide the supporting physical evidence that

he could not provide when Kaiser’s counsel took his deposition.

[¶49.] Permitting Dr. Snover to use the undisclosed photos was an abuse of

discretion. The fact that Kaiser’s counsel was unable to effectively cross-examine

Dr. Snover about a central issue in the case harmed Kaiser’s substantial rights.

The prejudice is obvious and substantial. We reverse and remand for a new trial

consistent with this opinion. 11

11. It is argued that a request for a continuance by Kaiser would have sufficed.
The Kansas Supreme Court dealt with this very issue in a similar case.
Hagedorn by Hagedorn v. Stormont-Vail Reg. Med. Center, 715 P2d 2 (Kan
1986). The court noted:

How much delay this [a recess] would have occasioned during
the trial, and whether it would have rectified the situation, we
cannot say. The fact remains that the basis for the doctor’s
opinion had changed, and there was no supplementation of his
deposition.

Id. at 7. In this case, the circuit judge may have entertained the possibility of
a continuance or a recess so Kaiser’s counsel could consult with his own
experts or depose Dr. Snover concerning the pictures. Whether and to what
(continued . . .)
-23-
#23652

[¶50.] SABERS, KONENKAMP, and ZINTER, Justices, and,

DOBBERPUHL, Circuit Judge, concur.

[¶51.] DOBBERPUHL, Circuit Judge, sitting for MEIERHENRY, Justice,

disqualified.

________________________
(. . . continued)
extent that would have been practical is hard to say. Nevertheless, the
circuit court admitted the evidence. Kaiser’s counsel objected to the pictures,
moved for a new trial, and appealed the issue. He should not be required to
raise every possible remedy short of exclusion. However, the circuit court on
remand may consider alternatives in fashioning a remedy for the reversible
error in this case.

-24-