A person suing for personal injury in West Virginia generally has the burden of proving in court that the person or entity that he or she is suing was negligent or was otherwise responsible for the injury. That often means relying on medical and other expert testimony to detail the extent of the injury and how it was caused. As the U.S. District Court for the Southern District of West Virginia recently explained, however, there are certain procedural hoops that you have to jump through to make sure that the testimony actually gets to a judge or jury.
Mr. Turner sued Speedway LLC in state court, alleging that he was injured after slipping and falling on a wet surface in the parking lot of a Speedway gas station in Wilkinson. The case was later removed to federal court because Speedway is an out-of-state company. Turner alleged that he injured his hip, elbow, back, neck, and head in the fall and that he suffered a fracture, headaches, pain in his feet, and difficulty walking as a result. In the run up to the trial, however, it was revealed that he also had a history of health problems, including missing roughly half a year at work after having several discs removed from his neck in the 1980s, as well as a heart condition and a lower back injury.
“West Virginia law dictates that in a negligence suit, a plaintiff is required to show four basic elements: duty, breach, causation, and damages,” the Court explained. In other words, a person suing for negligence has to prove that the person or entity being sued breached a duty owed to the person suing, that the breach caused the person to be injured, and that the person is entitled to money damages as compensation for those injuries. Property owners like Speedway are generally considered under state law to owe visitors a duty to maintain their premises in reasonably safe condition and to warn them of any hazards that the owner knows about or should know about through reasonable inspection. But the company said it was entitled to summary judgment because Turner couldn’t prove that he was actually injured in the fall.
Turner intended to rely heavily on testimony from his treating physician, Dr. Orphanos, to prove that the injuries were related to the slip and fall. He did not, however, designate Orphanos as an expert. Rule 26 of the Federal Rules of Civil Procedure requires a party to a lawsuit to disclose any experts and explain an expert’s testimony and any evidence that the expert might rely on in support of it. If the party doesn’t meet this requirement, he or she can’t use the expert testimony, unless the failure is considered harmless or justified.
Here, the Court said Turner wasn’t justified in failing to designate Orphanos as an expert. The mistake wasn’t harmless, the Court said, since Speedway had little indication of how Orphanos might testify at trial. His prior deposition testimony had been vague, according to the Court, which left Speedway open to a potential surprise later down the road. “Expert disclosures are intended to facilitate trial preparation and reduce the amount of guesswork in civil litigation,” the Court said. “Dr. Orphanos’ deposition does not provide the information necessary to enable Speedway to engage in such preparation.”
As a result, the Court said it would exclude Orphanos’ testimony.
If you or a loved one has been injured an accident on another’s property, the Wolfe Law Firm can help. Our West Virginia premises liability lawyers have been serving clients throughout the state for more than 25 years. Located in Elkins, West Virginia, the firm represents clients in a wide range of injury, criminal defense, and bankruptcy matters. Call us at 1-877-637-5756 or contact us online for a free consultation.
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