Hall v. Casto

572 S.E.2d 912, 212 W. Va. 389, 2002 W. Va. LEXIS 183
CourtWest Virginia Supreme Court
DecidedNovember 4, 2002
DocketNo. 30462
StatusPublished

This text of 572 S.E.2d 912 (Hall v. Casto) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hall v. Casto, 572 S.E.2d 912, 212 W. Va. 389, 2002 W. Va. LEXIS 183 (W. Va. 2002).

Opinion

PER CURIAM:

A jury in this chiropractic malpractice action returned a verdict in favor of the defendant, Larry D. Casto, D.C., and the Circuit Court of Kanawha County entered a judgment on that verdict. In the present appeal, the appellant, who was the plaintiff below, claims that the circuit court erred in allowing the jury, over her objection, to listen to an audiotape, which had not previously been provided to her pursuant to her discovery motion, and to consider contents of the tape in reaching its verdict. She also claims that the circuit court erred in refusing to. permit her to introduce into evidence a statement of certain medical bills which she claims she incurred.

I.

FACTS

The appellant, while driving a bus for the Kanawha Valley Regional Transportation Authority, was involved in a motor vehicle accident with an uninsured motorist on July 16, 1997. As a result of the accident, she sustained a cervical sprain.

Two days after the accident, the appellant consulted the appellee, a chiropractor, and on a subsequent visit, on August 15, 1997, the appellee, according to the appellant, jerked her neck forcefully to one side. She claims that, at that time, she felt severe pain shooting into her left thumb and first finger, pain which she had not previously experienced.

A subsequent MRI showed that the appellant had a herniated cervical disc at C5-6. For this problem, she subsequently underwent surgery and, as a consequence, she developed weakness in her right arm and a choking sensation.

The appellant, who believed that her herniated cervical disc was caused by the appellee, subsequently sued him claiming that he had engaged in malpractice when he jerked her head forcefully to one side on August 15, 1997.

Following the filing of the complaint in the action, the appellant engaged in discovery, and in her second request for production of documents, she sought, “[a]ny and all audiotapes generated by chiropractor Casto contemporaneously with any treatment that he provided the plaintiff for each occasion that he treated the plaintiff, or in the alternative, an accurate and unedited copy of each such audiotape.”

Pursuant to the discovery request, the ap-pellee provided the appellant with a copy of an audiotape made while the appellee was treating the appellant on August 15, 1997, the day of the alleged injury. The copy of the tape was largely inaudible.

In the course of the later trial of the ease, it became obvious that the appellee intended to introduce into evidence the original audiotape made on August 15, 1997, and that the original tape was considerably more audible than the copy and that it seemingly contradicted the appellant’s claim that the appellee had injured her on August 15,1997. When it became obvious that the appellee intended to introduce this tape, the appellant moved to preclude its introduction. Essentially, the appellant took the position that the copy which had been provided was of such poor quality that it was not an accurate copy and that the appellant was surprised to learn that the original tape tended to contradict the position which she had already taken at trial. She essentially argued that she was surprised by the contents of the original tape and that the surprise had impaired her presentation of her case. After lengthy argument on the appellant’s motion, the trial court ruled that the jury could hear both the original tape and the copy provided to the appellant.

[391]*391In the present appeal, the appellant essentially argues that the copy of the audiotape provided was not an accurate copy and that the presentation of her case was prejudiced when the trial court subsequently allowed the introduction of the original tape.

A second problem which arose at trial involved the attempted introduction of a summary of the appellant’s medical bills which the appellant proposed to introduce into evidence. The summary, which was 11 pages long, showed that the appellant had medical charges in excess of $97,000. The appellant reviewed the summary during trial and testified that the summary accurately reflected the bills which she incurred, and at that point, her attorney moved that the summary be admitted into evidence. Counsel for the appellee objected to the admission on the ground that a causal connection between the injury and the bills had not been established.

The appellant, to establish a causal connection, called as a witness Dr. Harbour, a chiropractor. Dr. Harbour was shown the summary and asked whether he had an opinion to a reasonable degree of chiropractic probability as to whether the bills incurred were related to the treatment which the appellant received on August 15, 1997. Dr. Harbour expressed the opinion that the charges were related to the event in question. The appellant again moved for the introduction of the medical summary into evidence, and the court denied that motion.

The appellant’s second claim in the present appeal is that a proper foundation was established for the introduction of the summary and that the trial court erred in refusing to admit it into evidence.

II.

STANDARD OF REVIEW

The questions in the present case involve the correctness of the circuit court’s rulings on the admission of evidence. In McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995), this Court discussed the review of evidentiary rulings, and especially admissibility rulings arising out of discovery problems. In Syllabus Point 1 of McDougal v. McCammon, id., the Court stated:

The West Virginia Rules of Evidence and the West Virginia Rules of Civil Procedure allocate significant discretion to the trial court in making evidentiary and procedural rulings. Thus, rulings on the admissibility of evidence and the appropriateness of a particular sanction for discovery violations are committed to the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary and procedural rulings of the circuit court under an abuse of discretion standard.

III.

DISCUSSION

As has previously been indicated, the appellant’s fust claim in the present appeal is that the trial court erred in admitting into evidence the original tape made during her session with the appellee on August 15,1997. She essentially argues that the trial court should have refused to admit the tape because the appellee failed to provide it, or an accurate copy of it, to her in accordance with her discovery motion, and that the failure to provide her with the tape resulted in surprise and prejudice when the tape was eventually admitted during trial.

In McDougal v. McCammon, id., this Court indicated that one of the purposes of discovery under the Rules of Civil Procedure is to eliminate surprise, and the Court also indicated that trial by ambush is not contemplated by the rules.

The facts in the McDougal case are somewhat similar to the facts of the case presently before the Court. In the McDougal case, a key issue was whether the plaintiff, Mrs. McDougal, was disabled from performing certain of her normal daily activities. At the time of the- development of the ease, the defendant possessed a videotape showing Mrs. McDougal performing her normal daily activities after her alleged injuries, a videotape which suggested that she was not, in fact, disabled.

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Related

McDougal v. McCammon
455 S.E.2d 788 (West Virginia Supreme Court, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
572 S.E.2d 912, 212 W. Va. 389, 2002 W. Va. LEXIS 183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hall-v-casto-wva-2002.